ANGELINA NUNES, individually and as Guardian Ad Litem for her minor children D.X. and L.X.; D.X., a minor; L.X., a minor; EMANUEL ALVES, Plaintiffs-Appellees, v. ARATA, SWINGLE, VAN EGMOND & GOODWIN (PLC); BRAD J. SWINGLE; AMANDA J. HEITLINGER, Defendants-Appellants, and CARRIE STEPHENS; COUNTY OF STANISLAUS, Defendants.
No. 19-16815
United States Court of Appeals, Ninth Circuit
D.C. No. 1:19-cv-00204-AWI-BAM
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGELINA NUNES, individually and as Guardian Ad Litem for her minor children D.X. and L.X.; D.X., a minor; L.X., a minor; EMANUEL ALVES,
Plaintiffs-Appellees,
v.
ARATA, SWINGLE, VAN EGMOND & GOODWIN (PLC); BRAD J. SWINGLE; AMANDA J. HEITLINGER,
Defendants-Appellants,
and
CARRIE STEPHENS; COUNTY OF STANISLAUS,
Defendants.
No. 19-16815
D.C. No. 1:19-cv-00204-AWI-BAM
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN
No. 19-16816
United States Court of Appeals, Ninth Circuit
Filed December 29, 2020
D.C. No. 1:19-cv-00204-AWI-BAM
2 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN
ANGELINA NUNES, individually and as Guardian Ad Litem for her minor children D.X. and L.X.; D.X., a minor; L.X., a minor; EMANUEL ALVES,
Plaintiffs-Appellees,
v.
CARRIE STEPHENS; COUNTY OF STANISLAUS,
Defendants-Appellants,
and
ARATA, SWINGLE, VAN EGMOND & GOODWIN (PLC); BRAD J. SWINGLE; AMANDA J. HEITLINGER,
Defendants.
No. 19-16816
D.C. No. 1:19-cv-00204-AWI-BAM
OPINION
Appeal from the United States District Court for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted July 14, 2020
San Francisco, California
Filed December 29, 2020
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 3
Before: Richard C. Tallman and Danielle J. Hunsaker, Circuit Judges, and Roslyn O. Silver,* District Judge.
Per Curiam Opinion;
Concurrence by Judge Hunsaker
SUMMARY**
Civil Rights
The panel reversed the district court’s denial of a motion to dismiss on qualified immunity grounds, and remanded, in an action brought under
Plaintiffs sued defendants for unlawfully accessing the children’s juvenile records without first obtaining a court order from the juvenile court, as required under California Welfare & Institutions Code Section 827. County Counsel believed W&I § 827 did not require court authorization to acсess the records and disclose them to the County’s outside counsel in a related lawsuit.
The panel held that this court’s opaque opinion in Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003), did not
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clearly establish a constitutional privacy right in juvenile records. Therefore, the panel could not conclude that every reasonable official acting as defendants did wоuld have known they were violating the constitutional rights of plaintiffs based on Gonzalez, the only authority on which plaintiffs relied. The panel did not decide whether the Constitution provides a privacy right in juvenile records; rather, the panel decided only that no such right was clearly establishеd at the time of the defendants’ alleged conduct. Therefore, defendants were entitled to qualified immunity.
Concurring, Judge Hunsaker, joined by Judge Silver, wrote separately to emphasize one point—that an en banc court should reconsider Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003), and address in earnest whether thеre exists a constitutional right to privacy in juvenile records.
COUNSEL
Jesse M. Rivera (argued) and Jill B. Nathan, Rivera Hewitt Paul LLP, Gold River, California; Michael R. Mordaunt (argued) and Lori Reihl, Riggio Mordaunt & Kelly, Stockton, California; for Defendants-Appellants.
Robert R. Powell (argued), Powell & Associates, San Jose, California, for Plaintiffs-Appellees.
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 5
PER CURIAM:
Angelina Nunes, individually and as Guardian Ad Litem for her minor children D.X. and L.X., and Emanuel Alves1 (Plaintiffs) brought the present action under
I. BACKGROUND
A. The Parties
Plaintiffs brought suit against the (1) County, (2) County Counsel Carrie Stephens (County Counsel), (3) the County’s outside law firm Arata, Swingle, Van Egmond & Goodwin (ASVG), and (4) two attorneys from ASVG—Brad Swingle and Amanda Heitlinger.2 For purposes of the present appeal, the County and County Counsel are represented by the same attorneys, and ASVG (including Swingle and Heitlinger) is represented by separate attоrneys. Each filed an appeal resulting in two Court of Appeals case numbers. We resolve both appeals in this consolidated opinion.
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B. The Separation Case
Prior to July 2016, the County’s Community Services Agency (CSA) began a child abuse investigation related to D.X. and L.X. after L.X., then five-months old, suffered a skull frаcture. D.X. and L.X. were separated from Nunes and Alves. Plaintiffs filed a civil rights lawsuit against the County challenging the separation (Separation Case). ASVG represented the County in the Separation Case. During that litigation, County Counsel provided ASVG with D.X. and L.X.’s juvenile records.
C. Present Lawsuit
In this case, Plaintiffs suеd all Defendants for unlawfully accessing the children’s juvenile records without first obtaining a court order from the juvenile court, as required under California Welfare & Institutions Code Section 827 (W&I § 827). County Counsel believed W&I § 827 did not require court authorization to access the records and disclose them to the County’s outside counsel. In аddition, Plaintiffs allege that the juvenile records contained medical records of L.X., which are subject to additional protection under the Health Insurance Protection and Accountability Act (“HIPAA”).
After Plaintiffs learned about the disclosure to ASVG, they filed the present
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 7
Second, Plaintiffs brought Monell3 claims against the County based on its custom and policy of allowing its in-house counsel and outside counsel to unlawfully access juvenile records without judicial authorization.4
The County defendants and ASVG filed separate motions to dismiss, each asserting a qualified immunity defense. The district court noted that Plaintiffs’ complaint did not identify which constitutional provision was allegedly violated, and it evaluаted Plaintiffs’ claims under the Fourth and Fourteenth Amendments. The district court denied qualified immunity for all Defendants with respect to a Fourth Amendment privacy claim based on a violation of W&I § 827. The district court held that the dissenting opinion in Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003), clarified the Fourth Amendment right implicated by a W&I § 827 violation. It also concluded that Gonzalez found a viable Fourth Amendment claim when the attorney defending Los Angeles County wrongfully accessed a juvenile case file in violation of W&I § 827. But the district court dismissed the Plaintiffs’ claims to the extent they were premised on the Fourteenth Amendment. Defendants appealed the denial of qualified immunity, and we have
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jurisdiction under
II. DISCUSSION
We review denial of a motion to dismiss under
A. Clearly Established Right
A right is clearly established when its “contours [are] sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam) (internal quotation marks аnd citation omitted). A clearly established right is one that has a “sufficiently clear foundation in then-existing precedent.” Wesby, 138 S. Ct. at 589. That is, the rule must be “settled law,” meaning it is “dictated by controlling authority or a robust consensus of cases of persuasive authority.” Id. at 589–90 (internal quotation marks and citations omitted). There need not be a
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 9
“case directly on point,” but existing precedent must place the statutory or constitutional question “beyond debate.” Kisela, 138 S. Ct. at 1152 (internal quotation marks and citation omitted). The Supreme Court has repeatedly instructed us not to define clearly established law at a high level of generality. Id. (“This Court has repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality.” (quoting City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1775–76 (2015)) (internal quotation marks omitted)).
“[S]pecificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation the officer
B. Gonzalez v. Spencer
Plaintiffs rely solely on Gonzalez in arguing that Defendants’ conduct violated a clearly established right. In Gonzalez, while defending Los Angeles County in a civil rights suit brought by Raul Gonzalez, the County’s attorney accessed Gonzalez’s juvenile court file without notifying him and without obtaining authorization from the juvenile
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court as required under W&I § 827(a)(1)(M) and Cal. Rules of Court 1423(b). 336 F.3d at 834. The County’s attorney used the juvenile records to cross-examine Gonzalez at his deposition. Id. In a split decision, the per curiam majority wrote a two-page opinion.6 Without identifying a specific constitutional right at issue, or conducting any analysis, the court concluded:
If [the County attorney] violated Gonzalez’s constitutional rights, he is entitled at least to nоminal damages, even if [the attorney] could have obtained the documents lawfully.
Because [the attorney] improperly obtained access to Gonzalez’s juvenile court file, we need not reach the question whether [the attorney]’s use of Gonzalez’s file in depositions also violated his constitutional rights.
Id. at 835 (internal citation omitted). And without any further discussion of the right that was potentially violated, the court held that the County attorney was not entitled to qualified immunity. Id.
As the district court noted, “the majority opinion does not explain why a violation of W&I § 827 was sufficient to constitute a violation of the Fourth Amendment.” Order on Defs.’ Mot. To Dismiss, Nunes v. Stephens, No. 1:19-CV-0204 AWI BAM, at 10 (E.D. Cal. Aug. 22, 2019). Indeed, the Gonzalez majority did not even specify that Fourth Amendment rights were at issue. That is gleaned only from
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 11
the dissenting opinion. See Gonzalez, 336 F.3d at 836 (“Gonzalez contends that [the attorney]’s access to and use of his juvenile court case file constituted a violation of the Fourth Amendment.”) (W. Fletcher, J., dissenting). Nor does Gonzalez discuss or cite to any Supreme Court or Ninth Circuit precedent regarding constitutional privacy rights in juvenile records specifically or informational privacy rights generаlly. See 336 F.3d at 832–35.
Lastly, a strong indication that Gonzalez did not clearly establish any constitutional privacy rights regarding juvenile records is its treatment in the district courts. In A.C. v. Cortez, the district court held that Gonzalez did not establish a federal right to privacy. 398 F. Supp. 3d 748, 752 (S.D. Cal. 2019), appeal docketed, No. 19-55895 (9th Cir. Aug. 1, 2019). The A.C. court followed the reasoning of two unpublished district court cases that reached the same conclusion. Ismail v. Fulkerson, No. SA CV 10-00901-VBF-AJW, 2014 WL 3962488 (C.D. Cal. Aug. 12, 2014), and Rigsby v. County of Los Angeles, No. CV 11-02766 SJO (PJWx), 2011 WL 13143544 (C.D. Cal Aug. 2, 2011), aff’d, 531 F. App’x 811 (9th Cir. 2013).
In A.C., the district court noted: “This remains an underdeveloped area of federal law . . . . Nevertheless, the Court finds the debatable holding of one case does not establish a current constitutional right to privacy covering juvenile records.” 398 F. Supp. 3d at 750. In Ismail, the court found that Gonzalez “did not address or definitively determine the existence or scope of any constitutional informational privacy right.” 2014 WL 3962488, at *11. The Ismail court also noted, as do we, that Gonzalez failed to cite to Supreme Court or Ninth Circuit precedent and merely assumed, without deciding, that a W&I § 827 violation сonstituted a violation of a federal privacy right. Id. And
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prior to Ismail, Rigsby recognized that the Ninth Circuit has held a constitutional right to informational privacy exists, but that such right has not clearly been extended to the nondisclosure of juvenile records. Rigsby, 2011 WL 13143544, at *3–4.
Accordingly, we, like the district courts, concludе that the opaque opinion in Gonzalez did not clearly establish a constitutional privacy right in juvenile records. Gonzalez did not explain what right was at issue or what constitutional source it flowed from. It did not even explain whether that unnamed right was violated by the attorney’s conduct, stating instead only that it could have been. Gonzalez, 336 F.3d at 835 (“If [the attorney] violated Gonzalez’s constitutional rights…” (emphasis added)). Such an opinion, which leaves fundamental questions unanswered about the origin, nature, and scope of the right at issue, cannot place the constitutional issue “beyond debate.” See Kisela, 138 S. Ct. at 1152; see also Ashcroft v. al-Kidd, 563 U.S 731, 741 (2011). We cannot conclude that every reasonable official acting as Defendants did would have known they were violating the constitutional rights of Plaintiffs based on Gonzalez, the only authority on which Plaintiffs’ rely. See Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).
III. CONCLUSION
We do not decide whether the Constitution provides a privacy right in juvenile records; rather, we decide only that no such right was clearly established at the time of the Defendants’ alleged conduct. Therefore, Defendants are entitled to qualified immunity.
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 13
REVERSED and REMANDED for further proceedings consistent with this opinion.7
HUNSAKER, Circuit Judge, with whom District Judge Silver joins, concurring:
I write separately tо emphasize one point—our en banc court should reconsider Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003), and address in earnest whether there exists a constitutional right to privacy in juvenile records. We carefully dodge this issue today by focusing on the clearly-established-law prong of qualified immunity given the dearth оf reasoning and guidance in the Gonzalez decision. But Gonzalez will continue to stymie district courts and litigants.1
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And we have recognized this right but have cautionеd that it is “not absolute; rather, it is a conditional right which may be infringed upon a showing of proper governmental interest.” Endy v. Cnty. of Los Angeles, 975 F.3d 757, 769 (9th Cir. 2020) (quoting In re Crawford, 194 F.3d 954, 959 (9th Cir. 1999))). In analyzing informational privacy rights in any given case, “[o]ur precedents demand that we engage in the delicate task of weighing competing interests to determine whether the government may properly disclose [the] private information [at issue].” In re Crawford, 194 F.3d at 959 (internal quotation marks and citation omitted).
The question here, whether there is a constitutional right of privacy that protects against disclosure of juvenile records, was аnswered in Gonzalez like an overconfident yet underprepared student—casually, without explanation or supporting authority. We should do better. And until the en banc court performs the analysis that Gonzalez neglected, our law on this issue will remain unclear. See, e.g., A.C., 398 F. Supp. 3d at 752.