• The “danger doctrine” and the Fourteenth Amendment’s substantive due process clause 
• The “particularized” prerequisite to the application of the “danger doctrine” 

The state-generated “danger doctrine” is an element of the Fourteenth Amendment’s Due Process Clause. For the victim of a state-generated dangerous situation to be entitled to civil redress, the danger created must be “particularized” as to the plaintiff himself. A state-generated dangerous situation that affects the public in general, as opposed to a civil plaintiff in particular, is insufficient to trigger the “danger doctrine.” 

On May 25, 2020, George Floyd, a Black man, died at the hands of a white Minneapolis police officer — who was subsequently convicted of second-degree murder and other charges — during an arrest gone sour. 

That summer, protests occurred throughout the country, not the least of which included in Seattle. In Seattle, the Seattle Police Department (“SPD”) and the city’s mayor took the unprecedented step of surrendering to demonstrators for three weeks an SPD precinct and eight blocks of the surrounding neighborhood. The area was soon referred to as “CHOP,” shorthand for the “Capitol Hill Occupied Protest” zone. Top Seattle officials, including members of the city council and its mayor, supported and encouraged CHOP (in what the court referred to here as an “egregious” act), with Mayor Jenny Durkan likening it to a “block party” and “the summer of love.”  

The city provided the CHOP occupiers with portable toilets, lighting and other support, and modified the emergency response protocols of the Seattle police and fire departments. This response prevailed despite growing evidence of the lawlessness and danger in the CHOP district, with a mounting body count.  

During this time, Horace Lorenzo Anderson, Jr., a 19-year-old with unspecified special needs, ventured into the CHOP district. Upon doing so, he is alleged to have encountered an acquaintance — Marcel Long — with whom he had a history of antagonism. The encounter resulted in Long shooting Anderson at least four times, seriously wounding him. Other CHOP participants carried the still-breathing Anderson to an impromptu “medical tent.” Paramedics held off entering the CHOP area to assist Anderson for about 20 minutes while waiting for the SPD’s okay. By the time police and fire officials entered the area, CHOP participants had transported Anderson to a nearby hospital in a truck. Anderson was soon pronounced dead.  

On July 1, 10 days later, Mayor Durkan issued an executive order restoring official control over CHOP.  

Donnitta Sinclair — Anderson’s mother and the plaintiff in this case — sued the city in federal court pursuant to 42 U.S.C. § 1983, alleging that the city was civilly liable for having violated her Fourteenth Amendment substantive due process right to the companionship of her adult son. Plaintiff Sinclair alleged in her lawsuit that the city’s actions and failure to act regarding CHOP created a foreseeable danger for her son and that the city, being “deliberately indifferent to that danger,” was therefore civilly liable for her loss. In filing this lawsuit, Sinclair employed what is sometimes referred to as the “danger doctrine,” which if applicable, would arguably hold the city responsible for her loss. The federal district court held that it did not, dismissing the lawsuit with prejudice. Sinclair appealed. 

The Ninth Circuit Court of Appeal affirmed the dismissal. Plaintiff Sinclair alleged that the city violated her Fourteenth Amendment substantive due process right to the companionship of her son by creating an actual and particularized danger to him, and by acting with deliberate indifference towards saving his life.  

The constitutional vehicle by which she hoped to use to make Seattle responsible was the Fourteenth Amendment’s due process clause: i.e., “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” The United States Supreme Court has long recognized a parental constitutional right to the care, custody and control of minor children. (E.g.; Meyer v. Nebraska (1923) 262 U.S. 390, 399.) Although the Supreme Court has never extended this right to a parent’s adult children, the majority opinion here noted that the Ninth Circuit has “implicitly” done so. (See Porter v. Osborn (9th Cir. 2008) 546 F.3rd 1131, 1132.  

Analysis: 

The concurring opinion, in agreeing with the majority opinion that the district court correctly dismissed the lawsuit, disagreed with the majority’s conclusion that the due process clause protected one’s right to the care, custody and control of an adult child, and would have ended the court’s analysis at this point.  

Having gotten over this hump, the court went into a discussion of how, if at all, the due process clause might provide Donnitta Sinclair with a cause of action. Sinclair’s theory was that the so-called “danger doctrine” gave her the legal vehicle she needed to sue the city of Seattle. Specifically, Sinclair argued, “the city violated her right to the companionship of her son by violating his right to be free from state-created danger.”  

The court went into an analysis of the so-called “danger doctrine,” and how, if at all, it might apply to this case. It was first noted that under the general rule, “members of the public have no constitutional right to sue state [actors] who fail to protect them against harm inflicted by third parties.” (L.W. v. Grubbs (Grubbs I (9th Cir. 1992) 974 F.2nd 119, 121; DeShaney v. Winnebago County Department of Social Services (1989) 489 U.S. 189, 197.) An exception to this rule is when the state-created danger doctrine is found to apply. Under the 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.” (Citing Martinez v. City of Clovis (9th Cir. 2019) 943 F.3rd 1260, 1271.) In other words, where a state actor (whether he’s an individual police officer or a public entity such as the city of Seattle) places a person in greater “known or obvious” danger than he was when first encountered, that state actor may be held civilly liable.  

Sinclair’s argument here was that the city of Seattle, through the actions of its city council and mayor, put her son into a known or obvious danger when it allowed the CHOP to form, removing all law enforcement and other emergency services from the area, and leaving the area’s occupants at risk to rioters and those bent on violence.  

However, pursuant to established case law, to use the danger doctrine as the basis for a civil suit, a plaintiff is first required to establish three necessary elements that:  

(1) a state actor’s (i.e., the city of Seattle’s) affirmative actions created or exposed him (plaintiff’s son) to ‘an actual, particularized danger [that he] would not otherwise have faced,’  

(2) that the injury he suffered was foreseeable, and  

(3) that the state actor was deliberately indifferent to the known danger.” (Hernandez v. City of San Jose (9th Cir. 2018) 897 F.3rd 1125, 1133-1134.)  

Seattle contested the first and third elements only. As for the third element, the court found that by not only permitting, but also encouraging the establishment of the CHOP zone, the city acted with the necessary “deliberate indifference.”  

As admitted by the city, the second element was easily met in that Anderson’s injury was concededly foreseeable.  

However, as for the first element, the court found that as alleged, the plaintiff failed to show that there was a “particularized danger” to Sinclair’s son.  

The rule is simple enough (even though it requires some explanation): “For a plaintiff to prevail on a state-created danger claim, the government must ‘affirmatively create an actual, particularized (italics added) danger [that the plaintiff] would not otherwise have faced.’...Sinclair’s allegations support a conclusion that the city created an actual danger, but not a particularized one.”  

By “particularized,” the court noted that a “particular danger” is not the same thing as a general one. “(A)ny danger the city created or contributed to by enabling the CHOP zone affected all CHOP visitors equally; the danger was not specifically directed at Sinclair or (her son,) Anderson. That is, the danger that Anderson faced as a result of the city ignoring the lawlessness and crime occurring in CHOP were the same as anyone else. The city did not create a danger that posed a specific risk to Sinclair (or her son).” “In sum, while the city created an actual danger of increased crime, that danger was not specific to Anderson or Sinclair.” 

Therefore, on this theory, the court affirmed the ruling of the lower district court that the danger doctrine did not apply under the facts of this case, and held that Sinclair’s lawsuit was properly dismissed. 

While the court does a good job explaining the necessary elements of the so-called “danger doctrine,” including that the harm caused be “particularized,” it does not even try to tell us why there is a particularized requirement: i.e. Why is the benefit of the danger doctrine limited to a person who is placed in danger by the state’s actions only when the resulting danger is more onerous as to him than to everyone else?  

But that big hole in the court’s analysis aside, I have long preached that there is no civil liability incurred by a police officer’s failure to act. It is only when the officer has, by his or her actions, placed a person into a worse (or more dangerous) position than he or she was when the officer first got involved that a lawsuit is allowed.  

This case cites a whole pile of cases that illustrate this rule under a variety of circumstances. But that does not mean that you, as a police officer, do not have a professional responsibility to do what the taxpayers pay you to do when coming upon someone who needs assistance.  

For instance, finding a lone female (or anyone, for that matter) abandoned in a high-crime area in the middle of the night imposes upon you a professional, even if not legal, duty to ensure their safety by doing something (e.g., arranging transportation or transporting the person to a safe destination of their choice) to remove them from the danger to which they are exposed by just being left there to fend for themselves.  

While you may not be subject to a lawsuit for leaving someone alone in such circumstances, you would certainly be subject to condemnation by your peers, a reprimand by your superiors, and probably fired by your employer, if you did so.