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Martinez v. City of Clovis

United States Court of Appeals, Ninth Circuit

December 4, 2019

Desiree Martinez, Plaintiff-Appellant,
City of Clovis; Sanger City; Channon High; Kyle Pennington; Kim Pennington; Connie Pennington; Kristina Hershberger; Jesus Santillan; Angela Yambupah; Ralph Salazar; Fred Sanders, Defendants-Appellees.

          Presiding Argued and Submitted January 15, 2019 San Francisco

          Appeal from the United States District Court No. 1:15-cv-00683-JAM-MJS for the Eastern District of California John A. Mendez, District Judge.

          Kevin G. Little (argued), Law Office of Kevin G. Little, Fresno, California, for Plaintiff-Appellant.

          Diana L. Field (argued), Ferguson, Praet & Sherman, Santa Ana, California, for Defendants-Appellees Kristina Hershberger, Angela Yambupah, Fred Sanders, and Channon High.

          John W. Phillips (argued), Patrick J. Gorman, and Kristina D. Garabedian, Wild, Carter & Tipton, Fresno, California, for Defendants-Appellees Kim Pennington and Connie Pennington.

          No appearance for Defendants-Appellees City of Clovis, Sanger City, Kyle Pennington, Jesus Santillan, and Ralph Salazar.

          Before: J. Clifford Wallace and Michelle T. Friedland, Circuit Judges, and Robert S. Lasnik, [*] District Judge.

         SUMMARY [**]

         Civil Rights

         The panel affirmed the district court's summary judgment in favor of law enforcement officers in an action brought pursuant to 42 U.S.C. § 1983 and state law by a victim of domestic abuse who alleged that defendants placed her at a greater risk of future abuse.

         The panel held that the state-created danger doctrine under the Due Process Clause applies when an officer reveals a domestic violence complaint made in confidence to an abuser while simultaneously making disparaging comments about the victim in a manner that reasonably emboldens the abuser to continue abusing the victim with impunity. Similarly, the state-created danger doctrine applies when an officer praises an abuser in the abuser's presence after the abuser has been protected from arrest, in a manner that communicates to the abuser that the abuser may continue abusing the victim with impunity. Going forward, the panel held that the law in this circuit will be clearly established that such conduct is unconstitutional.

         The panel held that the conduct of Officers Hershberger and Sanders violated plaintiff's constitutional right to due process, but that the officers were entitled to qualified immunity because it was not clear at the time that their conduct was unconstitutional. The panel held that Officer Yambupah's actions left plaintiff in the same position she would have been in had Yambupah not acted at all, and therefore Yambupah's failure to protect plaintiff against private violence thus did not violate the Due Process Clause.


          Lasnik, District Judge.

         Desiree Martinez is a victim of domestic violence. The issue before us is whether she can recover damages under 42 U.S.C. § 1983 from the law enforcement officers who allegedly placed her at greater risk of future abuse. In addition to suing her abuser, Kyle Pennington (a City of Clovis Police Department officer), she asserts claims under § 1983 against the City of Clovis ("Clovis"), the City of Sanger ("Sanger"), and six police officers, as well as negligence claims against Pennington's parents, Connie and Kim Pennington. She appeals from the district court's summary judgment in favor of Officer Kristina Hershberger, Officer Angela Yambupah, Sergeant Fred Sanders, and Kim and Connie Pennington.[1]

         We hold that Hershberger's and Sanders's conduct violated Martinez's constitutional right to due process. We also hold that the officers are entitled to qualified immunity because it was not clear at the time that their conduct was unconstitutional. We therefore affirm the district court's summary judgment.

         I. BACKGROUND

         Martinez and Pennington started living together in 2013 with Martinez's daughter, Destiny, in Clovis. Pennington first physically and sexually abused Martinez in April 2013, while the two were staying at a hotel in Dublin, California.[2]After that, a pattern of violence ensued. Martinez's § 1983 claims against Clovis, Sanger, and the individual officers arise out of two incidents that took place on May 2, 2013, and June 4, 2013. We address these two incidents in turn.

         A. May 2, 2013, Incident

         Martinez was at her cousin's house on the evening of May 2, 2013. When Pennington arrived at the house, he became physically abusive. Pretending to leave, Martinez exited the house and hid outside. After Pennington left, she dialed 911 and took a taxi to the house where she lived with Pennington. Hershberger and Jesus Santillan were dispatched to the home. The officers were onsite when Martinez arrived.

         Pennington walked over to the taxi and warned her not to say anything to the officers. Martinez told Hershberger that she did not want to speak to Santillan because he was Pennington's friend. Hershberger then spoke with Martinez outside of Pennington's immediate presence. According to Martinez, however, Pennington was still within eye and earshot.

         Hershberger testified that Martinez had told her about Pennington's physical abuse in Dublin but did not mention that Pennington had been physically abusive that evening. Hershberger tried to probe further, but Martinez asked to go inside, insisting that she was fine. Martinez gave inconsistent testimony about whether she told Hershberger that Pennington had pushed her down the stairs that evening, ultimately clarifying that she had. She claimed that Hershberger asked her to "hold on just a second" and moved away. Pennington stared at Martinez in a manner she perceived as intimidating, so she walked toward him, "because [she] didn't want him to think that [she] was talking to the officer."

         While Martinez was standing in front of Pennington, Hershberger returned. She had a tape recorder and asked Martinez to repeat her statements about what had happened in Dublin. Martinez testified that "[a]t that point [she] was scared because [Hershberger] had said Dublin and she had said it in front of [Pennington], so [Martinez] told her, 'Nothing, nothing happened.'" Martinez heard Pennington clear his throat, which she contends he does when he is angry, and therefore "acted like [she] didn't know what . . . she was talking about."[3]

         Hershberger had received domestic violence training. She believed that Martinez faced potential risk if she stayed with Pennington that night. She was aware that domestic violence victims "might tend to recant accusations of violence" out of fear of reprisal.

         However, she did not arrest Pennington. She did not advise Martinez of her right to make a citizen's arrest, [4] her right to obtain a restraining order, or the possibility of staying at a shelter.[5] She did not provide Martinez with Clovis's pamphlet for victims of domestic violence. She contends that this was because Martinez did not indicate that any violence had occurred that evening, and because she was responding to a "check the welfare" call, not a domestic violence call. Instead, she recommended that Martinez be contacted and interviewed again.

         Hershberger and Pennington had both worked with the Clovis Police Department ("Clovis PD") for about nine years. Hershberger did not socialize with Pennington and had only a "neutral" opinion of him. Pennington testified that after Martinez went back inside the house, Hershberger spoke with him briefly. As Pennington describes it, she "was asking me, you know, what I was doing dating a girl like Desiree Martinez and what was going on, what was going on in my life because I was recently divorced and, you know, that she didn't think that she was necessarily a good fit for me."

         That night, Pennington physically abused Martinez. He called her a "leaky faucet" and asked her what she had told Hershberger and whether she was trying to get him in trouble. The next day, Martinez spoke with a detective over the phone. Pennington had scripted the conversation, and Martinez denied everything that she had said to Hershberger.

         In May 2013, Martinez contacted members of the Clovis PD again about an incident unrelated to this appeal. To avoid further investigation by the Clovis PD, Martinez and Pennington moved to Sanger at the end of the month.

         B. June 4, 2013, Incident

         On the night of June 3, 2013, Pennington physically and sexually abused Martinez. Martinez stated that he choked, beat, suffocated, and sexually assaulted her. Martinez did not have access to a phone, but one of their neighbors made a 911 domestic violence call. Yambupah and Sanders arrived at the house with two other officers. When the officers arrived, both Martinez and Pennington were standing outside of the house.

         Yambupah had received domestic violence training. She noticed that Martinez had injuries consistent with those of a victim of physical abuse, including a red cheek, scrapes on her knees, a manicured fingernail that was broken and bleeding, a torn shirt, and bruising on her arms. She photographed Martinez's injuries. Although Yambupah later acknowledged that separating Martinez and Pennington was important because of the possibility of intimidation, Martinez testified that they were not separated by more than seven feet when she and Yambupah spoke. Martinez, believing that Pennington was within earshot, whispered to Yambupah that the injuries had been inflicted by Pennington, that Pennington had tried to smother her with a pillow, and that he had attempted to choke her.

         Yambupah believed that she had probable cause to arrest Pennington and determined that he was the dominant aggressor.[6] She believed that this made Pennington's arrest mandatory under California Penal Code § 836(c)(1).[7] She also believed that as a police officer, Pennington had access to weapons. Yambupah learned from Martinez that Pennington was on administrative leave from the Clovis PD because of a domestic violence incident with an ex-girlfriend.

         Yambupah told Martinez that she was going to make an arrest, and "huddled" with the other officers. When Yambupah informed them of Martinez's allegations and Pennington's position with the Clovis PD, Sanders, who was acting as a supervisor on the scene, ordered her to refer the matter to the District Attorney instead of making an arrest.[8]Yambupah testified that had Sanders not given the order, she would have arrested Pennington on that day "in the interest of Ms. Martinez's safety."

         The officers did not give Martinez the jurisdiction's domestic violence information handout, [9] did not inform her of her right to effect a citizen's arrest, [10] did not offer her transportation to a shelter, and did not issue an emergency protective order.[11] Yambupah testified that she did not give Martinez the handout because she did not want to leave her side. She "asked Martinez to let [her] help her," but Martinez refused. She did not issue a protective order because Martinez "was not willing to pursue any assistance from [her] at all." She ...

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