Desiree Martinez v. City of Clovis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DESIREE MARTINEZ, No. 17-17492

Plaintiff-Appellant,

D.C. No.

v. 1:15-cv-00683-JAM-

MJS

CITY OF CLOVIS; SANGER CITY;

CHANNON HIGH; KYLE OPINION

PENNINGTON; KIM PENNINGTON;

CONNIE PENNINGTON; KRISTINA

HERSHBERGER; JESUS SANTILLAN;

ANGELA YAMBUPAH; RALPH

SALAZAR; FRED SANDERS,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted January 15, 2019

San Francisco, California

Filed December 4, 2019

Before: J. Clifford Wallace and Michelle T. Friedland,

Circuit Judges, and Robert S. Lasnik, * District Judge.

Opinion by Judge Lasnik

*

The Honorable Robert S. Lasnik, United States District Judge for

the Western District of Washington, sitting by designation.

2 MARTINEZ V. CITY OF CLOVIS

SUMMARY **

Civil Rights

The panel affirmed the district court’s summary

judgment in favor of law enforcement officers in an action

brought pursuant to 42 U.S.C. § 1983 and state law by a

victim of domestic abuse who alleged that defendants placed

her at a greater risk of future abuse.

The panel held that the state-created danger doctrine

under the Due Process Clause applies when an officer

reveals a domestic violence complaint made in confidence

to an abuser while simultaneously making disparaging

comments about the victim in a manner that reasonably

emboldens the abuser to continue abusing the victim with

impunity. Similarly, the state-created danger doctrine

applies when an officer praises an abuser in the abuser’s

presence after the abuser has been protected from arrest, in a

manner that communicates to the abuser that the abuser may

continue abusing the victim with impunity. Going forward,

the panel held that the law in this circuit will be clearly

established that such conduct is unconstitutional.

The panel held that the conduct of Officers Hershberger

and Sanders violated plaintiff’s constitutional right to due

process, but that the officers were entitled to qualified

immunity because it was not clear at the time that their

conduct was unconstitutional. The panel held that Officer

Yambupah’s actions left plaintiff in the same position she

would have been in had Yambupah not acted at all, and

**

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

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

MARTINEZ V. CITY OF CLOVIS 3

therefore Yambupah’s failure to protect plaintiff against

private violence thus did not violate the Due Process Clause.

COUNSEL

Kevin G. Little (argued), Law Office of Kevin G. Little,

Fresno, California, for Plaintiff-Appellant.

Diana L. Field (argued), Ferguson, Praet & Sherman, Santa

Ana, California, for Defendants-Appellees Kristina

Hershberger, Angela Yambupah, Fred Sanders, and

Channon High.

John W. Phillips (argued), Patrick J. Gorman, and Kristina

D. Garabedian, Wild, Carter & Tipton, Fresno, California,

for Defendants-Appellees Kim Pennington and Connie

Pennington.

No appearance for Defendants-Appellees City of Clovis,

Sanger City, Kyle Pennington, Jesus Santillan, and Ralph

Salazar.

4 MARTINEZ V. CITY OF CLOVIS

OPINION

LASNIK, District Judge:

Desiree Martinez is a victim of domestic violence. The

issue before us is whether she can recover damages under

42 U.S.C. § 1983 from the law enforcement officers who

allegedly placed her at greater risk of future abuse. In

addition to suing her abuser, Kyle Pennington (a City of

Clovis Police Department officer), she asserts claims under

§ 1983 against the City of Clovis (“Clovis”), the City of

Sanger (“Sanger”), and six police officers, as well as

negligence claims against Pennington’s parents, Connie and

Kim Pennington. She appeals from the district court’s

summary judgment in favor of Officer Kristina Hershberger,

Officer Angela Yambupah, Sergeant Fred Sanders, and Kim

and Connie Pennington. 1

We hold that Hershberger’s and Sanders’s conduct

violated Martinez’s constitutional right to due process. We

also hold that the officers are entitled to qualified immunity

because it was not clear at the time that their conduct was

unconstitutional. We therefore affirm the district court’s

summary judgment.

I. BACKGROUND

Martinez and Pennington started living together in 2013

with Martinez’s daughter, Destiny, in Clovis. Pennington

first physically and sexually abused Martinez in April 2013,

1

Martinez’s appeal from the district court’s summary judgment of

her claim against Kim and Connie Pennington is addressed in a

concurrently filed memorandum disposition.

MARTINEZ V. CITY OF CLOVIS 5

while the two were staying at a hotel in Dublin, California. 2

After that, a pattern of violence ensued. Martinez’s § 1983

claims against Clovis, Sanger, and the individual officers

arise out of two incidents that took place on May 2, 2013,

and June 4, 2013. We address these two incidents in turn.

A. May 2, 2013, Incident

Martinez was at her cousin’s house on the evening of

May 2, 2013. When Pennington arrived at the house, he

became physically abusive. Pretending to leave, Martinez

exited the house and hid outside. After Pennington left, she

dialed 911 and took a taxi to the house where she lived with

Pennington. Hershberger and Jesus Santillan were

dispatched to the home. The officers were onsite when

Martinez arrived.

Pennington walked over to the taxi and warned her not

to say anything to the officers. Martinez told Hershberger

that she did not want to speak to Santillan because he was

Pennington’s friend. Hershberger then spoke with Martinez

outside of Pennington’s immediate presence. According to

Martinez, however, Pennington was still within eye and

earshot.

Hershberger testified that Martinez had told her about

Pennington’s physical abuse in Dublin but did not mention

that Pennington had been physically abusive that evening.

Hershberger tried to probe further, but Martinez asked to go

inside, insisting that she was fine. Martinez gave inconsistent

2

In reviewing the district court’s summary judgment, we adopt

Martinez’s version of the facts. See Animal Legal Def. Fund v. U.S. Food

& Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016) (en banc) (citation

omitted).

6 MARTINEZ V. CITY OF CLOVIS

testimony about whether she told Hershberger that

Pennington had pushed her down the stairs that evening,

ultimately clarifying that she had. She claimed that

Hershberger asked her to “hold on just a second” and moved

away. Pennington stared at Martinez in a manner she

perceived as intimidating, so she walked toward him,

“because [she] didn’t want him to think that [she] was

talking to the officer.”

While Martinez was standing in front of Pennington,

Hershberger returned. She had a tape recorder and asked

Martinez to repeat her statements about what had happened

in Dublin. Martinez testified that “[a]t that point [she] was

scared because [Hershberger] had said Dublin and she had

said it in front of [Pennington], so [Martinez] told her,

‘Nothing, nothing happened.’” Martinez heard Pennington

clear his throat, which she contends he does when he is

angry, and therefore “acted like [she] didn’t know what . . .

she was talking about.” 3

Hershberger had received domestic violence training.

She believed that Martinez faced potential risk if she stayed

with Pennington that night. She was aware that domestic

violence victims “might tend to recant accusations of

violence” out of fear of reprisal.

3

Martinez had been drinking that evening. Hershberger testified that

Martinez was “highly intoxicated.” However, Martinez testified that she

only pretended to be intoxicated because she was afraid of Pennington

and did not want him to know that she had told Hershberger about what

had happened in Dublin.

MARTINEZ V. CITY OF CLOVIS 7

However, she did not arrest Pennington. She did not

advise Martinez of her right to make a citizen’s arrest, 4 her

right to obtain a restraining order, or the possibility of

staying at a shelter. 5 She did not provide Martinez with

Clovis’s pamphlet for victims of domestic violence. She

contends that this was because Martinez did not indicate that

any violence had occurred that evening, and because she was

responding to a “check the welfare” call, not a domestic

violence call. Instead, she recommended that Martinez be

contacted and interviewed again.

Hershberger and Pennington had both worked with the

Clovis Police Department (“Clovis PD”) for about nine

years. Hershberger did not socialize with Pennington and

had only a “neutral” opinion of him. Pennington testified that

after Martinez went back inside the house, Hershberger

spoke with him briefly. As Pennington describes it, she “was

asking me, you know, what I was doing dating a girl like

Desiree Martinez and what was going on, what was going on

4

Section 836(b) of the California Penal Code states that “[a]ny time

a peace officer is called out on a domestic violence call, it shall be

mandatory that the officer make a good faith effort to inform the victim

of his or her right to make a citizen’s arrest . . . This information shall

include advising the victim how to safely execute the arrest.” Cal. Penal

Code § 836(b). Similar provisions are included in Section 320.3.4 of the

Clovis Manual.

5

Section 320.6 of the Clovis Manual lays out suggested methods of

assisting a victim, including “[a]ssist[ing] in arranging to transport the

victim to an alternate shelter if the victim expresses a concern for their

safety, or the officer determines a need exists,” and “[e]xplain[ing] legal

options available to the victim including the private person’s arrest

process, [and] temporary restraining and stay-away orders.” Hershberger

testified that she asked Martinez if there was somewhere else that she

could go, but Martinez insisted on staying and said that she was not

scared.

8 MARTINEZ V. CITY OF CLOVIS

in my life because I was recently divorced and, you know,

that she didn’t think that she was necessarily a good fit for

me.”

That night, Pennington physically abused Martinez. He

called her a “leaky faucet” and asked her what she had told

Hershberger and whether she was trying to get him in

trouble. The next day, Martinez spoke with a detective over

the phone. Pennington had scripted the conversation, and

Martinez denied everything that she had said to Hershberger.

In May 2013, Martinez contacted members of the Clovis

PD again about an incident unrelated to this appeal. To avoid

further investigation by the Clovis PD, Martinez and

Pennington moved to Sanger at the end of the month.

B. June 4, 2013, Incident

On the night of June 3, 2013, Pennington physically and

sexually abused Martinez. Martinez stated that he choked,

beat, suffocated, and sexually assaulted her. Martinez did not

have access to a phone, but one of their neighbors made a

911 domestic violence call. Yambupah and Sanders arrived

at the house with two other officers. When the officers

arrived, both Martinez and Pennington were standing

outside of the house.

Yambupah had received domestic violence training. She

noticed that Martinez had injuries consistent with those of a

victim of physical abuse, including a red cheek, scrapes on

her knees, a manicured fingernail that was broken and

bleeding, a torn shirt, and bruising on her arms. She

photographed Martinez’s injuries. Although Yambupah later

acknowledged that separating Martinez and Pennington was

important because of the possibility of intimidation,

Martinez testified that they were not separated by more than

MARTINEZ V. CITY OF CLOVIS 9

seven feet when she and Yambupah spoke. Martinez,

believing that Pennington was within earshot, whispered to

Yambupah that the injuries had been inflicted by

Pennington, that Pennington had tried to smother her with a

pillow, and that he had attempted to choke her.

Yambupah believed that she had probable cause to arrest

Pennington and determined that he was the dominant

aggressor. 6 She believed that this made Pennington’s arrest

mandatory under California Penal Code § 836(c)(1). 7 She

also believed that as a police officer, Pennington had access

to weapons. Yambupah learned from Martinez that

Pennington was on administrative leave from the Clovis PD

because of a domestic violence incident with an ex-

girlfriend.

Yambupah told Martinez that she was going to make an

arrest, and “huddled” with the other officers. When

Yambupah informed them of Martinez’s allegations and

Pennington’s position with the Clovis PD, Sanders, who was

6

The Sanger Police Department’s Policy Manual (“Sanger

Manual”) states that “[t]he dominant aggressor is the person who has

been determined to be the most significant, rather than the first,

aggressor.” See Cal. Penal Code § 13701(b).

7

It is not clear that the arrest was mandatory. The California Penal

Code establishes the circumstances under which a peace officer may

arrest a suspect for assault or battery upon a cohabitant. See Cal. Penal

Code § 836(d). It also states that an arrest is mandatory under certain

circumstances when a peace officer is responding to a call alleging a

violation of a domestic violence protective or restraining order. See id.

at § 836(c). But there does not appear to have been a protective or

restraining order in place at that time against Pennington. More

guidelines for making an arrest are included in Section 320.9.1 of the

Sanger Manual.

10 MARTINEZ V. CITY OF CLOVIS

acting as a supervisor on the scene, ordered her to refer the

matter to the District Attorney instead of making an arrest. 8

Yambupah testified that had Sanders not given the order, she

would have arrested Pennington on that day “in the interest

of Ms. Martinez’s safety.”

The officers did not give Martinez the jurisdiction’s

domestic violence information handout, 9 did not inform her

of her right to effect a citizen’s arrest, 10 did not offer her

transportation to a shelter, and did not issue an emergency

protective order. 11 Yambupah testified that she did not give

Martinez the handout because she did not want to leave her

side. She “asked Martinez to let [her] help her,” but Martinez

refused. She did not issue a protective order because

Martinez “was not willing to pursue any assistance from

[her] at all.” She foresaw a risk of continued violence, which

8

Sanders was not deposed in this matter; after these events took

place, it came to light that he has dementia. He is now in a treatment

facility.

9

Section 320.5(b) of the Sanger Manual states that officers should

“[p]rovide the victim with the department’s domestic violence

information handout, even if the incident may not rise to the level of a

crime.”

10

Section 320.9.1(b) of the Sanger Manual states that “[a]n officer

responding to a domestic violence call who cannot make an arrest will

advise the victim of his/her right to make a private person’s arrest. The

advisement should be made out of the presence of a suspect and shall

include advising the victim how to safely execute the arrest.”

11

Section 320.5(c) of the Sanger Manual states that “[o]fficers

should . . . [a]lert the victim to any available victim advocates, shelters

and community resources.” Restraining order rights were detailed on the

Sanger Police Department’s (“Sanger PD”) domestic violence

information handout.

MARTINEZ V. CITY OF CLOVIS 11

she attempted, unsuccessfully, to address by verifying that

Pennington was going to leave.

Yambupah did not know that Pennington was an officer

with the Clovis PD until Martinez informed her that he was.

Pennington testified that he knew of Sanders, but that they

were not friends. Pennington’s father, Kim, and Sanders had

known each other for at least 25 years. On leaving, Sanders

said that the Penningtons were “good people.”

After the officers left, Martinez was again beaten and

sexually assaulted by Pennington. He was arrested the next

day, and a criminal protective order was issued.

Martinez continued to live with Pennington after his

arrest on June 5, 2013. He physically and sexually abused

her multiple times between July and September 2013, when

she finally moved out. Pennington was eventually convicted

of multiple counts of violating the criminal protective order.

He also pled guilty to one domestic violence charge.

C. Procedural History

Martinez sued Pennington, the cities of Clovis and

Sanger, Officers Hershberger, Santillan, High, Yambupah

and Salazar, Sergeant Sanders, and Kim and Connie

Pennington. She asserted claims under 42 U.S.C. § 1983 of

municipal liability in denial of substantive due process and

equal protection against Clovis and Sanger, and of individual

12 MARTINEZ V. CITY OF CLOVIS

liability against Hershberger, Santillan, Salazar, 12 High,13

Yambupah, and Sanders. In her claims against the officer

defendants, Martinez contends the officer defendants

violated her right to due process under the state-created

danger doctrine. 14

The cities and officer defendants moved for summary

judgment on August 15, 2017. The district court granted

summary judgment on all claims against the cities of Sanger

and Clovis, as well as Hershberger, Yambupah, and Sanders.

Partial judgment was issued. Martinez timely appealed.

II. STANDARD OF REVIEW

We review de novo a district court’s summary judgment.

See Animal Legal Def. Fund, 836 F.3d at 988 (citation

omitted). In doing so, we view the evidence in the light most

favorable to the nonmoving party. See id. at 989 (citing

Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.

12

In June 2017, the parties agreed to dismiss Martinez’s claims

against Santillan and Salazar.

13

Martinez alleged that High, an officer with the Clovis PD,

contacted Pennington and disclosed the confidential victim reports that

Martinez had made. She was physically and sexually abused by

Pennington as a result of that disclosure. The district court denied High’s

motion for summary judgment on the substantive due process claim,

holding that qualified immunity did not apply. The claims against High

are not before us.

14

Specifically, she alleged that “[w]hile there is no affirmative

constitutional duty to protect a citizen from third party violence, when a

state actor becomes involved and through her intentional actions worsens

the citizen’s situation and creates a danger worse or in addition to those

faced by the citizen, that state actor has violated the citizen’s substantive

due process rights.”

MARTINEZ V. CITY OF CLOVIS 13

2004)). In “qualified immunity cases, this usually means

adopting . . . the plaintiff’s version of the facts.” Scott v.

Harris, 550 U.S. 372, 378 (2007). We also review de novo a

district court’s determination on qualified immunity. See

Robinson v. Prunty, 249 F.3d 862, 865–66 (9th Cir. 2001)

(citing Hamilton v. Endell, 981 F.2d 1062, 1065 (9th Cir.

1992)).

III. QUALIFIED IMMUNITY DOCTRINE

“The doctrine of qualified immunity protects

government officials 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.” Reese v. Cty. of Sacramento, 888 F.3d 1030,

1037 (9th Cir. 2018) (quoting Pearson v. Callahan, 555 U.S.

223, 231 (2009)). In evaluating whether an officer is entitled

to qualified immunity, courts consider (1) whether the facts

that a plaintiff has alleged make out a violation of a

constitutional right, and (2) whether that right was clearly

established at the time of the incident. See Wilkinson v.

Torres, 610 F.3d 546, 550 (9th Cir. 2010) (citing Pearson,

555 U.S. at 223). Qualified immunity applies either where

there was no constitutional violation or where the

constitutional violation was not clearly established. See id.

We have discretion to decide “which of the two prongs of

the qualified immunity analysis should be addressed first in

light of the circumstances in the particular case at hand.”

Pearson, 555 U.S. at 236.

The Supreme Court has “warned against beginning with

the first prong of the qualified-immunity analysis when it

would unnecessarily wade into ‘difficult questions’ of

constitutional interpretation that have no effect on the

outcome of the case.’” Sjurset v. Button, 810 F.3d 609, 615

(9th Cir. 2015) (quoting Pearson, 555 U.S. at 236–37). But

14 MARTINEZ V. CITY OF CLOVIS

the Supreme Court has also recognized that the two-step

qualified immunity procedure “is intended to further the

development of constitutional precedent.” Horton ex rel.

Horton v. City of Santa Maria, 915 F.3d 592, 602 (9th Cir.

2019) (quoting Pearson, 555 U.S. at 237). Even in difficult

cases, our court tends “to address both prongs of qualified

immunity where the ‘two-step procedure promotes the

development of constitutional precedent’ in an area where

this court’s guidance is . . . needed.’” Id. (quoting Mattos v.

Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (en banc)).

Because guidance is necessary to promote the development

of constitutional precedent in this area, we elect to begin

with the first part of the qualified immunity inquiry.

IV. VIOLATION OF MARTINEZ’S

CONSTITUTIONAL RIGHT

The Due Process Clause of the Fourteenth Amendment

provides that “[n]o State shall . . . deprive any person of life,

liberty, or property, without due process of law.” U.S. Const.

amend. XIV, § 1. Because Martinez alleges that the

individual officers deprived her of liberty by affirmatively

placing her at greater risk of abuse, Martinez’s claims are

rooted in the substantive component of the Due Process

Clause. See DeShaney v. Winnebago Cty. Dep’t of Soc.

Servs., 489 U.S. 189, 194–95 (1989).

The Due Process Clause is a limitation on state action

and is not a “guarantee of certain minimal levels of safety

and security.” Id. at 195. Simply failing to prevent acts of a

private party is insufficient to establish liability. See Patel v.

Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011). “The

general rule is that a state is not liable for its omissions” and

the Due Process Clause does not “impose a duty on the state

to protect individuals from third parties.” Id. (alterations

omitted) (first quoting Munger v. City of Glasgow Police

MARTINEZ V. CITY OF CLOVIS 15

Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000), then quoting

Morgan v. Gonzales, 495 F.3d 1084, 1093 (9th Cir. 2007)).

There are two exceptions to this general rule. First, a

special relationship between the plaintiff and the state may

give rise to a constitutional duty to protect. See DeShaney,

489 U.S. at 198–202. 15 Second, the state may be

constitutionally required to protect a plaintiff that it

“affirmatively places . . . in danger by acting with ‘deliberate

indifference’ to a ‘known or obvious danger.’” Patel, 648

F.3d at 971–72 (quoting L.W. v. Grubbs, 92 F.3d 894, 900

(9th Cir. 1996)); see also Kennedy v. City of Ridgefield, 439

F.3d 1055, 1063 (9th Cir. 2006) (holding that the officer

“affirmatively created a danger to [the plaintiff] she

otherwise would not have faced” by informing her assailant

of the accusations her family had made against him before

they “had the opportunity to protect themselves from his

violent response to the news . . . [thus] creat[ing] ‘an

opportunity for [him] to assault [the plaintiff] that otherwise

would not have existed’” (alterations omitted) (quoting L.W.

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

Martinez argues that the state-created danger doctrine

applies because Hershberger, Yambupah, and Sanders

affirmatively exposed her to a greater risk of a known

danger. To succeed on this claim, Martinez must establish

three elements. First, she must show that the officers’

affirmative actions created or exposed her to an actual,

particularized danger that she would not otherwise have

faced. Second, she must show that the injury she suffered

15

Martinez passingly references a special relationship between

herself and the police officers, but does not advance the argument and

did not allege it in her complaint. We therefore only address the state-

created danger exception.

16 MARTINEZ V. CITY OF CLOVIS

was foreseeable. Third, she must show that the officers were

deliberately indifferent to the known danger. See Hernandez

v. City of San Jose, 897 F.3d 1125, 1133 (9th Cir. 2018). We

analyze these elements and the officers’ conduct below.

A. Actual, Particularized Danger

Martinez must first show that the officers affirmatively

exposed her to “an actual, particularized danger.” Id. (citing

Kennedy, 439 F.3d at 1063). We do “not look solely to the

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

have been available to her.” Id. (alterations omitted) (quoting

Munger, 227 F.3d at 1086). Instead, we consider “whether

the officers left the person in a situation that was more

dangerous than the one in which they found” her. Id.

(quoting Munger, 227 F.3d at 1086).

Whether the danger already existed is not dispositive

because, “by its very nature, the doctrine only applies in

situations in which the plaintiff was directly harmed by a

third party—a danger that, in every case, could be said to

have ‘already existed.’” Henry A. v. Willden, 678 F.3d 991,

1002 (9th Cir. 2012) (emphasis in original). The relevant

question is whether “state action creates or exposes an

individual to a danger which he or she would not have

otherwise faced.” Kennedy, 439 F.3d at 1061 (citations and

footnote call number omitted).

1. Officer Hershberger

Martinez argues that Officer Hershberger placed her in

greater danger by failing to inform her of her rights or

options, failing to provide her with the Clovis PD’s handout

for domestic violence victims, and failing to make an arrest.

MARTINEZ V. CITY OF CLOVIS 17

Although these failures may have been a dereliction of

Hershberger’s duties, they were not “an affirmative act [that]

create[d] an actual, particularized danger.” Hernandez, 897

F.3d at 1133 (citing Kennedy, 439 F.3d at 1063). In other

words, Hershberger did not make the situation worse for

Martinez. Hershberger simply left Martinez in the same

position she was in before the police had arrived.

Martinez also maintains that Hershberger failed to

separate her from Pennington, causing her to recant her

allegations of abuse out of fear of Pennington. But this

alleged failure did not expose Martinez to a danger that she

would not otherwise have faced. See Henry A., 678 F.3d at

1003. Failing to affirmatively separate Martinez from

Pennington left her in the same position she would have been

in had Hershberger not responded to the 911 call. At least

under these circumstances, Hershberger did not violate

Martinez’s right to due process.

However, the record also reveals that Hershberger told

Pennington about Martinez’s testimony relating to his prior

abuse, and also stated that Martinez was not “the right girl”

for him. A reasonable jury could find that Hershberger’s

disclosure provoked Pennington, and that her disparaging

comments emboldened Pennington to believe that he could

further abuse Martinez, including by retaliating against her

for her testimony, with impunity. The causal link between

Hershberger’s affirmative conduct and the abuse Martinez

suffered that night is supported by Martinez’s testimony that

Pennington asked Martinez what she had told the officer

while he was hitting her.

That Martinez was already in danger from Pennington

does not obviate a state-created danger when the state actor

enhanced the risks. See Hernandez, 897 F.3d at 1135

(explaining that an officer cannot avoid liability merely

18 MARTINEZ V. CITY OF CLOVIS

because the plaintiff had already been in a dangerous

situation before contact with the officer). Because a

reasonable jury could infer that Martinez was placed in

greater danger after Hershberger disclosed Martinez’s

complaint and made comments to Pennington that conveyed

contempt for Martinez, the first requirement of the state-

created danger doctrine is satisfied.

2. Officer Yambupah

Officer Yambupah failed to separate Martinez from

Pennington when conducting the interview, did not arrest

Pennington despite Martinez’s complaints of abuse, 16 did

not provide Martinez with information that may have

allowed her to escape further abuse, and did not issue an

emergency protective order. These were not “affirmative

acts[s] [that] create[d] an actual, particularized danger.” Id.

at 1133 (citing Kennedy, 439 F.3d at 1063). Martinez was

left in the same position she would have been in had

Yambupah not acted at all. See Henry A., 678 F.3d at 1003.

Yambupah’s failure to protect Martinez against private

violence thus did not violate the Due Process Clause. See

DeShaney, 489 U.S. at 196.

3. Sergeant Sanders

Several of Martinez’s allegations against Sergeant

Sanders mirror those against Yambupah. With respect to

Martinez’s claims that Sanders did not separate her from

Pennington, provide her with information, or issue an

emergency protective order, we conclude that Sanders’s

16

Yambupah failed to arrest Pennington because she was ordered

not to do so by Sanders. This is discussed below as part of Sanders’s

conduct.

MARTINEZ V. CITY OF CLOVIS 19

conduct, like Yambupah’s, does not support a § 1983 claim.

But, in other respects, Sanders’s conduct materially differed

from Yambupah’s.

Knowing that Pennington was an officer with the Clovis

PD, Sanders ordered Yambupah not to arrest Pennington.

This decision, on its own, did not leave Martinez in a more

dangerous situation than the one in which he found her, and

thus was not itself unconstitutional. See Hernandez, 897

F.3d at 1133; see also Town of Castle Rock v. Gonzales, 545

U.S. 748, 768 (2005) (holding that “the benefit that a third

party may receive from having someone else arrested for a

crime generally does not trigger protections under the Due

Process Clause”).

But the record contains evidence of more than just

Sanders’s order not to arrest Pennington. In instructing

Yambupah not to arrest Pennington, which he did in

Pennington’s presence, Sanders also expressed that the

Penningtons were “good people.” 17 Sanders spoke positively

about the Penningtons against the backdrop that everyone

involved, including Sanders, knew that Pennington and his

father were police officers. While hearing Sanders speak

17

While Martinez did not expressly testify that Sanders was the

officer who had said that the Penningtons were “good people,” the

context supports the inference that Martinez’s testimony pertains to

Sanders. Pennington testified that he did not hear the “good people”

comment. However, Martinez testified that Pennington was within

earshot when Sanders ordered Yambupah not to arrest Pennington. She

also characterized the “good people” comment as Sanders’s final

comment before leaving. Viewing the evidence in the light most

favorable to Martinez, a jury could infer that Pennington heard both

Sanders’s order not to arrest and heard Sanders say that the Penningtons

were “good people.”

20 MARTINEZ V. CITY OF CLOVIS

positively about the Penningtons, Martinez also “heard

Sanders telling [Yambupah] that, you know, ‘We’re not

going to arrest him. We’re just going to turn it over to Clovis

PD,’ whatever.” (emphasis added).

Viewing the record in the light most favorable to

Martinez, a jury could reasonably find that Sanders’s

positive remarks about the Penningtons placed Martinez in

greater danger. The positive remarks were communicated

against the backdrop that Sanders knew that Pennington was

an officer and that there was probable cause to arrest 18—

which the jury could infer Pennington, as a police officer,

understood. A reasonable jury could find that Pennington

felt emboldened to continue his abuse with impunity. In fact,

the following day, Pennington abused Martinez yet again.

Under these circumstances, the first requirement of the state-

created danger doctrine is satisfied.

B. Foreseeability

To invoke the state-created danger doctrine, Martinez

must next show that her “ultimate injury” was “foreseeable.”

Hernandez, 897 F.3d at 1133 (citing Lawrence v. United

States, 340 F.3d 952, 957 (9th Cir. 2003)). This does not

mean that the exact injury must be foreseeable. Rather, “the

state actor is liable for creating the foreseeable danger of

injury given the particular circumstances.” Kennedy, 439

F.3d at 1064 n.5.

As a matter of common sense, the assaults Martinez

suffered after the police interventions on May 2, 2013, and

June 4, 2013, were objectively foreseeable. See Hernandez,

18

Again, that there was probable cause to arrest and no arrest was

made is not the basis for the constitutional violation.

MARTINEZ V. CITY OF CLOVIS 21

897 F.3d at 1133 (citing Lawrence, 340 F.3d at 957);

Grubbs, 974 F.2d at 121 (concluding a § 1983 claim was

viable when state employees “knowingly assigned [the

plaintiff] to work with [an inmate] despite their knowledge”

of his history of violence toward women, the likelihood that

she would be left alone with him, and the fact that she would

not be prepared to defend against or avert an attack); Wood

v. Ostrander, 879 F.2d 583, 590 (9th Cir. 1989) (stating “the

inherent danger facing a woman left alone at night in an

unsafe area is a matter of common sense”) (citation omitted).

C. Deliberate Indifference to a Known Danger

Under the state-created danger test, Martinez must

finally show that the officers acted “with ‘deliberate

indifference’ to a ‘known or obvious danger.’” Hernandez,

897 F.3d at 1133 (quoting Patel, 648 F.3d at 974). This 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)). The standard is higher than gross

negligence, because it requires a “culpable mental state.” Id.

(citing Grubbs, 92 F.3d at 898–900).

“The state actor must ‘recognize an unreasonable risk

and actually intend to expose the plaintiff to such risks

without regard to the consequences to the plaintiff.’” Id.

(alterations omitted) (quoting Grubbs, 92 F.3d at 899). In

other words, the state actor must have known that something

was going to happen, but “ignored the risk and exposed the

[plaintiff] to it anyway.” Hernandez, 897 F.3d at 1135

(alterations omitted) (quoting Patel, 648 F.3d at 974).

Given the foreseeability of future domestic abuse here, a

reasonable jury could find that disclosing a report of abuse

while engaging in disparaging small talk with Pennington,

22 MARTINEZ V. CITY OF CLOVIS

and/or positively remarking on his family while ordering

other officers not to make an arrest despite the presence of

probable cause, constitutes deliberate indifference to a

known or obvious danger. See Hernandez, 897 F.3d at 1136.

That Pennington was already under investigation by the

Clovis PD for allegations of abuse against an ex-girlfriend

also suggests that future abuse was a known or obvious

danger. By ignoring the risk created by Pennington’s violent

tendencies, the officers acted with deliberate indifference

toward the risk of future abuse.

We hold that a reasonable jury could find that

Hershberger and Sanders violated Martinez’s due process

right to liberty by affirmatively increasing the known and

obvious danger Martinez faced.

V. CLEARLY ESTABLISHED

CONSTITUTIONAL RIGHT

We next turn to the question whether, at the time of the

challenged conduct, the law was sufficiently well defined

that every reasonable officer in the officers’ shoes would

have known that their conduct violated Martinez’s right to

due process. We conclude it was not. Qualified immunity

therefore applies.

“Qualified immunity balances two important interests––

the need to hold public officials accountable when they

exercise power irresponsibly and the need to shield officials

from harassment, distraction, and liability when they

perform their duties reasonably.” Pearson, 555 U.S. at 231.

“The doctrine of qualified immunity shields officials from

civil liability so long as their conduct ‘does not violate

clearly established . . . constitutional rights of which a

reasonable person would have known.’” Mullenix v. Luna,

136 S. Ct. 305, 308 (2015) (quoting Pearson, 555 U.S. at

MARTINEZ V. CITY OF CLOVIS 23

231). The plaintiff bears the burden of proving that “the right

allegedly violated was clearly established at the time of the

alleged misconduct.” Romero v. Kitsap Cty., 931 F.2d 624,

627 (9th Cir. 1991) (citing Baker v. Racansky, 887 F.2d 183,

186 (9th Cir. 1989)).

“‘[C]learly established law’ should not be defined ‘at a

high level of generality.’” White v. Pauly, 137 S. Ct. 548,

552 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742

(2011)). Rather, it “must be ‘particularized’ to the facts of

the case.” Id. (quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987)). “[A] defendant cannot be said to have violated

a clearly established right unless the right’s contours were

sufficiently definite that any reasonable official in the

defendant’s shoes would have understood that he was

violating it.” Plumhoff v. Rickard, 572 U.S. 765, 778–79

(2014) (citing al-Kidd, 563 U.S. at 741).

There need not be a case directly on point for a right to

be clearly established. See Kisela v. Hughes, 138 S. Ct. 1148,

1152 (2018) (per curiam) (citing White, 137 S. Ct. at 551);

Shafer v. Cty. of Santa Barbara, 868 F.3d 1110, 1118 (9th

Cir. 2017) (“[W]e do not require a case to be ‘on all fours’

. . . .” (quoting Deorle v. Rutherford, 272 F.3d 1272, 1286

(9th Cir. 2001))), cert. denied sub nom. Shafer v. Padilla,

138 S. Ct. 2582 (2018). But existing precedent “must have

placed the statutory or constitutional question beyond

debate.” Shafer, 868 F.3d at 1117 (quoting White, 137 S. Ct.

at 551). In other words, “immunity protects all but the

plainly incompetent or those who knowingly violate the

law.” Id. (quoting White, 137 S. Ct. at 551). To deny

immunity, we must conclude that every reasonable official

would have understood, beyond debate, that the conduct was

a violation of a constitutional right. Id. at 1118 (citing

Mattos, 661 F.3d at 448).

24 MARTINEZ V. CITY OF CLOVIS

We begin by looking to binding precedent from the

Supreme Court or our court. See Tarabochia v. Adkins, 766

F.3d 1115, 1125 (9th Cir. 2014) (citing Boyd v. Benton Cty.,

374 F.3d 773, 781 (9th Cir. 2004)). Without binding

precedent, “we look to whatever decisional law is available

. . . including decisions of state courts, other circuits, and

district courts.” Id. (alterations in original) (quoting Boyd,

374 F. 3d at 781). The precedent must be “‘controlling’—

from the Ninth Circuit or the Supreme Court—or otherwise

be embraced by a ‘consensus’ of courts outside the relevant

jurisdiction.” Sharp v. Cty. of Orange, 871 F.3d 901, 911

(9th Cir. 2017) (quoting Wilson v. Layne, 526 U.S. 603, 617

(1999)).

Martinez and the district court identified a Second

Circuit decision, Okin v. Village of Cornwall-on-Hudson

Police Department, 577 F.3d 415 (2d Cir. 2009), as being

factually similar to this case. There, Michele Okin and Roy

Charles Sears lived together. See id. at 419–20. Sears began

physically abusing Okin in 2001. See id. at 420.

Over the 15-month period of domestic violence, one

incident was most similar to the situation here. On December

23, 2001, Sears relayed to Okin that he had told the village

police chief that he could not “help it sometimes when he

smack[ed] Michelle Okin around.” Id. Okin attempted to call

the police, and Sears started to choke her. See id. She

eventually called 911. See id.

When the police officers arrived, she told them what had

happened and showed them what appeared to be old bruises

on her legs. See id. She also said that Sears had thrown a

bottle at her that day. See id. at 421. She asked them to “tell

[Sears] to stop beating [her].” Id. at 420. One of the officers

testified that he did not arrest Sears despite Okin’s

statements or his observations because there was no recent

MARTINEZ V. CITY OF CLOVIS 25

injury. See id. at 420–21. Okin eventually indicated she

wanted to press charges. See id. at 421. The officers began

to advise her of how to do so when she walked away, joined

Sears, and returned stating that she did not want to press

charges. See id. at 421. Okin testified that the reason she had

walked away was that the officers were “derogatory” toward

her. Id. She also said that, “to the extent that the officers

talked with Sears, it was about football.” Id. A little over a

week later, she called the police again to report that Sears

was beating her. See id.

Okin filed a § 1983 action, alleging that because Sears

witnessed the officers’ dismissive attitude toward the abuse,

the “danger she faced” had “affirmatively increased.” Id. at

426. For example, by discussing sports with her abuser, the

officers “gave official sanction” to the abuse and

“affirmatively contributed to her vulnerability.” Id. at 427.

The Second Circuit concluded that a “reasonable

factfinder undoubtedly could conclude that defendants, by

their affirmative conduct, enhanced the danger to Okin

because they conveyed to Sears that he could continue to

engage in domestic violence with impunity, and that

defendants thus violated Okin’s due process rights.” Id. at

430–31.

Without binding precedent from our court or the

Supreme Court, we may look to decisions from the other

circuits. See Tarabochia, 766 F.3d at 1125 (citing Boyd, 374

F.3d at 781). But we cannot rely on Okin, because it has not

been “embraced by a ‘consensus’ of courts.” Sharp, 871 F.3d

at 911 (quoting Wilson, 526 U.S. at 617). Notably, the

Seventh Circuit has stated that Okin may be “in tension with”

DeShaney and the Supreme Court’s decision in Town of

Castle Rock v. Gonzales, 545 U.S. 748 (2005). Wilson-

Trattner v. Campbell, 863 F.3d 589, 595 (7th Cir. 2017). In

26 MARTINEZ V. CITY OF CLOVIS

light of this muddled legal terrain, we cannot hold that

“every reasonable official would have understood . . .

beyond debate,” that the officers’ conduct here violated

Martinez’s right to due process. Shafer, 868 F.3d at 1118

(alteration in original) (quoting Mattos, 661 F.3d at 448).

Hershberger and Sanders are entitled to qualified

immunity because the due process right conferred in the

context before us was not clearly established. Although the

application of the state-created danger doctrine to this

context was not apparent to every reasonable officer at the

time the conduct occurred, we now establish the contours of

the due process protections afforded victims of domestic

violence in situations like this one. See Thompson v. Rahr,

885 F.3d 582, 590 (9th Cir. 2018). Significantly, “it is the

facts” of this case “that clearly establish what the law is”

going forward. Isayeva v. Sacramento Sheriff’s Dep’t, 872

F.3d 938, 951 (9th Cir. 2017) (citation omitted).

We hold today that the state-created danger doctrine

applies when an officer reveals a domestic violence

complaint made in confidence to an abuser while

simultaneously making disparaging comments about the

victim in a manner that reasonably emboldens the abuser to

continue abusing the victim with impunity. Similarly, we

hold that the state-created danger doctrine applies when an

officer praises an abuser in the abuser’s presence after the

abuser has been protected from arrest, in a manner that

communicates to the abuser that the abuser may continue

abusing the victim with impunity. 19 Going forward, the law

19

Although the failure to arrest does not itself give rise to a state-

created danger, it may, as here, inform the “manner” in which an

officer’s positive remarks “communicates to the abuser that the abuser

may continue abusing the victim with impunity.”

MARTINEZ V. CITY OF CLOVIS 27

in this circuit will be clearly established that such conduct is

unconstitutional.

VI. CONCLUSION

For the foregoing reasons, we AFFIRM the district

court’s summary judgment in favor of Hershberger,

Yambupah, and Sanders.