The U.S. Court of Appeals for the Ninth Circuit ruled Friday that a lawsuit by supporters of Donald Trump against San Jose police officers who allegedly failed to protect them from an anti-Trump riot in June 2016 could proceed, defeating the city’s appeal.
The three-judge panel upheld the lower court’s decision that the officers were not entitled to qualified immunity from suit because they “violated clearly established rights” — assuming, for the moment, that the plaintiff’s factual claims against them were true.
The lawsuit stems from a riot that took place outside the San Jose Convention Center on June 2, 2016 during and after a speech by then-candidate Trump, just days before the California primary. As Breitbart News reported from San Jose at the time, anti-Trump protesters outside the venue chanted profane slogans and tore up an American flag. Later, as Trump supporters left the rally, the mob chased them, beat them, and attacked them in their cars. One woman was pelted with eggs in full view of the national media.
That woman, Rachel Casey, is one of the plaintiffs, who are represented by attorney (and Republican national committeewoman for California) Harmeet Dhillon. Dhillon is also representing engineer James Damore’s in his discrimination suit against Google, and she is suing UC Berkeley for free speech issues, on behalf of Berkeley College Republicans and Young America’s Foundation.
San Jose Mayor Sam Liccardo — a Democrat and Hillary Clinton supporter — blamed Trump for provoking the violence. The local police chief commended the police for showing restraint, even as the mob assaulted people who were simply trying to leave.
The plaintiffs claim that San Jose police failed to arrest the violent anti-Trump demonstrators and allowed Trump supporters to be attacked. Worse, they say, the officers directed them straight toward the waiting mob, even though they were aware of the violence.
The district court agreed that if the allegations were true, the officers had violated the Trump supporters’ constitutional rights. In addition, it appeared they had done so in furtherance of an official municipal policy. The appeals court upheld that decision. Citing precedent, the three judges unanimously held that this was “one of those rare cases” where the violation of rights was “obvious.”
The case will now be sent back down to the district court, where Judge Lucy H. Koh, a Barack Obama appointee, presides.
Update: Dillon commented to Breitbart News on Friday afternoon, via email:
On behalf of our clients, Trump supporters who were injured by San Jose’s deliberate actions, we are very pleased with the 9th Circuit’s ruling in our favor today, allowing the lawsuit to move forward and denying qualified immunity to the San Jose police officials we sued more than two years ago. Our lawsuit seeks to vindicate the rights of all Americans who want to attend a political rally and not be punished for by beating beaten while the police, who put them in danger, stand and watch. We look forward to our day in court, but meanwhile call in San Jose to cease its policies that put citizens in danger when they exercise their Constitutonal rights to free speech and free assembly.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.
HERNANDEZ V. CITY OF SAN JOSE
The panel affirmed the district court’s denial of qualified
immunity to police officers and dismissed the City of San
Jose’s appeal in a 42 U.S.C. § 1983 action brought by
attendees of a political rally for Donald Trump who were
attacked by anti-Trump protesters as they attempted to leave
The panel held that based on the allegations in the
operative complaint, which the panel took as true on a motion
to dismiss, the attendees alleged sufficiently that the officers
increased the danger to them by shepherding them into a
crowd of violent protesters and that the officers acted with
deliberate indifference to that danger. The district court
therefore correctly denied the officers qualified immunity.
As for the attendees’ claim against the City, the panel
declined to exercise jurisdiction over it because it was not
inextricably intertwined with the qualified immunity issue