UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE MURGUIA, for himself and for No. 21-16709 the Estates of Mason and Maddox Murguia, D.C. No. 1:19-cv-00942- Plaintiff-Appellant, DAD-BAM

v. ORDER HEATHER LANGDON; COUNTY OF TULARE; LEWIS, Deputy at Tulare County Sheriff Department; ROXANNA TORRES, Social Worker at the Child Welfare Service; CITY OF TULARE; GARCIA, Sergeant at Tulare Police Department; FIRST ASSEMBLY OF GOD OF VISALIA; CERDA,

Defendants-Appellees.

Filed July 18, 2023

Before: Carlos T. Bea, Sandra S. Ikuta, and Morgan Christen, Circuit Judges.

Order; Dissent by Judge Bumatay 2 MURGUIA V. LANGDON

SUMMARY *

Civil Rights/State-Created Danger Doctrine

The panel denied a petition for panel rehearing, and denied a petition for rehearing en banc after a request for a vote on whether to rehear the matter en banc failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration, in an action brought pursuant to 42 U.S.C. § 1983 involving the application of the “state- created danger” doctrine in the context of a welfare check. Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by Judges Callahan, Ikuta, and R. Nelson, stated that the court should have seized this opportunity to correct its longstanding errors in applying the state-created danger doctrine and place itself back on track with Supreme Court precedent and the Constitution’s text. Judge Bumatay wrote that only affirmative acts that cause the deprivation of liberty may suffice for a state-created danger claim.

ORDER

Judges Bea and Christen voted to deny the petition for panel rehearing. Judge Ikuta voted to grant the petition for panel rehearing. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MURGUIA V. LANGDON 3

a majority of the votes of the nonrecused active judges in favor of en banc consideration. See Fed. R. App. P. 35(a). The petition for panel rehearing and rehearing en banc is DENIED. A dissent from the denial of rehearing en banc, prepared by Judge Bumatay, is filed concurrently with this order.

BUMATAY, Circuit Judge, joined by CALLAHAN, IKUTA and R. NELSON, Circuit Judges, dissenting from the denial of rehearing en banc:

As a general matter, the Constitution constrains the actions of only government actors. It ordinarily provides no relief to those injured by private parties. Faced with tragic facts, however, we may be tempted to expand the scope of constitutional rights to grant relief to injured parties in federal court. But our job is to look to the text and history of the Constitution for the scope of constitutional remedies—not simply to “make good the wrong done.” Boule v. Egbert, 998 F.3d 370, 374 (9th Cir. 2021) (Bumatay, J., dissenting) (quoting Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 396 (1971)), rev’d, 142 S. Ct. 1793 (2022). Ignoring this principle, most circuit courts, including ours, have recognized the “state-created danger” doctrine as a substantive component of the Fourteenth Amendment’s Due Process Clause. Extrapolating from just two sentences in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), federal courts have carved out an exception to the rule that the Due Process Clause does not obligate the State to protect its citizens from harm caused 4