Ninth Circuit provides a new look at “state-created danger” doctrine

Shocking as it may sound, police officers can stand by while a person is beaten up or even killed by their mother, their best friend's mother or mother nature. Unless the unlucky victim happens to be in police custody at the time of the beating, nobody can sue the city, the state or the idle officers for mere passivity. The fact that they might have been able to prevent a bad outcome by taking affirmative steps to stop or mitigate the danger doesn't change the equation. Failure to act is not, by itself, actionable.

But when that officer, social worker, medical attendant or other government-sanctioned actor does anything - other than sit around - that contributes to injury or death, the legal equation is entirely different. Say, for example, officers block the exits to a residential building that has caught fire and its occupants burn to death. Or police waiting outside a school building while an active shooter roams the hallways - think Uvalde - actively prevent parents and other concerned individuals from entering the building to try to disarm the shooter. Or police officers handcuff family members who could render first aid, while their father lies dying in a public place. In each of these instances, the officers' affirmative actions may very well have contributed to or actually caused loss of life.

Such "but-for" scenarios are the reasons behind the "state-created danger" doctrine. This doctrine is an exception to the general rule that a state has no duty to protect one private citizen from another. In the 1989 case of DeShaney v Winnebago (489 U.S. 189), the U.S. Supreme Court examined whether a duty is owed by governmental entities and their employees to protect persons from injuries caused by private third parties. Despite the inherent tragedy of such cases, the court said that there was no substantive due process right to protection from violence perpetrated by private actors. The Due Process Clause, according to the court, limits state powers, not individual or private action.

Following the DeShaney ruling, federal circuit courts recognized two exceptions to the Due Process Clause limits: First, liability could be imposed on a state actor when an actual custodial relationship existed between a plaintiff and a state actor, also known as a "special relationship." Second, liability could arise based on the state-created danger theory. Liability would be established under 42 U.S.C. Section 1983 when the injured party could prove (1) deprivation of a right secured by the United States Constitution; (2) deprivation by a party acting "under color" of state law; and (3) state action.

The federal circuits have since come up with a variety of interpretations of the state-created danger doctrine, but the Ninth Circuit has recently weighed in with its own reading of the doctrine. This latest interpretation, spelled out in Murguia v Langdon (No. 21-16709 D.C. No. 1:19-cv-00942- DAD-BAM), decided March 14, 2023, was prompted by a heart-rending case out of the Central Valley.

In December 2018, Jose Murguia telephoned 911 to report that his ex-wife, Heather Langdon, was experiencing mental health problems and needed emergency attention. The couple had five children together, and Langdon had a well-known history of mental illness and violence against her children. Murguia reported that she had been acting erratically and that he feared for the safety of the children.

But instead of separating Langdon from her children and taking her for psychiatric evaluation and treatment, County of Tulare Sheriffs' Deputies Lewis and Cerda separated Murguia from Langdon and the couple's ten-month-old twins. They then allowed Langdon and her neighbor to take the infants to a local church and actively prevented Murguia from following them. City of Visalia police then drove Langdon and the infants from the church to a shelter.

Tulare Police Department Sergeant Garcia next consulted with emergency response social worker Roxanna Torres from Tulare County's Child Welfare Services (CWS) to see if there was any reason to separate Langdon from her children or to seek treatment for her. Langdon had a well-documented CWS history of domestic violence, supervised child visitation, and restraining and stay away orders; however, Torres misinformed Garcia that there was no history of Langdon in the CWS system and no record of child abuse.

Apparently relying on this information, Garcia failed to do his own independent investigation. Had he done so, he would have uncovered Langdon's arrests and guilty pleas for willful cruelty to a child and inflicting injury on a child, as well as a court award of sole legal and physical custody of the couple's other three children to Murguia with no visitation rights for Langdon.

Although he had personally observed Langdon's problematic behavior, Garcia nevertheless arranged a room for her and the twins at a motel, transported them from the shelter to the motel, and left them there, alone and unsupervised. Unsurprisingly, Langdon - who was clearly undergoing a mental health crisis - drowned the infants in the bathtub.

A three-judge panel of the Ninth Circuit overturned the lower court's decision, ruling that the plaintiffs had adequately stated a Section 1983 claim under the state-created danger exception. The court majority found that the state actors knew or should have known that they were placing the infants in danger by leaving them with their mentally ill mother and that they acted with deliberate indifference to the risk.

"Before arriving at Jose's home, Lewis and Cerda knew or should have known that Langdon had a history of mental illness, attempting suicide, and violence towards children, that ... Langdon had behaved bizarrely the prior evening and that she had an open CWS case."

"Given the extreme vulnerability of the ten-month-old twins, the complaint adequately alleges Garcia was aware that Langdon posed an obvious risk of physical harm to the twins based on her worrisome behavior."

The court held that the plaintiffs had adequately alleged a state-created danger claim against the social worker, as well. Although she did not have physical custody of Langdon, by providing false information she rendered the infants more vulnerable to physical injury by eliminating any chance for them to be returned to their father's custody. "This court and other circuits have applied the state-created danger exception in situations where an officer abandoned the plaintiff in a dangerous situation, separated the plaintiff from a third-party who may have offered assistance, or prevented other individuals from rendering assistance to the plaintiff."

In a partial dissent, Judge Sandra Ikuta claimed that the majority had improperly expanded the state-created danger doctrine by extending it into the realm of tort law. She identified three ways in which, to her mind, the decision broadened the doctrine's scope: First, she said, there could be no due process violation without an abuse of state authority; second, officials should not be held liable for failing to take affirmative actions to protect children from a dangerous parent; and third, due process violations could not be based on allegations of mere negligence and mistake.

"Contrary to Supreme Court precedent (and our own)," Ikuta wrote, "the majority finds a substantive due process violation despite the absence of any abuse of power entrusted to the state. Instead, the majority holds that plaintiffs can state a claim for a violation of their due process rights based solely on negligence and mistake, exactly what the Supreme Court has told us not to do." She concluded her dissent by stating, "the majority erroneously erodes '[t]he guarantee of due process' into a 'guarantee [of] due care,'" (citing Davidson v. Cannon, 474 U.S. 344, 348 (1986)).

On July 18, 2023, the Ninth Circuit issued an order denying en banc review of the Murguia ruling. In protest, Judge Patrick Bumatay argued that the court had strayed from precedent by extending the state-created danger doctrine to harmless activities. "Now, commonplace actions--like providing a ride, booking a motel room, or telling a lie - when done by a State actor, could become due process violations if the actions eventually lead to injuries caused by third parties. While Jose Murguia has suffered profound tragedy and deserves redress, the Constitution doesn't provide the remedy."

"It's long past due that we revisit the state-created danger doctrine," Bumatay wrote. "This case presented us with a prime opportunity to reconcile our state-created danger jurisprudence with Supreme Court precedent and our Constitution. Regrettably, our court has passed it up."

Judges Ikuta and Bumatay doth protest too much. The Ninth Circuit majority did not expand the state-created danger doctrine; it simply clarified the doctrine by restating the basis upon which a civil rights claim may be asserted against a state actor. Deliberate indifference to a known risk of substantial harm is what is needed for a due process violation where, as here, those infants were in the care and custody of the social worker or the police department.

In Cabrales v. Cty. of Los Angeles, 864 F.2d 1454, 1461 (9th Cir. 1988), reinstated 886 F.2d 235 (1989) (citing Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982)), the court determined that acts of omission, not just affirmative acts, can also impart liability under section 1983 because the very essence of deliberate indifference connotes inaction on the part of government officials in the face of a known risk of harm. The court's careful review of the facts of this most recent case, as well as the civil rights claims put forth by the plaintiffs, underscore the importance of reviewing the totality of the circumstances in any action that seeks to assign liability under Section 1983.

In the instant case, "providing a ride, booking a motel room, or telling a lie" resulted in ten-month old children being left in the care of a mother who had a well-documented history of child abuse and was in the midst of a mental health breakdown. These are facts that cry out for justice, and if the state actors - police and social workers - had done their due diligence, used common sense, and made the infants' safety their priority, those twins would still be alive.