FOR PUBLICATION

   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.
               Plaintiff-Appellant,      1:19-cv-00942-
                                           DAD-BAM
 v.

HEATHER LANGDON; COUNTY                     OPINION
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.

       Appeal from the United States District Court
          for the Eastern District of California
        Dale A. Drozd, District Judge, Presiding

        Argued and Submitted December 6, 2022
                 Pasadena, California

                  Filed March 14, 2023
2                      MURGUIA V. LANGDON


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

                    Opinion by Judge Bea;
                 Partial Dissent by Judge Ikuta


                          SUMMARY *


                           Civil Rights

    In an action brought pursuant to 

involving the application of the “state-created danger”
doctrine in the context of a welfare check, the panel reversed
in part and vacated in part the district court’s dismissal of
Plaintiffs’ action for failure to state a claim, and remanded.
    According to the First Amended Complaint, Plaintiff
Jose Murguia called 911 seeking emergency mental health
assistance for Heather Langdon, with whom he lived and had
five children. This call set in motion a chain of events that
ultimately led to the death of Langdon’s and Jose’s ten-
month-old twin sons, at Langdon’s own hand.
    Over the course of that day, Langdon interacted with
three groups of law enforcement officers. First, Tulare
County Sheriff’s Department Deputies Lewis and Cerda
arrived at the Murguia home where they separated Jose from
Langdon, leaving her with the twins; the deputies then
allowed Langdon and a neighbor (Rosa) to take the twins to

*
  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 church and prevented Jose from following. Second, a City
of Visalia police officer drove Langdon and the twins from
the church to a women’s shelter. Third, City of Tulare police
officers, acting in part based on information provided by a
County of Tulare social worker, transported Langdon and
the twins from the shelter to a motel to spend the night. Left
unsupervised at the motel where she continued to suffer from
a mental health crisis, Langdon drowned the twins.
    The panel first made clear that the only two exceptions
to the general rule against failure-to-act liability for § 1983
claims presently recognized by this court were the special-
relationship exception and the state-created danger
exception. The panel therefore rejected Plaintiffs’ assertion
that the failure to comply with a legally required duty,
without more, can give rise to a substantive due process
claim. The panel further held that the district court correctly
held that the special-relationship exception did not apply
here because Defendants did not have custody of the twins.
    The panel next held that Plaintiffs’ state-created danger
claim against deputies Lewis and Cerda failed because
Plaintiffs failed to allege facts from which one could
plausibly conclude that Defendants created or enhanced any
danger to the twins. The panel could not say, however, that
amendment would be futile given Plaintiffs’ vague
allegations and because the district court applied an incorrect
“custody” standard—asking whether the twins were in
Langdon’s custody before and after Lewis and Cerda
intervened rather than asking whether the twins were
rendered more vulnerable by Lewis’s and Cerda’s
actions. Accordingly, the panel vacated the district court’s
dismissal order with an instruction to allow Plaintiffs to
amend their complaint.
4                    MURGUIA V. LANGDON


    The panel held that Plaintiffs adequately stated their §
1983 claims against City of Tulare Police Sergeant Garcia
under the state-created danger exception. The panel agreed
with Plaintiffs that Garcia increased the risk of physical
harm to the twins by arranging a room for them at a motel,
transporting Langdon and the twins from the shelter to the
motel, and leaving them there. The panel further concluded
that Plaintiffs pleaded facts plausibly demonstrating that
Garcia acted with deliberate indifference to the risk that
Langdon would physically harm the twins.
    The panel similarly concluded that Plaintiffs adequately
alleged a state-created danger claim against social worker
Torres. When Torres provided Garcia with false
information, she rendered the twins more vulnerable to
physical injury by Langdon by eliminating the most obvious
solution to ensuring the twins’ safety: returning them to
Jose’s custody. Given the allegations that Torres knew
about Langdon’s history of abuse, the panel concluded that
the complaint alleged that Torres was aware of the obvious
risk of harm Langdon presented to the twins and acted with
deliberate indifference.
    Addressing Plaintiffs’ arguments that Defendants’
wrongful affirmative acts deprived Plaintiffs of their
constitutional rights, the panel rejected assertions that Lewis
and Cerda deprived Plaintiffs of their rights to familial
association by temporarily separating Jose and the twins, and
deprived Jose of his Fourth Amendment right to be free from
unreasonable seizure. Plaintiffs’ remaining allegations of
wrongful acts did not require a separate analysis. Finally,
because the panel reversed the dismissal of some of
Plaintiffs’ § 1983 claims against social worker Torres and
Sergeant Garcia, the panel reversed the district court’s
dismissal of Plaintiffs’ Monell claims against the County and
                     MURGUIA V. LANGDON                      5


City of Tulare, reversed the dismissal of Plaintiffs’ state law
claims, and remanded for further proceedings.
    Dissenting in part, Judge Ikuta stated that the majority’s
expansion of the state-created danger doctrine into the realm
of tort law conflicts with Supreme Court precedent and is out
of step with this Court’s broad state-created danger
doctrine. The majority made three mistakes. First, the
majority opinion found a substantive due process violation
in the absence of any abusive exercise of state
authority. Second, the majority opinion indicated that
officials may be liable for failing to take affirmative actions
to protect children from a dangerous parent. But, as
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 

 (1989), held, that failure to protect is not an egregious
abuse of state-assigned power. Finally, the majority
imposed liability for substantive due process violations
when the plaintiffs’ allegations amounted to mere
negligence.
6                   MURGUIA V. LANGDON


                        COUNSEL

Robert A. Rees (argued), Rees Law Firm P.C., Los Angeles,
California; Steven P. Beltran, Beltran Smith LLP, Beverly
Hills, California; for Plaintiff-Appellant.
Amy I. Terrible Myers (argued), Deputy County Counsel;
Kathleen A. Taylor, Chief Deputy County Counsel; Jennifer
M. Flores, County Counsel; The Office of Tulare County
Counsel; Visalia, California; Bruce D. Praet, Ferguson Praet
& Sherman, Santa Ana, California; for Defendants-
Appellees County of Tulare, Deputy Lewis, Sergeant Cerda,
and Roxanna Torres.
Diana L. Field (argued) and Bruce D. Praet, Ferguson Praet
& Sherman, Santa Ana, California, for Defendants-
Appellees City of Tulare, Sergeant Garcia, Officer Davis,
and Officer Valencia.
Leonard C. Herr and Ron Statler, Herr Pedersen & Berglund,
Visalia, California, for Defendants-Appellees City of Visalia
and Officer Hernandez.
Heather Langdon, Patton, California, pro se Defendant-
Appellee.
Michael E. Lehman and Carol A. Seita, Ericksen Arbuthnot,
Fresno, California, for Defendant-Appellee First Assembly
of God of Visalia.
Katherine Perez, LMU Loyola Law School, Los Angeles,
California, for Amici Curiae the Coelho Center for
Disability Law Policy and Innovation, Mental Health
Advocacy Services, and Disability Rights Education and
Defense Fund.
                        MURGUIA V. LANGDON                            7

OPINION

BEA, Circuit Judge:

    This case concerns the application of the “state-created
danger” doctrine of 

 liability in the context
of a welfare check gone wrong. According to Plaintiffs’ First
Amended Complaint (“FAC”), 1 on December 5, 2018,
Heather Langdon experienced a mental health crisis. Jose
Murguia, with whom Langdon lived and had five children,
called 911 seeking emergency mental health assistance for
Langdon. This call set in motion a chain of events that
ultimately led to the death of Langdon’s and Jose’s ten-
month-old twin sons, Mason and Maddox, at Langdon’s own
hand.
    Over the course of that day, Langdon interacted with
three groups of law enforcement officers. First, deputies
from the County of Tulare arrived at the Murguia home
where they separated Jose from Langdon, leaving her with
the twins; the deputies then allowed Langdon and a neighbor
(Rosa) to take the twins to a church and prevented Jose from
following. Second, a City of Visalia police officer drove
Langdon and the twins from the church to a women’s shelter.
Third, City of Tulare police officers, acting in part based on
information provided by a County of Tulare social worker,
transported Langdon and the twins from the shelter to a
motel to spend the night. Left unsupervised at the motel
where she continued to suffer from a mental health crisis,
Langdon drowned the twins.

1
 These facts are taken from the First Amended Complaint (“FAC”) and
are accepted as true for this appeal. See Nguyen v. Endologix, Inc., 

 (9th Cir. 2020).
8                   MURGUIA V. LANGDON


    Jose, on behalf of himself and the estates of twins Mason
and Maddox, brought this § 1983 action against the state
actors who interacted with Langdon on December 5, 2018:
Deputy Lewis and Sergeant Cerda of County of Tulare’s
Sheriff’s Department, Social Worker Torres of County of
Tulare’s Child Welfare Services, and Sergeant Garcia of
City of Tulare’s Police Department. This court must decide
whether Plaintiffs have properly stated claims for § 1983
relief against each of these state actors based on their roles
in creating the circumstances that caused the twins’ deaths.
I.     FACTS
       a. Langdon’s background of child abuse and
          erratic behavior
    Jose Murguia and Heather Langdon met in or about
2004. They married and, prior to the birth of the twins, had
three sons: Jayden, Josiah, and Kaze. The couple had a
turbulent relationship, which was well documented due to
multiple encounters with the legal system and County of
Tulare’s Child Welfare Services (“CWS”).
    As early as June 2011, CWS was aware that Langdon
had committed domestic violence against Jose. On January
5, 2015, a court ordered sole physical and legal custody of
the three sons to Jose, with monitored visits for Langdon; the
court issued a Temporary Restraining Order (“TRO”)
against Langdon, which included a stay away order and
required her to undergo a mental health evaluation. In April
2015, the marriage ended. The court awarded sole physical
and legal custody of the three children to Jose, with
monitored visits for Langdon.
    On January 22, 2016, Langdon was arrested for drunk
driving and willful cruelty to a child. She pleaded guilty to
                       MURGUIA V. LANGDON                         9


both counts. On October 24, 2016, Langdon was arrested for
willful cruelty to a child and inflicting injury on a child. She
pleaded guilty to both counts. 2 On November 1, 2016, the
court awarded sole legal and physical custody of the three
children to Jose, with no visitation to Langdon.
   Jose and Langdon rekindled their relationship in Spring
2017, and Langdon soon became pregnant with twins. On
May 1, 2017, CWS opened a case against Langdon for child
abuse of her oldest son, Jayden. On August 4, 2017, Langdon
was convicted of battery against Jose. As of December 6,
2018 (the date of the twins’ death), CWS had at least one
open case against Langdon, although it is not clear from the
FAC what this open case involved.
    On January 12, 2018, Langdon gave birth to twin sons:
Mason and Maddox. There was no formal custody order for
the twins. The family’s living arrangement at this time is
unclear, but the complaint implies that Langdon and the
twins lived together in a separate home from Jose and the
three older sons.
   In February 2018, Jose reported to CWS that he observed
Langdon drunk while in charge of the twins in her own
apartment. In March 2018, two of Langdon’s friends, Rosa
and Brittany, reported to CWS that they observed Langdon
drunk while in charge of the twins.
    In May 2018, Langdon told Jose that the twins were too
much work for her and asked Jose to take custody of all five
children. Jose agreed. Between August 2018 and early
December 2018, Langdon and the twins moved back into


2
  The FAC does not specify whether the January 22, 2016, and October
24, 2016, incidents involved Langdon’s own children.
10                      MURGUIA V. LANGDON


Jose’s home. As of December 5, 2018, Langdon and Jose
lived together with all five children at Jose’s home.
    Langdon’s erratic behavior began to escalate in late
November 2018. She told Jayden—her oldest son at 14
years-old—that she and he were special in the eyes of God,
that these were “End Times” because a fire had destroyed
the town of Paradise, 3 and that she was “thinking at a higher
power.”
    On December 3 or 4, 2018, Langdon called her church,
First Assembly of God of Visalia (“Church”), and reported
that Jayden had threatened to shoot up an elementary school.
The Church reported the call to Tulare County Sheriff’s
Department (“TCSD”), which investigated the threat and
concluded that Langdon had made a false report.
        b. TCSD deputies respond at the Murguia home
    On December 4, 2018, Jose got home from work at
around 6:30 p.m. When he arrived home, Langdon told him
to get ready for jail because the police were coming to arrest
him. Langdon was “erratic” and repeatedly shouted “I refute
you Satan.” Jose called 911, described Langdon’s behavior,
and requested mental health assistance for Langdon.
   In response to Jose’s call, TCSD Deputy Lewis and an
unnamed TCSD deputy went to the Murguia home. As stated
in the FAC, “Jose reported Langdon’s history to the
deputies,” although it is unclear exactly what “history” Jose
reported (e.g., whether Jose told the deputies that Langdon
had a history of child cruelty resulting in multiple

3
 It is unclear from the FAC whether Langdon was referring to the town
of Paradise, California, which was devastated by a fire in November
2018, or to “Paradise” in the sense used by Dante in his Divine Comedy.
                       MURGUIA V. LANGDON                        11


convictions and child abuse against her own son). Jose asked
the deputies to get professional help for Langdon. The
deputies refused to assist in obtaining psychological help or
a mental health evaluation for Langdon that night. They told
Jose to call back if Langdon threatened herself or anyone
else, in which case the deputies would take Langdon into
custody on an involuntary psychiatric hold.
    The next morning, December 5, 2018, Langdon woke up
at 4:00 a.m. and began “behaving erratically and bizarrely.”
She held one of the baby twins up high towards the ceiling
fan, shouting “haneeshewa.” She bathed and put on makeup
three times in a row. At around 11:00 a.m., she told Jose that
Jesus told her to drink bleach and vinegar to cleanse the
demons in her soul. She told Jose that she had already drunk
some bleach; Jose saw her drinking vinegar. Jose called 911,
reported what Langdon said about drinking bleach and
vinegar, and again asked for assistance in getting
psychological help for Langdon.
    Several TCSD deputies 4 and EMTs arrived at the
Murguia home in response to Jose’s call. Among them were
Deputy Lewis and Sergeant Cerda. The FAC states, “Before
arriving at Jose’s home, Lewis and Cerda knew or should
have known that Langdon had a history of mental illness,
attempting suicide, and violence towards children, that
Langdon had falsely reported a school shooting threat two
days earlier and Langdon had behaved bizarrely the prior
evening and that she had an open CWS case.” (emphasis
added).



4
  We refer to the TCSD deputies collectively, including Deputy Lewis
and Sergeant Cerda, as “Deputies.”
12                  MURGUIA V. LANGDON


    When the Deputies arrived at the Murguia home, they
“took command of the scene.” Lewis, with Cerda’s approval,
ordered Jose to step outside, away from the twins. An
unnamed deputy took Jose’s driver’s license and checked
him against the California Law Enforcement
Telecommunications System (“CLETS”) “and then knew or
should have known of Langdon’s history of mental illness,
cruelty to children and CWS history.” (emphasis added). The
FAC does not specify whether the deputy then
communicated this information to Lewis, Cerda, or any other
individuals present.
    According to the FAC, “Lewis and Cerda observed and
knew that Langdon was gravely disabled, based on her
language, behavior and information from Jose and a
neighbor Rosa.” The FAC alleges that Jose told the Deputies
about Langdon’s bizarre behavior that morning, but does not
otherwise specify what information Jose and Rosa provided
about Langdon’s present condition, past experiences with
mental illness, or past violent behavior. A County of Tulare
fireman who was present at the Murguia home asked
Langdon, in the presence of Lewis and Cerda, if she had any
medical problems. Langdon answered, “yeah, I’m crazy. I’m
crazy. Everyone thinks I’m crazy.” Lewis responded, “who
cares what everyone thinks?” Langdon replied, “No, I really
want to go see a doctor.”
    Langdon told Lewis and Cerda that she sees dead people
and demons, that she talks to God, and that she was going
into another realm. She said that Jose was a devil worshipper
but did not realize it. She claimed to have another husband
waiting for her. In addition to making these bizarre
statements, she “showed rage, anger, and agitation.”
Langdon also said she had been awake for days and wanted
                       MURGUIA V. LANGDON                         13


to see a doctor so she could go back to her “normal life.” She
asked Lewis and Cerda to take her to see a doctor.
    Jose told the Deputies “that Langdon was not okay and
that she needed to be evaluated professionally” and told
them “about Langdon drinking bleach and vinegar, her
multiple baths, and the other bizarre behavior.” Jose told the
Deputies that he wanted to take Langdon to the hospital for
a mental evaluation, but the Deputies did not permit him to
do so. He reminded the Deputies of the previous night’s call,
in which Lewis and the other deputy had promised to get
Langdon a psychiatric evaluation if she threatened to harm
herself or others.
    The Deputies continued to keep Jose out of his house,
away from Langdon and the twins. Jose walked to the home
of Rosa, a friend of Langdon and neighbor of the Murguias.
He asked Rosa to come to the Murguia home to talk to
Langdon “because Langdon had been talking crazy.” When
Rosa arrived at the Murguia home, an unnamed deputy
allowed Rosa to go inside and again told Jose to stay outside.
    Rosa worked at a hospital and had supervised people on
involuntary psychiatric holds. On December 5, 2018, Rosa
believed that the Deputies should take Langdon for mental
health help on an involuntary hold. She “told the [Deputies]
that Langdon needed professional help, and that Langdon
should not have charge of the twins.” 5 In response, an
unnamed deputy told Rosa that Langdon had agreed to go to
the hospital and was waiting for Rosa to take her. According


5
  It is unclear from the FAC what the Deputies knew about Rosa, e.g.,
whether they knew that Rosa worked at a hospital and therefore had
specialized knowledge regarding Langdon’s condition.
14                  MURGUIA V. LANGDON


to the FAC, “Neither Rosa nor the [Deputies] believed the
babies were safe with Langdon.”
    Rosa told Langdon that she would take her to the
hospital, but Langdon replied, “No we’re taking the babies
to Church.” Langdon told Rosa that Jose’s house was hexed.
The Deputies overheard this conversation, and an
unspecified deputy told Langdon, “This is a new deal. You
said you were going to the hospital.”
    In preparation for going to the Church, Langdon packed
a bag containing only nail polish. Rosa told Langdon, “Okay,
let’s get it together,” and pointed out that Langdon had no
food or water for the babies. Jayden supplied Rosa with
water, diapers, and two cans of milk. Rosa and Langdon then
walked to Rosa’s house with the twins.
    While Jose waited outside, an unnamed deputy asked
him if Langdon was on any drugs. Jose answered that he did
not know. The deputy told Jose, “You should know your
wife better. You have been married longer than me and my
wife and I would know this about my wife.” Jose asked the
Deputies to prevent Langdon from leaving with the twins
and to let him have custody of the twins. He “told the
[Deputies] the twins were not safe with Langdon and asked
the [Deputies] to stop Langdon from taking the twins.” The
Deputies told Jose that they were going to let Langdon leave
with Rosa. An unnamed deputy told Jose to “just let her go.”
    After Langdon and Rosa left with the twins, the Deputies
stayed parked outside of the Murguia home for 30 minutes,
“watching Jose and affirmatively showing their authority
and restricting Jose’s movement, causing Jose [to] fear that
if he followed the twins, the [Deputies] would arrest him.”
                    MURGUIA V. LANGDON                     15


       c. City of Visalia officer responds at the Church
    Rosa took Langdon and the twins to Rosa’s house, where
Langdon continued to behave erratically. Langdon made odd
comments such as “follow the bunnies” and said that the San
Andreas Fault would destroy the world. Rosa took Langdon
and the twins to the Church, where Rosa told the Church
receptionists that the twins were in danger and asked for help
getting the twins away from Langdon. One of the
receptionists told Rosa not to worry because the Pastor
would take good care of Langdon and the twins were in good
hands.
    Meanwhile, Langdon told the Pastor that she was
homeless and needed shelter, and that she needed mental
health help. The Pastor said that he would help her find a
place to stay. He asked Langdon if she would like to go to a
mental health center for an evaluation, and she said “yes.”
The Pastor called the police, and a Visalia Police Department
officer arrived at the Church in response. The officer drove
Langdon and the twins from the Church to Lighthouse, a
women’s shelter. The officer did not provide the Lighthouse
staff with information about Langdon’s prior requests for
mental health help, Langdon’s willingness to go to a mental
health clinic, Langdon’s criminal history, Langdon’s
“bizarre” behavior, or Rosa’s concerns about the safety of
the twins. Rosa did not accompany Langdon and the twins
to Lighthouse.
       d. Tulare Police Department officers respond at
          Lighthouse
    Langdon continued to act “bizarrely” at Lighthouse. The
director of Lighthouse and the office manager conducted an
intake interview of Langdon and thought that she was
“crazy.” Langdon told the Lighthouse staff that the door
16                  MURGUIA V. LANGDON


chimes would “happen as long as I am here.” She told the
staff that she controlled the office manager’s computer. She
was “argumentative” and told one of the interviewers, “I
don’t like your spirit.”
    Langdon told the Lighthouse office manager that she had
been raped the night before and needed to go to the hospital
to have an emergency abortion. The Lighthouse staff called
an ambulance. EMTs arrived and informed Langdon that
they could take her to the hospital but could not take the
twins. Langdon became angry. Lighthouse staff then called
City of Tulare’s Police Department (“TPD”). When the TPD
officers arrived, they dismissed the EMTs and the
ambulance.
    Langdon yelled at the TPD officers, and the officers also
observed her yelling at the Lighthouse staff. The officers
described her as “loud and belligerent.” Langdon said she
“felt” pregnant. An officer asked Langdon if she had taken a
pregnancy test. Langdon became even angrier. She yelled at
the officer and told him he needed to read the Bible, that he
was not in charge of the situation, and that her “Father” was
going to take care of her and her kids. She refused to go to a
hospital for a mental health evaluation. The Lighthouse
manager told Langdon that she would be forced to leave if
she did not stop creating a disturbance. Eventually, the TPD
officers left without having obtained psychological help or
an evaluation for Langdon.
    Langdon continued to yell at the Lighthouse personnel,
who again called the police. The same TPD officers were
dispatched to Lighthouse a second time approximately 40
minutes after they had left. When they arrived at Lighthouse,
the Lighthouse staff told them “Langdon was being
uncooperative, loud, and disruptive, and was talking
                     MURGUIA V. LANGDON                     17


‘crazy.’” The Lighthouse staff also told the officers “that the
twins looked like they had not been fed, and Langdon did
not have a diaper bag, diapers, changes of clothing or baby
bottles.”
   Langdon tried to go outside to pray. An officer told
Langdon that she had to remain in Lighthouse’s dining area.
Langdon then collapsed on the floor, yelling that she was
having contractions. She repeated “Yeshua, Yeshua,
Yeshua!” and tried to scoot towards the door while sitting
down.
    A TPD officer called for Sergeant Garcia—TPD’s Crisis
Intervention Technician Officer—to come to Lighthouse
and updated Garcia on the calls. After Sergeant Garcia was
called to Lighthouse, Langdon again collapsed on the floor,
claiming to be in labor. She got up several minutes later and
began sifting through her makeup bag, then asked another
female at Lighthouse if she wanted to have her nails done.
Garcia repeatedly attempted to communicate with Langdon,
but she did not provide much information to assist the
officers.
    According to the FAC, “[the] TPD officers observed and
knew that Langdon was unable to care properly for the twins.
Langdon had no baby food, diapers, or other baby supplies
and her behaviors presented an immediate threat to the
children’s health and safety because the twins were
functionally unattended.”
    Garcia called CWS and spoke to Emergency Response
Social Worker Torres. Garcia told Torres that he was not
requesting immediate assistance and was thinking only of
arresting Langdon for disturbing the peace. Torres offered to
come to Lighthouse to take custody of the twins but said that
TPD would have to take Langdon into custody.
18                       MURGUIA V. LANGDON


    According to the FAC, Garcia and Torres each provided
the other with incorrect information about Langdon and her
situation. Torres “falsely reported to Garcia that CWS had
no history of Langdon in its system.” In addition, “CWS
falsely stated [to Garcia] that Langdon was homeless. CWS
falsely stated that Langdon had no history of child abuse,
even though CWS [k]new of three criminal convictions for
child cruelty and prior cases including one open case against
Langdon.” Garcia told Torres that he did not want to separate
Langdon from the twins. Garcia “falsely stated that Langdon
had been evaluated at a hospital” and did not meet the criteria
for involuntary commitment. He also “falsely stated that
Langdon had everything she needed for the kids, meaning
food, diapers, and baby supplies.” Neither Torres nor Garcia
informed the other that Jose was an available parent and
could take custody of the twins. 6
    Torres concluded that Langdon did not present an
immediate danger to the twins. She set CWS’s investigative
response time for 10 days from the call, and CWS did not
conduct an immediate in-person investigation at Lighthouse.
Torres and her supervisor later “did a further risk assessment
‘because the mother sounded delusional and might be a
threat to the children.’ The matter was then reclassified for
immediate in-person investigation because ‘the caregivers’

6
  The FAC seemingly contradicts itself regarding what Garcia and Torres
knew about Jose’s availability to take custody of the twins. First it states
that, during his phone call with Torres, “Garcia concealed information
about Jose’s availability to take the twins.” This allegation implies that
Garcia—but not Torres—knew that Jose was an available parent who
could take custody of the twins. But the FAC then states, “Ms. Torres
failed to inform Sgt. Garcia that Jose was an available parent who could
take custody of the twins.” This allegation implies that Torres—but not
Garcia—knew about Jose’s availability.
                          MURGUIA V. LANGDON               19


behavior [wa]s bizarre and dangerous to the emotional health
of the children.’” The FAC is unclear as to when this “further
risk assessment” occurred, whether it occurred on the same
night as Torres’s call with Garcia, and what prompted the
further assessment. No CWS investigator was assigned to
Langdon and the twins between December 5 and December
6, 2018.
    After Garcia’s phone call with Torres, Garcia and two
TPD officers arranged for a motel to provide Langdon with
free lodging and drove Langdon and the twins from
Lighthouse to the motel. Early the next morning, Langdon’s
screaming led a bystander at the motel to call 911.
Paramedics arrived at the motel and found the babies
drowned and naked on a bed at the motel
   Langdon was eventually prosecuted for murder of the
twins. She was found not guilty by reason of insanity.
II.        PROCEDURAL HISTORY
    In July 2019, Plaintiffs filed a complaint in the Eastern
District of California, bringing 54 federal and state claims
against 22 named and unnamed defendants, including
Langdon, the deputies and officers who intervened on
December 5, 2018, and several municipalities. The
complaint included § 1983 claims against the individual state
actors as well as Monell 7 claims against the County of Tulare
and the City of Tulare. The district court granted dismissal
without prejudice under Federal Rule of Civil Procedure
12(b)(6). In July 2020, Plaintiffs filed the FAC, listing 36
federal and state claims. In October 2021, the district court
granted dismissal with prejudice, finding that Plaintiffs
failed to state any federal claims and declining to exercise

7
    Monell v. Dep’t of Soc. Servs., 

 (1978).
20                         MURGUIA V. LANGDON


supplemental jurisdiction over the state law claims.
Plaintiffs appealed.
    After voluntarily dismissing some defendants, Plaintiffs
continued to press claims against four remaining individuals
(“Individual Defendants”): TCSD Deputy Lewis, TCSD
Sergeant Cerda, TPD Sergeant Garcia, and CWS Social
Worker Torres; two governmental entities: the County of
Tulare and the City of Tulare; and First Assembly of God of
Visalia. 8 Although Plaintiffs also initially appealed the
dismissal of claims against Officer Hernandez of the City of
Visalia Police Department, TPD Officers Davis and
Valencia, and the City of Visalia, these claims have since
been dismissed with prejudice per Plaintiffs’ requests.
III.       STANDARD OF REVIEW
    The court reviews de novo a district court’s dismissal of
a complaint for failure to state a claim. Oki Semiconductor
Co. v. Wells Fargo Bank, 

 (9th Cir. 2002).
In assessing a Rule 12(b)(6) motion to dismiss, the court
must take all factual allegations as true and draw all
reasonable inferences in favor of the nonmoving party.
Usher v. City of Los Angeles, 

 (9th Cir.
1987). To survive a 12(b)(6) motion, the facts alleged must
“plausibly give rise to an entitlement to relief.” Ashcroft v.
Iqbal, 

 (2009).
IV.        LEGAL FRAMEWORK
    To state a claim under 

, a plaintiff must
allege that “(1) the conduct complained of was committed
by a person acting under color of state law; and (2) the
conduct deprived the plaintiff of a federal constitutional or

8
    Plaintiffs alleged only state law claims against the Church.
                     MURGUIA V. LANGDON                      21


statutory right.” Patel v. Kent Sch. Dist., 

(9th Cir. 2011). Here, Plaintiffs alleged that Defendants
deprived them of constitutional rights under the First
Amendment right to familial association, the Fourth
Amendment right to be free from unreasonable seizure, and
the Due Process Clause of the Fourteenth Amendment.
    Plaintiffs’ claims are rooted in the substantive
component of the Due Process Clause of the Fourteenth
Amendment. The Due Process Clause provides, “No State
shall . . . deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV, § 1.
The Due Process Clause is a limitation on state action rather
than a guarantee of minimum levels of state protections, so
the state’s failure to prevent acts of private parties is
typically insufficient to establish liability under the Due
Process Clause. Martinez v. City of Clovis, 

 (9th Cir. 2019). However, this circuit has recognized
two exceptions to this rule: (1) “when the state affirmatively
places the plaintiff in danger by acting with deliberate
indifference to a known or obvious danger (the state-created
danger exception)”; and (2) “when a special relationship
exists between the plaintiff and the state (the special-
relationship exception).” Patel, 648 F.3d at 971–72 (internal
quotation marks omitted).
    Plaintiffs urge the court to recognize a third exception to
the general rule against § 1983 liability based on a state’s
failure to act—a legal requirement exception. Plaintiffs
direct the court to Preschooler II v. Clark County School
Board of Trustees, in which we stated: “a person ‘subjects’
another to the deprivation of a constitutional right, within the
meaning of § 1983, ‘if he does an affirmative act,
participates in another’s affirmative act, or omits to perform
an act which he is legally required to do that causes the
22                   MURGUIA V. LANGDON


deprivation of which complaint is made.’” 

,
1183 (9th Cir. 2007) (emphasis added) (quoting Johnson v.
Duffy, 

 (9th Cir. 1978)). Plaintiffs contend
that Preschooler II and Johnson v. Duffy—from which
Preschooler II quotes—establish that “a state actor commits
a [§ 1983] deprivation when he fails to perform an act he is
legally required to do.” We reject this argument—neither
Johnson nor Preschooler II supports this theory of liability
for a substantive due process claim.
    In Johnson, the court held that a county sheriff deprived
the incarcerated plaintiff of his property without due process
by failing to satisfy the procedural requirements of a state
statute prior to forfeiting the plaintiff’s accumulated
earnings from work performed at an honor camp. Johnson,
588 F.2d at 742–44. The relevant statute provided that honor
camp earnings are forfeited when (1) the superintendent of
an honor camp reports to a “Classification Committee” that
the prisoner refused to abide by camp rules; (2) the
Classification Committee makes an order transferring the
prisoner to jail; and (3) the earnings in the prisoner’s account
have not been ordered paid to someone dependent on the
prisoner. Id. at 742–43. A related statute required the county
sheriff to appoint members of the Classification Committee,
which would then be required to meet at least once a week.
Id. at 43. The county sheriff admitted that the Classification
Committee never met or acted upon the plaintiff’s transfer
as required by the statute as a prerequisite for forfeiture, but
the county sheriff argued that he could not be held liable
under § 1983 for this deficiency because he never took any
affirmative actions—he merely failed to act. Id. The court
rejected this argument, finding that “personal participation”
is not strictly required for § 1983 liability. Id. The court
reasoned:
                     MURGUIA V. LANGDON                      23


       A person “subjects” another to the
       deprivation of a constitutional right, within
       the meaning of Section 1983, if he does an
       affirmative act, participates in another’s
       affirmative acts, or omits to perform an act
       which he is legally required to do that causes
       the deprivation of which complaint is made.
       Moreover, personal participation is not the
       only predicate for section 1983 liability.
       Anyone who “causes” any citizen to be
       subjected to a constitutional deprivation is
       also liable. The requisite causal connection
       can be established not only by some kind of
       direct personal participation in the
       deprivation, but also by setting in motion a
       series of acts by others which the actor knows
       or reasonably should know would cause
       others to inflict the constitutional injury.

Id. at 743–44 (emphasis added) (citations omitted). The
court concluded that, “[the sheriff’s] omission to act, in
violation of the duties imposed upon him by statute and by
regulations, thus may subject him to liability under section
1983.” Id. at 744.
    Plaintiff brings claims for deprivation of substantive due
process. Johnson is easily distinguished because it relied on
the plaintiff’s procedural due process claim, not on a
substantive due process claim. Id. at 742. The requirements
for substantive due process claims differ from the
requirements for procedural due process claims. Where a
person is entitled to certain process, the failure to provide it
can deprive the individual of a procedural due process right,
see, e.g., Armstrong v. Reynolds, 

, 1066–67
24                    MURGUIA V. LANGDON


(9th Cir. 2022), but a failure to act to protect an individual
from private violence does not deprive an individual of
substantive due process, except in narrow circumstances.
See DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 

 (1989); Patel, 648 F.3d at 971–72. DeShaney
held that “when the State takes a person into its custody and
holds him there against his will, the Constitution imposes
upon it a corresponding duty to assume some responsibility
for his safety and general well-being.” 489 U.S. at 199–200.
The plaintiff in DeShaney was not in custody at the time he
was harmed and the Court explained that “[w]hile the State
may have been aware of the dangers [the plaintiff] faced . .
., it played no part in their creation, nor did it do anything to
render him any more vulnerable to them.” 

.
    Preschooler II is similarly unhelpful to Plaintiffs. That
case involved a supervisory liability claim arising from the
alleged abuse of a non-verbal and severely disabled four-
year-old child by his teacher in a public-school setting. 479
F.3d at 1177, 1182. After finding that the complaint alleged
the teacher committed a constitutional violation by abusing
the child on several occasions over a period of several
months, including slapping his hands, hitting his head and
face, and body slamming him, id. at 1180, the court was
tasked with determining whether the complaint alleged
sufficient facts to state a § 1983 claim against the teacher’s
supervisors. Id. at 1182–83. The complaint alleged the
supervisory officials knew of the teacher’s abuse of the child
yet permitted the teacher to continue to work with the child
and did not report the abuse or put a stop to it. Id. at 1182.
Preschooler II reiterated that respondeat superior did not
exist for these claims, reaffirmed our circuit’s “limited
supervisory liability doctrine,” and decided the complaint
survived the motion to dismiss because the supervisory
                        MURGUIA V. LANGDON                            25


defendants’ own conduct included failing to discipline the
teacher or report the abuse. Id. at 1182–83.
    Preschooler II did not establish that the mere failure to
perform a legally required act is grounds for § 1983 liability
based on a substantive due process violation, as Plaintiffs
suggest, and the defendants here are officers being sued for
their own actions and failures to act, rather than state
officials being sued for their supervisory roles in the actions
or failures to act of others. 9
    Neither Johnson nor Preschooler II held that the failure
to comply with a legally required duty, without more, can
give rise to a substantive due process claim. Indeed, such a
conclusion is foreclosed by DeShaney. In keeping with our
well-established case law, we make clear that the only two
exceptions to the general rule against failure-to-act liability
for § 1983 claims presently recognized by this court are the
special-relationship exception and the state-created danger
exception. See, e.g., Patel, 648 F.3d at 971–72; Martinez,

; Henry A. v. Willden, 

(9th Cir. 2012). We discuss the special-relationship
exception and the state-created danger exception in turn.
V.       SPECIAL-RELATIONSHIP EXCEPTION
    The special-relationship exception “applies when [the]
state ‘takes a person into its custody and holds him there
against his will.’” Patel, 

 (quoting DeShaney,

9
  Plaintiffs argue that Garcia has supervisory liability because he saw
“TPD officers violating TPD policies and did nothing to enforce policies
or correct the officers’ errors.” Plaintiffs cite no authority for the
proposition that the failure to comply with police department policies is
enough to state an underlying substantive due process claim against the
officers, and we know of none.
26                   MURGUIA V. LANGDON


489 U.S. at 199–200). Examples of custody include
“incarceration, institutionalization, or other similar
restraint[s] of personal liberty.” DeShaney, 

.
“When a person is placed in these types of custody, we allow
due process claims against the state for a fairly simple
reason: a state cannot restrain a person’s liberty without also
assuming some responsibility for the person’s safety and
well-being.” Patel, 

. “In the case of a minor
child, custody does not exist until the state has so restrained
the child’s liberty that the parents cannot care for the child’s
basic needs.” 

.
    The district court correctly held that the special-
relationship exception does not apply here because
Defendants did not have custody of the twins. Murguia v.
Langdon, 

, at *6, 11 (E.D. Cal. Oct. 1,
2021). In reaching this conclusion, the district court reasoned
that the twins were always in the custody of Langdon and
that “merely alleging in conclusory fashion that the
decedents were in de facto custody is not sufficient to negate
[P]laintiff’s factual allegations showing that Langdon
always maintained custody of the children.” 

.
Plaintiffs argue that the district court erred by failing to
“address th[e] issue of who has custody when the available
parent cannot care for the children.”
    Plaintiffs rely on three sources of authority for their
argument that the peace officers had de facto custody of the
twins. First, Plaintiffs quote Schall v. Martin, a United States
Supreme Court case regarding the constitutionality of a New
York state law, for the proposition that children “are always
in some form of custody” and “by definition, are not
assumed to have the capacity to take care of themselves.”

 (1985). Next, Plaintiffs cite California
                        MURGUIA V. LANGDON                           27


Welfare and Institutions Code § 300(b)(1) 10 and California
Family Code § 3010(b) together for the propositions that
“[w]hen there is a temporary custody vacuum, a peace
officer should take temporary custody and find a parent with
capacity” and “[w]here a parent cannot care for a child, that
child should be placed with a parent with capacity.” Based
on these authorities, Plaintiffs argue that “each peace officer
as the only sane adults with the twins, had control and
custody of the twins and a special relationship under
DeShaney.”
    We reject Plaintiffs’ argument. As an initial matter, the
statutes cited do not adequately support Plaintiffs’ argument
that the state actors had de facto custody of the twins.
California Welfare and Institutions Code § 300(b)(1)
provides that a child “is within the jurisdiction of the juvenile
court which may adjudge that person to be a dependent child
of the court” when “[t]he child has suffered, or there is a
substantial risk that the child will suffer, serious physical
harm or illness, as a result of . . . [t]he failure or inability of
the child’s parent or guardian to adequately [sic] supervise
or protect the child,” including when the parent’s inability is
due to mental illness. California Family Code § 3010(b)
provides, “If one parent is dead, is unable or refuses to take
custody, or has abandoned the child, the other parent is
entitled to custody of the child.” These statutes pertain to the
scope of the juvenile court’s jurisdiction and the rights of
parents to seek custody of a child under certain
circumstances, including when one parent is incapable of
taking care of the child. Neither statute provides that custody
automatically transfers at the moment the parent becomes

10
   Plaintiffs cite section “300b(b)(1),” which does not exist. The court
assumes Plaintiffs meant to cite § 300(b)(1).
28                    MURGUIA V. LANGDON


incapable of caring for the child. Neither statute imposes a
mandatory duty on any state actor to take custody of a child
if that officer discovers that a parent is incapable of caring
for the child. And neither statute discusses the rights or
duties of peace officers in interfering with a parent’s custody
of the child.
    Moreover, Plaintiffs’ suggestion that the Defendants had
“custody” of the twins under a tedious reading of the cited
authorities is misguided. Regardless whether any Defendant
had “custody” in some sense of the word, the facts of this
case simply do not resemble those in which courts have
found a custodial relationship for the purposes of imposing
§ 1983 liability. See, e.g., Estelle v. Gamble, 

 (1976) (holding that the government has an obligation
to provide medical care to incarcerated persons); Youngberg
v. Romeo, 

, 315–16 (1982) (holding that
involuntarily committed individuals have a constitutional
right to safe conditions); Henry A., 678 F.3d at 1000–01
(holding that the special-relationship exception applies to
children in foster care and requires the state to respond to
suspected abuse in a foster home).
    The case law demonstrates that “custody” for the
purposes of the special-relationship exception is a restriction
on the plaintiff’s liberty that limits the ability of the plaintiff
(or the plaintiff’s parents) to meet the plaintiff’s basic needs
(e.g., incarceration, institutionalization, foster care). See
Patel, 648 F.3d at 972–74 (holding that mandatory school
attendance did not give rise to the special-relationship
exception when the child was at school because the student
lived at home with her mother, who was her primary
caretaker, and “unlike incarceration or institutionalization,
compulsory school attendance does not restrict a student’s
liberty such that neither the student nor the parents can attend
                     MURGUIA V. LANGDON                      29


to the student’s basic needs”). Here, Individual Defendants
never formally took the twins into custody; the twins
remained with Langdon at all times, and the twins were not
institutionalized or placed in foster care. Although Jose was
temporarily physically separated from the twins, Jose and
Langdon retained long-term responsibility for the care of the
twins, as well as long-term control over decisions regarding
the twins. The special-relationship exception therefore does
not apply in this case.
VI.    STATE-CREATED DANGER EXCEPTION
     The state-created danger exception has its origins in
DeShaney, in which the United States Supreme Court held
that social workers and local officials were not liable under
§ 1983 on a failure-to-act theory for injuries inflicted on a
child by his father. 

. The state actors had
received complaints that the child was abused by his father
but failed to remove the child from his father’s custody. 

The court reasoned that “[w]hile the State may have been
aware of the dangers that [the child] faced in the free world,
it played no part in their creation, nor did it do anything to
render him any more vulnerable to them.” 

(emphasis added). The court acknowledged that the state
once took temporary custody of the child and then returned
him to his father, but reasoned that the state “placed [the
child] in no worse position than that in which he would have
been had it not acted at all[.]” 

 Given that the state actors
did not create or enhance any danger to the child, the state
did not have a constitutional duty to protect him from the
private violence inflicted by his father. 

    This court “ha[s] interpreted DeShaney to mean that if
affirmative conduct on the part of a state actor places a
plaintiff in danger, and the officer acts in deliberate
30                        MURGUIA V. LANGDON


indifference to that plaintiff’s safety, a claim arises under §
1983.” Penilla v. City of Huntington Park, 

(9th Cir. 1997). The state-created danger exception has two
requirements. 11 “First, the exception applies only where
there is ‘affirmative conduct on the part of the state in
placing the plaintiff in danger.’ Second, the exception
applies only where the state acts with ‘deliberate
indifference’ to a ‘known or obvious danger.’” Patel, 

 (internal citation omitted) (quoting Munger v.
City of Glasgow Police Dep’t, 

 (9th Cir.
2000) and then quoting L.W. v. Grubbs, 

(9th Cir. 1996)).
    To satisfy the first requirement, a plaintiff “must show
that the officers’ affirmative actions created or exposed
[him] to an actual, particularized danger that [he] would not
otherwise have faced.” Martinez, 

. “In
examining whether an officer affirmatively places an
individual in danger, we do not look solely to the agency of
the individual, nor do we rest our opinion on what options
may or may not have been available to the individual.
Instead, we examine whether the officers left the person in a
situation that was more dangerous than the one in which they
found him.” Munger, 

. “The critical
distinction is not . . . an indeterminate line between danger
creation and enhancement, but rather the stark one between
state action and inaction in placing an individual at risk.”
Penilla, 

. Furthermore, the plaintiff’s

11
  This court has on occasion analyzed the state-created danger exception
under a three-prong test by dividing the first requirement into two
components: (1) affirmative conduct creating or enhancing a danger to
the plaintiff, and (2) foreseeability. See, e.g., Martinez v. City of Clovis,

 (9th Cir. 2019).
                     MURGUIA V. LANGDON                     31


ultimate injury must have been foreseeable to the defendant.
Martinez, 

. “This does not mean that the
exact injury must be foreseeable. Rather, ‘the state actor is
liable for creating the foreseeable danger of injury given the
particular circumstances.’” 

 at 1273–74 (quoting Kennedy
v. City of Ridgefield, 

, 1064 n.5 (9th Cir.
2006)).
    As to the second requirement, “Deliberate indifference is
‘a stringent standard of fault, requiring proof that a
municipal actor disregarded a known or obvious
consequence of his action.’” Patel, 

 (Bryan
Cnty v. Brown, 

 (1997)). This standard is
higher than gross negligence and requires a culpable mental
state. Id. at 974. When assessing non-detainee failure-to-
protect claims, we apply a purely subjective deliberate
indifference test. Herrera v. L.A. Unified Sch. Dist., 

, 1161 (9th Cir. 2021). “For a defendant to act with
deliberate indifference, he must ‘recognize[] the
unreasonable risk and actually intend[] to expose the
plaintiff to such risks without regard to the consequences to
the plaintiff.’” 

 at 1158 (quoting Grubbs, 

).
In other words, the state actor must “know[] that something
is going to happen but ignore[] the risk and expose[] [the
plaintiff] to it.” Grubbs, 

 (emphasis in
original). “The deliberate-indifference inquiry should go to
the jury if any rational factfinder could find this requisite
mental state.” Patel, 

.
    The district court held that Plaintiffs failed to allege
affirmative conduct on the part of any of the Individual
Defendants because “[t]he decedents were in their mother’s
custody before the officers arrived on the scene, and they
remained in her custody after the officers intervened.”
Murguia, 

 at *7. The district court erred
32                   MURGUIA V. LANGDON


in limiting the analysis to whether Langdon had custody of
the twins. Unlike the special-relationship exception, the
state-created danger exception does not require that the state
actor have custody of the plaintiffs. Furthermore, in limiting
the analysis to whether Langdon had custody of the twins,
the district court ignored other factors that affected the risk
of physical harm that Langdon posed to the twins, including
the presence of third parties. Rather than ask whether
Langdon had custody of the twins prior to and after the
intervention of each Individual Defendant, the district court
should have asked more broadly “whether the officers left
the [twins] in a situation that was more dangerous than the
one in which they found [them].” Munger, 

.
We address this issue as to each of the Individual Defendants
in turn.
       a. Lewis and Cerda
    Plaintiffs’ state-created danger claim against Lewis and
Cerda fails because Plaintiffs have failed to allege facts from
which one can plausibly conclude that Lewis and Cerda
created or enhanced any danger to the twins. Plaintiffs argue
that Lewis and Cerda enhanced the vulnerability of the twins
by allowing Langdon to remove the twins from their home
and preventing Jose from following Langdon and the twins
to the Church. Plaintiffs assert, “Lewis and Cerda increased
the twins’ danger by ignoring [Langdon’s] request [for
mental health help], separating [the twins] from a sane father
presumed by law to be more fit than Langdon, and entrusting
them to their violent, deranged mother.” This argument
ignores the fact that Lewis and Cerda did not entrust the
twins to Langdon alone. Rather, Lewis and Cerda entrusted
Langdon and the twins to Rosa, Langdon’s friend and
                        MURGUIA V. LANGDON                            33


neighbor, who herself had experience supervising people
with mental health disorders. 12
     This court and other circuits have applied the state-
created danger exception in situations where an officer
abandoned the plaintiff in a dangerous situation, separated
the plaintiff from a third-party who may have offered
assistance, or prevented other individuals from rendering
assistance to the plaintiff. See Wood v. Ostrander, 

, 589–90 (9th Cir. 1989) (holding that the plaintiff raised
a triable issue of fact as to whether an officer placed the
plaintiff in danger by arresting the driver of the car plaintiff
was riding in, impounding the car, and leaving her alone in
a high-crime area at 2:30 a.m.); Penilla, 

(holding that officers increased the risk of harm to a gravely-
ill individual by cancelling a 911 call and locking him in his
home where it would be impossible for anyone to provide
him with emergency care); Kneipp v. Tedder, 

,
1208–09 (3d Cir. 1996) (holding that officers increased the
risk of harm to a severely intoxicated woman who was
struggling to walk home with the assistance of her husband
when the officers detained the plaintiff, let her husband
leave, then sent the plaintiff to walk home unescorted in
near-freezing conditions that resulted in hypothermia and
brain damage). Under this case law, if Lewis and Cerda had
left the ten-month-old twins alone with Langdon in her
dangerous and unstable condition, such conduct would

12
  The FAC alleges, “Rosa works at a hospital and has supervised people
on [California Welfare and Institutions Code] § 5150 holds. Rosa is
familiar with the standards for involuntary holds.” Section 5150
establishes the circumstances under which certain state actors can take a
person into custody for assessment or treatment regarding a mental
health disorder. The FAC does not provide Rosa’s job title or explain her
role in “supervising” individuals on § 5150 holds.
34                    MURGUIA V. LANGDON


almost certainly have constituted affirmative action
enhancing a risk of physical harm to the twins.
    However, it is unclear given the vague allegations in the
complaint that Lewis’s and Cerda’s conduct enhanced the
twins’ vulnerability to physical harm. The FAC alleges that
these defendants separated Jose from the twins, thereby
preventing him from exercising his custodial role and
leaving Langdon and the twins to be supervised by Rosa. But
the FAC does not include any factual allegations from which
we could conclude that Rosa was incapable of
supplementing Langdon’s care of the twins or was likely to
separate from Langdon and the twins after leaving the
Murguia home. Given that Lewis and Cerda merely replaced
one competent adult—Jose—with another competent
adult—Rosa, we are not convinced that “the officers left the
[twins] in a situation that was more dangerous than the one
in which they found [them].” Munger, 

.
     However, Plaintiffs should have the opportunity to
amend their complaint because we cannot say amendment
would be futile given their vague allegations and because the
district court applied the incorrect “custody” standard. The
court reviews for abuse of discretion the district court’s
decision to dismiss without leave to amend. Cervantes v.
Countrywide Home Loans, Inc., 

 (9th
Cir. 2011). “[T]he first step of [the] abuse of discretion test
is to determine de novo whether the trial court identified the
correct legal rule to apply to the relief requested. If the trial
court failed to do so, we must conclude it abused its
discretion.” United States v. Hinkson, 

, 1261–
62 (9th Cir. 2009). As discussed above, the district court
used the wrong standard in applying the state-created danger
exception by asking whether the twins were in Langdon’s
custody before and after Lewis and Cerda intervened rather
                         MURGUIA V. LANGDON                            35


than asking whether the twins were rendered more
vulnerable by Lewis’s and Cerda’s actions. Accordingly, we
vacate the district court’s dismissal order with an instruction
to allow Plaintiffs to amend their complaint.
         b. Garcia
   Plaintiffs have adequately stated their § 1983 claims
against TPD Sergeant Garcia under the state-created danger
exception. Plaintiffs argue that Garcia increased the risk of
physical harm to the twins by arranging a room for them at
a motel, transporting Langdon and the twins from
Lighthouse to the motel, and leaving them there. We agree.
When Garcia left Langdon and the twins at the motel, he
removed them from the supervision of the Lighthouse staff
and rendered the twins more vulnerable to physical injury by
Langdon as a result of their isolation with her. See Penilla,

. 13
    We further conclude that Plaintiffs have pleaded facts
plausibly demonstrating that Garcia acted with deliberate
indifference to the risk that Langdon would physically harm
the twins. We admit that this is a close case. There are no
allegations that Garcia was aware of Langdon’s history of
child cruelty, violence, or previous mental health difficulties.
To the contrary, Torres affirmatively told Garcia that

13
    Plaintiffs also argue that Garcia is liable under § 1983 for
misrepresenting the situation at Lighthouse to Torres by telling her that:
(1) Langdon had everything she needed to care for the twins, and (2)
Langdon had been evaluated and did not meet the criteria for involuntary
commitment. Because we hold that Plaintiffs adequately alleged their
§ 1983 claims against Garcia under the state-created danger exception
based on his action of transporting Langdon and the twins to the motel,
we do not address whether Garcia’s proffering of false statements also
satisfies the state-created danger exception.
36                   MURGUIA V. LANGDON


Langdon did not have any history of child abuse.
Furthermore, Plaintiffs alleged that the City of Visalia
officer who drove Langdon and the twins to Lighthouse did
not provide Lighthouse with information about Langdon’s
prior requests for mental health help, Langdon’s earlier
bizarre behavior, or Rosa’s concerns about the twins’ safety.
Thus, the complaint does not allege that Garcia knew about
Langdon’s worrisome behavior prior to her arrival at
Lighthouse or that a friend of the family (Rosa) felt the twins
were unsafe with Langdon.
     But Plaintiffs allege that Garcia knew about the events
that occurred at Lighthouse—those events he learned of
from his colleagues as well as those he witnessed himself.
Prior to Garcia’s arrival at Lighthouse, Langdon was refused
shelter at Lighthouse because she was acting “crazy,” and
the Lighthouse staff twice called the police for help in
dealing with Langdon. Langdon told the Lighthouse staff
that she had been raped the night before and needed to go to
the hospital for an emergency abortion. Langdon was
argumentative, loud, and belligerent. For example, she
yelled at an officer and told him he needed to read the Bible
and shouted at him that he was not in charge of the situation
and that God was. Langdon told the officers that her “Father”
was going to take care of her and her children. When officers
told Langdon that she could not exit Lighthouse to “go
outside to pray,” Langdon collapsed on the floor and yelled
that she was having contractions. She repeated “Yeshua,
Yeshua, Yeshua!” and tried to scoot towards the door while
sitting down, claiming that something was “sucking her out”
of the door. According to the FAC, making all reasonable
inferences in favor of Plaintiffs, Garcia learned about the
above events when a TPD officer updated Garcia on the call.
                     MURGUIA V. LANGDON                     37


    After Garcia arrived at Lighthouse, Langdon again
collapsed on the floor and stated that she was going into
labor. She got up only a few minutes later and began looking
through her makeup bag, then asked another female at
Lighthouse if she wanted a manicure. Langdon was
unprepared to care for the twins, as she did not have a diaper
bag, diapers, changes of clothing, or baby bottles; the FAC
describes the twins as “functionally unattended.” When
Garcia attempted to communicate with Langdon, she refused
or was unable to provide much information.
    Based on these allegations, Garcia was aware that
Langdon was undergoing a mental health crisis but was not
aware that Langdon had a history of violent behavior. Given
the extreme vulnerability of the ten-month-old twins, the
complaint adequately alleges Garcia was aware that
Langdon posed an obvious risk of physical harm to the twins
based on her worrisome behavior. If the twins had been
teenagers at the time, our conclusion might differ. But the
twins were ten months old and entirely dependent on the care
of others for survival. At such a young age, the failure to
provide care can be fatal, yet Garcia left the twins alone with
Langdon in a motel room overnight. Whether the twins
perished because they were left unattended in the bath tub,
or because their mother drowned them as a tragic result of
her mental health crisis, or because they succumbed to a
different danger associated with their mother’s failure to
provide adequate care, the legal analysis does not change:
Garcia can be charged with deliberate indifference for
ignoring the obvious risk of leaving the babies unattended
with Landon. The allegations that Langdon was incapable of
caring for the twins to such an extent that they were left
“functionally unattended” are sufficient to establish that
Garcia was deliberately indifferent. We conclude that the
38                       MURGUIA V. LANGDON


complaint adequately alleges Garcia knew Langdon’s
mental health crisis posed a serious risk of physical harm to
the twins but nonetheless disregarded this risk and left the
twins in a situation that was more dangerous than how he
found them. 14
         c. Torres
    We similarly conclude that Plaintiffs adequately alleged
a state-created danger claim against CWS Social Worker
Torres. Plaintiffs alleged that Torres lied to Garcia about
Langdon’s circumstances and history of abuse. The FAC
states, “CWS [Social Worker Torres] falsely stated that
Langdon was homeless. CWS falsely stated that Langdon
had no history of child abuse, even though CWS [k]new of
three criminal convictions for child cruelty and prior cases
including one open case against Langdon.” Although
Plaintiffs could have been more precise in their wording, we
take these allegations to mean that Torres herself possessed
the knowledge that Langdon had a history of child abuse,




14
   The dissent insists that we expand the state-created danger exception
to apply in cases of mere negligence. We strongly disagree. At the 12(b)
stage, we accept as true the allegations in the complaint. The complaint
alleges deliberate indifference. Garcia was not merely a taxi driver
giving Langdon a lift as the dissent suggests. Garcia was aware that
Langdon was undergoing a mental health crisis, yet arranged for
Langdon to stay at a motel and left the babies alone with her there. In
doing so, Garcia exercised his authority to force the twins into an
obviously dangerous situation. This is not a case where it can be said the
state “played no part” in creating the danger the twins faced. See
DeShaney, 

. Rather, Garcia placed the twins in harm’s
way by leaving them alone with Langdon.
                         MURGUIA V. LANGDON                            39


including abuse against her own son, and that CWS had an
open case against Langdon. 15
    When Torres provided Garcia with false information, she
rendered the twins more vulnerable to physical injury by
Langdon by eliminating the most obvious solution to
ensuring the twins’ safety: returning them to Jose’s custody.
Absent Torres’s affirmative misrepresentation, Garcia may
have conducted an independent investigation into Langdon’s
criminal history and living situation prior to settling on the
decision to take the family to the motel.
    Martinez v. City of Clovis is illustrative of how revealing
certain information can enhance the risks facing a plaintiff.

 (9th Cir. 2019). In Martinez, we held that a
police officer committed a constitutional violation by telling
the plaintiff’s abuser about the plaintiff’s allegations of
abuse against him and telling him that plaintiff was not “the
right girl” for him, after which the abuser further physically
abused the plaintiff. 

. In finding that the officer
affirmatively exposed the plaintiff to an actual,
particularized danger, the court reasoned that “[a] reasonable
jury could find that [the officer’s] disclosure provoked [the
abuser], and that her disparaging comments emboldened [the

15
  The FAC does not directly define “CWS” as equating to Torres herself.
Instead, it defines “CWS” as County of Tulare’s Child Welfare Services.
It describes “CWS workers” as including Torres and an unnamed
employee of CWS. However, the FAC repeatedly uses “CWS” when it
appears to refer to Torres as an individual. For example, the FAC states
“CWS told [Garcia] it could take custody of the twins but only if the
mother was taken into custody,” and later clarifies that “Ms. Torres told
Sgt. Garcia CWS would not take the babies unless [the police] arrested
the mother or put her on a psychiatric hold.” The FAC also later clarifies
that Torres told TPD officers that Langdon was homeless and that Torres
“concealed Langdon’s history of child cruelty convictions.”
40                   MURGUIA V. LANGDON


abuser] to believe that he could further abuse [the plaintiff],
including by retaliating against her for her testimony, with
impunity.” 

 The court further found that the injury to
plaintiff—further abuse—was objectively foreseeable as a
matter of common sense. 

 at 1273–74.
    The facts alleged here parallel those in Martinez, where
the officer provided the abuser with information that may
have changed his course of action. Torres potentially
changed Garcia’s course of action in responding to the
situation at Lighthouse when she falsely represented that
Langdon was homeless and did not have a criminal record of
prior child cruelty. It was foreseeable “as a matter of
common sense” that Langdon—who Torres allegedly knew
had a history of abusing her own children and who was
exhibiting signs of rage and behaving erratically at
Lighthouse—might harm the twins if left alone with them.
See 

. It was similarly foreseeable that the
misinformation Torres provided would impact Garcia’s
decision about whether to separate Langdon from the twins.
    Moreover, Plaintiffs have alleged that Torres acted with
deliberate indifference. The complaint alleges that Torres
was aware of three criminal convictions and prior CWS
cases against Langdon, including two convictions for child
cruelty, a case against Langdon for abuse of her own son,
and a case that remained open. When Torres affirmatively
told Garcia that Langdon had no criminal background
history, Torres implied that she personally knew Langdon’s
history or that she had conducted a background check on
Langdon (a representation consistent with the allegation that
Torres knew about Langdon’s history of child cruelty).
According to the FAC, a background check of Langdon
would reveal “Langdon’s history of mental illness, cruelty to
children and CWS history.” In addition, Torres knew that
                      MURGUIA V. LANGDON                       41


Garcia was considering arresting Langdon for disturbing the
peace. We can further infer from the complaint’s allegations
that Torres knew that the situation at Lighthouse involved a
mental health crisis given that Garcia discussed the
possibility of involuntary commitment.
    Given the allegations that Torres knew about Langdon’s
history of abuse—including abuse of her own son—we
conclude that the complaint alleges Torres was aware of the
obvious risk of harm Langdon presented to the twins.
Kennedy v. City of Ridgefield is demonstrative of how past
violent acts can put an officer on notice of a risk to plaintiffs.

 (9th Cir. 2006). In Kennedy, the plaintiff
reported to the defendant police officer that the plaintiff’s
13-year-old neighbor molested the plaintiff’s daughter. Id. at
1057. The plaintiff warned the officer that the neighbor was
violent and repeatedly asked the officer not to inform the
neighbor of her allegations without first notifying the
plaintiff so she could protect her family. Id. at 105. The
police officer knew the neighbor had a history of violent
behavior. For example, the plaintiff told the officer that the
neighbor had been involved in fights at school, had lit a cat
on fire, had broken into his girlfriend’s house and attacked
her with a baseball bat, and had thrown rocks at a downtown
building. Id. at 1057–58. The officer later learned that the
neighbor had also been investigated for sending death threats
to a classmate, though the investigation concluded he was
not responsible. Id. at 1058. Despite this knowledge, the
officer ignored the plaintiff’s request to warn her prior to
informing the neighbor of the allegations. Id. The officer
drove to the neighbor’s house and informed the neighbor’s
mother of the allegations without first warning the plaintiff.
Id. The officer then drove to the plaintiff’s house and
informed her that he had told the neighbor’s mother of the
42                   MURGUIA V. LANGDON


allegations. Id. Approximately 15 minutes passed between
the officer’s conversation with the neighbor’s mother and his
conversation with the plaintiff. Id. The plaintiff and her
family decided to spend the night in their home and planned
to leave town the next day. Id. But early the next morning,
the neighbor broke into the plaintiff’s house and shot the
plaintiff and her husband, killing the husband. Id.
    This court affirmed denial of summary judgment for the
officer. In finding that the officer acted with deliberate
indifference, the court considered the fact that the officer
knew about the neighbor’s violent tendencies, including
several specific incidents of “alarming, aggravated
violence.” Id. at 1064. The court also noted that the plaintiff
had left several messages with the police department
expressing fear for her family’s safety and requesting notice
before the department notified the neighbor of the
allegations. Id. The court therefore concluded that the officer
“knew that telling [the neighbor] about the allegations
against him without forewarning the [plaintiff’s family]
would place them in a danger they otherwise would not have
faced.” Id.
    Making all reasonable inferences in favor of Plaintiffs,
the FAC alleges that Torres knew about Langdon’s history
of violence and mental illness, including multiple specific
instances of physical violence against her own family
members, including her son. A reasonable jury could find
that Torres was aware of the risk that Langdon would
physically harm the twins and nevertheless lied to Garcia
about Langdon’s background, and in doing so ignored the
consequences of her actions. Our conclusion is bolstered by
                         MURGUIA V. LANGDON                              43


the young age and utter defenselessness of the ten-month-
old twins. 16
VII.     DEFENDANTS’ AFFIRMATIVE ACTIONS
    We next address Plaintiffs’ arguments that Defendants’
wrongful affirmative acts deprived Plaintiffs of their
constitutional rights. Plaintiffs identify four wrongful acts by
the Individual Defendants that Plaintiffs contend give rise to
§ 1983 liability as “affirmative acts” rather than omissions.
Specifically, Plaintiffs allege: (1) Lewis and Cerda deprived
Plaintiffs of their rights to familial association by
temporarily separating Jose and the twins; (2) Lewis and
Cerda deprived Jose of his Fourth Amendment right to be
free from unreasonable seizure by preventing him from
following the twins; (3) Garcia committed a wrongful

16
   The dissent argues that Torres cannot be held liable because she did
not intend to cause harm to the twins or know that her actions would lead
to violence against the twins, but our case law does not require intent to
cause harm or knowledge of certain harm. The deliberate indifference
standard is satisfied when a state actor “recognizes the unreasonable risk
and actually intends to expose the plaintiff to such risks without regard
to the consequences to the plaintiff.” L.W. v. Grubbs, 

(9th Cir. 1996) (emphasis added) (quoting Uhlrig v. Harder, 

, 573 n.8 (10th Cir. 1995)). In other words, the state actor must take
an intentional action with knowledge that his actions will expose the
plaintiff to an unreasonable risk. But the state actor need not know with
certainty that the risk will materialize or intend for the plaintiff to face
the risk. For example, in Kennedy v. City of Ridgefield, there was no
finding that the officer intended to expose the plaintiff to danger or knew
with certainty that his actions would result in violence to the plaintiff’s
family. 

, 1064–65 (9th Cir. 2006)). Nevertheless, the
officer was deliberately indifferent because he intentionally told the
plaintiff’s neighbor about the allegations of abuse even though he knew
that doing so would place the plaintiff’s family “in a danger they
otherwise would not have faced.” Id. 1064.
44                  MURGUIA V. LANGDON


affirmative act by misrepresenting the situation at
Lighthouse to Torres; and (4) Torres committed a wrongful
affirmative act by lying about Langdon’s living situation and
criminal background to Garcia.
       a. Familial association
    Plaintiffs’ first allegation is that Lewis and Cerda
violated Plaintiffs’ constitutional rights to familial
association when they separated Jose and the twins. The
FAC includes the following relevant allegations: “Deputy
Lewis with the approval of Sgt. Cerda affirmatively ordered
Jose to step outside, away from the twins and denied him
custody of the twins.” “[W]hen Langdon said she did not
want Jose in his own home, Lewis ordered Jose to stay out
and away from the twins.” When Jose asked the deputies to
stop Langdon from taking the twins, “[the] deputies told
Rosa and Jose that the deputies were going to let Langdon
take the babies. One [County] deputy ordered Jose to “just
let her go.” The deputies then “stayed parked outside of
[Jose’s] house for 30 minutes, watching Jose and
affirmatively showing their authority and restricting Jose’s
movement, causing Jose [to] fear that if he followed the
twins, the [County] deputies would arrest him.” The FAC
does not allege that the Deputies expressly threatened to
arrest Jose if he followed the twins. The FAC also does not
include any allegations suggesting that separating Jose and
the twins was necessary to prevent imminent danger to the
twins, nor do Defendants make this argument in their
answering brief.
   The constitutional right to familial association derives
from the First and Fourteenth Amendments. Keates v. Koile,

 (2018). The standard for analyzing a §
1983 claim for interference with the right to familial
                     MURGUIA V. LANGDON                      45


association depends on the context in which the case arises.
See Brittain v. Hansen, 

, 989–90 (9th Cir. 2006)
(distinguishing cases where the state terminated parental
rights due to allegations of child abuse from cases where a
state actor intervened in a child custody dispute). When the
case involves the seizure of children from their parents based
on suspicions of danger to the child, “[o]fficials may not
remove children from their parents without a court order
unless they have ‘information at the time of the seizure that
establishes reasonable cause to believe that the child is in
imminent danger of serious bodily injury.’” Keates, 

 (quoting Rogers v. Cnty. of San Joaquin, 

, 1294 (9th Cir. 2007)). When the case involves the
intervention of a state officer in an ongoing custody dispute,
the parent “must show both a deprivation of [his] liberty and
conscience shocking behavior by the government.” Brittain,

.
    In Brittain v. Hansen, this court found that an officer’s
interference with a non-custodial parent’s visitation rights
did not amount to a constitutional violation. 

. The
father had sole legal custody of the child, and the mother had
visitation rights governed by a visitation schedule. 

.
The father attempted to take the child on vacation at a time
when the mother believed she was entitled to a week of
visitation. 

. The father arrived at the mother’s house
with a police officer. 

 The officer believed the father was
entitled under the visitation schedule to take the child that
week and threatened to arrest the mother if she did not
comply. 

 at 986–87. The mother allowed the child to leave
with the father, but later brought a § 1983 action against the
officer for violating her right to familial association.
    As the case involved the state’s intervention in a custody
dispute between two parents rather than the government’s
46                       MURGUIA V. LANGDON


seizure of the children from the parents, the court reasoned
that the mother needed to show that the officer deprived her
of her liberty in a way that shocked the conscience. Id. at
991. Although the mother had a liberty interest in the
companionship, care, custody, and management of her child,
the court reasoned that “a relatively minor infringement on
this liberty interest in visitation will not give rise to a Section
1983 substantive due process claim.” Id. at 992. Thus, “a
single instance of visitation, of a single week in duration,
[was not] a ‘fundamental’ right.” Id. at 994, 996.
    There are obvious differences between Brittain and the
present case: Jose had presumptive joint custody of the
twins, 17 not mere visitation rights, 18 and there was no formal
custody or visitation agreement in dispute. Further, Jose and
Langdon lived together with the twins, and Langdon was
experiencing a mental health crisis. But there are several key
similarities between this case and Brittain. In both cases, a
state officer transferred a child from the care of one (or both)
parents to the other parent. Both the mother in Brittain and
Jose believed they had an entitlement to their children at the
relevant time. Both cases involved the same aspect of the
right to familial association (namely, the right to physically
be with the child at a particular time). 19 In both cases, the
state officers restricted this right by threatening arrest or

17
     

.
18
  As we repeatedly recognized in Brittain, “visitation is a lesser interest
than legal custody.” Brittain v. Hansen, 

 (9th Cir.
2006).
19
   Although Jose had custody rights of the twins rather than mere
visitation rights, he does not allege that any privileges specific to the
custodial relationship were violated (e.g., the ability to participate in
decisions about the children’s care).
                      MURGUIA V. LANGDON                        47


intimidating the parent into thinking he would be arrested if
he did not comply. Given the strong similarities between the
present case and Brittain, we follow Brittain and conclude
that the physical separation of Jose and the twins while
Langdon took the twins to Church with Rosa was a
“relatively minor infringement on [Jose’s] liberty interest”
and therefore not sufficient to form a basis for a § 1983
claim.
        b. Seizure
    Plaintiffs’ second allegation arising from “affirmative
act[s]” is that Lewis and Cerda seized Jose without cause
when they sat outside Jose’s home for 30 minutes,
preventing Jose from following Langdon and the twins. “A
person is seized . . . and thus entitled to challenge the
government’s action . . . when the officer, by means of
physical force or show of authority, terminates or restrains
[the person’s] freedom of movement through means
intentionally applied.” Brendlin v. California, 

 (2007) (internal citations and quotation marks omitted).
“When the actions of the police do not show an unambiguous
intent to restrain . . . a seizure occurs if ‘in view of all of the
circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave.’” 

 at
255 (quoting United States v. Mendenhall, 

(1980)). The FAC states that the Deputies “restrained
[Jose’s] liberty by ordering Jose to get away from his
children and repeatedly ordering Jose to stay away and not
follow his children when they left. The Deputies reinforced
these words with a show of authority by staying 30 minutes
[outside Jose’s home] to intimidate him from following the
children.”
48                   MURGUIA V. LANGDON


    Plaintiffs have not adequately pleaded a § 1983 claim for
the unreasonable seizure of Jose. Jose alleged that the
Deputies’ show of authority prevented him from following
the twins. He did not allege that the Deputies prevented him
from leaving his house for other purposes—he could have
driven off in another direction. Jose’s gripe is not that he was
seized, but that he was separated from his children.
    Plaintiffs’ third allegation, that Garcia committed a
wrongful act by misrepresenting the situation at Lighthouse
to Torres, and fourth allegation, that Torres committed a
wrongful act by lying to Garcia about Langdon’s living
situation and criminal background, simply recast as
“affirmative act[s]” claims addressed under the state-created
danger exception and do not require separate analysis.
VIII. MONELL LIABILITY
    Having found that Plaintiffs failed to allege that any state
actor deprived them of their constitutional rights, the district
court dismissed Plaintiffs’ Monell claims against the County
of Tulare and the City of Tulare. Because we reverse the
district court’s dismissal of some of Plaintiffs’ § 1983 claims
against County of Tulare Social Worker Torres and City of
Tulare Sergeant Garcia, we reverse the district court’s
dismissal of Plaintiffs’ Monell claims and remand for further
proceedings.
IX.    SUPPLEMENTAL JURISDICTION
    The district court declined to exercise supplemental
jurisdiction over Plaintiffs’ state law claims after having
dismissed all of Plaintiffs’ federal claims. Because we
reverse the district court’s dismissal of some of Plaintiffs’
federal law claims, we reverse the district court’s dismissal
                     MURGUIA V. LANGDON                      49


of Plaintiffs’ state law claims and remand for further
proceedings.
X.     CONCLUSION
    For the reasons discussed above, we reverse the district
court’s dismissal of Plaintiffs’ § 1983 claims against Garcia
and Torres under the state-created danger doctrine. We
vacate the district court’s dismissal order as to Plaintiffs’ §
1983 claims against Lewis and Cerda and remand with
instructions to grant Plaintiffs leave to amend. On remand,
the district court will have an opportunity to apply the correct
standard. Lastly, we reverse and remand for further
proceedings Plaintiffs’ Monell claims against the County of
Tulare and the City of Tulare, as well as all state law claims.
  REVERSED IN PART, VACATED IN PART, AND
REMANDED WITH INSTRUCTIONS.




IKUTA, Circuit Judge, dissenting in part:

     Tragic consequences may flow from negligence,
mistakes of judgment, and the failure to provide safety and
security to those who need it, as the case before us sadly
shows. But victims of such lapses must pursue redress
through tort law, because these mistakes do not rise to the
level of egregious abuse of government power that violates
citizens’ constitutional rights. Here, the majority loses sight
of the fundamental principles of substantive due process and
instead turns the Fourteenth Amendment into a “font of tort
law,” County of Sacramento v. Lewis, 

, 842–43
(1998), contrary to Supreme Court direction. Therefore, I
respectfully dissent.
50                    MURGUIA V. LANGDON


                                I
                               A
    The Due Process Clause of the Fourteenth Amendment
provides that “[n]o State shall . . . deprive any person of life,
liberty, or property, without due process of law.” U.S.
CONST. amend. XIV.
     The Supreme Court has recognized a substantive
component of the Due Process Clause. According to the
Court, the clause places “a limitation on the State’s power to
act” that “was intended to prevent government from abusing
its power, or employing it as an instrument of oppression.”
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 

, 195–96 (1989) (cleaned up) (citation and quotation
marks omitted). The Court’s conclusion is based on “the
traditional and common-sense notion that the Due Process
Clause, like its forebear in the Magna Carta, was intended to
secure the individual from the arbitrary exercise of the
powers of government.” Daniels v. Williams, 

 (1986) (citations and quotation marks omitted). The
Supreme Court has “emphasized time and again that ‘the
touchstone of due process is protection of the individual
against arbitrary action of government.’” Lewis, 

 (citing Wolff v. McDonnell, 

 (1974)).
    “[O]nly the most egregious official conduct” qualifies as
“abusive executive action” that violates the substantive
component of the Due Process Clause. Id. at 846. Official
conduct meets this high standard only when the “executive
abuse of power” is so outrageous that it “shocks the
conscience,” id., such as when a state official engages in
“conduct intended to injure in some way unjustifiable by any
government interest,” id. at 849 (emphasis added). If there
is no “affirmative abuse of power” by the state, then there is
                     MURGUIA V. LANGDON                     51


no violation of substantive due process. Daniels, 

.
    The Supreme Court has been “reluctant to expand the
concept of substantive due process” beyond these narrow
bounds. Collins v. Harker Heights, 

(1992). Given the limited scope of the doctrine, the Supreme
Court has identified a state abuse of power only in situations,
“when the State takes a person into its custody and holds him
there against his will.” DeShaney, 489 U.S. at 199–200. In
such custodial situations, the state’s egregious abuse of
authority, such as forcibly pumping the stomach of a
detainee, Rochin v. California, 

, 172–73
(1952), or purposely using objectively unreasonable force
against a detainee, Kingsley v. Hendrickson, 

,
395–96 (2015), violates a detainee’s substantive due process
rights. And when the state holds a person against his will,
“the Constitution imposes upon [the state] a corresponding
duty to assume some responsibility for his safety and general
well-being.” DeShaney, 489 U.S. at 199–200. Therefore,
the state abuses its authority when it fails to discharge the
state’s minimal responsibility for the safety and well being
of detainees.
    But when the state has not taken on custodial
responsibilities, the state is generally “under no
constitutional duty to provide substantive services.”
Youngberg v. Romeo, 

 (1982). The Due
Process Clause “generally confer[s] no affirmative right to
governmental aid, even where such aid may be necessary to
secure life, liberty, or property interests.” DeShaney, 

. Nor does the clause constitute “a guarantee of
certain minimal levels of safety and security.” 

.
Because “[t]he Due Process Clause does not require the State
to provide its citizens with particular protective services, it
52                   MURGUIA V. LANGDON


follows that the State cannot be held liable under the Clause
for injuries that could have been averted had it chosen to
provide them.” 

 at 196–97.
    Whether a person is injured in a custodial situation or
not, the Court has been clear that mere negligence or
mistakes on the part of the state actor does not give rise to a
constitutional claim. See Daniels, 

. “[T]he
due process guarantee does not entail a body of
constitutional law imposing liability whenever someone
cloaked with state authority causes harm.” Lewis, 

. For example, in Daniels, the Court rejected an
inmate’s claim that his due process rights were violated
when he slipped on a pillow negligently left on a stairway by
a county official. 

. “Far from an abuse of
power, lack of due care suggests no more than a failure to
measure up to the conduct of a reasonable person.” 

 For
the same reason, “[m]edical malpractice does not become a
constitutional violation merely because the victim is a
prisoner.” 

 at 333 (citing Estelle v. Gamble, 

 (1976)). Indeed, even the state’s negligent failure to
protect a prisoner from attack by another inmate does not
“abus[e] governmental power.” Davidson v. Cannon, 

 (1986). A fortiori, outside of custody, “a
State’s failure to protect an individual against private
violence simply does not constitute a violation of the Due
Process Clause.” DeShaney, 

. Thus, even in
a case where state social workers returned an abused child to
the custody of his abusive father, and the child subsequently
was the victim of further abuse resulting in severe brain
damage, the state could not be held liable for a due process
violation. 

 at 201–02.
                     MURGUIA V. LANGDON                     53


                              B
    Although the Supreme Court has recognized a
substantive due process violation only when the state abuses
its power in custodial situations, we have expanded this
doctrine to apply when the state abuses its power by acting
with deliberate indifference to expose a person to a
foreseeable danger that the person would not have faced
absent the state’s intervention. See Henry A. v. Wilden, 

 (9th Cir. 2012). We based this so-called
“state-created danger doctrine” on statements in DeShaney
that although “the State may have been aware of dangers [the
child] faced in the free world, it played no part” in the
creation of those dangers nor in rendering the child more
vulnerable to them, notwithstanding the state’s act of
returning the abused child to his abusive father. 

. From these statements, we inferred that a state would
have liability under the Due Process Clause had the state
played a part in creating such a danger or rendering an
individual more vulnerable. See L.W. v. Grubbs, 

 (9th Cir. 1992).
    Although our substantive due process jurisprudence has
elaborated and expanded Supreme Court doctrine to a
significant degree, until today we were careful to remain
within the Supreme Court’s framework. Thus, our cases
have generally reflected the Court’s principles that the state-
created danger doctrine applies only when an injury is
caused by a state’s abuse of its executive power undertaken
with the intent to injure someone in a “way unjustifiable by
any government interest,” Lewis, 

, not when
the injury is the result of mere negligence.
    The majority of our cases applying the doctrine involved
state officials who abused the power entrusted to them as
54                   MURGUIA V. LANGDON


officers of the state by intentionally putting a person in
harm’s way. In Munger, we held that police responding to a
911 call from a bartender regarding a disturbance created by
Munger were liable for taking “Munger physically by the
arm and walk[ing] him out” of the bar and instructing him
not to drive his truck home or reenter the bar, even though
“Munger was very obviously drunk” and wore only a t-shirt
and jeans in 11 degree weather. Munger v. City of Glasgow
Police Dep’t, 

 (9th Cir. 2000). We
explained that the officers, responding to a request for
government assistance and acting as agents of the state,
“affirmatively place[d] Munger in a position of danger,”
knowing “the danger that he was in.” 

. See also
Penilla v. City of Huntington Park, 

 (9th
Cir. 1997) (per curiam) (holding that officers responding to
a 911 call were liable for a substantive due process violation
because their affirmative acts, including cancelling a request
for paramedics and moving a gravely ill man inside the
house and locking the door, made “it impossible for anyone
to provide emergency medical care to Penilla”).
    We have likewise applied our doctrine when the harm is
caused by a third party, but only when state officials
exercised their authority to force an individual into a
dangerous situation where injury by the third party was
foreseeable. For example, in Wood v. Ostrander, a police
officer abused his official powers by arresting a driver and
impounding the driver’s car, which stranded the female
passenger in a high-crime area at 2:30 a.m. 

 (9th Cir. 1989).              Noting “the [F]ourteenth
[A]mendment’s purpose of redressing abuses of power by
state officials,” we explained that in leaving the woman “by
the side of the road at night in a high-crime area,” the officer
“show[ed] an assertion of government power” and
                      MURGUIA V. LANGDON                      55


“disregard for [the woman’s] safety.” 

. Similarly,
in Hernandez v. City of San Jose, police officers forced
attendees of a political rally to exit by walking through a
crowd of violent protestors, knowing that the “protesters
posed an immediate threat to the Attendees.” 

 (9th Cir. 2018). Without the officers’ abuse of
authority, the attendees would have taken a different route.

; see also Bracken v. Okura, 

, 778–
80 (9th Cir. 2017) (holding that police officers could be held
liable for preventing the plaintiff from leaving a party and
placing him under the control of security guards who
assaulted him). We have applied the same reasoning when
state officials exercised their authority to intentionally assign
a nurse to work alone in a medium security custodial
facility’s clinic with an inmate, whom they knew “was a
violent sex offender who had failed all treatment and was
likely to assault a woman if alone with her.” L.W., 

. Similarly, we have held that state officials abused
their authority and violated children’s due process rights by
“removing [children] from their homes and placing them in
the care of foster parents” with known histories of abuse and
neglect. See Henry A., 

; Tamas v. Dep’t of
Soc. & Health Servs., 

, 843–46 (9th Cir. 2010).
    At the furthest reach of this doctrine, we have extended
liability to state officials who abused their state authority by
intentionally acting in a way they knew would provoke a
third party to injure the plaintiff. For example, in Kennedy
v. City of Ridgefield, a police officer deliberately informed a
person known to be violent that his neighbor had reported
him to the police for child molestation, without giving that
neighbor any advance warning (despite his promise to do
so). 

, 1057–58, 1063–64 (9th Cir. 2006). And
in Martinez v. City of Clovis, police officers abused their
56                   MURGUIA V. LANGDON


authority by first informing a suspect (who was also a police
officer) that his girlfriend had made a police report accusing
him of domestic violence, and then (after making
disparaging remarks about the girlfriend) telling the suspect
that he would not be arrested for domestic violence, even
though the police had probable cause to do so. 

 (9th Cir. 2019). We held that this interchange
emboldened the suspect to further abuse the girlfriend. 

Although it is questionable whether the state officials’
conduct in these cases rises to the level of an egregious abuse
of power that the Supreme Court has held necessary for a
substantive due process violation, at least these cases stop
short of holding that officers could be liable for due process
violations based on mere negligence or mistakes.
                               II
   Today the majority jettisons even these meager limits on
our state-created danger doctrine. Contrary to Supreme
Court precedent (and our own), the majority finds a
substantive due process violation despite the absence of any
abuse of power entrusted to the state. Instead, the majority
holds that plaintiffs can state a claim for a violation of their
due process rights based solely on negligence and mistake,
exactly what the Supreme Court has told us not to do. See
Daniels, 

.
    Starting with Deputy Lewis and Sergeant Cerda, the
complaint alleges that in response to a 911 call from
Murguia, Deputy Lewis and Sergeant Cerda arrived at the
Murguia home and ordered Murguia to step outside the
home while they spoke to Langdon. After Murguia asked
his neighbor Rosa to help, Lewis and Cerda told Murguia to
allow the neighbor, Rosa, to drive Langdon and the twins to
a local church. The majority agrees that these allegations are
                     MURGUIA V. LANGDON                     57


not enough to state a claim for a due process violation against
Lewis and Cerda, but asserts that plaintiffs could state a
claim simply by alleging facts from which it could be
inferred that “the twins were rendered more vulnerable by
Lewis’s and Cerda’s actions.” Maj. Op. at 35.
    But under the Supreme Court’s framework, such
allegations are largely irrelevant, because the officers’
actions did not constitute an abuse of authority. Neither
Lewis nor Cerda exercised their authority to order the twins
into a position of danger. Separating the parties to a
domestic disturbance is standard procedure. See Martinez,

. And the allegations show only that the
officers failed to stop a parent, her children, and her friend
from leaving while warning the other parent to let them go,
all without incident. No case has suggested that this conduct
is such an egregious abuse of authority as to “shock the
conscience,” amounting to a constitutional violation.
Collins, 

. While Lewis and Cerda may have
been negligent in failing to recognize that Langdon was
experiencing a mental health crisis and that the twins would
be safer at home with Murguia, the Supreme Court has been
clear that the negligent “failure to protect an individual
against private violence simply does not constitute a
violation of the Due Process Clause.” DeShaney, 

. Even our state-created danger cases do not hold that
mere negligence is enough to give rise to a due process
violation. See, e.g., Wood, 

 (stating that the
officials acted with a degree of culpability higher than
negligence); L.W., 

 (same); Hernandez, 

 (stating that substantive due process claims
“require[] a culpable mental state . . . higher than gross
negligence” (citation and quotation marks omitted));
58                   MURGUIA V. LANGDON


Kennedy, 439 F.3d at 1064 (same); Martinez, 

 (same).
    At least Lewis and Cerda exercised some state
authority—even if they did not exercise it in an abusive way
intending to cause harm. The other defendants in this case
did not exercise such authority at all. Officer Garcia was
called to the Lighthouse shelter after Langdon created a
disturbance, and the shelter refused to allow Langdon and
the twins to stay there. Based on the complaint, Garcia’s
conduct was limited to driving Langdon and the twins from
the Lighthouse shelter to a motel and arranging for them to
stay there overnight. Contrary to the majority’s assertion
that Garcia “exercised his authority to force the twins into an
obviously dangerous situation,” Maj. Op. 38 n.14, the
complaint does not allege that he ordered or compelled
Langdon and the twins into the car or directed them to stay
at the motel. Thus, although Garcia was cloaked with the
state authority of a police officer, he acted solely as a
chauffeur and a Good Samaritan—not as an instrument of
the state—in giving Langdon and the twins a ride and asking
the motel to let them stay overnight for free. The majority
asserts that Garcia violated the plaintiffs’ substantive due
process rights because he should have known that Langdon
was incapable of caring for the twins given that she was
suffering a mental health crisis, and therefore his
transportation of Langdon and the twins to the motel
rendered the twins more vulnerable to injury by Langdon.
Maj. Op. 37–38. But negligently leaving an incapacitated
mother and her children in a motel gives rise only to a tort
claim; it is not an abuse of the state’s power. The fact that
Garcia was a police officer, as opposed to a taxi driver or a
Good Samaritan giving Langdon a lift, does not transform
his bad decision into a constitutional violation. See Lewis,
                     MURGUIA V. LANGDON                      59

; Daniels, 474 U.S. at 332–33. Even our
state-created danger cases involving third party violence do
not go that far; rather, they identify a substantive due process
violation only when an officer’s exercise of authority forced
a victim into contact with the attacker in the first instance,
see Wood, 

; Hernandez, 

; Bracken, 869 F.3d at 778–80; L.W., 

;
Henry A., 

; Tamas, 630 F.3d at 843–46, or
provoked a dangerous person to attack the victim, see
Kennedy, 439 F.3d at 1057–58, 1063–64; Martinez, 

.
    Nor did Torres, a social worker, abusively exercise state
authority in a manner that shocks the conscience. Torres
became involved when Garcia called her for information
about Langdon. The complaint alleges that the County of
Tulare’s Child Welfare Services (CWS) “falsely stated that
Langdon was homeless” and “falsely stated that Langdon
had no history of child abuse.” It also alleges that Torres
failed to inform Garcia “that Jose was an available parent
who could take custody of the twins.” But there is no
allegation that Torres (or CWS) made these false statements
or failed to provide relevant information in order to cause
harm to the children, nor is that a reasonable inference.
Therefore, even if Torres’s conduct could be the basis for a
tort action based on intentional or negligent
misrepresentation, Torres did not engage in the sort of abuse
of executive power intended to cause harm that could give
rise to a substantive due process claim. See Lewis, 

 (stating that an official’s conduct shocks the
conscience when the official “intended to injure” the
plaintiff). Even Martinez and Kennedy do not go that far.
In both those cases, the police officer intentionally gave
information obtained from a confidential police report to the
60                  MURGUIA V. LANGDON


accused perpetrator, knowing that it would lead to violence
against the victim.
    The majority’s explanation of how Torres could be held
liable is not plausible. According to the majority, “[a]bsent
Torres’s affirmative misrepresentation, Garcia may have
conducted an independent investigation into Langdon’s
criminal history and living situation prior to settling on the
decision to take the family to the motel.” Maj. Op. at 39.
But because of the misrepresentation, the majority asserts,
“Torres potentially changed Garcia’s course of action in
responding to the situation at Lighthouse,” Maj. Op. at 40,
“eliminating the most obvious solution to ensuring the twins’
safety: returning them to [Murguia’s] custody,” Maj. Op. at
39. It is doubtful that a plaintiff could prevail even on a
claim of negligence based on this speculative chain of
causation. See State Dep’t of State Hosps. v. Super. Ct., 

 (2015) (holding that “[p]laintiff’s showing
of ‘but for’ causation is weak” where the plaintiff alleges a
chain of intervening discretionary acts because the results of
those acts is “speculative and conjectural”). Even if Torres’s
conduct was negligent and reprehensible, an allegation that
she exercised her state authority to intentionally injure
plaintiffs is implausible.
                             III
    In short, the majority makes three mistakes that conflict
with the Supreme Court’s doctrine and, in doing so, finally
tears our state-created danger doctrine clear of its moorings.
    First, the majority opinion finds a substantive due
process violation in the absence of any abusive exercise of
state authority. This is directly contrary to the Supreme
Court’s rulings that the substantive due process doctrine
“was intended to prevent government from abusing its
                    MURGUIA V. LANGDON                    61


power, or employing it as an instrument of oppression,”
DeShaney, 489 U.S. at 195–96 (cleaned up) (citation and
quotation marks omitted), and absent the “affirmative abuse
of power” by the state, there is no substantive due process
violation, Daniels, 

.
    Second, the majority opinion indicates that officials may
be liable for failing to take affirmative actions to protect
children from a dangerous parent. But, as DeShaney held,
that failure to protect is not an egregious abuse of state-
assigned power. 489 U.S. at 201–03. Moreover, DeShaney
made clear that the state has “no constitutional duty to
protect [a child] against his [parent’s] violence,” and
therefore the “failure to do so—though calamitous in
hindsight—simply does not constitute a violation of the Due
Process Clause.” Id. at 202.
    Finally, the majority imposes liability for substantive
due process violations when the plaintiffs’ allegations
amount to mere negligence. But “liability for negligently
inflicted harm is categorically beneath the threshold of
constitutional due process.” Lewis, 

.
    The majority’s expansion of our state-created danger
doctrine into the realm of tort law conflicts with Supreme
Court precedent and is out of step even with our broad state-
created danger doctrine. Because the majority erroneously
erodes “[t]he guarantee of due process” into a “guarantee
[of] due care,” Davidson, 

, I respectfully
dissent.