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Hernandez v. City of San Jose

United States Court of Appeals, Ninth Circuit

July 27, 2018

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.

          Argued and Submitted April 9, 2018 San Francisco, California

          Appeal 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 Defendant-Appellants.

          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.


         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 declined to exercise jurisdiction over it because it was not inextricably intertwined with the qualified immunity issue.


          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 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.


         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.

         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.

         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.

         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. He ...

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