In Sinclair v. City of Seattle, published March 1, 2023, the 9th Circuit Court of Appeals affirmed dismissal of a suit under 42 U.S.C. section 1983. During the George Floyd protests of 2020, the mayor and police department of the defendant city surrendered a police precinct and a large area of the surrounding neighborhood to protesters for a month. The protesters declared it the Capitol Hill Occupied Protest, or CHOP, zone. The mayor labeled CHOP a "block party" and a "summer of love." A councilmember publicly described CHOP as a "peaceful" occupation. Allegedly, violence, vandalism, open drug use, and other crimes proliferated in the area. The city allegedly provided the protesters with portable toilets, lighting, and other support, including modifying emergency response protocols of the police and fire department. The plaintiff's 19-year-old son, who had special needs, visited CHOP and encountered a man with whom he had a history of antagonism. The man allegedly believed CHOP to be a "no-cop" zone. He was carrying a gun. He shot the plaintiff's son. CHOP participants carried the wounded son to a medical tent they had erected. The fire department had an ambulance stationed a block and a half from that location. A man implored the paramedics to help the son. The paramedics were apparently waiting for a green light from police. The police were allegedly confused about the paramedics' location. The miscommunication caused a response delay of around 20 minutes before first responders arrived to treat the son. By the time they responded, CHOP participants had transported the son to a hospital, where he passed away. The plaintiff alleged the city violated her 14th Amendment due process rights to the companionship of her adult son. She alleged that the city's acts and omissions regarding CHOP created a foreseeable danger for her son and that the city was deliberately indifferent to the danger. The district court dismissed the action for failure to state a claim.
The appellate court agreed that the plaintiff had failed to state a claim. The court initially expressed doubt on whether a parent had a liberty interest in the companionship of an adult child. But because 9th Circuit cases had recognized the existence of such an interest, without analyzing the question, the panel believed itself bound by the precedent. The court therefore addressed the merits of the allegations. The plaintiff alleged the city violated her rights by violating the son's right to be free of state-created danger. The court ruled that the complaint's allegations supported the strong inference that the city acted with deliberate indifference toward the dangers of permitting and encouraging establishment of the CHOP zone. But the city's alleged response after the son's shooting do not show deliberate indifference. The paramedics attempted to provide care. The city did not prevent them from doing so. Instead, the delay in care resulted from a miscommunication. Further, while the allegations support a conclusion that the city created an actual danger, they do not support the danger particularized to the plaintiff that the state-created-danger claim requires. Any danger the city created affected all CHOP visitors equally. The danger was not specifically directed at the plaintiff or her son. The section 1983 claim therefore fails.
One judge wrote a separate concurrence urging that the issue of whether a parent has a liberty interest in the companionship of an adult child be reviewed en banc.
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