Petition for Writ of Certiorari — Desiree Martinez, Petitioner v. Channon High

Supreme Court briefAug 2, 2024

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No. _______

In The

Supreme Court of the United States

DESIREE MARTINEZ,

Petitioner,

CHANNON HIGH, OFFICER,

SUED IN HER INDIVIDUAL CAPACITY,

Respondent.

On Petition for a Writ of Certiorari to the

U.S. Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

KEVIN G. LITTLE

LAW OFFICE OF

KEVIN G. LITTLE

P.O. Box 8656

Fresno, CA 93747

(559) 342-5800

kevin@kevinglittle.com

ANYA BIDWELL

Counsel of Record

VICTORIA CLARK

PATRICK JAICOMO

INSTITUTE FOR JUSTICE

901 N. Glebe Rd.

Ste. 900

Arlington, VA 22203

(703) 682-9320

abidwell@ij.org

Counsel for Petitioner

QUESTION PRESENTED

In Kennedy v. City of Ridgefield, the Ninth Circuit

held that a police officer violates the Constitution

when he discloses a police complaint to its subject and

places the complainant “in danger that she otherwise

would not have faced.” 439 F.3d 1055, 1063 (9th

Cir. 2006).

In this case, a police officer disclosed a domestic

violence police complaint to its subject over the phone,

even though the police officer knew that the complainant was in a room alone with the subject and could

not escape.

Applying a rigid standard that does not consider

the circumstances faced by the officer, the Ninth Circuit concluded that Kennedy was not specific enough

to fairly warn the officer in this case about the unconstitutionality of her conduct. Pet.App. 22a. This

standard contrasts with the flexible fair-warning

standard applied in the Fifth and Tenth Circuits,

where, in cases outside of time-pressured decisions to

use force, strict specificity is not necessary. Hughes v.

Garcia, 100 F.4th 611, 620 n.1 (5th Cir. 2024); A.N. v.

Syling, 928 F.3d 1191, 1199 (10th Cir. 2019).

The question presented is, in a situation not involving a time-pressured decision to use force:

Whether an officer can be fairly warned about the

unconstitutionality of her conduct even when the

facts of previous cases are not materially identical to

the facts the officer confronts.

PARTIES TO THE PROCEEDING

Petitioner Desiree Martinez was the plaintiff in

the district court and the appellant in the Ninth

Circuit.

Respondent Channon High was an individual defendant in the district court and the appellee in the

Ninth Circuit.

iii

RELATED PROCEEDINGS

This case arises from the following proceedings:

Martinez v. High, No. 22-16335 (9th Cir.

Mar. 6, 2024) (denying rehearing en banc);

Martinez v. High, No. 22-16335 (9th Cir.

Jan. 26, 2024) (affirming grant of High’s

motion for summary judgment);

Martinez v. High, No. 2:15-cv-00683 (E.D.

Cal. Jan. 10, 2022) (granting High’s motion

for summary judgment);

Martinez v. City of Clovis, et al., No. 1717492 (9th Cir. Dec. 4, 2019) (affirming

grant of summary judgment in an interlocutory appeal on related issues but not involving High);

Martinez v. Pennington, et al., No. 2:15-cv00683 (E.D. Cal. Oct. 17, 2017) (denying

High’s motion for summary judgment on

due process claim).

TABLE OF CONTENTS

Page

Table of Appendices .................................................. vi

Table of Authorities ................................................ viii

Petition for a Writ of Certiorari................................. 1

Opinions Below .......................................................... 1

Jurisdiction................................................................. 1

Statutory Provision Involved ..................................... 1

Introduction ................................................................ 2

Statement of the Case ................................................ 6

Reasons for Granting the Petition........................... 11

The circuits are split on whether the clearly-established-law test requires the same

level of exacting specificity in all cases. ...... 11

A. In the Fifth and Tenth Circuits, when

the case doesn’t involve time-pressured

calls to use force, courts dial down the

level of specificity they require to clearly

establish the law. ..................................... 12

B. The Ninth Circuit has a rigid approach

to fair warning.......................................... 15

C. The Eighth and Eleventh Circuits now

similarly utilize the rigid framework for

fair warning. ............................................. 18

II. This Court’s precedent confirms that, contrary to the Ninth Circuit’s holding below,

the clearly-established-law test does not

always require the same level of exacting

specificity. ..................................................... 21

A. The strict specificity requirement for use

of force cases was a result of the lower

courts’ insistence on using Graham v.

Connor as precedent clearly establishing

the law. ..................................................... 22

B. Outside of the excessive force context,

this Court acknowledges that officials

can be on notice that their conduct

violates clearly established law in novel

factual circumstances. ............................. 25

C. The rigid approach adopted by the Ninth

Circuit is inconsistent with the reasoning behind qualified immunity. ......... 29

III. The case presents an important question

and is a suitable vehicle for resolving it. ..... 30

Conclusion ................................................................ 32

TABLE OF APPENDICES

Page

APPENDIX A:

Opinion from the United

States Court of Appeals for the

Ninth Circuit (January 26,

2024) ............................................. 1a

APPENDIX B:

Order from the United States

District Court, Eastern District of California (January 10,

2022) ........................................... 26a

APPENDIX C:

Order from the United States

District Court, Eastern District of California (November

3, 2017) ....................................... 30a

APPENDIX D:

Order from the United States

Court of Appeals for the Ninth

Circuit Denying Rehearing

(March 6, 2024) .......................... 35a

APPENDIX E:

Excerpt from Transcript of the

October 17, 2017 Hearing in

the United States District

Court for the Eastern District

of California ................................ 37a

APPENDIX F:

Excerpt from Desiree Martinez Deposition Transcript

(Reformatted) ............................. 42a

vii

APPENDIX G:

Excerpt from Channon High

Deposition Transcript

(Reformatted) ............................. 46a

APPENDIX H: Excerpt of Kyle Pennington

Call Log (Reformatted) .............. 52a

viii

TABLE OF AUTHORITIES

Page

CASES

A.N. v. Syling,

928 F.3d 1191 (10th Cir. 2019).............. i, 3, 14, 15

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ............................................... 5

Benning v. Patterson,

71 F.4th 1324 (11th Cir. 2023) ....................... 3, 20

Brosseau v. Haugen,

543 U.S. 194 (2004) ................................... 4, 17, 23

Brown v. City of Golden Valley,

574 F.3d 491 (8th Cir. 2009)............................... 19

City of Escondido v. Emmons,

586 U.S. 38 (2019) ............................................... 23

City of Tahlequah v. Bond,

595 U.S. 9 (2021)........................................... 13, 23

Dillard v. O’Kelley,

961 F.3d 1048 (8th Cir. 2020)......................... 3, 19

Dillard v. Springdale,

930 F.3d 935 (8th Cir. 2019)............................... 19

Franks v. Delaware,

438 U.S. 154 (1978) ............................................. 13

Graham v. Connor,

490 U.S. 386 (1989) ................................. 17, 21–25

Groh v. Ramirez,

540 U.S. 551 (2004) ..............................5, 26–27, 29

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ......................................... 5, 29

Hernandez v. Mesa,

582 U.S. 548 (2017) ............................................. 23

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021)......................................... 21

Holloman v. Harland,

370 F.3d 1252 (11th Cir. 2004)........................... 20

Hope v. Pelzer,

536 U.S. 730 (2002) ...........................2, 4 25–26, 29

Hughes v. Garcia,

100 F.4th 611 (5th Cir. 2024) ...... i, 2–3, 12–13, 15

Isayeva v. Sacramento Sheriff’s Dep’t,

872 F.3d 938 (9th Cir. 2017)............................... 16

Jackson v. Hoylman,

933 F.2d 401 (6th Cir. 1991)............................... 22

Janny v. Gamez,

8 F.4th 883 (10th Cir. 2021) ............................... 14

Kennedy v. City of Ridgefield,

439 F.3d 1055 (9th Cir. 2006)

....................................................... i, 4, 9–10, 15–16, 28

Kisela v. Hughes,

584 U.S. 100 (2018) ........................4, 12, 22–23, 29

LaLonde v. County of Riverside,

204 F.3d 947 (9th Cir. 2000)......................... 17, 22

Lane v. Franks,

573 U.S. 228 (2014) ............................................... 5

Martinez v. City of Clovis,

943 F.3d 1260 (9th Cir. 2019)........................... 8–9

Martinez v. High,

91 F.4th 1022 (9th Cir. 2024) ............................... 1

Martinez v. High,

No. 2:15-CV-683, 2022 WL 96148 (E.D.

Cal. Jan. 10, 2022) ................................................ 1

Maryland v. Garrison,

480 U.S. 79 (1987) ............................................... 27

Massachusetts v. Sheppard,

468 U.S. 981 (1984) ............................................. 27

McCoy v. Alamu,

141 S. Ct. 1364 (2021)......................................... 32

McCoy v. Alamu,

950 F.3d 226 (5th Cir. 2020)............................... 32

McNair v. Coffey,

234 F.3d 352 (7th Cir. 2000)............................... 22

Morrow v. Meachum,

917 F.3d 870 (5th Cir. 2019)..................... 2, 13–14

Mullenix v. Luna,

577 U.S. 7 (2015)..................................... 12, 22–23

Payton v. New York,

445 U.S. 573 (1980) ............................................. 27

Pearson v. Callahan,

555 U.S. 223 (2008) ......................................... 2, 24

Plumhoff v. Rickard,

572 U.S. 765 (2014) ............................................. 23

Rivas-Villegas v. Cortesluna,

595 U.S. 1 (2021)..............................3–4, 17, 20, 22

Rowland v. Perry,

41 F.3d 167 (4th Cir. 1994)................................. 22

Safford v. Redding,

557 U.S. 364 (2009) ................................... 4, 27–29

Sampson v. County of Los Angeles,

974 F.3d 1012 (9th Cir. 2020)............................. 18

San Francisco v. Sheehan,

575 U.S. 600 (2015) ....................................... 17, 22

Saucier v. Katz,

533 U.S. 194 (2001) ..............................2, 17, 23–25

Sause v. Bauer,

585 U.S. 957 (2018) .................................... 5, 27-29

Sause v. Bauer,

859 F.3d 1270 (10th Cir. 2017)....................... 5, 28

Scott v. District of Columbia,

101 F.3d 748 (D.C. Cir. 1996) ............................. 22

Street v. Parham,

929 F.2d 537 (10th Cir. 1991)............................. 22

Taylor v. Riojas,

592 U.S. 7 (2020)................................................... 4

Tolan v. Cotton,

572 U.S. 650 (2014) ............................................. 23

United States v. Leon,

468 U.S. 897 (1984) ............................................. 27

West Virginia Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ............................................. 20

White v. Pauly,

580 U.S. 73 (2017) ............................................... 22

Winfrey v. Rogers,

901 F.3d 483 (5th Cir. 2018)............................... 13

xii

Zadeh v. Robinson,

902 F.3d 483 (5th Cir. 2018)............................... 11

Ziglar v. Abbasi,

582 U.S. 120 (2017) ............................................... 5

STATUTES

28 U.S.C. 1254(1) ....................................................... 1

42 U.S.C. 1983 ............................................................ 1

OTHER AUTHORITIES

David Rudovsky, The Qualified Immunity

Doctrine in the Supreme Court: Judicial

Activism and the Restriction of

Constitutional Rights, 138 U. Pa. L. Rev.

23, 59 (1989) ........................................................ 17

Jason Tiezzi et al., Unaccountable: How

Qualified Immunity Shields a Wide Range

of Government Abuses, Arbitrarily Thwarts

Civil Rights, and Fails to Fulfill Its

Promises, Institute for Justice (Feb. 2024) .... 6, 30

Peter Schuck, Suing Our Servants: The Court,

Congress, and the Liability of Public

Officials for Damages, 1980 S. Ct. Rev. 281

(1980) ................................................................... 30

PETITION FOR A WRIT OF CERTIORARI

Desiree Martinez petitions for a writ of certiorari

to review the Ninth Circuit’s judgment in this case.

OPINIONS BELOW

The Ninth Circuit’s opinion and the dissenting

opinion are reported and available at 91 F.4th 1022.

Pet.App. 2a–25a. The opinion of the United States

District Court for the Eastern District of California is

unreported but available at 2022 WL 96148. Pet.App.

27a–29a.

JURISDICTION

The Ninth Circuit’s opinion was filed on January

26, 2024. Pet.App. 2a. On March 6, 2024, the court

denied rehearing and rehearing en banc. Pet.App.

36a. Petitioner timely files this petition and invokes

this Court’s jurisdiction under 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

The Civil Rights Act of 1871 provides: “Every person who, under color of [law] * * * subjects, or causes

to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity,

or other proper proceeding for redress * * * .” 42

U.S.C. 1983.

INTRODUCTION

Fair notice is the lodestar of qualified immunity.

The question is whether a reasonable official in the

defendant’s shoes would have been fairly warned by

relevant judicial precedent that her actions violated

the plaintiff’s constitutional rights. Hope v. Pelzer,

536 U.S. 730, 739 (2002); see also Saucier v. Katz, 533

U.S. 194, 201–202 (2001) (for the first time discussing

the fair notice standard in the context of excessive

force claims), overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009).

But what’s fair in one set of circumstances (for example, when an officer is making a time-pressured decision to use force) is different from what’s fair in another set of circumstances (for example, when a lowlevel official has time and opportunity to deliberate).

Despite this common-sense notion, the circuits are

split on whether the fair notice standard of qualified

immunity allows for such flexibility—or any at all.

According to the Fifth and Tenth Circuits, fair notice is a flexible standard. If the defendant is a police

officer accused of excessive force, “the law must be so

clearly established that—in the blink of an eye, in the

middle of a high-speed chase—every reasonable officer would know it immediately.” Morrow v.

Meachum, 917 F.3d 870, 876 (5th Cir. 2019). But if

the “case does not involve excessive force, or split-second decisions,” the level of specificity needed to provide fair warning lessens, just as the official’s opportunity for reasoned reflection increases. Hughes v.

Garcia, 100 F.4th 611, 620 n.1 (5th Cir. 2024); see also

A.N. v. Syling, 928 F.3d 1191, 1199 (10th Cir. 2019).

According to the Eighth, Ninth, and Eleventh Circuits, on the other hand, fair notice is a rigid, inflexible standard: Courts must assess the fairness of the

notice with the same level of specificity, no matter the

type of the constitutional violation and no matter the

speed and circumstances under which the defendant

acts. Pet.App. 19a; Benning v. Comm’r, Ga. Dep’t of

Corr., 71 F.4th 1324, 1334 (11th Cir. 2023); Dillard v.

O’Kelley, 961 F.3d 1048, 1055 (8th Cir. 2020) (en banc)

(“Dillard II”). That’s why, in this case, the Ninth Circuit granted qualified immunity to a police officer

who, while working at the records department, disclosed over the phone a confidential domestic-violence

complaint to the subject of the complaint. Pet.App.

22a. This subject—the officer knew—was in the room

with the complainant. Ibid. The Ninth Circuit did so,

despite already announcing that disclosing such complaints to subjects of these complaints is unconstitutional and despite the fact that the officer had ample

time to consider her actions.

The Ninth Circuit’s backwards understanding of

qualified immunity runs contrary to this Court’s precedent and is inconsistent with the purpose behind

qualified immunity.

Precedent. This Court has decided ten cases involving the interplay of the fair warning standard

with an officer’s time-pressured decision to use force.

In all of them, the Court stressed that, outside of “an

obvious case,” a high level of generality is inappropriate. Rivas-Villegas v. Cortesluna, 595 U.S. 1, 6 (2021)

(per curiam). “Use of excessive force is an area of the

law in which the result depends very much on the

facts of each case.” Kisela v. Hughes, 584 U.S. 100,

104–105 (2018) (per curiam) (internal quotation

marks omitted). So existing precedent must “squarely

govern[]” the specific facts at issue. Brosseau v.

Haugen, 543 U.S. 194, 201 (2004) (per curiam).

Outside of time-pressured cases, on the other

hand, the Court has articulated a flexible standard.

In a case involving a strip search by public school officials, this Court stated that “even as to action less

than an outrage, ‘officials can still be on notice that

their conduct violates established law in . . . novel factual circumstances.’” Safford Unified Sch. Dist. No. 1

v. Redding, 557 U.S. 364, 377–378 (2009) (quoting

Hope, 536 U.S. at 741).1 In a case involving a deficient

warrant, the Court explained that “the basic rule, well

established by our cases, that absent consent or

1 Hope is often cited for the proposition that, where the con-

duct at issue is “extreme,” the “egregious facts” of the case “provide[] officers ‘with some notice that their alleged conduct’” is

unconstitutional. Taylor v. Riojas, 592 U.S. 7, 8–9 (2020) (per

curiam) (internal quotation marks omitted) (citing Hope, 536

U.S. at 741). In such cases, even when there isn’t a case on point,

qualified immunity will be denied. In this case, however, there

is no need to reach for this obviousness exception to qualified

immunity. After all, Ms. Martinez did point to an on-point case.

See Kennedy, 493 F.3d at 1063 (holding that disclosing a confidential complaint to its subject violates the complainant’s constitutional rights when this disclosure exposes the complainant

to foreseeable danger that she otherwise would not have faced).

That said, a summary reversal like the one issued in Taylor

would be appropriate here; it is obvious to any reasonable official

that disclosing confidential abuse complaints to subjects of these

complaints is unconstitutional. See Taylor, 592 U.S. at 9 n.2.

exigency, a warrantless search of the home is presumptively unconstitutional” can be sufficient—and

in fact was sufficient—to provide fair warning. Groh

v. Ramirez, 540 U.S. 551, 564 (2004). And in a case

involving officers stopping a woman from praying, the

Court reversed a grant of qualified immunity, Sause

v. Bauer, 585 U.S. 957, 960 (2018) (per curiam), after

the Tenth Circuit faulted the woman for not “identify[ing] a single case in which this court, or any other

court for that matter, has found a First Amendment

violation based on a factual scenario even remotely

resembling the one we encounter here[,]” 859 F.3d

1270, 1275 (10th Cir. 2017).2

Purpose. The Court’s stated purpose in creating

qualified immunity is to prevent chilling government

action. Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982).

The risk of chilling is greatest when a police officer is

making a time-pressured decision to use force under

uncertain and constantly evolving circumstances. The

same concerns do not attach to slowly unfolding

schemes, where government officials know what they

are doing is wrong.

Right now, qualified immunity is turned on its

head. Counterintuitively, “[g]overnment defendants

challenging a district court loss fully prevailed in 34%

2 There are three more cases—separate from the use of force

cases—where the Supreme Court has uniformly applied the

strictest level of specificity. Those are Ashcroft v. al-Kidd, 563

U.S. 731 (2011); Lane v. Franks, 573 U.S. 228 (2014); and Ziglar

v. Abbasi, 582 U.S. 120 (2017). All three involved claims against

high-level executive officials responsible for making decisions

with the broadest levels of discretion. This petition focuses on

the split between the circuits on how to treat lower-level officials.

of appeals with First Amendment claims but in only

23% of appeals with excessive force claims.”3 This

trend is in part due to circuits like the Ninth, which

require the same rigid standard for specificity in cases

not involving excessive force as they do in cases involving excessive force.

The Court should grant this petition and set the

record straight. The Fifth and Tenth Circuits correctly approach fair warning as an inherently flexible

inquiry. What’s fair for a police officer acting under

uncertain and rapidly evolving circumstances is different than what’s fair for someone whose decisionmaking is unaffected by such constraints.

STATEMENT OF THE CASE

A. Factual Background

Petitioner Desiree Martinez began dating Kyle

Pennington, a police officer with the Clovis Police Department (“Clovis PD”), in February 2013. Pet.App.

6a. In April 2013, soon after the two moved in together, Officer Pennington started to regularly assault Ms. Martinez, including through sexual and

physical violence. Ibid. On May 29, 2013, Ms. Martinez made a confidential call to the Clovis PD, reporting Officer Pennington’s abuse. Ibid.

At the time of these events, Respondent Officer

Channon High worked at Clovis PD’s records office.

3 Jason Tiezzi, et al., Unaccountable: How Qualified Immun-

ity Shields a Wide Range of Government Abuses, Arbitrarily

Thwarts Civil Rights, and Fails to Fulfill Its Promises, 25, Institute for Justice (Feb. 2024), https://ij.org/report/unaccountable/.

Pet.App. 7a. She and Officer Pennington had been

friendly for many years, starting with their days at

the police academy in 2007. Id. at 48a. Officer High

knew that Officer Pennington was on administrative

leave, pending a domestic violence investigation

against an ex-girlfriend. Id. at 49a–51a; see also id. at

16a–17a.

On September 7, 2013, at around three in the

morning, Ms. Martinez and Officer Pennington were

having an argument. Pet.App. 44a; see also id. at 8a.

Ms. Martinez told Officer Pennington that if he didn’t

stop abusing her, she was going to report him. Id. at

44a. In response, at 3:23 a.m., Officer Pennington

called Officer High and put her on speakerphone:

“So you’re telling the cops what * * * I * * * did to

you?” asked Officer Pennington of Ms. Martinez, with

Officer High listening in.

Ms. Martinez responded: “No.”

That’s when Officer High chimed in: “Yes, she did.

I see a report right here.”

Id. at 44a; see also id. at 54a (call log with cursor hovering over record for 3 a.m. call to Officer High).

At 3:43 a.m., Officer Pennington hung up.

Pet.App. 45a. Officer Pennington then physically and

sexually violated Ms. Martinez, inflicting on her “‘horrific, severe additional abuse.’” Id. at 8a.

B. Procedural History

1. On May 4, 2015, Ms. Martinez sued Officer

High, in addition to Officer Pennington, his parents,

five other police officers, and the cities of Hanger and

Clovis. Pet.App. 8a–9a.4 As relevant here, Ms. Martinez’s complaint included a claim against Officer

High for disclosing her confidential complaint to Officer Pennington, which led to instant, severe abuse.

Ms. Martinez argued that Officer High’s actions violated her substantive due process rights under the

Fourteenth Amendment. Id. at 9a.

After Officer High moved for summary judgment

based on qualified immunity, the district court ruled

against her, stating “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.”

Pet.App. 9a; see also id. at 40a–41a (ruling announced

from the bench). The district court similarly denied

the immunity defense to other officers. Id. at 9a.

These other officers, but not Officer High, appealed

the qualified immunity determination to the Ninth

Circuit. The Ninth Circuit reversed, holding that two

of these officers, through their separate actions,5

4 There were other instances of abuse inflicted on Ms. Martinez by Officer Pennington that are not the subject of this petition. An earlier Ninth Circuit opinion provides a comprehensive

review of these additional facts and claims against additional defendants. See Martinez v. City of Clovis, 943 F.3d 1260 (9th Cir.

2019) (“Martinez I”).

5 For example, one of the officers, Kristina Hershberger, dis-

paraged Ms. Martinez in front of Officer Pennington, when she

violated Ms. Martinez’s substantive due process

rights but that those rights were not clearly established. Martinez I, 943 F.3d at 1275–1276. Officer

High, in light of that ruling, asked for and received

leave to file a successive summary judgment motion

on her qualified immunity defense. The district court

subsequently ruled that Officer High, like the other

officers, was entitled to qualified immunity.

Pet.App. 28a.

2. Ms. Martinez asked the Ninth Circuit to reverse

that determination. The Ninth Circuit refused. It first

held that “Officer High violated Ms. Martinez’s due

process rights by knowingly placing her in greater

danger of Mr. Pennington’s assaults.” Pet.App. 19a.

Officer High not only knew Officer Pennington was on

leave because of alleged domestic violence against an

ex-girlfriend, she also knew that Ms. Martinez was in

the room with Officer Pennington when she contradicted Ms. Martinez’s attempts to save herself by

denying that she had filed a complaint against Officer

Pennington. Pet.App. 16a, 18a.

The Ninth Circuit nonetheless held that this right

was not clearly established, despite having already

held in Kennedy v. City of Ridgefield that officers

showed up on the scene in May 2013 to respond to Ms. Martinez’s

911 call, and disclosed the contents of their conversation. Martinez I, 943 F.3d at 1266–1267. The other officer, Fred Sanders,

called Kyle Pennington and his parents “good people,” after responding to a June 2013 911 call, this time made by Ms. Martinez’s neighbors. Id. at 1268, 1269. Officer Sanders also told another officer who wanted to arrest Officer Pennington: “We’re not

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

Id. at 1273.

violate due process by disclosing police complaints to

their subjects, thereby placing the complainants “in

danger that [they] otherwise would not have faced.”

439 F.3d at 1063.

Relying on this Court’s excessive force precedent,

the Ninth Circuit held that, even though “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.” Pet.App. 22a (citing this Court’s

excessive force cases). This was because Kennedy included “an additional aggravating factor,” namely

that the officers “misrepresented the level of danger

by assuring [the victim] they would patrol the neighborhood.” Ibid. In reliance on these assurances, the

victim did not leave her home immediately to protect

herself and her husband.

The court did not explain how that aggravating

factor interacted with an additional aggravating factor present only in this case: At the time Officer High

disclosed the report to Officer Pennington, there was

no opportunity for Ms. Martinez to escape. As Officer

High knew, Ms. Martinez was already in the room

with Officer Pennington and, at three in the morning,

would not stand a chance of fleeing his wrath.

Ms. Martinez had even less of a chance to escape than

the victim in Kennedy. But the Ninth Circuit did not

so much as acknowledge—let alone credit—this

distinction.

Judge Bumatay concurred in the judgment.

Pet.App. 23a. He wrote separately because he believed that the majority did not need to reach the

constitutional question at all. It would have been

enough to hold that the constitutional violation was

not clearly established. Id. at 24a.

The court denied Ms. Martinez’s petition for en

banc review. Pet.App. 36a.

3. This petition for certiorari follows. The question

before this Court is whether, in a situation not involving a time-pressured decision to use force, an officer

can be fairly warned about the unconstitutionality of

her conduct even when the facts of previous cases are

not materially identical to the facts the officer confronts. Because the Fifth and Tenth Circuits, unlike

the Eighth, Ninth, and Eleventh Circuits, answer this

question in the affirmative, the Court should grant

certiorari to resolve the split.

REASONS FOR GRANTING THE PETITION

The circuits are split on whether the

clearly-established-law test requires the

same level of exacting specificity in all

cases.

The clearly-established-law standard of the qualified immunity analysis is “neither clear nor established among our Nation’s lower courts.” Zadeh v.

Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett,

J., concurring dubitante). One issue that has persistently confused the circuits is whether—outside of the

excessive-force context—a nearly identical case is necessary to provide fair notice for qualified immunity.

Courts have struggled with whether they have the

flexibility to approach fair notice as a dynamic inquiry

rather than a one-size-fits-all affair that searches

only for virtually identical caselaw.

In the Fifth and Tenth Circuits, courts have flexibility. In cases not involving time-pressured decisions

to use force, both have acknowledged that officials can

be fairly warned, even in novel factual circumstances,

including in cases not involving obvious constitutional violations.

In the Eighth, Ninth, and Eleventh Circuits, on

the other hand, fair warning is a rigid standard that

is applied uniformly across the board to desk-bound

bureaucrats, first responders, and everyone in between. The Court should weigh in and resolve this circuit split.

A. In the Fifth and Tenth Circuits, when

the case doesn’t involve time-pressured calls to use force, courts dial

down the level of specificity required

to clearly establish the law.

Both the Fifth and Tenth Circuits recognize that

when this Court requires extreme specificity in cases

like Mullenix and Kisela, see Part IIA, infra at 22, 23

& n.8, it is driven by the high-pressure nature of excessive force claims. When considerations inherent to

evaluating the reasonableness of split-second decision-making are not present, these courts acknowledge that less specific cases can still provide fair

warning.

1. Hughes v. Garcia is one of the Fifth Circuit’s

most recent statements on clearly established law.

The case involved police officers obtaining a warrant

to arrest a man for impersonating an officer after the

man performed a citizen arrest of a swerving drunk

driver who crashed on a highway at 2:30 a.m. Hughes,

100 F.4th at 614. The problem with the warrant was

that it was based on an affidavit riddled with “misstatements, omissions, and inconsistencies.” Id. at

617. So the man sued, claiming that the officers violated his clearly established Fourth Amendment

rights. Id. at 618.

The Fifth Circuit agreed—without even trying to

identify a case with similar facts. Id. at 620. Writing

for the unanimous panel, Judge Oldham explained

that the “violation has been clearly established since

Franks [v. Delaware, 438 U.S. 154 (1978)]” because of

the “simple, clearly established rule that all officers

should know at all times under Franks and Winfrey

[v. Rogers, 901 F.3d 483 (5th Cir. 2018)]: Do not lie.”

Id. at 620 & n.1.

The court acknowledged that “[i]n the context of

split-second excessive force cases, the Supreme Court

has ‘repeatedly told courts not to define clearly established law at too high a level of generality.’” Id. at 620

n.1 (quoting City of Tahlequah v. Bond, 595 U.S. 9, 12

(2021) (per curiam)). “That is so because in the typical

excessive-force case * * * ‘the law must be so clearly

established that—in the blink of an eye, in the middle

of a high-speed chase—every reasonable officer would

know it immediately.’” Ibid. (quoting Morrow, 917

F.3d at 876). In cases not involving time-pressured decisions to use force, however, such specificity is not

necessary to fairly warn an officer about the constitutionality of the conduct. Ibid.; see also Morrow, 917

F.3d at 876 (stating that “overcoming qualified immunity is especially difficult in excessive force cases”).

2. The Tenth Circuit is similarly nimble in its application of the fair warning standard to cases not involving time-pressured decisions to use force.

In A.N. v. Syling, for example, the mother of a minor sued police for publicly releasing confidential information disclosing the arrest record of her 16-yearold daughter. 928 F.3d at 1193–1194. The mother argued that officials violated her daughter’s clearly established equal protection rights by treating her differently than other similarly situated juveniles. Id.

at 1195.

The Tenth Circuit agreed, holding that precedent

need not be defined with a high degree of specificity

there, because “the clearly established standard for

determining whether an official has violated a plaintiff’s right to equal protection under the law * * * is

relatively straightforward and not difficult to apply.”

Id. at 1199. This contrasts with the “‘imprecise nature’ of the relevant legal standards and the fact-intensive assessment” in cases involving use of force.

Ibid. As the court explained elsewhere, fair notice

looks different when the facts “involve[] more an egregious trespass into constitutionally well-marked terrain than an accidental inching across some vaguelydefined legal border.” Janny v. Gamez, 8 F.4th 883,

915–916 (10th Cir. 2021) (citation and quotation

marks omitted) (comparing a Fourth Amendment

challenge to an officer’s split-second assessment with

a free exercise claim).

B. The Ninth Circuit has a rigid approach

to fair warning.

1. This case is stronger than either Hughes or A.N.

Here, Ms. Martinez had something that the plaintiffs

in those two cases did not have—a precedent with

strikingly similar facts. But because the Ninth Circuit

departs from the Tenth and the Fifth on the nature of

the fair warning inquiry, it still held that Ms. Martinez’s rights were not clearly established.

Like in this case, Kennedy v. City of Ridgefield involved a police officer who disclosed a confidential police complaint to its subject. 439 F.3d at 1058. This

subject—again, like here, a person with a history of

violence of which the officer was fully aware—then

went on to shoot the complainant and murder her

husband. Ibid. When the complainant sued, the Ninth

Circuit allowed her suit to proceed despite the officer’s

claims of immunity. Ibid. In the process, the court

held that the complainant alleged a violation of a constitutional right because by disclosing the confidential complaint, the officer put her in a dangerous situation that she otherwise would not have faced, and—

given that the officer knew of the murderer’s history

of violence—that this danger was foreseeable. Id. at

1062–1064.

Despite this very close precedent, the Ninth Circuit here held that the law was not clearly established

to put a reasonable officer in Officer High’s shoes on

notice. Pet.App. 22a. That’s because the Ninth Circuit

(in contrast to the Fifth or Tenth) applied the same

level of specificity in this case as it would have in an

excessive force case. According to the court, “[i]t is

* * * the facts of particular cases that clearly establish

what the law is.’” Pet.App. 21a (quoting Isayeva v.

Sacramento Sheriff’s Dep’t, 872 F.3d 938, 951 (9th

Cir. 2017)). And because in Kennedy there was “an additional aggravating factor,” namely that “[t]he officers in Kennedy * * * misrepresented the level of danger by assuring [the widow] they would patrol the

neighborhood,” “no existing authority gave Officer

High sufficient notice in 2013 that her conduct violated due process.” Pet.App. 22a.

But this case too had “an additional aggravating

factor” that makes the constitutional violation here

even more apparent. Unlike in Kennedy, where the

confidential report was disclosed while the victim was

at a relatively safe distance, Officer High knew that

Ms. Martinez was already in the room with the perpetrator, desperately denying that she ever filed the

complaint. Pet.App. 16a. Officer High, on speakerphone, then contradicted the victim. Ibid. After

Ms. Martinez told Pennington that she did not file the

report, Officer High responded: “Yes, she did. I see a

report right here.” Id. at 8a. Following this disclosure,

Officer Pennington hung up, physically and sexually

abusing Ms. Martinez. Ibid. If the officer in Kennedy

violated the victim’s constitutional rights by foreseeably placing the widow and her husband in non-immediate danger through disclosing a confidential report, then the officer in this case surely violated

Ms. Martinez’s constitutional rights by foreseeably

placing her in immediate danger through that same

action. It defies common sense to hold that a reasonable officer in Officer High’s shoes would not have

been fairly warned of her actions’ unconstitutionality

by Kennedy.

2. Ironically, this Court has repeatedly reversed

the Ninth Circuit for being too loose with its qualified

immunity standard in excessive-force cases.6 See Rivas-Villegas, 595 U.S. at 8; City & County of San

Francisco v. Sheehan, 575 U.S. 600, 617 (2015);

Brosseau, 543 U.S. at 195. In Sheehan, the Court even

called out the Ninth Circuit by name for failing to analyze these types of cases with a higher level of specificity. 575 U.S. at 613 (“We have repeatedly told

courts—and the Ninth Circuit in particular—not to

define clearly established law at a high level of generality.”). But when it comes to cases not involving splitsecond decisions to use force, the Ninth Circuit has

overcorrected. In this context, it consistently asks

plaintiffs to present cases factually identical to their

6 While reading a court’s mind is folly, we suspect that this

backwards dynamic flows from the Ninth Circuit’s understanding that “the test for qualified immunity in excessive force cases

is the same as the test on the merits.” LaLonde v. County of Riverside, 204 F.3d 947, 959 (9th Cir. 2000); see also David Rudovsky, The Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights, 138

U. Pa. L. Rev. 23, 59 (1989) (“A strong argument can be made

that the use of more force than is necessary preempts an immunity defense.”). But this Court has long ago denounced this idea,

making it clear that the two prongs of the qualified immunity

analysis do not collapse on each other merely because Graham

v. Connor, 490 U.S. 386 (1989), announced that excessive force

cases are to be analyzed under the Fourth Amendment standards of reasonableness. See Part IIA, infra at 22–23. If anything,

as this Court explained, “[a]n officer might correctly perceive all

of the relevant facts but have a mistaken understanding as to

whether a particular amount of force is legal in those circumstances.” Saucier v. Katz, 533 U.S. 201, 205 (2001). Given that

“those circumstances” are often dangerous and rapidly evolving,

the Court has been generous in its interpretation of fair warning

in this particular context.

own. See Pet.App. 22a. For example, it held in another recent case that a reasonable public official

would not have been fairly warned that sexually harassing a person receiving social services constitutes

an equal protection violation even though there is

Ninth Circuit caselaw holding that if a public official

sexually harasses a “coworker, supervisor, classmate,

or teacher,” that constitutes an equal protection violation. After all, the clearly established test is an “impossibly high bar.” Sampson v. County of Los Angeles,

974 F.3d 1012, 1023–1024 (9th Cir. 2020).

The Ninth Circuit is wrong to apply the same approach in both contexts. Government officials who

have the luxury of making considered judgments may

have fair warning when an official under the gun (figuratively or literally) may not. The Ninth Circuit’s approach does not acknowledge this common-sense

reality.

C. The Eighth and Eleventh Circuits now

similarly utilize the rigid framework

for fair warning.

Some circuits used to be in line with the Fifth and

Tenth but have recently changed sides in the split,

adopting the Ninth Circuit’s rigid approach.

1. Just in 2020, for example, a unanimous Eighth

Circuit panel held that government officials who publicly released a confidential complaint identifying

plaintiffs as victims of childhood sexual abuse did not

have qualified immunity because the law, while

“[i]nexact,” provided “fair notice to the appellants that

releasing details of minors’ sexual abuse * * * was not

only unadvisable, but also unlawful.” Dillard v. City

of Springdale, 930 F.3d 935, 944 (8th Cir. 2019).

“Where, as here, we are not reviewing split-second,

life-or-death decisions characteristic of excessive force

cases, the range of reasonable judgments naturally

narrows by virtue of the officials’ increased opportunity for reasoned reflection.” Id. at 945 (citing

Brown v. City of Golden Valley, 574 F.3d 491, 497 (8th

Cir. 2009)).

The court acknowledged that in the only relevant

precedent, “we have repeatedly declined to deny qualified immunity for disclosures involving anything

short of ‘the most intimate aspects of human affairs.’”

Id. at 941. The court reasoned that “[t]he content and

circumstances of these disclosures do not just meet

[this standard], they illustrate them.” Id. at 944. As a

result, even without nearly identical precedent,

“[t]his is a case in which general standards clearly established the answer.” Ibid. (cleaned up).

This decision, however, was soon vacated by the

Eighth Circuit sitting en banc, holding that “the alleged constitutional right to informational privacy is

not ‘beyond debate’ in the Eighth Circuit.” Dillard II,

961 F.3d at 1054.

2. The Eleventh Circuit has similarly drifted to

this rigid approach. In its recent decision involving

screening of outgoing emails sent from prisoners, it

held that even though prisoners have a clearly established liberty interest in their outgoing mail, prison

officials are not fairly warned of a corresponding liberty interest in the prisoners’ outgoing email. Benning, 71 F.4th at 1338. For the articulation of the fair

warning standard, the Eleventh Circuit relied on this

Court’s latest excessive-force qualified-immunity decision, Rivas-Villegas. Id. at 1333–1334.

This was a marked change from the Eleventh Circuit’s historical approach. For example, in 2004, the

court considered a case involving a student being punished for raising his fist in the air during the recitation of the pledge of allegiance and held that his right

to raise a fist (which is separate from the right to remain silent during the pledge of allegiance) was

clearly established. Holloman v. Harland, 370 F.3d

1252 (11th Cir. 2004). It did so despite the lack of clear

precedent on point. The only cases it could point to

involved expressions occurring outside of the classroom, in an environment where teachers have less

compelling interest to establish order. The Court said

that the right to raise a fist “would even be ‘clearly

established’ under [West Virginia Bd. of Educ. v.]

Barnette [, 319 U.S. 624 (1943)].” Id. at 1279. “First

Amendment protections are not lost that easily.” Ibid.

In sum, the circuits are split over the appropriate

standard for assessing fair warning under qualified

immunity. Some circuits, like the Fifth and Tenth, approach the test as a flexible inquiry: what is fair for a

first responder making a decision about the use of

force is different than what is fair for an official—even

a police officer—who’s had time for reasoned reflection. Other circuits, like the Eighth, Ninth, and Eleventh, disagree. With more circuits drifting away from

the flexible approach, it is imperative for this Court to

step in and clarify that officials “who have time to

make calculated choices” should not be entitled to the

same level of protection as “a police officer who makes

a split-second decision to use force in a dangerous setting.” Hoggard v. Rhodes, 141 S. Ct. 2421, 2422

(2021) (Thomas, J., statement respecting denial of

certiorari).

II.

This Court’s precedent confirms that, contrary to the Ninth Circuit’s holding below,

the clearly-established-law test does not

always require the same level of exacting

specificity.

Unlike the Ninth Circuit, this Court does not approach qualified immunity as a rigid inquiry. In cases

involving excessive force, it uniformly requires plaintiffs to produce precedent with a high level of specificity. In other cases, it is much more flexible.

The strict-specificity standard in excessive force

cases was borne out of the need to ensure that lower

courts do not just use the broad rule in Graham v.

Connor as clearly established law. Because the border

between excessive and reasonable force is often hazy,

and because decision-making in stressful situations is

impaired, it was important that the notice an officer

would receive would be more specific, not less.

In situations not involving excessive force, on the

other hand, this Court has allowed plaintiffs to rely

on cases without materially identical facts to show

fair warning. Even in cases that do not involve obvious violations, an official who has time to deliberate

before making a decision can be on notice in novel factual circumstances.

The Fifth and Tenth Circuits understand this

throughline in the Court’s jurisprudence. The Eighth,

Ninth, and Eleventh Circuits do not.

A. The strict specificity requirement for

use of force cases was a result of the

lower courts’ insistence on using Graham v. Connor as precedent clearly establishing the law.

1. Before the Court took on qualified immunity in

the context of excessive force, many lower courts saw

Graham v. Connor as generally providing officers

with fair notice that their actions violate the Fourth

Amendment anytime force was deemed excessive.7 To

break the habit, this Court took on the interplay between the fair-warning standard and excessive force

ten times in twenty-three years.8 In the process, it

7 Graham v. Connor made it explicit for the first time that

all excessive force claims must be analyzed under the Fourth

Amendment, and not the Fifth Amendment, focusing on whether

a reasonable officer could have believed that the force used was

necessary under the circumstances. 490 U.S. at 395. Many lower

courts latched onto that precedent as the clearly established law

for all excessive force cases, collapsing the qualified immunity

inquiry into the inquiry made on the merits of the constitutional

claim. See LaLonde, 204 F.3d at 959; McNair v. Coffey, 234 F.3d

352, 355 (7th Cir. 2000); Scott v. District of Columbia, 101 F.3d

748, 759 (D.C. Cir. 1996); Rowland v. Perry, 41 F.3d 167, 172–

173 (4th Cir. 1994); Jackson v. Hoylman, 933 F.2d 401, 402–403

(6th Cir. 1991); Street v. Parham, 929 F.2d 537, 540 (10th Cir.

1991).

8 Rivas-Villegas, 595 U.S. at 7–8; Bond, 595 U.S. at 12–13;

City of Escondido v. Emmons, 586 U.S. 38, 42 (2019) (per curiam); Kisela, 584 U.S. at 104–105; White v. Pauly, 580 U.S. 73,

79–80 (2017) (per curiam); Sheehan, 575 U.S. at 617; Mullenix v.

emphasized that excessive force claims are particularly difficult because of the hazy border between an

appropriate use of force and an excessive one and because officers in those cases are often making decisions under pressure. Mullenix v. Luna, 577 U.S. 7,

12 (2015) (per curiam). These constraints made it difficult “for an officer to determine how the relevant legal doctrine * * * will apply to the factual situation

the officer confronts.” Ibid. As a result, the Court required that fair notice is grounded in “the specific

facts at issue.” Kisela, 584 U.S. at 104–105.

2. This Court first dealt with the fair-notice requirement in the context of excessive force cases in

Saucier v. Katz, explaining why the general principles

announced in Graham were insufficient to provide

fair warning.

In Saucier, a military police officer was accused of

using excessive force to arrest a protester during Vice

President Al Gore’s visit to the Presidio Army Base in

San Francisco. 533 U.S. at 197. The Ninth Circuit denied qualified immunity to the officer, holding that

Graham clearly established the excessive force violation. Id. at 199. This Court reversed, explaining that

while “Graham v. Connor * * * clearly establishes the

general proposition that [excessive] use of force is contrary to the Fourth Amendment,” “[t]he relevant,

Luna, 577 U.S. 7, 11–13 (2015) (per curiam); Plumhoff v. Rickard, 572 U.S. 765, 779–781 (2014); Brosseau, 543 U.S. at 197–

199; Saucier, 533 U.S. at 201. While Hernandez v. Mesa, 582 U.S.

548 (2017), and Tolan v. Cotton, 572 U.S. 650 (2014), also involved excessive force, they did not address the level of specificity required to assess fair warning, so we do not include them in

the overall count.

dispositive inquiry in determining whether the right

is clearly established is whether it would be clear to a

reasonable officer that his conduct was unlawful in

the situation he confronted.” Id. at 201–202. That’s

because Graham’s test “accommodate[s] limitless factual circumstances.” Id. at 205. For officers who perform their duties “with considerable uncertainty,”

this will not be enough. Id. at 203. The officers might

“correctly perceive all of the relevant facts but have a

mistaken understanding as to whether a particular

amount of force is legal in those circumstances.” Id. at

205. If the governing legal principle is not established

with specificity, then the legal mistake is reasonable,

entitling the officer to qualified immunity. Ibid.9

Applying this principle to the facts in Saucier, the

Court concluded that “[i]n the circumstances presented to this officer, which included the duty to protect the safety and security of the Vice President of

the United States from persons unknown in number,

neither respondent nor the Court of Appeals has identified any case demonstrating a clearly established

rule prohibiting the officer” from using, what respondent described as a “gratuitously violent shove” when

placing him into a van. Id. at 208–209. Without such

a case, the officer was not “on notice that [his] conduct

[was] unlawful.” Id. at 206.

3. In nine subsequent decisions involving the interplay between qualified immunity and excessive

9 Saucier also, for the first time, required courts to sequence

their qualified immunity analyses into two particularly ordered

steps. This holding since had been reversed. Pearson, 555 U.S.

at 227.

force, the Court held the line. It continued to insist

that Graham is not enough to accommodate the “limitless factual circumstances” that result in reasonable

uncertainty for officers in difficult, time-pressured situations that have a potential to threaten the life of

the officer or the public. To fairly warn the officer of

the unconstitutionality of the conduct, the law must

be so clearly established that even in the blink of an

eye he would know it immediately.

B. Outside of the excessive force context,

this Court acknowledges that officials

can be on notice that their conduct violates clearly established law in novel

factual circumstances.

1. Saucier’s reasoning is not a blank check for

courts to require factually identical caselaw in all circumstances, especially outside of the excessive-force

context. While the Court has consistently required an

exacting level of specificity in cases involving excessive force, it has allowed a much greater degree of

flexibility when it comes to other constitutional

violations.

In Hope v. Pelzer, the Court explained that “officials can still be on notice that their conduct violates

clearly established law even in novel factual circumstances.” 536 U.S. at 741. “[F]undamentally similar

facts” and “materially similar facts” are not necessary. Ibid. (internal quotation marks omitted). What

matters is whether “the state of the law [at the time]

gave respondents fair warning that their [actions

were] unconstitutional.” Ibid.

Hope is often only identified as a case involving obvious constitutional violations. But Hope is so much

more than that. Before getting to the obviousness

point, Hope explained that the key to figuring out notice is to focus on “the state of the law” at the time of

the conduct. 536 U.S. at 741. That state of the law,

first and foremost, is precedent in this Court and the

relevant circuit. Id. at 741–742. While the Court

acknowledged that “[t]he obvious cruelty” can “provide respondents with some notice,” id. at 745, it held

that cases can provide reasonable officials with fair

notice even when they are not identical on the facts.

So, for example, a case announcing that “physical

abuse directed at a prisoner after he terminates his

resistance to authority would constitute an actionable

eighth amendment violation” would provide fair

warning that handcuffing a prisoner to a hitching

post for seven hours would constitute an actionable

Eighth Amendment violation. Id. at 743 (cleaned up).

2. The Court has embraced this principle even in

cases involving Fourth Amendment claims against

police. In Groh v. Ramirez, the Court denied qualified

immunity to an officer who executed a search pursuant to a deficient warrant (i.e., the officer omitted key

facts, while still including them in the warrant affidavit). 540 U.S. at 564–565. The Court was satisfied

that the law was sufficiently clear to put a reasonable

officer on notice, even though the relevant precedent

was easily distinguishable. Ibid.

For example, one of the cases relied on by the

Court was about neither searches nor deficient warrants. Instead, it concerned an unconstitutional statute authorizing warrantless entries into homes to

make routine felony arrests. Id. at 565 (citing Payton

v. New York, 445 U.S. 573 (1980)). The other two cases

the Court cited were exclusionary rule cases. The first

one specifically declined to rule on whether there was

a violation of the Fourth Amendment. Id. at 557 (citing Massachusetts v. Sheppard, 468 U.S. 981, 988

(1984)). The second one involved an officer knowing

about an error in the warrant and relying on it, as opposed to being unaware that there was an error in the

first place. Groh, 540 U.S. at 570 (Kennedy, J., dissenting) (distinguishing United States v. Leon, 468

U.S. 897 (1984)).

Still, the Court held that “the basic rule, well established by our cases, that, absent consent or exigency, a warrantless search of the home is presumptively unconstitutional” would have put a reasonable

officer on notice that failing to include the information

on a warrant would violate the Fourth Amendment.

Groh, 540 U.S. at 564.

Importantly, the Court emphasized that the officer

did not “contend that any sort of exigency existed

when he drafted the affidavit, the warrant application, and the warrant, or when he conducted the

search.” Id. at 565 n.9. “This is not the situation * * *

in which we have recognized that ‘officers in the dangerous and difficult process of making arrests and executing search warrants’ require ‘some latitude.’”

Ibid. (quoting Maryland v. Garrison, 480 U.S. 79,

87 (1987)).

3. Sause v. Bauer and Safford Unified School District No. 1 v. Redding—cases not involving Fourth

Amendment claims against police—also show that

precedent distinguishable on facts can still provide

fair warning.

In Sause, the Court reversed the Tenth Circuit’s

grant of qualified immunity to officers who stopped a

woman from praying as they broke into her apartment in response to a noise complaint. 585 U.S. at

960. The Tenth Circuit ruled for the officers because

the woman failed to “identify a single case in which

this court, or any other court for that matter, has

found a First Amendment violation based on a factual

scenario even remotely resembling the one we encounter here.” Sause, 859 F.3d at 1275. This Court

sent the case back, explaining that “[p]rayer unquestionably constitutes the ‘exercise’ of religion” and that

the officers may have violated the Constitution by interfering, even though there was no existing caselaw

addressing the unique facts at hand. Sause, 585 U.S.

at 959–960.

In Safford—a case involving a strip search of a

teenage girl by a public school official—the Court did

grant qualified immunity, but it acknowledged that

“even as to action less than an outrage, officials can

still be on notice that their conduct violates established law . . . in novel factual circumstances.” 557

U.S. at 377–378 (cleaned up).

In light of this Court’s clear direction, the Ninth

Circuit erred here when it held that the precedent

that Ms. Martinez presented was not enough to put a

reasonable official on notice. Any reasonable officer in

Officer High’s shoes would have known that, per Kennedy, disclosing a domestic violence report to its subject is unconstitutional, even assuming arguendo that

an officer in a time-pressured situation may not have

reached the same conclusion. The Ninth Circuit thus

failed to account for the flexible nature of what constitutes fair warning and is inconsistent with cases

like Hope, Groh, Safford, and Sause that do not require the clearly established law to be grounded in

“the specific facts at issue.” Kisela, 584 U.S. at

104–105.

C. The rigid approach adopted by the

Ninth Circuit is inconsistent with the

reasoning behind qualified immunity.

The Court articulated the modern-day qualifiedimmunity standard in Harlow v. Fitzgerald. This

standard is rooted in the “balance between the evils

inevitable in any available alternative.” Harlow, 457

U.S. at 813. One evil is the “dampen[ing] [of] the ardor

of all but the most resolute, or the most irresponsible

[public officials], in the unflinching discharge of their

duties.” Id. at 814 (third alteration in the original).

The other evil is that some wrongs suffered by victims

of unconstitutional conduct would go unaddressed. Id.

at 817–818.

This balancing of evils, as the term suggests, depends on what is being balanced. Sometimes one side

of the scale holds the need to protect a police officer

who made a split-second decision in response to an

uncertain and dangerous situation confronting him

and the public. In such a case, the potential chilling

effect on the officer’s conduct could be destabilizing

and come with a high cost to society, outweighing the

evil of denying a remedy.

But when that side of the scale contains conduct

that—like here—is far from the frontlines, a potential

chilling effect might actually benefit society (it’s a

good idea to stop and think before disclosing a confidential domestic violence complaint to the subject of

the complaint), making the price of denying a remedy

unacceptable. Peter H. Schuck, Suing Our Servants:

The Court, Congress, and the Liability of Public

Officials for Damages, 1980 S. Ct. Rev. 281,

325–327 (1980).

Because the Ninth Circuit’s decision is inconsistent with the reasoning behind qualified immunity,

as well as this Court’s precedent, it must be reversed.

III. The case presents an important question

and is a suitable vehicle for resolving it.

1. In practice, the failure to properly calibrate the

fair-warning test to the situation a government officer

confronts leads to results that turn qualified immunity on its head. According to the Institute for Justice’s

2024 study on qualified immunity, police officers appealing the denial of qualified immunity in cases involving excessive force claims prevailed only in 23

percent of appeals. Tiezzi, et al., supra note 3, at 25.

In contrast, government defendants who appealed the

denial of qualified immunity on First Amendment

claims were able to overturn those denials 34 percent

of the time. Ibid. As IJ’s report suggests, one possible

explanation is that First Amendment claims are more

factually diverse than excessive force claims, making

it harder for plaintiffs to “pinpoint a prior case with

sufficiently similar facts.” Ibid.

But that’s exactly why the rigid approach adopted

by the Ninth Circuit does not work. If the only requirement, outside of an obvious case, is close factual

similarity, then police officers sued for making timepressured decisions to use force will have less protection than desk-bound bureaucrats making calls in the

comfort of their air-conditioned offices. If, on the other

hand, courts evaluate fair warning in light of the officer’s actual circumstances—as is the case in the

Fifth and Tenth Circuits—a greater degree of protection will go to where it belongs: with first responders

tasked with risking their lives to protect the public.

2. This case is a suitable vehicle to answer the

question presented. The Ninth Circuit resolved the

existence of the right in an earlier case and then applied an extremely demanding qualified immunity

standard in this one. The outcome-determinative

question, therefore, is what is the nature of prong two

of qualified immunity.

In the Ninth Circuit (as well as the Eighth and

Eleventh), fair warning is a rigid inquiry that does not

adjust for the circumstances confronting the officer.

In the Fifth and Tenth Circuits, fair warning is a flexible inquiry, resulting in a more protective standard

for time-pressured decisions to use force. This Court

should resolve the circuit split. In the process, it

should explain that government officials with time to

make reasoned choices should not have the same level

of protection as those without.10

CONCLUSION

This Court should grant the petition to resolve the

split.

Respectfully submitted,

KEVIN G. LITTLE

LAW OFFICE OF

KEVIN G. LITTLE

P.O. Box 8656

Fresno, CA 93747

(559) 342-5800

kevin@kevinglittle.com

ANYA BIDWELL

Counsel of Record

VICTORIA CLARK

PATRICK JAICOMO

INSTITUTE FOR JUSTICE

901 N. Glebe Rd.

Ste. 900

Arlington, VA 22203

(703) 682-9320

abidwell@ij.org

Counsel for Petitioner

AUGUST 2, 2024

10 This case is also a great candidate for a GVR. See McCoy

v. Alamu, 141 S. Ct. 1364 (2021) (reversing the grant of qualified

immunity to a prison guard who pepper-sprayed a prisoner even

though the prisoner only pointed to “the general principle that

prison officers can’t act maliciously and sadistically to cause

harm,” 950 F.3d 226, 234 (5th Cir. 2020) (cleaned up)).

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A:

Opinion from the United

States Court of Appeals for the

Ninth Circuit (January 26,

2024) ............................................. 1a

APPENDIX B:

Order from the United States

District Court, Eastern District of California (January 10,

2022) ........................................... 26a

APPENDIX C:

Order from the United States

District Court, Eastern District of California (November

3, 2017) ....................................... 30a

APPENDIX D:

Order from the United States

Court of Appeals for the Ninth

Circuit Denying Rehearing

(March 6, 2024) .......................... 35a

APPENDIX E:

Excerpt from Transcript of the

October 17, 2017 Hearing in

the United States District

Court for the Eastern District

of California ................................ 37a

APPENDIX F:

Excerpt from Desiree Martinez Deposition Transcript

(Reformatted) ............................. 42a

APPENDIX G:

Excerpt from Channon High

Deposition Transcript

(Reformatted) ............................. 46a

APPENDIX H: Excerpt of Kyle Pennington

Call Log (Reformatted) .............. 52a

Appendix A

Opinion from the United States Court of

Appeals for the Ninth Circuit

January 26, 2024

Appendix A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

DESIREE MARTINEZ,

Plaintiff-Appellant,

CHANNON HIGH,

No. 22-16335

D.C. No.

1:15-cv-00683DAD-SKO

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

Appendix A

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

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

has been prepared by court staff for the convenience of the

reader.

Appendix A

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 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.

Appendix A

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.

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.

Appendix A

BACKGROUND1

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 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

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

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

Appendix A

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. 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

2 Whether Ms. Martinez overheard the call on September 3 or 7

does not affect our analysis.

Appendix A

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. Martinez’s complaint included a

§ 1983 claim against Officer High and other officers

Appendix A

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

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.

10a

Appendix A

Officer Hershberger violated Ms. Martinez’s due 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.

11a

Appendix A

“In doing so, we view the evidence in the light most

favorable to” the nonmoving party. Id. at 1270.

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.

12a

Appendix A

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 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.

13a

Appendix A

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 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

14a

Appendix A

“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 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.

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.

15a

Appendix A

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 CornwallOn-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).

16a

Appendix A

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

17a

Appendix A

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

I, 943 F.3d at 1274.6

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

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

the harm was foreseeable.

18a

Appendix A

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 “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

19a

Appendix A

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.

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.

20a

Appendix A

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. 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

21a

Appendix A

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 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).

22a

Appendix A

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.

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

23a

Appendix A

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 standards from other contexts to try to breathe new

life into substantive due process.” Murguia, 73 F.4th

24a

Appendix A

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

25a

Appendix A

constitutional violation question under these circumstances.

For these reasons, I concur only in the judgment of

the court.

26a

Appendix B

Order from the United States District Court

Eastern District of California

January 10, 2022

27a

Appendix B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DESIREE MARTINEZ,

No. 2:15-cv-00683-JAM

Plaintiff,

ORDER GRANTING

DEFENDANT HIGH’S

KYLE PENNINGTON, MOTION FOR SUMet al.,

MARY JUDGMENT

Defendant.

Before this Court is Defendant Channon High’s

motion for summary judgment on Plaintiff’s § 1983

claim for violation of due process, the sole remaining

claim against her. Def.’s Mot. for Summary J.,

(“Mot.”), ECF No. 206. The parties are familiar with

the facts and posture of this case, so the Court does

not repeat them here.

Despite Plaintiff’s objections, the Court finds the

motion to be procedurally proper. See Opp’n at 7. Defendant was under no obligation to appeal this Court’s

previous denial of summary judgment on the issue of

qualified immunity and the defense would be available to her at trial. See Arrington v. City of Los Angeles, CV 15-03759-BRO (RAOx), 2017 WL 10543403, at

*6 (C.D. Cal. June 30, 2017) (noting both the

28a

Appendix B

Supreme Court and Ninth Circuit have recognized

that qualified immunity may be decided at trial). The

Supreme Court has repeatedly “stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Pearson v. Callahan,

555 U.S. 223, 232 (2009) (internal quotation marks

and citation omitted). This is because an officer

should be permitted to avoid the expense and burden

of trial if her conduct is protected by the doctrine. See

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accordingly, the Court may resolve the issue now.

In light of the Ninth Circuit’s recent decision in

this case, see Martinez v. City of Clovis, 943 F.3d 1260

(9th Cir. 2019), the Court finds Defendant is entitled

to qualified immunity as it was not clearly established

in 2013 that Defendant’s conduct violated due process. This Court previously relied on Okin v. Vill. of

Cornwall-on-Hudson Police Dep’t, 577 F.3d 415 (2d

Cir. 2009) in denying Defendant’s motion for summary judgment on qualified immunity. However, the

Ninth Circuit in Martinez found that Okin could not

be relied upon as it had not been embraced by a consensus of courts. 943 F.3d at 1276. Plaintiff’s reliance

on Kennedy v. Ridgefield City, 439 F.3d 1055 (9th Cir.

2006) is also unpersuasive as it is factually distinguishable and existed when the Ninth Circuit decided

Martinez. Likewise, Plaintiff’s citations to equal protection cases, Opp’n at 17, do not advance her theory

that it was clearly established that Defendant’s conduct violated due process.

29a

Appendix B

The Court finds Plaintiff has failed to demonstrate

Defendant’s conduct violated clearly established law

at the time of her conduct. See Romero v. Kitsap

Cnty., 931 F.2d 624, 627 (9th Cir. 1991) (“The plaintiff

bears the burden of proof that the right allegedly violated was clearly established at the time of the alleged

misconduct.”). Accordingly, Defendant Channon High

is entitled to qualified immunity and her request for

summary judgment is GRANTED. The hearing set for

January 11, 2022 is hereby vacated.

IT IS SO ORDERED.

Dated: January 10, 2022

s/ John A. Mendez

JOHN A. MENDEZ,

UNITED STATES

DISTRICT JUDGE

30a

Appendix C

Order from the United States District Court

Eastern District of California

November 3, 2017

31a

Appendix C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DESIREE MARTINEZ,

Plaintiff,

vs.

No. 1:15-cv-00683-JAM

MJS

ORDER

DATE: October 17,

KYLE PENNINGTON;

2017

KIM PENNINGTON;

TIME: 1:30 p.m.

CONNIE PENNINGCTRM: 14, 6th floor

TON; KRISTINA

HERHBER-GER; JESUS

SANTILLAN; CHANNON HIGH; THE CITY

OF CLOVIS; ANGELA

YAMBUPAH; RALPH

SALAZAR; FRED SANDERS; THE CITY OF

SANGER; and DOES 1

through 20,

Defendants.

Defendants’ Motion for Summary Judgment came

on regularly for hearing on October 18, 2017 at

1:56 p.m. before the Honorable John A. Mendez.

Plaintiff was present in court and appeared by and

through her counsel of record.

32a

Appendix C

KRISTINA HERHBERGER; JESUS SANTILLAN;

CHANNON HIGH; THE CITY OF CLOVIS;

ANGELA YAMBUPAH; RALPH SALAZAR; FRED

SANDERS; THE CITY OF SANGER (“the City Defendants”), appeared by and through their counsel of

record G. Craig Smith of the Law Offices of Ferguson,

Praet & Sherman, APC. Defendants Kim Pennington

and Connie Pennington appeared through their counsel of record, John W. Phillips, of Wild, Carter and

Tipton APC. Defendant Kyle Pennington did not appear.

After consideration of the moving, opposing, and

reply papers, any arguments of counsel, and with

GOOD CAUSE SHOWING,

IT IS HEREBY ORDERED:

1. City Defendants’ Motion for Summary Judgment is GRANTED IN PART and DENIED IN

PART.

2. City Defendants’ Motion for Summary [Judgment] is GRANTED for all Claims for Relief

contained in the Second Amended Complaint

brought against Defendants City of Clovis, City

of Sanger, Kristina Hersberger, Angela Yambupah and Fred Sanders.

3. Judgment is entered in favor of City of Clovis,

City of Sanger, Kristina Hersberger, Angela

Yambupah and Fred Sanders as to all claims

for Relief contained in Second Amended

33a

Appendix C

Complaint brought against them. Defendants

are ordered to prepare a proposed judgment.

4. Defendant Channon High’s Motion for Summary Judgment is GRANTED IN PART and

DENIED IN PART.

5. Defendant Channon High’s Motion for Summary [Judgment] is GRANTED for any and all

Equal Protection Violations alleged against her

in the Second Claim for Relief contained in the

Second Amended Complaint.

6. Judgment is entered in favor of Channon High

for any and all Equal Protection Violations alleged against her in the Second Claim for Relief

contained in the Second Amended Complaint.

Defendant Channon High is ordered to prepare

a proposed judgment.

7. Defendant Channon High’s Motion for Summary [Judgment] is DENIED for the violations

of Plaintiff’s Substantive Due Process Rights as

alleged against her in the Second Claim for Relief contained in the Second Amended Complaint.

8. Defendants Kim and Connie Pennington Motion for Summary Judgment is GRANTED as

to Plaintiff’s Third Claim for Relief for Conspiracy to Intimidate a Witness in the Second

Amended Complaint. Judgment is hereby entered thereon in favor of said Defendants.

34a

Appendix C

Defendants Kim and Connie Pennington are

ordered to prepare a proposed judgment.

9. Defendants Kim and Connie Pennington Motion for Summary Judgment is DENIED as to

Plaintiff’s Eighth Claim for Relief for Conspiracy to Commit Battery in the Second Amended

Complaint.

10. Defendants Kim and Connie Pennington Motion for Summary Judgment is GRANTED as

to Plaintiff’s Ninth Claim for Relief for Negligence in the Second Amended Complaint.

Judgment is hereby entered thereon in favor of

Defendants. Defendants Kim and Connie Pennington are ordered to prepare a proposed judgment.

IT IS SO ORDERED.

DATED: November 3, 2017

/s/ JOHN A. MENDEZ

John A. Mendez

United States District

Court Judge

35a

Appendix D

Order from the United States Court of Appeals

for the Ninth Circuit Denying Rehearing

March 6, 2024

36a

Appendix D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DESIREE MARTINEZ,

No. 22-16335

Plaintiff-Appellant, D.C. No.

1:15-cv-00683-DADv.

SKO

Eastern District of

CHANNON HIGH,

California, Fresno

Defendant-Appellee.

ORDER

Before: BUMATAY, KOH, and DESAI, Circuit

Judges.

The panel has voted to deny appellant’s petition

for rehearing and petition for rehearing en banc. The

full court has been advised of the petition for

rehearing en banc, and no judge has requested a vote

on whether to rehear the matter en banc. Fed. R. App.

P. 35.

The petitions for rehearing and rehearing en banc

are DENIED.

37a

Appendix E

Excerpt from Transcript of the October 17,

2017 Hearing in the United States District

Court for the Eastern District of California

(ECF 91, pp. 63–64)

38a

Appendix E

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DESIREE MARTINEZ,

Plaintiff,

Sacramento, California

No. 1:15-cv-00683-JAM

Tuesday, October >1@,

2017

1:56 p.m

vs.

KYLE PENNINGTON,

et al.,

Defendants.

TRANSCRIPT OF HEARING ON MOTION FOR

SUMMARY JUDGMENT BEFORE THE

HONORABLE JOHN A. MENDEZ,

DISTRICT JUDGE

– – oOo – –

39a

Appendix E

APPEARANCES:

For the Plaintiff:

Law Office of Kevin G.

Little

P.O. Box 8656

Fresno, CA 93747

By: Kevin G. Little

Attorney at Law

For the Defendant

City of Clovis, et al.:

Ferguson, Praet & Sherman

1631 E. 18th Street

Santa Ana, CA 92705

By: G. Craig Smith

Attorney at Law

For the Defendants Kim Wild, Carter & Tipton

and Connie Pennington: 246 W. Shaw Avenue

Fresno, CA 93704

By: John William Phillip

Attorney at Law

Official Court Reporter: Kacy Parker Barajas

CSR, RMR, CRR, CRC

501 I Street

Sacramento, California

95814

(916) 426-7640

40a

Appendix E

As to Channon High, C-h-a-n-n-o-n, the Court denies the motion for summary judgment as to

Ms. High. The Court finds that there [are] genuine issues of material fact that need to be resolved by way

of trial as to the issue of whether she acted under color

of state law.

And in terms of qualified immunity, the Court

finds that under the facts most favorable to the plaintiff, that in 2013 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 because

it would fall, in this case and in the facts of this specific case, under the state-created danger exception.

There are facts that give rise to inferences that would

allow the plaintiff to demonstrate to a jury that Ms.

High’s actions here did in fact create a danger to her.

Okin again is a case which under these facts is

similar and would in effect put Ms. High on notice if

in fact the plaintiff can prove the allegations against

her that Ms. High’s acts contributed to the vulnerability of a known victim, that she engaged in conduct

that embolden[ed] in this case the abuser, and that

that violated [the] due process clause.

Ms. Martinez did testify in her deposition that

Ms. High told Kyle Pennington about Ms. Martinez’s

police reports and that consequently Ms. Martinez

suffered additional abuse and intimidation. The

Court finds that a reasonable officer, if these facts are

true, in Ms. High’s position should have known that

her phone call would and could [] embolden the

41a

Appendix E

alleged abuser, Mr. Pennington, would embolden him

to continue to abuse Ms. Martinez, thus falling within

the state-created danger exception. Therefore, the

Court finds that Channon High would not be entitled

to qualified immunity on the substantive due process

theory.

42a

Appendix F

Excerpt from Desiree Martinez Deposition

Transcript pp. 307–309

Reformatted from No. 22-cv-16335,

ECF 15-4, p. 82

43a

Appendix F

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA,

FRESNO DIVISION

---o0o--DESIREE MARTINEZ,

)

) NO. 1:15-CV-00683

PLAINTIFF,

)

--vs-)

KYLE PENNINGTON;

)

KIM PENNINGTON; CON- )

NIE PENNINGTON; KRIS- )

TINA HERSHBERGER;

)

JESUS SANTILLAN;

)

CHANNON HIGH; THE

)

CITY OF CLOVIS; AN)

GELA YAMBUPAH;

)

RALPH SALAZAR; FRED )

SANDERS; THE CITY OF )

SANGER; DOES 1-20,

)

DEFENDANTS.

---o0o--Fresno, California

April 27, 2017

The deposition of DESIREE MARTINEZ was

taken in the above-entitled matter pursuant to all of

the provisions of law pertaining to the taking and use

of depositions before Stacy Banks, CSR, with offices

at Fresno, California, commencing at the hour of 9:18

a.m. at the law offices of Wild, Carter & Tipton, 246

W. Shaw Avenue, Fresno, California.

44a

Appendix F

Page 307

Q. So let’s go into that allegation. When was it that

you thought that – when was it that Kyle first told

you somebody was contacting him from Clovis Police

Department?

A. I knew that he was finding out from someone at

Clovis. He says he has friends that work there so he

knows what’s going on at Clovis at the police department, that they were telling him.

And then I knew for sure about Channon when he

was on the phone with her, and him and I had gotten

into a fight and I had like – I don’t remember what

exactly what had happened, but I told him that I was

going to report him and he, I guess he had called

Channon to make sure that I didn’t make any police

reports because he had asked me if I had made any

police reports in regards to what had happened between him and I and I had told him no. And he had

Channon on the

Page 308

phone and he had told me that, he had said, “So you’re

telling the cops what, you’re telling the cops [what] I

[] did to you? And I had said, “No.” And Channon was

on the speaker phone, because she didn’t know that

she was on speaker and she’s like, “Yes, she did. I see

the report right here.” She was referring to a report

from June or something. I don’t remember what, exactly which report it was, but she had told him that

she had saw a report that I was making and that I

45a

Appendix F

was calling in there anonymously and – and then

what else did she say?

And then she mentioned that Gary Taylor was under IA and that he wasn’t working. And Kyle was asking why is he under IA and I guess it’s because he, she

had said to him that he had lied about the romantic

relationship that him and I had so he was under IA.

So I remember she was giving him all that information and then when she had told him about me calling he had said, “Okay. Well, I’ll call you back.” And

he hung up on the phone with her and he had hit me

and beat me up because she told him that I had, I was

calling and making reports against him.

Q. How do you know this was Channon High?

A. I recognized her voice when she was talking at

the deposition, but the reason why I knew is because

when he had the phone he had it on speaker and I saw

her name on the call and it said “Channon High” on

his phone and he had her on

Page 309

speaker phone. It was from her personal cell phone.

46a

Appendix G

Excerpt from Channon High Deposition

Transcript pp. 6, 12, and 17

Reformatted from No. 22-cv-16335

ECF 15-4, pp. 91, 93–94

47a

Appendix G

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA,

FRESNO DIVISION

---o0o--DESIREE MARTINEZ,

)

) NO. 1:15-CV-00683

PLAINTIFF,

)

--vs-)

KYLE PENNINGTON;

)

KIM PENNINGTON; CON- )

NIE PENNINGTON; KRIS- )

TINA HERSHBERGER;

)

JESUS SANTILLAN;

)

CHANNON HIGH; THE

)

CITY OF CLOVIS; AN)

GELA YAMBUPAH;

)

RALPH SALAZAR; FRED )

SANDERS; THE CITY OF )

SANGER; DOES 1-20,

)

DEFENDANTS.

---o0o--Fresno, California

April 25, 2017

The deposition of CHANNON HIGH was taken in

the above-entitled matter pursuant to all of the provisions of law pertaining to the taking and use of depositions before Stacy Banks, CSR, with offices at

Fresno, California, commencing at the hour of 2:43

p.m. at the law offices of Kevin G. Little, 1225 East

Divisadero, Fresno, California.

48a

Appendix G

Page 6

A. Yes.

Q. Okay. Is he a friend of yours?

A. Yes.

Q. How long have the two of you been friends?

A. Since we started the academy in 2007.

Q. All right. Do you socialize outside of work with

him?

A. Occasionally, yes.

Q. What are – Do you socialize together one-on-one

or in groups?

A. Mostly groups.

Q. Okay. How frequently would you say if you had

to average it out, let’s say in the last two years how

frequently do you socialize with Mr. Pennington?

A. I would say maybe a dozen times.

Q. Okay. So once a month or every other month?

A. Somewhere around there, yes.

Q. Okay.

MR. SMITH: Within the last two years.

49a

Appendix G

MR. LITTLE: Q. Within the last two years

twelve times approximately?

A. Correct.

Q. So that would be once every other month, right?

A. Roughly.

Page 12

Q. Okay. You were not a dispatcher, though?

A. No.

Q. Can you recall any specific occasion where you

called Kyle Pennington very early in the morning and

spoke with him for approximately thirty minutes? Regardless of the year, I’m just asking, at any time do

you recall calling him around 6:30 in the morning and

speaking with him for half an hour?

A. I don’t ever recall calling him.

Q. Okay.

A. But if we worked a shift together that could be,

but I’m not sure, I couldn’t guarantee that.

Q. Well, I’m going to make another representation,

and I don’t think this is disputed. Back in September

of 2013 Kyle was on administrative leave because

there was a pending investigation regarding him so

he wasn’t working during that time period.

50a

Appendix G

Do you recall the general time frame when Kyle

was on leave and not working?

A. No.

Q. Okay. Do you recall that at some point shortly

before his separation from the police department he

was on leave and there was some sort of an IA or

something pending?

A. Yes

Page 17

Q. So I’m assuming that if he called at what most

people consider –

A. Ungodly hour.

Q. – a highly unusual or even ungodly hour –

A. Yes.

Q. – that might be something that you’d recall?

A. Most likely, but that was a lot of years ago.

Q. All right. So you don’t remember one way or the

other whether you had phone conversation, a phone

conversation at 3:23 a.m. with Mr. Pennington on the

7th of September?

A. No.

51a

Appendix G

Q. Okay. Did you know why Kyle was on administrative leave?

A. I knew it was something involving a female, but

honestly I thought it was a blond female. I don’t know

her name.

Q. All right. Did he ever discuss with you that he

was on administrative leave because of allegations related to a domestic violence situation?

A. No.

Appendix +

Excerpt of Kyle Pennington Call Log

Reformatted from No. 22-cv-16335,

ECF 15-3, p. 11

Appendix +

IN THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

DESIREE MARTINEZ

Plaintiff-Appellant,

CITY OF CLOVIS, et al.

No. 22-16335

D.C. No. 1:15-cv-00683DAD-SKO

Eastern District of

California, Sacramento

Defendants-Appellees.

APPELLANT’S EXCERPTS OF RECORD

VOL. II

Kevin G. Little, Esq.

LAW OFFICE OF KEVIN G.

LITTLE

Post Office Box 8656

Fresno, California 93747

Tel. (559) 342-5800

Fax (559) 242-2400

E-Mail: kevin@kevinglittle.com

Attorney for Appellant Desiree

Martinez

Appendix +

Individual Usage Details for:

Kyle Pennington|559-805-2082

Change billing period: Current Billed Usage

Aug 09, 2013-Sep 08, 2013

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