Humphries v. County of Los Angeles ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRAIG ARTHUR HUMPHRIES; WENDY  No. 05-56467
DAWN ABORN HUMPHRIES, D.C. No.
Plaintiffs-Appellants, CV-03-00697-JVS
v. ORDER
COUNTY OF LOS ANGELES; LEROY AMENDING
BACA, individually and in his OPINION AND
official capacity as Los Angeles ORDER,
County Sheriff; MICHAEL L. DENYING
WILSON, individually and in his APPELLEE
official capacity as a Detective
and/or Deputy of the Los Angeles  COUNTY OF LOS
ANGELES’
County Sheriff’s Department; PETITION FOR
CHARLES T. ANSBERRY, individually REHEARING AND
and in his official capacity as a REHEARING EN
Detective of the Los Angeles BANC, DENYING
County Sheriff’s Department; BILL APPELLEE BILL
LOCKYER, Attorney General, in his LOCKYER’S
official capacity as Attorney PETITION FOR
General of the State of California, REHEARING AND
Defendants-Appellees. REHEARING EN
 BANC,
563
564 HUMPHRIES v. COUNTY OF LOS ANGELES
 GRANTING
APPELLANTS’
MOTION FOR
CLARIFICATION,
GRANTING IN
 PART
APPELLANTS’
PETITION FOR
REHEARING OR
RECONSIDERATION
AND AMENDED
 OPINION
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted
October 19, 2007—Pasadena, California
Filed November 5, 2008
Amended January 15, 2009
Before: Jay S. Bybee and Milan D. Smith, Jr.,
Circuit Judges, and Richard Mills,* District Judge.
Opinion by Judge Bybee
*The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
HUMPHRIES v. COUNTY OF LOS ANGELES 569
COUNSEL
Esther G. Boynton (argued), Beverly Hills, California, for the
plaintiffs-appellants.
Mark D. Rutter, Carpenter, Rothans & Dumont, Los Angeles,
California; Martin Stein, Alison Turner, Lillie Hsu (argued),
Greines, Martin, Stein & Richland LLP, Los Angeles, Califor-
nia, for the defendants-appellees.
Edmund G. Brown Jr., Attorney General of the State of Cali-
fornia, David S. Chaney, Chief Assistant Attorney General,
James T. Schiavenza, Senior Assistant Attorney General,
Marsha S. Miller, Supervising Deputy Attorney General, Paul
C. Epstein (argued), Deputy Attorney General, State of Cali-
fornia Department of Justice, Office of the Attorney General,
Los Angeles, California, for the defendant-appellee.
Carolyn A. Kubitschek, Lansner & Kubitschek, New York,
New York, for the amicus National Coalition for Child Pro-
tection Reform.
ORDER
The opinion, filed November 5, 2008, slip op. 15041, is
amended as follows:
1. At slip op. 15056, first full paragraph, line 20, replace
“susbstantiated” with “substantiated.”
2. At slip op. 15059 n.8, second full paragraph, line 14 of
the footnote, replace “If the parties provide” with “If a party
provides.”
570 HUMPHRIES v. COUNTY OF LOS ANGELES
3. At slip op. 15062, first full paragraph, line 18, replace
“County’s CACI-related policies” with “County’s and State’s
CACI-related policies.”
4. At slip op. 15084 n.15, line 7 of the footnote, replace
“district court” with “district attorney”; also replace “affect”
with “effect.”
5. At slip op. 15086, second full paragraph, line 31,
replace “very type of liberty interest” with “very type of inter-
ference with a liberty interest.”
6. At slip op. 15094, second full paragraph, line 31, delete
the following: “By failing to do so, LASD’s custom and pol-
icy violated the Humphries’ constitutional rights. Therefore,
we deny the County summary judgment on this issue.” Add
the following:
By failing to do so, it is possible that the LASD
adopted a custom and policy that violated the Hum-
phries’ constitutional rights. However, because this
issue is not clear based on the record before us on
appeal—and because the issue was not briefed by the
parties—we remand to the district court to determine
whether or not the County is entitled to qualified
immunity.
7. At slip op. 15095, line 1, replace “judgment to the
County” with “judgment to the State and the County”
In addition, the panel’s order, filed November 5, 2008,
addressing the parties’ costs is amended to delete “and fees.”
With these amendments, the panel has voted to otherwise
deny appellee County of Los Angeles’ petition for rehearing.
Judge Bybee and Judge Smith have voted to deny the petition
for rehearing en banc, and Judge Mills recommended denying
the petition for rehearing en banc. The full court has been
HUMPHRIES v. COUNTY OF LOS ANGELES 571
advised of the petition for rehearing en banc and no judge has
requested a vote on whether to rehear the matter en banc. Fed.
R. App. P. 35. Appellee County of Los Angeles’s Petition for
Rehearing and Rehearing En Banc is DENIED.
The panel has voted to deny appellee Bill Lockyer’s peti-
tion for rehearing. Judge Bybee and Judge Smith have voted
to deny the petition for rehearing en banc, and Judge Mills
recommended denying the petition for rehearing en banc. The
full court has been advised of the petition for rehearing en
banc and no judge has requested a vote on whether to rehear
the matter en banc. Fed. R. App. P. 35. Appellee Bill Lock-
yer’s Petition for Rehearing and Suggestion for Rehearing En
Banc is DENIED.
With these amendments, the panel has voted to grant appel-
lants’ motion for clarification. Appellant’s Motion for Clarifi-
cation is GRANTED.
With these amendments, the panel has also voted to grant
in part appellant’s petition for rehearing or reconsideration of
the November 5, 2008 order. Appellant’s Petition for Rehear-
ing or Reconsideration of the November 5, 2008 Order is
GRANTED IN PART.
No further petitions for rehearing or rehearing en banc will
be accepted.
OPINION
BYBEE, Circuit Judge:
Appellants Craig and Wendy Humphries are living every
parent’s nightmare. Accused of abuse by a rebellious child,
they were arrested, and had their other children taken away
from them. When a doctor confirmed that the abuse charges
572 HUMPHRIES v. COUNTY OF LOS ANGELES
could not be true, the state dismissed the criminal case against
them. The Humphries then petitioned the criminal court,
which found them “factually innocent” of the charges for
which they had been arrested, and ordered the arrest records
sealed and destroyed. Similarly, the juvenile court dismissed
all counts of the dependency petition as “not true.”
Notwithstanding the findings of two California courts that
the Humphries were “factully innocent” and the charges “not
true,” the Humphries were identified as “substantiated” child
abusers and placed on California’s Child Abuse Central Index
(“the CACI”), a database of known or suspected child abus-
ers. As the Humphries quickly learned, California offers no
procedure to remove their listing on the database as suspected
child abusers, and thus no opportunity to clear their names.
More importantly, California makes the CACI database avail-
able to a broad array of government agencies, employers, and
law enforcement entities and even requires some public and
private groups to consult the database before making hiring,
licensing, and custody decisions.
This case presents the question of whether California’s
maintenance of the CACI violates the Due Process Clause of
the Fourteenth Amendment because identified individuals are
not given a fair opportunity to challenge the allegations
against them. We hold that it does.
I. FACTS AND PROCEEDINGS
A. The Statutory Scheme
1. The Child Abuse and Neglect Reporting Act
California maintains a database of “reports of suspected
child abuse and severe neglect,” known as the Child Abuse
Central Index or CACI. CAL. PENAL CODE § 11170(a)(2). Cali-
fornia has collected such information since 1965, see 1965
Cal. Stat. 1171, and since 1988, the maintenance of the CACI
HUMPHRIES v. COUNTY OF LOS ANGELES 573
has been governed by the Child Abuse and Neglect Reporting
Act (“CANRA”), CAL. PENAL CODE §§ 11164-11174.
a. Inclusion in the CACI
There are many different ways a person can find themself
listed in the CACI. CANRA mandates that various statutorily
enumerated individuals report instances of known or sus-
pected child abuse and neglect either to a law enforcement
agency or to a child welfare agency. Id. § 11165.9. These
agencies, in turn, are required to conduct “an active investiga-
tion,” id. § 11169(a), which involves investigating the allega-
tion and determining whether the incident is “substantiated,
inconclusive, or unfounded,” CAL. CODE REGS. tit. 11,
§ 901(a) (2008).
In an attempt by the legislature to demonstrate how many
negatives it could place in a single provision, CANRA then
provides that the agency shall send the California Department
of Justice (“CA DOJ”) a written report “of every case it inves-
tigates of known or suspected child abuse or severe neglect
which is determined not to be unfounded,” but that the
“agency shall not forward a report to the [CA DOJ] unless it
has conducted an active investigation and determined that the
report is not unfounded.” CAL. PENAL CODE § 11169(a).
CANRA defines a report as “unfounded” if it is “determined
by the investigator who conducted the investigation [1] to be
false, [2] to be inherently improbable, [3] to involve an acci-
dental injury, or [4] not to constitute child abuse or neglect.”
Id. § 11165.12(a). There is no further definition of what it
means for a report to be “false” or “inherently improbable,”
and no discussion of the standard of proof by which that
determination is to be made. Presumably, a report is “not
unfounded” if the investigator determines that it meets none
of these four criteria.
CANRA defines two other categories of reports, those that
are “substantiated” and those that are “inconclusive.” A “sub-
574 HUMPHRIES v. COUNTY OF LOS ANGELES
stantiated report” means that “the investigator who conducted
the investigation” determined that the report “constitute[d]
child abuse or neglect . . . based upon evidence that makes it
more likely than not that child abuse or neglect occurred.” Id.
§ 11165.12(b). An “inconclusive report” means that “the
investigator who conducted the investigation” found the
report “not to be unfounded, but the findings are inconclusive
and there is insufficient evidence to determine whether child
abuse or neglect . . . occurred.” Id. § 11165.12(c). Both incon-
clusive and substantiated reports are submitted to the CA DOJ
for inclusion in the CACI. See id. §§ 11169(a), (c),
11170(a)(3).
To summarize, we understand section 11169(a), when read
in conjunction with section 11165.12, to require agencies to
investigate all reports of child abuse. Each reported incident
of child abuse must then be categorized as (1) “substantiated,”
meaning it is more likely than not that child abuse or neglect
occurred; (2) “inconclusive,” meaning there is insufficient
evidence to determine whether child abuse and/or neglect
occurred; or (3) “unfounded,” meaning the report is false,
inherently improbable, an accidental injury, or does not con-
stitute child abuse or neglect. It appears that “substantiated”
and “inconclusive” reports include everything that is “not
unfounded.” The agency must submit both “substantiated”
and “inconclusive” reports for inclusion in the CACI.
Given the high standard of proof required for a report to be
dismissed as “unfounded”—false or inherently improbable—
and the low standard of proof required for a report to be cate-
gorized as “substantiated”—more likely than not—with “in-
conclusive” presumably encompassing everything in between,
we understand the minimum evidence required for CANRA
to compel the submission of a report to be something less than
a preponderance, but more than a scintilla. CANRA further
requires that the CA DOJ “shall maintain an index of all
reports of child abuse and severe neglect submitted pursuant
to” the process described above. Id. § 11170(a)(1). The CACI
HUMPHRIES v. COUNTY OF LOS ANGELES 575
is maintained by means of a computerized data bank. See
People v. Bernstein, 243 Cal. Rptr. 363, 367 (Cal. Ct. App.
1987).
b. Consequences of Inclusion in the CACI
CANRA states that the CA DOJ shall make the information
in the CACI available to a broad range of third parties for a
variety of purposes. For example, the information in the
CACI is made available
to the State Department of Social Services, or to any
county licensing agency that has contracted with the
state for the performance of licensing duties . . . con-
cerning any person who is an applicant for licensure
or any adult who resides or is employed in the home
of an applicant for licensure or who is an applicant
for employment in a position having supervisorial or
disciplinary power over a child or children, or who
will provide 24-hour care for a child or children in
a residential home or facility, pursuant to [various
statutory sections].
CAL. PENAL CODE § 11170(b)(4). The information is also pro-
vided to persons “making inquiries for purposes of pre-
employment background investigations for peace officers,
child care licensing or employment, adoption, or child place-
ment.” CAL. CODE REGS. tit. 11, § 907(b) (2008); see also CAL.
PENAL CODE § 11170(b)(8). The “Court Appointed Special
Advocate program that is conducting a background investiga-
tion of an applicant seeking employment with the program or
a volunteer position as a Court Appointed Special Advocate”
also has access to CACI information. CAL. PENAL CODE
§ 11170(b)(5).
The scope of CANRA is not limited to California institu-
tions. CANRA makes the CACI information available “to an
out-of-state agency, for purposes of approving a prospective
576 HUMPHRIES v. COUNTY OF LOS ANGELES
foster or adoptive parent or relative caregiver for placement
of a child” so long as “the out-of-state statute or interstate
compact provision that requires that the information received
in response to the inquiry shall be disclosed and used for no
purpose other than conducting background checks in foster or
adoptive cases.” Id. § 11170(e)(1). Thus, it appears that if
another state’s agencies require CACI information for foster
or adoptive purposes, the CA DOJ is also obligated to make
it available.1
CANRA provides that agencies obtaining the CACI
information are responsible for obtaining the original
investigative report from the reporting agency, and
for drawing independent conclusions regarding the
quality of the evidence disclosed, and its sufficiency
for making decisions regarding investigation, prose-
cution, licensing, placement of a child, employment
or volunteer positions with a CASA program, or
employment as a peace officer.
Id. § 11170(b)(9)(A). The same provision also applies to out
of state agencies that receive CACI information. Id.
§ 11170(e)(2).
Although CANRA itself only requires that the CA DOJ
make this information available, other statutory provisions
mandate that certain agencies consult the CACI prior to issu-
ing a variety of state-issued licenses or other benefits. For
example, California Health and Safety Code § 1522.1 pro-
vides that “[p]rior to granting a license to, or otherwise
approving, any individual to care for children, the [State
Department of Social Services] shall check the [CACI]. CAL.
HEALTH & SAFETY CODE § 1522.1(a); see id. § 1502(b). Simi-
1
Although the CACI information can apparently be released under these
statutes to administrative agencies, private licensing agencies, private
employers, or law enforcement entities, we will generally refer to these
groups collectively throughout the opinion as “agencies.”
HUMPHRIES v. COUNTY OF LOS ANGELES 577
larly, in order to work as a volunteer in crisis nurseries, Cali-
fornia law mandates that “[v]olunteers shall complete a
[CACI] check.” Id. § 1526.8(b)(2). Also, “[p]rior to granting
a license to or otherwise approving any individual to care for
children in either a family day care home or a day care center,
the [State Department of Social Services] shall check the
[CACI].” Id. § 1596.877(b).2
California Welfare and Institutions Code § 361.4
similarly requires that [w]henever a child may be
placed in the home of a relative, or a prospective
guardian or other person who is not a licensed or cer-
tified foster parent, the county social worker shall
cause a check of the [CACI] . . . to be requested
from the [CA DOJ]. The [CACI] check shall be con-
ducted on all persons over 18 years of age living in
the home.
CAL. WELF. & INST. CODE § 361.4(c). Finally, California has
implemented a pilot program through the State Department of
Social Services (“DSS”) to create a “child-centered resource
family approval process” in lieu of existing processes for “li-
censing foster family homes, approving relatives and nonrela-
tive extended family members as foster care providers, and
approving adoptive families.” Id. § 16519.5(a). The approval
standards under this statute include “utilizing a check of the
[CACI].” Id. § 16519.5(d)(1)(A)(i). Based on these provi-
sions, it is apparent that the CACI listing plays an integral role
in obtaining many rights under California law, including
employment, licenses, volunteer opportunities, and even child
custody. See also Alisha M. Santana, A Pointer System that
Points to the Nonexistent: Problems with the Child Abuse
2
We also note that, although it does not specifically mandate the agency
to reference the CACI, in language similar to CANRA, § 1596.607 of the
Health and Safety Code allows DSS to deny a “trustline applicant” if there
is evidence of “substantiated child abuse.” CAL. HEALTH & SAFETY CODE
§ 156.607.
578 HUMPHRIES v. COUNTY OF LOS ANGELES
Central Index (CACI), 4 WHITTIER J. CHILD & FAM. ADVOC.
115, 115-16 (2004) (describing the case of a grandmother
denied custody of her grandchildren because DSS discovered
two hits on the CACI matching her name).
c. Removal From the CACI
CANRA requires that at the time the agency forwards the
report to the CA DOJ for inclusion in the CACI, “the agency
shall also notify in writing the known or suspected child
abuser that he or she has been reported to the [CACI].” CAL.
PENAL CODE § 11169(b). The identified child abuser may
obtain the report of suspected child abuse and information
contained within their CACI listing. Id. § 11167.5(b)(11).
Understandably, notified individuals who believe that they
have wrongfully been included in the CACI would want to be
removed from the CACI as expeditiously as possible.
CANRA provides that an individual who was originally listed
in the CACI pursuant to an “inconclusive or unsubstantiated
report” will be deleted from the CACI after ten years, as long
as no subsequent report containing his or her name is received
within that time period. Id. § 11170(a)(3). There is no provi-
sion for removing an individual who was originally listed in
the CACI pursuant to a “substantiated report”; such a person
apparently remains listed in the CACI permanently. See id.
§ 11170(a)(1).
CANRA offers no procedure for challenging a listing on
the CACI. CANRA does provide that “[i]f a report has previ-
ously been filed which subsequently proves to be unfounded,
[the CA DOJ] shall be notified in writing of that fact and shall
not retain the report.” Id. § 11169(a). The statute does not
describe who must notify the CA DOJ of that fact, or how the
determination that a report has “subsequently prove[d] to be
unfounded” is to be made. CANRA also provides that the
CACI “shall be continually updated by the department and
shall not contain any reports that are determined to be
unfounded.” Id. § 11170(a)(1). By using the passive voice,
HUMPHRIES v. COUNTY OF LOS ANGELES 579
CANRA fails to specify who is supposed to determine that a
report is unfounded, or how to make that decision in order to
remove unfounded reports from the CACI.
Apparently, only the submitting agency can decide if a
report has proved unfounded. CANRA provides that “[t]he
submitting agencies are responsible for the accuracy, com-
pleteness, and retention of the reports,” thus suggesting that
the submitting agencies are also responsible for removing
reports that are determined to be unfounded. Id.
§ 11170(a)(2). Furthermore, as explained above, CANRA
defines an “unfounded report” as “a report that is determined
by the investigator who conducted the investigation to be
false, to be inherently improbable, to involve an accidental
injury, or not to constitute child abuse or neglect.” Id.
§ 11165.12(a) (emphasis added); see id. § 11165.12(b) (a
“substantiated report” means “a report that is determined by
the investigator . . . ”) (emphasis added). Whether this defini-
tion solely references the initial determination of listing some-
one on the CACI, or whether it also constitutes the definition
for a continuing obligation to remove someone from the
CACI is unclear. These provisions suggest, however, that the
investigator and agency that conducted the investigation are
responsible for making, and thus correcting, the determination
that a report is unfounded.
Although CANRA itself provides no procedure for an indi-
vidual to challenge a CACI listing, nothing in the statute pre-
vents a submitting agency from enacting some procedure to
allow an individual to challenge their listing or seek to have
a determination made that a report is “unfounded.” See id.
§ 11170(a)(2). CANRA also contemplates that the CA DOJ
“may adopt rules governing recordkeeping and reporting,”
which may allow the CA DOJ to enact some procedure
beyond that provided by CANRA. Id. § 11170(a)(1). To this
point, we are unaware of any regulations that provide addi-
tional regulatory procedures for challenging a listing on the
CACI or the validity of the underlying report. To the contrary,
580 HUMPHRIES v. COUNTY OF LOS ANGELES
the CA DOJ explicitly “presumes that the substance of the
information provided is accurate and does not conduct a sepa-
rate investigation to verify the accuracy of the investigation
conducted by the submitting agency.” CAL. CODE REGS. tit. 11,
§ 904 (2008).
B. The Humphries’ Nightmare
The Humphries’ nightmarish encounter with the CANRA
system began on March 17, 2001, when S.H., Craig’s fifteen
year-old daughter from a previous marriage, took their car and
drove to her biological mother’s home in Utah. S.H. had pre-
viously lived in Utah with her biological mother and stepfa-
ther and their three younger children. In June 2000, S.H’s
biological mother called Craig and said she wanted S.H. to
live with the Humphries in Valencia, California, on a trial
basis. The night of March 17, S.H. took the Humphries’ car
without their knowledge, drove to her mother’s home in Utah,
and reported that the Humphries had been abusing her for sev-
eral months. An emergency room physician diagnosed “non-
accidental trauma, with extremity contusions.”
1. The Humphries’ Arrest and Inclusion in the CACI
Based on an investigation from the Utah police, the vic-
tim’s statement, and emergency room records describing the
victim’s allegations, on April 11, 2001, Michael L. Wilson, a
detective for the Family Crimes Bureau of the Los Angeles
County Sheriff’s Department (“LASD”), obtained probable
cause warrants to arrest the Humphries for cruelty to a child,
CAL. PENAL CODE § 273a(a), and torture, id. § 206. On April
16, Detective Wilson, accompanied by fellow detective
Charles Ansberry, arrested Craig and Wendy Humphries, and
booked them on the single charge of felony torture under Cal-
ifornia Penal Code § 206. The same day, a Sheriff’s deputy,
without a warrant, picked up the Humphries’ two other chil-
dren from their schools and placed them in protective custody.3
3
The Humphries have asserted a § 1983 claim regarding the warrantless
seizure of the children. That claim is not before us on this appeal.
HUMPHRIES v. COUNTY OF LOS ANGELES 581
Both children denied any fear of abuse or mistreatment and
indicated their desire to return home. Custody of the children
was then transferred to the County Department of Children
and Family Services, which placed the children in foster care.
On April 17, 2001, the day after the Humphries were
arrested, Detective Wilson completed a child abuse investiga-
tion report identifying the Humphries’ case as a “substantiated
report” of child abuse.4 Pursuant to CANRA, this information
was sent to the CA DOJ, which in turn created a CACI listing
identifying Craig and Wendy Humphries as child abuse sus-
pects with a “substantiated” report.
2. Judicial Proceedings Exonerating the Humphries
a. The Criminal Case
On April 18, 2001, Detective Wilson filed a complaint in
the Los Angeles County Superior Court, charging the Humph-
ries with corporal injury to a child, CAL. PENAL CODE
§ 273d(a), and cruelty to a child by endangering health, id.
§ 273a(b), both misdemeanors.
On August 29, 2001, the Humphries’ criminal case was dis-
missed.5 The prosecutor had learned that in November 2000,
4
At the time that Detective Wilson filed his report, a “substantiated”
report of child abuse was defined as one where the investigator found
“credible evidence” of abuse. CAL. PENAL CODE § 11165.12(b) (2001). As
discussed above, § 11165.12 has since been amended to define a “substan-
tiated” report as one “determined by the investigator who conducted the
investigation to constitute child abuse or neglect . . . based upon evidence
that makes it more likely than not that child abuse or neglect . . .
occurred.” Id. § 11165.12(b).
5
There is some dispute as to whether the felony charge for which the
Humphries were originally booked on April 16 is distinct from the misde-
meanor charge filed on April 18. The Humphries contend that the district
attorney rejected the attempt to file a felony action against them but
allowed the case to be filed for misdemeanor consideration. According to
582 HUMPHRIES v. COUNTY OF LOS ANGELES
Dr. Isaac Benjamin Paz surgically removed a melanoma on
S.H.’s shoulder. S.H. had follow-up visits with Dr. Paz in
December 2000 and March 2001, periods that corresponded
with S.H.’s claims of abuse. On all these occasions, Dr. Paz
examined S.H.’s entire body, and saw no sign of abuse. The
prosecutor determined that this information “contradict[ed]
the basic part of [S.H’s] testimony that she was injured during
the entire time” and agreed that the Humphries criminal case
for the misdemeanor charges should be dismissed in further-
ance of justice. The felony torture charges on which the Hum-
phries had originally been booked were also dismissed.
The Humphries then successfully petitioned the criminal
court under California Penal Code § 851.8 for orders finding
them “factually innocent” of the felony torture charge,6 and
the Humphries it was this misdemeanor complaint that was dismissed on
August 29, 2001. Because this case is before us on a motion for summary
judgment by the state and county parties, we assume the Humphries’
account to be true, and from the record it appears that the Humphries were
never indicted on the felony charge. Regardless, the petition to seal and
destroy their arrest records indicates that the disposition of the torture
charges was a “court dismissal.”
6
The Humphries argue that the district court erred in concluding that the
finding of “factual innocence” was not admissible as evidence under Cali-
fornia law. We disagree. California Penal Code § 851.8(i) clearly states
that a finding of factual innocence “shall not be admissible as evidence in
any action.” CAL. PENAL CODE § 851.8(i). The Humphries contend that
§ 851.8(i) is qualified by § 851.8(k), which provides that sealed records
may be “submitted into evidence” on “a showing of good cause” in a civil
action brought by the arrested person against the arresting officers or law
enforcement jurisdiction. CAL. PENAL CODE § 851.8(k). Section 851.8(k),
however, does not allow the “finding of factual innocence” to be submit-
ted into evidence, but rather the underlying “sealed records.”
Nevertheless, neither § 851.8(i) nor § 851.8(k) applies to our use of the
factual innocence determination in this opinion. Here, even if the Humph-
ries had never been arrested at all, such that there were no § 851.8 arrest
warrants to seal, Detective Wilson could have still filed a “substantiated
report” resulting in their listing on the CACI. Our determination as to the
HUMPHRIES v. COUNTY OF LOS ANGELES 583
requiring the arrest records pertaining to that charge be sealed
and destroyed.7 A finding of factual innocence means that the
court found “that no reasonable cause exists to believe that the
arrestee committed the offense for which the arrest was
made.” CAL. PENAL CODE § 851.8(b).
b. The Juvenile Court Case
On April 17, 2001, in separate, non-criminal proceedings,
Detective Wilson requested that Los Angeles County file a
juvenile court dependency petition to have the Humphries’
two children declared dependent children of the juvenile court
based on the fact that their “sibling has been abused or
neglected.” On April 19, the County filed a dependency peti-
tion against the Humphries based on S.H.’s allegations. After
a hearing on June 12, the juvenile court ordered that the Hum-
phries retain custody of their children, and dismissed all
counts as “not true.”8
constitutionality of CANRA is thus not dependant on the underlying
arrest. We therefore discuss the factual innocence finding, not as a matter
of evidence, but rather as illustrative of the legal quagmire in which the
Humphries find themselves. Under California law, they could petition a
court for a “factual innocence” determination, but could not challenge
their inclusion on the CACI.
7
The Humphries argue that the district court erred in disregarding the
sealing orders as they relate to the information included in their CACI list-
ing. The district court found that the Humphries’ contention that the
Appellees were maintaining records in violation of the Sealing Orders was
not properly before the court because the claim was not made in the com-
plaint. We find that the allegations contained in paragraphs 5 and 6 of the
complaint sufficiently allege the issue by stating that “the order . . .
requires that plaintiffs’ arrest records be sealed and scheduled for future
destruction. . . . Nevertheless, defendants still refuse to expunge plaintiffs’
CACI records.” Insofar as this issue is relevant to future proceedings, the
district court may consider the claim.
8
Under the California Rules of Court, the juvenile court is only autho-
rized to find allegations “true” or “not proved.” See CAL. CT. R. 1450(f)
& (h) (renumbered and amended as 5.684 effective Jan. 1, 2007). The state
584 HUMPHRIES v. COUNTY OF LOS ANGELES
3. The Humphries Seek Removal from the CACI
As required by CANRA, in May 2001, the Humphries were
notified that they were listed in the CACI. The notice
informed them that if they believed the report was unfounded,
and they desired a review, that they should address their
request to Detective Wilson. In May 2002, the Humphries
contacted LASD’s Family Crimes Bureau through their attor-
ney. They discovered that Detective Wilson no longer worked
at the Bureau and there was no available procedure for them
to challenge their listing in the CACI. On May 9, 2002, LASD
Sergeant Michael Becker advised the Humphries’ attorney
that after conducting an investigation, the LASD would not
reverse its report labeling the Humphries as “substantiated”
child abusers for the purposes of the CACI. Becker indicated
that the fact that charges were filed “would indicate to us that
some sort of crime did occur” and the fact that the case was
dismissed “would not negate the entries” into the CACI.
In October 2003, the CA DOJ asked LASD to complete a
confirmation questionnaire regarding the Humphries’ CACI
listing. The questionnaire was answered by a civilian clerical
worker who confirmed that the report was still “substantiated”
and county parties argue that the juvenile court’s “not true” finding does
not mean that the allegations are affirmatively false. Regardless, there is
no dispute that the juvenile court wrote that the allegations were “not
true.” Any argument regarding whether the judge should or should not
have done so should have been made at the time of the juvenile court pro-
ceedings.
The Humphries also argue that the district court erred in failing to give
collateral estoppel effect to the juvenile court’s “not true” determination.
The district court stated in a footnote that while the collateral estoppel
argument “would appear to have merit, the Court need not address that
issue in view of its ruling.” If a party provides a reason for addressing the
issue in light of this opinion, on remand the district court shall make a
more definitive finding of the collateral effect of the juvenile court’s judg-
ment.
HUMPHRIES v. COUNTY OF LOS ANGELES 585
as of October 31, 2003. Despite the fact that two independent
California tribunals had found that the allegations underlying
the Humphries’ CACI listing were “not true” and that the
Humphries are “factually innocent,” the CA DOJ continues to
list the Humphries in the CACI as substantiated child abusers.
Furthermore, because the Humphries were listed pursuant to
a “substantiated report,” they will remain listed on the CACI
indefinitely.
In addition to the harm already dealt to the Humphries’ rep-
utation by appearing on a list of actual or suspected child
abusers, the Humphries have also alleged that the CACI now
places a burden on their ability to pursue some of their normal
goals and activities. The Humphries have indicated that they
are hesitant to seek these opportunities for fear that the CACI
listing will both influence their ability to obtain certain bene-
fits and further injure their already damaged reputation. For
example, the Humphries have expressed a desire to work or
volunteer at the Florence Crittenton Center in Los Angeles, a
community center offering child care and a variety of other
services. Bernice Williams, the Human Resources Manager at
the center stated, by affidavit, that all adults must undergo a
CACI check prior to obtaining clearance to volunteer or teach
at the center. Thus, the Humphries will have to submit to a
CACI search before even having an opportunity to volunteer
or work at the center.
Similarly, Wendy currently works as a special education
teacher and resource specialist at a public school in Califor-
nia. She possesses a number of teaching credentials that must
be periodically renewed in order to maintain her current
employment—a renewal process that requires her to apply to
the California Commission on Teacher Credentialing
(“CCTC”). The Humphries have introduced evidence indicat-
ing that the information available on the CACI might have an
impact on her ability to obtain educational credentials.9
9
The Humphries introduced as an exhibit a letter by Peter P. Castillo,
an attorney for the DSS. The letter states that “[t]he law requires that [the
586 HUMPHRIES v. COUNTY OF LOS ANGELES
Wendy has also indicated a desire to pursue a degree in
psychology from the University of California at Los Angeles.
Two courses of interest within the psychology department,
134 A/D and 134 B/E, place all of the students in a child care
program licensed by the state of California. To enroll in these
classes, all potential students must pay for and submit to a
CACI check.
4. Procedural History
The Humphries initiated this action in federal district court
on August 27, 2002. The Humphries’ First Amended Com-
plaint originally included eight counts based on state and fed-
eral claims, but on April 14, 2003, the district court dismissed
all the state law counts on a Rule 12(b)(6) motion. In the
remaining three claims, the Humphries sought relief pursuant
to 42 U.S.C. § 1983. They alleged that three actions by Cali-
fornia officials deprived them of various rights under the
United States Constitution: the Humphries’ arrest and incar-
ceration, the Humphries’ initial and continued inclusion in
CACI, and the seizure and subsequent placement of the Hum-
phries’ children in temporary protective custody.
Community Care Licensing Division (“CCLD”)] check all child care
applicants and employees against the CACI” and goes on to note that
CCLD will “share information” with CCTC if requested. In response, the
state introduced an affidavit from Castillo reporting that the CCTC “is not
one of the agencies authorized by statute to receive [CACI] information”
and that his statement in the letter regarding shared information only
referred to information that CCLD was permitted to disclose. Based on
this exchange and without giving the Humphries an opportunity to
respond, the district court found that “it is clear that Wendy cannot and
will not be harmed in her pursuit of a teaching credential as a result of
being listed on the Index.” Viewing the evidence in the light most favor-
able to the Humphries, Castillo’s measured statement did not require the
broad conclusion reached by the district court. Thus, insofar as the need
arises on remand, the parties are free to introduce additional evidence
regarding the obstacles CACI places on the opportunity for Wendy to pur-
sue her credentials.
HUMPHRIES v. COUNTY OF LOS ANGELES 587
The Humphries sought three types of relief based on these
claims. The Humphries demanded damages for the constitu-
tional violations resulting from the government’s conduct. In
addition to damages, on the allegations related to the Humph-
ries’ listing on the CACI, the Humphries sought an injunction
ordering the County of Los Angeles to notify the CA DOJ
that LASD’s report to the CACI is unfounded, and to prohibit
the State from retaining or disclosing the CACI records on the
Humphries based on any report from LASD. The Humphries
also sought a judicial declaration that CANRA and the Coun-
ty’s and State’s CACI-related policies are unconstitutional
because they provide no means for people, such as the Hum-
phries, to dispute or expunge their CACI listing or to prevent
disclosures of the listing and related records.
Appellees, the County of Los Angeles, Sheriff Leroy D.
Baca, and Detectives Wilson and Ansberry (“County Appel-
lees”) and California Attorney General Bill Lockyer (“State”)
(collectively “Appellees”), moved for summary judgment on
all claims. The district court denied Appellees’ motion for
summary judgment on the § 1983 claim regarding the war-
rantless seizure of the children, but granted Appellees’ motion
for summary judgment on the § 1983 claim arising out of the
Humphries’ initial and continued inclusion in the CACI, as
well as the § 1983 claim arising out of the Humphries’ arrest
and incarceration. The Humphries appeal the grant of sum-
mary judgment with regard to their claims relating to their
inclusion in the CACI, arguing that the Appellees’ conduct in
listing their names on the CACI and making CACI-related
information available to third parties violates their right to due
process under the Fourteenth Amendment.
II. ANALYSIS
[1] To establish a prima facie case under § 1983, the Hum-
phries must establish that: (1) the conduct complained of was
committed by a person acting under color of state law; and (2)
the conduct violated a right secured by the Constitution and
588 HUMPHRIES v. COUNTY OF LOS ANGELES
laws of the United States. West v. Atkins, 487 U.S. 42, 48
(1988). Furthermore, the Supreme Court has insisted that even
if there is a qualified immunity issue, we must still consider
the threshold question of the “existence or nonexistence of a
constitutional right as the first inquiry.” Saucier v. Katz, 533
U.S. 194, 201 (2001). There is no question that the Humph-
ries’ listing on the CACI occurs under color of state law.
Thus, the issue in this appeal is whether the initial and contin-
ued inclusion of the Humphries on the CACI deprives them
of any rights secured by the Constitution and laws of the
United States. We find that it does. Accordingly, after our dis-
cussion of the existence of a constitutional violation we con-
sider whether the individual and institutional Appellees are
entitled to immunity for their acts.
A. Procedural Due Process
[2] The Humphries argue that Appellees violated their
Fourteenth Amendment right to procedural due process by
listing and continuing to list them on the CACI, without any
available process to challenge that listing. In procedural due
process claims, the deprivation of a constitutionally protected
interest “is not itself unconstitutional; what is unconstitutional
is the deprivation of such an interest without due process of
law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990). Our anal-
ysis proceeds in two steps: “the first asks whether there exists
a liberty or property interest which has been interfered with
by the State; the second examines whether the procedures
attendant upon that deprivation were constitutionally suffi-
cient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460
(1989) (internal citations omitted). The district court found
that the Humphries’ listing on the CACI did not deprive them
of any constitutionally protected liberty or property interest.10
10
We review a district court’s grant of summary judgment de novo.
Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998). In conducting such
a review, we must ensure that the district court correctly applied the law
and that, viewing the evidence in the light most favorable to the non-
moving party, no genuine issues of material fact remain. Id.HUMPHRIES v. COUNTY OF LOS ANGELES 589
The court did not reach the second step of the due process
analysis.
1. Deprivation of a Protected Liberty Interest
The Humphries contend that they have a liberty interest
under the “stigma-plus” test of Paul v. Davis, 424 U.S. 693(1976). The Humphries argue that the stigma of being listed
in the CACI as substantiated child abusers, plus the various
statutory consequences of being listed on the CACI consti-
tutes a liberty interest, of which they may not be deprived
without process of law. We agree.11
[3] In Wisconsin v. Constantineau, the Supreme Court held
that a liberty interest may be implicated “where a person’s
good name, reputation, honor, or integrity is at stake because
of what the government is doing to him.” 400 U.S. 433, 437
(1971). The following year the Court stated that a government
employee’s liberty interest would be implicated if he were
dismissed based on charges that “imposed on him a stigma or
11
The Humphries also argue that they have a protected liberty interest
created by the mandatory language in CANRA; a protected liberty interest
in informational and familial privacy arising under the California Consti-
tution, see Burt v. County of Orange, 15 Cal. Rptr. 3d 373, 381-82 (Cal.
Ct. App. 2004); a protected liberty interest in familial privacy and auton-
omy under the federal constitution; and a protected liberty interest created
by the sealing orders and California Penal Code § 851.8. Because we hold
that the Humphries have been deprived of due process of law, and because
it is not evident they would be entitled to any greater process or remedy
if they successfully pressed these remaining liberty interests, we will not
reach the merits of these arguments. We also decline to reach the Humph-
ries’ ill-developed claims to substantive due process based on a right of
parents with children to live without unwarranted government interference
and the Appellees’ conduct relating to the sealing orders. Moreover, it is
quite apparent to us that the same qualified immunity analysis would
apply to the due process claims regardless of the underlying liberty inter-
est asserted. Nevertheless, if the Humphries believe that these interests
require a different due process or qualified immunity analysis than we
have ordered here, they are free on remand to raise those claims before the
district court and explain why the district court should address them.
590 HUMPHRIES v. COUNTY OF LOS ANGELES
other disability that foreclosed his freedom to take advantage
of other employment opportunities.” Board of Regents v.
Roth, 408 U.S. 564, 573 (1972). In Paul v. Davis, the
Supreme Court clarified that procedural due process protec-
tions apply to reputational harm only when a plaintiff suffers
stigma from governmental action plus alteration or extin-
guishment of “a right or status previously recognized by state
law.” 424 U.S. 693, 711 (1976). This holding has come to be
known as the “stigma-plus test.” See Hart v. Parks, 450 F.3d
1059, 1070 (9th Cir. 2006).
a. Stigma
[4] As the district court found, being labeled a child abuser
by being placed on the CACI is “unquestionably stigmatiz-
ing.” We have observed that there is “[n]o doubt . . . that
being falsely named as a suspected child abuser on an official
government index is defamatory.” Miller v. California, 355
F.3d 1172, 1178 (9th Cir. 2004); see also Valmonte v. Bane,
18 F.3d 992, 1000 (2d Cir. 1994) (finding it beyond dispute
that inclusion on a child abuse registry damages reputation by
“branding” an individual as a child abuser). Indeed, “no con-
duct so unequivocally violates American ethics as . . . sexual
predation upon the most vulnerable members of our society.”
Nicanor-Romero v. Mukasey, 523 F.3d 992, 999 (9th Cir.
2008) (citation omitted). The horror deepens when such abuse
occurs at the hands of the parents, who have an obligation to
protect their children. See id. at 1013 (Bybee, J., dissenting)
(“Our recognition that the victim’s vulnerability or intimate
relationship with her victimizer can render an act inherently
base or vile simply reflects contemporary American mores.”).
The Court has identified stigma on the basis of lesser accu-
sations. In Constantineau, the chief of police had posted the
plaintiff’s name on a list that prohibited her from purchasing
alcohol pursuant to a state statute forbidding the sale of alco-
holic beverages to persons who had become hazardous by rea-
sons of their “excessive drinking.” 400 U.S. at 434-35. In
HUMPHRIES v. COUNTY OF LOS ANGELES 591
Paul, the plaintiff’s picture appeared on a flyer of individuals
who were suspected of shoplifting. 424 U.S. at 695. In both
cases the Court found stigma. Constantineau, 400 U.S. at
435-37; Paul, 424 U.S. at 697, 701 (stating that imputing
criminal behavior to an individual is generally considered
“defamatory per se” and implicitly finding stigma by holding
that stigma alone is insufficient). Being labeled a child abuser
is indisputably more stigmatizing than being labeled an exces-
sive drinker or a shoplifter. Indeed, to be accused of child
abuse may be our generation’s contribution to defamation per
se, a kind of moral leprosy.
b. Plus
The more difficult issue is whether the Humphries can sat-
isfy the “plus” test. The Humphries must show that, as the
result of being listed in the CACI, “a right or status previously
recognized by state law was distinctly altered or extin-
guished.” Paul, 424 U.S. at 711; see also Siegert v. Gilley,
500 U.S. 226, 233 (1991) (reaffirming that an injury to repu-
tation by itself is not a protected liberty interest under the
Fourteenth Amendment).
As the Court explained in Paul, when the chief of police in
Constantineau posted the plaintiff’s name on a list forbidding
the sale of alcohol to her, it “significantly altered her status as
a matter of state law” by depriving her “of a right previously
held under state law[—]the right to purchase or obtain liquor
in common with the rest of the citizenry.” Paul, 424 U.S. at
708. The Court concluded that “it was that alteration of legal
status which, combined with the injury resulting from the def-
amation, justified the invocation of procedural safeguards.”
Id. at 708-09.
In Paul itself, the Louisville Chief of Police placed Davis’
name on a flyer distributed to Louisville merchants containing
a list of individuals thought to be active in shoplifting. Id. at
695. In contrast to the mandatory nature of the statute in Con-
592 HUMPHRIES v. COUNTY OF LOS ANGELES
stantineau, the flyer merely “came to the attention” of Davis’
supervisor who warned him not to repeat his actions in the
future. Id. at 696. The Court found that this harm to Davis’
reputation was not sufficient to create a liberty interest. Id. at
712. Notably, no law had required the Chief of Police to dis-
tribute this flyer, nor did any law require employers to check
the list. Thus, although any impairment to Davis’ employment
opportunities “flow[ed] from the flyer in question,” his injury
only occurred because the flyer happened to have “c[o]me to
the attention of [his] supervisor.” Id. at 696-97.
As a preliminary matter, the Appellees contend that the
Humphries’ attempt to satisfy the “plus” test is foreclosed by
our decision in Miller v. California, 355 F.3d 1172 (9th Cir.
2004). In Miller, we confronted different questions concern-
ing the rights of grandparents listed on the CACI. The Mill-
ers’ three grandchildren had been removed from their parents’
home, and the Millers were eventually named the children’s
guardians. Id. at 1173-75. In the meantime, as a result of a
doctor’s concern about possible sexual abuse, Charles Mil-
ler’s name was listed on the CACI. Id. at 1174-75. The Mill-
ers brought suit to clear their names and argued that county
employees, by placing Charles Miller’s name on the CACI,
had conspired to deprive them of a liberty interest to associate
with their grandchildren. Id. at 1173-74. We held that the
Millers had no “substantive due process right to family integ-
rity or association as noncustodial grandparents of children
who are dependents of the court, nor of a liberty interest in
visiting their grandchildren.” Id. at 1176.
In a separate argument, Charles Miller argued that he had
suffered a stigma-plus injury to his reputation and had been
denied an opportunity to be heard on the deprivation. Id. at
1177. We concluded that Miller had shown injury to his repu-
tation, but could not establish the “plus” because he was “not
legally disabled by the listing [on the CACI] alone from doing
anything they otherwise could do.” Id. at 1179. As we
observed, the Millers were in fact awarded guardianship of
HUMPHRIES v. COUNTY OF LOS ANGELES 593
their grandchildren after Charles’ name had been placed on
the CACI. The only “plus” alleged in Miller was a fundamen-
tal liberty interest in preserving family association. Id. at
1178. We held that because grandparents have no constitu-
tionally protected liberty interest in a relationship with their
grandchildren, the Millers could not allege “plus” on those
grounds. Id.Significantly, we expressly declined to address whether the
mere presence of Miller’s name on the CACI denied him due
process “because CANRA provides no procedure by which
those suspected of being child abusers can challenge the alle-
gations against them.” Id. at 1179 n.4. The argument had not
been properly presented to the district court and was not prop-
erly before us. We also did not address whether requiring
agencies to search the CACI prior to issuing a license consti-
tutes a viable “plus.” We now take the opportunity to address
these issues left open in Miller.
[5] The Humphries allege more than mere reputational
harm—being listed on the CACI alters their rights in two gen-
eral ways. First, state statutes mandate that licensing agencies
search the CACI and conduct an additional investigation prior
to granting a number of rights and benefits. These rights
include gaining approval to care for children in a day care
center or home, CAL. HEALTH & SAFETY CODE § 1596.877(b),
obtaining a license or employment in child care, id.
§ 1522.1(a), volunteering in a crisis nursery, id.
§ 1526.8(b)(2), receiving placement or custody of a relative’s
child, CAL. WELF. & INST. CODE § 361.4(c), or qualifying as
a resource family, id. § 16519.5(d)(1)(A)(i). These benefits
are explicitly conditioned on the agency checking the CACI
and conducting an additional investigation. Second, informa-
tion in the CACI is specifically made available to other identi-
fied agencies: state contracted licensing agencies overseeing
employment positions dealing with children, CAL. PENAL
CODE § 11170(b)(4); persons making pre-employment investi-
gations for “peace officers, child care licensing or employ-
594 HUMPHRIES v. COUNTY OF LOS ANGELES
ment, adoption, or child placement,” id. § 11170(b)(8);
individuals in the Court Appointed Special Advocate program
conducting background investigations for potential Court
Appointed Special Advocates, id. § 11170(b)(5), and out-of-
state agencies making foster care or adoptive decisions, id.
§ 11170(e)(1). Although these agencies are not explicitly
required by CANRA to consult the CACI, they may, as a
practical matter, be required to do so by their own regulations
or practices, as discussed below. Thus, inclusion in the CACI
alters the Humphries’ legal rights or status in a variety of
ways that Californians who are not listed on the CACI are not
subject to: applying for custody of a relative’s child, becom-
ing guardians or adoptive parents (inside or outside of Cali-
fornia), obtaining a license for child care, becoming licensed
or employed in a position dealing with children, obtaining
employment as a peace-officer, and involvement in adoption
and child placement. We have mentioned, and the district
court found, that the Humphries were directly affected in their
eligibility to work or volunteer at a local community center.
The Humphries also introduced evidence indicating that
Wendy was affected in her ability to renew her teaching cre-
dentials.
We recognize that being listed on the CACI may not fully
extinguish the Humphries’ rights or status. Agencies that
obtain information from the CACI are responsible for “draw-
ing independent conclusions regarding the quality of the evi-
dence disclosed.” Id. § 11170(b)(9)(A). Thus, for example,
inclusion on the CACI does not necessarily bar the Humph-
ries from obtaining a license for child care, but it does guaran-
tee that the licensing entity will conduct an investigation anew
before issuing or denying the license. However, we need not
find that an agency will necessarily deny the Humphries a
license to satisfy the “plus” test. Outright denial would mean
that a listing on the CACI has extinguished the Humphries’
legal right or status. Rather, Paul provides that stigma-plus
applies when a right or status is “altered or extinguished.” 424
U.S. at 711 (emphasis added).
HUMPHRIES v. COUNTY OF LOS ANGELES 595
[6] We hold that where a state statute creates both a stigma
and a tangible burden on an individual’s ability to obtain a
right or status recognized by state law, an individual’s liberty
interest has been violated. A tangible burden exists in this
context where a law effectively requires agencies to check a
stigmatizing list and investigate any adverse information prior
to conferring a legal right or benefit. As outlined above, Cali-
fornia created the CACI via CANRA and explicitly requires
agencies to consult the CACI and perform an independent
investigation before granting a number of licenses and bene-
fits. This requirement places a tangible burden on a legal right
that satisfies the “plus” test.
[7] We find that a tangible burden also exists where the
plaintiff can show that, as a practical matter, the law creates
a framework under which agencies reflexively check the stig-
matizing listing—whether by internal regulation or custom—
prior to conferring a legal right or benefit. CANRA appears
to create such a legal framework. CANRA explicitly provides
that a variety of agencies will have access to the CACI, and
we cannot turn a blind eye to the actions of these other agen-
cies merely because they are not explicitly required by statute
to receive CACI information.
The record before us on this latter point is admittedly
sparse. Nevertheless, as a practical matter, it is difficult to
imagine that an agency charged with protecting California’s
children—through granting or denying licenses to work in
child care, allowing people to engage in adoption or child-
placement services, or considering potential Court Appointed
Special Advocates—would fail to consult the CACI. There is
possibly no information more relevant to determining whether
a person should be permitted to have a license to work or care
for children than whether that person has abused an innocent
child in the past. As Bernice Williams, the Human Resources
Manager at the Florence Crittenton Center in Los Angeles
stated in her affidavit, “Before any adult is cleared to teach at
our school, to work at our day care center, or to work or vol-
596 HUMPHRIES v. COUNTY OF LOS ANGELES
unteer anywhere within our facility, he or she must undergo
Livescan screening, including a [CA DOJ CACI] check.” We
would be surprised to hear anything differently from other
agencies or entities responsible for providing for the safety
and education of children. Indeed, on top of the need to pro-
tect California’s youth, hiring or giving a license to someone
without checking the CACI could potentially lead to tort lia-
bility under California law. See Juarez v. Boy Scouts of Am.,
Inc., 97 Cal. Rptr. 2d 12, 24-25 (Cal. Ct. App. 2000) (“[I]n
California, an employer can be held liable for negligent hiring
if he knows the employee is unfit, or has reason to believe the
employee is unfit or fails to use reasonable care to discover
the employee’s unfitness before hiring him. [T]he theory of
negligent hiring here encompasses the particular risk of
molestation by an employee with a history of this specific
conduct.”) (internal citations and quotations omitted). Once
an agency consults the CACI and finds adverse information,
CANRA requires the agency to conduct an investigation and
come to its own conclusion. CAL. PENAL CODE
§ 11170(b)(9)(A)
[8] Viewing the evidence in the light most favorable to the
Humphries, we conclude that California has implemented a
system whereby the CACI is reflexively consulted prior to the
conferral of legal rights or benefits under California law, even
where the statute does not necessarily require agencies to
check the list on its face. The CANRA both stigmatizes the
Humphries and creates an impediment to the Humphries’ abil-
ity to obtain legal rights. The Humphries have asserted the
existence of a sufficient liberty interest under the stigma-plus
test, of which they may not be deprived without due process
of law.
Our holding is consistent with Paul. In Paul, the Court was
concerned that every insult by a police officer might create a
due process right and turn the Fourteenth Amendment into “a
font of tort law to be superimposed upon whatever systems
may already be administered by the States.” 424 U.S. at 701.
HUMPHRIES v. COUNTY OF LOS ANGELES 597
This concern that “a hearing would be required each time the
State in its capacity as employer might be considered respon-
sible for a statement defaming an employee who continues to
be an employee,” id. at 710, is not triggered here. Our deci-
sion is limited to those “stigma-plus” situations where both
the defamatory statement and the tangible burden on a legal
right are statutorily created. In Paul, individual officers inde-
pendently chose to distribute a leaflet, and the stigmatizing
language in the leaflet just happened to come to the attention
of the plaintiff’s private supervisor. In contrast, the burdens
on the Humphries’ abilities to obtain various licenses and
other legal rights from the state of California are the result of
state statutes creating the CACI, instructing state officers to
put certain information on the CACI, and effectively mandat-
ing that various entities consult the CACI. The CACI is not
just haphazard, second-hand information that happens to
reach the ears of an employer. This case does not resemble the
sort of state-court tort case that Paul feared.
In reaching this holding, we find the Second Circuit’s rea-
soning in Valmonte v. Bane persuasive. 18 F.3d 992 (2d Cir.
1994). In Valmonte, the Second Circuit heard a challenge to
the New York Central Register of Child Abuse and Maltreat-
ment. Under the New York scheme, the Department of Social
Services determined whether an allegation of child abuse was
“indicated” or “unfounded.” Id. at 995. If there was “some
credible evidence” supporting a complaint, the report was
deemed “indicated” and went into the Central Register; other-
wise, it was deemed “unfounded,” expunged from the Central
Register, and destroyed. Id. As in California, state agencies,
private businesses, and licensing agencies were required to
check whether potential employees or applicants were on the
Central Register. Id. The agency or business could hire the
person only if the employer maintained a written record
explaining why the person was suitable for employment or a
license. Id. at 996. The court found that because agencies and
employers would learn of Valmonte’s inclusion on the Central
Register “by operation of law . . . and . . . likely . . . will
598 HUMPHRIES v. COUNTY OF LOS ANGELES
choose not to hire her due to her status” the New York
scheme “[did] not simply defame Valmonte, it place[d] a tan-
gible burden on her employment prospects.” Id. at 999, 1001.
The Second Circuit explained that “[t]his is not just the intan-
gible deleterious effect that flows from a bad reputation.
Rather, it is a specific deprivation of her opportunity to seek
employment caused by a statutory impediment established by
the state.” Id. at 1001. Valmonte stands for the proposition
that to satisfy stigma-plus, a child abuse registry does not
need to create a per se bar to employment; it is sufficient that
a child abuse registry, by operation of law, creates a “statutory
impediment” or a “tangible burden” to being hired. Id. at
1001-02. See also Dupuy v. Samuels, 397 F.3d 493, 503-04,
509-11 (7th Cir. 2005) (finding that where “child care work-
ers effectively are barred from future employment in the child
care field once an indicated finding of child abuse or neglect
against them is disclosed to, and used by, licensing agencies”
a protected liberty interest is “squarely implicate[d]” under
Paul).
Appellees argue that the CACI differs from the statute in
Valmonte, because there is no requirement in California that
an agency maintain a written record explaining why the per-
son was suitable for employment or other government right.
We disagree. The CACI requires agencies to undergo the
same investigation to independently establish eligibility for a
government benefit. The mere fact that agencies in California
are not required to write anything down does not place any
less of a burden on the Humphries’ ability to obtain employ-
ment, a license, or custody than Valmonte experienced under
the New York statute.
We emphasize that an injury that results merely from sim-
ple defamation is not a constitutional liberty interest under the
“stigma-plus” test. Siegert v. Gilley, 500 U.S. 226, 233-34
(1991). Employment, licensing, custody, or other legal rights
under California law are not refused merely because of the
deleterious effect of a bad reputation. By operation of law,
HUMPHRIES v. COUNTY OF LOS ANGELES 599
California has effectively required agencies to consult the
CACI, agencies will have to conduct an additional investiga-
tion to determine if the Humphries should be eligible for a
government benefit, and those agencies will therefore be more
hesitant to issue that benefit. As in Valmonte, the Humphries
will not lose these benefits based merely on their reputation,
these benefits “will be refused . . . simply because [their]
inclusion on the list results in an added burden on employers
who will therefore be reluctant to hire [them].” 18 F.3d at
1001.
We note that the Eleventh Circuit, in Smith v. Siegelman,
denied a stigma-plus claim where the plaintiff was designated
a child sexual abuser and placed on Alabama’s Central Regis-
try on Child Abuse and Neglect. 322 F.3d 1290, 1296-98
(11th Cir. 2003). We think Smith rests on a different footing.
It appears that Alabama did not mandate that potential
employers consult the Registry; rather, “the information on
the Registry is made available to an employer or potential
employer where the employment involves care or supervision
of children.” Id. at 1297; see also ALA. CODE § 26-14-8(d)
(providing that the information in the registry “may be made
available” to employers).12 Accordingly, the Eleventh Circuit
held that the Alabama scheme was governed by Paul because
the plaintiff “was [not] denied any right or status other than
his not being branded a child sexual abuser.” Id. at 1297. As
we have explained, the CACI is more than a registry that an
employer “may” consult. By law, licensing agencies must
consult the CACI, investigate, and use the CACI information
in making their licensing decisions, see, e.g., CAL. HEALTH &
SAFETY CODE §§ 1522.1(a), 1526.8(b)(2), 1596.877(b). The
12
Our understanding is that Alabama did not require employers to con-
sult the Alabama registry, and therefore that Siegelman is closer to Paul
than our case. If Alabama did require employers to consult the Alabama
Registry and conduct further investigation, then we respectfully disagree
with the Eleventh Circuit’s holding that there is no “plus.” Such a holding
would fail to recognize that in Paul the reputational damage occurred
inadvertently, and not as the result of a statutory mandate.
600 HUMPHRIES v. COUNTY OF LOS ANGELES
CACI is much closer to the New York Central Register than
the Alabama Registry. See Valmonte, 18 F.3d at 1002(explaining that “the injury associated with the [New York]
Central Register is not simply that it exists, or that the list is
available to potential employers” but rather that “employers
must consult the list.”).
In addition, the Eleventh Circuit either did not have evi-
dence of or did not consider the possibility that as a result of
the statutory framework other entities were effectively
required to consult the registry as a matter of internal rule or
custom. To the extent that the Eleventh Circuit refuses to rec-
ognize a liberty interest where the state functionally requires
agencies to consult a stigmatizing list prior to conferring a
government benefit, we must disagree. A state can alter a
legal right or status without using the word “must”—the word
“may” in conjunction with a rule or custom of “must” can
equally deprive a citizen of a liberty interest giving rise to a
procedural due process claim.
Thus, we conclude that the Humphries’ legal rights or sta-
tus have been altered. First, California has explicitly required
some agencies to search a stigmatizing listing and conduct an
additional investigation before issuing a license or benefit
under state law. Second, California has made CACI informa-
tion available to a variety of other agencies, and the Humph-
ries have introduced evidence that those agencies—especially
agencies charged with ensuring the safety and well-being of
children—reflexively check the CACI before issuing a gov-
ernment license or benefit. Thus, being listed on the CACI
places an added burden on entities wishing to confer legal
rights or benefits, makes the chances of receiving a benefit
conferred under California law less likely, and practically
guarantees that conferral of that benefit will be delayed.
Accordingly, we hold that the Humphries have satisfied the
first step of the procedural due process analysis: They have a
liberty interest in both their good name and using it to obtain
a license, secure employment, become guardians, volunteer or
HUMPHRIES v. COUNTY OF LOS ANGELES 601
work for CASA, or adopt. Listing the Humphries on the
CACI places a tangible burden on their ability to exercise this
liberty interest. We proceed to consider whether they have
been deprived of this interest without due process of law.
2. Adequacy of the Procedural Safeguards
[9] The Humphries must show that the procedural safe-
guards of their liberty interest established by the state are con-
stitutionally insufficient to protect their rights. Ky. Dep’t of
Corr. v. Thompson, 490 U.S. 454, 460 (1989). California cur-
rently provides some minimal safeguards against erroneously
listing someone on the CACI. In the first place, a reporting
agency must conduct “an active investigation and determine[ ]
that the report is not unfounded.” CAL. PENAL CODE
§ 11169(a). Once the agency creates the report and forwards
it to the CA DOJ, if a report “subsequently proves to be
unfounded” the CA DOJ has a duty to “not retain the report.”
Id. Although this entire process is spelled out in the passive
voice, it appears that the agency has the duty to correct its
files and thus to decide if they are unfounded. See id.
§ 11170(a)(2) (“The submitting agencies are responsible for
the accuracy, completeness, and retention of the reports.”).
CANRA also provides that the CACI “shall be continually
updated by the [CA DOJ] and shall not contain any reports
that are determined to be unfounded.” CAL. PENAL CODE
§ 11170(a)(1). Once a report has been made to the CA DOJ
and an entry made on the CACI, “the agency shall also notify
in writing the known or suspected child abuser that he or she
has been reported to the [CACI].” Id. § 11169(b).
[10] A person who believes he has been wrongfully listed
on the CACI has two possible remedies under CANRA. First,
a listed person might try to get the agency who originally
reported the information to the CACI to correct its reports. As
noted above, it appears that California agencies have a general
duty to maintain accurate records and to advise CA DOJ of
any report that subsequently proves unfounded. CAL. PENAL
602 HUMPHRIES v. COUNTY OF LOS ANGELES
CODE §§ 11169(a), 11170(a)(1). CANRA does not identify
how an agency is to ensure that it has accurate records or who
is responsible for correcting any errors. The CA DOJ’s
responsibility is limited to ensuring that the CACI “accurately
reflects the report it receives from the submitting agency”—it
does not appear to have any duty to ensure the accuracy of the
report itself. Id. § 11170(a)(2); CAL. CODE REGS. tit. 11, § 904
(2008) (stating that the CA DOJ “presumes that the substance
of the information provided is accurate and does not conduct
a separate investigation to verify the accuracy of the investi-
gation conducted by the submitting agency”). At best,
CANRA implies that reports are subject to correction “by the
investigator who conducted the investigation.” Id. § 11165.12.
However, California provides no formal mechanism for
requesting that an investigator review a report or for appeal-
ing an investigator’s refusal to revisit a prior report. Thus, for
this first avenue of obtaining relief, at best an informal pro-
cess exists in which the person seeking review must contact
the agency blindly and hope the investigator is responsive. It
is not clear what a person seeking review is to do if the inves-
tigator has transferred from the agency, retired, or died.
[11] Second, the person may rely on a licensing or employ-
ing agency to conduct its own investigation and to “draw[ ]
independent conclusions regarding the quality of the evidence
disclosed, and its sufficiency for making decisions regarding
investigation, prosecution, licensing, placement of a child,
employment or volunteer positions with a CASA program, or
employment as a peace officer.” Id. § 11170(b)(9)(A). Indeed,
no particular process is required prior to the agency “drawing
independent conclusions.” Unless the agency unilaterally
undertakes its own detailed investigation, it may only perpetu-
ate any errors contained in the original report, even as it draws
its own “independent conclusions.” In addition, even if the
agency has the time, funding, and resources to determine that
the evidence contained in the CACI is erroneous or
unfounded, it does not have power to expunge the listing.13
13
In most instances, California provides no formal means for reviewing
or appealing an agency’s independent determination. As we discuss in
HUMPHRIES v. COUNTY OF LOS ANGELES 603
Thus, in the best case scenario for an innocent person placed
on the CACI, the only remedy under this avenue for relief is
that the agency might still confer the government benefit after
taking the time to conduct an added background investigation.
The CACI listing, however, remains.
We evaluate the process that California provides persons
listed on the CACI under the three part test set out in Mathews
v. Eldridge, 424 U.S. 319, 335 (1976). Mathews instructs us
to balance (1) the private interest affected by the official
action; (2) the risk of erroneous deprivation and the probable
value of additional procedural safeguards; and (3) the govern-
mental interest, including the fiscal and administrative bur-
dens of additional procedures. Id. The procedural due process
inquiry is made “case-by-case based on the total circum-
stances.” California ex rel. Lockyer v. F.E.R.C., 329 F.3d 700,
711 (9th Cir. 2003). We will consider the private and govern-
mental interests first, followed by a discussion of the risk of
error in the procedures established by the state.
a. Private Interest
The Humphries’ argument in support of their private inter-
est at stake is essentially coextensive with their argument in
support of their liberty interest. From all we have said, the
Humpries have an interest in not being stigmatized by having
their names included in a child abuse database that places a
tangible burden on legal rights, if they have not committed the
acts underlying the reports that led to their inclusion. Thus,
they have an interest in pursuing employment and adoption,
seeking to obtain custody of a relative’s children, and secur-
ing the appropriate licenses for working with children without
having to be subject to an additional investigation, delays, and
possible denial of a benefit under California law due to an
incorrect listing on the CACI.
greater detail below, denial of a right by DSS may be subject to judicial
review. CAL. HEALTH & SAFETY CODE § 1526; CAL. FAMILY CODE § 8720.
604 HUMPHRIES v. COUNTY OF LOS ANGELES
b. Governmental Interest
There is no doubt that California has a vital interest in pre-
venting child abuse and that the creation or maintenance of a
central index, such as the CACI, is an effective and responsi-
ble means for California to secure its interest. See Santosky v.
Kramer, 455 U.S. 745, 766 (1982); People v. Stockton Preg-
nancy Control Med. Clinic, 249 Cal. Rptr. 762, 772 (Cal. Ct.
App. 1988) (finding the goals of detecting and preventing
child abuse are a “compelling” government interest). Never-
theless, the operative question is not whether California has
a significant interest in maintaining CACI—no one doubts
that it does—but rather whether California has a significant
interest in having a limited process by which an individual
can challenge inclusion on the CACI, and to what extent
adding additional processes will interfere with the overarch-
ing interest in protecting children from abuse.
We do not question, for example, that California has a sig-
nificant interest in maintaining even “inconclusive” reports,
which are reports that are neither “substantiated” nor “un-
founded.” See CAL. PENAL CODE §§ 11165.12, 11169(a). Such
reports that only hint at abuse, when coupled with other infor-
mation, can reveal patterns that might not otherwise be
detected and can be useful to law enforcement. But it is
equally apparent that California can have no interest in main-
taining a system of records that contains incorrect or even
false information. First, the effectiveness of a system listing
individuals that pose a danger to children becomes less effec-
tive if a larger and larger percentage of the population errone-
ously becomes listed due to unsubstantiated claims. To clarify
our point through an extreme example, it is obvious that if one
hundred percent of the population were erroneously included
in the CACI, it would provide no benefit to California in iden-
tifying dangerous individuals. Thus, the more false informa-
tion included in a listing index such as the CACI, the less
useful it becomes as an effective tool for protecting children
from child abuse. In addition, there is a great human cost in
HUMPHRIES v. COUNTY OF LOS ANGELES 605
California, as elsewhere, to being falsely accused of being a
child abuser. These costs are not only borne by the individuals
falsely accused, but by their children and extended families,
their neighbors and their employers. Indeed, with the same
passion that California condemns the child abuser for his atro-
cious acts, it has an interest in protecting its citizens against
such calumny.
[12] California contends that requiring any process beyond
what it currently provides will substantially impair the state’s
ability to protect children because hearings are time-
consuming and drain limited resources, resulting in less effi-
cient delivery of primary services such as protecting children.
It is true, of course, that giving individuals some additional
procedure by which they can challenge their listing on CACI
will impose administrative and fiscal burdens on California.
However, generally these burdens are precisely the sort of
administrative costs that we expect our government to shoul-
der. The state has not provided any evidence that the process
required to sort through claims of an erroneous listing in the
CACI is any more burdensome than the process due in any
other context.
c. Risk of Erroneous Deprivation
The final, and perhaps most important, Mathews factor is
the risk of erroneous deprivation and the probable value of
additional procedural safeguards. As we evaluate this factor,
we ask “considering the current process, what is the chance
the state will make a mistake?” In this case, we ask, “after
examining the process by which persons are listed on the
CACI, what is the risk of someone being erroneously listed?”
In light of the Humphries’ allegations—and keeping in mind
that we are reviewing a grant of summary judgment in favor
of the state—the answer is “quite likely.”
Appellees argue that the current procedures present little
risk of erroneous deprivation because an agency may transmit
606 HUMPHRIES v. COUNTY OF LOS ANGELES
a child abuse report only after it “has conducted an active
investigation and determined that the report is not unfound-
ed.” CAL. PENAL CODE § 11169(a). We are not assuaged. A
determination that the report is “not unfounded” is a very low
threshold. As we explained above, CANRA defines an “un-
founded report” as a report that the investigator determines
“to be false, to be inherently improbable, to involve an acci-
dental injury, or not to constitute child abuse or neglect.” CAL.
PENAL CODE § 11165.12(a). Effectively, a determination that
a report is “not unfounded” merely means that the investigator
could not affirmatively say that the report is “false.” This is
the reverse of the presumption of innocence in our criminal
justice system: the accused is presumed to be a child abuser
and listed in CANRA unless the investigator determines that
the report is false, improbable, or accidental. Incomplete or
inadequate investigations must be reported for listing on the
CACI.
We have no evidence in the record that indicates exactly
how many “false positives” reporting agencies receive. See
Broam v. Bogan, 320 F.3d 1023, 1032 (9th Cir. 2003); see
also Kennedy v. Louisiana, 128 S. Ct. 2641, 2663 (2008) (not-
ing “[t]he problem of unreliable, induced, and even imagined
child testimony”). However, given the high stakes in child
abuse cases, presumably an agency investigation and child
abuse report can be triggered by as little as an anonymous
phone call. It is apparent in such a system there is a real dan-
ger of prank and spite calls. California should investigate such
reports, and it can—and perhaps should—retain records on
any reports it cannot determine to be “unfounded.” When it
retains all reports that are “not unfounded,” it assumes a sub-
stantial risk that some of its reports are false, even if the
investigator cannot prove to his own satisfaction that they are
“unfounded.” We understand the need for investigators who
work off of hunches, disparate patterns, and minute clues to
maintain files on unsubstantiated reports of child abuse for
their own investigative purposes. But when such reports find
their way into the CACI, there is a real risk that people, like
HUMPHRIES v. COUNTY OF LOS ANGELES 607
the Humphries, will have to explain publicly how their names
ended up on the state’s child abuse database.
[13] The record is devoid of any systematic study of the
error rate in the CACI. We do note that in a 2004 self-study
of CANRA, a California task force reported on a pilot pro-
gram in San Diego County, where “DOJ discovered that
approximately 50 percent of CACI listings originating from
[one agency] should be purged because the supporting docu-
mentation was no longer maintained at the local level.” Child
Abuse and Neglect Reporting Act Task Force Report 24
(2004). The task force found that “[if] this percentage held
true for the entire State it is possible that half of the 800,000
records which DOJ presently maintains in CACI should be
purged.” Id. We will not infer too much from this limited
study, except to remark that it confirms our own observations
about the low threshold for putting names on the CACI and
the tendency to overinclude. As an initial matter then, we con-
clude that there is a substantial risk that California will
deprive innocent persons of their “reputation-plus” by main-
taining files on them in the CACI.
Any errors introduced at the time information is posted to
the CACI arguably can be corrected. As we have noted, once
the information is posted, the CA DOJ must notify the known
or suspected child abuser that he has been reported to the
CACI. CAL. PENAL CODE § 11169(b). At that point, if the per-
son believes he has been reported in error, he has three
options. First, he can try to informally persuade the investiga-
tor who reported it in the first place. Second, he can wait until
an agency or other entity that is required to consult the CACI
receives the information and rely on the agency or other enti-
ty’s “independent conclusions regarding the quality of the evi-
dence disclosed, and its sufficiency for making decisions.” Id.
§ 11170(b)(9)(A). Third, once an agency makes an adverse
decision, some persons have a right to appeal the decision in
court. See, e.g., CAL. HEALTH & SAFETY CODE § 1526 (provid-
608 HUMPHRIES v. COUNTY OF LOS ANGELES
ing a hearing after the denial of a license); CAL. FAMILY CODE
§ 8720 (providing for judicial review of an adoption denial).
None of these means for correcting erroneous information
in the CACI is well designed to do so. We consider each in
turn.
1. Persuading the investigator. First, attempting to per-
suade the investigating officer is not a satisfactory way to cor-
rect the records. The Humphries received notice that their
names had been referred to the CACI. They were not told
what information was there—although, given their recent
experience, they had a pretty good idea—and were told, “If
you believe the report is unfounded . . . please address your
request to Detective M. Wilson.” In other words, the only
recourse offered to the Humphries was to try to get the inves-
tigator who had made the original determination that their
case was “substantiated” to change his mind. Nothing in
CANRA instructs Detective Wilson how to deal with the Hum-
phries.14 He is not required to respond to the Humphries or
address their concerns or pleas in any way, he has been given
no standard for reevaluating his initial judgment, and no one
else other than Detective Wilson is required to respond to the
Humphries. If Detective Wilson refuses to reconsider his orig-
inal evaluation, the Humphries have no statutory recourse
elsewhere within the LASD.
[14] The Humphries are in a tough position. They are not
the only ones. Under the California scheme, Detective Wilson
has been placed in a difficult situation, because he has been
asked to revisit his initial judgment. Detective Wilson is, by
training and employment, an investigator, not an adjudicator.
14
Detective Wilson had actually left the department before the Humph-
ries could petition him to revisit his decision. We refer to Detective Wil-
son in our analysis here as a surrogate for the investigating officer under
the statutory scheme to show the limitations in the process afforded by
CANRA.
HUMPHRIES v. COUNTY OF LOS ANGELES 609
That is not to say that investigators do not have to make
important judgments; they do, but these judgments are subject
to review, and Detective Wilson has none of the usual checks
and balances to rely on. In the course of a criminal investiga-
tion, he may have his work reviewed by a superior within the
LASD, or the District Attorney’s office may review his judg-
ment to decide whether to file formal charges. However, these
reviews are likely to take place before any information is
posted to the CACI and would have no effect on any review
Wilson would undertake at the Humphries’ request.15 Effec-
tively, Detective Wilson has been tasked with being investiga-
tor, prosecutor, judge, and jury with respect to the Humphries’
CACI listing. He alone makes the initial judgment to place the
Humphries on the CACI, with all of its legal consequences.
Moreover, his judgment is apparently unreviewable except by
himself. Since CANRA does not provide for formal review of
a CACI listing, it also means that there are no standards for
an investigator to review his prior decisions. Under such
circumstances—where there is no standard, no superior outlet
for review, and thus no danger of being overturned—it is
unlikely that an investigator will, in effect, reverse himself.
Any errors made in the initial referral to the CACI are, there-
fore, likely to be perpetuated through an informal appeal.
[15] The California system asks too much of its investiga-
tors in this situation. The Due Process Clause does not impose
the separation of powers on the state or local governments.
See Colo. Gen. Assembly v. Salazar, 541 U.S. 1093, 1095
(2004) (Rehnquist, C.J., dissenting from denial of certiorari);
Whalen v. United States, 445 U.S. 684, 689 n.4 (1980). But
15
This is demonstrated clearly in the Humphries’ case. Although the
Humphries had been booked on felony torture, the district attorney
rejected the attempt to file a felony action against them, and only allowed
the case to be filed for misdemeanor consideration. The district attorney
then dismissed the remainder of the Humphries’ case after learning of Dr.
Paz’s examinations of S.H.’s entire body with no sign of abuse. Neverthe-
less, this district attorney “review” of Detective Wilson’s judgment had no
effect on the Humphries’ CACI listing.
610 HUMPHRIES v. COUNTY OF LOS ANGELES
the Due Process Clause may demand a separation of func-
tions. See, e.g., Withrow v. Larkin, 421 U.S. 35, 47 (1975).
The burden on the Humphries is a heavy one:
The contention that the combination of investigative
and adjudicative functions necessarily creates an
unconstitutional risk of bias in administrative adjudi-
cation has a much more difficult burden of persua-
sion to carry. It must overcome a presumption of
honesty and integrity in those serving as adjudica-
tors; and it must convince that, under a realistic
appraisal of psychological tendencies and human
weakness, conferring investigative and adjudicative
powers on the same individuals poses such a risk of
actual bias of prejudgment that the practice must be
forbidden if the guarantee of due process is to be
adequately implemented.
Id. Nevertheless, we think the burden has been met in this
case, particularly when we consider the risk of erroneous
deprivation in light of the interests of those whose names are
placed on the CACI. We do not question the honesty and
integrity of officials such as Detective Wilson. We simply
believe that in this context, CANRA asks more of a state or
local official than is reasonable.
[16] We wish to be clear: We do not adopt the proposition
that “agency members who participate in an investigation are
disqualified from adjudicating.” Id. at 52. Such a proposition
is belied by the cases and the “incredible variety of adminis-
trative mechanisms in this country.” Id. Rather, we hold that
a single person, charged with investigating serious allegations
of child abuse, may not adjudicate those allegations for place-
ment on the CACI and serve as appellate commissioner in
review of his own decision. The risk of perpetuating any orig-
inal error is too great.
2. Reaching an independent agency conclusion. Appel-
lees also argue that there is little risk of erroneous deprivation
HUMPHRIES v. COUNTY OF LOS ANGELES 611
because an agency that has consulted the CACI must base its
decision regarding the listed person on its own “independent
conclusions.” CAL. PENAL CODE § 11170(b)(9)(A). Further-
more, California regulations make it “the responsibility of
authorized individuals or entities to obtain and review the
underlying investigative report and make their own assess-
ment of the merits of the child abuse report.” CAL. CODE REGS.
tit. 11, § 902 (2008). The decision maker “shall not act solely
upon [CACI] information.” Id.
First, we note that by the time the decision maker has refer-
enced the CACI and become charged with undertaking an
additional investigation, the individual liberty interest in
avoiding stigma and alteration of a legal right has already
occurred. Of course, the Due Process Clause does not always
require the state to offer process to a person prior to the depri-
vation of a liberty interest, see Gilbert v. Homar, 520 U.S.
924, 930 (1997), but we note for purposes of determining the
adequacy of the process offered by Appellees—additional
investigation of a CACI listing to determine if a person should
receive a government benefit—is the very type of interference
with a liberty interest that an innocent person listed on the
CACI seeks to avoid.
Second, even if the agency conducts a thorough investiga-
tion, nothing the agency decides affects the CACI listing; that
is, even if an agency, conducting its own investigation,
decides that the claims against a listed person are unfounded,
the agency has no power to correct the CACI listing. The per-
son is stuck in CACI-limbo. Thus, the process proferred by
Appellees fails to address the stigma of being listed on the
CACI and resolve the fact that other agencies will still be
forced to consult the CACI to confer other benefits under the
law.
Disregarding these limitations temporarily, it is not clear to
us that an agency, in reality, can or will regularly engage in
the process required to determine that charges against an indi-
612 HUMPHRIES v. COUNTY OF LOS ANGELES
vidual are unfounded. As a practical matter, when a person’s
name appears on the CACI, the agency must take that fact
seriously and presume that the person has committed some
kind of child abuse, even if there is no record of conviction.
For example, before issuing a license for child care, we can-
not imagine that an agency would issue the license to a person
listed on the CACI—if it considers doing so at all—without
undertaking an investigation to disprove whatever evidence
existed that caused the person to be listed in the first place.
To restate it in CANRA’s own terms, the agency must satisfy
itself that information that was “not unfounded” is “unfound-
ed.” The agency must be prepared to contradict the investigat-
ing agency.
The older the evidence, or the more involved the allega-
tions, the more expensive it will be for the agency to disprove
the allegations. We are not unfamiliar with the budgetary and
time constraints that hamper government agencies. An agency
with a limited budget, presented with the choice of thoroughly
investigating allegations of child abuse so that it can issue a
license, or simply denying the license after a cursory investi-
gation so that it can spend its resources elsewhere, can reason-
ably be expected to choose the latter. We do not mean to
imply that California agencies will not behave honestly or
forthrightly, but we cannot help but observe that such entities
bear a substantial burden, embedded in CANRA, to justify
issuing a license to a person listed on the CACI. In sum, any
agency—and especially agencies that deal with children—are
likely to presume the integrity of the information found on the
CACI, assume that individuals listed on the CACI actually
abused children, and deny the license rather than risk award-
ing, for example, a child care license to a listed individual.
This case illustrates these problems. The Humphries allege
that they have been erroneously placed on the CACI. In order
to clear their name from this stigma, they must apply for a
legal right or benefit of the state and subject themselves to an
additional investigation before that right or benefit will be
HUMPHRIES v. COUNTY OF LOS ANGELES 613
conferred. If Craig or Wendy Humphries sought a license to
care for children, the licensing agency would have to obtain
and review the Humphries’ 2001 “file prepared by the child
protective agency which investigated the child abuse report.”
CAL. HEALTH AND SAFETY CODE § 1522.1(a). That file contains
Detective Wilson’s conclusion that the Humphries were “sub-
stantiated” child abusers. In order to protect the children that
the Humphries will deal with, the agency is going to start with
the presumption that it must deny the license unless it finds
evidence contrary to Detective Wilson’s investigation. So far
as we can determine, the Humphries’ file does not include the
result of the dependency proceeding (including the finding of
“not true”), or information about the dropped criminal charges
(including the finding of “factually innocent”). Faced with the
cost and time of investigating seven-year old allegations,
there is no reason to assume that any agency would attempt
to track down this information on its own. In the Humphries’
case, the existence of such court records, if they could get
them before the licensing agency, might go a long way to
rebutting the presumption. Other applicants, however, may
not be so fortunate as to have faced formal proceedings and
had the proceedings resolved so clearly in their favor. In the
case of a person who is accused of child abuse, but never for-
mally charged, the agency would have to reinvestigate the
underlying allegations, possibly requiring the examination of
witnesses in order to satisfy itself that the original charges
were erroneous. In the end, the agency may do what Sergeant
Becker did when asked to review Detective Wilson’s file. He
simply relied on the fact that charges were filed as evidence
“that some sort of crime did occur” and refused to give any
weight to the fact that the charges were dismissed in court.
3. Seeking court review. Finally, Appellees argue that
some persons adversely affected by decisions resulting from
their listing on the CACI may seek redress in the legal system
on a case-by-case basis. See, e.g., CAL. HEALTH & SAFETY
CODE § 1526 (providing a hearing after the denial of a
license); CAL. FAMILY CODE § 8720 (providing for judicial
614 HUMPHRIES v. COUNTY OF LOS ANGELES
review of an adoption denial). The administrative review pro-
cess offers some check on the system. As we know from our
own experience, court review of agency decisions can be a
cumbersome process. What is most troubling about the states’
argument, however, is that even court review cannot solve the
problem. Even if an individual is ultimately successful and
obtains, for example, a child-care license, the court’s favor-
able disposition has no apparent impact on the individual’s
listing on the CACI. Thus, the judicial review afforded by the
statute faces the same problem as the original agency determi-
nation: It cannot end the stigma or the tangible burden on
government rights that an individual listed on the CACI faces.
Again, the Humphries’ experience is instructive. The Hum-
phries have taken advantage of every procedure available to
them, including the California courts. They went to the depen-
dency court, which found that the allegations were “not true”
and returned their children to them. They went to the prosecu-
tor, who dropped all the charges against them. They went to
the criminal court, which declared them “factually innocent”
and sealed their arrest records. None of this had any effect on
their CACI listing. They will remain on the CACI until the
investigating agency submits corrected information to the sys-
tem. There is no effective procedure for the Humphries to
challenge this listing, and no way for them to be removed
from the listing. The Humphries have been given no opportu-
nity to be heard on the CACI listing.
[17] In sum, we are not persuaded that California has pro-
vided a sufficient process for ensuring that persons like the
Humphries do not suffer the stigma of being labeled child
abusers plus the loss of significant state benefits, such as
child-care licenses or employment. The processes in place in
California do not adequately reduce the risk of error. In Val-
monte, which we previously discussed, the New York Central
Register had far more procedural protections than the CACI—
including a hotline for addressing erroneous listings, a formal
investigation procedure, and two administrative hearings on
HUMPHRIES v. COUNTY OF LOS ANGELES 615
expungement—yet the Second Circuit found that there was a
high risk of erroneous deprivation. 18 F.3d at 995-97, 1003-
04. “The crux of the problem with the procedures,” according
to the Second Circuit, was that New York’s “ ‘some credible
evidence’ standard results in many individuals being placed
on the list who do not belong there.” Id. at 1004. Again,
unlike in California, in New York there was a detailed proce-
dure for expungement from the list. Id. at 995-97. When the
court looked at that procedure, it determined that seventy-five
percent of those challenging their inclusion on the list were
successful. Id. at 1003. This confirmed to the court that the
original listing determination was suspect. Id. at 1003-04.
[18] Here, we do not have comparable statistical data on
the rate of error because California has no expungement pro-
cedure. However, California’s standard for referring names to
the CACI—“not unfounded”—is, if anything, more encom-
passing than New York’s word formula—“some credible evi-
dence.” Additionally, as we previously noted, even California
has recognized, in its task force report, that it may have a high
error rate on the CACI, perhaps as high as fifty percent. Child
Abuse and Neglect Reporting Act Task Force Report at 24.
We acknowledge that this figure is not necessarily statistically
significant, and we will not treat it as such; however, it does
serve as a general indication that a large percentage of the
individuals listed on the CACI might have a legitimate basis
for expungement. If we can learn any lesson from New
York’s experience, it is that California’s CACI has the poten-
tial to be overinclusive, and perhaps vastly so. We note that
as of 2004, there were an estimated 810,000 suspects on the
CACI. Id. at 7. We echo the Second Circuit’s observation:
“[I]t [is] difficult to fathom how such a huge percentage of
[Californians] could be included on a list . . . unless there has
been a high rate of error in determinations.” Valmonte, 18
F.3d at 1004. We conclude that there is a substantial risk that
individuals will be erroneously listed on the CACI, and that
California offers insufficient means for correcting those
errors.
616 HUMPHRIES v. COUNTY OF LOS ANGELES
d. Balancing
[19] Mathews requires that we consider the risk of error in
light of the individuals’ interest and the government’s interest.
See Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004) (“The
Mathews calculus . . . contemplates a judicious balancing of
these concerns . . . .”). In the end, this is not a difficult case.
The lack of any meaningful, guaranteed procedural safeguards
before the initial placement on CACI combined with the lack
of any effective process for removal from CACI violates the
Humphries’ due process rights. Undoubtedly, California has
a strong interest in protecting its youngest and most vulnera-
ble residents from abuse, but that interest is not harmed by a
system which seeks to clear those falsely accused of child
abuse from the state’s databases. CANRA creates too great a
risk of individuals being placed on the CACI list who do not
belong there, and then remaining on the index indefinitely.
[20] Beyond declaring that California’s procedural protec-
tions are constitutionally inadequate, we do not propose to
spell out here precisely what kind of procedure California
must create. The state has a great deal of flexibility in fashion-
ing its procedures, and it should have the full range of options
open to it. We do not hold that California must necessarily
create some hearing prior to listing individuals on CACI. At
the very least, however, California must promptly notify a
suspected child abuser that his name is on the CACI and pro-
vide “some kind of hearing” by which he can challenge his
inclusion. See Goss v. Lopez, 419 U.S. 565, 578 (1975);
Henry J. Friendly, “Some Kind of Hearing,” 123 U. Pa. L.
Rev. 1267 (1975) (discussing the various forms that a hearing
can take). The opportunity to be heard on the allegations
ought to be before someone other than the official who ini-
tially investigated the allegation and reported the name for
inclusion on the CACI, and the standards for retaining a name
on the CACI after it has been challenged ought to be carefully
spelled out.
HUMPHRIES v. COUNTY OF LOS ANGELES 617
Nothing we have said here infringes on the ability of the
police, or other agencies, to conduct a full investigation into
allegations of child abuse. The need for such investigations—
which, we acknowledge, are intrusive and difficult to conduct
—is obvious. Nor does anything we have said undermine the
ability of appropriate law enforcement agencies to maintain
records on such investigations, even if the investigations do
not result in formal charges or convictions. Again, we under-
stand the need for law enforcement to rely on hunches and to
collect bits and pieces of information to establish a history or
pattern that may lead to formal charges in future cases. The
mere maintenance of such investigatory files apart from the
CACI does not raise concerns under the Due Process Clause.
What California has done is not just maintain a central inves-
tigatory file, but attach legal consequences to the mere listing
in such files. Once California effectively required agencies to
consult the CACI before issuing licenses, the CACI ceased to
be a mere investigatory tool. The fact of listing on the CACI
became, in substance, a judgment against those listed.
B. Qualified Immunity
Having decided that the Humphries’ Due Process rights
under the Fourteenth Amendment were violated, we next con-
sider whether the individual defendants are entitled to quali-
fied immunity. Officials who violate constitutional rights
under color of law are entitled to qualified immunity unless
“it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Saucier v. Katz, 533
U.S. 194, 202 (2001). Although the district court did not reach
the issue of qualified immunity we may do so where it is clear
from the record before us. See Redding v. Safford Unified Sch.
Dist. No. 1, 531 F.3d 1071, 1078, 1087 (9th Cir. 2008) (en
banc) (addressing qualified immunity analysis although the
district court had found no constitutional violation).
First, Detective Ansberry is entitled to summary judgment
in his favor. We have held that “[l]iability under § 1983 arises
618 HUMPHRIES v. COUNTY OF LOS ANGELES
only upon a showing of personal participation by the defen-
dant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
The Humphries have not presented any evidence that Ans-
berry was in any way involved in the decision to list the Hum-
phries in the CACI, or to keep them on the CACI.
Next we grant the motion for summary judgment in favor
of Sheriff Baca. Under § 1983, a supervisor is only liable for
his own acts. Where the constitutional violations were largely
committed by subordinates the supervisor is liable only if he
participated in or directed the violations. Id. There is no evi-
dence that Sheriff Baca had any direct involvement in the
decision to list the Humphries on the CACI, or to keep them
on the CACI.
We also have no difficulty finding that Detective Wilson is
entitled to qualified immunity. We have held that “an officer
who acts in reliance on a duly-enacted statute . . . is ordinarily
entitled to qualified immunity” which is lost only if it is “so
obviously unconstitutional as to require a reasonable officer
to refuse to enforce it.” Grossman v. City of Portland, 33 F.3d
1200, 1209-10 (9th Cir. 1994). The California system, which
denied the Humphries their procedural due process rights was
not so obviously unconstitutional as to suggest to Detective
Wilson that he ought not abide by CANRA’s provisions and
report the Humphries for listing on the CACI. A procedural
due process analysis that requires a complicated balancing test
is sufficiently unpredictable that it was not unreasonable for
Detective Wilson to comply with the duly-enacted CANRA
provisions. See Baker v. Racansky, 887 F.2d 183, 187 (9th
Cir. 1989). Therefore, Detective Wilson is entitled to quali-
fied immunity for any damages resulting from the denial of
the Humphries’ procedural due process rights, and we grant
summary judgment in his favor on that claim.
C. Monell Liability
Unlike Detective Wilson, the County is not entitled to qual-
ified immunity for acting in good faith reliance on state law.
HUMPHRIES v. COUNTY OF LOS ANGELES 619
See Owen v. City of Independence, 445 U.S. 622, 638 (1980)
(finding that there is no qualified immunity for local govern-
ment). Rather, the County is subject to liability under Monell
v. Department of Social Services, if a “policy or custom” of
the County deprived the Humphries of their constitutional
rights. 436 U.S. 658, 694 (1978). The district court did not
address the County’s liability under Monell because it found
no violation of the Humphries’ constitutional rights.
We have held that “[i]n order to avoid summary judgment
a plaintiff need only show that there is a question of fact
regarding whether there is a city custom or policy that caused
a constitutional deprivation.” Wallis v. Spencer, 202 F.3d
1126, 1136 (9th Cir. 2000). CANRA itself did not create a
sufficient procedure by which the Humphries could challenge
their listing on the Index. Nothing in CANRA, however, pre-
vented the LASD from creating an independent procedure that
would allow the Humphries to challenge their listing on the
Index. By failing to do so, it is possible that the LASD
adopted a custom and policy that violated the Humphries’
constitutional rights. However, because this issue is not clear
based on the record before us on appeal—and because the
issue was not briefed by the parties—we remand to the district
court to determine whether or not the County is entitled to
qualified immunity.
III. CONCLUSION
[21] For the reasons described above, CANRA violates the
Humphries’ procedural due process rights, in violation of 42
U.S.C. § 1983. We therefore reverse the district court’s grant
of summary judgment to the State and the County and remand
for further proceedings consistent with this opinion. We
affirm the district court’s grant of summary judgment to
Detectives Wilson and Ansbery and Sheriff Baca on the
grounds of qualified immunity.
AFFIRMED in part; REVERSED in part and
REMANDED.