Doe v. Whelan
732 F.3d 151
2d Cir.2013Background
- Removal of three Doe children by DCF without parental consent or a court order; basis was an alleged imminent threat to child safety.
- Whelan obtained removal authorization under Conn. Gen. Stat. § 17a-101g(f); later upheld by ex parte OTCs and a Superior Court order.
- History of domestic violence between Doe and Roe; protective orders in place; Roe violated orders and was in the home late at night.
- DCF welfare checks revealed Roe’s presence and Doe’s tolerance or inability to prevent entry; Roe fled the property.
- District court granted summary judgment on qualified immunity for defendants; appellate review de novo.
- Stark expert report discussed but not dispositive; courts found decisive the facts known to officers and subsequent judicial findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal without consent or court order is protected by qualified immunity | Doe argues removal violated rights; exigent circumstances disputed | officers reasonably believed imminent danger | Yes; qualified immunity applies |
Key Cases Cited
- Southerland v. City of New York, 680 F.3d 127 (2d Cir. 2012) (exigent circumstances sometimes allow removal without warrant)
- Pearson v. Callahan, 555 U.S. 223 (U.S. 2009) (clear established right standard for qualified immunity)
- Malley v. Briggs, 475 U.S. 335 (U.S. 1986) (immunity protects even mistaken judgments)
- Lennon v. Miller, 66 F.3d 416 (2d Cir. 1995) (objective reasonable standard in qualified immunity)
- Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999) (objective reasonableness can support immunity)
- Walczyk v. Rio, 496 F.3d 139 (2d Cir. 2007) (arrests/searches require neutral magistrate; relevance to reasonableness)