Angelina Nunes v. Carrie Stephens ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGELINA NUNES, individually and No. 19-16815
as Guardian Ad Litem for her minor
children D.X. and L.X.; D.X., a D.C. No.
minor; L.X., a minor; EMANUEL 1:19-cv-00204-
ALVES, AWI-BAM
Plaintiffs-Appellees,
v.
ARATA, SWINGLE, VAN EGMOND &
GOODWIN (PLC); BRAD J. SWINGLE;
AMANDA J. HEITLINGER,
Defendants-Appellants,
and
CARRIE STEPHENS; COUNTY OF
STANISLAUS,
Defendants.
2 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN
ANGELINA NUNES, individually and No. 19-16816
as Guardian Ad Litem for her minor
children D.X. and L.X.; D.X., a D.C. No.
minor; L.X., a minor; EMANUEL 1:19-cv-00204-
ALVES, AWI-BAM
Plaintiffs-Appellees,
v. OPINION
CARRIE STEPHENS; COUNTY OF
STANISLAUS,
Defendants-Appellants,
and
ARATA, SWINGLE, VAN EGMOND &
GOODWIN (PLC); BRAD J. SWINGLE;
AMANDA J. HEITLINGER,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted July 14, 2020
San Francisco, California
Filed December 29, 2020
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 3
Before: Richard C. Tallman and Danielle J. Hunsaker,
Circuit Judges, and Roslyn O. Silver, * District Judge.
Per Curiam Opinion;
Concurrence by Judge Hunsaker
SUMMARY **
Civil Rights
The panel reversed the district court’s denial of a motion
to dismiss on qualified immunity grounds, and remanded, in
an action brought under 42 U.S.C. § 1983 against the County
of Stanislaus and its attorneys for unlawfully viewing the
juvenile records of D.X. and L.X. in violation of California
Welfare & Institutions Code Section 827.
Plaintiffs sued defendants for unlawfully accessing the
children’s juvenile records without first obtaining a court
order from the juvenile court, as required under California
Welfare & Institutions Code Section 827. County Counsel
believed W&I § 827 did not require court authorization to
access the records and disclose them to the County’s outside
counsel in a related lawsuit.
The panel held that this court’s opaque opinion in
Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003), did not
*
The Honorable Roslyn O. Silver, United States District Judge for
the District of Arizona, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN
clearly establish a constitutional privacy right in juvenile
records. Therefore, the panel could not conclude that every
reasonable official acting as defendants did would have
known they were violating the constitutional rights of
plaintiffs based on Gonzalez, the only authority on which
plaintiffs relied. The panel did not decide whether the
Constitution provides a privacy right in juvenile records;
rather, the panel decided only that no such right was clearly
established at the time of the defendants’ alleged conduct.
Therefore, defendants were entitled to qualified immunity.
Concurring, Judge Hunsaker, joined by Judge Silver,
wrote separately to emphasize one point—that an en banc
court should reconsider Gonzalez v. Spencer, 336 F.3d 832(9th Cir. 2003), and address in earnest whether there exists a
constitutional right to privacy in juvenile records.
COUNSEL
Jesse M. Rivera (argued) and Jill B. Nathan, Rivera Hewitt
Paul LLP, Gold River, California; Michael R. Mordaunt
(argued) and Lori Reihl, Riggio Mordaunt & Kelly,
Stockton, California; for Defendants-Appellants.
Robert R. Powell (argued), Powell & Associates, San Jose,
California, for Plaintiffs-Appellees.
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 5
OPINION
PER CURIAM:
Angelina Nunes, individually and as Guardian Ad Litem
for her minor children D.X. and L.X., and Emanuel Alves 1
(Plaintiffs) brought the present action under 42 U.S.C.
§ 1983 against the County of Stanislaus (County) and its
attorneys for unlawfully viewing the juvenile records of
D.X. and L.X. in violation of California Welfare &
Institutions Code Section 827. The district court denied the
Defendants’ motion to dismiss on qualified immunity
grounds. For the reasons set forth below, we reverse.
I. BACKGROUND
A. The Parties
Plaintiffs brought suit against the (1) County, (2) County
Counsel Carrie Stephens (County Counsel), (3) the County’s
outside law firm Arata, Swingle, Van Egmond & Goodwin
(ASVG), and (4) two attorneys from ASVG—Brad Swingle
and Amanda Heitlinger. 2 For purposes of the present appeal,
the County and County Counsel are represented by the same
attorneys, and ASVG (including Swingle and Heitlinger) is
represented by separate attorneys. Each filed an appeal
resulting in two Court of Appeals case numbers. We resolve
both appeals in this consolidated opinion.
1
Alves is the biological father of L.X.
2
Outside counsel, including both the law firm and attorneys Swingle
and Heitlinger, are collectively referred to as ASVG.
6 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN
B. The Separation Case
Prior to July 2016, the County’s Community Services
Agency (CSA) began a child abuse investigation related to
D.X. and L.X. after L.X., then five-months old, suffered a
skull fracture. D.X. and L.X. were separated from Nunes and
Alves. Plaintiffs filed a civil rights lawsuit against the
County challenging the separation (Separation Case). ASVG
represented the County in the Separation Case. During that
litigation, County Counsel provided ASVG with D.X. and
L.X.’s juvenile records.
C. Present Lawsuit
In this case, Plaintiffs sued all Defendants for unlawfully
accessing the children’s juvenile records without first
obtaining a court order from the juvenile court, as required
under California Welfare & Institutions Code Section 827
(W&I § 827). County Counsel believed W&I § 827 did not
require court authorization to access the records and disclose
them to the County’s outside counsel. In addition, Plaintiffs
allege that the juvenile records contained medical records of
L.X., which are subject to additional protection under the
Health Insurance Protection and Accountability Act
(“HIPAA”).
After Plaintiffs learned about the disclosure to ASVG,
they filed the present § 1983 lawsuit against Defendants,
arguing that the disclosure violated Plaintiffs’ state and
federal constitutional rights to privacy and L.X.’s medical
privacy rights. Specifically, Plaintiffs brought two claims for
relief. First, Plaintiffs sought § 1983 relief from a violation
of their “right to privacy and/or state and federal
constitutional rights in keeping the juvenile records and/or
case files related to their family and their involvement with
the Community Services Agency private and confidential.”
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 7
Second, Plaintiffs brought Monell 3 claims against the
County based on its custom and policy of allowing its in-
house counsel and outside counsel to unlawfully access
juvenile records without judicial authorization. 4
D. Procedural Background
The County defendants and ASVG filed separate
motions to dismiss, each asserting a qualified immunity
defense. The district court noted that Plaintiffs’ complaint
did not identify which constitutional provision was allegedly
violated, and it evaluated Plaintiffs’ claims under the Fourth
and Fourteenth Amendments. The district court denied
qualified immunity for all Defendants with respect to a
Fourth Amendment privacy claim based on a violation of
W&I § 827. The district court held that the dissenting
opinion in Gonzalez v. Spencer, 336 F.3d 832 (9th Cir.
2003), clarified the Fourth Amendment right implicated by
a W&I § 827 violation. It also concluded that Gonzalez
found a viable Fourth Amendment claim when the attorney
defending Los Angeles County wrongfully accessed a
juvenile case file in violation of W&I § 827. But the district
court dismissed the Plaintiffs’ claims to the extent they were
premised on the Fourteenth Amendment. Defendants
appealed the denial of qualified immunity, and we have
3
Monell v. Dep’t of Soc. Servs. of. N.Y.C., 436 U.S. 658, 694 (1978)
(holding local governments can be liable under § 1983 for customs or
policies that result in constitutional deprivations).
4
“[U]nlike various government officials, municipalities do not
enjoy immunity . . . under § 1983.” Leatherman v. Tarrant Cnty.
Narcotics Intel. & Coordination Unit, 507 U.S. 163, 166 (1993). Thus,
this ruling does not affect Plaintiffs’ Monell claim against the County,
which is still pending before the district court.
8 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN
jurisdiction under 28 U.S.C. § 1291. Behrens v. Pelletier,
516 U.S. 299, 307, 311 (1996).
II. DISCUSSION
We review denial of a motion to dismiss under
Rule 12(b)(6) de novo. Dunn v. Castro, 621 F.3d 1196, 1198
(9th Cir. 2010). Qualified immunity is an affirmative defense
that shields public officials facing liability under 42 U.S.C.
§ 1983 unless “(1) they violated a federal statutory or
constitutional right, and (2) the unlawfulness of their
conduct was clearly established at the time” of the violation.
District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)
(internal quotation marks and citation omitted). We have
discretion to decide which question to consider first, and this
case turns on the clearly-established-right inquiry. 5 See
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
A. Clearly Established Right
A right is clearly established when its “contours [are]
sufficiently definite that any reasonable official in the
defendant’s shoes would have understood that he was
violating it.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)
(per curiam) (internal quotation marks and citation omitted).
A clearly established right is one that has a “sufficiently clear
foundation in then-existing precedent.” Wesby, 138 S. Ct.
at 589. That is, the rule must be “settled law,” meaning it is
“dictated by controlling authority or a robust consensus of
cases of persuasive authority.” Id. at 589–90 (internal
quotation marks and citations omitted). There need not be a
5
Our analysis is confined to whether Gonzalez clearly established
that a violation of W&I § 827, as alleged here, violates Plaintiffs’ rights
under the Fourth Amendment.
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 9
“case directly on point,” but existing precedent must place
the statutory or constitutional question “beyond debate.”
Kisela, 138 S. Ct. at 1152 (internal quotation marks and
citation omitted). The Supreme Court has repeatedly
instructed us not to define clearly established law at a high
level of generality. Id. (“This Court has repeatedly told
courts—and the Ninth Circuit in particular—not to define
clearly established law at a high level of generality.”
(quoting City & Cnty. of San Francisco v. Sheehan, 135 S.
Ct. 1765, 1775–76 (2015)) (internal quotation marks
omitted)).
“[S]pecificity is especially important in the Fourth
Amendment context, where the Court has recognized that it
is sometimes difficult for an officer to determine how the
relevant legal doctrine . . . will apply to the factual situation
the officer confronts.” Id. (internal quotation marks and
citation omitted). In Kisela, the alleged constitutional
violation was excessive force—an area where the outcome
is highly fact-dependent. Id. at 1152–53. We acknowledge
that this case presents a different scenario than those where
officers are forced to make “split-second judgments—in
circumstances that are tense, uncertain, and rapidly
evolving.” Id. at 1152 (internal quotation marks and citation
omitted). But the underlying question remains the same: Did
Defendants’ conduct violate a clearly established
constitutional right of the Plaintiffs?
B. Gonzalez v. Spencer
Plaintiffs rely solely on Gonzalez in arguing that
Defendants’ conduct violated a clearly established right. In
Gonzalez, while defending Los Angeles County in a civil
rights suit brought by Raul Gonzalez, the County’s attorney
accessed Gonzalez’s juvenile court file without notifying
him and without obtaining authorization from the juvenile
10 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN
court as required under W&I § 827(a)(1)(M) and Cal. Rules
of Court 1423(b). 336 F.3d at 834. The County’s attorney
used the juvenile records to cross-examine Gonzalez at his
deposition. Id. In a split decision, the per curiam majority
wrote a two-page opinion. 6 Without identifying a specific
constitutional right at issue, or conducting any analysis, the
court concluded:
If [the County attorney] violated Gonzalez’s
constitutional rights, he is entitled at least to
nominal damages, even if [the attorney]
could have obtained the documents lawfully.
Because [the attorney] improperly obtained
access to Gonzalez’s juvenile court file, we
need not reach the question whether [the
attorney]’s use of Gonzalez’s file in
depositions also violated his constitutional
rights.
Id. at 835 (internal citation omitted). And without any further
discussion of the right that was potentially violated, the court
held that the County attorney was not entitled to qualified
immunity. Id.As the district court noted, “the majority opinion does
not explain why a violation of W&I § 827 was sufficient to
constitute a violation of the Fourth Amendment.” Order on
Defs.’ Mot. To Dismiss, Nunes v. Stephens, No. 1:19-CV-
0204 AWI BAM, at 10 (E.D. Cal. Aug. 22, 2019). Indeed,
the Gonzalez majority did not even specify that Fourth
Amendment rights were at issue. That is gleaned only from
6
Gonzalez was originally issued as a memorandum disposition but
was later published after two requests for publication.
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 11
the dissenting opinion. See Gonzalez, 336 F.3d at 836(“Gonzalez contends that [the attorney]’s access to and use
of his juvenile court case file constituted a violation of the
Fourth Amendment.”) (W. Fletcher, J., dissenting). Nor does
Gonzalez discuss or cite to any Supreme Court or Ninth
Circuit precedent regarding constitutional privacy rights in
juvenile records specifically or informational privacy rights
generally. See 336 F.3d at 832–35.
Lastly, a strong indication that Gonzalez did not clearly
establish any constitutional privacy rights regarding juvenile
records is its treatment in the district courts. In A.C. v.
Cortez, the district court held that Gonzalez did not establish
a federal right to privacy. 398 F. Supp. 3d 748, 752 (S.D.
Cal. 2019), appeal docketed, No. 19-55895 (9th Cir. Aug. 1,
2019). The A.C. court followed the reasoning of two
unpublished district court cases that reached the same
conclusion. Ismail v. Fulkerson, No. SA CV 10-00901-VBF-
AJW, 2014 WL 3962488 (C.D. Cal. Aug. 12, 2014), and
Rigsby v. County of Los Angeles, No. CV 11-02766 SJO
(PJWx), 2011 WL 13143544 (C.D. Cal Aug. 2, 2011), aff’d,
531 F. App’x 811 (9th Cir. 2013).
In A.C., the district court noted: “This remains an
underdeveloped area of federal law . . . . Nevertheless, the
Court finds the debatable holding of one case does not
establish a current constitutional right to privacy covering
juvenile records.” 398 F. Supp. 3d at 750. In Ismail, the court
found that Gonzalez “did not address or definitively
determine the existence or scope of any constitutional
informational privacy right.” 2014 WL 3962488, at *11. The
Ismail court also noted, as do we, that Gonzalez failed to cite
to Supreme Court or Ninth Circuit precedent and merely
assumed, without deciding, that a W&I § 827 violation
constituted a violation of a federal privacy right. Id. And
12 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN
prior to Ismail, Rigsby recognized that the Ninth Circuit has
held a constitutional right to informational privacy exists,
but that such right has not clearly been extended to the
nondisclosure of juvenile records. Rigsby, 2011 WL
13143544, at *3–4.
Accordingly, we, like the district courts, conclude that
the opaque opinion in Gonzalez did not clearly establish a
constitutional privacy right in juvenile records. Gonzalez did
not explain what right was at issue or what constitutional
source it flowed from. It did not even explain whether that
unnamed right was violated by the attorney’s conduct,
stating instead only that it could have been. Gonzalez,
336 F.3d at 835 (“If [the attorney] violated Gonzalez’s
constitutional rights…” (emphasis added)). Such an opinion,
which leaves fundamental questions unanswered about the
origin, nature, and scope of the right at issue, cannot place
the constitutional issue “beyond debate.” See Kisela, 138 S.
Ct. at 1152; see also Ashcroft v. al-Kidd, 563 U.S 731, 741
(2011). We cannot conclude that every reasonable official
acting as Defendants did would have known they were
violating the constitutional rights of Plaintiffs based on
Gonzalez, the only authority on which Plaintiffs’ rely. See
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).
III. CONCLUSION
We do not decide whether the Constitution provides a
privacy right in juvenile records; rather, we decide only that
no such right was clearly established at the time of the
Defendants’ alleged conduct. Therefore, Defendants are
entitled to qualified immunity.
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 13
REVERSED and REMANDED for further
proceedings consistent with this opinion. 7
HUNSAKER, Circuit Judge, with whom District Judge
Silver joins, concurring:
I write separately to emphasize one point—our en banc
court should reconsider Gonzalez v. Spencer, 336 F.3d 832(9th Cir. 2003), and address in earnest whether there exists a
constitutional right to privacy in juvenile records. We
carefully dodge this issue today by focusing on the clearly-
established-law prong of qualified immunity given the
dearth of reasoning and guidance in the Gonzalez decision.
But Gonzalez will continue to stymie district courts and
litigants. 1
The Supreme Court has identified a constitutional
privacy “interest in avoiding disclosure of personal matters”
under the Fourteenth Amendment. Whalen v. Roe, 429 U.S.
at 589, 599–600 (1977). This is referred to as the right to
“informational privacy.” See NASA v. Nelson, 562 U.S. 134,
7
The parties’ motions for judicial notice are denied as moot.
1
District courts have split interpreting Gonzalez. The district court
here read Gonzalez as establishing a viable Fourth Amendment violation
based on conduct allegedly prohibited by § 827. But district courts in
A.C. v. Cortez, Ismail v. Fulkerson, and Rigsby v. County of Los Angeles,
facing similar claims, read Gonzalez differently. See 398 F. Supp. 3d
748, 752 (S.D. Cal. 2019), appeal docketed, No. 19-55895 (9th Cir. Aug.
1, 2019); SA CV 10-00901-VBF-AJW, 2014 WL 3962488, at *11 (C.D.
Cal. Aug. 12, 2014); No. CV 11-02766 SJO (PJWx), 2011 WL
13143544, at *3 (C.D. Cal Aug. 2, 2011), aff’d, 531 F. App’x 811 (9th
Cir. 2013). And we affirmed Rigsby in a memorandum disposition
interpreting Gonzalez narrowly. 531 F. App’x 811, 812 (9th Cir. 2013).
14 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN
144 (2011). And we have recognized this right but have
cautioned that it is “not absolute; rather, it is a conditional
right which may be infringed upon a showing of proper
governmental interest.” Endy v. Cnty. of Los Angeles,
975 F.3d 757, 769 (9th Cir. 2020) (quoting In re Crawford,
194 F.3d 954, 959 (9th Cir. 1999)). In analyzing
informational privacy rights in any given case, “[o]ur
precedents demand that we engage in the delicate task of
weighing competing interests to determine whether the
government may properly disclose [the] private information
[at issue].” In re Crawford, 194 F.3d at 959 (internal
quotation marks and citation omitted).
The question here, whether there is a constitutional right
of privacy that protects against disclosure of juvenile
records, was answered in Gonzalez like an overconfident yet
underprepared student—casually, without explanation or
supporting authority. We should do better. And until the en
banc court performs the analysis that Gonzalez neglected,
our law on this issue will remain unclear. See, e.g., A.C.,
398 F. Supp. 3d at 752.