In the case of Martinez v. City of Clovis,[1] the Ninth Circuit Court of Appeals determined that two police officers violated a domestic abuse victim’s due process rights under the state-created danger doctrine due to their conduct, yet were entitled to qualified immunity because the law did not clearly established the violation at the time.  The Court declared however, that “[g]oing forward, the law in this circuit will be clearly established that such conduct is unconstitutional.”


Desiree Martinez and Kyle Pennington (a City of Clovis Police Department officer) 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 in Dublin, California.  On May 2, 2013, Pennington became physically abusive and, after hiding, Martinez called 911.  Clovis Police Officers Kristina Hershberger and Jesus Santillan responded.  Pennington warned Martinez not to say anything to the officers.  Martinez told Hershberger 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, but Martinez maintained that Pennington was still within eye and earshot.

Hershberger testified that Martinez had told her about Pennington’s physical abuse in Dublin.  Martinez testified eventually that she also told the officer that Pennington had pushed her down the stairs that evening.  Hershberger tried to get more information but Martinez asked to go inside and said she was fine.  Martinez claimed that Hershberger asked her to “hold on just a second” and moved away.  Martinez was intimidated by the way Pennington stared at her so she moved to him to ease his concern about her talking to Hershberger.

While Martinez was standing in front of Pennington, Hershberger returned 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 said meant he was angry, so she feigned ignorance replying to Hershberger.

Hershberger had received domestic violence training and was aware that domestic violence victims “might tend to recant accusations of violence” out of fear of reprisal.  She believed that Martinez faced potential risk if she stayed with Pennington that night.  However, Hershberger 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.  Instead, she recommended that Martinez be interviewed again.

Hershberger and Pennington had both worked with the Clovis Police Department (“Clovis PD”) for about nine years.  Pennington testified that after Martinez went back inside the house, Hershberger spoke with him, asking him “what [he] was doing dating a girl like Desiree Martinez …because [Hershberger] didn’t think that [Martinez] was necessarily a good fit for me.”  That night, Pennington physically abused Martinez, called her a “leaky faucet” and asked her what she had told Hershberger and whether she was trying to get him in trouble.

On the night of June 3, 2013, Pennington physically and sexually abused Martinez.  Martinez stated that he choked, beat, suffocated, and sexually assaulted her.  A neighbor called 911.  Sanger Police Department Officer Angela Yambupah, Sergeant Fred Sanders, and two other officers responded and found Pennington and Martinez 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.  Martinez testified that when Yambupah spoke with her, Pennington and Martinez were not separated by more than seven feet, within earshot.  She whispered to Yambupah that Pennington injured her, 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, that his arrest was mandatory under state law, and that Pennington had access to weapons as a police officer.  Yambupah also learned from Martinez that Pennington was on administrative leave from the Clovis PD because of a domestic violence incident with an ex-girlfriend.

Yambupah informed Martinez that she was going to make an arrest, but when Yambupah informed the other officers of Martinez’s allegations and that Pennington was with the Clovis PD, Sanders, the acting 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.”

The 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 foresaw a risk of continued violence, which 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 and Sanders had known each other for at least 25 years.  On leaving, Sanders said that the Pennington’s 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.  Pennington physically and sexually abused Martinez 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.

Martinez sued Pennington, the cities of Clovis and Sanger, Officers Hershberger, Yambupah, and Sergeant Sanders, among others.  Martinez asserted claims under 42 U.S.C. section 1983 of individual liability against Hershberger, Yambupah, and Sanders.  The cities and officer defendants moved for summary judgment.  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 appealed.


The Ninth Circuit first explained that 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, 888 F.3d 1030, 1037 (9th Cir. 2018) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (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, 610 F.3d 546, 550 (9th Cir. 2010) (citing Pearson, 555 U.S. at 223).  The Court commented that qualified immunity applies either where there was no constitutional violation or where the constitutional violation was not clearly established.  See id.

The Court noted that the high court has 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, 915 F.3d 592, 602 (9th Cir. 2019) (quoting Pearson, 555 U.S. at 237).  The Court recalled that the Ninth Circuit tended “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.’”  Id.  (quoting Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (en banc)).  For the current case, the Court found that guidance was necessary to promote the development of constitutional precedent for the issues raised by the context here and chose to begin with the first prong of the qualified immunity inquiry.

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, section 1. Martinez alleged that the individual officers deprived her of liberty by affirmatively placing her at greater risk of abuse, and, the Court explained, were thus rooted in the substantive component of the Due Process Clause.

The Court explained that the Due Process Clause is not a “guarantee of certain minimal levels of safety and security.”  DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989).  “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.”  Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011) (alterations omitted) (first quoting Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000), then quoting Morgan v. Gonzales, 495 F.3d 1084, 1093 (9th Cir. 2007)).

The Court noted that one exception to this general rule is the state-created danger doctrine.  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, 92 F.3d 894, 900 (9th Cir. 1996)); see also Kennedy v. City of Ridgefield, 439 F.3d 1055, 1063 (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, 974 F.2d 119, 121 (9th Cir. 1992))).

Martinez argued that the state-created danger doctrine applied because Hershberger, Yambupah, and Sanders affirmatively exposed her to a greater risk of a known danger.  The Court clarified the doctrine’s requirements, explaining that to succeed on this claim, Martinez needed to demonstrate each of the following: (1) that the officers’ affirmative actions created or exposed her to an actual, particularized danger that she would not otherwise have faced; (2) that the injury she suffered was foreseeable; and (3) that the officers were deliberately indifferent to the known danger.  See Hernandez v. City of San Jose, 897 F.3d 1125, 1133 (9th Cir. 2018).

Actual, Particularized Danger

To determine whether the officers affirmatively exposed Martinez to an actual, particularized danger, the Court explained that it must consider “whether the officers left the person in a situation that was more dangerous than the one in which they found” her.  Id.  (quoting Munger, 227 F.3d at 1086).  The Court remarked that 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.’“[2]  The relevant question is whether “state action creates or exposes an individual to a danger which he or she would not have otherwise faced.”[3]

The Court considered the actions of Officer Hershberger.  The officer failed to inform Martinez of her rights or options, failed to provide her with the Clovis PD’s handout for domestic violence victims, and failed to make an arrest.  The Court explained that “[a]lthough 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, 897 F.3d at 1133 (citing Kennedy, 439 F.3d at 1063).  The officer did not worsen Martinez’s situation, the Court elaborated, because she simply left Martinez in the same position she was in before the police had arrived.  The Court determined that Officer Hershberger did not therefore violate Martinez’s right to due process.

However, Hershberger told Pennington about Martinez’s testimony relating to his prior abuse, and also stated that Martinez was not “the right girl” for him, and Martinez testified that Pennington asked her what she had told the officer while he was hitting her.  The Court found that 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 Court therefore found the first element of the state-created danger doctrine is satisfied.

The Court determined that Officer Yambupah’s failure to protect Martinez against private violence did not violate the Due Process Clause.  Her actions – failure to separate Martinez from Pennington during her interview; not arresting Pennington despite Martinez’s abuse complaints; not giving Martinez information that might have helped her avoid more abuse; and not issuing an emergency protective order – were not affirmative acts that created an actual, particularized danger.  Thus, the Court found that Martinez was left in the same position she would have been in had Yambupah not acted at all.

Several of Martinez’s allegations against Sergeant Sanders paralleled those against Officer Yambupah, and therefore, did not support a Section 1983 claim.  However, the Ninth Circuit noted that Sanders knew that Pennington was an officer with the Clovis PD as he ordered Yambupah not to arrest Pennington.  While this decision, on its own, did not leave Martinez in a more dangerous situation than the one in which he found her,[4] the Court explained that in instructing Yambupah not to arrest Pennington, which he did in Pennington’s presence, Sanders spoke positively about the Pennington’s while everyone involved understood that Pennington and his father were police officers.  The Court thus found that a reasonable jury could find that Sanders’ positive remarks about the Pennington’s placed Martinez in greater danger and could reasonably find that Pennington felt emboldened to continue his abuse with impunity.  The Court added that the following day, Pennington in fact abused Martinez yet again.  The Court thus found that with regards to Sergeant Sanders, the first requirement of the state-created danger doctrine was satisfied.


The Court stated that to invoke the state-created danger doctrine, Martinez must next show that her “ultimate injury” was “foreseeable.”  Hernandez, 897 F.3d at 1133 (citing Lawrence v. United States, 340 F.3d 952, 957 (9th Cir. 2003)).  However, this did not mean that the exact injury must be foreseeable, but rather, that “the state actor is liable for creating the foreseeable danger of injury given the particular circumstances.”  Kennedy, 439 F.3d at 1064 n.5.  The Court cited several cases to justify its finding that the assaults Martinez suffered after the police interventions on May 2, 2013 and June 4, 2013, were objectively foreseeable “[a]s a matter of common sense.”  See Hernandez, 897 F.3d at 1133 (citing Lawrence, 340 F.3d at 957.

Deliberate Indifference to a Known Danger

The Court explained that the third element of the state-created danger test, a showing that the officers acted “with ‘deliberate indifference’ to a ‘known or obvious danger,’“[5] was “a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.”[6]  The Court observed that “[t]he state actor must have known that something was going to happen, but “ignored the risk and exposed the [plaintiff] to it anyway.”  Hernandez, 897 F.3d at 1135 (alterations omitted) (quoting Patel, 648 F.3d at 974).

The Court found that, given the foreseeability of future domestic abuse here, a reasonable jury could find that disclosing a report of abuse while engaging in disparaging conversation with Pennington, and/or positively commenting on his family while ordering other officers not to make an arrest despite the presence of probable cause, constituted deliberate indifference to a known or obvious danger.  Moreover, that Pennington was already under investigation by the Clovis PD for allegations of abuse against an ex-girlfriend also suggested to the Court that future abuse was a known or obvious danger.  The Court thus found that by ignoring the risk created by Pennington’s violent tendencies, the officers acted with deliberate indifference toward the risk of future abuse.

Concluding its state-created danger analysis, the Ninth Circuit held 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.  The Court next turned to the second prong of the two-step qualified immunity procedure.

Clearly Established Constitutional Right

The Ninth Circuit next addressed whether, at the time of the challenged conduct, the law was “clearly established” such that every reasonable officer in the officers’ shoes would have known that their conduct violated Martinez’s right to due process.  The United States Supreme Court has declared that “‘clearly established law’ should not be defined ‘at a high level of generality.’”  White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).  Rather, it “must be ‘particularized’ to the facts of the case.”  Id.  (quoting Anderson v. Creighton, 483 U.S. 635, 640 (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, 572 U.S. 765, 778-79 (2014) (citing al-Kidd, 563 U.S. at 741).

The Court observed that here the process to determine the matter involved first seeking binding precedent from the Supreme Court or the Ninth Circuit itself.  Absent such precedent, decisions of state courts, other circuits, and district courts could be considered.  Wherever the decision arose, the precedent muse 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, 871 F.3d 901, 911 (9th Cir. 2017) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)).

Martinez identified a Second Circuit decision, Okin v. Village of Cornwall-on-Hudson Police Department, 577 F.3d 415 (2d Cir. 2009), as being factually similar to the case here.[7]  However, the Ninth Circuit stated that it could not rely on Okin because it had not been embraced by a consensus of courts.  The Court pointed to the Seventh Circuit’s statement that Okin may be “in tension with” DeShaney and the Supreme Court’s decision in Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).  Wilson-Trattner v. Campbell, 863 F.3d 589, 595 (7th Cir. 2017).  Therefore, the Ninth Circuit explained that “[i]n 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, 868 F.3d at 1118 (alteration in original) (quoting Mattos, 661 F.3d at 448).

In sum, the Ninth Circuit found that Hershberger and Sanders were entitled to qualified immunity because the due process right conferred in the context before the Court was not yet clearly established at the time of the facts in the case.


While the Court ultimately granted qualified immunity to the involved officers in this case, the Court proclaimed:  “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.  Going forward, the law in this circuit will be clearly established that such conduct is unconstitutional.”  Thus, the Court deemed it had “clearly established” a precedent per its holdings “going forward.”

Agencies should observe that the Ninth Circuit has now issued “clearly established precedent” for domestic abuse cases in parallel circumstances going forward for qualified immunity purposes.  Law enforcement officers should be cautious with comments and actions in the presence of potential domestic abuse victims and perpetrators so as to avoid placing victims at a greater risk of future abuse.

As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] 2019 U.S. App. LEXIS 35989 (9th Cir. Dec. 4, 2019).

[2] Henry A. v. Willden, 678 F.3d 991, 1002 (9th Cir. 2012) (emphasis in original).

[3] Kennedy, 439 F.3d at 1061 (citations and footnote call number omitted).

[4] See Hernandez, 897 F.3d at 1133; see also Town of Castle Rock v. Gonzales, 545 U.S. 748, 768 (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”).

[5] Hernandez, 897 F.3d at 1133 (quoting Patel, 648 F.3d at 974).

[6] Patel, 648 F.3d at 974 (quoting Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997)).

[7] In Okin, the plaintiff Okin called 911 reporting abuse. She showed responding police her bruises and told them she had been, among other things, choked that day. She asked officers to tell the perpetrator to stop beating her. The officers did not arrest the perpetrator, discussing football instead with him. The Second Circuit determined that the officers provided “official sanction” to the abuse and affirmatively increased Okin’s danger, thereby violating Okin’s due process rights.