In Hernandez v. City of San Jose, the 9th Circuit Court of Appeals, on interlocutory appeal, affirmed denial of a motion to dismiss based on qualified immunity. The plaintiffs, who attended a rally for then-presidential candidate Donald Trump, alleged that police officers who knew that a mob around the rally had attacked Trump supporters previously that evening, yet shepherded the attendees into the group of protesters and actively prevented the attendees from exiting via a route that would not take them through the protesters. They alleged that the officers were liable under 42 U.S.C. section 1983 for violating their due process rights, and that the city was liable because the police chief ratified the officers' acts by praising the officers afterward.
The appellate panel agreed that based on the allegations of the complaint, the officers were not entitled to dismissal based on qualified immunity. The facts alleged adequately stated a case against the officers for violation of the attendees' due process rights based on the "state-created danger" doctrine, because if proven they would show the officers created a danger of harm from third parties to the protesters that would not have otherwise existed; and that they did so with deliberate indifference, because they knew of the potential danger from the protesters. Further, the alleged acts violated clearly-established law. 9th Circuit case law established that the state-created danger applies to the crowd-control context, although that case found no constitutional violation under the facts of that case. This was one of the rare situations where the violation was so obvious that a case directly on point was not necessary to clearly establish that the officers' actions would violate the plaintiffs' constitutional rights. The panel also ruled that the appellate court had no jurisdiction to consider the city's interlocutory appeal, because the city's alleged liability in the case was not inextricably intertwined with the issue of whether the officers were entitled to qualified immunity.