FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN HERNANDEZ; NATHAN No. 17-15576
VELASQUEZ; FRANK VELASQUEZ;
MARK DOERING; MARY DOERING; D.C. No.
BARBARA ARIGONI; DUSTIN HAINES- 5:16-cv-03957-
SCRODIN; ANDREW ZAMBETTI; LHK
CHRISTINA WONG; CRAIG PARSONS;
I.P., a minor individual; GREG
HYVER; TODD BROOME; DONOVAN OPINION
ROST; MICHELE WILSON; COLE
CASSADY; THEODORE JONES;
MARTIN MERCADO; CHRISTOPHER
HOLLAND; RACHEL CASEY,
Plaintiffs-Appellees,
v.
CITY OF SAN JOSE, a municipal
corporation; LOYD KINSWORTHY;
LISA GANNON; KEVIN ABRUZZINI;
PAUL MESSIER; PAUL SPAGNOLI;
JOHNSON FONG; JASON TA,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
2 HERNANDEZ V. CITY OF SAN JOSE
Argued and Submitted April 9, 2018
San Francisco, California
Filed July 27, 2018
Before: Dorothy W. Nelson, Andrew J. Kleinfeld,
and William A. Fletcher, Circuit Judges.
Opinion by Judge D.W. Nelson
SUMMARY*
Civil Rights
The panel affirmed the district court’s denial of qualified
immunity to police officers and dismissed the City of San
Jose’s appeal in a 42 U.S.C. § 1983 action brought by
attendees of a political rally for Donald Trump who were
attacked by anti-Trump protesters as they attempted to leave
the rally.
The panel held that based on the allegations in the
operative complaint, which the panel took as true on a motion
to dismiss, the attendees alleged sufficiently that the officers
increased the danger to them by shepherding them into a
crowd of violent protesters and that the officers acted with
deliberate indifference to that danger. The district court
therefore correctly denied the officers qualified immunity.
As for the attendees’ claim against the City, the panel
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HERNANDEZ V. CITY OF SAN JOSE 3
declined to exercise jurisdiction over it because it was not
inextricably intertwined with the qualified immunity issue.
COUNSEL
Matthew Pritchard (argued), Deputy City Attorney; Ardell
Johnson, Chief Deputy City Attorney; Nora Frimann,
Assistant City Attorney; Richard Doyle, City Attorney;
Office of the City Attorney, San Jose, California; for
Defendant-Appellants.
Harmeet K. Dhillon (argued), Dhillon & Smith LLP, San
Francisco, California, for Plaintiff-Appellees.
OPINION
D.W. NELSON, Senior Circuit Judge:
The City of San Jose (“City”) and seven of its police
officers (“Officers”) (collectively, “City Defendants”) appeal
the district court’s denial of their Motion to Dismiss
(“Motion”) in favor of several individuals who attended a
rally in 2016 for then-Presidential candidate Donald J. Trump
(“Attendees”).1 The City Defendants contend the court erred
1
The “Officers” are Loyd Kinsworthy, Lisa Gannon, Kevin
Abruzzini, Paul Messier, Paul Spagnoli, Johnson Fong, and Jason Ta. The
“Attendees” are Juan Hernandez, Nathan Velasquez, Frank Velasquez,
Rachel Casey, Mark Doering, Mary Doering, Barbara Arigoni, Dustin
Haines-Scrodin, Andrew Zambetti, Christina Wong, Craig Parsons, I.P.,
a minor, Greg Hyver, Todd Broome, Martin Mercado, Christopher
Holland, Theodore Jones, Donovan Rost, Michele Wilson, and Cole
Cassady.
4 HERNANDEZ V. CITY OF SAN JOSE
when it (1) denied the Officers qualified immunity, and
(2) held the Attendees had stated a claim for municipal
liability under 42 U.S.C. § 1983 against the City. Taking the
allegations in the operative complaint as true, and reading
them in the light most favorable to the Attendees, we find the
Officers violated clearly established rights and are not
entitled to qualified immunity at this stage of the proceedings.
We also find the City’s liability is not inextricably
intertwined with the Officers’ liability, and we therefore lack
jurisdiction over the City’s appeal. We affirm the district
court’s denial of qualified immunity to the Officers and
dismiss the City’s appeal.
BACKGROUND
I. The First Amended Complaint
On June 2, 2016, Trump held a political rally (“Rally”) at
the McEnery Convention Center (“Convention Center”) in
San Jose, California. The San Jose Police Department
(“Police Department”), along with the U.S. Secret Service,
expected between 12,000 and 15,000 people to attend, and the
event was to run from 7:00 p.m. to 8:30 p.m.
The Police Department was aware that Trump rallies in
other cities had “spurred violent anti-Trump protests,” and it
took several steps to prepare for the Rally. Among other
things, the City “requested between [50] and [70] additional
officers” through “designated mutual aid . . . channels to staff
the Rally,” accepted “additional officers and vehicle support”
from other police departments in the area, and fitted many of
the officers with riot gear. About 250 officers patrolled the
Rally on June 2, 2016.
HERNANDEZ V. CITY OF SAN JOSE 5
According to the First Amended Complaint (“FAC”), the
City “normal[ly] [implements a] ‘zero tolerance’ approach to
violent protesters[] by making targeted arrests during the
protests.” But here, the City took an “entirely different”
approach: “the City Defendants instructed all officers to stand
by, watch as the attacks occurred, and not intervene” because
“intervention might cause a riot.” The Attendees claim the
Officers looked on as they were “battered by several anti-
Trump protesters, including, in some instances, being struck
in the head and face, kicked in the back, spat upon, and
otherwise harassed and assaulted.”
Significant to this appeal, the Attendees allege the
Officers “[d]irect[ed] [them] into the [m]ob of [v]iolent
[p]rotesters” waiting outside the Convention Center. As part
of their crowd-control plan, the Officers only allowed the
Attendees to “leave from the east-northeast exit of the . . .
Convention Center” and “actively prevented [them] from
leaving through alternative exits.” “Upon exiting the
[C]onvention [C]enter, the [A]ttendees were met with a
police skirmish line, composed of and/or controlled by the
[Officers].” “The [O]fficers in this line required the
[Attendees] to turn north as they left the [C]onvention
[C]enter, and to proceed along Market Street, into the crowd
of violent anti-Trump protesters.” The Officers “actively
prevented the . . . [A]ttendees from proceeding south . . . ,
away from the anti-Trump protesters, or from leaving the
[C]onvention through alternative exits.” The Officers
“instructed other police officers” to direct the Attendees in
the same manner. Many of the Attendees “were beaten,
victimized by theft, and/or had objects such as bottles and
eggs thrown at them” as a result.
6 HERNANDEZ V. CITY OF SAN JOSE
Two Attendees—Hernandez and Haines-Scrodin—claim
that San Jose police “directed [them] to walk through the anti-
Trump protesters, rather than . . . allow[ing] [them] to turn
south, in the direction of safety.” “Soon after following
the[se] directions . . . , [they] were struck repeatedly in their
faces and heads by anti-Trump protester, Victor Gasca.”
“Several other anti-Trump protesters also battered Hernandez
and Haines-Scrodin, while Gasca kept up his assault.” As a
result, “Hernandez suffered a broken nose [and several]
abrasions,” and “Haines-Scrodin . . . suffered [various] bodily
injuries.”
Another Attendee, I.P., claims he experienced similar
violence due to the City Defendants’ poorly conceived
crowd-control plan. Just like Hernandez and Haines-Scrodin,
he “exited the east-northeast exit of the . . . Convention
Center, where a line of police officers prevented [him] from
turning right, to safety” and instead “directed [him] to turn
left, into the anti-Trump protesters.” “I.P. was struck in the
back of his head” by one protester and “tackled . . . to the
ground” by another.” “After being attacked, I.P. made his
way [back] to [the] police skirmish line, and was only later
allowed to cross the line to safety.”
According to the Attendees, the Officers were clearly
aware of the violence outside the Convention Center. “In
fact, as early as [6 p.m.] the day of the Rally, the San Jose
police warned all officers deployed around [the] Rally that
assaults had already been reported outside the [Convention
Center].” During the Rally, the Officers witnessed the
violence firsthand, or were at least informed of it, but they did
nothing.
HERNANDEZ V. CITY OF SAN JOSE 7
San Jose Police officers on the scene “arrested only three
individuals” during the Rally, “each of whom allegedly
assaulted and/or battered police officers.” They made “no
arrests at the Rally in connection with the dozens of similar
criminal acts committed against [the Attendees].”
After the Rally, San Jose Police Chief Edgardo Garcia
(“Chief Garcia”) “publicly commend[ed] the [police]
officers’ actions” and “lauded [them for showing]
‘discipline.’” Chief Garcia further stated “‘additional force
can incite more violence in the crowd’” and that the officers
at the Rally “‘should be commended for both their
effectiveness and their restraint.’” Chief Garcia did not
discipline the Officers for their conduct during the Rally.
Based on these allegations, the Attendees brought a class
action against the City Defendants alleging, among other
things, a § 1983 due process claim against the Officers and a
§ 1983 due process claim against the City under Monell v.
Department of Social Services of City of New York, 436 U.S.
658 (1978).
II. The District Court’s Order Denying Qualified
Immunity
The City Defendants argued in their Motion to Dismiss
that (1) the Officers were entitled to qualified immunity and
(2) the City was not liable for the Officers’ actions pursuant
to Monell. The district court denied the Motion on both
counts. Hernandez v. City of San Jose, 241 F. Supp. 3d 959,
976, 980 (N.D. Cal. 2017).
8 HERNANDEZ V. CITY OF SAN JOSE
A. Qualified Immunity
In denying the Officers qualified immunity, the court first
found the Attendees had sufficiently stated their § 1983
claims against the Officers. Id. at 973–75. The court
considered two potential theories of liability. See id.
The first concerned whether the Officers were liable for
“devis[ing]” the allegedly ineffective crowd-control plan. Id.
at 973. Because the Attendees “[failed to] allege[] that those
who created the crowd-control [plan] knew that [leading the
Attendees on] the designated path would increase the danger
to [them],” the Officers were not liable for their planning
efforts before the Rally began. Id. at 973–74.
The Attendees’ second theory under § 1983 concerned the
Officers’ actions on the night of the Rally—“despite knowing
that violence had already broken out and was likely to
continue, . . . the police officers continued to direct the Rally
attendees into the mob, den[ied] [them] the ability to exit
through alternative paths, and refuse[d] to direct the officers
under their control to do so.” Id. at 974 (citation and internal
quotation marks omitted). The district court concluded that
the Officers knew as early as 6 p.m. that evening that anti-
Trump protesters had attacked people at the Rally. See id.
Because the Officers “were present at or around the Trump
Rally,” they were clearly “aware that the crowd-control plan
was putting [the Attendees] in danger.” Id. The court held
that the Attendees had “stated a claim against the police
officers for continuing to direct [the Attendees] into a
dangerous area after the police officers became aware that the
crowd-control plan was subjecting [them] to an increased risk
of harm by anti-Trump protesters.” Id. at 975.
HERNANDEZ V. CITY OF SAN JOSE 9
Next, the court considered whether the Attendees’ rights
were clearly established at the time of the Rally such that the
Officers should have known their conduct was
unconstitutional. See id. at 975–76. The court noted that the
theory on which the Attendees based their claims—that the
Officers had created the danger and acted with deliberate
indifference to their safety—was established in the Ninth
Circuit “over ten years ago” in Kennedy v. City of Ridgefield,
439 F.3d 1055 (9th Cir. 2006). Hernandez, 241 F. Supp. 3d
at 975–76. The court also found that Johnson v. City of
Seattle, 474 F.3d 634 (9th Cir. 2007) “made clear that the
state-created danger doctrine applies to the conduct at issue
in this case” and that the Attendees’ rights were clearly
established. Hernandez, 241 F. Supp. 3d at 976 (citation
omitted). Accordingly, the court denied the Officers qualified
immunity. Id.
B. Monell Liability
The district court also found the Attendees had stated a
claim against the City under Monell for ratifying the
unconstitutional conduct of its Officers. Id. at 980.
According to the FAC, “Chief Garcia ratified the [Officers’]
unconstitutional acts by publicly declaring his support for
those actions and by failing to reprimand [them] for their
conduct.” Id. at 977 (citation and internal quotation marks
omitted). Because “Garcia allegedly made ‘statements . . .
tending to show that [he] endorsed or approved the
unconstitutional conduct of individual officers,’” the
Attendees had in turn “plausibly allege[d] that the police
officers’ actions constituted municipal policy.” Id. at 979
(quoting Dorger v. City of Napa, No.12-cv-440 YGR,
2012 WL 3791447, at *5 (N.D. Cal. Aug. 31, 2012)). The
court also held it was “likely” that Chief Garcia had
10 HERNANDEZ V. CITY OF SAN JOSE
“policymaking authority” over police matters and that his
failure to reprimand his officers also constituted ratification
of their illegal acts. Id. (citation omitted). The court
therefore “[denied] the City Defendants’ [M]otion to Dismiss
the § 1983 claim against the City to the extent that the claim
[was] based on [Chief] Garcia’s alleged ratification of the
police officers’ actions after the Trump Rally.” Id. at 980.
This appeal followed.
STANDARD OF REVIEW
“[The Court] review[s] de novo a district court’s denial of
a motion to dismiss on the basis of qualified immunity.”
Padilla v. Yoo, 678 F.3d 748, 757 (9th Cir. 2012) (citing
Dunn v. Castro, 621 F.3d 1196, 1198 (9th Cir. 2010)). “[The
Court] accept[s] as true all well-pleaded allegations of
material fact, and construe[s] them in the light most favorable
to the non-moving party.” Id. (citation omitted). “[F]or a
complaint to survive a motion to dismiss, the non-conclusory
‘factual content,’ and reasonable inferences from that content,
must be plausibly suggestive of a claim entitling the plaintiff
to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th
Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).
DISCUSSION
At the outset, we must determine the issues over which
we have proper jurisdiction. “In general, [the Court] ha[s]
jurisdiction to hear appeals only from ‘final decisions.’”
Pauluk v. Savage, 836 F.3d 1117, 1120 (9th Cir. 2016) (citing
28 U.S.C. § 1291 and Johnson v. Jones, 515 U.S. 304, 309
(1995)). In Mitchell v. Forsyth, 472 U.S. 511 (1985), the
HERNANDEZ V. CITY OF SAN JOSE 11
Supreme Court created a “narrow” exception to this general
rule when a district court denies a motion to dismiss based on
qualified immunity. Penilla v. City of Huntington Park,
115 F.3d 707, 709 (9th Cir. 1997) (per curiam). “[A] district
court’s denial of a claim of qualified immunity, to the extent
that it turns on an issue of law, is an appealable ‘final
decision’ within the meaning of [§ 1291] notwithstanding the
absence of a final judgment.” Mitchell, 472 U.S. at 530. The
Court “may [also] exercise ‘pendent’ appellate jurisdiction
over an otherwise nonappealable ruling if the ruling is
‘inextricably intertwined’ with a claim properly before [the
Court] on interlocutory appeal.” Kwai Fun Wong v. United
States, 373 F.3d 952, 960 (9th Cir. 2004) (citations omitted).
Here, the City Defendants contend the district court erred
when it (1) denied the Officers qualified immunity and
(2) found the City liable under § 1983 for the Officers’
actions. These are the only issues before the Court, and the
district court’s order has not been challenged otherwise. We
clearly have jurisdiction over the first issue because it
“rais[es] the ‘purely legal’ question of whether the facts
alleged by the plaintiff demonstrate a violation of clearly
established law.” Pauluk, 836 F.3d at 1120 (citing Johnson,
515 U.S. at 313, 319–20)); see also Penilla, 115 F.3d at 709
(citation omitted). As will be explained more fully in this
opinion, however, we lack jurisdiction to review the second
issue because it is not “inextricably intertwined” with the
first. Kwai Fun Wong, 373 F.3d at 960 (citations and internal
quotation marks omitted). We address each issue in turn
below.
12 HERNANDEZ V. CITY OF SAN JOSE
I. Qualified Immunity
“Qualified immunity protects government officers ‘from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Maxwell v.
Cty. of San Diego, 708 F.3d 1075, 1082 (9th Cir. 2013)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982));
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation
omitted). “To determine whether an officer is entitled to
qualified immunity, [the Court] ask[s], in the order [it]
choose[s], (1) whether the alleged misconduct violated a
[constitutional] right and (2) whether the right was clearly
established at the time of the alleged misconduct.” Maxwell,
708 F.3d at 1082 (citing Pearson, 555 U.S. at 232). When
this test is properly applied, it protects “all but the plainly
incompetent or those who knowingly violate the law.”
Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (citation and
internal quotation marks omitted).
According to the Rally Attendees, the Officers violated
their due process rights by exposing them to the danger of an
unruly mob. Because the Officers placed them in danger,
which resulted in their injuries, and their rights were clearly
established at the time of the Rally, the Attendees contend we
should deny the Officers qualified immunity. We agree.
A. Violation of a Constitutional Right
“As a general rule, members of the public have no
constitutional right to sue [public] employees who fail to
protect them against harm inflicted by third parties.” L.W. v.
Grubbs (Grubbs I), 974 F.2d 119, 121 (9th Cir. 1992) (citing
DeShaney v. Winnebago Cty., Dep’t of Soc. Servs., 489 U.S.
HERNANDEZ V. CITY OF SAN JOSE 13
189, 197 (1989)). An exception to the rule applies when
government employees “affirmatively place[] the plaintiff in
a position of danger, that is, where [their] action[s] create[] or
expose[] an individual to a danger which he or she would not
have otherwise faced.” Kennedy, 439 F.3d at 1061 (citing
DeShaney, 489 U.S. at 197) (internal quotation marks
omitted). The affirmative act must create an actual,
particularized danger, id. at 1063, and the ultimate injury to
the plaintiffs must be foreseeable, Lawrence v. United States,
340 F.3d 952, 957 (9th Cir. 2003). The employees must have
also acted with “deliberate indifference” to a “known or
obvious danger.” Patel v. Kent Sch. Dist., 648 F.3d 965, 974
(9th Cir. 2011) (citation and internal quotation marks
omitted).
1. Affirmative Acts
“In examining whether an officer affirmatively places an
individual in danger, [the Court] do[es] not look solely to the
agency of the individual . . . [or] what options may or may not
have been available to [her].” Munger v. City of Glasgow
Police Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000). “Instead,
[the Court] examine[s] whether the officers left the person in
a situation that was more dangerous than the one in which
they found him.” Id.; see also Kennedy, 439 F.3d at 1064 n.5
(recognizing relevant inquiry is whether state action “le[ft]
[the plaintiff] in a situation more dangerous than the one she
already faced” (emphasis added)).
The Attendees have sufficiently alleged that the Officers’
affirmative acts increased the danger they faced at the Rally.
According to the FAC, the Officers (1) “actively prevented
the [A]ttendees from leaving [safely] through alternative
exits,” (2) “directed [the Rally Attendees] to leave from [a
14 HERNANDEZ V. CITY OF SAN JOSE
single] exit,” and (3) “required [the Attendees] to turn north
. . . into the crowd of violent anti-Trump protesters.” The
danger that the anti-Trump protesters would hurt them was
both “actual” and “particularized,” Kennedy, 439 F.3d at
1063, as well as “foreseeable,” Lawrence, 340 F.3d at
957—according to the FAC, the Officers “witnessed” the
violence against the Attendees during the Rally, and there
were reports from as early as 6 p.m. that evening that anti-
Trump protesters had attacked people at the Rally. Taking
these facts as true, as we must on a motion to dismiss, the
Attendees have sufficiently alleged that the Officers placed
them “in a more dangerous position” than the one in which
they found themselves. Penilla, 115 F.3d at 710.
This Court has found similar affirmative acts sufficient to
state a claim under the state-created danger doctrine. In
Munger, for example, the officers “affirmatively ejected [the
decedent] from a bar late at night [into] sub[-]freezing
[temperature]” and “prevented [him] from driving his truck
or reentering [the bar].” 227 F.3d at 1087. That the cold
would eventually kill him was certainly foreseeable as he was
“wearing only a t-shirt and jeans [and] was intoxicated.” Id.
The Court ultimately held it was “indisputable . . . that the
officers placed Munger in a more dangerous position than the
one in which they found him.” Id. (citation internal quotation
marks omitted).
In Wood v. Ostrander, the Court denied qualified
immunity to an officer because the plaintiff had presented
“genuine issues of material fact” on whether he had violated
her due process rights. 879 F.2d 583, 590 (9th Cir. 1989)
(citations omitted). Most of the factual disputes concerned
the exact danger she faced and whether the defendant officer
had knowledge of that danger. See id. But the affirmative
HERNANDEZ V. CITY OF SAN JOSE 15
acts of the defendant were undisputed: he had (1) “arrested
[the driver],” (2) “impounded [the driver’s] car,” and
(3) “stranded [the plaintiff] in a high-crime area at 2:30 a.m.”
Id. These actions, according to the Court, “trigger[ed] a duty
of the police to afford [the plaintiff] some measure of peace
and safety.” Id. (citations omitted). The Court further
observed the danger to the plaintiff was foreseeable—“the
inherent danger facing a woman left alone at night in an
unsafe area [was] a matter of common sense.” Id.
In Kennedy, the Court found the defendant-officer had
“affirmatively created a danger” when he “drove to the Burns
residence and notified the Burns family of the [plaintiff’s]
allegations [of molestation] against [the Burns’s son,]
Michael.” 439 F.3d at 1063. The officer was aware Michael
was dangerous, and he had promised to warn the plaintiff
before taking any action against Michael, but ultimately
failed to do so. See id. Michael later shot and killed the
plaintiff’s husband and severely wounded the plaintiff. Id. at
1057, 1063. Under these circumstances, the Court found the
defendant officer “affirmatively created an actual,
particularized danger [the plaintiff] would not otherwise have
faced” and that the danger was “foreseeable.” Id. at 1063,
1064 n.5.
Finally, in Penilla, the Court found the defendant officers
violated the plaintiff’s due process rights under the state-
created danger doctrine. 115 F.3d at 711. The plaintiff there
“became seriously ill,” and his “neighbors and a passerby
called 911 for emergency medical services.” Id. at 708. The
defendant officers “arrived first,” but rather than helping the
plaintiff, they “cancelled the request for paramedics, broke
the lock and door jamb on the front door of [his] residence,
moved him inside the house, locked the door, and left”—all
16 HERNANDEZ V. CITY OF SAN JOSE
while knowing he was “in grave need of medical care.” Id.
Based on these allegations, the Court concluded “[t]he
officers . . . took affirmative actions that significantly
increased the risk facing [the plaintiff].” Id. at 710.
Just as in Wood, Penilla, Munger, and Kennedy, on the
facts alleged, the Officers’ affirmative acts created a danger
the Rally Attendees otherwise would not have faced. Being
attacked by anti-Trump protesters was only a possibility when
the Attendees arrived at the Rally. The Officers greatly
increased that risk of violence when they shepherded and
directed the Attendees towards the unruly mob waiting
outside the Convention Center.
But the Officers contend “[t]he relevant inquiry under the
state-created danger doctrine is not whether police decision
‘X’ exposed a plaintiff to more danger than hypothetical
police decision ‘Y.’” It is “whether the involvement of police
at all exposed the plaintiff to a danger that he would not have
faced in the complete absence of that involvement.” The
Officers seize on the following language in DeShaney, where
the Supreme Court held that county officials were not liable
for the injuries a child sustained at the hands of his abusive
father: “That the State once took temporary custody of Joshua
does not alter the analysis, for when it returned him to his
father’s custody, it placed him in no worse position than that
in which he would have been had it not acted at all.”
489 U.S. at 201. Regardless of what they did or did not do,
the Officers argue the “danger [to the Attendees] was already
present by virtue of the heated speech activity taking place
throughout the entire area of the [R]ally venue.”
Accordingly, the Officers could not have been the cause of
the Attendees’ injuries.
HERNANDEZ V. CITY OF SAN JOSE 17
The argument proves too much. If the Officers could
avoid liability because the Rally was already dangerous and
the Attendees were bound to be hurt, so too could the officer
in Wood on grounds that the plaintiff was traveling through
a high-crime area, the officers in Penilla because the plaintiff
was already severely ill, and the officer in Kennedy on
grounds that the plaintiff’s neighbor was known to be
unstable and violent. Under the Officers’ theory, liability
would only attach when an official does “more than simply
expose the plaintiff to a danger that already existed.” Henry
A. v. Willden, 678 F.3d 991, 1002 (9th Cir. 2012) (citation
and internal quotation marks omitted). But that “is not the
law of this circuit” and “would render the state-created
danger doctrine meaningless.” Id. Indeed, interpreting
DeShaney, this Court has held the “critical distinction” for
finding liability is not “between danger creation and
enhancement, but . . . between state action and inaction in
placing an individual at risk.” Penilla, 115 F.3d at 710. It is
with this focus that we ask whether “the affirmative actions
of [the] official create[d] or expose[d] an individual to a
danger which he or she would not have otherwise faced.”
Willden, 678 F.3d at 1002–03 (emphasis in original removed)
(citation and internal quotation marks omitted). While
acknowledging the potential for danger at the Rally, the
Attendees allege here they would have made it “to safety”
had the Officers not affirmatively directed them into the
crowd of protesters. Accordingly, they have alleged
sufficiently this prong of their state-created danger claim.
See Willden, 678 F.3d at 1002–03 (citation and internal
quotation marks omitted); Munger, 227 F.3d at 1086 (relevant
inquiry is “whether the officers left the person in a situation
that was more dangerous than the one in which they found
him”); Kennedy, 439 F.3d at 1064 n.5 (relevant inquiry is
18 HERNANDEZ V. CITY OF SAN JOSE
whether state action “le[ft] [the plaintiff] in a situation more
dangerous than the one she already faced”).
2. Deliberate Indifference
“Deliberate indifference is ‘a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or
obvious consequence of his action.’” Patel, 648 F.3d at 974
(quoting Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997)). It
“requires a culpable mental state,” and the “standard [the
Court] appl[ies] is even higher than gross negligence.” Id.
(citing L.W. v. Grubbs (Grubbs II), 92 F.3d 894, 898–90 (9th
Cir. 1996)). To claim deliberate indifference, the Attendees
must allege facts demonstrating the Officers “recognize[d]
[an] unreasonable risk and actually intend[ed] to expose [the
Attendees] to such risks without regard to the consequences
to [the Attendees].” Id. (quoting Grubbs II, 92 F.3d at 899).
“In other words, the [Officers] [must] [have] ‘known that
something [was] going to happen but ignor[ed] the risk and
expose[d] [the Attendees] to it [anyway].’” Id. (quoting
Grubbs II, 92 F.3d at 900).
In Wood, for example, the Court held a jury could find the
defendant Officer exhibited deliberate indifference if, among
other things, he had “knowledge of the danger” to the
plaintiff—if he knew that “the area where [the plaintiff] was
stranded had the highest violent crime rate in the county
outside the City of Tacoma.” 879 F.2d at 590. He would
have also shown deliberate indifference if he failed to make
“any inquiry at all as to [the plaintiff’s] ability to get safely
home” or “ignored her request for help.” Id.
In Kennedy, the defendant officer “knew that Michael was
violent.” 439 F.3d at 1064. The plaintiff “told [the officer]
HERNANDEZ V. CITY OF SAN JOSE 19
in detail of Michael[’s] violent tendencies, including [that he
had] li[t] a cat on fire and assault[ed] his girlfriend with a
baseball bat after breaking into her house.” Id. Indeed, the
plaintiff “testified that . . . she left several messages with the
police department . . . in which she expressed continued fear
for her family’s safety and refreshed her concern that she be
given notice before the Burns family was notified in the
course of the [criminal] investigation.” Id. Under these
circumstances, the Court found the officer “acted deliberately
and indifferently to the danger he was creating” when he
notified Michael of the allegations against him without first
warning the plaintiff. Id. at 1065.
In Munger, the officers ejected the decedent into sub-
freezing temperatures even though “they knew [he] was
wearing only a t-shirt and jeans [and] was intoxicated.”
227 F.3d at 1087. “[T]he fact that the officers went looking
for [the decedent] (or so claim), [further] demonstrate[d] . . .
they were aware of the danger he was in.” Id. Such
indifference, coupled with the officers’ affirmative acts,
increased the danger to the decedent, and the Court therefore
denied the officers qualified immunity. See id.
The Court reached the opposite conclusion in Patel.
648 F.3d at 976. There, a mother brought suit against her
daughter’s teacher for failing to supervise her daughter when
she went to the bathroom. See id. at 969. The lack of
supervision, according to the mother, led to “several sexual
encounters with another developmentally disabled student.”
Id. at 968. The Court found no deliberate indifference, in
part, because while the teacher “knew . . . [the plaintiff’s
daughter] required extensive supervision and had been
involved in past bathroom incidents,” the “details of [those
incidents] were unknown to [her],” and she was not otherwise
20 HERNANDEZ V. CITY OF SAN JOSE
aware of “any immediate danger in allowing [the student] to
briefly use the next-door bathroom alone.” Id. at 975–76.
Accordingly, the Court found “no rational factfinder could
conclude that [the teacher] acted with deliberate indifference
to [the student’s] safety and well-being.” Id. at 976.
Like the officers in Wood, Munger, and Kennedy, the
Officers here were aware of the danger to the plaintiffs—they
knew the anti-Trump protesters posed an immediate threat to
the Attendees. According to the FAC, “as early as [6 p.m.]
the day of the Rally, the San Jose police warned all officers
deployed around [the] Rally that assaults had already been
reported outside the [Convention Center].” And throughout
the Rally, the Officers “witnessed the many violent criminal
acts perpetrated by dozens of anti-Trump protesters” and yet
continued to “direct[] [the Attendees] into the mob.” The
allegations here, if true, demonstrate the Officers “act[ed]
with deliberate indifference to a known [and] obvious
danger.” Patel, 648 F.3d at 971–72 (citation and internal
quotation marks omitted).
Indeed, the Officers’ actions are in some ways even more
culpable than those of the officer in Kennedy. The Court
there found the officer was deliberately indifferent because he
was aware of Michael’s past acts of violence—that he “had
. . . beaten [his girlfriend] with a baseball bat” and had once
“li[t] a cat on fire.” Kennedy, 439 F.3d at 1064. Here, the
Officers were not only aware that Trump rallies had drawn
violent crowds in the past but had also received reports of
violence on the day of the Rally and witnessed the violence
firsthand during the Rally. Their actions therefore are
distinguishable from those of the teacher in Patel who, unlike
the Officers here, “did not know there was any immediate
HERNANDEZ V. CITY OF SAN JOSE 21
danger in allowing [the student] to . . . use the . . . bathroom
alone.” 648 F.3d at 976.
Taking the allegations in the FAC as true, the Attendees
have adequately claimed a due process violation pursuant to
the state-created danger doctrine. They have asserted
sufficiently that the Officers (1) “affirmatively place[d]
[them] in danger,” and (2) “act[ed] with deliberate
indifference to [a] known or obvious danger in subjecting
[them] to [that danger].” Kennedy, 439 F.3d at 1062
(citations and internal quotation marks omitted).
B. Clearly Established Law
“To be clearly established, a right must be sufficiently
clear that every reasonable official would have understood
that what he is doing violates that right.” Hamby v.
Hammond, 821 F.3d 1085, 1090–91 (9th Cir. 2016) (quoting
Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (per curiam)).
The Attendees “must point to prior case law that articulates
a constitutional rule specific enough to alert these [Officers]
in this case that their particular conduct was unlawful.”
Sharp v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017).
“This is not to say that an official action is protected by
qualified immunity unless the very action in question has
previously been held unlawful . . . but it is to say that in the
light of pre-existing law, the unlawfulness must be apparent.”
Hardwick v. Cty. of Orange, 844 F.3d 1112, 1117 (9th Cir.
2017) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).
The Attendees first point to Wood and Kennedy to argue
their rights were clearly established at the time of the Rally.
We disagree. At best, these cases merely define the contours
of the state-created danger doctrine and stand for the “broad
22 HERNANDEZ V. CITY OF SAN JOSE
general proposition” that an officer may not, through her
affirmative acts, place a person in danger and act with
deliberate indifference to that danger. Keates v. Koile,
883 F.3d 1228, 1239 (9th Cir. 2018) (citing Mullenix v. Luna,
136 S. Ct. 305, 308 (2015) (per curiam)) (internal quotation
marks omitted). While the principles from those cases
certainly apply, neither case is remotely “[]similar on its
facts” to the case at hand. Sharp, 871 F.3d at 911; see also
Kramer v. Cullinan, 878 F.3d 1156, 1164 (9th Cir. 2018)
(finding law was not clearly established because “the
language in the Letter is not similar to phrasing that [the
Court has] found to be stigmatizing” (emphasis added)).
Neither Wood nor Kennedy involved officers who
implemented a crowd-control plan at a rally—Wood involved
an officer who abandoned the plaintiff in a high-crime area,
and Kennedy concerned an officer who stoked the violent
tendencies of a dangerous neighbor. See Wood, 879 F.2d at
589–90; Kennedy, 439 F.3d at 1063. “Whatever the merits of
the decision[s] in [Wood and Kennedy], the differences [in the
facts of those] case[s] and [this] case . . . leap from the page.”
Kisela v. Hughes, 138 S. Ct. 1148, 1154 (2018) (per curiam)
(citation and internal quotation marks omitted). Without
more, Wood and Kennedy did not place these Officers on
notice that their actions were unlawful “in light of the specific
context of [this] case.” Keates, 883 F.3d at 1239 (quoting
Mullenix, 136 S. Ct. at 308).
But the Attendees have also cited Johnson, a case that
clearly establishes the state-created danger doctrine applies to
the crowd-control context. See 474 F.3d at 640–41. There,
the plaintiffs alleged the defendant-officers were “liable for
enhancing their danger [at a Mardi Gras celebration] . . . by
abandoning the operational plan for crowd control . . .
call[ing] for . . . aggressive law enforcement, and, instead,
HERNANDEZ V. CITY OF SAN JOSE 23
implementing a more passive plan of staying on the perimeter
of the crowd.” Id. at 638. Although we ultimately held the
plaintiffs failed to establish a constitutional violation, we did
so because of the “absence in [the] case of any affirmative
conduct by the [officers] that increased the risk of harm to
[those at the Mardi Gras celebration].” Id. at 640. Had the
officers in Johnson engaged in affirmative conduct akin to
directing someone involuntarily into dangerous conditions (as
the Officers did here), they would have been liable under the
state-created danger doctrine. Id. (citing Munger, 227 F.3d
at 1084). The officers would have also been liable if they had
“confine[d] the . . . [p]laintiffs to a place where [the
plaintiffs] would be exposed to a risk of harm by private
persons”—e.g., at the center of an unruly mob of protesters.
Id. “The reasoning, though not the holding, [of Johnson] . . . .
gave fair warning to [the Officers] that their conduct crossed
the line of what is constitutionally permissible.” Hope,
536 U.S. at 743 (citation omitted); see also id. at 739 (finding
relevant inquiry was whether “in the light of pre-existing law,
the unlawfulness [of the conduct is] apparent,” not whether
“the very action in question has previously been held
unlawful” (citations and internal quotation marks omitted)).
“[T]he violative nature of [the Officers’] particular conduct
[was therefore] clearly established” at the time of the Rally.
Hamby, 821 F.3d at 1091 (quoting Mullenix, 136 S. Ct. at
308).
Based on the allegations in the FAC, which we take as
true at this stage of the proceedings, we also find that this is
“one of those rare cases” in which the constitutional violation
“is so ‘obvious’ that we must conclude . . . qualified
immunity is inapplicable, even without a case directly on
point.” A.D. v. Cal. Highway Patrol, 712 F.3d 446, 455 (9th
Cir. 2013) (quoting Hope, 536 U.S. at 740–41); see also
24 HERNANDEZ V. CITY OF SAN JOSE
Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam)
(“[I]n an obvious case, [highly generalized standards] can
clearly establish [a constitutional violation], even without a
body of relevant case law.” (citation and internal quotation
marks omitted)).2 Here, the Attendees allege the Officers
shepherded them into a violent crowd of protesters and
actively prevented them from reaching safety. The Officers
continued to implement this plan even while witnessing the
violence firsthand, and even though they knew the mob had
attacked Trump supporters at the Convention Center earlier
that evening, and that similar, violent encounters had
occurred in other cities. Viewed in the light most favorable
to the Attendees, these allegations establish “with obvious
clarity” that the Officers increased the danger to the
Attendees and acted with deliberate indifference to that
danger, pursuant to the state-created danger doctrine. United
States v. Lanier, 520 U.S. 259, 271 (1997) (citation and
internal quotation marks omitted).
We therefore hold “that the operative complaint alleges
facts that allow us ‘to draw the reasonable inference that the
[Officers are] liable for the misconduct alleged,’” Keates,
883 F.3d at 1240 (quoting Iqbal, 556 U.S. at 678), and that
the district court properly denied the Officers qualified
immunity at this stage of the proceedings. This, of course,
“does not mean that th[e] case must go to trial,” id. at 1240
2
“[S]ome things are so obviously unlawful that they don’t require
detailed explanation and sometimes the most obviously unlawful things
happen so rarely that a case on point is itself an unusual thing. Indeed, it
would be remarkable if the most obviously unconstitutional conduct
should be the most immune from liability only because it is so flagrantly
unlawful that few dare its attempt.” Sharp, 871 F.3d at 911 n.7 (quoting
Browder v. City of Albuquerque, 787 F.3d 1076, 1082–83 (10th Cir. 2015)
(Gorsuch, J.)).
HERNANDEZ V. CITY OF SAN JOSE 25
(citation and internal quotation marks omitted), or that the
Officers are now precluded from ever asserting a claim for
qualified immunity in this litigation. As we have noted time
and again, “[o]nce an evidentiary record has been developed
through discovery, [the Officers] will be free to move for
summary judgment based on qualified immunity.” Id.
(citation and internal quotation marks omitted); see also
Skoog v. Cty. of Clackamas, 469 F.3d 1221, 1233 (9th Cir.
2006) (noting qualified immunity is “normally . . . resolved
on summary judgment” (quoting Crawford-El v. Britton,
523 U.S. 574, 590 (1998) (citation omitted))).
II. Monell Liability
The City claims the district court also erred when it
concluded the Attendees had stated sufficiently a § 1983
claim against the City under Monell. According to the FAC,
Chief Garcia “expressly ratified” the allegedly
unconstitutional acts of his officers when he “publicly . . . .
lauded [their] ‘discipline and restraint,’ and [further]
supported the officers’ passive refusal to break-up nearby
scuffles.” “Garcia [also] took no disciplinary actions against
the officers in response to [their allegedly] [un]constitutional
[conduct].” The district court held that “Garcia’s statements
after the Trump Rally praising the actions of [the] police
officers” and his “failure to reprimand [them]” were
“sufficient to state a claim that the [City] ratified [their]
actions” in violation of § 1983. Hernandez, 241 F. Supp. 3d
at 980. Because we lack jurisdiction to review the merits of
the Attendees’ claims against the City, we dismiss the City’s
appeal.
“A municipality is not entitled to assert the defense of
qualified immunity.” Huskey v. City of San Jose, 204 F.3d
26 HERNANDEZ V. CITY OF SAN JOSE
893, 902 (9th Cir. 2000) (citing Owen v. City of Indep.,
445 U.S. 622, 638 (1980)). “Thus the rule announced [by the
Supreme Court] that individual defendants can appeal from
the denial of a motion [to dismiss] to obtain review of the
merits of their qualified immunity defense does not
[ordinarily] empower a federal court to consider the denial of
a municipality’s [similar] motion . . . in a § 1983 action.” Id.
(citing Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 38
(1995)); see also Pelletier v. Fed. Home Loan Bank of S.F.,
968 F.2d 865, 870 (9th Cir. 1992) (citing Mitchell, 472 U.S.
at 527) (permitting interlocutory appeal of qualified immunity
issue at motion-to-dismiss stage).
A court may nonetheless exercise “pendent jurisdiction”
over the claims against the municipality if they are
“‘inextricably intertwined’” with the qualified immunity
issue. Puente Ariz. v. Arpaio, 821 F.3d 1098, 1109 (9th Cir.
2016) (quoting Swint, 514 U.S. at 51)); see also Huskey,
204 F.3d at 906. The Court “interpret[s] the ‘inextricably
intertwined’ standard narrowly” and applies it in “extremely
limited” circumstances. Puente Ariz., 821 F.3d at 1109
(citations omitted). “The standard is only satisfied where the
issues are (a) . . . so intertwined that [the Court] must decide
the pendent issue in order to review the claims properly raised
on interlocutory appeal, or (b) resolution of the issue properly
raised on interlocutory appeal necessarily resolves the
pendent issue.” Id. (citation and internal quotation marks
omitted).
Neither prong is satisfied here. First, we need not decide
“the pendent issue”—whether the Attendees have stated a
§ 1983 claim against the City premised on their ratification
theory—in order to decide the issue “properly raised on
interlocutory appeal”—whether the Officers are entitled to
HERNANDEZ V. CITY OF SAN JOSE 27
qualified immunity. Id. (citation and internal quotation marks
omitted). Whether the allegations concerning Chief Garcia’s
public statements and his failure to discipline his officers are
sufficient to constitute ratification is an issue that is not
necessary for deciding whether the Officers violated the
Attendees’ due process rights on the night of the Rally by
directing them towards violent protesters.
Recognizing this, the City proceeds only under the second
prong of the test, arguing “resolution of the issue properly
raised [on] appeal necessarily resolves the pendent issue.”
According to the City, “a negative answer to the question
whether the employee violated the Constitution will always
necessarily resolve the pendent issue of whether the
municipality was liable for the violation.” While this might
be true in some cases, see, e.g., Huskey, 204 F.3d at 906, the
principle is inapplicable here because we have held the
Officers violated the Attendees’ due process rights, based on
the allegations in the FAC. That may mean that the
City—through Chief Garcia’s ratification of his officers’
conduct—is also liable under § 1983, but it does not
“necessarily resolve[]” the issue one way or another. Id. at
905–06 (quoting Moore v. City of Wynnewood, 57 F.3d 924,
930 (10th Cir. 1995) (stating qualified immunity and
ratification were “different issues”)).3 The City’s liability
will turn on whether Chief Garcia “took . . . steps to
reprimand or discharge the [Officers], or . . . failed to admit
[their] conduct was in error.” McRorie v. Shimoda, 795 F.2d
780, 784 (9th Cir. 1986). The Officers’ liability, as discussed
3
For the City to be liable under this theory, it is certainly necessary
for the Officers to have violated constitutional rights. But just because the
Officers engaged in unconstitutional conduct does not necessarily resolve
whether Chief Garcia ratified such conduct.
28 HERNANDEZ V. CITY OF SAN JOSE
at length above, will turn on whether they increased the
danger to the Attendees and acted with deliberate indifference
to that danger. Because we must apply “different legal
standards” to whether Chief Garcia actually ratified the
Officers’ conduct and to whether that conduct was
unconstitutional, the two issues are not “inextricably
intertwined,” and the City’s appeal is not subject to pendent
jurisdiction. Puente Ariz., 821 F.3d at 1109 (citation and
internal quotation marks omitted). We therefore “dismiss
[the City’s] appeal for lack of jurisdiction.” Id. at 1110.
CONCLUSION
Based on the allegations in the operative complaint,
which we take as true on a motion to dismiss, the Attendees
have alleged sufficiently that the Officers increased the
danger to them by shepherding them into a crowd of violent
protesters and that the Officers acted with deliberate
indifference to that danger. The district court therefore
correctly denied the Officers qualified immunity. As for the
Attendees’ claim against the City, we decline to exercise
jurisdiction over it because it is not inextricably intertwined
with the qualified immunity issue.
AFFIRMED in part, and DISMISSED in part. Costs
are to be taxed against Defendants-Appellants.