The Ninth Circuit granted attendees of a Trump rally who suffered violence at the hand of protesters a win on Friday, denying qualified immunity to the police who they say directed them into the path of danger.
A Ninth Circuit panel ruled against the city of San Jose, finding that claims police officers violated the rights of attendees by steering them toward an angry crowd of protesters and then doing little when chaos and violence erupted are credible enough to deny police recourse to immunity.
“Because the officers placed them in danger, which resulted in their injuries, and their rights were clearly established at the time of the rally, the attendees contend we should deny the officers qualified immunity. We agree,” U.S. Circuit Judge Dorothy Nelson wrote on behalf of the unanimous panel.
The three-judge panel — also comprised of Circuit Judges Andrew Kleinfeld and William Fletcher — only considered the narrow question of qualified immunity and did not rule on whether the police violated rally attendees’ rights.
Nevertheless, Harmeet Dhillon, attorney for the plaintiffs, celebrated the win.
“It’s a total rejection of the government’s position as expressed during oral argument,” Dhillon said in an interview. “We’re very pleased, and there’s much more strength in this opinion than we expected.”
City of San Jose Attorney Richard Doyle said he will discuss whether to appeal en banc or to the Supreme Court in the coming days.
“We got the mayor and police chief dismissed from the case earlier,” Doyle said in an email. “We tried to do the same here with respect to certain police officers.”
The decision will allow plaintiffs to conduct discovery, unless the city appeals.
Dhillon said she anticipates resistance, but hopes to get planning documents from the police to provide insight on who they prepared for the rally that night.
“I heard from many San Jose police officers off the record, and they said they were told to stand down and they were disgusted by that,” Dhillon said.
The judges seemed to favor the plaintiffs’ position during oral arguments in April.
“There was an angry mob at the end of one exit while police said the other exits were blocked,” said Fletcher during the hearing. “That sounds like the state created danger.”
It was a sentiment Nelson echoed in Friday’s decision.
“Being attacked by anti-Trump protesters was only a possibility when the attendees arrived at the rally,” Nelson wrote in the panel’s 28-page opinion. “The officers greatly increased that risk of violence when they shepherded and directed the attendees towards the unruly mob waiting outside the Convention Center.”
But the judges also acknowledged that Dhillon will have to meet a higher bar for plaintiffs to pass as the case proceeds.
The case came about after a June 2016 Trump rally in San Jose turned violent.
Following the roughly hour-long event, Trump supporters were told to leave through the northeast exit of the McEnery Convention Center in downtown San Jose. Outside, San Jose police officers – many in riot gear – directed them north along Market Street while barricades prevented them from turning south.
According to the plaintiffs, this steered the crowd right into fervent anti-Trump supporters.
Protesters assaulted Trump supporters, and videos of it hit the internet the next day. Some of the victims caught on video are the plaintiffs in the case.
Lead plaintiff Juan Hernandez says he left the rally, followed the directions of police and was struck in the face and beaten. He says he suffered a broken nose and other injuries.
Dhillon filed a series of claims, several of which U.S. District Judge Lucy Koh dismissed last March. She advanced the negligence claims and San Jose appealed, but now the case is headed back to her court.
Dhillon called on the city to settle the claims.
“The government makes mistakes and I get that, but ultimately as a taxpayer, I’d like to see the city of San Jose settle this case,” Dhillon said. “It’s not about the money – it’s about stopping these practices and making sure they don’t happen again. Also, if they lose this case the city will be paying my attorney’s fees as well.”
