The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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  and  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.).