SAN FRANCISCO (CN) — A Ninth Circuit panel on Wednesday affirmed the dismissal of a lawsuit against the city of Seattle by a woman whose son died in a shooting during the George Floyd protests in the summer of 2020.
Plaintiff Donnitta Sinclair claimed the city acted with indifference to the danger and lawlessness in the Capitol Hill Occupied Protest zone, an area of about 16 square blocks claimed by protesters during the unrest after Floyd's murder by a Minneapolis police officer. Her 19-year-old son Lorenzo Anderson was shot by 18-year-old Marcel Long, a man with whom Anderson had an antagonistic relationship, when the young man visited the zone.
Long was charged with first degree murder not long after but evaded arrest for nearly a year.
At the time of Anderson’s shooting, an ambulance was a only block away but refused to enter the “no-cop” zone, according to the complaint. CHOP volunteers eventually drove Anderson to a nearby hospital where he later died.
“Video from a local business shows Long talking to Anderson. When Long pulls a gun, Anderson turns and walks quickly away. Long is momentarily held back by others, but breaks away to run after Anderson. Long catches up to Anderson and shoots him at least four times at approximately 2:19 a.m.,” Sinclair said in her complaint.
CHOP volunteers took Anderson to a medical tent and went to nearby first responders for help, video posted to social media showed.
Ambulance personnel, who were a block and a half away, waited for an all-clear from the Seattle Police Department before entering the zone. But after 20 minutes, frustrated volunteers loaded Anderson in a pickup and drove him to a hospital where he did shortly after, Sinclair said in her complaint.
She claimed the city of Seattle's failure to act promptly after the shooting “demonstrated deliberate indifference to the constitutional rights a parent has in the companionship of their children” and caused Anderson’s death.
A federal judge found Sinclair had failed to state a claim and dismissed the case. On appeal, the Ninth Circuit panel agreed with Sinclair that the city “acted with deliberate indifference to the danger it helped create, which caused her son’s death.” But the Seattle Police Department’s decision to abandon CHOP, coupled with then-Seattle Mayor Jenny Durkan’s description of the zone as a supposedly festival-like atmosphere, created “a toxic brew of criminality that would endanger city residents” — but not her son specifically.
“The danger to which the city contributed was not particularized to Sinclair or her son, or differentiated from the generalized
dangers posed by crime, as our precedent requires. We therefore affirm the district court’s dismissal of Sinclair’s suit for failure to state a claim for relief under 42 U.S.C. § 1983," U.S. Circuit Judge Ryan Nelson, a Donald Trump appointee, wrote for the panel.
Nelson also wrote a concurrence in which he urged the court to fix its circuit split in which the Ninth Circuit has implicitly recognized a substantive due process right to the companionship of one’s grown children — an extension of due process the Supreme Court advised against in Washington v. Glucksberg.
"There is no good reason why we should even reach the merits of Sinclair’s state-created danger claim. In establishing the right on which her claim depends, our precedent failed to engage in the proper analysis required by Glucksberg (or really any analysis at all)," Nelson wrote in the concurrence. "Had we done so, we should have reached the conclusion that our sister circuits already have: There is no constitutional right to recover for the loss of her companionship with her adult son. We should correct our prior erroneous precedent en banc."
U.S. Circuit Judges Richard Tallman, a Bill Clinton appointee and Danielle Forrest, a Trump appointee, joined the opinion.
Attorney Mark Lindquist who represented Sinclair along with attorneys Philip Talmadge and Aaron Orheim, thinks the question of the circuit split is ripe for the Supreme Court. The Seventh Circuit, Lindquist noted, has found that a state-created danger does not need to be specific to an individual.
“The position of the Seventh Circuit is better public policy because governments can be held accountable for creating a danger to the public at large,” Lindquist said in an email. “Under the reasoning of the Ninth Circuit, governments can only be held accountable for creating a danger if a particular individual is targeted. Citizens are safer, and governments are more accountable, under the Seventh Circuit’s logic. Given the split in circuits, this may be a question for the U.S. Supreme Court.”
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