The Government Can Lie
Scalia's "Federalism"

Danger Creation in Kennedy v. City of Ridgefield

Keep an eye on this recent Section 1983 action - Kennedy v. City of Ridgefield, No. 03-35333 (9th Cir. June 23, 2005).  It's cert. worthy, to be sure. 

Michael Burns, a 13-year old, allegedly molested Kimberly Kennedy's daughter.  Burns had a history of violent behavior: he regularly tormented his family and he once lit a cat on fire.

Kennedy reported the crime to the police.  But because of Burn's violent history, Mrs. Kennedy begged the police to warn her before they told Burns he was being investigated.  Their plan was to leave town, to, in a word, hide out.  The police promised not to tell Burns without first warning the Kennedys.

Then, for some stupid reason, officer Noel Shields told Burns about the allegations.  When Mrs. Kennedy found out that Burns knew, she was terrified.  Noel Shields promised Mrs. Kennedy that the police would patrol the area.  It should not surprise anyone that he lied.

Enraged, Burns broke into Mrs. Kennedy's house, shot and killed her husband, and wounded her.  Mrs. Kennedy sued under Section 1983.  The issue was whether Shields was liable because, in informing Burns of the allegations and promising police protection, Shields created or increased the danger the Kennedys faced .

A 2-1 panel, in a Judge Browning opinion, said, Yes:

Shields’s affirmative actions placed the Kennedy family in a situation of danger greater than they would have faced had he not acted at all. Shields does not dispute that the revelation to Michael Burns’s mother of the allegations of sexual abuse against Michael Burns triggered his actions against Plaintiff and her husband. In revealing the existence of allegations against Michael to Angela Burns after having promised Kennedy that he would notify her first, Shields created a situation of heightened danger. It was inevitable that Michael Burns would eventually learn of the allegations made against him, and he would likely infer who had made them. If Kennedy had received the prior warning officer Shields promised her, she and her family could have taken additional precautions. Instead, they relied on Shields’s promise of advance notification and so considered additional precautions unnecessary.

Moreover, Shields further augmented this danger by offering false assurances that the police would patrol the Kennedy’s neighborhood the night of the shooting. Misrepresentation of the risk faced by a plaintiff can contribute to a finding of state-created danger. See Grubbs, 974 F.2d at 121 (“The Defendants also enhanced L.W.’s vulnerability to attack by misrepresenting to her the risks attending her work.”). Plaintiff alleges that she and her husband based their decision to remain at home that night and leave in the morning in reliance on Shields’s assurances that the neighborhood would be patrolled. Defendant’s affirmative promise of a police patrol thus influenced Plaintiff’s assessment of the risk she and her family faced.

Slip op. at 7484-7485.  The panel held that the contours of right to be free from state-created danger were clear.  Shields can be sued!

This case is cert. worthy (assuming it's not first heard en banc) for a lot of reasons.  But local governments have enough people working for them.  I'm keeping my mouth shut, and my fingers crossed.

UPDATE: The Ninth Circuit, over the dissent of 8 judges, refused to rehear Ridgefield en banc.  I predict the Supreme Court will grant cert. and reverse.

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