Brittain v. Campbell ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELAINE BRITTAIN, 
Plaintiff-Appellee,
v.
No. 03-57012
WILLIAM HANSEN; REBECCA SCOTT;
COUNTY OF SAN BERNARDINO,  D.C. No.
CV-01-00595-VAP
Defendants,
OPINION
and
BRIAN CAMPBELL, #C0191,
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
September 15, 2005—Pasadena, California
Filed June 22, 2006
Before: J. Clifford Wallace, Barry G. Silverman, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Wallace;
Concurrence by Judge Silverman
6903
BRITTAIN v. CAMPBELL 6907
COUNSEL
Dennis E. Wagner, Deputy County Counsel, San Bernardino,
California, for defendant-appellant Brian Campbell.
George G. Romain, Haney, Buchanan & Patterson, L.L.P.,
Los Angeles, California, for plaintiff-appellee Elaine Brittain.
OPINION
WALLACE, Senior Circuit Judge:
Appellant Police Officer Brian Campbell takes this inter-
locutory appeal from the district court’s denial of his sum-
6908 BRITTAIN v. CAMPBELL
mary judgment motion based upon qualified immunity. We
have jurisdiction pursuant to 28 U.S.C. § 1292. We reverse.
I.
This appeal arises out of a child custody dispute between
Elaine Brittain and William Hansen, the unmarried parents of
Matthew Brittain (Matthew). Brittain and Hansen had previ-
ously litigated custody of Matthew in the San Bernardino
Superior Court. The adjudication resulted in a custody order
awarding Hansen sole legal custody of Matthew, who was
thirteen years old at the time of the events in dispute.
Although Hansen was the sole legal guardian, the superior
court awarded visitation rights to Brittain.
The custody order included a visitation schedule which
governed in the event that Brittain and Hansen were unable to
agree on one of their own. Brittain and Hansen rarely agreed
on a schedule. Two paragraphs of that order are central to this
appeal:
11. The last week during each period the minor is
off track from school, or if minor is not in a year-
round program, for three non-consecutive weeks
during summer vacation. Mother is to notify Father
prior to May 15 of each year of the three weeks dur-
ing summer vacation she intends to have the minor.
If the parties cannot agree on the specific three
weeks, Mother shall have the minor the last full
week of each of the months of June, July, and
August.
12. Father shall have the right to a three or four
week vacation each year in which he may remove
the minor from the state of California and during
which time the Mother’s visitation shall be sus-
pended. Father will give Mother a one month written
notice of the dates he intends to take his vacation.
BRITTAIN v. CAMPBELL 6909
On July 20, 2000, Hansen gave Brittain notice that he
would be taking Matthew for vacation from August 21 to Sep-
tember 3, 2000. When Hansen delivered the note, he told Brit-
tain that no replacement week would be provided.
On August 20, Hansen arrived at Brittain’s house to pick
up Matthew. Matthew went outside and told his father that he
would not be going with him because it was Brittain’s week
for visitation. Brittain called the police. It was not unusual for
law enforcement to be called to mediate this custody dispute;
Matthew estimated that it had occurred around forty times. By
the time Deputy Sheriff Dorough arrived, Hansen had left.
Brittain showed him the custody order. Dorough indicated
that he believed Brittain’s interpretation of the visitation order
was correct.
Hansen returned the following day to Brittain’s residence
with his sister, Rebecca Scott. Shortly thereafter, approxi-
mately 2:30 p.m., Officer Campbell arrived at Brittain’s resi-
dence. Hansen handed Campbell a copy of the child custody
order and a copy of Hansen’s note informing Brittain of his
intention to take Matthew on vacation. Campbell reviewed the
documents and discussed the dispute with Hansen.
Campbell then telephoned Brittain and asked her and Mat-
thew to come out of the residence. Brittain came out into the
front yard and opened a gate to admit Campbell onto the
property. Campbell and Brittain then discussed the custody
dispute and order. Brittain acknowledged receiving Hansen’s
July 20 note and never disputed the validity of the custody
order. Campbell stated that he believed paragraph 12 con-
trolled and therefore Hansen was entitled to custody for the
disputed week.
At this point, Brittain unsuccessfully attempted to call her
lawyers. Brittain then called the Highland Police Department
and asked to speak to the watch commander. After speaking
with Brittain, the watch commander asked to speak with
6910 BRITTAIN v. CAMPBELL
Campbell. At some point during this call, Campbell switched
on his recorder. Brittain stated that Campbell became irate
because she had called his supervisor and thereafter spoke to
her in alternately a “hostile and condescending tone” or “ag-
gressive and condescending tone.”
After speaking with the watch commander, Campbell and
Brittain resumed their discussion over the custody dispute.
Campbell expressed his opinion that “You can’t stop at line
25. You have to go on and read 26, [beginning of paragraph
12] the rest of it.” After additional argument, Brittain asked
Campbell for more time to try to contact her lawyers again.
Campbell refused and said that he was “deciding it right
now.” Campbell said that he was “going to take Matthew”
and that “[h]e’s going with [Hansen].” He then ordered Brit-
tain to bring Matthew out of the house. Brittain also stated,
and Campbell denies, that Campbell threatened her with arrest
if she did not comply. After stating that she would sue Camp-
bell and that “I can play any game I want with my son,” Brit-
tain agreed to bring Matthew outside the house.
The transfer of Matthew to Hansen was then apparently
accomplished without further incident. Campbell stated that
Matthew never indicated that he did not wish to go with Han-
sen. Matthew stated he was not sure if he told Campbell that
he did not wish to go with Hansen.
Campbell estimated that he had previously handled
between five and ten custody disputes during his fifteen years
as an officer. In those previous instances, Campbell did not
order an objecting parent to transfer a child.
Campbell testified that he had never met Hansen, Scott or
Brittain previously. However, Brittain has pointed to evidence
that allegedly supports the inference that there was a conspir-
acy between Campbell, Hansen, and Scott to deprive Brittain
of her visitation rights. In an April 4, 2000 incident, law
enforcement officers were called to mediate a similar dispute
BRITTAIN v. CAMPBELL 6911
and sided with Brittain. Matthew testified that Scott said that
“next time [we’re] going to get [our] cop.” Matthew also testi-
fied that, at some point, his aunt “did meet a cop at a bar,”
although Matthew did not know to which officer Scott was
referring. Matthew also believed that Campbell may have cal-
led Hansen and Scott by their first names. Matthew stated that
Scott and Hansen were “laughing and smirking” at times dur-
ing the dispute. Lastly, Matthew testified that Campbell
appeared to know that Hansen intended to go to Oceanside for
the vacation.
Brittain also argues that a tape recording from Campbell’s
belt recorder of parts of the August 20 incident shows a con-
spiracy among Campbell, Hansen and Scott and evidence
tampering. Brittain points out that the tape was not turned on
until about five minutes into the incident and that the tape was
turned off and on twice during the dispute. Based on this evi-
dence, the district court found that there was a material issue
of fact as to whether there was a conspiracy among Campbell,
Hansen and Scott.
II.
Although we ordinarily review only final judgments, offi-
cers are permitted to take an interlocutory appeal of a district
court’s denial of qualified immunity. Mitchell v. Forsyth, 472
U.S. 511, 530 (1985); Genzler v. Longanbach, 410 F.3d 630,
636 (9th Cir.), cert. denied, 126 S.Ct. 737 (2005). This is
because qualified immunity is “immunity from suit rather
than mere defense to liability . . . [and] is effectively lost if
a case is erroneously permitted to go to trial.” Mitchell, 472
U.S. at 526 (emphasis omitted). We do not resolve factual dis-
putes on interlocutory review, see Johnson v. Jones, 515 U.S.
304, 313-17 (1995), but “[w]here disputed facts exist, how-
ever, we can determine whether the denial of qualified immu-
nity was appropriate by assuming that the version of the
material facts asserted by the non-moving party is correct.”
KRL v. Moore, 384 F.3d 1105, 1110 (9th Cir. 2004), quoting
6912 BRITTAIN v. CAMPBELL
Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001) (as
amended). We review a district court’s denial of summary
judgment based on qualified immunity de novo. Genzler, 410
F.3d at 636.
Qualified immunity shields government officials “from lia-
bility for civil damages insofar as their conduct does not vio-
late clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted); see
also Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified
immunity protects “all but the plainly incompetent or those
who knowingly violate the law”). Consideration of qualified
immunity in a Section 1983 claim raises two questions.
Menotti v. City of Seattle, 409 F.3d 1113, 1152 (9th Cir.
2005). Under the approach set out by Saucier v. Katz, we first
must ask “whether a constitutional right would have been vio-
lated on the facts alleged.” 533 U.S. 194, 200 (2001). “If no
constitutional right would have been violated were the allega-
tions established, there is no necessity for further inquiries
concerning qualified immunity.” Id. at 201.
If a constitutional violation is established, we consider
“whether that right was ‘clearly established’ such that ‘it
would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.’ ” Menotti, 409 F.3d
at 1152, quoting Saucier, 533 U.S. at 202. “This inquiry is
wholly objective and is undertaken in light of the specific fac-
tual circumstances of the case.” San Jose Chapter of the Hells
Angels Motorcycle Club v. City of San Jose, 402 F.3d 962,
971 (9th Cir.), cert. denied sub nom., Decena v. San Jose
Charter of Hells Angels Motorcycle Club, 126 S.Ct. 796(2005), citing Saucier, 533 U.S. at 201. “Under the Harlow
standard . . . an allegation of malice is not sufficient to defeat
immunity if the defendant acted in an objectively reasonable
manner.” Malley, 475 U.S. at 341. “The relevant, dispositive
inquiry in determining whether a right is clearly established
is whether it would be clear to a reasonable officer that his
BRITTAIN v. CAMPBELL 6913
conduct was unlawful in the situation he confronted.” City of
San Jose, 402 F.3d at 971, quoting Saucier, 533 U.S. at 202.
“[I]f officers of reasonable competence could disagree on this
issue, immunity should be recognized.” Malley, 475 U.S. at
341.
III.
We turn first to Brittain’s substantive due process claim.
There are four issues we must discuss in resolving this claim.
A.
The district court relied upon precedents concerning seizure
of children from custodial parents based on allegations of
child abuse, primarily two of our precedents, Ram v. Rubin,
118 F.3d 1306 (9th Cir. 1997), and Wallis v. Spencer, 202
F.3d 1126 (9th Cir. 1999), to hold that “the Fourteenth
Amendment prohibited [Campbell], absent an emergency,
from depriving plaintiff of custody of Matthew.” Quoting
Ram, the district court held that Brittain “could not be sum-
marily deprived of that custody without notice and a hearing,
except when the children were in imminent danger.” The dis-
trict court concluded that there was “no functional difference”
between the issues of custody and visitation.
Both Ram and Wallis were cases in which social workers
or police acted on the basis of suspected sexual abuse. See
Ram, 118 F.3d at 1309; Wallis, 202 F.3d at 1134-35. Both
cases have their doctrinal origins in, and relied upon, the
Supreme Court decision in Santosky v. Kramer, 455 U.S. 745(1982). Santosky required, before parents could permanently
be deprived of custody based on child abuse, proof of that
abuse by clear and convincing evidence at a hearing. Id. at
769-70. Some of our later precedents expanded this protection
so that a custodial parent could not be deprived of physical
custody on a temporary basis without either an emergency or
6914 BRITTAIN v. CAMPBELL
a pre-deprivation hearing. See, e.g., Ram, 118 F.3d at 1310;
Caldwell v. LeFaver, 928 F.2d 331, 333 (9th Cir. 1991).
The first issue is whether the district court was correct that
there is “no functional difference” between custody and visi-
tation. We see this issue differently.
[1] There are vital distinctions between the child abuse pre-
cedents and the present matter that the district court failed to
consider. First, permanent custody is a greater interest than a
single visitation period. Santosky, for example, relied on the
premise that “[w]hen the State initiates a parental rights termi-
nation proceeding, it seeks not merely to infringe that funda-
mental liberty interest, but to end it.” 455 U.S. at 759.
Furthermore, “[i]f the state prevails, it will have worked a
unique kind of deprivation.” Id. (internal quotations and cita-
tion omitted). In the present case Brittain only alleges
infringement that will not effect that “unique kind” of depri-
vation.
[2] Our sister circuits have recognized that visitation is a
lesser interest than permanent custody. See Zakrzewski v. Fox,
87 F.3d 1011, 1013-14 (8th Cir. 1996); Wise v. Bravo, 666
F.2d 1328, 1332-33 (10th Cir. 1981). In Zakrzewski, the
father-plaintiff had lost custody due to a divorce decree and
only had visitation rights with his son. 87 F.3d at 1012. Cen-
tral to its holding, the Tenth Circuit recognized that
“Zakrzewski’s liberty interest in the care, custody, and man-
agement of his son has been substantially reduced by the
terms of the divorce decree . . . .” Id. at 1014. Similarly, Wise
held that the liberty interest in visitation was sufficiently lim-
ited that interference with that interest did not give rise to a
constitutional violation under 42 U.S.C. § 1983. Wise, 666
F.2d at 1333; see also Weller v. Dep’t of Soc. Servs., 901 F.2d
387, 394 (4th Cir. 1990) (holding that while some procedures
are sufficient “when visitation and placement decisions are at
stake, we believe that the greater liberty interest inherent in
the custody of one’s child requires something more”); cf. Elk
BRITTAIN v. CAMPBELL 6915
Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 13-18
(2004) (non-custodial parent lacks prudential standing to
bring Establishment Clause challenge based on relationship
with his daughter).
Treating visitation as identical to custody also fails to give
effect to the state court judgment. That judgment, which
awarded sole custody to Hansen, undeniably reduced Brit-
tain’s parental rights vis-à-vis Matthew. Those proceedings,
whose validity is unchallenged, led to Brittain’s loss of legal
custody and left her only with visitation rights. That judgment
undoubtedly had a profound impact on the relationship
between Brittain and Matthew, and we would be treating it as
a legal nullity if we held there was “no functional difference”
between legal custody and visitation.
The nature of the actions is also significantly different.
When the state seeks to terminate parental rights due to child
abuse, the state is required to prove abuse or neglect by clear
and convincing evidence. Santosky, 455 U.S. at 769-70. Such
hearings necessarily are adversarial in nature, with the gov-
ernment bringing accusations of fault against parents. Id. at
748, 759-62 (“[T]he factfinding stage of a state-initiated per-
manent neglect proceeding bears many of the indicia of a
criminal trial”) (citations omitted). When the government
brings legal actions against individuals and seeks to deprive
them of liberty interests, the constitutional concerns are at
their zenith. See Santosky, 455 U.S. at 756 (explaining that
termination of parental rights based on child abuse requires
heightened constitutional scrutiny because the actions are
“government-initiated proceedings that threaten the individual
with a significant deprivation of liberty or stigma”) (internal
quotations and citation omitted, emphasis added); see also In
re Winship, 397 U.S. 358, 362-65 (1970) (requiring proof
beyond a reasonable doubt for criminal convictions).
[3] By contrast, the states regularly adjudicate custody dis-
putes between the parents on a “best interests of the child”
6916 BRITTAIN v. CAMPBELL
standard. See Reno v. Flores, 507 U.S. 292, 303-04 (1993)
(“ ‘The best interests of the child,’ a venerable phrase familiar
from divorce proceedings, is a proper and feasible criterion
for making the decision as to which of two parents will be
accorded custody”). Such proceedings involve no government
accusations of fault or the government acting in an adversarial
role against the parents. Indeed, the Supreme Court has stated
that “persons faced with forced dissolution of their parental
rights have a more critical need for procedural protections
than do those resisting state intervention into ongoing family
affairs.” Santosky, 455 U.S. at 753 (emphasis added). Rather
than acting in a prosecutorial role, as the government does in
child abuse cases, here Campbell acted to resolve a dispute
between two individuals who both had liberty interests in the
physical custody of Matthew.
[4] By failing to recognize the lesser liberty interest in visi-
tation and the differing nature of this action from child abuse
hearings, the district court applied an erroneous legal stan-
dard.
B.
Having concluded that the child abuse cases are not the cor-
rect legal precedents to apply in this action, we must deter-
mine the framework that applies to the present situation:
where an officer intervenes in a child custody dispute between
parents, based on each parent’s claimed entitlement to present
custody.
Federal courts have “always been reluctant to expand the
concept of substantive due process because guideposts for
responsible decisionmaking in this uncharted area are scarce
and open ended.” Albright v. Oliver, 510 U.S. 266, 271-72
(1994) (plurality opinion), quoting Collins v. City of Harker
Heights, 503 U.S. 115, 125 (1992). The Court has cautioned
that we “must therefore exercise the utmost care whenever we
are asked to break new ground in this field, lest the liberty
BRITTAIN v. CAMPBELL 6917
protected by the Due Process Clause be subtly transformed
into the policy preferences of [federal judges].” Washington
v. Glucksburg, 521 U.S. 702, 720 (1997) (internal quotations
and citation omitted). Furthermore, “the Fourteenth Amend-
ment is not a font of tort law to be superimposed upon what-
ever systems may already be administered by the States . . . .”
County of Sacramento v. Lewis, 523 U.S. 833, 848 (1998)
(internal quotations and citation omitted). Substantive due
process is ordinarily reserved for those rights that are “funda-
mental.” See Glucksburg, 521 U.S. at 721-22.
[5] This case further implicates two separate lines of
Supreme Court cases in which the Court has urged particular
caution: those regulating police conduct, see Graham v. Con-
nor, 490 U.S. 386, 395 (1989) (refusing to extend substantive
due process to claims against officers for arrests, stops, and
excessive force), and those concerning domestic relations. See
Sosna v. Iowa, 419 U.S. 393, 404 (1975) (“[D]omestic rela-
tions [is] an area that has long been regarded as a virtually
exclusive province of the States”) (punctuation omitted);
Newdow, 542 U.S. at 12 (“[T]he whole subject of the domes-
tic relations of husband and wife, parent and child, belongs to
the laws of the States and not to the laws of the United
States”) (internal quotations and citations omitted).
[6] Brittain has offered no reason why the child abuse pre-
cedents should be expanded into parental child custody dis-
putes and instead relies on the proposition that the child abuse
precedents already directly apply to this case. As discussed
previously, there are significant differences between these two
areas. With no other proffered rationale and because of these
significant distinctions, we will not create a new substantive
due process right by extending the child abuse precedents into
child custody disputes between parents.
Our holding does not fully resolve this claim, however. We
must also examine more generally this constitutional protec-
tion to determine its application to this case.
6918 BRITTAIN v. CAMPBELL
[7] Substantive due process protects individuals from arbi-
trary deprivation of their liberty by government. See Lewis,
523 U.S. at 845-49. The Court has repeatedly “spoken of the
cognizable level of executive abuse of power as that which
shocks the conscience.” Id. at 846. “[O]nly the most egregious
official conduct can be said to be arbitrary in a constitutional
sense.” Id. (internal quotations and citation omitted). Such
conduct can be shown by “conduct intended to injure in some
way unjustifiable by any government interest.” Id. at 849.
[8] It is not enough to allege conscience shocking action,
however. “As a threshold matter, ‘to establish a substantive
due process claim a plaintiff must show a government depri-
vation of life, liberty, or property.’ ” Squaw Valley Dev. Co.
v. Goldberg, 375 F.3d 936, 948 (9th Cir. 2004) (punctuation
omitted), quoting Nunez v. City of Los Angeles, 147 F.3d 867,
871 (9th Cir. 1998). This is because “there is no general lib-
erty interest in being free from capricious government
action.” Id. at 949 (internal quotations and citation omitted).
Thus, in order to establish a constitutional violation based on
substantive due process, Brittain must show both a depriva-
tion of her liberty and conscience shocking behavior by the gov-
ernment.1 We next discuss each of these requirements.
1
The concurrence believes this appeal can be resolved solely on the
basis that Campbell “acted reasonably in interpreting the ambiguous court
order and in defusing the domestic dispute . . . .” Concur. op. at 6939. The
concurrence asserts that the appeal “is as simple as that.” Id.This argument presupposes that the only legal issue is the reasonable-
ness of Campbell’s actions. Brittain argues, with some support, that sub-
stantive due process bars any governmental interference with her visitation
rights without a specific court order. We are obliged to address this argu-
ment, which would require affirming the district court if she were correct.
Because none of our precedents has set forth the applicable legal standard
for evaluating police involvement in custodial disputes, our analysis of
Brittain’s argument is necessarily detailed.
Unlike the concurrence, we will not assert the case is “as simple as”
assessing the reasonableness of Campbell’s actions without first establish-
ing that reasonableness is the applicable legal standard. Notably, the cor-
BRITTAIN v. CAMPBELL 6919
C.
1.
[9] We first consider whether Brittain had a liberty interest
in her court-ordered visitation rights. It is long-settled that
custodial parents have a liberty interest in the “companion-
ship, care, custody, and management” of their children. Stan-
ley v. Illinois, 405 U.S. 645, 651 (1972); see also Lassiter v.
Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981) (such right was
“plain beyond the need for multiple citation”); Miller v. Cali-
fornia Dep’t of Soc. Servs., 355 F.3d 1172, 1175 (9th Cir.
2004). We have not had occasion to decide whether parents
who have visitation rights, but lack legal custody, have a simi-
lar liberty interest.
[10] Most of the federal circuits to reach this issue have
determined that some liberty interest exists. See Zakrzewski,
87 F.3d at 1013-14; Franz v. United States, 707 F.2d 582,
594-602 (D.C. Cir. 1982) (considering complete and perma-
nent severance of parental relationship after mother and chil-
rect legal standard is whether Campbell’s actions “shock the conscience.”
Objective reasonableness is one means of assessing whether Campbell’s
actions meet that standard. See Moreland v. Las Vegas Metro. Police
Dep’t, 159 F.3d 365, 371 n.4 (9th Cir. 1998).
While the concurrence suggests that a footnote in Moreland provides
the applicable legal standard, Moreland considered a claim based on the
allegedly reckless use of police force, whereas this appeal concerns custo-
dial rights. Similarly, the concurrence’s citation of an out-of-circuit Fourth
Amendment precedent, Wilson v. Spain, 209 F.3d 713 (8th Cir. 2000), also
does not conclusively resolve the issue. While we agree with the concur-
rence that the same “shocks the conscience” standard ultimately applies,
some additional analysis is required to reach this holding.
We understand our colleague’s desire to simplify this appeal. This case
is one of first impression, however, and some detailed analysis is required.
We believe that reasoned analysis is preferable to unsupported assertions
of what the applicable legal standard should be.
6920 BRITTAIN v. CAMPBELL
dren were placed in witness protection program); Wise, 666
F.2d at 1331-33. The Fourth Circuit implicitly found a liberty
interest in visitation when it stated that while some remedies
were sufficient for visitation, “the greater liberty interest
inherent in the custody of one’s child requires something
more.” Weller, 901 F.2d at 394. The Seventh Circuit has
assumed that such a right exists. See Terry v. Richardson, 346
F.3d 781, 784 (7th Cir. 2003) (assuming, without deciding,
that a non-custodial parent has a liberty interest in “care, cus-
tody, and control” of his or her offspring).
[11] The rationale of these cases is compelling and we
therefore hold that non-custodial parents with court-ordered
visitation rights have a liberty interest in the companionship,
care, custody, and management of their children.2 Such an
interest is unambiguously lesser in magnitude than that of a
parent with full legal custody. Similar to the Eighth Circuit,
we hold that Brittain’s “liberty interest in the care, custody,
and management of [her] son has been substantially reduced
by the terms” of the state court custody judgment. See
Zakrzewski, 87 F.3d at 1014; see also Weller, 901 F.2d at
394. In doing so, we recognize the obvious reality that visita-
tion is a lesser interest than legal custody, a fact to which par-
ents seeking full legal custody of their children would
undoubtedly attest. We reiterate that to hold otherwise would
fail to give proper effect to the state court’s judgment.
2.
[12] Having determined that Brittain has a liberty interest
at stake, Brittain must show a deprivation of that interest to
have a cognizable Section 1983 claim. Two of our sister cir-
cuits have held that a relatively minor infringement on this
liberty interest in visitation will not give rise to a Section
2
The fact that none of our prior decisions has addressed whether parents
have a liberty interest in visitation is another factor that makes this appeal
more complicated.
BRITTAIN v. CAMPBELL 6921
1983 substantive due process claim. See Zakrzewski, 87 F.3d
at 1014-15; Wise, 666 F.2d at 1333; see also Terry, 346 F.3d
at 786 (referring to de minimis approach of Wise and
Zakrzewski but concluding it unnecessary to decide in that
case whether that plaintiff’s “interest is too insignificant to be
actionable”); Brown v. Brienen, 722 F.2d 360, 364 (7th Cir.
1983) (citing Wise for proposition that visitation rights cannot
give rise to Section 1983 action). The factual circumstances
of both Zakrzewski and Wise are similar to the present action
and merit our discussion.
In Zakrzewski, a divorce decree had given visitation rights
to Zakrzewski with his son and sole legal custody to his ex-
wife. 87 F.3d at 1012. After Zakrzewski properly took physi-
cal custody of his son for Memorial Day weekend, a dispute
arose as to who had custody for the following week. Id. at
1013. The ex-wife’s attorney called the sheriff’s office and
accused Zakrzewski of violating the terms of the divorce
decree and requested assistance in regaining physical custody
of the child. Id. The sheriff then called Zakrzewski, warning
him that if he did not return his son, he would be charged with
a felony. Id. Zakrzewski went to the sheriff’s office to protest
the demand, but the sheriff reiterated his warning. Id. On the
way home from the sheriff’s office, Zakrzewski was pulled
over by two deputies who told him to turn over his son or they
would arrest him. Id. Zakrzewski then agreed to deliver his
son to his ex-wife. Id. The Eighth Circuit held that the
infringement of Zakrzewski’s liberty interest was not suffi-
cient to give rise to a substantive due process claim. Id. at
1014-15.3
3
The concurrence apparently believes that Zakrzewski takes a position
contrary to Wise and “left open the possibility” that under different cir-
cumstances the same amount of deprivation might be constitutionally cog-
nizable. Concur. op. at 6941. This belief is squarely at odds with the
language in Zakrzewski. That case clearly states that its “holding that this
case presents no constitutional violation is consistent with a similar Tenth
Circuit case,” 87 F.3d at 1014, citing Wise. Furthermore, Zakrzewski
6922 BRITTAIN v. CAMPBELL
Similarly, in Wise, the plaintiff-father had lost legal custody
of his daughter in a divorce decree but obtained visitation
rights. 666 F.2d at 1330. The Tenth Circuit described the situ-
ation which gave rise to his lawsuit as follows:
On March 17, 1978, Wise took his daughter for an
extended visit following an oral agreement with
Gayle. On March 24, 1978, Gayle phoned Wise
advising him that she wanted their daughter back
that night. Wise refused, claiming that he didn’t have
to return the child at that time. . . . [B]oth Wise and
Gayle called the Police Department. In addition,
Gayle called Captain Bravo at his home. Later that
evening, Captain Bravo and five other police officers
arrived at Wise’s apartment to retrieve the girl. The
officers knocked on the door, identified themselves
as police officers, and asked to come in. Upon seeing
Bravo, Wise stated that he was “not welcome” in the
apartment. Officer Avery stated that Bravo was an
officer and had as much right as the rest to enter. The
police then entered the apartment without further
objection from Wise. Avery told Wise that they were
there for the purpose of returning the little girl to her
mother. Wise consented and released his daughter to
the police officers.
quotes language from Wise that “any deprivation of Wise’s visitation
rights was so insubstantial in duration and effect it failed to rise to a fed-
eral constitutional level,” and then states “[t]he case before us is, for the
most part, indistinguishable from Wise, and we agree with the reasoning
set forth in that case.” Id. (emphasis added). Thus, it is clear that
Zakrzewski is not contrary to Wise.
The concurrence’s quotation that “the one-time interpretation of
Zakrzewski’s right to visitation in this case does not amount to a depriva-
tion of liberty” actually supports the proposition that a longer visitation
period might give rise to a viable claim. It does not support the concur-
rence’s apparent belief that a wrongful deprivation of visitation, no matter
how short in duration, would support a substantive due process claim.
BRITTAIN v. CAMPBELL 6923
Id. Wise also stated that one of the officers “carried ‘a little
black decanter sort of thing,’ which he assumed to be Mace,
and that he felt threatened by the object’s presence.” Id. The
Tenth Circuit concluded that “[a]ny deprivation of Wise’s vis-
itation rights was so insubstantial in duration and effect [that
it failed] to rise to a federal constitutional level.” Id. at 1333.
The court further held that Section 1983 “should not be
viewed as a vehicle to resolve a dispute involving visitation
rights-privileges. That is a subject uniquely reserved to the
state court system.” Id.4
4
Though prominently briefed by Campbell, Brittain failed to cite, let
alone distinguish, Wise and Zakrzewski in her appellee brief. At oral argu-
ment, Brittain offered three unpersuasive reasons for distinguishing those
cases. First, Brittain pointed out that the custody order granting Brittain
visitation rights refers to “custody” and not visitation. Brittain therefore
tried to distinguish those cases on the basis that Brittain has “custody
rights” rather than visitation.
The use of the word “custody” to which Brittain refers is found in this
sentence: “Mother shall have custody of Matthew for purposes of visita-
tion for the following times . . . .” Moreover, the order grants “physical
and legal custody” to Hansen and then specifies her rights under the head-
ing “Mother’s visitation rights.” This reference to “custody” is obviously
a reference to physical custody during visitation. The right involved in this
case is clearly visitation and Wise and Zakrzewski cannot be distinguished
on that basis.
Brittain next argued that the deprivation in this case is greater than in
Wise and Zakrzewski. It is true that the visitation period in Wise is unclear
because it was pursuant to an oral agreement that was not resolved by the
court. See Wise, 666 F.2d at 1330, 1333. However, the disputed visitation
period in Zakrzewski, like this case, was one week. 87 F.3d at 1012-13.
Lastly, Brittain attempted to distinguish Wise and Zakrzewski on the
basis that the transfers of those children were “consensual.” However, the
close factual similarity of Zakrzewski once again refutes this argument.
Like this case, the transfer of the child in Zakrzewski was effected only
after repeated threats of arrest. 87 F.3d at 1013. Indeed, Zakrzewski had
also been threatened with being charged with a felony. Id. at 1013. Simi-
larly, in Wise, the transfer was accomplished after the police came to
Wise’s residence and ordered him to transfer the child, under the per-
ceived threat of force. 666 F.2d at 1330.
6924 BRITTAIN v. CAMPBELL
The district court sought to distinguish Wise and
Zakrzewski on the facts, however. The district court held that
“[t]he most that can be said about Wise and Zakrzewski is that,
under the facts of those cases, the courts held that the alleged
violations did not rise to the level of a federal constitutional
violation.” Then, without any analysis distinguishing those
facts from the facts of this case, the court said that the evi-
dence proffered by Brittain was sufficient to state a constitu-
tional violation. We do not believe the factual circumstances
are materially different and we do not give such a restrictive
reading to Wise and Zakrzewski. Like Zakrzewski, the transfer
of the child was only accomplished under a threat of arrest
(and also a threat of a felony charge), which led to the loss of
one week of visitation. In both cases the police ordered the
transfer of the child over the protest of the parent that they
were entitled to custody. Lastly, in both cases, the police
intervened in a child custody dispute and acted on behalf of
the parent with legal custody. The attempt to distinguish these
cases as presenting significantly different factual circum-
stances is unpersuasive.
We hold that the deprivation of Brittain’s liberty interest in
custody over Matthew, like the deprivations in Wise and
Zakrzewski, did not rise to the level of a federal constitutional
violation. In so holding, we are mindful that this case arises
in the intersection of several fields of law where federal courts
have shown the greatest hesitation in creating new federal
mandates. We will not disregard this justifiable caution
lightly. Substantive due process vindicates those interests
which are fundamental and, contrary to Brittain’s theory, may
not to be used as a “font of tort law to be superimposed upon
whatever systems may already be administered by the States
. . . .” Lewis, 523 U.S. at 848 (internal quotations and citation
omitted). Allowing Section 1983 substantive due process
claims to proceed under the alleged deprivation of liberty here
could have unfortunate consequences for our federal system.
It could dramatically interject federal courts and federal law
into domestic relations disputes involving children which, as
BRITTAIN v. CAMPBELL 6925
previously pointed out, is “an area that has long been regarded
as a virtually exclusive province of the States.” Sosna, 419
U.S. at 404; see also Newdow, 124 S.Ct. 2301 at 2309.
We are also mindful that Brittain’s visitation rights, unlike
custodial rights, are a creation of state law. The extent to
which other creations of state law resembling parental rights,
such as foster parents and de facto parents, give rise to accom-
panying constitutional liberty interests depends on the con-
texts in which the issues are raised. See Miller, 355 F.3d at
1176 (“Nor does the fact that the Millers were ‘de facto’ par-
ents under California law for purposes of the juvenile court
proceedings create a liberty interest in contact with the chil-
dren”); Backlund v. Barnhart, 778 F.2d 1386, 1390 (9th Cir.
1985) (“The relationship between this foster parent and foster
child is a creature of the Washington child welfare statutes.
Those statutes confer no new due process rights”). In line
with these cases, we believe that states should be given flexi-
bility in interpreting and enforcing a right of their own cre-
ation.
We therefore agree with our sister circuits that some “gate-
keeping” requirement is necessary to respect the strong feder-
alism and judicial restraint concerns at issue in cases such as
this. If any deprivation of visitation rights, no matter how
slight, can give rise to a substantive due process claim, liti-
gants will not only be able to use substantive due process as
a “font of tort law,” but also as a tool to transform federal
courts into family courts. In the particular custody dispute
before us, the police had been called out to mediate on as
many as forty occasions. The proper venue to litigate at the
very least most of these disputes is in state court. If every cus-
tody dispute, including ones only concerning a weekend or
even an hour of visitation, can give rise to a federal claim
necessitating federal interpretation of a state custody order,
federal courts could rapidly become de facto family courts.
Such a result is not permitted by Supreme Court jurispru-
dence.
6926 BRITTAIN v. CAMPBELL
It is not, however, for us to determine whether we should
impose as strict a threshold requirement as Wise and
Zakrzewski. We need not hold that visitation rights will never
give rise to a substantive due process claim. Cf. Wise, 666
F.2d at 1333 (Section 1983 “should not be viewed as a vehicle
to resolve a dispute involving visitation rights-privileges. That
is a subject uniquely reserved to the state court system.”);
Zakrzewski, 87 F.3d at 1015 (“The case before us is, for the
most part, indistinguishable from Wise, and we agree with the
reasoning set forth in that case.”). We need not reach the
question whether interference with a lengthy visitation period
or repeated interference with shorter periods may give rise to
a cognizable substantive due process claim. We need not
decide here whether interference that affects the existence of
visitation rights altogether, rather than discrete instances of
visitation, might give rise to a viable claim. Nor need we
reach the question whether custodial parents may bring suit.
[13] The reason why we need not address these issues is
because this is not such a case. Here the deprivation is of a
single week period in a long-running custody dispute. Given
the relatively short duration of the interference and limited
nature of the liberty interest compared to custody, we hold
that even if we departed from Wise and Zakrzewski, this case
will not support a substantive due process claim.
[14] Regardless whether visitation rights collectively may
be a “fundamental” liberty interest to the parent involved, we
do not believe a single instance of visitation, of a single week
in duration, is a “fundamental” right. As such, substantive due
process does not provide a remedy in this case.
Our approach to resolving this case heeds the Supreme
Court’s directive to “avoid constitutional issues when resolu-
tion of such issues is not necessary for disposition of a case.”
In re Snyder, 472 U.S. 634, 642 (1985); see also United States
v. Sandoval-Lopez, 122 F.3d 797, 802 n.9 (9th Cir. 1997)
(“We avoid constitutional questions when an alternative basis
BRITTAIN v. CAMPBELL 6927
for disposing of the case presents itself”). Thus, we hold for
another case whether child custody disputes may, and under
what circumstances, can give rise to a substantive due process
claim. While Brittain may well have possessed other state law
claims, substantive due process will not provide her relief in
this action.
A substantive due process claim is not a means for litigants
or federal courts to subvert family courts. Nor is it an excuse
to ignore strong concerns of federalism and judicial restraint.
Even if a threshold requirement of deprivation of liberty is
necessary to protect these interests, Brittain has failed to over-
come that threshold.
D.
[15] Brittain’s claims also fail because Campbell’s actions
were not “conscience shocking” as a matter of law. Camp-
bell’s interpretation of the visitation order was reasonable.
While there is a potential conflict between paragraphs 11 and
12, paragraph 12 (upon which Hansen and Campbell relied)
contains a specific clause which provided for the cessation of
Brittain’s visitation when paragraph 12 was invoked. Brittain
could point to no supersession clause and simply relied on the
argument that this interpretation would allow Hansen to
thwart the intent of paragraph 11. In refusing to accept Brit-
tain’s interpretation of the order, Campbell did not violate
Brittain’s substantive due process rights.
We need not decide whether Campbell’s interpretation of
the order is the best legal interpretation, because it is suffi-
cient to conclude, as we do, that it was reasonable and not
conscience shocking. We do not require police officers to act
as legal experts to avoid violating the Constitution; substan-
tive due process secures individuals from “arbitrary” govern-
ment action that rises to the level of “egregious conduct,” not
from reasonable, though possibly erroneous, legal interpreta-
tion. Indeed, in Zakrzewski the state courts later held the cus-
6928 BRITTAIN v. CAMPBELL
todial parent in contempt for violating the custody order and
denying Zakrzewski the visitation rights to which he was enti-
tled. 87 F.3d at 1014. Nonetheless, the Eighth Circuit still
held the officers’ actions, though based on an erroneous legal
conclusion that Zakrzewski was not entitled to custody, were
not conscience shocking. Id.[16] The decision to effectuate the transfer of Matthew, and
thus enforce the state court judgment, was objectively reason-
able as a matter of law. Campbell was presented with a lawful
court order whose validity was conceded by Brittain.
Although the relevant clause suspending her visitation rights
was conditioned on notice being given at least one month in
advance, Campbell was presented with evidence that such
notice was given and Brittain conceded as much. Campbell
then reasonably determined that, under the state court order,
Hansen was entitled to custody at that point and that Brittain
was in direct violation of her obligations under that order.
[17] These undisputed facts entitled Campbell to take at
least two relevant actions under state law. Campbell was sta-
tutorily authorized under state law to take Matthew into pro-
tective custody if “[t]here are conflicting custody orders or
conflicting claims to custody and the parties cannot agree
which party should take custody of the child.” Cal. Penal
Code § 279.6(a)(3) (West 1999). Upon taking Matthew into
protective custody, Campbell further would have been permit-
ted, among other things, to “[r]elease the child to the lawful
custodian of the child . . . .” Id. § 279.6(b)(1). Alternately,
these facts would appear to have provided Campbell with
probable cause that Brittain was engaged in a felony, see Cal.
Penal Code § 278.5 (West 1999), by withholding a child from
a lawful custodian, thus entitling him to arrest her. See
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If
an officer has probable cause to believe that an individual has
committed even a very minor criminal offense in his presence,
he may . . . arrest the offender”); see also Cal. Penal Code
§ 836 (West 2005) (“A peace officer may arrest a person . . .
BRITTAIN v. CAMPBELL 6929
[if] [t]he officer has probable cause to believe that the person
to be arrested has committed a public offense in the officer’s
presence [or the] person arrested has committed a felony,
although not in the officer’s presence.”).
[18] Thus, Campbell had statutory authorization both to
effectuate a transfer of Matthew and to arrest Brittain. In light
of these powers, we hold, as a matter of law, that Campbell’s
actions were not conscience shocking. Indeed, they were
objectively reasonable. See Moreland, 159 F.3d at 371 n.4 (if
an officer’s actions “were objectively reasonable, it follows
that his conduct did not offend the more stringent standard
applicable to substantive due process claims”). Even without
specific statutory authorization to make the transfer, Camp-
bell’s reasonable actions to enforce the state court order,
whose validity was conceded, is not conscience shocking. Nor
does a threat to arrest Brittain change this analysis as Camp-
bell appears to have possessed constitutional and statutory
authorization to arrest her. See Graham, 490 U.S. at 396(“Fourth Amendment jurisprudence has long recognized that
the right to make an arrest or investigatory stop necessarily
carries with it the right to use some degree of physical coer-
cion or threat thereof to effect it”). Because Campbell’s
actions were not shocking, Brittain’s substantive due process
claim fails.5
5
Although not identified by either party, two additional cases from our
sister circuits address somewhat similar circumstances. In Hurlman v.
Rice, the Second Circuit considered a situation in which police officers
effected the transfer of a child, under threat of arrest, from a custodial par-
ent to a parent with visitation rights. 927 F.2d 74, 77-78 (2d Cir. 1991).
The officers did so on the basis of an order to show cause why she should
not be stripped of custody. Id. at 76. Furthermore, while the order in Hurl-
man contained a provision ordering immediate transfer of the child, that
provision had been stricken by a state judge. Id. Holding the dispute to be
primarily factual, the Second Court dismissed the interlocutory appeal for
lack of appellate jurisdiction. Id. at 78-81.
Hurlman is readily distinguishable from the present action. First, the
applicable order was not a state court judgment whose validity was uncon-
6930 BRITTAIN v. CAMPBELL
Brittain’s “conspiracy” evidence does not alter our determi-
nation of reasonableness. Under the Harlow objective reason-
ableness standard, subjective intent is not a relevant inquiry.
See Malley, 475 U.S. at 341 (“Under the Harlow standard . . .
an allegation of malice is not sufficient to defeat immunity if
the defendant acted in an objectively reasonable manner”);
see also Saucier, 533 U.S. at 210 (Ginsburg, J., concurring in
the judgment) (“Underlying intent or motive are not relevant
to the inquiry; rather, ‘the question is whether the officers’
actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them’ ”), quoting Graham, 490
U.S. at 397.
Thus, as long as Campbell’s actions were objectively rea-
sonable, his subjective intent is irrelevant. Brittain’s conspir-
acy allegations all amount to issues of intent, which while
tested, but rather an order to show cause. Furthermore, authorization to
transfer the child immediately had been specifically rejected by a state
court judge. Finally, the police transferred the child from a custodial par-
ent to a non-custodial parent, without any claimed right to physical cus-
tody at that time. Hurlman therefore presents no bar to holding Campbell
acted reasonably.
In Wooley v. City of Baton Rouge, the Fifth Circuit reversed summary
judgment based on qualified immunity in a case involving a police-
ordered transfer of a child. 211 F.3d 913, 927 (5th Cir. 2000). There,
police officers, acting on conflicting custody orders, required a transfer of
a boy from a woman caring for him, under the direction of the mother, to
the paternal grandparents. Id. at 917-18. Both sides produced family court
orders which established their right to custody. Id. at 917. Based on a spe-
cific Louisiana requirement for a civil warrant before transferring a child,
the Fifth Circuit held the officers’ actions were not objectively reasonable
and denied qualified immunity. Id. at 926. Wooley has already been effec-
tively distinguished on the basis of the Louisiana civil warrant requirement
in a case strikingly similar to this present action. See Williams v. Blaisdell,
173 F. Supp. 2d 574, 582 (N.D. Tex. 2001) (holding officer’s actions were
objectively reasonable in ordering transfer of child in visitation dispute
based on court order). Furthermore, California not only lacks such a war-
rant requirement, but affirmatively grants the police the authority to trans-
fer the child to the custodial parent through protective custody.
BRITTAIN v. CAMPBELL 6931
disputed, are not relevant. Brittain’s allegations regarding the
tape recording similarly are not relevant.
Brittain has also alleged that Campbell acted with “hostili-
ty” towards her during the August 21 incident. She asserts
Campbell spoke to her in a “very hostile and condescending
tone” as well as “nasty tone of voice.” However, substantive
due process does not guarantee a pleasant tone of voice or
courteous manner and assertions of hostile tone of voice do
not otherwise transform Campbell’s actions into conscience
shocking conduct.
Finally, Brittain contends that because Campbell’s usual
“policy” was not to order transfer of a child in similar circum-
stances, Campbell’s actions shock the conscience by deviating
from his past practice. At oral argument, Brittain’s counsel
stated that:
The issue is not whether it is unreasonable for a
police officer to look at a court order, and to enforce
it. The issue is whether it was unreasonable for a
police officer who has been in similar circumstances
before, and has adopted a procedure, which is to do
nothing and let the parties resort to the state court
. . ., to decide on this particular occasion to deny my
client . . . that opportunity.
Brittain has not cited any cases to support this proposition.
It is not conscience shocking that an officer would act in a
non-identical fashion in cases presenting similar (though not
identical) factual circumstances. This is especially true when
the alleged “procedure” is formed from five to ten previous
cases, spread over fifteen years, whose facts are not before us.
Campbell need not act with perfect consistency in similar cir-
cumstances to avoid violating the Constitution. The standard
for substantive due process violations is conscience shocking
behavior, not adherence to personal policy.
6932 BRITTAIN v. CAMPBELL
Brittain’s suggestion, if accepted, would also unnecessarily
burden police officers by preventing them from learning on
the job or adapting their procedures to new circumstances.
Substantive due process at most requires reasonable behavior,
not perfect personal consistency. Moreover, the procedures
for domestic relations are properly left to the states to develop
within constitutional limits. See Sosna, 419 U.S. at 404; Wise,
666 F.2d at 1332.
[19] Thus, even assuming that Brittain’s version of the
material facts is correct, she has failed to establish a violation
of substantive due process. Brittain has established neither a
sufficient deprivation of liberty nor conscience shocking con-
duct. The district court therefore erred in denying summary
judgment to Campbell on Brittain’s substantive due process
claim.
IV.
We next turn to Brittain’s procedural due process claim.
The district court applied two child abuse precedents, Ram
and Wallis, to hold that children cannot be removed from their
parent without notice and a pre-deprivation hearing, absent
imminent danger to the child. On appeal, Brittain, citing Ram
and Wallis, urges that “the accepted rule is that an official
may not effectively resolve a disputed custody issue between
a parent and another without following any due process proce-
dures.”6 Although Ram and Wallis both required pre-
6
The concurrence appears to believe that we can resolve this claim on
the basis that Brittain does not undertake a Matthews v. Eldridge analysis
and because “Brittain makes no further effort at describing what process
Officer Campbell owed her, and that is fatal to her procedural due process
claim.” Concur. op. at 6942. However, “it is [the court’s] job, not the
plaintiffs’, to explicate the standard that makes the facts alleged by the
plaintiffs adequate or inadequate to state a claim. [The court] cannot non-
suit them for [its] failure to do so.” See Vieth v. Jubelier, 541 U.S. 267,
301 (2004) (plurality opinion). Thus, we are required to set forth the appli-
cable legal standard for determining whether the state’s actions violate
Brittain’s due process rights.
BRITTAIN v. CAMPBELL 6933
deprivation hearings in child abuse cases, we have already
pointed out that it was erroneous to apply child abuse prece-
dents directly to child custody disputes. Child abuse prece-
dents, while potentially instructive, do not control this case or
dictate the constitutionally required procedures. Because of
the differing nature of child abuse actions, the procedural
safeguards required for resolving custodial disputes will ordi-
narily be less than those required in the child abuse prece-
dents.
[20] “The Fourteenth Amendment’s Due Process Clause
protects persons against deprivations of life, liberty, or prop-
erty; and those who seek to invoke its procedural protection
must establish that one of these interests is at stake.” Wilkin-
son v. Austin, 125 S. Ct. 2384, 2393 (2005). Having held that
Brittain has a protected liberty interest in the “companionship,
care, custody, and management” of her child by virtue of her
visitation rights, we must decide what process Brittain was
due.
Procedural due process claims should not be subject to de
minimis analysis. Unlike substantive due process claims, in
which interests either do or do not give rise to a claim, see
Brown, 722 F.2d at 364 (listing protected interests which will
not give rise to a Section 1983 claim), procedural due process
claims are resolved by balancing tests, where differing inter-
ests can give rise to many differing procedural requirements.
Moreover, Brittain has asserted what process she believes is required—
a pre-deprivation hearing—which is a claim we are required to resolve.
Notably, the district court, whose judgment we are reviewing, also specifi-
cally held that a pre-deprivation hearing was required, absent an emer-
gency.
It is somewhat ironic that the concurrence, which accuses us of underes-
timating the importance of custodial rights, would hold that a claim based
on those rights can be waived in its entirety for failing to use a preferred
method of argumentation.
6934 BRITTAIN v. CAMPBELL
See Wilkinson, 125 S.Ct. at 2395 (“[T]he requirements of due
process are flexible and call for such procedural protections
as the particular situation demands”) (internal quotations, cita-
tion, and punctuation omitted). Compare, e.g., Goldberg v.
Kelly, 397 U.S. 254, 264 (1970) (pre-termination hearing
required before welfare benefits may be discontinued) with
Mathews v. Eldridge, 424 U.S. 319, 349 (1976) (no evidenti-
ary hearing required before termination of disability benefits).
Moreover, an interest may simply be too weak, under the bal-
ancing tests, to require any additional procedures. See, e.g.,
Zakrzewski, 87 F.3d at 1014 (state post-deprivation remedies
to enforce visitation orders were constitutionally sufficient).
Furthermore, many of the reasons to be cautious with sub-
stantive due process are not present in procedural due process.
Procedural due process is not limited to interests which are
“fundamental.” Procedural due process also has not been con-
sidered to raise the same concerns of unbounded discretion
and judicial supremacy.
Having determined Brittain has a protected liberty interest,
we turn to what procedures were constitutionally required.
Mathews provides the applicable test for determining how
much process is due, and directs us to examine:
first, the private interest that will be affected by the
official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the
Government’s interest, including the function
involved and the fiscal and administrative burdens
that the additional or substitute procedural require-
ment would entail.
424 U.S. at 334-35.
Brittain has not alleged any failure of post-deprivation pro-
ceedings. Presumably, Brittain could have petitioned the state
BRITTAIN v. CAMPBELL 6935
court for a clarification of the custody order and a makeup
visitation week. See Cal. Fam. Code §§ 3022, 3028 (West
2004); see In re Marriage of Kreiss, 19 Cal. Rptr. 3d 260,
261-62 (Cal. Ct. App. 2004) (California courts retain continu-
ing jurisdiction to enforce and modify custody orders). Brit-
tain instead challenges the lack of a pre-deprivation hearing
(citing Ram and Wallis) before she could be deprived of one
week of visitation. We must therefore determine whether a
pre-deprivation hearing was required under Mathews.
Under the first part of Mathews, there are three important
private interests at stake. First, there is Brittain’s interest in
being able to enjoy the visitation rights to which she is alleg-
edly entitled under the custody order without interference by
the police. Second, we must consider Hansen’s interest enjoy-
ing the custodial rights to which he is also allegedly entitled.
Finally, we must consider Matthew’s interest.
By requiring a pre-deprivation hearing before any coerced
transfer of a child, we would essentially award the parent then
holding the child with continued custody until the matter
could be adjudicated. The potential exposure of the custodial
parent is therefore greater because that parent has more custo-
dial time to lose. In addition, the liberty interest of the custo-
dial parent is already greater than the parent with visitation
rights. Hansen’s interest, as well as his potential exposure to
erroneous deprivation, is therefore greater in both magnitude
and duration.
Nor is there an overwhelming liberty interest in a single
week of visitation. Cf. Terry, 346 F.3d at 786 (“Losing a sin-
gle day of visitation differs in kind and duration from the
deprivations [in child abuse cases] cited by [plaintiff], which
is significant because the gravity of his loss determines the
process to which he is entitled”) (citations omitted). The
applicable interest here is even less, however. Because the
state courts could provide a makeup week or other relief, Brit-
tain’s liberty interest for this procedural due process analysis
6936 BRITTAIN v. CAMPBELL
is more limited. We must consider Brittain’s interest in having
a particular week of visitation, rather than a makeup week, as
well as her interest in not having any week infringed upon by
the police without a prior hearing. Cf. Mathews, 424 U.S. at
340 (“Since a [social security disability] recipient whose ben-
efits are terminated is awarded full retroactive relief if he ulti-
mately prevails, his sole interest is in the uninterrupted receipt
of this source of income pending final administrative decision
on his claim”). Against this we must weigh Hansen’s interest
in regaining custody, without needing to go though the time
and expense of a full pre-deprivation hearing, where there has
been a potentially wrongful withholding. Brittain’s interest is
therefore limited and substantially outweighed by the interest
of Hansen.
Matthew’s interests do not appear to affect the balance of
interests significantly. Children undoubtedly have an interest
in not being transferred by the police over the objections of
one of their parents. However, children also have an interest
in seeing that the custody schedule set out by the state court
is followed. This is particularly true as custody schedules are
usually adjudicated to be in the best interest of the child. See
Cal. Fam. Code § 3100 (West 2004). Finally, if children are
being wrongfully held by a parent, they have a clear interest
in being returned to the parent who is entitled to physical cus-
tody at the time without additional time-consuming proce-
dures. Matthew’s interests therefore do not appear to weigh
substantially towards or against a pre-deprivation hearing.
Under the second part of Mathews, there would undoubt-
edly be some value to additional proceedings and somewhat
lessened risk of erroneous deprivation. Given the exception-
ally compressed time schedule any pre-deprivation hearing
would require in order to adjudicate the very short periods of
time involved, this value is somewhat limited. We are also
mindful that many custodial disputes will be unambiguously
wrongful withholdings of children, rather than interpretive
disagreements over court orders. In such circumstances, the
BRITTAIN v. CAMPBELL 6937
value of additional procedures and the risk of erroneous depri-
vation are quite minimal and the interest of the parent whose
child is wrongfully withheld is exceptionally great.
Under the third part of Mathews, California’s interest in not
requiring pre-deprivation hearings is significant. The adminis-
trative costs and burdens of a hearing on the merits of a cus-
tody dispute are substantially greater than the interest in a
single week of visitation, especially where that week can be
made up at a later date. Additionally, California’s interest in
enforcing its court judgments is significant. See Duranceau v.
Wallace, 743 F.2d 709, 711-12 (9th Cir. 1984) (suggesting
“strong governmental interest” in “expeditious enforcement of
judgments” and stating that “[a]ny rule that requires hearings
after judgment diminishes the value of judgments and threat-
ens to turn litigation into an endless round of procedures with
no possibility of vindication or ultimate success”) (holding no
pre-deprivation hearing was necessary before the state could
enforce a disputed child support order). This interest would be
significantly diminished if we were to require a hearing
before any enforcement action can be taken. In the present
case, the police have been called out about forty times to
mediate this particular child custody dispute. If even a small
fraction of those disputes were to require hearings, the admin-
istrative burden would be very substantial.
In addition, we are also guided by our sister circuits who
have considered the issue of whether a pre-deprivation hear-
ing is required before visitation can be denied on the basis of
suspected child abuse. Although we believe it erroneous to
apply child abuse precedents directly to this action, such pre-
cedents are instructive. We point out, however, the nature of
the action, with the government acting in an adversarial and
accusatorial role, will often require additional procedures in
child abuse cases. See Santosky, 455 U.S. at 748-70.
The Eighth Circuit has held that there is no requirement of
a pre-deprivation hearing before visitation can be reduced.
6938 BRITTAIN v. CAMPBELL
See Fitzgerald v. Williamson, 787 F.2d 403, 408 (8th Cir.
1986) (visitation reduced based on suspicion of child abuse).
The court in that case held it was sufficient that the parents
could have “petition[ed] the juvenile court for modification of
custody orders at any time.” Id. (citations omitted). Similarly,
in Zakrzewski the court held that the availability of state post
deprivation remedies to enforce visitation orders was constitu-
tionally sufficient. 87 F.3d at 1014 (child custody dispute).
The Seventh Circuit has also held that neither a pre-
deprivation, nor immediate post-deprivation, hearing was con-
stitutionally required where the parent’s interest was only vis-
itation. See Terry, 346 F.3d at 786-87 (suspected child abuse).
Instead, the court held that available state remedies were suf-
ficient. Id. at 787. Finally, the Second Circuit has also held
that there was no clearly established right to a pre-deprivation
hearing before reduction of visitation. See Young v. County of
Fulton, 160 F.3d 899, 903 (2d Cir. 1998) (stating that all
cases to decide issue had found no right to pre-deprivation
hearing).
[21] Guided by these precedents and based on our analysis
under Mathews, we hold that no pre-deprivation hearing was
required before Brittain could be deprived of a week of visita-
tion. The available state procedures were sufficient to satisfy
the requirements of due process.
[22] The states are, of course, free to require pre-
deprivation proceedings by statute, as the state of Louisiana
apparently has. See Wooley, 211 F.3d at 926. California has
not, however, and we hold that California’s procedures did
not violate Brittain’s Fourteenth Amendment rights. Because
Brittain has failed to establish a violation of her procedural
due process rights, there is no need for further inquiry regard-
ing qualified immunity. See Saucier, 533 U.S. at 201. Camp-
bell is entitled to qualified immunity on the procedural due
process claim.
BRITTAIN v. CAMPBELL 6939
V.
Brittain would have us interject burdensome new federal
requirements into a field of law that is virtually the exclusive
province of the states. We will not do so. Nor will we dramat-
ically blur the vital distinctions between child abuse and child
custody precedents.
Brittain’s substantive due process claim fails because she
has not alleged a sufficient deprivation of liberty and because
Campbell’s actions were not conscience shocking. Addition-
ally, the Due Process Clause of the Fourteenth Amendment
did not require a pre-deprivation hearing before Campbell
could enforce the child custody order. Brittain has failed to
show a violation of either her substantive or procedural due
process rights; thus, Campbell is entitled to qualified immu-
nity. See Saucier, 533 U.S. at 201.
REVERSED.
SILVERMAN, Circuit Judge, concurring:
With all due respect, the majority makes this case much
more complicated than it needs to be. We should reverse the
denial of qualified immunity to Deputy Campbell because the
undisputed facts show that he acted reasonably in interpreting
the ambiguous court order and in defusing the domestic dis-
pute to which he had been summoned. It is as simple as that.
I.
Deputy Campbell was called to the scene of a dispute
between warring parents with a child caught in the cross-fire.
In reliance on his interpretation of the custody decree, the
father came to the mother’s house, with bags packed and
loaded in the car, ready to pick up the youngster and com-
6940 BRITTAIN v. CAMPBELL
mence a two-week vacation. In reliance on her interpretation
of the decree, the mother refused to let the boy go. It was to
this volatile situation that Deputy Campbell was called.
As this drama was playing out in the front yard of the
mother’s house, Campbell had to decide in a hurry what to do
to peaceably resolve the situation lest it escalate out of con-
trol, a scenario which is not unheard of in such matters. Both
parties relied on the terms of the custody decree. Although the
court order was not a model of clarity as to who was entitled
to Matthew on the dates in question, Campbell gave the
decree a reasonable interpretation and caused the matter to be
resolved in a civil fashion until the parties could return to
court for clarification of the decree. Even if Campbell were
mistaken in his interpretation, his conduct was exactly the sort
of immediate, on-the-scene judgment by a law enforcement
officer that qualified immunity was intended to protect. See
Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified immu-
nity protects “all but the plainly incompetent or those who
knowingly violate the law”).
Substantive due process protects individuals from arbitrary
deprivations, see Lewis, 523 U.S. at 845, not the conse-
quences of a reasonable, good-faith judgment call like the one
made in this case. As we said in Moreland, 159 F.3d at 371
n.4, if an officer’s actions “were objectively reasonable, it fol-
lows that his conduct did not offend the more stringent stan-
dard applicable to substantive due process claims.” Thus,
whatever the minimum standard of acceptable conduct for law
enforcement officers responding to a dispute between parents
over visitation rights, Campbell’s actions clearly did not fall
below that standard. For this reason, Campbell is entitled to
qualified immunity under the first prong of Saucier — specifi-
cally, the plaintiffs failed to establish that a constitutional
right was violated on the facts alleged. See Saucier, 533 U.S.
at 200 (“[T]he first inquiry must be whether a constitutional
right would have been violated on the facts alleged. . . .”).
BRITTAIN v. CAMPBELL 6941
II.
I write separately also to note a disagreement over another
point. According to the majority, “a single instance of visita-
tion, of a single week in duration,” is not a fundamental right.
(Emphasis in original.) I do not believe that is always true.
Even though a non-custodial parent may have visitation
“only” every other weekend, to some parents that weekend is
the moon and the stars. See, e.g., Brown, 722 F.2d at 364(whether interest is substantial enough to warrant constitu-
tional protection “depends on the security with which it is
held under state law and its importance to the holder”). As a
former state-court trial judge who has presided over thousands
of domestic relations cases, I note that visitation rights are
profoundly important both to non-custodial parents and their
children. They are not afterthoughts; they are integral compo-
nents of custody plans. It is well known that children who
have regular, frequent, and hassle-free visitation with their
non-custodial parents survive the breakup of their parents’
relationship much better than those who do not.
Indeed, the Eighth Circuit’s decision in Zakrzewski actually
refutes the majority’s position that depriving a parent of a
one-week visitation period can never amount to a substantive
due process claim. In that case, the court concluded that the
officer’s conduct in transferring the child to the custodial par-
ent “was within the bounds of reasonableness” and thus dis-
missed the non-custodial parent’s substantive due process
claim. See 87 F.3d at 1014. It necessarily left open the possi-
bility that, under other circumstances, an officer’s conduct in
removing a child from a non-custodial parent absent an emer-
gency or court order may be so arbitrary or unreasonable as
to constitute a due process violation. Id. (“[T]he one-time
interruption of Zakrzewski’s right to visitation in this case
does not amount to a deprivation of liberty.” (emphasis
added)).
Had the decree in this case clearly granted visitation to
Brittain for the date and time in question, I fail to see why a
6942 BRITTAIN v. CAMPBELL
plainly wrongful or malicious deprivation of those rights by
a police officer, in the absence of an emergency or court
order, would not constitute an “abuse of power.” Lewis, 523
U.S. at 846. But that is not the case before us. Because Camp-
bell acted reasonably under the circumstances, there was no
deprivation of a constitutional right. Our inquiry should end
there. See Wilson v. Spain, 209 F.3d 713, 717 (8th Cir. 2000)
(“Since Spain’s acts were objectively reasonable, however, no
violation of the Fourth Amendment occurred, and there was
no ‘deprivation of rights.’ ”).
III.
With respect to her procedural due process claim, Brittain
also contends that in the face of the ambiguous decree, she
had a “right” to expect Campbell to leave Matthew with her
and do nothing at the scene except refer the parties back to
court. She makes a cursory reference to Ram and Wallis to
support that claim, but as the majority correctly points out,
those are cases involving the removal of children from their
homes and their placement in foster care by child protective
services workers, cases that have no relevance here. Brittain
makes no further effort at describing what process Officer
Campbell owed her, and that is fatal to her procedural due
process claim.