Ninth Circuit Holds that Injured Trump Supporters’ Lawsuit Against Police Department Can Proceed

Can attendees of a political rally hold officers liable for failing to protect them from counter-protesters? The Ninth Circuit says maybe, and allowed Juan Hernandez, et al. v. City of San Jose, a lawsuit brought by Trump supporters injured at a rally, to proceed forward.


On June 2, 2016, then-Presidential candidate Donald Trump held a political rally at a convention center in San Jose, California. The San Jose Police Department expected between 12,000 and 15,000 people to attend.

In the lawsuit against the city and its officers, Plaintiffs allege that the Police Department was aware that Trump rallies in other cities had “spurred violent anti-Trump protests,” and it took several steps to prepare for the Rally. For example, the City requested 50-70 additional officers and fitted many of the officers with riot gear. About 250 officers patrolled the Rally on June 2, 2016.

According to the lawsuit, the City normally has a “zero tolerance” approach to violent protesters by making targeted arrests during the protests. However, the lawsuit stated that the City took an “entirely different” approach: “the City Defendants instructed all officers to stand by, watch as the attacks occurred, and not intervene” because “intervention might cause a riot.” The Attendees claim the Officers looked on as they were “battered by several anti-Trump protesters, including, in some instances, being struck in the head and face, kicked in the back, spat upon, and otherwise harassed and assaulted.”

The lawsuit also alleges that officers directed attendees “into the mob of violent protesters” waiting outside the convention center and actively prevented them from leaving through alternative exits. The lawsuit claims that as a result, many of the attendees “were beaten, victimized by theft, and/or had objects such as bottles and eggs thrown at them.”

Based on these allegations, the attendees brought a class action against the City and its officers for failing to protect them.

City’s Motion to Dismiss & Appeal

The City of San Jose filed a Motion to Dismiss, arguing that the officers were entitled to qualified immunity.[1]  Qualified immunity is a defense which protects government officers from liability as long as their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”  The district court denied the motion, and the City appealed to Ninth Circuit.

The Ninth Circuit affirmed the District Court’s decision to deny the Motion to Dismiss, and held that plaintiffs could proceed with their lawsuit because the lawsuit had allegations stating that the Officers (1) affirmatively placed them in danger, and (2) acted with “deliberate indifference” to a known or obvious danger in subjecting them to that danger.

The Ninth Circuit recognized that “As a general rule, members of the public have no Constitutional right to sue [public] employees who fail to protect them against harm inflicted by third parties.” However, it noted that there is an exception to this rule: when government employees “affirmatively place” a plaintiff in a position of danger or expose an individual to danger which he or she would not have otherwise faced.

The Ninth Circuit held that if plaintiffs’ allegations were proven that officers steered attendees into a mob of counter-protesters and prevented them from leaving safely through alternative exits, then the plaintiffs may be able to prevail on their claim. The Court found that there was a similar case that clearly establishes that cities can be liable for “state-created” dangers in the crowd-control context, citing to a case brought against the police for abandoning their enforcement plan during a Mardi Gras celebration.

The Ninth Circuit also stated that here, there were allegations that the police knew anti-Trump protesters posed an “immediate threat” to attendees.

Finally, the Ninth Circuit also said that this “one of those rare cases” in which the alleged constitutional violation “is so ‘obvious’ that we must conclude … qualified immunity is inapplicable, even without a case directly on point.”


The outcome of this case is yet to be seen. The police officers may be able to prove that plaintiffs’ allegations are not true and they did not increase the risk to the rally attendees.  The City will also address the Monell claims against them.

Nonetheless, this case provides a valuable lesson that it is important for law enforcement to plan for what could potentially be heated public events. While it is impossible to prevent every unfortunate incident, a City can be sued if it ignores obvious risks and even worse—increases the potential risk to people.

[1] The Motion to Dismiss was also brought on the grounds that the City was not liable for the Officers’ actions under Monell.  However, because the Ninth Circuit indicated that it did not have jurisdiction to analyze the matter, it did not reach this issue.

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