dissenting:
I respectfully dissent because the majority has failed to consider all of the facts and to draw all inferences in Campbell’s favor. In so doing, it concludes that the state owed Justine Booth no duty of care and absolves the state of any responsibility for its employees’ recklessness. We *848should hold that state employees exposed Justine to a greater danger than she would otherwise have faced by encouraging her to enter the bath and to leave her unattended for far too long. Campbell raised a triable issue of material fact as to whether the state of Washington had a “special relationship” with Justine. Campbell has alleged facts that, if true, establish that the state owed a duty of care to Justine and is liable under 42 U.S.C. § 1983 for its alleged failure to protect her from deprivations of life and liberty without due process of law. See Corales v. Bennett, 567 F.3d 554, 562 (9th Cir.2009). Moreover, defendants are not entitled to qualified immunity because it was clearly established at the time of the events that the state owes an affirmative duty of care when it exposes an individual to danger that she would otherwise not have faced. We should hold that the district court erred in granting summary judgment and should remand for trial.
I. Constitutional Violation
The due process clause “forbids the State itself to deprive individuals of life, liberty or property without ‘due process of law,’ ” but does not “impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.” DeShaney v. Winnebago County Dep’t of Soc. Serv., 489 U.S. 189, 195, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). We have recognized two exceptions to this rule: (1) the “danger creation exception” and (2) the “special relationship” exception. Johnson v. Seattle, 474 F.3d 634, 639 (9th Cir.2007). I address each in turn.
A. Danger Creation
To prevail under the danger creation exception, a plaintiff must show that affirmative state action exposed the plaintiff to a greater degree of danger than she otherwise would have faced. Johnson, 474 F.3d at 639. The majority concludes that the dangers Justine faced were a product of her own physical and mental limitations, rather than the product of any action by the state. Majority Op. at 847. But we have never required the state to be the source of the danger posed. Rather, our “cases clearly contemplate § 1983 liability for the state actor who, though not inflicting plaintiffs injury himself, has placed plaintiff in the harmful path of a third party”—or, as in this case, placed an individual in a situation where she was at greater risk of harm from her own limitations. See Kennedy v. City of Ridgefield, 439 F.3d 1055, 1062 n. 2 (9th Cir.2006). In other words, the “danger creation” exception applies when defendants’ acts increased plaintiffs’ exposure to dangers already present. See Penilla v. Huntington Park, 115 F.3d 707, 710 (9th Cir.1997) (holding that officers were subject to the danger creation exception because they placed an individual “in a more dangerous position than the one in which they found him”); L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir.1992) (holding that defendants were subject to the danger creation exception when they “independently created the opportunity for and facilitated” a third party assault of plaintiff).
Campbell alleges, and at least one of the defendants admits, that defendants Mitchell and McGenty ordered Justine to get in the bath on the night of her death. By ordering Justine to take a bath without direct supervision, defendants McGenty and Mitchell committed an affirmative act that increased Justine’s likelihood of succumbing to the dangers inherent in her physical condition. Cf. Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082, 1087 (9th Cir.2000) (finding an affirmative act when police ordered a visibly drunk man *849to leave a bar wearing only a t-shirt on a freezing night).
The majority brushes off the role Mitchell and McGenty played in Justine’s bath, characterizing the bath as “routine.” Op. at 847. It ignores, however, that the “routine” of having Justine bathe herself without any necessary precautions was of the state’s making. The defendants increased Justine’s exposure to the risk of drowning with deliberate indifference to the fact that Justine had previously suffered seizures in the bath and that Justine’s prior Personal Support Plans required her to be directly supervised while she was in the bathtub. Between 2004 and 2006, Justine had at least six seizures in the bathroom and was found on many other occasions sleeping in the bathtub. The state was aware of these risks.1 Despite actual knowledge of these risks, the defendants allowed almost twenty minutes to elapse without checking on Justine while they sat on the sofa watching television.
Simply put, Justine would not have been in the bath unsupervised at the moment of her death had defendants not ordered her to be there.2 Given that state employees instructed Justine to take a bath and then failed to take even basic precautions necessary to mitigate the risk, the danger creation exception applies.
B. Special Relationship
As the majority correctly acknowledges, the special relationship exception applies when the state holds an individual in custody, as opposed to when an individual voluntarily resides in the care of the state. Op. at 843. Court-ordered commitment to state care is not, however, a necessary prerequisite to a special relationship. Torisky v. Schweiker, 446 F.3d 438, 441 (3d Cir. 2006). Rather, the question is whether, at the time of the events in question, the individual was free to leave state custody. Id. at 441; see also Kennedy v. Schafer, 71 F.3d 292, 295 (8th Cir.1996). This is a question of fact. The standard for summary judgment review requires that we “draw all reasonable inferences in favor of [Campbell], the nonmoving party,” and prohibits us from “substitut[ing] [our] judgment concerning the weight of the evidence for the jury’s.” Road v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir.2003). The burden is on defendants to show that there are no material disputes of fact. Fed. R. Civ. Pr. 56(c). If a reasonable jury could conclude that Justine was effectively confined by the state, then Campbell has alleged a viable constitutional claim and the defendants are not entitled to summary judgment.
*850The facts here preclude summary judgment. Justine was in state custody for virtually her entire life. In 1975, when Justine was two, her mother voluntarily surrendered Justine and her brother to state custody in California. Three years later, Justine was sent to live with her father and her step-mother in Washington. She lived with them for two years, but, after her father left the family in 1980, Justine exhibited aggressive behaviors. Her stepmother then placed her in the custody of the Department of Health and Social Services. Justine was later admitted to the state’s Child Study and Treatment Center (CSTC).3 For the next six years, she moved between CSTC and foster homes.
As a teenager, Justine remained in state custody. In 1987, while she was still a ward of the state, Justine was admitted to the Fircrest School on an emergency basis.4 Justine remained at Fircrest until she was 18 years old, at which point because of her age she was no longer a ward of the state. Her Fircrest annual social summary from 1991 indicates that Justine was “referred for community placement” and “opted for a SOLA home.” The summary noted that “[f]ree access to the community for Justine is tempered by her medical condition, occasional maladaptive behaviors, and need for protection.” Fir-crest staff worked closely with SOLA to facilitate Justine’s transition. In concluding that Justine “requested” the placement at SOLA, the majority fails to acknowledge this history. Based on these facts, a reasonable jury could conclude that the state, acting as Justine’s guardian, advocated for and arranged the SOLA placement.
Theoretically, Justine’s participation in SOLA was voluntary. The letter welcoming Justine to SOLA fifteen years before her death formally permitted her to withdraw from SOLA at any time. Furthermore, while Washington law allows the state to detain individuals who voluntarily enter mental health facilities or residential habilitation centers (like Fircrest) but seek to leave, no such provision exists for individuals, like Justine, who occupy leased homes with “roommates” but are provided 24 hour care and supervision by state employees. See Wash. Rev.Code § 71.05.050 (allowing the staff to detain a person voluntarily admitted for mental health services who requests discharge in order to authorize further evaluation or involuntary commitment to custody if the staff believes the person presents an imminent likelihood of serious harm to themselves or to others or is disabled); § 71A.20.140 (the secretary may detain a rehabilitation center resident for no more than 48 hours even though he believes that departure may be harmful to the resident).
But even if initial enrollment in SOLA was voluntary, a jury could conclude that Justine’s participation in SOLA became de facto involuntary. Campbell introduced evidence that SOLA staff wouldn’t let Justine “run away”, or “go on vacation”, and that Justine’s “comings and goings” were monitored by SOLA staff.5 A former *851SOLA caregiver who had worked with Justine stated that SOLA placed locks on the door to prevent Justine from leaving the home without permission, that they were trained to stop her if she tried to leave without authorization, and that they would not allow her to terminate her participation in SOLA or move out because she was legally incompetent. A SOLA supervisor noted that “the majority” of SOLA clients can’t make decisions for themselves, so their caregivers “might prevent” them from “wandering off.” The majority dismisses these facts, stating that “what Campbell alleges were the Defendant’s liberty-restraining acts were merely part of SOLA’s efforts to ensure Justine’s day-today safety and care.” Op. at 844. A reasonable jury could view these facts differently. It would be reasonable to conclude, for example, that Justine was trying to leave state custody when she attempted to “go on vacation” and that SOLA staffs prevention of those actions—even if motivated by concern for her safety—effectively restrained her liberty. See Kennedy, 71 F.3d at 295 (citing DeShaney and remanding where a voluntary mental patient may have effectively become an involuntary patient).
The majority also ignores a final fact supporting Campbell’s claim that Justine was involuntarily in state custody. Justine’s annual PSPs noted her ability to change her support program at any time, but did not inform her that she had the ability to terminate her participation in the program altogether. In this respect, Justine had fewer rights than individuals residing in state mental health institutions; people who voluntarily commit themselves to Washington state mental health institutions must, by law, be notified every 180 days of their right to discharge upon request. Wash. Rev.Code § 71.05.050.
These facts could establish at trial that Justine’s placement in SOLA, though formally voluntary, was de facto involuntary. A reasonable jury could conclude that Justine was in involuntary custody because the state (1) advocated for and arranged the SOLA placement while Justine was a ward of the state; (2) monitored and controlled every aspect of Justine’s daily life; (3) prevented Justine from leaving SOLA; and (4) failed to inform Justine of her ability to terminate her custodial relationship. Because a jury could reasonably conclude that the state exercised involuntary custody over Justine, the trial court should not have concluded that there was no special relationship and no affirmative obligation to protect Justine’s constitutional rights.
II. Qualified Immunity
Because I would hold that Campbell has alleged a constitutional violation, I turn to the question of whether summary judgment was nevertheless appropriate because defendants are protected by qualified immunity. Even if a plaintiff has alleged a violation of constitutional right, state actors are immune from suit if the right was not clearly established at the time of the events in question. A constitutional right is clearly established when
its contours [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right. 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 light of pre-existing law the unlawfulness must be apparent. *852Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quotation marks and internal citations removed). We “need not find a prior case with identical or even ‘materially similar’ facts.” Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1136-37 (9th Cir.2003). Rather, we need only conclude that defendants had “fair warning” that their conduct was unlawful. Id. at 1137.
It has been clearly established in the Ninth Circuit since at least 1998 that “state officials could be held liable where they affirmatively and with deliberate indifference placed an individual in danger she would not otherwise have faced.” Kennedy, 439 F.3d at 1066. Because defendants affirmatively exposed Justine to danger, they are not entitled to qualified immunity.
III. Conclusion
I conclude that the trial court erred by granting summary judgment to the State of Washington, holding that it did not owe Justine Booth a duty of care under either the special relationship or the danger creation doctrines. This is a case that I would send to a jury to decide whether the state failed to discharge those duties. My sense is that the tragedy in this case could and should have been prevented, and that the defendants should not be free from liability without a decision in their favor by a jury.
I respectfully dissent.
. In this respect, Patel v. Kent School District, 648 F.3d 965 (9th Cir.2011), is distinguishable. In Patel, we stated that "[t]his would be a different case if [the defendant] had known” about any immediate risk. Id. at 975. Here, unlike the defendant in Patel, the defendants "stood idly by” when actually aware of an immediate risk to Justine. In addition to being aware that Justine "required extensive supervision and had been involved in past [bathtub] incidents,” the defendants knew the details of these incidents and were aware of the immediate danger in placing Justine in the bathtub unattended. Id. at 975-76.
. Johnson v. City of Seattle is also distinguishable. There, plaintiffs were injured during violence surrounding Mardi Gras celebrations in Seattle’s Pioneer Square. Johnson, 474 F.3d at 638. Plaintiffs alleged that the police, who chose to employ a more "passive” crowd control policy than they had previously used, enhanced the danger they faced. We disagreed, noting that plaintiffs voluntarily chose to enter Pioneer Square, and the more passive plan "placed [the Pioneer Square plaintiffs] in no worse position than that in which they would have been had [the defendants] not acted at all.” Id. at 641. Here, in contrast, defendants took the affirmative step of ordering Justine to enter the bath, thus placing her in the path of danger.
. CSTC is a state run psychiatric hospital for children. The record indicates that Justine was "kept” at CSTC, but does not specifically state that she was involuntarily committed. Because she was a ward of the state at the time, we infer that the state committed her.
. Fircrest School is a residential center for developmentally disabled youth operated by the state Division of Developmental Disabilities (DDD).
. The majority states that Justine traveled "by paratransit bus” by herself to Elder Care. The record refers to "Access vans,” which are King County Metro Transportation services available exclusively to people who have been found eligible for paratransit services in the *851county. See http://metro.kingcounty.gov/tops/ accessible/accessvan.html. Access riders must schedule rides, and specify the pick up and drop off locations. The vans are not open to the general public, nor are riders permitted to freely change their schedules. Id.