David Burke v. County of Alameda

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID BURKE; MELISSA BURKE; 
CLIFTON FARINA,
Plaintiffs-Appellants,
v.
COUNTY OF ALAMEDA; MARK No. 08-15658
FOSTER, individually and as an
employee of the County of  D.C. No.
06-CV-04533-SBA
Alameda; KURT VON SAVOYE,
OPINION
individually and as an employee
of Alameda County, AKA Lou
Von Savoye; ANTHONY
BARTHOLOMEW,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted
July 16, 2009—San Francisco, California
Filed November 10, 2009
Before: Dorothy W. Nelson, William A. Fletcher and
Richard A. Paez, Circuit Judges.
Opinion by Judge D.W. Nelson
15197
BURKE v. COUNTY OF ALAMEDA 15201
COUNSEL
Robert R. Powell, Law Offices of Robert R. Powell, San Jose,
California, for plaintiffs-appellants Melissa Burke, David
Burke, and Clifton Farina.
Catherine Wheeler, Andrada & Associates, PC, Oakland, Cal-
ifornia, for defendants-appellees Mark Foster, Anthony Bar-
tholomew, and the County of Alameda.
OPINION
D.W. NELSON, Senior Circuit Judge:
This case involves the conflict between the right of families
to be free of arbitrary governmental interference and the legit-
imate role of the state in protecting children from abuse.
In 2005, B.F., the fourteen-year old daughter of Melissa
Burke and Clifton Farina, ran away from home. One week
after she returned, Mark Foster, an Alameda County police
15202 BURKE v. COUNTY OF ALAMEDA
officer, met with B.F. to discuss formally the circumstances
surrounding her runaway. During the interview, B.F. reported
that David Burke, her stepfather, had physically and sexually
abused her. Although Foster had no warrant and made no
attempt to contact Farina, B.F.’s biological father, he took
B.F. into protective custody because he believed that B.F. was
in imminent danger of serious bodily injury.
Melissa1 and Farina brought suit against Foster and the
County of Alameda under 42 U.S.C. §1983, alleging, inter
alia, that (1) Foster interfered with their constitutional right of
familial association by removing B.F. without a protective
custody warrant, and (2) the County caused their injury by
failing to train its officers on the need to procure such war-
rants.
Melissa and Farina appeal the district court’s grant of sum-
mary judgment in favor of Foster and the County.2 We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm as to
Foster, and vacate the judgment as to the County.
I. FACTUAL AND PROCEDURAL BACKGROUND
B.F. is the fourteen-year old daughter of Melissa Burke and
Clifton Farina. Melissa and Farina are divorced and David
Burke is B.F.’s stepfather. Although Melissa and Farina
shared joint legal custody of B.F., B.F. lived with the Burkes.
Farina, however, called B.F. and saw her frequently.
On June 21, 2005, B.F. ran away from home with Ricardo
Maciel, a nineteen-year old male. The Burkes immediately
reported her as a runaway to the Alameda County Sheriff’s
Office (“ACSO”). At some point during the ensuing investi-
1
For clarity, we refer to David and Melissa Burke by their first names.
2
Appellants also challenge the grant of summary judgment with respect
to several other claims. We address those claims in a separate memoran-
dum filed concurrently with this opinion.
BURKE v. COUNTY OF ALAMEDA 15203
gation, the ACSO investigating officers heard “something
about Mr. Burke having sexually molested his daughter.”3
On July 3, 2005, approximately two weeks later, B.F.
returned home of her own volition. The following week, Offi-
cer Mark Foster called the Burkes to schedule an interview
with B.F. to discuss the circumstances surrounding the run-
away. The Burkes scheduled the appointment for July 12,
2005 at the police station. B.F. was interviewed by a woman,
Omparo Azuna, and Foster viewed the interview by monitor
in another room.
During the first thirty-five minutes of the interview, Azuna
talked to B.F. about the circumstances surrounding the run-
away. B.F. stated that she left home because her stepfather
was unduly strict. When Azuna asked B.F. more specifically
about David, approximately halfway through the interview,
B.F. disclosed that when she returned home on July 3, David
immediately questioned her about Maciel. B.F. said that when
she refused to disclose any information, David struck her fif-
teen times on the face with an open hand. After Melissa
arrived, David again struck B.F. on the face and thighs.
Melissa asked David to stop, but later commented that B.F.
“deserved” the beating. The slaps left red marks.
B.F. further reported that David told her not to tell the
police about the blows because “it would cause problems.” He
also told her that if she did not disclose Maciel’s address to
the officers, he was going to “beat [her] ass.” B.F. stated that
David had once “beaten up” her stepsister when she was four-
teen and that her stepbrother had contemplated “pressing
charges” against David.
B.F. stated that since the day of her return, David had not
struck her. When asked if she felt safe, she replied in the affir-
3
The officers could not recall the specifics of the source of the allega-
tion.
15204 BURKE v. COUNTY OF ALAMEDA
mative, although she repeatedly expressed anxiety about
whether her family would know what was discussed in the
interview. B.F. stated that it would “be worse for her” when
she arrived home because her parents would view the report
as an attempt to blame them for her runaway. She believed
that her stepfather would “go off” when she returned.
B.F. went on to report that David made inappropriate com-
ments to her regarding her sexual partners and breasts and fre-
quently called her “big titty mama.” B.F. further stated that
David pinched her on the buttocks on several occasions and
repeatedly grabbed her breasts when he hugged her. The
touching began in May 2004 and occurred every couple of
days. The last time David had grabbed one of her breasts was
approximately one week before she ran away from home. B.F.
told her mother about the inappropriate conduct. Although her
mother told David to stop, the touching continued.
When asked about Farina, her biological father, B.F. stated
that he did not abuse her, but that she felt unwelcome in his
home because her stepmother did not want her there.
Forty-five minutes into the interview, Foster was informed
that David was acting “impatiently” and wanted to go to
work. Foster refused to stop the interview but told David that
he would give B.F. a ride home. Thirty minutes later, Melissa
called and asked that Foster bring B.F. home. Foster again
refused. Eventually, Melissa drove to the station to bring B.F.
—who is diabetic— a shot of insulin.
Upon Melissa’s arrival, Foster asked her to speak with him,
and she agreed. During the interview, Melissa confirmed the
beating and acknowledged that David engaged in “titty twist-
ers” with B.F. Melissa characterized the “titty twisters” as a
playful imitation of wrestling but admitted that the conduct
was inappropriate. She confirmed that she had asked them
both to stop. She blamed both B.F. and David, but stated that
BURKE v. COUNTY OF ALAMEDA 15205
B.F. “started it.” Melissa denied any other sexual contact and
accused B.F. of lying.
After interviewing Melissa, Foster did a follow-up inter-
view with B.F., who confirmed the “titty twisters,” but distin-
guished them from the breast grabbing. The “titty twisters”
had only occurred four or five times and were different in
kind— when he squeezed her breast he placed his entire hand
on her breast and held it there for several seconds. When told
that her mother denied the abuse, B.F. stated that she knew
her mother would “take David’s side.”
Following the interviews Foster immediately advised the
Burkes that he was removing B.F. from their home and plac-
ing B.F. in protective custody. He did not seek a protective
custody warrant before doing so. He also did not discuss with
Melissa alternatives to removal nor did he contact Farina or
suggest taking B.F. to Farina’s home. Farina found out about
the removal two days later.
On July 25, 2006, David, Melissa, and Farina filed suit in
the Northern District of California under 42 U.S.C. § 1983,
claiming, inter alia, that removing B.F. without a warrant
interfered with their constitutional right of familial associa-
tion. They also included a claim against the County for failure
to train its officers on the need to procure protective custody
warrants. In late 2007, the parties filed cross-motions for sum-
mary judgment. The court granted summary judgment to the
defendants and denied plaintiffs’ motion. This timely appeal
ensued.4
II. STANDARD OF REVIEW
“We review the grant or denial of summary judgment de
novo.” Leever v. Carson City, 360 F.3d 1014, 1017 (9th Cir.
4
Appellants do not appeal the denial of their cross-motion for summary
judgment.
15206 BURKE v. COUNTY OF ALAMEDA
2004). “Viewing the evidence in the light most favorable to
the nonmoving party, we must determine whether there are
any genuine issues of material fact and whether the district
court correctly applied the relevant substantive law.” Id.
III. DISCUSSION
A. 42 U.S.C. § 1983 CLAIM AGAINST MARK FOSTER
[1] “42 U.S.C. § 1983 provides a remedy to individuals
whose constitutional rights have been violated by persons act-
ing under color of state law.” Caballero v. City of Concord,
956 F.2d 204, 206 (9th Cir. 1992). Where the defense of qual-
ified immunity is at issue, as here, we apply a two-part
inquiry to § 1983 claims. Saucier v. Katz, 533 U.S. 194, 200
(2001); see also Pearson v. Callahan, 555 U.S. ___, 129
S. Ct. 808, 818 (2009) (concluding that “while the sequence
set forth . . . [in Saucier] is often appropriate, it should no lon-
ger be regarded as mandatory”). First, we ask whether the
defendants’ actions violated the Constitution. Saucier, 533
U.S. at 200. If there was a violation, we ask whether the right
violated was clearly established. Id.
[2] “Parents and children have a well-elaborated constitu-
tional right to live together without governmental interfer-
ence.” Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir.
2000). “That right is an essential liberty interest protected by
the Fourteenth Amendment’s guarantee that parents and chil-
dren will not be separated by the state without due process of
law except in an emergency.” Id. Accordingly,
[o]fficials may remove a child from the custody of
its parent without prior judicial authorization only if
the information they possess at the time of the sei-
zure is such as provides reasonable cause to believe
that the child is in imminent danger of serious bodily
injury and that the scope of the intrusion is reason-
ably necessary to avert that specific injury.
BURKE v. COUNTY OF ALAMEDA 15207
Id. at 1138; see also Cal. Welf. & Inst. Code § 305(a) (requir-
ing that a peace officer have “reasonable cause” for believing
a minor is in imminent danger of abuse to take the minor into
temporary custody without a warrant).
1. Reasonable Cause and Imminent Danger
Melissa and Farina argue that Foster did not possess infor-
mation sufficient to provide reasonable cause to believe that
B.F. was in imminent danger of serious bodily injury because:
(1) B.F. was lying, and (2) even if B.F. could be deemed cred-
ible, her statement did not furnish reasonable cause of immi-
nent harm. We reject both of these contentions.
[3] Police officers must have “specific, articulable evidence
. . . that a child is in imminent danger of abuse.” Wallis, 202
F.3d at 1138. Appellants argue that B.F.’s statement was not
“specific, articulable evidence” because she was lying. A vic-
tim’s report of abuse, however, is compelling evidence. Mabe
v. San Bernadino County, Dep’t of Pub. Soc. Servs., 237 F.3d
1101, 1108 (9th Cir. 2001); cf. Wallis, 202 F.3d at 1138-39
(finding that officers lacked reasonable cause because the
only evidence of abuse was a statement made by an institu-
tionalized, mentally ill patient with an extensive history of
severe delusional disorders). Appellants confuse the ultimate
truth of B.F.’s claim with whether it was reasonable for Foster
to believe her statements at the time she spoke with the offi-
cers. No rational jury could conclude that Foster’s reliance
upon B.F.’s statement was unreasonable.
[4] We also reject appellants’ argument regarding the
imminence of the harm. To take a child into protective cus-
tody without a warrant, the officer must have reasonable
cause to believe that harm will occur in the period of time it
would take to procure a warrant and remove the child from
the home. See Rogers v. County of San Joaquin, 487 F.3d
1288, 1294-95 (9th Cir. 2007); see also Mabe, 237 F.3d at
1108. Here, after interviewing B.F., Foster decided to take her
15208 BURKE v. COUNTY OF ALAMEDA
into protective custody because he believed that she faced
imminent harm in light of the sexual abuse and threat of phys-
ical harm.
On the question of imminence, we find Mabe, 237 F.3d at
1104-05, to be particularly instructive. In Mabe, the inappro-
priate sexual touching, somewhat similar to the conduct in
this case, occurred only at night and had not occurred in the
month prior to removal of the child. Id. In addition, there was
a four-day delay between the social worker’s interview with
the child in the home and the eventual removal. Id. During
that interview, the social worker obtained all of the informa-
tion that justified the removal four days later. For the Mabe
court, the delay, due entirely to the defendant’s actions, was
a significant indication that the degree of imminence required
to justify warrantless removal was absent. Id.
[5] In the case before us, B.F. reported that David grabbed
her breast every couple of days. There was no indication that
it was limited to a particular time of day as in Mabe. Accord-
ing to B.F., David had last touched her shortly before she ran
away with Maciel. Whether Foster reasonably believed that
David would grab B.F.’s breast, or otherwise engage in inap-
propriate and abusive sexual conduct, during the time it would
take to procure a warrant and remove B.F. was for a jury to
decide.
[6] The additional risk of beatings, however, tips the scale
and makes clear that summary judgment for Foster was
appropriate on this element. Although B.F. stated that she
thought she was safe in the home, she also expressed a great
deal of concern about whether the Burkes would know that
she had reported the abuse. She stated that it would “be worse
for her” when she arrived home, that her parents would view
her report as an attempt to shift blame, and that her stepfather
would “go off.” David had already threatened to “beat her
ass” if she did not provide Maciel’s address. Under the total-
ity of the circumstances, there was reasonable cause to believe
BURKE v. COUNTY OF ALAMEDA 15209
that B.F. was in imminent danger of physical harm, and Fos-
ter is entitled to summary judgment as to this element. Nota-
bly, unlike in Mabe, there was no delay here between the
interview with B.F. and Foster’s decision to remove her.
2. Scope of the Intrusion
[7] Even where there is reasonable cause to believe that a
child is in imminent danger, the scope and degree of state
interference must be justified by the alleged exigency. Wallis,
202 F.3d at 1140. Melissa and Farina both argue that moving
B.F. into child protective custody that evening—rather than
placing her with either of them—was not justified by the
threat posed by David. We address their claims separately.
a. Melissa Burke
Melissa contends that regardless of any threat posed by
David, B.F. should not have been removed from her custody.
Melissa relies heavily on Wallis, in which we held that tri-
able issues of fact existed regarding the reasonableness of
removal from the mother for two months when the mother
was in no way implicated in any past or future abuse. 202
F.3d at 1140. We suggested that the children could have been
taken with their mother to a shelter or placed under some
other form of protective custody with her. Id.; see also Mabe,
237 F.3d at 1110 (suggesting that removing the abusive parent
from the residence may be a reasonable step).
[8] In Mabe, however, this circuit found that where the offi-
cial reasonably believed that the mother was not protecting
the child “removal from the mother was reasonably necessary
as well.” 237 F.3d at 1110. In that case, the non-abusive par-
ent was hostile towards the investigation and refused to
believe the child. We concluded that, in such circumstances,
it was reasonable to believe that the mother was not protecting
the child. Id. This case is virtually indistinguishable. Melissa
15210 BURKE v. COUNTY OF ALAMEDA
repeatedly denied abuse and accused B.F. of lying. To the
extent that she acknowledged inappropriate conduct, she
admitted that David ignored her requests to stop. She also
repeatedly blamed B.F. When David hit B.F., she stated that
B.F. “deserved it.” Removing B.F. from Melissa, who lived
with David, was therefore reasonable. See id.
b. Clifton Farina
[9] The intrusion on Farina’s right of familial association
presents us with a question of first impression because B.F.
did not reside with Farina. In Brittain v. Hansen, this circuit
recognized that non-custodial parents have a reduced liberty
interest in the companionship, care, custody, and management
of their children. 451 F.3d 982, 992 (9th Cir. 2006). The “in-
terest is unambiguously lesser in magnitude than that of a par-
ent with full legal custody.” Id. Although Melissa and Farina
shared joint legal custody of B.F., the record indicates that
Melissa had sole physical custody. However, even if Farina’s
interest in B.F.’s companionship was somehow reduced, he
was not without any interest in the custody and management
of B.F. We therefore extend the holding in Wallis to parents
with legal custody, regardless of whether they also possess
physical custody of their children.
[10] We note, however, that the test in Wallis is flexible
and must take into account the individual circumstances. For
example, if the parent without physical custody does not
reside nearby, and a child is in imminent danger of harm, it
is probably reasonable for a police officer to place a child in
protective custody without attempting to place the child with
the geographically distant parent.
[11] We now turn to the facts of this case. Farina was never
personally accused of violence. Although appellees intimate
that B.F. was not welcome in Farina’s home, the officers
made no attempt to contact him. They did not explore the pos-
sibility of putting B.F. in his care that evening rather than
BURKE v. COUNTY OF ALAMEDA 15211
placing her in government custody. Indeed, Farina was not
informed of B.F.’s removal for two days. The reasonableness
of the scope of Foster’s intrusion upon Farina’s rights is for
the jury to decide.
3. Qualified Immunity
[12] Having determined that Farina has raised a triable
issue of fact as to whether Foster’s failure to contact him vio-
lated his constitutional right of familial association, we turn
to the question of qualified immunity.
[13] “Qualified immunity balances two important interests
- the need to hold public officials accountable when they exer-
cise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their
duties reasonably.” Pearson, 129 S. Ct. at 815. “To be clearly
established, the law must be sufficiently clear that a reason-
able official would understand that what he is doing violates
that right.” Trevino v. Gates, 99 F.3d 911, 917 (9th Cir. 1996)
(internal citation omitted).
We now expressly extend our holding in Wallis, 202 F.3d
at 1138, to parents with only legal custody. Although officers
cannot be “expected to predict the future course of constitu-
tional law,” Wilson v. Layne, 526 U.S. 603, 617 (1999) (inter-
nal quotations and marks omitted), it is not necessary that the
alleged act be “previously declared unconstitutional,”
Trevino, 99 F.3d at 917. We must therefore determine
whether the unlawfulness was “apparent in light of preexist-
ing law.” Id.
[14] Wallis referred only to the removal of a child from
“the custody of its parent.” 202 F.3d at 1138; see also Mabe,
237 F.3d at 1106. We never defined the type of custody, and
custody is commonly thought of as referring only to “physi-
cal” custody. Indeed, in Rogers, we referred to the officers’
ability to “remove a child from the home.” 487 F.3d at 1294,
15212 BURKE v. COUNTY OF ALAMEDA
1297 (emphasis added). Against this legal backdrop, we can-
not say that failing to contact Farina, who did not have physi-
cal custody of B.F., was clearly unlawful. Accordingly, Foster
is entitled to immunity, and we affirm the grant of summary
judgment in his favor.
B. 42 U.S.C. § 1983 CLAIM AGAINST THE COUNTY
OF ALAMEDA
Finally, Melissa and Farina seek to establish the County’s
liability for its alleged failure to train its police officers
regarding protective custody warrants.
[15] A municipality may be held liable under § 1983 “when
execution of a government’s policy or custom, whether made
by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy, inflicts the injury.” Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). To establish
municipal liability under § 1983, a plaintiff “must show that
(1) she was deprived of a constitutional right; (2) the County
had a policy; (3) the policy amounted to a deliberate indiffer-
ence to her constitutional right; and (4) the policy was the
moving force behind the constitutional violation.” Mabe, 237
F.3d at 1110-11 (internal quotation marks omitted).
[16] The district court granted summary judgment on this
claim because it found that there had been no constitutional
deprivation. Although we agree with the district court for the
most part, Farina has raised a triable issue of fact as to
whether Foster’s failure to contact him violated his constitu-
tional right of familial association. We affirm the grant of
summary judgment as to Foster only because he is entitled to
immunity. Because local government units are not entitled to
the qualified-immunity defense, Hervey v. Estes, 65 F.3d 784,
791 (9th Cir. 1995), we vacate the district court’s judgment as
to County’s liability and remand so that the district court can
examine the other elements of the Monell claim in the first
instance.
BURKE v. COUNTY OF ALAMEDA 15213
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the grant of sum-
mary judgment with respect to the § 1983 claim against Foster
and we VACATE the grant of summary judgment with
respect to the Monell claim against the County of Alameda.
Each side to bear their own costs on appeal.
AFFIRMED IN PART; VACATED IN PART;
REMANDED FOR FURTHER PROCEEDINGS