Desiree Martinez v. City of Clovis

                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

DESIREE MARTINEZ,                               No. 17-17492
             Plaintiff-Appellant,
                                                 D.C. No.
                   v.                      1:15-cv-00683-JAM-
                                                   MJS
CITY OF CLOVIS; SANGER CITY;
CHANNON HIGH; KYLE                                OPINION
PENNINGTON; KIM PENNINGTON;
CONNIE PENNINGTON; KRISTINA
HERSHBERGER; JESUS SANTILLAN;
ANGELA YAMBUPAH; RALPH
SALAZAR; FRED SANDERS,
           Defendants-Appellees.

        Appeal from the United States District Court
            for the Eastern District of California
         John A. Mendez, District Judge, Presiding

           Argued and Submitted January 15, 2019
                 San Francisco, California

                    Filed December 4, 2019

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

                    Opinion by Judge Lasnik

    *
      The Honorable Robert S. Lasnik, United States District Judge for
the Western District of Washington, sitting by designation.
2                MARTINEZ V. CITY OF CLOVIS

                          SUMMARY **


                           Civil Rights

    The panel affirmed the district court’s summary
judgment in favor of law enforcement officers in an action
brought pursuant to 

 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

    **
       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. CITY OF CLOVIS                  3

therefore Yambupah’s failure to protect plaintiff against
private violence thus did not violate the Due Process Clause.


                        COUNSEL

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.
4                MARTINEZ V. CITY OF CLOVIS

                           OPINION

LASNIK, District Judge:

    Desiree Martinez is a victim of domestic violence. The
issue before us is whether she can recover damages under

 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,

    1
     Martinez’s appeal from the district court’s summary judgment of
her claim against Kim and Connie Pennington is addressed in a
concurrently filed memorandum disposition.
                  MARTINEZ V. CITY OF CLOVIS                          5

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

    2
      In reviewing the district court’s summary judgment, we adopt
Martinez’s version of the facts. See Animal Legal Def. Fund v. U.S. Food
& Drug Admin., 

 (9th Cir. 2016) (en banc) (citation
omitted).
6                 MARTINEZ V. CITY OF CLOVIS

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.




    3
     Martinez had been drinking that evening. Hershberger testified that
Martinez was “highly intoxicated.” However, Martinez testified that she
only pretended to be intoxicated because she was afraid of Pennington
and did not want him to know that she had told Hershberger about what
had happened in Dublin.
                  MARTINEZ V. CITY OF CLOVIS                             7

    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

    4
      Section 836(b) of the California Penal Code states that “[a]ny time
a peace officer is called out on a domestic violence call, it shall be
mandatory that the officer make a good faith effort to inform the victim
of his or her right to make a citizen’s arrest . . . This information shall
include advising the victim how to safely execute the arrest.” 

(b). Similar provisions are included in Section 320.3.4 of the
Clovis Manual.
     5
       Section 320.6 of the Clovis Manual lays out suggested methods of
assisting a victim, including “[a]ssist[ing] in arranging to transport the
victim to an alternate shelter if the victim expresses a concern for their
safety, or the officer determines a need exists,” and “[e]xplain[ing] legal
options available to the victim including the private person’s arrest
process, [and] temporary restraining and stay-away orders.” Hershberger
testified that she asked Martinez if there was somewhere else that she
could go, but Martinez insisted on staying and said that she was not
scared.
8              MARTINEZ V. CITY OF CLOVIS

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
                  MARTINEZ V. CITY OF CLOVIS                            9

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

    6
       The Sanger Police Department’s Policy Manual (“Sanger
Manual”) states that “[t]he dominant aggressor is the person who has
been determined to be the most significant, rather than the first,
aggressor.” See 

(b).
     7
       It is not clear that the arrest was mandatory. The California Penal
Code establishes the circumstances under which a peace officer may
arrest a suspect for assault or battery upon a cohabitant. See 

(d). It also states that an arrest is mandatory under certain
circumstances when a peace officer is responding to a call alleging a
violation of a domestic violence protective or restraining order. See 

at § 836(c). But there does not appear to have been a protective or
restraining order in place at that time against Pennington. More
guidelines for making an arrest are included in Section 320.9.1 of the
Sanger Manual.
10                MARTINEZ V. CITY OF CLOVIS

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 foresaw a risk of continued violence, which


     8
       Sanders was not deposed in this matter; after these events took
place, it came to light that he has dementia. He is now in a treatment
facility.
     9
      Section 320.5(b) of the Sanger Manual states that officers should
“[p]rovide the victim with the department’s domestic violence
information handout, even if the incident may not rise to the level of a
crime.”

     10
        Section 320.9.1(b) of the Sanger Manual states that “[a]n officer
responding to a domestic violence call who cannot make an arrest will
advise the victim of his/her right to make a private person’s arrest. The
advisement should be made out of the presence of a suspect and shall
include advising the victim how to safely execute the arrest.”

     11
       Section 320.5(c) of the Sanger Manual states that “[o]fficers
should . . . [a]lert the victim to any available victim advocates, shelters
and community resources.” Restraining order rights were detailed on the
Sanger Police Department’s (“Sanger PD”) domestic violence
information handout.
               MARTINEZ V. CITY OF CLOVIS                  11

she attempted, unsuccessfully, to address by verifying that
Pennington was going to leave.

    Yambupah did not know that Pennington was an officer
with the Clovis PD until Martinez informed her that he was.
Pennington testified that he knew of Sanders, but that they
were not friends. Pennington’s father, Kim, and Sanders had
known each other for at least 25 years. On leaving, Sanders
said that the Penningtons were “good people.”

   After the officers left, Martinez was again beaten and
sexually assaulted by Pennington. He was arrested the next
day, and a criminal protective order was issued.

    Martinez continued to live with Pennington after his
arrest on June 5, 2013. He physically and sexually abused
her multiple times between July and September 2013, when
she finally moved out. Pennington was eventually convicted
of multiple counts of violating the criminal protective order.
He also pled guilty to one domestic violence charge.

   C. Procedural History

   Martinez sued Pennington, the cities of Clovis and
Sanger, Officers Hershberger, Santillan, High, Yambupah
and Salazar, Sergeant Sanders, and Kim and Connie
Pennington. She asserted claims under 

 of
municipal liability in denial of substantive due process and
equal protection against Clovis and Sanger, and of individual
12                 MARTINEZ V. CITY OF CLOVIS

liability against Hershberger, Santillan, Salazar, 12 High,13
Yambupah, and Sanders. In her claims against the officer
defendants, Martinez contends the officer defendants
violated her right to due process under the state-created
danger doctrine. 14

    The cities and officer defendants moved for summary
judgment on August 15, 2017. The district court granted
summary judgment on all claims against the cities of Sanger
and Clovis, as well as Hershberger, Yambupah, and Sanders.
Partial judgment was issued. Martinez timely appealed.

                II.     STANDARD OF REVIEW

   We review de novo a district court’s summary judgment.
See Animal Legal Def. Fund, 

 (citation
omitted). In doing so, we view the evidence in the light most
favorable to the nonmoving party. See 

 at 989 (citing
Olsen v. Idaho State Bd. of Med., 

, 922 (9th Cir.


     12
       In June 2017, the parties agreed to dismiss Martinez’s claims
against Santillan and Salazar.

     13
        Martinez alleged that High, an officer with the Clovis PD,
contacted Pennington and disclosed the confidential victim reports that
Martinez had made. She was physically and sexually abused by
Pennington as a result of that disclosure. The district court denied High’s
motion for summary judgment on the substantive due process claim,
holding that qualified immunity did not apply. The claims against High
are not before us.

     14
        Specifically, she alleged that “[w]hile there is no affirmative
constitutional duty to protect a citizen from third party violence, when a
state actor becomes involved and through her intentional actions worsens
the citizen’s situation and creates a danger worse or in addition to those
faced by the citizen, that state actor has violated the citizen’s substantive
due process rights.”
               MARTINEZ V. CITY OF CLOVIS                   13

2004)). In “qualified immunity cases, this usually means
adopting . . . the plaintiff’s version of the facts.” Scott v.
Harris, 

 (2007). We also review de novo a
district court’s determination on qualified immunity. See
Robinson v. Prunty, 

, 865–66 (9th Cir. 2001)
(citing Hamilton v. Endell, 

 (9th Cir.
1992)).

     III.    QUALIFIED IMMUNITY DOCTRINE

    “The doctrine of qualified immunity protects
government officials from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.” Reese v. Cty. of Sacramento, 

 (9th Cir. 2018) (quoting Pearson v. Callahan, 

 (2009)). In evaluating whether an officer is entitled
to qualified immunity, courts consider (1) whether the facts
that a plaintiff has alleged make out a violation of a
constitutional right, and (2) whether that right was clearly
established at the time of the incident. See Wilkinson v.
Torres, 

 (9th Cir. 2010) (citing Pearson,

). Qualified immunity applies either where
there was no constitutional violation or where the
constitutional violation was not clearly established. See 

We have discretion to decide “which of the two prongs of
the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at hand.”
Pearson, 

.

    The Supreme Court has “warned against beginning with
the first prong of the qualified-immunity analysis when it
would unnecessarily wade into ‘difficult questions’ of
constitutional interpretation that have no effect on the
outcome of the case.’” Sjurset v. Button, 

(9th Cir. 2015) (quoting Pearson, 555 U.S. at 236–37). But
14              MARTINEZ V. CITY OF CLOVIS

the Supreme Court has also recognized that the two-step
qualified immunity procedure “is intended to further the
development of constitutional precedent.” Horton ex rel.
Horton v. City of Santa Maria, 

 (9th Cir.
2019) (quoting Pearson, 

). Even in difficult
cases, our court tends “to address both prongs of qualified
immunity where the ‘two-step procedure promotes the
development of constitutional precedent’ in an area where
this court’s guidance is . . . needed.’” 

 (quoting Mattos v.
Agarano, 

 (9th Cir. 2011) (en banc)).
Because guidance is necessary to promote the development
of constitutional precedent in this area, we elect to begin
with the first part of the qualified immunity inquiry.

         IV.     VIOLATION OF MARTINEZ’S
                  CONSTITUTIONAL RIGHT

    The Due Process Clause of the Fourteenth Amendment
provides that “[n]o State shall . . . deprive any person of life,
liberty, or property, without due process of law.” U.S. Const.
amend. XIV, § 1. Because Martinez alleges that the
individual officers deprived her of liberty by affirmatively
placing her at greater risk of abuse, Martinez’s claims are
rooted in the substantive component of the Due Process
Clause. See DeShaney v. Winnebago Cty. Dep’t of Soc.
Servs., 

, 194–95 (1989).

    The Due Process Clause is a limitation on state action
and is not a “guarantee of certain minimal levels of safety
and security.” 

. Simply failing to prevent acts of a
private party is insufficient to establish liability. See Patel v.
Kent Sch. Dist., 

 (9th Cir. 2011). “The
general rule is that a state is not liable for its omissions” and
the Due Process Clause does not “impose a duty on the state
to protect individuals from third parties.” 

 (alterations
omitted) (first quoting Munger v. City of Glasgow Police
                  MARTINEZ V. CITY OF CLOVIS                        15

Dep’t, 

 (9th Cir. 2000), then quoting
Morgan v. Gonzales, 

 (9th Cir. 2007)).

    There are two exceptions to this general rule. First, a
special relationship between the plaintiff and the state may
give rise to a constitutional duty to protect. See DeShaney,
489 U.S. at 198–202. 15 Second, the state may be
constitutionally required to protect a plaintiff that it
“affirmatively places . . . in danger by acting with ‘deliberate
indifference’ to a ‘known or obvious danger.’” Patel, 648
F.3d at 971–72 (quoting L.W. v. Grubbs, 

(9th Cir. 1996)); see also Kennedy v. City of Ridgefield, 

 (9th Cir. 2006) (holding that the officer
“affirmatively created a danger to [the plaintiff] she
otherwise would not have faced” by informing her assailant
of the accusations her family had made against him before
they “had the opportunity to protect themselves from his
violent response to the news . . . [thus] creat[ing] ‘an
opportunity for [him] to assault [the plaintiff] that otherwise
would not have existed’” (alterations omitted) (quoting L.W.
v. Grubbs, 

 (9th Cir. 1992))).

    Martinez argues that the state-created danger doctrine
applies because Hershberger, Yambupah, and Sanders
affirmatively exposed her to a greater risk of a known
danger. To succeed on this claim, Martinez must establish
three elements. First, she must show that the officers’
affirmative actions created or exposed her to an actual,
particularized danger that she would not otherwise have
faced. Second, she must show that the injury she suffered

    15
        Martinez passingly references a special relationship between
herself and the police officers, but does not advance the argument and
did not allege it in her complaint. We therefore only address the state-
created danger exception.
16             MARTINEZ V. CITY OF CLOVIS

was foreseeable. Third, she must show that the officers were
deliberately indifferent to the known danger. See Hernandez
v. City of San Jose, 

 (9th Cir. 2018). We
analyze these elements and the officers’ conduct below.

     A. Actual, Particularized Danger

    Martinez must first show that the officers affirmatively
exposed her to “an actual, particularized danger.” 

 (citing
Kennedy, 

). We do “not look solely to the
agency of the individual . . . or what options may or may not
have been available to her.” 

 (alterations omitted) (quoting
Munger, 

). Instead, we consider “whether
the officers left the person in a situation that was more
dangerous than the one in which they found” her. 

(quoting Munger, 

).

    Whether the danger already existed is not dispositive
because, “by its very nature, the doctrine only applies in
situations in which the plaintiff was directly harmed by a
third party—a danger that, in every case, could be said to
have ‘already existed.’” Henry A. v. Willden, 

 (9th Cir. 2012) (emphasis in original). The relevant
question is whether “state action creates or exposes an
individual to a danger which he or she would not have
otherwise faced.” Kennedy, 

 (citations and
footnote call number omitted).

        1. Officer Hershberger

    Martinez argues that Officer Hershberger placed her in
greater danger by failing to inform her of her rights or
options, failing to provide her with the Clovis PD’s handout
for domestic violence victims, and failing to make an arrest.
               MARTINEZ V. CITY OF CLOVIS                  17

    Although these failures may have been a dereliction of
Hershberger’s duties, they were not “an affirmative act [that]
create[d] an actual, particularized danger.” Hernandez, 

 (citing Kennedy, 

). In other
words, Hershberger did not make the situation worse for
Martinez. Hershberger simply left Martinez in the same
position she was in before the police had arrived.

    Martinez also maintains that Hershberger failed to
separate her from Pennington, causing her to recant her
allegations of abuse out of fear of Pennington. But this
alleged failure did not expose Martinez to a danger that she
would not otherwise have faced. See Henry A., 

. Failing to affirmatively separate Martinez from
Pennington left her in the same position she would have been
in had Hershberger not responded to the 911 call. At least
under these circumstances, Hershberger did not violate
Martinez’s right to due process.

    However, the record also reveals that Hershberger told
Pennington about Martinez’s testimony relating to his prior
abuse, and also stated that Martinez was not “the right girl”
for him. A reasonable jury could find that Hershberger’s
disclosure provoked Pennington, and that her disparaging
comments emboldened Pennington to believe that he could
further abuse Martinez, including by retaliating against her
for her testimony, with impunity. The causal link between
Hershberger’s affirmative conduct and the abuse Martinez
suffered that night is supported by Martinez’s testimony that
Pennington asked Martinez what she had told the officer
while he was hitting her.

   That Martinez was already in danger from Pennington
does not obviate a state-created danger when the state actor
enhanced the risks. See Hernandez, 

(explaining that an officer cannot avoid liability merely
18               MARTINEZ V. CITY OF CLOVIS

because the plaintiff had already been in a dangerous
situation before contact with the officer). Because a
reasonable jury could infer that Martinez was placed in
greater danger after Hershberger disclosed Martinez’s
complaint and made comments to Pennington that conveyed
contempt for Martinez, the first requirement of the state-
created danger doctrine is satisfied.

          2. Officer Yambupah

    Officer Yambupah failed to separate Martinez from
Pennington when conducting the interview, did not arrest
Pennington despite Martinez’s complaints of abuse, 16 did
not provide Martinez with information that may have
allowed her to escape further abuse, and did not issue an
emergency protective order. These were not “affirmative
acts[s] [that] create[d] an actual, particularized danger.” 

at 1133 (citing Kennedy, 

). Martinez was
left in the same position she would have been in had
Yambupah not acted at all. See Henry A., 

.
Yambupah’s failure to protect Martinez against private
violence thus did not violate the Due Process Clause. See
DeShaney, 

.

          3. Sergeant Sanders

   Several of Martinez’s allegations against Sergeant
Sanders mirror those against Yambupah. With respect to
Martinez’s claims that Sanders did not separate her from
Pennington, provide her with information, or issue an
emergency protective order, we conclude that Sanders’s

     16
       Yambupah failed to arrest Pennington because she was ordered
not to do so by Sanders. This is discussed below as part of Sanders’s
conduct.
                  MARTINEZ V. CITY OF CLOVIS                        19

conduct, like Yambupah’s, does not support a § 1983 claim.
But, in other respects, Sanders’s conduct materially differed
from Yambupah’s.

    Knowing that Pennington was an officer with the Clovis
PD, Sanders ordered Yambupah not to arrest Pennington.
This decision, on its own, did not leave Martinez in a more
dangerous situation than the one in which he found her, and
thus was not itself unconstitutional. See Hernandez, 

; see also Town of Castle Rock v. Gonzales, 

 (2005) (holding that “the benefit that a third
party may receive from having someone else arrested for a
crime generally does not trigger protections under the Due
Process Clause”).

    But the record contains evidence of more than just
Sanders’s order not to arrest Pennington. In instructing
Yambupah not to arrest Pennington, which he did in
Pennington’s presence, Sanders also expressed that the
Penningtons were “good people.” 17 Sanders spoke positively
about the Penningtons against the backdrop that everyone
involved, including Sanders, knew that Pennington and his
father were police officers. While hearing Sanders speak

    17
       While Martinez did not expressly testify that Sanders was the
officer who had said that the Penningtons were “good people,” the
context supports the inference that Martinez’s testimony pertains to
Sanders. Pennington testified that he did not hear the “good people”
comment. However, Martinez testified that Pennington was within
earshot when Sanders ordered Yambupah not to arrest Pennington. She
also characterized the “good people” comment as Sanders’s final
comment before leaving. Viewing the evidence in the light most
favorable to Martinez, a jury could infer that Pennington heard both
Sanders’s order not to arrest and heard Sanders say that the Penningtons
were “good people.”
20               MARTINEZ V. CITY OF CLOVIS

positively about the Penningtons, Martinez also “heard
Sanders telling [Yambupah] that, you know, ‘We’re not
going to arrest him. We’re just going to turn it over to Clovis
PD,’ whatever.” (emphasis added).

     Viewing the record in the light most favorable to
Martinez, a jury could reasonably find that Sanders’s
positive remarks about the Penningtons placed Martinez in
greater danger. The positive remarks were communicated
against the backdrop that Sanders knew that Pennington was
an officer and that there was probable cause to arrest 18—
which the jury could infer Pennington, as a police officer,
understood. A reasonable jury could find that Pennington
felt emboldened to continue his abuse with impunity. In fact,
the following day, Pennington abused Martinez yet again.
Under these circumstances, the first requirement of the state-
created danger doctrine is satisfied.

     B. Foreseeability

    To invoke the state-created danger doctrine, Martinez
must next show that her “ultimate injury” was “foreseeable.”
Hernandez, 

 (citing Lawrence v. United
States, 

 (9th Cir. 2003)). This does not
mean that the exact injury must be foreseeable. Rather, “the
state actor is liable for creating the foreseeable danger of
injury given the particular circumstances.” Kennedy, 

 n.5.

    As a matter of common sense, the assaults Martinez
suffered after the police interventions on May 2, 2013, and
June 4, 2013, were objectively foreseeable. See Hernandez,

   18
      Again, that there was probable cause to arrest and no arrest was
made is not the basis for the constitutional violation.
               MARTINEZ V. CITY OF CLOVIS                  21

 (citing Lawrence, 

);
Grubbs, 

 (concluding a § 1983 claim was
viable when state employees “knowingly assigned [the
plaintiff] to work with [an inmate] despite their knowledge”
of his history of violence toward women, the likelihood that
she would be left alone with him, and the fact that she would
not be prepared to defend against or avert an attack); Wood
v. Ostrander, 

 (9th Cir. 1989) (stating “the
inherent danger facing a woman left alone at night in an
unsafe area is a matter of common sense”) (citation omitted).

   C. Deliberate Indifference to a Known Danger

     Under the state-created danger test, Martinez must
finally show that the officers acted “with ‘deliberate
indifference’ to a ‘known or obvious danger.’” Hernandez,

 (quoting Patel, 

). This is “a
stringent standard of fault, requiring proof that a municipal
actor disregarded a known or obvious consequence of his
action.” Patel, 

 (quoting Bryan Cty. v. Brown,

 (1997)). The standard is higher than gross
negligence, because it requires a “culpable mental state.” 

(citing Grubbs, 92 F.3d at 898–900).

    “The state actor must ‘recognize an unreasonable risk
and actually intend to expose the plaintiff to such risks
without regard to the consequences to the plaintiff.’” 

(alterations omitted) (quoting Grubbs, 

). In
other words, the state actor must have known that something
was going to happen, but “ignored the risk and exposed the
[plaintiff] to it anyway.” Hernandez, 

(alterations omitted) (quoting Patel, 

).

    Given the foreseeability of future domestic abuse here, a
reasonable jury could find that disclosing a report of abuse
while engaging in disparaging small talk with Pennington,
22               MARTINEZ V. CITY OF CLOVIS

and/or positively remarking on his family while ordering
other officers not to make an arrest despite the presence of
probable cause, constitutes deliberate indifference to a
known or obvious danger. See Hernandez, 

.
That Pennington was already under investigation by the
Clovis PD for allegations of abuse against an ex-girlfriend
also suggests that future abuse was a known or obvious
danger. By ignoring the risk created by Pennington’s violent
tendencies, the officers acted with deliberate indifference
toward the risk of future abuse.

    We hold that a reasonable jury could find that
Hershberger and Sanders violated Martinez’s due process
right to liberty by affirmatively increasing the known and
obvious danger Martinez faced.

            V.     CLEARLY ESTABLISHED
                   CONSTITUTIONAL RIGHT

    We next turn to the question whether, at the time of the
challenged conduct, the law was sufficiently well defined
that every reasonable officer in the officers’ shoes would
have known that their conduct violated Martinez’s right to
due process. We conclude it was not. Qualified immunity
therefore applies.

    “Qualified immunity balances two important interests––
the need to hold public officials accountable when they
exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson, 

.
“The doctrine of qualified immunity shields officials from
civil liability so long as their conduct ‘does not violate
clearly established . . . constitutional rights of which a
reasonable person would have known.’” Mullenix v. Luna,

 (2015) (quoting Pearson, 555 U.S. at
               MARTINEZ V. CITY OF CLOVIS                   23

231). The plaintiff bears the burden of proving that “the right
allegedly violated was clearly established at the time of the
alleged misconduct.” Romero v. Kitsap Cty., 

,
627 (9th Cir. 1991) (citing Baker v. Racansky, 

 (9th Cir. 1989)).

    “‘[C]learly established law’ should not be defined ‘at a
high level of generality.’” White v. Pauly, 

 (2017) (quoting Ashcroft v. al-Kidd, 

, 742
(2011)). Rather, it “must be ‘particularized’ to the facts of
the case.” Id. (quoting Anderson v. Creighton, 

 (1987)). “[A] defendant cannot be said to have violated
a clearly established right unless the right’s contours were
sufficiently definite that any reasonable official in the
defendant’s shoes would have understood that he was
violating it.” Plumhoff v. Rickard, 

, 778–79
(2014) (citing al-Kidd, 563 U.S. at 741).

      There need not be a case directly on point for a right to
be clearly established. See Kisela v. Hughes, 

 (2018) (per curiam) (citing White, 

);
Shafer v. Cty. of Santa Barbara, 

 (9th
Cir. 2017) (“[W]e do not require a case to be ‘on all fours’
. . . .” (quoting Deorle v. Rutherford, 

(9th Cir. 2001))), cert. denied sub nom. Shafer v. Padilla,

 (2018). But existing precedent “must have
placed the statutory or constitutional question beyond
debate.” Shafer, 

 (quoting White, 

). In other words, “immunity protects all but the
plainly incompetent or those who knowingly violate the
law.” 

 (quoting White, 

). To deny
immunity, we must conclude that every reasonable official
would have understood, beyond debate, that the conduct was
a violation of a constitutional right. 

 at 1118 (citing
Mattos, 

).
24             MARTINEZ V. CITY OF CLOVIS

     We begin by looking to binding precedent from the
Supreme Court or our court. See Tarabochia v. Adkins, 

 (9th Cir. 2014) (citing Boyd v. Benton Cty.,

, 781 (9th Cir. 2004)). Without binding
precedent, “we look to whatever decisional law is available
. . . including decisions of state courts, other circuits, and
district courts.” Id. (alterations in original) (quoting Boyd,
374 F. 3d at 781). The precedent must be “‘controlling’—
from the Ninth Circuit or the Supreme Court—or otherwise
be embraced by a ‘consensus’ of courts outside the relevant
jurisdiction.” Sharp v. Cty. of Orange, 

(9th Cir. 2017) (quoting Wilson v. Layne, 

(1999)).

    Martinez and the district court identified a Second
Circuit decision, Okin v. Village of Cornwall-on-Hudson
Police Department, 

 (2d Cir. 2009), as being
factually similar to this case. There, Michele Okin and Roy
Charles Sears lived together. See 

 at 419–20. Sears began
physically abusing Okin in 2001. See 

.

    Over the 15-month period of domestic violence, one
incident was most similar to the situation here. On December
23, 2001, Sears relayed to Okin that he had told the village
police chief that he could not “help it sometimes when he
smack[ed] Michelle Okin around.” 

 Okin attempted to call
the police, and Sears started to choke her. See 

 She
eventually called 911. See 

    When the police officers arrived, she told them what had
happened and showed them what appeared to be old bruises
on her legs. See 

 She also said that Sears had thrown a
bottle at her that day. See 

. She asked them to “tell
[Sears] to stop beating [her].” 

. One of the officers
testified that he did not arrest Sears despite Okin’s
statements or his observations because there was no recent
               MARTINEZ V. CITY OF CLOVIS                   25

injury. See 

 at 420–21. Okin eventually indicated she
wanted to press charges. See 

. The officers began
to advise her of how to do so when she walked away, joined
Sears, and returned stating that she did not want to press
charges. See 

. Okin testified that the reason she had
walked away was that the officers were “derogatory” toward
her. 

 She also said that, “to the extent that the officers
talked with Sears, it was about football.” 

 A little over a
week later, she called the police again to report that Sears
was beating her. See 

    Okin filed a § 1983 action, alleging that because Sears
witnessed the officers’ dismissive attitude toward the abuse,
the “danger she faced” had “affirmatively increased.” Id. at
426. For example, by discussing sports with her abuser, the
officers “gave official sanction” to the abuse and
“affirmatively contributed to her vulnerability.” Id. at 427.

    The Second Circuit concluded that a “reasonable
factfinder undoubtedly could conclude that defendants, by
their affirmative conduct, enhanced the danger to Okin
because they conveyed to Sears that he could continue to
engage in domestic violence with impunity, and that
defendants thus violated Okin’s due process rights.” Id. at
430–31.

    Without binding precedent from our court or the
Supreme Court, we may look to decisions from the other
circuits. See Tarabochia, 

 (citing Boyd, 374
F.3d at 781). But we cannot rely on Okin, because it has not
been “embraced by a ‘consensus’ of courts.” Sharp, 

 (quoting Wilson, 

). Notably, the
Seventh Circuit has stated that Okin may be “in tension with”
DeShaney and the Supreme Court’s decision in Town of
Castle Rock v. Gonzales, 

 (2005). Wilson-
Trattner v. Campbell, 

 (7th Cir. 2017). In
26                MARTINEZ V. CITY OF CLOVIS

light of this muddled legal terrain, we cannot hold that
“every reasonable official would have understood . . .
beyond debate,” that the officers’ conduct here violated
Martinez’s right to due process. Shafer, 

(alteration in original) (quoting Mattos, 

).

    Hershberger and Sanders are entitled to qualified
immunity because the due process right conferred in the
context before us was not clearly established. Although the
application of the state-created danger doctrine to this
context was not apparent to every reasonable officer at the
time the conduct occurred, we now establish the contours of
the due process protections afforded victims of domestic
violence in situations like this one. See Thompson v. Rahr,

 (9th Cir. 2018). Significantly, “it is the
facts” of this case “that clearly establish what the law is”
going forward. Isayeva v. Sacramento Sheriff’s Dep’t, 

 (9th Cir. 2017) (citation omitted).

    We hold today that the state-created danger doctrine
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, we
hold that 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. 19 Going forward, the law

     19
       Although the failure to arrest does not itself give rise to a state-
created danger, it may, as here, inform the “manner” in which an
officer’s positive remarks “communicates to the abuser that the abuser
may continue abusing the victim with impunity.”
                MARTINEZ V. CITY OF CLOVIS                   27

in this circuit will be clearly established that such conduct is
unconstitutional.

                   VI.    CONCLUSION

   For the foregoing reasons, we AFFIRM the district
court’s summary judgment in favor of Hershberger,
Yambupah, and Sanders.