Kipps v. Caillier

REVISED, MARCH 14, 2000
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30978
REXFORD KIPPS,
CAROL KIPPS AND KYLE KIPPS,
Plaintiffs-Appellants,
versus
JAMES CAILLIER, RAY AUTHEMENT,
NELSON J. SCHEXNAYDER, JR. AND NELSON STOKLEY,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
February 25, 2000
ORDER DENYING REHEARING EN BANC
Before WIENER, DeMOSS and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Plaintiffs petition the Court for a en banc rehearing of our
panel opinion at 197 F.3d 765 (5th Cir. 1999). Because we find
that plaintiffs raise no arguments that were not adequately
considered in the panel opinion, their petition for rehearing en
banc is denied.
An issue was raised with respect to the panel majority's
qualified immunity analysis. Specifically, whether a court could
assume arguendo the first prong of the analysis--the existence of
a constitutionally protected right.1 Fifth Circuit case law
appears to require a court to first answer whether an existing
constitutional right has been asserted by a party. See, e.g.,
Evans v. Ball, 168 F.3d 856, 860 (5th Cir. 1999) (“We may not
pretermit that first prong but must decide whether Evans has
alleged any constitutional violation before we may move to the
inquiries under the second prong.”) (citing Quives v. Campbell,
934 F.2d 668, 670 (5th Cir. 1991)). Without resolving the
question of whether Supreme Court and Fifth Circuit precedent
require rigid application of Evans to all qualified immunity
situations, we have little trouble finding that a constitutional
interest in familial association does, in fact, exist and was
clearly established at the time Kipps was fired.
Existence of a Liberty Interest in Familial Association
According to Supreme Court precedent, the Constitution
accords special protection to two different types of association,
“intimate association” and “expressive association.” See Roberts
v. United States Jaycees, 468 U.S. 609, 617-18 (1984); see also
Louisiana Debating and Literary Assoc. v. City of New Orleans, 42
F.3d 1483, 1493-94 (5th Cir. 1995). In Roberts, the Court noted
that the right to intimate association, the freedom to choose “to
1
See, e.g., Kipps v. Callier, 197 F.3d 765, 768-69 (5th Cir.
1999) (“Assuming arguendo that defendants violated Kipps's
constitutional liberty interest in familial association, the
resolution of this issue turns on whether the defendants' actions
were 'objectively reasonable.'”).
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enter into and maintain certain intimate human relationships,” is
a “fundamental element of personal liberty.” 468 U.S. at 617-18.
At the foundation of this right to intimate association are
family relationships:
Family relationships, by their nature, involve deep
attachments and commitments to the necessarily few
other individuals with whom one shares not only a
special community of thoughts, experiences, and beliefs
but also distinctively personal aspects of one's life.
Among other things, therefore, they are distinguished
by such attributes as relative smallness, a high degree
of selectivity in decisions to begin and maintain the
affiliation, and seclusion from others in critical
aspects of the relationship. As a general matter, only
relationships with these sorts of qualities are likely
to reflect the considerations that have led to an
understanding of freedom of association as an intrinsic
element of personal liberty.
Roberts, 468 U.S. at 619-20 (emphasis added); see also McCabe v.
Sharrett, 12 F.3d 1558, 1563 (11th Cir. 1994) (“At a minimum, the
right of intimate association encompasses the personal
relationships that attend the creation and sustenance of a
family.”) (emphasis added). Supreme Court precedent with
respect to intimate association can be synthesized as a continuum
with “family relationships” at one end, receiving the most
protection, and arms length relationships, like a business
acquaintance, at the other end, “remote from the concerns giving
rise to this constitutional protection.” Roberts, 468 U.S. at
620.
Defendants assert that in order to have an actionable claim
based on familial association there must be a permanent and
involuntary separation between parent and child. In other words,
before a party can bring a cognizable claim based on interference
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with familial association, that relationship at issue must be
totally destroyed. Notwithstanding the questionable validity of
this position, defendants' argument misunderstands the nature of
plaintiffs' alleged constitutional injury. Kipps claims that he
was fired because of his actual association with his son.2 See
(Complaint ¶ 16). This is separate and distinct from a claim of
state interference with that association.
The importance of the family has been discussed in numerous
cases. See, e.g., Lehr v. Robertson, 463 U.S. 248, 258 (1983)
(“[T]he relationship of love and duty in a recognized family unit
is an interest in liberty entitled to constitutional
protection.”); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“It
is plain that the interest of a parent in the companionship,
care, custody, and management of his or her children 'come[s] to
this Court with a momentum for respect lacking when appeal is
made to liberties which derive merely from shifting economic
arrangements.'”) (quoting Kovacs v. Cooper, 336 U.S. 77, 95
(1949) (Frankfurter, J., concurring)); see also Tyson v. New York
City Hous. Auth., 369 F. Supp. 513, 520 (S.D.N.Y. 1974) (holding
that public housing tenants had a cause of action under the right
of association when they were threatened with eviction because of
acts committed by their adult children who did not live with
them).
2
The special concurrence focuses on Kyle Kipps's age as if
it makes a difference in the analysis of the issues in this case.
If anything, the fact that Kipps could not legally force his son
to attend USL, supports the inference that Kipps was fired merely
for his association with Kyle.
-4-
Although it is clear that “family relationships” are subject
to constitutional protection,3 the definitional boundaries that
limit the types of associations that constitute “family
relationships” are blurred. The case subjudice, however, does
not deal with an association on the fringe of the definition for
“family relationships.” Indeed, the parent-child relationship
lies at the heart of protected familial associations. See, e.g.,
Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“It is
cardinal with us that the custody, care and nurture of the child
reside first in the parents, whose primary function and freedom
include preparation for obligations the state can neither supply
nor hinder.”); Morris v. Dearborne, 181 F.3d 657, 671 (5th Cir.
1999) (“The constitutional right to family integrity was well
established in 1992.”). Our recognition of Kipps's
constitutional right4 to familial association with his son (i.e,
his right to preserve the integrity of that family relationship)
does not take us to the limits that may be imposed on
constitutionally protected family relationships.
Kipps's association with his son deserves at least the same
3
Laurenzo v. Mississippi High Sch. Activities Ass'n, 662
F.2d 1117, 1119 (5th Cir. 1981) (“The constitutional right
generally protecting the family has been recognized for nearly
three score years by the Supreme Court.”).
4
The assertion in the special concurrence that “the
Kippses have not alleged violation of a clearly established
right” misses the point. Mrs. Kipps and Kyle are unable to bring
a constitutional claim under these circumstances. Only Rexford
Kipps can properly claim a violation of his right to familial
association. This explains the use of a singular possessive
modifier in the opinion: Kipps's.
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protection as association with members of a union, see Boddie v.
City of Columbus, 989 F.2d 745, 750 (5th Cir. 1993)(“We conclude
that Chief Gale should reasonably have known that firing Boddie
for his association with union firemen violated clearly
established law.”). Plaintiffs' claim that Kipps was terminated
because his son chose to play football for LSU alleges the
impingement of a cognizable constitutionally protected interest.
Objective Reasonableness of Defendants
Although we find that Kipps had a clearly established,
constitutionally protected right to familial association with his
son, we continue to hold that the defendants' actions were, under
the unique facts of this case, objectively reasonable.5 See
Kipps, 197 F.3d at 768-70. Therefore, defendants are entitled to
qualified immunity for their actions.
Conclusion
Treating the Petition for Rehearing En Banc as a Petition
for Panel Rehearing, the Petition for Panel Rehearing is DENIED.
No member of the panel nor judge in regular active service of the
court having requested that the court be polled on Rehearing En
Banc, see FED. R. APP. P. 35; 5TH CIR. R. 35, the Petition for
Rehearing En Banc is DENIED.
Judge Wiener and Judge Parker concur in the entirety of this
5
Judge DeMoss clearly places no great emphasis on the role
recruiting plays in an athletic program. Perhaps his position is
influenced by his distinguished tenure at Rice Institute, an
institution whose academic repute greatly overshadows its
athletic record. We can only point him to the affidavit
testimony of Spike Dykes.
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order. Judge DeMoss concurs specially.
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DeMOSS, Circuit Judge, concurring in the denial of rehearing
only:
On December 6, 1999, when the majority filed its original
opinion in this case, it acknowledged that:
Whether a constitutional liberty interest is implicated by
the facts of this case is highly questionable.
Kipps v. Caillier, 197 F.3d 765, 769 n. 4 (5th Cir. 1999). Now,
less than 90 days later and without citation to any relevant
intervening decision, the majority jumps to the following
conclusion:
We have little trouble finding that a
constitutional interest in familial
association does, in fact, exist and was
clearly established at the time Kipps was
fired.
Majority Opinion, at 2. This 180/ turnabout permits the majority
to at least superficially comply with our precedent requiring
that it first address the first prong of the qualified immunity
analysis, by finding that the Kippses' alleged a violation of a
clearly established constitutional right, but then in the end,
return to the actual holding of the original opinion that:
The defendants are entitled to qualified
immunity because their conduct was
objectively reasonable.
There are several serious problems with the majority’s
analysis of the first prong of the qualified immunity inquiry in
this case. First, the majority spills a lot of ink driving home
the importance of the family. I wholeheartedly agree that family
relationships are important. I even agree that the United States
Constitution affords parents certain protections from
unreasonable state interference in decisions regarding the care,
custody, training, and education of their children. I do not
agree, however, that the Constitution may be invoked to remedy
every stupid, irrational, or unreasonable decision taken by a
state official, regardless of whether there is actually any
tangible interference in the family/parental relationship. The
majority apparently disagrees, stating that:
Kipps was fired because of his actual
association with his son. This is separate
and distinct from a claim of state
interference with that association.
I can find no logical or jurisprudential support for the
existence of a constitutional right of association that is so
easily divorced from state interference with that right.
The majority’s stated objective in making this questionable
distinction is nothing more than an attempt to avoid the
defendants’ argument that the level of state interference must be
such that the facts state a claim of constitutional magnitude.
Majority Opinion at 4. I find the majority’s cursory rejection
of this argument unpersuasive, and therefore register my
disagreement with the majority’s view that some tangible level of
state interference is not required to state a constitutional
claim for violation of the plaintiffs’ associational rights.
Having established that there is a clearly established right
to familial association that is separate and apart from the right
to be free from state interference with familial relationships,
the majority next remarks that the facts in this case actually
fall in the heartland, rather than "on the fringe," of the
jurisprudence addressing the constitutional right to familial
integrity. The majority’s conclusion in this regard is supported
by nothing more than the assumption that the case involves a
parent/child relationship. Majority Opinion at 5-6. I could not
disagree more. At all times relevant to the actions in
controversy in this suit, Kyle Kipps was over the age of 18, and
under Louisiana law, his parents could no longer tell him where
he had to go to school. There is no dispute whatsoever about the
fact that Kyle Kipps himself, rather than his parents, made the
decision to go to school at LSU and play football there. There
is no dispute that Kyle had full and ample opportunity to discuss
with his parents the choices and alternatives he had about going
to college and playing football. Furthermore, there is no
allegation that any of the defendants' conduct caused any breach
or separation of the love and affection existing between the
Kippses and their adult son. There are, therefore, no facts
tending to establish any actual interference with the Kippses’
familial relationships. I conclude that the Kippses have not
alleged a clearly established right which some conduct of the
defendants violated.
To the extent the majority concludes otherwise, I believe
they are conflating the issues of whether a constitutional right
exists in the abstract, and whether that right is implicated on
the facts alleged by the plaintiffs. The majority assumes that
the mere existence in the abstract of some clearly established
constitutional right, in this case the right to “actual” familial
association, is sufficient to defeat a claim of qualified
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immunity. But that is not the law. We have consistently
required more than that the plaintiffs be able to name or invoke
some clearly established constitutional right. A defendants’
properly invoked claim of qualified immunity cannot be defeated
absent factual allegations which, if accepted as true, at least
potentially state a claim for violation of that right. See,
e.g., Shipp v. McMahon, 199 F.3d 256, 262 (5th Cir. 2000); Petta
v. Rivera, 143 F.3d 895, 899 (5th Cir. 1998); Cantu v. Rocha, 77
F.3d 795, 805-08 (5th Cir. 1996). For that reason, the relevant
issue is not whether there might, in an appropriate case, be some
constitutionally impermissible measure of intrusion into the
familial relationship. The question is whether the Kippses’
factual allegations even potentially set forth a claim for an
intrusion of constitutional magnitude in this case. For the
reasons stated, I do not believe the mere existence of a
parent/child relationship between the Kippses and their son is
sufficient to state a cause of action for such an intrusion.6 I
would therefore base the decision in this case upon the Kippses’
failure to state the violation of a constitutional claim, rather
than on the patently ridiculous premise that the head coach's
6
The majority claims I have “missed the point” by failing to realize that only Rexford Kipps
alleged a violation of his right to familial association. I beg to differ. There are three plaintiffs in this
case and all of the allegations relating to the plaintiffs’ familial association rights are consistently
framed in terms of all three plaintiffs or all three complainants. See, e.g., Complaint ¶ 15 (“the
defendants’ actions impermissibly infringe upon complainants’ right to make intimate, personal
decisions regarding their familial relationships”); Id. at ¶ 16 (defendants “violated complainants’ right
to association as guaranteed by the First, Third, Fourth, and Fifth Amendments to the United States
Constitution, and Rexford `Rex’ Kipps’ right to due process under the Fourteenth Amendment to the
United States Constitution”). That being the case, I am frankly baffled by the majority’s comment
that only Rexford Kipps is raising the claim.
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decision to fire Kyle's father because Kyle decided to attend LSU
was objectively reasonable.
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