SAN FRANCISCO, Calif. (CN) – A Ninth Circuit panel appeared poised to allow President Donald Trump supporters pursue their negligence claims against San Jose, California, regarding a dust-up between them and protesters at a campaign rally in 2016.
“There was an angry mob at the end of one exit while police said the other exits were blocked,” said Circuit Judge William Fletcher during the Monday hearing. “That sounds like the state created danger.”
San Jose’s attorney Matthew Pritchard argued the police officers accused of negligence are entitled to immunity because they couldn’t have known their crowd-control decisions were potentially violating constitutional rights of rally attendees.
Furthermore, Pritchard argued the rally attendees were aware of the potential peril in going to a rally for Trump, who was controversial in San Jose and whose campaign events had been prone to outbreaks of physical conflict.
“Take the state action out of the picture, you still have a situation with a potential to be dangerous,” he said. “It’s the nature of free-speech events that attendees could face political opponents that may become violent.”
Harmeet Dhillon, who argued the case on behalf of rally attendees, said the police actively created unnecessary danger by blocking off alternative exits and funneling the crowd into the teeth of a seething mob of anti-Trump protesters.
“It was so shocking, she said. “The police were sending them into danger.”
She also said whether police knew deficient crowd-control decisions could pose constitutional questions is ultimately irrelevant.
“It’s a circumstance where police should have known they were creating a dangerous situation,” Dhillon said.
Fletcher wasn’t the only judge who seemed to side with Dhillon.
“It seems like they had to run the gauntlet,” Circuit Judge Andrew Kleinfeld said of the plaintiffs.
Kleinfeld noted San Jose appealed a motion to dismiss, the phase of court cases inherently favorable to plaintiffs.
“Summary judgment is going to be a lot worse for you,” he said.
Dhillon acknowledged she had a “hard row” but requested the right to perform discovery and depose police officers.
The San Francisco-based lawyer and active member of the California Republican Party first brought the case after a rally for then-candidate Trump in June 2016 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 barricading the street to prevent them from turning south.
According to the plaintiffs, this directed the crowd right into the fervent anti-Trump supporters, many of whom were violently disposed toward rally attendees.
The situation quickly turned violent as Trump supporters were assaulted by protesters, and videos of it were posted on 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 were dismissed by U.S. District Judge Lucy Koh last March. Koh let the negligence claims go forward and San Jose promptly appealed.
The panel, rounded out by Senior Circuit Judge Dorothy Wright Nelson, took the matter under submission.