Jamie Kirkpatrick v. County of Washoe , 792 F.3d 1184 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMIE KIRKPATRICK, individually, No. 12-15080
and as the natural father and legal
guardian of B.W., a minor, D.C. No.
Plaintiff-Appellant, 3:09-cv-00600-
ECR-VPC
v.
COUNTY OF WASHOE; AMY OPINION
REYNOLDS, WCDSS social worker;
ELLEN WILCOX, WCDSS social
worker; LINDA KENNEDY, WCDSS
social worker,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., Senior District Judge, Presiding
Argued and Submitted
January 28, 2014—University of Nevada, Las Vegas
Filed July 10, 2015
Before: Stephen Reinhardt, Alex Kozinski,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee;
Partial Dissent by Judge Kozinski
2 KIRKPATRICK V. COUNTY OF WASHOE
SUMMARY*
Civil Rights
The panel affirmed in part and reversed in part the
district court’s summary judgment in favor of defendants and
remanded in a 42 U.S.C. § 1983 action against the County of
Washoe and three social workers alleging violations of the
Fourth and Fourteenth Amendment when defendants took
plaintiff’s biological daughter, B.W., into protective custody
when she was two days old and placed her with a foster
parent without obtaining prior judicial authorization.
The panel affirmed the district court’s summary judgment
in favor of all of the defendants on the Fourteenth
Amendment claim alleged by plaintiff on his own behalf.
The panel held that plaintiff did not have a constitutionally
recognized liberty interest in his relationship with B.W. when
she was taken into custody because his paternity was not yet
established.
The panel reversed the district court’s summary judgment
in favor of two social workers and Washoe County on the
claim that they violated B.W.’s Fourth Amendment right to
be free from unreasonable seizures. The panel concluded that
the district court erred in deciding that the complaint did not
provide adequate notice that B.W. asserted a Fourth
Amendment claim on her own behalf. The panel further
concluded that the social workers seized B.W. without
obtaining a warrant under circumstances where a reasonable
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KIRKPATRICK V. COUNTY OF WASHOE 3
juror might find that a reasonable social worker could not
have determined that the child was in imminent danger of
serious bodily injury. The panel determined that the social
workers were not entitled to qualified immunity on B.W.’s
Fourth Amendment claim.
The panel held that the evidence presented at least an
inference of an unconstitutional, unofficial custom in Washoe
County of taking custody of children under non-exigent
circumstances, without obtaining prior judicial authorization.
The County therefore was not entitled to summary judgment.
The panel remanded for further proceedings on the Fourth
Amendment claim filed on behalf of B.W. against these three
defendants.
The panel affirmed the district court’s summary judgment
in favor of social worker Amy Reynolds with respect to all
claims because the plaintiffs had not alleged any facts
suggesting that she was involved with the decision to take
custody of B.W.
Dissenting in part, Judge Kozinski stated that the majority
ignored the Supreme Court’s clear admonition that qualified
immunity protects all but the plainly incompetent or those
who knowingly violate the law. Judge Kozinski stated that
the majority imposed personal liability on two child
protective service workers whose actions were anything but
malicious or incompetent.
4 KIRKPATRICK V. COUNTY OF WASHOE
COUNSEL
David J. Beauvais (argued), Oakland, California; William R.
Kendall, Reno, Nevada; Jeffrey Friedman, Reno, Nevada, for
Plaintiffs-Appellants.
Brian M. Brown (argued) and Kevin A. Pick, Thorndal,
Armstrong, Delk, Balkenbush & Eisinger, Reno Nevada, for
Defendants-Appellees Amy Reynolds, Ellen Wilcox, and
Linda Kennedy.
Herbert B. Kaplan (argued), Deputy District Attorney;
Richard Gammick, District Attorney, Reno, Nevada, for
Defendant-Appellee Washoe County.
OPINION
BYBEE, Circuit Judge:
“Government officials are required to obtain prior judicial
authorization before intruding on a parent’s custody of her
child unless they possess information at the time of the
seizure that establishes ‘reasonable cause to believe that the
child is in imminent danger of serious bodily injury and that
the scope of the intrusion is reasonably necessary to avert that
specific injury.’” Mabe v. San Bernardino Cnty., Dep’t of
Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir. 2001)
(quoting Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir.
1999)). The Washoe County Department of Social Services
(WCDSS) took B.W. into protective custody when she was
two-days old and placed her with a foster parent without
obtaining prior judicial authorization. B.W.’s biological
father, Jamie Kirkpatrick, filed this 42 U.S.C. § 1983 action
KIRKPATRICK V. COUNTY OF WASHOE 5
against the County and three of its social workers, alleging
violations of the Fourth and Fourteenth Amendments. The
district court granted summary judgment in favor of all of the
defendants. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo the district court’s order granting
summary judgment. Oswalt v. Resolute Indus., Inc., 642 F.3d
856, 859 (9th Cir. 2011).
We affirm in part and reverse in part the district court’s
grant of summary judgment and remand for further
proceedings.
I
A. The County Takes Custody of B.W.
On July 15, 2008, Rachel Whitworth gave birth to her
daughter B.W. at a hospital in Reno, Nevada. Whitworth
admitted that she used methamphetamine throughout her
pregnancy, including as recently as two days earlier. B.W.
tested positive for methamphetamine at birth. When
Whitworth informed hospital staff that her two other children
were in the custody of the WCDSS, the hospital contacted
Chondra Ithurralde, the WCDSS social worker managing the
open case.
The next day, Ithurralde visited the hospital with WCDSS
social worker Ellen Wilcox. Ithurralde notified the hospital
that Whitworth was an active methamphetamine user who
lacked stable housing and the supplies necessary to care for
an infant and that the Department planned to terminate her
parental rights vis-à-vis her two other children. Wilcox
interviewed Whitworth, who again acknowledged that she
was a methamphetamine user who did not have the means to
6 KIRKPATRICK V. COUNTY OF WASHOE
provide for B.W. In light of this information, Wilcox
requested that the hospital place a “hold” on B.W. to prevent
her from being discharged. The hospital typically honors the
Department’s hold request as a courtesy, but it is not a court
order. The hold did not prevent Whitworth from interacting
with B.W. while they were in the hospital together. The
hospital’s notes state that B.W. remained in the room with
Whitworth, who failed to feed the infant on schedule and
keep her dry. Meanwhile, Wilcox conferred with her
supervisor Linda Kennedy, who authorized Wilcox to take
custody of B.W. when the hospital released the infant.
Wilcox informed Whitworth that she had placed a hold on the
child and that a protective custody hearing would be
scheduled.
On July 17, 2008, the hospital discharged two-day-old
B.W. into the custody of the WCDSS. The Department
arranged for B.W. to stay with the foster parent who was
caring for Whitworth’s other children. The WCDSS had not
requested judicial authorization before taking custody of
B.W.
The family division of Nevada’s Second Judicial District
Court held a protective custody hearing the next day, with
Whitworth participating by phone from the hospital. The
court determined that B.W. should remain in protective
custody due to Whitworth’s ongoing drug use, her lack of
stable housing and employment, her inability to provide for
the child, and the fact that Whitworth’s other children were
already in foster care.
KIRKPATRICK V. COUNTY OF WASHOE 7
B. Kirkpatrick’s Involvement
Jamie Kirkpatrick, B.W.’s biological father, was present
at the hospital when Whitworth gave birth to B.W. While
Whitworth was pregnant, she notified Kirkpatrick that he
might be the father, though she also told him that there were
other potential candidates. Kirkpatrick spoke with Whitworth
a couple of times during her pregnancy, but he did not
participate in providing any type of prenatal care. He
acknowledged that he did not know whether he was B.W.’s
biological father at the time of her birth.
Kirkpatrick first learned of the Department’s involvement
soon after it took custody of the child on July 17, 2008. He
left his contact information with Whitworth so that the
Department could schedule a paternity test to determine
whether he was B.W.’s biological father. Kirkpatrick did not
attend the protective custody hearing the next day, but the
court ordered a paternity test at his request. The test revealed
that Kirkpatrick is indeed B.W.’s biological father.
On July 28, 2008, the WCDSS filed a petition alleging
that B.W. was a child in need of protection. The court held
hearings on August 25, 2008, and September 15, 2008.
Neither Whitworth nor Kirkpatrick attended despite being
served with notice. Kirkpatrick visited B.W. twice before
January 2009, when he attended a six-month permanency
hearing and expressed interest in reunifying with his
daughter. He returned to Reno—where B.W. lived with her
foster family—and began visiting his child more frequently.
In October 2009, Kirkpatrick initiated this § 1983 action
against Washoe County, Amy Reynolds, Ellen Wilcox, and
Linda Kennedy. Following discovery, the parties filed cross-
8 KIRKPATRICK V. COUNTY OF WASHOE
motions for summary judgment. The district court denied
Kirkpatrick’s motion for summary judgment and granted
summary judgment in favor of Washoe County and the three
individual defendants. Kirkpatrick timely appealed.
II
The state’s decision to take custody of a child implicates
the constitutional rights of the parent and the child under the
Fourteenth and Fourth Amendments, respectively. “Parents
and children have a well-elaborated constitutional right to
live together without governmental interference. That right
is an essential liberty interest protected by the Fourteenth
Amendment’s guarantee that parents and children will not be
separated by the state without due process of law except in an
emergency.” Wallis, 202 F.3d at 1136 (internal citations
omitted). “The claims of the parents in this regard should
properly be assessed under the Fourteenth Amendment
standard for interference with the right to family association.”
Id. at 1137 n.8. But “[b]ecause only the children [a]re
subjected to a seizure, their claims should properly be
assessed under the Fourth Amendment.” Id. Parents cannot
assert that the seizure of their child violated their own Fourth
Amendment rights. Mabe, 237 F.3d at 1111 (“[The parent]
has no standing to claim a violation of [the child’s] Fourth
Amendment rights.”).
We evaluate the claims of children who are taken into
state custody under the Fourth Amendment right to be free
from unreasonable seizures rather than the Fourteenth
Amendment right to familial association “[b]ecause [when]
the Fourth Amendment provides an explicit textual source of
constitutional protection against this sort of physically
intrusive governmental conduct, that Amendment, not the
KIRKPATRICK V. COUNTY OF WASHOE 9
more generalized notion of ‘substantive due process,’ must be
the guide.” Graham v. Connor, 490 U.S. 386, 395 (1989);
see also Southerland v. City of New York, 680 F.3d 127, 143
(2d Cir. 2011) (“For child removal claims brought by the
child, we have concluded that the Constitution provides an
alternative, more specific source of protection than
substantive due process. When a child is taken into state
custody, his or her person is ‘seized’ for Fourth Amendment
purposes. The child may therefore assert a claim under the
Fourth Amendment that the seizure of his or her person was
‘unreasonable.’”); Hernandez ex rel. Hernandez v. Foster,
657 F.3d 463, 474 (7th Cir. 2011) (“[S]ubstantive due process
may not be called upon when a specific constitutional
provision (here, the Fourth Amendment) protects the right
allegedly infringed upon. . . . [The child’s] claim arising
from his initial removal is properly analyzed under the Fourth
Amendment because it is premised on his seizure and does
not coincide with sufficiently separate conduct involving his
relationship with his parents.” (first alteration in original)
(internal quotation marks and citations omitted)).
III
A. Kirkpatrick’s Fourteenth Amendment Claim
We first consider whether the district court correctly
granted the defendants’ motion for summary judgment on
Kirkpatrick’s claim that the County and its agents violated his
Fourteenth Amendment right not to be separated from B.W.
without due process under non-exigent circumstances. See
Mabe, 237 F.3d at 1106; Wallis, 202 F.3d at 1136. We affirm
the district court’s summary judgment in favor of all of the
defendants on Kirkpatrick’s claim because the facts alleged,
construed in the light most favorable to Kirkpatrick, do not
10 KIRKPATRICK V. COUNTY OF WASHOE
show that the defendants violated his constitutional rights.
See Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If no
constitutional right would have been violated were the
allegations established, there is no necessity for further
inquiries.”).
Kirkpatrick did not have a constitutionally recognized
liberty interest in his relationship with B.W. when she was
taken into custody on July 17, 2008, because he was not yet
a “parent” to B.W. At the time, no one was confident about
whether Kirkpatrick was B.W.’s biological father.
Kirkpatrick acknowledged that he “did not know” whether he
was the father and that there were “possibly other
candidates.” Rachel Whitworth had informed Kirkpatrick
that B.W. might be his child, but that there was “a possibility
it could be someone else’s as well.” The test that eventually
established Kirkpatrick’s paternity was not administered until
four days after B.W. was taken into custody.
We have recognized that the constitutional interest in a
biological parent’s relationship with his child persists even
when that relationship is, as a practical matter, quite
attenuated. See Burke v. Cnty. of Alameda, 586 F.3d 725, 733
(9th Cir. 2009) (holding that a biological father had a liberty
interest in his relationship with his daughter even though the
child’s mother had sole physical custody of the child);
Brittain v. Hansen, 451 F.3d 982, 992 (9th Cir. 2006)
(holding that “non-custodial parents with court-ordered
visitation rights have a liberty interest in the companionship,
care, custody, and management of their children”). But
Kirkpatrick did not take any steps to confirm that he was
B.W.’s biological father before the WCDSS took custody of
B.W., such as requesting a paternity test before she was born
or during her two days in the hospital, or attempting to
KIRKPATRICK V. COUNTY OF WASHOE 11
execute a voluntary acknowledgment of paternity declaration.
See Nev. Rev. Stat. § 126.053 (providing that a voluntary
acknowledgment of paternity declaration is “deemed to have
the same effect as a judgment or order of a court determining
the existence of the relationship of parent and child if the
declaration is signed . . . by the mother and father of the
child”). Of course Kirkpatrick was not obligated to attempt
to confirm his paternity, but he cannot claim the
constitutional entitlements that have been allocated to
biological parents when he did not seek to establish that he
was B.W.’s father.
On these facts, we conclude that Kirkpatrick lacked a
cognizable liberty interest in his relationship with B.W.
Because Kirkpatrick cannot prove a violation of his
constitutional rights, the district court properly granted
summary judgment in favor of all of the defendants on the
claim asserted by Kirkpatrick on his own behalf.
B. B.W.’s Fourth Amendment Claim
We next consider whether the defendants violated B.W.’s
Fourth Amendment right to be free from unreasonable
seizures when she was taken into custody by the WCDSS.
1. Adequate notice
The district court granted summary judgment in favor of
the defendants because it concluded that the operative
complaint—which is styled the second amended complaint—
does not assert a cause of action on behalf of B.W. The court
noted that the complaint repeatedly refers to the “Plaintiff” in
the singular, including in the caption. Only once, the district
court observed, does the complaint allege that “[B.W.’s]
12 KIRKPATRICK V. COUNTY OF WASHOE
constitutional right to be with her parents was violated.” The
court reasoned that the complaint fails to articulate a claim on
behalf of B.W. because “[r]ead in the context of the entire
complaint, this one sentence does not provide notice that
B.W. is a plaintiff to this case or that [Kirkpatrick] is
asserting a cause of action on her behalf.” Furthermore, the
complaint’s sole reference to the Fourth Amendment is
located in a paragraph asserting that the defendants “acted
under color of state law to deprive Plaintiff . . . of
constitutionally protected rights, including . . . the right to be
free from unreasonable searches and seizures.” The district
court inferred that the singular “Plaintiff” refers to
Kirkpatrick, not B.W., and, under these circumstances, a
parent cannot claim relief on the grounds that the state
violated his own Fourth Amendment rights by seizing his
child. See Mabe, 237 F.3d at 1111.
The district court did not appear to disagree with the
premise that a parent is authorized to assert causes of action
belonging to his minor child on behalf of the child. See Fed.
R. Civ. P. 17(c)(2) (“A minor or an incompetent person who
does not have a duly appointed representative may sue by a
next friend or by a guardian ad litem.”); Fed. R. Civ. P.
17(b)(3) (“Capacity to sue or be sued is determined . . . by the
law of the individual’s domicile.”); Nev. Rev. Stat. § 12.080(“[T]he father or the mother, without preference to either,
may maintain an action for the injury of a minor child who
has not been emancipated, if the injury is caused by the
wrongful act or neglect of another.”). Instead, the court
determined that the complaint simply failed to “provide
notice to the Defendants or the Court that B.W. is also a
plaintiff in this case, or that Plaintiff is asserting a cause of
action on her behalf.” We respectfully disagree with the
district court’s reading of the complaint.
KIRKPATRICK V. COUNTY OF WASHOE 13
The operative complaint recites that “[B.W.’s]
constitutional right to be with her parents was violated. This
also resulted in the violation of Plaintiff’s constitutional right
to be with his daughter.” These sentences indicate that the
complaint alleges claims on behalf of both B.W. and
Kirkpatrick. A pleading need not repeat the same assertion
more than once to provide notice. We understand that the
defendants or the court might have been confused to
encounter this pair of claims given that the rest of the
complaint refers to a singular “Plaintiff.” But defendants can
resolve such ambiguities by filing a Rule 12(e) motion for a
more definite statement. See Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 514 (2002) (“If a pleading fails to specify the
allegations in a manner that provides sufficient notice, a
defendant can move for a more definite statement under Rule
12(e) before responding.”); see also Crawford-El v. Britton,
523 U.S. 574, 598 (1998) (encouraging district courts to
“grant the defendant’s motion for a more definite statement
under Rule 12(e)” where, as here, discovery in an action
against a public official would undermine “the substance of
the qualified immunity defense”). The district court may also
sua sponte request a more definite statement from the
plaintiffs, even if the defendants find the complaint
comprehensible. See Anderson v. Dist. Bd. of Trs. of Cent.
Fla. Cmty. Coll., 77 F.3d 364, 367 n.5 (11th Cir. 1996)
(“[T]he court, acting sua sponte, should have struck the
plaintiff’s complaint, and the defendants’ answer, and
instructed plaintiff’s counsel to file a more definite
statement.”).
The district court correctly observed that the complaint
never expressly states that B.W. asserts that the defendants
violated her Fourth Amendment right to be free from
unreasonable seizures. When evaluating a complaint, we ask
14 KIRKPATRICK V. COUNTY OF WASHOE
whether the pleading gives the defendant fair notice of the
claim and includes sufficient “factual matter” to state a
plausible ground for relief. See Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555–56, 561–62 (2007). To be clear, the
question here is not whether the complaint “contain[s]
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570). Rather, the question is whether the complaint gave
“notice of the claim such that the opposing party may defend
himself or herself effectively.” Starr v. Baca, 652 F.3d 1202,
1212 (9th Cir. 2011).1 “[U]nder the Federal Rules of Civil
Procedure, a complaint need not pin plaintiff’s claim for
relief to a precise legal theory. Rule 8(a)(2) of the Federal
Rules of Civil Procedure generally requires only a plausible
‘short and plain’ statement of the plaintiff’s claim, not an
exposition of his legal argument.” Skinner v. Switzer, 131 S.
Ct. 1289, 1296 (2011); see also Fontana v. Haskin, 262 F.3d
871, 877 (9th Cir. 2001) (“Specific legal theories need not be
pleaded so long as sufficient factual averments show that the
claimant may be entitled to some relief.”). The complaint is
therefore not inadequate merely because the assertion that
1
Although this case is not about pleading standards per se, in order to
review the district court’s summary judgment order we must decide
whether the complaint gave the defendants notice of the claims against
them, as if we were reviewing an order granting a motion to dismiss. We
have analyzed whether a complaint provides adequate notice through the
lens of Rule 8(a)(2) even when the question arises at the summary-
judgment stage. See Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963,
968 (9th Cir. 2006) (evaluating “whether [the] plaintiff’s complaint
complied with the notice pleading requirements of Fed. R. Civ. P. 8”
where the district court granted summary judgment on the basis that the
complaint failed to give the defendant “adequate notice” of particular
claims).
KIRKPATRICK V. COUNTY OF WASHOE 15
“[B.W.’s] constitutional right to be with her parents was
violated” is not coupled with a reference of the Fourth
Amendment. The complaint recites the relevant legal
standard by stating that the defendants took B.W. into
custody without a warrant when they “had no reasonable
cause to believe that [B.W.] was likely to experience serious
bodily harm in the time that would be required to obtain a
warrant.”
We need not speculate about whether the complaint
provided notice of the Fourth Amendment claim sufficient to
allow the defendants to defend against it because the
defendants themselves construed the complaint as asserting
a Fourth Amendment claim on behalf of B.W. In their motion
to dismiss, the defendants stated that “[w]hile the Second
Amended Complaint indicates the Plaintiff as ‘Jamie
Kirkpatrick, individually and as the natural father and legal
guardian of [B.W.], a minor’, it is believed that the action is
intended in pursuit of only causes of action on behalf of the
minor child.” In their motion for summary judgment, the
individual defendants correctly pointed out that “Mr.
Kirkpatrick can only assert a violation of [B.W.’s] Fourth
Amendment rights, as a representative, on behalf of his
daughter.” The individual defendants then devoted seven
pages to arguing that they were entitled to summary judgment
on the “Plaintiffs’ representative Fourth Amendment claim.”
We cannot agree with the district court’s assessment that “the
operative complaint . . . does not provide notice to the
Defendants or the Court that B.W. is also a plaintiff in this
case” when the entire litigation proceeded in accordance with
the defendants’ acknowledgment that B.W. is a plaintiff and
that Kirkpatrick is asserting a Fourth Amendment claim on
B.W.’s behalf.
16 KIRKPATRICK V. COUNTY OF WASHOE
We by no means require defendants to adopt overly broad
readings of ambiguous or incoherent complaints out of an
abundance of caution. The defendants could have moved to
dismiss the Fourth Amendment claim on the basis that the
complaint purports to assert the claim on behalf of
Kirkpatrick rather than assuming that it stated a facially valid
claim on behalf of B.W. Or, as we have already noted, either
the defendants or the court could have insisted on a more
definite statement at the pleading stage. If the plaintiffs
continued to assert a facially invalid claim after amending
their complaint in response to a motion to dismiss or a motion
for a more definite statement pointing out the defect in the
pleading, then the district court could have taken the
complaint at its word and dismissed the claim with prejudice.
But that is not what happened in this case. Instead, the court
raised the issue sua sponte for the first time at the summary-
judgment stage, even though the defendants actually
understood the claim, repeatedly addressed it on the merits,
and could have clarified it earlier in the litigation.
We conclude that the district court erred in deciding that
the complaint did not provide adequate notice that B.W.
asserted a Fourth Amendment claim on her own behalf. The
defendants are not entitled to summary judgment on this
basis.
2. Qualified immunity
Having determined that the operative complaint asserts a
violation of B.W.’s Fourth Amendment right to be free from
unreasonable seizures, we next address whether the individual
defendants are entitled to qualified immunity on B.W.’s
claim. See United States ex rel. Ali v. Daniel, Mann, Johnson
& Mendenhall, 355 F.3d 1140, 1144 (9th Cir. 2004) (“We
KIRKPATRICK V. COUNTY OF WASHOE 17
may affirm a grant of summary judgment on any ground
supported by the record, even if not relied upon by the district
court.”). “Qualified immunity shields federal and state
officials from money damages unless a plaintiff pleads facts
showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Ashcroft
v. al-Kidd, 131 S. Ct. 2074, 2080 (2011).
a. Constitutional right
“Government officials are required to obtain prior judicial
authorization before intruding on a parent’s custody of her
child unless they possess information at the time of the
seizure that establishes ‘reasonable cause to believe that the
child is in imminent danger of serious bodily injury and that
the scope of the intrusion is reasonably necessary to avert that
specific injury.’” Mabe, 237 F.3d at 1106 (quoting Wallis,
202 F.3d at 1138). There are thus two ways for a government
official to take custody of a child without transgressing the
Constitution. First, he can obtain prior judicial authorization.
Or, second, he can take custody of the child without a warrant
if he “possess[es] information at the time of the seizure that
establishes reasonable cause to believe that the child is in
imminent danger of serious bodily injury and that the scope
of the intrusion is reasonably necessary to avert that specific
injury.” Id. (internal quotation marks and citation omitted).
The defendants did not attempt to obtain judicial
authorization before taking custody of B.W. Ellen Wilcox—
who visited B.W. at the hospital and took her into the
Department’s custody—stated that neither she nor anyone
else from the WCDSS requested a warrant. Linda
Kennedy—who authorized the decision to take custody of
18 KIRKPATRICK V. COUNTY OF WASHOE
B.W. in her role as Wilcox’s supervisor—agreed that she
would not have requested a warrant under these
circumstances.
The decision to take custody of B.W. was therefore
permissible only if the defendants “possess[ed] information
at the time of the seizure that establishes reasonable cause to
believe that the child is in imminent danger of serious bodily
injury.” Id. (internal quotation marks and citation omitted).
“The existence of reasonable cause, and the related questions,
are all questions of fact to be determined by the jury.
Summary judgment in favor of the defendants is improper
unless, viewing the evidence in the light most favorable to the
plaintiffs, it is clear that no reasonable jury could conclude
that the plaintiffs’ constitutional rights were violated.”
Wallis, 202 F.3d at 1138 (internal citations omitted).
It is undisputed that B.W. remained in the hospital
between the social workers’ first visit on July 16, 2008, and
her discharge into the Department’s custody the next day.
Kennedy acknowledged that the WCDSS considered the
maternity floor of the hospital a “safe environment.” She
noted that a mother in Rachel’s position might unexpectedly
abscond with her child, but she also stated that the hospital
“generally cooperates” with the Department’s request that it
hold the child.
Importantly, “social workers[] who remove a child from
its home without a warrant must 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.”
Rogers v. Cnty. of San Joaquin, 487 F.3d 1288, 1294 (9th Cir.
2007) (emphasis added); see also Doe v. Lebbos, 348 F.3d
820, 826 n.9 (9th Cir. 2003), overruled on other grounds by
KIRKPATRICK V. COUNTY OF WASHOE 19
Beltran v. Santa Clara Cnty., 514 F.3d 906, 909 (9th Cir.
2008) (en banc)); Wallis, 202 F.3d at 1137 n.8 (explaining
that the claims of children who are taken into custody without
a warrant under non-exigent circumstances “should properly
be assessed under the Fourth Amendment” because “the
children were subjected to a seizure”). In Rogers, we
concluded that a social worker did not have reasonable cause
to believe that the children at issue were in imminent danger
of serious bodily injury even though they showed symptoms
of neglect and would have remained in an unsanitary home
while the social worker obtained a warrant. Id. at 1295–96.
Here, B.W. would have very likely remained in the hospital,
under constant medical supervision, while the defendants
requested a warrant because the hospital was not planning on
releasing B.W. to her mother or anyone other than the
WCDSS. Viewing the facts in the light most favorable to the
plaintiff, we think a reasonable juror could find that Wilcox
and Kennedy could not have reasonably believed that B.W.
would “likely experience serious bodily harm” during the
time it would have taken to obtain a warrant. For reasons we
have discussed, the defendants’ actions implicate B.W.’s
Fourth Amendment right to be free from unreasonable
seizures.
Our analysis is unaffected by the fact that B.W. was only
two days old and had yet to leave the hospital when the
WCDSS took custody of her. The Fourth Amendment
protects the “right of the people to be secure . . . against
unreasonable . . . seizures.” It does not make exceptions
based on age, mobility, or the capacity to understand the
state’s actions. The minor plaintiffs in Wallis were two years
old and five years old when they were taken into custody.
Wallis, 202 F.3d at 1131. A two-year old child—like a two-
day old infant—is under the near-constant control of adults
20 KIRKPATRICK V. COUNTY OF WASHOE
and probably cannot meaningfully comprehend the notion of
being “seized” by the state. Yet we held that the children in
Wallis were “subjected to a seizure” and analyzed their
claims under the Fourth Amendment. Id. at 1137 n.8.
Other courts have applied the same Fourth Amendment
analysis to newborn children like B.W. In Kia P. v. McIntyre,
235 F.3d 749 (2d Cir. 2000), a hospital held an infant for the
first ten days of her life because it believed that the child’s
mother used harmful drugs while pregnant. Id. at 751. The
court held that “there is no doubt that [the child’s] retention
by the Hospital was a ‘seizure’ within the meaning of the
Fourth Amendment.” Id. at 762. It recited the familiar
standard that “[a] ‘seizure’ occurs where, ‘in view of all of
the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.’”
Id. (quoting United States v. Mendenhall, 446 U.S. 544, 554
(1980) (plurality opinion)). The court acknowledged that
“the usual phrasing of the seizure test is difficult to apply”
under these circumstances because an infant “is unlikely to
have had a ‘belief’ as to whether or not she was free to
leave.” Id. at 762. But the court nevertheless concluded that
the child was seized because her mother “was told in no
uncertain terms that she could not take [the child] home” and
“[i]t was clear to [the mother], if not to [the child], that [the
child] was not free to leave.” Id. In other words, a child’s
ability to subjectively understand that she has been “seized”
is not a prerequisite to the application of the Fourth
Amendment. As the Supreme Court explained, “Mendenhall
establishes that the test for existence of a ‘show of authority’
is an objective one: not whether the citizen perceived that he
was being ordered to restrict his movement, but whether the
officer’s words and actions would have conveyed that to a
reasonable person.” California v. Hodari D., 499 U.S. 621,
KIRKPATRICK V. COUNTY OF WASHOE 21
628 (1991). Here, the WCDSS physically removed B.W.
from the hospital and placed her with a foster family rather
than permitting her to leave with her mother. Physically
restraining a person and directing her movement is a
prototypical example of a “seizure” that implicates the Fourth
Amendment. Id. at 626 (“The word ‘seizure’ readily bears
the meaning of a laying on of hands or application of physical
force to restrain movement.”).2
Wilcox and Kennedy seized B.W. without obtaining a
warrant under circumstances where a reasonable juror might
find that a reasonable social worker could not have
determined that the child was in imminent danger of serious
bodily injury. We therefore conclude that the plaintiffs have
satisfied the first prong of the qualified immunity inquiry
because, “[t]aken in the light most favorable to the party
asserting the injury, [ ] the facts alleged show the officer’s
conduct violated a constitutional right[.]” Saucier, 533 U.S.
at 201.
b. Clearly established
We next address whether the constitutional right at issue
“was ‘clearly established’ at the time of the challenged
conduct.” al-Kidd, 131 S. Ct. at 2080. “A Government
official’s conduct violates clearly established law when, at the
time of the challenged conduct, ‘[t]he contours of [a] right
[are] sufficiently clear’ that every ‘reasonable official would
have understood that what he is doing violates that right.’”
2
Because the WCDSS eventually seized B.W. by taking physical
custody of her and placing her with a foster family, we need not consider
whether B.W. was “seized” during the period when she remained in the
hospital subject to the Department’s hold request.
22 KIRKPATRICK V. COUNTY OF WASHOE
Id. at 2083 (alterations in original) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). “We do not require a
case directly on point, but existing precedent must have
placed the statutory or constitutional question beyond
debate.” Id.Our inquiry begins and ends with our decision in Rogers.
Not only is Rogers almost “directly on point,” but it also
plainly holds that the constitutional right at issue in this case
is “clearly established.” Our opinion in Rogers explained that
“[t]he law was clearly established at the time of the events in
[Rogers] that a child could not be removed from the home
without prior judicial authorization absent evidence of
‘imminent danger of serious bodily injury and [unless] the
scope of the intrusion is reasonably necessary to avert that
specific injury.’” Rogers, 487 F.3d at 1297 (third alternation
in original) (quoting Mabe, 237 F.3d at 1106). The conduct
reviewed in Rogers occurred in 2001, and we issued our
opinion in 2007. The WCDSS did not take custody of B.W.
until 2008. The alleged violation of B.W.’s Fourth
Amendment rights thus occurred after the relevant
constitutional rule was clearly established and after we
expressly held that the right is clearly established.3
3
Once we have issued an opinion on point—here, Rogers—we mean
business, and all officials must abide by that instruction. Judge Kozinski
argues that “Rogers alone cannot have placed every reasonable official on
notice that taking B.W. into custody was unconstitutional.” Dissent at 40.
We disagree. Where a single case “‘has clear applicability’ to a
subsequent set of facts,” that case alone is sufficient to put law
enforcement officials on notice. Feathers v. Aey, 319 F.3d 843, 850 (6th
Cir. 2003) (quoting Hope v. Pelzer, 536 U.S. 730, 742 (2002)) (“Hope
specifically states that a right is clearly established . . . when the ‘premise’
of one case ‘has clear applicability’ to a subsequent set of facts.”); cf.
Rojas v. Anderson, 727 F.3d 1000, 1004 (10th Cir. 2013) (holding that a
KIRKPATRICK V. COUNTY OF WASHOE 23
The case before us is not distinguishable from Rogers. It
is true that Rogers—like Mabe and Wallis—refers to a
qualified prohibition on removing children “from the home”
whereas, here, the WCDSS took custody of B.W. while she
was in the hospital. See Rogers, 487 F.3d at 1294; Mabe,
237 F.3d at 1107; Wallis, 202 F.3d at 1136. But we do not
think that any reasonable social worker would read Rogers or
its predecessors to stand for the proposition that the
constitutional limitations on the seizure of children apply
only when the children are at home. See Anderson, 483 U.S.
at 640 (“The contours of the right must be sufficiently clear
that a reasonable official would understand that what he is
doing violates that right. This is not to say that an official
action is protected by qualified immunity unless the very
action in question has previously been held unlawful, but it is
to say that in the light of pre-existing law the unlawfulness
must be apparent.” (emphasis added) (internal citation
omitted)). The fact that B.W. was in the hospital arguably
should have made it more apparent to a reasonable social
worker that she was not “likely to experience serious bodily
harm in the time that would be required to obtain a warrant.”
Rogers, 487 F.3d at 1294. In Rogers, we concluded that
“there was no indication of imminent danger” to the seized
children even though they would have remained in an
“unsanitary” home with allegedly neglectful parents while the
social worker obtained a warrant. Id. at 1295. Here, B.W.
almost certainly would have remained in the hospital, where
there is likely less “imminent risk of serious bodily harm”
than in the conditions endured by the children in Rogers.
right was not clearly established where the plaintiff failed to provide “a
single case citation to support” that notion).
24 KIRKPATRICK V. COUNTY OF WASHOE
We also note that B.W. was a two-day old infant when
she was taken into custody by the WCDSS, whereas the
children in Rogers were three-years old and five-years old.
Id. at 1291. Age is often crucial in determining whether a
social worker could have reasonably believed that the child
was in imminent danger of serious bodily injury because a
two-day old infant like B.W. is far more vulnerable than an
older child. But no reasonable social worker could read
Rogers and its predecessors to suggest that it is always
reasonable to conclude that an infant is in imminent danger of
serious bodily injury. Although infants are uniquely
susceptible to serious injury, the maternity ward of a hospital
is an especially safe place, particularly where, as here, the
hospital has been instructed not to discharge the infant
without notifying the social workers.
The defendants contend that they could have reasonably
believed that Nevada law authorized the WCDSS to take
custody of B.W. without obtaining a warrant. They cite Nev.
Rev. Stat. § 432B.390(1)(a), which provides that social
workers “[m]ay place a child in protective custody without
the consent of the person responsible for the child’s welfare
if the [social worker] has reasonable cause to believe that
immediate action is necessary to protect the child from injury,
abuse or neglect.” There is no indication that the state-law
standard differs meaningfully from the constitutional rule that
social workers may take custody of a child without prior
judicial authorization if there is “reasonable cause to believe
that the child is in imminent danger of serious bodily injury.”
Wallis, 202 F.3d at 1138. Nev. Rev. Stat. § 432B.390(1)(a)
does not authorize social workers to take custody of children
under non-exigent circumstances. It says nothing at all about
when, if ever, a social worker may take custody of a child
when he does not have “reasonable cause to believe that
KIRKPATRICK V. COUNTY OF WASHOE 25
immediate action is necessary to protect the child from injury,
abuse or neglect.” We are not confronted with a situation
where an applicable state statute is in tension with the federal
constitutional right on which the plaintiffs rely. See Dittman
v. California, 191 F.3d 1020, 1027 (9th Cir. 1999)
(explaining that “it was reasonable for [the defendant] to
believe that [a state statute] was constitutional and to enforce
its mandates” when “there was no clear case law in either the
federal courts or the state courts of California establishing
that” the practice authorized by the state statute was
unconstitutional); Grossman v. City of Portland, 33 F.3d
1200, 1209 (9th Cir. 1994) (“[W]here a police officer has
probable cause to arrest someone under a statute that a
reasonable officer could believe is constitutional, the officer
will be immune from liability even if the statute is later held
to be unconstitutional.”).4
Next, the defendants argue that they are entitled to
qualified immunity because they were not informed of the
need to obtain a warrant before taking custody of a child
under non-exigent circumstances. Kennedy—who was a
supervisor—stated that when the WCDSS took B.W. into
custody in July 2008 she did not understand the distinction
between removing a child with a warrant and doing so
4
The plaintiffs do not challenge the constitutionality of Nev. Rev. Stat.
§ 432B.390(1)(a). We express no view on whether the phrase “reasonable
cause to believe that immediate action is necessary to protect the child
from injury, abuse or neglect” in the state statute is broader than the
phrase “reasonable cause to believe that the child is in imminent danger
of serious bodily injury” in our cases. Even assuming arguendo that there
might be a case where a social worker would consider the warrantless
seizure of a child justified under the state standard but not under the
federal standard, we do not think that any reasonable social worker could
have concluded that either standard was satisfied in this case.
26 KIRKPATRICK V. COUNTY OF WASHOE
without a warrant. She explained that it was not her “general
practice” to obtain a warrant unless there were “special
circumstances” such as a “suspected kidnapping or something
like that.” Wilcox said that, as of July 2008, she had not been
trained in how to obtain a warrant. She was aware that other
social workers received warrants before taking custody of
children under certain circumstances, but she did not recall
any specific instances where the practice had occurred and
had never obtained a warrant herself. The defendants’
argument is unavailing because “[i]f the law was clearly
established, the immunity defense ordinarily should fail, since
a reasonably competent public official should know the law
governing his conduct.” Harlow v. Fitzgerald, 457 U.S. 800,
819–20 (1982) (emphasis added); see also Groh v. Ramirez,
540 U.S. 551, 563–64 (2004); Crawford-El, 523 U.S. at 591.
“[W]hether 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 (internal citations omitted) (quoting Harlow,
457 U.S. at 818–19). The reasonableness of the defendants’
conduct must therefore be assessed in light of the clearly
established law that social workers must obtain a warrant
before taking custody of a child under non-exigent
circumstances, and not in light of their own subjective beliefs
about the law. See Sorrels v. McKee, 290 F.3d 965, 970 (9th
Cir. 2002) (“The relevant inquiry under this second prong [of
the qualified-immunity analysis] is wholly objective; an
official’s subjective belief as to the lawfulness of his conduct
is irrelevant.” (citing Anderson, 483 U.S. at 641)).
We conclude that Wilcox and Kennedy are not entitled to
qualified immunity on B.W.’s Fourth Amendment claim, and
KIRKPATRICK V. COUNTY OF WASHOE 27
reverse the district court’s summary judgment.5 We think
that a reasonable juror might find that a reasonable social
worker could not have determined that B.W. would be in
imminent danger of serious bodily injury in the time that it
would have taken to obtain a warrant. Because a genuine
dispute of material fact exists, we remand this issue for trial.
See Mabe, 237 F.3d at 1108–09, 1112.
3. Municipal liability
The final issue before us is whether Washoe County is
entitled to summary judgment. “[A] municipality cannot be
held liable solely because it employs a tortfeasor—or, in other
words, a municipality cannot be held liable under § 1983 on
a respondeat superior theory.” Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1978). But “local governments . . .
may be sued for constitutional deprivations visited pursuant
to governmental ‘custom’ even though such a custom has not
received formal approval through the body’s official
decisionmaking channels.” Id. at 690–91; Price v. Sery,
513 F.3d 962, 966 (9th Cir. 2008) (noting that a plaintiff can
establish municipal liability by showing that “the
constitutional tort was the result of a longstanding practice or
custom which constitutes the standard operating procedure of
the local government entity” (internal quotation marks
omitted)).6
5
Although we reverse the summary judgment in favor of Wilcox and
Kennedy, we affirm the district court’s summary judgment in favor of
Amy Reynolds because the plaintiffs have not alleged any facts suggesting
that she was involved with the decision to take custody of B.W.
6
Because the district court dismissed Kirkpatrick’s claims and did not
think that the complaint included B.W. as a plaintiff, the district court
addressed, but did not fully analyze, the Monell claim. It nevertheless
28 KIRKPATRICK V. COUNTY OF WASHOE
The County represents that it does not have a policy of
removing children from their parents absent a finding of
imminent danger, but there is evidence in the record that
contradicts the County’s claim. That is, record evidence
suggests that the County had an unofficial, unconstitutional
custom of taking custody of children under non-exigent
circumstances without obtaining prior judicial authorization.
As a result, this case implicates the so-called “direct path to
municipal liability.” Gibson v. Cnty. of Washoe, Nev.,
290 F.3d 1175, 1185 (9th Cir. 2002).
Neither Ellen Wilcox nor Linda Kennedy was familiar
with the process for obtaining a warrant before taking custody
of a child. Wilcox, the social worker in charge of B.W.’s
case, stated that she never received training on how to obtain
a warrant while she was employed by Washoe County from
2007 through 2009, and in those two years, she had never
actually obtained a warrant. Under questioning, Wilcox
admitted that a hypothetical child in B.W.’s circumstances
was not in imminent danger:
Q: But a child is not going to be returned to
his father for four days. Is that imminent
danger?
A: No.
But she testified that she would likely remove such a child
anyway, and without a warrant:
expressed concern with Washoe County’s practices. The Monell question
was briefed by both parties and discussed at oral argument. The record is
sufficiently developed for us to determine whether the County was entitled
to summary judgment.
KIRKPATRICK V. COUNTY OF WASHOE 29
Q: So what do you do for that child when the
mother insists on returning him to a dangerous
situation and the father insists on getting him
in that dangerous situation, no questions
asked, you have already determined and
everybody agrees it’s a danger?
A: Then we remove the child.
Q: You don’t get a warrant?
A: No.
Q: The child you admitted is not in imminent
danger.
A: No. We don’t get a warrant.
Q: But would you remove the child even
though the danger may be three or four days
away?
A: Yes.
Wilcox later attributed her answer to Washoe County’s
unofficial custom or protocol:
Q: Let me ask you an obvious question. If
the child wasn’t in danger in the hospital and
was there for several days, why didn’t you
seek a warrant before you removed the child
from mom? Is it because you didn’t know
you had to? You weren’t trained on that?
30 KIRKPATRICK V. COUNTY OF WASHOE
A: It wasn’t the protocol of Washoe County.
No one told me to get a warrant and they
didn’t train me how to go about getting a
warrant.
Q: Or did they even tell you you could get a
warrant?
A: No. They didn’t.
Kennedy—who supervised between five and seven social
workers, including Wilcox at the time—confirmed that it was
“not in our general practice” to obtain a warrant before
removing a child:
Q: So your best recollection is that as of July
of ’08, Washoe County Child Protective
Services did not obtain court warrants prior to
the removal of a child in any circumstances?
A: I wouldn’t say in no circumstances. But
not in our general practice. No.
There could be—we had asked for
warrants sometimes when there was like a
suspected kidnapping or something like that
where we had some prior knowledge, let’s
say.
But generally speaking, we did not. I
don’t recall ever getting a warrant to go out
with one of my investigators to go out and
pick up a child unless it was a special
circumstance.
KIRKPATRICK V. COUNTY OF WASHOE 31
She elaborated that in cases like B.W.’s, she might have
obtained a warrant “in a rare instance,” but she did not recall
ever doing so:
Q: You mentioned that you have a
recollection of obtaining—of seeking warrants
in situations like kidnappings and things like
that.
....
What I’m more interested in is the case
where you’ve gotten a complaint or a report of
some sort of child neglect that triggers an
investigation which leads to determining that
a child needs to be removed.
Okay? That’s the case I’m more
interested in.
Under those kind of circumstances, do you
have any knowledge of ever obtaining a
warrant to remove a child under those type of
general circumstances?
A: I do not recollect doing that. No.
Q: So it would be safe to say that in your
career with Washoe County Child Protective
Services you’re not aware of ever obtaining a
warrant to remove a child from a parent?
A: I don’t recollect ever doing that.
However, that is not to say that it could have
32 KIRKPATRICK V. COUNTY OF WASHOE
occurred in a rare instance that I’m not just
recalling. It was not a general practice ever to
get a warrant.
While discussing the process of removing a child from its
parent without a warrant, Kennedy noted that “Washoe
County has all kinds of policies and procedures for
everything,” and that the “policy[] was to never get warrants”
when removing children:
Q: You stated when a baby or a child is
kidnapped that would be a situation where
you would get a warrant.
A: Generally speaking, yes.
That happens very rarely.
Q: A warrant to remove the child from the
kidnapper or a warrant to arrest the
kidnapper?
A: A warrant to remove the child.
We have nothing to do arresting people.
Q: So if it’s a kidnapper you get a warrant to
remove it but if it’s a parent you don’t?
A: That’s our policy, was never to get
warrants when we remove children when I
worked as a supervisor.
KIRKPATRICK V. COUNTY OF WASHOE 33
Q: There was a policy to not get warrants or
there was no policy?
A: There was no policy related to warrants.
Like Wilcox, Kennedy understood that the “legal criteria” for
warrantless removals mandated the existence of an “imminent
risk to the well being of that child.” However, Kennedy’s
definition of “imminent risk” was hazy, at best.
Importantly, Kennedy had “no recollection” of B.W.’s
case, and she did not know what facts were used to justify
B.W.’s removal. But speaking in the abstract and using her
knowledge as a supervisor, she said that under these
circumstances a child could be removed without a warrant:
Q: Based upon your review of [B.W.’s case]
can you tell me all of the facts that were relied
upon to remove—to make the decision to
remove [B.W.]?
A: I can tell you I don’t know what facts
Amy [Reynolds] used in this regard.
But I can tell you that as far as a
supervisor the fact that the child tested
positive for methamphetamine, that the
mother admitted to recent methamphetamine
use, that she admitted that she’s unemployed,
she does not have stable housing and then
after she said she used methamphetamine
during her entire pregnancy, which means we
also have a drug baby here, that drug babies
are generally more difficult to parent because
34 KIRKPATRICK V. COUNTY OF WASHOE
they get agitated, they cry a lot, so we have a
mom who is not necessarily stable and she has
a difficult child, she lives with friends from
place to place, she has a CPS history, which
apparently we also had other children of hers
in care, all of that would have been researched
prior to removing that child to see if we had
prior history on her, what it was and the fact
that she never followed through for her other
children to try to get them back, never
followed through on any services, when you
look at that whole picture, then that would be
why you would have removed that child.
Like Wilcox, Kennedy said no warrant was necessary to
remove B.W., even though Kennedy also admitted that B.W.
was not in any immediate danger:
Q: In your opinion, is the maternity floor of
Renown Regional Medical Center considered
a safe environment by Washoe County Child
Protective Services?
A: Yes. It is.
Q: And the child, [B.W.], was not in any
danger at Renown, was she?
A: No.
Because there were nurses generally present.
....
KIRKPATRICK V. COUNTY OF WASHOE 35
Q: The baby would be in imminent danger if
Rachel checked out of the hospital with the
baby? Is that basically what you’re saying?
A: We would consider that imminent danger.
Yes.
Q: What was the imminent danger to the
baby while in the hospital?
A: I don’t know that the child was in
imminent danger there.
....
Q: Would [there] be [an imminent risk to the
child] if mom took the child from the
hospital?
A: Yes.
Q: But in the hospital it wasn’t imminent
risk?
A: Right.
While, as Judge Kozinski notes, Dissent at 40, the only
evidence of an unofficial custom comes from two
depositions, both Wilcox and Kennedy traced their actions in
B.W.’s case to the “general practice” and “protocol” in
Washoe County. Wilcox started working at WCDSS in June
of 2007, a year before she handled B.W.’s case. Kennedy
worked as a social worker for twenty-two years in various
offices before retiring; she testified that she spent seven of
36 KIRKPATRICK V. COUNTY OF WASHOE
those years working in the Child Protective Services
department at WCDSS. Based on their experience working
at WCDSS, both Wilcox and Kennedy should have known
the constitutional standard for removing a child: Government
officials must obtain a warrant before removing a child unless
they have “reasonable cause to believe that the child is in
imminent danger of serious bodily harm and that the scope of
the intrusion is reasonably necessary to avert that specific
injury.” Mabe, 237 F.3d at 1106 (quoting Wallis, 202 F.3d at
1138). But neither did. Instead, both understood that the
“general practice” and “protocol” in Washoe County was to
remove children without obtaining warrants. Wilcox
admitted that B.W. was not in imminent danger at the
hospital, but she did not first obtain a warrant before
removing B.W. because “[i]t wasn’t the protocol of Washoe
County.” Kennedy could not even remember B.W.’s specific
case, but she relied on her knowledge as a WCDSS
supervisor to confirm that no warrant was necessary to
remove B.W. because “[i]t was not a general practice ever to
get a warrant.”7
Because the evidence presented here creates at least an
inference of an unconstitutional, unofficial custom in Washoe
County, the County is not entitled to summary judgment.
Although the plaintiffs failed to compile any evidence of any
other constitutional violations—that is, specific instances
where Washoe County social workers took custody of
7
Whether the unofficial County policy was not to get warrants or was
silent on getting warrants, either policy would be unconstitutional because
government employees are automatically required to get warrants unless
the child is in “imminent danger of serious bodily harm” and a speedy
removal “is reasonably necessary to avert that specific injury.” Mabe, 237
F.3d at 1106 (quoting Wallis, 202 F.3d at 1138).
KIRKPATRICK V. COUNTY OF WASHOE 37
children without obtaining a warrant when they were
constitutionally required to do so—we think there is minimal
evidence sufficient to controvert the County’s Monell defense
at this stage of the proceedings. The record is relatively
sparse (with depositions from only two WCDSS workers),
and Wilcox’s and Kennedy’s testimonies of the imminent
danger standard are unclear, but “ambiguity in favor of the
defendant is not sufficient” to “dispose of a case on summary
judgment.” Sery, 513 F.3d at 972 (“If a reasonable person
could side with the plaintiff’s interpretation of events, the
issue must survive for trial.”). A triable issue exists as to
whether the root of the unconstitutional behavior exhibited in
B.W.’s case lies in the unofficial operating procedure of
Washoe County or in the errant acts of individual social
workers, and this question should go to a jury.
IV
We affirm the district court’s summary judgment in favor
of all of the defendants on the claim alleged by Kirkpatrick
on his own behalf. We reverse the district court’s summary
judgment in favor of Ellen Wilcox, Linda Kennedy, and
Washoe County on the claim that they violated B.W.’s Fourth
Amendment right to be free from unreasonable seizures.8 We
remand to the district court for further proceedings on the
Fourth Amendment claim filed on behalf of B.W. against
these three defendants. We affirm the district court’s
summary judgment in favor of Amy Reynolds with respect to
all claims because the plaintiffs have not alleged any facts
8
Because we reverse the district court’s grant of summary judgment in
favor of Washoe County, we deny as moot Kirkpatrick’s motion for
judicial notice of the “papers and pleadings on file in the case of Garver
v. County of Washoe, Ninth Circuit docket number 11-18015.”
38 KIRKPATRICK V. COUNTY OF WASHOE
suggesting that she was involved with the decision to take
custody of B.W. Each party shall bear its own costs on
appeal.
AFFIRMED in part, and REVERSED in part.
KOZINSKI, Circuit Judge, dissenting in part:
This term the Supreme Court once again summarily
reversed a lower court for failing to appreciate that a state
official is protected by qualified immunity unless “every
reasonable official [in the defendant’s situation] would have
understood that what he is doing violates” a constitutional
right. Taylor v. Barkes, No. 14-939, 2015 WL 2464055, at *2
(U.S. June 1, 2015) (internal quotation marks omitted). The
Court has stressed time and again that, “[w]hen properly
applied, qualified immunity protects all but the plainly
incompetent or those who knowingly violate the law.” Id.(quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011)).
The majority ignores that clear admonition, and imposes
personal liability on two child protective service workers
whose actions were anything but malicious or incompetent.
Under the majority’s holding, Ellen Wilcox and Linda
Kennedy are exposed to liability because they removed a
vulnerable baby, B.W., from the care of her mother, Rachel.
Rachel was a drug addict who had taken methamphetamine
so recently that it was found in her daughter’s blood at the
time of the child’s birth. Rachel previously had two other
children removed from her custody because of her manifest
inability to care for them. She also had no fixed address, and
therefore no way of being found, had she left the hospital.
KIRKPATRICK V. COUNTY OF WASHOE 39
Had Rachel absconded with B.W., the baby’s life could well
have been in peril.
The majority doesn’t appear to dispute this conclusion;
nonetheless it finds there was no “imminent danger of serious
bodily harm” to B.W. Rogers v. Cnty. of San Joaquin,
487 F.3d 1288, 1295 (9th Cir. 2007). The majority reasons
that B.W. “would have very likely remained in the hospital
. . . while the defendants requested a warrant” due to the
informal “hold” the Washoe County Department of Social
Services placed on her. Op. at 19. But, “very likely” is cold
comfort when the life of a newborn baby is at stake. In any
event, this crucial inference is entirely speculative. The
majority fails to hold plaintiffs to their burden of
“identify[ing] affirmative evidence from which a jury could
find” a violation of clearly established law. Crawford-El v.
Britton, 523 U.S. 574, 600 (1998) (emphasis added).
There simply is no evidence in the record that the
informal “hold” would have prevented Rachel from leaving
the hospital and taking B.W. with her. It is undisputed that
the “hold” didn’t constitute a formal restriction on their
movement—indeed, if it did, then the “hold” itself would
have been a seizure. Because the hospital didn’t have the
lawful authority to restrain Rachel or B.W., it was at least
possible that mother and daughter could have left while a
warrant application was pending. Reasonable minds might
disagree as to the precise quantum of risk faced by B.W., but,
under the circumstances, it was hardly malicious or “plainly
incompetent” of Wilcox and Kennedy to temporarily take
B.W. out of harm’s way. al-Kidd, 131 S. Ct. at 2085 (internal
quotation marks omitted).
40 KIRKPATRICK V. COUNTY OF WASHOE
We’ve been cautioned numerous times to undertake our
qualified immunity analysis “in light of the specific context
of the case, not as a broad general proposition.” Brosseau v.
Haugen, 543 U.S. 194, 198 (2004) (per curiam) (internal
quotation marks omitted). A test like Rogers that is “cast at
a high level of generality” constitutes clearly established law
only “in an obvious case.” Id. at 199. At the time B.W. was
taken into custody, we had never applied Rogers in the
context of an especially vulnerable child, like a baby, or in a
situation where social workers have no means of locating a
child once it leaves their immediate supervision. Rogers
alone cannot have placed every reasonable official on notice
that taking B.W. into custody was unconstitutional. I worry
that future babies will pay with their lives because social
workers hesitate to take them into custody based on today’s
decision.
Nor am I convinced that the county should be liable under
Monell. The few remarks Wilcox and Kennedy made during
their depositions, standing alone, don’t support an inference
that there is a practice of constitutional violations “so
persistent and widespread as to practically have the force of
law.” Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011).
There is nothing else. I therefore respectfully dissent from
Parts III.B.2 and III.B.3 of the majority opinion.