McMurry v. Brunner ( 2022 )

Case: 21-50888 Document: 00516570706 Page: 1 Date Filed: 12/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 7, 2022
No. 21-50888 Lyle W. Cayce
Clerk
Megan Marie McMurry, Individually and as next friend of J.M.;
Adam Seth McMurry, Individually and as next friend of J.M.,
Plaintiffs—Appellees,
versus
Kevin Brunner,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CV-242
Before Higginbotham, Higginson, and Oldham, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge: *
Officer Kevin Brunner removed a child from her home during a child
endangerment investigation. The child and her parents sued Brunner,
claiming the removal violated the child’s Fourth Amendment rights and the
parents’ Fourteenth Amendment rights. Asserting qualified immunity,
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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Brunner moved to dismiss. The district court denied Brunner’s motion. We
affirm.
I.
In October 2018, Megan and Adam McMurry lived in a gated
apartment complex in Midland, Texas with their daughter and son, J.M. and
C.M. Ms. McMurry was a teacher at Abell Junior High School, part of the
Midland Independent School District. Mr. McMurry served in the National
Guard and was then deployed to Kuwait and Syria. J.M. was fourteen years
old and homeschooled online and C.M. was twelve years old and attended
AJHS at the time of the events of this case.
While Mr. McMurry was deployed, Ms. McMurry was away
exploring teaching opportunities in Kuwait from October 25 to October 30,
2018; she arranged for her neighbors, Gabriel and Vanessa Vallejos, to look
after J.M. and C.M., as they had done before when she was away. Ms.
McMurry also arranged for coworkers to take C.M. to school.
The day after Ms. McMurry left, the school counselor scheduled to
drive C.M. to school fell sick and asked an MISD police officer, Alexandra
Weaver, if she could drive C.M. while Ms. McMurry was out of town.
Weaver did not take C.M. to school, but the counselor got another AJHS
faculty member to drive C.M. Meanwhile, Weaver opened an investigation
into the children’s welfare, and told her supervisor, Officer Kevin Brunner,
of her conversation with the counselor. Brunner met in turn with other
faculty members who, while confirming that Ms. McMurry was traveling,
also told Brunner that neighbors were checking on the children.
Weaver meanwhile filed a complaint against Ms. McMurry with the
Texas Department of Family and Protective Services (CPS). Brunner and
Weaver then traveled to the McMurry apartment to conduct a welfare check
on J.M. Brunner asked J.M. when Ms. Vallejos last checked on her and J.M.
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said Ms. Vallejos had been over that morning. 1 The officers told J.M. that
they would be taking her to another location. J.M. texted her father that the
police were at the McMurry apartment.
The officers took J.M. to the apartment complex’s conference room
for further questioning and ordered J.M. not to respond to her father who
repeatedly called and texted her. J.M. told an apartment complex staff
member that she wanted to reach her father, but when the staff member told
the officers this, Brunner refused to let J.M. call her father. Brunner called
Ms. Vallejos and asked her to meet them at AJHS. Brunner and Weaver then
took J.M. to the junior high school in the backseat of their police car. Ms.
Vallejos called J.M., but Brunner told J.M. that she could not take the call.
At the school, Brunner placed J.M. in an office. The Vallejoses came
and spoke to Brunner, stating that they had last seen the children the night
before. The Vallejoses were then allowed to see J.M. and they Facetimed Mr.
McMurry. That afternoon, CPS investigated the status of the children but
found no neglect or unreasonable risk of harm and sent the children home
with the Vallejoses.
Brunner nonetheless continued his investigation and filed probable
cause affidavits on December 2 and 4, 2018, to obtain an arrest warrant for
Ms. McMurry. In January 2020, a jury acquitted Ms. McMurry of the
charges of abandoning or endangering her children.
After the acquittal, the McMurrys sued Brunner under 42 U.S.C.
§ 1983. J.M. asserted that Brunner violated her Fourth Amendment right to
be free from unreasonable seizures. Mr. and Ms. McMurry asserted that
1
Although Brunner later learned that Ms. Vallejos had not checked on J.M. since
the prior evening, this was not known to him when removed J.M. from the apartment.
Brunner acted under the belief that Ms. Vallejos last checked on J.M. that morning.
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Brunner violated their rights to substantive and procedural due process under
the Fourteenth Amendment by taking J.M. from their home. Brunner moved
to dismiss, asserting qualified immunity. 2
The district court concluded that Brunner was not entitled to qualified
immunity as to J.M.’s Fourth Amendment claim and the McMurrys’
Fourteenth Amendment procedural due process claims but found that
qualified immunity protected Brunner from the McMurrys’ substantive due
process claim. Brunner timely appealed.
II.
We review de novo the district court’s denial of the motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). 3 To survive a motion to
dismiss, a plaintiff must plead “enough facts to state a claim to relief that is
plausible on its face.” 4 We accept all facts as pleaded and construe them in
the light most favorable to the plaintiff. 5 “A claim has facial plausibility when
the pleaded factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” 6
III.
“The doctrine of qualified immunity shields officials from civil
liability so long as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” 7
2
Brunner also raised a state statutory defense, which the district court denied.
Brunner did not appeal the denial of his state statutory defense.
3
Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).
4
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
5
Reed v. Goertz, 995 F.3d 425, 429 (5th Cir. 2021) (internal quotation omitted).
6
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
7
Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (internal quotation omitted).
4
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When a defendant asserts qualified immunity at the motion to dismiss stage,
a plaintiff must “have alleged facts sufficient to plausibly show that (1) the
defendant’s conduct violated a constitutional right and (2) the constitutional
right was clearly established at the time of the alleged misconduct.” 8
A.
The removal of J.M. was an unreasonable seizure in violation of the
Fourth Amendment as a reasonable fourteen-year-old would not have
believed she was free to leave when an officer removed them from her home
for questioning while instructing her not to respond to calls from her father. 9
At the time of this alleged constitutional violation, our precedent in Gates v.
Texas Dep’t of Protective & Regul. Servs 10 and Wernecke v. Garcia 11 had clearly
established that an officer could not reasonably remove a child from their
home absent a court order, parental consent, or exigent circumstances.
A right is clearly established if it is sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right at the time of the challenged conduct. 12 Brunner argues that Justice
Kavanaugh’s concurrence in Caniglia v. Strom undermines the clarity of the
established law. 13 A single sentence from a justice’s concurring opinion in
2021 does not erode the notice value of our precedent at the time of the alleged
8
Harmon v. City of Arlington, Texas, 16 F.4th 1159, 1163 (5th Cir. 2021).
9
United States v. Mendenhall, 446 U.S. 544, 554 (1980); see also J.D.B. v. North
Carolina, 564 U.S. 261, 271–77 (2011) (noting that a child’s age must be considered in a
Miranda custody analysis as children are more susceptible to outside pressure).
10
537 F.3d 404, 427–29 (5th Cir. 2008).
11
591 F.3d 386, 398 (5th Cir. 2009).
12
Reichle v. Howards, 566 U.S. 658, 664 (2012).
13
141 S. Ct. 1596, 1605 (2021) (Kavanaugh, J., concurring).
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misconduct three years earlier in 2018. Brunner was on notice to the clearly
established right given Gates and Wernecke.
Brunner had no court order or parental consent; to the contrary, he
prevented J.M. from communicating with her father. Brunner claims exigent
circumstances justified the removal of J.M. But “[e]xigent circumstances in
this context means that, based on the totality of the circumstances, there is
reasonable cause to believe that the child is in imminent danger . . . if [s]he
remains in h[er] home.” 14 The mere possibility of danger arising in the future
is not enough. 15 Accepting the facts as pleaded, we see no indication of any
imminent danger to J.M. At the time of the seizure, J.M. was in her family’s
apartment in a gated complex with staff present and Brunner believed that
Ms. Vallejos had checked on J.M. that very morning. Absent exigent
circumstance, Brunner’s removal of J.M. was an unreasonable seizure that
violated her clearly established Fourth Amendment right.
B.
Brunner invokes the independent intermediary doctrine to argue that
the grand jury’s indictment of Ms. McMurry for a charge of abandoning or
endangering a child establishes that his actions were reasonable. In his brief’s
statement of the issues, Brunner asserted that the actions of the magistrate
and district attorney were also findings by independent intermediaries, but
then failed to develop the argument, only focused on the grand jury, thus
waiving any argument on appeal relating to the magistrate and district
14
Gates, 537 F.3d at 429; see also Roe v. Tex. Dep’t Protective & Regul. Servs., 299
F.3d 395, 407 (5th Cir. 2002) (citing Tenenbaum v. Williams, 193 F.3d 581, 604–05 (2d Cir.
1999)) (holding exigent circumstances exist if there is reason to believe that life or limb is
in immediate jeopardy).
15
See Gates, 537 F.3d at 427 (citing Tenenbaum, 193 F.3d at 594).
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attorney. 16 We address the independent intermediary doctrine only with
regards to the grand jury.
Under the independent intermediary doctrine, a grand jury’s
indictment can shield an officer who violates the Fourth Amendment by
breaking the causal chain, ratifying the reasonableness of the officer’s
actions. 17 To break the causal chain, all the facts must have been presented
to the grand jury. 18 This doctrine applies even if the indictment occurred
after the officer acts and even if no conviction ultimately occurs. 19 However,
where misdirection of the independent intermediary “taints” its decision,
the causal chain remains unbroken. 20
Brunner’s invocation of the independent intermediary doctrine is
unavailing as his probable cause affidavit—presented to the grand jury—
contained information that Brunner did not know when he removed J.M. The
grand jury was presented with information obtained in an investigation that
continued after Brunner removed J.M., namely how long it had actually been
since Ms. Vallejos last checked on J.M. 21 And it is significant that the affidavit
omitted the fact that Mr. McMurry was available and trying to communicate
and Brunner knew this. Given the asymmetry of information presented to the
grand jury and information known to Brunner at the time of the alleged
16
Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“A party who inadequately
briefs an issue is considered to have abandoned the claim.”).
17
Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994), overruled on other grounds by
Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (en banc).
18
Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir. 1988).
19
Buehler v. City of Austin/Austin Police Dep’t, 824 F.3d 548, 554 (5th Cir. 2016).
20
Hand, 838 F.2d at 1428.
21
Brunner believed Ms. Vallejos had been to the apartment earlier that morning
when she had only visited the prior evening.
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misconduct, the indictment of Ms. McMurry did not ratify Brunner’s actions
as reasonable, a conclusion refuted with an acquittal by a fully informed jury.
The independent intermediary doctrine does not apply.
IV.
In child removal cases, the same misconduct that supports a child’s
Fourth Amendment claim can also support a parent’s Fourteenth
Amendment claim to their due process right to be free from interference with
the care, custody, and management of their children. 22 The McMurry
parents brought substantive and procedural due process claims against
Brunner. The district court found that Brunner was entitled to qualified
immunity as to the parents’ substantive due process claim but not their
procedural due process claim. Brunner appeals the denial.
In analyzing parents’ Fourteenth Amendment claims arising from the
removal a child, this Court has said that the same rule from Gates applies: “A
child cannot be removed ‘without a court order or exigent
circumstances.’” 23 There was no court order, parental consent, or exigent
circumstances to justify the removal of J.M. from the family apartment.
Brunner’s actions violated the parents’ right to procedural due process under
the Fourteenth Amendment, law that was clearly established as Gates placed
officials “on notice that they violate procedural due process when they
remove children without a court order or exigent circumstances.” 24 Brunner
22
Romero v. Brown, 937 F.3d 514, 521–23 (5th Cir. 2019).
23
Id. at 521 (quoting Gates, 537 F.3d at 434).
24
Id. at 523 (citing Gates, 537 F.3d at 434). Although Romero was published after
the events at issue here, Romero concluded that Gates clearly established the law in 2008, a
decade prior to Brunner’s actions in 2018. Thus, the law with regards to the Fourteenth
Amendment was clearly established at the time of the misconduct here.
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was not entitled to qualified immunity as to the Fourteenth Amendment
claims at the motion to dismiss stage.
V.
We AFFIRM the district court’s denial of Brunner’s motion to
dismiss on the basis of qualified immunity. Accepting the facts as pleaded,
there was no justification for the actions of Brunner, which violated J.M.’s
clearly established Fourth Amendment right and the McMurrys’ Fourteenth
Amendment rights to procedural due process. The law is clear, where an
officer seeks to remove a child from their home, the officer must secure a
court order, parental consent, or there must be exigent circumstances such
that there is an imminent danger to the child.
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Andrew S. Oldham, Circuit Judge, concurring in the judgment:
In my view, two things differentiate this case from so many other
qualified-immunity appeals that we handle on a weekly basis. First, this case
does not involve a split-second decision by an officer who was trying to
protect the public from violence; rather, according to the complaint, the
officer in this case executed a deliberate and premeditated vendetta on the
McMurry family. And second, the officer in this case used his badge and gun
to interfere with the McMurry’s parental rights. Different parents might
have different reactions to the decisions the McMurrys made. But qualified
immunity provides no defense to an officer who so grossly misuses his
governmental power to interpose himself between parents and their children.
I.
We are reviewing a motion-to-dismiss decision, so we must describe
the facts as plaintiffs plausibly allege them, drawing every reasonable
inference in their favor. See Heinze v. Tesco Corp., 971 F.3d 475, 479 (5th Cir.
2020). At this stage, here’s what we must accept as true:
At the time of the incident, Adam McMurry was serving in the
Mississippi Army National Guard and was stationed abroad in Kuwait.
Megan McMurry was a teacher at Midland Independent School District
(“MISD”), specifically at Abell Junior High School (“AJHS”) campus.
They have two kids: JM (daughter) and CM (son). JM was 14 and CM was
12. JM was homeschooled through an online program; CM attended school
at AJHS, which is the same place Mrs. McMurry taught. The McMurry
family lived in a gated apartment complex in Midland, Texas.
Mrs. McMurry wanted to reunite her family. So in 2018, she applied
for teaching positions in Kuwait. Later that year, she got an interview with an
international school there. She then scheduled a trip to Kuwait for the
interview that would last five days (from October 25 to October 30). During
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the trip, JM and CM would stay in the family’s apartment in Midland, Texas.
Mrs. McMurry made arrangements with her “neighbors”—the Vallejos
family—to take care of the kids. Mrs. McMurry also informed her colleagues
at AJHS about her trip and arranged for coworkers to drive CM to and from
school.
Defendants are Alexandra Weaver and Kevin Brunner. At the time of
the incident, Weaver was a police officer for the school district and was
stationed at AJHS. Brunner was Weaver’s supervisor.
The series of unfortunate events started on October 26, one day into
Mrs. McMurry’s trip. At 8:00 a.m., the coworker who was supposed to take
CM to school asked Officer Weaver to do so because the coworker was sick.
An honest mistake. Who would’ve guessed that Weaver’s reaction would be
this: Weaver, after hearing that Mrs. McMurry was out of town through the
weekend, called Brunner and started an investigation into Mrs. McMurry.
Weaver and Brunner then talked to a couple of Mrs. McMurry’s coworkers
to confirm she was out of town through the weekend. Weaver called Texas
Department of Family and Protective Services (“CPS”).
Instead of investigating further, Weaver and Brunner decided to
conduct a welfare check on JM at the McMurrys’ apartment. (Weaver did
not take CM to school; the coworker got another AJHS faculty member to
drive CM to school.) The officers directed an employee of the apartment
complex to knock on the door, while the officers hid behind him. JM opened
the door and was startled to see police. Brunner asked JM when Mrs. Vallejos
last checked on her, and JM said that Mrs. Vallejos had been over that
morning.
Brunner then told JM that “they were going to take her somewhere
else to talk to her and that she needed to go back inside to change into warmer
clothing.” JM began to cry but reluctantly complied with the officer’s order.
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Weaver then followed JM into the apartment and proceeded to search it.
Weaver found nothing out of the ordinary during this unconstitutional
search.
JM texted her father “Dad, I’m scared. The police are here.” But
Weaver and Brunner took JM to the apartment complex’s conference room
to ask JM some questions anyway. They even ordered JM not to respond to
her father who had been repeatedly calling and texting her. After some
questioning, Brunner and Weaver contacted CPS again. Then they put JM in
the back of their police car and took her to AJHS. Mrs. Vallejos called JM,
but Brunner told JM that she could not take the call. Brunner and Weaver
contacted the Vallejos, and Mrs. Vallejos went to the school to talk to the
officers.
In the afternoon, CPS arrived to investigate. The CPS investigator—
who obviously understands these situations far better than Brunner or
Weaver—then rebuked the officers’ purported concerns. Specifically, CPS
concluded that the “children’s needs were being met, that Ms. McMurry had
made appropriate child care arrangements for the children and for C.M.’s
transportation to school in her absence, that the children were able to respond
to emergencies, that they faced no unreasonable risk of harm, and that there
was no finding of abuse or neglect.” CPS then let the children “leave with
Ms. Vallejos to return to their home.”
You might reasonably think that would be the end of the matter.
Brunner and Weaver had snatched a fourteen-year-old girl from her home,
held her incommunicado, searched her apartment without any form of
suspicion or cause, and held her in the back of a police car and in a school she
did not attend. But after CPS arrived and rebuked the officers, then they
would surely stop.
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Wrong. Brunner pressed a criminal investigation of Mrs. McMurry
for child abandonment and endangerment. This investigation resulted in two
significant consequences. First, when Mrs. McMurry returned to Midland,
the school district put her “on administrative leave without pay pending the
outcome of the ‘current investigation’ of the abandonment of children
complaint.” She was later fired. She “has not worked as a teacher since
October 2018.” Second, on December 4, Brunner sought an arrest warrant.
And he somehow got one. Two days later, Mrs. McMurry “turned herself
into the Midland County Jail,” and she stayed in jail “for 19 hours while the
staff there completed the processing of her bail bond.” She was eventually
acquitted by a jury.
Thereafter, the McMurry family sued, bringing numerous claims. JM
sued Weaver and Brunner for unlawfully seizing her. The parents sued
Weaver for an unlawful search and sued both officers for violating the
parents’ substantive- and procedural-due-process rights. Mrs. McMurry
sued Weaver for defamation and invasion of privacy.
The officers moved to dismiss all claims. The district court granted in
part and denied in part. After the court’s decision, four claims remained:
(1) the parents’ claim for unlawful search against Weaver; (2) JM’s claim for
unlawful seizure against both officers; (3) the parents’ procedural-due-
process claim against both officers; and (4) Mrs. McMurry’s claim for
invasion of privacy against Weaver. Only Brunner timely filed a notice for
interlocutory appeal, so Weaver is not before us.
There are thus two claims on appeal. The first is JM’s claim based on
a violation of her Fourth Amendment rights as incorporated by the
Fourteenth Amendment (“Fourth Amendment claim”). The second is JM’s
parents’ claim based on a violation of their procedural-due-process rights
under the Fourteenth Amendment (“Due Process claim”). We have
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jurisdiction under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530
(1985). Our review is de novo. Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir.
2019).
II.
I first (A) explain my understanding of qualified immunity, which
differs somewhat from the majority’s. I then (B) conclude that Brunner
violated the parents’ procedural-due-process rights under clearly established
law. I then (C) conclude that Brunner violated JM’s Fourth Amendment
rights under clearly established law.
A.
Qualified immunity includes two inquiries. The first question is
whether the officials violated a constitutional right. Jackson v. Gautreaux, 3
F.4th 182, 186 (5th Cir. 2021). The second question is whether the right at
issue was clearly established at the time of the alleged misconduct. Ibid. The
second question has caused some confusion.
Clearly established law is all about fair notice. See Brosseau v. Haugen,
543 U.S. 194, 198 (2004) (per curiam) (Qualified immunity’s “focus is on
whether the officer had fair notice that her conduct was unlawful.”). For
there to be fair notice, the clearly-established-law standard “requires that the
legal principle clearly prohibit the officer’s conduct in the particular
circumstances before him.” District of Columbia v. Wesby, 138 S. Ct. 577, 590
(2018). That is, the “rule’s contours must be so well defined that it is clear
to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Ibid. (quotation omitted). There are generally two different
paths to show this: (1) an on-point case and (2) the obvious-case exception.
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1.
Start with the on-point-case requirement. To show that the law is
clearly established, the plaintiff must identify a Supreme Court decision
before the time of the alleged misconduct that held there was a constitutional
violation on fundamentally or materially similar facts.
There’s a lot packed in there. So let’s break that down. First, the on-
point case must be a Supreme Court decision issued before the alleged
misconduct. See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (“[T]he court
must decide whether the right at issue was ‘clearly established’ at the time of
defendant’s alleged misconduct.” (emphasis added)). The Supreme Court has
never held that circuit precedent can clearly establish the law. See Wesby, 138
S. Ct. at 591 n.8 (“We have not yet decided what precedents—other than our
own—qualify as controlling authority for purposes of qualified immunity.”);
Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (per curiam) (“assuming
that Circuit precedent can clearly establish law for purposes of § 1983”);
Nerio v. Evans, 974 F.3d 571, 576 n.2 (5th Cir. 2020) (“Although we know
the Supreme Court’s decisions can clearly establish the law, the Supreme
Court has never held that our decisions can do the same.”). Until they do, I
would not rely on circuit precedent to deny qualified immunity.
Second, the plaintiff must identify a Supreme Court case with
fundamentally or materially similar facts. See, e.g., Hope v. Pelzer, 536 U.S.
730, 741 (2002) (“Although earlier cases involving fundamentally similar facts
can provide especially strong support for a conclusion that the law is clearly
established, they are not necessary to such a finding. The same is true of cases
with materially similar facts.” (emphases added) (quotation omitted)); White
v. Pauly, 137 S. Ct. 548, 552 (2017) (“The panel majority misunderstood the
‘clearly established’ analysis: It failed to identify a case where an officer
acting under similar circumstances as Officer White was held to have violated
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the Fourth Amendment.”). Identification of such a case ensures that the rule
has been defined with specificity.
Third, the “decision must at least hold there was some violation of the
[relevant] Amendment.” Nerio, 974 F.3d at 575; see also City of Tahlequah v.
Bond, 142 S. Ct. 9, 12 (2021) (per curiam) (“Neither the panel majority nor
the respondent has identified a single precedent finding a Fourth
Amendment violation under similar circumstances. The officers were thus
entitled to qualified immunity.”); White, 137 S. Ct. at 552 (“The panel
majority misunderstood the ‘clearly established’ analysis: It failed to identify
a case where an officer acting under similar circumstances as Officer White
was held to have violated the Fourth Amendment.”).
It makes sense for the plaintiff to have to point to a holding because
“[d]ictum is not law, and hence cannot be clearly established law.” Morrow,
917 F.3d at 875; see also United States v. Vargas-Soto, 35 F.4th 979, 997 (5th
Cir. 2022) (Dicta has “no binding force.”); Wright v. Spaulding, 939 F.3d
695, 700 (6th Cir. 2019) (Thapar, J.) (“[O]nly holdings are binding, not
dicta.”). “And while officers are charged with knowing the results of
[Supreme Court] cases . . . officers are not charged with memorizing every
jot and tittle . . . writ[t]e[n] to explain them.” Morrow, 917 F.3d at 875–76
(quotation omitted).
It also makes sense for that holding to be a constitutional violation.
That’s because the best way for a reasonable officer to understand a
constitutional rule’s contours is when it’s applied to
materially/fundamentally similar facts that result in a holding of a violation.
It’d be difficult to say that facts are materially or fundamentally similar if the
result in case X is no violation but the result in case Y is a violation. The
difference in outcome shows that the facts are fundamentally/materially
different, not similar.
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In sum, to show that the law is clearly established, the plaintiff must
identify a Supreme Court decision issued before the time of the alleged
misconduct that held there was a constitutional violation on fundamentally
or materially similar facts.
2.
The other path is the obvious-case exception. This exception has
benefits but often-insurmountable burdens.
Benefits first. As best I understand it, the obvious-case exception
excuses the on-point-case requirement. In other words, a plaintiff always
must point to a Supreme Court decision issued before the time of the alleged
misconduct holding a violation of the constitutional right with fundamentally
or materially similar facts unless he satisfies the obvious-case exception. See,
e.g., Rivas-Villegas, 142 S. Ct. at 8 (“In an obvious case, these standards can
clearly establish the answer, even without a body of relevant case law.”
(quotation omitted)); Wesby, 138 S. Ct. at 590 (“Of course, there can be the
rare ‘obvious case,’ where the unlawfulness of the officer’s conduct is
sufficiently clear even though existing precedent does not address similar
circumstances.”); Salazar v. Molina, 37 F.4th 278, 285 (5th Cir. 2022) (“It’s
true Hope established that a plaintiff need not identify an on-point case to
overcome qualified immunity when a violation is ‘obvious.’”). The plaintiff
may instead rely on “general statements of the law” from a Supreme Court
decision to show that the officer had “fair and clear warning.” Kisela v.
Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam) (quotation omitted). Put
another way, the plaintiff may rely on general statements to show that “the
statutory or constitutional question [is] beyond debate.” Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011).
But to get that benefit, the plaintiff must meet a heavy burden. The
Supreme Court recently made clear that for the obvious-case exception,
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there are two necessary conditions: (1) “particularly egregious facts” and
(2) “no evidence” that the official’s actions “were compelled by necessity
or exigency.” Taylor v. Riojas, 141 S. Ct. 52, 54 (2020) (per curiam); cf.
Kentucky v. King, 563 U.S. 452 (2011) (explaining that reactions from police-
created exigencies are not split-second decisions). 1
B.
Under the above framework, the McMurrys have shown that
(1) Brunner violated their procedural-due-process rights and (2) this is such
an obvious case, on egregious facts, involving no exigency beyond the one
Brunner himself created, that Brunner had ample fair notice of his personal
liability.
1.
Start with the violation. The Fourteenth Amendment provides that
no State may “deprive any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV, § 1. The “standard analysis”
is “two steps.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam).
“We first ask whether there exists a liberty or property interest of which a
person has been deprived, and if so we ask whether the procedures followed
by the State were constitutionally sufficient.” Ibid. Both are obviously met
here.
1
Such a result makes sense. When an officer has to make a split-second reaction,
the clearly-established-law standard is extra rigorous: “[T]he law must be so clearly
established that—in the blink of an eye, in the middle of a high-speed chase—every
reasonable officer would know it immediately.” Morrow, 917 F.3d at 876; see also Gonzalez
v. Trevino, 42 F.4th 487, 507 (5th Cir. 2022) (Oldham, J., dissenting) (suggesting that
officers who do not make split-second decisions “should not get the same qualified-
immunity benefits that cops on the beat might get”).
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a.
The McMurrys obviously have a fundamental liberty interest. It’s
well-established that parents have a “fundamental right . . . to make decisions
concerning the care, custody, and control of their children.” Troxel v.
Granville, 530 U.S. 57, 66 (2000). As Justice Alito put it: “In our society,
parents, not the State, have the primary authority and duty to raise, educate,
and form the character of their children.” Mahanoy Area Sch. Dist. v. B. L. by
& through Levy, 141 S. Ct. 2038, 2053 (2021) (Alito, J., concurring). 2 The
2
See also, e.g., Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925) (discussing “the
liberty of parents and guardians to direct the upbringing and education of children under
their control”); Meyer v. Nebraska, 262 U.S. 390, 400 (1923); Prince v. Massachusetts, 321
U.S. 158, 166 (1944); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (“The history and
culture of Western civilization reflect a strong tradition of parental concern for the nurture
and upbringing of their children. This primary role of the parents in the upbringing of their
children is now established beyond debate as an enduring American tradition.”); Stanley v.
Illinois, 405 U.S. 645, 651 (1972) (“The rights to conceive and to raise one’s children have
been deemed essential, basic civil rights of man, and rights far more precious than property
rights.” (quotation omitted)); Parham v. J. R., 442 U.S. 584, 602 (1979) (“Our cases have
consistently followed that course; our constitutional system long ago rejected any notion
that a child is the mere creature of the State and, on the contrary, asserted that parents
generally have the right, coupled with the high duty, to recognize and prepare their children
for additional obligations.” (quotation omitted)); Espinoza v. Montana Dep’t of Revenue, 140
S. Ct. 2246, 2261 (2020) (“Drawing on enduring American tradition, we have long
recognized the rights of parents to direct the religious upbringing of their children.”
(quotation omitted)); Michael H. v. Gerald D., 491 U.S. 110, 123–24 (1989) (“Our decisions
establish that the Constitution protects the sanctity of the family precisely because the
institution of the family is deeply rooted in this Nation’s history and tradition.”); M.L.B.
v. S.L.J., 519 U.S. 102, 116 (1996) (“Choices about marriage, family life, and the upbringing
of children are among associational rights this Court has ranked as of basic importance in
our society, rights sheltered by the Fourteenth Amendment against the State’s
unwarranted usurpation, disregard, or disrespect.” (quotation omitted)); Brown v. Ent.
Merchs. Ass’n, 564 U.S. 786, 795 n.3 (2011) (“Most of his dissent is devoted to the
proposition that parents have traditionally had the power to control what their children
hear and say. This is true enough.”); id. at 834 (Thomas, J., dissenting) (“The history
clearly shows a founding generation that believed parents to have complete authority over
their minor children and expected parents to direct the development of those children.”).
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Supreme Court has squarely held that age-old liberty interest is protected by
the procedural guarantee of the Due Process Clause. See, e.g., Santosky v.
Kramer, 455 U.S. 745, 753–54 (1982).
Officer Brunner obviously deprived the McMurrys of their liberty
interest. JM’s parents ordered JM to continue her homeschooling (via online
instruction) on October 26 (a weekday) while Mrs. McMurry was in Kuwait.
By staying in the McMurrys’ apartment during school hours, JM was
following her parents’ instruction. And while JM was in her parents’
apartment acting lawfully, she was in her parents’ custody. By removing JM
from the apartment, Brunner forced JM to violate her parents’ entirely lawful
instruction and thus deprived the parents of their right to custody and control
of their daughter. Even more, Brunner stopped JM’s father from further
directing his daughter when Brunner prevented JM from answering his calls
for no conceivable reason. Prong one is thus easily satisfied.
b.
The McMurrys also did not receive the process they were due. In fact,
they received no process whatsoever. No ex parte court order, no warrant, no
notice, no hearing. Nothing. Surely, the McMurrys had a right to at least some
predeprivation process before their child was snatched from their home.
The Supreme Court has repeatedly explained that “[t]he right to prior
notice and a hearing is central to the Constitution’s command of due
process.” United States v. James Daniel Good Real Prop., 510 U.S. 43, 53
(1993); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)
(“An essential principle of due process is that a deprivation of life, liberty, or
property be preceded by notice and opportunity for hearing appropriate to
the nature of the case.” (quotation omitted)). Admittedly, there are “some
exceptions to the general rule requiring predeprivation notice and hearing,
but only in extraordinary situations where some valid governmental interest
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is at stake that justifies postponing the hearing until after the event.” James
Daniel, 510 U.S. at 53 (quotation omitted); see also Gilbert v. Homar, 520 U.S.
924, 930 (1997) (“This Court has recognized, on many occasions, that where
a State must act quickly, or where it would be impractical to provide
predeprivation process, postdeprivation process satisfies the requirements of
the Due Process Clause.”). For this reason, the Supreme Court has held that
“[u]nless exigent circumstances are present, the Due Process Clause
requires the Government to afford notice and a meaningful opportunity to be
heard before seizing real property.” James Daniel, 510 U.S. at 62; see also
Connecticut v. Doehr, 501 U.S. 1, 18 (1991) (“[B]y failing to provide a
preattachment hearing without at least requiring a showing of some exigent
circumstance, clearly falls short of the demands of due process.”). 3
If predeprivation process is required for property unless there is an
exigency, then the liberty interest here requires at least the same, if not more.
After all, a “parent’s desire for and right to the companionship, care,
custody, and management of his or her children is an interest far more precious
than any property right.” Santosky, 455 U.S. at 758–59 (emphasis added)
(quotation omitted); see also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty.,
452 U.S. 18, 27 (1981) (“This Court’s decisions have by now made plain
beyond the need for multiple citation that a parent’s desire for and right to
the companionship, care, custody and management of his or her children is
an important interest that undeniably warrants deference and, absent a
powerful countervailing interest, protection.” (quotation omitted)).
Therefore, unless Brunner establishes an exigency, the McMurrys’
procedural-due-process rights were violated.
3
Brunner did not get a court order of any kind, so I need not discuss whether an ex
parte court order is sufficient process. The only question is whether the McMurrys had a
right to any process.
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Brunner cannot come close to establishing such an exigency. The
mere fact a 14-year-old is home alone cannot possibly justify immediately
removing the teenager from the home. At the time Brunner seized JM, he
knew JM had been without adult supervision for less than a day. JM answered
the door, squelching any concern that she was already seriously injured. And
nothing from JM’s appearance indicated that she was at risk of imminent
injury.
Moreover, Brunner’s colleague (Weaver) performed an unlawful
search of the apartment and found nothing indicating that JM was in any
danger—let alone imminent danger. If it was really Brunner’s “decision to
prioritize the confirmation of [JM’s] safety over the continuance of the
investigation,” as he claims, then at least at that point, Brunner received the
very confirmation he prioritized. Instead, he continued to deprive the
McMurrys of their liberty interest without justification. For example, after
receiving the confirmation, Brunner took JM to AJHS, even though by his
own admission, he did so in substantial part for his own “convenience” and
to solve a “logistical problem.” Blue Br. 8 (quoting ROA.76 ¶ 33);
ROA.508; Blue Br. 29.
Brunner in his brief tries to smuggle in safety concerns he obviously
didn’t have. To begin with, seven of Brunner’s eight purported reasons for
seizing JM were not even facially exigent. And the eighth purported reason
does not pass the straight-face test: Brunner feigns concern that JM was at
risk of “self-harm” because JM was crying and was worried her mother was
in trouble. See Blue Br. 30. Besides the briefing, there is nothing in the record
to suggest Brunner had this concern—let alone that he had it before he made
the decision to remove JM from the apartment. He offers no reason to think
JM would commit “self-harm” simply because she was crying. He offers no
connection between his purported concern about “self-harm” to JM’s
mother. Plus, if Brunner really thought JM was considering “self-harm”
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because of her mother, he would’ve let JM talk to her father—who was
repeatedly calling and texting her. And never mind that all of the fourteen-
year-old’s tears were created by Brunner’s heavy-handedness.
In short, Brunner did precisely what the Supreme Court has forbade:
“[T]he Due Process Clause does not permit a State [or one of its officers] to
infringe on the fundamental right of parents to make child rearing decisions
simply because a state judge [or officer] believes a better decision could be made.”
Troxel, 530 U.S. at 72–73 (emphasis added). Brunner simply thought his idea
was better than the one the parents made. Prong two is thus met.
2.
Next, clearly established law. The Supreme Court has not decided
many cases on parents’ rights to procedural due process. And I see none
finding a violation on materially similar facts. So the McMurrys must show
that this is an obvious case to pass prong two. They do.
First, as explained above, there’s no evidence of necessity or exigency
compelling Brunner to make a split-second reaction. See supra, at 7. No
officer could reasonably have believed that JM was at risk of serious injury
any time in the near future. And obviously, neither Brunner himself nor any
member of the public faced any danger whatsoever.
Second, the facts here are particularly egregious. Weaver performed
an illegal search in front of her supervisor (Brunner). And instead of settling
for one constitutional violation (the search), Brunner went on to commit two
more (unlawfully seizing JM and violating the McMurrys’ due-process
rights). And after taking custody of JM, Brunner prevented JM from talking
to her father and the Vallejos for a significant amount of time. All while JM
was crying and confused. Then CPS told Brunner that his safety concerns
were baseless. And still, inexplicably, Brunner persisted and pushed for
criminal charges against Mrs. McMurry. Like CPS, a jury of Mrs.
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McMurry’s peers squarely rejected Brunner’s charges. But the damage was
already done: Mrs. McMurry was already fired, was already prevented from
teaching again, and had already spent 19 hours in jail.
Finally, the constitutional question is beyond debate. The Supreme
Court has clearly held that for property, the Due Process Clause requires
predeprivation process unless there is an exigency. The Court has also clearly
held that a parent’s liberty interest is far greater than any ordinary property
interest. There was no exigency beyond the one Brunner created on his own.
So it’s beyond debate that the Due Process Clause required some
predeprivation process here, and the McMurrys got none.
C.
Finally, JM’s Fourth Amendment claim. The Fourth Amendment
protects “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV; see also Mapp v. Ohio, 367 U.S. 643, 655 (1961)
(incorporating the Fourth Amendment against the States). Under clearly
established law, Brunner violated JM’s Fourth Amendment rights.
On appeal, all agree that Brunner seized JM the moment she opened
the door. That’s when Brunner ordered JM to put on warmer clothes,
Brunner declared that he was going to take her elsewhere for questioning, and
JM began complying with Brunner’s order. And all agree that unless there
were exigent circumstances, that seizure was unreasonable.
There’s no evidence of exigent circumstances to justify Brunner’s
seizure of JM. Brunner claims that there were exigent circumstances because
(1) it was reasonable to believe that JM was in danger of serious injury and
(2) it was reasonable to act when he did. See Brigham City v. Stuart, 547 U.S.
398, 403 (2006) (“One exigency obviating the requirement of a warrant is the
need to assist persons who are seriously injured or threatened with such
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injury. . . . Accordingly, law enforcement officers may enter a home without
a warrant to render emergency assistance to an injured occupant or to protect
an occupant from imminent injury.”). Even assuming it was reasonable for
Brunner to believe JM was at risk of serious injury when he arrived at the
apartment complex, it was obviously unreasonable for him to seize JM when
he did. Brunner seized JM the moment she opened the door. He did not ask
JM any questions before the seizure. For a seizure of JM to be reasonable at
that moment, there’d have to be some evidence to show, not just a risk of
danger, but an imminent risk. And for the same reasons above, Brunner
cannot come even close to showing an imminent risk. See supra, at 7.
The law is also clearly established under the obvious-case exception.
There’s no evidence of exigency, the facts are particularly egregious, and the
law is beyond debate. See supra, at 7, 10–11. 4
For these reasons, I concur in the judgment rejecting Brunner’s
qualified-immunity defense.
4
The independent-intermediary doctrine also provides no help to Brunner. Under
that doctrine, “the chain of causation between the officer’s conduct and the unlawful arrest
‘is broken only where all the facts are presented to the grand jury, or other independent
intermediary where the malicious motive of the law enforcement officials does not lead
them to withhold any relevant information from the independent intermediary.’” Winfrey
v. Rogers, 901 F.3d 483, 497 (5th Cir. 2018) (quoting Buehler v. City of Austin/Austin Police
Dep’t, 824 F.3d 548, 554 (5th Cir. 2016)). It beggars belief that Brunner could demand child
abandonment and endangerment charges while omitting the facts that (1) Mr. McMurry
was available and eagerly trying to reach his daughter and (2) Brunner himself was the one
who prevented McMurry from doing so.
25