FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DESIREE MARTINEZ, No. 22-16335
Plaintiff-Appellant, D.C. No.
1:15-cv-00683-
v. DAD-SKO
CHANNON HIGH,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Chief District Judge, Presiding
Argued and Submitted August 22, 2023
San Francisco, California
Filed January 26, 2024
Before: Patrick J. Bumatay, Lucy H. Koh, and Roopali H.
Desai, Circuit Judges.
Opinion by Judge Desai;
Concurrence in Judgment by Judge Bumatay
2 MARTINEZ V. HIGH
SUMMARY *
Qualified Immunity/State-Created Danger Doctrine
The panel affirmed the district court’s summary
judgment order granting qualified immunity to Channon
High, a City of Clovis police officer, in an action brought
pursuant to 42 U.S.C. § 1983 by Desiree Martinez, alleging
that Officer High violated her due process rights under the
state-created danger doctrine when she disclosed Martinez’s
confidential domestic violence report to Martinez’s abuser
Kyle Pennington, another Clovis police officer.
The panel first determined that the district court did not
abuse its discretion by entertaining Officer High’s
successive summary judgment motion on remand from this
court’s decision in Martinez’s prior interlocutory appeal.
Addressing the merits, the panel held that Officer High
violated Martinez’s due process rights. Although state
actors generally are not liable for failing to prevent the acts
of private parties, an exception to this rule—the “state-
created danger” exception—applies where the state
affirmatively places the plaintiff in danger by acting with
deliberate indifference to a known or obvious danger. Here,
Officer High’s affirmative conduct of disclosing Martinez’s
confidential complaint to Pennington, whom Officer High
knew was an alleged abuser, placed Martinez in actual,
foreseeable danger. Officer High also acted with deliberate
indifference toward the risk of future abuse, given that she
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MARTINEZ V. HIGH 3
knew Pennington was violent and under investigation for
domestic violence.
The panel nevertheless held that Officer High was
entitled to qualified immunity because it was not clearly
established in 2013 that Officer High’s conduct violated
Martinez’s substantive due process rights. The panel
clarified that 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 in the judgment, Judge Bumatay agreed with
the majority’s conclusion that Officer High was properly
afforded an opportunity to file a successive summary
judgment motion and that she was entitled to qualified
immunity based on the lack of any clearly established
law. Because no clearly established law existed at the time
of the incident, it was unnecessary to reach whether
Martinez’s allegations against Officer High amount to a
claim under the state-created danger doctrine.
COUNSEL
Kevin G. Little (argued), Law Office of Kevin G. Little,
Fresno, California, for Plaintiff-Appellant.
Suzanne M. Nicholson (argued), Suzanne M. Nicholson
Attorney at Law, Sacramento, California; Bruce D. Praet,
Ferguson Praet & Sherman, Santa Ana, California; for
Defendant-Appellee.
4 MARTINEZ V. HIGH
OPINION
DESAI, Circuit Judge:
Plaintiff Desiree Martinez appeals the district court’s
summary judgment order granting qualified immunity to
Channon High, a City of Clovis police officer. Ms. Martinez
survived brutal domestic violence at the hands of Kyle
Pennington, another Clovis police officer with whom Ms.
Martinez was in a relationship. She sued Officer High under
42 U.S.C. § 1983 for disclosing her confidential domestic
violence report to her abuser, one of Officer High’s
colleagues. We hold that Officer High violated Ms.
Martinez’s due process rights under the state-created danger
doctrine, but that right was not yet “clearly established” at
the time of the violation. We thus affirm.
BACKGROUND 1
In February 2013, Ms. Martinez started a romantic
relationship with Clovis police officer Kyle Pennington. The
couple moved in together early in their relationship, and Mr.
Pennington soon became violent. He first physically and
sexually assaulted Ms. Martinez in April 2013, and a cycle
of abuse escalated over the next several months.
Ms. Martinez called the police to report Mr.
Pennington’s abuse on May 2, 2013. Clovis police officers
responded. One of the responding officers, Officer Kristina
Hershberger, questioned Ms. Martinez at the scene. Ms.
Martinez told Officer Hershberger about Mr. Pennington’s
prior abuse at a hotel in Dublin, California. Before leaving
1
We construe any disputed facts in Ms. Martinez’s favor. See Scott v.
Harris, 550 U.S. 372, 378 (2007).
MARTINEZ V. HIGH 5
the scene, Officer Hershberger brought up the Dublin
incident in front of Mr. Pennington, and Ms. Martinez
recanted. Officer Hershberger also asked Mr. Pennington
“what [he] was doing dating a girl like Desiree Martinez”
and told him “she didn’t think [Ms. Martinez] was
necessarily a good fit for [him].” The officers left without
arresting Mr. Pennington. He assaulted Ms. Martinez again
that night.
On May 29, 2013, Ms. Martinez made an anonymous
call to the Clovis Police Department to report that Mr.
Pennington was still abusing her and to seek information
about her legal rights. Ms. Martinez made this report
confidentially due to Mr. Pennington’s threats, which made
her “fear[] great bodily harm or death.” Shortly after, Mr.
Pennington moved Ms. Martinez to Sanger, a nearby city, to
“avoid further possible reports to the Clovis Police
Department.”
Just days after the move, neighbors called 911 after
witnessing Mr. Pennington physically and sexually assault
Ms. Martinez, leading Sanger police officers to respond to
the incident at Mr. Pennington’s home. Despite Ms.
Martinez’s obvious injuries, the responding officers did not
arrest Mr. Pennington or issue a protective order until the
next day. As the officers left, one remarked that Mr.
Pennington’s family were “good people.” Mr. Pennington
again abused Ms. Martinez that night.
In early September 2013, Officer High had two phone
calls with Mr. Pennington. At the time, Officer High worked
in the Clovis Police Department’s records unit. Phone
records show that Officer High called Mr. Pennington on his
cell phone on September 3, and Mr. Pennington called
Officer High on her cell phone on September 7. Ms.
6 MARTINEZ V. HIGH
Martinez overheard only one of those calls. It is unclear
which call she overheard, but her testimony supports an
inference that she overheard the September 7 call. 2
Ms. Martinez likely did not hear the phone call between
Officer High and Mr. Pennington on September 3. However,
the September 3 call happened the morning Ms. Martinez
“was supposed to testify as a witness in his criminal
preliminary hearing.” After the call, Ms. Martinez suffered
“abuse and intimidation,” which stopped her from testifying.
A few days later on September 7, Mr. Pennington called
Officer High again. He spoke to Officer High on
speakerphone in front of Ms. Martinez. During the call, Mr.
Pennington asked Ms. Martinez if she was “telling the cops”
about his abuse, and she responded “no.” Officer High
interjected: “Yes, she did. I see a report right here.” Officer
High also told Mr. Pennington that another Clovis police
officer was under investigation for lying about a “romantic
relationship” he had with Ms. Martinez.
Immediately after the call, Mr. Pennington inflicted
“horrific, severe additional abuse” on Ms. Martinez,
“including both physical and sexual abuse.” Officer High’s
“contacts on September 3 and 7” provoked Mr. Pennington
to continue abusing Ms. Martinez until he was arrested after
a final, “especially brutal beating” on September 18.
PROCEDURAL HISTORY
Ms. Martinez sued in 2015. The operative complaint
asserted claims against Mr. Pennington, his parents, several
police officers, and the cities of Clovis and Sanger. Ms.
2
Whether Ms. Martinez overheard the call on September 3 or 7 does not
affect our analysis.
MARTINEZ V. HIGH 7
Martinez’s complaint included a § 1983 claim against
Officer High and other officers for violating her substantive
due process rights. 3 She alleged that Officer High put her in
greater danger when Officer High disclosed Ms. Martinez’s
confidential report to Mr. Pennington. Ms. Martinez also
alleged that the other officers put her in danger when they
responded to 911 calls, including by failing to advise her
about her rights, failing to separate her from Mr. Pennington,
engaging in small talk with Mr. Pennington, and failing to
arrest him.
All the officers moved for summary judgment on
qualified immunity grounds. The district court granted
qualified immunity to every officer except Officer High. As
for Officer High, the court found that “it was clearly
established that an officer sharing a domestic violence
victim’s confidential information to the alleged abuser
would be a violation of the victim’s substantive due process
rights.” Officer High did not appeal, but Ms. Martinez
appealed the order granting qualified immunity to the other
officers.
This court affirmed the district court’s grant of qualified
immunity to the other officers, holding that (1) the officers
violated Ms. Martinez’s substantive due process right, but
(2) the right was not “clearly established” in 2013. Martinez
v. City of Clovis, 943 F.3d 1260, 1276–77 (9th Cir. 2019)
(“Martinez I”). Relevant here, the court analyzed the conduct
of Officer Hershberger, one of the responding officers,
which the district court had not focused on. This court held
that Officer Hershberger violated Ms. Martinez’s due
3
Ms. Martinez also brought an equal protection claim against Officer
High, which the district court dismissed in 2017. Ms. Martinez did not
appeal that dismissal.
8 MARTINEZ V. HIGH
process rights by emboldening Mr. Pennington to “further
abuse Martinez . . . with impunity” when Officer
Hershberger “told Pennington about Martinez’s testimony
relating to his prior abuse” and said that “Martinez was not
‘the right girl’ for him.” Id. at 1272. But the court
nonetheless granted Officer Hershberger qualified immunity
because the constitutional violation in “this context was not
apparent to every reasonable officer at the time the conduct
occurred.” Id. at 1276.
On remand, the district court granted Officer High leave
to file a successive summary judgment motion on her
qualified immunity defense “[i]n light of the Ninth Circuit’s
ruling” in Martinez I. Officer High’s new summary
judgment motion argued that she too was entitled to
summary judgment based on this court’s analysis of Officer
Hershberger’s conduct in Martinez I. The district court
granted the motion and held that, based on Martinez I,
Officer High was “entitled to qualified immunity [because]
it was not clearly established in 2013 that [Officer High]’s
conduct violated due process.” Ms. Martinez timely
appealed.
STANDARD OF REVIEW
We review a district court’s decision to accept a
successive motion for summary judgment for an abuse of
discretion. Hoffman v. Tonnemacher, 593 F.3d 908, 911–12
(9th Cir. 2010). We review de novo the district court’s grant
of qualified immunity on summary judgment. Martinez I,
943 F.3d at 1269–70. “In doing so, we view the evidence in
the light most favorable to” the nonmoving party. Id. at
1270.
MARTINEZ V. HIGH 9
DISCUSSION
I. The district court did not abuse its discretion by
entertaining Officer High’s successive summary
judgment motion.
Ms. Martinez first argues that Officer High “waived her
qualified immunity defense by failing to raise it in the prior
appeal” and thus could not file a new summary judgment
motion. We disagree.
First, the “prior appeal” was Ms. Martinez’s appeal
challenging the other officers’ qualified immunity—Officer
High did not appeal. Martinez I, 943 F.3d at 1269 n.13 (“The
claims against High are not before us.”). Officer High “could
have taken an interlocutory appeal” from the district court’s
denial of her summary judgment motion. Rivero v. City and
County of San Francisco, 316 F.3d 857, 863 (9th Cir. 2002).
“But ‘could have’ is not ‘should have.’” Id. This court has
“made clear that the rule permitting a defendant to take an
interlocutory appeal after a denial of a motion based on
qualified immunity is not a rule requiring the defendant to
take that appeal.” Id. (emphasis added) (citing DeNieva v.
Reyes, 996 F.2d 480, 484 (9th Cir. 1992)). Officer High’s
decision not to appeal the denial of her first summary
judgment motion thus does not bar her from re-raising her
qualified immunity defense in a subsequent summary
judgment motion.
Nor was Officer High barred from filing a second
summary judgment motion. Nothing in Rule 56 prohibits
successive motions. Fed. R. Civ. P. 56(b) (allowing parties
to “file a motion for summary judgment at any time until 30
days after the close of all discovery” unless the court or local
rule says otherwise (emphasis added)). And “a district court
may permit successive motions for summary judgment on
10 MARTINEZ V. HIGH
qualified immunity.” Hoffman, 593 F.3d at 910; see also
Behrens v. Pelletier, 516 U.S. 299, 306–11 (1996) (holding
that a defendant could immediately appeal the denial of his
successive motion asserting qualified immunity).
District courts may “weed out frivolous or simply
repetitive motions.” Knox v. Sw. Airlines, 124 F.3d 1103,
1106 (9th Cir. 1997). But Officer High’s second motion was
neither frivolous nor simply repetitive, and the district court
was free to entertain it. Hoffman, 593 F.3d at 911. 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.
II. The qualified immunity framework.
Now we turn to the merits. An officer is entitled to
qualified immunity unless the plaintiff shows that (1) the
officer violated the plaintiff’s constitutional right and (2) the
“right was clearly established at the time of the incident.”
Martinez I, 943 F.3d at 1270. Because this court may
consider either prong first, it need not decide the first prong
if the second is dispositive. Pearson v. Callahan, 555 U.S.
223, 236 (2009). But deciding both prongs is “often
beneficial” because it “promotes the development of
constitutional precedent.” Id. That is true here.
For one thing, the constitutional question is “in an area
where this court’s guidance is needed.” Martinez I, 943 F.3d
MARTINEZ V. HIGH 11
at 1270 (alteration omitted) (quoting Horton ex rel. Horton
v. City of Santa Maria, 915 F.3d 592, 602 (9th Cir. 2019)).
Indeed, our application of Martinez I in this case will guide
future courts when addressing due process questions in
similar contexts. What’s more, the parties have repeatedly
briefed the constitutional question in the district court and
this court. Thus, we address both prongs to “best facilitate
the fair and efficient disposition of [this] case.” Pearson, 555
U.S. at 242.
A. Officer High violated Ms. Martinez’s due process
rights.
Ms. Martinez’s § 1983 claim stems from the Due Process
Clause of the Fourteenth Amendment. 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.” Murguia v. Langdon, 61 F.4th 1096, 1106 (9th Cir.
2023) (emphasis omitted), cert. denied, No. 23-270, 2024
WL 71941 (Jan. 8, 2024). 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.” Id. (quoting Patel v. Kent Sch. Dist., 648
F.3d 965, 971–72 (9th Cir. 2011)). Ms. Martinez invokes
that exception here. 4
To establish the “state-created danger” exception, a
plaintiff must prove two things. The officer’s “affirmative
4
In her supplemental brief, Ms. Martinez raises for the first time several
other constitutional arguments. Dkt. 48 at 4–6. We decline to consider
those arguments because Ms. Martinez failed to make them below. Smith
v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“As a general rule, we
will not consider arguments that are raised for the first time on appeal.”).
We thus deny as moot Officer High’s motion for leave to file objections
to Ms. Martinez’s supplemental brief, Dkt. 51.
12 MARTINEZ V. HIGH
conduct” must expose the plaintiff to a foreseeable danger
that she would not otherwise have faced. Id. at 1111; see also
Martinez I, 943 F.3d at 1271. And the officer must act “with
‘deliberate indifference’ to a ‘known or obvious danger.’”
Murguia, 61 F.4th at 1111 (quoting Patel, 648 F.3d at 974);
Martinez I, 943 F.3d at 1271. Both requirements are met
here.
1. Officer High’s affirmative conduct placed Ms.
Martinez in actual, foreseeable danger.
First, Officer High’s affirmative conduct increased Ms.
Martinez’s risk of abuse by Mr. Pennington. An officer’s
statements about a victim to a violent perpetrator can
increase the risk of retaliation. In Martinez I, for example,
this court held that Officer Hershberger’s disclosure of Ms.
Martinez’s reported abuse “provoked” Mr. Pennington, and
her “disparaging comments” about Ms. Martinez
emboldened Mr. Pennington “to believe that he could further
abuse Martinez, including by retaliating against her for her
testimony, with impunity.” Martinez I, 943 F.3d at 1272.
Likewise in Okin v. Village of Cornwall-On-Hudson Police
Department, the Second Circuit held that officers who
“openly expressed camaraderie with [an abuser] and
contempt for [the victim]” increased the danger to the victim
“because they conveyed to [the abuser] that he could
continue to engage in domestic violence with impunity.” 577
F.3d 415, 430–31 (2d Cir. 2009). And in Kennedy v. City of
Ridgefield, this court held that officers “affirmatively created
a danger to” the plaintiff that “she otherwise would not have
faced” when they notified an alleged perpetrator about the
plaintiff’s allegations against him “before the [plaintiff and
her family] had the opportunity to protect themselves from
his violent response to the news.” 439 F.3d 1055, 1063 (9th
Cir. 2006).
MARTINEZ V. HIGH 13
So too here. Officer High told Mr. Pennington about Ms.
Martinez’s confidential domestic violence report. She did so
after hearing Ms. Martinez answer “no” when Mr.
Pennington—the alleged abuser—asked her whether she
was “telling the cops” about his abuse. Officer High also
shared other information endangering Ms. Martinez,
including that Ms. Martinez had a romantic relationship with
another police officer. In other words, Officer High’s
disclosure was coupled with comments that Ms. Martinez
was lying and also had a relationship with Mr. Pennington’s
colleague. A reasonable jury could find that Officer High’s
comments put Ms. Martinez at risk of violent retaliation.
The risk was also foreseeable. Officer High obviously
knew that Mr. Pennington was an alleged abuser because the
information she disclosed to him was a domestic violence
report against him. And when Officer High spoke with Mr.
Pennington, he had been arrested for domestic violence and
was subject to a restraining order. Officer High also admitted
in her deposition that she knew the Clovis Police Department
put Mr. Pennington on leave because of “something
involving a female.” Worse, Officer High knew Ms.
Martinez was in the room with Mr. Pennington when Officer
High disclosed the report. The danger was obvious. Shortly
after learning from Officer High that Ms. Martinez reported
his abuse to the police, Mr. Pennington brutally sexually and
physically assaulted Ms. Martinez. The assaults Ms.
Martinez suffered after Officer High’s disclosure “were
objectively foreseeable” as “a matter of common sense.”
Martinez I, 943 F.3d at 1274. 5
5
In fact, Officer High’s counsel conceded at oral argument that the harm
was foreseeable.
14 MARTINEZ V. HIGH
Construing the facts in Ms. Martinez’s favor, Officer
High placed her “in greater danger” by disclosing her
confidential complaint to Mr. Pennington while conveying
contempt for Ms. Martinez. Martinez I, 943 F.3d at 1272;
see also Okin, 577 F.3d at 429–30 (holding that reasonable
jurors could find that police officers’ conduct “implicitly but
affirmatively encouraged [the perpetrator’s] domestic
violence”).
2. Officer High was deliberately indifferent to a
known or obvious risk.
Second, Officer High “acted with deliberate indifference
toward the risk of future abuse.” Martinez I, 943 F.3d at
1274. In non-detainee cases like this one, the deliberate
indifference standard is subjective: The officer must “know
that something is going to happen but ignore the risk and
expose the plaintiff to it.” Murguia, 61 F.4th at 1111
(cleaned up); see Martinez I, 943 F.3d at 1274. That does not
mean the officer must “know with certainty that the risk will
materialize or intend for the plaintiff to face the risk.”
Murguia, 61 F.4th at 1117 n.16. The officer need only “take
an intentional action with knowledge that his actions will
expose the plaintiff to an unreasonable risk.” Id.
This court has held that knowledge about an abuser’s
history of violence constitutes deliberate indifference. For
example, in Kennedy, the officers knew that an alleged
perpetrator “had a predilection for violence and was capable
of the attack he in fact perpetrated” on the plaintiff’s family.
439 F.3d at 1064. The officers thus “knew that telling [the
perpetrator] about the allegations against him without
forewarning the [plaintiff’s family] would place them in a
danger they otherwise would not have faced.” Id. So too in
Martinez I, this court held that—given Mr. Pennington’s
MARTINEZ V. HIGH 15
“violent tendencies”—“a reasonable jury could find that
disclosing a report of abuse while engaging in disparaging
small talk with Pennington . . . constitutes deliberate
indifference.” Martinez I, 943 F.3d at 1274. And most
recently in Murguia, this court held that a state official “was
aware of the obvious risk of harm [a mother] presented” to
her children because the official knew about the mother’s
“history of abuse.” 61 F.4th at 1116.
Like the officials in Kennedy, Martinez I, and Murguia,
Officer High knew Mr. Pennington was violent. She knew
Mr. Pennington was under investigation for domestic
violence. She worked in the Clovis Police Department’s
records unit and saw Ms. Martinez’s report of Mr.
Pennington’s abuse. Not only was the department already
investigating Mr. Pennington for domestic violence against
an ex-girlfriend, Martinez I, 943 F.3d at 1274, but there was
an active criminal case against him for assaulting Ms.
Martinez. Officer High had also completed domestic
violence training and understood that a victim’s confidential
reports should not be disclosed to the abuser. Yet she took
Mr. Pennington’s call and told him about Ms. Martinez’s
confidential report for no apparent reason other than to
discredit Ms. Martinez. And she knew Ms. Martinez was in
the room with Mr. Pennington and would thus be exposed to
his violent reaction. These facts no doubt show “deliberate
indifference to a known or obvious danger.” Martinez I, 943
F.3d at 1274.
* * *
In sum, taking the facts in Ms. Martinez’s favor, Officer
High violated Ms. Martinez’s due process rights by
knowingly placing her in greater danger of Mr. Pennington’s
assaults.
16 MARTINEZ V. HIGH
B. Ms. Martinez’s constitutional right was not
“clearly established” when Officer High engaged
in the challenged conduct.
Though Ms. Martinez established a constitutional
violation, Officer High is entitled to qualified immunity
because existing case law in 2013 did not make clear that
Officer High’s conduct violated Ms. Martinez’s substantive
due process rights. “There need not be a case directly on
point” to defeat an officer’s qualified immunity defense, but
existing case law must have put “every reasonable official”
on notice that their conduct was unconstitutional. Martinez
I, 943 F.3d at 1275. The case law also “must be
‘controlling’—from the Ninth Circuit or the Supreme
Court—or otherwise be embraced by a ‘consensus’ of courts
outside the relevant jurisdiction.” Id. (quoting Sharp v.
County of Orange, 871 F.3d 901, 911 (9th Cir. 2017)). No
such controlling authority existed in 2013.
The district court relied on Okin when it first denied
Officer High qualified immunity. And Ms. Martinez relied
on Okin again on remand. In that case, the Second Circuit
held that police officers violated a domestic violence
victim’s due process rights when they emboldened the
abuser “by fostering the belief that his intentionally violent
behavior will not be confronted by arrest, punishment, or
police interference.” Okin, 577 F.3d at 437. But we held in
Martinez I that Okin did not clearly establish Ms. Martinez’s
due process rights because it had not “been ‘embraced by a
“consensus” of courts.’” 943 F.3d at 1276 (quoting Sharp,
871 F.3d at 911). Martinez I established only “[g]oing
forward”—but not in 2013—that an officer violates a
victim’s due process rights when the officer engages in
affirmative conduct much like Officer High’s. Id. at 1276–
77. Like Officer High, Officer Hershberger told Mr.
MARTINEZ V. HIGH 17
Pennington about Ms. Martinez’s confidential report of his
prior abuse while also disparaging Ms. Martinez. Id. at 1272.
We held that this conduct violated Ms. Martinez’s due
process rights by provoking and emboldening Mr.
Pennington to retaliate against her later that day, but we
granted Officer Hershberger qualified immunity because the
constitutional violation in “this context was not apparent to
every reasonable officer at the time the conduct occurred.”
Id. at 1276. That holding applies equally to Officer High.
Kennedy does not require a different result. There, the
plaintiff told police that her teenage neighbor molested her
nine-year-old daughter. Kennedy, 439 F.3d at 1057. The
plaintiff also reported that the neighbor was violent and
unstable, so the police assured her they would notify her
before “any police contact with the [neighbor’s] family
about her allegations.” Id. at 1057–58. The officers later told
the neighbor about the plaintiff’s allegations without first
warning the plaintiff. Id. at 1058. When police told the
plaintiff they had just spoken to the neighbor about the
allegations, she “became upset” and asked why they didn’t
warn her. Id. The police assured her they “would patrol the
area around both her house and the [neighbor’s] house that
night to keep an eye on [the neighbor].” Id. Because it was
late and based on the officers’ assurances, the plaintiff
locked her doors and planned to leave town the next day. Id.
But early the next morning, the neighbor broke in and shot
the plaintiff and shot and killed her husband. Id.
This court held that the officers were not entitled to
qualified immunity because “it was clearly established 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.” Id. at 1066.
That broad statement applies equally to this case. But since
18 MARTINEZ V. HIGH
Kennedy, this court and the Supreme Court have explained
that “‘clearly established law’ should not be defined ‘at a
high level of generality.’” White v. Pauly, 580 U.S. 73, 79
(2017) (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 742
(2011)). It is instead “the facts of particular cases that clearly
establish what the law is.” Isayeva v. Sacramento Sheriff’s
Dep’t, 872 F.3d 938, 951 (9th Cir. 2017).
Although Kennedy involved a police officer disclosing a
report to an alleged perpetrator, it did not involve sufficiently
“similar circumstances” to put the constitutional violation
“beyond debate” here. White, 580 U.S. at 79 (quoting
Mullenix v. Luna, 577 U.S. 7, 12 (2015)). The officers in
Kennedy not only told a violent perpetrator about the
plaintiff’s allegations without giving her “a reasonable
opportunity to protect her family” despite promising to do
so, but they also misrepresented the level of danger by
assuring her they would patrol the neighborhood. 439 F.3d
at 1063. This “was an additional and aggravating factor” that
made the plaintiff and her family “more vulnerable to the
danger.” Id. Given the officers’ specific false assurances that
affected the plaintiff’s choices, we cannot say that “every
reasonable official would have understood” from Kennedy
that an officer violates the constitution by disclosing a report
to a violent perpetrator. See Martinez I, 943 F.3d at 1275.
Indeed, this court relied on Kennedy in Martinez I, yet it did
not hold that Kennedy clearly established Ms. Martinez’s
due process rights. See id. at 1271–74.
At bottom, our precedent dictates that no existing
authority gave Officer High sufficient notice in 2013 that her
conduct violated due process.
MARTINEZ V. HIGH 19
CONCLUSION
We affirm the district court’s summary judgment
granting Officer High qualified immunity because Ms.
Martinez’s constitutional right was not clearly established in
2013. 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.
Officer High’s motion for leave to file objections to Ms.
Martinez’s supplemental brief, Dkt. 51, is DENIED as moot.
AFFIRMED.
Bumatay, J., concurring in the judgment:
It cannot be seriously disputed that the judicially crafted
“state-created danger exception finds no support in the text
of the Constitution, the historical understanding of the ‘due
process of law,’ or even Supreme Court precedent.”
Murguia v. Langdon, 73 F.4th 1103, 1104 (9th Cir. 2023)
(Bumatay, J., dissenting from the denial of rehearing en
banc). 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.” Hurtado v.
California, 110 U.S. 516, 527 (1884) (emphasis added). 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.
As I’ve said previously, it’s a Frankenstein’s monster-
like doctrine, “cobbl[ing] together bits and pieces of
20 MARTINEZ V. HIGH
standards from other contexts to try to breathe new life into
substantive due process.” Murguia, 73 F.4th at 1114. And
unfortunately, it’s a monster that “roams menacingly among
our circuit courts,” especially the Ninth Circuit. Id. at 1115.
But because expanding substantive due process feels more
like “freewheeling judicial policymaking” than exercising
judgment, we should be reluctant to preside over its growth.
Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 240
(2022).
While I agree with the majority’s conclusion that Officer
Channon High was properly afforded an opportunity to file
a successive summary judgment motion and that she was
entitled to qualified immunity based on the lack of any
clearly established law in this context, it was simply
unnecessary to reach whether Desiree Martinez’s allegations
against Officer High amount to a claim under the state-
created danger doctrine. To 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. As the majority admits, we need not decide
the first prong of qualified immunity if the second prong is
dispositive. See Pearson v. Callahan, 555 U.S. 223, 236
(2009).
And here, the district court did not rule on the first prong
of whether there’s a constitutional violation. No party
argued that there was a constitutional violation in their initial
briefing. It wasn’t until prodded at oral argument by our
court and forced to file supplemental briefing did the parties
raise any arguments about a constitutional violation. It was
unwise to reach the constitutional violation question under
these circumstances.
MARTINEZ V. HIGH 21
For these reasons, I concur only in the judgment of the
court.