Jones v. County of Los Angeles

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL N. JONES, an individual; No. 12-55995
JILL JONES, an individual; G. J., an
individual, D.C. No.
Plaintiffs-Appellees, 2:11-cv-02851-
SJO-VBK
v.
COUNTY OF LOS ANGELES, OPINION
Defendant,
and
DR. CLAUDIA WANG, an individual,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
April 11, 2014—Pasadena, California
Filed September 21, 2015
2 JONES V. WANG
Before: N. Randy Smith and Mary H. Murguia, Circuit
Judges, and Stephen M. McNamee, District Judge.*
Opinion by Judge Murguia;
Dissent by Judge McNamee
SUMMARY**
Civil Rights / Qualified Immunity
The panel affirmed the district court’s denial of Dr.
Claudia Wang’s motion for summary judgment based on her
alleged qualified immunity in a 42 U.S.C. § 1983 action
brought against Dr. Wang.
The Jones family alleged that Dr. Wang violated their
Fourth and Fourteenth Amendment rights and committed
various torts during her investigation into whether G.J. had
been abused.
The panel held that, resolving all factual disputes in the
Joneses’ favor, the alleged conduct of Dr. Wang could
support a claim that Dr. Wang violated the Joneses’ clearly
established constitutional rights. Namely, the panel held that
the Joneses’ version of the facts supported a claim that Dr.
Wang seized G.J. from his parents without exigent
*
The Honorable Stephen M. McNamee, United States District Judge for
the District of Arizona, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
JONES V. WANG 3
circumstances. The panel held that because both parts of the
qualified immunity test were satisfied, the Joneses were
entitled to attempt to prove their version of the facts to a jury
and summary judgment was not appropriate.
The panel also held, concerning Dr. Wang’s asserted state
statutory immunities to the Joneses’ state-law claims, that Dr.
Wang was not entitled as a matter of law to the reporters’
privilege under Cal. Penal Code § 11172(a) or discretionary
immunity under Cal. Government Code § 820.2.
District Judge McNamee dissented, and he would find
that Dr. Wang is entitled to qualified immunity because she
did not violate either the Fourth Amendment or clearly
established law.
COUNSEL
Donald A. Garrard (argued) and Steven D. Davis, Garrard &
Davis LLP, Santa Monica, California, for Defendant-
Appellant.
Robyn C. Crowther (argued), Michael J. Proctor, Jeffrey M.
Chemerinsky, Caldwell Leslie & Proctor, PC, Los Angeles,
California, for Plaintiffs-Appellees.
4 JONES V. WANG
OPINION
MURGUIA, Circuit Judge:
The Jones family—Jill, Michael, and their son
G.J.—brought this action under 42 U.S.C. § 1983 alleging
that Dr. Claudia Wang violated their Fourth and Fourteenth
Amendment rights and committed various torts during her
investigation into whether G.J. had been abused. The district
court denied Dr. Wang summary judgment on her qualified
immunity defense. We conclude that, resolving all factual
disputes in the Joneses’ favor, the alleged conduct of Dr.
Wang can support a claim that Dr. Wang violated the
Joneses’ clearly established constitutional rights.
I. Factual and Procedural Background
Dr. Wang appeals the district court’s denial of summary
judgment on her qualified immunity defense. We accept as
true all of the Joneses’ evidence, and we draw all justifiable
inferences in the Joneses’ favor. Tolan v. Cotton, 134 S. Ct.
1861, 1863 (2014) (per curiam).
The events underlying this suit begin on the evening of
February 24, 2010. As Jill Jones descended the steps from the
loft in her Santa Monica condominium with her sleeping
infant son G.J. in her arms, she tripped and G.J. slipped out
of her grip. G.J. tumbled down several stairs and landed on
his head on the hardwood floor. Jill rushed G.J. to the
Emergency Department at the Santa Monica UCLA Medical
Center.
At the Emergency Department, a CT scan of G.J.’s head
revealed a complex fracture on the back of G.J.’s skull. G.J.’s
JONES V. WANG 5
ribs were also fractured, but because the bones were still
aligned, the fractures were not visible on the x-ray of G.J.’s
chest done that day. Hospital staff made a routine report of
G.J.’s injury to the LA County Department of Children and
Family Services (DCFS), noting that G.J.’s injuries were
consistent with Jill’s explanation that she had accidentally
fallen down the stairs. G.J. stayed in the hospital for two
days after the accident. On February 26, 2010, he was
discharged to his parents. After Jill brought G.J. home from
the hospital, she noticed a popping noise coming from G.J.’s
chest, which was caused by the undetected rib fractures. Jill
was concerned because G.J. appeared to be in pain every time
she heard a pop from his chest.
On March 4, 2010, Nancy Hayes, UCLA’s Suspected
Child Abuse and Negligence (SCAN) team case manager,
referred G.J.’s case to Dr. Claudia Wang, the SCAN team
medical director. Dr. Wang reviewed the case and concluded
that G.J.’s injuries were unusual and potentially, but not
necessarily, inconsistent with Jill’s explanation. Even though
the skull fracture could be consistent with Jill’s explanation
that G.J. had fallen down stairs and hit his head, because of
the fracture’s severity, Dr. Wang decided to order routine
child abuse screening tests and examine G.J. herself. Dr.
Wang called G.J’s pediatrician, who called Jill and
coordinated with Jill to bring G.J. in for an opthalmological
exam, a skeletal survey x-ray, and a physical examination
with Dr. Wang the following morning. Jill’s pediatrician told
Jill that the tests were routinely done to rule out child abuse
and should have been done before G.J. was discharged from
the hospital the week before. Dr. Wang also called Jill and
assured her that the tests were routine. Jill was also aware that
these tests were routinely conducted to investigate child abuse
because of her work as a lawyer for L.A. County Social
6 JONES V. WANG
Services. Jill told Dr. Wang about the popping she heard in
G.J.’s chest and the pain it was causing G.J.
The next day, March 5, 2010, Jill brought G.J. to the
UCLA Westwood campus medical facilities for the tests as
scheduled. The opthamological examination showed that G.J.
had no retinal hemorrhages, which are often found in infants
with abusive head trauma.
The first radiologist to interpret G.J.’s skeletal survey, Dr.
Ines Boechat, told Dr. Wang that she saw fractures on G.J.’s
sixth and seventh right ribs on the posterior (back) side. Dr.
Wang looked at the skeletal survey images herself and
compared them with the chest x-ray taken at the Emergency
Department immediately after the fall, which appeared not to
show any rib fractures. Dr. Wang was not able to make out
the fractures on G.J’s right ribs that Dr. Boechat identified,
but she did see fractures on G.J.’s left sixth and seventh ribs.
Dr. Wang surmised that the left fractures were new, while the
right side fractures were not. Dr. Boechat suggested to Dr.
Wang that the skeletal survey might faintly show another
skull fracture on the left side of G.J.’s skull that had also not
been detectable on the February 24, 2010, CT scan. Dr.
Boechat recommended that Dr. Wang get an opinion from
another radiologist.
At Dr. Wang’s request, a second radiologist, Dr. Ted Hall,
reviewed both the chest x-ray from the Emergency
Department and that morning’s skeletal survey. Unlike Dr.
Boechat and Dr. Wang, Dr. Hall interpreted G.J.’s skeletal
survey to show fractures on G.J.’s sixth and seventh ribs on
both sides. Dr. Hall opined that the right-side fractures might
have been present on the February 24 chest x-ray, but he did
not see the left-side fractures on that x-ray image. Dr. Hall
JONES V. WANG 7
saw no second fracture on the left side of G.J.’s skull. Dr.
Hall also disagreed with Dr. Wang’s observation that G.J.
might have fractures on his femur and tibial bones. He
explained to her that what she suspected were fractures were
actually a normal variant in infant legs.
After consulting with specialists after that morning’s child
abuse screening tests, Dr. Wang knew that (1) G.J. did not
have retinal hemorrhaging, and (2) G.J. had rib fractures. Dr.
Wang concluded—mistakenly, as it turned out—that G.J.’s
ribs had been fractured after the accident. Before meeting
with Jill or examining G.J., Dr. Wang called Nancy Hayes,
the SCAN team case manager, and asked her to report G.J.’s
case to DCFS. Dr. Wang also called the UCLA police
department because she was concerned that Jill might try to
leave the clinic with G.J. When the police officers arrived,
Dr. Wang spoke with them and asked them to remain in the
clinic while she met with Jill.
Dr. Wang met with Jill in the Pediatric Ambulatory
Clinic. Jill recounted for Dr. Wang the accident and G.J.’s fall
down the stairs. Dr. Wang then informed Jill that, as a
mandated child abuse reporter, she had requested that a report
be made to DCFS and the UCLA police because G.J.’s
injuries were compatible with non-accidental trauma. Despite
Dr. Hall’s opinion that G.J. did not have a second skull
fracture, Dr. Wang told Jill that G.J. might have an additional
skull fracture and possibly leg fractures and recommended
that G.J. have another CT scan. Dr. Wang also recommended
to Jill that Jill admit G.J. into the hospital for a bone specialist
consult to determine whether G.J. had a metabolic bone
disorder that was causing the fractures. Dr. Wang’s primary
purpose, however, in recommending to Jill that G.J. be
hospitalized—which she did not tell Jill—was to detain G.J.
8 JONES V. WANG
at the hospital and prevent Jill from taking G.J. home. Dr.
Wang later testified that had she not suspected abuse, she
would have told the Joneses that they could take G.J. home
and return in the following weeks for outpatient testing. In
fact, Dr. Wang testified that the main reason for admitting
G.J. was that she did not have a plan to discharge him safely
to his home. Dr. Wang also acknowledged that, because it
was Friday, admitting G.J. into the hospital would likely keep
him there over the weekend, preventing his parents from
taking him home until at least Monday, March 8, 2010. After
recommending an additional CT scan and hospitalization, Dr.
Wang informed Jill that officers from the Santa Monica
police department were there to interview her.
Jill agreed to the CT scan and to admit G.J. to the
hospital. Jill believed that the CT scan was medically
necessary. Jill’s sister, who came to the hospital to support
Jill, remembered that she and Jill became hysterical after
hearing about G.J.’s new injuries and learning that he needed
to be re-hospitalized. One of the Santa Monica police officers
recalled that Jill seemed exhausted but agreed to the course
recommended by Dr. Wang because she was concerned about
G.J.’s well-being.
After the additional CT scan, it was nearly 5:00 p.m.,
closing time for the Pediatric Ambulatory Clinic. Two Santa
Monica Police Department officers, SCAN team case
manager Nancy Hayes, and pediatric resident Dr. Adrian
Castro escorted Jill, her husband Michael, who had by now
joined Jill at the clinic, and G.J. to the Emergency
Department to admit G.J. to the hospital. Before the group
left for the Emergency Department, Dr. Wang told Hayes to
make sure that Jill and Michael did not take G.J. home.
JONES V. WANG 9
At 5:49 p.m. on March 5, while the Joneses were en route
to the Emergency Department from the Pediatric Ambulatory
Clinic, Dr. Wang received a page confirming that the CT scan
did not show that G.J. had a second skull fracture.
Once the Joneses arrived at the Emergency Department,
where the admission process was to begin, Jill began to
realize that Dr. Wang had misled her and her husband into
thinking that G.J. needed to be hospitalized. Dr. Cooper, the
Emergency Department attending physician, told the Joneses
that there was no reason G.J. needed to be admitted to the
hospital simply to get the blood work Dr. Wang had ordered.
Dr. Cooper also told Jill that the CT scan showed that G.J. did
not have a second skull fracture, which Dr. Wang had not told
Jill or Michael. The Joneses asked to take G.J. home.
At 8:06 p.m. on March 5, Dr. Castro, the pediatric
resident who accompanied the Joneses from the Pediatric
Ambulatory Clinic to the Emergency Department, paged Dr.
Wang: “Parents now threatening to leave. [Social worker]
calling DCFS to ask if on official hold and whether we need
to call security to assure they do not leave. Do you know if on
hold or should we place? Thanks, Adrian.” Dr. Wang told Dr.
Castro that only DCFS had the authority to place a hospital
hold, so if the Joneses tried to leave with G.J., Dr. Castro
could not use the security or police to stop them.
Dr. Wang spoke with Shawn Rivas, the DCFS social
worker assigned to the Joneses’ case, and admitted she did
not have a definitive diagnosis of child abuse and wanted
time to conduct further tests. Dr. Wang also stated that she
believed G.J. would be in danger if released. Rivas decided
that G.J. was not in immediate danger and that he therefore
10 JONES V. WANG
did not have a basis to issue a hospital hold under California
state law.1
At around midnight, Rivas met with the Joneses in the
Emergency Department. The Joneses asked Rivas if they
could take G.J. home. Rivas told the Joneses that Dr. Wang
suspected that G.J.’s injuries were not accidental and led the
Joneses to believe that the decision of whether the Joneses
could take G.J. home lay with Dr. Wang. Rivas advised Jill
and Michael to “keep playing ball” and not try to take G.J.
home. Rivas added that if they resisted Dr. Wang’s
hospitalization order and tried to take G.J. home, not only
would G.J. be “detained,” but it would look like they were
refusing medical treatment, which could provide Rivas with
a basis to remove G.J. from their custody.
Early in the morning on Saturday, March 6, 2010, the
Joneses signed Admission and Medical Service Agreements
forms for G.J., and G.J. was transferred to the UCLA Medical
Center in Santa Monica and given a special tracking bracelet.
Dr. Wang ordered that there be a sitter in G.J.’s room; the
sitter stayed in G.J.’s room at all times to prevent Jill and
Michael from being alone with G.J.
1
By statute, a county welfare department social worker may assume and
maintain temporary custody of a minor without a warrant when the social
worker has reasonable cause to believe the “child has suffered, or there is
a substantial risk that the child will suffer, serious physical harm or illness,
as a result of the failure or inability of his or her parent or guardian to
adequately supervise or protect the child,” and the social worker has
reasonable cause to believe the child is in immediate danger of physical
abuse. Cal. Welf. & Inst. Code §§ 306(a)(2), 300(b)(1).
JONES V. WANG 11
On Sunday, March 7, 2010, Rivas still believed that there
was insufficient evidence “to issue a hold or detain G.J.,” and
continued to wait for Dr. Wang’s conclusions.
On Monday, March 8, 2010, Dr. Wang told Rivas that
G.J.’s injuries were “highly suspicious” for abuse and asked
that he place a hospital hold. Rivas issued the hold.
Jill and Michael lost physical custody of G.J. for months
pending the resolution of dependency proceedings brought by
DCFS in juvenile court. Ultimately, the Commissioner
presiding over the proceedings determined that G.J. had not
been abused and that there was no risk that G.J. would be
abused in the future. Jill, Michael, and G.J. Jones filed the
instant suit against Dr. Wang and several DCFS employees
and county defendants, asserting violations of the Joneses’
federal and state constitutional rights as well as various state
law tort claims. The district court denied Dr. Wang’s motion
for summary judgment on the merits and her qualified
immunity defense. Dr. Wang now appeals the district court’s
denial of qualified immunity.
II. Qualified Immunity
Although we generally do not have jurisdiction under
28 U.S.C. § 1291 to review a district court’s denial of
summary judgment because it is not a “final decision,” we
have jurisdiction under § 1291 over a defendant’s appeal
from a denial of summary judgment on qualified immunity.
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).2 This is
because qualified immunity “is an immunity from suit rather
2
Therefore, we lack jurisdiction to review the district court’s denial of
summary judgment to Dr. Wang on the merits of the Joneses’ claims.
12 JONES V. WANG
than a mere defense to liability; and like an absolute
immunity, it is effectively lost if a case is erroneously
permitted to go to trial.” Id. at 526. A district court’s “denial
of summary judgment finally and conclusively determines the
defendant’s claim of right not to stand trial on the plaintiff’s
allegations.” Id. at 527. When the district court denies
summary judgment on qualified immunity grounds, “the
appealable issue is a purely legal one: whether the facts
alleged [by the plaintiff] support a claim of violation of
clearly established law.” Id. at 528 n.9. Thus, we have
jurisdiction to consider whether, accepting the Joneses’
version of the events of March 5–8, 2010, Dr. Wang’s alleged
conduct supports a claim of violation of a clearly established
legal standard; if so, the district court’s denial of qualified
immunity was appropriate. See Wilkins v. City of Oakland,
350 F.3d 949, 952 (9th Cir. 2003).
Section 1983 creates a cause of action against any person
who, acting under color of state law, violates the federal
constitutional rights of another person. See 42 U.S.C. § 1983.
“The doctrine of qualified immunity protects government
officials ‘from liability for civil damages insofar 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)).
Thus, the qualified immunity analysis has two prongs:
(1) whether the official violated the plaintiff’s constitutional
rights, and (2) whether the right violated was clearly
established at the time of the official’s conduct. Id. at 232.
For a right to be clearly established,
[t]he contours of the right must be sufficiently
clear that a reasonable official would
JONES V. WANG 13
understand that what he is doing violates that
right. That is not to say that an official action
is protected by qualified immunity unless the
very action in question has previously been
held unlawful, but it is to say that in light of
pre-existing law the unlawfulness must be
apparent.
Calabretta v. Floyd, 189 F.3d 808, 812 (9th Cir. 1999)
(internal quotation marks omitted). However, “[s]pecific
binding precedent is not required to show that a right is
clearly established for qualified immunity purposes.” Id.(internal quotation marks omitted). Whether specific facts
constitute a violation of established law and whether that law
was clearly established are both legal determinations that we
review de novo. Mabe v. San Bernardino Cnty., Dep’t of Pub.
Soc. Servs., 237 F.3d 1101, 1106 (9th Cir. 2001).
Step One: Violation of a Constitutional Right
We begin with whether the Joneses’ version of the facts
can support a claim that Dr. Wang violated their
constitutional rights.
[I]n the area of child abuse, as with the
investigation and prosecution of all crimes,
the state is constrained by the substantive and
procedural guarantees of the Constitution. The
fact that the suspected crime may be
heinous—whether it involves children or
adults—does not provide cause for the state to
14 JONES V. WANG
ignore the rights of the accused or any other
parties.
Wallis v. Spencer, 202 F.3d 1126, 1130 (9th Cir. 1999).
Families in child abuse investigations are protected by
two provisions of the Constitution, the Due Process Clause of
the Fourteenth Amendment and the Search and Seizure
Clause of the Fourth Amendment. “Parents and children have
a well-elaborated constitutional right to live together without
governmental interference. That right is an essential liberty
interest protected by the Fourteenth Amendment’s guarantee
that parents and children will not be separated by the state
without due process of law except in an emergency.” Id. at
1136 (citations omitted). Under the Fourteenth Amendment
right to familial association, an official who removes a child
from parental custody without a warrant “must have
reasonable cause to believe that the child is likely to
experience serious bodily harm in the time that would be
required to obtain a warrant.” Rogers v. Cnty. of San Joaquin,
487 F.3d 1288, 1294 (9th Cir. 2007). The child subjected to
seizure is also protected by the Fourth Amendment’s
prohibition against unreasonable searches and seizures.
Kirkpatrick v. Cnty. of Washoe, — F.3d —, No. 12-15080,
2015 WL 4154039, at *2–*3 (9th Cir. July 10, 2015); Wallis,
202 F.3d at 1137 n.8. While the constitutional source of the
parent’s and the child’s rights differ, the tests under the
Fourteenth Amendment and the Fourth Amendment for when
a child may be seized without a warrant are the same. Wallis,
202 F.3d at 1137 n.8. The Constitution requires an official
separating a child from its parents to obtain a court order
unless the official has reasonable cause to believe the child is
in “imminent danger of serious bodily injury.” Id. at 1138.
Seizure of a child is reasonable also where the official obtains
JONES V. WANG 15
parental consent. See James v. Rowlands, 606 F.3d 646, 652
n.2 (9th Cir. 2010) (noting that “seizing and interrogating a
suspected child abuse victim without parental consent
violates the child’s Fourth Amendment rights” absent a
warrant, court order, or exigent circumstances).
Our analysis of whether the Joneses’ allegations support
a claim that Dr. Wang violated their constitutional rights
centers on two issues. The first is whether the Joneses’
version of the facts supports a claim that Dr. Wang seized
G.J. under the meaning of both the Fourth and Fourteenth
Amendments; in other words, in this case, whether Wang’s
conduct as the Joneses characterized it would have caused
reasonable parents in the Joneses’ position to believe they
could not refuse consent to G.J.’s hospitalization. If so, the
second issue is whether the Joneses’ version of the facts
further establishes that this seizure was justified by exigent
circumstances. We conclude that the Joneses’ account of Dr.
Wang’s conduct permits a conclusion that Dr. Wang seized
G.J. without consent and without reasonable cause to believe
that G.J. was in imminent danger of serious bodily harm,
thereby violating the Joneses’ constitutional rights.
Seizure
Typically, a seizure of a person occurs where, “in view of
all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free
to leave.” United States v. Mendenhall, 446 U.S. 544, 554
(1980). This standard does not fit neatly in the context of
child abuse investigations, because to ask whether a
reasonable child would feel free to leave under the
circumstances overlooks a parent’s right to exercise custody
over her children. Accordingly, a child is seized for purposes
16 JONES V. WANG
of the Fourth and Fourteenth Amendments when a
representative of the state takes action causing a child to be
detained at a hospital as part of a child abuse investigation,
such that a reasonable person in the same position as the
child’s parent would believe that she cannot take her child
home. See Kia P. v. McIntyre, 235 F.3d 749, 762 (2d Cir.
2000) (citing Mendenhall, 446 U.S. at 554) (holding that a
child was seized when a hospital told the child’s parent that
she could not take the child home); California v. Hodari D.,
499 U.S. 621, 625 (1991) (“‘A seizure is a single act, and not
a continuous fact.’” (quoting Thompson v. Whitman, 85 U.S.
457, 471 (1873)).
Practically speaking, then, the question whether a
reasonable parent would feel free to take a child home from
the hospital is indistinguishable from the question whether
that parent would feel free to withhold consent to the
hospital’s retaining the child. See id. “[T]he Fourth and
Fourteenth Amendments require that a consent not be
coerced, by explicit or implicit means, by implied threat or
covert force.” Schneckloth v. Bustamonte, 412 U.S. 218, 228
(1973); see also United States v. Ocheltree, 622 F.2d 992,
994 (9th Cir. 1980) (concluding that the defendant’s consent
to a search of his briefcase was coerced, and therefore
ineffective, where a law enforcement agent threatened to
arrest him unlawfully if consent was withheld). Accordingly,
our analysis of whether the Joneses’ allegations could support
a claim that Dr. Wang seized G.J. turns on whether the
Joneses knowingly and voluntarily consented to Dr. Wang’s
alleged seizure.
We conclude that the Joneses’ version of the facts
supports a rational conclusion that, due to Dr. Wang’s alleged
conduct, reasonable parents in the Joneses’ position would
JONES V. WANG 17
not have felt free to leave with G.J. According to the Joneses,
Dr. Wang coerced them into consenting to G.J.’s
hospitalization—and not withdrawing that consent throughout
the weekend—in a number of ways. First, Dr. Wang told the
Joneses that the tests she wished to perform would require
G.J.’s hospitalization, despite knowing that the tests could be
conducted on an outpatient basis. This misrepresentation
would lead a reasonable parent to believe that she could not
withhold consent lest she be deemed to have refused her child
necessary medical treatment.3
Second, Dr. Wang marshaled considerable authority to
cajole the Joneses into granting consent and to prevent them
from withdrawing it. Dr. Wang informed Jill that Dr. Wang
was a mandated child abuse reporter and that G.J.’s injuries
were consistent with child abuse. Dr. Wang contacted the
police, who interviewed Jill on the matter of child abuse and
accompanied G.J. and the Joneses to the ER. Dr. Wang also
told Rivas that the tests she wished to perform required
hospitalization, prompting Rivas to tell the Joneses that they
should “keep playing ball” and that G.J. would be detained if
3
In declaring that the only “affirmative evidence” that Dr. Wang seized
G.J. was “actions of third parties,” Dissent 33, the dissent overlooks Dr.
Wang’s deliberate misrepresentation that the testing she wished to perform
required hospitalization.
The dissent also suggests that we have impermissibly examined Dr.
Wang’s “subjective intent,” rather than the objective circumstances
surrounding G.J.’s seizure. Id. at 34 (citing Scott v. United States, 436
U.S. 128, 138 (1978)). We respectfully disagree. Dr. Wang represented
to the Joneses that G.J.’s tests required hospitalization. This was untrue.
These are both objective facts, neither of which depends on Dr. Wang’s
subjective intent in making the misrepresentations. And based on these
facts, reasonable parents in the Joneses’ position would not feel free to
refuse G.J.’s hospitalization.
18 JONES V. WANG
the Joneses tried to take him home. Dr. Wang coordinated
behind the scenes with Hayes, the SCAN team case manager,
to keep G.J. at the hospital, knowing that she could not
formally take G.J. into custody. All of this took place in the
face of the Joneses’ repeated requests for permission to take
G.J. home. Most importantly, at some point during the
weekend, Dr. Wang directed that a sitter be placed in G.J.’s
room to prevent the Joneses from being alone with him.
Short of a formal hold, there is no stronger message to parents
that they are not free to make decisions for their child than
that the state does not trust them to be alone with their infant
son.4
We offer no opinion on the ultimate question of whether
the Jones’s constitutional rights were violated. We decide
only that a jury is needed to determine what a reasonable
parent in the Jones’s position would have believed and
whether Dr. Wang’s conduct amounted to a seizure. Based on
the facts that the Joneses have alleged, however, a rational
jury could conclude that Dr. Wang’s efforts would lead
reasonable parents in the Joneses’ position to believe that
they could not take G.J. home. See Kia P., 235 F.3d at 762.
In short, the Joneses’ allegations support a claim that Dr.
Wang caused a seizure of G.J. For the same reasons, those
allegations support a rational conclusion that the Joneses’
4
The dissent observes that Dr. Wang told emergency staff not to
interfere should the Joneses attempt to leave the hospital with G.J.
Dissent 33. What the dissent overlooks is the record’s lack of any
evidence that the Joneses knew Dr. Wang had given this directive. If the
Joneses did not know that Dr. Wang told emergency staff not to prevent
them from leaving the hospital, then Dr. Wang’s instruction has no
bearing on whether a reasonable parent in the Joneses’ position would feel
free to refuse consent to G.J.’s hospitalization. See Kia P., 235 F.3d at
762; Schneckloth, 412 U.S. at 228.
JONES V. WANG 19
consent to G.J’s hospitalization was involuntary and therefore
ineffective.
Exigent Circumstances
Seizure of a child is permissible under the Fourth and
Fourteenth Amendments where there are exigent
circumstances. Exigent circumstances exist where an official
has “‘reasonable cause to believe that the child is likely to
experience serious bodily harm in the time that would be
required to obtain a warrant.’” Kirkpatrick, 2015 WL
4154039, at *7 (quoting Rogers, 487 F.3d at 1294). On
appeal from the district court’s denial of qualified immunity
at the summary judgment stage, we must determine whether
the Joneses’ account of the facts permits a rational conclusion
that Dr. Wang had reasonable cause to believe that G.J. faced
serious bodily harm, the risk of which was so imminent that
injury was likely before a court order could be obtained. See
Rogers, 487 F.3d at 1294. We conclude that, based on the
Joneses’ version of events, a rational jury could conclude that
Dr. Wang’s seizure of G.J. did not occur under exigent
circumstances.
We do not take lightly the undisputed evidence that G.J.
had newly discovered rib fractures on March 5, 2010, a week
after the initial accident. However, there are several facts that
undermine a reasonable belief that G.J. faced such imminent
harm that Dr. Wang or DCFS had no time to obtain a warrant,
and the question of exigency even in a close case should be
put to a jury.
First, DCFS social worker Shawn Rivas, who had the
statutory authority to issue a hospital hold, decided he had an
insufficient basis to do so after speaking with Dr. Wang and
20 JONES V. WANG
meeting with the Joneses. See Mabe, 237 F.3d at 1108 (social
worker’s decision to delay the removal of a child from a
residence raised a “serious question” about the
reasonableness of the belief that the child was in imminent
danger); see also Rogers, 487 F.3d at 1296 (“That neither [the
Child Protective Services social worker] nor the other staff
members thought that the allegations required immediate
action militates against a finding of exigency.”). In fact,
Rivas continued to conclude that a hospital hold was
inappropriate until Monday, March 8, 2010, when Dr. Wang
first told him that G.J.’s injuries were “highly suspicious.”
Rivas’s understanding until March 8, 2010, when he finally
issued the hospital hold, was that Dr. Wang had not
concluded that G.J.’s rib fractures were the result of abuse
and therefore that there was an insufficient basis for a
hospital hold.
Second, aside from G.J.’s rib fractures, which could have
been sustained by G.J. during the accidental fall, there was no
evidence that the Joneses neglected G.J., and there was no
evidence pointing to either Jill or Michael as the potential
abuser. See Wallis, 202 F.3d at 1142 n.14 (noting that the
state must have reasonable evidence that a specific parent is
unfit and that the child is in danger from that parent and may
not separate a child from one parent because of the real or
imagined conduct of the other parent). During G.J.’s first
hospitalization, every physician accepted Jill’s story about the
fall down the stairs, found nothing concerning about G.J.’s
complex skull fracture, and allowed G.J. to return home with
Jill and Michael after his hospitalization. It is undisputed that
Jill appeared appropriately concerned about G.J. throughout
the day on March 5. Jill willingly brought G.J. to the hospital
for abuse screening tests. And there is no evidence that
JONES V. WANG 21
Michael acted inappropriately after he arrived at the Pediatric
Ambulatory Clinic on March 5.
According to the Joneses’ version of the facts, even Dr.
Wang was not sure whether G.J. had been abused or whether
he would be in danger if he was sent home with his parents.
She knew that G.J. had no signs of retinal hemorrhaging, no
new skull fracture, and no leg fractures. At most, Dr. Wang
had evidence of new rib fractures, but she admitted that even
this evidence was not sufficient to show child abuse. Dr.
Wang also told Dr. Castro on Friday, March 5, 2010, that
security and the police should not be used to stop the Joneses
if they tried to leave the hospital with G.J. This suggests that
at the time she did not believe that G.J. would face an
immediate threat of serious physical injury or death if he left
the hospital with his parents, or at least that Dr. Wang could
not persuade DCFS of such a threat. It was not until Monday,
March 8, 2010, more than two days after G.J. was first
admitted to the hospital, that Dr. Wang told Rivas that G.J.’s
injuries were “highly suspicious” for child abuse and told him
to order a hospital hold.
In sum, the Joneses’ account of the evidence supports a
claim that Dr. Wang seized G.J., and did so despite the
absence of exigent circumstances.5 Accordingly, the first
5
The dissent suggests that we must defer to Dr. Wang’s conclusions
regarding G.J.’s injuries. Dissent 34. The question, however, is not
whether Dr. Wang reasonably surmised that G.J.’s fractures were the
result of abuse, but whether Dr. Wang could reasonably believe that G.J.
was likely to come to serious harm in the time it would take to obtain a
warrant. See Rogers, 487 F.3d at 1294. The dissent points to no evidence
in the record to suggest that G.J. faced such an immediate risk of harm if
permitted to return home with the Joneses, and we are aware of none.
Under our longstanding precedent, mere suspicion that specific injuries
22 JONES V. WANG
prong of the test for whether the district court correctly
denied qualified immunity at the summary judgment stage
has been satisfied.
Step Two: Clearly Established Law
The second prong of the qualified-
immunity analysis asks whether the right in
question was “clearly established” at the time
of the violation. Governmental actors are
“shielded from liability for civil damages if
their actions did not violate ‘clearly
established statutory or constitutional rights of
which a reasonable person would have
known.’” “[T]he salient question is . . .
whether the state of the law” at the time of an
incident provided “fair warning” to the
defendants “that their alleged [conduct] was
unconstitutional.”
Tolan, 134 S. Ct. at 1866 (alterations in original) (citation
omitted) (quoting Hope v. Pelzer, 536 U.S. 730, 739, 741
(2002)). Whether the law placed a state actor on reasonable
notice that her conduct would violate the Constitution must
be determined “in light of the specific context of the case, not
as a broad general proposition.” Brosseau v. Haugen,
543 U.S. 194, 198 (2004) (quoting Saucier v. Katz, 533 U.S.
194, 201 (2001)). We also must “take care not to define [this]
were the result of child abuse are not sufficient to detain a child. If we
were to hold that Dr. Wang’s suspicions justified a seizure in order to
confirm those suspicions or lay them to rest, the protections promised to
parents and their children by the Wallis line of cases would become
illusory.
JONES V. WANG 23
case’s ‘context’ in a manner that imports genuinely disputed
factual propositions.” Tolan, 134 S. Ct. at 1866. In other
words, we must determine whether a reasonable state actor in
Dr. Wang’s position—viewing Dr. Wang’s actions under the
totality of the circumstances known to her and in the light
most favorable to the Joneses—would know that (1) Dr.
Wang’s conduct “seized” G.J., and (2) exigent circumstances
did not justify the seizure.
We begin our analysis with the principle that “[t]he
constitutional right of parents and children to live together
without governmental interference is well established.” Mabe,
237 F.3d at 1107. Were we faced with a social worker who
detained a child without exigent circumstances, this case
would fall neatly within our existing case law. See, e.g.,
Kirkpatrick, 2015 WL 4154039, at *9–*10 (social workers
not entitled to qualified immunity for removing an infant
from the hospital and placing her in a foster home without
judicial authorization or a reason to believe that the child
would be harmed while in the hospital); Rogers, 487 F.3d at
1295 (social worker not entitled to qualified immunity for
removing children from parents’ custody because children’s
bottle rot, malnourishment, and the disorderly conditions of
their home did not present an imminent risk of serious bodily
harm as a matter of law); Mabe, 237 F.3d at 1108–09 (social
worker not entitled to qualified immunity for warrantless
removal of child from parents’ custody where facts
undermined reasonableness of belief that child was in
imminent danger of being molested by stepfather); Wallis,
202 F.3d at 1138–40 (police officers not entitled to qualified
immunity for warrantless removal of children from parents’
custody without specific, articulable evidence of imminent
abuse). What makes this case more difficult is that Dr. Wang
was a physician investigating child abuse, not a social
24 JONES V. WANG
worker, and the seizure occurred in a hospital. Therefore, the
question presented by this case is whether these two
facts—that Dr. Wang was a physician investigating abuse, not
a social worker, and that G.J. was detained in a hospital
following his parents’ consent to hospitalization—sufficiently
differentiate this case from our precedent in child abuse
investigations such that our precedent does not clearly apply.
We conclude that our case law provided fair warning to Dr.
Wang that detaining G.J. would violate the Constitution.6
First, our case law clearly establishes that Dr. Wang
“seized” G.J. Though we address whether our cases give an
official fair notice that her conduct violates the Constitution
“‘in light of the specific context of the case,’” the violation is
sometimes so “obvious” as to be clearly established “even
without a body of relevant case law.” Brosseau, 543 U.S. at198–99 (quoting Katz, 533 U.S. at 201). As characterized by
the Joneses, Dr. Wang’s conduct so obviously caused G.J. to
be “seized” that no closely analogous case law is needed to
alert her to the fact. Dr. Wang told the Joneses that the tests
she wished to perform required hospitalization, despite
knowing that they could be done on an outpatient basis. No
6
The dissent suggests that our cases, such as Rogers, Mabe, and Wallis,
cannot furnish clearly established law because other circuits disagree with
them. Dissent 36, 38. However, this court regularly finds a principle to
be clearly established based solely on its own decisions. See Kirkpatrick,
2015 WL 4154039, at *9–*10 (finding an infant’s right not to be seized
from his mother’s custody at the hospital clearly established based on
Rogers); Rogers, 487 F.3d at 1297 (finding the law governing removal of
children from the home without judicial authorization clearly established
based on Mabe, Wallis, and Ram v. Rubin, 118 F.3d 1306 (9th Cir. 1997)).
We must continue to rely on our own cases to determine whether the law
is clearly established until this court sitting en banc or the Supreme Court
tells us that we may not.
JONES V. WANG 25
reasonable physician could fail to understand that this
misrepresentation would cause the Joneses to consent to
hospitalize G.J., knowing that refusal could be construed as
refusing medical treatment to their child. Dr. Wang also
caused a SCAN team member to escort the Joneses to the ER
and posted a sitter in G.J.’s hospital room over the weekend.
Any reasonable physician would realize that this conduct
communicated to the Joneses that they were not free to
revoke their consent to G.J.’s hospitalization. That Dr. Wang
seized G.J. is “obvious” enough to warrant affirming the
district court’s denial of summary judgment.7 See id. at 199.
Second, our cases put a reasonable physician in Dr.
Wang’s position on notice that G.J.’s condition did not
indicate an imminent risk of serious bodily injury. In Rogers,
we held that two children’s bottle rot and malnutrition, as
well as the squalid conditions in their home, did not alone
require the conclusion that serious injury would result if the
children were not immediately removed. 487 F.3d at1295–96. In addition, we observed that social workers had
twice decided that complaints of the conditions in the
children’s home did not warrant immediate action. Id. at
1296. Here, as in Rogers, G.J. suffered injuries, but the
record contains no evidence that G.J.’s medical condition
indicated that he risked imminent, serious injury if not
immediately removed from the Joneses’ custody. Here, as in
Rogers, a social worker familiar with G.J.’s
7
The dissent appears to take issue with this reasoning. Dissent 37 n.3.
The dissent does not, however, explain how it could be anything other
than obvious to a reasonable medical professional that telling parents that
their child must be hospitalized would cause reasonable parents to believe
that they were not free to take their child home, especially after
government officials warned the parents to “keep playing ball” or risk
having their child detained.
26 JONES V. WANG
condition—Rivas—believed that seizing G.J. was not
warranted between March 5 and 8, 2010. Accordingly,
Rogers clearly established that Dr. Wang’s conduct between
those dates was not justified by exigent circumstances.8
Our recent decision in Kirkpatrick supports our
conclusion that Dr. Wang’s efforts to keep G.J. in the
hospital—as described by the Joneses—violated clearly
established law. In Kirkpatrick, in July 2008, social workers
removed a newborn infant from her methamphetamine-
addicted mother and placed the infant with a foster parent
without first seeking judicial authorization. 2015 WL
4154039, at *1–*2. We concluded that the social workers
violated the infant’s right to be free from unreasonable
8
The dissent draws a number of factual distinctions between the matter
before us and our earlier cases—Dr. Wang was not a social worker or
police officer, G.J. was not removed from a home, G.J.’s injuries were
more serious than those presented in other cases, and G.J. was too young
to be able to communicate. Dissent 37–38. What the dissent does not
explain is how these differences would deprive Dr. Wang of notice that
her conduct violated the law. First, our case law makes clear that, when
Dr. Wang took it upon herself to detain G.J. in the hospital, she acted as
a government official investigating potential child abuse, not a physician.
See Mabe, 237 F.3d at 1106 (holding that immunity turns not on “the
official’s title or agency, but on the nature of the function that the person
was performing”). Second, whether G.J. was removed from the home or
prevented from returning home makes no difference—Dr. Wang interfered
with the Joneses’ right to exercise custody over him. See Kirkpatrick,
2015 WL 4154039, at *9. Third, the extent of G.J.’s injuries and his
inability to speak do not change the ultimate question governing the
lawfulness of Dr. Wang’s conduct: whether Dr. Wang could reasonably
believe that G.J. would be seriously harmed in the time necessary to
obtain a warrant. See Rogers, 487 F.3d at 1294; Mabe, 237 F.3d at 1108.
Rogers and Mabe provided ample notice that Dr. Wang’s efforts to detain
G.J. at the hospital—as described by the Joneses—violated the
Constitution.
JONES V. WANG 27
seizure. Id. at *7–*9. We went on to conclude that the social
workers were not entitled to qualified immunity. Id. at *11.
We reasoned that the case was “not distinguishable from
Rogers” because, as in Rogers, no reasonable person in the
social workers’ position could think that the infant would
come to harm in the time it would have taken to obtain a
warrant. Id. at *9–*10 (citing Rogers, 487 F.3d at 1294).
That the infant in Kirkpatrick was removed from the hospital
rather than from the home made no difference. Id. at *9. If
the infant’s removal from her mother’s custody without
reason to believe that she faced an imminent risk of serious
harm violated clearly established law in July 2008, then so
did Dr. Wang’s alleged detention of G.J. at the hospital in
March 2010. See id. at *9–*10; see also Osolinski v. Kane,
92 F.3d 934, 936 (9th Cir. 1996) (holding that “post-incident
cases that make a determination regarding the state of the law
at the time of the incident are persuasive authority”).
Dr. Wang’s primary argument on appeal is that this case
falls in the interim period that occurs before a hospital hold
can be issued because further investigation is necessary,
rendering our precedent not clearly applicable. We agree that
this case falls within this interim period, but we reject the
contention that the constitutional standard clearly set forth in
our precedent does not apply to this period. As the district
court observed, it has been the clearly established law of this
circuit for over a decade that a state official may not seize a
child in the course of a child abuse investigation unless the
official has “‘reasonable cause to believe that the child is in
imminent danger of serious bodily injury.’” Mabe, 237 F.3d
at 1106–07 (quoting Wallis, 202 F.3d at 1138). Necessarily,
then, our case law prohibits an official from detaining a child
before the official develops a reasonable belief that a risk of
serious harm is imminent. It follows from this clearly
28 JONES V. WANG
established principle that an official may not detain a child
merely in the hope that further investigation will turn up facts
suggesting that exigent circumstances exist.
We next turn to whether this case is distinguishable from
the general rule because Dr. Wang is a physician
investigating child abuse rather than a social worker. Dr.
Wang insists that because she is a physician investigating the
cause of serious injuries sustained by an infant, the
constitutional standard that we have applied to social workers
is not clearly established with respect to her. Again, we
disagree. “It is well-settled that the immunity to which a
public official is entitled depends not on the official’s title or
agency, but on the nature of the function that the person was
performing when taking the actions that provoked the
lawsuit.” Id. at 1106. The appropriate frame for our analysis
therefore focuses on what Dr. Wang did, not her title or
person.
Dr. Wang was investigating child abuse in her capacity as
the medical director of the SCAN team. While Dr. Wang was
indeed using her medical training to determine whether G.J.’s
injuries were attributable to non-accidental causes, according
to the Joneses’ version of the facts, Dr. Wang’s primary goal
was not to treat or heal G.J. Rather, it was to investigate the
nature and extent of G.J.’s injuries and whether they were
caused by abuse. In detaining G.J. to confirm her suspicions,
Dr. Wang was operating not as G.J.’s pediatrician but as the
SCAN team medical director responsible for investigating
abuse.
This case presents complex legal and factual issues.
However, once the legal landscape is properly understood, the
simplicity of the Joneses’ claim underscores why the district
JONES V. WANG 29
court did not err when it denied Dr. Wang summary
judgment. We are cognizant of the Supreme Court’s
admonition that, “[w]hen properly applied, [the defense of
qualified immunity] protects ‘all but the plainly incompetent
or those who knowingly violate the law.’” Ashcroft v. al-
Kidd, 131 S. Ct. 2074, 2085 (2011) (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)). It is clearly established law that
a state actor may not remove a child from their parents’
custody absent a court order or exigent circumstances.
According to the Joneses, that is exactly what Dr. Wang did:
she orchestrated G.J.’s hospitalization without sufficient
evidence that G.J. was in imminent danger, implicitly coerced
the Joneses to consent to that hospitalization, and ensured
they could not remain alone with their child while Dr. Wang
made the final decision whether to request a hospital hold. If
the Joneses’ version of events were believed, a rational juror
could conclude that Dr. Wang knew she was violating the
law. Dr. Wang knew she did not have sufficient evidence to
detain G.J., yet a rational juror could find that she seized him
anyway to further her investigation. The clear guidance our
precedent provides to state officials investigating child abuse
would put any reasonable state official in Dr. Wang’s position
on notice that such conduct violated G.J.’s and the Joneses’
rights. Accordingly, because both prongs of the qualified
immunity test were satisfied, the Joneses are entitled to
attempt to prove their version of the facts to a jury and
summary judgment was not appropriate.9
9
We do not share our dissenting colleague’s fear that our decision will
interfere with social workers’ and other state officials’ efforts to protect
children from abuse. See Dissent 39. If, in the future, a state-actor
physician like Dr. Wang worries that discharging a child to his parents
will result in serious and immediate harm, that physician should do what
the Fourth and Fourteenth Amendments require—get a warrant to detain
the child. Nor will our decision prevent a physician from ordering
30 JONES V. WANG
III. State Statutory Privileges
We turn finally to Dr. Wang’s asserted state statutory
immunities to the Joneses’ state-law claims.10 We agree with
the district court that Dr. Wang is not entitled as a matter of
law to the reporter’s privilege under section 11172(a) of the
California Penal Code or discretionary immunity under
section 820.2 of the California Government Code.
Reporter’s Privilege Under California Penal Code
Section 11172(a)
Section 11172(a) of the California Penal Code provides
absolute immunity to a mandatory reporter of child abuse and
neglect, which includes physicians, against civil and criminal
liability for a mandatory report of child abuse. See Cal. Penal
Code § 11165.9, 11165.7(a)(21) (requiring reporting and
including physicians among mandatory reporters). Under
section 11172(a), the “reporter’s privilege” extends to
“conduct committed in furtherance of diagnosing whether
abuse occurred,” Arce v. Cnty. of L.A., 150 Cal. Rptr. 3d 735,
765 (Ct. App. 2012), as well as “subsequent communications
between the reporter and the public authorities responsible for
investigating or prosecuting abuse,” Robbins v. Hamburger
Home for Girls, 38 Cal. Rptr. 2d 534, 538 (Ct. App. 1995).
Here, however, Dr. Wang’s challenged conduct occurred after
medically necessary tests or procedures for a child. In doing so, that
physician need only be forthright and not misrepresent the nature of those
tests or procedures in a way that interferes with the parents’ ability to give
knowing and voluntary consent.
10
State-law immunities do not apply to federal constitutional claims
brought under 42 U.S.C. § 1983. Wallis, 202 F.3d at 1144.
JONES V. WANG 31
she reported G.J.’s case to DCFS. Viewing the facts in the
light most favorable to the Joneses, her complained-of
conduct usurped DCFS’s authority under California law to
take a child into temporary custody. See id. at 639 (explaining
that the reporter’s privilege does not extend to conduct that
usurps the role of DCFS); see also James W. v. Super. Ct.,
21 Cal. Rptr. 2d 169, 254–57 (Ct. App. 1993) (holding that
the privilege does not extend to unreasonable post-report
investigation). Therefore, we affirm the district court’s denial
of Dr. Wang’s motion for summary judgment on her
immunity under the reporter’s privilege.
Discretionary Immunity Under California Government
Code Section 820.2
Section 820.2 of the California Government Code grants
public employees immunity from liability for the employee’s
acts or omissions during the employee’s exercise of
discretion invested in her. Discretion is vested in the
employee when it is specifically assigned to the employee’s
agency by statute. Newton v. Cnty. of Napa, 266 Cal. Rptr.
682, 687 (Ct. App. 1990). Dr. Wang can point to no statute
granting her discretion to admit a child into the hospital for
the child’s safety. Therefore, the district court properly
denied Dr. Wang summary judgment on the grounds that she
is immune from the Joneses’ state law claims.
Conclusion
We do not know whether a jury will find—and we
express no opinion as to whether a jury should find—that Dr.
Wang seized G.J. or that she did so absent exigent
circumstances. Our task at this juncture is merely to
determine whether, accepting the Joneses’ version of the
32 JONES V. WANG
facts, Dr. Wang violated the Joneses’ clearly established
rights of which any reasonable child-abuse investigator
should have been aware. We conclude that, resolving all
factual disputes in the Joneses’ favor, the Joneses’ version of
the facts supports a claim that Dr. Wang seized G.J. from his
parents without exigent circumstances, which would
constitute a violation of the Joneses’ clearly established
constitutional rights. Therefore, at the summary judgment
stage, Dr. Wang is not immune from suit.
AFFIRMED.
McNAMEE, District Judge, dissenting:
I find that Dr. Wang is entitled to qualified immunity
because she did not violate either the Fourth Amendment or
clearly established law. From Harlow v. Fitzgerald, 457 U.S.
800 (1982), to Taylor v. Barkes, 135 S.Ct. 2042 (2015), the
Supreme Court’s direction has been consistent: particularized
facts and legal standards—not generalized propositions of
law—determine whether a state actor is entitled to qualified
immunity. The Court has stressed that “when properly
applied, [qualified immunity] protects all but the plainly
incompetent or those who knowingly violate the law.” al-
Kidd, 131 S. Ct. at 2085 (internal quotations ommitted).
Applying these principles to Dr. Wang’s case, I cannot join
the majority in denying qualified immunity to Dr. Wang, a
respected physician, professor, and 23-year veteran of the
UCLA Suspected Child Abuse and Neglect team whose
actions were anything but malicious or incompetent.
JONES V. WANG 33
I. Fourth Amendment Seizure
The record before us does not support a finding that Dr.
Wang violated the Joneses’ constitutional rights. I disagree
with the majority’s reasoning on a number of grounds. First,
the majority cobbles together multiple facts spanning over
three days to find that Dr. Wang seized G.J. However, as
noted in the opinion, “[a] seizure is a single act, and not a
continuous fact.” Hodari D., 499 U.S. at 625. I therefore
disagree with the majority’s analysis.
Second, the affirmative evidence does not show that the
Joneses gave involuntary consent. Even if we were to assume
that Dr. Wang seized G.J., a seizure of a child is reasonable
where the official obtains parental consent. James, 606 F.3d
at 652 n.2. “[T]he Fourth and Fourteenth Amendments
require that a consent not be coerced, by explicit or implicit
means, by implied threat or covert force.” Schneckloth,
412 U.S. at 228. The only affirmative evidence “implying”
that the Joneses did not give or maintain voluntary consent to
G.J.’s hospitalization stems from communications and actions
of third parties–nurses, police, and Rivas–to which no causal
link implicating Dr. Wang has been drawn. In fact, the record
shows that Dr. Wang unambiguously ordered that, without a
hold issued by DCSF, the Joneses were not to be prevented
from leaving with G.J. Further, the Joneses admit that Dr.
Wang did not explicitly threaten G.J.’s detention. Therefore,
as the affirmative evidence does not suggest that the Joneses
gave involuntary consent, we cannot find that Dr. Wang
violated the Joneses’ Fourth Amendment rights. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (holding that the
moving party bears no duty to negate the opponent’s claims).
34 JONES V. WANG
Third, the majority improperly uses Dr. Wang’s
subjective intent. If, as the majority suggests, the relevant
inquiry is whether the Joneses felt free to leave, then
unknown facts to the Joneses, such as Dr. Wang’s underlying
intent in recommending hospitalization, are immaterial. See
Scott v. U.S., 436 U.S. 128, 138 (1978). Moreover, as the
Fourth Amendment requires an objective analysis, it is
dispositive that the Joneses have offered no evidence, expert
testimony or otherwise, suggesting that Dr. Wang acted
objectively unreasonably in recommending accelerated
testing to address G.J.’s injuries. Id.; Celotex Corp., 477 U.S.
at 323. Accordingly, I find that Dr. Wang did not violate the
Joneses’ rights.
Turning now to exigency, deference must be given to Dr.
Wang’s findings of immediate harm. The majority argues that
no exigency existed because Dr. Wang had not “concluded
that G.J.’s rib fractures were the result of abuse.” Op. at 20.
However, our case law does not require a definitive
diagnosis. See Rogers, 487 F.3d at 1294; Mabe, 237 F.3d at
1108 (holding that exigency requires a state actor to hold at
least a “reasonable cause to believe” that a child would be
seriously harmed in the time necessary to obtain a warrant).
The record shows that Dr. Wang (along with Dr. Lauren Kim
and Yolanda Johnson (DCFS supervisor)) found that G.J.’s
newly-discovered injuries caused by his parents were “highly
specific and concerning for non-accidental trauma” and
believed that G.J. would be harmed if allowed to return home.
JONES V. WANG 35
It is undisputed that the medical literature supports this
finding.1 As it was only reasonable to assume that the
Joneses would have taken G.J. from the hospital upon his
release, Dr. Wang had “reasonable cause” to fear for G.J.’s
immediate safety.2 Accordingly, deference to Dr. Wang’s
finding of exigency is proper by mandate. See Saucier v.
Katz, 533 U.S. 194, 205 (2001) (cautioning against “the 20/20
1
The literature provides, in relevant part:
Overall, a rib fracture for children under three years of
age had a positive predictive value of 95% for the
diagnosis of non-accidental trauma. After exclusion of
children with a defined history of accident and/or
disease, the positive predictive value for non-accidental
trauma increased to 100%. Katherine Barsness M.D., et
al. The Positive Predictive Value of Rib Fractures as an
Indicator of Nonaccidental Trauma in Children,
Journal of Trauma, Vol. 54, No. 6, June 2003, at
1107–10); see also Blake Bulloch, et al., Cause and
Clinical Characteristics of Rib Fractures in Infants,
Pediatrics, Vol. 105, No. 4, April 2000, at 1–5,
(reporting that 82% of rib fractures in infants less than
one year old were caused by child abuse); and Christine
Chiaviello, et al., Stairway-Related Injuries in
Children, Pediatrics, Vol. 94, No. 5, November 1994,
at 679–81 (reporting that severe head injury is
compatible with stairway related fall, however
injuries involving multiple body regions, or severe
truncal or extremity injuries should prompt a
search for an alternate mechanism including
intentional trauma)(emphasis added).
2
Indeed, the likelihood of parents remaining in the hospital while
officials seek to obtain a warrant is “cold comfort when the life of a
newborn baby is at stake.” Kirkpatrick, 2015 WL 415039 at *15
(Kozinski, J., dissenting).
36 JONES V. WANG
vision of hindsight” in favor of deference to the judgment of
reasonable state actors on the scene).
Overall, even when viewed in the Joneses’ favor, the
record does not suggest that Dr. Wang violated the Joneses’
constitutional rights. In my opinion, G.J.’s progressing,
textbook injuries suffered while in the exclusive custody of
his parents gave Dr. Wang adequate evidence of child abuse
and imminent harm to meet even higher levels of suspicion
than that required by our case law. We should not now expose
Dr. Wang to liability simply because she recommended
further testing.
II. Clearly Established Law
Even assuming that Dr. Wang violated the Joneses’
constitutional rights, she is entitled to qualified immunity
because (A) the facts of this case differ materially from our
existing case law in 2010 and (B) the legal standards from the
other Circuits are in disagreement.
A. Wallis, Mabe, Rogers
Under the majority’s holding, Dr. Wang would be
exposed to liability because she recommended further
hospital testing and monitoring for a nonverbal infant
suffering from a complex depressed parietal skull fracture, an
occipital skull fracture, extra axial bleeding, and bilateral
posterior rib injuries. The majority does not dispute the
medical literature, of which Dr. Wang was aware, confirming
that these injuries were highly indicative of child abuse. Nor
does it contest either Dr. Wang’s or Michael Jones’s
conclusion that Jill Jones’s March 5 explanation for G.J.’s
injuries was inadequate. Nonetheless, the majority, citing
JONES V. WANG 37
Rogers, 487 F.3d at, 1295–96, and Mabe, 237 F.3d at1106–07 (quoting Wallis, 202 F.3d at 1138), finds that there
was no “imminent danger of serious bodily harm” to G.J.3
We must apply the test–or what the majority calls the
“general rule”– announced in Wallis and adopted by Mabe
and Rogers “in light of the specific context of the case, not as
a broad general proposition.” Brosseau, 543 U.S. at 198. The
contextual similarities between Dr. Wang’s investigation and
our then-existing case law are therefore of paramount
importance in determining whether Dr. Wang knew or should
have known that her actions violated the constitution. See Id.“Even a cursory glance at the facts,” City & Cnty. of San
Francisco, Calif. v. Sheehan, 135 S.Ct. 1765, 1776 (2015),
from Wallis, Mabe, and Rogers confirms just how different
those cases are from this one. This is not a case involving a
social worker or a police officer. Wallis, 202 F.3d at 1131;
Mabe, 237 F.3d at 1105; Rogers, 487 F.3d at 1291. This is not
a case where home removal is at issue. Id. This is not a case
where the injuries to the child were imagined, Wallis,
202 F.3d at 1131–32, specific to a certain time of day, Mabe,
237 F.3d at 1105, or mere signs of “child neglect”, Rogers,
3
To circumvent a portion of the qualified immunity analysis, the
majority submits, while concurrently finding that “[t]his case presents
complex legal and factual issues,” that Dr. Wang “obviously” seized G.J.
Op. at 25–26, 28–29. I oppose this argument based on my positions
expressed in the previous section. I also highlight that the sitter placed in
G.J.’s room did not materially change the Joneses’ freedom to leave, as it
is undisputed that Dr. Kim, the attending physician when the sitter was
placed, held both the obligation and authority to discharge the Joneses,
regardless of the sitter’s presence. While this fact does not necessarily
address whether the Joneses felt free to leave, it further confirms that the
record does not sufficiently implicate Dr. Wang.
38 JONES V. WANG
487 F.3d at 1291. Nor is this a case where the child was able
to communicate. Wallis, 202 F.3d at 1131–32; Mabe,
237 F.3d at 1105; Rogers, 487 F.3d at 1291. In sum, “there is
a world of difference,” Sheehan, 135 S.Ct. at 1776, between
a social worker removing young children without physical
manifestations of abuse from their homes and Dr. Wang
recommending hospital care to a nonverbal infant with
textbook head and rib injuries suggesting serious child abuse.
Given the unique situation presented in this case, a finding
that “every reasonable official [in Dr. Wang’s situation]
would have understood that what he is doing violated” a
constitutional right is simply unsupported. Taylor, 135 S.Ct.
at 2044; Anderson v. Creighton, 483 U.S. 635, 640 (1987).
B. Lack of Circuit Consensus
“[T]o the extent that a robust consensus of cases of
persuasive authority could itself clearly establish the federal
right [alleged], no such consensus exists here. If anything, the
opposite is true.” Sheehan, 135 S. Ct. at 1778 (internal
markings and citations ommitted); see Gates v. Texas Dept.
Of Protective and Regulatory Servs. 537 F.3d 404, 428–29
(5th Cir. 2008) (discussing the various standards applied by
the Circuits); Gomes v. Wood, 451 F.3d 1122, 1130 (10th Cir.
2006) (highlighting the broad disagreement concerning
exigency in child abuse investigations); Hatch v. Dep’t for
Children, Youth & Their Families, 274 F.3d 12, 21 (1st Cir.
2001) (calling Wallis the minority view). That the Circuits
cannot agree over the correct legal standard further calls into
question whether the Ninth Circuit’s child abuse investigation
law is “beyond debate.” al–Kidd, 131 S.Ct. at 2083.
JONES V. WANG 39
III. Conclusion
The lack of affirmative facts implicating Dr. Wang, the
distinct circumstances of this case, and the cornucopia of
child abuse investigation standards lead me to find that Dr.
Wang is entitled to qualified immunity. “Reasonable minds
may disagree concerning the quantum of risk faced by [G.J.],
but, under the circumstances, it was hardly malicious or
‘plainly incompetent’” of Dr. Wang to recommend additional
testing and monitoring. Kirkpatrick, 2015 WL 415039 at *16
(Kozinski, J., dissenting). I share Judge Kozinski’s concern
that “future babies will pay with their lives” due to the current
trajectory of our qualified immunity case law. Id. I also fear
that today’s decision will encourage state officials,
particularly investigating doctors, to forgo medically
reasonable tests and procedures before making life-altering
accusations. I therefore respectfully dissent from the
majority’s opinion.