Donnitta Sinclair v. City of Seattle

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONNITTA SINCLAIR, mother of No. 21-35975

deceased Horace Lorenzo Anderson,

Jr., individually, D.C. No. 2:21-cv-

00571-JCC

Plaintiff-Appellant,

v. OPINION

CITY OF SEATTLE, a Municipality,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, District Judge, Presiding

Argued and Submitted October 17, 2022

Seattle, Washington

Filed March 1, 2023

Before: Richard C. Tallman, Ryan D. Nelson, and Danielle

J. Forrest, Circuit Judges.

Opinion by Judge R. Nelson;

Concurrence by Judge R. Nelson

2 SINCLAIR V. CITY OF SEATTLE

SUMMARY *

Civil Rights

The panel affirmed the district court’s dismissal for

failure to state a claim of an action brought against the City

of Seattle pursuant to 42 U.S.C. § 1983 by Donnitta Sinclair,

whose nineteen-year-old son was shot to death in 2020 in the

Capitol Hill Occupied Protest (“CHOP”) zone, an area that

the Seattle Police Department and the Mayor of Seattle had

surrendered to protestors.

Sinclair alleged that the City’s actions and failures to act

regarding CHOP created a foreseeable danger for her son,

that the City was deliberately indifferent to that danger, and

that as a result, the City was liable for violating her

Fourteenth Amendment substantive due process right to the

companionship of her adult son.

The panel stated that, unlike almost every other circuit,

this circuit recognized Sinclair’s substantive due process

right to the companionship of her adult son. And Sinclair

properly alleged that the City acted with deliberate

indifference to the danger it helped create, which caused her

son’s death. It was self-evident that the Seattle Police

Department’s wholesale abandonment of its East Precinct

building, combined with Mayor Durkan’s promotion of

CHOP’s supposedly festival-like atmosphere, would create

a toxic brew of criminality that would endanger City

residents. But the danger to which the City contributed was

*

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

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

SINCLAIR V. CITY OF SEATTLE 3

not particularized to Sinclair or her son, or differentiated

from the generalized dangers posed by crime, as this circuit’s

precedent required. Because the City’s actions were not

directed toward Sinclair’s son and did not otherwise expose

him to a specific risk, the connection between Sinclair’s

alleged injuries and the City’s affirmative actions was too

remote to support a § 1983 claim.

Concurring, Judge R. Nelson stated that this circuit has

created a split with other circuits by recognizing a

substantive due process right to the companionship of one’s

adult children. In establishing the right on which Sinclair’s

claim depended, this circuit’s precedent failed to engage in

the proper analysis required by Washington v. Glucksberg,

521 U.S. 702 (1997). Had this circuit done so, it should have

reached the conclusion that sister circuits already

have: There is no constitutional right to recover for the loss

of Sinclair’s companionship with her adult son. Judge R.

Nelson stated that this circuit should correct its prior

erroneous precedent en banc.

COUNSEL

Philip A. Talmadge (argued) and Aaron P. Orheim,

Talmadge/Fitzpatrick, Seattle, Washington; Mark Lindquist,

Mark Lindquist Law, Tacoma, Washington; for Plaintiff-

Appellant.

Kerala Cowart (argued) and Jessica Lynn Zornes Leiser,

Assistant City Attorneys; Ann Davison, Seattle City

Attorney; Seattle City Attorney’s Office; Seattle,

Washington; for Defendant-Appellee.

4 SINCLAIR V. CITY OF SEATTLE

OPINION

R. NELSON, Circuit Judge:

During the George Floyd protests in the summer of 2020,

the Seattle Police Department and the Mayor of Seattle took

the unprecedented step of surrendering an entire precinct and

a large area of the surrounding neighborhood to protestors

for a month, who declared it the Capitol Hill Occupied

Protest (“CHOP”). Top City of Seattle (“City”) officials,

including members of the City Council, were in their thrall,

supporting and encouraging CHOP, with the mayor calling

it a reprise of “the summer of love,” despite growing

evidence of its lawlessness and danger—and a mounting

body count. Donnitta Sinclair, the mother of a nineteen-

year-old son with special needs who was shot to death within

CHOP, brought this action to recover damages for her loss

of companionship with her son.

We are sympathetic to Sinclair’s effort to hold the City

accountable for the death of her son. Unlike almost every

other circuit, we recognize her substantive due process right

to the companionship of her adult son. And Sinclair alleges

that the City acted with deliberate indifference to the danger

it helped create, which caused her son’s death. But the

danger to which the City contributed was not particularized

to Sinclair or her son, or differentiated from the generalized

dangers posed by crime, as our precedent requires. We

therefore affirm the district court’s dismissal of Sinclair’s

suit for failure to state a claim for relief under 42 U.S.C.

§ 1983.

SINCLAIR V. CITY OF SEATTLE 5

I

In the summer of 2020, Seattle residents joined

nationwide protests following George Floyd’s murder in

Minneapolis. Sinclair’s allegations 1 against the City are

astounding. On June 8, 2020, as confrontations escalated

between protestors and police officers, the City withdrew all

police officers from the Seattle Police Department’s East

Precinct building, which served the Capitol Hill

neighborhood. Protesters used barricades left behind by the

Seattle Police Department (“SPD”) to block traffic and

“seized a roughly sixteen-block area of Capitol Hill,

including Cal Anderson Park.” They declared it to be

autonomous from City governance, calling it the CHOP

zone.

Sinclair alleges that CHOP participants were seen

carrying guns at all hours and that violence, vandalism of

homes and businesses, open drug use, and other crimes

proliferated in the now lawless area. According to Sinclair,

the City did not have an effective plan to provide police

protection or emergency services in the CHOP zone, but

instead it provided occupiers with portable toilets, lighting,

and other support, including modifying emergency response

protocols of SPD and the Seattle Fire Department (“SFD”).

On June 11, 2020, SPD Chief Carmen Best allegedly

admitted that “response times for crimes in progress were

over 15 minutes, about three times as long as the average.”

That same day, in an interview with CNN, Mayor Jenny

1

“When reviewing the dismissal of a complaint for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6), we take all factual

allegations set forth in the complaint as true, construed in the light most

favorable the plaintiff.” San Carlos Apache Tribe v. Becerra, 53 F.4th

1236, 1239 n.2 (9th Cir. 2022).

6 SINCLAIR V. CITY OF SEATTLE

Durkan labeled CHOP a “block party” and characterized the

events as a “summer of love.” Councilmember Kshama

Sawant also publicly described CHOP as a “peaceful”

occupation even after it became violent.

Sinclair is the mother of Horace Lorenzo Anderson, Jr.,

a nineteen-year-old with special needs. On or about June 20,

Anderson visited CHOP and encountered Marcel Long. The

two had a history of antagonism. According to Sinclair,

Long believed CHOP was a “no-cop” zone, and he was

carrying a gun. After speaking with each other, Long pulled

out the gun. Anderson then walked away while Long was

briefly held back by others. According to Sinclair, Long

broke away and caught up to Anderson, shooting him at least

four times.

CHOP participants carried Anderson to a “medical tent”

they had erected in an outdoor area just outside of Cal

Anderson Park. Anderson apparently had a pulse when they

laid him down on a table. SFD allegedly had an ambulance

staged just a block and a half from Anderson’s location. A

man implored the paramedics to help Anderson, but the

medics were apparently waiting for a green light from SPD;

meanwhile, SPD was confused about the paramedics’

location. The miscommunication caused a response delay of

around 20 minutes before first responders finally arrived to

treat Anderson.

By the time police and fire officials entered the area,

CHOP participants had transported Anderson to nearby

Harborview Medical Center in a pick-up truck where he was

pronounced dead at 2:53 a.m.

Before the establishment of CHOP, there had been no

homicides in the area for six months, and there were only

three homicides in the entire Capitol Hill area in 2019. By

SINCLAIR V. CITY OF SEATTLE 7

contrast, there were allegedly several shootings, one other

homicide, and numerous other crimes, including robberies

and sexual assaults, in just nine days in CHOP.

On July 1, Mayor Durkan finally issued an executive

order to restore official control over CHOP, including

retaking the SPD East Precinct. In reestablishing law and

order, there was no significant violence or serious resistance

offered by occupants.

After burying her son, Sinclair brought a single 42

U.S.C. § 1983 claim in her individual capacity as the mother

of the decedent, seeking to hold the City liable for violating

her Fourteenth Amendment substantive due process right to

the companionship of her adult son. 2 Sinclair alleges that

the City’s actions and failures to act regarding CHOP created

a foreseeable danger for her son and that the City was

deliberately indifferent to that danger.

The City moved to dismiss the amended complaint for

failure to state a claim. A magistrate judge recommended

dismissal, over Sinclair’s objection. The district court

adopted the magistrate judge’s recommendation and

dismissed the case with prejudice. Sinclair now appeals.

II

We review de novo the district court’s decision to grant

a motion to dismiss under Rule 12(b)(6) for failure to state a

claim. Ballinger v. City of Oakland, 24 F.4th 1287, 1292

(9th Cir. 2022). We take all allegations of fact as true and

construe them in the light most favorable to the nonmoving

2

Sinclair is not suing on behalf of her deceased son as personal

representative of his estate. Her son’s estate’s claims against the City

were settled in a separate action.

8 SINCLAIR V. CITY OF SEATTLE

party. See id. Conclusory allegations cannot defeat a

motion to dismiss. See Pirani v. Slack Techs., Inc., 13 F.4th

940, 946 (9th Cir. 2021). Dismissal is appropriate if the

complaint fails to state a cognizable legal theory or fails to

provide sufficient facts to support a claim. Shroyer v. New

Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir.

2010).

The district court had federal question jurisdiction over

Sinclair’s § 1983 claim against the City pursuant to 28

U.S.C. § 1331. We have jurisdiction over Sinclair’s timely

appeal of the district court’s final order under 28 U.S.C.

§ 1291.

III

A

The Civil Rights Act codified in 42 U.S.C. § 1983

provides a cause of action against state officials who deprive

a plaintiff of her federal constitutional rights. Sinclair

alleges that the City violated her Fourteenth Amendment

substantive due process right to companionship with her son

by creating an actual and particularized danger to him and

by acting with deliberate indifference towards saving his

life.

The Due Process Clause 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.

For more than a century, the Supreme Court has recognized

parental constitutional rights to the care, custody, and control

of minor children. See, e.g., Meyer v. Nebraska, 262 U.S.

390, 399 (1923) (describing the right to “establish a home

and bring up children” as among the “privileges long

recognized at common law as essential to the orderly pursuit

SINCLAIR V. CITY OF SEATTLE 9

of happiness by free men”); Troxel v. Granville, 530 U.S. 57,

65–66 (2000) (plurality opinion); Lassiter v. Dep’t of Soc.

Servs. of Durham Cnty., 452 U.S. 18, 27 (1981); see also

Roberts v. U.S. Jaycees, 468 U.S. 609, 617–19 (1984). In

our circuit, we have understood these cases to have

recognized “a ‘fundamental liberty interest’ in ‘the

companionship and society of [one’s] child’ for which ‘[t]he

state’s interference with that liberty interest without due

process of law is remediable under [42 U.S.C. §] 1983.’”

Lee v. City of Los Angeles, 250 F.3d 668, 685 (9th Cir.

2001) (quoting Kelson v. City of Springfield, 767 F.2d 651,

654–55 (9th Cir. 1985), overruled on other grounds by

Daniels v. Williams, 474 U.S. 327 (1986)).

But the Supreme Court has not decided whether parental

rights to the companionship of a child retains its

constitutional dimension after the child reaches the age of

majority; its cases all concerned minor children. Of the

circuits who have expressly considered the question, only

the Tenth Circuit has held that the right extends to adult

children. Compare Valdivieso Ortiz v. Burgos, 807 F.2d 6,

8–9 (1st Cir. 1986), McCurdy v. Dodd, 352 F.3d 820, 829

(3d Cir. 2003), Russ v. Watts, 414 F.3d 783, 791 (7th Cir.

2005), overruling Bell v. City of Milwaukee, 746 F.2d 1205

(7th Cir. 1984), Robertson v. Hecksel, 420 F.3d 1254, 1259–

60 (11th Cir. 2005), and Butera v. District of Columbia, 235

F.3d 637, 656 (D.C. Cir. 2001), with Trujillo v. Bd. of Cnty.

Comm’rs of Santa Fe Cnty., 768 F.2d 1186, 1188–89 (10th

Cir. 1985) (recognizing a constitutionally protected liberty

interest in relationship with adult son). But even the Tenth

Circuit relied mainly on the First Amendment right to

intimate association, not the Fourteenth Amendment, to

define the scope of that right. See id. at 1190 nn. 6–7; cf.

Robertson, 420 F.3d at 1258 n.3 (“The Tenth Circuit has

10 SINCLAIR V. CITY OF SEATTLE

recognized a parent’s constitutionally protected liberty

interest in companionship with her adult son, but did so

under the First Amendment’s right of intimate association,

which contains ‘an intrinsic element of personal liberty.’”).

And the Tenth Circuit declined to find a deprivation of the

right where the state action was not intentionally directed

toward the associational right. See Trujillo, 768 F.2d at 1190

n.7; see also Russ, 414 F.3d at 787.

That makes us an outlier. Although we have never

expressly expounded on the question, we have recognized

implicitly that parents maintain a constitutionally protected

liberty interest in the companionship of their adult children.

And our case law has assumed that the right may be violated

even when the relationship is not the target of state action.

For example, in Porter v. Osborn, plaintiffs brought a

Fourteenth Amendment claim after their adult son was

fatally shot in an encounter with Alaska State Troopers. 546

F.3d 1131, 1132 (9th Cir. 2008). We simply cited the broad

principle that a parent has a constitutionally protected liberty

interest in the companionship of his or her child and

scrutinized the scope of the right no further. Id. at 1136. We

also did not question plaintiffs’ asserted rights in Strandberg

v. City of Helena, 791 F.2d 744, 748 n.1 (9th Cir. 1986), and

Moreland v. Las Vegas Metropolitan Police Department,

159 F.3d 365, 371 (9th Cir. 1998).

Whether those prior panels adopted the rule sub-silentio,

or overlooked it by mistake, we cannot say. But by now it is

settled in our case law, and we are bound by our precedent.

Given the similarities between the facts in Porter and

Sinclair’s claim, at least in our circuit, Sinclair possesses a

constitutional right to the companionship of her adult son on

which her claim depends. We thus turn to the question

SINCLAIR V. CITY OF SEATTLE 11

whether Sinclair has alleged that the City’s actions with

respect to CHOP violated her substantive due process rights.

B

Although Sinclair brings this action to vindicate an

alleged deprivation of her own right, see Kelson, 767 F.2d at

654 n.2, her theory of liability is a derivative of her son’s

underlying right: She alleges that the City violated her right

to the companionship of her son by violating his right to be

free from state-created danger. Generally, “members of the

public have no constitutional right to sue state [actors] 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 Cnty. Dep’t of Soc. Servs.,

489 U.S. 189, 197 (1989)). One exception to that rule is the

state-created danger doctrine, id., under which “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.” Martinez v. City

of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019) (cleaned up).

To succeed on a state-created danger claim, a plaintiff

must establish that (1) a state actor’s affirmative actions

created or exposed him to “an actual, particularized danger

[that he] would not otherwise have faced,” (2) that the injury

he suffered was foreseeable, and (3) that the state actor was

deliberately indifferent to the known danger. Hernandez v.

City of San Jose, 897 F.3d 1125, 1133–34 (9th Cir. 2018)

(quoting Kennedy v. City of Ridgefield, 439 F.3d 1055, 1063

(9th Cir. 2006)).

The City challenges the first and third elements only. It

does not contest that its actions resulted from municipal

12 SINCLAIR V. CITY OF SEATTLE

policy. 3 Given the roles of the chief of police, the mayor,

and the city councilwoman, the facts alleged strongly

establish the municipal policy that underlies the City’s

allegedly tortious behavior establishing this element of the

lawsuit under the Civil Rights Act. Sinclair properly alleges

that the City acted with deliberate indifference. Sinclair

fails, however, to allege that the City created a danger that

was both actual and particularized to her or her son.

1

“[O]nly official conduct that ‘shocks the conscience’ is

cognizable as a due process violation.” Porter, 546 F.3d at

1137. On the record alleged here, where the official conduct

follows an opportunity for actual deliberation, that standard

is met by a showing that the defendant acted with deliberate

indifference. Id. (citing Cnty. of Sacramento v. Lewis, 523

U.S. 833, 851 (1998)). Thus, to make out a successful claim

under the state created danger doctrine, a plaintiff must

allege facts sufficient to establish that the defendant acted

“with ‘deliberate indifference’ to a ‘known or obvious

3

To prevail on a municipal liability claim, a plaintiff must show that the

city “had a deliberate policy, custom, or practice that was the ‘moving

force’ behind the constitutional violation he suffered.” Galen v. Cnty. of

Los Angeles, 477 F.3d 652, 667 (9th Cir. 2007) (quoting Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 694 (1978)). “To meet this causation

requirement, the plaintiff must establish both causation-in-fact and

proximate causation.” Harper v. City of Los Angeles, 533 F.3d 1010,

1026 (9th Cir. 2008). “The requisite causal connection can be

established not only by some kind of direct personal participation in the

deprivation, but also by setting in motion a series of acts by others which

the [government] actor knows or reasonably should know would cause

others to inflict the constitutional injury.” Lacey v. Maricopa Cnty., 693

F.3d 896, 915 (9th Cir. 2012) (quoting Johnson v. Duffy, 588 F.2d 740,

743–44 (9th Cir. 1978)).

SINCLAIR V. CITY OF SEATTLE 13

danger.’” Hernandez, 897 F.3d at 1133 (quoting Patel v.

Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011)). This is

a “stringent standard of fault.” Id. at 1135. The defendant

“must ‘recognize[] the unreasonable risk and actually

intend[] to expose the plaintiff to such risks without regard

to the consequences to the plaintiff.’” Herrera v. L.A.

Unified Sch. Dist., 18 F.4th 1156, 1158 (9th Cir. 2021)

(alterations in original) (quoting L.W. v. Grubbs, 92 F.3d

894, 899 (9th Cir. 1996)). “Ultimately, a state actor needs to

know that something is going to happen but ignore the risk

and expose the plaintiff to it.” Id. at 1158–59 (cleaned up).

Sinclair’s allegations support the strong inference that

the City acted with deliberate indifference toward the

dangers of permitting and encouraging establishment of the

CHOP zone. It is self-evident that the SPD’s wholesale

abandonment of its East Precinct, combined with Mayor

Durkan’s promotion of CHOP’s supposedly festival-like

atmosphere, would create a toxic brew of criminality that

would endanger City residents. In particular, Sinclair’s

allegations that “City Council Member Kshama Sawant

publicly and recklessly framed CHOP as a ‘peaceful’

occupation even after it became violent,” and that Police

Chief Carmen Best wondered aloud after a second homicide

in CHOP “why we could continue to allow this to happen,”

all support the inference that City officials knowingly

exposed the public to a danger against which the officials did

almost nothing to protect against. Freedom to assemble and

to speak are constitutionally protected; violence is not.

The district court was correct, however, in holding that

Sinclair’s allegations about the City’s response after

Anderson had been shot do not show deliberate indifference.

Sinclair does not dispute that medics tried to provide

Anderson care and that the City did not prohibit them from

14 SINCLAIR V. CITY OF SEATTLE

doing so. And she agrees that their delayed response

stemmed from a miscommunication about whether they

were approved to enter the CHOP zone. Indeed, SFD had

even positioned an ambulance a block and a half away from

the CHOP medical tent where Anderson was carried. Had

the City been deliberately indifferent to Anderson’s

particular plight, they would have ignored CHOP

participants’ pleas for help altogether. They did no such

thing.

In sum, Sinclair has properly alleged that the City was

deliberately indifferent to the dangers of CHOP, but not

deliberately indifferent in its response to Anderson’s ensuing

injuries or in the provision of medical care to him.

2

For a plaintiff to prevail on a state-created danger claim,

the government must “affirmatively create[] an actual,

particularized danger [that the plaintiff] would not otherwise

have faced.” Kennedy, 439 F.3d at 1063. Sinclair’s

allegations support a conclusion that the City created an

actual danger, but not a particularized one.

a

Accepting Sinclair’s allegations as true, Sinclair shows

that the City affirmatively created the actual danger

Anderson—and by extension Sinclair—faced. Most

relevant, Sinclair alleges that the City (1) left behind barriers

the CHOP occupiers used to block streets off from general

traffic and emergency responders; (2) provided portable

toilets, lighting, and other support to the occupiers that

allowed the lawless violence to persist; and (3) lured visitors

to CHOP with promises of safety and a block-party

atmosphere. Construing these allegations in the light most

SINCLAIR V. CITY OF SEATTLE 15

favorable to Sinclair, it is plausible that these actions,

combined with the City’s withdrawal of law enforcement

from CHOP, incubated a more lawless and violent

environment compared to the status quo. Sinclair argues that

“[h]ad the City not provided barricades and other material

support to CHOP . . . . people like [Anderson]’s murderer

would not have been emboldened to undertake in criminal

activity.” Her allegations, if proven, support that conclusion.

The City responds that this case is similar to Johnson v.

City of Seattle, 474 F.3d 634 (9th Cir. 2007), in which we

held the City did not create a danger. In Johnson, in response

to growing violence at a Mardi Gras festival, the City of

Seattle altered its crowd control plan for riot officers

monitoring the event from one focused on confronting

problematic behavior to one in which officers would remain

on the periphery of the crowd. Id. at 637. The assistant

police chief in charge ordered the change because he

“determined that ordering police officers to enter into the

crowd, or any attempts by the police to disperse it would

incite greater panic and violence, making the situation

worse.” Id. Members of the crowd who were then assaulted

by rogue revelers brought a § 1983 action against the City.

Id. We held that the City had not engaged in affirmative

conduct that “enhanced the dangers the . . . [p]laintiffs

exposed themselves to by participating in the Mardi Gras

celebration.” Id. at 641. The City’s decision to switch its

tactical plan “did not place [the plaintiffs] in any worse

position than they would have been in had the police not

come up with any operational plan whatsoever.” Id.

Here, Sinclair alleges more than the sort of police

withdrawal to alleviate escalating violence that we

considered in Johnson. She alleges the City affirmatively

provided traffic barriers, lighting, and toilets to encourage

16 SINCLAIR V. CITY OF SEATTLE

the occupation, and portrayed CHOP as a fun, peaceful, cop-

free protest, which further incited lawlessness in the area but

nonetheless attracted Anderson to CHOP. Sinclair also

alleges that the City support for CHOP extended for about a

month after it became clear that the City’s policies were

fostering greater unchecked violence. The City’s actions

were thus deliberate and not passive or neutral as in Johnson.

Sinclair’s allegations against the City go further and support

the inference that the City’s actions increased the level of

danger CHOP posed to Anderson above the counterfactual

baseline level of danger that would have existed without its

intervention: It was the City’s creation of an opportunity for

uncontrolled lawlessness, not just the City’s failure to

intervene, that endangered Anderson’s, and by extension

Sinclair’s, rights.

b

While Sinclair adequately alleges that the City created,

or at least significantly contributed to, the danger her son

faced, she fails to allege that the danger was sufficiently

particularized to support a § 1983 claim.

A “particular” danger is a danger “of, relating to, or

being a single person or thing.” Particular, Merriam-

Webster’s Collegiate Dictionary (11th ed. 2003). A

“particularized” danger, naturally, contrasts with a general

one. But any danger the City created or contributed to by

enabling the CHOP zone affected all CHOP visitors equally;

the danger was not specifically directed at Sinclair or

Anderson. That is, the dangers that Anderson faced as a

result of the City ignoring the lawlessness and crime

occurring in CHOP were the same as anyone else; the City

did not create a danger that posed a specific risk to Sinclair.

SINCLAIR V. CITY OF SEATTLE 17

A danger is “particularized” if it is directed at a specific

victim. A survey of our cases makes that clear. In Grubbs

I, the state left a nurse alone with a violent offender, who

assaulted her. 974 F.2d at 121. In Hernandez, officers

“shepherded [plaintiffs] into a violent crowd of protestors

and actively prevented them from reaching safety.” 897

F.3d at 1138. In Munger v. City of Glasgow Police

Department, officers expelled the inebriated plaintiff from a

bar into the freezing night with nowhere to go, and he later

succumbed to hypothermia. 227 F.3d 1082, 1086–87 (9th

Cir. 2000). In Wood v. Ostrander, troopers stopped a car,

arrested the driver, and left the plaintiff passenger stranded

in a high crime area in the middle of the night where she was

subsequently raped. 879 F.2d 583, 590 (9th Cir. 1989). In

Kennedy, the plaintiff and her deceased husband were shot

by their neighbor after a police officer notified the neighbor

that the plaintiff had reported that the neighbor had molested

their nine-year-old daughter. 439 F.3d at 1057–58. And in

Maxwell v. County of San Diego, a gunshot victim died after

police officers prevented the ambulance from leaving for the

hospital. 708 F.3d 1075, 1082 (9th Cir. 2013). In each of

those cases, the danger was particularized to the plaintiffs.

By contrast, in Johnson, where it was not, “[p]laintiffs

voluntarily placed themselves in the midst of the crowd that

subsequently became unruly.” 474 F.3d at 640.

Here, Sinclair fails to allege that the City had any

previous interactions with her son, directed any actions

toward him, or even knew of her son’s existence until he was

killed. Instead, she “alleged that the City left all visitors to

CHOP in a much more dangerous position than it found

them in.” Even construed in the light most favorable to

Sinclair, her allegations demonstrate that the City-created

18 SINCLAIR V. CITY OF SEATTLE

danger was a generalized danger experienced by all those

members of the public who chose to visit the CHOP zone.

That distinguishes this case from Hunters Capital LLC

v. City of Seattle, another CHOP case in which the district

court held that plaintiffs could state a state-created danger

claim. 499 F. Supp. 3d 888, 902 (W.D. Wash. 2020). Both

parties point out that Hunters Capital involved plaintiffs

who lived or owned businesses within the CHOP zone,

significantly narrowing the class of persons exposed to the

alleged state-created danger. See id. at 895–99. Those facts

are more like Hernandez, where officers directed a discrete

and identifiable group of protestors toward a dangerous mob,

than like Johnson, where plaintiffs were among many who

had attended a dangerous Mardi Gras festival voluntarily.

While we offer no opinion on Hunters Capital, its facts are

appreciably closer to meeting the particularity standard that

our precedent requires than are Sinclair’s allegations.

Sinclair points out that in Huffman v. County of Los

Angeles, we noted that it is an open question in our circuit

whether a plaintiff can bring a state-created danger claim

when the danger was not particularized to a specific, known

individual. 147 F.3d 1054, 1061 n.4 (9th Cir. 1998). She

argues that as long as the state-created danger was

particularized, a plaintiff may bring a claim even if the

individual harmed was an undifferentiated member of the

public. And here, she says that the City created the

particularized danger of lawlessness.

Only one court, the Seventh Circuit, has held that the

state-created danger need not be particular to a known

plaintiff. In Reed v. Gardner, officers detained a sober

driver, allowing his drunk passenger to take the wheel

instead. 986 F.2d 1122, 1123–24 (7th Cir. 1993). The drunk

SINCLAIR V. CITY OF SEATTLE 19

driver soon caused an accident farther down the highway.

Id. The Seventh Circuit held that the state-created danger

doctrine could apply because “the other motorists” in the

area were “worse off with a drunk driver heading toward

them than a sober one.” Id. at 1125, 1127. At the same time,

the Reed court reasoned that “[t]he dangers presented by

drunk drivers are familiar and specific; in addition, the

immediate threat of harm has a limited range and duration.”

Id. at 1127.

We need not definitively resolve whether to adopt the

Seventh Circuit’s minority rule showcased in Reed because

it would not change the result. Here, the alleged dangers in

CHOP were of unchecked lawlessness and rampant crime

affecting everyone. Those dangers on this record clearly

reflect the City’s shocking contempt towards its promise to

citizens that “[t]here shall be maintained adequate police

protection in each district of the City.” Seattle, Wash., City

Charter art. VI, § 1. Likewise, individual city officials

openly flouted their oath to “support . . . the Charter and

ordinances of The City of Seattle.” Id. at art. XIX, § 4. But

the dangers alleged are neither specific, nor immediate, nor

of limited range or duration. And Anderson’s shooting was

not as directly or necessarily correlated to the danger posed

by uncontrolled lawlessness as a drunk-driving victim’s

injuries are to the danger of letting an intoxicated person get

behind the wheel. Indeed, Anderson’s encounter with Long,

with whom he had “a history of antagonism,” is a significant

chink in the causal chain.

20 SINCLAIR V. CITY OF SEATTLE

In sum, while the City created an actual danger of

increased crime, that danger was not specific to Anderson or

Sinclair. 4 Thus, Sinclair’s § 1983 claim fails.

***

The City’s conduct here was egregious. But because the

City’s actions were not directed toward Anderson and did

not otherwise expose him to a specific risk, the connection

between Sinclair’s alleged injuries and the City’s affirmative

actions is too remote to support a § 1983 claim. It is at the

ballot box, then, that Sinclair and other Seattleites must hold

the City accountable for their deliberately indifferent

actions.

AFFIRMED.

4

Sinclair also asserts that, with discovery, she would adduce testimony

that her young, special needs son was especially vulnerable to the City’s

public comparisons to popular music/cultural events and promises of

safety. She may also be able to access City officials’ missing text

messages or benefit from adverse evidentiary inferences if they have

been destroyed. Even so, she still could not state a claim. Even if her

son was particularly susceptible to the City’s misrepresentations, the

danger of attracting special needs youth with statements about music and

safety is not the sort of “familiar and specific” danger that is found by

unleashing a drunk driver on the road. Nor is it similarly limited in range

or duration.

SINCLAIR V. CITY OF SEATTLE 21

R. NELSON, Circuit Judge, concurring:

We have created a split with other circuits by

recognizing a substantive due process right to the

companionship of one’s adult children. Perhaps not

purposefully; but we are bound by those prior holdings. And

had we fully considered the issue, we likely would not have

recognized such a right. Since Sinclair’s claim depends on

this right, had we not been bound by our precedent to hold

otherwise, we should have affirmed the district court’s

dismissal of this case on that alternative ground alone.

The recognition of a constitutionally protected right to

the mere companionship of one’s children is a creature of the

circuit courts. The Supreme Court has never recognized

such a right. When the Supreme Court has recognized

constitutional protections of the parent-child relationship,

those protections have been concerned with the right to

retain custody of minor children and the right to make

decisions about raising them. See, e.g., Meyer v. Nebraska,

262 U.S. 390, 396–99 (1923) (identifying the right to

“establish a home and bring up children”); Prince v.

Massachusetts, 321 U.S. 158, 166 (1944) (“[T]he custody,

care and nurture of the child reside first in the parents, whose

primary function and freedom include preparation for

obligations the state can neither supply nor hinder”). Never

has the Supreme Court recognized as protected the

emotional bond between parent and child without more,

regardless of whether that child is a minor or an adult.

Not just that. The Supreme Court has admonished that

we must be wary of recognizing new substantive due process

rights “lest the liberty protected by the Due Process Clause

be subtly transformed into the policy preferences” of judges.

Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

22 SINCLAIR V. CITY OF SEATTLE

Before recognizing a substantive due process right, the Court

requires “a careful description” of the asserted right and then

a determination that it is “deeply rooted in this Nation’s

history and tradition.” Id. at 720–21 (citations omitted).

Other circuits have recognized a substantive due process

right to the companionship of a minor child. But none have

extended that right to an adult child. And most have rejected

such an extension. In McCurdy v. Dodd, the Third Circuit

stated that it would be a “serious mistake . . . to extend the

liberty interests of parents into the amorphous and open-

ended area of a child’s adulthood.” 352 F.3d 820, 829 (3d

Cir. 2003). And in Robertson v. Hecksel, the Eleventh

Circuit found no support for an extension of a parent’s

substantive due process rights to adult children in Supreme

Court precedent and “decline[d] to further expand the

substantive protections of the Due Process Clause.” 420

F.3d 1254, 1260 (11th Cir. 2005).

We, unfortunately, have not. As detailed in the majority

opinion, we have held implicitly that parents have a

constitutional right to the companionship of their adult

children, even after Glucksberg. See, e.g., Porter v. Osborn,

546 F.3d 1131, 1132 (9th Cir. 2008). In a pre-Glucksberg

decision, the Tenth Circuit took a similar position, without

the type of analysis that Glucksberg would require. See

Trujillo v. Bd. of Cnty. Comm’rs of Santa Fe Cnty., 768 F.2d

1186, 1190 (10th Cir. 1985).

Had we given the question due consideration, I do not

think we would have recognized Sinclair’s asserted right

here. As the Third Circuit reasoned, it is too amorphous. Is

the right limited to young adult children who still live with

their parents? Or would it extend to the relationship between

an 80-year-old father and his estranged 50-year-old son?

SINCLAIR V. CITY OF SEATTLE 23

These uncertainties illustrate the difficulty in creating

constitutional protections over broad abstractions. The

Supreme Court has accordingly limited such protections to

concrete circumstances in which the contours of the right

have been historically clear.

Nor is it even necessary that Sinclair’s companionship

interest in her son be constitutionally protected for those

interests to be vindicated. In overturning a prior ruling

recognizing a substantive due process right to the

companionship of one’s adult child, the Seventh Circuit

reasoned that “[a]ffording plaintiffs a constitutional due

process right to recover against the state in these

circumstances would create the risk of constitutionalizing all

torts against individuals who happen to have families.” Russ

v. Watts, 414 F.3d 783, 790 (7th Cir. 2005), overruling Bell

v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984).

Anderson’s estate has already sued and settled with the City.

And Sinclair or others harmed by his death may be able to

bring state tort claims against the City. So while Sinclair

may achieve justice for her son, the Due Process Clause is

not the way to do so. Such rights should remain a creation

of state law. See Tabares v. City of Huntington Beach, 988

F.3d 1119, 1122 (9th Cir. 2021) (explaining that the U.S.

Constitution and state common law are “two distinct legal

frameworks”).

In sum, there is no good reason why we should even

reach the merits of Sinclair’s state-created danger claim. In

establishing the right on which her claim depends, our

precedent failed to engage in the proper analysis required by

Glucksberg (or really any analysis at all). Had we done so,

we should have reached the conclusion that our sister circuits

already have: There is no constitutional right to recover for

24 SINCLAIR V. CITY OF SEATTLE

the loss of her companionship with her adult son. We should

correct our prior erroneous precedent en banc.