Metropolitan News-Enterprise


Monday, January 29, 2024


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Ninth Circuit:

Officer Was Culpable but Entitled to Qualified Immunity

Majority Finds Constitutional Deprivation Under State-Created Danger Doctrine but Says That Doctrine Was Not ‘Clearly Established’ When the Officer Acted; Judge Patrick J. Bumatay Criticizes Creation of Doctrine


By a MetNews Staff Writer


Two judges of a three-judge Ninth U.S. Circuit Court of Appeals panel on Friday declared that a police officer is entitled to qualified immunity although she violated the plaintiff’s due process rights under the state-created danger doctrine, holding that the doctrine was not clearly established in 2013 when she acted, with Judge Patrick J. Bumatay, in a concurring opinion, decrying the development of a “Frankenstein’s monster-like doctrine.”

The defendant is Channon High, a police officer in the City of Clovis in Fresno County. It is alleged that she disclosed to a fellow officer, Kyle Pennington, that the woman with whom he was living, Desiree Martinez, had made a confidential report of abuse by him and he retaliated against Martinez by administering “horrific, severe additional abuse” of a “physical and sexual” nature.

Judge Roopali H. Desai authored the majority opinion in which Judge Lucy H. Koh joined. Desai wrote:

“Because the Due Process Clause is a ‘limitation on state action,’ state actors generally are not liable for failing ‘to prevent acts of private parties.’…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.’…Ms. Martinez invokes that exception here.”

‘Constitutional Violation’

He said the facts show that High exposed Martinez to a foreseeable danger and did so with deliberate indifference to the peril she created, thus constituting a constitutional violation. Nonetheless, he said, qualified immunity lies because the state-created danger doctrine “was not yet ‘clearly established’ at the time of the violation.”

The opinion affirms a summary judgment based on qualified immunity granted by District Court Judge John A. Mendez of the Eastern District of California.

Desai added:

“But we now clarify that right going forward. An officer is liable under the state-created danger doctrine when the officer discloses a victim’s confidential report to a violent perpetrator in a manner that increases the risk of retaliation against the victim.”

Concurring Opinion

Concurring in the result, Bumatay commented:

“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.’…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.”

He said that “[t]o 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” and that it was therefore un necessary and “unwise to reach the constitutional violation question under these circumstances.”

Second Motion

Another issue was whether Mendez correctly allowed High to make a second motion for summary judgment. Her first motion, based on qualified immunity was denied, but the motions by other officers were granted, and Martinez appealed.

The Ninth Circuit in 2019 affirmed, finding that the due-process right was not “clearly established” in 2013. High then made a second motion for summary judgment which Mendez on Jan. 10, 2022, granted, saying:  

“Despite Plaintiff’s objections, the Court finds the motion to be procedurally proper….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….[A]n officer should be permitted to avoid the expense and burden of trial if her conduct is protected by the doctrine….Accordingly, the Court may resolve the issue now.”

Desai said:

“…Officer High’s second motion was neither frivolous nor simply repetitive, and the district court was free to entertain it….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.”

Bumatay indicated his agreement.

The case is Martinez v. High, 22-16335.


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