Jamie Kirkpatrick v. County of Washoe ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMIE KIRKPATRICK, individually, No. 12-15080
and as the natural father and legal
guardian of B.W., a minor, D.C. No.
Plaintiff-Appellant, 3:09-cv-00600-
ECR-VPC
v.
COUNTY OF WASHOE; AMY OPINION
REYNOLDS, WCDSS social worker;
ELLEN WILCOX, WCDSS social
worker; LINDA KENNEDY, WCDSS
social worker,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., District Judge, Presiding
Argued and Submitted En Banc June 22, 2016
San Francisco, California
Filed December 9, 2016
Before: Sidney R. Thomas, Chief Judge, and Alex
Kozinski, Diarmuid F. O’Scannlain, Ronald M. Gould,
Johnnie B. Rawlinson, Carlos T. Bea, Mary H. Murguia,
Morgan B. Christen, Paul J. Watford, Andrew D. Hurwitz,
and Michelle T. Friedland, Circuit Judges.
2 KIRKPATRICK V. CTY. OF WASHOE
Opinion by Judge Murguia;
Concurrence by Judge Christen;
Partial Concurrence and Partial Dissent by
Judge Friedland;
Dissent by Judge Kozinski
SUMMARY*
Civil Rights
The en banc court affirmed in part and reversed in part
the district court’s summary judgment and remanded in a
42 U.S.C. § 1983 action against the County of Washoe and
County social workers alleging violations of the Fourth and
Fourteenth Amendment arising from the warrantless
removal of plaintiff’s biological two-day old daughter from
the custody of her mother.
The en banc court affirmed the district court’s grant of
summary judgment to the defendants on plaintiff’s claim that
they violated his Fourteenth Amendment rights by seizing
the child without due process because plaintiff had no
enforceable parental rights at the time of her removal.
The en banc court affirmed the district court’s grant of
summary judgment to the social workers on the daughter’s
Fourth Amendment claim. Although the social workers
should have obtained a warrant, their constitutional obligation
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KIRKPATRICK V. CTY. OF WASHOE 3
to do so was not clearly established, and they were therefore
entitled to qualified immunity on this claim.
The en banc court reversed the district court’s summary
judgment and remanded on the daughter’s claim against
Washoe County because plaintiff presented sufficient
evidence to raise a genuine issue of material fact regarding
whether the County maintained a policy of unconstitutionally
seizing children in non-exigent circumstances.
Concurring, Judge Christen, joined by Judge Hurwitz,
agreed with the results reached by the majority but wrote
separately to address what the court described as the unlikely
possibility that the child’s mother might unexpectedly
abscond with the child.
Concurring in part and dissenting in part, Judge Friedland,
joined by Chief Judge Thomas, agreed with the majority’s
opinion as to municipal liability but dissented from its
affirmance of summary judgment on the claim against the
individual defendants. In Judge Friedland’s view, qualified
immunity should be denied and summary judgment entered
for plaintiff on the Fourth Amendment claim.
Dissenting in part, Judge Kozinski, joined by Judges
O’Scannlain, Rawlinson and Bea, and by Judge Watford with
respect to Part 2, agreed that the social workers were entitled
to qualified immunity and joined that part of the opinion. But
Judge Kozinski could not agree that the social workers
committed a constitutional violation, nor that the County
could be liable for a policy of unconstitutional conduct under
Monell v. Dep’t of Soc. Servs. of N.Y.
4 KIRKPATRICK V. CTY. OF WASHOE
COUNSEL
David J. Beauvais (argued), Oakland, California; Jeffrey
Friedman (argued) and William R. Kendall, Reno, Nevada;
for Plaintiff-Appellant.
Herbert B. Kaplan (argued), Deputy District Attorney;
Richard A. Gammick, District Attorney; Reno, Nevada; for
Defendant-Appellee County of Washoe.
Brian M. Brown (argued) and Kevin A. Pick, Thorndal
Armstrong Delk Balkenbush & Eisinger, Reno, Nevada, for
Defendants-Appellees Amy Reynolds, Ellen Wilcox, and
Linda Kennedy.
OPINION
MURGUIA, Circuit Judge:
This appeal arises from Washoe County social workers’
warrantless removal of a two-day-old child from the custody
of her mother, who had a history of drug abuse and whose
two other children had been previously placed in the care of
the Washoe County Department of Social Services (“DSS”).
The biological father subsequently brought suit under
42 U.S.C. § 1983 against the social workers and the County,
claiming the removal of his daughter violated the Fourth and
Fourteenth Amendments. We have jurisdiction under
28 U.S.C. § 1291, and we affirm in part the district court’s
grant of summary judgment in the defendants’ favor, reverse
in part, and remand for further proceedings.
KIRKPATRICK V. CTY. OF WASHOE 5
BACKGROUND
The following facts are not in dispute. On July 15, 2008,
Rachel Whitworth gave birth to a daughter, B.W.,1 via
cesarean section at a hospital in Reno, Nevada. B.W. was
born five weeks premature. Whitworth admitted to nursing
staff that she used methamphetamine throughout her
pregnancy, including as recently as two days prior. B.W.
tested positive for methamphetamine at birth. At the time,
Whitworth was unemployed and living with a friend. She
had recently self-admitted to a drug rehabilitation program
but left after three days.
Whitworth informed the hospital that she had two other
children who were already in the custody of DSS, and
volunteered the name of the social worker managing their
case, Chondra Ithurralde. After B.W. was born, the hospital
contacted Ithurralde, who noted that a permanent plan to
terminate Whitworth’s parental rights for her other children
had been approved by a court due to her failure to comply
with the DSS case plan, her lack of appropriate housing, and
her demonstrated inability to care for her children. Ithurralde
also advised placing a protective hold on B.W. to prevent her
from being discharged. The hospital typically honors DSS
hold requests as a courtesy, but it is not legally obligated to
do so. The hold did not prevent Whitworth from interacting
with B.W. while they were in the hospital together. B.W.
remained in the room with Whitworth, who failed to feed the
infant on schedule and to change her diapers.
1
The Court refers to B.W., a minor, only by her initials to protect her
privacy.
6 KIRKPATRICK V. CTY. OF WASHOE
The next day, Ithurralde visited the hospital with DSS
social worker Ellen Wilcox. Wilcox interviewed Whitworth,
and informed her of the hold and that a protective custody
hearing had been scheduled for the following day. Until the
hearing, DSS planned to place B.W. in the same foster home
as her two half-siblings. Wilcox’s supervisor, Linda
Kennedy, directed Wilcox to take B.W. when the hospital
released her. On July 17, 2008, the hospital discharged two-
day-old B.W. into DSS’s care. DSS did not attempt to obtain
a warrant before assuming custody of B.W.
On July 18, the family division of Nevada’s Second
Judicial District Court held a protective custody hearing at
which Whitworth participated by phone from the hospital.
The court determined that B.W. should remain in protective
custody due to Whitworth’s ongoing drug use, finding
reasonable cause to believe that continuation in Whitworth’s
care was contrary to B.W.’s welfare. Following the hearing,
Whitworth made no contact with her attorney or DSS. On
July 28, 2008, DSS filed a petition alleging that B.W. was a
child in need of protection. Whitworth failed to attend any of
the subsequent adjudicatory or dispositional hearings. DSS
attempted to locate Whitworth but was unable to find her.
Plaintiff-Appellant Jamie Kirkpatrick was present at the
hospital when Whitworth gave birth to B.W., although he did
not know at the time whether he was B.W.’s biological father,
nor did he sign an affidavit of paternity. Kirkpatrick first
learned of DSS’s involvement soon after Wilcox took custody
of B.W. on July 17, 2008. He left his contact information
with Wilcox for the purpose of scheduling a paternity test to
determine whether he was B.W.’s biological father.
Kirkpatrick also advised DSS that he was moving to Elko,
Nevada. Kirkpatrick did not attend the protective custody
KIRKPATRICK V. CTY. OF WASHOE 7
hearing on July 18, 2008, but the court ordered a paternity
test at his request. The test revealed that Kirkpatrick is indeed
B.W.’s biological father.
Kirkpatrick visited B.W. twice in the Fall of 2008, and
expressed an interest in reunification at a six-month
permanency hearing held in January 2009. After the hearing,
Kirkpatrick returned to Reno and began visiting B.W. more
frequently. He continued to maintain his visits, employment,
and housing over the next year. In June 2009, B.W.’s foster
family determined that they were no longer able to care for
B.W. and her half-siblings, and the children were transferred
to a different foster home. Kirkpatrick became concerned
about B.W.’s care there, and after an incident during which
B.W. suffered a large bruise on her forehead Kirkpatrick
began advocating more strongly that B.W. should be placed
with him. On December 31, 2009, B.W. was reunified with
Kirkpatrick.
In October 2009, Kirkpatrick brought suit under
42 U.S.C. § 1983 against Washoe County and DSS workers
Ellen Wilcox, Linda Kennedy, and Amy Reynolds—another
supervisor—for removing B.W. from Whitworth without a
warrant. In the operative complaint—the Second Amended
Complaint (“SAC”)—Kirkpatrick alleged one cause of action
against the social-worker defendants and another cause of
action against the County, both on behalf of “Plaintiff,” in the
singular. The SAC also stated that “Plaintiff is the father and
legal guardian of the minor child, [B.W.],” and requested
damages because “[B.W.’s] constitutional right to be with her
parents was violated.”
The district court granted the defendants’ motion for
summary judgment. The district court first determined that
8 KIRKPATRICK V. CTY. OF WASHOE
Kirkpatrick had asserted only claims on his own behalf under
the Fourth and Fourteenth Amendments. Accordingly, the
district court found that Kirkpatrick had not demonstrated
that the defendants violated his constitutional rights because
only B.W. suffered a potential Fourth Amendment violation,
and Kirkpatrick had not established parental rights as of the
date of the challenged seizure that could give rise to a
Fourteenth Amendment claim. Finding that Kirkpatrick had
failed to prove a constitutional violation, the court also
entered judgment in favor of Washoe County. This appeal
followed.
DISCUSSION
Section 1983 provides a remedy for violations of rights
secured by the Constitution by persons acting under the color
of state law. 42 U.S.C. § 1983. However, the doctrine of
qualified immunity shields individual officers “from liability
for civil damages insofar as their conduct [did] not violate
clearly established . . . constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan,
555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). Municipalities and other local
governmental units are “persons” subject to suit under
§ 1983, but to prevail on a claim against a municipal entity
for a constitutional violation, a plaintiff must also show that
his or her injury is attributable “to official municipal policy
of some nature.” Monell v. Dep’t of Soc. Servs. of N.Y.,
436 U.S. 658, 691 (1978).
Kirkpatrick’s claims against the social workers and
Washoe County are addressed, in turn, below.
KIRKPATRICK V. CTY. OF WASHOE 9
I.
We apply a two-prong analysis in qualified immunity
cases, under which summary judgment is improper if,
resolving all disputes of fact and credibility in favor of the
party asserting the injury, (1) the facts adduced show that the
officer’s conduct violated a constitutional right, and (2) that
right was “clearly established” at the time of the violation.
Saucier v. Katz, 533 U.S. 194, 201 (2001). Thus, even if
Kirkpatrick demonstrates that there is a question of fact as to
whether the social workers violated his or B.W.’s
constitutional rights, the workers are entitled to qualified
immunity unless the law at the time of B.W.’s removal in
2008 clearly established the unconstitutionality of their
conduct.
A.
Two provisions of the Constitution protect the parent-
child relationship from unwanted interference by the state:
the Fourth and the Fourteenth Amendments.2 First, parents
“have a well-elaborated constitutional right to live” with their
children that “is an essential liberty interest protected by the
Fourteenth Amendment’s guarantee that parents and children
will not be separated by the state without due process of law
except in an emergency.” Wallis v. Spencer, 202 F.3d 1126,
2
“Where a particular Amendment provides an explicit textual source
of constitutional protection against a particular sort of government
behavior, that Amendment, not the more generalized notion of substantive
due process, must be the guide for analyzing these claims.” County of
Sacramento v. Lewis, 523 U.S. 833, 842 (1998). Therefore, because the
Fourth Amendment provides a bulwark against unreasonable seizures,
children who have been “seized” must pursue their claims under the
purview of that specific constitutional provision.
10 KIRKPATRICK V. CTY. OF WASHOE
1136 (9th Cir. 1999); accord Mabe v. San Bernardino Cty.,
Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir.
2001); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997).
Second, the Fourth Amendment safeguards children’s “right
. . . to be secure in their persons . . . against unreasonable . . .
seizures” without a warrant, U.S. Const. amend. IV, although
we similarly recognize an exception to the warrant
requirement where the exigencies of the situation are so
compelling that a warrantless seizure is objectively
reasonable under the Fourth Amendment, see Rogers v.
County of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007).
Therefore, we have said that the tests under the Fourth and
Fourteenth Amendment for when an official may remove a
child from parental custody without a warrant are equivalent.
Wallis, 202 F.3d at 1137 n.8.
i.
We consider first Kirkpatrick’s Fourteenth Amendment
claim against the DSS workers. The parental right secured by
the Fourteenth Amendment “is not reserved for parents with
full legal and physical custody.” James v. Rowlands,
606 F.3d 646, 651 (9th Cir. 2010); see also Burke v. Cty. of
Alameda, 586 F.3d 725, 733 (9th Cir. 2009) (holding that
non-custodial parents have a reduced liberty interest in the
companionship, care, custody, and management of their
children). At the same time, however, “[p]arental rights do
not spring full-blown from the biological connection between
parent and child.” Lehr v. Robertson, 463 U.S. 248, 260
(1983) (quoting Caban v. Mohammed, 441 U.S. 380, 397
(1979) (Stewart, J., dissenting)) (emphasis omitted).
Judicially enforceable interests arising under the Fourteenth
Amendment “require relationships more enduring,” which
reflect some assumption “of parental responsibility.” Id.
KIRKPATRICK V. CTY. OF WASHOE 11
(internal quotation marks omitted). It is “[w]hen an unwed
father demonstrates a full commitment to the responsibilities
of parenthood by coming forward to participate in the rearing
of his child,” that “his interest in personal contact with his
child acquires substantial protection under the due process
clause.” Id. at 261 (internal quotation marks and alteration
omitted). Until then, a person with only potential parental
rights enjoys a liberty interest in the companionship, care, and
custody of his children that is “unambiguously lesser in
magnitude.” James, 606 F.3d at 651 (quoting Brittain v.
Hansen, 451 F.3d 982, 992 (9th Cir. 2006)).
When the seizure of B.W. occurred, Kirkpatrick’s due
process rights concerning B.W. were negligible. Whitworth
informed Kirkpatrick that he might be the father just prior to
giving birth to B.W., but told him that there was “a possibility
it could be someone else’s as well.” Kirkpatrick
acknowledged that he “did not know” whether he was the
father and that there were “possibly other candidates.” At the
time, Kirkpatrick lived and worked several hours away in
Elko, and although he was present for B.W.’s birth, he
returned to Elko immediately thereafter. He did not attend
the initial protective custody hearing held two days after
B.W. was born. Kirkpatrick remained unsure whether he was
B.W.’s biological father until the results of the court-ordered
genetic test confirmed his paternity. Before then, Kirkpatrick
had minimal contact with Whitworth or B.W., and no
responsibility—financial or otherwise—for either’s care.
Consequently, Kirkpatrick was not a parent to B.W. in her
first few days of life in the constitutional sense, and his
substantive rights were not violated when the social workers
placed her in protective custody without a warrant.
12 KIRKPATRICK V. CTY. OF WASHOE
ii.
This brings us to B.W.’s Fourth Amendment claim. The
district court construed the SAC as stating claims only on
behalf of Kirkpatrick. We disagree. As noted above, the
SAC alleged that “[B.W.’s] constitutional right to be with her
parents was violated.” Later, Kirkpatrick also alleged that
“Defendants . . . acted under color of state law to deprive
Plaintiff, as described herein, of constitutionally protected
rights, including, but not limited to: . . . (d) the right to be free
from unreasonable searches and seizures; . . . [and] (f) the
right to be with her parents.” Moreover, the defendants
moved for summary judgment on the merits of B.W.’s Fourth
Amendment claim and have thus not been prejudiced by any
linguistic imprecision on Kirkpatrick’s part in drafting the
SAC. Accordingly, we conclude that Kirkpatrick sufficiently
asserted a violation of B.W.’s Fourth Amendment rights to
apprise the defendants that Kirkpatrick sought to adjudicate
her claims in addition to his own. The district court erred in
granting summary judgment to the defendants on the grounds
that the SAC did not provide adequate notice of B.W.’s
Fourth Amendment claim, and we address this theory of relief
and the concomitant issue of qualified immunity for the first
time on appeal. See Moreland v. Las Vegas Metro. Police
Dep’t, 159 F.3d 365, 369 (9th Cir. 1998) (“We may affirm
the district court’s judgment on any ground finding support
in the record, even if it relied on the wrong ground or
reasoning.”).
Under the Fourth Amendment, government officials are
ordinarily required to obtain prior judicial authorization
before removing a child from the custody of her parent.
However, officials may seize a child without a warrant “if the
information they possess at the time of the seizure is such as
KIRKPATRICK V. CTY. OF WASHOE 13
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.
In Rogers v. County of San Joaquin, we clarified that
seizing a child without a warrant is excusable only when
officials “have reasonable cause to believe that the child is
likely to experience serious bodily harm in the time that
would be required to obtain a warrant.” 487 F.3d at 1295
(citing Mabe, 237 F.3d at 1108) (emphasis added). Rogers
concerned a social worker’s removal of two children—ages
three and five—from their home eighteen days after receiving
an anonymous report that the children displayed signs of
severe neglect. See Rogers, 487 F.3d at 1291. The report
alleged that the children were not toilet-trained, that the
parents locked the children in their rooms at night, that the
children were not receiving medical or dental care, that the
home was dirty and maggot-infested, and that the children
had access to unsecured guns. Id. Child Protective Services
(“CPS”) classified the case as a non-emergency, one that only
necessitated a response within ten days. Id. But after
eventually observing the children in the home and talking to
their parents, a CPS worker immediately removed the
children without seeking a warrant. Id. at 1292–93.
We began in Rogers from the settled premise that social
workers violate the Fourth Amendment by removing children
absent a warrant or exigent circumstances. Id. at 1294.
Under that standard, we found that none of the allegations of
neglect in Rogers were sufficiently serious to justify the
children’s removal. See id. at 1294–95. Bottle rot,
malnourishment, and disorderly home conditions do not
present an imminent risk of serious bodily harm. Id. at 1295.
14 KIRKPATRICK V. CTY. OF WASHOE
Furthermore, the “official’s prior willingness to leave the
children in their home militate[d] against a finding of
exigency.” Id. We observed that “[s]erious allegations of
abuse that have been investigated and corroborated usually
give rise to a ‘reasonable inference of imminent danger
sufficient to justify taking children into temporary custody’
if they might again be beaten or molested during the time it
would take to get a warrant,” but concluded that the chance
of grave harm befalling the Rogerses’ children during the
“few hours” the social worker believed it would have taken
to request a warrant was very low—so low as to “not
establish reasonable cause to believe that the children were in
immediate danger.” Id. at 1294–95.
Rogers thus makes clear that when social workers
investigating suspected abuse or neglect can reasonably
obtain a warrant without significantly risking serious bodily
harm to the child in question, the Fourth Amendment
mandates that they do so. This conclusion finds support in
long-standing Fourth Amendment precedent. See, e.g.,
Mincey v. Arizona, 437 U.S. 385, 394 (1978) (finding “no
exigent circumstances” supporting a warrantless search
because “[t]here was no indication that evidence would be
lost, destroyed, or removed during the time required to obtain
a search warrant”); Michigan v. Tyler, 436 U.S. 499, 509
(1978) (“[A] warrantless entry by criminal law enforcement
officials may be legal when there is compelling need for
official action and no time to secure a warrant.”); United
States v. Echegoyen, 799 F.2d 1271, 1279 n.5 (9th Cir. 1986)
(“Exigent circumstances necessarily imply that there is
insufficient time to get a warrant.”); United States v. Good,
780 F.2d 773, 775 (9th Cir. 1986) (“Exigent circumstances
alone, however, are insufficient as the government must also
show that a warrant could not have been obtained in time.”).
KIRKPATRICK V. CTY. OF WASHOE 15
This rule is the logical corollary to the Constitution’s
proscription of warrantless seizures absent exigent
circumstances; if the state had time to obtain a warrant, it
stands to reason that there can be no “exigent circumstance.”
Accordingly, under Rogers, the social workers here
lacked cause to forgo a warrant if they had adequate time to
pursue one through the ordinary judicial process without
risking B.W.’s well-being. We hold that Kirkpatrick has
raised a genuine dispute as to whether B.W. was in such
imminent danger of serious bodily injury that no warrant was
necessary. Whitworth’s methamphetamine abuse did not
pose a direct threat to B.W. while both mother and daughter
remained in the hospital, where nurses were supervising all of
B.W.’s medical needs. Nor did Whitworth’s unemployment
or lack of a stable place to live justify the social workers’
actions. “[R]eliance on factors so closely related to economic
status as a justification for removal would border on the
unconstitutional.” Rogers, 487 F.3d at 1296. In addition,
although B.W.’s age may have rendered her more vulnerable
to the harms of neglect if it were to occur, the undisputed
evidence belies any contention that B.W. was in jeopardy of
neglect in the maternity ward of the hospital, which
Kennedy—a DSS supervisor—considered to be a safe
environment. Wilcox, the social worker in charge of B.W.’s
case, similarly confirmed that there was no danger to B.W.
“[b]etween the time the hold was put on the child in the
hospital and the time just before [she] left the hospital.”
According to Kennedy’s deposition testimony, the only
potential “imminent risk” facing B.W. at the time that Wilcox
removed her from Whitworth’s custody was that B.W. “could
die if she goes home with a mother who’s high on drugs and
forgets to feed her.” But Whitworth was recovering from a
16 KIRKPATRICK V. CTY. OF WASHOE
cesarean section and had demonstrated no resistance to the
social workers’ intervention: Whitworth even volunteered her
case worker’s contact information to hospital staff and
remained in the hospital at the time of the protective custody
hearing the day after B.W.’s removal. At DSS’s request, the
hospital also put a hold on B.W. Accordingly, the unlikely
possibility that Whitworth might unexpectedly abscond with
B.W. did not justify dispensing with the warrant requirement.
See Rogers, 487 F.3d at 1295 (“So remote a risk does not
establish reasonable cause to believe that the children were in
immediate danger.”). A rational jury presented with this
evidence could find that B.W. was under no immediate threat
of serious physical injury, and, therefore, that the social
workers violated her Fourth Amendment rights by removing
her from her mother under non-exigent circumstances.
B.
We therefore turn to the second prong of the qualified
immunity analysis, which requires Kirkpatrick and B.W. to
demonstrate that this right was “clearly established.” See
Kennedy v. City of Ridgefield, 439 F.3d 1055, 1065 (9th Cir.
2006).
“To determine whether a right is clearly established, the
reviewing court must consider whether a reasonable [official]
would recognize that his or her conduct violate[d] that right
under the circumstances faced, and in light of the law that
existed at that time.” Id. While “[s]pecific binding precedent
is not required to show that a right is clearly established,”
Calabretta v. Floyd, 189 F.3d 808, 813 (9th Cir. 1999)
(citation omitted), “existing precedent must have placed the
statutory or constitutional question beyond debate,” Ashcroft
v. al-Kidd, 563 U.S. 731, 741 (2011). “Our task is to
KIRKPATRICK V. CTY. OF WASHOE 17
determine whether the preexisting law provided the
defendants with ‘fair warning’ that their conduct was
unlawful.” Kennedy, 439 F.3d at 1065 (quoting Flores v.
Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1137 (9th Cir.
2003)). “This exacting standard gives government officials
breathing room to make reasonable but mistaken judgments
by protect[ing] all but the plainly incompetent or those who
knowingly violate the law.” City & Cty. of San Francisco v.
Sheehan, 135 S. Ct. 1765, 1774 (2015) (internal quotation
marks omitted).
In July 2008 it was well-settled that a child could not be
removed without prior judicial authorization absent evidence
that the child was in imminent danger of serious bodily
injury. See Rogers, 487 F.3d at 1297 (recognizing that the
law has been clearly established in the Ninth Circuit since
Mabe, if not earlier); see also Mabe, 237 F.3d at 1106;
Wallis, 202 F.3d at 1138; Ram, 118 F.3d at 1310. 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.” al-Kidd, 563 U.S. at 742 (citation
omitted). “Qualified immunity is no immunity at all if
‘clearly established’ law can simply be defined as the right to
be free from unreasonable searches and seizures.” Sheehan,
135 S. Ct. at 1776.
In 2008, it was not beyond debate that the confluence of
factors set forth above would not support a finding of
exigency. No Supreme Court precedent defines when a
warrant is required to seize a child under exigent
circumstances. And although the Supreme Court has
assumed that circuit precedent can be a dispositive source of
clearly established law, see id.; Carroll v. Carman, 135 S. Ct.
348, 350 (2014); Reichle v. Howards, 132 S. Ct. 2088, 2094
18 KIRKPATRICK V. CTY. OF WASHOE
(2012), none of the cases from this court explain when
removing an infant from a parent’s custody at a hospital to
prevent neglect, without a warrant, crosses the line of
reasonableness and violates the Fourth Amendment. See
Rogers, 487 F.3d at 1291–93 (finding that malnourishment
and bottle rot were not “imminent dangers” to two toddlers);
Mabe, 237 F.3d at 1108 (denying summary judgment where
social worker seized a 14-year-old girl who accused her
stepfather of sexual abuse without a warrant); Wallis,
202 F.3d at 1138 (holding that there was a genuine factual
dispute over the “imminency” of the danger to a child based
on allegations that the child’s father intended to ritually
sacrifice him to Satan the following week). In fact, very few
cases from any circuit have addressed what constitutes
exigent circumstances in a case that remotely resembles this
one. Cf. Kia P. v. McIntyre, 235 F.3d 749, 761–63 (2d Cir.
2000) (holding that a hospital’s retention of a newborn who
tested positive for methadone at birth was reasonable under
the Fourth Amendment). No matter how carefully a
reasonable social worker had read our case law, she could not
have known that seizing B.W. would violate federal
constitutional law. Without that fair notice, the social
workers in this case are entitled to qualified immunity.
II.
Our inquiry, however, is not over. Summary judgment on
B.W.’s Fourth Amendment claim against Washoe County is
still inappropriate if we can trace the social workers’
unconstitutional removal to a systemic failure to train DSS
officers to obtain a warrant before seizing a child to
investigate abuse or neglect.
KIRKPATRICK V. CTY. OF WASHOE 19
To prevail on a claim against a municipal entity for a
constitutional violation, a plaintiff must show that an
official’s action that caused the plaintiff’s injury was pursuant
“to official municipal policy of some nature.” Monell,
436 U.S. at 691. To do so, a plaintiff must go beyond the
respondeat superior theory of liability and demonstrate that
the alleged constitutional deprivation was the product of a
policy or custom of the local governmental unit. Connick v.
Thompson, 563 U.S. 51, 60 (2011). Under this standard, a
municipal defendant can be held liable because of a failure to
properly train its employees only if the failure reflects a
“conscious” choice by the government. Bd. of the Cty.
Comm’rs v. Brown, 520 U.S. 397, 407 (1997); City of Canton
v. Harris, 489 U.S. 378, 389 (1989). In other words, the
government’s omission must amount to a “policy” of
deliberate indifference to constitutional rights. Harris,
489 U.S. at 389. A plaintiff can satisfy this requirement by
showing that “the need for more or different training is so
obvious, and the inadequacy so likely to result in the violation
of constitutional rights, that the policymakers . . . can
reasonably be said to have been deliberately indifferent to the
need.” Id. at 390.
“‘[D]eliberate indifference’ is a stringent standard of
fault, requiring proof that a municipal actor disregarded a
known or obvious consequence of his action.” Connick,
563 U.S. at 61 (quoting Brown, 520 U.S. at 410). Satisfying
this standard requires proof that the municipality had “actual
or constructive notice that a particular omission in their
training program” will “cause[] [municipal] employees to
violate citizens’ constitutional rights.” Id. (quoting Brown,
520 U.S. at 410). In turn, to demonstrate that the
municipality was on notice of a constitutionally significant
gap in its training, it is “ordinarily necessary” for a plaintiff
20 KIRKPATRICK V. CTY. OF WASHOE
to demonstrate a “pattern of similar constitutional violations
by untrained employees.” Id. at 62.
Contrary to the dissent’s suggestion, evidence of a pattern
of constitutional violations is not always required to succeed
on a Monell claim. See Dissent Op. at 36–37, 38. The
Supreme Court has reaffirmed that “in a narrow range of
circumstances” a particular “showing of ‘obviousness’ can
substitute for the pattern of violations ordinarily necessary to
establish municipal culpability.” Connick, 563 U.S. at 63.
Such a situation is “rare”—“the unconstitutional
consequences of failing to train” must be “patently obvious”
and the violation of a protected right must be a “highly
predictable consequence” of the decision not to train. Id. For
example, the Supreme Court has opined that a single incident
of excessive force, coupled with evidence that a city had
neglected to train its armed officers on the constitutional
limitations on using force against fleeing felons, might
establish that the city manifested deliberate indifference in
training law enforcement. See Harris, 489 U.S. at 390 n.10.
A.
In support of his claim that Washoe County maintained an
unconstitutional practice of seizing children without a warrant
in non-exigent circumstances, Kirkpatrick adduced testimony
from Wilcox and Kennedy that they were wholly unfamiliar
with the process for obtaining a warrant before taking custody
of a child. Wilcox started working at DSS in June of 2007, a
year before she handled B.W.’s case. Yet, Wilcox testified
that she never received training on how to obtain a warrant
during the two years that she was employed by Washoe
County, or that she was instructed that social workers must
obtain a warrant in non-emergency situations. And, although
KIRKPATRICK V. CTY. OF WASHOE 21
Wilcox stated that she was trained on “imminent” danger, she
could not provide detail on what she had been taught. Under
questioning, Wilcox admitted that a hypothetical child in
B.W.’s circumstances was not in imminent danger:
Q: But [a child is] not going to be returned to
his father for four days. Is that imminent
danger?
A: No.
Wilcox also testified that she would likely remove such a
child anyway, and without a warrant:
Q: So what do you do for that child when the
mother insists on returning him to a dangerous
situation and the father insists on getting him
in that dangerous situation, no questions
asked, you have already determined and
everybody agrees it’s a danger?
A: Then we remove the child.
Q: You don’t get a warrant?
A: No.
Q: The child you admitted is not in imminent
danger.
A: No. We don’t get a warrant.
22 KIRKPATRICK V. CTY. OF WASHOE
Q: But would you remove the child even
though the danger may be three or four days
away?
A: Yes.
Wilcox attributed her answer to Washoe County’s unofficial
custom or protocol:
Q: Let me ask you an obvious question. If the
child wasn’t in danger in the hospital and was
there for several days, why didn’t you seek a
warrant before you removed the child from
mom? Is it because you didn’t know you had
to? You weren’t trained on that?
A: It wasn’t the protocol of Washoe County.
No one told me to get a warrant and they
didn’t train me how to go about getting a
warrant.
Q: Or did they even tell you you could get a
warrant?
A: No. They didn’t.
Kennedy—who supervised between five and seven social
workers, including Wilcox—confirmed that it was “not in
[DSS’s] general practice” to obtain a warrant before
removing a child:
Q: Back in July of ’08, did you understand
that there was a distinction between removing
KIRKPATRICK V. CTY. OF WASHOE 23
a child with a court warrant and without a
court warrant?
A. No. I don’t believe at that point we ever
had court warrants . . . .
Q. So your best recollection is that as of July
of ’08, Washoe County Child Protective
Services did not obtain court warrants prior to
the removal of a child in any circumstances?
A: I wouldn’t say in no circumstances. But
not in our general practice. No. There could
be—we had asked for warrants sometimes
when there was like a suspected kidnapping or
something like that where we had some prior
knowledge, let’s say. But generally speaking,
we did not. I don’t recall ever getting a
warrant to go out with one of my investigators
to go out and pick up a child unless it was a
special circumstance.
She elaborated that in cases like B.W.’s, she might have
obtained a warrant “in a rare instance,” but she did not recall
ever doing so:
Q: You mentioned that you have a recollection of
obtaining—of seeking warrants in situations like
kidnappings and things like that. . . . What I’m more
interested in is the case where you’ve gotten a
complaint or a report of some sort of child neglect
that triggers an investigation which leads to
determining that a child needs to be removed. Okay?
That’s the case I’m more interested in. Under those
24 KIRKPATRICK V. CTY. OF WASHOE
kind of circumstances, do you have any knowledge of
ever obtaining a warrant to remove a child under
those type of general circumstances?
A: I do not recollect doing that. No.
Q: So it would be safe to say that in your
career with Washoe County Child Protective
Services you’re not aware of ever obtaining a
warrant to remove a child from a parent?
A: I don’t recollect ever doing that. However,
that is not to say that it could have occurred in
a rare instance that I’m not just recalling. It
was not a general practice ever to get a
warrant.
While discussing the process of removing a child from her
parent without a warrant, Kennedy noted that “Washoe
County has all kinds of policies and procedures for
everything,” and that the “policy[] was never to get warrants”
when removing children:
Q: You stated when a baby or a child is
kidnapped that would be a situation where
you would get a warrant.
A: Generally speaking, yes. That happens
very rarely.
Q: A warrant to remove the child from the
kidnapper or a warrant to arrest the
kidnapper?
KIRKPATRICK V. CTY. OF WASHOE 25
A: A warrant to remove the child. We have
nothing to do arresting people.
Q: So if it’s a kidnapper you get a warrant to
remove it but if it’s a parent you don’t?
A: That’s our policy, was never to get
warrants when we remove children when I
worked as a supervisor.
Q: There was a policy to not get warrants or
there was no policy?
A: There was no policy related to warrants.
B.
The County does not dispute that, at the time of B.W.’s
seizure, it had no policy or procedures for obtaining warrants
before removing children from parental custody, or for
training its social workers to recognize that a warrant may be
required. The lack of a formal policy is not necessarily
unconstitutional if DSS removes children only in cases in
which the removal is justified by exigent circumstances. Cf.
Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (finding
evidence that a city had indemnified an officer in an
excessive force case was not facially unconstitutional and
thus insufficient for municipal liability). Nor does a single
unconstitutional incident, without more, establish that a
municipality failed to provide proper training. City of
Oklahoma City v. Tuttle, 471 U.S. 808, 821–24 (1985); cf.
Miranda v. City of Cornelius, 429 F.3d 858, 869 (9th Cir.
2005) (holding that the city incurred no liability under § 1983
based solely on a constitutional violation sustained by the
26 KIRKPATRICK V. CTY. OF WASHOE
plaintiff where the violation occurred in contravention of the
city’s official policy). However, the evidence that the social
workers violated B.W.’s Fourth Amendment rights, in
conjunction with Wilcox and Kennedy’s testimony that the
County had no policy of obtaining warrants before removing
children from parental custody and that it was social workers’
regular practice to remove children regardless of the risk of
imminent bodily harm, raises more than a spectre of
deliberate indifference by Washoe County.3 This is therefore
a case in which the municipality’s “inadequacy [is] so likely
to result in the violation of constitutional rights” that a jury
could reasonably find § 1983 liability without needing a
pattern of violations to find the County culpable. See Harris,
489 U.S. at 390 (holding that the city could be held liable for
failing to train police officers in determining whether
detainees needed medical care because of the likelihood that,
absent proper training, the officers would default on their
constitutional obligations). Given the work performed by
DSS social workers, the need for DSS to train its employees
on the constitutional limitations of separating parents and
children is “so obvious” that its failure to do so is “properly
. . . characterized as ‘deliberate indifference’ to [the]
3
The dissent notes that both Kennedy and Wilcox testified that they
were trained to remove a child only in the presence of imminent danger,
which indicates that the County trains its social workers pursuant to a
lawful policy for removing children from parental custody. See Dissent
Op. at 37. But Wilcox also testified that she could not recall her
“imminent” danger training and admitted that, despite any such training,
she would likely effectuate a warrantless removal of a child who was not
in imminent danger. Further, Wilcox testified that she was never trained
on how to obtain a warrant and Kennedy confirmed that it was generally
not the County’s protocol to obtain a warrant prior to removing a child.
This testimony is sufficient to raise a genuine issue of material fact as to
whether the County maintained a policy of unconstitutionally seizing
children in non-exigent circumstances.
KIRKPATRICK V. CTY. OF WASHOE 27
constitutional rights” of Washoe County families. See id. at
390 & n.10. Accordingly, a question of material fact exists
regarding whether Washoe County maintained an
unconstitutional, unofficial policy. Summary judgment on
this claim is inappropriate.
There is also a question of fact for the jury as to whether
these customs and practices had a “direct causal link” to the
deprivation of B.W.’s Fourth Amendment rights. See id. at
389 (“[A] municipality can be liable under § 1983 only where
its policies are the ‘moving force [behind] the constitutional
violation.’” (quoting Monell, 436 U.S. at 694)). A reasonable
jury could conclude that DSS’s policy of conducting
warrantless seizures of children in non-exigent circumstances
was the moving force behind the warrantless removal of B.W.
from Whitworth’s custody. See Wallis, 202 F.3d at 1143
(concluding that material issues of fact precluded summary
judgment regarding the existence of a municipal custom or
practice of taking children from their homes without adequate
safeguards based on testimony from three detectives who had
seized a child from his home). Consequently, the County is
not entitled to summary judgment.
CONCLUSION
For the foregoing reasons, we affirm the district court’s
grant of summary judgment to the defendants on
Kirkpatrick’s claim that they violated his Fourteenth
Amendment rights by seizing B.W. without due process
because he had no enforceable parental rights at the time of
her removal. We also affirm the district court’s grant of
summary judgment to the social workers on B.W.’s Fourth
Amendment claim; although the social workers should have
obtained a warrant, their constitutional obligation to do so
28 KIRKPATRICK V. CTY. OF WASHOE
was not clearly established, and they are therefore entitled to
qualified immunity on this claim. However, we reverse
summary judgment and remand on B.W.’s claim against
Washoe County because Kirkpatrick has presented sufficient
evidence to raise a genuine issue of material fact regarding
whether the County maintained a policy of unconstitutionally
seizing children in non-exigent circumstances.
AFFIRMED in part; REVERSED in part and
REMANDED. Each party shall bear their own costs on
appeal.
CHRISTEN, Circuit Judge, with whom Circuit Judge
HURWITZ joins, concurring:
I agree with the results reached by the majority:
Kirkpatrick’s claim was correctly dismissed; a reasonable
jury could have found the warrantless seizure of B.W.
violated her constitutional rights but the individual social
workers were entitled to qualified immunity; and the County
was not entitled to summary judgment on the claim that its
policies violated B.W.’s Fourth Amendment rights. I write
separately to address, briefly, what the court describes as “the
unlikely possibility that Whitworth might unexpectedly
abscond with B.W.” Maj. Op. at 16.
In Rogers v. County of San Joaquin, we unequivocally
explained that social workers are required to obtain a warrant
before seizing a child unless there is “reasonable cause to
believe that the child is likely to experience serious bodily
harm in the time that would be required to obtain a warrant.”
487 F.3d 1288, 1294 (9th Cir. 2007). Here, the social
KIRKPATRICK V. CTY. OF WASHOE 29
workers’ testimony makes plain that they gave no thought to
obtaining a warrant, apparently because the County made no
effort to train its social workers on this requirement. The
dissent argues that B.W.’s constitutional rights were not
violated because the County correctly trained its workers to
remove children only in exigent circumstances. See Dissent
Op. at 37. But the record tells us nothing about how long it
might have taken to obtain a warrant and almost nothing
about how likely it was that Whitworth would leave the
hospital before a warrant could be obtained. For example, we
cannot tell whether the social workers’ conversations with
Whitworth caused concern that she might leave. There were
unresolved questions of fact at the summary judgment stage,
but it was known that the informal “hold” DSS requested did
not actually prevent Whitworth from leaving the hospital with
B.W., or giving another adult permission to remove the baby.
If the disputed facts are construed in the light most
favorable to B.W., it must be assumed that it would have been
possible for the social workers to obtain a warrant without
delay. On the other hand, it only takes minutes to walk out of
a hospital. Even if the risk that Whitworth would leave with
B.W. was small, I cannot set aside the possibility that
Whitworth might have done so simply because she was
recovering from a cesarean section. See Maj. Op. at 15–16.
Social workers are entitled to rely on their experience, and at
least one social worker testified that she had seen patients
recovering from cesarean sections leave the hospital
unexpectedly. Compounding the problem, Whitworth had a
poor track record of staying in touch with the social workers
and they knew they had no way to reach her if she left the
hospital.
30 KIRKPATRICK V. CTY. OF WASHOE
Boiled down, it seems to me that the individual social
workers correctly determined that this newborn faced a
catastrophic risk if her mother removed her from the hospital,
(she “could die if she goes home with a mother who’s high on
drugs and forgets to feed her”), and it would only have taken
a few minutes for someone to leave with B.W. The social
workers’ error, if any, was in pegging the likelihood that
B.W.’s mother would leave with her. The social workers
may have jumped the gun, but how much risk were they
required to tolerate with the life of a newborn baby at stake?
I conclude the social workers reasonably refused to gamble
that Whitworth would make the sound decision to leave B.W.
in the hospital. Thus, the applicable standards entitle them to
qualified immunity.
FRIEDLAND, Circuit Judge, with whom THOMAS, Chief
Judge, joins, concurring in part and dissenting in part:
I join the majority’s opinion as to municipal liability but
dissent from its affirmance of summary judgment on the
claim against the individual defendants. An official is liable,
and not entitled to qualified immunity, if her “conduct
violated a clearly established constitutional right.” Pearson
v. Callahan, 555 U.S. 223, 232 (2009). The constitutional
rule that B.W. could not be seized without a warrant absent
imminent danger was clearly established, and it was equally
clear that there was no imminent danger to B.W. On the
Fourth Amendment claim against the social workers, I would
therefore hold that summary judgment to Defendants should
KIRKPATRICK V. CTY. OF WASHOE 31
be reversed and Plaintiff’s cross-motion for summary
judgment should be granted.1
The majority correctly recognizes that the rule of law at
issue here was clearly established at the time: “[A] child
could not be removed without prior judicial authorization
absent evidence that the child was in imminent danger of
serious bodily injury.” Maj. Op. at 17 (citing Rogers v. Cty.
of San Joaquin, 487 F.3d 1288, 1297 (9th Cir. 2007)); see
also Mabe v. San Bernardino Cty., Dep’t of Pub. Soc. Servs.,
237 F.3d 1101, 1106 (9th Cir. 2001) (“Government officials
are required to obtain prior judicial authorization before
intruding on a parent’s custody of her child unless they
possess information at the time of the seizure that establishes
‘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.’” (quoting Wallis v. Spencer, 202 F.3d 1126, 1138
(9th Cir. 2000))). Nevertheless, the majority holds that the
social workers are entitled to qualified immunity because it
was debatable whether B.W. was in imminent danger. I
disagree.
The only conclusion to be drawn from the very record
evidence the majority discusses is that no reasonable social
worker could have believed B.W. was in imminent danger of
serious bodily injury. See Saucier v. Katz, 533 U.S. 194, 207
(2001) (“Fourth Amendment issues [ ] are evaluated for
objective reasonableness based upon the information the
officers had when the conduct occurred.”). As the majority
correctly points out, Whitworth’s methamphetamine abuse
1
Plaintiff filed a cross-motion for summary judgment and has argued
on appeal that it should have been granted.
32 KIRKPATRICK V. CTY. OF WASHOE
could not have reasonably posed a threat to B.W. while both
were in the hospital because, even though hospital staff noted
that Whitworth was apparently not taking adequate care of
B.W., nurses were attending to the newborn’s needs. Maj.
Op. at 15.2 Nor was there any reasonable risk that Whitworth
would abscond with B.W. In the majority’s own words,
“Whitworth was recovering from a cesarean section, and had
demonstrated no prior resistance to the social workers’
intervention[.] . . . [S]he remained in the hospital at the time
of the protective custody hearing the day after B.W.’s
removal [, and] the hospital [had] also put a hold on B.W.”
Maj. Op. at 15–16. “Accordingly,” the majority correctly
concludes, there was only an “unlikely possibility that
Whitworth might unexpectedly abscond with B.W.” Id. at
20. “So remote a risk does not establish reasonable cause to
believe that the child[] [was] in immediate danger.” Rogers,
487 F.3d at 1295.
Indeed, as the majority correctly recognizes, the social
workers expressly admitted that they did not believe B.W.
was in imminent danger at the time they seized her. See Maj.
Op. at 15 (describing Defendant Kennedy’s testimony that the
hospital’s maternity ward is a safe environment and
Defendant Wilcox’s testimony that there was no danger to
B.W. while the hospital’s hold was in place). I am aware of
no contrary testimony that would create a triable issue as to
whether B.W. was in imminent danger. On this record, it is
2
Whitworth’s unemployment and lack of stable housing could not
justify the warrantless seizure because, again as the majority aptly states,
“[r]eliance on factors so closely related to economic status as a
justification for removal would border on the unconstitutional.” Maj. Op.
at 15 (quoting Rogers, 487 F.3d at 1296). Nor did Whitworth’s
unemployment and a lack of stable housing pose an imminent danger to
B.W. while both were in the hospital.
KIRKPATRICK V. CTY. OF WASHOE 33
thus clear that B.W. was not in imminent danger. The social
workers therefore violated B.W.’s clearly established rights
in failing to obtain a warrant before seizing her.
Although it is true that no binding authority has addressed
this exact factual scenario, such specificity is not required for
a constitutional obligation to be “clearly established.” See
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (stating that for a
constitutional right to be clearly established, the “very action
in question” need not have “previously been held unlawful,”
as long as “in the light of pre-existing law the unlawfulness
[is] apparent” (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987))). It was clearly established that a child could not
be seized without a warrant absent imminent danger, and the
inescapable conclusion to be drawn from this record is that no
objective social worker could have believed—and indeed,
these social workers did not believe—that B.W. was in
imminent danger. It follows, therefore, that the social
workers violated B.W.’s clearly established constitutional
rights.
In my view, qualified immunity should be denied and
summary judgment entered for Plaintiff on the Fourth
Amendment claim. I dissent from the majority’s contrary
conclusion.
34 KIRKPATRICK V. CTY. OF WASHOE
KOZINSKI, Circuit Judge, with whom Circuit Judges
O’SCANNLAIN, RAWLINSON and BEA join, and Circuit
Judge WATFORD joins with respect to Part 2, dissenting in
part:
For the reasons explained in my panel dissent, I agree that
the social workers here are entitled to qualified immunity and
join that part of the opinion. But I cannot agree that the social
workers committed a constitutional violation, nor that the
County can be liable for a policy of unconstitutional conduct
under Monell. I therefore dissent from those portions of the
opinion.
1. There Was No Constitutional Violation
The majority acknowledges that Whitworth was a drug
addict who used meth throughout her pregnancy—
transferring it to her baby—and had no job or stable living
situation. Op. at 5, 15. And my colleagues recognize that
“B.W.’s age may have rendered her more vulnerable to the
harms of neglect if it were to occur.” Id. at 15. They even
quote Kennedy testifying that B.W. “could die if she goes
home with a mother who’s high on drugs and forgets to feed
her.” Id. at 15.
The majority dismisses this exigency because Whitworth
remained in the hospital recovering from her c-section “and
had demonstrated no resistance to the social workers’
intervention: Whitworth even volunteered her case worker’s
contact information to hospital staff.” Id. at 15–16. I
disagree with both prongs of the majority’s reasoning.
That Whitworth was recovering from surgery certainly
doesn’t mean she couldn’t leave the hospital on short notice.
KIRKPATRICK V. CTY. OF WASHOE 35
The social workers here testified that moms like Whitworth
“don’t always stay for a few days at the hospital, sometimes
they just leave” even after a c-section, as Judge Christen
notes. See Christen, J., concurring, at 29. It may have been
foolish for Whitworth to do so, but someone who abuses her
body and baby by using meth throughout her pregnancy can
hardly be counted on to calculate danger rationally or avoid
putting herself and her baby at risk.
We may evaluate the risks differently with the benefit of
hindsight, but that is not the test. The test is whether well-
informed social workers on the scene could reasonably
believe that leaving the baby in the mother’s control while
they sought a warrant would put the baby at some risk of
serious bodily injury or death. See Ryburn v. Huff, 132 S. Ct.
987, 992 (2012) (per curiam); Ashcroft v. al-Kidd, 563 U.S.
731, 735–36, 743–44 (2011). I don’t read the majority as
saying that there was no risk of harm to the baby, only that
the risk was small. As Judge Christen aptly notes, “the social
workers reasonably refused to gamble that Whitworth would
make the sound decision to leave B.W. in the hospital.”
Christen, J., concurring, at 30. We are not entitled to second-
guess that judgment.
That the mother was cooperative was no guarantee that
she wouldn’t change her mind. Meth addicts can be volatile.
Because “it only takes minutes to walk out of a hospital,” id.
at 29, and put a baby’s life in danger, any time the social
workers took to get a warrant would be too much. My
colleagues in the majority are willing to risk a baby’s life on
the presumed rational behavior of a woman who treats her
own health and that of her baby with contempt. I can’t agree
that the social workers were unreasonable in taking a
different view. Indeed, they reasonably could have taken the
36 KIRKPATRICK V. CTY. OF WASHOE
mother’s cooperation as consent, which also would have
obviated the need for a warrant.
The test under the Fourth Amendment is reasonableness.
The Supreme Court has “instructed that reasonableness must
be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.”
Ryburn, 132 S. Ct. at 992 (internal quotation marks and
citation omitted). “Judged from the proper perspective of a
reasonable officer forced to make a split-second decision in
response to a rapidly unfolding chain of events,” id., the
social workers here acted reasonably in the difficult
circumstances presented to them. Had they left to get a
warrant, and had the mother departed the hospital with the
baby, they would have had the baby’s life on their
conscience. I cannot blame them for refusing to take that
small—but far from trivial—risk.
2. The County Is Not Liable Under Monell
The majority compounds its error by holding that the
County can be liable for B.W.’s supposedly unconstitutional
removal: “Summary judgment on B.W.’s Fourth Amendment
claim against Washoe County is still inappropriate if we can
trace the social workers’ unconstitutional removal to a
systemic failure to train DSS officers to obtain a warrant
before seizing a child to investigate abuse or neglect.” Op. at
18. But the majority never points to any evidence of a
systemic problem. The only evidence we have is the
experience of the two social workers who were named as
defendants in this case. There is no evidence that the training
these social workers received was typical. The plaintiffs
presented no evidence at all as to the training and guidance
given to the rest of the County’s social workers, or even how
KIRKPATRICK V. CTY. OF WASHOE 37
many of them there were. The experience of these two
individuals could be atypical; two data points aren’t enough
to establish a pattern or policy.
The majority frames this case as one where the
unconstitutional consequences of failing to train were so
“obvious” that the violation of a right was “highly
predictable.” Id. at 20 (quoting Connick v. Thompson,
563 U.S. 51, 64 (2011)); see also id. at 26–27. But the social
workers testified that the County trained them on the law and
instructed them to remove a child only if there were an
imminent risk of harm. So there was training and there was
a standard: “imminent risk to the well being of that child” or
“imminent danger.” According to the evidence, this meant “a
child’s life was in danger”; that a “child would suffer a
serious injury or even possibly death if something wasn’t
done.” That’s the constitutional standard: If there are exigent
circumstances, no warrant is required. It’s not “highly
predictable” that the County’s training would lead to
unconstitutional results.
The majority recognizes that “[t]he lack of a formal
policy is not necessarily unconstitutional if DSS removes
children only in cases in which the removal is justified by
exigent circumstances.” Id. at 25. The majority gets around
that conclusion by finding “it was social workers’ regular
practice to remove children regardless of the risk of imminent
bodily harm.” Id. at 26. As is often the case with appellate
fact-finding, this is a figment.
The majority points to no evidence of a “regular practice”
or even a single other instance of children being removed
when there was no imminent risk of harm. Instead, they rely
on Wilcox’s testimony that “she was trained on ‘imminent’
38 KIRKPATRICK V. CTY. OF WASHOE
danger,” but couldn’t remember the specifics of that training
at a deposition three years later. Id. at 20–21, 26 n.3. So
what? The County is hardly at fault because employees are
unable to give details of their training sessions years later.
The majority also uses a deposition hypothetical—whether
Wilcox would get a warrant to remove a child who will return
in four days to a molesting father—as proof that the County’s
training was insufficient because it didn’t teach the social
workers to get a warrant. Id. at 21–22, 26 n.3. The
hypothetical is totally inapposite here, where even a few
minutes would be enough for Whitworth to leave the hospital
with B.W. and put her life at risk. See supra p. 35. The
County cannot be held liable under Monell based on what an
employee says she would have done in a non-analogous,
hypothetical situation.
But even if the majority’s illusory finding were supported
by the record, it wouldn’t be enough. “A pattern of similar
constitutional violations by untrained employees is
‘ordinarily necessary’ to demonstrate deliberate indifference
for purposes of failure to train.” Connick, 563 U.S. at 62
(emphasis added) (citation omitted). Here, there is no
evidence that the County unconstitutionally removed any
other child because it failed to train social workers on how to
get warrants. The majority derives a pattern from a single
data point.
* * *
The majority gets it almost right. I dissent because, when
life or death are concerned, “almost right” isn’t.