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• Second Amendment Right to Bear Arms
• Convicted Felons and the Second Amendment

It remains a crime for convicted felons or own or possess firearms or ammunition, despite the “right to bear Arms” protections of the Second Amendment.

Defendant Alex Joseph Alexander was convicted in 2006 of attempted murder.  He did his prison time, was released, and presumably began living the life of a law-abiding citizen, . . . at least up until 2021 when he was caught in the possession of a firearm and ammunition.  Tried and convicted with being a felon in possession of a firearm (Pen. Code § 29800(a)(1)) and ammunition (Pen. Code § 30305(a)(1)), and sentenced to prison for two years and eight months, defendant appealed.  On appeal, defendant argued that the relevant statutes violated the Second Amendment right to bear arms and were therefor unconstitutional.

The Fourth District Court of Appeal (Div. 2) affirmed, upholding defendant’s conviction.  This case, obviously, depends upon an interpretation of the Second Amendment. As written, the Second Amendment provides as follows:  “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  In recent years, the United States Supreme Court has issued three very significant case decisions, striking down attempts by various jurisdictions to outlaw or restrict the possession, use and/or carrying of firearms by private citizens. 

1.  Heller:  The first case was District of Columbia v. Heller (2008) 554 U.S. 570 [171 L.Ed.2nd 637; 128 S.Ct. 2783].  In Heller, the issue was the constitutionality of laws enacted by the District of Columbia (a federal enclave) banning the possession of operable handguns inside the home. The Supreme Court in Heller struck down these laws as unconstitutional.  In so doing, however, the Court recognized the fact that the Second Amendment (as with all the amendments in the Bill of Rights) is not absolute.  There are exceptions.  Per the Court in Heller, “the Second Amendment guarantees ‘the right of law-abiding, responsible citizens to use arms in defense of hearth and home.’” (Italics added.) This right was violated by the District of Columbia’s attempt to ban the possession of operable weapons in the home.  But note the reference to “law-abiding, responsible citizens.”  It is assumed that when talking about a citizen’s right to bear arms in his or her own home that that person has not disqualified himself by acting irresponsibly.  As phased by the Heller Court: “(T)he Second Amendment is not unlimited” and is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”  (Heller, at p. 626.) “Nothing (in the Court’s opinion) should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” (Italics added; Heller, at pp. 626–627; noting also at fn. 26 that this is not an exhaustive list.)

2.  McDonald:  Two years later, the Supreme Court decided the case of McDonald v. City of Chicago, Ill. (2010) 561 U.S. 742 [177 L.Ed.2nd 894; 130 S.Ct. 3020].  Chicago had a City ordinance that prohibited the possession of any firearm absent a “valid registration certificate for such firearm.” The Code then prohibited registration of most handguns, thus effectively banning handgun possession by almost all private citizens who resided in the City.  Per the statute, it was “unlawful for any person to possess . . . any firearm,” a term that includes “pistols, revolvers, guns and small arms . . . commonly known as handguns.” (Chicago, Ill., Municipal Code §§ 8-20-040(a), 8-20-050(c) (2009)) The Supreme Court in McDonald struck down theses statutes as a violation of the Second Amendment. The significance of McDonald is that it applied the rule of Heller to the states via the Fourteenth Amendment’s due process clause.  Also, however, the Court in McDonald reiterated the rule of Heller to the effect that there are exceptions to the Second Amendment’s protections.  In so doing, the Court noted that “(w)e made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.’. . .  We repeat those assurances here.” (Italics added; McDonald, at p. pg. 786.) 

3.  Bruen:  Following these two cases, the lower courts started applying a two-step analysis in deciding Second Amendment cases.  (E.g., see People v. Gonzalez (2022) 75 Cal.App.5th 907, 912.)  The U.S. Supreme Court rejected this two-prong approach in the third of its landmark Second Amendment decisions; New York State Rifle & Pistol Association, Inc. v. Bruen (2022) 597 U.S. __ [213 L.Ed.2nd 387; 142 S.Ct. 2111].  In so doing, the Bruen Court imposed the following rule: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation (restricting the possession of firearms) by demonstrating that it (i.e., the questioned statute) is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” (Bruen, 142 S.Ct. at pp. 2129–2130.) In other words, firearms restrictions enacted by a state or local government are presumed to be unconstitutional absent the state being able to prove otherwise.  The Court further held that in assessing whether a firearms-related statute has a “relevantly similar” historical analogue, courts should consider “at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed defense.” (Id., at p. 2133, italics added.) In Bruen, the issue was the constitutionality of a New York State statute that restricted the issuance of a public-carry license to if and when the applicant was able to demonstrate a “special need” for self-defense.  New York was but one of six states that required some additional “special need” in order to obtain a permit to carry a firearm in public.  (California is another.)  Such states are described as “may issue” concealed carry licensing regime states, as opposed to “shall issue” jurisdictions where permits to carry a firearm must be issued merely by applicants making application and answering certain basic suitability questions (e.g., as relevant here, not having a felony record). (Id., at p. 2123) In New York, a person’s mere desire to carry a firearm out of a general concern for his or her own safety was insufficient to meet this standard.  The Bruen Court ruled that New York’s licensing requirements violated the Second Amendment “in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.” (Id., at p. 2156.)  The ruling in Bruen was determined to be “consistent with Heller and McDonald,” both of which had “recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.”  And it must be further noted that the Bruen Court reiterated the language in both Heller and McDonald that there are exceptions, among which are individuals with a previous felony conviction.  (Id.. at p. 2162.)  

4. Alexander: Defendant Alex Alexander in this instant case appealed his conviction, arguing that the above authority should be interpreted to mean that Penal Code sections 29800(a)(1) and 30305(a)(1) are unconstitutional; i.e., “that . . . the prohibitions against felons possessing firearms and ammunition . . . violate the Second Amendment right to possess firearms for self-defense.”  The Fourth District Court here had no problem rejecting defendant’s arguments on this issue.  In so ruling, the Court first noted that both Heller and Bruen (as well as McDonald) held that “only law-abiding citizens are included among ‘the people’ whose right to bear arms is protected by the Second Amendment.”  Defendant is a convicted felon.  In stating the obvious: “A felon is ‘[s]omeone who has been convicted of a felony.’ (Black’s Law Dict. (11th ed. 2019).) In California, a felony is defined as ‘a crime that is punishable with death, by imprisonment in the state prison,’ or incarceration in the county jail under specified circumstances. ((P.C.) § 17, subd. (a).) A felon, by definition, is therefore someone who has committed a crime and as such is not law-abiding.”  In considering the first prong of Bruen’s “two metrics, how and why” analytical framework, including the prior Heller and Bruen decisions, the Fourth District Court in Alexander held that the government did in fact demonstrate that the statutes in question here were consistent with the Nation’s historical tradition of firearm regulation, recognizing the “longstanding prohibitions on the possession of firearms by felons.”  The Court further rejected defendant’s argument that the prohibiting language in the prior cases should be ignored in that it was merely “dicta” (i.e., not necessary to the Courts’ decisions and therefore not binding).  Not disagreeing with defendant in that some of the language was in fact dicta, the Court noted that the dicta was still “consistent with the Court’s explanation of the scope of the Second Amendment,” and thus binding.  Defendant further argued that the term “law-abiding citizen” includes a “law-abiding ex-felon.”  Bruen, however, shot down that argument years ago, noting that people who have suffered a felony conviction “in the past,” whether or not her or she is presently committing additional crimes, are not included in what the Court considered to be “law-abiding, responsible citizens.”  (Bruen, supra, 142 S.Ct. at p. 2138, fn. 9.)  “It follows that the Second Amendment right afforded to law-abiding citizens does not extend to convicted felons who are presently refraining from committing additional crimes.”  Defendant, therefore, being ineligible to possess firearms or ammunition, was lawfully convicted for having done so.

I normally relegate routine Second Amendment cases to administrative notes or editorials, given the volume of these cases that have been coming down from the various state and local courts.  But I felt that the Alexander case presented a good opportunity to review exactly how the U.S. Supreme Court interprets the Second Amendment via Heller, McDonald, and Bruen.  And although not discussed in Alexander, I also found this to be a good opportunity to explore how the U.S. Supreme Court has handled the issue of what is meant by the Second Amendment’s reference to a “well regulated Militia;” i.e., does the Second Amendment mean that you have to be a part of some trained military force for the Second Amendment to apply to you?  The simple answer to this question is “no;” that’s not what the founders meant when they included the reference to a “well regulated Militia.” 

The Supreme Court in its Heller decision discusses this issue at length.  Per Heller, the phrase “well regulated Militia” was not intended to mean an organized and trained military force.  (Heller, at pg. 577.)  In reviewing the history of the Second Amendment, the Heller Court explained that the word “Militia” refers to “all able-bodied men.”  This includes “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the aged of forty-five years.” (Heller, at pg. 596.) (Note:  If certain racial and sexist references herein offend you, you have to remember that this was written in a different era, when slavery was legal and sexism was a concept not yet recognized.)  In other words, the “Militia,” as referred to in the Second Amendment, was intended to include “all able bodied men” in the country, whether or not he belonged to an organized military force or was formally trained to be a soldier. (Nowadays, it can probably be interpreted to include all able-bodied persons, whatever the person’s race and/or gender.) 

The net result of all this is the fact that the Second Amendment protects the right of all citizens in the United States (unless belonging to one of the prohibited groups, such as a convicted felon) to “keep and bear Arms.”  Another reason for briefing People v. Alexander is its references to New York State Rifle & Pistol Association, Inc. v. Bruen.  Bruen is particularly important to California in that like New York, California is one of the very few remaining “may issue” states, as discussed above.  So you know that California’s restrictive licensing provisions are going to be the subject of an appellate court review in the not-to-distant future, discussing the application of Bruen. 

• Pen. Code § 836(c)(2) and a Temporary Domestic Violence Restraining Order 

• Pen. Code § 148(a)(1) and a Suspect’s Resistance to the Enforcement of a Temporary Domestic Violence Restraining Order 

Upon notice of the existence of a temporary domestic violence restraining order and after given an opportunity to comply, a person violates P.C. § 148(a)(1) by resisting officers who are attempting to enforce the order by refusing to comply with the terms of the order.

     Defendant Christopher James Kenney’s mother (“C.K.”) decided one day in January 2021 that it was time to exercise a little “tough love” with her 29-year-old druggie son and 86 the bum out of the house. The idea was that once he was made homeless, defendant might voluntarily move into a residential drug rehab treatment facility. (Fat chance.)  

     To enforce the eviction, C.K. obtained a temporary domestic violence restraining order (“DVRO”), although defendant (not being present) was not aware of this at the time. Pending a hearing scheduled for 15 days later, the court ordered absent defendant to “take only personal clothing and belongings needed until the (pending) hearing and move out immediately.” In an accompanying order, the San Diego County Sheriff’s Department was directed to “remove” defendant from the residence.  

     Upon C.K. telling defendant to leave, he did so on Jan. 6. But two days later, defendant returned. C.K. asked him “What are you doing here?” She also told him: “You know you could be arrested.” Showing his disrespect for his mother by telling her “F—k you,” and that he’d leave after taking a shower, he stomped off to his bedroom. Having to drive her grandson to school, C.K. told defendant, “That’s not how restraining orders work,” and that they would talk about it when she returned. However, C.K. had a live-in boyfriend who was not as patient. Before C.K. returned, the boyfriend called the sheriff’s department to report the presence of “a disorderly druggie” who was “loaded to the gills” and “not supposed to be on the property.” He told the dispatcher there was a “restraining order out” but that “it hasn’t been served” and “he’s here for you to get him right now.”  

     By the time C.K. returned, the deputies were already at her house. She gave them a copy of the temporary DVRO. The deputies first checked with their records division to confirm its existence. (The DVRO’s legal validity was not an issue in this case.) C.K. told the deputies that defendant had not yet been served with it. As evidenced by the bodycams worn by the deputies, one of the deputies at the scene, Deputy Evan Maldonado, knocked on defendant’s locked bedroom door and told him through the door that he would not be arrested, but that they had a temporary DVRO that they needed to serve on him. Defendant refused to open the door.  

     Deputy Maldonado, and his partner Deputy Brett Germain explained that there was a restraining order on file that prevented him from being in the house. Defendant questioned the validity of any order that sought to prevent him from being in his own home. The deputies attempted to convince him that “as of right now” he was not going to be arrested, but that they needed to serve the order on him.  

     Defendant’s not-unexpected response (still through the locked bedroom door) was that, “(t)his was bull s—t” and “f—k you guys.” The deputies continued to try to reason with defendant, telling him to come out and “talk about it,” and submit to being served with the order so that he “can get going.” Defendant continued to argue that he was in his own home and that the deputies would have to break down the door.  

     Using a piece of flexible plastic, the deputies were able to get the door open (albeit with some effort) and -- after a scuffle -- arrested the defendant. He was charged in state court with resisting an executive officer with force, per P.C. § 69. He was convicted of the lesser offense of resisting, obstructing, or delaying a peace officer in the performance of his or her duties, per P.C. § 148(a). The defendant appealed. 

The Fourth District Court of Appeal (Div. 1) affirmed the ruling. 

     The issue on appeal was whether, in arresting defendant for violating a temporary domestic violence restraining order, the deputies were “performing (their) lawful duty;” an element of P.C. § 148(a)(1) as well as P.C. § 69. (See CALCRIM Nos. 2652 & 2656).  

     At trial, after the prosecution rested its case, defendant brought a motion to dismiss pursuant to P.C. § 1118.1, arguing that the deputies had violated the notice requirements of a DVRO; i.e., that he “had never been lawfully noticed or served.” The motion was denied by the trial court. 

     The defendant raised the same issue on appeal. Penal Code § 836, in subdivision (c)(2), provides the notice and service requirements for a DVRO, as well as any other court-issued protective order.  

     The section reads: “The person against whom a protective order has been issued shall be deemed to have notice of the order if the victim presents to the officer proof of service of the order, the officer confirms with the appropriate authorities that a true copy of the proof of service is on file, or the person against whom the protective order was issued was present at the protective order hearing or was informed by a peace officer of the contents of the protective order.”  

     The defendant was not present at the protective order court hearing, so that alternative can be scratched. What was left to be determined by the court was whether, under the requirements of P.C. § 836(c)(2), the defendant had been given notice of the existence of a restraining order and the opportunity to comply before being arrested.  

     The court held that he had. Under subdivision (c)(2) of section 836, a person who has not been served with a DVRO is nevertheless “deemed to have notice of the order” if “informed by a peace office[r] of the contents of the protective order.” As evidenced by the deputies’ bodycams, the defendant was told several times (albeit through a locked bedroom door) that a DVRO existed, and that under the terms of the order, defendant was not allowed to be there. “The obvious purpose of the notice requirement in section 836 is to afford the restrained person a meaningful opportunity at the scene to conform his or her conduct to law.” (Italics in the original.) In other words, he must then be given an opportunity to comply. 

     In this case, after the defendant was told police had such a DVRO, he was also told that he would not be arrested so long as he complied with the terms of the order and left the premises. The fact that he was not told about the pending hearing or that he was also prohibited from being in contact with his mother or her grandson was irrelevant. Merely being told that a DVRO existed and that it prohibited him from being in C.K.’s house, and that he was thereafter given the opportunity to comply, was held to be “adequate” to satisfy the requirements of P.C. § 836(c)(2).  

     It was also held to be irrelevant, for purposes of determining whether the deputies were “performing (their) lawful duty” as an element of P.C. § 148(a)(1), that C.K. had allegedly threatened defendant some 20 other times with getting a restraining order, that Deputy Maldonado did not read the entire temporary DVRO to defendant, or that no one actually showed him the order. The fact that defendant had been told by the deputies that there was “a restraining order on file,” and that as a result he was not allowed to be at the residence, was held to be legally sufficient. The trial court therefore properly denied defendant’s motion to dismiss.  

     There was also an issue as to whether the trial court had failed to properly instruct the jury. Specifically, the jury was not instructed that there was no duty on the part of the deputies to serve defendant with a physical, printed copy of the restraining order. In closing arguments, the defense counsel argued that such a duty existed, while the prosecution argued to the contrary. The jury expressed their confusion on this issue by asking mid-deliberations via a note to the judge whether such a duty existed; a question the trial court declined to answer.  

     The Appellate Court held “no harm, no foul,” noting that the prosecution had been allowed to correctly argue that no such duty existed (i.e., that so long as “the defendant was informed by a peace officer of the contents of the protective order,” the notice requirements of P.C. § 836(c)(2) had been met), and the jury convicted based upon that argument. The trial court’s instructional error was held to be harmless beyond a reasonable doubt. Defendant’s conviction, therefore, was upheld. 

There’s really not much further discussion needed about this case; the law is clear. But because serving a DVRO is one of the duties with which law enforcement officers are occasionally entrusted, it’s helpful for you to know the rules.  

     A person in violation of such an order must be aware that such an order exists, and then after being so informed, be given the opportunity to comply. As written into section 836(c)(2), to arrest someone for a violation of a temporary DVRO, the officer must be able to as confirm “with the appropriate authorities” that such an order exists and then have “proof of service” on the suspect.  

     Only if the suspect was present at the court hearing, or “proof of service” is on file, can you assume that he or she is aware of the order and its contents. If no such proof exists, then the officer must inform that person of the contents of such an order and then give him or her a reasonable opportunity to comply. Simple enough.  

     But might I suggest that you err on the side of caution, as the deputies did in this case, and give the suspect the benefit of any doubt that all the elements for a lawful arrest exist. 

     Recognizing that the prosecution has to prove all these elements beyond a reasonable doubt, and the defendant likely will argue that the notice was insufficient, pouring it on heavier than might really be necessary can help ensure a conviction. 

• 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.