Metropolitan News-Enterprise


Thursday, December 5, 2019


Page 1


Ninth Circuit:

Police Officers Breached Due Process by Intensifying Peril

Opinion Says State-Created Danger Doctrine Applies Where Officers Made Remarks in Investigating Domestic Violence Report That Emboldened Attacker to Continue Abuse of Cohabitant


By a MetNews Staff Writer


A police officer who took a woman’s statement in confidence as to physical and sexual abuse by her boyfriend in a hotel and then repeated the substance in the presence of the abuser—prompting the woman to recant her accusations and resulting in the physical abuse of her that night—violated the woman’s right to due process, the Ninth U.S. Circuit Court of Appeals held yesterday.

Nonetheless, it declared, the officer, Kristina Hershberger of the Clovis Police Department, is entitled to qualified immunity because the impermissibility of her conduct was not “clearly established” in 2013 when the incident occurred. The opinion upholds summary judgment in favor of Hershberger and two other members of the department based on immunity.

The potential harm to the victim, Desiree Martinez, was potentiated, the opinion observes, by what Hershberger told the abuser, Kyle Pennington, also a Clovis police officer, after the victim went into the house she shared with Pennington. As Pennington related it, Hershberger “was asking me, you know, what I was doing dating a girl like Desiree Martinez and what was going on, what was going on in my life because I was recently divorced and, you know, that she didn’t think that she was necessarily a good fit for me.”

Second Police Response

Also shielded by qualified immunity, though he too violated Martinez’s right to due process is Sergeant Fred Sanders of the Clovis department. A month after the first encounter, Pennington physically and sexually abused Martinez, and Sanders and another officer responded to a 911 call.

Sanders ordered the officer, Angela Yambupah, not to make an arrest of Pennington, advising that he was a fellow officer, and remarked that Pennington and his parents were “good people.”

That night or the next day, Pennington again attacked Martinez, this time resulting in his arrest.

The opinion was authored by District Court Judge Robert S. Lasnik of the Western District of Washington, sitting by designation. He said that the state-created danger doctrine, under the Due Process Clause, applies because actions of the police put Martinez in greater jeopardy than if they had not arrived.

Action Against Hershberger

Addressing the causes of action against Hershberger, Lasnik wrote:

“[T]he record…reveals that Hershberger told Pennington about Martinez’s testimony relating to his prior abuse, and also stated that Martinez was not ‘the right girl’ for him. A reasonable jury could find that Hershberger’s disclosure provoked Pennington, and that her disparaging comments emboldened Pennington to believe that he could further abuse Martinez, including by retaliating against her for her testimony, with impunity. The causal link between Hershberger’s affirmative conduct and the abuse Martinez suffered that night is supported by Martinez’s testimony that Pennington asked Martinez what she had told the officer while he was hitting her.

“That Martinez was already in danger from Pennington does not obviate a state-created danger when the state actor enhanced the risks.”

Suit Against Sanders

Lasnik said of Sanders’s conduct:

“Knowing that Pennington was an officer with the Clovis PD, Sanders ordered Yambupah not to arrest Pennington. This decision, on its own, did not leave Martinez in a more dangerous situation than the one in which he found her, and thus was not itself unconstitutional….

“But the record contains evidence of more than just Sanders’s order not to arrest Pennington. In instructing Yambupah not to arrest Pennington, which he did in Pennington’s presence, Sanders also expressed that the Penningtons were ‘good people.’ Sanders spoke positively about the Penningtons against the backdrop that everyone involved, including Sanders, knew that Pennington and his father were police officers.”

Lasnik added:

“A reasonable jury could find that Pennington felt emboldened to continue his abuse with impunity.”

He observed that Yambupah’s conduct, on the other hand, left Martinez no worse off.

Qualified Immunity

The visiting judge said that Hershberger and Sanders are entitled to qualified immunity because the law with respect to state-created danger doctrine was not clearly established. He added:

“Going forward, the law in this circuit will be clearly established that such conduct is unconstitutional.”

The case is Martinez v. City of Clovis, 17-17492.


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