9.33B Particular Rights—Fourteenth Amendment—Due Process—State-Created Danger

            As previously explained, the plaintiff has the burden of proving that the act[s] of the defendant[s] [insert name[s] of defendant[s]] deprived the plaintiff of particular rights under the United States Constitution. 

            In this case, the plaintiff alleges that the defendant[s] deprived the plaintiff of [his] [her] rights under the Fourteenth Amendment to the Constitution when [insert factual basis of the plaintiff’s claim]. 

            Under the Fourteenth Amendment, a person has the constitutional right to be free from a government employee affirmatively placing that person in a position of actual, particularized danger (or in a situation of actual, particularized danger that is more dangerous than the position that the person already faced) if the government employee acted with deliberate indifference to a known or obvious danger. 

            In order to prove the defendant[s] deprived the plaintiff of this Fourteenth Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence: 

1.         the defendant[s] committed an affirmative act; 

2.         the affirmative act placed the plaintiff in a position of an actual, particularized danger by creating or exposing the plaintiff to a danger that [he] [she] would not have otherwise faced; 

3.         the defendant[s] acted with deliberate indifference to a known or obvious danger; and 

4.         the affirmative act that created the actual, particularized danger caused injury to the plaintiff that was foreseeable. 

            In this context, “deliberate indifference” means that the defendant[s] disregarded a known or obvious consequence of [his] [her] [their] action[s].  In other words, the defendant[s] must have known that something was going to happen but ignored the risk and still exposed the plaintiff to that risk. 

Comment 

            Use this instruction only in conjunction with the applicable elements instruction from Instructions 9.3–9.8. 

            See Polanco v. Diaz, 76 F.4th 918, 925-29 (9th Cir. 2023); Murguia v. Langdon, 61 F.4th 1096, 1110-17 (9th Cir. 2023) Hernandez v. City of San Jose, 897 F.3d 1125, 1133-35 (9th Cir. 2018); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061-65 (9th Cir. 2006).

Revised Dec. 2023