Kennedy Ex Rel. Gorton v. City of Ridgefield , 439 F.3d 1055 ( 2006 )

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, Presiding
Argued and Submitted
September 17, 2004—Seattle, Washington
Filed March 7, 2006
Before: James R. Browning, A. Wallace Tashima, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Browning;
Dissent by Judge Bybee
2227
KENNEDY v. RIDGEFIELD 2231
COUNSEL
John R. Connelly, Jr., Darrell L. Cochran and Lincoln C.
Beauregard, Gordon Thomas Honeywell Malanca Peterson &
Daheim, Tacoma, Washington, for the plaintiffs-appellees.
Ray P. Cox, Forsberg & Umlauf, Seattle, Washington, for the
defendants-appellants.
OPINION
BROWNING, Circuit Judge:
Defendant Noel Shields appeals the denial of his motion for
summary judgment based on his assertion of qualified immu-
nity against Plaintiff Kimberly Kennedy’s 42 U.S.C. § 1983
claim. He argues that his conduct did not violate Plaintiff’s
clearly established constitutional rights. We disagree, and
affirm the district court’s determination that, on the facts
alleged, Shields is not entitled to qualified immunity.
I. Introduction
The following initial facts are undisputed. Kimberly Ken-
nedy’s § 1983 action against Ridgefield City and Ridgefield
Police Officer Noel Shields stems from events occurring on
September 24, 1998, when a thirteen year-old neighbor,
Michael Burns, shot and killed her husband, Jay Kennedy,
and shot and severely wounded her. Earlier that same month,
on September 6, Kennedy called the Ridgefield Police
Department (“RPD”) and alleged that Burns had molested
Kennedy’s nine-year-old daughter. RPD Officer Shields
2232 KENNEDY v. RIDGEFIELD
responded to the call. Burns shot the Kennedys within approx-
imately eight hours of first learning of the allegations against
him. He has since been convicted of the premeditated murder
of Jay Kennedy and the attempted premeditated murder of
Kimberly.
At this early stage in the litigation, there are indeed facts
which the parties dispute. However, because Shields contends
that, even after resolving all issues of fact in Kennedy’s favor,
she fails to demonstrate that he violated her constitutional
rights, we present and consider the remaining facts, where
appropriate, in a light most favorable to Kennedy.
During their initial meeting on September 6, Kennedy
warned Shields of Michael Burns’s known, violent tenden-
cies. She told Shields that the Burns family was unstable, that
she had seen a lot of violence in their home, and described to
Shields several violent incidents involving both Michael and
his mother, Angela Burns. Kennedy told Shields that Michael
had been involved in fights at school, had lit a cat on fire, had
broken into his girlfriend’s house and attacked her with a
baseball bat, and had thrown rocks at a building in downtown
Ridgefield. After learning of Burns’s violent behavior,
Shields assured Kennedy that she would be given notice prior
to any police contact with the Burns family about her allega-
tions.
Following that meeting, Shields forwarded his report to the
Child Abuse and Intervention Center (“CAIC”). Shields had
no further contact with Kennedy between September 6 and
September 24, the night of the shooting. On several occasions,
Kennedy inquired into the status of the investigation of
Michael and reminded officers to notify her prior to any con-
tact with the Burns family. In the interim, she and Shields
both learned that Michael had been investigated for sending
death threats to a classmate, though the investigation con-
cluded he was not responsible. During her inquiries, Kennedy
expressed concern for her safety and told the CAIC officer
KENNEDY v. RIDGEFIELD 2233
handling the case that she was anxious to have the investiga-
tion started.
On September 24, Kennedy called both Shields and the
CAIC to inquire into the progress of the investigation. Ken-
nedy left a message for Shields asking about the status of the
alleged molestation case, and whether he had yet contacted
Burns. After receiving Kennedy’s message when he arrived at
work that afternoon, Shields called the CAIC to inquire into
the status of the investigation. The officer responsible for the
case was out, so Shields left his own message. Then, rather
than calling Kennedy with an update, Officer Shields drove to
the Burns residence. Shields claims he did so because the
Burns house was on the way to the Kennedy’s, and if he could
determine whether they had been contacted, he could continue
to the Kennedy’s with more accurate information. At approxi-
mately 5:00 p.m., Shields talked to Angela Burns, informing
her and Michael of Kennedy’s allegations.
After speaking with Angela, Shields went to the Kennedy
house. When he arrived, at approximately 5:15 p.m., Shields
told Kennedy that he had informed Angela Burns of the
molestation allegations. Kennedy became upset and asked
Shields why he had contacted the Burns family prior to noti-
fying her and told Shields that she feared for her safety. Offi-
cer Shields assured her that the police would patrol the area
around both her house and the Burns’s house that night to
keep an eye on Michael.
After Shields left, Kennedy called a friend because she was
very frightened of what Michael’s and his mother’s reactions
would be. Shields had told her Angela was very angry after
their conversation and that she and Michael had begun to yell
at one another. Kennedy took no further action until about
10:00 p.m. that night when her husband returned from a hunt-
er’s safety course. He had left their house to attend the course
just as Shields had arrived that afternoon. The Kennedys
decided to stay the rest of the night at home, in part because
2234 KENNEDY v. RIDGEFIELD
of the late hour, and in part because Shields allegedly prom-
ised to patrol the neighborhood. They planned to lock their
doors and leave town early the next morning. But early on the
morning of September 25, Michael Burns broke into the Ken-
nedy house and shot both Jay and Kimberly Kennedy while
they slept.
Kennedy filed suit against Shields and Ridgefield City,
among others, in Clark County Superior Court asserting sev-
eral 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 Wash-
ington. On March 13, 2003, Shields and Ridgefield City
moved for summary judgment. The court granted summary
judgment to Defendants on Kennedy’s state law claims of
negligent infliction of emotional distress and the tort of out-
rage, and to Ridgefield City on her § 1983 “failure to train”
claim.
However, the district court denied Shields’s motion for
summary judgment based on qualified immunity. It concluded
that, viewing the facts in a light most favorable to Kennedy,
“a jury could find that Officer Shields unreasonably created
a false sense of security in plaintiffs by agreeing to give plain-
tiffs advanced notice of advising the Burns family of the alle-
gation that Michael Burns sexually molested [Kennedy’s
daughter], and assuring the plaintiffs of a neighborhood
patrol.” Order, at 4-5. This interlocutory appeal followed.
II. Analysis
This case presents two legal issues. First, we must consider
whether this Court has jurisdiction over Shields’s interlocu-
tory appeal concerning his qualified immunity defense. If so,
we must then determine whether Shields is entitled to such
immunity.
We review de novo an interlocutory appeal from the denial
of summary judgment based on qualified immunity. Wilkins
KENNEDY v. RIDGEFIELD 2235
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 we have jurisdiction to determine whether the trial
court erred in holding 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, 530 (1985), the Supreme Court held
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-
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 district court stated:
Viewed in a light most favorable to plaintiffs, a jury
could find that Officer Shields unreasonably created
2236 KENNEDY v. RIDGEFIELD
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 [Kennedy’s daughter], and assuring
the plaintiffs of a neighborhood patrol. . . . In
essence there is a question of fact as to whether or
not there was justifiable reliance by plaintiffs on the
alleged promises by Shields.
Order, at 4-5. Thus, the district court’s order observes that
issues of fact remain.
[3] However, this does not suffice to deprive us of jurisdic-
tion 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.
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
KENNEDY v. RIDGEFIELD 2237
whether there is a genuine dispute about the underlying
facts.”).
Unlike the appeal in Johnson, we are neither asked nor
required to look at the sufficiency of the evidence in support
of the factual claims made by the parties, i.e., Shields’s con-
tention that he did not create a false sense of security, and
Kennedy’s insistence 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.”).
[4] While the district court concluded that issues of fact
remain, those disputed facts are not the basis of Shields’s
interlocutory appeal before this court. Rather, Shields con-
tends that, even after resolving the issues of fact in Kennedy’s
favor, Kennedy will not have demonstrated that Shields vio-
lated her clearly established, constitutional right. Because this
question represents an “abstract issue of law relating to quali-
fied immunity,” it falls within our jurisdiction on interlocu-
tory appeal.
Assuming as true the facts adduced by Kennedy, then, we
must determine whether Shields violated her constitutional
rights and whether those rights were clearly established. Offi-
cer Shields is entitled to qualified immunity unless we resolve
both issues in the affirmative. We now turn to those questions.
B. Application of Qualified Immunity to Officer Shields
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court
established a two-prong analysis for qualified immunity cases.
First, a court must determine whether — resolving all disputes
of fact and credibility in favor of the party asserting the injury
— the facts adduced at summary judgment show that the offi-
cer’s conduct violated a constitutional right. Saucier, 533 U.S.
2238 KENNEDY v. RIDGEFIELD
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 immunity.
However, if the court determines that the conduct did vio-
late a constitutional right, Saucier’s second prong requires the
court to determine whether, at the time of the violation, the
constitutional right was “clearly established.” Id. A right is
clearly established if its “contours” are “sufficiently clear that
a reasonable official would understand that what he is doing
violates that right.” Id. (citing Anderson v. Creighton, 483
U.S. 635, 640 (1987)). Even if the violated right is clearly
established, the Saucier Court recognized that, in certain situ-
ations, it may be difficult for a police officer to determine
how to apply the relevant legal doctrine to the particular cir-
cumstances he or she faces. It held, therefore, that if an 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 offi-
cer is entitled to the immunity defense.” Id. at 205.
1. First Prong: Did Shields Violate Kennedy’s
Constitutional Rights?
Kennedy alleges that Shields violated her Fourteenth
Amendment right to substantive due process by placing her in
a known danger with deliberate indifference to her personal,
physical safety.
[5] It is well established that the Constitution protects a citi-
zen’s liberty interest in her own bodily security. See, e.g.,
Ingraham v. Wright, 430 U.S. 651, 673-74 (1977); Wood v.
Ostrander, 879 F.2d 583, 589 (9th Cir. 1989). It is also well
established that, although the state’s failure to protect an indi-
vidual against private violence does not generally violate the
guarantee of due process, it can where the state action “affir-
matively place[s] the plaintiff in a position of danger,” that is,
KENNEDY v. RIDGEFIELD 2239
where state action creates or exposes an individual to a danger
which he or she would not have otherwise faced. DeShaney
v. Winnebago County Dep’t of Soc. Serv., 489 U.S. 189, 197,
201 (1989); Wood, 879 F.2d at 589-90.1
This circuit first recognized such “danger creation” liability
in Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989). In Wood,
a state trooper determined that the driver of an automobile
1
The dissent suggests that this court created such liability in Wood by
glossing DeShaney. See infra, at 2254-56. In fact, the “state-created dan-
ger” doctrine predates DeShaney. See, e.g., White v. Rochford, 592 F.2d
381, 384 (7th Cir. 1979) (“[T]he complaint sufficiently alleged a depriva-
tion of rights secured by the Constitution sufficient to state a claim under
§ 1983 . . . . [I]t is sufficient that the defendants left helpless minor chil-
dren subject to inclement weather and great physical danger without any
apparent justification.”); Bowers v. De Vito, 686 F.2d 616, 618 (7th Cir.
1982) (“If the state puts a man in a position of danger from private persons
and then fails to protect him, it will not be heard to say that its role was
merely passive; it is as much an active tortfeasor as if it had thrown him
into a snake pit.”); Wells v. Walker, 852 F.2d 368, 370-71 (8th Cir. 1988)
(“Circuit court decisions examining whether a particular individual, as dis-
tinguished from the general public, is entitled to protection by the state
from third-party harm generally recognize that the due process clause may
be implicated in the following situation[ ] . . . when the state affirmatively
places a particular individual in a position of danger the individual would
not otherwise have been in.”) (citations omitted). See also David Pruess-
ner, The Forgotten Foundation of State-Created Danger Claims, 20 Rev.
Litig. 357 (2001) (tracing the modern doctrine to its roots in the statutory
language and legislative history of the civil rights legislation originally
enacted as the Ku Klux Klan Act of 1871, now codified as 42 U.S.C.
§ 1983). The oft-cited language of Deshaney, 489 U.S. at 201, is thus
more reasonably understood as an acknowledgment and preservation of
the doctrine, rather than its source.
Moreover, the doctrine is not particular to our court. It is well estab-
lished law in seven of our sister circuits. Butera v. District of Columbia,
235 F.3d 637, 651 (D.C. Cir. 2001); Dwares v. City of New York, 985 F.2d
94, 98-99 (2nd Cir. 1993); Kneipp v. Tedder, 95 F.3d 1199, 1201 (3d Cir.
1996); Kallstrom v. City of Columbus, 136 F.3d 1055, 1066-67 (6th Cir.
1998); Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir. 1993); Freeman
v. Ferguson, 911 F.2d 52, 54-55 (8th Cir. 1990); Uhlrig v. Harder, 64
F.3d 567, 572 (10th Cir. 1995).
2240 KENNEDY v. RIDGEFIELD
was intoxicated, arrested the driver and impounded the car.
The officer’s actions allegedly left Wood, a female passenger,
stranded late at night in a known high-crime area. Subse-
quently, Wood accepted a ride from a passing car and was
raped. This court held that Wood could claim section 1983
liability, since a jury presented with the above facts could find
“that [the trooper] acted with deliberate indifference to
Wood’s interest in personal security under the fourteenth
amendment.” Id. at 588.
[6] Since Wood, this circuit has held state officials liable,
in a variety of circumstances, for their roles in creating or
exposing individuals to danger they otherwise would not have
faced. See L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992)
(“Grubbs”) (holding state employees could be liable for the
rape of a registered nurse assigned to work alone in the medi-
cal clinic of a medium-security custodial institution with a
known, violent sex-offender); Penilla v. City of Huntington
Park, 115 F.3d 707 (9th Cir. 1997) (holding as viable a state-
created danger claim against police officers who, after finding
a man in grave need of medical care, cancelled a request for
paramedics and locked him inside his house); Munger v. City
of Glasgow, 227 F.3d 1082 (9th Cir. 2000) (holding police
officers could be held liable for the hypothermia death of a
visibly drunk patron after ejecting him from a bar on a bitterly
cold night). These cases clearly establish that state actors may
be held liable “where they affirmatively place an individual in
danger,” Munger, 227 F.3d at 1086, by acting with “deliberate
indifference to [a] known or obvious danger in subjecting the
plaintiff to it,” L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir.
1996) (“Grubbs II”).2
2
We disagree with the dissent’s characterization of the factors for analy-
sis our case law prescribes, infra at 2261-62. While it is proper to consider
whether the conduct at issue was an affirmative act or an omission,
whether it was directed toward the plaintiff specifically, and whether it
was done with deliberate indifference to a known or obvious danger, we
have never required, as the dissent suggests, infra at 2261, that the “gov-
KENNEDY v. RIDGEFIELD 2241
a. Danger Affirmatively Created Due to State Action
[7] “In examining whether an officer affirmatively places
an individual in danger, we do not look solely to the agency
of the individual, nor do we rest our opinion on what options
may or may not have been available to the individual. Instead,
we examine whether the officer[ ] left the person in a situation
that was more dangerous than the one in which they found
him.” Munger, 227 F.3d at 1086. Thus, we ask first whether,
as alleged, any affirmative actions by Shields placed Kennedy
in danger that she otherwise would not have faced. Interpret-
ing the facts in a manner most favorable to Kennedy, we con-
clude they did.
[8] Shields drove to the Burns residence and notified the
Burns family of the allegations against Michael. In doing so,
he affirmatively created a danger to Kennedy she otherwise
would not have faced, i.e., that Michael Burns would be noti-
fied of the allegations before the Kennedys had the opportu-
nity to protect themselves from his violent response to the
ernment’s act caused the harm” suffered by plaintiff. Instead, our “state-
created danger” cases clearly contemplate § 1983 liability for the state
actor who, though not inflicting plaintiff’s injury himself, has placed
plaintiff in the harmful path of a third party not liable under § 1983. See
United States v. Koon, 34 F.3d 1416, 1447-48 (9th Cir. 1994) (“The right
which is established in these substantive due process cases is not the nar-
row right to be protected from constitutional wrongs committed by third
persons. Rather, because the individual has been placed in a dependent
and helpless position, she is entitled to the broader right to be protected
from harm. In . . . Grubbs, and in Wood, the third persons who inflicted
the victims’ injuries, in fact, were not state actors. They were private citi-
zens whose own actions could not have given rise to liability under . . .
§ 1983. The state actors — the defendants who failed to intervene, or who
created the danger — were alone responsible for constitutional crimes or
torts.”). Accordingly, we disagree with the dissent’s assertion, infra at
2263, that the state actor must be the “cause-in-fact of the plaintiff’s inju-
ry.” Rather, the state actor need only have created the particularized risk
that plaintiff might suffer such injury.
2242 KENNEDY v. RIDGEFIELD
news. Like plaintiff’s supervisor in Grubbs, Shields created
“an opportunity for [Burns] to assault [the Kennedys] that
otherwise would not have existed,” Grubbs, 974 F.2d at 121.
The dissent’s assertion, infra at 2265, that “[n]otifying
Michael Burns was an inevitable consequence of Kennedy’s
allegations of child molestation” is an impermissible infer-
ence from the facts.3 More importantly, it is beside the point.
The only relevant question here is whether Shields, by
informing Burns of Kennedy’s allegations without first warn-
ing her as he had promised to do, realized the “inevitable con-
sequence” about which the dissent speculates. We find that,
in doing so, Shields affirmatively created an actual, particular-
ized danger Kennedy would not otherwise have faced. The
existence of this danger does not depend, as the dissent
repeatedly suggests, infra at 2263-64 n.5, 2264, on a differ-
ence of fifteen-minutes to which we give unwarranted consti-
tutional magnitude. That Shields notified Kennedy of the
danger he had created fifteen minutes before did not obviate
or cure that danger; nor did it give Kennedy a reasonable
opportunity to protect her family from it.
[9] In addition, we must accept Kennedy’s evidence that
Shields assured her early in the evening of September 24 that,
given the threat Michael posed, the police would patrol the
3
In fact record evidence clearly leads to the opposite inference. See, e.g.,
Appellee’s Supplemental Excerpts of the Record at 88 (recording deposi-
tion testimony of a CAIC investigator: “Q: Do you receive any training as
far as the timing when it’s best to contact an offender? A: At the end of
the investigation. You need to have all your facts in order. Q: So by that
you mean . . . that would be like the last step? A: Yes. Q: Why is that?
A: Well, because you can’t tell when they’re lying to you. . . . Q: Is there
a situation where you’ve been trained it’s good to contact the offender
before the end of the investigation? A: The only time would be is if there
was some sense of urgency, something that was emergent.”). In light of
such evidence, the dissent’s speculation, infra at 2265 n.6, that the only
reason for late notification is to allow a questioning officer to assess the
offender’s credibility amounts to another impermissible inference drawn
in Shields’s rather than Kennedy’s favor.
KENNEDY v. RIDGEFIELD 2243
neighborhood that night. As in Grubbs, we do not rest our
judgment that Shields affirmatively created a danger on that
assurance alone, though in light of it, it is quite reasonable
that the Kennedys decided late that night, when Mr. Kennedy
returned from his class, to remain at home. Instead, as it did
in Grubbs, Shields’s misrepresentation as to the risk the Ken-
nedys faced was an additional and aggravating factor, making
them more vulnerable to the danger he had already created.
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.”).4
b. Deliberate Indifference
We must decide the related issues of whether the danger to
which Shields exposed the Kennedys was known or obvious,
and whether he acted with deliberate indifference to it. See
Bryan County v. Brown, 520 U.S. 397, 410 (1997)
(“ ‘[D]eliberate indifference’ is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or
obvious consequence of his actions.”); Christie v. Iopa, 176
F.3d 1231, 1240 (9th Cir. 1999). Again, we look at the alleged
facts in the light most favorable to Kennedy.
Kennedy has shown that, at their original meeting, she told
Shields in detail of Michael Burns’s violent tendencies,
including several incidents of what can only be described as
alarming, aggravated violence, notably, lighting a cat on fire
and assaulting his girlfriend with a baseball bat after breaking
into her house. Additionally, she has testified that, after learn-
ing of Burns’s violent behavior, Shields assured her that she
4
We note this court has already specifically rejected the “danger cre-
ation” versus “danger enhancement” distinction the dissent raises, infra at
2266-67. See Penilla, 115 F.3d at 710 (“The critical distinction is not, as
appellants allege, an indeterminate line between danger creation and
enhancement, but rather the stark one between state action and inaction in
placing an individual at risk.”).
2244 KENNEDY v. RIDGEFIELD
would be given notice prior to any police contact with the
Burns family. Kennedy also testified that between September
6 and 24, she left several messages with the police department
and the CAIC in which she expressed continued fear for her
family’s safety and refreshed her concern that she be given
notice before the Burns family was notified in the course of
the investigation.
On September 24, Shields knew that Michael was violent.
Moreover, he knew that Michael had broken into his girl-
friend’s house and beaten her with a baseball bat. On the facts
alleged, it was obvious that Michael had a predilection for
violence and was capable of the attack he in fact perpetrated
on the Kennedys.5 Indeed, Burns’s attack was the very act
Kennedy had repeatedly warned Shields of, and had sought to
protect her family against. Thus, we are convinced that
Shields knew that telling Burns about the allegations against
him without forewarning the Kennedy’s would place them in
a danger they otherwise would not have faced.
Kennedy also adduced sufficient evidence for us to con-
clude that, if such evidence is accepted by the fact finder as
true, Shields acted with deliberate indifference to the known
and obvious danger we have just described. In Grubbs II, we
clarified the mental state required in state-created danger
cases. See 92 F.3d at 896. Despite its use of the term “deliber-
5
The dissent, infra at 2268, again appears to confuse the standard estab-
lished in our case law by requiring foreseeability of the specific injury
Burns in fact inflicted on the Kennedys, rather than foreseeability of the
danger of such injury that Shields created. We have never required that,
for a danger to exist, the exact injury inflicted by a third party must have
been foreseeable. Instead, the state actor is liable for creating the foresee-
able danger of injury given the particular circumstances. For example, in
Wood, we did not speculate, nor require, that Trooper Ostrander foresee-
ably knew Wood would in fact be raped by a passing motorist. We held
he could be liable, however, for leaving Wood in a situation more danger-
ous than the one she already faced, i.e., for stranding her alone in a known
high-crime area at 2:30 a.m.. See Wood, 879 F.2d at 590.
KENNEDY v. RIDGEFIELD 2245
ate indifference,” Wood had been interpreted to have estab-
lished a “ ‘bare’ gross negligence” standard. Id. at 897-98. In
Grubbs II, after surveying the standards of our sister circuits,
we made clear that the standard in this circuit was not gross
negligence but “deliberate indifference to a known, or so
obvious as to imply knowledge of, danger.” Id. at 900. We
explicitly said that such a mental state “is enough” — no
more, no less. Moreover, we refused to parse it further,
explaining, “[w]e have not added a requirement that the con-
science of the federal judiciary be shocked by deliberate indif-
ference, because the use of such subjective epithets as ‘gross’
‘reckless’ and ‘shocking’ sheds more heat than light on the
thought process courts must undertake in cases of this kind.”6
Id.
[10] Viewing the facts in the light most favorable to Ken-
nedy, we find that, if accepted as true, they are sufficient to
establish that Shields acted deliberately and indifferently to
the danger he was creating. Kennedy warned Shields repeat-
edly about Burns and requested that Shields notify her first so
she could protect her family. With knowledge of Burns’s pro-
pensity for violence and of Kennedy’s fear, and despite his
promise to Kennedy to the contrary, Shields nevertheless noti-
fied Burns first. Of all the possible actions he could take, and
pursuant to no investigatory duties, he took the one most
feared by Kennedy. His only explanation for his action is that
it was a more convenient way in which to answer an adminis-
trative phone message. Then, after notifying Burns, Shields
allegedly reassured the visibly frightened Kennedy of
increased security which was either never provided or plainly
ineffective. Given the danger created by Shields that the Ken-
6
Citing language from our Grubbs II survey of other circuits, the dissent
appears to suggest Shields was required to have a mental state closer to
the specific intent of exposing Kennedy to the actual injury Burns
inflicted. See infra at 2268-69. We disagree. Grubbs II requires no more
and no less than “deliberate indifference” to the danger in question. 92
F.3d at 900.
2246 KENNEDY v. RIDGEFIELD
nedys faced, we find such alleged, capricious behavior suffi-
cient evidence of deliberate indifference.
2. Second Prong: Was the Right Violated Clearly
Established?
We turn now to the second prong of Saucier, which Plain-
tiff has the burden of establishing. See Sorrels v. McKee, 290
F.3d 965, 969 (9th Cir. 2002). We consider whether Kennedy
has shown that the constitutional right violated by Shields was
“clearly established” in September 1998. For the reasons
below, we conclude she has.
To determine whether a right is clearly established, the
reviewing court must consider whether a reasonable officer
would recognize that his or her conduct violates that right
under the circumstances faced, and in light of the law that
existed at that time. Saucier, 533 U.S. at 202. As the Supreme
Court has 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
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). However, “[i]n order to find that the law was clearly
established . . . we need not find a prior case with identical,
or even ‘materially similar’ facts. Our task is to determine
whether the preexisting law provided the defendants with ‘fair
warning’ that their conduct was unlawful.” Flores v. Morgan
Hill Unified Sch. Dist., 324 F.3d 1130, 1136-37 (9th Cir.
2003) (citing Hope, 536 U.S. at 740).
KENNEDY v. RIDGEFIELD 2247
Thus, the specific, alleged conduct in this case need not
have been previously and explicitly deemed unconstitutional,
but existing case law must have made it clear that the conduct
violated constitutional norms. This has been our consistent
standard since Wood. See Wood, 879 F.2d at 592
(“[Defendant] seemingly suggests that this case can be dis-
posed of if it does not bear a strict factual similarity to previ-
ous cases finding liability. However this crabbed view of the
good faith immunity principle cannot withstand analysis.”)
(citing Anderson, 483 U.S. at 640).
[11] It is beyond dispute that in September 1998, it was
clearly established that state officials could be held liable
where they affirmatively and with deliberate indifference
placed an individual in danger she would not otherwise have
faced. This court first recognized the theory of state-created
danger liability almost ten years before the events in this case
in Wood. In the interim, we published three decisions explic-
itly recognizing such liability under three distinct factual scenar-
ios.7 See Grubbs, 974 F.2d 119; Koon, 34 F.3d 1416; Penilla,
7
The dissent, claiming to follow the requirements of Saucier, infra at
2271, attempts to show through an elaborate fact-matching exercise that
none of our state-created danger cases clearly enough established the req-
uisite notice. We consider the exercise misguided and, as discussed below,
analytically flawed. An exact factual predicate case has never been
required to find a right clearly established. Indeed, Flores made it clear
that not even materially similar facts were necessarily required. See 324
F.3d at 1136-37. All a plaintiff need show is that a reasonable person
would have understood from the case law that his actions would violate
another’s constitutional rights. Hope, 536 U.S. at 739 (citing Anderson,
483 U.S. at 640). For excessive force cases, like Saucier and Brosseau v.
Haugen, 543 U.S. 194 (2004), a somewhat more detailed analysis of the
factual context is necessary because of what the Supreme Court deemed
the “hazy border between excessive and acceptable force.” See Saucier,
533 U.S. at 205-6. For the case at hand, however, the factual scenarios in
Woods, Grubbs, Koon, and Penilla were sufficient to clearly establish the
following: a reasonable officer with Shields’s knowledge would have
understood that informing Burns about Kennedy’s allegations — before
adequately warning the Kennedys — would put them in greater danger
than they otherwise would have faced that night.
2248 KENNEDY v. RIDGEFIELD
115 F.3d 707. Indeed, almost three years before the actions at
issue in this case, we concluded “the law was clearly estab-
lished that officers may be liable where they affirmatively
place an individual in danger.” See Munger, 227 F.3d at 1086.8
We have explained before that the responsibility for keeping
abreast of constitutional developments rests “squarely on the
shoulders of law enforcement officials. Given the power of
such officials over our liberty, and sometimes over our lives,
this placement of responsibility is entirely proper.” Wood, 879
F.2d at 595 (quoting Ward v. County of San Diego, 791 F.2d
1329, 1332 (9th Cir. 1986)). We conclude that no reasonable
officer in Shields’s position, knowing what he knew, could
have concluded that Kennedy had no right not to be placed in
physical danger by his deliberately indifferent action.
Indeed, even were we to engage in an examination of our
case law with the finer resolution encouraged by the dissent,
we conclude that, as to the state-creation of danger, this case
is not “meaningfully distinguishable” from Grubbs. See
Wood, 879 F.2d at 593. In Grubbs, a registered nurse working
at a medium security custodial institution brought a § 1983
claim against her supervisors after she was allegedly raped
and terrorized by a young male inmate. According to the
plaintiff, her employer had told her she would not be working
alone with violent sex offenders. Notwithstanding that repre-
sentation, her employer subsequently allowed an inmate prone
to violence against women to work with her unsupervised.
The plaintiff, relying upon that representation, did not take all
the precautions she might otherwise have taken, and was sub-
sequently assaulted.
8
We note that the Fifth Circuit looking only to our decisions in Wood
and Grubbs considered the state-created danger theory “clearly estab-
lished” in this circuit under Saucier as early as 1993. See McClendon v.
City of Columbia, 305 F.3d 314, 330, 324-25 (5th Cir. 2002) (identifying
courts that had accepted “some version of this ‘state-created danger’ theo-
ry”); id. at 328 n.10 (recognizing that “if this court had expressly adopted
or rejected the state-created danger theory prior to [the incident date] that
would, of course, be the end of our inquiry.”).
KENNEDY v. RIDGEFIELD 2249
In Grubbs, as in this case, a state official affirmatively
acted: supervisor Grubbs assigned a violent sex offender to
work closely with L.W., and Officer Shields notified Burns,
leaving Kennedy unable to protect her family. In Grubbs, as
in this case, those state actions left plaintiffs exposed to the
danger of the subsequent physical assault and injury they in
fact suffered. And in both cases the plaintiff relied upon the
state actor’s representation and did not take protective mea-
sures she otherwise would have taken, and the state’s action
made plaintiffs vulnerable to a particularized danger they
would not have faced but for that action.
[12] Indeed, in this case, as in Grubbs, Shields used his
“authority as a state . . . officer to create an opportunity for
[Burns] to assault [Kennedy] that would not have otherwise
existed.” Grubbs, 974 F.2d at 121. Moreover, Kennedy, like
L.W., “is not seeking to hold Defendant[ ] liable for [Burns’s]
violent proclivities. Rather, [she] seeks to make Defendant[ ]
answer for [his] acts that independently created the opportu-
nity for and facilitated [Burns’s] assault on her.” Id. at 122.
At bottom Kennedy’s claim is exactly like L.W.’s, i.e., that a
state actor “enhanced [her] vulnerability to attack by misrep-
resenting to her the risks” she faced. Id. at 121. No reasonable
officer in Shields’s position, knowing what he allegedly knew
and what he must be charged with knowing, could have con-
cluded otherwise than that Kennedy had a right not to be
placed in obvious physical danger as a result of his deliber-
ately indifferent action.
III. CONCLUSION
[13] Under Behrens, 516 U.S. at 312-13, we have jurisdic-
tion to hear Shields’s interlocutory appeal regarding qualified
immunity. On the merits, we conclude that, on this summary
judgment record, Shields unreasonably violated Kennedy’s
clearly established constitutional right. Under the state-
created danger doctrine, a police officer may be liable for
actions that create or increase a known or obvious danger to
2250 KENNEDY v. RIDGEFIELD
an individual that he or she would otherwise not face.
Because we hold that this doctrine was clearly established at
the time the events of this case took place, and that Shields’s
actions both created and aggravated the risk Plaintiff faced
from Burns on the night of September 24, 1998, the district
court’s denial of Shields’s motion for summary judgment
based on qualified immunity is
AFFIRMED.
BYBEE, Circuit Judge, dissenting:
I vigorously part company with the majority’s conclusions
that Shields created the danger that Kennedy faced and that he
acted with deliberate indifference in doing so, thereby violat-
ing her rights under the Due Process Clause of the Fourteenth
Amendment. The majority’s conclusion is unsupported by the
record and our own case law. The majority concludes that in
the fifteen minutes between the time Officer Shields contacted
Angela Burns and the time he advised Kim Kennedy of the
contact, he deprived Kennedy of her due process rights. In so
holding, the majority not only mangles the state-created dan-
ger doctrine, it holds that its new rule was so clearly estab-
lished that Officer Shields should have known he was
violating the Constitution and, thus, has forfeited his qualified
immunity.
We have never before recognized a state-created danger
cause of action on facts remotely analogous to these. In the
sixteen years since we introduced the state-created danger
exception to DeShaney into our case law, we have approved
its application on fewer than five occasions. In these cases, we
have narrowly construed the exception to encompass only
those claims in which the government’s action was directed
at a specific plaintiff, rather than the public at large; the gov-
ernment acted affirmatively, rather than simply failed to act;
KENNEDY v. RIDGEFIELD 2251
the government’s act caused the harm, rather than merely
increased the risk; and the government’s action constituted
deliberate indifference to the known or obvious danger, rather
than mere—or even gross—negligence. Ignoring these ele-
ments, 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 req-
uisite level of culpability.
Even if I thought Officer Shields had violated our state-
created danger gloss on the Due Process Clause, the violation
was surely not so obvious that he should have known at the
time that he was violating Kennedy’s constitutional rights.
Consequently, even assuming a constitutional violation, I
would hold that Officer Shields is nonetheless entitled to
qualified immunity. I respectfully dissent.1
I. BACKGROUND
The facts of this case are undeniably tragic. On September
6, 1998, Kennedy filed a complaint with the City of Ridge-
field Police Department (“RPD”) accusing her thirteen-year-
old neighbor, Michael Burns, of sexually molesting her nine-
year-old daughter. Officer Shields was dispatched to Kenne-
dy’s home to record the complaint.
Kennedy recalls talking with Officer Shields about the
instability of the Burns family. She alleges that she informed
Shields that the Burns family “had bad tempers” and that
Michael was in trouble all the time, including one unfruitful
investigation for allegedly sending a death threat to a 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
1
Although I dissent on the merits, I agree with the majority’s conclusion
that we have jurisdiction to hear this interlocutory appeal.
2252 KENNEDY v. RIDGEFIELD
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 the RPD—at least six times during the eighteen days
following her complaint—regarding the status of the investi-
gation. On September 24, Kennedy called Officer Shields
directly to determine whether the Burns family was aware of
her allegations. Unable to reach Shields by phone, she left a
message. In response to her inquiry, Shields proceeded to the
Burnses’ home to ascertain whether the family had been noti-
fied. Shields was greeted by Angela Burns (Michael Burns’s
mother) and Shields asked her whether she had received a
phone call or visit from the Child Abuse and Intervention
Center (“CAIC”). Angela Burns inquired as to the reason for
his question, and Shields advised her of the allegations.
Immediately following this meeting, Shields drove directly
to Kennedy’s residence—located approximately one block
away—and informed her that Angela Burns had been notified
of her allegations. Kennedy alleges that she expressed fear
regarding Michael Burns’s possible reaction. She further
alleges that, in response to her expressions, Officer Shields
promised to patrol the area that night to watch for Michael.
After discussing the matter with her husband, Kennedy chose
to remain in her home that evening and leave town the follow-
ing morning. Michael Burns entered the Kennedy home that
night, shot and killed Jay Kennedy, and seriously wounded
Kim Kennedy. She now brings this action against Officer
Shields, claiming that his conduct violated her rights under
the Due Process Clause of the Fourteenth Amendment.
II. SAUCIER TWO-STEP
As the majority notes, the Supreme Court’s opinion in Sau-
cier v. Katz, 533 U.S. 194 (2001), provides the framework for
our analysis of this § 1983 suit. Under this framework, if a
KENNEDY v. RIDGEFIELD 2253
defendant claims qualified immunity, we must make two dis-
tinct 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 this Court’s state-created danger doctrine.2
A. State-Created Danger Doctrine
As the majority observes, the state-created danger doctrine
is said to trace its jurisprudential pedigree in this Circuit to the
2
The majority devotes a lengthy footnote to establishing the pre-
DeShaney existence and the current prevalence of the state-created danger
doctrine. I do not dispute that this doctrine is well established, merely its
application to this case. On this note, the cases cited by the majority in its
footnote support my view of this doctrine; see footnote 9, infra.
2254 KENNEDY v. RIDGEFIELD
Supreme Court’s opinion in DeShaney, perhaps best known
for Justice Blackmun’s exclamation, “Poor Joshua!”
DeShaney v. Winnebago County Dep’t of Soc. Servs., 489
U.S. 189, 213 (1989) (Blackmun, J., dissenting). Declining to
find a due process violation where local officials failed to ade-
quately respond to complaints that four-year-old Joshua was
being abused by his father, the Court held that the Constitu-
tion 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 affirmative right to governmental aid, even
where such aid may be necessary to secure life, lib-
erty, or property interests of which the government
itself may not deprive the individual. . . . [I]t follows
that the State cannot be held liable under the Clause
for injuries that could have been averted had it cho-
sen 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-
KENNEDY v. RIDGEFIELD 2255
ship” exception, stemming from a custodial relationship
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 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 DeShaney Court’s observation that Winnebago County
neither helped to create the dangers that Joshua faced nor ren-
dered 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 cre-
ation, nor did it do anything to render him any more vulnera-
ble to them.”).
1. Ninth Circuit Cases
We established the state-created danger theory four months
after DeShaney was published by recognizing a cognizable
due process violation where the plaintiff alleged that she was
raped after a state trooper impounded the vehicle in which she
was riding, ejected her from the vehicle, and left her stranded
in a high-crime area in the middle of the night. Wood v. 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
2256 KENNEDY v. RIDGEFIELD
stranded Wood in a high-crime area at 2:30 a.m. distinguished
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, kidnapped, 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 2243, 2248-49. Indeed, under
DeShaney, it is, at the very least, questionable whether a
state’s failure to fully apprise an individual of the risks attend-
KENNEDY v. RIDGEFIELD 2257
ing her employment can ever constitute an affirmative exer-
cise of state power sufficient to give rise to a due process
violation. See DeShaney, 489 U.S. at 201-02 (suggesting that
the affirmative 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 system of child-protection services). Rather, Grubbs
I more accurately 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 Dep’t, 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 plaintiff] in danger”).
In a second appeal in Grubbs, we addressed the level of
culpability required to prevail under a state-created danger
theory. See L.W. v. Grubbs, 92 F.3d 894 (9th Cir. 1996)
(“Grubbs II”). Explicitly rejecting a “gross negligence” stan-
dard, we held that “the plaintiff must show that the state offi-
cial participated in creating a dangerous 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.
Our subsequent cases have further demarcated the outer
bounds of the state-created danger doctrine. These cases have
only highlighted the requirement that, at a minimum, a due
process claim must be based on an affirmative exercise of
state power that creates a risk which, but for the state’s affir-
mative action, would not have existed. For instance, in Penilla
v. City of Huntington Park, 115 F.3d 707 (9th Cir. 1997), we
found a due process violation where police officers responded
to a 911 call, “examined [the plaintiff], found him to be in
2258 KENNEDY v. RIDGEFIELD
grave need of medical care, canceled the request for parame-
dics, 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.3 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 temperatures were
subfreezing. 227 F.3d at 1087. Although the officers knew
3
The majority cites to Penilla for the proposition that this Court has
“specifically rejected the ‘danger creation’ versus ‘danger enhancement’
distinction.” Maj. Op. at 2243 n.4; Penilla, 115 F.3d at 710 (“The critical
distinction is not , as appellants allege, an indeterminate line between dan-
ger creation and enhancement, but rather the stark one between state
action and inaction in placing an individual at risk.”). This reading of
Penilla is misguided. Reading the larger passage in which this sentence
appears produces a different picture:
The officers argue that under DeShaney, a constitutional duty
to provide care is only triggered when a person is in custody. We
reject this argument. . . .
We have interpreted DeShaney to mean that if affirmative con-
duct on the part of a state actor places a plaintiff in danger, and
the officer acts in deliberate indifference to that plaintiff’s safety,
a claim arises under § 1983. In Grubbs we explained:
DeShaney did not rule that custody was required where the
state affirmatively causes the harm . . . . DeShaney thus sug-
gests that had the state created the danger, [plaintiff] might
have recovered even though he was not in custody.
The critical distinction is not, as appellants allege, an indetermi-
nate line between danger creation and enhancement, but rather
the stark one between state action and inaction in placing an indi-
vidual at risk.
Id. at 710 (citations omitted). Our opinion in Penilla focused on the new
danger that the officers created for Penilla: that by affirmatively calling off
the paramedics and moving him from his porch—where neighbors and a
passerby had seen his predicament and rendered aid—into his locked
house, police isolated Penilla, making it impossible for him to receive
medical care.
KENNEDY v. RIDGEFIELD 2259
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 1084-85. 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 that the risk to the plaintiff was an
unforeseeable 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
creating a foreseeable danger to the plaintiff, leading to the
deprivation of the plaintiff’s constitutional rights.” Id. (cita-
tions omitted); see also Lawrence v. United States, 340 F.3d
952, 957 (9th Cir. 2003) (citing 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 foreseeable”). Similarly, in Lawrence, 340 F.3d at 954,
we declined to find a Fifth Amendment violation in a Bivens
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.4 Although we found it foreseeable that a con-
4
There may be some latent dispute regarding whether the “proximate
cause” requirement noted in Huffman, 147 F.3d at 1061, and Lawrence,
2260 KENNEDY v. RIDGEFIELD
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), the most factually similar case in our case law, county
jail employees brought suit against the jail commander after
he publicly disclosed the identities of employees who had
been involved in the restraint and removal of a deceased pris-
oner. Upon learning their identities, the deceased prisoner’s
family and friends harassed and assaulted the employees. Id.
at 1085-86. Citing Wood, the employees contended that the
state had acted with deliberate indifference because their
supervisors did not promptly notify them of the release of
their identities and did not take steps to protect them from the
dangers that ultimately became apparent. Id. at 1087. We
ruled in favor of the state, finding that the plaintiffs had not
established that the commander acted with deliberate indiffer-
ence to known or obvious dangers, even though he knew
when he released the records that the deceased prisoner’s
family and friends believed that personnel connected with the
jail were responsible for his death. Id. In doing so, we rea-
soned that the jail authorities could not have reasonably con-
cluded that the prisoner’s family and friends would be likely
to engage in open violence. Id. (“Knowing that the crowd was
angry was not knowing that they would take criminal mea-
sures to make the jailors or their health helpers pay.”).
340 F.3d at 957, 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.
KENNEDY v. RIDGEFIELD 2261
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 (sug-
gesting, but not deciding, that a plaintiff must show that “the
danger created by a state official is directed toward a particu-
lar plaintiff, as opposed to being directed toward the general
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 710 (same); Munger, 227 F.3d
at 1087 (same); Ketchum v. Alameda County, 811 F.2d 1243,
1247 (9th Cir. 1987) (“[T]here is no constitutional right to be
protected by the state against being murdered by criminals or
madmen. It is monstrous if the state fails to protect its resi-
dents against such predators but it does not violate the due
process clause of the Fourteenth Amendment.”) (quoting
Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982)); and (4)
whether the government acted with the requisite culpability,
see, e.g., Grubbs II, 92 F.3d at 900 (requiring the plaintiff to
show that the state official “acted with deliberate indifference
to the known or obvious danger” (emphasis added)); Wallen-
stein, 266 F.3d at 1087 (same); Penilla 115 F.3d at 710
(same). Cf. Armijo ex rel. Chavez v. Wagon Mound Pub.
Schs., 159 F.3d 1253, 1264 (10th Cir. 1998) (adding a fifth
2262 KENNEDY v. RIDGEFIELD
factor 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.
Harder, 64 F.3d 567, 574 (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.
The Supreme Court has yet to recognize the state-created
danger doctrine, and the circuit courts have yet to construct a
unified approach either to the state-created danger inquiry or
to the role that causation principles should play in the analy-
sis. However, each court recognizing the theory has required,
at a minimum, a showing that the government’s act was the
“but-for cause” that put the plaintiff in a position of danger
she would not otherwise have faced. See, e.g., Carlton v. 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, 1125 (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 a 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
KENNEDY v. RIDGEFIELD 2263
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 from a burning car more
promptly). 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
Supreme Court observed in DeShaney:
It may well be that, by voluntarily undertaking to
protect [the plaintiff] against a danger it concededly
played no part in creating, the State acquired a duty
under state tort law to provide him with adequate
protection against that danger. . . . But the claim here
is based on the Due Process Clause of the Fourteenth
Amendment, which, as we have said many times,
does not transform every tort committed by a state
actor into a constitutional violation.
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 plaintiff’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; her case against Officer Shields sounds in negligence,
albeit negligence with tragic consequences. The majority has
run afoul of our own cases and the Court’s caution in
DeShaney. I address these issues more fully below.
B. Constitutional Inquiry
The majority finds fault with two of Officer Shields’s
actions: (1) notifying Angela Burns of Kennedy’s allegations
prior to informing Kennedy that he was about to do so;5 and
5
The majority makes some effort to suggest that their theory of this case
does not turn on the question of whether officer Shields contacted Ken-
2264 KENNEDY v. RIDGEFIELD
(2) promising to increase police surveillance on the night of
the shooting. Maj. Op. at 2245-46. Neither of these, consid-
ered independently or together, will support a due process
violation.
1. Notifying Burns Prior to Informing Kennedy
The majority concludes that Officer Shields “created an
opportunity for Burns to assault the Kennedys that otherwise
would not have existed.” Id. at 2242 (quotations omitted).
Kennedy has not addressed how much advance warning she
desired, nor whether she effectively communicated the extent
of warning she desired to Shields; however, she insists that
she made it clear that she wanted to be notified before the
Burnses were informed of her allegations. The majority
asserts that, had Kennedy received prior warning, she and her
family would have had the opportunity to take additional pre-
cautions. Id. at 2242. The majority reaches this conclusion
despite the fact that Shields warned her within fifteen minutes
of his discussion with Angela Burns and that the Kennedys
subsequently made a conscious choice to remain in their
home for the evening. The majority finds this flipflop of no
more than fifteen minutes to be of constitutional magnitude.
As the Kennedys were shot many hours later, I do not see
how receiving warning fifteen minutes earlier would have
made any difference whatsoever. Nonetheless, in light of the
nedy before or after he spoke to Burns. See Maj. Op. at 2242 (“The exis-
tence of this danger does not depend . . . on a difference of fifteen-minutes
. . . .”). However, if this is the case, it becomes entirely unclear precisely
what Shields’s misconduct was, and accordingly even more difficult for
Shields to have known that his conduct was not merely wrong, but that it
violated Kennedy’s constitutional rights. Moreover, Kennedy only argues
that Shields’s error was telling her before he told Burns. Thus, the opin-
ion’s vague contrary language notwithstanding, the majority opinion must
rest on the fact that Shields informed Burns before telling Kennedy he was
going to do so. See Maj. Op at 2242 (“[Shields] did [not] give Kennedy
a reasonable opportunity to protect her family . . . .”). I therefore treat it
as such.
KENNEDY v. RIDGEFIELD 2265
information Kennedy communicated to Officer Shields
regarding Michael’s past misbehavior, the majority holds that
“Shields’s actions both created and aggravated the risk Plain-
tiff faced from Burns” Id. at 2250.
There is nothing in the record to support the claim that
Shields increased the risk facing the Kennedy family by noti-
fying Angela Burns of the allegations. Notifying Michael
Burns was an inevitable consequence of Kennedy’s allega-
tions of child molestation; at some point either the police or
CAIC was going to have to talk with Burns about the allega-
tions.6 Kim Kennedy was anxious because she knew that
Michael Burns would have to be informed, and she feared
what he might do when he was. It was this fear that motivated
her to contact police at least six times to inquire whether the
Burnses had been contacted yet. In none of these numerous
phone calls did she try to dissuade the authorities from ever
contacting Burns; she knew that it was only a matter of time.
The dilemma for her was whether she would know when
Burns was contacted, and would therefore be able to take pre-
cautions. To that end, she made every effort to ensure that she
would be notified when Burns was made aware of these
charges.
Prior to the shooting, Kennedy’s only direct contact with
law enforcement officials was with Officers Shields and
6
In my view, whether or not Burns would inevitably discover the allega-
tions against him is not, as the majority states, “beside the point”; it is a
question of crucial importance for this case. Maj. Op. at 2242 n.3. If this
was a specific danger from Burns that Kennedy had to face, it becomes
clear that Shields could not have created it.
Moreover, the majority’s suggestion that Burns might never need to be
notified of the allegations against him strains credulity. Id. The majority’s
quotations from the record only suggest that Burns should have been noti-
fied at the end of the investigation. Moreover, these same quotations also
establish that this was done so that an officer questioning Burns would be
better able to identify whether he was lying, not because it reduced the
chance of a violent response.
2266 KENNEDY v. RIDGEFIELD
Doriot of the RPD. However, pursuant to an inter-local agree-
ment, the task of investigating Kennedy’s molestation com-
plaint was performed solely by a separate law enforcement
unit, the Child Abuse Intervention Center (“CAIC”). So far as
Shields knew, Kennedy had had no contact with CAIC and
was relying on conversations with him and Officer Doriot to
monitor the case. Shields had no authority over CAIC, and
therefore had no way of ensuring that Kennedy received noti-
fication before CAIC made contact with the Burns family
regarding her allegations. Indeed, from Shields’s perspective,
he represented Kennedy’s best chance of receiving timely
notification of any contact with the Burnses. Judging from
Kennedy’s repeated calls to Shields, Kennedy took a similar
view.
The majority’s statement that “[o]f all the possible actions
[Shields] could take, . . . he took the one most feared by Ken-
nedy” is simply false. Maj. Op. at 2245. The scenario Ken-
nedy most feared was that Burns would become aware of the
allegations and she would not know, and therefore would not
be able to take appropriate precautions. Thus, when Shields
decided to inform Burns of the allegations himself, he was
ensuring that Kennedy was spared the possibility she feared
most—that Burns would be notified and she would be
unaware. And, by Kennedy’s own testimony, Officer Shields
informed her immediately after contact was made, at approxi-
mately 4:30 in the afternoon.
The majority attempts to shoehorn Shields’s behavior in
this case into the mold of the supervisor in Grubbs I. This is
an exceedingly poor analogy. The supervisor in Grubbs I cre-
ated the danger to the detention center nurse by essentially
ordering her to work alone with a known violent sex offender.
If he had not done so, the nurse would presumably never have
been alone with the offender, and would therefore not have
been in any danger from him. Here, Burns would have to be
informed eventually; the only question was whether Kennedy
would know that he had been informed. Nor did Shields facil-
KENNEDY v. RIDGEFIELD 2267
itate Michael Burns’s access to Kennedy. Unlike the nurse in
Grubbs, Kennedy was well aware that she was already
exposed to a very real danger, and that this danger existed
apart from any action or conduct by Officer Shields. Rather
than increasing the risk facing the Kennedy family, Shields’s
prompt notification appears to have given Kennedy her best
chance for escape.
Yet, even if Officer Shields had increased the risk facing
the plaintiff, this would not constitute a due process violation.
See, e.g., Huffman, 147 F.3d at 1061 (“The danger-creation
exception to DeShaney does not create a broad rule that
makes state officials liable under the Fourteenth Amendment
whenever they increase the risk of some harm to members of
the public.”). The City of Ridgefield did not create Michael
Burns’s violent reaction any more than Winnebago County
created the violent beatings that resulted in brain damage to
Joshua DeShaney. See DeShaney, 489 U.S. at 193. The major-
ity’s holding impermissibly circumvents DeShaney by rede-
fining the cause of action as one premised on a “state-created
danger.” I therefore cannot support the majority’s holding
that, like the supervisor in Grubbs I, Shields created “an
opportunity for Burns to assault the Kennedys that otherwise
would not have existed.” Maj. Op. at 2241-42 (emphasis
added) (quotations omitted); Grubbs I, 974 F.2d at 121.
Nor can Shields’s conduct be characterized as manifesting
“deliberate indifference” to the dangers faced by the Kenne-
dys. As the majority acknowledges, “the standard in this cir-
cuit [is] not gross negligence but ‘deliberate indifference to a
known, or so obvious as to imply knowledge of, danger.’ ”
Maj. Op. at 2245; see Grubbs II, 92 F.3d at 898; see also
DeShaney, 489 U.S. at 201-02. Grubbs II’s deliberate indif-
ference standard requires a showing that the “ ‘defendant rec-
ognizes the unreasonable risk and actually intends to expose
the plaintiff to such risks without regard to the consequences
to the plaintiff.’ ” Grubbs II, 92 F.3d at 899 (quoting Uhlrig,
64 F.3d at 573 n.8). Phrased another way, the defendant must
2268 KENNEDY v. RIDGEFIELD
“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.” Id. at 900 (emphasis in original).7
Even if Officer Shields knew of Michael Burns’s
propensities—the allegations that he had threatened a class-
mate, tortured a cat, and assaulted his girlfriend—Shields
could not have anticipated as an “obvious consequence” that
Michael would enter the Kennedys’ home and murder Jay and
assault Kim. See Maj. Op. at 2243; Wallenstein, 266 F.3d at
1087. Although his previous misconduct included disturbing
juvenile violence, nothing in his record should have made it
obvious that the thirteen-year-old Burns might attempt to
murder members of the Kennedy family with a firearm.
Indeed, the record suggests that both Shields and the Kenne-
dys failed to appreciate the extent of the danger that Michael
posed. Under these circumstances, it cannot be said that Offi-
cer Shields had “actual knowledge of, or willfully ignore[d],
impending harm.” Grubbs II, 92 F.3d at 900; see also Wallen-
stein, 266 F.3d at 1087 (“[It] has not been shown . . . that . . .
[friends and family of the deceased prisoner] would have the
7
The majority opinion incorrectly characterizes my position as “requir-
ing foreseeability of the specific injury Burns in fact inflicted on the Ken-
nedys.” Maj. Op. at 2244 n.5. I agree with the majority that “the exact
injury inflicted by a third party” need not have been foreseeable. Id. How-
ever, Kennedy argues here that Shields’s misconduct was informing
Michael Burns that her daughter had made allegations against him without
giving her prior warning. By Kennedy’s own testimony, Shields made her
aware that Burns had been notified immediately after he had notified
Burns. It certainly was not foreseeable that this difference—telling Ken-
nedy immediately before or immediately after informing Burns—would
lead to the type of injuries that she suffered. See also Wallenstein, 266
F.3d at 1087 (finding that it was not foreseeable that the friends and family
of a deceased inmate who blamed jail personnel for the death “would take
criminal measures” against said jail personnel); id. (“The most serious
incident, assault with a gun, was the sort of opportunistic crime which
could not have easily been anticipated nor easily guarded against.”).
KENNEDY v. RIDGEFIELD 2269
capacity and sustained desire to wreak vengeance on the offi-
cers and nurses involved [with his death].”).
Even assuming, arguendo, that Shields recognized the risk
that Kennedy faced from Burns, his actions can hardly be said
to demonstrate “deliberate indifference” to it. Even if
Shields’s actions were misguided in hindsight—and it is not
clear that any other reasonable officer would not have done
the same thing—all the evidence suggests that he was moti-
vated by a desire to ensure that Kennedy would know exactly
when Burns became aware of her daughter’s allegations.
There is simply no evidence that Shields acted with deliberate
indifference to any known or obvious risks Kennedy faced.8
Without the requisite mental state, there can be no constitu-
tional violation premised on state-created danger. See, e.g.,
Grubbs II, 92 F.3d at 898; Wood, 879 F.2d at 588. I would
hold that Kennedy failed to state a constitutional violation
arising from the prompt notification that she received regard-
ing Shields’s contact with Angela Burns.
2. Promising Police Surveillance
The majority correctly recognizes that officer Shields’s
assurances of a police patrol on the evening of the shooting
do not provide an independent basis for a due process viola-
tion. Maj. Op. at 2243 (“[W]e do not rest our judgment that
Shields affirmatively created a danger on that assurance
. . . .”). However, I cannot agree with the majority’s conten-
tion that, by assuring Kennedy “that the police would patrol
the area,” Shields somehow aggravated the risks that Kennedy
8
Considering the alternative courses of conduct Shields could have
taken to escape liability under the majority’s theory only highlights the
artificiality of the majority’s analysis. Under the majority’s theory, Shields
could simply have reversed the order in which he visited the residences of
the plaintiff and her would-be assailant, or called Kim Kennedy on his cell
phone from the Burnses’ doorstep. I cannot agree with the majority’s posi-
tion that this flipflop of no more than fifteen minutes is of constitutional
magnitude.
2270 KENNEDY v. RIDGEFIELD
faced. Id. at 2233; id. at 2243 (“Instead, [it] was an additional
and aggravating factor, making [Kennedy] more vulnerable to
the danger he had already created [by notifying Burns of the
allegations against him before telling Kennedy that he was
about to do so].”). Kennedy does not claim that the RPD
failed to patrol the area on the evening of the shooting, nor
does she allege that Officer Shields made any false claims to
her about the efficacy of police patrols in providing protection
in similar cases. I do not see how Officer Shields’s statement
that the police would patrol the area made the Kennedys
“more vulnerable.” See DeShaney, 489 U.S. 189 (finding mul-
tiple attempted but failed interventions by social services
insufficient to create a due process violation); Balistreri v.
Pacifica Police Dep’t, 901 F.2d 696, 700 (9th Cir. 1990) (cit-
ing 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 protect her”).
The majority attempts to justify its statement by analogiz-
ing the facts of this case to those of Grubbs I. This compari-
son does not help the majority’s case. In Grubbs I, we relied
on the state’s misrepresentation merely as a means for bolster-
ing our conclusion that the state’s affirmative act of directly
placing the plaintiff in a dangerous situation—namely, assign-
ing 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”). Here, Kennedy does not allege that
the government lied about the risks she would face, but rather
that she relied on government protective measures which
failed her. While it is undeniably tragic that police patrols
were unsuccessful in preventing Burns’s attack, this is cate-
gorically different from Grubbs I, where the government
actively misrepresented the risks facing the plaintiff. I there-
KENNEDY v. RIDGEFIELD 2271
fore believe the majority’s reasoning on this issue to be
flawed.
In sum, I would hold that Kennedy failed to establish a due
process violation arising from Officer Shields’s actions either
in notifying Michael Burns of her allegations prior to warning
her, or in offering to increase surveillance on the evening of
the shooting. Accordingly, I would hold that she failed to
establish a cognizable due process violation premised on
state-created danger.
C. Qualified Immunity Inquiry
Even assuming that Kennedy has established a due process
violation premised on state-created danger, in order to bind
this case over for trial we must determine that the constitu-
tional right at issue was “clearly established” at the time of
the events in question. We must hold that a “reasonable offi-
cial” 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 “officials will not be liable for mere mis-
takes 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 defendants who violate constitutional rights enjoy a
qualified immunity that protects them from liability for dam-
ages 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 repeat-
edly emphasized, “the qualified immunity defense . . . pro-
vides ample protection to all but the plainly incompetent or
those who knowingly violate the law.” Malley v. Briggs, 475
U.S. 335, 341 (1986); see also Burns v. Reed, 500 U.S. 478,
494-95 (1991). Particularly in a context where the potential
for liability may chill lawful and socially desirable behavior
at the edge of the “forbidden zone,” qualified immunity
ensures that “officials can act without fear of harassing litiga-
tion” and “can anticipate when their conduct may give rise to
liability for damages.” Davis, 468 U.S. at 195.
2272 KENNEDY v. RIDGEFIELD
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 these
instructions in mind, I have no hesitation in concluding that
Officer Shields is entitled to qualified immunity.
The majority holds that Officer Shields’s behavior violated
Kennedy’s clearly established constitutional rights because it
finds the case “not ‘meaningfully distinguishable’ from Grub-
bs.” Maj. Op. at 2248. I disagree. Grubbs I does not even
begin the heavy lifting necessary to sustain the majority’s
conclusions.
The majority writes that “[i]n Grubbs, as in this case, a
state official affirmatively acted: supervisor Grubbs assigned
a violent sex offender to work closely with [the nurse], and
Officer Shields notified Burns, leaving Kennedy unable to
protect her family.” Id. at 2249. Indeed, Shields did take an
affirmative act. However, the danger in Grubbs—being alone
with a known violent sex offender—was entirely avoidable,
while the danger in this case—that Burns might react vio-
lently when he discovered the allegations against him—was
not within Shields’s control. The only danger that Shields was
able to ameliorate was the possibility that Kennedy would not
be aware that Burns had learned of the allegations against
him; Shields did, in fact, prevent this scenario. Moreover, in
Grubbs, the supervisor made false representations so that the
KENNEDY v. RIDGEFIELD 2273
victim could not evaluate her level of danger and take appro-
priate precautions. Here, Shields made no misrepresentations
and Kennedy already knew the risks. I therefore find the
majority’s statement that, “At bottom Kennedy’s claim is
exactly like [the nurse in Grubbs], i.e., that a state actor
‘enhanced [her] vulnerability to attack by misrepresenting to
her the risks’ she faced” mystifying. Id. at 2249.
The majority further likens this case to Grubbs because
Shields’s action “made plaintiffs vulnerable to a particular-
ized danger they would not have faced but for that action.” Id.
at 2249 (emphasis added); see also id. (“[I]n this case, as in
Grubbs, Shields used his ‘authority as a state . . . officer to
create an opportunity for [Burns] to assault [Kennedy] that
would not have otherwise existed.’ ”) (emphasis added) (alter-
ations and omission in original). The risk that Burns would
react violently when he discovered the allegations Kennedy
had made against him existed entirely apart from any action
attributable to Officer Shields. In fact, the risk to Kennedy
would have been even greater if Kennedy was unaware that
Burns had learned of the allegations.
In short, I cannot join the majority’s holding that Grubbs
I put Officer Shields on notice that by responding to Kenne-
dy’s phone message, informing Angela Burns of Kennedy’s
allegations, immediately notifying Kennedy of as much, and
offering to increase surveillance in the neighborhood, he was
violating her Fourteenth Amendment due process rights—and
that the violation was so obvious that Shields should have
known it.
No case of which I am aware, either in our circuit or any
other, has found a cognizable due process violation on facts
remotely analogous to these.9 On the contrary, the closest case
(Text continued on page 2275)
9
This includes all of the cases to which the majority cites to stress the
prevalence of the state-created danger doctrine, see Maj. Op. at 2239 n.1,
none of which give notice here. Some of these cases involve facts such as
2274 KENNEDY v. RIDGEFIELD
those in Wood, where the police needlessly left people that were in some
way helpless in a dangerous environment; these cases are inapplicable. See
Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996) (holding that allegations
that police left heavily intoxicated pedestrian alone to walk home on cold
night could establish violation); Reed v. Gardner, 986 F.2d 1122 (7th Cir.
1993) (denying summary judgment for defendants where police arrested
a driver and left an intoxicated passenger in the vehicle with the keys);
White v. Rochford, 592 F.2d 381, 384 (7th Cir. 1979) (finding that the
complaint alleged a violation where police “left helpless minor children
subject to inclement weather and great physical danger without any appar-
ent justification”). Others involve police who were aware of a clear and
obvious danger and actively chose not to provide their usual level of pro-
tection out of a desire to encourage the would-be violent actors. See
Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993) (finding a
possible violation where complaint alleged “that the officers conspired
with . . . ‘skinheads’ to permit [them] to beat up flag burners with relative
impunity, assuring [them] that . . . they would not be impeded or arrested,”
thereby purposefully “increas[ing] the likelihood that [they] would assault
demonstrators”); Freeman v. Ferguson, 911 F.2d 52 (8th Cir. 1990) (hold-
ing that complaint alleging that police chief failed to act to perform his
duties because of his close personal relationship with perpetrator was
insufficient to establish a violation, but that specific allegations that he
actively prevented other officers from doing so could support a claim).
With a single exception, all of the cases cited by the defense which have
facts that are even arguably close to those presented in this case were
decided in favor of the government actors. See Butera v. District of
Columbia, 235 F.3d 637, 652 (D.C. Cir. 2001) (dismissing suit by estate
of slain undercover informant because the informant’s “constitutional right
to protection by the District of Columbia from third-party violence was
not clearly established”); Uhlrig v. Harder, 64 F.3d 567 (10th Cir. 1995)
(dismissing suit alleging that state created the danger that led to a thera-
pist’s death by eliminating mental hospital’s special unit for criminally
insane); Wells v. Walker, 852 F.2d 368 (8th Cir. 1988) (finding no viola-
tion, and, at most, negligence, when police released a convict from cus-
tody outside of a store without warning the owner that he was dangerous,
and the convict killed the owner); Bowers v. DeVito, 686 F.2d 616, (7th
Cir. 1982) (finding that no right had been violated when inmate who had
repeatedly attacked women with knives was released from commitment
and subsequently killed a woman with a knife). The only case finding a
violation which is at all similar is Kallstrom v. City of Columbus, 136 F.3d
1055 (6th Cir. 1998), in which the court found that undercover police offi-
KENNEDY v. RIDGEFIELD 2275
to this one in our circuit concluded that the plaintiff could not
establish a due process violation. As my earlier discussion of
Nicholas v. Wallenstein makes clear, its facts are strikingly
similar: A state officer released incident reports with the
plaintiff prison workers’ identities to the angry family and
friends of a deceased prisoner; plaintiffs were immediately
harassed and assaulted. 266 F.3d at 1084-86. When 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 reports “would excite the crowd.” Id. at 1087. Yet, when
presented with these facts a few years ago, we held that the
“plaintiffs failed to produce evidence that would create a tri-
able issue of material fact showing 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 mea-
sures to make the jailors or their health helpers pay.” Id. at
1087.
We have always drawn a sharp distinction between facts
demonstrating that police action created the danger to the per-
cers who had worked to convict members of a gang with propensity for
violence and intimidation were entitled to an injunction requiring the city
to provide them with notice before publicly releasing certain information
from their personnel files that the city had assured them would be kept
confidential. This information included “the officers’ addresses and phone
numbers; the names, addresses, and phone numbers of immediate family
members; the names and addresses of personal references; the officers’
banking institutions and corresponding account information, including
account balances; their social security numbers; responses to questions
regarding their personal life asked during the course of polygraph exami-
nations; and copies of their drivers’ licenses, including pictures and home
addresses.” Id. at 1059. Nonetheless, this case is easily distinguishable
because while in Kennedy’s case disclosure was inevitable, the gang
members in Kallstrom would never have learned this information absent
a disclosure by the city. Moreover, the majority does not rely on this case
in its opinion.
2276 KENNEDY v. RIDGEFIELD
son and facts demonstrating a danger that existed without
police action.10 See Wood, 879 F.2d at 589-90. In addition,
since Grubbs II, we have required plaintiffs to meet a strin-
gent culpability requirement designed to prevent the imposi-
tion of § 1983 liability for negligent conduct, even grossly
negligent conduct. 92 F.3d at 899-900. And since Huffman,
147 F.3d at 1061, and Lawrence, 340 F.3d at 957, we have
emphasized that the requisite culpability must relate to conse-
quences which were foreseeable. The majority’s conclusion in
this case does not simply whittle away at these requirements;
it completely reinvents them and then declares them “clearly
established.”11
I cannot envision how it “would be clear to a reasonable
officer that his conduct was unlawful” in the situation at issue
in this case. Saucier, 533 U.S. at 202. Assuming, arguendo,
that Kennedy’s allegations are sufficient to state a constitu-
tional violation, there is no way Shields could have antici-
pated that his fifteen-minute delay in notifying Kennedy,
combined with his statement that he would patrol the area,
was depriving 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—Officer Shields
10
The majority relies on a single sentence in Penilla to suggest other-
wise; this reading is flawed. See footnote 3, supra.
11
The majority claims that I have improperly engaged in “an elaborate
fact-matching exercise” to demonstrate that “none of our state-created
danger cases clearly enough established the requisite notice,” and that this
exercise is “misguided” and “analytically flawed.” Maj. Op. at 2247 n.7.
While I wholeheartedly agree with the majority that an “exact factual
predicate” is not required for a right to be clearly established, neither do
I believe that we should decide whether a right is clearly established with-
out considering the facts of the other cases in which we have considered
that right. I believe the majority’s unwarranted extension of the law makes
a mockery of prior decisions emphasizing the importance of providing fair
warning to government officials. I think this approach is unwise generally,
but that it is especially troubling here, where the case with the closest facts
is clearly not Grubbs I, but Wallenstein—a case where we ruled in favor
of the government official.
KENNEDY v. RIDGEFIELD 2277
could not have known that his conduct would violate “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 reposses-
sion they deprived Meyers of her property without due pro-
cess of law.”). I would hold that, taking into 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. Saucier, 533 U.S. at 201.
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.