David R. HODGE; Marsha A. Hodge, his wife, individually and as parents and next friend of a minor, Joseph E. Hodge, Plaintiffs-Appellees, v. M. Alexander JONES, Director of the Carroll County Department of Social Services, in his official and individual capacities; Alan L. Katz, Assistant Director of the Carroll County Department of Social Services, in his official and individual capacities; Carolyn W. Colvin, Secretary of the Department of Human Resources of the State of Maryland, in her official and individual capacities, Defendants-Appellants, and Carroll County Department of Social Services, Defendant.
No. 93-1182.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 9, 1993. Decided July 19, 1994.
31 F.3d 157 | 63 USLW 2081
Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, and WIDENER and WILLIAMS, Circuit Judges.
Vacated in part, reversed in part, and remanded with instructions by published opinion. Judge WILLIAMS wrote the opinion, in which Judge WIDENER concurred. Justice POWELL wrote a separate opinion concurring in the judgment.
OPINION
WILLIAMS, Circuit Judge:
We are presented with the question of the applicability of a qualified immunity affirmative defense in the context of a
I.
A.
On January 20, 1989, David and Marsha Hodge took their three-month-old son Joseph to the Carroll County General Hospital in Westminster, Maryland, for examination and treatment of the child‘s swollen right arm. The examining physician diagnosed a fractured ulna ” ‘without adequate historical explanation’ ” and, pursuant to state law,
Between February 1989 and May 1990, the Hodges engaged in a campaign of communications with Katz and other CCDSS officials and Maryland Department of Human Resources (MDHR)2 Director Carolyn Cоlvin requesting, among other things, the full report and the destruction or expunction of any CCDSS file or document regarding the Hodge investigation. Each request was refused under Maryland‘s statutory bar against disclosure of confidential materials, pursuant to
B.
Continued refusals to disclose and expunge the investigation report prompted David and Marsha Hodge, individually and as parents and next friends of Joseph Hodge,5 to file this action against CCDSS, its Director M. Alexander Jones, Assistant Director Katz, and MDHR Secretary Colvin. The Hodges claimed that, contrary to the protections of the Due Process Clause of the Fourteenth Amendment, maintenance of a record of “unsubstantiated” and “ruled out” child abuse violated their liberty interest in familial privacy, and that failure to provide notice and a hearing before maintaining that record viоlated their procedural due process rights.
II.
Qualified immunity “is an accommodation by the courts to thе ‘conflicting concerns’ of, on one hand, government officials seeking freedom from personal monetary liability and harassing litigation and, on the other hand, injured persons seeking redress for the abuse of official power.” Hodorowski v. Ray, 844 F.2d 1210, 1216 (5th Cir.1988) (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)). As such, “whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action ... assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson, 483 U.S. at 639 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982)). We have previously held that individuals involved in the investigation of child abuse may properly assert qualified immunity in appropriate situations. Wildauer v. Frederick County, 993 F.2d 369, 373 (4th Cir.1993); see also Achterhof v. Selvaggio, 886 F.2d 826, 829-30 (6th Cir.1989) (the entry of an individual‘s name in a central rеgistry as a child abuse suspect is an administrative act for which qualified immunity may be asserted).
In finding that Defendants were not entitled to qualified immunity, the district court concluded that they had violated the Hodges’ “clearly established” constitutional right of familial privacy and autonomy, which it defined by referencing the Supreme Court‘s 1977 pronouncement that “[o]ur decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation‘s history and tradition,” Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977), and acknowledging the ” ‘private realm of family life which the state cannot enter,’ ” Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 842 (1977) (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). Hodge, 812 F.Supp. at 607. The court also cited Bohn v. County of Dakota, 772 F.2d 1433, 1435 (8th Cir.1985), cert. denied, 475 U.S. 1014 (1986), an Eighth Circuit case recognizing the privacy implications of information repositories pertaining to suspeсted child abuse. Hodge, 812 F.Supp. at 608.
We review the court‘s denial of qualified immunity de novo. Bryant v. Muth, 994 F.2d 1082, 1086 (4th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 559, 126 L.Ed.2d 459 (1993). The Supreme Court requires that such review begin with an inquiry into whether familial privacy was indeed a clearly established constitutional right which Defendants violated by retaining the Hodge investigation report. Siegert v. Gilley, 500 U.S. 226, 231 (1991). This requires that we focus first on the confines of the asserted liberty interest of familial privacy.
A.
The maxim of familial privacy is neither absolute nor unqualified, and may be outweighed by a legitimate governmental interest. Moore, 431 U.S. at 499-500; see Lehr v. Robertson, 463 U.S. 248, 256 (1983) (constitutional protection available for parent-child relationship in “appropriate cases“); Prince, 321 U.S. at 166 (“But the family itself is not beyond regulation in the public interest....“). “The right to family integrity clearly does not include a constitutional right to be free from child abuse investigations.” Watterson v. Page, 987 F.2d 1, 8 (1st Cir.1993). In this case, the Hodges concede, as indeed they must, that Maryland has a legitimate interest in curtailing the abuse and neglect of its minor citizens. See Santosky, 455 U.S. at 766 (state has “parens patriae interest in preserving and promoting the welfare of the child“). But see Parham v. J.R., 442 U.S. 584, 603 (1979) (“The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.” (emphasis in original)). The Hodges contend, however, that the legitimate governmental interest is extinguished once repоrts of suspected child abuse have been determined to be “unsubstantiated” or “ruled out,” thereby necessitating the elimination of any and all records pertaining to the vindicated suspect and his or her alleged acts.
Although the records retained by CCDSS reference the Hodge family, the facts of this case do not reach “an abstract due process liberty interest in family relationships.” Frazier, 957 F.2d at 930. The Hodges’ utter failure to demonstrate that Defendants’ actions were designed to have, have had, or even will have, a significant impact on the parent-child relationship or on their family‘s ability to function precludes the establishment of a familial privacy infringement of constitutional magnitude.8 See Santosky, 455 U.S. at 753-54; Griffin, 983 F.2d at 1548; cf. Rucker v. Harford County, 946 F.2d 278, 282 (4th Cir.1991) (police conduct neither directed at nor directly impinging upon family relationship does not violate liberty interest of intimate association of the family), cert. denied, --- U.S. ----, 112 S.Ct. 1175, 117 L.Ed.2d 420 (1992). “[T]he liberty interest protected by the substantive due process clause was [not] intended to protect every conceivable family relationship from governmental interference, no matter how far removed....” Pittsley, 927 F.2d at 9.
Our reading of the Hodges’ complaint reveals no morе than a conclusory allegation of reputational injury which, absent a cognizable stigma and the ensuing loss of a tangible interest, fails to state a cause of action under
The Maryland statutory safeguards are virtually identical to those deemed satisfactory by the Supreme Court in the context of a New York computerized database identifying all users and prescribers of Schedule II pharmaceuticals within the State of New York. Whalen, 429 U.S. at 593-95, 605. The tangential possibility of public disclosure of the Hodge investigation report or the AMF entry, through such theoretical means as negligent or improperly-motivated state employees or fortuitous computer hackers, cannot by itself implicate a constitutional privacy right. Id. at 600-02; Watson, 974 F.2d at 487; Walls v. City of Petersburg, 895 F.2d 188, 194 (4th Cir.1990)(“When there are precautions to prevent unwarranted disclosure, an individual‘s privacy interest is weakened.“). Despite “the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files,” the record in this case does nothing to refute our conclusion that Maryland‘s “statutory scheme, and its implementing administrative procedures, evidence a proper concern with, and protection of, the [Hodges‘] interest in privacy.” Whalen, 429 U.S. at 605.
We see a correlation between the instant case and the maintenance of arrest and criminal records, even after the persons implicated therein have been acquitted or the charges upon which those records are predicated are dropped. While it is true that such records may be expunged, there is no automatic right to expunction once an individual‘s name has been cleared. See United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir.1993); United States v. Scott, 793 F.2d 117, 118 (5th Cir.1986). Expunction in those instances is a discretionary function of the court, rarely utilized absent extreme circumstances, and “mere acquittal of the subsequent charge is an insufficient reason to grant expunction.” United States v. Friesen, 853 F.2d 816, 818 (10th Cir.1988); see also Geary v. United States, 901 F.2d 679, 680 (8th Cir.1990) (same); United States v. Stromick, 710 F.Supp. 613, 614 (D. Md.1989) (convictеd individual‘s subsequent law-abiding life does not warrant expunging criminal records). Given that arrest and criminal records are matters of public record, easily obtained upon request, and that there is no automatic right to expunction thereof, it simply does not follow that the Hodges can claim a right of expunction of unsubstantiated abuse records maintained in a manner consistent with the Constitution and procedural safeguards approved by the Whalen Court. Reuber v. United States, 750 F.2d 1039, 1068 (D.C.Cir.1984) (Bork, J., concurring) (records expunged only where such procedures are “essential to prevent future harm” from constitutional violations).
Finally, we note our disagreement with the Hodges’ contention that the State lacks a legitimate governmental interest once an abuse report has been deemed “unsubstantiated” or “ruled out.” The retention of these investigation reports continues to serve legitimate state interests in the welfare of children. For instance, a series of “unsubstantiated” or “ruled out” entries for a given child may arouse suspicion of a pattern or practice of emotional and physical harm to a child, warranting further inquiry by the State. Retained records could, in fact, protect the individual whose record is kept by preventing repeated investigations when more than one person makes the same accusation. Finally, such records allow the state to defend itself in the event of a suit alleging inadequate investigation of a reported instance of child abuse. See Roth v. Reagen, 422 N.W.2d 464 (Iowa 1988). We should not intеrfere with a State‘s concentrated efforts to implement an orderly and rational legislative scheme calculated to halt the growing problem of child abuse. See Whalen, 429 U.S. at 597-98.
The Hodges would have us expand penumbral privacy rights beyond the fixed boundaries of established precedent in order to establish a justiciable injury in the confidential maintenance of “unsubstantiated” or “ruled out” child abuse investigation reports. We decline to tread so boldly, echoing instead the Supreme Court‘s prudent restraint in refusing “to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause.” Bowers v. Hardwick, 478 U.S. 186, 194 (1986). The record before us presents no substantive due process violation of a familial privаcy liberty interest by virtue of the retention of the Hodge investigation report.10
B.
Given our conclusion above, it is technically unnecessary for us to discuss the district court‘s denial of qualified immunity. “If there is no violation of a federal right, there is no basis for a section 1983 action and no answer to a plea by the public officer of qualified immunity.” Clark v. Link, 855 F.2d 156, 161 (4th Cir.1988).
Nevertheless, we feel compelled to address a matter raised in the district court‘s opinion with which we find a fundamental error, namely the court‘s generalized formulation of a constitutional right which prevents reasonable government officials from knowing just what conduct is actually prohibited by the broad concept of family inviolability. Anderson, 483 U.S. at 639 (“[I]f the test of ‘clearly established law’ were to be applied at this level of generality, it would bear no relationship to the ‘objective legal reasonableness’ that is the touchstone of Harlow ... [and would transform Harlow ] from a guarantee of immunity into a rule of pleading.“). We commend the district court‘s thoughtful consideration of the familial privacy right, but note that it is this very need for such complex legal analysis that renders a denial of qualified immunity inappropriate in this case. Absent our conclusion that Defendants violated no constitutional rights, this would be a proper case for the application of qualified immunity because “[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1048, 122 L.Ed.2d 356 (1993). To expect Defendants to resolvе what reasonable jurists have long debated--namely the precise strictures of the penumbral right of familial privacy, cast in the sweeping language of the Supreme Court cases cited by the district court, especially in the face of a legitimate state interest such as the effective detection and prevention of child abuse--is to impose burdens and expectations well beyond their reasonable capacities.11 See Swanson v. Powers, 937 F.2d 965, 968 (4th Cir.1991) (inappropriate to deny qualified immunity where state official would be required “to predict the future course of constitutional law,” or “to recognize the significance of a few scattered cases from disparate areas of the law” (quoting Lum v. Jensen, 876 F.2d 1385, 1389 (9th Cir.1989) and Lojuk v. Johnson, 770 F.2d 619, 628 (7th Cir.1985))), cert. denied, --- U.S. ----, 112 S.Ct. 871, 116 L.Ed.2d 777 (1992).
III.
Finally, as to the Hodges’ claims of procedural due process violations, our decision in Section II.A. that no protected liberty interest was implicated by Defendants’ actions obviates any federal constitutional requirement of procedural due process. Zinermon v. Burch, 494 U.S. 113, 125 (1990); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). The fact that Defendants’ acts may have violated various Maryland statutory provisions, including
IV.
In conclusion, the Hodges have not demonstrated a violation of any federal constitutional or statutory right of familial privacy. The confines of that right were not so clearly established that, even if Defendants’ acts did impinge the Hodge family‘s zone of privacy, they could objectively or reasonably have known that their conduct violated the Due Process Clause. The absence of any liberty interest deprivation requires that we vacate the partial judgment for Plaintiffs on the issue of liability, reverse the district court‘s order rejecting Defendants’ proffered qualified immunity, and remand with instructions to enter a judgment in favor of Defendants.
VACATED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.
Defendants aрpeal, prior to final judgment, the district court‘s denial of their claim of qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511 (1985). Defendants are entitled to qualified immunity from civil monetary damages if their conduct did not violate the Hodges’ clearly established federal statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In deciding this question, the Court may, in the exercise of its discretion, reach the merits of the underlying constitutional question at issue. See O‘Bar v. Pinion, 953 F.2d 74, 80 (4th Cir.1991). I prefer not to reach them.
The Hodges contend that Defendants violated their substantive and procedural rights under the Due Process Clause of the Fourteenth Amendment.
For the reasons stated by the Court in Section II.B., I agree that the Hodges have not alleged a violation of a clearly established, constitutionally protected liberty interest in “familial privacy.” See Pritchett v. Alford, 973 F.2d 307, 312 (4th Cir.1992) (“In determining whether the specific right allegedly violated was ‘clearly established,’ the proper focus is not upon the right at its most general or abstract level, but at the level of its application to the specific conduct being challenged.” (citations omitted)). Nor hаve they alleged a violation of a clearly established, constitutionally protected liberty interest founded in Maryland law. See Hewitt v. Helms, 459 U.S. 460, 469 (1983) (“[A] State may create a liberty interest protected by the Due Process Clause through its enactment of certain statutory or regulatory measures.“). Even assuming that the Automated Master File is a “central registry” to which Maryland‘s procedural guarantees attach, see
Therefore, even assuming that Defendants’ actions infringed a constitutionally protected liberty interest, such interest was not clearly established at the time of Defendants’ conduct. As such, Defendants are entitled to qualified immunity and the Hodges’ claims for monetary relief must fail. In addition, I agree with the Court that the Hodges’ requests for declaratory and injunctive relief are moot. See ante, at 166. I thus concur in the judgment of the Court.