Natia Sampson v. County of Los Angeles ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIA SAMPSON, No. 18-55450
Plaintiff-Appellant,
D.C. No.
v. 5:17-cv-00599-
PA-PJW
COUNTY OF LOS ANGELES, by and
through the Los Angeles County
Department of Children and Family OPINION
Services; NICOLE DAVIS; AHMED
OBAKHUME; DAWNA YOKOYAMA;
GERALDO IBARRA,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted November 8, 2019
Pasadena, California
Filed September 9, 2020
Before: Mary H. Murguia and Andrew D. Hurwitz, Circuit
Judges, and Jack Zouhary, * District Judge.
*
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
2 SAMPSON V. COUNTY OF LOS ANGELES
Opinion by Judge Murguia;
Partial Concurrence and Partial Dissent by Judge Hurwitz;
Partial Concurrence and Partial Dissent by Judge Zouhary
SUMMARY **
Civil Rights
The panel affirmed in part and vacated in part the district
court’s order dismissing a complaint on qualified immunity
grounds, and remanded, in an action brought pursuant to 42
U.S.C. § 1983 against the Los Angeles County Department
of Children and Family Services and four individual
employees alleging sexual harassment in violation of the
Equal Protection Clause of the Fourteenth Amendment,
retaliation under the First Amendment, and related
constitutional claims.
The panel first vacated the district court’s grant of
qualified immunity to defendants on plaintiff’s First
Amendment retaliation claim. The panel held that it was
clearly established at the time of defendants’ conduct that the
First Amendment prohibits public officials from threatening
to remove a child from an individual’s custody to chill
protected speech out of retaliatory animus for such speech.
Defendants therefore should have known that it was
unconstitutional to retaliate against plaintiff for speaking out
about the sexual harassment she allegedly suffered. The
panel remanded to the district court for it to determine in the
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SAMPSON V. COUNTY OF LOS ANGELES 3
first instance whether plaintiff plausibly alleged a retaliation
claim under the First Amendment.
The panel reluctantly affirmed the district court’s grant
of qualified immunity to defendants on plaintiff’s equal
protection claim because the right of private individuals to
be free from sexual harassment at the hands of social
workers was not clearly established at the time of
defendants’ conduct in this case. Nevertheless, moving
forward, the panel explicitly held that public officials,
including social workers, violate the Equal Protection
Clause of the Fourteenth Amendment when they sexually
harass private individuals while providing them social
services.
Concurring in part and dissenting in part, Judge Hurwitz
agreed with Judge Murguia that the qualified immunity
doctrine, however ill-conceived, barred plaintiff’s otherwise
plausible equal protection claim, and therefore concurred in
Section IV.B of the majority opinion. Judge Hurwitz
dissented from Section IV.A of the opinion, stating that on
the issue of whether defendants were entitled to qualified
immunity on the First Amendment claim, there was no
sufficiently similar binding precedent at the time of the
conduct at issue that would have warned the alleged
violators that their actions were constitutionally forbidden.
Concurring in part and dissenting in part, District Judge
Zouhary agreed with Judge Murguia that the application of
qualified immunity was improper with respect to the First
Amendment claim. He stated that when the conduct at issue
took place, it was clearly established that public officials
may not threaten to remove a child from an individual’s
custody in retaliation for protected speech. He therefore
joined in Section IV.A of the opinion. As for the Equal
4 SAMPSON V. COUNTY OF LOS ANGELES
Protection claim, Judge Zouhary agreed that defendants’
alleged actions violated plaintiff’s constitutional right to be
free of sexual harassment. However, he disagreed that this
right was not yet clearly established, and therefore he
dissented from Section IV.B of the opinion.
COUNSEL
Andre L. Clark (argued), Law Office of Andre Clark, San
Bernardino, California; Daniel C. Sharpe, Law Offices of
Vincent W. Davis & Assoc., Arcadia, California, for
Plaintiff-Appellant.
Jaime Verducci (argued), David J. Weiss, and Michael H.
Foman, Law Offices of David J. Weiss, Los Angeles,
California, for Defendants-Appellees.
OPINION
MURGUIA, Circuit Judge:
Natia Sampson volunteered to become the legal guardian
of her niece, H.S., after her parents were incarcerated.
Sampson alleges that throughout the process of applying for
and obtaining legal guardianship of H.S., she was sexually
harassed by a social worker assigned to her case; when
Sampson complained about the harassment, the social
worker and his supervisors allegedly retaliated against her.
Sampson sued the Los Angeles County Department of
Children and Family Services (“DCFS”) and four individual
employees thereof (collectively, “Defendants”) under
42 U.S.C. § 1983, alleging sexual harassment in violation of
SAMPSON V. COUNTY OF LOS ANGELES 5
the Equal Protection Clause of the Fourteenth Amendment,
retaliation under the First Amendment, and other related
constitutional claims. The district court granted qualified
immunity to Defendants on the Fourteenth Amendment
sexual harassment and First Amendment retaliation claims
and dismissed all other claims.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm in part and vacate in part. We vacate the district
court’s grant of qualified immunity to Defendants on
Sampson’s First Amendment retaliation claim because it
was clearly established at the time of Defendants’ conduct
that the First Amendment prohibits public officials from
threatening to remove a child from an individual’s custody
to chill protected speech out of retaliatory animus for such
speech. In other words, Defendants should have known that
it was unconstitutional to retaliate against Sampson for
speaking out about the sexual harassment she allegedly
suffered.
We reluctantly affirm, however, the district court’s grant
of qualified immunity to Defendants on Sampson’s equal
protection claim because the right of private individuals to
be free from sexual harassment at the hands of social
workers was not clearly established at the time of
Defendants’ conduct in this case. Nevertheless, moving
forward, we explicitly hold that public officials, including
social workers, violate the Equal Protection Clause of the
Fourteenth Amendment when they sexually harass private
individuals while providing them social services. The Equal
Protection Clause protects all of us from sexual harassment
at the hands of public officials who are supposed to serve us.
This is especially true for vulnerable individuals like
Sampson, who availed herself of the State’s social services
to become H.S.’s permanent legal guardian to protect her
6 SAMPSON V. COUNTY OF LOS ANGELES
niece from being placed in the State’s foster care system. To
hold otherwise would be contrary to the Constitution’s
guarantee of equal protection under the law.
I. Factual Background
Sampson alleged the following facts, which we take as
true in this appeal from the district court’s order dismissing
the operative complaint. See Mier v. Owens, 57 F.3d 747,
750 (9th Cir. 1995). Sampson is a paternal aunt of minor
H.S. During the summer of 2014, Sampson learned H.S.’s
parents had been incarcerated, resulting in the placement of
H.S. in foster care. After contacting DCFS about H.S.,
Sampson moved from Nevada to San Bernardino County,
California, to be H.S.’s caregiver. In November 2014, the
Los Angeles County juvenile dependency court ordered H.S.
to be placed in Sampson’s care pending Sampson’s
guardianship application.
DCFS assigned Ahmed Obakhume, a social worker at its
“Vermont Corridor” office, to H.S.’s case. Obakhume
commented on Sampson’s appearance and marital status,
urging her to end her marriage, inappropriately touching her,
and attempting to coerce her into riding in his vehicle.
Sampson did not initially report Obakhume’s conduct,
fearing it would negatively impact her case. In February
2015, however, after several months of unwanted advances,
Sampson complained about Obakhume’s conduct to his
supervisor, Nicole Davis, who replied that Obakhume was
“one of her best” social workers and the only one willing to
work with H.S.’s biological parents. Obakhume’s conduct
continued.
Throughout 2015, Sampson experienced two other
issues in dealing with DCFS officials. First, DCFS required
Sampson to supervise visits between H.S. and the biological
SAMPSON V. COUNTY OF LOS ANGELES 7
parents. Sampson expressed her unwillingness to do so to
Kilene Short—another Vermont Corridor social worker
briefly assigned to H.S.’s case—but Short refused to remedy
the situation. Second, Sampson had difficulties obtaining
the additional “F-Rate” funding 1 for caregivers of children
with special needs, for which Sampson claimed she was
eligible. DCFS officials failed to provide the proper F-Rate
paperwork, clothing allowances, and other reimbursements
to Sampson. Obakhume also failed to advise Sampson that
completing a class was required to qualify for F-Rate
funding, and even after Sampson completed the class,
Obakhume continued to incorrectly tell her there were other
unsatisfied requirements.
In August 2015, the juvenile court granted Sampson
legal guardianship of H.S. at the request of both biological
parents. A month later, Geraldo Ibarra, Deputy Director of
DCFS, assured Sampson he would remedy the F-Rate
funding issue, assign H.S. another social worker, and address
Obakhume’s conduct.
In October 2015, Sampson allowed Ronald Sampson,
her brother and H.S.’s father, to visit H.S. unsupervised,
based on Obakhume’s representation that Ronald had
unmonitored visitation rights. Ronald then absconded with
H.S., who was found the following day unclothed and
hungry. Obakhume visited Sampson’s residence to discuss
the incident and stated, “I don’t know where you get off
sending all these complaint emails and making all these
1
The Specialized Care Increment F-Rate is a higher foster care rate
paid in addition to the basic foster care rate by Los Angeles County to
foster caregivers of children with medical problems, physical conditions,
or developmental disabilities/delays. See Specialized Care Increment
(SCI) – F Rate, http://policy.dcfs.lacounty.gov/content/Specialized_Care
_Increme.htm (last visited August 6, 2020).
8 SAMPSON V. COUNTY OF LOS ANGELES
calls, but you are going to find out that we at the Vermont
Corridor stick together, and cover for each other. No one is
going to lose their job behind you and your mess.” Sampson
immediately contacted Ibarra, who said he would intervene,
but never did.
The next month, with Davis’ permission, Obakhume
filed unsupported allegations that Sampson was neglecting
and abusing H.S., prompting a county child protective
services investigator to visit Sampson’s home on November
10 and 12. That week, Sampson emailed Dawna Yokoyama,
Assistant Regional Administrator of DCFS, to complain
about Obakhume’s sexual harassment and DCFS’s false
accusations of abuse and neglect. Sampson then took H.S.
to Nevada for Thanksgiving. Meanwhile, DCFS petitioned
for, and received, a warrant authorizing the removal of H.S.
from Sampson’s care; however, the warrant was never
executed and soon expired.
After the expired warrant, DCFS sought an order from
the juvenile court to remove H.S. from Sampson’s care,
again alleging, without justification, that Sampson was
abusing and neglecting H.S. The court held a hearing on
December 9, 2015, at which Sampson successfully opposed
DCFS’s request to remove H.S. because DCFS could not
show that Sampson was abusing or neglecting H.S.
Nonetheless, DCFS was so determined to remove H.S. from
Sampson’s care that it filed a petition for an extraordinary
writ with the California Court of Appeal requesting a stay of
the juvenile court’s order. The court of appeal granted the
petition and authorized DCFS to remove H.S. pending
briefing; DCFS removed H.S. two days later. On January 7,
2016, after reviewing the merits of DCFS’s petition, the
California Court of Appeal vacated its stay order and
returned H.S. to Sampson’s care, realizing that DCFS’s
SAMPSON V. COUNTY OF LOS ANGELES 9
allegations of abuse and neglect leveled against Sampson
were unfounded.
H.S.’s juvenile dependency case was transferred to San
Bernardino County in June 2016, and closed in February
2017. Sampson remains H.S.’s legal guardian.
II. Procedural History
Sampson brought this action in July 2017; her first
amended complaint alleged five claims against the County,
Obakhume, Davis, Yokoyama, and Ibarra under 42 U.S.C.
§ 1983: 2 (1) retaliation in violation of the First Amendment
for falsely accusing Sampson of abuse and neglect and
seeking to remove H.S. from her custody; (2) sexual
harassment in violation of the Equal Protection Clause of the
Fourteenth Amendment for Obakhume’s conduct;
(3) violation of substantive due process under the Fourteenth
Amendment for judicial deception; (4) denial of procedural
due process under the Fourteenth Amendment; and
(5) liability against the County under Monell v. Department
of Social Services, 436 U.S. 658 (1978).
The district court dismissed the first four claims without
leave to amend on qualified immunity grounds and the
Monell claim under Federal Rule of Civil Procedure
12(b)(6). The district court applied qualified immunity
because it found that Sampson had no protected interest to
support her substantive and procedural due process claims,
and the rights asserted in her First Amendment retaliation
and Equal Protection sexual harassment claims were not
“clearly established.” After granting Sampson two
2
Short was also named as a defendant but was dismissed for
Sampson’s failure to prosecute and comply with a district court order.
10 SAMPSON V. COUNTY OF LOS ANGELES
opportunities to amend her Monell claim, the district court
dismissed that claim with prejudice and entered a final
judgment.
On appeal, Sampson challenges only the district court’s
dismissal based on qualified immunity of her Fourteenth
Amendment equal protection and First Amendment
retaliation claims.
III. Standard of Review
“We review de novo a district court’s dismissal under
Federal Rule of Civil Procedure 12(b)(6), accepting as true
all allegations of fact in a well-pleaded complaint and
construing those facts in the light most favorable to the
plaintiff.” Karam v. City of Burbank, 352 F.3d 1188, 1192
(9th Cir. 2003). “We review de novo a district court’s
decision on qualified immunity.” Vazquez v. County of
Kern, 949 F.3d 1153, 1159 (9th Cir. 2020).
IV. Analysis
Section 1983 “is not itself a source of substantive rights,
but a method for vindicating federal rights elsewhere
conferred.” Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.
2003) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3
(1979)); see 42 U.S.C. § 1983. In order to state a claim under
§ 1983, a plaintiff must plausibly allege that “she suffered
the deprivation of a federally protected right and that ‘the
alleged deprivation was committed by a person acting under
color of state law.’” Hyun Ju Park v. City & Cnty. of
Honolulu, 952 F.3d 1136, 1140 (9th Cir. 2020) (quoting
West v. Atkins, 487 U.S. 42, 48 (1988)).
In § 1983 actions, “qualified immunity protects
government officials ‘from liability for civil damages insofar
SAMPSON V. COUNTY OF LOS ANGELES 11
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.’” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)); see Kisela v. Hughes (“Kisela II”), 138 S. Ct. 1148,
1152 (2018) (per curiam). To determine whether qualified
immunity applies, we ask whether (1) the plaintiff has
plausibly alleged a violation of a constitutional right, and
(2) the constitutional right was “clearly established” at the
time of the conduct at issue. Wilk v. Neven, 956 F.3d 1143,
1148 (9th Cir. 2020) (quoting Pearson, 555 U.S. at 236).
Lower courts have discretion to address the questions in
reverse order, see Pearson, 555 U.S. at 236, 242, and the
district court did so here, taking up only the “clearly
established” prong.
A constitutional right is “clearly established” if “every
reasonable official would have understood that what he is
doing violates that right” at the time of his conduct. Taylor
v. Barkes, 575 U.S. 822 (2015) (per curiam) (quoting Reichle
v. Howards, 566 U.S. 658, 664 (2012)). Therefore, we ask
“whether the state of the law [at the time of the officials’
conduct] gave [them] fair warning that their alleged
[conduct] was unconstitutional.” Hope v. Pelzer, 536 U.S.
730, 741 (2002). In other words, because we focus “on
whether the officer had fair notice that her conduct was
unlawful, reasonableness is judged against the backdrop of
the law at the time of the conduct.” Kisela II, 138 S. Ct.
at 1152 (quoting Brosseau v. Haugen, 543 U.S. 194, 198
(2004) (per curiam)). “We do not require a case directly on
point, but existing precedent must have placed the statutory
or constitutional question beyond debate.” Barkes, 575 U.S.
at 822 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011)). “[O]fficials can still be on notice that their conduct
violates established law even in novel factual
12 SAMPSON V. COUNTY OF LOS ANGELES
circumstances” where there are no prior cases with
“fundamentally similar” or “materially similar” facts. Hope,
536 U.S. at 741.
A. First Amendment retaliation claim.
To state a First Amendment retaliation claim, Sampson
must plausibly allege that (1) she engaged in a
constitutionally protected activity, (2) Defendants’ actions
would chill a person of ordinary firmness from continuing to
engage in the protected activity, and (3) the protected
activity was a substantial or motivating factor in Defendants’
conduct. O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir.
2016) (quoting Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d
755, 770 (9th Cir. 2006)). To prevail, Sampson must
establish that Defendants’ “retaliatory animus” was the “but-
for” cause of her injury, “meaning that the adverse action
against [her] would not have been taken absent the
retaliatory motive.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722
(2019) (first two quoting Hartman v. Moore, 547 U.S. 250,
259, 260 (2006)). In other words, Sampson must show that
Defendants’ false accusations of abuse and neglect and their
efforts to remove H.S. from her custody were motivated by
their desire to retaliate against her for speaking out about
Obakhume’s sexual harassment.
Sampson alleged that she engaged in constitutionally
protected activity when she complained about Obakhume’s
sexual harassment, Davis and Short’s refusal to process her
F-Rate funding paperwork, and Davis and Short’s demands
that Sampson monitor visits with H.S.’s biological parents.
“[T]he First Amendment prohibits government officials
from subjecting an individual to retaliatory actions . . . for
speaking out.” Hartman, 547 U.S. at 256; see Capp v.
County of San Diego, 940 F.3d 1046, 1054 (9th Cir. 2019)
(“It is well settled that the activity for which [the plaintiff]
SAMPSON V. COUNTY OF LOS ANGELES 13
was allegedly retaliated against—voicing criticism of the
Agency’s conduct—is constitutionally protected.”).
Clearly, Sampson’s complaints about DCFS and its
employees are constitutionally protected.
Sampson also alleges that, in retaliation for her
complaints, Defendants withheld reimbursement funds,
refused to communicate the requirements and procedures for
those funds, falsely accused her of failing to comply with
home visit requirements, demanded that she arrange and
supervise visits with H.S.’s parents, and falsely accused her
of abusing and neglecting H.S., ultimately filing a baseless
action in state juvenile court to remove H.S. from her
custody. The district court granted Defendants qualified
immunity, finding no binding case law clearly establishing
that public officials outside of the law enforcement, prison,
employment, or school contexts can be liable for retaliation
under the First Amendment. We disagree.
It was clearly established at the time of Defendants’
conduct that the First Amendment prohibits public officials
from threatening to remove a child from an individual’s
custody to chill protected speech out of retaliatory animus
for such speech. See Capp, 940 F.3d at 1058–59.
In Capp, we denied qualified immunity to a social
worker because “[a] reasonable official would have known
that taking the serious step of threatening to terminate a
parent’s custody of his children, when the official would not
have taken this step absent her retaliatory intent, violates the
First Amendment.” Id. at 1059. There, after a father
complained about an allegedly unfounded child welfare
services investigation, the social worker assigned to his case
allegedly retaliated against the father by convincing his
children’s mother to file a baseless ex-parte motion for
custody. Id. at 1050–52.
14 SAMPSON V. COUNTY OF LOS ANGELES
Capp is indistinguishable from the instant case. Here,
too, Defendants knew or should have known that taking the
serious steps of falsely accusing Sampson of neglect and
abuse and convincing the juvenile court to temporarily
remove H.S. from her custody, when Defendants would not
have taken these steps absent their retaliatory intent, violates
the First Amendment. Although Capp was decided in 2019,
it held that the right at issue was clearly established by
August 2015. Id. at 1051, 1059. Therefore, under Capp,
Sampson’s First Amendment right was clearly established
on November 2015—the relevant date here. 3
Defendants argue that Capp is distinguishable because it
involves a biological parent. The fact that Sampson is H.S.’s
court-appointed legal guardian, rather than her biological
parent, does not mean that Defendants could have
reasonably understood that threatening to remove H.S. from
her custody in retaliation for her protected activity did not
3
Judge Hurwitz’s partial dissent argues that we may not draw this
conclusion in light of the Supreme Court’s decision in Kisela II, which
reversed our denial of qualified immunity in Hughes v. Kisela (“Kisela
I”), 862 F.3d 775 (9th Cir. 2016). Kisela I implicated conduct that
occurred in 2010, and we similarly cited to a 2011 case that involved
conduct from 2006. See Kisela I, 862 F.3d at 783 (citing Glenn v.
Washington County, 673 F.3d 864, 879–80 (9th Cir. 2011)). But,
critically, the 2011 case did not reach the clearly established prong of the
qualified immunity analysis and said nothing about whether the right was
clearly established prior to 2011. See Glenn, 673 F.3d at 870. In fact,
our court in Kisela I relied on the 2011 case as “illustrative, not as
indicative of the clearly established law in 2010,” 862 F.3d at 783 n.2,
and the Supreme Court reversed that decision based on the well-
established principle that “a reasonable officer is not required to foresee
judicial decisions that do not yet exist,” Kisela II, 138 S. Ct. at 1154.
Here, unlike the 2011 case at issue in Kisela I, Capp explicitly held that
the right to be free from retaliation in the form of threatened legal
sanctions and other similar means of coercion and intimidation at issue
here was clearly established as of August 2015.
SAMPSON V. COUNTY OF LOS ANGELES 15
violate the First Amendment. See Barkes, 575 U.S. at 822.
To the contrary, Capp simply articulated, in the context of
social workers, what is a longstanding, clearly established
right under the First Amendment to be free from retaliation
in the form of threatened legal sanctions and other similar
means of coercion, persuasion, and intimidation. See
Mulligan, 835 F.3d at 989 n.5 (“Informal measures, such as
‘the threat of invoking legal sanctions and other means of
coercion, persuasion, and intimidation,’ can violate the First
Amendment.” (quoting White, 227 F.3d at 1228)); Nieves,
139 S. Ct. at 1772 (“‘[A]s a general matter the First
Amendment prohibits government officials from subjecting
an individual to retaliatory actions’ for engaging in protected
speech.” (quoting Hartman, 547 U.S. at 256)); Hartman,
547 U.S. at 256 (“Official reprisal for protected speech
‘offends the Constitution [because] it threatens to inhibit
exercise of the protected right,’ and the law is settled that as
a general matter the First Amendment prohibits government
officials from subjecting an individual to retaliatory actions
. . . for speaking out.” (quoting Crawford-El v. Britton,
523 U.S. 574, 588 n.10, 592 (1998))); Perry v. Sindermann,
408 U.S. 593, 597 (1972) (noting that the government may
not deprive a person of a benefit on the basis of her
“constitutionally protected speech”); see also Austin v.
Terhune, 367 F.3d 1167, 1170–71 (9th Cir. 2004) (holding
that prisoner stated a First Amendment retaliation claim
where he alleged that a guard exposed his genitalia to him
and the guard then filed a false disciplinary report against
him after he complained). That clearly established right is
at issue with equal force in the instant case, where Sampson
alleges that Defendants used the threat of removing H.S.
from her custody to coerce, persuade, and intimidate her into
dropping her complaints of misconduct against them. In
other words, Perry, Nieves, Hartman, and Mulligan clearly
establish that the threat of losing custody of a child would
16 SAMPSON V. COUNTY OF LOS ANGELES
ordinarily chill First Amendment activity of both biological
parents and legal guardians alike. See O’Brien, 818 F.3d
at 933. Therefore, because the same clearly established right
at issue in Capp is also at issue here, the cases that supported
denial of qualified immunity in Capp also compel us to deny
qualified immunity in the instant case. 4
Defendants also argue that they were on notice that they
could not retaliate against parents—but not legal
guardians—because we have held that biological parents
have a clearly established due process right under the
Fourteenth Amendment to be free from the deliberate use of
perjured testimony and fabricated evidence during juvenile
dependency proceedings. See, e.g., Hardwick v. County of
Orange, 844 F.3d 1112, 1116–17 (9th Cir. 2017); see also
Greene v. Camreta, 588 F.3d 1011, 1035 (9th Cir. 2009)
(holding that “the ‘constitutional right to be free from the
knowing presentation of false or perjured evidence’ is
clearly established” (quoting Devereaux v. Perez, 218 F.3d
1045, 1055–56 (9th Cir. 2000))). This argument is
unavailing because Hardwick and Greene involve the
Fourteenth Amendment’s guarantee of due process, not the
First Amendment’s guarantee to be free from retaliation for
protected speech. These are two separate rights. That is to
say, even if we held that Sampson has no due process right
4
Judge Hurwitz’s partial dissent argues that, even assuming that a
legal guardian is in a similar position as a biological or adoptive parent,
Capp does not resolve this case because the cases Capp relied on defined
the right at too high a level of generality. But we must follow the
reasoning in Capp—a factually indistinguishable and binding opinion
from our court. See Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir.
2001) (“[C]aselaw on point is the law. If a court must decide an issue
governed by a prior opinion that constitutes binding authority, the later
court is bound to reach the same result, even if it considers the rule
unwise or incorrect.”).
SAMPSON V. COUNTY OF LOS ANGELES 17
under the Fourteenth Amendment to be free from the
deliberate use of perjured testimony and fabricated
evidence, 5 she is still entitled to be free from retaliation
under the First Amendment. Hartman, 547 U.S. at 256.
Hardwick does not—indeed, it cannot—stand for the
proposition that somehow biological parents have more of a
right to be free from retaliation under the First Amendment
than legal guardians, such that it was permissible for
Defendants to think that it was constitutional to retaliate
against a legal guardian but not against a biological parent.
In sum, because the First Amendment right to criticize
official conduct of public officials without being subject to
the threat of losing custody was “clearly established” as of
August 2015, when the events of Capp took place, we hold
that the same right was clearly established when Defendants
sought and obtained a warrant to remove H.S. from
Sampson’s custody in November 2015. Therefore, we
vacate the district court’s grant of qualified immunity to
Defendants on Sampson’s § 1983 claim for retaliation under
the First Amendment, since Defendants were not so entitled.
Because the district court did not address the other prong
of the qualified immunity analysis, and the parties did not
brief the issue on appeal, we remand this claim to the district
court for it to determine in the first instance whether
Sampson plausibly alleged a retaliation claim under the First
Amendment. See Gordon v. County of Orange, 888 F.3d
1118, 1125 (9th Cir. 2018) (declining to address the question
5
Neither Hardwick nor Greene foreclose the possibility that we
might hold in the future that permanent legal guardians like Sampson
also have a due process right not to be confronted with perjured
testimony or fabricated evidence.
18 SAMPSON V. COUNTY OF LOS ANGELES
of qualified immunity where the district court did not reach
the issue).
B. Fourteenth Amendment sexual harassment claim.
“The Equal Protection Clause of the Fourteenth
Amendment commands that no State shall ‘deny to any
person within its jurisdiction the equal protection of the
laws,’ which is essentially a direction that all persons
similarly situated should be treated alike.” City of Cleburne
v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting
Plyler v. Doe, 457 U.S. 202, 216 (1982)). “To state a claim
under 42 U.S.C. § 1983 for a violation of the Equal
Protection Clause of the Fourteenth Amendment a plaintiff
must show that the defendants acted with an intent or
purpose to discriminate against the plaintiff based upon
membership in a protected class.” Lee v. City of Los
Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting Barren
v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)).
Although the Supreme Court has never explicitly
considered whether sexual harassment violates the Equal
Protection Clause, it has long recognized that sex-based
discrimination by state actors that does not serve important
governmental objectives and is not substantially related to
the achievement of those objectives is unconstitutional. See,
e.g., J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129, 146
(1994) (jury selection); Davis v. Passman, 442 U.S. 228,
234–36 & n.12 (1979) (employment discrimination); Craig
v. Boren, 429 U.S. 190, 204 (1976) (legal drinking age);
Stanton v. Stanton, 421 U.S. 7, 8–9, 17 (1975) (parental
support obligations for sons and daughters); Frontiero v.
Richardson, 411 U.S. 677, 678–79, 690–91 (1973)
(entitlement to benefits for spouses of armed services
members); Reed v. Reed, 404 U.S. 71, 73, 76–77 (1971)
(statutory preference for male estate administrators).
SAMPSON V. COUNTY OF LOS ANGELES 19
Drawing on these equal protection principles, we have held
that allegations of “persistent and unwelcome physical and
verbal abuse” in the workplace “state a claim of sexual
harassment, which can be impermissible sex discrimination
in violation of the Equal Protection Clause.” Bator v.
Hawaii, 39 F.3d 1021, 1027, 1028 (9th Cir. 1994).
Here, Sampson complains that Obakhume sexually
harassed her by commenting on her appearance and marital
status, urging her to end her marriage, inappropriately
touching her, and attempting to coerce her into riding in his
vehicle. The district court found the constitutional right not
to be sexually harassed by public officials providing social
services was not clearly established outside of the workplace
or school contexts. 6 Although we reluctantly agree that this
right was not clearly established at the time of Obakhume’s
conduct, and therefore Defendants are entitled to qualified
immunity in the instant case, we hold that the Equal
Protection Clause protects the right to be free from sexual
harassment at the hands of public officials providing social
services.
To “‘promote[] the development of constitutional
precedent’ in an area where [our] guidance is sorely needed,”
we first address whether Sampson asserts a violation of a
constitutional right. Mattos v. Aragano, 661 F.3d 433, 440
(9th Cir. 2011) (en banc) (quoting Pearson, 555 U.S. at 236).
We have broadly held—on multiple occasions—that “[w]ell
prior to 1988 the protection afforded under the Equal
Protection Clause was held to proscribe any purposeful
6
We have also held that individuals in jails and prisons have a
constitutional right to be free from sexual harassment under the Eighth
Amendment. See, e.g., Vazquez, 949 F.3d at 1165; Wood v. Beauclair,
692 F.3d 1041, 1046, 1048–51 (9th Cir. 2012).
20 SAMPSON V. COUNTY OF LOS ANGELES
discrimination by state actors, be it in the workplace or
elsewhere, directed at an individual solely because of the
individual’s [sex].” Oona R.-S.- by Kate S. v. McCaffrey,
143 F.3d 473, 476 (9th Cir. 1998) (quoting Lindsey v.
Shalmy, 29 F.3d 1382, 1386 (9th Cir. 1994)). Sexual
harassment violates the Equal Protection Clause because, by
definition, it is “motivated by gender.” Bator, 39 F.3d
at 1027. 7
In Alaska v. EEOC, for example, senior male officials in
the governor’s office subjected the plaintiff to “sexual jokes”
and “unsolicited physical conduct” because she was a
woman. 564 F.3d 1062, 1068 (9th Cir. 2009) (en banc).
Similarly, in Bator, male coworkers at Hawaii’s probation
department subjected a stenographer to “unwelcome
physical and verbal abuse” because she was a woman.
39 F.3d at 1027. We also recognized in McCaffrey that the
plaintiff was subjected to sexual harassment at the hands of
her teacher and classmates “because of her gender.”
143 F.3d at 475.
Here, a male social worker subjected Sampson to
sexualized comments and unwanted physical advances
because she is a woman. The only difference with prior
cases is that Sampson’s harassment was at the hands of a
social worker assigned to her case, rather than a coworker,
7
Our sister circuits have also explained that sexual harassment
violates the Equal Protection Clause because it is, by definition,
motivated by, or based upon, the survivor’s gender. See, e.g., Feminist
Majority Found. v. Hurley, 911 F.3d 674, 703 (4th Cir. 2018); Beardsley
v. Webb, 30 F.3d 524, 529 (4th Cir. 1994); Andrews v. City of
Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990), superseded in part by
statute as recognized in Moody v. Atl. City Bd. of Educ., 870 F.3d 206,
214 (3d Cir. 2017); Volk v. Coler, 845 F.2d 1422, 1431 (7th Cir. 1988);
Bohen v. City of E. Chicago, 799 F.2d 1180, 1185 (7th Cir. 1986).
SAMPSON V. COUNTY OF LOS ANGELES 21
supervisor, classmate, or teacher. That difference is
inconsequential because the Equal Protection Clause
prohibits public officials, including social workers like
Obakhume, from “deny[ing] to any person within its
jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. Obakhume’s conduct denied Sampson,
because she is a woman, the right to seek legal guardianship
of her niece and related services without being subjected to
hostile sexual harassment. Simply put, if she were a man,
Sampson would not have experienced this harassment in
seeking services from Obakhume, and that discrepancy
fundamentally offends the equality and fairness principles
embodied in the Equal Protection Clause. 8
The right under the Equal Protection Clause to be free
from sexual harassment by public officials in the workplace
and school contexts is clearly established by our prior case
law. See, e.g., Alaska, 564 F.3d at 1068–69 (workplace);
McCaffrey, 143 F.3d at 476 (public schools); Lindsey,
29 F.3d at 1386 (sexual harassment by public employees in
the workplace); Bator, 39 F.3d at 1027. However, as
Sampson acknowledges, these cases are factually
distinguishable, and we have never held that the Equal
Protection Clause protects private individuals who suffer
8
To be clear, not all allegations of sexual harassment leveled against
public officials are sufficiently egregious to constitute a constitutional
violation. In the employment and education contexts, we require
plaintiffs to plausibly allege that they suffered “purposeful, invidious”
harassment. Bator, 39 F.3d at 1029. Moreover, in order to hold the
perpetrator’s supervisors accountable for the harassment, including the
office or department the perpetrator works for, we require plaintiffs to
plausibly allege either that the office or department had an official policy
of promoting sexual harassment, or that the plaintiff’s supervisors
intentionally refused to redress the perpetrator’s sexual harassment. See
Alaska, 564 F.3d at 1069.
22 SAMPSON V. COUNTY OF LOS ANGELES
sexual harassment at the hands of public officials providing
them with social services. Thus, we cannot say that the
question raised by Sampson’s claim was “beyond debate”
when the conduct as issue occurred here. Barkes, 135 S. Ct.
at 2044 (quoting al-Kidd, 563 U.S. at 743). 9
Although we find that Sampson has plainly alleged a
constitutional violation here, for purposes of analyzing
qualified immunity, we must heed the Supreme Court’s
repeated admonitions “not to define clearly established law
at a high level of generality,” City of Escondido v. Emmons,
139 S. Ct. 500, 503 (2019) (quoting Kisela II, 138 S. Ct.
at 1152), because “doing so avoids the crucial question
whether the official acted reasonably in the particular
circumstances that he or she faced,” Plumhoff v. Rickard,
572 U.S. 765, 779 (2014); see also City & Cnty. of San
Francisco v. Sheehan, 135 S. Ct. 1765, 1775–76 (2015)
(“We have repeatedly told courts—and the Ninth Circuit in
particular—not to define clearly established law at a high
level of generality.” (quoting al-Kidd, 563 U.S. at 742));
Brosseau, 543 U.S. at 199 (same). Therefore, because we
cannot find a case with sufficiently similar facts, we cannot
say that Sampson’s right to be free from sexual harassment
9
Sampson also argues that a social worker can be liable for sexual
harassment under California law, thus putting Obakhume on notice that
his conduct was prohibited. See Cal. Civ. Code § 51.9. But, in general,
“a violation of state law does not lead to liability under § 1983.”
Campbell v. Burt, 141 F.3d 927, 930 (9th Cir. 1998) (citing Davis v.
Scherer, 468 U.S. 183, 194 (1984)); see also Davis, 468 U.S. at 194.
Therefore, even if section 51.9 prohibits sexual harassment at the hands
of social workers in California, it does not “clearly establish” the right to
be free from sexual harassment under the federal Constitution.
SAMPSON V. COUNTY OF LOS ANGELES 23
at the hands of a social worker was clearly established under
the Supreme Court’s impossibly high bar. 10
V. Conclusion.
We vacate the district court’s grant of qualified
immunity to Defendants on Sampson’s First Amendment
retaliation claim and remand for the district court to consider
in the first instance whether she plausibly alleged a
constitutional violation.
We reluctantly affirm, however, the district court’s grant
of qualified immunity to Defendants on Sampson’s
Fourteenth Amendment equal protection claim.
Unfortunately, the Supreme Court’s exceedingly narrow
interpretation of what constitutes a “clearly established”
right precludes us from holding what is otherwise obvious to
us—that the right of private individuals to be free from
sexual harassment at the hands of public officials outside of
the workplace and school contexts was clearly established
under the Equal Protection Clause at the time of Defendants’
conduct.
Although we are prevented from denying qualified
immunity in the instant case, we want to make it abundantly
10
Judge Zouhary’s partial dissent disagrees with our conclusion that
the law was not clearly established, reasoning that “a factually identical
scenario is unnecessary.” To be clear, we agree that “a case directly on
point” is not required. Ashcroft, 563 U.S. at 741. However, we must
evaluate whether Defendants’ conduct was clearly established “in light
of the specific context of the case.” Brosseau, 543 U.S. at 198 (emphasis
added). Here, as Judge Zouhary correctly points out, our precedent has
placed the constitutional question beyond debate “in a variety of
contexts, including prison, educational settings, and the workplace.”
But, until today, our law has not done so in the particular context at issue
here.
24 SAMPSON V. COUNTY OF LOS ANGELES
clear moving forward—if it was not already—that State
public officials violate our Constitution’s promise of equal
protection when they sexually harass the people they serve.
AFFIRMED in part; VACATED in part; and
REMANDED. Each party shall bear its own costs.
HURWITZ, Circuit Judge, concurring in part and dissenting
in part:
In relevant part, 42 U.S.C. § 1983 provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State . . . , subjects, or causes to be
subjected, any citizen of the United States . . .
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper
proceeding for redress . . . .
I agree with my colleagues that Natia Sampson has plausibly
alleged violations of both her First and Fourteenth
Amendment rights. In a world in which the plain language
of the statute controlled, that would end our analysis.
But, of course, it does not. We must also parse the judge-
made doctrine of qualified immunity, which is found
nowhere in the text of § 1983. See Baxter v. Bracey, 140
S. Ct. 1862, 1862–63 (2020) (Thomas, J., dissenting from
denial of certiorari). And that doctrine requires—in this case
and many others—the dismissal of facially plausible claims
of constitutional violations because the right at stake was not
SAMPSON V. COUNTY OF LOS ANGELES 25
“clearly established” at the time of the violation. Until the
Supreme Court revisits its qualified immunity jurisprudence,
as a constitutionally “inferior” court, U.S. Const. art. III, § 1,
we must continue to struggle to apply it.
I agree with Judge Murguia that the doctrine, however
ill-conceived, bars Sampson’s otherwise plausible equal
protection claim, and therefore concur in Section IV.B of the
majority opinion. But I am unable to reach a different
conclusion as to Sampson’s First Amendment retaliation
claim, and therefore cannot join Section IV.A.
I.
Before finding an asserted constitutional right was
“clearly established” at the time of the alleged violation, we
must under the Supreme Court’s jurisprudence identify
binding precedent that “placed the statutory or constitutional
question beyond debate,” Mullenix v. Luna, 136 S. Ct. 305,
308 (2015) (per curiam) (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011)), so that “every reasonable official
would have understood that what he is doing violates that
right,” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (per
curiam) (cleaned up); see also Plumhoff v. Rickard, 572 U.S.
765, 779 (2014).
To be sure, the Court has reiterated that a prior “case
directly on point” is not required, Mullenix, 136 S. Ct. at 308(cleaned up), and that “officials can still be on notice that
their conduct violates established law even in novel factual
circumstances,” Hope v. Pelzer, 536 U.S. 730, 741 (2002).
But much like Lucy of “Charlie Brown” fame, the Court
repeatedly yanks away the football when lower courts
26 SAMPSON V. COUNTY OF LOS ANGELES
attempt to apply this language. 1 Lower courts have been
repeatedly rebuked for defining “clearly established law at a
high level of generality,” Kisela v. Hughes, 138 S. Ct. 1148,
1152 (2018) (per curiam) (cleaned up), and “fail[ing] to
identify a case” involving “similar circumstances,” White v.
Pauly, 137 S. Ct. 548, 552 (2017) (per curiam), “controlling
authority” or “a robust consensus of cases of persuasive
authority,” District of Columbia v. Wesby, 138 S. Ct. 577,
589–90 (2018) (cleaned up). Thus, although stating that
qualified immunity does not protect the “plainly
incompetent or those who knowingly violate the law,”
Kisela, 138 S. Ct. at 1152, the Court has protected
wrongdoers unless the violated constitutional right was
“particularized,” Pauly, 137 S. Ct. at 552 (cleaned up), and
defined “on the basis of the specific context of the case,”
Tolan v. Cotton, 572 U.S. 650, 657 (2014) (per curiam)
(cleaned up).
Although the Court has found this level of specificity
“especially important in the Fourth Amendment context,”
Kisela, 138 S. Ct. at 1152 (cleaned up), it has not yet limited
the requirement to those claims. 2 In the First Amendment
1
See Eric Schulmiller, All Your Life, Charlie Brown. All Your Life:
The Complete History of Lucy’s Pulling the Football Away, Slate (Oct.
8, 2014, 9:33 AM), https://slate.com/culture/2014/10/the-history-of-
lucys-pulling-the-football-away-from-charlie-brown-in-peanuts.html.
2
The qualified immunity test was adopted to serve the purpose of
“balancing [the] competing values” of efficiency and “the general costs
of subjecting officials to the risks of trial—distraction of officials from
their governmental duties, inhibition of discretionary action, and
deterrence of able people from public service.” Harlow v. Fitzgerald,
457 U.S. 800, 816 (1982); see Baxter, 140 S. Ct. at 1864 (Thomas, J.,
dissenting from denial of certiorari); Davis v. Scherer, 468 U.S. 183, 195
(1984) (“[O]ur cases strike [a balance] between the interests in
vindication of citizens’ constitutional rights and in public officials’
SAMPSON V. COUNTY OF LOS ANGELES 27
context, for example, the Court has admonished that “the
right in question is not the general right to be free from
retaliation for one’s speech,” but “the more specific right to
be free from a retaliatory” act under the facts of the case.
Reichle v. Howards, 566 U.S. 658, 665 (2012). As a
practical matter, therefore, we must identify a case
substantially similar, or nearly identical in some contexts, to
the one at hand to find “clearly established” what otherwise
would seem to be clear constitutional rights. 3
II.
I agree with my colleagues that every competent public
official should have understood in 2015 that he could not
attempt to end a guardianship with false accusations in
effective performance of their duties.”). Even assuming the doctrine
serves that purpose in the Fourth Amendment context, in which officers
sometimes make split-second decisions, see Kisela, 138 S. Ct. at 1152,
such considerations may not have equal force elsewhere.
3
See Erwin Chemerinsky, Federal Jurisdiction § 8.6, at 580 (6th ed.
2012) (“There is an obvious tension between Hope v. Pelzer, declaring
that there need not be a case on point to overcome qualified immunity,
and Brosseau v. Haugen and Ashcroft v. Al-Kidd, finding qualified
immunity based on the lack of a case on point . . . . Not surprisingly,
there is great confusion in the lower courts as to whether and when cases
on point are needed to overcome qualified immunity.”); Karen M. Blum,
Qualified Immunity: Time to Change the Message, 93 Notre Dame L.
Rev. 1887, 1889 (2018) (“[T]he Supreme Court has crafted their recent
qualified immunity jurisprudence to effectively eliminate § 1983 claims
by requiring an indistinguishable case and by encouraging courts to go
straight to the clearly established prong.” (cleaned up)); see also Knopf
v. Williams, 884 F.3d 939, 949–50 (10th Cir. 2018); Sebesta v. Davis,
878 F.3d 226, 234–35 (7th Cir. 2017); Morgan v. Swanson, 659 F.3d
359, 371–74 (5th Cir. 2011) (en banc); id. at 391–94 (Dennis, J.,
concurring in part); Jennings v. Jones, 499 F.3d 2, 26 (1st Cir. 2007)
(Lynch, J., dissenting).
28 SAMPSON V. COUNTY OF LOS ANGELES
retaliation for the guardian’s exercise of protected speech. It
has long been clear that the government cannot “deny a
benefit to a person because of his constitutionally protected
speech,” Perry v. Sindermann, 408 U.S. 593, 597 (1972),
and “that as a general matter the First Amendment prohibits
government officials from subjecting an individual to
retaliatory actions . . . for speaking out,” Hartman v. Moore,
547 U.S. 250, 256 (2006) (emphasis added). But “general”
is not good enough for the Supreme Court. See Reichle,
566 U.S. at 665 (rejecting as too general the “settled” rule
that “the First Amendment prohibits government officials
from subjecting an individual to retaliatory actions” (cleaned
up)).
So, the determinative question is whether Sampson can
point to a case close enough to hers that “warned” the alleged
violators that what they were doing was constitutionally
forbidden. The only case that Sampson (or the majority)
cites that approaches the requisite level of specificity is Capp
v. County of San Diego, 940 F.3d 1046 (9th Cir. 2019). Capp
held that “[a] reasonable official would have known that
taking the serious step of threatening to terminate a parent’s
custody of his children, when the official would not have
taken this step absent her retaliatory intent, violates the First
Amendment.” Id. at 1051, 1059. But our opinion in Capp
came down years after the conduct at issue in this case
occurred. 4 As a matter of pure logic, because Capp found
the asserted constitutional right clearly established at the
time of the official’s actions in that case, August 2015, it
ought to mean that the same right was clearly established
4
I assume for today’s purposes that Sampson, the legal guardian of
H.S., was in a similar position to that of a biological or adoptive parent.
SAMPSON V. COUNTY OF LOS ANGELES 29
several months later, when the allegedly retaliatory conduct
in this case occurred.
However, I do not read the Supreme Court’s caselaw as
allowing us to draw that logical conclusion—indeed, a panel
of this Court has already been reversed for attempting
something similar. See Kisela, 138 S. Ct. at 1154–55. The
conduct at issue in Kisela occurred in 2010, and the panel
cited a 2011 case that involved conduct from 2006, Glenn v.
Washington County, 673 F.3d 864 (9th Cir. 2011), as
“suggestive” and “illustrative” of the clearly established law
in 2006, even if not “indicative.” Hughes v. Kisela, 862 F.3d
775, 778, 783 n.2 (9th Cir. 2016). The Supreme Court found
no “apparent” difference between relying on the 2011 case
as illustrative, rather than indicative, and rejected Glenn as
“of no use in the clearly established inquiry.” Kisela, 138
S. Ct. at 1154 (cleaned up). The Court stated that Glenn
“could not have given fair notice to Kisela [in 2010] because
a reasonable officer is not required to foresee judicial
decisions that do not yet exist in instances where the
requirements of the Fourth Amendment are far from
obvious.” Id. (cleaned up); see also Brosseau v. Haugen,
543 U.S. 194, 200 n.4 (2004) (per curiam) (“The parties
point us to a number of other cases in this vein that postdate
the conduct in question . . . . These decisions, of course,
could not have given fair notice to Brosseau and are of no
use in the clearly established inquiry.”).
The same conclusion must obtain here. The “clearly
established” inquiry focuses on the judicial opinions extant
at the time of the conduct at issue, not on how subsequent
cases characterize pre-existing law. Decided years after the
relevant conduct here, Capp is of no use. And, the other
cases upon which the majority relies simply establish, in
factual contexts quite different than the one at hand, the
30 SAMPSON V. COUNTY OF LOS ANGELES
general principle that one has the right to be free from
retaliation by public officials for her speech. See Nieves v.
Bartlett, 139 S. Ct. 1715, 1728 (2019) (retaliatory arrest
claim); Hartman, 547 U.S. at 255–56 (retaliatory criminal
prosecution); Perry, 408 U.S. at 595–97 (retaliatory decision
not to rehire); Mulligan v. Nichols, 835 F.3d 983, 988, 989
n.5 (9th Cir. 2016) (retaliatory “media leaks” and “smear
campaign”). Under the Supreme Court’s jurisprudence, that
is not enough. See City of Escondido v. Emmons, 139 S. Ct.
500, 503 (2019) (per curiam).
III.
As to Sampson’s Fourteenth Amendment claim,
although it is also clear to me that any reasonable public
official should have known that the conduct alleged in this
case was illegal, I agree with Judge Murguia that at the time
of Obakhume’s conduct no case clearly established
Sampson’s constitutional right to be free from sexual
harassment in receiving public services from a social
worker. Qualified immunity therefore bars Sampson’s
claim, and Judge Murguia’s opinion ably demonstrates why
we are required to reach that unfortunate result.
ZOUHARY, District Judge, concurring in part and
dissenting in part:
With respect to the First Amendment claim, I agree with
Judge Murguia that the application of qualified immunity
was improper. When the conduct at issue took place, it was
clearly established that public officials may not threaten to
remove a child from an individual’s custody in retaliation for
protected speech. I therefore join in Section IV.A of the
opinion.
SAMPSON V. COUNTY OF LOS ANGELES 31
As for the Equal Protection claim, I agree that Defendant
Obakhume’s alleged actions violated Sampson’s
constitutional right to be free of sexual harassment.
However, I disagree that this right is not yet clearly
established.
The doctrine of qualified immunity is meant to balance
two competing interests: Government officials must be
allowed to reasonably perform their duties, but they also
must be held accountable when they irresponsibly exercise
governmental power. Pearson v. Callahan, 555 U.S. 223,
231 (2009). Properly applied, the doctrine “gives
government officials breathing room to make reasonable but
mistaken judgments about open legal questions,” but does
not protect “the plainly incompetent or those who knowingly
violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743
(2011) (citation omitted). Taking the facts alleged in the
Complaint as true, Obakhume is in the latter category.
I understand my colleagues’ reluctance to find this
constitutional right clearly established in light of recent
admonitions from the Supreme Court. True, we must “not
[] define clearly established law at a high level of
generality.” City of Escondido v. Emmons, 139 S. Ct. 500,
503 (2019) (per curium) (quoting Kisela v. Hughes, 138 S.
Ct. 1148, 1152 (2018) (per curium)). But that is not this
case. As an initial point, much of the Court’s recent
precedent cautioning against broadly defining constitutional
rights dealt with excessive force. The Court has “stressed
that the specificity of the [right] is especially important in
the Fourth Amendment context” because “excessive force is
an area of the law in which the result depends very much on
the facts of each case, and thus police officers are entitled to
qualified immunity unless existing precedent squarely
governs the specific facts at issue.” District of Columbia v.
32 SAMPSON V. COUNTY OF LOS ANGELES
Wesby, 138 S. Ct. 577, 590 (2018); Kisela, 138 S. Ct. at 1153(quotation marks and citations omitted). Such cases involve
“split-second judgments” and implicate the “hazy border
between excessive and acceptable force.” Kisela, 138 S. Ct.
at 1152–53 (citations omitted). Here, Obakhume had no
quick decision to make—he allegedly undertook a persistent
course of inappropriate conduct over several weeks. Context
matters.
The Supreme Court has noted that “even though the very
action in question has not previously been held unlawful . . .
officials can still be on notice that their conduct violates
established law even in novel factual circumstances.” Hope
v. Pelzer, 536 U.S. 730, 741 (2002) (citation omitted). Thus,
a factually identical scenario is unnecessary. Rather, we
must determine whether the official had “fair notice” that his
actions were unconstitutional. Id. at 731. This Circuit has
repeatedly held that the right to be free of sexual harassment
by public officials is clearly established in a variety of
contexts, including prison, educational settings, and the
workplace. See Vazquez v. Cty. of Kern, 949 F.3d 1153,
1165–66 (9th Cir. 2020); Oona R.-S.- by Kate S. v.
McCaffrey, 143 F.3d 473, 476 (9th Cir. 1998); Bator v. State
of Hawai’i, 39 F.3d 1021, 1027–28 (9th Cir. 1994). These
cases clearly define the law on sexual harassment in this
Circuit: public officials cannot sexually harass others while
on the job. This is true irrespective of whether the other
person is a coworker, or a consumer of government
services—who has no choice but to interact with the public
official. Because existing cases place the unreasonableness
of Obakhume’s conduct “beyond debate,” Mullenix v. Luna,
136 S. Ct. 305, 309 (2015) (citation omitted), he had “fair
notice” that his conduct was unlawful.
SAMPSON V. COUNTY OF LOS ANGELES 33
Further, although the above case law clearly establishes
Sampson’s right, this is an “obvious case”—meaning a case
on all fours is unnecessary. See Brosseau v. Haugen,
543 U.S. 194, 199 (2004). Qualified immunity shields only
those officials whose “conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” City of Escondido,
139 S. Ct. at 503 (citation omitted). Novelty of circumstance
does not preclude liability. Hope, 536 U.S. 730. “The
easiest cases don’t even arise. There has never been . . . a
section 1983 case accusing welfare officials of selling foster
children into slavery; it does not follow that if such a case
arose, the officials would be immune from damages [or
criminal] liability.” United States v. Lanier, 520 U.S. 259,
271 (1997) (quoting United States v. Lanier, 73 F.3d 1380,
1410 (6th Cir. 1996) (Daughtrey, J., dissenting)). Taking
Sampson’s allegations as true, Obakhume’s conduct is
beyond the pale. 1
Giving the Supreme Court’s mandate a most narrow (and
unrealistic) reading leads to a bizarre conclusion:
Obakhume knew that he could not sexually harass others in
his workplace if, and only if, they were employed by the
County; but he was unaware (or confused or unsure) whether
he could subject a client of his office to the same treatment.
Although we clearly establish this right “going forward,”
1
The state legislature passed a law on the very subject, prohibiting
social workers from making unwanted sexual advances on members of
the public. See CAL. CIV. CODE § 51.9. While “a violation of state law
[generally] does not lead to liability under § 1983,” Campbell v. Burt,
141 F.3d 927, 930 (9th Cir. 1998) (citations omitted), we may consider
all “relevant” regulations and statutes in determining whether a
reasonable official would have known the conduct at issue was unlawful.
See Hope, 536 U.S. at 741–42.
34 SAMPSON V. COUNTY OF LOS ANGELES
there is no need to wait. The time is now. For this reason, I
respectfully dissent from Section IV.B of the opinion.