Lead Opinion
Concurrence by Judge Berzon ;
Partial Concurrence and Partial Dissent by Judge Zouhary
ORDER
The separate opinion by Judge N.R. Smith filed on January 23, 2018, and reported at
A majority of the panel has voted to deny the petition for rehearing en banc. Judge Zouhary suggested that the petition for rehearing en banc be granted.
The full court has been advised of the suggestion for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing en banc is DENIED .
No petitions for panel rehearing or further petitions for rehearing en banc will be entertained.
PER CURIAM:
As this court has stated repeatedly, families have a "well-elaborated constitutional right to live together without governmental interference." Wallis v. Spencer ,
A.J. Demaree dropped off some family photos to be printed at a Wal-Mart in Arizona on Friday, August 29, 2008. While developing the pictures, an employee noticed that several pictures portrayed nude children. Wal-Mart called the police. Detective John Krause came and collected the pictures. On Saturday, he photocopied the ones that concerned the Wal-Mart employee and went to the Demarees' home.
Once there, he and his partner separately interviewed parents Lisa and A.J. Demaree. Both parents looked at the pictures, identified their daughters-five-year-old T.D., four-year-old J.D., and one-and-a-half-year-old L.D.-and said the pictures had been taken "in the last couple of months" by one or both parents. When asked what he would do with one photo, which portrayed his three children lying down on a towel nude, focusing on their exposed buttocks but with some genitalia showing, he responded, "I'm not going to do anything with that one. That's not going in a photo album; that's just one we have." Krause said, "Obviously you're not going to share it with somebody, I would hope," to which A.J. responded, "No, absolutely not!" Krause then asked why he would take the photo in the first place, and A.J. responded, "So when we look back on em years later, look at their cute little butts."
None of the photographs portrayed children engaged in sexual activity. None portrayed the children's genitalia frontally.
After the interviews, the detectives took T.D., J.D., and L.D. to forensic and medical exams to investigate possible sexual abuse. The physical exams came back normal for all three children. After the interviews were finished, Krause's partner dropped the children back off with their parents. Krause wrote in his report, "[a]pparently after the forensic interviews and medical exams were completed, [Child Protective Services] declined to remove the children from the parent's custody, and had directed [his partner] to return the girls to Lisa and A.J."
While the exams were in progress, the police department requested and received a warrant to search the Demarees' home. Executing the warrant, the department seized all the evidence that might be relevant to a child pornography investigation: computers, printers, photographs, cell phones, undeveloped film, floppy discs, DVDs, CDs, VHS tapes, and cameras.
As the home search was nearing its end, and after the children had been returned to their parents, Child Protective Services ("CPS") investigating officer Laura Pederson called one of the police officers to discuss the case. After the conversation, she decided to drive over to the house. There, Pederson discussed with Krause the evidence seized, the content of the pictures, and Krause's expectation that felony child sexual exploitation charges would be brought against both parents.
After reviewing the evidence Krause showed her, Pederson decided to take the children into emergency temporary custody, without obtaining a court order or a warrant. She later said, "I was relying on the fact that ... at the time there was a pending criminal investigation with both parents named as suspects. I was relying on information that Krause obtained during the investigation ... his opinion of the criminal acts that were committed, my viewing of the pictures and the fact that the-all of this suggested these children
Pederson gave the parents a "Temporary Custody Notice." In that notice, in the space provided for investigators to "[c]heck the circumstances (imminent risk factor ) that most clearly describes the reason temporary custody was necessary," Pederson checked "[o]ther," and wrote, "mother & father have taken sexually explicit pictures of all three children." She did not check the box for situations where "[t]he child's caregiver has engaged in sexual conduct with a child, or has allowed the child to participate in sexual activity with others." On the next page, in the space provided for investigators to inform parents of the "complaint or allegation concerning [their] family [that] is currently under investigation," she wrote, "Sexual Abuse-child pornography/exploitation."
Pederson then drove T.D. and J.D. to one foster home and L.D. to another. Two days later, Pederson brought the children to their grandparents' home, where all three stayed for about a month, after which they were returned to their parents. The juvenile court never adjudicated the children abused or neglected, and neither A.J. nor Lisa were arrested or charged with any crime.
A.J. and Lisa later filed the instant action on behalf of themselves and their children, alleging violations of various constitutional rights. The district court dismissed the claims against all defendants except Krause, Pederson, and Van Ness. The Demarees later settled their claims against Krause.
As relevant here, the district court granted summary judgment in favor of Pederson and Van Ness based on qualified immunity. It ordered the parties to propose appropriate redactions to the summary judgment order, which was temporarily filed under seal on April 23, 2014. On May 21, the Demarees requested leave to file under seal a motion to alter or amend the judgment under Federal Civil Rule 59. Six days later, the district court denied the motion for leave to file under seal, and also denied the Demarees' request to seal the summary judgment order in its entirety. The Demarees filed this appeal on June 23.
II. DISCUSSION
A. Timeliness of the Appeal
Before we address the merits, we consider whether this appeal is timely. Three court rules are pertinent to our inquiry here: First, Federal Rule of Appellate Procedure 4(a)(4)(A) tolls the deadline to file a notice of appeal upon the timely filing of certain motions, including a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59, such that the time to appeal-here, 30 days-runs "from the entry of the order disposing of the last such remaining motion." Second, Federal Rule of Civil Procedure 5(d)(2) provides that "[a] paper is filed by delivering it ... to the clerk." And third, Arizona Local Rule 5.6(c) requires a document meant to be filed under seal first to "be lodged with the Court in electronic form" using the electronic filing system.
The Demarees accordingly "lodged" a copy of their Rule 59 motion and requested leave to file it under seal. The district court denied the request. But its order, although in form a denial of the request to file the motion under seal, did not refer to or discuss any of the factors relevant to filing documents under seal. Cf. Foltz v. State Farm Mut. Auto. Ins. Co. ,
(i) Jurisdiction versus mandatory claim-processing
The parties describe the timeliness issue as jurisdictional. Under a recent Supreme Court case, it is not.
"[A]n appeal filing deadline prescribed by statute will be regarded as 'jurisdictional'.... But a time limit prescribed only in a court-made rule ... is not jurisdictional; it is, instead, a mandatory claim-processing rule...." Hamer v. Neighborhood Hous. Servs. of Chi. , --- U.S. ----,
Before Hamer , we held the timeliness rule at issue here jurisdictional. See United States v. Comprehensive Drug Testing, Inc. ,
Hamer ,
Comprehensive Drug Testing recognized the absence of a statutory basis for Rule 4(a)(4) but-understandably, as Hamer recognizes-tripped over the very language in Bowles that Hamer disavows. Comprehensive Drug Testing 's holding that all timeliness issues in notices of appeal are jurisdictional, even where, as here, the Rule's provision is not statutorily mandated, is thus flatly irreconcilable with Hamer . See Miller v. Gammie ,
(ii) This appeal was timely
Turning to the particular application of Rule 4(a)(4) before us: We recently addressed a similar issue in Escobedo v. Applebees , a sex discrimination case. There, Escobedo delivered her complaint to the clerk's office sixty-nine days after receiving her right-to-sue letter from the EEOC.
The district court dismissed the lawsuit, and we reversed, holding that "[a]s with other pleadings and papers, a complaint is filed 'by delivering it ... to the clerk.' " Id. at 1232-33 (quoting Fed. R. Civ. P. 5(d)(2) ). Though Escobedo advanced "constructive filing" and equitable tolling theories, we based our decision on other grounds. We noted that "scant justification exists to invoke" the "legal fiction" inherent in those theories because "[i]t is undisputed that the complaint was actually, physically delivered to the clerk...." Id. at 1231-32.
Similarly, in Ordonez v. Johnson ,
Likewise, in Klemm v. Astrue ,
In this case, the Demarees' Rule 59 motion was "actually, physically" delivered to the clerk when it was timely lodged in conjunction with the request to file under seal. Escobedo ,
Judge N.R. Smith's separate opinion cites to several cases that distinguish between lodged and filed documents for purposes of determining whether a document is included in the record under Federal Rule of Appellate Procedure 10(a). Separate Opn. of Smith, N.R., C.J., at 33-34 (citing Nicholson v. Hyannis Air Serv., Inc. ,
We therefore hold that this appeal is timely.
B. Qualified Immunity
We next consider whether Pederson and Van Ness were entitled to qualified immunity when they removed T.D., J.D., and L.D. from their home without judicial authorization.
Section 1983 provides a remedy for the violation of constitutional rights by any person acting under color of state law.
This section 1983 action concerns parents' and children's "well-elaborated constitutional right to live together without governmental interference." Burke v. Cty. of Alameda ,
There are narrow circumstances in which the government may constitutionally remove children from their families temporarily without judicial authorization. In an emergency, government officials may take a child out of her home and away from her parents without a court order "when officials have reasonable cause to believe that the child is likely to experience serious bodily harm in the time that would be required to obtain a warrant." Kirkpatrick ,
The Demarees, on behalf of themselves and their children, claim Pederson and Van Ness violated their clearly established constitutional rights when Pederson removed the children from the home without a court order and absent an emergency.
We begin with the first step of our qualified immunity inquiry-whether the social workers acted constitutionally when they took the Demaree children from their parents without court authorization. "Serious allegations of abuse that have been investigated and corroborated usually give rise to a 'reasonable inference of imminent danger sufficient to justify taking children into temporary custody' if they might again be beaten or molested during the time it would take to get a warrant." Rogers ,
Viewing the facts in the light most favorable to the Demarees, the social workers did not have reasonable cause to believe the children were at risk of serious bodily harm or molestation. Pederson and Van Ness did not represent that the Demaree children might "again be beaten or molested," Rogers ,
It is helpful to identify what this stated risk did not include. The risk identified by the defendants did not include taking photos of a nude child in an exploitative situation and distributing them, because there was no allegation or indication that A.J. and Lisa had distributed, or were likely in the future to distribute, nude pictures of their children to anyone.
Most important, the articulated risk-taking sexually explicit photos-did not include any risk of physical sexual abuse. There was no allegation that A.J. and Lisa were likely to put their children at risk of sexual assault or abuse; indeed, after the children were professionally evaluated for signs of sexual abuse, Detective Krause reported that "neither could provide any information relevant to the investigation," and Detective Shearer stated that "[T.D.] and [J.D.] did not make disclosures in the forensic interviews." At the end of the evaluations, Detective Krause reported that "[Child Protective Services] declined to remove the children from the parent's custody [sic ], and ... directed Detective Shearer to return the girls to Lisa and A.J."
Nor did Pederson act on fear of physical sexual abuse. Before removing the children, Pederson filled out a "Temporary Custody Notice," which included a space instructing investigators to "[c]heck the circumstances (imminent risk factor ) that most clearly describes the reason temporary custody was necessary." She did not check the box for situations where "[t]he child's caregiver has engaged in sexual conduct with a child, or has allowed the child to participate in sexual activity with others." Instead, Pederson checked "[o]ther," and wrote, "mother & father have taken sexually explicit pictures of all three children."
Further, any cognizable risk could not have been imminent in the sense our case law requires-that the children "might again be beaten or molested during the time it would take to get a warrant." Rogers ,
Here, the parties agree that the juvenile court was not open on Labor Day weekend, when the events in this case occurred. We therefore consider imminence of harm in terms of days rather than hours.
In sum, viewing the record most favorably to the Demarees, there was no suspected risk to the children of serious bodily harm, including molestation, imminent or otherwise. Therefore, viewing the record most favorably to the Demarees, the defendants acted unconstitutionally in taking the three children away from home without judicial authorization.
(ii) Whether the constitutional right was clearly established
We move to the second step of the qualified immunity inquiry-whether the relevant judicial precedents at the time of the incident clearly gave notice that what happened here violated the Demaree family's Fourth and Fourteenth Amendment rights. We conclude that the applicable precedents did provide that notice.
In 2007, the year before the events in this case took place, Rogers held that a social worker violated a family's clearly established federal rights by removing children with no warrant because of reports that a three-year-old and five-year-old "were not toilet-trained, were locked in their rooms at night and in a room at their parents' business during the day, were not receiving medical or dental care, that [one] had lost his teeth due to bottle rot, that [the other] was still being fed with a bottle, that their home was dirty and maggot-infested, and that there were unsecured guns in the home." Rogers ,
Even in the face of this significant accumulation of neglect and bodily harm, which all parties agreed had resulted in bodily injury to the small children, we held that there was no reasonable cause to believe an exigency supported the children's warrantless removal.
Here, there had been no actual or threatened physical harm to or physical sexual abuse of the Demarees' children before they were taken from their home. So the likelihood that they would suffer such abuse in the days it would take to get a warrant was necessarily less than the likelihood of future physical injury to the Rogers' children in the hours it would take to get a warrant.
Similarly, in Mabe v. San Bernardino Cty. ,
Despite quite serious allegations of physical sexual assault and bodily injury in Mabe , we were unwilling to hold as a matter of law that there was reasonable cause to believe there would be "imminent danger of future harm" within the time it would take to get a warrant.
The defendants disagree with the above analysis. They suggest that cases in the Ninth Circuit do not clearly establish the constitutional requirements for warrantless removals of children in the event of allegedly exploitative photos of nude children because those cases deal with other forms of sexual abuse and involve court orders available within a few hours rather than a few days.
When evaluating qualified immunity claims, "[w]e do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate."
Put another way, to say a child can be removed only if x is likely to happen necessarily means she cannot be removed if there is no indication that x is likely to happen. That there is no case law concerning a situation in which y , but not x , may be likely to happen does not make the rule setting the standards for removal any less clear-the rule is that only a reasonable fear of x , not y , can provide a constitutional basis for exigent removal.
Here, the rule remains that there can be no removal without a court order "absent evidence that the child was in imminent danger of serious bodily injury." Kirkpatrick ,
Notably, unlike in Kirkpatrick , the issue here is not the level of risk in a particular circumstance. See id . In that case, a mother who had abused methamphetamine gave birth to a child and, although both stayed in the hospital to recover, several social workers assumed temporary custody of the newborn without a warrant.
Further, the case law was clear in 2008 that it does not matter whether the warrant could be obtained in hours or days. What matters is whether there is an identifiable risk of serious harm or abuse during whatever the delay period is . See Rogers ,
We note that at least one other federal court of appeal has dealt with facts similar to those before us. In Malik v. Arapahoe Cty. Dep't of Soc. Servs. ,
The Tenth Circuit held that the defendants were not entitled to qualified immunity.
To recap: We do not here deal with a "general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment," which "is of little help in determining whether the violative nature of particular conduct is clearly established." al-Kidd ,
We accordingly reverse the district court's grant of qualified immunity to Pederson and Van Ness.
C. Motion to Seal
"[C]ourts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Commc'ns, Inc. ,
The Demarees' arguments can be summarized as follows: (1) sealing the summary judgment order is necessary "to protect[ ] the privacy and innocence of children"; (2) Arizona law provides that records related to CPS investigations are confidential; and (3) the unsealed order could be used for improper purposes, such as to provide "sexual[ ] stimulat[ion]."
None of these are compelling reasons for sealing the order here. First, the district court properly protected the privacy of the children by maintaining under seal any motions or exhibits containing their full names or identifying information. Second, Arizona law prohibits the Department of Economic Security from releasing "files that contain information related to investigations conducted by child protective services." Ariz. Rev. Stats. § 41-1959(A). It also provides that "records of ... dependency proceeding[s] shall not be open to public inspection."
Finally, the district court order employed clinical, anatomically correct language to briefly describe the nudity depicted in the photographs at issue. The unquantifiable odds that an unsavory individual might find this language titillating does not create a compelling reason for removing it from the public record-especially since the Demarees did not file their Complaint under seal, and in fact gave public interviews in which they, themselves, described the photos and the nudity depicted.
III. CONCLUSION
We affirm the district court order denying the Demarees' motion to seal the summary judgment order. We reverse the district court order granting summary judgment in favor of Pederson and Van Ness based on qualified immunity. We remand for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
N.R. SMITH, Circuit Judge, joining the per curiam opinion, except for Part II(A)(ii), and concurring in the judgment:
In my view, the court has neither jurisdiction nor authority to hear this case.
In order to overcome this lack of jurisdiction and lack of authority, the majority concludes that a "lodged" document has "filed" status, allowing the Plaintiffs more time to file the notice of appeal. There is no support for that position. We have no authority to hear this case.
First, because a notice of appeal was not filed by May 23, 2014 (it was actually filed on June 23, 2014), this court does not have jurisdiction.
Second, because the Rule 59 motion was not filed by May 21, 2014, there is no tolling of the time to file a notice of appeal under Rule 4(a)(4)(A). Instead, the Demarees filed a motion to seal on May 21, 2014 and lodged their Rule 59 motion the same day, allowing themselves the option not to file it in the future. Beyond the exceptions contained in Appellate Rule 4 (in this case the filing of a Rule 59 motion), "[w]e do not have authority ... to create additional exceptions based on our own sense of what is equitable or fair." Melendres v. Maricopa Cty. ,
The majority errs in its effort to remedy the situation, because there is a fundamental difference between a "filed" document and a "lodged" document; a "lodged" document is not before the court for consideration. "A document not suitable for filing will normally be stamped 'lodged' and placed in the court file but not included in the record on appeal." File , Black's Law Dictionary (10th ed. 2014). As such, authority over this appeal is precluded by operation of law.
We have previously addressed whether "lodged" filings are before the court and considered "filed" for purposes of litigation. The short answer is no. In Nicholson v. Hyannis Air Serv., Inc. ,
The cases, cited by the Majority, also reflect this understanding. Those cases each demonstrate that a plaintiff (affirmatively seeking to actually publicly file a document) is not barred from filing due to either technical difficulties or a filing fee waiver request. In Klemm v. Astrue ,
Here, the Demarees understood that the motion was not actually before the court. The Arizona District Court's local rules (AZ LR) specifically require a movant seeking to file a document under seal to file the motion to file under seal and "[t]he document or documents that are the subject of any such motion or stipulation must not be appended to the motion or stipulation, and must be lodged with the Court separately." AZ LR 5.6(b) (emphasis added). The consequences of the court denying a request to file under seal are explicit: "[i]f a request to file under seal is denied in part or in full, the lodged document will not be filed." AZ LR 5.6(c) (emphasis added). Further, if the court does deny a request to file under seal, the party has five days to file the motion publicly. AZ LR 5.6(e). There can be no question the Demarees knew their document was not filed.
By seeking to file under seal, it is obvious that the Demarees did not want the motion publicly filed. After the District Court rejected the Plaintiffs' motion, it was the Plaintiffs' decision to (1) file publicly;
To accord the Plaintiffs "an out," the Majority argues it has authority over this case by giving credence to the fact that the district court comments on the merits of the lodged motion in its denial of the Demarees' motion to seal. In response, the Majority, first, cites no actual legal authority for this argument, because there is none. Second, although the district court discusses the merits of the lodged motion, the ultimate ruling is that the "Motions to Seal (Doc. 363 and 370) are DENIED ."
Accordingly, this case is not properly before us for lack of jurisdiction and timely filing of a tolling motion.
Notes
Judge Berzon concurs in the entirety of this opinion. Judge N.R. Smith concurs in all but Part II(A)(ii) of this opinion. Judge Zouhary concurs in all but Part II(B)(ii) of this opinion.
Pederson and Van Ness did not rely upon the forensic interviews before or after they decided to remove the children.
See also Obaydullah v. Obama ,
We look to the substance and effect of an order, not solely its title. See Delta Computer Corp. v. Samsung Semiconductor & Telecomm. Co. ,
The Demarees contend, alternatively, that even if the removal itself was proper, Pederson and Van Ness violated their and their children's constitutional rights by placing the children in non-relative foster care, rather than directly placing them with their relatives. Because we agree with the Demarees that the removal was improper, we do not consider this alternative contention.
The defendants rely on the investigation into the parents' potential violation of Arizona's criminal law concerning the sexual exploitation of a minor. Under that law, "[a] person commits sexual exploitation of a minor by knowingly: 1. Recording, filming, photographing, developing or duplicating any visual depiction in which a minor is engaged in exploitative exhibition or other sexual conduct. 2. Distributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitative exhibition or other sexual conduct."Ariz. Rev. Stats. § 13-3553(A). "Exploitative exhibition" is defined as "the actual or simulated exhibition of the genitals or pubic or rectal areas of any person for the purpose of sexual stimulation of the viewer."
Also, taking the children away would not prevent the parents from distributing existing photographs were they so inclined-which there is no indication that they were.
It would be inappropriate to attach the photographs to this opinion, as doing so could further invade the children's privacy interests in anonymity. We note, however, insofar as Judge Zouhary's dissent suggests that the photographs portrayed the children in "provocative poses," see Dissenting Opn. of Zouhary, J., at 46, we see that portrayal of the photographs as inaccurate. The term suggests frontal nudity or sexually explicit poses, neither of which was represented.
The plaintiffs do not argue that the absence of available judicial officers over the weekend, and the consequent unavailability of a timely judicial determination, constituted a due process violation in itself.
Even focusing-inappropriately-on whether there was evidence that the Demarees would likely take more nude pictures of their children, or distribute new or existing pictures, in the few days before the government could get a court order, there was no such evidence. At the time she removed the children, Pederson did not identify any imminent future photography on her notice of temporary removal; rather, she noted that "mother & father have taken sexually explicit pictures of all three children" (emphasis added). It does not appear that Pederson reasonably could have identified more photography as an imminent risk, because the police had taken from the Demarees' home all the cameras, cell phones, computers, and printers found (in addition to potentially relevant photographs, undeveloped film, floppy disks, DVDs, CDs, and VHS tapes), as they explained to Pederson before she removed the children. And, again, there was no evidence that the parents had ever distributed or had any intent to distribute the photos.
Similarly here, Child Protective Services initially returned the children to their parents.
Cases applying Rogers and Mabe after the events giving rise to this case, while not directly applicable to the clearly established law inquiry, confirm our understanding of Rogers and Mabe . We have continued to be careful to emphasize the need for a clear showing of both imminence and specific, serious physical danger to the child. For example, in Burke v. Cty. of Alameda ,
None of the photographs here at issue meets that description.
As both the majority and the district court note, Pederson and Van Ness do not suggest they relied on the results of the forensic interview in making the decision to remove the children. Nevertheless, the record reflects that Pederson was aware of this information at the time.
The majority seems to suggest that there was no further risk of exploitation because the police seized the Demarees' photography equipment. This fact is not determinative. Even in 2008, cameras could be easily, legally, and inexpensively obtained from a variety of vendors.
The Majority mischaracterizes these cases, suggesting they are inapplicable because the question before the panel is timeliness, not a question of the evidentiary record on appeal. Indeed, by the same reasoning, the Majority's cases are inapplicable because they involve complaints or administrative appeals, not Rule 59 motions. The proper question is whether a given document was properly before the court or not; i.e., whether it was "filed" or "lodged." In this regard, Nicholson , Barcamerica , and Levald are on point, because they answer whether a "lodged" document is "filed": the precise question before the panel.
Document 363 was a motion to file under seal to supplement the record in support of their Rule 59 motion and Document 370 was the motion to file the Rule 59 motion under seal.
Further, the Demarees have not appealed the district court's denial of their motions to seal arguing the district court abused its discretion by not considering the merits of the sealing, but rather to deny the motion to seal based on the merits of the lodged Rule 59 motion. This issue, thus, is waived on appeal. Smith v. Marsh ,
If the Demarees had filed their Rule 59 motion publicly within five days after the district court entered its denial, they would have a much stronger argument that their situation was akin to the plaintiff in Escobedo , where the district court gave the plaintiff thirty days to pay her filing fee after denying her motion to proceed without paying it. Escobedo ,
Concurrence Opinion
I concur in the per curiam opinion in full. I write separately to emphasize why it is essential that the courts scrupulously guard a child's constitutional right to remain at home absent a court order or true exigency.
Taking a child from his or her home, family, and community constitutes a separate trauma, in and of itself. Our cases so recognize, and so ordinarily permit that trauma to occur only after a court determination that the alternative is worse.
Nearly two decades ago, we described the purposes underlying constitutional restrictions
The problem of child abuse is a critical one, with deep personal and social costs. For too long, intra-familial sexual abuse was considered to be a "private" matter. Today, the law is changing....
Because the swing of every pendulum brings with it potential adverse consequences, it is important to emphasize that in the area of child abuse, as with the investigation and prosecution of all crimes, the state is constrained by the substantive and procedural guarantees of the Constitution. The fact that the suspected crime may be heinous-whether it involves children or adults-does not provide cause for the state to ignore the rights of the accused or any other parties. Otherwise, serious injustices may result. In cases of alleged child abuse, governmental failure to abide by constitutional constraints may have deleterious long-term consequences for the child and, indeed, for the entire family. Ill-considered and improper governmental action may create significant injury where no problem of any kind previously existed.
Wallis v. Spencer ,
In other words, for children in neglect and abuse proceedings, "entry into foster care br[ings] them the additional trauma of separation from their homes and often their communities."
Research confirms that "unexpectedly being snatched by the police or protective service workers traumatize[s] ... children."
By assuring close judicial supervision of even temporary governmental interference in the parent-child relationship-absent reasonable cause to believe a true, identifiable, serious exigency exists-our case law implements the Fourth and Fourteenth Amendment's protection of vulnerable children and their parents. Because our decision today reaffirms that critical principle, I concur.
ZOUHARY, District Judge, concurring and dissenting in part:
I concur in the per curiam Opinion regarding the timeliness of the appeal and the district court denial of the motion to seal the summary judgment opinion. But I respectfully dissent from the majority view on the merits of the case. I would affirm the district court order granting summary judgment based on qualified immunity.
A government official who removes a child from parental custody without judicial authorization must have reasonable cause to believe that the child is at risk of abuse during the time necessary to obtain a court order. Rogers v. Cty. of San Joaquin ,
In cases where children were not in immediate physical danger and a warrant could be obtained "within hours," this Court concluded that the exigent circumstances requirement was not met. See Rogers ,
In this case, Pederson presented evidence that obtaining a court order would take her days, not hours. Assuming, as the majority suggests, that Pederson could have obtained a warrant on a pre-hearing motion for pickup-which neither side argued before the district court-the earliest she could have been heard was the Tuesday following the Labor Day holiday. Against this time line, Pederson had to evaluate the following information:
• A Walmart employee was concerned when he discovered photos of naked children on the Demarees' memory stick, and he notified the police;
• Krause reviewed the photos, interviewed the parents, served a search warrant at the Demarees' residence, and seized various cameras, computers, film, and other photos;
• The children were interviewed and medically examined. During the forensic interview, one of the children reported that their mother "tickle[d] around her private." The interviewer recommended that the children have no contact with their father pending completion of the investigation;1
• The physical exams were all normal, but the assessment noted that "[a] normal genital exam does not preclude the possibility of inappropriate sexual contact [sic] the concern described in the history. Many types of sexual abuse do not have associated physical findings significant enough to be found on medical exam;"
• Krause informed Pederson that at least five of the photos met the statutory definition of sexual exploitation of a minor, and he planned to charge both parents with five felony counts of sexual exploitation of a minor;
• Pederson reviewed the edited black and white copies of the photos and determined that the children were nude, with their genitals exposed to the camera, and some of the images appeared posed.
Pederson later explained the significance of her belief that the children (ages five, four, and 19 months) appeared to be posed: "I would be very concerned if children
At the time of the removal, then, Pederson knew that there were "[s]erious allegations of abuse" against the Demarees, which she investigated and corroborated by reviewing the photos, speaking with Shearer about the results of the forensic interview and medical exams, and conferring with Krause about the potential criminal charges. Rogers ,
The majority concludes, and I agree, that the only "articulated" risk to the children is that the parents would take more sexually explicit photos of them. This may not have been the only "articulable" risk, in light of the forensic interview report, but the record is clear that Pederson summarily identified the "sexually explicit pictures" as the basis for the emergency removal. She also provided the parents with a notice informing them that they were under investigation for "sexual abuse - child pornography/exploitation." Nevertheless, viewing the facts in the light most favorable to the Demarees, a jury could conclude that the children faced no immediate danger of abuse, and it was safe to leave them with their parents over the holiday weekend. Accordingly, that same jury could find that Pederson and Van Ness committed a constitutional violation by removing the children under non-exigent circumstances without a court order. I therefore concur in this portion of the per curiam Opinion. But this is not the end of the inquiry.
Clearly Established Law
The second prong of the qualified immunity analysis is whether the right at issue was clearly established. In determining whether a right is clearly established, "[w]e do not require a case directly on point." Ashcroft v. al-Kidd ,
I disagree with the majority's view of Malik v. Arapahoe County Department of Social Services ,
Our conclusion that disputed facts as viewed by the district court in the light most favorable to plaintiffs-appellees support a conclusion that defendants violated clearly established law by no means restricts the authority of law enforcement and child protective officers to seek protective custody of a child when they have legitimate concerns for the child's safety. Rather, our conclusion hinges upon the district court's finding that "[d]efendants acknowledged Julie was in no imminent danger at the time they sought the order and the facts suggestit was secured only through distortion, misrepresentation and omission."
Further, in Malik , the photos at issue were five months old, and the child's uncle, who took the photos, lived out of state. Law enforcement officials had also been in contact with the child's mother and her attorney for about two weeks before seeking a temporary custody order, which supports the conclusion that they did not consider the case an emergency.
In contrast, in this case, both parents lived in the home and were subjects of an ongoing criminal investigation. They admitted to regularly taking nude photos of the children-in fact, A.J. initially thought Krause wanted to question him about additional photos that were not included in the set obtained from Walmart.
Despite the absence of authority directly on point, the majority concludes that it was nevertheless "beyond debate" in 2008 that an emergency removal is only justified to protect a child from "imminent physical injury or molestation," and "[t]he risk identified here simply does not meet that standard, as it does not involve physical injury or abuse." Per curiam Op. at 25-26. I respectfully disagree for two reasons.
First, framing the issue in this way overlooks another well-established formulation of the standard, one which is quoted earlier in the Opinion: "Serious allegations of abuse that have been investigated and corroborated usually give rise to a 'reasonable inference of imminent danger sufficient to justify taking children into temporary custody'...." Rogers ,
Here, Pederson investigated and corroborated a serious allegation of abuse. True, it did not necessarily involve traditional physical injury. But the record reflects that the nature of the concern-sexually explicit photos-is not limited to snapping a picture. In other words, the potential danger was not that the Demarees would take more naked pictures of the girls; rather, the risk was that the parents were sexually exploiting their children. As Pederson explained, inherent in this allegation is the concern that there is more to the situation than meets the eye-for example, that the parents may have posed the children, or that the children may have adopted provocative poses based on behavior observed in the home. Without the benefit of clearer guidance defining the "usual" case, a reasonable social worker could be unsure how to proceed under these circumstances.
Second, the majority treats the nature of the risk and the time required to obtain a warrant as entirely distinct considerations. I do not consider them so easily separated. Ninth Circuit authority in this area rightly focuses on whether the threat to a child's safety is sufficiently "imminent" to justify immediate removal, without waiting for court approval. See, e.g. ,
This case is unique: no judicial review was available for at least several days. And this fact is both critical and, perhaps, unlikely to be repeated. As the majority correctly notes, certain allegations of abuse or neglect might lead a reasonable social worker to feel comfortable leaving a child in the custody of his parents for just a few hours. See, e.g. , Rogers ,
Pederson faced a tough judgment call on that Saturday night: she could err on the side of caution and take the children into temporary custody, or she could wait three days until the courts reopened to seek a removal order. In August 2008, it was clearly established that a child could not be removed from the home without a court order, absent evidence that the child was in imminent danger of abuse. See Kirkpatrick ,
Without fair notice, I would hold that Pederson and Van Ness are entitled to qualified immunity for removing the children without a court order. I therefore respectfully dissent from this portion of the per curiam Opinion.
I agree with the Majority that Hamer v. Neighborhood Housing Services of Chicago , --- U.S. ----,
There is no question the Defendants did not waive or forfeit this argument: "The Demarees filed a timely Notice of Appeal (ER 19) as to postjudgment orders (ER 1,3), but not as to the Judgment (ER 4)."