The opinion
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 07 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JAMES GUND and NORMA GUND, No. 13-16741
Plaintiffs - Appellees, D.C. No. 2:13-cv-00452-TLN-
CMK
v.
COUNTY OF TRINITY, California, a MEMORANDUM*
local government entity and RON
WHITMAN, Corporal,
Defendants - Appellants,
And
BRUCE HANEY, Sheriff and DOES, 1-40
inclusive,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted November 17, 2015
San Francisco, California
Before: NOONAN, WARDLAW, and PAEZ, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Corporal Ron Whitman appeals the denial of his Rule 12(b)(6) motion to
dismiss the § 1983 action brought by James and Norma Gund. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Reviewing de novo, we accept the well-pleaded allegations as true and
construe them in the light most favorable to the Gunds. Padilla v. Yoo, 678 F.3d
748, 757 (9th Cir. 2012). Qualified immunity protects government officials from
liability when their conduct does not violate clearly established constitutional or
statutory rights. Hope v. Pelzer, 536 U.S. 730, 739 (2002). “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 violates that right.” Id.
(quotation omitted). “[T]he specific, alleged conduct . . . need not have been
previously and explicitly deemed unconstitutional, but existing case law must have
made it clear that the conduct violated constitutional norms.” Kennedy v. City of
Ridgefield, 439 F.3d 1055, 1065–66 (9th Cir. 2006).
“It is well established that the Constitution protects a citizen’s liberty interest
in her own bodily security.” Id. at 1061 (citing Ingraham v. Wright, 430 U.S. 651,
673–74 (1977); Wood v. Ostrander, 879 F.2d 583, 589 (9th Cir. 1989)). It is
likewise well established that a due process violation may occur where “state
action affirmatively places the plaintiff in a position of danger, that is, where state
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action creates or exposes an individual to a danger which he or she would not have
otherwise faced.” Id. (citing DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,
489 U.S. 189, 197, 201 (1989); Wood, 879 F.2d at 589–90) (quotation and
alteration omitted).
Here, the Gunds allege that Whitman asked them to “check on” a neighbor
who placed a 911 call, but withheld that the caller had repeatedly whispered “help
me,” was attempting not to be heard, and subsequently did not answer her phone
when the dispatcher attempted to call her back. Because Whitman did not relay
these facts to the Gunds, they complied with his request and were violently
attacked by the man who had just killed the neighbor when they arrived at her
house.
We have repeatedly found that qualified immunity does not shield a state
actor from liability when his conduct exposes a civilian to assault. See Kennedy,
439 F.3d at 1063; L.W. v. Grubbs, 974 F.2d 119, 121–22 (9th Cir. 1992); Wood,
879 F.2d at 589–90. Accordingly, our precedents provided fair warning to
Whitman that his alleged conduct violated constitutional norms when the
underlying events occurred in March 2011. See Kennedy, 439 F.3d at 1065.
AFFIRMED.
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