Funneling Trump Rally Attendees Directly Into A Violent Anti-Trump Crowd Costs Officers Their Qualified Immunity

Legal Issues

from the DO-NOT-CONGRATULATE dept

Law enforcement officers have no duty to protect citizens. So many offer up “protect and serve” as a credo, but the Supreme Court ruled cops have no obligation to uphold the first half of that saying and law enforcement agencies have made it pretty clear the second half isn’t going to be getting much attention either.

While officers may have no obligation to protect citizens, they do have to ensure they don’t make things worse for those they’re serving. The line isn’t drawn especially clearly, but if you’re policing the denizens of a frying pan, you definitely shouldn’t push them into the fire. (h/t Volokh Conspiracy)

The frying pan in this Ninth Circuit Appeals Court decision [PDF] was a June 2016 Trump rally held in San Jose, California. The fire was the anti-Trump protesters gathered outside the arena. Aware that Trump rallies tended to produce violent clashes (of ideologies, but mainly fists and other thrown objects), 250 officers were sent to patrol the scene.

Things started to go badly quickly. According to the plaintiffs, the city instructed officers to stand back and let pro- and anti-Trump forces work it out between themselves. The rationale? “Intervention might cause a riot.” There is some pragmatism to this statement, but not a whole lot of wisdom. Either way, it does clearly show the city understands officers have no duty to protect. If beatings were going to occur on their watch, they weren’t going to jump in the middle of it and possibly become part of the problem.

But it was clear to officers anti-Trump protests tended to include violent acts directed at pro-Trump rally attendees. It was even more clear in this case, as officers witnessed violent acts (or had acts reported to them) but refused to intervene. In fact, the 250 officers racked up only three arrests between them — and every one of those included an “assaulting an officer” charge.

The only time the officers appeared to step up was to “assist” pro-Trump rally attendees make their way out of the arena… and directly into the crowd of violent protesters.

Two Attendees—Hernandez and Haines-Scrodin—claim that San Jose police “directed [them] to walk through the antiTrump protesters, rather than . . . allow[ing] [them] to turn south, in the direction of safety.” “Soon after following the[se] directions . . . , [they] were struck repeatedly in their faces and heads by anti-Trump protester, Victor Gasca.” “Several other anti-Trump protesters also battered Hernandez and Haines-Scrodin, while Gasca kept up his assault.” As a result, “Hernandez suffered a broken nose [and several] abrasions,” and “Haines-Scrodin . . . suffered [various] bodily injuries.”

Another Attendee, I.P., claims he experienced similar violence due to the City Defendants’ poorly conceived crowd-control plan. Just like Hernandez and Haines-Scrodin, he “exited the east-northeast exit of the . . . Convention Center, where a line of police officers prevented [him] from turning right, to safety” and instead “directed [him] to turn left, into the anti-Trump protesters.” “I.P. was struck in the back of his head” by one protester and “tackled . . . to the ground” by another.” “After being attacked, I.P. made his way [back] to [the] police skirmish line, and was only later allowed to cross the line to safety.”

These allegations are sufficient to survive a qualified immunity defense… twice. The district court found the officers’ actions could not be excused under two theories. First, it could be credibly alleged the department did not adequately plan for the event, eventually resulting in this debacle. Alternately, it could be argued the officers increased the risk of harm by funneling rally attendees directly into a crowd that meant to do them harm. Either way, officers created this danger to leaving attendees and that particular Constitutional point has been settled for more than a decade.

The officers argued they created no more danger than already existed. Their defense was basically this: anti-Trump protesters would have beaten up pro-Trump rally attendees whether or not we showed up to “police” the event. The appeals court vehemently disagrees.

The argument proves too much. If the Officers could avoid liability because the Rally was already dangerous and the Attendees were bound to be hurt, so too could the officer in Wood on grounds that the plaintiff was traveling through a high-crime area, the officers in Penilla because the plaintiff was already severely ill, and the officer in Kennedy on grounds that the plaintiff’s neighbor was known to be unstable and violent. Under the Officers’ theory, liability would only attach when an official does “more than simply expose the plaintiff to a danger that already existed.”

What happened here, the court reminds the defendants, is that officers refused to let attendees steer away from the protesters to find other ways to exit the rally. Indeed, officers directed exiting attendees directly into the anti-Trump crowd. The danger may have already existed, but officers ensured attendees would have to face that danger head on.

Attendees allege here they would have made it “to safety” had the Officers not affirmatively directed them into the crowd of protesters. Accordingly, they have alleged sufficiently this prong of their state-created danger claim.

Not only does the state-created danger claim survive, but so do the plaintiffs’ allegations of deliberate indifference.

Like the officers in Wood, Munger, and Kennedy, the Officers here were aware of the danger to the plaintiffs—they knew the anti-Trump protesters posed an immediate threat to the Attendees. According to the FAC, “as early as [6 p.m.] the day of the Rally, the San Jose police warned all officers deployed around [the] Rally that assaults had already been reported outside the [Convention Center].” And throughout the Rally, the Officers “witnessed the many violent criminal acts perpetrated by dozens of anti-Trump protesters” and yet continued to “direct[] [the Attendees] into the mob.” The allegations here, if true, demonstrate the Officers “act[ed] with deliberate indifference to a known [and] obvious danger.” Patel, 648 F.3d at 971–72 (citation and internal quotation marks omitted).

Indeed, the Officers’ actions are in some ways even more culpable than those of the officer in Kennedy. The Court there found the officer was deliberately indifferent because he was aware of Michael’s past acts of violence—that he “had . . . beaten [his girlfriend] with a baseball bat” and had once “li[t] a cat on fire.” Kennedy, 439 F.3d at 1064. Here, the Officers were not only aware that Trump rallies had drawn violent crowds in the past but had also received reports of violence on the day of the Rally and witnessed the violence firsthand during the Rally.

This is what happens when officers read the 2005 Supreme Court decision on “protect and serve” and decide it means they can do the exact opposite (“ignore and endanger?”) and still escape liability. They can’t, not when the violations are this blatantly obvious. There were other exit paths available to rally attendees. Officers decided they had only one — one that ran right through people just waiting to take a swing at people whose politics they disagreed with. And for that, they’ll be forced to defend themselves against these allegations and possibly allow San Jose taxpayers to find out exactly how expensive deliberate indifference is.

Filed Under: police, qualified immunity, trump rally