Kennedy v. City of Ridgefield, No. 03-35333.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBrowning
Citation439 F.3d 1055
PartiesKimberly KENNEDY, individually and in her capacity as personal representative of the estate and as guardian for her children aka Kimberly Gorton; Jay D. Kennedy, aka JD Kennedy; Keith Teufel; Tera Teufel, Plaintiffs-Appellees, v. CITY OF RIDGEFIELD, a municipal corporation and political subdivision of the State of WA; Noel Shields, Defendants-Appellants.
Decision Date07 March 2006
Docket NumberNo. 03-35333.
439 F.3d 1055
Kimberly KENNEDY, individually and in her capacity as personal representative of the estate and as guardian for her children aka Kimberly Gorton; Jay D. Kennedy, aka JD Kennedy; Keith Teufel; Tera Teufel, Plaintiffs-Appellees,
v.
CITY OF RIDGEFIELD, a municipal corporation and political subdivision of the State of WA; Noel Shields, Defendants-Appellants.
No. 03-35333.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted September 17, 2004.
Filed March 7, 2006.

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COPYRIGHT MATERIAL OMITTED

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John R. Connelly, Jr., Darrell L. Cochran and Lincoln C. Beauregard, Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, Tacoma, WA, for the plaintiffs-appellees.

Ray P. Cox, Forsberg & Umlauf, Seattle, WA, for the defendants-appellants.

Appeal from the United States District Court for the Western District of Washington; J. Kelley Arnold, Magistrate, Presiding. D.C. No. CV-01-05631-JKA.

Before: BROWNING, TASHIMA, and BYBEE, Circuit Judges.

BROWNING, Circuit Judge:


Defendant Noel Shields appeals the denial of his motion for summary judgment based on his assertion of qualified immunity against Plaintiff Kimberly Kennedy's 42 U.S.C. § 1983 claim. He argues that his conduct did not violate Plaintiff's clearly established constitutional rights. We disagree, and affirm the district court's determination that, on the facts alleged, Shields is not entitled to qualified immunity.

I. Introduction

The following initial facts are undisputed. Kimberly Kennedy's § 1983 action against Ridgefield City and Ridgefield Police Officer Noel Shields stems from events occurring on September 24, 1998, when a thirteen year-old neighbor, Michael Burns, shot and killed her husband, Jay Kennedy, and shot and severely wounded her. Earlier that same month, on September 6, Kennedy called the Ridgefield Police Department ("RPD") and alleged that Burns had molested Kennedy's nine-year-old daughter. RPD Officer Shields responded to the call. Burns shot the Kennedys within approximately eight hours of first learning of the allegations against him. He has since been convicted of the premeditated murder of Jay Kennedy and the attempted premeditated murder of Kimberly.

At this early stage in the litigation, there are indeed facts which the parties dispute. However, because Shields contends that, even after resolving all issues of fact in Kennedy's favor, she fails to demonstrate that he violated her constitutional rights, we present and consider the remaining facts, where appropriate, in a light most favorable to Kennedy.

During their initial meeting on September 6, Kennedy warned Shields of Michael Burns's known, violent tendencies. She told Shields that the Burns family was unstable, that she had seen a lot of violence in their home, and described to Shields several violent incidents involving both Michael and his mother, Angela Burns. Kennedy told Shields that Michael had been involved in fights at school, had lit a cat on fire, had broken into his girlfriend's house and attacked her with a baseball bat, and had thrown rocks at a

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building in downtown Ridgefield. After learning of Burns's violent behavior, Shields assured Kennedy that she would be given notice prior to any police contact with the Burns family about her allegations.

Following that meeting, Shields forwarded his report to the Child Abuse and Intervention Center ("CAIC"). Shields had no further contact with Kennedy between September 6 and September 24, the night of the shooting. On several occasions, Kennedy inquired into the status of the investigation of Michael and reminded officers to notify her prior to any contact with the Burns family. In the interim, she and Shields both learned that Michael had been investigated for sending death threats to a classmate, though the investigation concluded he was not responsible. During her inquiries, Kennedy expressed concern for her safety and told the CAIC officer handling the case that she was anxious to have the investigation started.

On September 24, Kennedy called both Shields and the CAIC to inquire into the progress of the investigation. Kennedy left a message for Shields asking about the status of the alleged molestation case, and whether he had yet contacted Burns. After receiving Kennedy's message when he arrived at work that afternoon, Shields called the CAIC to inquire into the status of the investigation. The officer responsible for the case was out, so Shields left his own message. Then, rather than calling Kennedy with an update, Officer Shields drove to the Burns residence. Shields claims he did so because the Burns house was on the way to the Kennedy's, and if he could determine whether they had been contacted, he could continue to the Kennedy's with more accurate information. At approximately 5:00 p.m., Shields talked to Angela Burns, informing her and Michael of Kennedy's allegations.

After speaking with Angela, Shields went to the Kennedy house. When he arrived, at approximately 5:15 p.m., Shields told Kennedy that he had informed Angela Burns of the molestation allegations. Kennedy became upset and asked Shields why he had contacted the Burns family prior to notifying her and told Shields that she feared for her safety. Officer Shields assured her that the police would patrol the area around both her house and the Burns's house that night to keep an eye on Michael.

After Shields left, Kennedy called a friend because she was very frightened of what Michael's and his mother's reactions would be. Shields had told her Angela was very angry after their conversation and that she and Michael had begun to yell at one another. Kennedy took no further action until about 10:00 p.m. that night when her husband returned from a hunter's safety course. He had left their house to attend the course just as Shields had arrived that afternoon. The Kennedys decided to stay the rest of the night at home, in part because of the late hour, and in part because Shields allegedly promised to patrol the neighborhood. They planned to lock their doors and leave town early the next morning. But early on the morning of September 25, Michael Burns broke into the Kennedy house and shot both Jay and Kimberly Kennedy while they slept.

Kennedy filed suit against Shields and Ridgefield City, among others, in Clark County Superior Court asserting several state causes of action and a claim under 42 U.S.C. § 1983 and the Fourteenth Amendment. The case was removed to the United States District Court for the Western District of Washington. On March 13, 2003, Shields and Ridgefield City moved for summary judgment. The court granted summary judgment to Defendants on Kennedy's state law claims of negligent

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infliction of emotional distress and the tort of outrage, and to Ridgefield City on her § 1983 "failure to train" claim.

However, the district court denied Shields's motion for summary judgment based on qualified immunity. It concluded that, viewing the facts in a light most favorable to Kennedy, "a jury could find that Officer Shields unreasonably created a false sense of security in plaintiffs by agreeing to give plaintiffs advanced notice of advising the Burns family of the allegation that Michael Burns sexually molested [Kennedy's daughter], and assuring the plaintiffs of a neighborhood patrol." Order, at 4-5. This interlocutory appeal followed.

II. Analysis

This case presents two legal issues. First, we must consider whether this Court has jurisdiction over Shields's interlocutory appeal concerning his qualified immunity defense. If so, we must then determine whether Shields is entitled to such immunity.

We review de novo an interlocutory appeal from the denial of summary judgment based on qualified immunity. Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir.2003). In reviewing a summary judgment order in a § 1983 action where the district court determines that "the defendant's alleged conduct violated the plaintiff's clearly established constitutional rights[,] . . . we resolve all factual disputes in favor of the plaintiff. . . ." Cunningham v. City of Wenatchee, 345 F.3d 802, 807 (9th Cir.2003).

A. Jurisdiction over Qualified Immunity Claims on Interlocutory Appeal

In response to Shields's interlocutory appeal, Kennedy argues first that this court lacks jurisdiction. We disagree, and conclude we have jurisdiction to determine whether the trial court erred in holding Shields was not entitled to qualified immunity.

As a general rule, interlocutory appeals from determinations of qualified immunity are permissible. In Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court held the denial of a defendant's motion for summary judgment is immediately appealable where the defendant is a public official asserting the defense of qualified immunity, and the issue appealed concerns whether the facts demonstrated a violation of clearly established law.

Kennedy correctly notes that the Court created an exception to this general rule in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). There, the Court held that "a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a `genuine' issue of fact for trial." Id. at 319-20, 115 S.Ct. 2151. In ruling against Shields's motion for summary judgment based on his claim of qualified immunity, the district court stated:

Viewed in a light most favorable to plaintiffs, a jury could find that Officer Shields unreasonably created a false sense of security in plaintiffs by agreeing to give plaintiffs advance notice of advising the Burns family of the allegation that Michael Burns had sexually molested [Kennedy's daughter], and assuring the plaintiffs of a neighborhood patrol.... In essence there is a question of fact as to whether or...

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319 practice notes
  • Taylor v. Altoona Area School Dist., Civil Action No. 05-350J.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • August 23, 2007
    ...courts of appeals have adopted some variation of it. Sanford v. Stiles, 456 F.3d 298, 304 (3d Cir.2006); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006); Pena v. DePrisco, 432 F.3d 98, 107-110 (2d Cir.2005); Forrester v. Bass, 397 F.3d 1047, 1057-1059 (8th Cir.2005); Bute......
  • Juliana v. United States, Case No. 6:15-cv-01517-AA
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • October 15, 2018
    ...actor create[d] or expose[d] an individual to a danger which he or she would not have otherwise faced." Kennedy v. City of Ridgefield , 439 F.3d 1055, 1061 (9th Cir. 2006). The state action must place the plaintiff "in a worse position than that in which he would have been had the state not......
  • R.H. v. L. Gatos Union Sch. Dist., Case No.: 11–CV–03729–LHK
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • April 2, 2014
    ...state action creates or exposes an individual to a danger which he or she would not have otherwise faced.” Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir.2006) (quoting DeShaney, 489 U.S. at 197, 109 S.Ct. 998 ). To benefit from the state-created danger exception, Plaintiffs mu......
  • City of Seattle v. Long, No. 78230-4-I
    • United States
    • Court of Appeals of Washington
    • May 4, 2020
    ...creates or exposes an individual to a danger which [they] would not have otherwise faced.'" (quoting Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006))); Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 249 (5th Cir. 2003) (noting that the Tenth, Sixth, Third, Second, and......
  • Request a trial to view additional results
318 cases
  • Taylor v. Altoona Area School Dist., Civil Action No. 05-350J.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • August 23, 2007
    ...courts of appeals have adopted some variation of it. Sanford v. Stiles, 456 F.3d 298, 304 (3d Cir.2006); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006); Pena v. DePrisco, 432 F.3d 98, 107-110 (2d Cir.2005); Forrester v. Bass, 397 F.3d 1047, 1057-1059 (8th Cir.2005); Bute......
  • Juliana v. United States, Case No. 6:15-cv-01517-AA
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • October 15, 2018
    ...actor create[d] or expose[d] an individual to a danger which he or she would not have otherwise faced." Kennedy v. City of Ridgefield , 439 F.3d 1055, 1061 (9th Cir. 2006). The state action must place the plaintiff "in a worse position than that in which he would have been had the state not......
  • R.H. v. L. Gatos Union Sch. Dist., Case No.: 11–CV–03729–LHK
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • April 2, 2014
    ...state action creates or exposes an individual to a danger which he or she would not have otherwise faced.” Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir.2006) (quoting DeShaney, 489 U.S. at 197, 109 S.Ct. 998 ). To benefit from the state-created danger exception, Plaintiffs mu......
  • City of Seattle v. Long, No. 78230-4-I
    • United States
    • Court of Appeals of Washington
    • May 4, 2020
    ...creates or exposes an individual to a danger which [they] would not have otherwise faced.'" (quoting Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006))); Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 249 (5th Cir. 2003) (noting that the Tenth, Sixth, Third, Second, and......
  • Request a trial to view additional results
1 books & journal articles
  • Human Right to a Clean and Healthy Environment
    • United States
    • Environmental justice: legal theory and practice. 4th edition
    • February 20, 2018
    ...actor create[d] or expose[d] an individual to a danger which he or she would not have otherwise faced.” Kennedy v. City of Ridgeield , 439 F.3d 1055, 1061 (9th Cir. 2006). he state action must place the plaintif “in a worse position than that in which he would have been had the state not ac......

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