Kennedy v. City of Ridgefield

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 Judge, Presiding

Argued and Submitted

September 17, 2004—Seattle, Washington

Filed June 23, 2005

Before: James R. Browning, A. Wallace Tashima, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Browning;

Partial Concurrence and Partial Dissent by Judge Bybee

7471

KENNEDY v. RIDGEFIELD 7475

COUNSEL

Ray P. Cox, Forsberg & Umlauf, Seattle, Washington, for the

defendant-appellant.

John R. Connelly, Jr., Darrell L. Cochran and Lincoln C.

Beauregard, Gordon Thomas Honeywell Malanca Peterson &

Daheim, Tacoma, Washington, for the plaintiff-appellee.

OPINION

BROWNING, Circuit Judge:

Defendant Noel Shields appeals the district court’s ruling

that he is not entitled to summary judgment against Plaintiff

Kimberly Kennedy’s 42 U.S.C. § 1983 claim. He argues that

his alleged conduct did not violate Plaintiff’s clearly estab-

lished constitutional rights. We disagree, and conclude the

district court correctly determined that Shields is not entitled

to qualified immunity. Accordingly, we affirm the decision

below.

I. Introduction

Kimberly Kennedy’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 severely wounded her.

On September 6, 1998, Kennedy called the Ridgefield

Police Department (“RPD”) and alleged that Michael Burns

7476 KENNEDY v. RIDGEFIELD

had molested Kennedy’s nine-year-old daughter, Tera Teufel.

RPD Officer Shields responded to the call.

Kennedy claims to have warned Shields of Michael Burns’s

violent tendencies at the September 6 meeting. Kennedy

insists that during their initial meeting, she told Shields that

the Burns family was unstable and that she had seen a lot of

violence in their home. She alleges that she went on to

describe several violent incidents involving Angela Burns,

Michael’s mother. Kennedy also claims she informed Shields

that Michael Burns had been involved in a number of violent

incidents, including fights at school, lighting a cat on fire,

breaking into his girlfriend’s house and attacking her with a

baseball bat, and throwing rocks at a building in downtown

Ridgefield.

Kennedy also alleges that during the September 6 meeting,

Shields assured her that she would be given notice prior to

any police contact with the Burns family about her allega-

tions. Shields stated that he could not recall whether Kennedy

asked to be notified prior to any contact by the authorities

with the Burns family.

Shields forwarded his report to the Child Abuse and Inter-

vention Center (“CAIC”) following the September 6 meeting.

It is undisputed that Shields had no contact with Kennedy

between the September 6 meeting and September 24, the

night of the shooting.

Kennedy alleges that on several occasions, she inquired

into the status of the investigation of Michael Burns and

reminded officers to notify her prior to any contact with the

Burns family. She learned that Michael Burns had been inves-

tigated for sending death threats to a classmate, but that the

investigation concluded that he was not responsible. Kennedy

asserts that she expressed concerns about her safety and told

the CAIC officer handling the investigation that she was anx-

ious to have the investigation started.

KENNEDY v. RIDGEFIELD 7477

On September 24, 1998, Kennedy called both Shields and

the CAIC to inquire into the progress of the investigation.

Kennedy left a message for Shields. The content of this mes-

sage is disputed. Shields stated that when he arrived at work

on September 24, there was a message from Kennedy inquir-

ing about his contact with Angela Burns and the status of the

molestation case. Shields’s account clearly contradicts Kenne-

dy’s repeated testimony that she asked the RPD and CAIC to

notify her prior to any contact with the Burns family. After

receiving Kennedy’s message, Shields called the CAIC to

inquire into the status of the investigation. The officer respon-

sible for the case was out so Shields left a message.

Shields decided to drive to the Kennedy house and inform

Kennedy personally that he called the CAIC but did not know

the status of the case. Shields stated that he did not call Ken-

nedy before driving to her house. On the way to the Kennedy

house, Shields changed his mind and decided to go to the

Burns’s residence first. He reasoned that it was on the way,

and he could thus determine whether the Burns family had

been contacted and so inform Kennedy. Shields talked to

Angela Burns and informed her of Kennedy’s allegations.

After speaking with Angela Burns, Shields proceeded to

the Kennedy house. When he arrived, Shields told Kennedy

that he had informed Angela Burns of the molestation allega-

tions. Kennedy became upset and asked Shields why he had

contacted the Burns family prior to notifying her and told

Shields that she was in fear for her safety. Kennedy alleges

that Shields assured her that the police would patrol the area

around her and Michael’s house to keep an eye on him.

After Shields left, Kennedy called a friend because she was

very frightened of what Michael and Angela Burns’s reaction

would be. According to Kennedy, Shields told her Angela

Burns was very angry after their conversation and Angela and

Michael Burns began yelling at one another. Kennedy also

alleges that her husband decided to stay the night at home

7478 KENNEDY v. RIDGEFIELD

because Shields had promised to patrol the premises. They

planned to lock the doors to the house and leave town early

the next morning. Kennedy also stated that she did not call

911 that night because she relied upon Shields’s promise to

patrol the area.

Early on the morning of September 25, 1998, Michael

Burns broke into the Kennedy house and shot Jay and Kim-

berly Kennedy while they slept. Jay Kennedy died as a result

of his injuries. Michael Burns was convicted of the premedi-

tated murder of Jay Kennedy and attempted premeditated

murder of Kimberly Kennedy.

Kennedy brought a lawsuit against Shields and Ridgefield

City, among others, in Clark County Superior Court asserting

several 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 Washington. On March 13, 2003, Shields and

Ridgefield City moved for summary judgment. The court

granted summary judgment to the defendants on all state law

claims and to Ridgefield City on Kennedy’s § 1983 “failure

to train” claim.

The court denied Shields’s motion for summary judgment

based on qualified immunity. The district court concluded that

viewing the facts in a light most favorable to plaintiffs, “a jury

could find that Officer Shields unreasonably created a false

sense of security in plaintiffs by agreeing to give plaintiffs

advanced notice of advising the Burns family of the allegation

that Michael Burns sexually molested Tera Teufel, and assur-

ing the plaintiffs of a neighborhood patrol.” Order, p. 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-

KENNEDY v. RIDGEFIELD 7479

tory appeal concerning his qualified immunity defense. If so,

we must then determine whether Shields is entitled to quali-

fied immunity under the facts of this case.

We review de novo an interlocutory appeal from the denial

of summary judgment based on qualified immunity. Wilkins

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 that we have jurisdiction to determine whether the

trial court erred in holding that 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 (1985), the Supreme Court held that

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-

7480 KENNEDY v. RIDGEFIELD

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 trial court stated:

Viewed in a light most favorable to plaintiffs, a jury

could find that Officer Shields unreasonably created

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 Tera Teufal, and assuring the plain-

tiffs 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 prom-

ises by Shields.

Order at 4-5. Thus, the trial court’s order observes that issues

of fact remain.

This does not, however, suffice to deprive us of jurisdiction

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.

KENNEDY v. RIDGEFIELD 7481

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

whether there is a genuine dispute about the underlying

facts.”).

Unlike the appeal in Johnson, we are not asked or required

to look at the sufficiency of the evidence in support of the fac-

tual claims made by the parties, i.e., Shields’s contention that

he did not create a false sense of security and Plaintiff’s insis-

tence 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.”).

[3] Here, while the trial court concluded that issues of fact

remain, those disputed facts are not the basis of Shields’s

interlocutory appeal of the denial of qualified immunity.

Rather, Shields’s appeal contends that even after resolving the

issues of fact in Plaintiff’s favor, the Plaintiff will not have

demonstrated that Shields violated a clearly established con-

stitutional right. Because this question represents an “abstract

issue of law relating to qualified immunity” it falls within our

jurisdiction on interlocutory appeal.

Assuming the facts as alleged by Plaintiff, we must deter-

mine whether the Defendant violated Plaintiff’s constitutional

rights and whether those rights were clearly established. If

Shields’s conduct did not violate Plaintiff’s clearly estab-

lished constitutional rights, he is entitled to qualified immu-

nity. We now turn to those questions.

B. Application of Qualified Immunity to Officer Shields

We conclude that Shields’s conduct, as alleged by Plaintiff,

violated her constitutional rights. Furthermore, we conclude

7482 KENNEDY v. RIDGEFIELD

that the constitutional rights violated by Shields’s alleged con-

duct were clearly established at that time.

In Saucier v. Katz, 533 U.S. 194, 201 (2001), the Supreme

Court established a two-prong analysis for qualified immunity

cases. First, a court must determine whether the facts alleged

(resolving all disputes of fact in favor of the party asserting

the injury) show that the officer’s conduct violated a constitu-

tional right. “Taken in the light most favorable to the party

asserting the injury, do the facts alleged show the officer’s

conduct violated a constitutional right? This must be the ini-

tial inquiry.” Saucier, 533 U.S. 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 immu-

nity.

If, however, the court determines that the conduct did vio-

late a constitutional right, the second prong under Saucier

requires the court to determine whether the violated right was

“clearly established.” A right is clearly established if the

“contours of the right [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 it may be difficult for a police

officer to determine how to apply the relevant legal doctrine

to the particular circumstances he or she faces. The Saucier

Court therefore held that if the 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 officer is entitled to the

immunity defense.” 533 U.S. at 205. We now take up those

questions.

1. First Prong: Did Shields Violate Kennedy’s

Constitutional Rights?

[4] The Plaintiff alleges that the Defendant violated her

14th Amendment right to substantive due process under the

KENNEDY v. RIDGEFIELD 7483

“state-created danger” doctrine. In DeShaney v. Winnebago

County Dep’t of Soc. Serv., 489 U.S. 189, 196 (1989), the

Supreme Court held that 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.” Since the

Due Process Clause does not require the state to provide its

citizens with a minimum level of security, it follows that the

state cannot be held liable for failing to do so. Id. at 196-97.

Two exceptions to DeShaney exist. Under the “special rela-

tionship” doctrine, the state can be held liable for a third

party’s harm where the state has custody over the plaintiff.

Under this exception, “ ‘when the State takes a person into its

custody and holds him there against his will, the Constitution

imposes some responsibility for [that person’s] safety and

general well-being.’ ” Wang v. Reno, 81 F.3d 808, 818 (9th

Cir. 1996) (quoting DeShaney, 489 U.S. at 199-200). Here,

Plaintiff does not allege that Shields ever had custody over

her or her husband; consequently, this exception is inapplica-

ble.

[5] The “state-created danger” doctrine represents the sec-

ond recognized exception to DeShaney’s rule against holding

state officials liable for private violence. Under this theory,

plaintiffs can recover “when a state officer’s conduct places

a person in peril in deliberate indifference to their safety.”

Penilla v. City of Huntington Park, 115 F.3d 707, 709 (9th

Cir. 1997). This Circuit first recognized liability based on

state created danger in Wood v. Ostrander, 879 F.2d 583 (9th

Cir. 1989). In Wood, a state trooper determined that the driver

of an automobile was intoxicated, arrested the driver and

impounded the car. The officer left Wood, a passenger in the

car, stranded late at night in a high-crime area. Wood

accepted a ride from a passing car and was subsequently

raped. This Court held that Wood could claim § 1983 liability,

since there was a genuine issue of fact “that [the trooper]

acted with deliberate indifference to Wood’s interest in per-

sonal security under the fourteenth amendment.” Id. at 588.

7484 KENNEDY v. RIDGEFIELD

Since Wood, this Circuit has held state officials liable for

the creation of danger in a variety of circumstances. In L.W.

v. Grubbs, 974 F.2d 119, 120 (9th Cir. 1992), this Court

found that state employees could be liable for the rape of a

registered nurse assigned to work alone in the medical clinic

of a medium-security custodial institution with a violent sex

offender. In Munger v. City of Glasgow, 227 F.3d 1082 (9th

Cir. 2000), this Court found that police officers could be held

liable for ejecting a visibly drunk patron from a bar on a bit-

terly cold night.

[6] To find an officer liable under the “state-created dan-

ger” theory, a plaintiff must show that the officer’s actions

created or increased the danger facing him or her. Second, the

plaintiff must demonstrate that the state official acted with

deliberate indifference to a known or obvious danger. Inter-

preting the facts in a manner most favorable to Plaintiff, we

conclude that Shields did in fact augment the danger Plaintiff

and her husband faced and acted with deliberate indifference

to a known or obvious danger. Plaintiff has therefore demon-

strated that her constitutional rights were violated and so sat-

isfied the first prong under Saucier.

a. Danger Affirmatively Created or Increased Due to

State Action

[7] First, Shields’s affirmative actions placed the Kennedy

family in a situation of danger greater than they would have

faced had he not acted at all. Shields does not dispute that the

revelation to Michael Burns’s mother of the allegations of

sexual abuse against Michael Burns triggered his actions

against Plaintiff and her husband. In revealing the existence

of allegations against Michael to Angela Burns after having

promised Kennedy that he would notify her first, Shields cre-

ated a situation of heightened danger. It was inevitable that

Michael Burns would eventually learn of the allegations made

against him, and he would likely infer who had made them.

If Kennedy had received the prior warning officer Shields

KENNEDY v. RIDGEFIELD 7485

promised her, she and her family could have taken additional

precautions. Instead, they relied on Shields’s promise of

advance notification and so considered additional precautions

unnecessary.

[8] Moreover, Shields further augmented this danger by

offering false assurances that the police would patrol the Ken-

nedy’s neighborhood the night of the shooting. Misrepresenta-

tion of the risk faced by a plaintiff can contribute to a finding

of state-created danger. 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.”). Plain-

tiff alleges that she and her husband based their decision to

remain at home that night and leave in the morning in reliance

on Shields’s assurances that the neighborhood would be

patrolled. Defendant’s affirmative promise of a police patrol

thus influenced Plaintiff’s assessment of the risk she and her

family faced.

b. Deliberate Indifference

Second, resolving all factual disputes in Plaintiff’s favor,

Shields acted with deliberate indifference. “ ‘[D]eliberate

indifference’ is a stringent standard of fault, requiring proof

that a municipal actor disregarded a known or obvious conse-

quence of his actions.” Bryan County v. Brown, 520 U.S. 397,

410 (1997). See also Christie v. Iopa, 176 F.3d 1231, 1240

(9th Cir. 1999). Here, Plaintiff has alleged that the conse-

quences of Shields’s actions were obvious: first, that once

informed of the allegations against him, Michael Burns would

attempt to harm the Kennedy family; and second, that having

been assured by Shields’s promise to provide police protec-

tion, the Kennedy family would rely upon that promise.

[9] Resolving factual disputes in Kennedy’s favor, the

record supports her assertion that Shields should have recog-

nized the obvious consequences of his actions. Most signifi-

cantly, Plaintiff specifically asked Shields to give her advance

7486 KENNEDY v. RIDGEFIELD

notification because she feared for the safety of her family. In

addition, Plaintiff herself had previously informed Shields of

Michael Burns’s violent tendencies, including an incident in

which Michael Burns had broken into a girlfriend’s home.

Shields also knew of a separate investigation in which school

authorities suspected (albeit erroneously) that Michael Burns

sent death threats to another student. Finally, on the night of

the attack, Plaintiff informed Shields directly that he had

placed her family in danger by informing the Burns family of

the allegations against Michael prior to notifying the Kennedy

family. Under these circumstances, the obvious consequence

of informing Angela Burns prior to the Kennedy family and

of falsely assuring the Kennedy family of police protection

was to increase the risk the Kennedy family faced from

Michael Burns.

2. Second Prong: Was the Right Violated Clearly

Established?

When all the factual issues are resolved in Plaintiff’s favor,

we find Shields’s alleged conduct violated Kennedy’s consti-

tutional rights. We turn to the second prong of the Saucier

test, and consider whether the constitutional right violated by

Shields’s conduct was “clearly established” in September

1998. We conclude for the reasons set out below that it was.

To determine whether a right is clearly established, the

reviewing court’s inquiry must consider whether a reasonable

officer would recognize that his conduct violates that right

under the circumstances and in light of the law that existed at

that time. As the Supreme Court 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

KENNEDY v. RIDGEFIELD 7487

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); see also Flores v. Morgan Hill Unified Sch. Dist., 324

F.3d 1130, 1136-37 (9th Cir. 2003) (“In order to find that the

law was clearly established . . . we need not find a prior case

with identical, or even ‘materially similar’ facts.”). Thus, the

alleged conduct need not explicitly have been previously

deemed unconstitutional, but existing case law must make it

clear that the conduct violated constitutional norms. More-

over, “[t]he plaintiff bears the burden of showing that the

right at issue was clearly established under this second

prong.” Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002).

In September of 1998, it was clearly established that state

officials could be held liable where they affirmatively and

with deliberate indifference placed an individual in danger. In

1989, this Court recognized the theory of state-created danger

in Wood. However, it is not enough to claim that a constitu-

tional right was clearly established in its broad outlines. First,

“the right allegedly violated must be defined at the appropri-

ate level of specificity before a court can determine if it was

clearly established.” Wilson v. Layne, 526 U.S. 603, 615

(1999). The appropriate level of specificity must take into

account the actual circumstances of the case, for the inquiry

into whether the right is clearly established “must be

undertaken in light of the specific context of the case, not as

a broad general proposition.” Saucier, 533 U.S. at 201. In

Saucier, the Court rejected the idea that the plaintiff could

defeat the defendant’s claim of qualified immunity merely by

demonstrating that use of force violates the Fourth Amend-

ment if it is excessive under objective standards of reason-

ableness.

[10] Kennedy may not defeat Shields’s claim of qualified

immunity merely by demonstrating that police actions vio-

7488 KENNEDY v. RIDGEFIELD

lated the Fourteenth Amendment if they affirmatively created

or enlarged danger facing a plaintiff and did so with deliberate

indifference. To satisfy her burden and demonstrate that

Shields violated a clearly established constitutional right,

Plaintiff must go further. “The salient question . . . . is

whether the state of the law [at the time of the alleged wrong]

gave respondents fair warning that their alleged treatment of

[the petitioner] was unconstitutional.” Hope, 536 U.S. at 741.

That is, Kennedy must demonstrate, based on the state of the

law in 1998, that Shields was on notice that informing Angela

Burns of Kennedy’s allegations prior to warning the Kennedy

family and falsely promising a police patrol that evening

would violate Kennedy’s constitutional rights. Resolving all

factual disputes in her favor, we conclude that Kennedy has

met this burden. Consequently, we hold that Shields is not

entitled to have his motion for summary judgment on the

basis of qualified immunity.

[11] Both of Kennedy’s claims against Shields amount to

verbal promises that were relied upon and then not kept. This

Court has previously held officers liable under a state-created

danger doctrine where they falsely induce reliance by promis-

ing additional protection or warnings. In Grubbs, 974 F.2d

119, a registered nurse working at a medium security custo-

dial institution was raped and terrorized by a young male

inmate. The nurse brought a § 1983 claim against her supervi-

sors. According to the plaintiff, her employer had told her she

would not be working alone with violent sex offenders. Not-

withstanding that representation, her employer subsequently

allowed an inmate prone to violence against women to work

with her unsupervised. The plaintiff, relying upon that repre-

sentation, did not take all the precautions she might otherwise

have taken, and was subsequently raped.

[12] The Grubbs Court recognized that cognizable state-

created harm claims may arise where state officials induce

reliance by means of verbal promises that are later broken. In

Grubbs, the plaintiff obviously recognized that she faced

KENNEDY v. RIDGEFIELD 7489

some risk, because she was working in a custodial institution

with male offenders. She did not realize, however, that the

defendants would place her in close unsupervised proximity

with an individual with a history of violence against women.

It was in part because the conduct of the defendants increased

the risk she faced without her knowledge that the Grubbs

Court found them to have violated her constitutional rights.

“Defendants . . . enhanced L.W.’s vulnerability to attack by

misrepresenting to her the risks attending her work.” Id. at

121. Thus, the Grubbs Court concluded that officials may be

held liable where they claim to offer protection they do not

provide and so misrepresent the risk posed by third-parties to

a plaintiff. Consequently, Shields’s conduct violated Plain-

tiff’s clearly established constitutional right.

Like the plaintiff in Grubbs, Kennedy was aware of the

underlying risk, yet reasonably underestimated it based on

Shields’s representations. His alleged conduct both increased

and misrepresented the risk that Michael Burns posed to Ken-

nedy and her family. Shields purportedly told Kennedy that he

would warn her before telling the Burns family of the allega-

tions against Michael Burns, and then failed to do so. Further-

more, Kennedy has also alleged that Shields falsely told her

that he would patrol her neighborhood the night the allega-

tions against Michael Burns were revealed to his family. If

either or both of these allegations were proved at trial, a jury

could reasonably find Kennedy relied upon such promises of

additional protection in evaluating the risks Michael Burns

posed to her family. Furthermore, under the circumstances

alleged by Plaintiff, Shields would have acted unreasonably in

promising prior notification and additional police protection,

inducing reliance, and then failing to perform.

III. CONCLUSION

Under Behrens v. Pelletier, 516 U.S. 299, 312-13 (1996),

we have jurisdiction to hear Shields’s interlocutory appeal

regarding qualified immunity. We conclude that Shields

7490 KENNEDY v. RIDGEFIELD

unreasonably violated Kennedy’s clearly established constitu-

tional right. Under the state-created danger doctrine, a police

officer may be liable for actions that create or augment known

or obvious dangers. Here, Shields’s actions both increased

and misrepresented the risk Plaintiff faced. Under Grubbs,

increasing and misrepresenting a known risk may give rise to

§ 1983 liability. This doctrine was clearly established by the

time the events of this case took place. Accordingly, the trial

court’s denial of Shields’s motion for summary judgment

based on qualified immunity is hereby

AFFIRMED.

BYBEE, Circuit Judge, concurring in part and dissenting in

part:

I vigorously part company with the majority’s conclusion

that Shields created the danger Kennedy faced and then acted

with deliberate indifference, thereby violating 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 min-

utes 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 doing, the

majority not only mangles the state-created danger doctrine,

it holds that its new rule was so clearly established that Offi-

cer Shields should have known he was violating the Constitu-

tion 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 invented the state-created danger

exception to DeShaney, we have approved it on fewer than

five occasions. In these cases we have narrowly construed the

exception to encompass only claims in which the govern-

KENNEDY v. RIDGEFIELD 7491

ment’s act was directed toward a specific plaintiff, rather than

the public at large; the government acted affirmatively, rather

than simply failed to act; the government’s act caused the

harm, rather than merely increased the risk; and the govern-

ment’s action constituted deliberate indifference to the known

or obvious danger, rather than mere negligence, or even gross

negligence. Ignoring these elements, 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 requisite 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. As outlined in

Kennedy’s complaint, her deposition testimony, and as deter-

mined by the district court, these facts show that on Septem-

ber 6, 1998 Kennedy filed a complaint with the City of

Ridgefield Police Department (“RPD”) accusing her neigh-

bor, Michael Burns, of sexually molesting her nine-year-old

daughter. Officer Shields was dispatched to Kennedy’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

1

Although I dissent on the merits, I agree with the majority’s conclusion

that we have jurisdiction to hear this interlocutory appeal.

7492 KENNEDY v. RIDGEFIELD

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

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 RPD — at least six times during the eighteen days fol-

lowing her complaint — regarding the status of the

investigation. 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 pro-

ceeded to the Burns’ home to ascertain whether the family

had been notified. 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 Angela 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 noti-

fied 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 increase surveillance in the area that night to

watch for Michael. After discussing the matter with her hus-

band, Kennedy chose to remain in her home that evening and

leave town the following 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.

KENNEDY v. RIDGEFIELD 7493

II. SAUCIER TWO-STEP

The Court’s opinion in Saucier v. Katz, 533 U.S. 194

(2001), as the majority notes, provides the framework for our

analysis of this § 1983 suit. Under this framework, if a defen-

dant claims qualified immunity, we must make two distinct

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 our court’s gloss on DeShaney and the Fourteenth

Amendment’s Due Process Clause.

A. State-Created Danger Doctrine

As the majority observes, the state-created danger doctrine

is said to trace its jurisprudential pedigree to the Supreme

7494 KENNEDY v. RIDGEFIELD

Court’s opinion in DeShaney, perhaps best known for Justice

Blackmun’s exclamation, “Poor Joshua!” DeShaney v. Winne-

bago County Dep’t of Soc. Serv., 489 U.S. 189, 213 (1989)

(Blackmun, J. dissenting). Declining to find a due process

violation where local officials failed to adequately respond to

complaints that four-year-old Joshua was being abused by his

father, the Court held that the Constitution 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 affir-

mative right to governmental aid, even where such

aid may be necessary to secure life, liberty, or prop-

erty 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 chosen 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-

ship” exception, stemming from a custodial relationship

KENNEDY v. RIDGEFIELD 7495

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 explicit 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 Court’s observation, in DeShaney, that Winnebago

County neither helped to create the dangers that Joshua faced

nor rendered 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 creation, nor did it do anything to render him any

more vulnerable to them.”).

1. Ninth Circuit Cases

Four months after DeShaney, we established the state-

created danger theory, 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 rid-

ing, 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

stranded Wood in a high-crime area at 2:30 a.m. distinguished

7496 KENNEDY v. RIDGEFIELD

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, kidnaped, 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 7485, 7489. Indeed, under DeShaney,

it is, at the very least, questionable whether a state’s failure

to fully apprise an individual of the risks attending her

employment can ever constitute an affirmative exercise of

KENNEDY v. RIDGEFIELD 7497

state power sufficient to give rise to a due process violation.

See DeShaney, 489 U.S. at 201-02 (suggesting that the affir-

mative 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 sys-

tem of child-protection services). Rather, Grubbs I more accu-

rately 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 Dept., 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 plain-

tiff] in danger”).

On appeal from our remand of Grubbs I to the district

court, 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” standard, we held that “the plaintiff must

show that the state official participated in creating a danger-

ous 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.

In an effort to further demarcate the outer-bounds of the

state-created danger doctrine, our subsequent cases have only

highlighted the requirement that, at a minimum, a state-

created danger due process claim must have as its basis the

affirmative exercise of state power creating a risk which, but

for the state’s affirmative action, would not have existed. For

instance, in Penilla v. City of Huntington Park, 115 F.3d 707,

710 (9th Cir. 1997), we found a due process violation where

police officers responded to a 911 call, “examined [the plain-

tiff], found him to be in grave need of medical care, canceled

7498 KENNEDY v. RIDGEFIELD

the request for paramedics, 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. 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 tempera-

tures were subfreezing. 227 F.3d at 1087. Although the offi-

cers knew 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 1086-87. 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 the risk to the plaintiff an unfore-

seeable 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 creat-

ing a foreseeable danger to the plaintiff, leading to the depri-

vation of the plaintiff’s constitutional rights.” Id. See also

Lawrence v. United States, 340 F.3d 952, 957 (9th Cir. 2003)

(citing Wood, 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 fore-

seeable.”). Similarly, in Lawrence, 340 F.3d at 954, we

declined to find a Fifth Amendment violation in a Bivens

KENNEDY v. RIDGEFIELD 7499

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. Although we found it foreseeable that a con-

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), we declined to find that a county jail commander acted

with deliberate indifference to the known or obvious dangers

facing his employees when he disclosed their identities as per-

sons who had been involved in the restraint and removal of

a deceased prisoner. The deceased prisoner’s family and

friends believed that personnel connected with the jail were

responsible for his death, and, upon learning their identities,

harassed and assaulted the employees. Id. at 1085-86. Citing

Wood, the employees contended that their supervisors demon-

strated deliberate indifference by not promptly notifying them

of the release of the records containing their identities and by

not taking steps to protect them from dangers that ultimately

became apparent. Id. at 1087. We affirmed the district court’s

grant of summary judgment for defendants, reasoning that the

jail authorities could not have reasonably concluded that the

prisoner’s family and friends would be likely to engage in

open violence.2

2

There may be some latent dispute regarding whether the “proximate

cause” requirement noted in Huffman, 147 F.3d at 1061, and Lawrence,

340 F.3d at 954, 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.

7500 KENNEDY v. RIDGEFIELD

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

(expressing doubt as to whether the plaintiff must show that

“the danger created by a state official is directed toward a par-

ticular plaintiff, as opposed to being directed toward the gen-

eral 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 708 (same); Munger, 227 F.3d

at 1087 (same); and (4) whether the government acted with

the requisite culpability, see, e.g., Grubbs II, 92 F.3d at 899-

900 (requiring the plaintiff to show that the state official

“acted with deliberate indifference to the known or obvious

danger” (emphasis added)). Cf. Armijo v. Wagon Mound Pub.

Sch., 159 F.3d 1253, 1264 (10th Cir. 1998) (adding a fifth fac-

tor 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.

KENNEDY v. RIDGEFIELD 7501

Harder, 64 F.3d 567, 573 (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.

While the Supreme Court has yet to recognize the state-

created danger doctrine, and the circuit courts have yet to con-

struct a unified approach either to the state-created danger

inquiry or to the role that causation principles should play in

the analysis, 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, 1126 (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 the 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

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 more promptly from a burning

car). 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 Court

observed in DeShaney, “It may well be that, by voluntarily

7502 KENNEDY v. RIDGEFIELD

undertaking to protect [the plaintiff] against a danger it con-

cededly 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 commit-

ted 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 plain-

tiff’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, and her case against Officer Shields sounds in negli-

gence, albeit negligence with tragic consequences. The

majority has run afoul of our own cases and the Court’s cau-

tion in DeShaney. I address these issues more fully below.

B. Constitutional Inquiry

The majority finds fault of constitutional magnitude 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; and (2) promising to increase police sur-

veillance on the night of the shooting. Maj. Op. at 7489. Nei-

ther of these will support a due process violation.

1. Notification

The majority concludes that Officer Shields in fact “aug-

ment[ed] the danger Plaintiff and her husband faced” by

revealing the existence of allegations against Michael to

Angela Burns after having promised Kennedy that she would

be notified first. Maj. Op. at 7484.3 The majority asserts that,

3

Kennedy did not specify how much advance warning she desired, but

she insists that she expected to be notified before the Burns were informed

of her allegations.

KENNEDY v. RIDGEFIELD 7503

had she received prior warning, she and her family would

have had the opportunity to take additional precautions. Id. at

7484-85. The majority reaches this conclusion despite the fact

that the Kennedys made a conscious choice to remain in their

home for approximately eight hours after they were informed

of the contact. Nonetheless, in light of the information Ken-

nedy communicated to Officer Shields regarding Michael’s

past misbehavior, the majority holds that “the obvious conse-

quence of informing Angela Burns prior to the Kennedy fam-

ily and of falsely assuring the Kennedy family of police

protection was to increase the risk the Kennedy family faced

from Michael Burns.” Id. at 7486.

Nothing in the record supports the claim that Shields’s act

of notifying Angela Burns of the allegations increased the risk

facing the Kennedy family. Notifying Michael Burns was an

inevitable consequence of Kennedy’s allegations of child

molestation. At some point either the police or CAIC was

going to have to talk with the Burns about the allegations.

Kim Kennedy not only knew this, she contacted police at least

six times to find out if the Burns had been contacted. Kennedy

was anxious because she feared what Michael might do, and

she knew that he would have to be informed.

Pursuant to an inter-local agreement, after Kennedy made

her initial complaint to the Ridgefield Police Department

(“RPD”), the task of investigating the complaint was per-

formed solely by a separate law enforcement unit, the Child

Abuse Intervention Center (“CAIC”). As her only direct con-

tact, prior to the shooting, had been with Officer Shields and

the RPD, Kennedy had absolutely no way of ensuring that she

received notification before CAIC made contact with the

Burns family regarding her allegations. Indeed, Officer

Shields represented her best chance of receiving prompt noti-

fication of any contact with the Burns. By Kennedy’s own

testimony, Officer Shields informed her immediately after

contact was made, at approximately 4:30 in the afternoon.

7504 KENNEDY v. RIDGEFIELD

The majority’s holding that Shields’s conduct “increase[d]

the risk” facing the Kennedy family ignores the fact that the

Kennedys were already exposed to a very real risk of danger

of which they were aware. Id. at 7486. Contrary to the majori-

ty’s holding, the real danger facing the Kennedy family more

accurately stemmed from the likelihood that either the police

or CAIC would contact the Burns without informing Ken-

nedy. Consequently, the danger facing the Kennedy family

existed apart from any action or conduct by Officer Shields.

Rather than increase the risk facing the Kennedy family,

Shields’s prompt notification appears to have given Kennedy

her best chance for escape.

Yet, even assuming that we could disregard these obstacles

to find some increased risk attributable to Officer Shields, this

would not suffice to support a constitutional violation. To find

a cognizable due process violation we must find more than a

mere increase in the risk facing the plaintiff. See, e.g., Huff-

man, 147 F.3d at 1061 (“The danger-creation exception to

DeShaney does not create a broad rule that makes state offi-

cials liable under the Fourteenth Amendment whenever they

increase the risk of some harm to members of the public.”).

We must determine that Officer Shields “used [his] authority

. . . to create an opportunity for [Burns] to assault [the plain-

tiff] that would not otherwise have existed.” Grubbs I, 974

F.2d at 121 (emphasis added). In other words, we must con-

clude, at a minimum, that, but for the state’s action, the dan-

gerous situation facing Kennedy would not have existed. Here

we cannot do so for the same reasons that we cannot deter-

mine that the state “increased” the risk facing Kennedy: the

danger that Michael Burns would learn of Kennedy’s accusa-

tions existed independent of any action attributable to Officer

Shields.

An additional obstacle to the majority’s conclusion stems

from the requisite level of culpability necessary to establish a

due process violation premised on state-created danger. In

order to find a due process violation, we must determine that

KENNEDY v. RIDGEFIELD 7505

the shooting was a known or an obvious consequence of Offi-

cer Shields’s action, and that Officer Shields “acted with

deliberate indifference to the known or obvious danger in

subjecting the plaintiff to it.” Grubbs II, 92 F.3d at 899-900

(emphasis added). See also Wood, 879 F.2d at 588. The

majority fails to explain how Officer Shields’s conduct meets

this stringent culpability requirement. Rather, the majority

simply asserts that “Shields should have recognized the obvi-

ous consequences of his actions.” Maj. Op. at 7485. Even if

Officer Shields knew of Michael Burns’s propensities — the

allegations that he had threatened a classmate, tortured a cat,

and assaulted his girlfriend — Shields could not have antici-

pated as an “obvious consequence” that Michael would enter

the Kennedys’ home to murder Jay and assault Kim.

The majority’s conclusion sounds in negligence. Negli-

gence, even gross negligence, is insufficient to establish a due

process violation based on state-created danger. See Grubbs

II, 92 F.3d at 898. See also DeShaney, 489 U.S. at 201-02.

Instead, the deliberate indifference standard that we quoted

with approval in Grubbs II requires a showing that the “ ‘de-

fendant recognizes the unreasonable risk and actually intends

to expose the plaintiff to such risks without regard to the con-

sequences to the plaintiff.’ ” Grubbs II, 92 F.3d at 899 (quot-

ing Uhlrig, 64 F.3d at 573 n.8). Phrased another way, the

defendant must “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.” Grubbs II, 92 F.3d at 900 (emphasis in origi-

nal).

The specific instances of misconduct communicated by

Kennedy were not sufficient to put Officer Shields on notice

that Michael Burns might attempt to murder members of the

Kennedy family. Michael’s previous misconduct included dis-

turbing juvenile violence, but had never included threats or

assault with a firearm. Indeed, the record suggests that both

Shields and Kennedy failed to appreciate the extent of the

7506 KENNEDY v. RIDGEFIELD

danger that Michael posed. Under these circumstances, it can-

not be said that Officer Shields had “actual knowledge of, or

willfully ignore[d], impending harm.” Id.

Even assuming, however, that Shields recognized the risk,

his actions can hardly be said to demonstrate an intent to

expose Kennedy to this risk without regard to the conse-

quences. Kennedy contacted police no fewer than six times

after her initial complaint, each time inquiring as to whether

the Burns had been notified of her allegations. However mis-

guided, Shields’s actions appear to have been motivated by a

desire to promptly notify Kennedy of any contact that CAIC

had made with the Burns. The brevity of the majority’s analy-

sis on this point stems from the fact that there is simply no

evidence to suggest an intent to expose Kennedy to a known

or obvious risk, without regard to the consequences that

would follow. Without the requisite mental state, there can be

no constitutional violation premised on state-created danger.

See, e.g., Grubbs II, 92 F.3d at 898; Wood, 879 F.2d at 588.

When one considers the alternative course of conduct

which could have spared Shields from the outcome today, the

artificiality of the majority’s analysis is apparent. Under the

majority’s theory, Shields would face no liability if he simply

reversed the order in which he visited the residence of the

plaintiff and her would-be assailant. Or if he had simply cal-

led Kim Kennedy from his cell phone while standing at the

doorstep of the Burns’ home, his action, under the majority’s

view, would have been blameless. Yet, by driving to the

Burns’ residence and then immediately to the Kennedys’,

Shields crossed the majority’s new constitutional line in the

sand. According to the majority, this flipflop of no more than

fifteen minutes is of constitutional magnitude. I cannot agree.

Rather, I would hold that Kennedy failed to state a constitu-

tional violation arising from the prompt notification that she

received regarding Shields’s contact with Angela Burns.

KENNEDY v. RIDGEFIELD 7507

2. Promised Police Surveillance

Officer Shields’s assurances of an increased police patrol

on the evening of the shooting similarly fail to provide a basis

for a due process violation. Notably, Kennedy does not claim

that the RPD failed to patrol the area on the evening of the

shooting. Rather, she appears to contend that Officer Shields’s

assurances falsely led her to believe that it was safe to remain

in her home. Kennedy was in a far better position to ascertain

the extent of the risk she and her family faced as a result of

Michael Burns’s knowledge of her accusations. Yet, the

majority asserts that a jury could find in her favor solely on

the basis of Shields’s alleged misrepresentation of “the risk

that Michael Burns posed to Kennedy and her family.” Maj.

Op. at 7489 (“If either . . . of these allegations were proved

at trial, a jury could reasonably find Kennedy relied upon

such promises of additional protection in evaluating the risks

that Michael Burns posed to her family.”) (emphasis added).

I have been unable to locate a single case in which a mere

misrepresentation of the extent of danger posed to a plaintiff

is sufficient to state a claim under the Fourteenth Amendment.

Grubbs I provides no support for this assertion. On the con-

trary, the court in Grubbs I relied on the state’s misrepresenta-

tion merely as a means for bolstering its conclusion that the

state’s affirmative act of directly placing the plaintiff in a dan-

gerous situation — namely, assigning 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”). Ken-

nedy’s allegations cannot be elevated to meet this threshold

requirement simply because she asserts that she remained in

her home based on Officer Shields’s misrepresentation of the

risk that she and her family faced.

The majority today holds that an officer’s mere awareness

of a danger to the victim and his expression of intent to help

7508 KENNEDY v. RIDGEFIELD

are sufficient to establish a due process violation. This conclu-

sion belies the central lesson of DeShaney. In DeShaney, the

county was undoubtedly aware of the danger facing Joshua:

authorities were repeatedly informed that he was a probable

victim of physical abuse over a period of two years, during

which time he was treated by emergency room doctors for

suspicious injuries on at least three occasions; social workers

assigned to his case likewise reported numerous suspicious

injuries. The county unequivocally expressed its desire to help

Joshua, attempting on multiple occasions to intervene. A

Child Protection Team was assembled to assess Joshua’s situ-

ation, interview the father, and recommend action, and a case

worker was assigned to monitor his home environment for six

months. DeShaney, 489 U.S. at 192-93. Indeed, Winnebago

County’s knowledge of Joshua DeShaney’s plight and its

expressions of intent to help him were far greater than the

City of Ridgefield’s knowledge of Kennedy’s plight and its

expressions of intent to help her. See Balistreri v. Pacifica

Police Dep’t., 901 F.2d 696, 700 (9th Cir. 1990) (citing

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 pro-

tect her”). We are not permitted to circumvent the Court’s rul-

ing in DeShaney simply by redefining the cause of action as

one premised on a “state-created danger.” The City of Ridge-

field did not create Michael Burns’s violent reaction any more

than Winnebago County created the violent beatings that

resulted in brain damage so severe that Joshua DeShaney “is

expected to spend the rest of his life confined to an institution

for the profoundly retarded.” See DeShaney, 489 U.S. at 193.

The majority’s new rule comes perilously close to adopting

for the Due Process Clause the tort principle that if police

undertake to perform a service not mandated by the Constitu-

tion, then adequate performance of the service voluntarily

assumed is constitutionally required. It is anomalous to

impose liability for failing in an effort not required by the

Constitution. See, e.g., DeShaney, 489 U.S. at 201-02;

KENNEDY v. RIDGEFIELD 7509

Andrews v. Wilkins, 934 F.2d 1267, 1270-71 (D.C. Cir. 1991).

More troubling in my view, however, is the potential for per-

verse incentives; if liability is the logical result of anything

less than complete success, police will naturally be hesitant to

respond at all when faced with a situation such as Kennedy’s.

The result is less police protection, not more. This conse-

quence is dangerous and, I believe, unnecessary.

In sum, I would hold that Kennedy failed to establish a due

process violation arising from Officer Shields’s actions either

in notifying the Burns of her allegations prior to warning her,

or offering to increase surveillance on the evening of the

shooting. Accordingly, I would hold that she failed to estab-

lish a cognizable due process violation premised on state-

created danger.

C. Qualified Immunity Inquiry

Even assuming, as the majority maintains, 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 constitutional right at issue was

“clearly established” at the time of the events in question. We

must hold that a “reasonable official” 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 “offi-

cials will not be liable for mere mistakes 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 defen-

dants who violate constitutional rights enjoy a qualified

immunity that protects them from liability for damages 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 repeatedly emphasized,

“the qualified immunity defense . . . provides ample protec-

tion to all but the plainly incompetent or those who knowingly

violate the law.” Malley v. Briggs, 475 U.S. 335, 342 (1986).

See also Burns v. Reed, 500 U.S. 478, 494-95 (1991). Particu-

7510 KENNEDY v. RIDGEFIELD

larly in a context where the potential for liability may chill

lawful and socially desirable behavior at the edge of the “for-

bidden zone,” qualified immunity ensures that “officials can

act without fear of harassing litigation” and “can anticipate

when their conduct may give rise to liability for damages.”

Davis, 468 U.S. at 195.

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 this per-

spective in mind, I would hold that Officer Shields is entitled

to qualified immunity.

Citing only our decision in Grubbs I, the majority holds

that “Shields was on notice that informing Angela Burns of

Kennedy’s allegations prior to warning the Kennedy family

and falsely promising a police patrol that evening would vio-

late Kennedy’s constitutional rights.” Maj. Op. at 7488.

Grubbs I did not even begin the heavy lifting necessary to

sustain the majority’s conclusions in this case.

While perhaps superficially similar on some level, several

key facts that were present in Grubbs I are missing from this

case. The prison nurse who was battered, kidnaped, robbed

and raped by an inmate in Grubbs I was led to believe that she

would not have to work alone with residents who were known

violent sex offenders. 974 F.2d at 120. Grubbs I, thus,

KENNEDY v. RIDGEFIELD 7511

involved a plaintiff who was completely unaware of the risks

she faced and a state defendant fully apprised of the danger.

Kennedy, on the other hand, possessed superior knowledge of

the danger she faced from Michael Burns, and Officer Shields

never assured her that the danger of which she was aware no

longer existed. Even according to Kennedy’s own testimony,

Shields merely offered to increase surveillance in the neigh-

borhood on the evening of the shooting.

Grubbs I also involved affirmative conduct, on the part of

the state, which created a risk that otherwise would not have

existed. We concluded that, by assigning the nurse to work

alone with a sexually violent prisoner, the defendants “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. at 121 (emphasis added). The

same cannot be said of Kennedy’s complaint; indeed, the

record suggests precisely the opposite. As reflected in Kenne-

dy’s repeated calls to the RPD, the danger facing her family

stemmed from the probability that CAIC would begin the

investigation without ever communicating as much to her.

This risk existed apart from any action attributable to Officer

Shields. In short, I cannot join the majority’s holding that

Grubbs I put Officer Shields on notice that by responding to

Kennedy’s phone message, informing Angela Burns of Ken-

nedy’s allegations, immediately notifying Kennedy of as

much and offering to increase surveillance in the neighbor-

hood, he was acting with deliberate indifference to a known

or obvious danger.

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. On the contrary, in the case clos-

est to this one, we concluded that the plaintiff could not estab-

lish a due process violation. See Nicholas v. Wallenstein, 266

F.3d 1083 (9th Cir. 2001). The facts of Wallenstein are strik-

ingly similar: A state officer released the plaintiffs’ identities

to an angry group of family and friends; plaintiffs were imme-

7512 KENNEDY v. RIDGEFIELD

diately harassed and assaulted. Id. at 1084-85. The plaintiffs

argued that the release “was done with deliberate indifference

to the danger to them and that this indifference continued in

the refusal of the defendants to afford them protection from

the danger.” Id. We concluded that “[a]t the moment [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 release of this information “would excite the crowd.” Id.

at 1087. Yet, when presented with these facts, only three

years ago, we held that the “plaintiffs failed to produce evi-

dence that would create a triable issue of material fact show-

ing 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 measures to make the jailors or their

health helpers pay.” Id. at 1087.

Moreover, since we first recognized the state-created dan-

ger doctrine, we have always drawn a sharp distinction

between facts demonstrating that police action created the

danger to the person and facts demonstrating a danger that

existed without police action. See Wood, 879 F.2d at 589-90.

In addition, since Grubbs II we have required plaintiffs to

meet a stringent culpability requirement designed to prevent

the imposition of § 1983 liability for negligent conduct, even

grossly negligent conduct. 92 F.3d at 899-900. And since Huf-

fman, 147 F.3d at 1061, and Lawrence, 340 F.3d at 957, we

have emphasized that the requisite culpability must relate to

consequences which were foreseeable. The majority’s conclu-

sion in this case does not simply whittle away at these

requirements; it completely reinvents them.

Consequently, I cannot envision how it “would be clear to

a reasonable officer that his conduct was unlawful” in the sit-

uation at issue in this case. Saucier, 533, U.S. at 202. Assum-

ing arguendo that Kennedy’s allegations are sufficient to state

a constitutional violation, I would hold that, taking into

KENNEDY v. RIDGEFIELD 7513

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. Id. at 201.

There is no way Shields could have anticipated that his fifteen

minute delay in notifying Kennedy of his contact with Angela

Burns or his assurance of additional police surveillance would

operate to deprive 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 — Offi-

cer Shields could not have known that his conduct would vio-

late 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

repossession they deprived Meyers of her property without

due process of law.”). At the very least, after Saucier, the

court should have declared a constitutional violation but

granted qualified immunity in this case.

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.