Juan Hernandez v. City of San Jose

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN HERNANDEZ; NATHAN No. 17-15576

VELASQUEZ; FRANK VELASQUEZ;

MARK DOERING; MARY DOERING; D.C. No.

BARBARA ARIGONI; DUSTIN HAINES- 5:16-cv-03957-

SCRODIN; ANDREW ZAMBETTI; LHK

CHRISTINA WONG; CRAIG PARSONS;

I.P., a minor individual; GREG

HYVER; TODD BROOME; DONOVAN OPINION

ROST; MICHELE WILSON; COLE

CASSADY; THEODORE JONES;

MARTIN MERCADO; CHRISTOPHER

HOLLAND; RACHEL CASEY,

Plaintiffs-Appellees,

v.

CITY OF SAN JOSE, a municipal

corporation; LOYD KINSWORTHY;

LISA GANNON; KEVIN ABRUZZINI;

PAUL MESSIER; PAUL SPAGNOLI;

JOHNSON FONG; JASON TA,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of California

Lucy H. Koh, District Judge, Presiding

2 HERNANDEZ V. CITY OF SAN JOSE

Argued and Submitted April 9, 2018

San Francisco, California

Filed July 27, 2018

Before: Dorothy W. Nelson, Andrew J. Kleinfeld,

and William A. Fletcher, Circuit Judges.

Opinion by Judge D.W. Nelson

SUMMARY*

Civil Rights

The panel affirmed the district court’s denial of qualified

immunity to police officers and dismissed the City of San

Jose’s appeal in a 42 U.S.C. § 1983 action brought by

attendees of a political rally for Donald Trump who were

attacked by anti-Trump protesters as they attempted to leave

the rally.

The panel held that based on the allegations in the

operative complaint, which the panel took as true on a motion

to dismiss, the attendees alleged sufficiently that the officers

increased the danger to them by shepherding them into a

crowd of violent protesters and that the officers acted with

deliberate indifference to that danger. The district court

therefore correctly denied the officers qualified immunity.

As for the attendees’ claim against the City, the panel

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

HERNANDEZ V. CITY OF SAN JOSE 3

declined to exercise jurisdiction over it because it was not

inextricably intertwined with the qualified immunity issue.

COUNSEL

Matthew Pritchard (argued), Deputy City Attorney; Ardell

Johnson, Chief Deputy City Attorney; Nora Frimann,

Assistant City Attorney; Richard Doyle, City Attorney;

Office of the City Attorney, San Jose, California; for

Defendant-Appellants.

Harmeet K. Dhillon (argued), Dhillon & Smith LLP, San

Francisco, California, for Plaintiff-Appellees.

OPINION

D.W. NELSON, Senior Circuit Judge:

The City of San Jose (“City”) and seven of its police

officers (“Officers”) (collectively, “City Defendants”) appeal

the district court’s denial of their Motion to Dismiss

(“Motion”) in favor of several individuals who attended a

rally in 2016 for then-Presidential candidate Donald J. Trump

(“Attendees”).1 The City Defendants contend the court erred

1

The “Officers” are Loyd Kinsworthy, Lisa Gannon, Kevin

Abruzzini, Paul Messier, Paul Spagnoli, Johnson Fong, and Jason Ta. The

“Attendees” are Juan Hernandez, Nathan Velasquez, Frank Velasquez,

Rachel Casey, Mark Doering, Mary Doering, Barbara Arigoni, Dustin

Haines-Scrodin, Andrew Zambetti, Christina Wong, Craig Parsons, I.P.,

a minor, Greg Hyver, Todd Broome, Martin Mercado, Christopher

Holland, Theodore Jones, Donovan Rost, Michele Wilson, and Cole

Cassady.

4 HERNANDEZ V. CITY OF SAN JOSE

when it (1) denied the Officers qualified immunity, and

(2) held the Attendees had stated a claim for municipal

liability under 42 U.S.C. § 1983 against the City. Taking the

allegations in the operative complaint as true, and reading

them in the light most favorable to the Attendees, we find the

Officers violated clearly established rights and are not

entitled to qualified immunity at this stage of the proceedings.

We also find the City’s liability is not inextricably

intertwined with the Officers’ liability, and we therefore lack

jurisdiction over the City’s appeal. We affirm the district

court’s denial of qualified immunity to the Officers and

dismiss the City’s appeal.

BACKGROUND

I. The First Amended Complaint

On June 2, 2016, Trump held a political rally (“Rally”) at

the McEnery Convention Center (“Convention Center”) in

San Jose, California. The San Jose Police Department

(“Police Department”), along with the U.S. Secret Service,

expected between 12,000 and 15,000 people to attend, and the

event was to run from 7:00 p.m. to 8:30 p.m.

The Police Department was aware that Trump rallies in

other cities had “spurred violent anti-Trump protests,” and it

took several steps to prepare for the Rally. Among other

things, the City “requested between [50] and [70] additional

officers” through “designated mutual aid . . . channels to staff

the Rally,” accepted “additional officers and vehicle support”

from other police departments in the area, and fitted many of

the officers with riot gear. About 250 officers patrolled the

Rally on June 2, 2016.

HERNANDEZ V. CITY OF SAN JOSE 5

According to the First Amended Complaint (“FAC”), the

City “normal[ly] [implements a] ‘zero tolerance’ approach to

violent protesters[] by making targeted arrests during the

protests.” But here, the City took an “entirely different”

approach: “the City Defendants instructed all officers to stand

by, watch as the attacks occurred, and not intervene” because

“intervention might cause a riot.” The Attendees claim the

Officers looked on as they were “battered by several anti-

Trump protesters, including, in some instances, being struck

in the head and face, kicked in the back, spat upon, and

otherwise harassed and assaulted.”

Significant to this appeal, the Attendees allege the

Officers “[d]irect[ed] [them] into the [m]ob of [v]iolent

[p]rotesters” waiting outside the Convention Center. As part

of their crowd-control plan, the Officers only allowed the

Attendees to “leave from the east-northeast exit of the . . .

Convention Center” and “actively prevented [them] from

leaving through alternative exits.” “Upon exiting the

[C]onvention [C]enter, the [A]ttendees were met with a

police skirmish line, composed of and/or controlled by the

[Officers].” “The [O]fficers in this line required the

[Attendees] to turn north as they left the [C]onvention

[C]enter, and to proceed along Market Street, into the crowd

of violent anti-Trump protesters.” The Officers “actively

prevented the . . . [A]ttendees from proceeding south . . . ,

away from the anti-Trump protesters, or from leaving the

[C]onvention through alternative exits.” The Officers

“instructed other police officers” to direct the Attendees in

the same manner. Many of the Attendees “were beaten,

victimized by theft, and/or had objects such as bottles and

eggs thrown at them” as a result.

6 HERNANDEZ V. CITY OF SAN JOSE

Two Attendees—Hernandez and Haines-Scrodin—claim

that San Jose police “directed [them] to walk through the anti-

Trump protesters, rather than . . . allow[ing] [them] to turn

south, in the direction of safety.” “Soon after following

the[se] directions . . . , [they] were struck repeatedly in their

faces and heads by anti-Trump protester, Victor Gasca.”

“Several other anti-Trump protesters also battered Hernandez

and Haines-Scrodin, while Gasca kept up his assault.” As a

result, “Hernandez suffered a broken nose [and several]

abrasions,” and “Haines-Scrodin . . . suffered [various] bodily

injuries.”

Another Attendee, I.P., claims he experienced similar

violence due to the City Defendants’ poorly conceived

crowd-control plan. Just like Hernandez and Haines-Scrodin,

he “exited the east-northeast exit of the . . . Convention

Center, where a line of police officers prevented [him] from

turning right, to safety” and instead “directed [him] to turn

left, into the anti-Trump protesters.” “I.P. was struck in the

back of his head” by one protester and “tackled . . . to the

ground” by another.” “After being attacked, I.P. made his

way [back] to [the] police skirmish line, and was only later

allowed to cross the line to safety.”

According to the Attendees, the Officers were clearly

aware of the violence outside the Convention Center. “In

fact, as early as [6 p.m.] the day of the Rally, the San Jose

police warned all officers deployed around [the] Rally that

assaults had already been reported outside the [Convention

Center].” During the Rally, the Officers witnessed the

violence firsthand, or were at least informed of it, but they did

nothing.

HERNANDEZ V. CITY OF SAN JOSE 7

San Jose Police officers on the scene “arrested only three

individuals” during the Rally, “each of whom allegedly

assaulted and/or battered police officers.” They made “no

arrests at the Rally in connection with the dozens of similar

criminal acts committed against [the Attendees].”

After the Rally, San Jose Police Chief Edgardo Garcia

(“Chief Garcia”) “publicly commend[ed] the [police]

officers’ actions” and “lauded [them for showing]

‘discipline.’” Chief Garcia further stated “‘additional force

can incite more violence in the crowd’” and that the officers

at the Rally “‘should be commended for both their

effectiveness and their restraint.’” Chief Garcia did not

discipline the Officers for their conduct during the Rally.

Based on these allegations, the Attendees brought a class

action against the City Defendants alleging, among other

things, a § 1983 due process claim against the Officers and a

§ 1983 due process claim against the City under Monell v.

Department of Social Services of City of New York, 436 U.S.

658 (1978).

II. The District Court’s Order Denying Qualified

Immunity

The City Defendants argued in their Motion to Dismiss

that (1) the Officers were entitled to qualified immunity and

(2) the City was not liable for the Officers’ actions pursuant

to Monell. The district court denied the Motion on both

counts. Hernandez v. City of San Jose, 241 F. Supp. 3d 959,

976, 980 (N.D. Cal. 2017).

8 HERNANDEZ V. CITY OF SAN JOSE

A. Qualified Immunity

In denying the Officers qualified immunity, the court first

found the Attendees had sufficiently stated their § 1983

claims against the Officers. Id. at 973–75. The court

considered two potential theories of liability. See id.

The first concerned whether the Officers were liable for

“devis[ing]” the allegedly ineffective crowd-control plan. Id.

at 973. Because the Attendees “[failed to] allege[] that those

who created the crowd-control [plan] knew that [leading the

Attendees on] the designated path would increase the danger

to [them],” the Officers were not liable for their planning

efforts before the Rally began. Id. at 973–74.

The Attendees’ second theory under § 1983 concerned the

Officers’ actions on the night of the Rally—“despite knowing

that violence had already broken out and was likely to

continue, . . . the police officers continued to direct the Rally

attendees into the mob, den[ied] [them] the ability to exit

through alternative paths, and refuse[d] to direct the officers

under their control to do so.” Id. at 974 (citation and internal

quotation marks omitted). The district court concluded that

the Officers knew as early as 6 p.m. that evening that anti-

Trump protesters had attacked people at the Rally. See id.

Because the Officers “were present at or around the Trump

Rally,” they were clearly “aware that the crowd-control plan

was putting [the Attendees] in danger.” Id. The court held

that the Attendees had “stated a claim against the police

officers for continuing to direct [the Attendees] into a

dangerous area after the police officers became aware that the

crowd-control plan was subjecting [them] to an increased risk

of harm by anti-Trump protesters.” Id. at 975.

HERNANDEZ V. CITY OF SAN JOSE 9

Next, the court considered whether the Attendees’ rights

were clearly established at the time of the Rally such that the

Officers should have known their conduct was

unconstitutional. See id. at 975–76. The court noted that the

theory on which the Attendees based their claims—that the

Officers had created the danger and acted with deliberate

indifference to their safety—was established in the Ninth

Circuit “over ten years ago” in Kennedy v. City of Ridgefield,

439 F.3d 1055 (9th Cir. 2006). Hernandez, 241 F. Supp. 3d

at 975–76. The court also found that Johnson v. City of

Seattle, 474 F.3d 634 (9th Cir. 2007) “made clear that the

state-created danger doctrine applies to the conduct at issue

in this case” and that the Attendees’ rights were clearly

established. Hernandez, 241 F. Supp. 3d at 976 (citation

omitted). Accordingly, the court denied the Officers qualified

immunity. Id.

B. Monell Liability

The district court also found the Attendees had stated a

claim against the City under Monell for ratifying the

unconstitutional conduct of its Officers. Id. at 980.

According to the FAC, “Chief Garcia ratified the [Officers’]

unconstitutional acts by publicly declaring his support for

those actions and by failing to reprimand [them] for their

conduct.” Id. at 977 (citation and internal quotation marks

omitted). Because “Garcia allegedly made ‘statements . . .

tending to show that [he] endorsed or approved the

unconstitutional conduct of individual officers,’” the

Attendees had in turn “plausibly allege[d] that the police

officers’ actions constituted municipal policy.” Id. at 979

(quoting Dorger v. City of Napa, No.12-cv-440 YGR,

2012 WL 3791447, at *5 (N.D. Cal. Aug. 31, 2012)). The

court also held it was “likely” that Chief Garcia had

10 HERNANDEZ V. CITY OF SAN JOSE

“policymaking authority” over police matters and that his

failure to reprimand his officers also constituted ratification

of their illegal acts. Id. (citation omitted). The court

therefore “[denied] the City Defendants’ [M]otion to Dismiss

the § 1983 claim against the City to the extent that the claim

[was] based on [Chief] Garcia’s alleged ratification of the

police officers’ actions after the Trump Rally.” Id. at 980.

This appeal followed.

STANDARD OF REVIEW

“[The Court] review[s] de novo a district court’s denial of

a motion to dismiss on the basis of qualified immunity.”

Padilla v. Yoo, 678 F.3d 748, 757 (9th Cir. 2012) (citing

Dunn v. Castro, 621 F.3d 1196, 1198 (9th Cir. 2010)). “[The

Court] accept[s] as true all well-pleaded allegations of

material fact, and construe[s] them in the light most favorable

to the non-moving party.” Id. (citation omitted). “[F]or a

complaint to survive a motion to dismiss, the non-conclusory

‘factual content,’ and reasonable inferences from that content,

must be plausibly suggestive of a claim entitling the plaintiff

to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th

Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)).

DISCUSSION

At the outset, we must determine the issues over which

we have proper jurisdiction. “In general, [the Court] ha[s]

jurisdiction to hear appeals only from ‘final decisions.’”

Pauluk v. Savage, 836 F.3d 1117, 1120 (9th Cir. 2016) (citing

28 U.S.C. § 1291 and Johnson v. Jones, 515 U.S. 304, 309

(1995)). In Mitchell v. Forsyth, 472 U.S. 511 (1985), the

HERNANDEZ V. CITY OF SAN JOSE 11

Supreme Court created a “narrow” exception to this general

rule when a district court denies a motion to dismiss based on

qualified immunity. Penilla v. City of Huntington Park,

115 F.3d 707, 709 (9th Cir. 1997) (per curiam). “[A] district

court’s denial of a claim of qualified immunity, to the extent

that it turns on an issue of law, is an appealable ‘final

decision’ within the meaning of [§ 1291] notwithstanding the

absence of a final judgment.” Mitchell, 472 U.S. at 530. The

Court “may [also] exercise ‘pendent’ appellate jurisdiction

over an otherwise nonappealable ruling if the ruling is

‘inextricably intertwined’ with a claim properly before [the

Court] on interlocutory appeal.” Kwai Fun Wong v. United

States, 373 F.3d 952, 960 (9th Cir. 2004) (citations omitted).

Here, the City Defendants contend the district court erred

when it (1) denied the Officers qualified immunity and

(2) found the City liable under § 1983 for the Officers’

actions. These are the only issues before the Court, and the

district court’s order has not been challenged otherwise. We

clearly have jurisdiction over the first issue because it

“rais[es] the ‘purely legal’ question of whether the facts

alleged by the plaintiff demonstrate a violation of clearly

established law.” Pauluk, 836 F.3d at 1120 (citing Johnson,

515 U.S. at 313, 319–20)); see also Penilla, 115 F.3d at 709

(citation omitted). As will be explained more fully in this

opinion, however, we lack jurisdiction to review the second

issue because it is not “inextricably intertwined” with the

first. Kwai Fun Wong, 373 F.3d at 960 (citations and internal

quotation marks omitted). We address each issue in turn

below.

12 HERNANDEZ V. CITY OF SAN JOSE

I. Qualified Immunity

“Qualified immunity protects government officers ‘from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Maxwell v.

Cty. of San Diego, 708 F.3d 1075, 1082 (9th Cir. 2013)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982));

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation

omitted). “To determine whether an officer is entitled to

qualified immunity, [the Court] ask[s], in the order [it]

choose[s], (1) whether the alleged misconduct violated a

[constitutional] right and (2) whether the right was clearly

established at the time of the alleged misconduct.” Maxwell,

708 F.3d at 1082 (citing Pearson, 555 U.S. at 232). When

this test is properly applied, it protects “all but the plainly

incompetent or those who knowingly violate the law.”

Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (citation and

internal quotation marks omitted).

According to the Rally Attendees, the Officers violated

their due process rights by exposing them to the danger of an

unruly mob. Because the Officers placed them in danger,

which resulted in their injuries, and their rights were clearly

established at the time of the Rally, the Attendees contend we

should deny the Officers qualified immunity. We agree.

A. Violation of a Constitutional Right

“As a general rule, members of the public have no

constitutional right to sue [public] employees who fail to

protect them against harm inflicted by third parties.” L.W. v.

Grubbs (Grubbs I), 974 F.2d 119, 121 (9th Cir. 1992) (citing

DeShaney v. Winnebago Cty., Dep’t of Soc. Servs., 489 U.S.

HERNANDEZ V. CITY OF SAN JOSE 13

189, 197 (1989)). An exception to the rule applies when

government employees “affirmatively place[] the plaintiff in

a position of danger, that is, where [their] action[s] create[] or

expose[] an individual to a danger which he or she would not

have otherwise faced.” Kennedy, 439 F.3d at 1061 (citing

DeShaney, 489 U.S. at 197) (internal quotation marks

omitted). The affirmative act must create an actual,

particularized danger, id. at 1063, and the ultimate injury to

the plaintiffs must be foreseeable, Lawrence v. United States,

340 F.3d 952, 957 (9th Cir. 2003). The employees must have

also acted with “deliberate indifference” to a “known or

obvious danger.” Patel v. Kent Sch. Dist., 648 F.3d 965, 974

(9th Cir. 2011) (citation and internal quotation marks

omitted).

1. Affirmative Acts

“In examining whether an officer affirmatively places an

individual in danger, [the Court] do[es] not look solely to the

agency of the individual . . . [or] what options may or may not

have been available to [her].” Munger v. City of Glasgow

Police Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000). “Instead,

[the Court] examine[s] whether the officers left the person in

a situation that was more dangerous than the one in which

they found him.” Id.; see also Kennedy, 439 F.3d at 1064 n.5

(recognizing relevant inquiry is whether state action “le[ft]

[the plaintiff] in a situation more dangerous than the one she

already faced” (emphasis added)).

The Attendees have sufficiently alleged that the Officers’

affirmative acts increased the danger they faced at the Rally.

According to the FAC, the Officers (1) “actively prevented

the [A]ttendees from leaving [safely] through alternative

exits,” (2) “directed [the Rally Attendees] to leave from [a

14 HERNANDEZ V. CITY OF SAN JOSE

single] exit,” and (3) “required [the Attendees] to turn north

. . . into the crowd of violent anti-Trump protesters.” The

danger that the anti-Trump protesters would hurt them was

both “actual” and “particularized,” Kennedy, 439 F.3d at

1063, as well as “foreseeable,” Lawrence, 340 F.3d at

957—according to the FAC, the Officers “witnessed” the

violence against the Attendees during the Rally, and there

were reports from as early as 6 p.m. that evening that anti-

Trump protesters had attacked people at the Rally. Taking

these facts as true, as we must on a motion to dismiss, the

Attendees have sufficiently alleged that the Officers placed

them “in a more dangerous position” than the one in which

they found themselves. Penilla, 115 F.3d at 710.

This Court has found similar affirmative acts sufficient to

state a claim under the state-created danger doctrine. In

Munger, for example, the officers “affirmatively ejected [the

decedent] from a bar late at night [into] sub[-]freezing

[temperature]” and “prevented [him] from driving his truck

or reentering [the bar].” 227 F.3d at 1087. That the cold

would eventually kill him was certainly foreseeable as he was

“wearing only a t-shirt and jeans [and] was intoxicated.” Id.

The Court ultimately held it was “indisputable . . . that the

officers placed Munger in a more dangerous position than the

one in which they found him.” Id. (citation internal quotation

marks omitted).

In Wood v. Ostrander, the Court denied qualified

immunity to an officer because the plaintiff had presented

“genuine issues of material fact” on whether he had violated

her due process rights. 879 F.2d 583, 590 (9th Cir. 1989)

(citations omitted). Most of the factual disputes concerned

the exact danger she faced and whether the defendant officer

had knowledge of that danger. See id. But the affirmative

HERNANDEZ V. CITY OF SAN JOSE 15

acts of the defendant were undisputed: he had (1) “arrested

[the driver],” (2) “impounded [the driver’s] car,” and

(3) “stranded [the plaintiff] in a high-crime area at 2:30 a.m.”

Id. These actions, according to the Court, “trigger[ed] a duty

of the police to afford [the plaintiff] some measure of peace

and safety.” Id. (citations omitted). The Court further

observed the danger to the plaintiff was foreseeable—“the

inherent danger facing a woman left alone at night in an

unsafe area [was] a matter of common sense.” Id.

In Kennedy, the Court found the defendant-officer had

“affirmatively created a danger” when he “drove to the Burns

residence and notified the Burns family of the [plaintiff’s]

allegations [of molestation] against [the Burns’s son,]

Michael.” 439 F.3d at 1063. The officer was aware Michael

was dangerous, and he had promised to warn the plaintiff

before taking any action against Michael, but ultimately

failed to do so. See id. Michael later shot and killed the

plaintiff’s husband and severely wounded the plaintiff. Id. at

1057, 1063. Under these circumstances, the Court found the

defendant officer “affirmatively created an actual,

particularized danger [the plaintiff] would not otherwise have

faced” and that the danger was “foreseeable.” Id. at 1063,

1064 n.5.

Finally, in Penilla, the Court found the defendant officers

violated the plaintiff’s due process rights under the state-

created danger doctrine. 115 F.3d at 711. The plaintiff there

“became seriously ill,” and his “neighbors and a passerby

called 911 for emergency medical services.” Id. at 708. The

defendant officers “arrived first,” but rather than helping the

plaintiff, they “cancelled the request for paramedics, broke

the lock and door jamb on the front door of [his] residence,

moved him inside the house, locked the door, and left”—all

16 HERNANDEZ V. CITY OF SAN JOSE

while knowing he was “in grave need of medical care.” Id.

Based on these allegations, the Court concluded “[t]he

officers . . . took affirmative actions that significantly

increased the risk facing [the plaintiff].” Id. at 710.

Just as in Wood, Penilla, Munger, and Kennedy, on the

facts alleged, the Officers’ affirmative acts created a danger

the Rally Attendees otherwise would not have faced. Being

attacked by anti-Trump protesters was only a possibility when

the Attendees arrived at the Rally. The Officers greatly

increased that risk of violence when they shepherded and

directed the Attendees towards the unruly mob waiting

outside the Convention Center.

But the Officers contend “[t]he relevant inquiry under the

state-created danger doctrine is not whether police decision

‘X’ exposed a plaintiff to more danger than hypothetical

police decision ‘Y.’” It is “whether the involvement of police

at all exposed the plaintiff to a danger that he would not have

faced in the complete absence of that involvement.” The

Officers seize on the following language in DeShaney, where

the Supreme Court held that county officials were not liable

for the injuries a child sustained at the hands of his abusive

father: “That the State once took temporary custody of Joshua

does not alter the analysis, for when it returned him to his

father’s custody, it placed him in no worse position than that

in which he would have been had it not acted at all.”

489 U.S. at 201. Regardless of what they did or did not do,

the Officers argue the “danger [to the Attendees] was already

present by virtue of the heated speech activity taking place

throughout the entire area of the [R]ally venue.”

Accordingly, the Officers could not have been the cause of

the Attendees’ injuries.

HERNANDEZ V. CITY OF SAN JOSE 17

The argument proves too much. If the Officers could

avoid liability because the Rally was already dangerous and

the Attendees were bound to be hurt, so too could the officer

in Wood on grounds that the plaintiff was traveling through

a high-crime area, the officers in Penilla because the plaintiff

was already severely ill, and the officer in Kennedy on

grounds that the plaintiff’s neighbor was known to be

unstable and violent. Under the Officers’ theory, liability

would only attach when an official does “more than simply

expose the plaintiff to a danger that already existed.” Henry

A. v. Willden, 678 F.3d 991, 1002 (9th Cir. 2012) (citation

and internal quotation marks omitted). But that “is not the

law of this circuit” and “would render the state-created

danger doctrine meaningless.” Id. Indeed, interpreting

DeShaney, this Court has held the “critical distinction” for

finding liability is not “between danger creation and

enhancement, but . . . between state action and inaction in

placing an individual at risk.” Penilla, 115 F.3d at 710. It is

with this focus that we ask whether “the affirmative actions

of [the] official create[d] or expose[d] an individual to a

danger which he or she would not have otherwise faced.”

Willden, 678 F.3d at 1002–03 (emphasis in original removed)

(citation and internal quotation marks omitted). While

acknowledging the potential for danger at the Rally, the

Attendees allege here they would have made it “to safety”

had the Officers not affirmatively directed them into the

crowd of protesters. Accordingly, they have alleged

sufficiently this prong of their state-created danger claim.

See Willden, 678 F.3d at 1002–03 (citation and internal

quotation marks omitted); Munger, 227 F.3d at 1086 (relevant

inquiry is “whether the officers left the person in a situation

that was more dangerous than the one in which they found

him”); Kennedy, 439 F.3d at 1064 n.5 (relevant inquiry is

18 HERNANDEZ V. CITY OF SAN JOSE

whether state action “le[ft] [the plaintiff] in a situation more

dangerous than the one she already faced”).

2. Deliberate Indifference

“Deliberate indifference is ‘a stringent standard of fault,

requiring proof that a municipal actor disregarded a known or

obvious consequence of his action.’” Patel, 648 F.3d at 974

(quoting Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997)). It

“requires a culpable mental state,” and the “standard [the

Court] appl[ies] is even higher than gross negligence.” Id.

(citing L.W. v. Grubbs (Grubbs II), 92 F.3d 894, 898–90 (9th

Cir. 1996)). To claim deliberate indifference, the Attendees

must allege facts demonstrating the Officers “recognize[d]

[an] unreasonable risk and actually intend[ed] to expose [the

Attendees] to such risks without regard to the consequences

to [the Attendees].” Id. (quoting Grubbs II, 92 F.3d at 899).

“In other words, the [Officers] [must] [have] ‘known that

something [was] going to happen but ignor[ed] the risk and

expose[d] [the Attendees] to it [anyway].’” Id. (quoting

Grubbs II, 92 F.3d at 900).

In Wood, for example, the Court held a jury could find the

defendant Officer exhibited deliberate indifference if, among

other things, he had “knowledge of the danger” to the

plaintiff—if he knew that “the area where [the plaintiff] was

stranded had the highest violent crime rate in the county

outside the City of Tacoma.” 879 F.2d at 590. He would

have also shown deliberate indifference if he failed to make

“any inquiry at all as to [the plaintiff’s] ability to get safely

home” or “ignored her request for help.” Id.

In Kennedy, the defendant officer “knew that Michael was

violent.” 439 F.3d at 1064. The plaintiff “told [the officer]

HERNANDEZ V. CITY OF SAN JOSE 19

in detail of Michael[’s] violent tendencies, including [that he

had] li[t] a cat on fire and assault[ed] his girlfriend with a

baseball bat after breaking into her house.” Id. Indeed, the

plaintiff “testified that . . . she left several messages with the

police department . . . in which she expressed continued fear

for her family’s safety and refreshed her concern that she be

given notice before the Burns family was notified in the

course of the [criminal] investigation.” Id. Under these

circumstances, the Court found the officer “acted deliberately

and indifferently to the danger he was creating” when he

notified Michael of the allegations against him without first

warning the plaintiff. Id. at 1065.

In Munger, the officers ejected the decedent into sub-

freezing temperatures even though “they knew [he] was

wearing only a t-shirt and jeans [and] was intoxicated.”

227 F.3d at 1087. “[T]he fact that the officers went looking

for [the decedent] (or so claim), [further] demonstrate[d] . . .

they were aware of the danger he was in.” Id. Such

indifference, coupled with the officers’ affirmative acts,

increased the danger to the decedent, and the Court therefore

denied the officers qualified immunity. See id.

The Court reached the opposite conclusion in Patel.

648 F.3d at 976. There, a mother brought suit against her

daughter’s teacher for failing to supervise her daughter when

she went to the bathroom. See id. at 969. The lack of

supervision, according to the mother, led to “several sexual

encounters with another developmentally disabled student.”

Id. at 968. The Court found no deliberate indifference, in

part, because while the teacher “knew . . . [the plaintiff’s

daughter] required extensive supervision and had been

involved in past bathroom incidents,” the “details of [those

incidents] were unknown to [her],” and she was not otherwise

20 HERNANDEZ V. CITY OF SAN JOSE

aware of “any immediate danger in allowing [the student] to

briefly use the next-door bathroom alone.” Id. at 975–76.

Accordingly, the Court found “no rational factfinder could

conclude that [the teacher] acted with deliberate indifference

to [the student’s] safety and well-being.” Id. at 976.

Like the officers in Wood, Munger, and Kennedy, the

Officers here were aware of the danger to the plaintiffs—they

knew the anti-Trump protesters posed an immediate threat to

the Attendees. According to the FAC, “as early as [6 p.m.]

the day of the Rally, the San Jose police warned all officers

deployed around [the] Rally that assaults had already been

reported outside the [Convention Center].” And throughout

the Rally, the Officers “witnessed the many violent criminal

acts perpetrated by dozens of anti-Trump protesters” and yet

continued to “direct[] [the Attendees] into the mob.” The

allegations here, if true, demonstrate the Officers “act[ed]

with deliberate indifference to a known [and] obvious

danger.” Patel, 648 F.3d at 971–72 (citation and internal

quotation marks omitted).

Indeed, the Officers’ actions are in some ways even more

culpable than those of the officer in Kennedy. The Court

there found the officer was deliberately indifferent because he

was aware of Michael’s past acts of violence—that he “had

. . . beaten [his girlfriend] with a baseball bat” and had once

“li[t] a cat on fire.” Kennedy, 439 F.3d at 1064. Here, the

Officers were not only aware that Trump rallies had drawn

violent crowds in the past but had also received reports of

violence on the day of the Rally and witnessed the violence

firsthand during the Rally. Their actions therefore are

distinguishable from those of the teacher in Patel who, unlike

the Officers here, “did not know there was any immediate

HERNANDEZ V. CITY OF SAN JOSE 21

danger in allowing [the student] to . . . use the . . . bathroom

alone.” 648 F.3d at 976.

Taking the allegations in the FAC as true, the Attendees

have adequately claimed a due process violation pursuant to

the state-created danger doctrine. They have asserted

sufficiently that the Officers (1) “affirmatively place[d]

[them] in danger,” and (2) “act[ed] with deliberate

indifference to [a] known or obvious danger in subjecting

[them] to [that danger].” Kennedy, 439 F.3d at 1062

(citations and internal quotation marks omitted).

B. Clearly Established Law

“To be clearly established, a right must be sufficiently

clear that every reasonable official would have understood

that what he is doing violates that right.” Hamby v.

Hammond, 821 F.3d 1085, 1090–91 (9th Cir. 2016) (quoting

Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (per curiam)).

The Attendees “must point to prior case law that articulates

a constitutional rule specific enough to alert these [Officers]

in this case that their particular conduct was unlawful.”

Sharp v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017).

“This is not to say that an official action is protected by

qualified immunity unless the very action in question has

previously been held unlawful . . . but it is to say that in the

light of pre-existing law, the unlawfulness must be apparent.”

Hardwick v. Cty. of Orange, 844 F.3d 1112, 1117 (9th Cir.

2017) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).

The Attendees first point to Wood and Kennedy to argue

their rights were clearly established at the time of the Rally.

We disagree. At best, these cases merely define the contours

of the state-created danger doctrine and stand for the “broad

22 HERNANDEZ V. CITY OF SAN JOSE

general proposition” that an officer may not, through her

affirmative acts, place a person in danger and act with

deliberate indifference to that danger. Keates v. Koile,

883 F.3d 1228, 1239 (9th Cir. 2018) (citing Mullenix v. Luna,

136 S. Ct. 305, 308 (2015) (per curiam)) (internal quotation

marks omitted). While the principles from those cases

certainly apply, neither case is remotely “[]similar on its

facts” to the case at hand. Sharp, 871 F.3d at 911; see also

Kramer v. Cullinan, 878 F.3d 1156, 1164 (9th Cir. 2018)

(finding law was not clearly established because “the

language in the Letter is not similar to phrasing that [the

Court has] found to be stigmatizing” (emphasis added)).

Neither Wood nor Kennedy involved officers who

implemented a crowd-control plan at a rally—Wood involved

an officer who abandoned the plaintiff in a high-crime area,

and Kennedy concerned an officer who stoked the violent

tendencies of a dangerous neighbor. See Wood, 879 F.2d at

589–90; Kennedy, 439 F.3d at 1063. “Whatever the merits of

the decision[s] in [Wood and Kennedy], the differences [in the

facts of those] case[s] and [this] case . . . leap from the page.”

Kisela v. Hughes, 138 S. Ct. 1148, 1154 (2018) (per curiam)

(citation and internal quotation marks omitted). Without

more, Wood and Kennedy did not place these Officers on

notice that their actions were unlawful “in light of the specific

context of [this] case.” Keates, 883 F.3d at 1239 (quoting

Mullenix, 136 S. Ct. at 308).

But the Attendees have also cited Johnson, a case that

clearly establishes the state-created danger doctrine applies to

the crowd-control context. See 474 F.3d at 640–41. There,

the plaintiffs alleged the defendant-officers were “liable for

enhancing their danger [at a Mardi Gras celebration] . . . by

abandoning the operational plan for crowd control . . .

call[ing] for . . . aggressive law enforcement, and, instead,

HERNANDEZ V. CITY OF SAN JOSE 23

implementing a more passive plan of staying on the perimeter

of the crowd.” Id. at 638. Although we ultimately held the

plaintiffs failed to establish a constitutional violation, we did

so because of the “absence in [the] case of any affirmative

conduct by the [officers] that increased the risk of harm to

[those at the Mardi Gras celebration].” Id. at 640. Had the

officers in Johnson engaged in affirmative conduct akin to

directing someone involuntarily into dangerous conditions (as

the Officers did here), they would have been liable under the

state-created danger doctrine. Id. (citing Munger, 227 F.3d

at 1084). The officers would have also been liable if they had

“confine[d] the . . . [p]laintiffs to a place where [the

plaintiffs] would be exposed to a risk of harm by private

persons”—e.g., at the center of an unruly mob of protesters.

Id. “The reasoning, though not the holding, [of Johnson] . . . .

gave fair warning to [the Officers] that their conduct crossed

the line of what is constitutionally permissible.” Hope,

536 U.S. at 743 (citation omitted); see also id. at 739 (finding

relevant inquiry was whether “in the light of pre-existing law,

the unlawfulness [of the conduct is] apparent,” not whether

“the very action in question has previously been held

unlawful” (citations and internal quotation marks omitted)).

“[T]he violative nature of [the Officers’] particular conduct

[was therefore] clearly established” at the time of the Rally.

Hamby, 821 F.3d at 1091 (quoting Mullenix, 136 S. Ct. at

308).

Based on the allegations in the FAC, which we take as

true at this stage of the proceedings, we also find that this is

“one of those rare cases” in which the constitutional violation

“is so ‘obvious’ that we must conclude . . . qualified

immunity is inapplicable, even without a case directly on

point.” A.D. v. Cal. Highway Patrol, 712 F.3d 446, 455 (9th

Cir. 2013) (quoting Hope, 536 U.S. at 740–41); see also

24 HERNANDEZ V. CITY OF SAN JOSE

Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam)

(“[I]n an obvious case, [highly generalized standards] can

clearly establish [a constitutional violation], even without a

body of relevant case law.” (citation and internal quotation

marks omitted)).2 Here, the Attendees allege the Officers

shepherded them into a violent crowd of protesters and

actively prevented them from reaching safety. The Officers

continued to implement this plan even while witnessing the

violence firsthand, and even though they knew the mob had

attacked Trump supporters at the Convention Center earlier

that evening, and that similar, violent encounters had

occurred in other cities. Viewed in the light most favorable

to the Attendees, these allegations establish “with obvious

clarity” that the Officers increased the danger to the

Attendees and acted with deliberate indifference to that

danger, pursuant to the state-created danger doctrine. United

States v. Lanier, 520 U.S. 259, 271 (1997) (citation and

internal quotation marks omitted).

We therefore hold “that the operative complaint alleges

facts that allow us ‘to draw the reasonable inference that the

[Officers are] liable for the misconduct alleged,’” Keates,

883 F.3d at 1240 (quoting Iqbal, 556 U.S. at 678), and that

the district court properly denied the Officers qualified

immunity at this stage of the proceedings. This, of course,

“does not mean that th[e] case must go to trial,” id. at 1240

2

“[S]ome things are so obviously unlawful that they don’t require

detailed explanation and sometimes the most obviously unlawful things

happen so rarely that a case on point is itself an unusual thing. Indeed, it

would be remarkable if the most obviously unconstitutional conduct

should be the most immune from liability only because it is so flagrantly

unlawful that few dare its attempt.” Sharp, 871 F.3d at 911 n.7 (quoting

Browder v. City of Albuquerque, 787 F.3d 1076, 1082–83 (10th Cir. 2015)

(Gorsuch, J.)).

HERNANDEZ V. CITY OF SAN JOSE 25

(citation and internal quotation marks omitted), or that the

Officers are now precluded from ever asserting a claim for

qualified immunity in this litigation. As we have noted time

and again, “[o]nce an evidentiary record has been developed

through discovery, [the Officers] will be free to move for

summary judgment based on qualified immunity.” Id.

(citation and internal quotation marks omitted); see also

Skoog v. Cty. of Clackamas, 469 F.3d 1221, 1233 (9th Cir.

2006) (noting qualified immunity is “normally . . . resolved

on summary judgment” (quoting Crawford-El v. Britton,

523 U.S. 574, 590 (1998) (citation omitted))).

II. Monell Liability

The City claims the district court also erred when it

concluded the Attendees had stated sufficiently a § 1983

claim against the City under Monell. According to the FAC,

Chief Garcia “expressly ratified” the allegedly

unconstitutional acts of his officers when he “publicly . . . .

lauded [their] ‘discipline and restraint,’ and [further]

supported the officers’ passive refusal to break-up nearby

scuffles.” “Garcia [also] took no disciplinary actions against

the officers in response to [their allegedly] [un]constitutional

[conduct].” The district court held that “Garcia’s statements

after the Trump Rally praising the actions of [the] police

officers” and his “failure to reprimand [them]” were

“sufficient to state a claim that the [City] ratified [their]

actions” in violation of § 1983. Hernandez, 241 F. Supp. 3d

at 980. Because we lack jurisdiction to review the merits of

the Attendees’ claims against the City, we dismiss the City’s

appeal.

“A municipality is not entitled to assert the defense of

qualified immunity.” Huskey v. City of San Jose, 204 F.3d

26 HERNANDEZ V. CITY OF SAN JOSE

893, 902 (9th Cir. 2000) (citing Owen v. City of Indep.,

445 U.S. 622, 638 (1980)). “Thus the rule announced [by the

Supreme Court] that individual defendants can appeal from

the denial of a motion [to dismiss] to obtain review of the

merits of their qualified immunity defense does not

[ordinarily] empower a federal court to consider the denial of

a municipality’s [similar] motion . . . in a § 1983 action.” Id.

(citing Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 38

(1995)); see also Pelletier v. Fed. Home Loan Bank of S.F.,

968 F.2d 865, 870 (9th Cir. 1992) (citing Mitchell, 472 U.S.

at 527) (permitting interlocutory appeal of qualified immunity

issue at motion-to-dismiss stage).

A court may nonetheless exercise “pendent jurisdiction”

over the claims against the municipality if they are

“‘inextricably intertwined’” with the qualified immunity

issue. Puente Ariz. v. Arpaio, 821 F.3d 1098, 1109 (9th Cir.

2016) (quoting Swint, 514 U.S. at 51)); see also Huskey,

204 F.3d at 906. The Court “interpret[s] the ‘inextricably

intertwined’ standard narrowly” and applies it in “extremely

limited” circumstances. Puente Ariz., 821 F.3d at 1109

(citations omitted). “The standard is only satisfied where the

issues are (a) . . . so intertwined that [the Court] must decide

the pendent issue in order to review the claims properly raised

on interlocutory appeal, or (b) resolution of the issue properly

raised on interlocutory appeal necessarily resolves the

pendent issue.” Id. (citation and internal quotation marks

omitted).

Neither prong is satisfied here. First, we need not decide

“the pendent issue”—whether the Attendees have stated a

§ 1983 claim against the City premised on their ratification

theory—in order to decide the issue “properly raised on

interlocutory appeal”—whether the Officers are entitled to

HERNANDEZ V. CITY OF SAN JOSE 27

qualified immunity. Id. (citation and internal quotation marks

omitted). Whether the allegations concerning Chief Garcia’s

public statements and his failure to discipline his officers are

sufficient to constitute ratification is an issue that is not

necessary for deciding whether the Officers violated the

Attendees’ due process rights on the night of the Rally by

directing them towards violent protesters.

Recognizing this, the City proceeds only under the second

prong of the test, arguing “resolution of the issue properly

raised [on] appeal necessarily resolves the pendent issue.”

According to the City, “a negative answer to the question

whether the employee violated the Constitution will always

necessarily resolve the pendent issue of whether the

municipality was liable for the violation.” While this might

be true in some cases, see, e.g., Huskey, 204 F.3d at 906, the

principle is inapplicable here because we have held the

Officers violated the Attendees’ due process rights, based on

the allegations in the FAC. That may mean that the

City—through Chief Garcia’s ratification of his officers’

conduct—is also liable under § 1983, but it does not

“necessarily resolve[]” the issue one way or another. Id. at

905–06 (quoting Moore v. City of Wynnewood, 57 F.3d 924,

930 (10th Cir. 1995) (stating qualified immunity and

ratification were “different issues”)).3 The City’s liability

will turn on whether Chief Garcia “took . . . steps to

reprimand or discharge the [Officers], or . . . failed to admit

[their] conduct was in error.” McRorie v. Shimoda, 795 F.2d

780, 784 (9th Cir. 1986). The Officers’ liability, as discussed

3

For the City to be liable under this theory, it is certainly necessary

for the Officers to have violated constitutional rights. But just because the

Officers engaged in unconstitutional conduct does not necessarily resolve

whether Chief Garcia ratified such conduct.

28 HERNANDEZ V. CITY OF SAN JOSE

at length above, will turn on whether they increased the

danger to the Attendees and acted with deliberate indifference

to that danger. Because we must apply “different legal

standards” to whether Chief Garcia actually ratified the

Officers’ conduct and to whether that conduct was

unconstitutional, the two issues are not “inextricably

intertwined,” and the City’s appeal is not subject to pendent

jurisdiction. Puente Ariz., 821 F.3d at 1109 (citation and

internal quotation marks omitted). We therefore “dismiss

[the City’s] appeal for lack of jurisdiction.” Id. at 1110.

CONCLUSION

Based on the allegations in the operative complaint,

which we take as true on a motion to dismiss, the Attendees

have alleged sufficiently that the Officers increased the

danger to them by shepherding them into a crowd of violent

protesters and that the Officers acted with deliberate

indifference to that danger. The district court therefore

correctly denied the Officers qualified immunity. As for the

Attendees’ claim against the City, we decline to exercise

jurisdiction over it because it is not inextricably intertwined

with the qualified immunity issue.

AFFIRMED in part, and DISMISSED in part. Costs

are to be taxed against Defendants-Appellants.