38 F.4th 792
9th Cir.2022Background
- A 2012 Hawaii family-court Custody Order awarded Hannah David sole legal and physical custody of her daughter B.D. and restricted the father, William Keahiolalo, from contact absent a "compelling emergency."
- In November 2019 an altercation led Keahiolalo to seek a protective order; Kauai police employee Gina Kaulukukui prepared and filed the petition but (allegedly) omitted mention of the existing Custody Order.
- The family court issued a TRO prohibiting David from contacting B.D.; the TRO did not expressly transfer custody to Keahiolalo.
- Days later, Child Welfare Services (CWS), accompanied by police and Keahiolalo, removed B.D. from school without a court order or notice to David, placed B.D. with Keahiolalo, and transported them to Kauai; David was unable to contact B.D. for 21 days.
- David sued under 42 U.S.C. § 1983 for violation of the constitutional right to familial association; Kaulukukui moved to dismiss based on qualified immunity.
- The district court denied qualified immunity; the Ninth Circuit affirmed, holding David plausibly alleged (1) judicial deception in obtaining the TRO and (2) an unconstitutional seizure/continued separation of B.D., and that those rights were clearly established.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Judicial deception in filing TRO | Kaulukukui knowingly omitted the Custody Order and aided Keahiolalo to secure a TRO that cut off David’s contact with B.D. | Kaulukukui reasonably relied on protective-order statute and "compelling emergency" language; no clear duty to disclose custody order. | Ninth Circuit: prior caselaw clearly establishes that deliberately misleading a court in child-custody proceedings violates familial-association rights; plausible allegations preclude qualified immunity. |
| Seizure and 21‑day separation of child | CWS/police (with Kaulukukui’s participation) removed B.D. without consent or court order, lacked reasonable cause of imminent danger, and kept separation longer than necessary. | Defendants may claim exigency or reasonable cause justified removal. | Ninth Circuit: law clearly prohibits nonconsensual, nonjudicial removal absent reasonable cause of imminent serious harm and requires scope/duration be reasonable; allegations show no reasonable cause and an excessive 21‑day separation, so no qualified immunity. |
Key Cases Cited
- Greene v. Camreta, 588 F.3d 1011 (9th Cir. 2009) (established protection against judicial deception in child custody proceedings)
- Hardwick v. County of Orange, 844 F.3d 1112 (9th Cir. 2017) (denied immunity where social workers knowingly used false evidence in custody proceedings)
- Keates v. Koile, 883 F.3d 1228 (9th Cir. 2018) (standards for child removals and familial-association claims)
- Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000) (police removal of children without order; investigatory failures and excessive separation can violate rights)
- Benavidez v. County of San Diego, 993 F.3d 1134 (9th Cir. 2021) (judicial-deception doctrine and material omissions can violate due process)
- Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101 (9th Cir. 2010) (fabricating evidence in civil child-abuse proceedings violates due process)
- Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001) (false evidence claims in criminal/civil contexts breach constitutional rights)
- Anderson v. Creighton, 483 U.S. 635 (1987) (clearly established law standard for qualified immunity)
- Rivas‑Villegas v. Cortesluna, 142 S. Ct. 4 (2021) (clarified that existing precedent must place the constitutional question beyond debate)