Southerland Ex Rel. Southerland v. City of New York, 681 F.3d 122

In 1998, a state Family Court found Southerland abused his seven children—sexually and physically—leading to custody denial for seven years, a ruling upheld by a state court panel.
Woo, a child welfare caseworker, investigated Ciara Manning (16) after reports she might be suicidal and that Southerland neglected her care.
Woo obtained a Family Court § 1034(2) order to enter the Southerland home and remove six other children aged three to nine, to locate and protect at-risk children.
Within days, Woo learned more about Ciara’s abuse and reported it to the Family Court; evidence of other neglect and abuse of the remaining children emerged from investigations.
The district court granted summary judgment for Woo on qualified immunity; a panel reversed, holding the rights were clearly established and material factual disputes existed for a jury.
This dissent argues en banc review is warranted and disputes the panel’s conclusions on probable cause and the viability of claims by an adjudicated abusive parent and his children for premature removal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Probable cause for entry under §1034(2)	Southerland contends lack of probable cause defeats entry.	Woo's warrant entry had probable cause; corrected affidavit would still support probable cause.	Qualified immunity supported; corrected affidavit still supports probable cause.
Due process and unlawful removal of children	Southerland and children claim removal violated due process and fourth amendment rights absent emergency.	Caseworkers acted reasonably under emergency circumstances; removal was justified.	Qualified immunity applies; adjudicated abusive parent/children cannot sue for premature removal; removal may be protected under emergency rationale.
Scope of permissible liability for child welfare actions	Panel’s approach expands liability for rescuers and could deter timely intervention.	Qualified immunity should shield reasonable, in-context decisions of caseworkers.	Court should affirm immunity protections; panel’s contrary ruling would chill protective action.

Harlow v. Fitzgerald, 457 U.S. 800 (U.S. 1982) (establishes qualified immunity framework)
Saucier v. Katz, 533 U.S. 194 (U.S. 2001) (two-step analysis for constitutional rights and clearly established law)
Pearson v. Callahan, 555 U.S. 223 (U.S. 2009) (modifies Saucier sequencing; practical qualified immunity inquiry)
Walczyk v. Rio, 496 F.3d 139 (2d Cir. 2007) (qualified immunity depends on reasonable in context conduct)
Malley v. Briggs, 475 U.S. 335 (U.S. 1986) (policy of immunity for reasonable mistakes in warrant affidavits)
Cameron v. Fogarty, 806 F.2d 380 (2d Cir. 1986) (prematurity of arrest vs. dismissal in §1983 context; analogy applied to removal)
United States v. Abu-Jihaad, 630 F.3d 102 (2d Cir. 2010) (flexibility of probable cause standards across contexts)
Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999) (imminent danger and removal standards for child welfare)
In re Ciara M., 273 A.D.2d 312 (App. Div. 2d Dep't 2000) (state court findings of abuse and custody implications cited by panel)
Nicholson v. Scoppetta, 344 F.3d 154 (2d Cir. 2003) (due process in ex parte removal context and state court interpretations)