Heath Garcia; Valerine Garcia v. Robert Mirabal, an Island County Deputy; MICHAEL HAWLEY, an Island County Deputy

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HEATH GARCIA; VALERINE GARCIA,
Plaintiffs-Appellees,
v.
ROBERT MIRABAL, an Island County
Deputy; MICHAEL HAWLEY, an Island
County Deputy,
Defendants-Appellants,
and
ISLAND COUNTY, a county of the State of
Washington,
Defendant.
No. 22-35733
D.C. No. 2:20-cv-01318-TSZ
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted July 11, 2023
Seattle, Washington
Before: GRABER, GOULD, and FRIEDLAND, Circuit Judges.
Heath and Valerie Garcia sued police officers Michael Hawley and Robert
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JUL 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Mirabal, alleging that both officers violated Heath Garcia’s Fourteenth
Amendment right to be free from state-created danger when they took certain
actions while responding to a suicidal individual whom Garcia was trying to assist.
Plaintiffs further allege that Mirabal violated Garcia’s Fourth Amendment right to
be free from unreasonable seizure. Hawley and Mirabal moved for summary
judgment, arguing that they are entitled to qualified immunity. The district court
denied the officers’ motion. Reviewing de novo the denial, Peck v. Montoya, 51
F.4th 877, 884 (9th Cir. 2022), we affirm as to Hawley and reverse as to Mirabal.
1. “[R]esolving all factual disputes and drawing all inferences in
[Plaintiffs’] favor,” Ballou v. McElvain, 29 F.4th 413, 421 (9th Cir. 2022), we
conclude that Hawley violated Garcia’s Fourteenth Amendment rights under the
state-created danger doctrine. He acted affirmatively when he told Garcia that he
would have his officers back up before Garcia led the suicidal individual outside,
but he then broke that promise. See Kennedy v. City of Ridgefield, 439 F.3d 1055,
1062 (9th Cir. 2006). The misrepresentation placed Garcia in a worse position
than he otherwise would have been in: The suicidal individual had calmed down
substantially and became agitated and violent only upon realizing that Hawley had
not kept his word. See id. That individual’s violent reaction to the continued
police presence was foreseeable and particularized. See Lawrence v. United States,
340 F.3d 952, 957 (9th Cir. 2003); Sinclair v. City of Seattle, 61 F.4th 674, 682–83

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(9th Cir. 2023), petition for cert. filed, No. 22-1156 (U.S. May 25, 2023). And a
jury could reasonably conclude that Hawley acted with deliberate indifference
when he misrepresented to Garcia that he would have his officers back up: His
incident report showed both that he recognized the risk posed by an armed,
agitated, suicidal person and that he was aware that a condition of the individual’s
safe surrender to medical treatment was that law enforcement leave the area. See
Kennedy, 439 F.3d at 1064–65 (concluding that an officer was deliberately
indifferent when he broke his promise to the plaintiff about how he would deal
with an individual who wound up attacking the plaintiff, despite the officer’s
knowledge of that individual’s violent tendencies).
This violation contravened clearly established law. See Hernandez v. City of
San Jose, 897 F.3d 1125, 1137 (9th Cir. 2018). As in Kennedy, Hawley broke a
promise on which the plaintiff relied, thereby “affirmatively creat[ing] a
danger . . . [he] otherwise would not have faced.” 439 F.3d at 1063. And, as in
L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992), Hawley “enhanced [the plaintiff’s]
vulnerability to attack by misrepresenting to [him] the risks attending” the task he
had agreed to perform. Id. at 121. In all three cases—Kennedy, Grubbs, and this
one—the relevant state action “left plaintiffs exposed to the danger of the
subsequent . . . injury they in fact suffered. And in [all three] cases the plaintiff
relied upon the state actor’s representation and did not take protective measures [he

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or] she otherwise would have taken, and the state’s action made plaintiffs
vulnerable to a particularized danger they would not have faced but for that
action.” Kennedy, 439 F.3d at 1067. The supervisor in Grubbs assigned a violent
sex offender to work closely with the plaintiff after leading her to believe that she
would not have to work alone with dangerous inmates, 974 F.2d at 121; the officer
in Kennedy notified the plaintiff’s dangerous neighbor of the plaintiff’s allegations
against him after promising not to do so without first warning the plaintiff, 439
F.3d at 1063–64; and Hawley broke his promise to have his officers pull back. No
reasonable officer in Hawley’s position could have “concluded otherwise than that
[Garcia] had a right not to be placed in obvious physical danger as a result of”
Hawley’s breaking of his promise. Id. at 1067.
2. Mirabal is entitled to qualified immunity on both the Fourteenth
Amendment and Fourth Amendment claims. Plaintiffs have offered no theory for
how Mirabal’s actions reflected deliberate indifference in violation of the
Fourteenth Amendment under the state-created danger doctrine. Nor did Mirabal’s
actions amount to a seizure of Garcia under the Fourth Amendment. But even if a
seizure occurred and was unreasonable, no case has clearly established that actions
such as Mirabal’s violated the Fourth Amendment. See White v. Pauly, 580 U.S.
73, 79 (2017) (per curiam) (reiterating “the longstanding principle that clearly
established law should not be defined at a high level of generality,” and that “the

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clearly established law must be particularized to the facts of the case” (quotation
marks omitted)).
AFFIRMED in part and REVERSED in part. The parties shall bear their
own costs on appeal.

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