Albany Defendants MSJ On Phil Shen's Nonfirstamendment Claims.

Case 3:17-cv-02478-JD Document 199 Filed 03/04/19 Page 1 of 30
1 LOUIS A. LEONE, ESQ. (SBN: 099874)

KATHERINE A. ALBERTS, ESQ. (SBN: 212825)
2 SETH L. GORDON, ESQ. (SBN: 262653)
LEONE & ALBERTS
3
A Professional Corporation
4 2175 N. California Blvd., Suite 900
Walnut Creek, CA 94596
5 Telephone: (925) 974-8600
Facsimile: (925) 974-8601
6 E-Mail: lleone@leonealberts.com
kalberts@leonealberts.com
7
sgordon@leonealberts.com
8
Attorneys for Defendants
9 ALBANY UNIFIED SCHOOL DISTRICT, ALBANY UNIFIED SCHOOL
DISTRICT BOARD OF EDUCATION, ALBANY HIGH SCHOOL,
10 VALERIE WILLIAMS, JEFF ANDERSON, MELISA PFOHL,
CHARLES BLANCHARD, JACOB CLARK and KIM TRUTANE
11
THE UNITED STATES DISTRICT COURT
12
NORTHERN DISTRICT OF CALIFORNIA
13
PHILIP SHEN, et al. Lead Case No.: 3:17-cv-02478-JD
14
Plaintiffs, Related Case Nos.: 3:17-cv-02767-JD
15 vs. 3:17-cv-03418-JD
ALBANY UNIFIED SCHOOL DISTRICT, et al. 4:17-cv-03657-JD
16
Defendants.
17
RICK ROE, a minor et al. DEFENDANTS’ NOTICE OF MOTION
18 Plaintiffs, AND MOTION FOR SUMMARY
vs. JUDGMENT ON PHILIP SHEN’S
19 REMAINING CLAIMS
ALBANY UNIFIED SCHOOL DISTRICT, et al.
20
Defendants.
21 JOHN DOE, a minor, Date: April 11, 2019
Plaintiffs, Time: 10:00 a.m.
22
Ctrm: 11, 19th Floor
vs.
23 Judge: Hon. James Donato
ALBANY UNIFIED SCHOOL DISTRICT, et al.
24 Defendants.
25 C.E., through his guardian, C.E.,
Plaintiff,
26
vs.
27 ALBANY UNIFIED SCHOOL DISTRICT, et al.
28 Defendants.
DEFENDANTS’ NOTICE OF MOTION AND MOTION Lead Case No.: 3:17 – cv – 02478 – JD
FOR SUMMARY JUDGMENT ON REMAINING CLAIMS
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2 PLEASE TAKE NOTICE that on April 11, 2019 at 10:00 a.m., or as soon thereafter as
3 the matter may be heard in Courtroom 11 of the above-entitled court, located at 450 Golden Gate
4 Avenue, San Francisco, California, defendants Albany Unified School District, Valerie Williams,
5 Jeff Anderson, and Melisa Pfohl (collectively “Defendants”), will and hereby do move the Court,
6 pursuant to Fed. R. Civ. P. 56(a), for summary judgment on all remaining claims (the fifth,
7 seventh, and eighth claims) asserted against them by Plaintiff Philip Shen.
8 The undisputed evidence shows that Defendants are entitled to judgment as a matter of
9 law on each of the three remaining claims. As to Plaintiff’s Fourth Amendment claim (the fifth
10 claim), Plaintiff’s own deposition testimony demonstrates that he was never seized within the
11 meaning of the Fourth Amendment—he testified that the SEEDS event was voluntary; that he
12 was never forced to line up in front of his classmates; and that he knew he was free to leave at all
13 times the day of the SEEDS event. As to the Fourteenth Amendment claim (the seventh claim),
14 the undisputed evidence shows that school personnel were not deliberately indifferent to
15 Plaintiff’s safety on the day of the SEEDS event. Moreover, even assuming the existence of a
16 constitutional violation, the individual Defendants are entitled to qualified immunity because no
17 precedent exists that would have put every reasonable school official on notice that Defendants’
18 conduct violated the constitution in this case. Finally, Plaintiff’s eighth claim, which asserts
19 deprivation of substantive due process under the California Constitution, fails for the same
20 reason the Fourteenth Amendment claim fails.
21 This motion is based on this Notice of Motion and Motion, the Memorandum of Points
22 and Authorities set forth below, the supporting declarations and evidence filed herewith, all
23 pleadings in this action, as well as any evidence or arguments that may be offered in the brief in
24 reply or at the hearing on the motion.
25 Dated: March 4, 2019 LEONE & ALBERTS
26
27
SETH L. GORDON, ESQ.
28 Attorney for Defendants
1
DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR Lead Case No.: 3:17 – cv – 02478 – JD
SUMMARY JUDGMENT ON REMAINING CLAIMS
1 TABLE OF CONTENTS
2 Page No.
3 INTRODUCTION ............................................................................................................... 1
4
UNDISPUTED FACTS ...................................................................................................... 3
5
ARGUMENT ...................................................................................................................... 14
6
I. The Individual Defendants are Entitled to Qualified Immunity on Plaintiff’s
7 Fourth and Fourteenth Amendment Claims (the Fifth and Seventh
Claims) ................................................................................................................... 14
8
9 A. There was no violation of the Fourth Amendment because, according to

Plaintiff’s own testimony, no school official ever restrained his liberty ..... 14
10
B. No precedent exists that would have put every reasonable school official
11 on notice that Defendants’ conduct in this case violated the Fourth
12
Amendment .................................................................................................. 16
13 C. There was no violation of the Fourteenth Amendment because the

undisputed evidence shows that Defendants did not act deliberately
14 indifferent to Plaintiff’s safety ..................................................................... 18
15 D. No precedent exists that would have put every reasonable school official
16 on notice that Defendants’ conduct violated the Fourteenth
Amendment .................................................................................................. 22
17
II. Defendants are Entitled to Summary Judgment on Plaintiff’s Remaining State
18 Claim ...................................................................................................................... 25
19
CONCLUSION................................................................................................................... 25
20
21
22
23
24
25
26
27
28
i
1 TABLE OF AUTHORITIES
2 Federal Cases Page No.
3 Ashcroft v. al-Kidd,
563 U.S. 731 (2011) ..................................................................................................... 14
4
Benzman v. Whitman,
5 523 F.3d 119 (2d Cir. 2008) .......................................................................................... 24
6 Brower v. County of Inyo,
489 U.S. 593 (1989) ............................................................................................ 2, 14-15
7
County of Sacramento v. Lewis,
8 523 U.S. 833 (1998) ...................................................................................................... 14
DeShaney v. Winnebago County Dep’t of Social Services,
9 489 U.S. 189 (1989) ....................................................................................................... 18
10 Dible v. City of Chandler,
515 F.3d 918 (9th Cir. 2008) ........................................................................................ 16
11
Doe v. Hawaii Dep’t of Educ.,
12 334 F.3d 906 (9th Cir. 2003) ..................................................................... 14, 15, 16, 17
13 McQueen v. Beecher Cmty. Sch.,
433 F.3d 460 (6th Cir. 2006) ................................................................................. 18, 24
14
Hernandez v. City of San Jose,
15 897 F.3d 1125 (2018) ............................................................................................. passim
16 Johnson v. Dallas Indep. Sch. Dist.,

38 F.3d 198 (5th Cir. 1994) ............................................................................. 18, 22, 23
17 King v. E. St. Louis Sch. Dist. 189,
496 F.3d 812 (7th Cir. 2007) ........................................................................................ 24
18
Kramer v. Cullinan,
19 878 F.3d (9th Cir. 2018) ............................................................................................... 17
20 L.W. v. Grubbs,
92 F.3d 894 (9th Cir. 1996) ............................................................................. 18, 22, 23
21
Leffall v. Dallas Indep. Sch. Dist.,
22 28 F.3d 521 (5th Cir. 1994) .......................................................................................... 23
23 Malley v. Briggs,
475 U.S. 335 (1986) ....................................................................................................... 14
24
Morales v. Fry,
25 873 F.3d 817 (9th Cir. 2017) ........................................................................................ 17
Moreno v. Baca,
26 400 F.3d 1152 (9th Cir. 2005) ...................................................................................... 15
27 Mullenix v. Luna,
136 S.Ct. 305 (2015) ..................................................................................................... 17
28
ii
1 Munger v. City of Glasgow Police Dep’t,

227 F.3d 1082 (9th Cir. 2000) ............................................................................... 23, 24
2
S.B. v. Cnty of San Diego,
3 864 F.3d 1010 (9th Cir. 2017) ...................................................................................... 17
4 Salas v. Carpenter,
980 F.2d 299 (5th Cir. 1992) ........................................................................................ 23
5
Shafer v. Cty. Of Santa Barbara,
6 868 F.3d 1110 (9th Cir. 2017) ............................................................................... 14, 16
Shuman v. Penn Manor Sch. Dist.,
7 422 F.3d 141 (3d Cir. 2005) ................................................................................... 14, 17
8 Wood v. Ostrander,
879 F.2d 583 (9th Cir. 1989) ............................................................................ 22-23, 23
9
State Cases
10
Katzberg v. Regents of Univ. of Cal.,
11 29 Cal.4th 300 (2002) ................................................................................................... 25
12 Morrow v. Los Angeles Unified Sch. Dist.,
149 Cal.App.4th 1424 (2007) ....................................................................................... 25
13
State Statutes
14
California Civil Code § 47 ................................................................................................. 25
15
Rules
16
Fed. R. Civ. P. 56 ................................................................................................................. 1
17
Other
18
Article I, Section 7 of the California Constitution ............................................................. 25
19
20
21
22
23
24
25
26
27
28
iii
1 INTRODUCTION
2 This case originated as four separate lawsuits filed by ten high school students who attended
3 Albany High School (“AHS”) during the 2016-2017 school year. The primary contention in all four
4 suits was that the Albany Unified School District (the “District”) violated the students’ right to free
5 speech under the First Amendment by disciplining them for their involvement with a social media
6 account that was being used by the plaintiff students as a forum to post offensive images and
7 comments directed at African American and female students at AHS. The First Amendment issues
8 have been resolved by the Court and, after close to two years of litigation, only one plaintiff and
9 three claims remain at issue in this case. The remaining plaintiff is Philip Shen (“Plaintiff”), who
10 was one of the four original plaintiffs in Case No. 17-cv-02478. 1 The three claims that remain at
11 issue in the operative First Amended Complaint (ECF No. 112) are: (1) Plaintiff’s fifth claim for
12 violation of the Fourth Amendment; (2) the seventh claim for deprivation of substantive due process
13 under the Fourteenth Amendment; and (3) the eighth claim, which also asserts deprivation of
14 substantive due process, but is asserted under the California Constitution. All other claims were
15 dismissed with prejudice. (ECF No. 198).
16 The three remaining claims all relate to events that occurred at AHS on March 30, 2017. As
17 the Court may recall, the Instagram account at issue in this case was discovered by students (and
18 reported to school officials) on March 20, 2017. As the Court will recall, the Instagram account
19 contained highly offensive racist imagery and comments targeting black female students at AHS.
20 School officials immediately conducted an investigation and, by mid-week, the students involved
21 with the account—including Plaintiff—were suspended for five days.
22 Notwithstanding the District’s efforts to deescalate the situation and to protect the identity of
23 both the victims and the perpetrators, news of the account spread like wildfire. Shortly after the
24 discovery of the account, the images made their way from the victims to the general student body,
25 to their parents, then to the greater community. By the end of the week, a parent sent the images to
26 the media, which then began covering the incident. Further inflaming the situation, some of the
27 students involved with the account, including Plaintiff, continued to post racist content on social
28
1
All docket citations are from Case No. 17-cv-02478 unless otherwise indicated.
1
1 media during their suspensions. Over the course of the first week, school officials were inundated
2 with messages from parents and community members demanding more information, demanding
3 discipline, and offering suggestions on how to address the issue of racism. Assistant Principal
4 Melisa Pfohl described the discovery of the account as “a nuclear bomb going off at our school.”
5 It was in this atmosphere that school officials were tasked with reintegrating the students
6 involved with the account (the “followers”), who were scheduled to return to AHS from their
7 suspensions on March 30, 2017. School officials quickly determined that allowing the followers to
8 simply return to class without some re-entry protocol was not a viable option for either the victims
9 (who continued to feel harmed) or the followers. Thus, after vetting multiple restorative justice
10 organizations over the weekend of March 25 and 26, 2017, school officials contacted Services that
11 Encourage Effective Dialog and Solutions (“SEEDS”). Individuals from SEEDS met with school
12 officials at AHS on Monday March 27, 2017, and formulated a strategy for re-entry. The plan
13 included inviting the followers and the victims to participate in a voluntary restorative justice
14 program on Thursday March 30, 2017. The goal of the event was to bring the students together
15 (some of whom had previously been friends) in an effort to begin the healing process.
16 Plaintiff’s Fourth Amendment claim (the fifth claim) is based on the allegation that he was
17 “forced … to march through the high school and w[as] lined up in full view of all or most of the
18 student body where the student body was allowed to hurl obscenities, scream profanities, and jeer at
19 [him].” FAC ¶¶ 138, 141 (ECF No. 112 p. 23). According to Plaintiff’s own deposition testimony,
20 these allegations are false. Plaintiff made clear during his deposition that nobody “forced” him to do
21 anything the day of the SEEDS event. When he did see the students in the sit-in, they were quiet
22 and did not “hurl obscenities” or “scream profanities.” Moreover, Plaintiff testified that he was told
23 that he was free to leave school immediately following the group restorative justice session and that
24 he saw at least two other suspended students leave, but he stayed because he “wanted to finish the
25 school day.” Put simply, according to Plaintiff’s own testimony, there was never an intentional
26 termination of his freedom of movement on the day of the SEEDS event sufficient to violate the
27 Fourth Amendment. See Brower v. County of Inyo, 489 U.S. 593, 597 (1989).
28 ///
2
1 As to the substantive due process claims (the seventh and eighth claims), Plaintiff alleges
2 that the District created a dangerous situation on the day of the SEEDS event by “promoting a
3 student demonstration,” “inciting [] demonstrators with false stories of a ‘noose,’ notifying
4 demonstrators when and where Plaintiffs were participating in a restorative justice section [sic],
5 [and] then failing to protect the Plaintiffs[].” FAC ¶ 157. These allegations are contradicted by the
6 undisputed evidence. Moreover, to survive summary judgment on the substantive due process
7 claim, Plaintiff is required to show that Defendants acted with deliberate indifference (i.e., that
8 school officials knew something was going to happen and “actually intended” to expose Plaintiff to
9 that harm). Hernandez v. City of San Jose, 897 F.3d 1125, 1135 (2018). For the reasons set forth
10 herein, Plaintiff cannot do so. Indeed, Plaintiff testified that he heard school officials discussing
11 their exit strategy on the day of the SEEDS event and it was his impression that they were trying to
12 exit in the safest way possible with the least exposure to the student body.
13 Finally, even if this Court finds the existence of a disputed fact as to whether a constitutional
14 violation occurred, Defendants are entitled to qualified immunity because no case law existed in
15 March 2017 that would have put every reasonable school official on notice that Defendants’
16 conduct violated the constitution in this case. For these reasons, and as more fully explained below,
17 Defendants are entitled to summary judgment on Plaintiff Shen’s fifth, seventh, and eighth claims.
18 UNDISPUTED FACTS
19 Philip Shen was an eleventh grade high school student at AHS during the 2016-2017 school
20 year. Declaration of Seth L. Gordon (“Gordon Decl.”), Ex. A p. 16:1-3. In November 2016, one of
21 Plaintiff’s close friends—C.E.—created an Instagram account targeting female AHS students on the
22 basis of race and gender. 2 Declaration of Melisa Pfohl (“Pfohl Decl.”) ¶¶ 3-4. Plaintiff was present
23 when the account was created, immediately began following the account, and commented on the
24 very first post to the account, which was a photograph of a black female AHS student next to a
25 drawing of a naked black person hanging from a tree being beaten by a slave master. Gordon Decl.,
26 Ex. A p. 40:1-5, 48:22-25—49:1-16, 50:3-25—51:7-12, 61:16-25—62:1-2; Pfohl Decl. Ex. A.
27
2
28 C.E. was one of Plaintiff’s classmates at AHS and formally a named plaintiff in this case, but his
claims have been dismissed with prejudice. ECF No. 198.
3
1 Between November 2016 and early 2017, C.E. posted several memes containing subject matter that
2 was offensive, bigoted and racially insensitive. Gordon Decl. Ex. A p. 53:8-16. Plaintiff knew at the
3 time that the posts were offensive. Id. p. 54:9-15. He did not assume the account would be kept
4 private and, ultimately, 14 people ended up following the account. Id. p. 51:19-24.
5 The yungcavage account made its way onto campus at AHS on Monday March 20, 2017,
6 when several girls reported that a group of students, including Plaintiff, were involved with an
7 Instagram account that contained racist images targeting black female students at the school. Pfohl
8 Decl. ¶¶ 2-4. Administrators were shown images from the account, which included an image of a
9 black female student and the Girls’ Basketball Coach (who is also African American) with nooses
10 drawn around their necks. Id. ¶ 4 & Ex. B. Other images, while not overtly threatening, targeted
11 students on the basis of race, such as the initial meme showing a black female student next to a
12 drawing of a slave being beaten. Id. There were also posts comparing a black female student to a
13 gorilla, calling a girl’s hair “nappy,” and use of the word “nigger.” Id.
14 Given the serious nature of the images, school administrators immediately initiated an
15 investigation and contacted the Albany Police Department. Pfohl Decl. ¶ 5. On the afternoon of
16 March 20, 2017, Principal Anderson sent an email informing AHS staff about the discovery of the
17 account. Declaration of Jeff Anderson (“Anderson Decl.”) ¶ 11. The email did not divulge any
18 details of the account or the person’s involved, but informed staff that an investigation was
19 underway in case they began hearing things from their students. Id. As the content of the account
20 targeted students on the basis of race and sex, the District’s obligations to protect students under
21 Title VI and Title IX were also triggered and Principal Anderson contacted the victims’ parents
22 letting them know that an investigation was under way. Id. ¶ 7. School officials also contacted the
23 parents of the three main contributors to the account and requested that they bring their students to
24 school the next morning for a meeting with administrators and the police. Id.
25 On the morning of Tuesday March 21, 2017, administrators interviewed C.E. and two other
26 main contributors and suspended them for five days. Pfohl Decl. ¶ 8. That afternoon, and
27 continuing the next day, administrators interviewed the remaining individuals identified as being
28 involved with the account in the presence of law enforcement. Id. ¶ 9. On the afternoon of Tuesday
4
1 March 21, 2017, it quickly became apparent that news of the Instagram account was spreading like
2 wildfire as school administrators began receiving a steady stream of emails from parents and
3 members of the Albany community. Anderson Decl. ¶ 12. Some asked for more information about
4 the incident, while others demanded that the students involved with the account be expelled. Id. As
5 these emails began coming in, Superintendent Valerie Williams made clear to site administrators at
6 AHS that confidentiality of the victims and perpetrators must be maintained and that no specific
7 details were to be shared. Declaration of Valerie Williams (“Williams Decl.”) ¶ 5.
8 Principal Anderson held an all-staff meeting that afternoon, informing AHS staff generally
9 what was going on without divulging details, informing staff that the investigation remained
10 ongoing, and reminding staff not to disclose any details they heard from students. Anderson Decl. ¶
11 13. Given the amount of parent emails being received, Mr. Anderson sent an email to all AHS
12 parents at 5:24 p.m. on Tuesday March 21, 2017. Id. ¶ 14 & Ex. A. In the email, Mr. Anderson
13 informed parents a small number of students had posted hurtful and racially offensive material on
14 social media, an investigation had begun, police had been contacted, but the school could not
15 provide any additional details. Id. At 5:30 p.m. that same afternoon, Mr. Anderson sent an email to
16 AHS staff, instructing them to read a statement to all students the next day. Id. & Ex. B. The
17 message informed students that staff cannot divulge information about the investigation and urged
18 students to reach out to staff if they are concerned about their well-being or the well-being of others.
19 Id.
20 On Wednesday March 22, 2017, Plaintiff was interviewed about his involvement with the
21 account. Pfohl Decl. ¶ 10. He admitted to following the account and posting a comment to the
22 account. Id. On Thursday March 23, 2017, the remaining students involved with the account,
23 including Plaintiff, were informed that they were being suspended for five days. Anderson Decl. ¶
24 9. That same day, administrators were informed that a parent had sent copies of the posts from the
25 account to a media outlet via Facebook and administrators began receiving requests for information
26 about the incident from news media that same day. Id. ¶ 16. Mr. Anderson instructed AHS staff not
27 to talk to the press and to refer all media inquiries to the District Office. Id.
28
5
1 Emails continued to pour in from parents and concerned community members on Thursday
2 March 23, 2017. Anderson Decl. ¶ 17. A father of one of the girls depicted on the account stated
3 that he didn’t want his daughter in class with any of the students involved with the account. Id.
4 Another parent stated that her daughter was afraid to go to class because of the racist incident. Id.
5 Another parent demanded expulsion. Id. Given the continued community uproar, Superintendent
6 Williams sent a letter to all District parents that evening. Williams Decl. ¶ 8 & Ex. A. The letter did
7 not divulge the identity of the students involved with the account or the details of the account. Id.
8 Rather, the letter states that District policy prohibits discrimination, harassment and bullying of all
9 students on the basis of race and other protected classes and that the District was formulating
10 strategies to prevent and address issues around bullying, harassment, and racism. Id.
11 On Friday March 24, 2017, Principal Anderson sent an email updating AHS parents.
12 Anderson Decl. ¶ 18 & Ex. C. Like all previous communications, the message did not disclose the
13 identity of any of the students involved in the Instagram incident or details of the content of the
14 account. Id. Rather, the letter went over what the school was doing to address the situation and
15 informed parents that administrators and counselors would host a forum at lunch that day to address
16 student concerns. Id. Finally, the letter reminded parents that, while there had been an outcry for
17 information, the District could not disclose information about the investigation or disciplinary
18 actions that were being pursued. Id. The lunch activity took place as planned and, while some
19 students seemed frustrated, no student called for violence and there was no indication that the
20 student body would be violent when the suspended students returned the following week. Id. That
21 same day, one of the girls depicted on the account informed Ms. Pfohl that Plaintiff and two other
22 followers were continuing to post racist content on social media. Pfohl Decl. ¶ 17. One post was a
23 distorted image of Plaintiff’s face with the caption “Fuck you nigger whore cunt bitch.” Id. Ex. D.
24 There was also a screen shot of a group text message between the followers—including Plaintiff—
25 that contained racist and homophobic comments. Id. The girl who reported these images was
26 extremely upset that Plaintiff and the others involved with the account continued to post racist
27 content while on their suspensions. Id.
28 ///
6
1 Over the weekend of March 25 and 26, 2017, emails continued to pour in from parents,
2 community members and the press. Williams Decl. ¶ 10. School administrators and staff spent the
3 weekend discussing the re-entry of the suspended students the following week and a strategy to
4 support all students. Id. It was agreed amongst school administrators that it must be made clear to
5 the student body that aggressive action toward returning suspended students would not be tolerated
6 and Principal Anderson began developing guidelines for teachers to apply when the followers
7 returned to class. Anderson Decl. ¶ 19. Administrators agreed that the three major goals for the
8 following week would be the physical and emotional safety of both the victims and the followers,
9 supporting students’ academics, and repairing student relationships. Declaration of Peter Parenti
10 (“Parenti Decl.”) ¶ 5. Administrators believed that allowing the followers to return to class without
11 any re-entry program would not effectuate these goals. Id. Thus, administrators began discussing a
12 restorative justice strategy and began vetting organizations that provided restorative justice services.
13 Williams Decl. ¶ 10. After vetting the organizations, administrators reached out to SEEDS, which
14 came highly recommended from the head of the Restorative Justice Center at UC Berkeley. Id.
15 On Sunday March 26, 2017, a parent-organized rally took place at AHS. Williams Decl. ¶
16 11. Participants in the rally wore t-shirts that said “Albany for All” and, at one point, the group
17 joined hands and encircled the entire school. Id. The rally appeared to be an attempt by community
18 members to bring people together and start the healing process. Id. There were no calls for violence
19 and nothing at the rally led any school administrator in attendance to believe that there would be
20 violence when the followers returned. Id.; Parenti Decl. ¶ 7; Pfohl Decl. ¶ 18.
21 On the morning of Monday March 27, 2017, the director of SEEDS met with administrators
22 at AHS and began formulating a strategy with administrators for the week. Anderson Decl. ¶ 21.
23 The primary objective was to deescalate the situation. Id. The plan included: small group meetings
24 with SEEDS and the student body the following day (Tuesday 3/28/17); a diversity assembly to take
25 place on Wednesday (3/29/17); a re-entry program for the followers and victims when the
26 suspended students returned to school on Thursday (3/30/17); and a restorative justice session to
27 occur on Saturday April 1, 2017 with the followers, victims, and their parents. Id. On the evening of
28 Monday March 27, 2017, Principal Anderson sent a letter to all AHS parents outlining the plan for
7
1 the week except for the details of the re-entry program scheduled to occur on Thursday March 30,
2 2017. Id. ¶ 22 & Ex. D. That same evening, Principal Anderson emailed the parents of the followers
3 about the restorative justice re-entry program. Id. & Ex. E. The email informed parents that their
4 children were due to return later in the week and that the school was working with the SEEDS
5 organization to “develop a response that will assist individual students and families as well as the
6 wider student population in a restorative process.” Id. The email made clear that the Thursday
7 restorative justice program was voluntary and that, if the followers chose to stay home that day,
8 they would not be marked absent. Id. School Mental Health Coordinator Shelly Ball also spoke with
9 some of the suspended students’ parents, including Plaintiff’s father, explained the details of the
10 Thursday SEEDS re-entry activity, and that the event was voluntary. Id.
11 On Tuesday March 28, 2017, SEEDS met with groups of students at AHS. Anderson Decl. ¶
12 23. While some students expressed sadness and anger, no student mentioned violence and there was
13 no indication that the student body might be violent when the suspended students returned. Id.
14 On Wednesday March 29, 2017, Ms. Pfohl reminded AHS staff that the suspended students
15 would be returning the next day, provided a list of the suspended students and the victims, informed
16 staff that both groups of students “may be extra sensitive, anxious, and nervous” the next day, and
17 instructed staff to be “extra vigilant about their safety.” Pfohl Decl. ¶ 21 & Ex. E. Later that day,
18 AHS held an all-school lunch time assembly to celebrate diversity. Id. ¶ 22. Nothing at the
19 assembly led administrators to believe that students might become violent the following day. Id.
20 At 8:38 p.m. on Wednesday night, Ms. Pfohl received a message from an AHS staff
21 member indicating that he heard rumors that students may be planning a “walk-out” the next day.
22 Pfohl Decl. ¶ 23 & Ex. F. Ms. Pfohl immediately contacted the police, informed them what she had
23 heard, and gave police the schedule for the next day. Id. Ex. G. The officer informed her that they
24 would make officers available to the school before, after, during break, and during lunch the next
25 day. Id. The rumors of the walk-out did not include any mention of violence and the student body
26 had staged a walk-out the previous year when President Trump was elected and no violence had
27 occurred during that protest. Id. Later that night, between 10:16 and 10:48 p.m., Principal Anderson
28 received three messages from the parents of some followers (not including Philip Shen) informing
8
1 him that their children were hearing rumors that the student body was going to engage in a sit-in the
2 following day. Anderson Decl. ¶ 25 & Ex. F. The parent also attached a group text that was being
3 sent around by students. Id. There is no mention whatsoever of violence in the group text. Id.
4 Principal Anderson immediately informed Superintendent Williams of the possible sit-in. Id. Ms.
5 Williams then reached out to Assistant Superintendent Parenti and asked him to go to AHS the next
6 day to assist Principal Anderson. Williams Decl. ¶ 15.
7 The SEEDS event took place on Thursday March 30, 2017. At approximately 6:30 a.m., Ms.
8 Pfohl received a call from the Albany Police Department informing her that they received a report
9 of a noose in the park next to the school and that police would be on campus that day investigating.
10 Pfohl Decl. ¶ 24. Ms. Pfohl immediately passed on this information to Superintendent Williams. Id.
11 Principal Anderson sent emails to the parents of all the followers that morning, including
12 Plaintiff’s father. Anderson Decl. ¶ 27 & Ex. G. In the email, Mr. Anderson reminded John Shen
13 that the SEEDS activity was that day, that it was voluntary, and that Philip could choose to stay
14 home that day and Friday without being marked absent. Id. Plaintiff testified that he discussed the
15 event with his father and that he decided to attend the event because he thought “it would be good
16 to go there and make amends.” Gordon Decl. Ex. A pp. 128:2-25—129:1. Plaintiff was not
17 concerned that there might be violence at AHS that day and he was not aware that students were
18 planning a sit-it. Id. p. 132:6-12.
19 Plaintiff arrived at school that day around 8:10 a.m. Gordon Decl. Ex. A p. 132:13-24.
20 While walking to school that morning, Plaintiff had seen other students and nobody gave him a
21 hard time. Id. pp. 132:25—133:1-10. When school started, the student body went to class as normal
22 and students were in class when Plaintiff arrived at school. Pfohl Decl. ¶ 25; Gordon Decl. Ex. A p.
23 133:11-13. Plaintiff went to the main office and was directed to go to a conference room next to the
24 Principal’s Office where the other suspended students were located. Gordon Decl. Ex. A p. 133:14-
25 25—134:1-9. A floor plan of AHS is attached to the Declaration of Scott Shevelson filed in support
26 of this motion as Exhibit B and provided to assist the Court in understanding the events that
27 occurred at AHS on March 30, 2017.
28 ///
9
1 In the conference room next to the Principal’s Office, Plaintiff and the other followers met
2 with an individual from SEEDS, who told the students what to expect and how to behave that day.
3 Gordon Decl. Ex. A p. 134:16-18, 135:12-18. The victims of the account were not present in the
4 room and had been asked to meet in the attendance office, which is across the hall from the main
5 office. Anderson Decl. ¶ 30. The initial meeting with the followers and the SEEDS person lasted
6 between 30 minutes and an hour. Gordon Decl. Ex. A p. 136:16-24. Following the initial meeting,
7 the SEEDS individual took the followers to Room 104, which was located next to the main office
8 and where the victims were already waiting with another person from SEEDS. Id. pp. 138:5-25—
9 139:1. When Plaintiff and the other followers arrived in Room 104 for the group session with the
10 victims, the SEEDS individuals explained restorative justice and how things were going to proceed.
11 Id. p. 139:5-14. The group session was structured so that the victims and followers sat in a circle
12 with the SEEDS personnel asking questions and then everyone taking a turn responding. Id. pp.
13 139:15-21—140:5-18. Some of the girls were angry and some were crying. Id. p. 141:3-9. This
14 process went on for approximately two hours. Id. p. 142:4-6.
15 Assistant Superintendent Parenti arrived at AHS shortly after the SEEDS session started.
16 Parenti Decl. ¶ 10. At 9:00 a.m., Parenti sent an email to AHS site administrators, reminding staff
17 that the suspended boys were on campus that day and asking staff to “keep a heightened attention to
18 campus climate and safety today.” Id. Ex. A. The email further informed staff that the Police
19 Department had reported the presence of a noose found in the park next to the school that morning
20 and that officers were on campus that morning providing support. Id.
21 The mid-morning break began at 10:53 a.m. Pfohl Decl. ¶ 26. At that time, students who
22 had been in class began congregating the school atrium, which is near the main front doors of the
23 school and also next to the main office. Id.; Shevelson Decl. Ex. B. Some of the students had signs
24 and, when the students began filling the atrium and sitting down, it became clear to administrators
25 that this was the sit-in. Pfohl Decl. ¶ 26. Several administrators were present when the sit-in began,
26 including Principal Anderson, Assistant Principal Pfohl, and Assistant Superintendent Parenti. Id.;
27 Parenti Decl. ¶ 11; Anderson Decl. ¶ 33. As the sit-in began, administrators were consciously
28 watching if it was going to be peaceful. Parenti Decl. ¶ 11. Because the students were being quiet,
10
1 sitting, and holding signs that said “love not hate,” “Albany for All,” and “We will not Stand for
2 racism,” there was no indication that the students intended to be aggressive or violent. Id. It did not
3 appear that the students in the sit-in were aware that the SEEDS event was taking place in Room
4 104 next to the main office. Pfohl Decl. ¶ 26 & Ex. H.
5 According to Plaintiff, after approximately two hours in the group session with the victims,
6 the group became aware that a sit-in was happening. Gordon Decl. Ex. A p. 142:11-13. One of the
7 victim girls then suggested that the followers go out of the room to see how deeply their actions
8 affected the school. Id. pp. 143:5-10, 144:6-10. Plaintiff could not recall if any school
9 administrators were in the room at the time the girls asked them to see the sit-in and he did not
10 remember the SEEDS personnel asking the followers to comply with the girls’ request. Id. pp.
11 143:16-19, 144:3-5. Plaintiff testified that he didn’t mind complying with the girls’ request. Id. p.
12 144:11-13. Some of the followers, however, did not agree and stayed in Room 104. Id. p. 145:18-
13 23. When Plaintiff went out of the room, he saw students sitting and standing. Id. p. 144:18-24.
14 According to Plaintiff, the students in the sit-in were quiet. Id. pp. 144:25—145:1. The followers
15 stood in the hall for approximately 30 seconds to one minute. Pfohl Decl. ¶ 27. The followers then
16 returned to Room 104. Gordon Decl. Ex. A p. 146:11-13. At that point, the group continued with
17 the restorative justice session, which lasted approximately another two hours. Id. p. 146:14-22.
18 At 10:47 a.m., Superintendent Williams sent an email to the District community notifying
19 them that the Albany Police Department was investigating a report of a noose in the park next to
20 AHS and that police and administrators were on site to support students. Williams Decl. ¶ 16 & Ex.
21 B. Prior to sending the email, Ms. Williams spoke with police, and they confirmed the accuracy of
22 her message. Id. The email was sent because police were on campus asking questions about the
23 noose and Ms. Williams wanted to provide the information supplied by police before the rumor-
24 mill began running rampant and to assure parents that police were present and their children were
25 safe. Id. After the email was sent, police informed administrators that the rope found in the park
26 was believed to be a swing that children were playing with. Parenti Decl. ¶ 13. As soon as Ms.
27 Williams received this information, at 11:52 a.m., she sent out another update informing the
28 community what she had learned from the police. Williams Decl. ¶ 17 Ex. C. Approximately an
11
1 hour later, a member of the community wrote to Ms. Williams, saying he had received her
2 messages and that the second update was incorrect. Id. & Ex. D. He informed Ms. Williams that he
3 had seen the rope swing, but he also saw the noose “which was expertly tied and unmistakable.” Id.
4 Ms. Williams did not send out another update, but referred the parent to the police to assist with
5 their investigation. Id.
6 When the SEEDS group session ended, Plaintiff and the other followers were escorted back
7 into the conference room in the main office. Anderson Decl. ¶ 35; Gordon Decl. Ex. A p. 147:8-20.
8 Plaintiff walked past students participating in the sit-in on the way to the main office, but the
9 students remained quiet. Gordon Decl. Ex. A p. 149:16-20. Plaintiff testified that, from the time he
10 left the group session to the time he went into the main office, nothing eventful happened. Id. p.
11 148:19-22. Back in the main office, the SEEDS personnel continued to talk with the followers and
12 informed them they were free to leave. Id. p. 150:7-14. Plaintiff saw two of the followers leave at
13 that time. Id. pp. 150:15-25—151:19-24. Plaintiff did not leave at that time because he “wanted to
14 finish the school day.” Id. p. 151:1-2.
15 Superintendent Williams arrived at AHS at approximately 1:00 p.m. Williams Decl. ¶ 18.
16 When she arrived, media vans were present and students were congregated in the front of the
17 school. Id. Most of the students in front of the school were sitting and had made a pathway for
18 persons to enter and exit the school. Id. The students appeared calm and were talking amongst
19 themselves. Id. Students also continued to sit in the atrium, holding signs and remaining quiet. Id.
20 Ms. Williams went into the main office, spoke with the followers that remained at school and asked
21 if they were hungry. Id. They said they were and Ms. Williams had pizza from the school cafeteria
22 brought in for the boys. Id.; see also Gordon Decl. Ex. A p. 151:10-18. After eating the pizza, one
23 of the followers sent a social media post of a pizza box with crumbs in it with a caption saying
24 something along the lines of “just chillin eating pizza.” Pfohl Decl. ¶ 30. Students in the sit-in saw
25 the post and became angry because they had been sitting without food for several hours. Id.
26 During this time, Principal Anderson, an Albany Police Officer, Mr. Parenti, and one of the
27 follower’s parents were discussing how the remaining followers should exit the school. Anderson
28 Decl. ¶ 36. The parent indicated that she did not want her son to have to walk out the front of the
12
1 school through the pathway created by the students in the sit-in. Id. The same parent requested that
2 police officers be called in to escort the students out of the school. Id. The officer explained that he
3 could not call in only a couple of officers and that, if the police were brought in, it would have to be
4 a full squad in full riot gear. Id. The officer made clear that this would not be the best exit strategy
5 because it could escalate the situation. Id. Ultimately, the adults determined that the remaining
6 followers should be escorted across the hall, through the attendance office, and out of a side door of
7 the school by the Gym. Id. The route taken is depicted in Exhibit B to the Declaration of Scott
8 Shevelson filed in support of this motion. This route would bring the followers into the least
9 amount of contact with other students. Anderson Decl. ¶ 36. Plaintiff overheard the adults
10 discussing the exit strategy and it was his understanding that they were trying to determine the
11 safest route out of the school. Gordon Decl. Ex. A pp. 153:15-25—154:1-11.
12 Once everyone agreed on the exit plan, the parents arranged for a van to pick up the
13 followers. Anderson Decl. ¶ 38. Around 4:00 p.m., the adults implemented the exit plan. Id. The
14 followers, including Plaintiff, were lined up and escorted by the police officer, Mr. Anderson, Mr.
15 Parenti, P.E. teacher Scott Shevelson, and the followers’ parents who were present. Id. There was
16 approximately one adult for each of the followers. Id. The followers were escorted single file from
17 the main office, across the hall into the attendance office, out a side door in the attendance office
18 and across the outdoor quad, into the gym lobby, and then out the side doors of the school.
19 Shevelson Decl. ¶ 13 & Ex. B. When the followers and their escorts reached the gym lobby, they
20 were met with a group of students. Anderson Decl. ¶ 38. The lobby was crowded and the students
21 were loud and angry, but there was no attempt of physical violence at that point. Shevelson Decl. ¶
22 13. Mr. Shevelson, along with Plaintiff and two other followers went through the gym lobby and
23 out the side doors of the school just as the other followers were getting into the van that was waiting
24 for them. Id. At that point, one of the follower’s mom’s said her car was down the street and said
25 they needed to go that direction. Id. ¶ 14. As they began walking, a student came up to one of the
26 followers, punched him, and then punched Plaintiff. Id. Mr. Shevelson intervened and pulled the
27 student attacker away who ran down the street. Id. Plaintiff was not hurt by the punch. Gordon
28 Decl. Ex. A p. 155-158. Mr. Shevelson escorted Plaintiff to the car and they drove away.
13
1 ARGUMENT
2 I. The Individual Defendants Are Entitled to Qualified Immunity on Plaintiff’s Fourth
and Fourteenth Amendment Claims (the Fifth and Seventh Claims)
3
4 Plaintiff’s fifth claim asserts violation of the Fourth Amendment and is based on the
5 allegation that Plaintiff was “forcibly detained” on the day of the SEEDS event. The seventh claim
6 asserts deprivation of substantive due process under the Fourteenth Amendment and is based on the
7 allegation that Defendants’ actions placed Plaintiff in danger on the day of the SEEDS event.
8 Defendants are entitled to qualified immunity on both of these claims. To determine whether
9 qualified immunity applies in a given case, federal courts consider two questions: (1) whether the
10 defendant violated the constitution; and (2) whether the particular right that the official has violated
11 was clearly established at the time of the violation.” Shafer v. Cty. Of Santa Barbara, 868 F.3d
12 1110, 1115 (9th Cir. 2017). The purpose of the qualified immunity doctrine is to provide public
13 officials with “breathing room to make reasonable but mistaken judgments about open legal
14 questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). The doctrine protects “all by the plainly
15 incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
16 A. There was no violation of the Fourth Amendment because, according to

Plaintiff’s own testimony, no school official ever restrained his liberty
17
18 The Fourth Amendment prohibits unreasonable searches and seizures. County of
19 Sacramento v. Lewis, 523 U.S. 833, 843 (1998). The Ninth Circuit has made clear that the Fourth
20 Amendment applies in the school environment. Doe v. Hawaii Dep’t of Educ., 334 F.3d 906, 908
21 (9th Cir. 2003). Federal courts have recognized, however, that the school setting is different from
22 ordinary interaction between law enforcement and the public because compulsory school attendance
23 laws “automatically inhibit the liberty interest afforded public school students, as the law compels
24 students to attend school in the first place.” Shuman v. Penn Manor Sch. Dist., 422 F.3d 141, 148-
25 149 (3d Cir. 2005) (emphasis added). Thus, in determining whether a seizure has occurred at school
26 in violation of the Fourth Amendment, two questions arise. First, the court must determine whether
27 a school official intentionally terminated the student’s freedom of movement. See Brower, 489 U.S.
28 at 596-597 (stating that a seizure occurs “only when there is a governmental termination of freedom
14
1 of movement through means intentionally applied”). Second, because not all seizures violate the
2 Fourth Amendment, the court must address whether the seizure was unreasonable under the
3 circumstances. Moreno v. Baca, 400 F.3d 1152, 1156 (9th Cir. 2005) (“The Fourth Amendment
4 does not proscribe all state-initiated searches and seizures; it merely proscribes those which are
5 unreasonable.”). As such, “[i]n applying the Fourth Amendment in the school context, the
6 reasonableness of the seizure must be considered in light of the educational objectives [the school
7 official] was trying to achieve.” Doe v. Haw. Dep’t of Educ., 334 F.3d at 909.
8 Plaintiff alleges that Defendants violated the Fourth Amendment by “luring” him to the
9 restorative justice meeting and “publishing the time and whereabouts of this meeting to the student
10 body and public at large,” (FAC ¶ 144), and by forcing him to “march through the high school” and
11 “line[] up in full view of all or most of the student body where the student body was allowed to hurl
12 obscenities, scream profanities, and jeer at [him],” (id., ¶ 138). The undisputed evidence, including
13 Plaintiff’s own deposition testimony, shows that these allegations are false.
14 Plaintiff was not “lured” to the SEEDS meeting. Rather, the undisputed evidence shows that
15 Plaintiff’s father was informed of the event in writing and over the phone, and that school officials
16 made clear that the event was voluntary and that Plaintiff could chose to stay home that day without
17 being marked absent. Anderson Decl. ¶ 22, 27 & Exs. E & G. The evidence further shows that
18 school officials never published the time and location of the SEEDS meeting to the student body.
19 Id. ¶ 33 & Ex. D. Rather, school officials only contacted the followers and the victims regarding the
20 time and location of the event. Id.¶¶ 22, 33. Defendants have asked Plaintiff to produce all
21 documents supporting the allegation that Plaintiff was “lured” to the SEEDS event and supporting
22 the allegation that Defendants published the time and location of the SEEDS event. Gordon Decl. ¶
23 3. Plaintiff has produced no such documents. Id.
24 As to the allegation that Plaintiff was forced to line up in front of the student body, this
25 allegation is unequivocally false. Plaintiff testified that it was the victim girls—not any school
26 official—that asked the followers to go out of the mediation room to see the sit-in. Gordon Decl.,
27 Ex. A p. 143:5-10, 144:6-10. He testified that he didn’t mind complying with the girls’ request and
28 that some of the followers did not agree with the request and stayed in the mediation room. Id. p.
15
1 144:11-13, 145:18-23. He also testified that, when he complied with the girls’ request, the students
2 in the sit-in were being quiet, which contradicts the false allegation that students were “allowed to
3 hurl obscenities, scream profanities, and jeer at [him]” at the time. Id. p. 144:18-25—145:1.
4 Plaintiffs’ testimony demonstrates that his freedom of movement was never terminated by school
5 officials on the day of the SEEDS event. The event itself was voluntary; Plaintiff was not “forced”
6 to line up in front of the students participating in the sit-it; and, when the SEEDS session ended,
7 Plaintiff was taken back to the main office and informed he was free to leave. Indeed, Plaintiff
8 testified that he saw at least two other followers leave and that he stayed because he wanted to
9 finish the school day. Id. p. 150:7-15—151:1-24. When the students in the sit-in failed to disperse,
10 school officials formulated a plan (with the police officer and parents present) to escort Plaintiff out
11 the side of the school with the least amount of exposure to the student body. Id. p. 151:10-18,
12 153:15-25—154:1-11; Williams Decl. ¶ 19.
13 Because there is no evidence that any of the Defendants took action to intentionally
14 terminate Plaintiff’s freedom of movement, the Fourth Amendment claim fails as a matter of law. 3
15 B. No precedent exists that would have put every reasonable school official on
notice that Defendants’ conduct in this case violated the Fourth Amendment
16
17 The first prong of the qualified immunity analysis asks whether there was a constitutional
18 violation. The second prong of the analysis requires the court to determine whether the right at issue
19 was “clearly established” at the time of the alleged violation. Dible v. City of Chandler, 515 F.3d
20 918, 930 (9th Cir. 2008). “It is the plaintiff who bears the burden of showing that the rights
21 allegedly violated were clearly established.” Shafer, 868 F.3d at 1118 (quotation marks omitted).
22 As indicated above, the Ninth Circuit has held that the Fourth Amendment applies in the
23 school setting. Doe, 334 F.3d at 908. That, however, is only the beginning of the analysis. The
24
25 3
To the extent that the walk from the SEEDS room to the main office and the walk from the main
office out the side of the school at the end of the day could be considered ‘technical’ seizures—
26
which Defendants do not concede—they were objectively reasonable under the circumstances.
27 Transferring the followers to the main office served the educational objective of allowing school
officials to supervise the students while they waited for their parents to arrive. Similarly, the
28 escorted walk out of the school provided adult supervision and protection with the least amount of
exposure to the student body as possible. Anderson Decl. ¶¶ 35-37.
16
1 Supreme Court has repeatedly instructed the circuit courts that the clearly established inquiry “must
2 be undertaken in light of the specific context of the case, not as a broad general proposition.”
3 Mullenix v. Luna, 136 S.Ct. 305, 308 (2015). According to the Ninth Circuit, to overcome qualified
4 immunity, a plaintiff “must ‘identify a case where an officer acting under similar circumstances …
5 was held to have violated the [constitution].” S.B. v. Cnty of San Diego, 864 F.3d 1010, 1015-1016
6 (9th Cir. 2017). “So long as existing caselaw ‘did not preclude’ an official from reasonably
7 believing that his or her conduct was lawful, the official has a right to qualified immunity.” Kramer
8 v. Cullinan, 878 F.3d at 1163 (9th Cir. 2018). In May 2017, the Ninth Circuit explained that, “[i]n
9 recent years, the [Supreme] Court has tightened the inquiry to focus closely on an analysis of
10 existing precedent” and that “existing precedent must have placed the statutory or constitutional
11 question beyond debate,’ such that ‘every’ reasonable official—not just ‘a’ reasonable official—
12 would have understood that he was violating a clearly established right.” Morales v. Fry, 873 F.3d
13 817, 823 (9th Cir. 2017) (italics in original).
14 Thus, the question is whether Plaintiff can present a factually similar case that would have
15 put every reasonable school official on notice that Defendants’ conduct violated the Fourth
16 Amendment. No such case exists. Federal courts have addressed the Fourth Amendment in the
17 school context in two factual settings. The first is where a school official uses actual physical force
18 to restrain or discipline a student. Doe, 334 F.3d at 909 (applying Fourth Amendment where school
19 official disciplined a second grade student by taping the student’s head to a tree for five minutes).
20 The second is where a student is detained at school while school officials investigate a criminal
21 offense. Shuman v. Penn Manor Sch. Dist., 422 F.3d 141 (3d Cir. 2005) (holding Fourth
22 Amendment not violated where high school student was detained in school office for approximately
23 4 hours while school officials investigated allegation of sexual misconduct). These scenarios do not
24 apply in this case. School officials did not use physical force in this case and Plaintiff was not
25 detained at school to investigate a criminal offense. Put simply, Defendants are aware of no case
26 indicating that anything done by school officials on March 30, 2017, violated Plaintiff’s rights
27 under the Fourth Amendment. As such, Defendants are entitled to qualified immunity.
28 ///
17
1 C. There was no violation of the Fourteenth Amendment because the undisputed

evidence shows that Defendants did not act deliberately indifferent to Plaintiff’s
2 safety
3 In the seventh claim, Plaintiff contends that Defendants deprived him of substantive due
4 process under the Fourteenth Amendment on the theory of state-created danger. In support of the
5 claim, Plaintiff alleges that Defendants created “a dangerous situation by promoting the student
6 demonstration, inciting the demonstrators with false stories of a ‘noose,’ notifying demonstrators
7 when and where Plaintiffs were participating in a restorative justices section [sic], then failing to
8 protect the Plaintiffs’ identities and their safety.” FAC ¶ 157. As with the allegations related to the
9 Fourth Amendment claim, the undisputed evidence shows that these allegations are false.
10 The state-created danger doctrine has stems from dicta in DeShaney v. Winnebago County
11 Dep’t of Social Services, 489 U.S. 189 (1989). There, the Supreme Court reiterated the proposition
12 that “a State’s failure to protect an individual against private violence simply does not constitute a
13 violation of the Due Process Clause.” Id., at 197. Applying that principle, the Court held that state
14 social workers could not be held liable under the Fourteenth Amendment for failing to remove a
15 four-year-old child from an abusive household even though the social workers knew that the father
16 was abusive. Id., at 202-203. The Court suggested in dicta, however, that the result may have been
17 different had the State played a role in created or enhancing the danger to which the child was
18 exposed. Id., at 201. Based on that dicta, every circuit court, including the Ninth Circuit, has
19 recognized the state-created danger theory of recovery under the Fourteenth Amendment. McQueen
20 v. Beecher Cmty. Sch., 433 F.3d 460, 464 (6th Cir. 2006).
21 In the Ninth Circuit, to proceed on the state-created danger theory, the plaintiff must show
22 that a state actor actively participated in creating a dangerous situation, “and acted with deliberate
23 indifference to the known or obvious danger in subjecting the plaintiff to it.” L.W. v. Grubbs, 92
24 F.3d 894, 899-900 (9th Cir. 1996). “The key to the state-created danger cases … lies in the state
25 actors’ culpable knowledge and conduct in ‘affirmatively placing an individual in a position of
26 danger, effectively stripping a person of her ability to defend herself, or cutting off potential sources
27 of private aid.’” Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 201 (5th Cir. 1994). More
28 recently, the Ninth Circuit has explained in a state-created danger case that “[d]eliberate
18
1 indifference is ‘a stringent standard of fault, requiring proof that a municipal actor disregarded a
2 known or obvious consequence of his action.’” Hernandez v. City of San Jose, 897 F.3d 1125, 1136
3 (9th Cir. 2018). “It requires a culpable mental state, and the standard [the Court] appl[ies] is even
4 higher than gross negligence.” Id. (internal quotation marks omitted, brackets in original). To prove
5 deliberate indifference, Plaintiff must provide evidence demonstrating that Defendants
6 “recognize[d] [an] unreasonable risk and actually intend[ed] to expose [Plaintiff] to such risks.” Id.
7 As noted in the Court’s August 24, 2018 Order (ECF No. 191), the Ninth Circuit’s recent
8 decision in Hernandez v. City of San Jose, 897 F.3d 1125 (9th Cir. 2018) is instructive on this issue.
9 There, the City of San Jose and several of its police officers were sued for the way they handled a
10 political rally in 2016 for then-Presidential candidate Donald Trump. Id. at 1128-29. The plaintiffs
11 in the case were individuals who attended the political rally. They alleged that the police
12 department was aware that Trump rallies in other cities had “spurred violent anti-Trump protests,”
13 and that, before the rally started, officers were already aware of violence occurring outside the
14 convention center and had witnessed the violence firsthand. Id. at 1129-30. The plaintiffs alleged
15 that, notwithstanding the police department’s knowledge of ongoing violence, they “[d]irect[ed]
16 [them] into the [m]ob of [v]iolent [p]rotesters,” and “actively prevented [plaintiffs] from leaving
17 through alternative exits” Id. at 1129. Based on these allegations, the plaintiffs sued the City and its
18 officers for deprivation of substantive due process on the theory of state-created danger.
19 The court in Hernandez held that the plaintiffs had sufficiently alleged a violation of the
20 Fourteenth Amendment. Hernandez, 897 F.3d at 1140. The court noted that, to state a claim under
21 the theory of state-created danger, a plaintiff must allege that the defendants took affirmative acts
22 that created an actual, particularized danger and that the defendants acted with deliberate
23 indifference to that danger. Id., at 1133. The court found that the plaintiffs had sufficiently alleged
24 affirmative acts through their allegations that the officers directed them into the violent mob and
25 actively prevented them from taking an alternative exit. Id., at 1133-34. The court further found that
26 the plaintiffs had sufficiently alleged deliberate indifference because the officers had already
27 witnessed violence occurring prior to the rally and then “greatly increased that risk of violence
28 ///
19
1 when they shepherded and directed the Attendees towards the unruly mob” while actively
2 preventing them from leaving by alternative exits. Id. at 1134, 1136.
3 The undisputed evidence in this case stands in stark contrast to the allegations in Hernandez.
4 Here, school officials were not aware of prior acts of violence. No violence took place on the day of
5 the discovery of the account or in the days following the discovery of the account prior to the
6 SEEDS event. Anderson Decl. 26. Moreover, several organized events took place in the 10 days
7 between the discovery of the account and the SEEDS event—including a lunch-time forum on
8 Friday March 24, 2017, the parent-organized “Albany for All” rally on Sunday March 26, 2017, the
9 group discussions between SEEDS and AHS students on Tuesday March 28, 2017, and the
10 diversity rally at AHS on Wednesday March 29, 2017. Id. No students were violent at those events;
11 no students made any mention of violence; and nothing that occurred at those events led school
12 administrators to believe that the student body may become violent on the day of the SEEDS event.
13 Id. Moreover, school officials did not become aware that the student-body was planning a sit-in
14 until late the night before the event and the social media messages they saw from students did not
15 mention violence. Id. ¶ 25. And, when the sit-in began around 11:00 a.m. on the morning of the
16 SEEDS event, school officials were actively looking to see whether the demonstrators may become
17 violent and saw the students sitting peacefully with signs that said “love not hate,” “Albany for
18 All,” “Black is Beautiful,” and “We will not stand for racism.” Parenti Decl. ¶ 11.
19 Equally significant, the undisputed evidence shows that, unlike Hernandez, school officials
20 did not actively prevent the followers from leaving school that day or prevent them from taking an
21 alternative exit or direct them through the front of the school where the majority of students were
22 located. Instead, Plaintiff was expressly told that he was free to leave after the group SEEDS
23 session and Plaintiff saw at least two other followers leave at that time. Gordon Decl. Ex. A p.
24 150:7-14; Anderson Decl. ¶ 35. Plaintiff stayed because he “wanted to finish the school day.”
25 Gordon Decl. Ex. A p. 151:1-2. When it became clear that students were not dispersing at the end
26 of the day, school officials developed a plan with the police officer on site as well as the followers’
27 parents that were present and determined that the followers should be escorted by several adults out
28 the side of the school to minimize the followers’ exposure to the student body. Anderson Decl. ¶
20
1 36; Shevelson Decl. Ex. B. Indeed, Plaintiff himself testified that he heard school officials
2 discussing the exit strategy and that it was his impression that they were trying to determine the
3 safest way out of the school. Gordon Decl. Ex. A p. 153:15-25—154:1-11.
4 The above evidence shows that none of the facts relied on by the court in Hernandez exist in
5 this case—school officials were not on notice of prior acts of violence; they did not actively prevent
6 the followers from leaving or taking alternative exits; and the followers were escorted by several
7 adults, including a police officer, out the side door of the school to minimize exposure to students.
8 Returning briefly to Plaintiff’s allegations, there is no evidence that school officials
9 promoted the student sit-in or disclosed the time and location of the SEEDS event. School officials
10 did not learn of the sit-in until the night before the SEEDS event and they certainly didn’t promote
11 the sit-in. Anderson Decl. ¶¶ 25, 28. Rather, the evidence shows that, as soon as school officials
12 heard of the plan for the sit-in, they contacted police and insured that additional staff would be
13 present. Pfohl Decl. ¶ 23. As to the timing and location of the SEEDS event, when Principal
14 Anderson notified AHS parents of the upcoming events on Monday March 27, 2017, he was careful
15 not to include the details of the SEEDS meeting between the victims and followers. Anderson Decl.
16 ¶ 22 & Ex. D. There is no evidence in this case that any school official ever disclosed the time and
17 location of the event to the student body or public.
18 Regarding the allegation that Defendants incited the demonstrators with “false stories of a
19 ‘noose,’ the allegation is not supported by the evidence. Police reported to Ms. Pfohl at 6:30 a.m.
20 the morning of the SEEDS event that they had received a report of a noose in the park next to the
21 school and that they would have officers on campus that morning investigating the incident. Pfohl
22 Decl. ¶ 24. With officers on campus that morning asking students questions about a noose, after
23 speaking with the Police Department and confirming the accuracy of the story, Superintendent
24 Williams sent an email the District community reporting what she had learned before rumors started
25 to spread and to assure parents that there students were safe. Williams Decl. ¶ 16 Ex. B. The email
26 was sent at 10:47 a.m. and did not mention any of the followers’ names or even suggest that the
27 followers were responsible for the noose. Id. Around 11:50 a.m., police reported that their
28 ///
21
1 investigation indicated that the noose was a rope swing being used by children in the park and Ms.
2 Williams immediately sent an email updating the community. Id. ¶ 17 Ex. C.
3 There is no evidence that Superintendent Williams email increased the danger to Plaintiff.
4 Indeed, the first email was sent at 10:47. The SEEDS group session ended around noon and two of
5 the followers simply walked out of the school without incident. Gordon Decl. Ex. A p. 150:15-25—
6 151:19-24. Moreover, even assuming that Ms. Williams’ email increased the danger to Plaintiff,
7 which is not supported by the evidence, the question becomes whether Defendants were
8 deliberately indifferent to that danger. Grubbs, 92 F.3d at 899-900. The answer to that question is
9 clearly “no.” After sending the second email, Superintendent Williams went to AHS where
10 additional district administrators and at least two police officers were already present. When she
11 arrived around 1:00 p.m., students were congregated in the atrium and outside the front of the
12 school, but remained peaceful and most were sitting. Williams Decl. ¶ 18. Ms. Williams spoke with
13 site administrators and then checked on Plaintiff and the other remaining followers and provided
14 them pizza for lunch. Id. Ms. Williams then spoke to the students gathered in the atrium and asked
15 them to disperse. Id. ¶ 19. When the students refused, Ms. Williams initiated discussions with Mr.
16 Anderson, Mr. Parenti, and the police officer present on a strategy for Plaintiff and the other
17 followers to exit the school in the safest way possible with the least exposure to students. Id.
18 Administrators ultimately determined (with the advice of the police officer) that the followers
19 would be escorted by adults out the side of the school to avoid the students in the sit-in. This
20 evidence shows that, unlike the cases were state-created danger was present, school officials did not
21 abandon Plaintiff in a knowingly dangerous situation. See Johnson, 38 F.3d at 201-202.
22 D. No precedent exists that would have put every reasonable school official on
notice that Defendants’ conduct violated the Fourteenth Amendment
23
24 As noted in Section B above, if the Court determines that a constitutional violation occurred,
25 Plaintiff bears the burden of coming forward with case law pre-dating the March 30, 2017 incident
26 that would have put every reasonable school official on notice that Defendants’ conduct violated the
27 constitution in this case. The Supreme Court’s decision in DeShaney was issued in February 1989.
28 Later that same year, the Ninth Circuit issued a decision in Wood v. Ostrander, 879 F.2d 583 (9th
22
1 Cir. 1989). There, a police officer pulled over a car at 2:30 a.m. in a high-crime area, arrested the
2 intoxicated driver, impounded the car, and left the female passenger to fend for herself. Id., at 586.
3 The woman was subsequently raped while walking home. Id. The Ninth Circuit held that these facts
4 triggered a duty of the police to afform the plaintiff some measure of safety. Id., at 590.
5 In 1992, in Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992), the Fifth Circuit addressed
6 state-created danger in the hostage context. There, a court clerk was taken hostage by her boyfriend
7 at the courthouse after the boyfriend had been accused of molesting the court clerk’s daughters. Id.,
8 at 302. The sheriff’s department asserted jurisdiction and dismissed the city police and SWAT team
9 who were already present and had experience in hostage negotiations while the sheriff’s department
10 did not. Id. at 309. Following botched negotiations with the assailant and after refusing the help of
11 local negotiations experts, the boyfriend shot and killed the court clerk. The court held that the
12 sheriff was entitled to summary judgment because, although his actions may have increased the
13 danger to the hostage, it did not mean that he was deliberately indifferent to the situation because
14 the sheriff’s department did provide some “meaningful” protection. Id., at 308-09.
15 In 1994, the Fifth Circuit addressed state-created danger in the school context in Leffall v.
16 Dallas Indep. Sch. Dist., 28 F.3d 521 (5th Cir. 1994). There, a high-school student was killed after a
17 school dance when students began firing handguns into the air. Id., at 523. School officials knew
18 that students had done this after previous dances. Id. The court affirmed the dismissal of the action,
19 relying on the Ninth Circuit’s decision in Wood, and concluding that even if school officials were
20 grossly negligent, their conduct did not rise to the culpable mental state of deliberate indifference.
21 Id., at 530; see also Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198 (5th Cir. 1994).
22 In 1996, the Ninth Circuit again addressed state-created danger in L.W. v. Grubbs, 92 F.3d
23 894 (9th Cir. 1996). There, a female nurse employed by a state institution was sexually assaulted by
24 a juvenile inmate. The perpetrator was known to be a sex offender but was nonetheless assigned to
25 work alone with the plaintiff. Id., at 896. The Ninth Circuit reversed judgment in favor of the
26 plaintiff, holding that gross negligence was not sufficient and that the evidence did not support a
27 finding of deliberate indifference. Id., at 900. In 2000, in Munger v. City of Glasgow Police Dep’t,
28 227 F.3d 1082 (9th Cir. 2000), the Ninth Circuit again addressed state-created danger. There, police
23
1 officers ejected a patron of a bar in sub-freezing temperatures and prevented him from driving his
2 truck to returning to the bar. Id., at 1087. The patron, who was visibly intoxicated, was only
3 wearing a t-shirt and subsequently froze to death. Id. The court ultimately held that qualified
4 immunity did not apply because the officers placed the decedent in a dangerous situation and
5 actively prevented him from reaching safety. Id.
6 In 2006, the Sixth Circuit addressed the issue in the school context in McQueen v. Beecher
7 Community Sch., 433 F.3d 460 (6th Cir. 2006). There, a group of elementary school students were
8 placed in a classroom as a punishment for not doing their work. Id., at 463. One of the students,
9 who had a known tendency for attacking other students, took out a gun and shot and killed a girl. Id.
10 The court affirmed summary judgment in favor of the school, holding that placing the students in a
11 room unsupervised was not an “affirmative act” sufficient to trigger state-created danger under
12 DeShaney. Id., at 467; see also King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812 (7th Cir. 2007).
13 The common theme in all of these cases is that, for state-created danger to apply, the
14 defendant must affirmatively place the plaintiff in danger and then act deliberately indifferent to
15 that danger by abandoning the plaintiff or failing to provide some form of protection from known
16 dangers. The evidence simply does not support those factors in this case. The only conduct that can
17 even arguably be considered an affirmative act is the email reporting that the police were
18 investigating the presence of a noose in the park and that additional supervision was being provided
19 at AHS to secure students’ safety. That, however, does not save Plaintiff’s claim. First, there is no
20 case law even suggesting that a public statement by a public official can provide the basis for a
21 state-created danger claim. Indeed, the Second Circuit expressly rejected the assertion that such a
22 statement could provide the basis for a state-created danger claim. Benzman v. Whitman, 523 F.3d
23 119, 127-28 (2d Cir. 2008). More importantly, even assuming that the email increased the danger to
24 Plaintiff, the undisputed evidence shows that Defendants did not abandon him in that dangerous
25 situation or cut him off from a source of private aid. Indeed, the undisputed evidence, including
26 Plaintiff’s own testimony, shows that Defendants actively attempted to provide him with the safest
27 route out of school, escorted by several adults, with the least exposure to the student body.
28 ///
24
1 In sum, this case presents a unique factual scenario in which school officials did the best
2 they could given the firestorm created by Plaintiff and his friends. School officials took numerous
3 actions to deescalate the situation and to provide a safe re-entry to school for Plaintiff. Some may,
4 in hindsight, consider their actions to be negligent. But there is no case law that would have put
5 every reasonable school official on notice that Defendants’ conduct deprived Plaintiff of substantive
6 due process. As such Defendants are entitled to qualified immunity on Plaintiff’s seventh claim.
7 II. Defendants Are Entitled to Summary Judgment on Plaintiff’s Remaining State Claim
8 In the eighth claim, Plaintiff asserts that Defendants deprived him of substantive due process
9 under article I, section 7 of the California Constitution and is based on the same allegations from
10 the seventh claim for state-created danger under the Fourteenth Amendment. The claim fails for
11 multiple reasons. First, California courts look to federal courts’ interpretation of the Due Process
12 Clause in interpreting its state law counterpart. Katzberg v. Regents of Univ. of Cal., 29 Cal.4th 300,
13 305 (2002). Thus, the eighth claim fails for the same reason as the seventh (i.e., the undisputed
14 evidence shows that Defendants were not deliberately indifferent to Plaintiff’s safety). Second, to
15 the extent the claim is asserted against Superintendent Williams for her role in sending the email on
16 March 30, 2017, she is entitled to absolute immunity under California Civil Code § 47(a), which
17 provides that a publication made “[i]n the proper discharge of an official duty” is absolutely
18 privileged. Morrow v. Los Angeles Unified Sch. Dist., 149 Cal.App.4th 1424 (2007). Finally,
19 Defendants are not aware of a single case in which a California Court has applied the state-created
20 danger doctrine under article I, section 7 and the cases suggest that a private right of action does not
21 exist to seek monetary damages under that provision. Katzberg, 29 Cal.4th at 329.
22 CONCLUSION
23 For the reasons set forth above, Defendants respectfully request that summary judgment be
24 entered in their favor on Plaintiff’s remaining claims (the fifth, seventh, and eighth claims).
25 Dated: March 4, 2019 LEONE & ALBERTS
26
27 SETH L. GORDON, ESQ.

Attorney for Defendants
28
25

Albany Defendants MSJ On Phil Shen's Nonfirstamendment Claims.

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Albany Defendants MSJ On Phil Shen's Nonfirstamendment Claims.

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Case 3:17-cv-02478-JD Document 199 Filed 03/04/19 Page 1 of 30

1 LOUIS A. LEONE, ESQ. (SBN: 099874)

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

9 A. There was no violation of the Fourth Amendment because, according to

13 C. There was no violation of the Fourteenth Amendment because the

16 Johnson v. Dallas Indep. Sch. Dist.,

1 Munger v. City of Glasgow Police Dep’t,

16 A. There was no violation of the Fourth Amendment because, according to

18 The Fourth Amendment prohibits unreasonable searches and seizures. County of

1 C. There was no violation of the Fourteenth Amendment because the undisputed

25 actors’ culpable knowledge and conduct in ‘affirmatively placing an individual in a position of

27 SETH L. GORDON, ESQ.

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