Shen Oppossition To MSJ On NonFirst Amendment Claims

Case 3:17-cv-02478-JD Document 206 Filed 03/18/19 Page 1 of 14
DARRYL D. YORKEY (SBN 280351)

1 P.O. Box 9636
Berkeley, California 94709
2 Telephone: (510) 221-6874
Fax: (888) 491-5926
3 Email: dyorkey@gmail.com
4 ALAN BECK (SBN 276646)
2962 Harcourt Drive
5 San Diego, California 92123
Telephone: (619) 905-9105
6 Email: alan.alexander.beck@gmail.com
7 CATHERINE A. BEEKMAN (SBN 245605)
940 Adams Street, Suite J
8 Benicia, California 94510
Telephone: (707) 346-3060
9 Fax: (707) 561-6646
Email: cate@beekmancortes.com
10
Attorneys for Plaintiffs Philip Shen, Kevin Chen, and C.E.
11
12
IN THE UNITED STATES DISTRICT COURT
13
FOR THE NORTHERN DISTRICT OF CALIFORNIA
14
15 PHILIP SHEN, et al, ) Case No. 3:17-cv-02478-JD (Lead Case)
16 Plaintiffs, ) 3:17-cv-03657-JD
)
17 v. ) PLAINTIFF PHILIP SHEN’S OPPOSITION
) TO DEFENDANTS’ MOTION FOR
18 ALBANY UNIFIED SCHOOL ) SUMMARY JUDGMENT ON PHILIP
DISTRICT; et al. ) SHEN’S REMAINING CLAIMS
19 Defendants. )
20 ____________________________________)
) Date: April 11, 2019
21 C.E., through his Guardian C.E., ) Time: 10:00 a.m.
Plaintiff, ) Courtroom: 11, 19th Floor
22 ) Judge: Hon. James Donato
v. )
23 )
24 ALBANY UNIFIED SCHOOL )
DISTRICT; et al. )
25 Defendants. )
____________________________________)
26
27
28
PLAINTIFF PHILIP SHEN’S OPPOSTION TO DEFENDANTS’ MOTION FOR Case No. 3:17-cv-02478-JD
SUMMARY JUDGMENT ON PHILIP SHEN’S REMAINING CLAIMS
TABLE OF CONTENTS
1
I. INTRODUCTION ................................................................................................................ 1
2
3 II. FACTS ................................................................................................................................. 1
4 III. ARGUMENT ....................................................................................................................... 3
5 A. Summary Judgment Should be Denied as to Plaintiff Shen’s Fourth

Amendment Claim. ...................................................................................................... 3
6
7 B. Defendants Are Not Entitled to Qualified Immunity on Philip Shen’s

Fourth Amendment Claim Because They Were on Fair Notice That
8 There Conduct Violated the Fourth Amendment. ......................................................... 6
9 C. Plaintiff Shen Has Established the Presence of a State-Created Danger. .......................... 7

10
D. Defendants Are Not Entitled to Qualified Immunity on Mr. Shen’s
11 Fourteenth Amendment Claim. .................................................................................... 8
12 E. Defendants Have Waived Any Argument as to the California Constitution. .................. 10

13 IV. CONCLUSION .................................................................................................................. 10
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-i-
1 TABLE OF AUTHORITIES
2
CASES
3
4 Brower v. County of Inyo, 489 U.S. 593 (1989). ............................................................................... 4
5 Doe v. Haw. Dep't of Educ., 334 F.3d 906, 910 (9th Cir. 2003) .................................................... 4, 6
6 Drummond ex Rel. Drummond v. City of Anaheim, 343 F.3d at 1052 (9th Cir. 2003)........................ 6
7 Harlow v. Fitzgerald, 457 U.S. 800 (1982) ....................................................................................... 8
8 Headwaters Forest Def. v. County of Humboldt, 276 F.3d 1125 (9th Cir. 2002) ............................... 6
9 Hernandez v. City of San Jose, 897 F.3d 1125 (9th Cir. 2018) ...................................................7, 8, 9
10 Kennedy v. City of Ridgefield, 439 F.3d 1055 (9th Cir. 2006), ...................................................7, 8, 9
11 P.B. v. Koch, 96 F.3d 1298 (1996).................................................................................................... 6
12 Maxwell v. Cty. of San Diego, 708 F.3d 1075 (9th Cir. 2013) ........................................................... 8
13 Moreno v. Baca, 400 F.3d 1152 (9th Cir. 2005)................................................................................ 4
14 Munger v. City of Glasgow Police Dep't, 227 F.3d 1082 (9th Cir. 2000)........................................... 7
15 Pearson v. Callahan, 555 U.S. 223 (2009) ....................................................................................... 8
16 Saucier v. Katz, 533 U.S. 194 (2001)................................................................................................ 6
17 State Bd. For Educator Certification v. Lange, 2016 Tex.App. LEXIS 1886 .................................... 4
18 Tekle v. United States, 511 F.3d 839 (9th Cir. 2007). ........................................................................ 6
19 Toledo v. State, 519 S.W.3d 273 (2017) ........................................................................................... 4
20 Wall v. County of Orange, 364 F.3d at 1107 (9th Cir. 2004) ............................................................. 6
21
22 CONSTITUTIONAL PROVISIONS
23
California Constitution, Article I, Section 7 .................................................................................... 12
24
25
26
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1 I. INTRODUCTION
2 From the time that the Instagram account at issue was discovered, Defendant school
3 administrators went to great lengths to show support for the students depicted on the account
4 (“victims”) and those community members who stood with the victims, with no demonstrated
5 concern for the well-being, education, or rehabilitation of the students involved with the account.
6 Defendants’ failure of leadership culminated in the poorly planned and executed SEEDS event on
7 March 30, 2017, that ended in Plaintiff Philip Shen being physically battered by an angry, protesting
8 student on school grounds as school staff helped Philip Shen escape the school through a mob of
9 students.
10 Defendants made specific decisions that contributed to anger of the protesting students, and
11 placed Plaintiff Philip Shen in danger. First, scheduling the location of the SEEDS event directly
12 next to the students’ planned protest was poorly conceived, ill-advised, and dangerous. Second,
13 Defendant Anderson permitted students who were not depicted on the account to participate in the
14 SEEDS session as “victims,” which created an imbalance of power in the session. Finally, Defendant
15 Williams sent an email about a noose to the entire Albany High School community while the
16 restorative justice session was occurring, and immediately before the sit-in protest was planned. This
17 confluence of bad decisions placed Plaintiff Philip Shen in a predictably dangerous situation in
18 which he found himself confined in Albany High School and unable to escape safely for several
19 hours.
20 II. FACTS
21 The Sit-In
22 Defendant Anderson knew prior to March 30, 2017, that students were planning a sit-in in
23 protest of the return of the account followers to Albany High School, that the sit-in was planned to
24 occur directly outside the location of the SEEDS session, and that the students planning the sit-in
25 were angry that the Instagram account followers were permitted to return to school. See Exhibit F to
26 Defendant Anderson’s Declaration filed with Defendants’ Motion for Summary Judgment
27 [“Anderson Decl.”].
28
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1 In their motion Defendants repeatedly point to the lack of any violence at prior community
2 and student gatherings to excuse their response (or lack thereof) to the sit-in that occurred outside of
3 the SEEDS session. While there may not have been any explicit statement of violent intentions at
4 prior gatherings to support diversity and protest racism, the nature of the March 30, 2017 sit-in was
5 different. Defendant Anderson knew the student sit-in was planned not as a show of solidarity, but in
6 protest to the return of the account followers, because parents forwarded him student
7 communications that expressed as much. See Anderson Decl., Exhibit F (an email sent by a parent to
8 Defendant Anderson on March 29, 2017, along with forwarded screenshots from students planning
9 the sit-in stating, “…spread the word about taking part in a sit in tomorrow to protest letting these
10 people come back to [Albany High School]…please share this with basically anyone you know who
11 also believes these ‘harmers’ should not be let back into our school.”). These communications also
12 showed clearly that the students planning the sit-in were angry that followers of the account were
13 being allowed to return to school. Id. (screenshots in which students refer to the returning students as
14 “fucking racists” and “harmers.”).
15 Defendants’ motion refers to three emails Defendant Anderson received on the evening of
16 March 29, 2017, and purports to attach those emails in Exhibit F, but Exhibit F only contains one
17 such email. The remaining are attached here as Exhibits 2 and 3.
18 Despite knowing of the planned sit-in and its location, Defendant Anderson did not move the
19 location of the restorative justice session, nor did he warn the SEEDS facilitators of the planned sit-
20 in. Exhibit 1 (Decl. of Jeffery Sloan / SEEDS Report). Had Defendant Anderson told SEEDS
21 facilitators about the sit-in, they facilitators would have requested the restorative justice session be
22 moved to another location to avoid the situation that ultimately occurred. Exhibit 1.
23 The Inclusion of Other “Victims”
24 Defendant Anderson permitted several students who were not themselves depicted on the
25 account to participate in the SEEDS session on March 30, 2017. Exhibit 1. This occurred without
26 prior knowledge or approval by the SEEDS facilitators. Exhibit 1. SEEDS facilitators would have
27 advised against including these additional “victims,” as it creates an imbalance of power in the
28 restorative justice session and hinders the effectiveness of the process. Exhibit 1.
-2-
1 The Noose Email

2 Defendant Williams received a report from Defendant Pfohl that the police were
3 investigating the possible presence of a noose on the morning of March 30, 2017. School officials
4 communicated about the situation. See Exhibits 4 and 5. Despite some warnings to the contrary,
5 before the police completed their investigation into the rope that was found Defendant Williams sent
6 an email to the entire Albany High School community stating the police were investigating a
7 reported noose. See Exhibit B to Williams’s Declaration filed with Defendant’s Motion for
8 Summary Judgment [“Williams’s Decl.”]; Exhibits 4 and 5. Defendant Williams sent this email
9 while the restorative justice session was occurring, and immediately before the sit-in protest was
10 scheduled to occur. Williams’s Decl., Exhibit B.
11 Defendant Williams sent this email at 10:47 a.m., with full knowledge that the police had not
12 completed their investigation, and that students were planning a sit-in to protest the return of the
13 account followers during the break beginning just minutes after the email was sent. Pfohl’s
14 Declaration filed with Defendants’ Motion for Summary Judgment [“Pfohl’s Decl.”], ¶ 26. Very
15 shortly thereafter the police completed their investigation and determined the rope was not in fact a
16 noose. Williams’s Decl., ¶ 17; Exhibit 6.
17 After Defendant Williams’s email went out, word predictably reached the students inside the
18 restorative justice session that a noose was found outside, and the session quickly devolved. Exhibit
19 1. Students protesting outside also became more agitated following the noose email. Exhibits 1, 5,
20 and 7.
21 III. ARGUMENT
22 A. Summary Judgment Should be Denied as to Plaintiff Shen’s Fourth Amendment
Claim.
23
Mr. Shen suffered a violation of his Fourth Amendment rights. School officials encouraged
24
Mr. Shen and the other account followers to attend the March 30, 2017 restorative justice session to
25
facilitate their re-entry into the school. See Anderson’s Decl., Exhibit E (stating the SEEDS session
26
is for the purpose of making the students’ “return as manageable as possible for them and their
27
classmates”). While Defendant Anderson’s email states the SEEDS meeting was voluntary, it goes
28
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1 on to state students would be permitted to go home after the session and their absences would be
2 excused on both Thursday and Friday to give them time to “reflect.” Anderson’s Decl., Exhibit E.
3 Nothing in Defendant Anderson’s email states students’ absences would be excused if they did not
4 participate in the SEEDS session, nor does the email describe any other re-entry services in the event
5 a student opted not to attend the SEEDS event. Id. Defendant Anderson’s email basically gave
6 Plaintiff Shen the choice of returning to school as normal, on his own, with no assurance of a safety
7 plan or services; or attending the SEEDS session. Not surprisingly, Mr. Shen chose to attend the
8 SEEDS event.
9 In the context of school discipline, to determine whether a Fourth Amendment violation
10 occurred, the court must first determine whether a school official intentionally terminated the
11 student’s freedom of movement. See Brower v. County of Inyo, 489 U.S. 593, 596-597 (1989).
12 Second, the court must address whether the seizure was unreasonable under the circumstances.
13 Moreno v. Baca, 400 F.3d 1152, 1156 (9th Cir. 2005) (“The Fourth Amendment does not proscribe
14 all state-initiated searches and seizures; it merely proscribes those which are unreasonable.”). As
15 such, “[i]n applying the Fourth Amendment in the school context, the reasonableness of the seizure
16 must be considered in light of the educational objectives [the school official] was trying to achieve.”
17 Doe v. Haw. Dept. of Educ., 334 F.3d 906, 909 (9th Cir. 2003).
18 In considering the question of whether there was an intentional detention of Plaintiff Shen,
19 this Court must take into consideration the “uneven power imbalance inherent in a teacher-student
20 relationship makes a student susceptible to coercion and unable to easily refuse an educator's
21 implicit or explicit demands. This power imbalance is present in secondary schools whether the
22 student is sixteen, seventeen, or eighteen.” Toledo v. State, 519 S.W.3d 273, 281 (2017); see also
23 State Bd. For Educator Certification v. Lange, 2016 Tex.App. LEXIS 1886 [dissenting opinion]
24 (“Given the role that teachers play and given their access to students, there is inherently a potential
25 for abuse in teacher-student relationships. The potential for harm or abuse stems from, among other
26 factors, the imbalance in power between students and teachers, the reality that most students are
27 minors who are in the custody of adults, and the fact that children are obligated, unless an exemption
28 applies, to attend school.)”)

-4-
1 Under any standard of reasonableness, Defendants’ conduct on the day of the restorative
2 justice session was unreasonable. By the date of the SEEDS session, Defendants knew a sit-in
3 protest was planned by angry students to occur directly outside the location where they directed the
4 SEEDS session to take place. School officials already knew these students were emotional and riled
5 up about Plaintiff’s and the other students’ return to school. Anderson’s Decl., ¶¶ 22, 27, Exhibits E
6 and G. Then during the session, immediately prior to the planned sit-in, Defendant Williams sent an
7 ill-advised, premature email to the entire school community telling them the police were
8 investigating a report of a noose – which the police ultimately determined was not a noose.
9 Williams’s Decl., ¶ 25.
10 Defendants allege Mr. Shen was told the restorative justice session was voluntary and argue
11 that this alone alleviates them from liability. Defendants cite to no case law to support this position –
12 and there is none. There are countless scenarios where initially voluntary conduct could turn into a
13 Fourth Amendment violation. Here, even assuming Defendants allegations are true, Mr. Shen only
14 agreed to attend to what was sold to him as a productive student meeting beginning at 8:10 a.m. and
15 ending at 10:00 a.m. Anderson’s Decl., Exhibit E. But by the morning of the SEEDS session, the
16 school had sufficient information to put them on notice that the SEEDS session they had planned
17 would be dangerous for the account followers.
18 Despite knowing a sit-in by angry students was planned in protest of Plaintiff’s return to
19 occur directly outside the location of the SEEDS session, Defendant Anderson proceeded with the
20 SEEDS session as planned and without warning the SEEDS facilitators. Defendant Williams sent out
21 a mass email that predictably inflamed the protesting students and those participating in the SEEDS
22 session. All of these factors together led to the foreseeable result that Plaintiff Shen was trapped
23 inside a school conference room, unable to leave for hours because of angry students blocking the
24 school’s exits. Anderson’s Decl., ¶¶ 37, 38; Exhibit 7. Mr. Shen was detained in this situation, and
25 his detention was unreasonable.
26 ///
27 ///
28 ///
-5-
1 B. Defendants Are Not Entitled to Qualified Immunity on Philip Shen’s Fourth

Amendment Claim Because They Were on Fair Notice That There Conduct
2 Violated the Fourth Amendment.
3 Defendants are not protected by qualified immunity in relation to Mr. Philip Shen’s Fourth
4
Amendment claim. The first prong of the qualified immunity analysis asks whether there was a
5
constitutional violation. As established above, a violation of Mr. Shen’s Fourth Amendment rights
6
occurred at the SEEDS rally.
7
"'[I]f a violation could be made out on a favorable view of the parties'
8 submissions, the next, sequential step is to ask whether the right was clearly
established.'" Wall, 364 F.3d at 1111 (quoting Saucier, 533 U.S. at 201). "[I]t is
9 not necessary that the alleged acts have been previously held unconstitutional, as
long as the unlawfulness was apparent in light of existing law." Drummond, 343
10 F.3d at 1060-61. The question is "whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted."
11
Tekle v. United States, 511 F.3d 839, 847 (9th Cir. 2007).1
12
The Ninth Circuit has made it clear that the Fourth Amendment applies in the school
13
environment:
14
We now address an alleged violation of a student's right to be free of excessive
15 physical punishment or restraint. We observed in Koch that the right of a student
to be free from excessive force at the hands of teachers employed by the state was
16 clearly established as early as 1990. See Koch, 96 F.3d at 1303 n.4 ("Regardless
of the appropriate 'home' for plaintiffs' right to be free from excessive force, there
17 was a clearly established right to be free from such force in 1990 and
1991."). There need not be a case dealing with these particular facts to find
18 Keala's conduct unreasonable. See Headwaters Forest Def. v. County of
Humboldt, 276 F.3d 1125, 1131 (9th Cir. 2002). Indeed, it is difficult to imagine
19 this situation recurring with any frequency. The district court therefore properly
concluded that Doe's right to be free from excessive forcible restraint was clearly
20 established in 1998, when the events giving rise to this case occurred.
21
Doe v. Haw. Dep't of Educ., 334 F.3d 906, 910 (9th Cir. 2003).
22 Every reasonable Albany High School official was on notice and should have known that it
23 was unlawful to lure a group of students to the SEEDS restorative justice meeting while an
24 unorganized and uncontrolled protest occurred immediately outside that could and would become
25 hostile, adversarial, and violent towards the SEEDS participants. Based upon Doe and its progeny, it
26
27 1
In Tekle, the Court found “[a]lthough there may not be a prior case specifically prohibiting the use of handcuffs and
weapons by more than twenty officers to subdue an unarmed eleven-year-old boy who is not suspected of any
28 wrongdoing and is cooperating with the officers, ‘[a]ny reasonable officer should have known that such conduct
constituted the use of excessive force.’” Tekle v. United States,
-6- 511 F.3d 839, 848.
1 was clearly established at the time of the SEEDS event that is was unlawful to place a student in a
2 situation where he would suffer physical violence. Thus, Defendants are not entitled to qualified
3 immunity.
4 C. Plaintiff Shen Has Established the Presence of a State-Created Danger.
5 The SEEDS session and the surrounding events of March 30, 2017 at Albany High School
6 constitute a state-created danger. A state-created danger exists where a state actor takes affirmative
7 steps to put a person in more danger than they would otherwise be in.
8 “In examining whether an officer affirmatively places an individual in danger, [the
Court] do[es] not look solely to the agency of the individual . . . [or] what options
9 may or may not have been available to [her]." Munger v. City of Glasgow Police
Dep't, 227 F.3d 1082, 1086 (9th Cir. 2000). "Instead, [the Court] examine[s] whether
10 the officers left the person in a situation that was more dangerous than the one in
which they found him." Id.; see also Kennedy, 439 F.3d at 1064 n.5 (recognizing
11 relevant inquiry is whether state action "le[ft] [the plaintiff] in a situation more
dangerous than the one she already faced" (emphasis added)).
12
Hernandez v. City of San Jose, 897 F.3d 1125, 1133 (9th Cir. 2018).
13
Defendants argue that they are not liable under Plaintiff’s substantive due process claim
14
because “Plaintiff himself testified that he heard school officials discussing the exit strategy and that
15
it was his impression that they were trying to determine the safest way out of the school.”
16
Defendants’ Motion for Summary Judgment (“Motion”), 21: 1-3. Defendants’ argument holds no
17
water. By analogy, if a school official were to start a fire inside a crowded classroom it is no defense
18
that the school official realizes his mistake and then attempts to create an exit strategy. The
19
constitutional violation here occurred prior to the officials attempting to mitigate the damage they
20
caused.
21
The school officials were on notice of the highly volatile situation prior to scheduling and
22
commencing the restorative justice session – indeed, the anticipated volatility of the students’ return
23
to school was the very reason school officials planned a SEEDS re-entry session to begin with. But
24
the school’s botched planning and execution of the SEEDS session had the actual effect of making
25
Mr. Shen’s return to school more dangerous than it otherwise would have been. See Exhibit 1.
26
///
27
///
28
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1 Defendant school officials argue they are not liable because they did not actively block Mr.
2 Shen from fleeing the restorative justice session after students outside the session became agitated
3 and violent. By that point, however, the constitutional violation had already occurred.
4 The school lured Mr. Shen to the SEEDS session with a promise of a “robust” process to help
5 make his return to school more “manageable.” But the school made many missteps in the
6 implementation of this session and failed to respond to the evolving events in a way that maintained
7 Mr. Shen’s safety. When school officials learned a sit-in was planned to occur directly outside the
8 SEEDs session, they had the opportunity to do several things to mitigate the danger this would cause
9 to Mr. Shen. For example, school administrators could have moved the location of the SEEDs
10 session or they could have dissipated the crowd after the break-time ended. Once the school learned
11 of the reported noose, they could have limited the spread of that news to the students; or they could
12 have moved the SEEDs event off campus or called it off completely. Instead, school officials took
13 steps to increase the danger to Mr. Shen and the other students participating in the SEEDS session.
14 The school officials’ deliberately indifferent conduct stems from their excessive concern with
15 appearing to be supportive of the victims and the anti-racist message at the expense of Plaintiff Shen
16 and the other students who were involved with the account, even if their connection was only
17 tangentially. For example, Defendant Williams expressed no consideration whatsoever for the timing
18 of her noose email with respect to the sit-in and the SEEDS session – her only concern was getting
19 the news out to the school community first. See Williams’s Decl., ¶ 16; Exhibit 5. Similarly, the
20 school’s inclusion of students who were not directly involved in the account in the SEEDS session
21 demonstrates their outsized concern for supporting those students who felt hurt in contrast to their
22 deliberate indifference to the students who were involved in the account.
23 D. Defendants Are Not Entitled to Qualified Immunity on Mr. Shen’s Fourteenth
Amendment Claim.
24
Defendants are not entitled to qualified immunity because any reasonable school official
25
would have known the restorative justice session would create a danger under the circumstances that
26
were present on March 30, 2017.
27
"Qualified immunity protects government officers 'from liability for civil damages
28 insofar as their conduct does not violate clearly established statutory or constitutional
-8-
rights of which a reasonable person would have known.'" Maxwell v. Cty. of San
1 Diego, 708 F.3d 1075, 1082 (9th Cir. 2013) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)); Pearson v. Callahan, 555 U.S.
2 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (citation omitted). "To determine
whether an officer is entitled to qualified immunity, [the Court] ask[s], in the order
3 [it] choose[s], (1) whether the alleged misconduct violated a [constitutional] right and
(2) whether the right was clearly established at the time of the alleged misconduct."
4 Maxwell, 708 F.3d at 1082 (citing Pearson, 555 U.S. at 232).
5 Hernandez v. City of San Jose, 897 F.3d 1125, 1132-1133. Hernandez clarifies the holding in
6 Kennedy v. City of Ridgefield, 439 F.3d 1055 (9th Cir. 2006), and teaches that to overcome qualified
7 immunity plaintiffs must sufficiently allege that defendant(s) took affirmative acts that put
8 plaintiff(s) in more danger than they would otherwise face, and that a reasonable government official
9 would not have taken such affirmative acts. Thus, given Ninth Circuit precedent, government actors
10 are on notice that when they take affirmative steps that are both "actual" and "particularized,"
11 Kennedy, 439 F.3d at 1063, as well as "foreseeable" to create harm they are liable for creating a state
12 created danger. Hernandez v. City of San Jose, 897 F.3d 1125, 1133.
13 Defendants attempt to distinguish Hernandez v. City of San Jose, 897 F.3d 1125 (9th Cir.
14 2018) and claim school officials are not liable because they “were not aware of prior acts of
15 violence” and this alone obviates their liability in this matter. Motion, 20: 3-4.
16 “[t]he police department was aware that Trump rallies in other cities had ‘spurred
violent anti-Trump protests,’ and that, before the rally started, officers were already
17 aware of violence occurring outside the convention center and had witnessed the
violence firsthand.”
18
Motion, 19: 11-14. This distinction, however, does not assist defendants. If Trump rallies in other
19
cities is enough to put the San Jose police department on notice, then assuredly the history of
20
violence in this country when dealing with rallies that deal with racial animus should have been
21
enough to put Defendants on notice that there was a very real potential for violence in this situation.
22
This is especially true considering the messages from protesting students calling Plaintiff and the
23
other account followers “fucking racists” who should not be allowed to return to school, which were
24
sent to Defendant Anderson on March 29, 2017.
25
Even if Defendants did not realize the great potential for violence at the SEEDS session, their
26
qualified immunity claim still fails based on the “affirmative steps” requirement. The Ninth Circuit
27
holds all that is required is for a government actor to take affirmative steps that made the plaintiff
28
-9-
1 less safe in order to establish a state-created danger. Here, Defendants took the affirmative steps of
2 hosting the restorative justice session, hosting it with insufficient security/law enforcement despite
3 knowing the dangers associated with the situation, encouraging the attendance of Mr. Shen, holding
4 the session immediately next to the sit-in of protesting students, including additional “victims” in the
5 session, and emailing the school community about a “noose” during the session and immediately
6 prior to the planned protest. All of these affirmative acts by school officials caused Mr. Shen to be
7 violently assaulted by another student.

8 Defendants are not entitled to qualified immunity because a long line of case starting with
9 Kennedy and concluding with Hernandez put Defendants on notice that it was unconstitutional to
10 place Mr. Shen in such danger.
11 E. Defendants Have Waived Any Argument as to the California Constitution.
12 The last paragraph of Defendants’ brief is devoted to tackling Mr. Shen’s challenge under
13 the California Constitution. Mr. Shen concedes that he must establish reckless indifference in order
14 to prevail under his claim under article I, section 7 of the California Constitution. Thus, his claim
15 under the California Constitution is materially the same as his 14th Amendment state-created danger
16 claim. The only practical difference between these claims arises if this Court were to find that
17 Defendants created a danger in violation of Mr. Shen’s 14th amendment rights, but, ultimately, that
18 they were not liable because they have successfully raised qualified immunity. In that event,
19 Defendants would still be liable under Mr. Shen’s claim under article I, section 7 of the California
20 Constitution because qualified immunity is only a defense to federal claims, and Defendants have
21 raised no analogous state law defenses. Thus, they have waived any such defenses. Defendants
22 merely argue in one sentence that case law suggests that this claim is not appropriate for damages.
23 Raising that argument in one sentence does not sufficiently develop that argument for Mr. Shen to
24 rebut. Thus, this Court should find that Mr. Shen has raised a triable issue of fact as to whether his
25 rights were violated under article I, section 7 of the California Constitution.
26 IV. CONCLUSION
27 Defendants created an event they knew to be dangerous and lured Mr. Shen to what he
28 thought would be a safe event. Mr. Shen will be able to prove at trial that Defendants’ deliberate
-10-
1 indifference to his safety violated his rights under the Fourth and Fourteenth Amendments.
2 Defendants motion for summary judgement should, therefore, be denied.
3
4 DATED: March 18, 2019
5 Respectfully submitted,
6 By: _____________________________________
/S/
Darryl Yorkey, Esq.
7 Attorney for Plaintiffs Philip Shen,
Kevin Chen, and C.E.
8
9 /S/
By: _____________________________________
10 Alan Beck, Esq.
Attorney for Plaintiffs Philip Shen,
11 Kevin Chen, and C.E.
12 /S/
By: _____________________________________
13 Catherine Beekman, Esq.
Attorney for Plaintiffs Philip Shen,
14 Kevin Chen, and C.E.
15
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Shen Oppossition To MSJ On NonFirst Amendment Claims

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Case 3:17-cv-02478-JD Document 206 Filed 03/18/19 Page 1 of 14

DARRYL D. YORKEY (SBN 280351)

4 III. ARGUMENT ....................................................................................................................... 3

5 A. Summary Judgment Should be Denied as to Plaintiff Shen’s Fourth

7 B. Defendants Are Not Entitled to Qualified Immunity on Philip Shen’s

9 C. Plaintiff Shen Has Established the Presence of a State-Created Danger. .......................... 7

12 E. Defendants Have Waived Any Argument as to the California Constitution. .................. 10

7 Harlow v. Fitzgerald, 457 U.S. 800 (1982) ....................................................................................... 8

11 P.B. v. Koch, 96 F.3d 1298 (1996).................................................................................................... 6

13 Moreno v. Baca, 400 F.3d 1152 (9th Cir. 2005)................................................................................ 4

15 Pearson v. Callahan, 555 U.S. 223 (2009) ....................................................................................... 8

16 Saucier v. Katz, 533 U.S. 194 (2001)................................................................................................ 6

19 Toledo v. State, 519 S.W.3d 273 (2017) ........................................................................................... 4

1 The Noose Email

28 applies, to attend school.)”)

1 B. Defendants Are Not Entitled to Qualified Immunity on Philip Shen’s Fourth

7 violently assaulted by another student.

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