Presiding Argued and Submitted January 15, 2019 San Francisco
from the United States District Court No.
1:15-cv-00683-JAM-MJS for the Eastern District of California
John A. Mendez, District Judge.
G. Little (argued), Law Office of Kevin G. Little, Fresno,
California, for Plaintiff-Appellant.
L. Field (argued), Ferguson, Praet & Sherman, Santa Ana,
California, for Defendants-Appellees Kristina Hershberger,
Angela Yambupah, Fred Sanders, and Channon High.
W. Phillips (argued), Patrick J. Gorman, and Kristina D.
Garabedian, Wild, Carter & Tipton, Fresno, California,
for Defendants-Appellees Kim Pennington and Connie
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.
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.
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
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.
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
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.
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.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.
May 2, 2013, Incident
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.
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.
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."
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."
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.
she did not arrest Pennington. She did not advise Martinez of
her right to make a citizen's arrest,  her right to
obtain a restraining order, or the possibility of staying at
a shelter. 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.
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
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.
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.
June 4, 2013, Incident
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
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
believed that she had probable cause to arrest Pennington and
determined that he was the dominant aggressor. She believed that
this made Pennington's arrest mandatory under California
Penal Code § 836(c)(1). 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.
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.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."
officers did not give Martinez the jurisdiction's
domestic violence information handout,  did not inform
her of her right to effect a citizen's arrest,
did not offer her transportation to a shelter, and did not
issue an emergency protective order. 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 ...