En Banc Review Denied in Kennedy v. City of Ridgefield

Today the Ninth Circuit refused to rehear Kennedy v. Ridgefield en banc.  (The dissent of 8 judges, who would have voted to rehear it en banc, via Bashman, is here.)  That's somewhat surprising to me, since the case was wrongly decided.  Although I don't have an exact sense on how interested the Supreme Court is in the state-created danger doctrine, I do predict that the Court will grant cert.  If the Court does grant cert, I'll give 10-1 odds that it reverses the Ninth Circuit.  You can read my brief discussion of Ridgefield here.

Comments

[wheeler]

I hope you are right about the cert grant and wrong about the outcome. I'm in the Eleventh Circuit, where cases like this offer no help otherwise. Why? Because as far as 1983 goes, if it didn't happen in the Eleventh Circuit, it didn't happen. Absent a Scotus case explicitly telling them to employ the doctrine, it is unavailable.

[Donald]

Mike, I think I disagree with you on this one. I think that (a) the Ninth Circuit got this case right; (b) it's not in conflict with SCOTUS precedent; and (c) the decision isn't too far off of how the "mainstream" circuits have handled the Deshaney doctrine.

This case is clearly neither DeShaney nor Castle Rock---you have an actual, affirmative act by a state actor that increases the risk of danger to the plaintiff.

And the case actually reminds me quite a bit of one decided by the Seventh Circuit several years ago: Monfils v. Taylor (sorry no handy cite). Sure, the Eleventh and Fourth Circuits have taken an extraordinarily narrow view of the state-created danger doctrine (Chemerinsky calls the Fourth's the most narrow in the country), but the Ninth is right in the mainstream on this one.

[Mike]

Well, Donald, I hope you're right and I'm wrong. Having this case go unreviewed would be some pretty tasty crow. ;)