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Selman Breitman Secures Ninth Circuit Opinion Affirming District Court Victory For City Of Benicia In Civil Rights Action

San Francisco partners Gregg Thornton and Danielle Lewis obtained a ruling from the Ninth Circuit of Appeals affirming the District Court's order granting summary judgment in the matter of Tomada v. Officer Simonson, et al., action number 2:10-cv-00856-GAB-DAD. As a result of that successful motion for summary judgment, the United States District Court, Eastern District of California, dismissed the constitutional claims by the plaintiff, asserting that the City of Benicia, its Chief of Police and one of its police officer violated the plaintiff's civil rights, under 42 U.S.C. section 1983.

This case initially stemmed from the actions by a Benicia police officer to deescalate a physical confrontation outside a bar at closing time. When the officer confronted the two groups of men involved in the incident, the officer sent one group of four in one direction, and sent one group of two in the opposite direction. The officer then followed the group of two to perform a welfare check. After determining that the two men posed no danger, were not in any danger, and after calling a cab for the two men, the officer returned to the bar. After the officer arrived at the bar, the plaintiff and his sister left the bar on foot. They elected to walk in the same direction as the group of two men. Ultimately, the plaintiff encountered the two men and engaged them in a fight, during which the plaintiff was severely injured.

The plaintiff sued the City of Benicia, its Chief of Police and the police officer, under 42 U.S.C. section 1983, for alleged violations of civil rights established by the Fourth Amendment of the United States Constitution. Specifically, the plaintiff alleged that the officer directed the plaintiff to walk in the same direction as the two men, thereby placing the plaintiff in danger. The defendants moved for summary judgment on the ground that the uncontroverted evidence demonstrated that there was no triable issue of fact as to these constitutional claims, and that the defendants were entitled to judgment on those claims as a matter of law. The District Court granted the motion. The plaintiffs appealed to the Ninth Circuit Court of Appeals.

The Ninth Circuit held that, "as a general rule, members of the public have no constitutional right to sue state employees who fail to protect them against harm inflicted by third parties." L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992). Having said that, the court recognized that "danger creation," or "affirmative conduct on the part of the state in placing the plaintiff in danger," is an exception to the general rule. Id. However, from a review of the undisputed record, the appellate court concluded that there was a lack of any reliable evidence to suggest that the officer had reason to believe that the two men might be a danger to the plaintiff or that the officer ordered the plaintiff to walk in any direction, much less in the same direction as the two men. The Ninth Circuit resolved this case on the basis of an absence of proof of a substantive due process violation. The court never reached that issue of qualified immunity. However, the court observed that doctrine, if addressed, would also demand summary judgment in favor of the officer.


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