Juan Hernandez; Nathan Velasquez; Frank Velasquez; Mark Doering; Mary Doering; Barbara Arigoni; Dustin Haines-Scrodin; Andrew Zambetti; Christina Wong; Craig Parsons; I.P., a minor individual; Greg Hyver; Todd Broome; Donovan Rost; Michele Wilson; Cole Cassady; Theodore Jones; Martin Mercado; Christopher Holland; Rachel Casey, Plaintiffs-Appellees,
City of San Jose, a municipal corporation; Loyd Kinsworthy; Lisa Gannon; Kevin Abruzzini; Paul Messier; Paul Spagnoli; Johnson Fong; Jason ta, Defendants-Appellants.
and Submitted April 9, 2018 San Francisco, California
from the United States District Court for the Northern
District of California D.C. No. 5:16-cv-03957-LHK Lucy H.
Koh, District Judge, Presiding.
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
Harmeet K. Dhillon (argued), Dhillon & Smith LLP, San
Francisco, California, for Plaintiff-Appellees.
Before: Dorothy W. Nelson, Andrew J. Kleinfeld, and William
A. Fletcher, Circuit Judges.
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
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
declined to exercise jurisdiction over it because it was not
inextricably intertwined with the qualified immunity issue.
NELSON, Senior Circuit Judge.
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"). The City Defendants contend the court
erred 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.
The First Amended Complaint
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.
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  and 
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.
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."
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.
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
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."
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
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
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.
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).
The District Court's Order Denying Qualified
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. He ...