FILED NOT FOR PUBLICATION OCT 26 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHEILA GARCIA; CASSANDRA No. 19-55022 GARCIA; C.N.G., a minor, by and through their Guardian Ad Litem, Donald D.C. No. Walker; C.J.G., a minor, by and through 3:15-cv-00189-JLS-NLS their Guardian Ad Litem, Donald Walker,
Plaintiffs-Appellees, MEMORANDUM*
v.
CAITLIN MCCANN; GLORIA ESCAMILLA-HUIDOR; JESUS SALCIDO,
Defendants-Appellants,
and
COUNTY OF SAN DIEGO; SAN DIEGO HEALTH AND HUMAN SERVICES AGENCY; POLINSKY CHILDRENS CENTER; SRISUDA WALSH; MARTHA PALAFOX; LAURA QUINTANILLA; DOES, 1 through 10 Inclusive,
Defendants.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding
Submitted April 16, 2020** Pasadena, California
Before: SCHROEDER and COLLINS, Circuit Judges, and BAYLSON,*** District Judge. Partial Concurrence and Partial Dissent by Judge COLLINS
Defendants-Appellants Caitlin McCann, Gloria Escamilla-Huidor, and Jesus
Salcido, San Deigo County social workers, appeal the district court’s denial of
qualified immunity in this 42 U.S.C. § 1983 action. Plaintiffs include Cassandra
Garcia, her two sisters, and their mother. They contend the children’s warrantless
removal from their parents’ home, Cassandra’s placement in an emergency shelter
rather than the psychiatric inpatient program chosen by her parents, and
Cassandra’s subsequent treatment in the emergency shelter, violated plaintiffs’
Fourth and Fourteenth Amendment rights.
1. It has been well-settled law in this circuit for two decades that authorities
may not remove a child from the parents’ custody without judicial authorization,
unless there is reasonable cause to believe the child is in imminent danger of bodily
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Michael M. Baylson, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. 2 injury or serious harm. See Demaree v. Pederson, 887 F.3d 870, 883 (9th Cir.
2018) (“It is ‘beyond debate,’ . . . that existing Ninth Circuit precedent establishes
that children can only be taken from home without a warrant to protect them from
imminent physical injury or molestation in the period before a warrant could be
obtained”) (citing and discussing Mabe v. San Bernardino County, 237 F.3d 1101,
1108–09 (9th Cir. 2001) and Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir.
2000)). Exigency is a “very limited exception” to the warrant requirement. Wallis,
202 F.3d at 1140. Defendants are entitled to qualified immunity on issue (1) only
if the allegations of abuse are exigent as a matter of law.
Because the record is unclear on whether leaving the children in the home
would have put them at risk of “imminent danger of future harm,” the district court
properly denied qualified immunity on this claim. Mabe, 237 F.3d at 1108.
Several facts, viewed in the light most favorable to Plaintiffs, undermine the
reasonableness of a belief of exigency. First, the only reported incident of abuse in
the home concerned Cassandra, not her sisters. Cf. id. (noting that the evidence of
exigency was “more compelling” where the victim who reported the abuse was still
in danger of harm). Second, Cassandra reported that the incident occurred more
than one month before the sisters’ removal from the home, and there is no evidence
that the abuse was recurring. See id. (holding that exigency was undermined by the
3 fact that the inappropriate touching had stopped in the month after the initial police
report was made). As Defendants note, other facts may support a finding of
exigency, including that it would have taken 24 to 72 hours to procure a warrant
and that Defendants acted promptly after conducting their initial inquiry. As in
Mabe, these factual disputes prevent the conclusion that, as a matter of law,
imminent serious injury justified the warrantless removal of the sisters from their
home. It is up to a jury to determine whether Defendants had “reasonable cause to
believe exigent circumstances existed.” Mabe, 237 F.3d at 1108.
Defendants invoke on appeal only the Supreme Court’s warning, given in
the context of excessive force cases, that we not define the law at too high a level
of generality. See Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018). In this case
however we deal with a specific line of cases that provides “clear notice of the law
to social workers responsible for protecting children from sexual abuse and
families from unnecessary intrusion.” Demaree, 887 F.3d at 884 (citing and
discussing Mabe and Rogers v. Cnty. of San Joaquin, 487 F.3d 1288 (9th Cir.
2007)). Further, “[w]hile the Supreme Court has repeatedly admonished this court
not to define clearly established law at a high level of generality, we need not
identify a prior identical action to conclude that the right is clearly established.”
Ioane v. Hodges, 939 F.3d 945, 956 (9th Cir. 2018) (internal citation omitted).
4 Although there is no case with this precise set of facts, it has been well established
since at least 2000 that social workers “may remove a child from the custody of its
parent without prior judicial authorization only if the information they possess at
the time of the seizure is such as provides reasonable cause to believe that the child
is in imminent danger of serious bodily injury and that the scope of the intrusion is
reasonably necessary to avert that specific injury.” Wallis, 202 F.3d at 1138.
Defendants McCann and Escamillao-Huidor are not entitled to qualified immunity
on plaintiffs’ claim that the sisters should not have been removed without a warrant
on the basis of a single assault that had been reported several days earlier, and had
occurred months before the removal.
2. Plaintiffs’ second set of allegations with respect to Cassandra are that
Defendants placed her in a facility that was contrary to her mother’s wishes and
where she was mistreated. Plaintiffs claim this violated her mother’s rights to
make critical medical decisions for her child. We have recognized the violation of
such a due process guarantee in a situation where officials failed to obtain the
parents’ consent to an invasive medical examination. Wallis, 202 F.3d at 1141.
Yet we have never recognized a due process claim in a situation like the one here,
where the children’s mother asserts that her due process rights were violated
because a child that had been removed from her care was placed in a facility other
5 than one of her choosing. Plaintiffs have thus failed to identify a “case where an
officer acting under similar circumstances . . . was held to have violated” the
Fourteenth Amendment. S.B. v. Cnty. of San Diego, 864 F.3d 1010, 1015–16 (9th
Cir. 2017) (citation omitted). We are thus not dealing with a clearly established
rule that would have put the social workers on notice that their conduct violated the
law. Defendants are entitled to qualified immunity on this claim.
3. Plaintiffs further assert that Defendant Salcido’s alleged failure to respond to
Cassandra’s repeated threats of suicide, after Salcido placed her in the Polinsky
Children’s Center, rose to the level of deliberate indifference to the child’s medical
needs. In this circuit, we have held that “once the state assumes wardship of a
child, the state owes the child . . . reasonable safety and minimally adequate care
and treatment appropriate to the age and circumstances of the child.” Tamas v.
Dep’t of Soc. & Health Servs., 630 F.3d 833, 846 (9th Cir. 2010) (citation omitted).
We have specifically recognized due process violations when instructions of the
child’s treating physician went unheeded, and the resulting failure of the child to
receive adequate care directly harmed the child. Henry A. v. Wilden, 678 F.3d 991,
1001 (9th Cir. 2012). Yet neither of the cases relied upon by plaintiffs involved a
social worker acting under similar circumstances as Defendant Salcido. Plaintiffs’
allegations do not involve ignoring a treating physician’s advice, nor do they
6 involve Salcido’s placement of a child with a dangerous foster parent. Defendant
Salcido is thus entitled to qualified immunity on this claim.
4. The district court properly held there were disputed issues of material facts
precluding the grant of qualified immunity on Plaintiffs’ claim that the warrantless
removal of the children from their parents’ custody was unlawful. On Plaintiffs’
other two claims, however, qualified immunity should have been granted to the
county officials.
AFFIRMED IN PART, REVERSED IN PART, REMANDED.
Each party to bear its own costs.
7 FILED OCT 26 2020 Garcia, et al. v. McCann, et al., No. 19-55022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS COLLINS, Circuit Judge, concurring in part and dissenting in part:
I concur in sections 2 and 3 of the majority’s memorandum disposition, in
which the court (1) partially reverses the district court’s denial of qualified
immunity to Defendants-Appellants Caitlin McCann and Gloria Escamilla-Huidor,
and (2) reverses the district court’s denial of qualified immunity to Defendant-
Appellant Jesús Salcido. But I would also reverse the denial of qualified immunity
on the sole remaining claim against Defendants McCann and Escamilla-Huidor,
which concerns the warrantless removal of the Garcia children. As to that issue, I
therefore respectfully dissent.
1. The majority commits a threshold legal error by erroneously collapsing
the two separate prongs of the qualified-immunity inquiry. “Qualified immunity
shields federal and state officials from money damages unless a plaintiff pleads
facts showing (1) that the official violated a statutory or constitutional right, and
(2) that the right was ‘clearly established’ at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). These are separate prongs, and
although the court has “discretion to decide which of the two prongs of qualified-
immunity analysis to tackle first,” id., it is legally erroneous to merge the two
questions. See Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1048–50 (9th
Cir. 2002). The majority, however, does just that, by framing the ultimate qualified immunity issue (prong two) entirely in terms of the underlying merits of
the constitutional claim (prong one).
Specifically, according to the majority, “Defendants are entitled to qualified
immunity” on the warrantless-removal claim “only if the allegations of abuse are
exigent as a matter of law.” See Mem. Dispo. at 3. That, however, is the standard
for evaluating the merits of the underlying constitutional claim at the summary-
judgment stage—i.e., it is the prong-one inquiry. As the majority itself later
frames the underlying substantive rule that governs the merits, “social workers
‘may remove a child from the custody of its parent without prior judicial
authorization only if the information they possess at the time of the seizure is such
as provides reasonable cause to believe that the child is in imminent danger of
serious bodily injury and that the scope of the intrusion is reasonably necessary to
avert that specific injury.” Id. at 5 (quoting Wallis v. Spencer, 202 F.3d 1126, 1138
(9th Cir. 2000)). But to defeat qualified immunity, a plaintiff must make the
further showing required by prong two, which is that, at the time the defendant
acted, “every reasonable official would understand that what [the defendant] is
doing is unlawful.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)
(simplified). Thus, the relevant question here at prong two is whether, in light of
then-existing precedent, every reasonable official would have recognized that the
information Defendants possessed did not “provide[] reasonable cause to believe
2 that the child[ren] [were] in imminent danger of serious bodily injury.” Wallis,
202 F.3d at 1138. The majority fails to pose, much less answer, that question.
Instead, it purports to deny qualified immunity on the prong-one ground that “the
record is unclear on whether leaving the children in the home would have put them
at risk of ‘imminent danger of future harm.’” See Mem. Dispo. at 3. I agree with
that statement as far as it goes, and for that reason I would not grant summary
judgment based on prong one. But by erroneously framing the qualified immunity
issue in such terms, the majority effectively omits the crucial second step of the
analysis.
2. The majority compounds its error by later stating that the applicable law
has been clearly established, so as to defeat qualified immunity, simply because we
articulated the above-quoted Wallis standard in 2000. See Mem. Dispo. at 5. In
doing so, the majority violates the clear instruction of the Supreme Court, which
“has repeatedly told courts—and the Ninth Circuit in particular—not to define
clearly established law at a high level of generality.” Kisela v. Hughes, 138 S. Ct.
1148, 1152 (2018) (simplified). The mere articulation of the very generally
worded standard in Wallis is not sufficient, without more, to show that Defendants
violated clearly established law. Rather, as explained, the plaintiff must make a
more case-specific showing that “‘the right’s contours were sufficiently definite
that any reasonable official in the defendant’s shoes would have understood that he
3 was violating it.’” Id. at 1153 (emphasis added) (citation omitted). In this sense,
the majority’s over-generalizing of the clearly established law is comparable to its
erroneous collapsing of the two separate prongs of the qualified-immunity inquiry:
in both instances, the majority elides the critical element that the plaintiff must
show that, under then-existing precedent, every reasonable social worker would
have realized that Defendants did not have reasonable cause to believe that the
Garcia children were in imminent danger.
The majority suggests that the Supreme Court’s admonition against defining
clearly established law at a high level of generality is limited to excessive-force
cases, see Mem. Dispo. at 4, but that is wrong. In fact, that same admonition has
been given by the Court in a variety of cases under 42 U.S.C. § 1983 (and even
under 42 U.S.C. § 1985). See, e.g., Wesby, 138 S. Ct. at 590 (false arrest); Ziglar
v. Abbasi, 137 S. Ct. 1843, 1866–67 (2017) (conspiracy under § 1985); City &
Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 613 (2015) (warrantless entry);
Reichle v. Howards, 566 U.S. 658, 665 & n.5 (2012) (First Amendment retaliatory
arrest); Wilson v. Layne, 526 U.S. 603, 615 (1999) (scope of search); Anderson v.
Creighton, 483 U.S. 635, 639 (1987) (warrantless search). More importantly, this
court has already applied this principle to the warrantless removal of children, the
very issue before us:
In July 2008 it was well-settled that a child could not be removed without prior judicial authorization absent evidence that the child was
4 in imminent danger of serious bodily injury. But the Supreme Court has repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality.
Kirkpatrick v. County of Washoe, 843 F.3d 784, 792 (9th Cir. 2016) (simplified).
Under Kirkpatrick, the inquiry must be framed as follows: Defendants are entitled
to qualified immunity unless in 2013 (when Defendants acted) it was “beyond
debate that the confluence of factors” in this case “would not support a finding of
exigency.” Id. at 793. The majority commits legal error in framing the qualified-
immunity question at a higher level of generality than Kirkpatrick allows.
3. Applying the correct qualified-immunity standards, I would reverse the
denial of qualified immunity to McCann and Escamilla-Huidor.
View in the light most favorable to Plaintiffs, the evidence established that
Defendants were aware of the following circumstances at the time that they acted:
that a 16-year-old girl had reported to an initial social worker that her father had
inappropriately fondled her while drunk and that her parents would regularly drink
until vomiting, leaving her to care for her two- and ten-year-old sisters; that the
initial social worker reported that the 16-year-old was tearful and unable to say if
the inappropriate touching had happened previously or to her sisters; that the ten-
year-old sister denied that sexual abuse had happened to her but confirmed that the
parents would drink to the point of vomiting, although “not so much lately”; that,
even though the 16-year-old later claimed that the incident with her father was an
5 isolated accident, the initial social worker had found the 16-year-old’s emotional
earlier account (which professed uncertainty about other incidents) to be credible;
and that a warrant would have taken at least 24 to 72 hours to obtain. I think that,
under then-existing precedent in 2013, it “was not beyond debate that the
confluence of factors set forth above would not support a finding of exigency.”
Kirkpatrick, 843 F.3d at 793. Put another way, it cannot be said that every
reasonable social worker would have recognized in 2013 that these facts did not
support a warrantless removal.
None of the precedents cited by the majority shows that “the state of the law
at the time of [the] incident provided fair warning to the defendant[s] that [their]
conduct was unconstitutional.” Jessop v. City of Fresno, 936 F.3d 937, 940 (9th
Cir. 2019) (emphasis added) (citations and internal quotation marks omitted). The
majority relies primarily on Mabe v. San Bernardino County, 237 F.3d 1101 (9th
Cir. 2001), see Mem. Dispo. at 3–4, but the case is materially distinguishable.
Indeed, the majority concedes two very significant differences between Mabe and
this case. First, “Defendants acted promptly after conducting their initial inquiry,”
see Mem. Dispo. at 4, whereas in Mabe, the social worker delayed for four days
after conducting her investigation and securing evidence corroborating the referral,
thereby casting substantial doubt on the notion that there was an exigency
justifying a warrantless removal. 237 F.3d at 1108. Second, the majority concedes
6 that here “it would have taken 24 to 72 hours to procure a warrant,” see Mem.
Dispo. at 4, whereas the warrant in Mabe could have been procured within “a few
hours.” 237 F.3d at 1108. The only point of commonality that the majority
identifies is its claim that here, as in Mabe, “there is no evidence that the abuse was
recurring.” See Mem. Dispo. at 3. But the absence of affirmative evidence of
continuing abuse is not sufficient to defeat qualified immunity. The question is
whether every reasonable social worker would have concluded that, based on the
uncertain and conflicting statements made by the 16-year-old daughter, there was
no “reasonable cause” to believe that there was imminent danger. 1 Nothing in
Mabe supports the conclusion that the answer to that question is yes.
The majority also cites, but does not analyze, Rogers v. County of San
Joaquin, 487 F.3d 1288 (9th Cir. 2007), and Wallis, 202 F.3d at 1138. See Mem.
Dispo. at 3–5. Neither case is sufficient to defeat qualified immunity here. In
Rogers, the court declined to find an “imminent risk of serious bodily harm” based
on “chronic, ongoing” problems with the children’s health and nourishment when a
warrant could have been secured “within hours.” 487 F.3d at 1295–96. That bears
1 I disagree with the majority’s suggestion that, if there was a risk of sexual abuse, it was limited to the 16-year-old and that qualified immunity should still be denied as to the removal of the other two children. See Mem. Dispo. at 3. It cannot be said that, under the then-existing precedent, every reasonable social worker would have recognized and agreed that, where there has been sexual abuse of one child, the other children can confidently be left in the house with the alleged abuser.
7 no similarity to the situation presented here, where the concern was sexual abuse
and where a warrant would take 24–72 hours to obtain. And Wallis is even further
afield from this case. In Wallis, the issues were whether removal was appropriate
where the officers did not properly investigate the underlying charge—which was
based on a “bizarre” story from an “institutionalized mental patient” about alleged
human sacrifice—and whether the duration of the removal and the application of
the removal to both parents were justified. 202 F.3d at 1138–41. Nothing
comparable is involved here.
Finally, the majority’s reliance on Demaree v. Pederson, 887 F.3d 870, 883
(9th Cir. 2018) (cited at Mem. Dispo. at 3–4), is plainly improper, because that
decision postdates the events in this case. In Kisela, the Supreme Court chastised
this court for similarly relying on a case decided after the incident in question,
because such a decision “could not have given fair notice” to government officials
years earlier and is “of no use in the clearly established inquiry.” 138 S. Ct. at
1154 (citations and internal quotation marks omitted). To the extent that the
majority apparently thinks that it can cite Demaree for its explanation of what the
earlier law was, that too is wrong: the Supreme Court reprimanded us for that as
well in Kisela, holding that we should not have relied on the case even for
“illustrative” purposes. Id.
Because then-existing precedent did not place beyond debate whether there
8 were exigencies justifying Defendants’ warrantless removal of the children, I
conclude that Defendants are entitled to qualified immunity on this issue. I
therefore respectfully dissent from sections 1 and 4 of the memorandum
disposition.