United States v. 2006-03-06 | 03-35333 | KENNEDY VCITY OF RIDGEFIELD | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 KIMBERLY KENNEDY, individually No. 03-35333
and in her capacity as personal D.C. No. representative of the estate and as CV-01-05631-JKA guardian for her children aka Western District Kimberly Gorton; JAY D. of Washington, KENNEDY, aka JD Kennedy; KEITH
Tacoma TEUFEL; TERA TEUFEL,
 Plaintiffs-Appellees, ORDER
WITHDRAWING v. OPINION AND
RIDGEFIELD CITY OF, a municipal DENYING
corporation and political PETITION FOR
subdivision of the State of WA; REHEARING
NOEL SHIELDS, EN BANC
Defendants-Appellants. 
Filed March 7, 2006
Before: James R. Browning, A. Wallace Tashima, and
Jay S. Bybee, Circuit Judges.
Order;
Dissent by Judge Tallman
ORDER
The opinion filed June 23, 2005, and amended September
12, 2005, appearing at 411 F.3d 1134 and 423 F.3d 1117
respectively, and the opinion concurring in part and dissenting
in part, appearing at 411 F.3d 1146, are withdrawn and may
not be cited as precedent by or to this court or any district
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court of the Ninth Circuit. An opinion and dissenting opinion
are published by separate order.
Judge Bybee votes to grant the petition for rehearing en
banc. Judges Browning and Tashima recommend denying the
petition for rehearing en banc.
The full court was advised of the petition for rehearing en
banc, and a judge requested a vote on whether to rehear the
matter en banc. The case failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc con-
sideration. Fed. R. App. P. 35. The petition for rehearing en
banc is DENIED. No further petitions shall be entertained.
TALLMAN, Circuit Judge, with whom KOZINSKI,
O’SCANNLAIN, KLEINFELD, GOULD, BYBEE,
CALLAHAN, and BEA, Circuit Judges, join, dissenting from
denial of rehearing en banc:
It is regrettable that the court declines to hear this case en
banc. Contrary to Supreme Court precedent, the Kennedy
opinion expands the judge-made “state-created danger” doc-
trine to impose impermissibly broad 42 U.S.C. § 1983 civil
rights liability on police officers under circumstances that at
most evidence negligence. Its expansive new holding opens
the floodgates to § 1983 lawsuits by citizens who will claim
deliberate indifference following any failure on the part of the
police to adequately protect them from harm after they report
a crime, notwithstanding that the danger of retaliation by
criminal suspects often exists when citizens report crimes.
Kennedy will all but foreclose officers from invoking quali-
fied immunity before trial; a jury will have to decide whether
to impose liability and damages.
The slippery slope of liability created by the court’s opin-
ion has implications of great magnitude for public safety offi-
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cers everywhere and the ruling cannot be confined to
extraordinary cases. This unjustifiable expansion of the state-
created danger doctrine raises the possibility of liability every
time a person dials 9-1-1 or reports a crime to law enforce-
ment and the police are delayed in their response or follow-up
investigation. These delays are often unavoidable due to other
emergency calls, the press of pending cases, and inadequate
resources to handle them all.1
Like many § 1983 cases, the facts giving rise to this litiga-
tion are “undeniably tragic.” E.g., Town of Castle Rock v.
Gonzales, 125 S. Ct. 2796, 2803 (2005) (quoting DeShaney v.
Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 191
(1989)). Kimberly Kennedy called the Ridgefield Police
Department, a small-town police agency in southwest Wash-
ington (with five full-time officers), in September 1998, alleg-
ing that her 13-year-old neighbor, Michael Burns, had
molested her nine-year-old daughter. Ridgefield police officer
Noel Shields responded to the call. Kennedy claims that she
warned Officer Shields that Burns and his mother had danger-
ous tendencies. Kennedy alleges that Officer Shields assured
her that she would be given notice prior to any contact with
the Burns family by investigators who would follow up on her
allegations. Shields prepared a report which he forwarded to
the Child Abuse Intervention Center (“CAIC”), an inter-
agency law enforcement unit which investigates and prose-
cutes felony child abuse cases for Clark County and the City
of Vancouver, Washington.
1In Seattle alone, the city responded to approximately 820,000 calls to
9-1-1 in 2002. City of Seattle, Seattle Police Department, at http://
www.seattle.gov/police/Units/communications.htm (last visited Feb. 14,
2006). In San Francisco, the Emergency Communications Department of
the city and county processed over one million emergency calls for their
police and fire departments annually as of 2003. Press Release, Emer-
gency Communications Department, San Francisco’s Emergency Commu-
nications Department’s Wireless E9-1-1 Readiness (Nov. 20, 2003),
available at http://www.sfgov.org/site/ecd_page.asp?id=21382.
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After Kennedy left a telephone message with Officer
Shields inquiring about the progress of her case, he decided
to drive to the Kennedy house to personally inform her that
he had called the CAIC but did not know the status of the
case. On the way to Kennedy’s home, Shields decided to stop
by the Burns residence to see whether the CAIC had con-
tacted the family pursuant to its on-going investigation of
Kennedy’s allegations. After speaking with Burns and his
mother, Officer Shields immediately proceeded to the Ken-
nedy house to meet with Kennedy and inform her of the con-
tact.
Kennedy was concerned that Burns posed a threat to her
family now that he knew of her complaint, and she alleges
that Officer Shields assured her during this conversation that
the police would patrol her neighborhood that evening. Offi-
cer Shields testified on deposition that he and a reserve officer
were unavoidably out of service for most of the evening while
booking an unrelated arrestee and there were no other officers
on duty in the small town that night.
Early the next morning, Burns broke into the Kennedy
house and shot Kimberly Kennedy and her husband, Jay,
while they slept. Jay Kennedy died as a result of his injuries;
Kimberly survived. Burns was convicted of the premeditated
murder of Jay Kennedy and attempted premeditated murder of
Kimberly Kennedy.
Kimberly Kennedy brought an action in Washington state
court under § 1983 against the City of Ridgefield, Officer
Shields, and others. The case was removed to federal district
court. The trial court denied the motion to dismiss in which
Officer Shields sought qualified immunity. A divided panel of
our court affirmed the judgment of the district court on inter-
locutory appeal, holding that Officer Shields can be held lia-
ble under the state-created danger doctrine for revealing the
molestation allegations to Burns and his mother prior to noti-
fying Kennedy.
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We were reversed in Saucier v. Katz, 533 U.S. 194 (2001),
for improperly applying Supreme Court precedent when eval-
uating the circumstances under which qualified immunity
applies. See id. at 202 (“The approach the Court of Appeals
adopted . . . could undermine the goal of qualified immunity
to ‘avoid excessive disruption of government and permit the
resolution of many insubstantial claims on summary judg-
ment.’ ” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982))). The Court directed us to apply a two-step process
whenever we analyze an entitlement to qualified immunity.
First, we are to evaluate whether the officer’s conduct vio-
lated a constitutional right. Next, we look to whether the con-
stitutional right was clearly established. In Kennedy, because
no constitutional right can be established under the first step,
the second step need not be reached. Id. at 201 (“If no consti-
tutional right would have been violated were the allegations
established, there is no necessity for further inquiries concern-
ing qualified immunity.”).
Established Ninth Circuit parameters have further limited
the first step. The state-created danger doctrine requires more
than a mere failure to act; it requires the state official to take
an affirmative action. See Penilla v. City of Huntington Park,
115 F.3d 707, 710 (9th Cir. 1997) (“[I]f affirmative conduct
on the part of a state actor places a plaintiff in danger, and the
officer acts in deliberate indifference to that plaintiff’s safety,
a claim arises under § 1983.”). Second, the plaintiff must
prove that the official’s act did more than simply expose the
plaintiff to a danger that already existed. See L.W. v. Grubbs,
974 F.2d 119, 121 (9th Cir. 1992); see also Dwares v. City of
New York, 985 F.2d 94, 99 (2d Cir. 1993); Freeman v. Fergu-
son, 911 F.2d 52, 55 (8th Cir. 1990). Finally, the plaintiff
must prove that the official acted with deliberate indifference
to known or obvious dangers. See L.W. v. Grubbs, 92 F.3d
894, 900 (9th Cir. 1996) (“[T]he plaintiff must show that the
state official participated in creating a dangerous condition,
and acted with deliberate indifference to the known or obvi-
ous danger in subjecting the plaintiff to it.”).
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The Supreme Court has stated that negligence, whether
gross or simple, is insufficient to prove a constitutional viola-
tion. See Daniels v. Williams, 474 U.S. 327, 328 (1986)
(“[T]he Due Process Clause is simply not implicated by a
negligent act of an official causing unintended loss of or
injury to life, liberty, or property.” (emphasis omitted)). In
DeShaney, the Court highlighted that the Due Process Clause
“forbids the State itself to deprive individuals of life, liberty,
or property without ‘due process of law,’ but its language can-
not fairly be extended to impose an affirmative obligation on
the State to ensure that those interests do not come to harm
through other means.” 489 U.S. at 195. Even if a state official
refuses to provide protective services that could avert injuries,
the government cannot be held liable under § 1983. Id. at 196.
Thus, “[n]ot only does the word ‘deprive’ in the Due Process
Clause connote more than a negligent act, but we should not
‘open the federal courts to lawsuits where there has been no
affirmative abuse of power.’ ” Daniels, 474 U.S. at 330 (quot-
ing and overruling Parratt v. Taylor, 451 U.S. 527, 548-49
(1981)).
While there is no hard and fast line for liability in these
sorts of cases, it should be evident that liability cannot attach
here where no “conscience shocking” abuse of power can be
alleged. In County of Sacramento v. Lewis, the Supreme Court
said:
Rules of due process are not . . . subject to mechani-
cal application in unfamiliar territory. Deliberate
indifference that shocks in one environment may not
be so patently egregious in another, and our concern
with preserving the constitutional proportions of sub-
stantive due process demands an exact analysis of
circumstances before any abuse of power is con-
demned as conscience shocking.
523 U.S. 833, 850 (1998) (refusing to impose civil rights lia-
bility on officers involved in high-speed chases of fleeing fel-
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ons). Where another party is the source of the danger, the
state official cannot be held liable. See DeShaney, 489 U.S. at
202-03 (“Judges . . . are moved by natural sympathy . . . to
find a way for [victims] to receive adequate compensation for
the grievous harm inflicted upon them. But before yielding to
that impulse, it is well to remember once again that the harm
was inflicted not by the [state], but by [a third party].”); see
also Bradberry v. Pinellas County, 789 F.2d 1513, 1514-15,
1518 (11th Cir. 1986) (declining to impose § 1983 liability
upon a lifeguard or the county because “[t]he state did not kill
[the decedent], the ocean did”).
Even if some affirmative “danger-creating” behavior on the
part of Officer Shields can be proven, by no means may he
be held liable. Officer Shields did not create the threat of
harm from Burns. That threat was inevitable when Burns’
misconduct was reported as a crime by Mrs. Kennedy; retalia-
tion from Burns against the complainant was a danger faced
by the Kennedys in the “free world.” DeShaney, 489 U.S. at
201; see also id. at 197 (“[A] State’s failure to protect an indi-
vidual against private violence simply does not constitute a
violation of the Due Process Clause.”); Penilla, 115 F.3d at
710 (“The critical distinction is not . . . an indeterminate line
between danger creation and enhancement, but rather the
stark one between state action and inaction in placing an indi-
vidual at risk.”).
It was the all-but-inevitable notice to the Burns family,2
2The subject of a criminal investigation will almost always receive
notice of the charge or complaint made against him. Contact is a necessary
part of virtually all police investigations, particularly in a child abuse case
like this one, where the only likely witnesses to the alleged criminal acts
are the two children involved. While the timing of the contact may vary
due to the circumstances of the particular case and the investigative strat-
egy to be employed, the eventual notice to the subject of the investigation
must be presumed. It will happen in all cases where charges are filed, as
the Constitution requires; it is only in the event that charges are never filed
that the subject might not receive notice that he was under investigation.
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provided by Officer Shields in response to Kennedy’s allega-
tions of child molestation, that our court finds sufficient to
constitute the affirmative conduct that exposes Officer Shields
to § 1983 liability. However, based upon the Supreme Court’s
clear standards, we should not have held that where an ongo-
ing criminal investigation is underway the state can create a
danger simply by contacting the subject of the investigation.
See DeShaney, 489 U.S. at 195-96 (declining to expand the
scope of liability under the Due Process Clause because his-
torical analysis reveals that “the Due Process Clause of the
Fourteenth Amendment was intended to prevent government
from abusing [its] power, or employing it as an instrument of
oppression” (alteration in original) (internal quotation marks
and citations omitted)); see also Collins v. City of Harker
Heights, 503 U.S. 115, 125 (1992) (“[T]he Court has always
been reluctant to expand the concept of substantive due pro-
cess because guideposts for responsible decisionmaking in
this unchartered area are scarce and open-ended.”). As Judge
Bybee aptly observes in his dissent from the court’s opinion,
it is absurd to hold that merely meeting with the Burns family
prior to notifying Kennedy, a “flipflop of no more than fifteen
minutes[,] is of constitutional magnitude.” Bybee, J., dissent
at 2264, 2269 n.8.
While the fundamental framework set forth by the Supreme
Court in Saucier defines the narrow scope of state official lia-
bility under the state-created danger doctrine, the limited
applicability of this doctrine is further evidenced by our cir-
cuit’s usual willingness to find that an official is protected by
qualified immunity. See id. at 2250 (“In the sixteen years
since we introduced the state-created danger exception to
DeShaney into our case law, we have approved its application
on fewer than five occasions.”). The reason for limiting the
state-created danger doctrine is clear: An expansion will deter
government officials from taking risks and executing their
functions for the public good. In fact, we have an entire body
of retaliation laws in the criminal codes of every jurisdiction
recognizing the inherent danger, and imposing responsibility
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on the actual perpetrator of the violence, for which the court
now imposes civil rights liability on the hapless officer who
has the misfortune to take the initial complaint and conduct a
follow-up investigation.
Because the court fails to abide by the Supreme Court’s
directive and has acted in a manner contrary to our established
circuit precedent, creating substantial risk of liability for pub-
lic servants through its unwarranted expansion of the state-
created danger doctrine, I must respectfully dissent from the
denial of rehearing this important case en banc.
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