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Injured Trump Supporters' Lawsuit Against San Jose Can Proceed, Says Ninth Circuit

"The Attendees allege the Officers shepherded them into a violent crowd of protesters and actively prevented them from reaching safety. The Officers continued to implement this plan even while witnessing the violence firsthand, and even though they knew the mob had attacked Trump supporters at the Convention Center earlier that evening."

From Friday's Hernandez v. City of San Jose:

On June 2, 2016, Trump held a political rally ... at the McEnery Convention Center ... in San Jose, California. The San Jose 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 [plaintiffs'] First Amended Complaint ..., 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 ... "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.

The court held that, if the plaintiffs could prove that the facts were as they alleged, the offficers' actions may have violated their constitutional rights, and the violation would have been so clear that the officers shouldn't get qualified immunity. The court stressed that the allegations were that the police increased the risk to the plaintiffs, by requiring them to walk in a dangerous direction and barring them from using safer exit routes. When police merely fail to protect people, even unreasonably, that is not itself a constitutional violation (or, generally speaking, even a tort under state law); but when they affirmatively increase the danger, that may be tortious and unconstitutional:

Taking the allegations in the [Complaint] as true, the Attendees have adequately claimed a due process violation pursuant to the state-created danger doctrine. They have asserted sufficiently that the Officers (1) "affirmatively place[d] [them] in danger," and (2) "act[ed] with deliberate indifference to [a] known or obvious danger in subjecting [them] to [that danger]." ...

Based on the allegations in the FAC, which we take as true at this stage of the proceedings, we also find that this is "one of those rare cases" in which the constitutional violation "is so 'obvious' that we must conclude ... qualified immunity is inapplicable, even without a case directly on point." Here, the Attendees allege the Officers shepherded them into a violent crowd of protesters and actively prevented them from reaching safety. The Officers continued to implement this plan even while witnessing the violence firsthand, and even though they knew the mob had attacked Trump supporters at the Convention Center earlier that evening, and that similar, violent encounters had occurred in other cities. Viewed in the light most favorable to the Attendees, these allegations establish "with obvious clarity" that the Officers increased the danger to the Attendees and acted with deliberate indifference to that danger, pursuant to the state-created danger doctrine.

For those who monitor such matters, the decision was written by Judge D.W. Nelson, and joined by Judges Fletcher and Kleinfeld; the first two are generally seen as quite liberal (they were appointed by Carter and Clinton) and the third as a conservative (he was appointed by Bush Sr.).

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  • PublicNameNotInUse||

    Can't make an omelette without killing a few people who disagree with you, right California?

  • Brett Bellmore||

    Looks to me like an equal protection violation, as well; They were prosecuting assaults, just not assaults against the Trump supporters.

  • great Unknown||

    Equal protection? Haven't heard that term in a while. How about prosecutorial discretion?

  • FlameCCT||

    Police do not have prosecutorial discretion. The prosecutor can only charge the cases brought to him/her by the police. The police only arrested those that attacked police officers while refusing to arrest anyone assaulting anyone else.

  • tkamenick||

    I was just listening to the Make No Law free speech podcast and they were talking about the case that established (or solidified) the fighting words exception. The factual situation was a Jehovah's Witness preaching on the sidewalk and getting repeatedly assaulted by crowd members, complaining to police who refused to protect him, and then calling the police "damn fascists", at which point they arrested him.

  • NashTiger||

    Just so glad these brave patriots were able to push back against the violent Nazi Trump supporters

  • M.L.||

    The widespread, intentional and well orchestrated campaign of violence against Trump supporters exercising their constitutional rights is a major story that has been twisted and covered up by the media.

  • KevinP||

    The dark cloud of fascism is always descending upon Republicans but it always turns out to be composed of progressives and Democrats.

    Video Sting Exposes Democrats' Effort to Incite Violence at Trump Rallies


    Quotes:
    O'Keefe's extensive video investigation reveals that the Hillary Clinton campaign and the Democratic National Committee (DNC) are involved in bird-dogging and other provocative tactics through a web of consultants led by Robert Creamer, a veteran Chicago activist and convicted felon...

    Creamer affirms on one video that Clinton is aware of "all" of his work, and that Democracy Partners has a daily telephone call with the Clinton campaign to coordinate efforts.

    O'Keefe and his team also obtained hidden camera videos showing one of Creamer's consultants, Scott Foval, describing "bird-dogging," among other tactics, and taking credit for having instigated violence at several Republican events during the 2016 election cycle.


  • KevinP||

    (Contd.)

    Foval - who praises Creamer as "diabolical" - explains how "bird-dogging" works: how they plan confrontations in advance, choose particular individuals to provoke, and maximize media coverage.
    ...
    In another video, Foval admits that his organization is responsible for an incident in Asheville, North Carolina in September, where an elderly woman was allegedly assaulted outside a Trump rally.

    In that incident, the 69-year-old woman, wearing an oxygen tank, heckled a visually impaired 73-year-old Trump supporter, then pursued him. She claimed he then punched her in the jaw, though she had no visible injury; his attorney claims she touched him on the shoulder first, and then fell to the ground as he turned around. The national media covered her claims widely, while largely ignoring his. Foval explains that the woman had been "trained" as a part of his operation.

  • Rev. Arthur L. Kirkland||

    Whimpering, persecution-claiming, journalist-bashing conservatives are among my favorite half-educated, disaffected goobers.

  • KevinP||

    LOL, persecution-claiming...

    Portland Food Cart Shuts Down Following Harassment by Occupy ICE Protesters


    Quote:
    A Portland food cart is closing down following harassment and alleged threats of violence from protestors who objected to the business serving federal immigration agents.
    ...
    Video taken by a female Happy Camper employee shows a demonstrator using a megaphone to call the staffer a "bitch" and accuse her of laughing at the victims of U.S. immigration laws.

    According to Scott Hakes, the last straw came when protestors threatened his 21-year-old daughter for serving food to a DHS employee. "If they catch her outside the cart, they're going to hurt her. They're constantly cussing at her and screaming at her," he told KGW. According to the owners, protestors also threatened to burn down the cart.
  • Smooth Like a Rhapsody||

    James Hodgkinson (...who's he?) could not be reached for comment.

  • Kristian H.||

    Well, he is dead.

  • Eddy||

    "When police merely fail to protect people, even unreasonably, that is not itself a constitutional violation (or, generally speaking, even a tort under state law); but when they affirmatively increase the danger, that may be tortious and unconstitutional..."

    Yeah, if you get bitten by a poisonous snake and the Poison Control people fail to rescue you, I guess you'd have no grounds for complaint, but if the Poison Control people actually grab you and drop you into a pit of vipers, there may be a different case...

  • Brett Bellmore||

    No, seriously, the police failing to protect people, unreasonably, is exactly what the 14th amendment meant to prohibit by guaranteeing "equal protection of the law".

  • Eddy||

    I'm with you, but the courts make it tough to sue for simply failing to protect. Perhaps if political discrimination can be proven...

    The pit-of-vipers situation sounds like a more sure winner, assuming of course the allegations of the plaintiffs are true (I won't step on the jury's toes here).

  • Eddy||

    The concern is to avoid using the 14th Amendment as a remedy against private action.

    I agree that the 14th Amendment is concerned with state action...or state *inaction.* The latter is what often happens with denial of equal protection.

    It's the state's decisions which are under review, though.

  • Brett Bellmore||

    And, of course the allegation here is that it was the police who were at fault, and they are certainly state actors.

  • Chem_Geek||

    Exactly the same thing as Charlottesville, except that they don't have a quote from the San Jose police chief saying that he wants them to fight so that it can be called an unlawful assembly.

  • mad_kalak||

    That was a set up from the beginning, and anybody who went should have known they were walking right into a trap. Cue Emperor Palpatine and Admiral Ackabar.

  • AmosArch||

    Someone correct me if I'm wrong preferably with more than anecdotal evidence. But it seems that everytime I hear of a clash between media described 'nazis' or the 'far right' or Trump Supporters and counter protesters, its the counter protesters who usually initiate and inflict most of the violence if you dig deeply enough beyond misleading headlines. A common tactic among 'mainstream' sources being to word headlines to make it appear both sides are brawling equally.

  • great Unknown||

    "It was the Jews' fault."

  • TwelveInchPianist||

    Jeez, dude. I mean, sure, the media has its biases, but there's no reason to drag religion into this.

  • M.L.||

    You're not wrong.

    Step 1. Hillary Clinton and the DNC fund a bunch of thugs to travel around initiating violence against Trump supporters. (They pay legal and medical bills if necessary -- wow -- remember when Trump suggested that his supporters should defend themselves, and offered to pay legal bills resulting from their self defense? Odd how he was crucified for that but hardly a peep about this actual Democrat operation).

    Step 2. New York Times creates a dishonest video montage of all the violence, perhaps one of the biggest media items of the election, dishonestly blaming the violence on Trump supporters who showed up to peaceably assemble. Just one example of course, the media across the board was uniform in its political strategies, which we know are intentionally plotted collaboratively.

    Step 3. ???

    Step 4. President Trump.

  • KevinP||

    Correct. The dark cloud of fascism is always descending upon Republicans but it always turns out to be composed of progressives and Democrats.

    YouTube undercover video: Clinton Campaign and DNC Incite Violence at Trump Rallies

  • jdgalt1||

    I hope that the plaintiffs prevail, and that similar cases can and will be filed against the police for events such as the Charlottesville and Berkeley riots (in which police not only deliberately herded people into opponents who then attacked them, but the police deliberately frisked and disarmed them first).

  • Chem_Geek||

    The rightists, you mean - the police didn't disarm the leftist attackers.

  • ||

    Of course that's what happened. That's why I'm so eager for society to collapse and us to descend into a civil war. It'll give patriots a chance to round up and exterminate the leftist agitators.

  • mad_kalak||

    It is not a given that constitutional conservationism would win, and even if it did, when it came out the other end of a Spanish style civil war, there is no certainty that it would look like what it was when it went in. 90% of what you want could be solved by recreating the HUAC in some form.

  • ||

    Right, but the problem is, the left has control of the judiciary, the media, the academy, and everything else. The HUAC could investigate, and we could possibly sentence people to death for treason, but the leftist courts will issue injunctions. We need a societal collapse and a cleansing that will operate outside of the law.

  • Rev. Arthur L. Kirkland||

    Disaffected, apocalyptic, seething right-wingers who recognize they can't win the battle of ideas and have lost the culture war are among my favorite conservatives.

  • mad_kalak||

    The left does not have a lock on the judiciary, that is still in play. The media....depends on how you define it. By Hollywood, yes, but expand the definition to talk radio, blogs, podcasts, etc....not so much, meanwhile old media like print is in desperate financial trouble. Mainstream media does not define public opinion anymore. The Academy...well, they do control academia. The question though, is what good has it done them other then giving them a tax payer funded nexus to launch ideological warfare, because they really don't influence public opinion all that much. If they did, every poor kid who wants to get a degree to get a middle class job would come out a raging snowflake feminist, and they don't.

    Look, I bet you're a prepper, but what you think will happen won't happen. The people you think that you're going to be rounding up won't go quietly, and societies don't collapse, they rot from the outside in, and still stay semi-functional almost to the end.

  • ||

    Not much of a prepper beyond my firearms and ammo. The people we'd be rounding up are utterly incompetent, and would beg for mercy within a few days. Societies do collapse. They collapse when we run out of money to pay for the 50% of America who now is reliant on government largess.

  • mad_kalak||

    There is a blog I suggest you read, called Surviving in Argentina. Start with the early posts and work forward, or alternately, buy his book. Your prepping with guns and ammo is almost pointless.

  • ||

    Why do you say that? Eventually, liberals WILL riot and try to take what we have. If I can take 10 of them out (even if I do in process), it's still a net positive.

  • Smooth Like a Rhapsody||

    I suppose that would depend on which 10 you took out, wouldn't it?

  • ||

    Ten rioting looting liberals.

  • mad_kalak||

    Liberals riot all the time, and it is localized, and usually nothing happens after a few days of everybody getting it out of their system. Here are a few:

    Watts - 1965
    Detroit - 1967
    Chicago - 1968
    LA - 1992
    Seattle - 1999
    Cincinnati - 2001
    Ferguson - 2014

    If they can, nice people move out of the area. The area sometimes recovers, depending on the source of the riots.

  • mad_kalak||

    Liberals riot all the time, and it is localized, and usually nothing happens after a few days of everybody getting it out of their system. Here are a few:

    Watts - 1965
    Detroit - 1967
    Chicago - 1968
    LA - 1992
    Seattle - 1999
    Cincinnati - 2001
    Ferguson - 2014

    If they can, nice people move out of the area. The area sometimes recovers, depending on the source of the riots.

  • Variant||

    Overturned en banc because #resist.

  • Eugene Volokh||

    Interesting speculation -- care to make a bet on this? Given that the panel consisted of two liberal judges and a conservative, do you have a specific reason for thinking that the other liberals will disagree? If you do want to bet, I kind of like my odds.

  • Chem_Geek||

    The reason that the liberals on the en banc panel will disagree & overturn is TrumpLaw.

  • Smooth Like a Rhapsody||

    Will the ghost of Reinhardt be sitting by designation on the panel?

  • Careless||

    So is there video of this, or are these
    Plaintiffs going to win the QI battle but lose the war?

  • Brett Bellmore||

    There's not going to be any challenge proving the violence, even the foreign media noticed. (Though perhaps I shouldn't say "even"; this is the sort of thing foreign media seems to cover better than our domestic media.)

    Proving that the police herded them into the protesters will be the challenging bit, but maybe not so challenging given the widespread use of cell phone cameras.

  • KevinP||

    A good win for Harmeet K. Dhillon!

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