FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DESIREE MARTINEZ, 

Plaintiff-Appellant, 

 v. 

CHANNON HIGH, 

Defendant-Appellee.

No. 22-16335 

D.C. No. 

1:15-cv-00683-

DAD-SKO 

OPINION

Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, Chief District Judge, Presiding

Argued and Submitted August 22, 2023

San Francisco, California

Filed January 26, 2024

Before: Patrick J. Bumatay, Lucy H. Koh, and Roopali H. 

Desai, Circuit Judges.

Opinion by Judge Desai;

Concurrence in Judgment by Judge Bumatay
2 MARTINEZ V. HIGH

SUMMARY*

Qualified Immunity/State-Created Danger Doctrine

The panel affirmed the district court’s summary 

judgment order granting qualified immunity to Channon 

High, a City of Clovis police officer, in an action brought 

pursuant to 42 U.S.C. § 1983 by Desiree Martinez, alleging 

that Officer High violated her due process rights under the 

state-created danger doctrine when she disclosed Martinez’s 

confidential domestic violence report to Martinez’s abuser 

Kyle Pennington, another Clovis police officer. 

The panel first determined that the district court did not 

abuse its discretion by entertaining Officer High’s 

successive summary judgment motion on remand from this 

court’s decision in Martinez’s prior interlocutory appeal. 

Addressing the merits, the panel held that Officer High 

violated Martinez’s due process rights. Although state 

actors generally are not liable for failing to prevent the acts 

of private parties, an exception to this rule—the “statecreated danger” exception—applies where the state 

affirmatively places the plaintiff in danger by acting with 

deliberate indifference to a known or obvious danger. Here, 

Officer High’s affirmative conduct of disclosing Martinez’s 

confidential complaint to Pennington, whom Officer High 

knew was an alleged abuser, placed Martinez in actual, 

foreseeable danger. Officer High also acted with deliberate 

indifference toward the risk of future abuse, given that she 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
MARTINEZ V. HIGH 3 

knew Pennington was violent and under investigation for 

domestic violence.

The panel nevertheless held that Officer High was 

entitled to qualified immunity because it was not clearly 

established in 2013 that Officer High’s conduct violated 

Martinez’s substantive due process rights. The panel 

clarified that going forward, an officer is liable under the 

state-created danger doctrine when the officer discloses a 

victim’s confidential report to a violent perpetrator in a 

manner that increases the risk of retaliation against the 

victim.

Concurring in the judgment, Judge Bumatay agreed with 

the majority’s conclusion that Officer High was properly 

afforded an opportunity to file a successive summary 

judgment motion and that she was entitled to qualified 

immunity based on the lack of any clearly established 

law. Because no clearly established law existed at the time 

of the incident, it was unnecessary to reach whether 

Martinez’s allegations against Officer High amount to a 

claim under the state-created danger doctrine. 

COUNSEL

Kevin G. Little (argued), Law Office of Kevin G. Little, 

Fresno, California, for Plaintiff-Appellant. 

Suzanne M. Nicholson (argued), Suzanne M. Nicholson 

Attorney at Law, Sacramento, California; Bruce D. Praet, 

Ferguson Praet & Sherman, Santa Ana, California; for 

Defendant-Appellee. 
4 MARTINEZ V. HIGH

OPINION

DESAI, Circuit Judge:

Plaintiff Desiree Martinez appeals the district court’s 

summary judgment order granting qualified immunity to 

Channon High, a City of Clovis police officer. Ms. Martinez 

survived brutal domestic violence at the hands of Kyle 

Pennington, another Clovis police officer with whom Ms. 

Martinez was in a relationship. She sued Officer High under 

42 U.S.C. § 1983 for disclosing her confidential domestic 

violence report to her abuser, one of Officer High’s 

colleagues. We hold that Officer High violated Ms. 

Martinez’s due process rights under the state-created danger 

doctrine, but that right was not yet “clearly established” at 

the time of the violation. We thus affirm.

BACKGROUND1

In February 2013, Ms. Martinez started a romantic 

relationship with Clovis police officer Kyle Pennington. The 

couple moved in together early in their relationship, and Mr. 

Pennington soon became violent. He first physically and 

sexually assaulted Ms. Martinez in April 2013, and a cycle 

of abuse escalated over the next several months.

Ms. Martinez called the police to report Mr. 

Pennington’s abuse on May 2, 2013. Clovis police officers 

responded. One of the responding officers, Officer Kristina 

Hershberger, questioned Ms. Martinez at the scene. Ms. 

Martinez told Officer Hershberger about Mr. Pennington’s 

prior abuse at a hotel in Dublin, California. Before leaving 

1 We construe any disputed facts in Ms. Martinez’s favor. See Scott v. 

Harris, 550 U.S. 372, 378 (2007).
MARTINEZ V. HIGH 5

the scene, Officer Hershberger brought up the Dublin 

incident in front of Mr. Pennington, and Ms. Martinez 

recanted. Officer Hershberger also asked Mr. Pennington 

“what [he] was doing dating a girl like Desiree Martinez” 

and told him “she didn’t think [Ms. Martinez] was 

necessarily a good fit for [him].” The officers left without 

arresting Mr. Pennington. He assaulted Ms. Martinez again 

that night.

On May 29, 2013, Ms. Martinez made an anonymous 

call to the Clovis Police Department to report that Mr. 

Pennington was still abusing her and to seek information 

about her legal rights. Ms. Martinez made this report 

confidentially due to Mr. Pennington’s threats, which made 

her “fear[] great bodily harm or death.” Shortly after, Mr. 

Pennington moved Ms. Martinez to Sanger, a nearby city, to 

“avoid further possible reports to the Clovis Police 

Department.”

Just days after the move, neighbors called 911 after 

witnessing Mr. Pennington physically and sexually assault 

Ms. Martinez, leading Sanger police officers to respond to 

the incident at Mr. Pennington’s home. Despite Ms. 

Martinez’s obvious injuries, the responding officers did not 

arrest Mr. Pennington or issue a protective order until the 

next day. As the officers left, one remarked that Mr. 

Pennington’s family were “good people.” Mr. Pennington 

again abused Ms. Martinez that night.

In early September 2013, Officer High had two phone 

calls with Mr. Pennington. At the time, Officer High worked 

in the Clovis Police Department’s records unit. Phone 

records show that Officer High called Mr. Pennington on his 

cell phone on September 3, and Mr. Pennington called 

Officer High on her cell phone on September 7. Ms. 
6 MARTINEZ V. HIGH

Martinez overheard only one of those calls. It is unclear 

which call she overheard, but her testimony supports an 

inference that she overheard the September 7 call.2

Ms. Martinez likely did not hear the phone call between 

Officer High and Mr. Pennington on September 3. However, 

the September 3 call happened the morning Ms. Martinez 

“was supposed to testify as a witness in his criminal 

preliminary hearing.” After the call, Ms. Martinez suffered 

“abuse and intimidation,” which stopped her from testifying.

A few days later on September 7, Mr. Pennington called 

Officer High again. He spoke to Officer High on 

speakerphone in front of Ms. Martinez. During the call, Mr. 

Pennington asked Ms. Martinez if she was “telling the cops” 

about his abuse, and she responded “no.” Officer High 

interjected: “Yes, she did. I see a report right here.” Officer 

High also told Mr. Pennington that another Clovis police 

officer was under investigation for lying about a “romantic 

relationship” he had with Ms. Martinez.

Immediately after the call, Mr. Pennington inflicted 

“horrific, severe additional abuse” on Ms. Martinez, 

“including both physical and sexual abuse.” Officer High’s 

“contacts on September 3 and 7” provoked Mr. Pennington 

to continue abusing Ms. Martinez until he was arrested after 

a final, “especially brutal beating” on September 18.

PROCEDURAL HISTORY

Ms. Martinez sued in 2015. The operative complaint 

asserted claims against Mr. Pennington, his parents, several 

police officers, and the cities of Clovis and Sanger. Ms. 

2 Whether Ms. Martinez overheard the call on September 3 or 7 does not 

affect our analysis.
MARTINEZ V. HIGH 7

Martinez’s complaint included a § 1983 claim against 

Officer High and other officers for violating her substantive 

due process rights.3 She alleged that Officer High put her in 

greater danger when Officer High disclosed Ms. Martinez’s 

confidential report to Mr. Pennington. Ms. Martinez also 

alleged that the other officers put her in danger when they 

responded to 911 calls, including by failing to advise her 

about her rights, failing to separate her from Mr. Pennington, 

engaging in small talk with Mr. Pennington, and failing to 

arrest him.

All the officers moved for summary judgment on 

qualified immunity grounds. The district court granted 

qualified immunity to every officer except Officer High. As 

for Officer High, the court found that “it was clearly 

established that an officer sharing a domestic violence 

victim’s confidential information to the alleged abuser 

would be a violation of the victim’s substantive due process 

rights.” Officer High did not appeal, but Ms. Martinez 

appealed the order granting qualified immunity to the other 

officers. 

This court affirmed the district court’s grant of qualified 

immunity to the other officers, holding that (1) the officers 

violated Ms. Martinez’s substantive due process right, but 

(2) the right was not “clearly established” in 2013. Martinez 

v. City of Clovis, 943 F.3d 1260, 1276–77 (9th Cir. 2019) 

(“Martinez I”). Relevant here, the court analyzed the conduct 

of Officer Hershberger, one of the responding officers, 

which the district court had not focused on. This court held 

that Officer Hershberger violated Ms. Martinez’s due 

3 Ms. Martinez also brought an equal protection claim against Officer 

High, which the district court dismissed in 2017. Ms. Martinez did not 

appeal that dismissal.
8 MARTINEZ V. HIGH

process rights by emboldening Mr. Pennington to “further 

abuse Martinez . . . with impunity” when Officer 

Hershberger “told Pennington about Martinez’s testimony 

relating to his prior abuse” and said that “Martinez was not 

‘the right girl’ for him.” Id. at 1272. But the court 

nonetheless granted Officer Hershberger qualified immunity 

because the constitutional violation in “this context was not 

apparent to every reasonable officer at the time the conduct 

occurred.” Id. at 1276.

On remand, the district court granted Officer High leave 

to file a successive summary judgment motion on her 

qualified immunity defense “[i]n light of the Ninth Circuit’s 

ruling” in Martinez I. Officer High’s new summary 

judgment motion argued that she too was entitled to 

summary judgment based on this court’s analysis of Officer 

Hershberger’s conduct in Martinez I. The district court 

granted the motion and held that, based on Martinez I, 

Officer High was “entitled to qualified immunity [because] 

it was not clearly established in 2013 that [Officer High]’s 

conduct violated due process.” Ms. Martinez timely 

appealed.

STANDARD OF REVIEW

We review a district court’s decision to accept a 

successive motion for summary judgment for an abuse of 

discretion. Hoffman v. Tonnemacher, 593 F.3d 908, 911–12 

(9th Cir. 2010). We review de novo the district court’s grant 

of qualified immunity on summary judgment. Martinez I, 

943 F.3d at 1269–70. “In doing so, we view the evidence in 

the light most favorable to” the nonmoving party. Id. at 

1270.
MARTINEZ V. HIGH 9

DISCUSSION

I. The district court did not abuse its discretion by 

entertaining Officer High’s successive summary 

judgment motion. 

Ms. Martinez first argues that Officer High “waived her 

qualified immunity defense by failing to raise it in the prior 

appeal” and thus could not file a new summary judgment 

motion. We disagree.

First, the “prior appeal” was Ms. Martinez’s appeal 

challenging the other officers’ qualified immunity—Officer 

High did not appeal. Martinez I, 943 F.3d at 1269 n.13 (“The 

claims against High are not before us.”). Officer High “could 

have taken an interlocutory appeal” from the district court’s 

denial of her summary judgment motion. Rivero v. City and 

County of San Francisco, 316 F.3d 857, 863 (9th Cir. 2002). 

“But ‘could have’ is not ‘should have.’” Id. This court has 

“made clear that the rule permitting a defendant to take an 

interlocutory appeal after a denial of a motion based on 

qualified immunity is not a rule requiring the defendant to 

take that appeal.” Id. (emphasis added) (citing DeNieva v. 

Reyes, 996 F.2d 480, 484 (9th Cir. 1992)). Officer High’s 

decision not to appeal the denial of her first summary 

judgment motion thus does not bar her from re-raising her 

qualified immunity defense in a subsequent summary 

judgment motion.

Nor was Officer High barred from filing a second 

summary judgment motion. Nothing in Rule 56 prohibits 

successive motions. Fed. R. Civ. P. 56(b) (allowing parties 

to “file a motion for summary judgment at any time until 30 

days after the close of all discovery” unless the court or local 

rule says otherwise (emphasis added)). And “a district court 

may permit successive motions for summary judgment on 
10 MARTINEZ V. HIGH

qualified immunity.” Hoffman, 593 F.3d at 910; see also

Behrens v. Pelletier, 516 U.S. 299, 306–11 (1996) (holding 

that a defendant could immediately appeal the denial of his 

successive motion asserting qualified immunity).

District courts may “weed out frivolous or simply 

repetitive motions.” Knox v. Sw. Airlines, 124 F.3d 1103, 

1106 (9th Cir. 1997). But Officer High’s second motion was 

neither frivolous nor simply repetitive, and the district court 

was free to entertain it. Hoffman, 593 F.3d at 911. Officer 

High filed her second motion after she hired new counsel and 

after this court decided Ms. Martinez’s prior appeal 

challenging other officers’ qualified immunity. The second 

motion relied heavily on this court’s opinion in Martinez I, a 

decision unavailable to Officer High when she filed her first 

motion.

All told, the district court did not abuse its discretion by 

considering Officer High’s second summary judgment 

motion. 

II. The qualified immunity framework.

Now we turn to the merits. An officer is entitled to 

qualified immunity unless the plaintiff shows that (1) the 

officer violated the plaintiff’s constitutional right and (2) the 

“right was clearly established at the time of the incident.” 

Martinez I, 943 F.3d at 1270. Because this court may 

consider either prong first, it need not decide the first prong 

if the second is dispositive. Pearson v. Callahan, 555 U.S. 

223, 236 (2009). But deciding both prongs is “often 

beneficial” because it “promotes the development of 

constitutional precedent.” Id. That is true here. 

For one thing, the constitutional question is “in an area 

where this court’s guidance is needed.” Martinez I, 943 F.3d 
MARTINEZ V. HIGH 11

at 1270 (alteration omitted) (quoting Horton ex rel. Horton 

v. City of Santa Maria, 915 F.3d 592, 602 (9th Cir. 2019)). 

Indeed, our application of Martinez I in this case will guide 

future courts when addressing due process questions in 

similar contexts. What’s more, the parties have repeatedly 

briefed the constitutional question in the district court and 

this court. Thus, we address both prongs to “best facilitate 

the fair and efficient disposition of [this] case.” Pearson, 555 

U.S. at 242.

A. Officer High violated Ms. Martinez’s due process 

rights. 

Ms. Martinez’s § 1983 claim stems from the Due Process 

Clause of the Fourteenth Amendment. Because the Due 

Process Clause is a “limitation on state action,” state actors 

generally are not liable for failing “to prevent acts of private 

parties.” Murguia v. Langdon, 61 F.4th 1096, 1106 (9th Cir. 

2023) (emphasis omitted), cert. denied, No. 23-270, 2024 

WL 71941 (Jan. 8, 2024). But one exception to this rule 

applies “when the state affirmatively places the plaintiff in 

danger by acting with deliberate indifference to a known or 

obvious danger.” Id. (quoting Patel v. Kent Sch. Dist., 648 

F.3d 965, 971–72 (9th Cir. 2011)). Ms. Martinez invokes 

that exception here.4

To establish the “state-created danger” exception, a 

plaintiff must prove two things. The officer’s “affirmative 

4 In her supplemental brief, Ms. Martinez raises for the first time several 

other constitutional arguments. Dkt. 48 at 4–6. We decline to consider 

those arguments because Ms. Martinez failed to make them below. Smith 

v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“As a general rule, we 

will not consider arguments that are raised for the first time on appeal.”). 

We thus deny as moot Officer High’s motion for leave to file objections 

to Ms. Martinez’s supplemental brief, Dkt. 51.
12 MARTINEZ V. HIGH

conduct” must expose the plaintiff to a foreseeable danger 

that she would not otherwise have faced. Id. at 1111; see also 

Martinez I, 943 F.3d at 1271. And the officer must act “with 

‘deliberate indifference’ to a ‘known or obvious danger.’” 

Murguia, 61 F.4th at 1111 (quoting Patel, 648 F.3d at 974); 

Martinez I, 943 F.3d at 1271. Both requirements are met 

here. 

1. Officer High’s affirmative conduct placed Ms. 

Martinez in actual, foreseeable danger. 

First, Officer High’s affirmative conduct increased Ms. 

Martinez’s risk of abuse by Mr. Pennington. An officer’s 

statements about a victim to a violent perpetrator can 

increase the risk of retaliation. In Martinez I, for example, 

this court held that Officer Hershberger’s disclosure of Ms. 

Martinez’s reported abuse “provoked” Mr. Pennington, and 

her “disparaging comments” about Ms. Martinez 

emboldened Mr. Pennington “to believe that he could further 

abuse Martinez, including by retaliating against her for her 

testimony, with impunity.” Martinez I, 943 F.3d at 1272. 

Likewise in Okin v. Village of Cornwall-On-Hudson Police 

Department, the Second Circuit held that officers who 

“openly expressed camaraderie with [an abuser] and 

contempt for [the victim]” increased the danger to the victim 

“because they conveyed to [the abuser] that he could 

continue to engage in domestic violence with impunity.” 577 

F.3d 415, 430–31 (2d Cir. 2009). And in Kennedy v. City of 

Ridgefield, this court held that officers “affirmatively created 

a danger to” the plaintiff that “she otherwise would not have 

faced” when they notified an alleged perpetrator about the 

plaintiff’s allegations against him “before the [plaintiff and 

her family] had the opportunity to protect themselves from 

his violent response to the news.” 439 F.3d 1055, 1063 (9th 

Cir. 2006). 
MARTINEZ V. HIGH 13

So too here. Officer High told Mr. Pennington about Ms. 

Martinez’s confidential domestic violence report. She did so 

after hearing Ms. Martinez answer “no” when Mr. 

Pennington—the alleged abuser—asked her whether she 

was “telling the cops” about his abuse. Officer High also 

shared other information endangering Ms. Martinez,

including that Ms. Martinez had a romantic relationship with 

another police officer. In other words, Officer High’s 

disclosure was coupled with comments that Ms. Martinez 

was lying and also had a relationship with Mr. Pennington’s 

colleague. A reasonable jury could find that Officer High’s 

comments put Ms. Martinez at risk of violent retaliation. 

The risk was also foreseeable. Officer High obviously 

knew that Mr. Pennington was an alleged abuser because the 

information she disclosed to him was a domestic violence 

report against him. And when Officer High spoke with Mr. 

Pennington, he had been arrested for domestic violence and 

was subject to a restraining order. Officer High also admitted 

in her deposition that she knew the Clovis Police Department 

put Mr. Pennington on leave because of “something 

involving a female.” Worse, Officer High knew Ms. 

Martinez was in the room with Mr. Pennington when Officer 

High disclosed the report. The danger was obvious. Shortly 

after learning from Officer High that Ms. Martinez reported 

his abuse to the police, Mr. Pennington brutally sexually and 

physically assaulted Ms. Martinez. The assaults Ms. 

Martinez suffered after Officer High’s disclosure “were 

objectively foreseeable” as “a matter of common sense.” 

Martinez I, 943 F.3d at 1274.5

5 In fact, Officer High’s counsel conceded at oral argument that the harm 

was foreseeable.
14 MARTINEZ V. HIGH

Construing the facts in Ms. Martinez’s favor, Officer 

High placed her “in greater danger” by disclosing her 

confidential complaint to Mr. Pennington while conveying 

contempt for Ms. Martinez. Martinez I, 943 F.3d at 1272; 

see also Okin, 577 F.3d at 429–30 (holding that reasonable 

jurors could find that police officers’ conduct “implicitly but 

affirmatively encouraged [the perpetrator’s] domestic 

violence”). 

2. Officer High was deliberately indifferent to a 

known or obvious risk.

Second, Officer High “acted with deliberate indifference 

toward the risk of future abuse.” Martinez I, 943 F.3d at 

1274. In non-detainee cases like this one, the deliberate 

indifference standard is subjective: The officer must “know 

that something is going to happen but ignore the risk and 

expose the plaintiff to it.” Murguia, 61 F.4th at 1111 

(cleaned up); see Martinez I, 943 F.3d at 1274. That does not 

mean the officer must “know with certainty that the risk will 

materialize or intend for the plaintiff to face the risk.” 

Murguia, 61 F.4th at 1117 n.16. The officer need only “take 

an intentional action with knowledge that his actions will 

expose the plaintiff to an unreasonable risk.” Id.

This court has held that knowledge about an abuser’s 

history of violence constitutes deliberate indifference. For 

example, in Kennedy, the officers knew that an alleged 

perpetrator “had a predilection for violence and was capable 

of the attack he in fact perpetrated” on the plaintiff’s family. 

439 F.3d at 1064. The officers thus “knew that telling [the 

perpetrator] about the allegations against him without 

forewarning the [plaintiff’s family] would place them in a 

danger they otherwise would not have faced.” Id. So too in 

Martinez I, this court held that—given Mr. Pennington’s 
MARTINEZ V. HIGH 15

“violent tendencies”—“a reasonable jury could find that 

disclosing a report of abuse while engaging in disparaging 

small talk with Pennington . . . constitutes deliberate 

indifference.” Martinez I, 943 F.3d at 1274. And most 

recently in Murguia, this court held that a state official “was 

aware of the obvious risk of harm [a mother] presented” to 

her children because the official knew about the mother’s 

“history of abuse.” 61 F.4th at 1116.

Like the officials in Kennedy, Martinez I, and Murguia, 

Officer High knew Mr. Pennington was violent. She knew 

Mr. Pennington was under investigation for domestic 

violence. She worked in the Clovis Police Department’s 

records unit and saw Ms. Martinez’s report of Mr. 

Pennington’s abuse. Not only was the department already 

investigating Mr. Pennington for domestic violence against 

an ex-girlfriend, Martinez I, 943 F.3d at 1274, but there was 

an active criminal case against him for assaulting Ms. 

Martinez. Officer High had also completed domestic 

violence training and understood that a victim’s confidential 

reports should not be disclosed to the abuser. Yet she took 

Mr. Pennington’s call and told him about Ms. Martinez’s 

confidential report for no apparent reason other than to 

discredit Ms. Martinez. And she knew Ms. Martinez was in 

the room with Mr. Pennington and would thus be exposed to 

his violent reaction. These facts no doubt show “deliberate 

indifference to a known or obvious danger.” Martinez I, 943 

F.3d at 1274.

* * *

In sum, taking the facts in Ms. Martinez’s favor, Officer 

High violated Ms. Martinez’s due process rights by 

knowingly placing her in greater danger of Mr. Pennington’s 

assaults. 
16 MARTINEZ V. HIGH

B. Ms. Martinez’s constitutional right was not 

“clearly established” when Officer High engaged 

in the challenged conduct.

Though Ms. Martinez established a constitutional 

violation, Officer High is entitled to qualified immunity 

because existing case law in 2013 did not make clear that 

Officer High’s conduct violated Ms. Martinez’s substantive 

due process rights. “There need not be a case directly on 

point” to defeat an officer’s qualified immunity defense, but 

existing case law must have put “every reasonable official” 

on notice that their conduct was unconstitutional. Martinez 

I, 943 F.3d at 1275. The case law also “must be 

‘controlling’—from the Ninth Circuit or the Supreme 

Court—or otherwise be embraced by a ‘consensus’ of courts 

outside the relevant jurisdiction.” Id. (quoting Sharp v. 

County of Orange, 871 F.3d 901, 911 (9th Cir. 2017)). No 

such controlling authority existed in 2013. 

The district court relied on Okin when it first denied 

Officer High qualified immunity. And Ms. Martinez relied 

on Okin again on remand. In that case, the Second Circuit 

held that police officers violated a domestic violence 

victim’s due process rights when they emboldened the 

abuser “by fostering the belief that his intentionally violent 

behavior will not be confronted by arrest, punishment, or 

police interference.” Okin, 577 F.3d at 437. But we held in 

Martinez I that Okin did not clearly establish Ms. Martinez’s 

due process rights because it had not “been ‘embraced by a 

“consensus” of courts.’” 943 F.3d at 1276 (quoting Sharp, 

871 F.3d at 911). Martinez I established only “[g]oing 

forward”—but not in 2013—that an officer violates a 

victim’s due process rights when the officer engages in 

affirmative conduct much like Officer High’s. Id. at 1276–

77. Like Officer High, Officer Hershberger told Mr. 
MARTINEZ V. HIGH 17

Pennington about Ms. Martinez’s confidential report of his 

prior abuse while also disparaging Ms. Martinez. Id. at 1272. 

We held that this conduct violated Ms. Martinez’s due 

process rights by provoking and emboldening Mr. 

Pennington to retaliate against her later that day, but we 

granted Officer Hershberger qualified immunity because the 

constitutional violation in “this context was not apparent to 

every reasonable officer at the time the conduct occurred.” 

Id. at 1276. That holding applies equally to Officer High.

Kennedy does not require a different result. There, the 

plaintiff told police that her teenage neighbor molested her 

nine-year-old daughter. Kennedy, 439 F.3d at 1057. The 

plaintiff also reported that the neighbor was violent and 

unstable, so the police assured her they would notify her 

before “any police contact with the [neighbor’s] family 

about her allegations.” Id. at 1057–58. The officers later told 

the neighbor about the plaintiff’s allegations without first 

warning the plaintiff. Id. at 1058. When police told the 

plaintiff they had just spoken to the neighbor about the 

allegations, she “became upset” and asked why they didn’t 

warn her. Id. The police assured her they “would patrol the 

area around both her house and the [neighbor’s] house that 

night to keep an eye on [the neighbor].” Id. Because it was 

late and based on the officers’ assurances, the plaintiff 

locked her doors and planned to leave town the next day. Id.

But early the next morning, the neighbor broke in and shot 

the plaintiff and shot and killed her husband. Id.

This court held that the officers were not entitled to 

qualified immunity because “it was clearly established that 

state officials could be held liable where they affirmatively 

and with deliberate indifference placed an individual in 

danger she would not otherwise have faced.” Id. at 1066. 

That broad statement applies equally to this case. But since 
18 MARTINEZ V. HIGH

Kennedy, this court and the Supreme Court have explained 

that “‘clearly established law’ should not be defined ‘at a 

high level of generality.’” White v. Pauly, 580 U.S. 73, 79 

(2017) (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 742 

(2011)). It is instead “the facts of particular cases that clearly 

establish what the law is.” Isayeva v. Sacramento Sheriff’s 

Dep’t, 872 F.3d 938, 951 (9th Cir. 2017). 

Although Kennedy involved a police officer disclosing a 

report to an alleged perpetrator, it did not involve sufficiently 

“similar circumstances” to put the constitutional violation 

“beyond debate” here. White, 580 U.S. at 79 (quoting 

Mullenix v. Luna, 577 U.S. 7, 12 (2015)). The officers in 

Kennedy not only told a violent perpetrator about the 

plaintiff’s allegations without giving her “a reasonable 

opportunity to protect her family” despite promising to do 

so, but they also misrepresented the level of danger by 

assuring her they would patrol the neighborhood. 439 F.3d 

at 1063. This “was an additional and aggravating factor” that 

made the plaintiff and her family “more vulnerable to the 

danger.” Id. Given the officers’ specific false assurances that 

affected the plaintiff’s choices, we cannot say that “every 

reasonable official would have understood” from Kennedy

that an officer violates the constitution by disclosing a report 

to a violent perpetrator. See Martinez I, 943 F.3d at 1275. 

Indeed, this court relied on Kennedy in Martinez I, yet it did 

not hold that Kennedy clearly established Ms. Martinez’s 

due process rights. See id. at 1271–74. 

At bottom, our precedent dictates that no existing 

authority gave Officer High sufficient notice in 2013 that her 

conduct violated due process. 
MARTINEZ V. HIGH 19

CONCLUSION

We affirm the district court’s summary judgment 

granting Officer High qualified immunity because Ms. 

Martinez’s constitutional right was not clearly established in 

2013. But we now clarify that right going forward. An 

officer is liable under the state-created danger doctrine when 

the officer discloses a victim’s confidential report to a 

violent perpetrator in a manner that increases the risk of 

retaliation against the victim.

Officer High’s motion for leave to file objections to Ms. 

Martinez’s supplemental brief, Dkt. 51, is DENIED as moot. 

AFFIRMED.

Bumatay, J., concurring in the judgment: 

It cannot be seriously disputed that the judicially crafted 

“state-created danger exception finds no support in the text 

of the Constitution, the historical understanding of the ‘due 

process of law,’ or even Supreme Court precedent.” 

Murguia v. Langdon, 73 F.4th 1103, 1104 (9th Cir. 2023) 

(Bumatay, J., dissenting from the denial of rehearing en

banc). From the earliest time, it was understood that the due 

process right was “intended to secure the individual from the 

arbitrary exercise of the powers of government.” Hurtado v. 

California, 110 U.S. 516, 527 (1884) (emphasis added). But 

not good enough for us, we’ve expanded due process to 

protect individuals from danger by private parties, so long as 

a government actor does something, somewhere in the chain 

of events. 

As I’ve said previously, it’s a Frankenstein’s monsterlike doctrine, “cobbl[ing] together bits and pieces of 
20 MARTINEZ V. HIGH

standards from other contexts to try to breathe new life into 

substantive due process.” Murguia, 73 F.4th at 1114. And 

unfortunately, it’s a monster that “roams menacingly among 

our circuit courts,” especially the Ninth Circuit. Id. at 1115. 

But because expanding substantive due process feels more 

like “freewheeling judicial policymaking” than exercising 

judgment, we should be reluctant to preside over its growth. 

Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 240 

(2022). 

While I agree with the majority’s conclusion that Officer 

Channon High was properly afforded an opportunity to file 

a successive summary judgment motion and that she was 

entitled to qualified immunity based on the lack of any 

clearly established law in this context, it was simply 

unnecessary to reach whether Desiree Martinez’s allegations 

against Officer High amount to a claim under the statecreated danger doctrine. To decide this case, it is sufficient 

that everyone agrees that no clearly established law existed 

at the time of the incident between Martinez, Officer High, 

and her abuser. As the majority admits, we need not decide 

the first prong of qualified immunity if the second prong is 

dispositive. See Pearson v. Callahan, 555 U.S. 223, 236 

(2009).

And here, the district court did not rule on the first prong 

of whether there’s a constitutional violation. No party 

argued that there was a constitutional violation in their initial 

briefing. It wasn’t until prodded at oral argument by our 

court and forced to file supplemental briefing did the parties 

raise any arguments about a constitutional violation. It was 

unwise to reach the constitutional violation question under 

these circumstances.
MARTINEZ V. HIGH 21

For these reasons, I concur only in the judgment of the 

court.