Lisa Demaree v. John Krause , 880 F.3d 1066 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LISA DEMAREE, wife; ANTHONY No. 14-16207
(“A.J.”) DEMAREE, husband; on
behalf of themselves and as the D.C. No.
natural guardians and guardians ad 2:11-cv-00046-
litem for their three minor children, ROS
T.D., J.D., and L.D.,
Plaintiffs-Appellants, OPINION
v.
LAURA PEDERSON; AMY VAN NESS,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Argued and Submitted July 6, 2016
San Francisco, California
Filed January 23, 2018
Before: Marsha S. Berzon, and N. Randy Smith, Circuit
Judges, and Jack Zouhary,* District Judge.
*
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
2 DEMAREE V. PEDERSON
Per Curiam Opinion;
Concurrence by Judge Berzon;
Partial Concurrence and Partial Dissent by Judge Zouhary;
Dissent by Judge N.R. Smith
SUMMARY**
Civil Rights
The panel affirmed the district court’s order denying
plaintiffs’ motion to seal the district court’s summary
judgment order, reversed the district court’s order granting
summary judgment in favor of social workers on the basis of
qualified immunity, and remanded for further proceedings.
Plaintiffs alleged that Child Protective Services socials
workers violated their and their children’s constitutional
rights to family unity and companionship by temporarily
removing the children from their home without a warrant or
court order. The social workers removed the children during
a possible sexual abuse investigation after a Wal-Mart
employee contacted police that while printing family photos
dropped off by plaintiffs, they noticed several pictures
portraying child nudity.
The panel first rejected defendants’ contention that
plaintiffs’ appeal was not timely filed because plaintiffs’
“lodged” motion to alter or amend the judgment under
Federal Rule Civil Procedure 59 could not toll the deadline
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DEMAREE V. PEDERSON 3
for appeal under Federal Rule Civil Procedure 4(a)(4).
Applying Hamer v. Neighborhood Hous. Servs. of Chi.,
138 S. Ct. 13, 16-17 (2017) the panel held that Rule 4(a)(4)
is not jurisdictional but rather is a mandatory claim-
processing rule. The panel then held that the appeal was
timely because the Rule 59 motion was actually physically
delivered to the clerk when it was timely lodged in
conjunction with the request to file under seal, and the district
court treated the motion as filed when it ruled on the merits
of the motion.
The panel held that the social workers were not entitled to
qualified immunity. Viewing the facts in the light most
favorable to the plaintiffs, the social workers did not have
reasonable cause to believe the children were at risk of
serious bodily harm or molestation when they removed the
children from their home without judicial authorization. The
panel further held that plaintiffs’ constitutional right was
clearly established at the time. The panel held that specific
judicial precedent clearly gave notice to the social workers
that children could not be removed from their homes without
a court order or warrant absent cogent, fact-focused
reasonable cause to believe the children would be imminently
subject to physical injury or physical sexual abuse.
The panel affirmed the district court order denying
plaintiffs’ motion to seal the summary judgment order. The
panel held that: (1) 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; (2) Arizona law prohibited the release of files
related to investigations conducted by child protective
services; and (3) the district court order employed clinical,
4 DEMAREE V. PEDERSON
anatomically correct language to briefly describe the nudity
depicted in the photographs at issue.
Concurring, Judge Berzon wrote 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.
Concurring and dissenting in part, Judge Zouhary agreed
with the per curiam opinion as it pertained to the timeliness
of the appeal and the district court denial of the motion to seal
the summary judgment opinion. He respectfully dissented
from the majority view on the merits of the case. He would
have affirmed the district court order granting summary
judgment based on qualified immunity.
Dissenting on jurisdiction and timeliness grounds, Judge
N.R. Smith stated that because plaintiffs failed to file their
notice of appeal within thirty days of the judgment, the court
had no jurisdiction or authority over their appeal.
COUNSEL
Richard R. Treon (argued), Treon & Aguirre PLLC, Phoenix,
Arizona, for Plaintiffs-Appellants.
Michael G. Gaughan (argued), Assistant Attorney General;
Mark Brnovich, United States Attorney; United States
Attorney’s Office, Phoenix, Arizona; for Defendants-
Appellees.
DEMAREE V. PEDERSON 5
OPINION
PER CURIAM:1
As this court has stated repeatedly, families have a “well-
elaborated constitutional right to live together without
governmental interference.” Wallis v. Spencer, 202 F.3d
1126, 1136 (9th Cir. 2000); accord Kirkpatrick v. Cty. of
Washoe, 843 F.3d 784, 789 (9th Cir. 2016) (en banc); Burke
v. Cty. of Alameda, 586 F.3d 725, 731 (9th Cir. 2009); Rogers
v. Cty. of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007);
Mabe v. San Bernardino Cty., 237 F.3d 1101, 1107 (9th Cir.
2001); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997).
We consider here Lisa and Anthony (“A.J.”) Demaree’s
contention that social workers Laura Pederson and Amy Van
Ness violated their constitutional rights to family unity and
companionship, and their small children’s as well, by
removing the children from home without a warrant or court
order.
I. BACKGROUND
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.
1
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.
6 DEMAREE V. PEDERSON
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.”2
2
Pederson and Van Ness did not rely upon the forensic interviews
before or after they decided to remove the children.
DEMAREE V. PEDERSON 7
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 were at risk of further exploitation.” She discussed
her recommendation with her supervisor, Amy Van Ness,
who agreed.
Pederson gave the parents a “Temporary Custody
Notice.” In that notice, in the space provided for
investigators to “[c]heck the circumstances (imminent risk
8 DEMAREE V. PEDERSON
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
DEMAREE V. PEDERSON 9
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., 331 F.3d 1122, 1135 (9th Cir. 2003). Instead, the order
addressed only the merits of the Rule 59 motion, denying the
request to file under seal because the underlying motion was
“unnecessary” and “a repeat of arguments previously made,
at great length, in Plaintiffs’ filings.” The Demarees filed
10 DEMAREE V. PEDERSON
their Notice of Appeal twenty-seven days after the issuance
of the order denying leave to file their Rule 59 motion under
seal, and fifty-five days after the summary judgment order.
Pederson and Van Ness contend that the Demarees’ appeal
was not timely because the Rule 59 motion was never
actually filed and therefore could not toll the deadline for
appeal under Rule 4(a)(4).
(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., 138 S. Ct. 13, 16–17
(2017). In other words, “[i]f a time prescription governing
the transfer of adjudicatory authority from one Article III
court to another appears in a statute, the limitation is
jurisdictional; otherwise, the time specification fits within the
claim-processing category.” Id. at 20 (internal citations and
footnote omitted).
Before Hamer, we held the timeliness rule at issue here
jurisdictional. See United States v. Comprehensive Drug
Testing, Inc., 513 F.3d 1085, 1100 (9th Cir. 2008), aff’d and
adopted en banc, United States v. Comprehensive Drug
Testing, Inc., 621 F.3d 1162, 1167 (9th Cir. 2010) (en banc).
Comprehensive Drug Testing recognized that “Fed. R. App.
P. 4(a)(4) does not contain language from 28 U.S.C. § 2107,”
DEMAREE V. PEDERSON 11
or any other relevant statute.3 But Comprehensive Drug
Testing regarded Bowles v. Russell, 551 U.S. 205, 214 (2007)
as indicating that all timeliness problems in notices of appeal
were jurisdictional, whether directly traceable to a statutory
requirement or not. Comprehensive Drug Testing, 513 F.3d
at 1100.
Hamer, 138 S. Ct. at 21, squarely rejected Comprehensive
Drug Testing’s reading of Bowles in the context of another
provision of Fed. R. App. P. 4, Rule 4(a)(5)(C). That Rule
also established a “time prescription . . . absent from the U.S.
Code.” Id. Hamer noted that “[s]everal Courts of Appeal . . .
ha[d] tripped over [its] statement in Bowles that ‘the taking of
an appeal within the prescribed time is “mandatory and
jurisdictional,”’” even though that statement was “a
characterization left over from days when [the Supreme
Court] w[as] ‘less than meticulous’ in [its] use of the term
‘jurisdictional.’” Id. (internal citations and footnotes
omitted).
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, 335 F.3d 889, 900 (9th Cir. 2003) (en
3
See also Obaydullah v. Obama, 688 F.3d 784, 788–91 (D.C. Cir.
2012) (describing the relationship between Fed. R. App. P. 4(a)(4) and
28 U.S.C. § 2107, and explaining that the tolling provision of Rule 4(a)(4)
has no statutory analog).
12 DEMAREE V. PEDERSON
banc). Under Hamer, Rule 4(a)(4) is not jurisdictional;
instead, Rule 4(a)(4) is a mandatory claim-processing rule.
The defendants challenged the timeliness of this appeal in
their brief before us, so we must address that question, even
though not jurisdictional. See, e.g., Amalgamated Transit
Union Local 1309 v. Laidlaw Transit Servs., Inc., 435 F.3d
1140, 1145 (9th Cir. 2006); Kwai Fun Wong v. Beebe,
732 F.3d 1030, 1035–36, 1047 (9th Cir. 2013) (en banc).
(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.
787 F.3d at 1227. She also filed an in forma pauperis
application, which was later denied, and she paid her filing
fee by the deadline imposed by the court, which fell 133 days
after she received the right-to-sue letter. Id. at 1230. The
defendant argued that the complaint was time-barred because
it was “filed” after the ninety-day statutory deadline, even
though it was originally submitted to the clerk within the time
limit.
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
DEMAREE V. PEDERSON 13
complaint was actually, physically delivered to the clerk
. . . .” Id. at 1231–32.
Similarly, in Ordonez v. Johnson, 254 F.3d 814, 816 (9th
Cir. 2001) (per curiam), we held that a pro se prisoner
complaint was timely filed when delivered to the clerk, even
though the clerk rejected the complaint for noncompliance
with a local rule requiring submission of a courtesy copy. We
reasoned that “elevat[ing] a local rule . . . to the status of a
jurisdictional requirement would conflict with the mandate of
Federal Rule of Civil Procedure 1 to provide a just and
speedy determination of every action.” Id. (internal quotation
marks and citations omitted).
Likewise, in Klemm v. Astrue, 543 F.3d 1139 (9th Cir.
2008), Klemm mailed his notice of appeal to the clerk’s
office, along with a post-dated check for the filing fee. The
clerk rejected the notice and instructed Klemm to file
electronically, as required by local rule. He did so, but his
electronic filing fell three days after the relevant deadline.
We held the notice of appeal “was deemed filed when it
‘arrived in the hands of the Clerk within the statutory
period.’” Id. at 1143 (quoting Loya v. Desert Sands Unified
Sch. Dist., 721 F.2d 279, 280 (9th Cir. 1983)). We reasoned
that “filing requirements dictated by local rules are not
jurisdictional. . . . Local rules govern local practice, but a
violation of local rules cannot divest this court of the
jurisdiction afforded to it by Congress.” Id. (citation
omitted).
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,
787 F.3d at 1232. And the district court treated the motion as
14 DEMAREE V. PEDERSON
filed, as it ruled on the merits of the motion.4 Accordingly,
the time to file an appeal began running from May 27, 2014,
the date of the district court’s final order, and the Demarees
timely filed their Notice of Appeal, on June 23, 2014.
Judge N.R. Smith’s dissent 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). Dissenting
Opn. of Smith, N.R., C.J., at 42–44 (citing Nicholson v.
Hyannis Air Serv., Inc., 580 F.3d 1116, 1127 n.5 (9th Cir.
2009); Barcamerica Int’l USA Trust. v. Tyfield Imps., Inc.,
289 F.3d 589, 594–95 (9th Cir. 2002); Levald v. City of Palm
Desert, 998 F.2d 680, 684 n.1 (9th Cir. 1993)). Those cases
are not relevant here, both because we are addressing a
question of timeliness concerning when a pleading was filed,
not determining the content of the evidentiary record on
appeal, and because the district court resolved the motion on
its merits, thereby treating it as if it were filed.
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
4
We look to the substance and effect of an order, not solely its title.
See Delta Computer Corp. v. Samsung Semiconductor & Telecomm. Co.,
879 F.2d 662, 665 (9th Cir. 1989).
DEMAREE V. PEDERSON 15
law. 42 U.S.C. § 1983. But it does not provide a remedy for
all constitutional violations. “The doctrine of qualified
immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan,
555 U.S. 223, 231 (2009) (internal quotation marks omitted).
We use a two-step test to evaluate claims of qualified
immunity, “under which summary judgment is improper if,
resolving all disputes of fact and credibility in favor of the
party asserting the injury, (1) the facts adduced show that the
officer’s conduct violated a constitutional right, and (2) that
right was ‘clearly established’ at the time of the violation.”
Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 788 (9th Cir.
2016) (en banc).
This section 1983 action concerns parents’ and children’s
“well-elaborated constitutional right to live together without
governmental interference.” Burke v. Cty. of Alameda,
586 F.3d 725, 731 (9th Cir. 2009) (internal quotation marks
and citation omitted). In particular, “[u]nder the Fourth
Amendment, government officials are ordinarily required to
obtain prior judicial authorization before removing a child
from the custody of her parent.” Kirkpatrick, 843 F.3d at
790.
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, 843 F.3d at 790
16 DEMAREE V. PEDERSON
(original italics and internal quotation marks omitted). This
requirement “balance[s], on the one hand, the need to protect
children from abuse and neglect and, on the other, the
preservation of the essential privacy and liberty interests that
families are guaranteed under both the Fourth and Fourteenth
Amendments of our Constitution.” Rogers v. Cty. of San
Joaquin, 487 F.3d 1288, 1297 (9th Cir. 2007).
(i) Constitutional violations
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.5
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, 487 F.3d at 1294–95 (quoting Ram,
118 F.3d at 1311). We therefore consider whether the
defendant social workers had reasonable cause to believe that
5
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.
DEMAREE V. PEDERSON 17
T.D., J.D., and L.D. were at imminent risk of serious bodily
injury or molestation. Wallis, 202 F.3d at 1138.
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, 487 F.3d at 1294, if left in their home—the children
were never beaten or molested in the first place. Instead, the
articulated concern was that the children could be subjected
to future criminal “sexual exploitation” because the parents
had “tak[en] sexually explicit pictures of all three children.”6
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
6
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.” Id.
§ 13-3551(5). Here, reviewing the facts in the light most favorable to the
plaintiffs, there was no evidence that the parents meant to use the
photographs for sexual stimulation of themselves or anyone else, much
less to take new photographs for that purpose.
18 DEMAREE V. PEDERSON
the future to distribute, nude pictures of their children to
anyone.7 Nor did the identified risk include taking photos of
a nude child engaging in sexual conduct, because there was
no allegation A.J. and Lisa had ever taken, or were likely to
take, photos of their children engaging in sexual conduct.8
And the risk was not that the Demarees would see their own
children, ages five, four, and one-and-a-half, nude, including
their genitalia, as caring for children of those ages
necessitates doing so.
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.”
7
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.
8
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 38–39, we see that portrayal
of the photographs as inaccurate. The term suggests frontal nudity or
sexually explicit poses, neither of which was represented.
DEMAREE V. PEDERSON 19
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, 487 F.3d at 1294–95.
The defendants suggest that we should measure imminence
in this case in days and potentially weeks, noting that under
Arizona Revised Statute § 8-824(A), the earliest a court could
have conducted a full hearing would have been five to seven
days after a dependency petition was filed. But Arizona law
recognizes that juvenile courts can issue same-day “motions
for pickup.” See Ariz. Dep’t of Econ. Sec. v. Lee ex rel. Cty.
of Maricopa, 228 Ariz. 150, 151 (Ariz. Ct. App. 2011)
(noting that the department filed a dependency petition and,
“[o]n the same day, the juvenile court granted a motion for
pickup of the Child based on [the department’s] assertion that
the ‘child is at imminent risk of abuse and/or neglect due to
Mother’s substance abuse’”); see also Tyren T. v. Dep’t of
Child Safety, No. 1 CA-JC 16-0091, 2016 WL 4474154, at *1
(Ariz. Ct. App. Aug. 25, 2016); Michael C. v. Ariz. Dep’t of
Econ. Sec., No. 1 CA-JV 12-0005, 2012 WL 1964581, at *1
(Ariz. Ct. App. May 31, 2012); Magdaline L. v. Ariz. Dept. of
20 DEMAREE V. PEDERSON
Econ. Sec., No. 1 CA-JV 08-0076, 2008 WL 5403657, at *1
(Ariz. Ct. App. Dec. 30, 2008).
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.9
This consideration is straightforward. The defendants did
not suggest that there was any possible harm of the requisite
sort to the children before the juvenile courts would reopen
after the holiday. Again, there was no evidence of sexual
assault or abuse; the defendants did not and do not rely on the
children’s forensic examination and interview as indicating
otherwise. Because the defendants did not identify any risk
of physical injury or molestation to the children, they did not
identify the requisite risk of imminent physical injury or
abuse.10
9
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.
10
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.
DEMAREE V. PEDERSON 21
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,
487 F.3d at 1291. The social worker in that case “could have
obtained a warrant within hours,” and “[t]here [was] no
indication in the record that so short a delay could have
And, again, there was no evidence that the parents had ever distributed or
had any intent to distribute the photos.
22 DEMAREE V. PEDERSON
resulted in a significant worsening of the children’s physical
conditions or an increase in the prospects of long-term harm.”
Id. at 1295. One child’s “‘pain’ was not so serious that he
ceased to be ‘playful’ and ‘alert,’” the physical risk the
children faced from being locked in a room for the time it
would take to obtain a warrant was “very low,” and “the mess
in the Rogers living quarters . . . was a chronic, ongoing
problem.” Id.
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. Id. at 1296. We concluded
that their removal therefore violated their clearly established
rights. Id.
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., 237 F.3d
1101, 1109 (9th Cir. 2001), viewing the facts in the light most
favorable to the plaintiff family, we held that a jury could
have found that a defendant social worker violated a mother’s
clearly established constitutional rights by removing her
teenage daughter from her home without a warrant. We were
unpersuaded that the sexual abuse allegations were exigent as
a matter of law, even though the teenager’s stepfather
sexually abused her by “touch[ing] her breasts and crotch
DEMAREE V. PEDERSON 23
area through her clothing at night in her bedroom . . . every
other night for . . . two or three months.” Id. at 1104–05. We
reasoned that, “[a]lthough the conduct by the stepfather was
clearly inappropriate, it did not involve violence or
penetration and the only time it had taken place was at night
when MD was in her bedroom. Assuming that [the worker]
could obtain a warrant the same day . . . , it is difficult to
understand how the further delay of a few hours necessary to
obtain the warrant would have put MD in imminent danger of
serious physical injury.” Id. at 1108 (internal footnote
omitted). That conclusion was further underscored by the
fact that the social worker “opted to leave MD in the
residence after interviewing MD and Mabe about the alleged
molestation.”11 Id.
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. Id. We held, instead, that
“a reasonable jury could conclude that [the mother’s]
constitutional rights were violated,” id. at 1109. We do the
same here.12
11
Similarly here, Child Protective Services initially returned the
children to their parents.
12
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, 586 F.3d 725, 731–32 (9th Cir. 2009), we held that,
under circumstances of that case, in which a stepfather’s sexual abuse and
physical violence could recur at any time according to the child’s report
24 DEMAREE V. PEDERSON
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.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). It is
“beyond debate,” id., that existing Ninth Circuit precedent
establishes that children can only be taken from home without
a warrant to protect them from imminent physical injury or
molestation in the period before a warrant could be obtained.
See Mabe, 237 F.3d at 1108–09. The clearly established case
law requires articulable, imminent, and serious physical
injury or physical abuse to children to justify removing them
from their parents’ home without a judicial order. There was
no such injury identified here.
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
of abuse, there was reasonable cause to believe that an imminent risk of
serious bodily injury justified a the child’s warrantless removal. We
reiterated that “[p]olice officers must have specific, articulable evidence
. . . that a child is in imminent danger of abuse.” Id. at 731 (internal
quotation marks omitted).
DEMAREE V. PEDERSON 25
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,
843 F.3d at 792. The risk identified here simply does not
meet that standard, as it does not involve physical injury or
abuse.
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. Id. at 786–87. Because no case
had addressed the level of risk of physical harm at issue
where a potentially abusive mother is in the hospital but could
leave with the child, we held that the social workers were
entitled to qualified immunity. Id. at 793. Here, though, the
social workers never identified any risk of harm to the
children over the applicable period that comes within the
exigent circumstances standard articulated in Wallis and its
progeny.
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, 487 F.3d at 1294–1295 (“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
26 DEMAREE V. PEDERSON
would take to get a warrant.” (emphasis added and internal
quotation marks omitted)); United States v. Echegoyen,
799 F.2d 1271, 1279 n.5 (9th Cir. 1986) (“Exigent
circumstances necessarily imply that there is insufficient time
to get a warrant.”); United States v. Good, 780 F.2d 773, 775
(9th Cir. 1986) (“Exigent circumstances alone . . . are
insufficient as the government must also show that a warrant
could not have been obtained in time.”).
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., 191 F.3d 1306, 1309
(10th Cir. 1999), the Tenth Circuit held that, viewing the facts
in the light most favorable to the Maliks, a police officer and
social worker could have violated Ms. Malik’s and her four-
year-old daughter’s clearly established constitutional rights.
The defendants had removed the daughter on the authority of
a court order obtained through misrepresentation several
weeks after they had discovered a set of ten photographs
portraying the daughter partially clothed, “some with full
frontal genital exposure.” Id.13 The daughter’s uncle, an
artist, had taken the photos five months earlier, and the
mother had sent the photos to be processed; as here, the photo
processing center called the police. Id.
The Tenth Circuit held that the defendants were not
entitled to qualified immunity. Id. at 1315. That “conclusion
hinge[d] upon the district court’s finding that ‘[d]efendants
acknowledged [the daughter] was in no imminent danger at
the time they sought the order and the facts suggest[ed] [the
warrant] was secured only through distortion,
misrepresentation and omission.’” Id. at 1315 n.5. In the
13
None of the photographs here at issue meets that description.
DEMAREE V. PEDERSON 27
absence of imminent danger that the daughter would be the
subject of more photographs—even if the sexual exploitation
inherent in the existing ones would have justified
removal—the government could not remove the daughter
without a legitimate judicial order. Clearly established law,
said the Tenth Circuit, compelled that conclusion.
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, 563 U.S. at 742.
Instead, we have here a very specific line of cases,
culminating in Rogers and Mabe, which identified and
applied law clearly establishing that children may not be
removed from their homes without a court order or warrant
absent cogent, fact-focused reasonable cause to believe the
children would be imminently subject to physical injury or
physical sexual abuse. Rogers, the last in the series before
the events in this case, summarized that law and explained
why qualified immunity was inapplicable: “Prior to the
events in question, we had repeatedly held that a family’s
rights were violated if the children were removed absent an
imminent risk of serious bodily harm. A reasonable social
worker would need nothing more to understand that she may
not remove a child from [his or her] home on the basis of a
[situation] that does not present such a risk.” 487 F.3d at
1297. Mabe, Rogers, and their predecessors thus gave clear
notice of the law to social workers responsible for protecting
children from sexual abuse and families from unnecessary
intrusion.
We accordingly reverse the district court’s grant of
qualified immunity to Pederson and Van Ness.
28 DEMAREE V. PEDERSON
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., 435 U.S. 589, 597 (1978) (footnotes
omitted). We therefore “start with a strong presumption in
favor of access to court records.” Foltz, 331 F.3d at 1135.
“A party seeking to seal a judicial record . . . . must
‘articulate[ ] compelling reasons supported by specific factual
findings.’” Kamakana v. City & Cty. of Honolulu, 447 F.3d
1172, 1178 (9th Cir. 2006) (quoting Foltz, 331 F.3d at 1135).
“‘[C]ompelling reasons’ sufficient to outweigh the public’s
interest in disclosure” exist when court records might
“‘become a vehicle for improper purposes,’ such as the use of
records to gratify private spite, promote public scandal,
circulate libelous statements, or release trade secrets.” Id. at
1179 (quoting Nixon, 435 U.S. at 598). “The mere fact that
the production of records may lead to a litigant’s
embarrassment, incrimination, or exposure to further
litigation will not, without more, compel the court to seal its
records.” Id.
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
DEMAREE V. PEDERSON 29
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.” Ariz. Rev. Stat. § 8-
208(F). But the summary judgment order neither releases any
CPS files nor opens the records of any dependency
proceeding. In short, the district court did not violate Arizona
law by publishing the order.
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.
30 DEMAREE V. PEDERSON
BERZON, Circuit Judge, concurring:
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 on removal of children
from their homes without any judicial supervision:
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.
DEMAREE V. PEDERSON 31
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, 202 F.3d 1126, 1130–31 (9th Cir. 2000).
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.” 42 U.S.C. § 5111(a)(2) (findings
supporting the federal Child Abuse Prevention and Treatment
Act). “The events of the day of placement constitute a crisis
for children because everything in their lives changes and the
children are overwhelmed with feelings of abandonment,
rejection, worthlessness, guilt, and helplessness.” Rosalind
D. Folman, “I Was Tooken”: How Children Experience
Removal from Their Parents Preliminary to Placement into
Foster Care, ADOPTION QUARTERLY, no. 2, 1998, at 7, 12
(evaluating the experiences of 90 children removed from their
homes as a result of abuse and neglect).
Research confirms that “unexpectedly being snatched by
the police or protective service workers traumatize[s] . . .
children.” Id. at 29; see also Amy J.L. Baker et al., Foster
Children’s Views of Their Birth Parents: A Review of the
Literature, 67 CHILDREN AND YOUTH SERVS. REV. 177,
180–81 (2016) (conducting a meta-analysis of 27 studies of
the experiences of children and youth in foster care, and
finding strong evidence that children remain attached to their
32 DEMAREE V. PEDERSON
homes and families despite abuse). For small children
especially, being taken from a home and family by a stranger
is a profoundly frightening and destabilizing experience, even
if that home and family are flawed.
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.
Constitutional Violations
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, 487 F.3d 1288, 1294–95 (9th Cir. 2007). Thus,
whether an emergency removal is permitted depends on both
DEMAREE V. PEDERSON 33
the amount of time required to obtain a warrant and the nature
of the allegations.
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, 487 F.3d at 1295 (“There is no
indication in the record that so short a delay could have
resulted in a significant worsening of the children’s physical
conditions or an increase in the prospects of long-term
harm.”); Mabe v. San Bernardino Cty., 237 F.3d 1101, 1108
(9th Cir. 2001) (holding questions of fact remained on the
issues of exigent circumstances, given that the sexual abuse
last occurred more than a month before the removal, and a
warrant likely could have been obtained within “a few
hours”).
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
34 DEMAREE V. PEDERSON
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;
1
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.
DEMAREE V. PEDERSON 35
• 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 were posing in
provocative manners without clothing on themselves. That
would concern me as to what they’ve observed in their . . .
home.”
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, 487 F.3d at
1294. These circumstances “usually give rise to a ‘reasonable
inference of imminent danger sufficient to justify taking
children into temporary custody,’” if the children might be at
risk during the time required to obtain a removal order. Id.
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
36 DEMAREE V. PEDERSON
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,
563 U.S. 731, 741 (2011). At the same time, the Supreme
Court has “repeatedly told courts—and the Ninth Circuit in
particular—not to define clearly established law at a high
level of generality.” Id. at 742 (citation omitted). Neither the
parties nor the majority identify any circuit precedent that
addresses whether an emergency removal is justified under
circumstances like these, where the type of abuse alleged is
sexual exploitation, and it would take a social worker at least
several days to obtain a removal order.
I disagree with the majority’s view of Malik v. Arapahoe
County Department of Social Services, 191 F.3d 1306 (10th
Cir. 1999). In that case, the social worker had a court order
(albeit one based on “misrepresentation and omission”) to
remove the child, and the defendants conceded there was no
imminent danger of abuse. Id. at 1311–12. The court
therefore devoted little consideration to the question of
exigency, see id. at 1315 n.5:
DEMAREE V. PEDERSON 37
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 suggest it 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.2 CPS then became involved less
than twenty-four hours after the photos were first discovered,
2
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.
38 DEMAREE V. PEDERSON
and Pederson, Van Ness, and Krause all agreed that
emergency removal was appropriate under the circumstances.
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 24–25. 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,
487 F.3d at 1294 (emphasis added) (quoting Ram v. Rubin,
118 F.3d 1306, 1311 (9th Cir. 1997)). In most cases, a
serious allegation of abuse may be synonymous with a risk of
physical injury. Yet I do not interpret the majority to suggest
that allegations of sexual exploitation or child pornography
are not “serious.”
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
DEMAREE V. PEDERSON 39
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., Kirkpatrick v. Cty. of Washoe, 843 F.3d
784, 791 (9th Cir. 2016) (en banc) (“[T]he social workers
here lacked cause to forgo a warrant if they had adequate time
to pursue one through the ordinary judicial process without
risking [the child’s] well-being.”). This is because in the
typical case, judicial review is available “within hours.” The
analysis therefore naturally focuses on whether the
allegations of abuse are both severe and urgent enough that it
is unacceptable to allow the child to remain in the home for
even a short period of time.
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, 487 F.3d at 1291 (bottle rot and other chronic
neglect); Mabe, 237 F.3d at 1104–05 (sexual abuse only
taking place at night). But this Court has not had occasion to
consider whether those same allegations might be cause for
concern if the delay were extended to a few days. No one
40 DEMAREE V. PEDERSON
wants to inflict unnecessary trauma on children, see
Concurring Op. of Berzon, J., at 31–32, but surely this worthy
consideration must be balanced by protecting their physical
well-being in those cases where it is actually threatened. All
involved in the child welfare system would be well served by
clear legal standards from this Court to assist social workers
in making these difficult decisions.
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, 843 F.3d at 792 (citing cases). But it was not
“beyond debate that the confluence of factors set forth above
would not support a finding of exigency.” Id. at 793. No
Ninth Circuit authority addresses whether removing a child
during an ongoing criminal investigation “crosse[s] the line
of reasonableness” when the courts are closed for several
days, and judicial review is simply not available. Id.
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.
DEMAREE V. PEDERSON 41
N.R. SMITH, Circuit Judge, dissenting on jurisdiction and the
timeliness of the appeal.1
The Plaintiffs failed to file their notice of appeal within
thirty days of the judgment, thus we have no jurisdiction or
authority over this appeal. In order to overcome this barrier,
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.
The district court entered summary judgment on April 23,
2014. From that date, the Demarees’ time to either file a
notice of appeal (30 days), Fed. R. App. P. 4(a)(1)(A), or a
Rule 59 motion (28 days), Fed. R. Civ. P. 59(e), began to run.
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. 28 U.S.C. § 2107(a). “[T]he taking of
an appeal within the prescribed time is ‘mandatory and
jurisdictional.’” Bowles v. Russell, 551 U.S. 205, 209 (2007)
(quoting Griggs v. Provident Consumer Discount Co.,
459 U.S. 56, 61 (1982) (per curiam)). There is no dispute the
Demarees did not file a timely notice of appeal.
1
I agree with the Majority that Hamer v. Neighborhood Housing
Services of Chicago, 138 S. Ct. 13 (2017), clearly articulated the
difference between jurisdictional rules (those grounded in the United
States Code) and “mandatory claim-processing rules” which “must be
enforced,” but, nevertheless, may also be waived or forfeited, and that the
rule primarily at question in this case (Rule 4(a)(4) and the effect of the
tolling motions listed therein) is a “mandatory claim-processing rule” and
not a jurisdictional rule. Id. at 17.
42 DEMAREE V. PEDERSON
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., 815 F.3d 645, 649 (9th
Cir. 2016). Our court is, quite simply, not “at liberty to
overlook a defect with the notice of appeal[,] no matter how
compelling an appellant’s argument may be.” Id. “If properly
invoked, mandatory claim-processing rules must be enforced,
but they may be waived or forfeited.” Hamer, 138 S. Ct. at 17
(emphasis added).2 Therefore, neither the fact that it may be
a sympathetic situation, nor the fact that the district court
addressed the merits of a lodged motion, are exceptions we
can invoke to create authority to hear a case where there is
none. The notice of appeal was not filed on time because the
underlying Rule 59 motion was never actually filed with the
district court.
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
2
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).”
DEMAREE V. PEDERSON 43
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., 580 F.3d 1116 (9th Cir. 2009), the plaintiff had
moved to file a sur-reply (which had a crucial employee
handbook as an exhibit) with the district court. Id. at 1127
n.5. The sur-reply was considered “lodged” while the district
court considered the motion to file the sur-reply. Id.
Ultimately the district court denied the motion to file the sur-
reply and, on appeal, we held that a merely “lodged”
document is not part of the record for appeal. Id.; see also
Barcamerica Int’l USA Trust v. Tyfield Importers, Inc.,
289 F.3d 589, 595 (9th Cir. 2002) (holding that while
arguments that lodged documents were before the court were
“interesting,” they were nonetheless meritless because a
lodged document was not filed); Levald, Inc. v. City of Palm
Desert, 998 F.2d 680, 684 n.1 (9th Cir. 1993) (holding an
amended complaint was not part of the record on appeal
because it was “lodged with, but not accepted for filing by,
the district court”). These cases are on point and explicitly
resolve whether a “lodged” document is considered “filed.”3
The Demarees did not “file” the motion for reconsideration.
3
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.
44 DEMAREE V. PEDERSON
It was lodged while awaiting a ruling on the motion to file
under seal. After denial, the motion was considered to never
have been filed, and, thus, it did not toll the time to file a
notice of appeal per Appellate Rule 4(a)(4)(A).
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, 543 F.3d 1139
(9th Cir. 2008), and Ordonez v. Johnson, 254 F.3d 814 (9th
Cir. 2001), the plaintiffs sought to file the complaint or
administrative appeal, but were barred by technical rules
regarding how to file. Klemm, 543 F.3d at 1143 (“Thus, a
notice of appeal is filed when it is received by the clerk,
notwithstanding deficiencies in form that violate local rules.”
(emphasis added)); Ordonez, 254 F.3d at 816 (holding that
paper filing, instead of electronic filing per the local rule,
meant the complaint was “constructively filed”). Similarly,
the plaintiff in Escobedo v. Applebees, 787 F.3d 1226 (9th
Cir. 2015), sought to actually file her complaint; the filing
barrier was her request to file without paying the filing fee.
Id. at 1231–33 (“No justification exists to alter the definition
of ‘filing’ simply because a complaint is submitted to the
clerk’s office along with an IFP application.”). Unlike this
case, the plaintiffs in Klemm, Ordonez, and Escobedo did not
“lodge” their complaints or motions while awaiting filing or
a ruling. Further, the plaintiffs in those cases each sought to
file their complaint as is, not under seal, or if the motion to
seal was denied, revised so as to protect the information they
initially sought to place under seal.
Here, the Demarees understood that the motion was not
actually before the court. The Arizona District Court’s local
DEMAREE V. PEDERSON 45
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; (2) revise and file
publicly; or (3) not file the motion. It was the Demarees’
decision and the local rule respects that right.
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.”4 Third, the Rule 59 motion was never
4
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.
46 DEMAREE V. PEDERSON
actually before the district court in order for it to consider the
motion. The local rule required that the lodged motion “must
not be appended to the motion [to seal].” AZ LR 5.6(b)
(emphasis added). Accordingly, the district court could only
consider the merits of only the motion to seal because that
was the only document before it. Indeed, the lodged
document, in essence, disappears if the motion to seal is
denied: “[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(e)
(emphasis added). Although, generally, “[a] paper is filed by
delivering it: (A) to the clerk,” Fed. R. Civ. P. 5(d)(2)(A), the
Demarees did not “deliver[]” the Rule 59 motion “to the
clerk” to file it. Id. By lodging the document, the Demarees
explicitly stated they wanted it to remain unfiled until the
district court granted the motion to seal. After the district
court denied their motion to seal, the Demarees had five days
to file their document publicly, which they did not do.5 AZ
LR 5.6(e). Thus, the document was never before the district
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, 194 F.3d 1045, 1052 (9th Cir. 1999)
(“[O]n appeal, arguments not raised by a party in its opening brief are
deemed waived.”).
5
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, 787 F.3d
at 1228. Escobedo paid the filing fee within the deadline set by the district
court and, on appeal, this court held the filing was timely. Id. at 1233–34.
This, however, is not what the Demarees did.
DEMAREE V. PEDERSON 47
court to consider, much less somehow confer authority on this
court by considering the merits of a lodged motion.
Accordingly, this case is not properly before us for lack
of jurisdiction and timely filing of a tolling motion.