# James Gund v. County of Trinity

> Court of Appeals for the Ninth Circuit · December 7, 2015 · 624 F. App'x 519

URL: https://www.frixlaw.com/law-library/cases/3160480

## Case

- **Full name:** James GUND and Norma Gund, Plaintiffs-Appellees, v. COUNTY OF TRINITY, California, a Local Government Entity and Ron Whitman, Corporal, Defendants-Appellants, and Bruce Haney, Sheriff and Does, 1-40 Inclusive, Defendants
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** December 7, 2015
- **Citations:** 624 F. App'x 519
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Noonan, Wardlaw, Paez
- **Nature of suit:** Civil
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

NOT FOR PUBLICATION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

2
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.

3

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3160480. Public record. Not legal advice.