Rexford Kipps, Carol Kipps and Kyle Kipps v. James Caillier, Ray Authement, Nelson J. Schexnayder, Jr. And Nelson Stokley

205 F.3d 203

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 1, 2000
• Docket: 98-30978
• Status: Published

Opinions

ROBERT M. PARKER, Circuit Judge:

Plaintiffs petition the Court for a en banc rehearing of our panel opinion at 197 F.3d 765 (5th Cir.1999). Because we find that plaintiffs raise no arguments that were not adequately considered in the panel opinion, their petition for rehearing en banc is denied.

An issue was raised with respect to the panel majority’s qualified immunity analysis. Specifically, whether a court could assume arguendo the first prong of the analysis — the existence of a constitutionally protected right.¹ Fifth Circuit case law appears to require a court to first answer whether an existing constitutional right has been asserted by a party. See, e.g., Evans v. Ball, 168 F.3d 856, 860 (5th Cir.1999) (“We may not pretermit that first prong but must decide whether Evans has alleged any constitutional violation before we may move to the inquiries under the second prong.”) (citing Quives v. Campbell, 934 F.2d 668, 670 (5th Cir.1991)). Without resolving the question of whether Supreme Court and Fifth Circuit precedent require rigid application of Evans to all qualified immunity situations, we have little trouble finding that a constitutional interest in familial association does, in fact, exist and was clearly established at the time Kipps was fired.

Existence of a Liberty Interest in Familial Association

According to Supreme Court precedent, the Constitution accords special protection to two different types of association, “intimate association” and “expressive association.” See Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984); see also Louisiana Debating and Literary Assoc. v. City of New Orleans, 42 F.3d 1483, 1493-94 (5th Cir.1995). In Roberts, the Court noted that the right to intimate association, the freedom to choose “to enter into and maintain certain intimate human relationships,” is a “fundamental element of personal liberty.” 468 U.S. at 617-18, 104 S.Ct. 3244. At the foundation of this right to intimate association are family relationships:

Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one’s life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with tMse sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty.

Roberts, 468 U.S. at 619-20, 104 S.Ct. 3244 (emphasis added); see also McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th Cir.1994) (“At a minimum, the right of intimate association encompasses the personal relationships that attend the creation and sustenance of a family”) (emphasis added). Supreme Court precedent with respect to intimate association can be synthesized as a continuum with “family relationships” at one end, receiving the most protection, and arms length relationships, like a business acquaintance, at the other end, “remote from the concerns giving rise to this constitutional protection.” Roberts, 468 U.S. at 620, 104 S.Ct. 3244.

Defendants assert that in order to have an actionable claim based on familial association there must be a permanent and involuntary separation between parent and child. In other words, before a party can bring a cognizable claim based on interference with familial association, that relationship at issue must be totally destroyed. Notwithstanding the questionable validity of this position, defendants’ argument misunderstands the nature of plaintiffs’ alleged constitutional injury. Kipps claims that he was fired because of his actual association with his son.² See (Complaint ¶ 16). This is separate and distinct from a claim of state interference with that association.

The importance of the family has been discussed in numerous cases. See, e.g., Lehr v. Robertson, 463 U.S. 248, 258, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (“[T]he relationship of love and duty in a recognized family unit is an interest in liberty entitled to constitutional protection.”); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’ ”) (quoting Kovacs v. Cooper, 336 U.S. 77, 95, 69 S.Ct. 448, 93 L.Ed. 513 (1949) (Frankfurter, J., concurring)); see also Tyson v. New York City Hous. Auth., 369 F.Supp. 513, 520 (S.D.N.Y.1974) (holding that public housing tenants had a cause of action under the right of association when they were threatened with eviction because of acts committed by their adult children who did not live with them).

Although it is clear that “family relationships” are subject to constitutional protection,³ the definitional boundaries that limit the types of associations that constitute “family relationships” are blurred. The case sub judice, however, does not deal with an association on the fringe of the definition for “family relationships.” Indeed, the parent-child relationship lies at the heart of protected familial associations. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”); Morris v. Dearborne, 181 F.3d 657, 671 (5th Cir.1999) (“The constitutional right to family integrity was well established in 1992.”). Our recognition of Kipps’s constitutional right⁴ to familial association with his son (i.e., his right to preserve the integrity of that family relationship) does not take us to the limits that may be imposed on constitutionally protected family relationships.

Kipps’s association with his son deserves at least the same protection as association with members of a union, see Boddie v. City of Columbus, 989 F.2d 745, 750 (5th Cir.1993)(“We conclude that Chief Gale should reasonably have known that firing Boddie for his association with union firemen violated clearly established law.”). Plaintiffs’ claim that Kipps was terminated because his son chose to play football for LSU alleges the impingement of a cognizable constitutionally protected interest.

Objective Reasonableness of Defendants

Although we find that Kipps had a clearly established, constitutionally protected right to familial association with his son, we continue to hold that the defendants’ actions were, under the unique facts of this case, objectively reasonable.⁵ See Kipps, 197 F.3d at 768-70. Therefore, defendants are entitled to qualified immunity for their actions.

Conclusion

Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. No member of the panel nor judge in regular active service of the court having requested that the court be polled on Rehearing En Banc, see Fed. R.App. P. 35; 5th Cir. R. 35, the Petition for Rehearing En Banc is DENIED.

WIENER and PARKER, Circuit Judges, concur in the entirety of this order.

DeMOSS, Circuit Judge, concurs specially.

1 . See, e.g., Kipps v. Caillier, 197 F.3d 765, 768-69 (5th Cir.1999) (‘‘Assuming arguendo that defendants violated Kipps's constitutional liberty interest in familial association, the resolution of this issue turns on whether the defendants’ actions were 'objectively reasonable.’ ”).

2 . The special concurrence focuses on Kyle Kipps’s age as if it makes a difference in the analysis of the issues in this case. If anything, the fact that Kipps could not legally force his son to attend USL, supports the inference that Kipps was fired merely for his association with Kyle.

3 . Laurenzo v. Mississippi High Sch. Activities Assn, 662 F.2d 1117, 1119 (5th Cir.1981) (“The constitutional right generally protecting the family has been recognized for nearly three score years by the Supreme Court.”).

4 . The assertion in the special concurrence that "the Kippses have not alleged violation of a clearly established right” misses the point. Mrs. Kipps and Kyle are unable to bring a constitutional claim under these circumstances. Only Rexford Kipps can properly claim a violation of his right to familial asso-cialion. This explains the use of a singular possessive modifier in the opinion: Kipps's.

5 . Judge DeMoss clearly places no great emphasis on the role recruiting plays in an athletic program. Perhaps his position is influenced by his distinguished tenure at Rice Institute, an institution whose academic repute greatly overshadows its athletic record. We can only point him to the affidavit testimony of Spike Dykes.