Desiree Martinez v. Channon High

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DESIREE MARTINEZ, No. 22-16335

Plaintiff-Appellant, D.C. No.

1:15-cv-00683-

v. DAD-SKO

CHANNON HIGH,

OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, Chief District Judge, Presiding

Argued and Submitted August 22, 2023

San Francisco, California

Filed January 26, 2024

Before: Patrick J. Bumatay, Lucy H. Koh, and Roopali H.

Desai, Circuit Judges.

Opinion by Judge Desai;

Concurrence in Judgment by Judge Bumatay

2 MARTINEZ V. HIGH

SUMMARY *

Qualified Immunity/State-Created Danger Doctrine

The panel affirmed the district court’s summary

judgment order granting qualified immunity to Channon

High, a City of Clovis police officer, in an action brought

pursuant to 42 U.S.C. § 1983 by Desiree Martinez, alleging

that Officer High violated her due process rights under the

state-created danger doctrine when she disclosed Martinez’s

confidential domestic violence report to Martinez’s abuser

Kyle Pennington, another Clovis police officer.

The panel first determined that the district court did not

abuse its discretion by entertaining Officer High’s

successive summary judgment motion on remand from this

court’s decision in Martinez’s prior interlocutory appeal.

Addressing the merits, the panel held that Officer High

violated Martinez’s due process rights. Although state

actors generally are not liable for failing to prevent the acts

of private parties, an exception to this rule—the “state-

created danger” exception—applies where the state

affirmatively places the plaintiff in danger by acting with

deliberate indifference to a known or obvious danger. Here,

Officer High’s affirmative conduct of disclosing Martinez’s

confidential complaint to Pennington, whom Officer High

knew was an alleged abuser, placed Martinez in actual,

foreseeable danger. Officer High also acted with deliberate

indifference toward the risk of future abuse, given that she

*

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. HIGH 3

knew Pennington was violent and under investigation for

domestic violence.

The panel nevertheless held that Officer High was

entitled to qualified immunity because it was not clearly

established in 2013 that Officer High’s conduct violated

Martinez’s substantive due process rights. The panel

clarified that going forward, an officer is liable under the

state-created danger doctrine when the officer discloses a

victim’s confidential report to a violent perpetrator in a

manner that increases the risk of retaliation against the

victim.

Concurring in the judgment, Judge Bumatay agreed with

the majority’s conclusion that Officer High was properly

afforded an opportunity to file a successive summary

judgment motion and that she was entitled to qualified

immunity based on the lack of any clearly established

law. Because no clearly established law existed at the time

of the incident, it was unnecessary to reach whether

Martinez’s allegations against Officer High amount to a

claim under the state-created danger doctrine.

COUNSEL

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

Fresno, California, for Plaintiff-Appellant.

Suzanne M. Nicholson (argued), Suzanne M. Nicholson

Attorney at Law, Sacramento, California; Bruce D. Praet,

Ferguson Praet & Sherman, Santa Ana, California; for

Defendant-Appellee.

4 MARTINEZ V. HIGH

OPINION

DESAI, Circuit Judge:

Plaintiff Desiree Martinez appeals the district court’s

summary judgment order granting qualified immunity to

Channon High, a City of Clovis police officer. Ms. Martinez

survived brutal domestic violence at the hands of Kyle

Pennington, another Clovis police officer with whom Ms.

Martinez was in a relationship. She sued Officer High under

42 U.S.C. § 1983 for disclosing her confidential domestic

violence report to her abuser, one of Officer High’s

colleagues. We hold that Officer High violated Ms.

Martinez’s due process rights under the state-created danger

doctrine, but that right was not yet “clearly established” at

the time of the violation. We thus affirm.

BACKGROUND 1

In February 2013, Ms. Martinez started a romantic

relationship with Clovis police officer Kyle Pennington. The

couple moved in together early in their relationship, and Mr.

Pennington soon became violent. He first physically and

sexually assaulted Ms. Martinez in April 2013, and a cycle

of abuse escalated over the next several months.

Ms. Martinez called the police to report Mr.

Pennington’s abuse on May 2, 2013. Clovis police officers

responded. One of the responding officers, Officer Kristina

Hershberger, questioned Ms. Martinez at the scene. Ms.

Martinez told Officer Hershberger about Mr. Pennington’s

prior abuse at a hotel in Dublin, California. Before leaving

1

We construe any disputed facts in Ms. Martinez’s favor. See Scott v.

Harris, 550 U.S. 372, 378 (2007).

MARTINEZ V. HIGH 5

the scene, Officer Hershberger brought up the Dublin

incident in front of Mr. Pennington, and Ms. Martinez

recanted. Officer Hershberger also asked Mr. Pennington

“what [he] was doing dating a girl like Desiree Martinez”

and told him “she didn’t think [Ms. Martinez] was

necessarily a good fit for [him].” The officers left without

arresting Mr. Pennington. He assaulted Ms. Martinez again

that night.

On May 29, 2013, Ms. Martinez made an anonymous

call to the Clovis Police Department to report that Mr.

Pennington was still abusing her and to seek information

about her legal rights. Ms. Martinez made this report

confidentially due to Mr. Pennington’s threats, which made

her “fear[] great bodily harm or death.” Shortly after, Mr.

Pennington moved Ms. Martinez to Sanger, a nearby city, to

“avoid further possible reports to the Clovis Police

Department.”

Just days after the move, neighbors called 911 after

witnessing Mr. Pennington physically and sexually assault

Ms. Martinez, leading Sanger police officers to respond to

the incident at Mr. Pennington’s home. Despite Ms.

Martinez’s obvious injuries, the responding officers did not

arrest Mr. Pennington or issue a protective order until the

next day. As the officers left, one remarked that Mr.

Pennington’s family were “good people.” Mr. Pennington

again abused Ms. Martinez that night.

In early September 2013, Officer High had two phone

calls with Mr. Pennington. At the time, Officer High worked

in the Clovis Police Department’s records unit. Phone

records show that Officer High called Mr. Pennington on his

cell phone on September 3, and Mr. Pennington called

Officer High on her cell phone on September 7. Ms.

6 MARTINEZ V. HIGH

Martinez overheard only one of those calls. It is unclear

which call she overheard, but her testimony supports an

inference that she overheard the September 7 call. 2

Ms. Martinez likely did not hear the phone call between

Officer High and Mr. Pennington on September 3. However,

the September 3 call happened the morning Ms. Martinez

“was supposed to testify as a witness in his criminal

preliminary hearing.” After the call, Ms. Martinez suffered

“abuse and intimidation,” which stopped her from testifying.

A few days later on September 7, Mr. Pennington called

Officer High again. He spoke to Officer High on

speakerphone in front of Ms. Martinez. During the call, Mr.

Pennington asked Ms. Martinez if she was “telling the cops”

about his abuse, and she responded “no.” Officer High

interjected: “Yes, she did. I see a report right here.” Officer

High also told Mr. Pennington that another Clovis police

officer was under investigation for lying about a “romantic

relationship” he had with Ms. Martinez.

Immediately after the call, Mr. Pennington inflicted

“horrific, severe additional abuse” on Ms. Martinez,

“including both physical and sexual abuse.” Officer High’s

“contacts on September 3 and 7” provoked Mr. Pennington

to continue abusing Ms. Martinez until he was arrested after

a final, “especially brutal beating” on September 18.

PROCEDURAL HISTORY

Ms. Martinez sued in 2015. The operative complaint

asserted claims against Mr. Pennington, his parents, several

police officers, and the cities of Clovis and Sanger. Ms.

2

Whether Ms. Martinez overheard the call on September 3 or 7 does not

affect our analysis.

MARTINEZ V. HIGH 7

Martinez’s complaint included a § 1983 claim against

Officer High and other officers for violating her substantive

due process rights. 3 She alleged that Officer High put her in

greater danger when Officer High disclosed Ms. Martinez’s

confidential report to Mr. Pennington. Ms. Martinez also

alleged that the other officers put her in danger when they

responded to 911 calls, including by failing to advise her

about her rights, failing to separate her from Mr. Pennington,

engaging in small talk with Mr. Pennington, and failing to

arrest him.

All the officers moved for summary judgment on

qualified immunity grounds. The district court granted

qualified immunity to every officer except Officer High. As

for Officer High, the court found that “it was clearly

established that an officer sharing a domestic violence

victim’s confidential information to the alleged abuser

would be a violation of the victim’s substantive due process

rights.” Officer High did not appeal, but Ms. Martinez

appealed the order granting qualified immunity to the other

officers.

This court affirmed the district court’s grant of qualified

immunity to the other officers, holding that (1) the officers

violated Ms. Martinez’s substantive due process right, but

(2) the right was not “clearly established” in 2013. Martinez

v. City of Clovis, 943 F.3d 1260, 1276–77 (9th Cir. 2019)

(“Martinez I”). Relevant here, the court analyzed the conduct

of Officer Hershberger, one of the responding officers,

which the district court had not focused on. This court held

that Officer Hershberger violated Ms. Martinez’s due

3

Ms. Martinez also brought an equal protection claim against Officer

High, which the district court dismissed in 2017. Ms. Martinez did not

appeal that dismissal.

8 MARTINEZ V. HIGH

process rights by emboldening Mr. Pennington to “further

abuse Martinez . . . with impunity” when Officer

Hershberger “told Pennington about Martinez’s testimony

relating to his prior abuse” and said that “Martinez was not

‘the right girl’ for him.” Id. at 1272. But the court

nonetheless granted Officer Hershberger qualified immunity

because the constitutional violation in “this context was not

apparent to every reasonable officer at the time the conduct

occurred.” Id. at 1276.

On remand, the district court granted Officer High leave

to file a successive summary judgment motion on her

qualified immunity defense “[i]n light of the Ninth Circuit’s

ruling” in Martinez I. Officer High’s new summary

judgment motion argued that she too was entitled to

summary judgment based on this court’s analysis of Officer

Hershberger’s conduct in Martinez I. The district court

granted the motion and held that, based on Martinez I,

Officer High was “entitled to qualified immunity [because]

it was not clearly established in 2013 that [Officer High]’s

conduct violated due process.” Ms. Martinez timely

appealed.

STANDARD OF REVIEW

We review a district court’s decision to accept a

successive motion for summary judgment for an abuse of

discretion. Hoffman v. Tonnemacher, 593 F.3d 908, 911–12

(9th Cir. 2010). We review de novo the district court’s grant

of qualified immunity on summary judgment. Martinez I,

943 F.3d at 1269–70. “In doing so, we view the evidence in

the light most favorable to” the nonmoving party. Id. at

1270.

MARTINEZ V. HIGH 9

DISCUSSION

I. The district court did not abuse its discretion by

entertaining Officer High’s successive summary

judgment motion.

Ms. Martinez first argues that Officer High “waived her

qualified immunity defense by failing to raise it in the prior

appeal” and thus could not file a new summary judgment

motion. We disagree.

First, the “prior appeal” was Ms. Martinez’s appeal

challenging the other officers’ qualified immunity—Officer

High did not appeal. Martinez I, 943 F.3d at 1269 n.13 (“The

claims against High are not before us.”). Officer High “could

have taken an interlocutory appeal” from the district court’s

denial of her summary judgment motion. Rivero v. City and

County of San Francisco, 316 F.3d 857, 863 (9th Cir. 2002).

“But ‘could have’ is not ‘should have.’” Id. This court has

“made clear that the rule permitting a defendant to take an

interlocutory appeal after a denial of a motion based on

qualified immunity is not a rule requiring the defendant to

take that appeal.” Id. (emphasis added) (citing DeNieva v.

Reyes, 996 F.2d 480, 484 (9th Cir. 1992)). Officer High’s

decision not to appeal the denial of her first summary

judgment motion thus does not bar her from re-raising her

qualified immunity defense in a subsequent summary

judgment motion.

Nor was Officer High barred from filing a second

summary judgment motion. Nothing in Rule 56 prohibits

successive motions. Fed. R. Civ. P. 56(b) (allowing parties

to “file a motion for summary judgment at any time until 30

days after the close of all discovery” unless the court or local

rule says otherwise (emphasis added)). And “a district court

may permit successive motions for summary judgment on

10 MARTINEZ V. HIGH

qualified immunity.” Hoffman, 593 F.3d at 910; see also

Behrens v. Pelletier, 516 U.S. 299, 306–11 (1996) (holding

that a defendant could immediately appeal the denial of his

successive motion asserting qualified immunity).

District courts may “weed out frivolous or simply

repetitive motions.” Knox v. Sw. Airlines, 124 F.3d 1103,

1106 (9th Cir. 1997). But Officer High’s second motion was

neither frivolous nor simply repetitive, and the district court

was free to entertain it. Hoffman, 593 F.3d at 911. Officer

High filed her second motion after she hired new counsel and

after this court decided Ms. Martinez’s prior appeal

challenging other officers’ qualified immunity. The second

motion relied heavily on this court’s opinion in Martinez I, a

decision unavailable to Officer High when she filed her first

motion.

All told, the district court did not abuse its discretion by

considering Officer High’s second summary judgment

motion.

II. The qualified immunity framework.

Now we turn to the merits. An officer is entitled to

qualified immunity unless the plaintiff shows that (1) the

officer violated the plaintiff’s constitutional right and (2) the

“right was clearly established at the time of the incident.”

Martinez I, 943 F.3d at 1270. Because this court may

consider either prong first, it need not decide the first prong

if the second is dispositive. Pearson v. Callahan, 555 U.S.

223, 236 (2009). But deciding both prongs is “often

beneficial” because it “promotes the development of

constitutional precedent.” Id. That is true here.

For one thing, the constitutional question is “in an area

where this court’s guidance is needed.” Martinez I, 943 F.3d

MARTINEZ V. HIGH 11

at 1270 (alteration omitted) (quoting Horton ex rel. Horton

v. City of Santa Maria, 915 F.3d 592, 602 (9th Cir. 2019)).

Indeed, our application of Martinez I in this case will guide

future courts when addressing due process questions in

similar contexts. What’s more, the parties have repeatedly

briefed the constitutional question in the district court and

this court. Thus, we address both prongs to “best facilitate

the fair and efficient disposition of [this] case.” Pearson, 555

U.S. at 242.

A. Officer High violated Ms. Martinez’s due process

rights.

Ms. Martinez’s § 1983 claim stems from the Due Process

Clause of the Fourteenth Amendment. Because the Due

Process Clause is a “limitation on state action,” state actors

generally are not liable for failing “to prevent acts of private

parties.” Murguia v. Langdon, 61 F.4th 1096, 1106 (9th Cir.

2023) (emphasis omitted), cert. denied, No. 23-270, 2024

WL 71941 (Jan. 8, 2024). But one exception to this rule

applies “when the state affirmatively places the plaintiff in

danger by acting with deliberate indifference to a known or

obvious danger.” Id. (quoting Patel v. Kent Sch. Dist., 648

F.3d 965, 971–72 (9th Cir. 2011)). Ms. Martinez invokes

that exception here. 4

To establish the “state-created danger” exception, a

plaintiff must prove two things. The officer’s “affirmative

4

In her supplemental brief, Ms. Martinez raises for the first time several

other constitutional arguments. Dkt. 48 at 4–6. We decline to consider

those arguments because Ms. Martinez failed to make them below. Smith

v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“As a general rule, we

will not consider arguments that are raised for the first time on appeal.”).

We thus deny as moot Officer High’s motion for leave to file objections

to Ms. Martinez’s supplemental brief, Dkt. 51.

12 MARTINEZ V. HIGH

conduct” must expose the plaintiff to a foreseeable danger

that she would not otherwise have faced. Id. at 1111; see also

Martinez I, 943 F.3d at 1271. And the officer must act “with

‘deliberate indifference’ to a ‘known or obvious danger.’”

Murguia, 61 F.4th at 1111 (quoting Patel, 648 F.3d at 974);

Martinez I, 943 F.3d at 1271. Both requirements are met

here.

1. Officer High’s affirmative conduct placed Ms.

Martinez in actual, foreseeable danger.

First, Officer High’s affirmative conduct increased Ms.

Martinez’s risk of abuse by Mr. Pennington. An officer’s

statements about a victim to a violent perpetrator can

increase the risk of retaliation. In Martinez I, for example,

this court held that Officer Hershberger’s disclosure of Ms.

Martinez’s reported abuse “provoked” Mr. Pennington, and

her “disparaging comments” about Ms. Martinez

emboldened Mr. Pennington “to believe that he could further

abuse Martinez, including by retaliating against her for her

testimony, with impunity.” Martinez I, 943 F.3d at 1272.

Likewise in Okin v. Village of Cornwall-On-Hudson Police

Department, the Second Circuit held that officers who

“openly expressed camaraderie with [an abuser] and

contempt for [the victim]” increased the danger to the victim

“because they conveyed to [the abuser] that he could

continue to engage in domestic violence with impunity.” 577

F.3d 415, 430–31 (2d Cir. 2009). And in Kennedy v. City of

Ridgefield, this court held that officers “affirmatively created

a danger to” the plaintiff that “she otherwise would not have

faced” when they notified an alleged perpetrator about the

plaintiff’s allegations against him “before the [plaintiff and

her family] had the opportunity to protect themselves from

his violent response to the news.” 439 F.3d 1055, 1063 (9th

Cir. 2006).

MARTINEZ V. HIGH 13

So too here. Officer High told Mr. Pennington about Ms.

Martinez’s confidential domestic violence report. She did so

after hearing Ms. Martinez answer “no” when Mr.

Pennington—the alleged abuser—asked her whether she

was “telling the cops” about his abuse. Officer High also

shared other information endangering Ms. Martinez,

including that Ms. Martinez had a romantic relationship with

another police officer. In other words, Officer High’s

disclosure was coupled with comments that Ms. Martinez

was lying and also had a relationship with Mr. Pennington’s

colleague. A reasonable jury could find that Officer High’s

comments put Ms. Martinez at risk of violent retaliation.

The risk was also foreseeable. Officer High obviously

knew that Mr. Pennington was an alleged abuser because the

information she disclosed to him was a domestic violence

report against him. And when Officer High spoke with Mr.

Pennington, he had been arrested for domestic violence and

was subject to a restraining order. Officer High also admitted

in her deposition that she knew the Clovis Police Department

put Mr. Pennington on leave because of “something

involving a female.” Worse, Officer High knew Ms.

Martinez was in the room with Mr. Pennington when Officer

High disclosed the report. The danger was obvious. Shortly

after learning from Officer High that Ms. Martinez reported

his abuse to the police, Mr. Pennington brutally sexually and

physically assaulted Ms. Martinez. The assaults Ms.

Martinez suffered after Officer High’s disclosure “were

objectively foreseeable” as “a matter of common sense.”

Martinez I, 943 F.3d at 1274. 5

5

In fact, Officer High’s counsel conceded at oral argument that the harm

was foreseeable.

14 MARTINEZ V. HIGH

Construing the facts in Ms. Martinez’s favor, Officer

High placed her “in greater danger” by disclosing her

confidential complaint to Mr. Pennington while conveying

contempt for Ms. Martinez. Martinez I, 943 F.3d at 1272;

see also Okin, 577 F.3d at 429–30 (holding that reasonable

jurors could find that police officers’ conduct “implicitly but

affirmatively encouraged [the perpetrator’s] domestic

violence”).

2. Officer High was deliberately indifferent to a

known or obvious risk.

Second, Officer High “acted with deliberate indifference

toward the risk of future abuse.” Martinez I, 943 F.3d at

1274. In non-detainee cases like this one, the deliberate

indifference standard is subjective: The officer must “know

that something is going to happen but ignore the risk and

expose the plaintiff to it.” Murguia, 61 F.4th at 1111

(cleaned up); see Martinez I, 943 F.3d at 1274. That does not

mean the officer must “know with certainty that the risk will

materialize or intend for the plaintiff to face the risk.”

Murguia, 61 F.4th at 1117 n.16. The officer need only “take

an intentional action with knowledge that his actions will

expose the plaintiff to an unreasonable risk.” Id.

This court has held that knowledge about an abuser’s

history of violence constitutes deliberate indifference. For

example, in Kennedy, the officers knew that an alleged

perpetrator “had a predilection for violence and was capable

of the attack he in fact perpetrated” on the plaintiff’s family.

439 F.3d at 1064. The officers thus “knew that telling [the

perpetrator] about the allegations against him without

forewarning the [plaintiff’s family] would place them in a

danger they otherwise would not have faced.” Id. So too in

Martinez I, this court held that—given Mr. Pennington’s

MARTINEZ V. HIGH 15

“violent tendencies”—“a reasonable jury could find that

disclosing a report of abuse while engaging in disparaging

small talk with Pennington . . . constitutes deliberate

indifference.” Martinez I, 943 F.3d at 1274. And most

recently in Murguia, this court held that a state official “was

aware of the obvious risk of harm [a mother] presented” to

her children because the official knew about the mother’s

“history of abuse.” 61 F.4th at 1116.

Like the officials in Kennedy, Martinez I, and Murguia,

Officer High knew Mr. Pennington was violent. She knew

Mr. Pennington was under investigation for domestic

violence. She worked in the Clovis Police Department’s

records unit and saw Ms. Martinez’s report of Mr.

Pennington’s abuse. Not only was the department already

investigating Mr. Pennington for domestic violence against

an ex-girlfriend, Martinez I, 943 F.3d at 1274, but there was

an active criminal case against him for assaulting Ms.

Martinez. Officer High had also completed domestic

violence training and understood that a victim’s confidential

reports should not be disclosed to the abuser. Yet she took

Mr. Pennington’s call and told him about Ms. Martinez’s

confidential report for no apparent reason other than to

discredit Ms. Martinez. And she knew Ms. Martinez was in

the room with Mr. Pennington and would thus be exposed to

his violent reaction. These facts no doubt show “deliberate

indifference to a known or obvious danger.” Martinez I, 943

F.3d at 1274.

* * *

In sum, taking the facts in Ms. Martinez’s favor, Officer

High violated Ms. Martinez’s due process rights by

knowingly placing her in greater danger of Mr. Pennington’s

assaults.

16 MARTINEZ V. HIGH

B. Ms. Martinez’s constitutional right was not

“clearly established” when Officer High engaged

in the challenged conduct.

Though Ms. Martinez established a constitutional

violation, Officer High is entitled to qualified immunity

because existing case law in 2013 did not make clear that

Officer High’s conduct violated Ms. Martinez’s substantive

due process rights. “There need not be a case directly on

point” to defeat an officer’s qualified immunity defense, but

existing case law must have put “every reasonable official”

on notice that their conduct was unconstitutional. Martinez

I, 943 F.3d at 1275. The case law also “must be

‘controlling’—from the Ninth Circuit or the Supreme

Court—or otherwise be embraced by a ‘consensus’ of courts

outside the relevant jurisdiction.” Id. (quoting Sharp v.

County of Orange, 871 F.3d 901, 911 (9th Cir. 2017)). No

such controlling authority existed in 2013.

The district court relied on Okin when it first denied

Officer High qualified immunity. And Ms. Martinez relied

on Okin again on remand. In that case, the Second Circuit

held that police officers violated a domestic violence

victim’s due process rights when they emboldened the

abuser “by fostering the belief that his intentionally violent

behavior will not be confronted by arrest, punishment, or

police interference.” Okin, 577 F.3d at 437. But we held in

Martinez I that Okin did not clearly establish Ms. Martinez’s

due process rights because it had not “been ‘embraced by a

“consensus” of courts.’” 943 F.3d at 1276 (quoting Sharp,

871 F.3d at 911). Martinez I established only “[g]oing

forward”—but not in 2013—that an officer violates a

victim’s due process rights when the officer engages in

affirmative conduct much like Officer High’s. Id. at 1276–

77. Like Officer High, Officer Hershberger told Mr.

MARTINEZ V. HIGH 17

Pennington about Ms. Martinez’s confidential report of his

prior abuse while also disparaging Ms. Martinez. Id. at 1272.

We held that this conduct violated Ms. Martinez’s due

process rights by provoking and emboldening Mr.

Pennington to retaliate against her later that day, but we

granted Officer Hershberger qualified immunity because the

constitutional violation in “this context was not apparent to

every reasonable officer at the time the conduct occurred.”

Id. at 1276. That holding applies equally to Officer High.

Kennedy does not require a different result. There, the

plaintiff told police that her teenage neighbor molested her

nine-year-old daughter. Kennedy, 439 F.3d at 1057. The

plaintiff also reported that the neighbor was violent and

unstable, so the police assured her they would notify her

before “any police contact with the [neighbor’s] family

about her allegations.” Id. at 1057–58. The officers later told

the neighbor about the plaintiff’s allegations without first

warning the plaintiff. Id. at 1058. When police told the

plaintiff they had just spoken to the neighbor about the

allegations, she “became upset” and asked why they didn’t

warn her. Id. The police assured her they “would patrol the

area around both her house and the [neighbor’s] house that

night to keep an eye on [the neighbor].” Id. Because it was

late and based on the officers’ assurances, the plaintiff

locked her doors and planned to leave town the next day. Id.

But early the next morning, the neighbor broke in and shot

the plaintiff and shot and killed her husband. Id.

This court held that the officers were not entitled to

qualified immunity because “it was clearly established that

state officials could be held liable where they affirmatively

and with deliberate indifference placed an individual in

danger she would not otherwise have faced.” Id. at 1066.

That broad statement applies equally to this case. But since

18 MARTINEZ V. HIGH

Kennedy, this court and the Supreme Court have explained

that “‘clearly established law’ should not be defined ‘at a

high level of generality.’” White v. Pauly, 580 U.S. 73, 79

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

(2011)). It is instead “the facts of particular cases that clearly

establish what the law is.” Isayeva v. Sacramento Sheriff’s

Dep’t, 872 F.3d 938, 951 (9th Cir. 2017).

Although Kennedy involved a police officer disclosing a

report to an alleged perpetrator, it did not involve sufficiently

“similar circumstances” to put the constitutional violation

“beyond debate” here. White, 580 U.S. at 79 (quoting

Mullenix v. Luna, 577 U.S. 7, 12 (2015)). The officers in

Kennedy not only told a violent perpetrator about the

plaintiff’s allegations without giving her “a reasonable

opportunity to protect her family” despite promising to do

so, but they also misrepresented the level of danger by

assuring her they would patrol the neighborhood. 439 F.3d

at 1063. This “was an additional and aggravating factor” that

made the plaintiff and her family “more vulnerable to the

danger.” Id. Given the officers’ specific false assurances that

affected the plaintiff’s choices, we cannot say that “every

reasonable official would have understood” from Kennedy

that an officer violates the constitution by disclosing a report

to a violent perpetrator. See Martinez I, 943 F.3d at 1275.

Indeed, this court relied on Kennedy in Martinez I, yet it did

not hold that Kennedy clearly established Ms. Martinez’s

due process rights. See id. at 1271–74.

At bottom, our precedent dictates that no existing

authority gave Officer High sufficient notice in 2013 that her

conduct violated due process.

MARTINEZ V. HIGH 19

CONCLUSION

We affirm the district court’s summary judgment

granting Officer High qualified immunity because Ms.

Martinez’s constitutional right was not clearly established in

2013. But we now clarify that right going forward. An

officer is liable under the state-created danger doctrine when

the officer discloses a victim’s confidential report to a

violent perpetrator in a manner that increases the risk of

retaliation against the victim.

Officer High’s motion for leave to file objections to Ms.

Martinez’s supplemental brief, Dkt. 51, is DENIED as moot.

AFFIRMED.

Bumatay, J., concurring in the judgment:

It cannot be seriously disputed that the judicially crafted

“state-created danger exception finds no support in the text

of the Constitution, the historical understanding of the ‘due

process of law,’ or even Supreme Court precedent.”

Murguia v. Langdon, 73 F.4th 1103, 1104 (9th Cir. 2023)

(Bumatay, J., dissenting from the denial of rehearing en

banc). From the earliest time, it was understood that the due

process right was “intended to secure the individual from the

arbitrary exercise of the powers of government.” Hurtado v.

California, 110 U.S. 516, 527 (1884) (emphasis added). But

not good enough for us, we’ve expanded due process to

protect individuals from danger by private parties, so long as

a government actor does something, somewhere in the chain

of events.

As I’ve said previously, it’s a Frankenstein’s monster-

like doctrine, “cobbl[ing] together bits and pieces of

20 MARTINEZ V. HIGH

standards from other contexts to try to breathe new life into

substantive due process.” Murguia, 73 F.4th at 1114. And

unfortunately, it’s a monster that “roams menacingly among

our circuit courts,” especially the Ninth Circuit. Id. at 1115.

But because expanding substantive due process feels more

like “freewheeling judicial policymaking” than exercising

judgment, we should be reluctant to preside over its growth.

Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 240

(2022).

While I agree with the majority’s conclusion that Officer

Channon High was properly afforded an opportunity to file

a successive summary judgment motion and that she was

entitled to qualified immunity based on the lack of any

clearly established law in this context, it was simply

unnecessary to reach whether Desiree Martinez’s allegations

against Officer High amount to a claim under the state-

created danger doctrine. To decide this case, it is sufficient

that everyone agrees that no clearly established law existed

at the time of the incident between Martinez, Officer High,

and her abuser. As the majority admits, we need not decide

the first prong of qualified immunity if the second prong is

dispositive. See Pearson v. Callahan, 555 U.S. 223, 236

(2009).

And here, the district court did not rule on the first prong

of whether there’s a constitutional violation. No party

argued that there was a constitutional violation in their initial

briefing. It wasn’t until prodded at oral argument by our

court and forced to file supplemental briefing did the parties

raise any arguments about a constitutional violation. It was

unwise to reach the constitutional violation question under

these circumstances.

MARTINEZ V. HIGH 21

For these reasons, I concur only in the judgment of the

court.