# Hall v. City of Portland

> District Court, D. Oregon · August 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10395122

## Case

- **Court:** District Court, D. Oregon
- **Decided:** August 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOSEPH HALL, an individual, No. 3:22-cv-00074-HZ

Plaintiff, OPINION & ORDER

v.

THE CITY OF PORTLAND, a municipal
corporation; and EDWARD TEVIS
WHEELER, an individual,

Defendants.

Jacob Johnstun
Johnstun Injury Law LLC
1935 St. Helens St., Ste. A
St. Helens, OR 97051

Attorney for Plaintiff

Caroline Turco
William W. Manlove
Portland City Attorney’s Office
1221 SW 4th Ave., Rm. 430
Portland, OR 97204

Attorneys for Defendant
HERNÁNDEZ, District Judge:
Plaintiff Joseph Hall brings this action under 42 U.S.C. § 1983 alleging violation of his
rights under the Fourteenth Amendment of the U.S. Constitution against the City of Portland and
Mayor Edward Tevis “Ted” Wheeler.1 Defendants move to dismiss Plaintiff’s Complaint for
failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons

explained below, the Court grants Defendants’ Motion to Dismiss.
BACKGROUND
Plaintiff alleges that on May 6, 2021, protests occurred in various areas of Portland,
Oregon, and that protesters systematically blocked traffic, openly carried firearms, destroyed
public and private property, and physically assaulted people passing by. Compl. ¶¶ 10–11,
ECF 1. Plaintiff was driving home from work at around 1:00 PM and did not know the
demonstrations were taking place. Compl. ¶ 13. At an intersection on his route home, Plaintiff’s
pickup truck was blocked by a group of protesters, and he was forced to stop. Compl. ¶¶ 13–14.
He rolled down the window to signify to the protesters which direction he was headed, and he

alleges that the protestors shouted slurs and pointed their firearms at him. Compl. ¶ 15. Plaintiff
warned the protestors that he would draw his own weapon for protection. Compl. ¶ 16. After a
brief standoff, the protesters temporarily moved out of Plaintiff’s path so he could continue.
Compl. ¶ 16.
But after driving several feet, Plaintiff stopped because believed something had struck the
rear of his pickup truck. Compl. ¶ 17. He left his vehicle running while he exited to see what had
happened. Compl. ¶ 17. After confirming that nothing had hit his truck, he returned to the

1 Plaintiff also brings claims under 42 U.S.C. § 1985 and 42 U.S.C. § 1986, which he voluntarily
dismisses. Pl. Resp. Def. Mot. Dismiss (“Pl. Resp.”) 13, ECF 11.
driver’s side door to find that his keys had been taken from the ignition. Compl. ¶ 18. Plaintiff
alleges he was trapped with nowhere to go, and that several people were pointing firearms at
him. Compl. ¶ 19. He then drew his concealed handgun and was subsequently tackled to the
ground and assaulted by the protesters. Compl. ¶ 20. Plaintiff alleges he suffered severe injuries,
including multiple rib fractures, a collapsed lung, a collapsed vertebra, a fractured left clavicle,

and cuts and abrasions. Compl. ¶ 25.
Plaintiff’s claim rests on the assertion that Defendants’ decision to “decline to enforce
public safety laws during Portland’s ongoing demonstrations” was the cause of his injury.
Compl. ¶ 2. Plaintiff claims that Mayor Wheeler and the City maintained a “strategy to limit
police intervention in protests and demonstrations and broadcast their intention to not intervene
in advance. Compl. ¶ 3. To show that the City was aware of a “substantial risk of physical harm
that would probably result” from ongoing protests, Plaintiff specifically references a press
conference on August 6, 2020, when Mayor Wheeler and Portland Police Bureau (“PPB”) Chief
Chuck Lovell denounced the violence and warned that the city anticipated more violence in the

immediate future. Compl. ¶ 3. Plaintiff argues that Defendants’ “dereliction of public duty [to
protect him] caused the violation of [his] substantive due process rights.” Compl. ¶ 24.
STANDARDS
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency
of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When evaluating the
sufficiency of a complaint’s factual allegations, the court must accept all material facts alleged in
the complaint as true and construe them in the light most favorable to the non-moving party.
Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). A motion to dismiss under
Rule 12(b)(6) will be granted if a plaintiff alleges the “grounds” of his “entitlement to relief”
with nothing “more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations
must be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in fact)[.]” Id. (citations and footnote
omitted).

To survive a motion to dismiss, a complaint “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks omitted). A plaintiff must “plead[] factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. In other words, a complaint must state a plausible claim for relief and contain “well-
pleaded facts” that “permit the court to infer more than the mere possibility of misconduct[.]” Id.
at 679.
DISCUSSION
I. Substantive Due Process

Plaintiff asserts that Defendants’ failure to protect him from being assaulted by protesters
violated his substantive due process rights under the Fourteenth Amendment. Defendants move
to dismiss Plaintiff’s Complaint for failure to state a claim. Defendants assert that because there
is no constitutional right to protection by the state, they cannot be held liable for Plaintiff’s
injuries.
The Due Process Clause of the Fourteenth Amendment provides, “[n]o State shall . . .
deprive any person of life, liberty, or property, without due process of the law.” U.S. Const.
amend. XIV, § 1. A “touchstone” of due process has been articulated as “protect[ing] . . . the
individual against arbitrary action of the government.” Cnty. of Sacramento v. Lewis, 523 U.S.
833, 845 (1998). The Supreme Court’s cases “dealing with abusive executive action have
repeatedly emphasized that only the most egregious official conduct can be said to be ‘arbitrary
in a constitutional sense.’” Id. at 846 (quoting Collins v. City of Harker Heights, Tex., 503 U.S.
115, 121 (1992)). For a plaintiff to prevail on a substantive due process claim, they must
establish that government actors engaged in official conduct that “shocks the conscience.” Id. If

the State defendant has time for deliberation, their actions meet the “shocks the conscience”
standard if the defendant acted with “deliberate indifference.” Id. at 851. By contrast, if the
defendant does not have time for deliberation, the standard is met only if the defendant acted
with a purpose to harm the plaintiff unrelated to any legitimate, governmental purpose. Id. at
853; see Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) (determining that the “shocks the
conscience” standard requires the “more demanding showing [of] a purpose to harm [the
plaintiff] unrelated to legitimate law enforcement objectives.”).
A. No Constitutional Right to Protection by the State
Plaintiff argues that Defendants violated his constitutional rights by failing in their duty

to protect him from being assaulted by protesters. He alleges Defendants failed to protect the
constitutional rights of people within the city’s boundaries by allowing demonstrators to “openly
assault citizens”; conspiring to create and employ a policy of inaction; emboldening lawbreaking
demonstrators; announcing an intent to withhold meaningful police presence; encouraging the
“city-wide mayhem” by demonstrating alongside protesters; and publicly voicing tolerance
toward unlawful activity. Compl. ¶ 23. Plaintiff claims Defendants’ “dereliction of public duty
caused the violation of [his] substantive due process rights.” Compl. ¶ 24.
The Fourteenth Amendment Due Process Clause does not “impose an affirmative
obligation on the State”; rather, it is interpreted as a “limitation on the State’s power to act, not as
a guarantee of certain minimal levels of safety and security.” DeShaney v. Winnebago Cnty.
Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). In other words, the State is generally not liable
for its omissions. Martinez v. City of Clovis, 943 F.3d 1260, 1271(9th Cir. 2019) . “The
Fourteenth Amendment typically does not impose a duty on the state to protect individuals from
third parties.” Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011). The Fourteenth

Amendment “did not create a system by which police departments are . . . held financially
accountable for crimes that better policing might have prevented.” Town of Castle Rock, Colo. v.
Gonzales, 545 U.S. 748, 768–69 (2005).
There are two exceptions to the general rule that the Due Process Clause does not expose
the State to liability for acts of violence by private third parties. First, a special relationship
between the plaintiff and the State, such as a custodial relationship, may give rise to a
constitutional duty to protect. DeShaney, 489 U.S. at 198–200. Second, under the state-created
danger exception, the State may have a duty to protect a plaintiff if the State “affirmatively
places [them] in danger by acting with ‘deliberate indifference’ to a ‘known or obvious danger.’”

Patel, 648 F.3d at 971 (quoting L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)). Plaintiff does
not allege a special relationship between him and Defendants, so the first exception does not
apply. His claim falls under the second exception: that Defendants’ policing choices
affirmatively exposed Plaintiff to a known or obvious danger, and that Defendants acted with
deliberate indifference. See Compl. ¶¶ 3–4.
B. The State-Created Danger Exception
The State’s failure to protect an individual against acts of third parties may violate due
process where state action “affirmatively places the plaintiff in a position of danger.” Kennedy v.
City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006). To make a successful claim under the
state-created danger exception, a plaintiff must establish three elements. See Hernandez v. City of
San Jose, 897 F.3d 1125, 1133 (9th Cir. 2018). First, the plaintiff must show that the defendant’s
affirmative actions created or exposed the plaintiff to a “known or actual danger” that they
“would not otherwise have faced.” Kennedy, 439 F.3d at 1061. Second, the plaintiff must
establish that the injury they suffered was foreseeable. Martinez, 943 F.3d at 1271. Finally, the

plaintiff must establish that the defendant was “deliberately indifferent toward the known
danger.” Id.
i. Affirmative Acts
The relevant inquiry for the affirmative act element is whether the state action “create[s]
or expos[es] individuals to a danger they otherwise would not have faced.” Kennedy, 439 F.3d at
1062. The danger must be “actual” and “particularized,” and courts consider “whether the
officers left the person in a situation that was more dangerous than the one in which they found
[them].” Martinez, 943 F.3d at 1271 (citation omitted). The Ninth Circuit has only found a due
process violation in cases in which the defendant had contact with the victim or the third party

who injured them, and that contact placed the victim in harm’s way. See, e.g., Munger v. City of
Glasgow Police Dep’t, 227 F.3d 1082, 1087 (9th Cir. 2000); Penilla v. City of Huntington Park,
115 F.3d 707, 708 (9th Cir. 1997); Wood v. Ostrander, 879 F.2d 583, 586 (9th Cir. 1989).
In Munger, the police escorted a visibly intoxicated man out of a bar into sub-zero
temperatures. Munger, 227 F.3d at 1084. The police prohibited him from driving or returning to
the bar, and they watched as he wandered off alone toward a railyard. Id. The next morning, his
body was found just two blocks away. Id. at 1085. The court found that the officers had violated
his substantive due process rights because they had left him in a more dangerous situation than
he would have encountered had the officers not intervened. Id. In addition, the fact that the
officers searched for the man after he wandered away demonstrated that they were aware of the
danger they created for him. Id. at 1086.
Similarly, in Penilla, police officers engaged in an affirmative act by placing the plaintiff
in a more dangerous position than when they found him. Penilla, 115 F.3d at 708. After
responding to a 911 call and finding the plaintiff lying on the porch, the officers canceled a

request his neighbors had made for paramedics, broke open the front door, and dragged the
plaintiff into his own home, shutting and locking the door. Id. The next day, he was found dead
in his home. Id. As in Munger, the court found that the series of affirmative acts by police placed
the plaintiff at a higher risk of medical harm than he would have been in had they not intervened
in the first place. Id. at 710.
Finally, in Wood, a police officer pulled over a car and, after determining that the driver
was intoxicated, ordered the car to be impounded. Wood, 879 F.2d at 586. The officer left a
female passenger stranded alone at night in a high-crime area. Id. The woman began walking
home and was offered a ride by an unknown man, who took her to a secluded area and raped her.

Id. By leaving the woman alone in an area the officer knew to be dangerous, he had exposed her
to an actual and particularized danger to which, but for his intervention, she would not have been
exposed. Id. at 588. The court found that although the officer himself did not assault the woman,
“he [] acted in callous disregard for [her] physical security, a liberty interest protected by the
Constitution.” Id. at 589.
In Munger, Penilla, and Wood, actions taken by police officers exposed the plaintiffs to
known or actual dangers. In each case, the officers had contact with the plaintiff, and from that
contact, took a series of affirmative actions that placed the plaintiff in a situation that was more
dangerous than the one in which the police had found them. Because officers took actions that
were specific toward each plaintiff, the actions were “actual” and “particularized,” fulfilling the
requirement for an affirmative act that the plaintiff, distinguished from the public at large, face a
special danger. Martinez v. State of California, 444 U.S. 277, 285 (1980).
Hernandez v. City of San Jose provides an example more analogous to this case. 897 F.3d
at 1129. That case involved a clash between protesters and attendees of a rally for then-

presidential candidate Donald J. Trump. Id. at 1129–30. The Ninth Circuit found that the police
acted affirmatively to increase the danger to the plaintiffs by “(1) actively preventing the
attendees from leaving safely though alternative exits, (2) directed the attendees to leave from a
single exit, and (3) required the attendees to turn north . . . into a crowd of violent anti-Trump
protesters.” Id. at 1134 (internal quotations and brackets omitted). The attacks by protestors on
attendees of rally were a mere “possibility” when the event started, but “the Officers greatly
increased that risk of violence when they shepherded and directed the Attendees towards the
unruly mob waiting outside.” Id. The court held that the danger to the plaintiffs was actual and
particularized, because officers had witnessed violence against the plaintiffs earlier in the rally,

and officers had received reports that there had been attacks on the Trump supporters by anti-
Trump protesters. Id.
In contrast to Hernandez, in Johnson v. City of Seattle, the Ninth Circuit held that with
the discretionary crowd control measures taken by the police did not constitute affirmative acts.
474 F.3d 634 (9th Cir. 2007). In Johnson, an assistant police chief made a tactical decision
against ordering officers to enter a crowd during an unruly Mardi Gras celebration because “any
attempts by the police to disperse it would incite greater panic and violence, making the situation
worse.” Id. at 637. As the crowd activity grew more dangerous, the Seattle Police Department
maintained its strategy to refrain from intervening. Id. Several individuals who were assaulted
and injured by members of the crowd sued the City. Id. The court determined that the plaintiffs
failed to offer evidence that the police had engaged in an affirmative act that exposed the
plaintiffs to danger in violation of their substantive due process rights. Id. at 641. The police
department’s decision to switch to a more passive crowd control approach did not “place [the
plaintiffs] in any worse position than they would have been in had the police not come up with

any operational plan whatsoever.” Id. at 641.
The actions of Defendants here are closer to those of the officers in Johnson than to those
in Hernandez because none of Plaintiff’s allegations show that Defendants affirmatively created
an actual, particularized danger that he would not have otherwise faced. Defendants did not have
direct contact with Plaintiff and did not affirmatively steer him toward a certain crowd of
protesters. Plaintiff does not allege that police were present when he was assaulted.2 Plaintiff also
does not allege that the police had any contact with his attackers on the day of his attack. Thus,
Plaintiff was no more than a member of the “public at large,” and any danger posed by police
action (or inaction) was not directed specifically at him. See Martinez v. State of California, 444

U.S. at 285 (“[T]he parole board was not aware that appellants' decedent, as distinguished from
the public at large, faced any special danger.”). Plaintiff alleges no actions by Defendants
directed towards him that placed him in a worse position than if Defendants had not acted at all.
Even if there were a “policy of inaction” in place, a policy or decision found to be less
effective in hindsight is still not an affirmative act. Johnson, 474 F.3d at 641. “[E]ven if proved
not the most effective means to combat the violent conduct of private parties, the more passive

2 The Complaint is vague in its description of police activity when Plaintiff was attacked.
Plaintiff generally alleges that in response to protesters becoming violent on the day he was
attacked: “911 calls were placed for PPB to intervene. Yet, due to defendants’ policy of inaction,
PPB failed to respond in any meaningful manner.” Compl. ¶ 12. Plaintiff does not allege that
police were aware of violence against him or were present when he was attacked.
plan the police ultimately implemented . . . ‘placed the [plaintiffs] in no worse position than that
in which they would have been had the Defendants not acted at all.’” Id. (quoting DeShaney, 489
U.S. at 201). Thus, even an ineffective tactical or operational decision by law enforcement—
including one that fosters violence at protests—does not violate substantive due process if the
action does not affirmatively place a plaintiff in any greater danger than they would have been in

without intervention.
Here, because there was no contact between Plaintiff and Defendants or their agents to
create an actual or particularized danger, and because any decision made by Defendants was
discretionary, Defendants did not engage in an affirmative act as required for the state-created
danger exception to apply. Plaintiff claims that Defendants “embolden[ed] lawbreaking
demonstrators by habitually choosing to not disturb unlawful assemblies,” “announc[ed] an
intent to withhold meaningful police presence in advance of demonstrations,” and “publicly
voic[ed] tolerance and understanding toward lawbreaking demonstrators.” Compl. ¶¶ 23 (c), (d),
(f). But Plaintiff does not explain how Defendants’ announced policy of inaction, as he alleges,

qualifies as affirmative conduct that created a particularized danger for him. See DeMaria v.
Washington Cnty., 12 F. Supp. 2d 1093, 1099-1100 (D. Idaho 1996), aff’d, 129 F.3d 125 (9th
Cir. 1997) (“In every case where an officer stands by and does nothing, a claim could be raised
that the officer’s inaction emboldened the criminal. But DeShaney has clearly foreclosed these
claims.”).
Plaintiff argues that his claims are similar to those successfully brought by plaintiffs in
two out-of-circuit cases. In Dwares v. City of New York, the Second Circuit found that the
plaintiff had stated a claim that police officers violated his constitutional rights when they gave
prior assurances to a group of skinheads that they would not intervene if the skinheads attacked a
protestor who burned an American flag. 985 F.2d 94, 96-97 (2d Cir. 1993). And in Estate of
Rosenbaum v. City of New York, the district court found that plaintiffs had stated that “their due
process rights were violated by the City’s alleged implementation of a policy of restraint.” 975 F.
Supp. 206, 216 (E.D.N.Y. 1997). But in those cases, alleged direct communication between
police and private actors emboldened the violent activity against plaintiffs because the police had

reassured the private actors that they would not intervene.
Here, Plaintiff does not allege that Defendants gave his specific attackers any prior
assurances that their actions would be tolerated. Even taken as true, Mayor Wheeler’s statements
“announcing an intent to withhold meaningful police presence in advance of demonstrations” are
different from the direct assurances suggested in Dwares and Rosenbaum because in those cases,
the plaintiffs alleged specific assurances given to specific protesters, whereas Mayor Wheeler’s
comments were directed more generally to the community at large. Compl. ¶ 23 (d). Mayor
Wheeler’s statements are more like the actions of the police department in Johnson, where a
passive policing strategy provided no direct assurances to protesters and did not leave the

plaintiffs in a worse position than they otherwise would have found themselves. See Johnson,
474 F.3d at 641. Accordingly, Plaintiff fails to allege sufficient facts to establish that Defendants
engaged in an affirmative act as required to satisfy the first element of the state-created danger
exception.
ii. Foreseeability
Even if Defendants had engaged in an affirmative act that placed Plaintiff in danger, the
injury to Plaintiff was not a foreseeable result of the alleged action. For the state-created danger
exception to apply, a plaintiff must show that their “ultimate injury” was foreseeable. Martinez v.
City of Clovis, 943 F.3d at 1273. Defendants need not have foreseen the exact injury suffered by
the plaintiff; rather, “the state actor is liable for creating the foreseeable danger of injury given
the particular circumstances.” Id. at 1273–74. In addition, the foreseeable danger must fall within
the original risk affirmatively created by the state actor. Id.
A state actor can be held liable if they create conditions that foreseeably result in injury to
the plaintiff. For example, in L.W. v. Grubbs, it was foreseeable that a female nurse would be

attacked by a prisoner because the nurse’s supervisors assigned her to work with the prisoner
despite knowing that he had a history of “unrepentant violence against women,” that she would
be left alone with him and he would assault her if she was, and that she was unprepared to defend
herself against an attack. 974 F.2d 119, 121 (9th Cir. 1992), cert. denied sub nom. Grubbs v.
L.W., 508 U.S. 951 (1993). The court held that the nurse had stated a claim that her substantive
due process rights were violated because within these circumstances, the state had affirmatively
created the dangerous conditions from which it was foreseeable that the nurse would be attacked
by the inmate. Id. In Wood, on top of the officer’s affirmative act that created the danger to the
plaintiff, it was foreseeable that the female passenger was at risk of being sexually assaulted

when the officer left her alone in a high crime area without a way to get home. Wood, 879 F.2d
at 588.
But a state actor cannot be held liable for a third party’s actions if the injury to the
plaintiff is “too remote a consequence of the [state actor’s] action to hold them responsible[.]”
Martinez v. State of California, 444 U.S. at 285. In Martinez, a teenage girl was murdered by a
parolee five months after he was released from a state mental hospital. Id. at 279. Although the
state was “fully informed about his history, his propensities, and the likelihood that he would
commit another violent crime,” the Supreme Court held that the murder committed by the
parolee could not be “fairly characterized as state action.” Id. at 279, 285. Because there was no
indication that the victim faced any specifically particularized danger, and because she was
murdered five months after the parolee’s release, the Court determined that her injury was too
attenuated from the state’s decision to release her murderer to be foreseeable. Id. at 285.
Here, Defendants’ alleged “overt policy of inaction” is too attenuated from Plaintiff’s
injury to reasonably fall within the scope of an affirmative act by Defendants, such that the

injury would have been foreseeable. The only specific action by Defendants that Plaintiff alleges
is a statement Mayor Wheeler made at a press conference nine months before Plaintiff’s injury.
Plaintiff’s injury is too remote in time from Mayor Wheeler’s statement. Even if Plaintiff alleges
Defendants’ “action of inaction” was ongoing at the time of his attack, the particular danger to
him was no more significant or foreseeable than the danger posed to any other person in the City.
Plaintiff’s formulation of foreseeability is too broad; there is no evidence that Defendants could
foresee any greater risk to Plaintiff than to the general public. Because Defendants had no
contact with Plaintiff and made no assurances to his attackers, Defendants did not place Plaintiff
in a situation from which it was foreseeable that Plaintiff would be injured. Thus, Plaintiff fails

to allege sufficient facts to satisfy the second element of the state-created danger exception.
iii. Deliberate Indifference
Finally, even if Defendants acted affirmatively, they could not have acted with deliberate
indifference because the injury to Plaintiff was not foreseeable. A plaintiff must show that the
defendant was deliberately indifferent to the “known or obvious danger” facing them for the
state-created danger exception to apply. Hernandez, 897 F.3d at 1133. This is a “stringent
standard of fault, requiring proof that a municipal actor disregarded a known or obvious
consequence of [their] action.” Id. at 1135 (citations omitted). Deliberate indifference requires a
“culpable mental state,” higher than even gross negligence. Id. Thus, to claim deliberate
indifference, a plaintiff must allege facts showing that the defendant “recognize[d] [an]
unreasonable risk and actually intend[ed] to expose the plaintiff to such risks without regard to
the consequences.” Id. “In other words, the state actor must have known that something is going
to happen but ignored the risk and exposed the plaintiff to it anyway.” Id. (internal quotations
and citations omitted). The Ninth Circuit has reiterated that for state-created danger claims, the

deliberate indifference standard is “purely subjective.” Herrera v. L.A. Unified Sch. Dist., 18
F.4th 1156, 1160–61 (9th Cir. 2021).
To satisfy the deliberate indifference element, a plaintiff must show that the state actor
recognized and subsequently ignored a risk of harm to the plaintiff. For example, in reversing the
district court’s grant of summary judgment for the defendant police officer, the court in Wood
held that a jury could find that the officer knew of the danger to which he exposed the plaintiff
because of crime reports and his knowledge of the area in which he abandoned her. 879 F.2d at
590. Similarly, in Kennedy v. City of Ridgefield, a police officer knew of the plaintiff’s
neighbor’s violent tendencies because the plaintiff told him of past incidents of violence and

repeated her concerns about her family’s safety. 439 F.3d at 1064. After the neighbor shot her
and fatally shot her husband, the plaintiff sued the City for violating her substantive due process
rights under the state-created danger exception. Id. at 1062. The court held that by notifying the
neighbor of the allegations the plaintiff had made against him, despite his promise to the plaintiff
to the contrary, the officer demonstrated a deliberate indifference toward the plaintiff’s safety:
“[o]f all the possible actions he could take . . . he took the one most feared by Kennedy.” Id. at
1065.
The police officers in Hernandez demonstrated even greater indifference because the
officers were witnessing the violence firsthand. 897 F.3d at 1129. The officers knew that past
Trump rallies had turned violent and had received reports of violence early that day. Id. at 1138.
By choosing to block off exits and direct people towards the mob, the officers acted with
deliberate indifference to the safety of the protesters because they had immediate knowledge of
the violence and exposed the plaintiffs to it anyway. Id. at 1136.
On the other hand, in Patel v. Kent School District, the court found that a teacher was not

deliberately indifferent when she allowed a developmentally disabled student to use the
bathroom alone, where the student engaged in sexual conduct with another developmentally
disabled student. 648 F.3d at 976. Because the teacher did not know of any “immediate” risk, she
lacked the requisite culpable state of mind to establish deliberate indifference. Id. The teacher did
not intentionally expose the student to a known or obvious danger. Id.
Defendants here did not know of a specific risk to Plaintiff that they subsequently chose
to ignore. At the August 2020 press conference, nine months before Plaintiff’s injuries, Mayor
Wheeler and Police Chief Chuck Lovell warned of potential unlawfulness at future protests in
the city. While their statements reveal some acknowledgment of possible violence at protests,

neither their statements nor their actions expressed an intent to expose Plaintiff to that risk. And
Plaintiff does not allege that police were present at the protest when he was attacked and
specifically chose not to intervene. Thus, Plaintiff cannot establish that Defendants consciously
disregarded any consequences of a known or obvious danger to him.
Plaintiff argues that his allegations of Defendants’ awareness that some protests in
Portland in the summer of 2020 had become unruly show that Defendants were deliberately
indifferent to a risk that he would be attacked by protesters. The Court disagrees. To meet the
stringent standard for deliberate indifference, Plaintiff must allege facts showing that Defendants
were subjectively aware that Plaintiff was at risk of injury on May 6, 2021, the day that he was
allegedly attacked, and that Defendants intended to expose him to that risk. Defendants’
generalized awareness that some protests could become violent does not meet the “stringent
standard of fault” required for deliberate indifference. Plaintiff has not sufficiently alleged
deliberate indifference on the part of Defendants to support liability for a due process violation
under the state-created danger exception.

Because Plaintiff does not sufficiently allege facts showing that Defendants created the
danger which caused his injuries, his substantive due process claim fails. Neither the City nor
Mayor Wheeler violated Plaintiff’s constitutional rights by failing to protect him from the
independent actions of third-party protesters.
II. Monell Liability
A municipality cannot be held liable under § 1983 on the theory of respondeat superior.
Monell v. Dep’t of Soc. Servs. Of City of New York, 436 U.S. 658, 690–91 (1978). Liability can
only attach if the municipality itself causes the constitutional violation, either through a “policy
or custom, whether made by its lawmakers or those whose edicts or acts may be fairly said to

represent official policy.” Id.; see City of Canton v. Harris, 489 U.S. 378, 385 (1989) (requiring
“a direct causal link between a municipal policy or custom and the alleged constitutional
deprivation”). The Ninth Circuit premises this liability upon (1) an official policy; (2) a
“longstanding practice or custom which constitutes the standard operating procedures of the local
government entity”; (3) the act of an official whose acts “fairly represent official policy such that
the challenged actions constitute[] official policy”; or (4) where an official with “final policy
making authority delegated that authority to, or ratified the decision, a subordinate.” Price v.
Sery, 513 F.3d 962, 966 (9th Cir. 2008).
Plaintiff correctly asserts that Mayor Wheeler has final policy-making authority for the
City. However, because Plaintiff fails to adequately allege a constitutional violation, there can be
no municipal liability. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (“If a person
has suffered no constitutional injury at the hands of the individual police officer, the fact that the
departmental regulations might have authorized the use of constitutionally excessive force is

quite beside the point.”). As a result, Plaintiff’s claim against the City fails under Monell.
CONCLUSION
Construing all alleged facts in Plaintiff’s Complaint as true, the Court finds that Plaintiff
fails to adequately state a claim upon which relief may be granted. Defendant’s Motion to
Dismiss is GRANTED [9].

IT IS SO ORDERED.

DATED: ______A_u_g_u_s_t_ _2_2_, _2_0_2_2____.

______________________________
MARCO A. HERNÁNDEZ
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10395122. Public record. Not legal advice.