Johnson v. City of Seattle , 474 F.3d 634 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL ALAN JOHNSON; JESSE 
WILSON, JR., ALLISON WILSON,
husband and wife; SUMMER
THUNEY; JESSICA ARNOLD; ADAM
LAZARA; RALPH RADFORD; STACEY
E. SMITH; HOWARD JENSEN; KAI A. No. 05-35319
RALLS; CHRISTOPHER J. SHIRLEY,
Plaintiffs-Appellants,  D.C. No.
CV-03-02418-RSL
v. OPINION
CITY OF SEATTLE, a municipal
corporation; PAUL SCHELL, former
Mayor; R. GIL KERLIKOWSKE, Chief
of Police,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
November 13, 2006—Seattle, Washington
Filed January 18, 2007
Before: Arthur L. Alarcón, Pamela Ann Rymer, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Alarcón
759
762 JOHNSON v. CITY OF SEATTLE
COUNSEL
Michael E. Withey and Karen K. Koehler, Stritmatter Kessler
Whelan Withey Coluccio, Seattle, Washington, for the
plaintiffs-appellants.
Ted Buck, Scott Bissell, Raul Martinez and Anne Melani
Bremner, Stafford Frey Cooper, Seattle, Washington, for the
defendants-appellees.
OPINION
ALARCÓN, Circuit Judge:
Michael A. Johnson and ten other persons (collectively the
“Pioneer Square Plaintiffs”) appeal from the district court’s
order granting summary judgment in favor of the City of Seat-
tle, Paul Schell (former Mayor of Seattle), and R. Gil Kerli-
kowske (Chief of the Seattle Police Department) (collectively
“Defendants”). The Pioneer Square Plaintiffs contend that the
district court erred in dismissing their 42 U.S.C. § 1983 claim
because the Defendants’ change in police enforcement policy
violated their Fourteenth Amendment right to due process by
affirmatively placing them in a position of enhanced danger.
We affirm the district court’s decision to dismiss the § 1983
claim because we conclude that the Pioneer Square Plaintiffs
have failed to demonstrate that the Defendants violated their
constitutional rights.1
1
In a concurrently filed memorandum disposition, we affirm the district
court’s grant of summary judgment in favor of the Defendants on the Pio-
neer Square Plaintiffs’ state law negligence claim.
JOHNSON v. CITY OF SEATTLE 763
I
The undisputed facts reveal that private businesses annually
sponsor a Mardi Gras celebration in Seattle’s Pioneer Square
District. The 2001 celebration was scheduled to run from Fri-
day, February 23, 2001 through Tuesday, February 27, 2001.
Seattle’s prior Mardi Gras celebrations have had a generally
peaceful history, and, with the exception of a minor skirmish
in 2000, there had been no unusual civil disturbances sur-
rounding the Mardi Gras celebrations since the late 1970s.
On Friday, February 23, 2001, however, unexpected prob-
lems arose at Pioneer Square. Drunken crowds began engag-
ing in raucous behavior at approximately 8:00 p.m. At
midnight, some members of the crowd became increasingly
belligerent and aggressive. They assaulted police officers and
destroyed property. By 2:00 a.m., the situation evolved into a
significant public safety threat. Seattle police officers twice
ordered the crowd to disperse. Some members of the crowd
ignored both orders. Seattle police officers then used chemical
agents to clear the crowd. Police officers secured the area
after the crowd was dispersed.
Based on Friday’s experience, the Seattle Police Depart-
ment revised its operations plan for the remaining evenings.
Staffing for Saturday was expanded to 132 sworn officers.
On Saturday, February 24, 2001, officers again faced riot-
ous behavior from some members of the crowd, including
assaults with rocks and bottles. Deputy Chief John Diaz
alleged in his declaration in support of Defendant’s motion
for summary judgment that:
At approximately 1 a.m. [on] Sunday, officers appre-
hended an individual reported to have a handgun. An
officer believed the suspect had dropped his gun in
the crowd and ordered a large group of people to
move back. The group ignored the order. He then
764 JOHNSON v. CITY OF SEATTLE
deployed a burst of pepper spray to move the crowd
so he could secure the weapon. Rather than disperse,
the crowd pelted officers with rocks and bottles.
Deputy Chief Diaz ordered the use of chemical agents
because he concluded that the crowd presented a significant
public safety threat. In response, the crowd split into two parts
and surrounded the police officers. Part of the crowd moved
north along 1st Avenue, breaking windows and looting retail
establishments. One officer broke his arm while attempting to
apprehend a suspect.
On Sunday, February 25, 2001, the Seattle Police Depart-
ment developed a new operational plan for Tuesday. The
operational plan anticipated large crowd disturbances,
because in prior years, a large number of participants attended
the Mardi Gras celebration on Tuesday and a significant
quantity of alcohol was consumed. The plan provided that the
Seattle Police Department would deter unlawful activity by
maintaining a strong presence of uniformed officers. All
police personnel were instructed to conduct highly visible
patrols throughout Pioneer Square and to focus on any behav-
ior or criminal activity, which if not addressed, could lead to
large scale disturbances.
Sunday and Monday evenings were relatively “quiet” and
“trouble-free.” Officers were released early on Monday eve-
ning.
Some members of the crowd again became violent on
Tuesday evening. Starting at around 9:00 p.m., Captain Bill
Moffat, the field commander on that date, ordered Seattle
police officers to don protective crowd control equipment one
or two squads at a time. Police officers were then redeployed
around the perimeter of Pioneer Square.
The crowd swelled to an estimated 5,000 to 7,000 people.
Given the crowd’s size, density, and the hostile attitude of
JOHNSON v. CITY OF SEATTLE 765
some of its members, Assistant Chief Dan Bryant, the inci-
dent commander, ordered the officers not to insert themselves
into the crowd. Assistant Chief Bryant determined that order-
ing police officers to enter into the crowd, or any attempts by
the police to disperse it would incite greater panic and vio-
lence, making the situation worse. Assistant Chief Bryant
based his determination on the fact that the majority of the
property damage on Friday and Saturday, as well as the
assaults against police officers, occurred after dispersal efforts
were initiated. Instead, he attempted to thin the crowd by
directing officers to contact the local bars and request that
they close early, which several did.
A marked increase in violence occurred between midnight
and 12:30 a.m. The Seattle Police Department’s radio com-
munications described small groups of individuals randomly
assaulting members of the crowd, and victims in need of med-
ical care. Additionally, some members of the crowd threw
rocks and bottles at the officers standing around the perimeter
of Pioneer Square. Despite the continuing violence, police
officers were ordered to remain on the periphery of Pioneer
Square. The radio communications included the following
orders to officers over the course of the night: “evacuate,”
“move to the perimeter,” “keep your backs to the wall,” and
“no one go in to First and Yesler,” where the majority of the
crowd was congregated. When some police officers and Fire
Department paramedics entered the crowd to respond to fights
and reported injuries, they were forced to withdraw because
of the crowd’s violent conduct. Defendant Kerlikowske, how-
ever, did not know the details of the violence at the time it
occurred. He observed several fights and one act of vandal-
ism, but only learned later, after viewing videotapes, that
some individuals were roaming the crowd and attacking oth-
ers at random.
The Pioneer Square Plaintiffs were assaulted and injured by
members of the crowd at various times between 9:45 p.m. and
1:45 a.m. in Pioneer Square. At 1:30 a.m., Assistant Chief
766 JOHNSON v. CITY OF SEATTLE
Bryant ordered the use of chemical agents to disperse the Pio-
neer Square crowd because of the increasing violence. By
2:30 a.m., the crowd was cleared and police officers began
conducting mobile patrols throughout the Pioneer Square
area. During the rioting on Tuesday, more than six dozen peo-
ple were injured, including the Pioneer Square Plaintiffs, and
one member of the crowd was killed.
II
The Pioneer Square Plaintiffs filed an action in King
County Superior Court on June 25, 2003, seeking redress for
the injuries they suffered during the Mardi Gras celebration
on Tuesday, February 27, 2001. In their state court complaint,
they alleged three causes of actions: (1) a claim pursuant to
§ 1983, (2) a state law outrage claim, and (3) a state law neg-
ligence cause of action. On July 29, 2003, the case was
removed by the Defendants to the United States District Court
for the Western District of Washington.
In federal court, the Pioneer Square Plaintiffs filed a First
Amended Complaint, in which they asserted the same § 1983
claim and two state law tort causes of action. On February 2,
2004, the Defendants moved to dismiss all claims pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. On
June 8, 2004, the district court granted the Defendants’ Rule
12(b)(6) motion to dismiss the state law outrage claim.2 It
denied the Defendants’ Rule 12(b)(6) motion to dismiss the
§ 1983 claim, and ordered supplemental briefing regarding
the state law negligence cause of action. On June 22, 2004,
the district court denied the Defendants’ Rule 12(b)(6) motion
to dismiss the state law negligence cause of action. Subse-
quently, on December 9, 2004, the Defendants moved for
summary judgment on the § 1983 claim and the state law neg-
ligence cause of action. On March 16, 2005, the district court
2
The Pioneer Square Plaintiffs do not challenge the dismissal of their
state law outrage claim in this appeal.
JOHNSON v. CITY OF SEATTLE 767
granted Defendants’ motion for summary judgment on the
remaining claims. This timely appeal followed.
III
The Pioneer Square Plaintiffs contend that the district court
erred in concluding that the Defendants are not liable. Under
Monell v. Dep’t of Soc. Serv. of the City of New York, 436
U.S. 658 (1978), they argue that the policy employed by the
Seattle Police Department over a period of years to control
large crowd disturbances was substandard and resulted in a
deprivation of their Fourteenth Amendment liberty interest in
personal security. Alternatively, the Pioneer Square Plaintiffs
maintain that the Defendants are liable for enhancing their
danger and proximately causing their injuries by abandoning
the operational plan for crowd control, adopted on Sunday,
February 5, 2005, that called for a large, highly visible police
presence and aggressive law enforcement, and, instead, imple-
menting a more passive plan of staying on the perimeter of
the crowd in Pioneer Square.
“We review de novo a district court’s decision to grant or
deny summary judgment.” Prison Legal News v. Lehman, 397
F.3d 692, 698 (9th Cir. 2005). “We must determine, viewing
the evidence in the light most favorable to the nonmoving
party, whether there are any genuine issues of material fact
and whether the district court correctly applied the relevant
substantive law.” Id. (citing Lopez v. Smith, 203 F.3d 1122,
1131 (9th Cir. 2000) (en banc)). The nonmoving party must
“do more than simply show that there is some metaphysical
doubt as to the material facts . . . the nonmoving party must
come forward with specific facts showing there is a genuine
issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986) (internal quotation marks
and citations omitted) (quoting FED. R. CIV. P. 56(e)) (empha-
sis in original).
768 JOHNSON v. CITY OF SEATTLE
A
Section 1983 provides as follows:
Every person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of any State . . .
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immu-
nities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983.
[1] Like individual state officials, municipalities are only
liable under Section 1983 if there is, at minimum, an underly-
ing constitutional tort. Monell v. Dep’t of Soc. Serv. of the
City of New York, 436 U.S. 658, 691 (1978). We agree with
the district court that the Pioneer Square Plaintiffs have failed
to demonstrate any violation of their constitutional rights
caused by either the City’s policy, see Monell, 436 U.S. at
691, or any action by the individual defendants regarding the
change in the Mardi Gras operational plan.
[2] In DeShaney v. Winnebago County Dep’t of Soc. Serv.,
489 U.S. 189 (1989), the Supreme Court held that “a State’s
failure to protect an individual against private violence simply
does not constitute a violation of the Due Process Clause.” Id.
at 197. The Court reasoned as follows:
[N]othing in the language of the Due Process Clause
itself requires the State to protect the life, liberty,
and property of its citizens against invasion by pri-
vate actors. The 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. It forbids the
State itself to deprive individuals of life, liberty, or
JOHNSON v. CITY OF SEATTLE 769
property without “due process of law,” but its lan-
guage cannot fairly be extended to impose an affir-
mative obligation on the State to ensure that those
interests do not come to harm through other means.
Id. at 195.
[3] Because the City of Seattle had no constitutional duty
to protect the Pioneer Square Plaintiffs against violence from
members of the riotous crowd, “its failure to do so — though
calamitous in hindsight — simply does not constitute a viola-
tion of the Due Process Clause.” DeShaney, 489 U.S. at 202.
B
[4] The general rule announced in DeShaney that members
of the public have no constitutional right to sue state actors
who fail to protect them from harm inflicted by third parties
“is modified by two exceptions: (1) the ‘special relationship’
exception; and (2) the ‘danger creation exception.’ ” L.W. v.
Grubbs, 974 F.2d 119, 121 (9th Cir. 1992). The Pioneer
Square Plaintiffs have not argued that their § 1983 claim
comes within the “special relationship” exception. Instead,
they argue that they amply demonstrated a violation of their
constitutional rights under the “danger creation” exception to
the DeShaney rule. (Appellants’ Opening Brief at 18.)
[5] To prevail under the danger creation exception, a plain-
tiff must first show that “the state action ‘affirmatively
place[s] the plaintiff in a position of danger,’ that is, where
state action creates or exposes an individual to a danger which
he or she would not have otherwise faced.” Kennedy v. City
of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006) (quoting
DeShaney, 489 U.S. at 197). We first considered the danger
creation exception in Wood v. Ostrander, 879 F.2d 583 (9th
Cir. 1989), cert. denied, 498 U.S. 938 (1990). We have subse-
quently found that the plaintiff alleged a triable danger cre-
ation claim in L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992),
770 JOHNSON v. CITY OF SEATTLE
Penilla v. City of Huntington Park, 115 F.3d 707 (9th Cir.
1997) (per curiam), Munger v. City of Glasgow Police Dep’t,
227 F.3d 1082 (9th Cir. 2000), and Kennedy v. City of Ridge-
field, 439 F.3d 1055 (9th Cir. 2006).
In Wood, we held that a police officer’s conduct that affir-
matively places a plaintiff in a position of danger deprives
him or her of a substantive due process right. 879 F.2d at 589
90. The record in Wood contained evidence that a police offi-
cer arrested the driver of a vehicle for drunk driving. Id. at
586. He ordered the plaintiff, a female passenger, out of the
vehicle. The vehicle was impounded. The police officer then
drove away, leaving the passenger alone in an area with a
high violent crime rate. The temperature outside was only
fifty degrees. The passenger was wearing only a blouse and
jeans, and her home was five miles away. She accepted a ride
from a stranger who took her to a secluded area and raped her.
Id.
[6] We reversed the district court’s order granting summary
judgment in favor of the officer. Id. We held that “Wood
[had] raised a genuine factual dispute regarding whether [the
officer] deprived her of a liberty interest protected by the
Constitution by affirmatively placing her in danger and then
abandoning her.” Id. at 596. In the instant case, unlike the cir-
cumstances in Wood, the Defendants and the Seattle police
officers did not create the dangerous conditions in Pioneer
Square. The Pioneer Square Plaintiffs voluntarily placed
themselves in the midst of the crowd that subsequently
became unruly.
[7] In Grubbs, we held that the district court erred in dis-
missing the plaintiff’s claims pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure for failure to state a claim.
974 F.2d at 122. The plaintiff, a nurse, alleged in her com-
plaint that her supervisors at a medium security custodial
institution assigned her to work in the medical clinic, after
assuring her that she would not be required to work alone
JOHNSON v. CITY OF SEATTLE 771
with violent sex offenders. Id. at 120. A violent sex offender,
who had failed all treatment programs at the institution, was
assigned to work with her. He assaulted, battered, kidnaped,
and raped her. Id. We held that the plaintiff had alleged suffi-
cient facts to state a claim under the danger creation exception
because “the Defendants took affirmative steps to place her at
significant risk, and that they knew of the risks.” Id. at 122.
Here, unlike the facts alleged in Grubbs, the officers did not
knowingly take affirmative steps that placed the Pioneer
Square Plaintiffs at risk.
[8] In Penilla, we held that police officers violated substan-
tive due process under the danger creation exception to
DeShaney by locking a seriously ill person in his house and
cancelling a neighbor’s 911 request for emergency services.
115 F.3d at 708, 711. Family members found him dead the
next day as the result of respiratory failure. Id. at 708. We
held in Penilla that “when a state officer’s conduct places a
person in peril in deliberate indifference to their safety, that
conduct creates a constitutional claim.” Id. at 709. In this
case, the state actors did not confine the Pioneer Square Plain-
tiffs to a place where they would be exposed to a risk of harm
by private persons.
In Munger, we applied the danger creation exception where
the plaintiffs alleged that, in response to a bartender’s request
for assistance, police officers ordered a belligerent patron,
who had consumed a substantial amount of alcohol, to leave
a bar, and not to drive a vehicle. 227 F.3d at 1084. The out-
side temperature was eleven degrees, with a windchill factor
of minus 20-25 degrees. The bar patron was wearing a T-shirt
and jeans. The next day, his body was found in an alleyway
two blocks from the bar. He had died from hypothermia. Id.
The decedent’s involuntary exposure to harm, as a result of a
state actor’s command, is readily distinguishable from the
absence in this case of any affirmative conduct by the Defen-
dants that increased the risk of harm to the Pioneer Square
Plaintiffs.
772 JOHNSON v. CITY OF SEATTLE
In Kennedy, the plaintiff offered evidence that a police offi-
cer placed her in a position of danger by notifying a neighbor
that she had reported that he molested her nine-year-old
daughter. 439 F.3d at 1057-58. The officer assured the plain-
tiff that he would notify her prior to contacting the neighbor’s
family about her allegations. Id. at 1058. Instead, the police
officer informed the neighbor and his mother of the plaintiff’s
allegations without first notifying her. When the officer
informed the plaintiff that he had informed the neighbor of
her accusations, he promised the plaintiff that the police
would patrol her neighborhood that night. The following
morning, the neighbor shot the plaintiff and her husband
while they slept. Id. We held in Kennedy that the danger cre-
ation exception to DeShaney was applicable because the state
actor exposed the plaintiff to a danger which she otherwise
would not have faced. Id. at 1062-63.
[9] In contrast to the plaintiffs in Wood, Penilla, Munger,
Grubbs and Kennedy, the Pioneer Square Plaintiffs have
failed to offer evidence that the Defendants engaged in affir-
mative conduct that enhanced the dangers the Pioneer Square
Plaintiffs exposed themselves to by participating in the Mardi
Gras celebration. The decision to switch from a more aggres-
sive operation plan to a more passive one was not affirmative
conduct that placed the Pioneer Square Plaintiffs in danger,
because it did not place them in any worse position than they
would have been in had the police not come up with any oper-
ational plan whatsoever.
The change of plans is analogous to the decision by Joshua
DeShaney’s “Child Protection Team” to transfer him from
state custody to the custody of his father, whom they had rea-
son to believe was abusive. See DeShaney, 489 U.S. at 192.
The Supreme Court explained why this transfer was not a sub-
stantive due process violation as follows:
While the State may have been aware of the dangers
that Joshua faced in the free world, it played no part
JOHNSON v. CITY OF SEATTLE 773
in their creation, nor did it do anything to render him
any more vulnerable to them. That the State once
took temporary custody of Joshua does not alter the
analysis, for when it returned him to his father’s cus-
tody, it placed him in no worse position than that in
which he would have been had it not acted at all; the
State does not become the permanent guarantor of an
individual’s safety by having once offered him shel-
ter.
Id. at 201.
[10] Similarly, in this case, the fact that the police at one
point had an operational plan that might have more effectively
controlled the crowds at Pioneer Square does not mean that an
alteration to this plan was affirmative conduct that placed the
Pioneer Square Plaintiffs in danger. The police did not com-
municate anything about their plans to the Pioneer Square
Plaintiffs prior to the incident. Even if proved not the most
effective means to combat the violent conduct of private par-
ties, the more passive operational plan that the police ulti-
mately implemented did not violate substantive due process
because it “placed [the Pioneer Square Plaintiffs] in no worse
position than that in which [they] would have been had [the
Defendants] not acted at all.” DeShaney, 489 U.S. at 201.
AFFIRMED.