Hollingsworth v. Hill

F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

APR 4 1997

UNITED STATES COURT OF APPEALS

PATRICK FISHER

Clerk

TENTH CIRCUIT

PATRICIA A. HOLLINGSWORTH,

Plaintiff-Appellant,

v. No. 95-7091

ARNOLD HILL, individually and in

his official capacity as a Sheriff’s

Deputy for the McCurtain County

Sheriff’s Office, and RICHARD

McPEAK, individually and in his

official capacity as Sheriff of

McCurtain County, Oklahoma,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA.

(D. Ct. No. CIV-94-347-P)

Michael H. Thompson, Barton, Thompson & Associates, Oklahoma City,

Oklahoma, appearing for the Plaintiff-Appellant.

Jason C. Wagner (Chris J. Collins, with him on the brief), Lee, Collins & Fields,

Oklahoma City, Oklahoma, appearing for the Defendant-Appellees.

Before TACHA, BRISCOE, and MURPHY, Circuit Judges.

TACHA, Circuit Judge.

In this action under 42 U.S.C. § 1983, plaintiff Patricia Hollingsworth

alleges that defendants Arnold Hill and Richard McPeak violated her rights under

the Fourth and Fourteenth Amendments when they searched her hotel room and

seized her two children during the service of a protective order. Ms.

Hollingsworth appeals an order of the district court granting summary judgment

to Hill and McPeak. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

BACKGROUND

The following facts are not in dispute. On January 7, 1993, Patricia

Hollingsworth fought with her husband. The next day her husband, James

Hollingsworth, went to the courthouse to obtain a victim’s protective order that

limited Ms. Hollingsworth’s legal contact with her husband and children. While

her husband was gone, Ms. Hollingsworth left home with their two children and

checked into the End of Trail Motel in Broken Bow, McCurtain County,

Oklahoma.

Under the Oklahoma Protection From Domestic Abuse Act (“OPFDAA”),

Okla. Stat. tit. 22, § 60.2, a victim of domestic abuse may seek an ex parte

protective order by filing a petition with the Oklahoma district court. The

OPFDAA requires such an order to be served upon the defendant in the same

manner as a summons. On January 8, 1993, the McCurtain County Special

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District Court issued an emergency protective order against Ms. Hollingsworth

pursuant to Okla. Stat. tit. 22, § 60.3 entitled Ex Parte Emergency Order

(“Order”). At noon on that day, defendant Arnold Hill, a McCurtain County

sheriff’s deputy, received a copy of the Order he was to serve on Patricia

Hollingsworth. Deputy Hill, a sixteen-year law enforcement veteran, was

frequently required to serve protective orders and summonses but was uncertain

what this Order required him to do. When faced with a confusing legal question,

the Sheriff and his deputies customarily sought legal advice from the District

Attorney pursuant to Okla. Stat. tit. 19, § 215.5. Although the Sheriff did not

require his deputies to follow the District Attorney’s advice, members of the

Sheriff’s Department usually followed it.

The Order named James Hollingsworth and his two children, eight-month-

old Hailey and two-year-old Taylor, as plaintiffs. It ordered Patricia

Hollingsworth to (1) “not abuse or injure Plaintiff,” (2) “not visit, assault, molest,

harass or otherwise interfere with the Plaintiff,” (3) “not come to the residence of

the Plaintiff,” and (4) “leave the residence of Plaintiff within 3 hours/days [sic]

from service of th[e] Order until the hearing date.” The fifth item in the Order

stated: “This Order is not to prevent reasonable visitation between the parents

with regard to the children.”

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The inherent inconsistency in the Order confused Deputy Hill. It named the

children plaintiffs and ordered Patricia Hollingsworth not to “visit . . . or

otherwise interfere with the Plaintiff.” On the other hand, the Order stated that it

was not intended to prevent reasonable visitation between the Hollingsworths and

their children. It also sought to prevent abuse of and injury to plaintiffs. Based

upon these observations, Deputy Hill believed that the Order probably required

removal of the children from Ms. Hollingsworth’s custody. Because of his

confusion and according to Sheriff’s Department custom, Hill sought legal advice

from McCurtain County Assistant District Attorney Willard Driesel, Jr. Like Hill,

Driesel believed that the Order required the children to be taken from Ms.

Hollingsworth and turned over to their father.

After failing to find Ms. Hollingsworth, Deputy Hill delivered a copy of the

Order to the Broken Bow Police Department. Hill asked the Broken Bow police

to contact him if they located Ms. Hollingsworth. The Broken Bow police

eventually notified Hill that they had located Ms. Hollingsworth at the End of

Trail Motel. Broken Bow officers Mike Erwin and Lindell Mann proceeded to the

motel. They knocked at the door of Ms. Hollingsworth’s motel room, she

answered the door, and they entered her room.

When Deputy Hill arrived at the motel, the motel room door was open. He

found Officer Erwin in Ms. Hollingsworth’s room and Officer Mann “standing

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there at the door.” When Hill walked up to the door, Officer Erwin said to

Deputy Hill, “[T]his is Patricia,” and Hill walked in. He then served the Order on

Ms. Hollingsworth. Deputy Hill conferred with Officer Erwin about removing the

children from Ms. Hollingsworth’s custody, telling him about the advice of the

Assistant District Attorney. Deputy Hill and Officer Erwin then removed the

children and transported them separately to the Broken Bow Police Department,

where they immediately turned the children over to the custody of their father.

January 8, 1993, the day that Deputy Hill served the Order, was Sheriff

Richard McPeak’s third day in office. McPeak had no involvement in the service

of the Order and only became aware of the incident when he received notice of

this suit. The McCurtain County Sheriff is responsible for establishing the

policies and procedures of the Sheriff’s Department. Sheriff McPeak testified

that by statute and by custom, the McCurtain County District Attorney’s Office

serves as a legal advisor to the Sheriff’s Department. That is, Sheriff McPeak

instructed his deputies to seek advice from the District Attorney or his assistants

when a legal issue arises.

On June 10, 1994, Ms. Hollingsworth brought this action seeking damages

for the constitutional injury allegedly caused by defendants Hill and McPeak. The

district court concluded that Deputy Hill was entitled to both absolute quasi-

judicial immunity and qualified immunity from suit. The court also concluded

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that Sheriff McPeak was not liable in his official capacity as the representative of

McCurtain County. Finally, the court concluded that Sheriff McPeak was entitled

to qualified immunity from suit in his individual capacity. Accordingly, the

district court granted summary judgment to Hill and McPeak by Order filed May

4, 1995. This appeal followed.

DISCUSSION

Ms. Hollingsworth contends that the district court erred in two respects.

First, she contends that Deputy Hill is not entitled to qualified immunity from

liability under 42 U.S.C. § 1983. Second, she asserts that Sheriff McPeak is

liable in his official capacity for the constitutional injury caused by the acts of

Deputy Hill. 1

We review the district court's entry of summary judgment de novo, applying

the same standard used by the district court under Fed. R. Civ. P. 56(c). V-1 Oil

Co. v. Means, 94 F.3d 1420, 1422 (10th Cir. 1996). Summary judgment is

appropriate only "if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

1

Hollingsworth does not appeal the district court’s decision that Sheriff McPeak is

entitled to qualified immunity.

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judgment as a matter of law." Fed. R. Civ. P. 56(c). “We view the evidence and

draw any inferences therefrom in the light most favorable to the party opposing

summary judgment.” Coosewoon v. Meridian Oil Co., 25 F.3d 920, 929 (10th

Cir. 1994). “‘Where the record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party,’ summary judgment in favor of the moving

party is proper.” Thomas v. International Business Machines, 48 F.3d 478, 484

(10th Cir. 1994) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986)).

A. Qualified Immunity

“We analyze assertions of qualified immunity under a two-part framework:

first we determine whether the plaintiff has asserted a violation of a constitutional

or statutory right, and then we decide whether that right was clearly established

such that a reasonable person in the defendant’s position would have known that

[his] conduct violated that right.” Garramone v. Romo, 94 F.3d 1446, 1449 (10th

Cir. 1996) (citation omitted). “Plaintiff has the ‘burden to show with particularity

facts and law establishing the inference that defendant violated a constitutional

right.’” Abeyta v. Chama Valley Indep. Sch. Dist., No. 19, 77 F.3d 1253, 1255

(10th Cir. 1996) (quoting Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir. 1994)).

She must then demonstrate that “the constitutional . . . rights the defendant

allegedly violated were clearly established at the time of the conduct at issue.”

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Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995). Once a plaintiff

satisfies this burden, the burden shifts to the defendant to demonstrate that “‘no

material issues of fact remain as to whether the defendant’s actions were

objectively reasonable in light of the law and information the defendant possessed

at the time of his actions.’” Guffey v. Wyatt, 18 F.3d 869, 871 (10th Cir. 1994)

(quoting Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th Cir. 1991)).

The district court concluded that Deputy Hill was entitled to qualified

immunity from suit because it was objectively reasonable for him to believe that

his actions did not violate Ms. Hollingsworth’s rights under the Fourth and

Fourteenth Amendments. Deputy Hill agrees with the district court’s conclusion,

but also contends, as an alternate ground for affirmance, that the rights upon

which Ms. Hollingsworth relies are not clearly established. Ms. Hollingsworth

argues that Deputy Hill is not entitled to qualified immunity because a reasonable

person in Hill’s position would have known that entry into Ms. Hollingsworth’s

motel room and removal of her two children without a meaningful opportunity to

be heard violated her clearly established rights.

1. Violation of a Clearly Established Right

In claiming a violation of her constitutional rights, it is unclear whether

Hollingsworth relies upon her Fourth Amendment right to be free from

unreasonable searches and seizures or her Fourteenth Amendment liberty interest

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in the care, custody, and management of her children, or both. Nevertheless we

conclude that Deputy Hill did not violate Ms. Hollingsworth’s rights under the

Fourth Amendment.

Hill entered Hollingsworth’s motel room through its open door after Officer

Erwin introduced Hollingsworth to Hill through the door. Under those

circumstances, Ms. Hollingsworth had no constitutionally protected reasonable

expectation of privacy that should have prevented Deputy Hill from entering the

room and serving the Order. See United States v. Gault, 92 F.3d 990, 991 (10th

Cir.), cert. denied, 117 S. Ct. 321 (1996); United States v. Owens, 782 F.2d 146,

149-50 (10th Cir. 1986). Ms. Hollingsworth has failed to sustain her burden to

demonstrate that she possessed a subjective expectation of privacy that society is

prepared to recognize as reasonable at the time Hill entered her motel room.

Owens, 782 F.2d at 150 (citing Katz v. United States, 389 U.S. 347, 361 (1967)

(Harlan, J., concurring)). Therefore, Ms. Hollingsworth has failed to demonstrate

that Deputy Hill conducted an unreasonable search of her motel room in violation

of the Fourth Amendment.

Likewise, Deputy Hill’s removal of Ms. Hollingsworth’s children did not

violate her right to be free from unreasonable seizures. “Fourth Amendment

rights are personal rights which . . . may not be vicariously asserted.” Rakas v.

Illinois, 439 U.S. 128, 133-34 (1978) (quotation and citation omitted).

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Undoubtedly, parents may assert their children’s Fourth Amendment rights on

behalf of their children. See Van Emrik v. Chemung County Dep’t of Soc. Servs.,

911 F.2d 863, 867 (2d Cir. 1990). Ms. Hollingsworth does not assert her

children’s Fourth Amendment rights on their behalf because her complaint does

not include the children as plaintiffs. Therefore, Ms. Hollingsworth has failed to

demonstrate that Deputy Hill’s removal of the children was an unreasonable

seizure in violation of the Fourth Amendment.

On the other hand, Deputy Hill’s actions did implicate Hollingsworth’s

rights under the Due Process Clause of the Fourteenth Amendment. Parents have

a fundamental liberty interest in the “care, custody, and management” of their

children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); see also Stanley v.

Illinois, 405 U.S. 645, 651-58 (1972). The state may not deprive a person of her

liberty interest without providing a fair procedure for the deprivation. Doyle v.

Oklahoma Bar Assoc., 998 F.2d 1559, 1569 (10th Cir. 1993). Contrary to

Hollingsworth’s reading of Albright v. Oliver, 510 U.S. 266 (1994), the

Fourteenth Amendment rather than the Fourth Amendment protects her liberty

interest in the custody of her children. Ms. Hollingsworth’s interest in the

custody of her children was, therefore, a constitutionally protected liberty interest

which could not be deprived without due process.

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Removal of children from the custody of their parents requires

predeprivation notice and a hearing “‘except for extraordinary situations where

some valid governmental interest is at stake that justifies postponing the hearing

until after the event.’” Spielman v. Hildebrand, 873 F.2d 1377, 1385 (10th Cir.

1989) (quoting Smith v. Organization of Foster Families for Equality and Reform,

431 U.S. 817, 848 (1977)); see also Martinez v. Mafchir, 35 F.3d 1486, 1491

(10th Cir. 1994); United States v. Watts, 513 F.2d 5, 6 (10th Cir. 1975) (citing In

re Gault, 387 U.S. 1, 33-34 (1967)). Accordingly, the state’s interest in the health

and welfare of its children constrains a parent’s liberty interest in the custody,

care, and management of her children. Thus, in emergency circumstances which

pose an immediate threat to the safety of a child, officials may temporarily

deprive a parent of custody without parental consent or a court order. See

Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987) (listing cases); cf. Snell v.

Turnell, 920 F.2d 673, 697 (10th Cir. 1990) (discussing appropriateness of

qualified immunity in a potential abuse situation where there is evidence of

emergency circumstances justifying immediate removal of children and listing

cases).

Consistent with the requirements of procedural due process, two related

Oklahoma statutory schemes balance the State’s interest in the safety of its

children against parents’ interest in the care, custody, and management of their

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children. Okla. Stat. tit. 10, §§ 1101-1149; Okla. Stat. tit. 22, §§ 60 - 60.7.

Under each statutory scheme, Oklahoma protects these interests through

procedures designed to ensure both that parents whose children are removed

receive notice and an “opportunity to be heard ‘at a meaningful time and in a

meaningful manner,’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)), and that children are removed

from parental custody in time to avoid threats to their health and safety. Under

appropriate circumstances, either scheme could justify the separation of a parent

from her children. The circumstances presented to Deputy Hill, however, did not

justify separation of Ms. Hollingsworth from her children under either statute.

First, under Oklahoma law governing delinquent, dependent, and neglected

children, an officer authorized to investigate suspected child abuse may file a

petition in state district court seeking relief from allegedly abusive conditions on

behalf of the “deprived” child. Okla. Stat. tit. 10, §§ 1101, 1103 (1993). Once a

petition has been filed, the judge may issue an order authorizing removal of the

child from parental custody if “it appears that the child is in such condition or

surroundings that his welfare requires that his custody be immediately assumed by

the court.” Okla. Stat. tit. 10, § 1104(d). In addition, before a petition is filed, a

peace officer without a court order may remove a child if “the child’s

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surroundings are such as to endanger the welfare of the child.” Okla. Stat. tit. 10,

§ 1107(A)(1) (1993).

We conclude that the Oklahoma child abuse law does not justify the

removal of Ms. Hollingsworth’s children without prior notice and a hearing. The

Order that Deputy Hill was to serve on Ms. Hollingsworth did not direct Hill to

remove her children. Further, the record contains no evidence that Ms.

Hollingsworth actually endangered the welfare of her children prior to their

removal.

Second, under the Oklahoma Protection from Domestic Abuse Act, a victim

of domestic abuse may seek an ex parte protective order that orders a family

member not to abuse, injure, visit, assault, molest, or otherwise interfere with the

victim. Okla. Stat. tit. 22, §§ 60.2(B), 60.3 (1993). The sheriff must serve the

order on the defendant in the same manner as a summons. Okla. Stat. tit. 22,

§ 60.4(A) (1993). The sheriff must give priority to service of emergency ex parte

orders, and the district court must hold a hearing on the petition for a permanent

protective order within ten days. Okla. Stat. tit. 22, § 60.4(B) (1993). Although

protective orders issued under the Act cannot “purport to . . . determine the issues

between the parties as to child custody [or] visitation,” Okla. Stat. tit. 22,

§ 60.4(H) (1993), an emergency ex parte protective order can effectively prevent

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visitation between a parent and a child pending a hearing on the petition. See

Marquette v. Marquette, 686 P.2d 990, 996 (Okla. Ct. App. 1984).

We conclude that the removal of Ms. Hollingsworth’s children without

notice or a hearing was not justified under the Protection from Domestic Abuse

Act. Deputy Hill apparently concluded that the Order required him to remove the

children because Ms. Hollingsworth would be in violation of the Order

immediately upon service. Deputy Hill, however should have allowed Ms.

Hollingsworth some opportunity to comply with the Order. 2 That Deputy Hill

removed Ms. Hollingsworth’s children from her lawful custody without either

notice or a meaningful opportunity to be heard is undisputed. Although the Order

was intended to protect the children from abuse, injury, molestation, and

harassment by their mother, the record contains no evidence that Ms.

Hollingsworth posed an immediate threat to their safety. Accordingly, the

circumstances did not justify removal of the children from Ms. Hollingsworth’s

custody under emergency circumstances. Ms. Hollingsworth has met her burden

of demonstrating that Deputy Hill deprived her of any meaningful opportunity to

be heard thereby violating her constitutional right to procedural due process.

2

Oklahoma made this requirement explicit in a 1994 amendment which provides

that a person in violation of a protective order may be arrested only if the person “has had

a reasonable time to comply with such order.” Okla. Stat. tit. 22, 60.9(A)(3) (1994).

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To defeat a qualified immunity defense, a plaintiff also bears the burden of

demonstrating that the right violated by the defendant was clearly established at

the time he acted. Ms. Hollingsworth’s right to notice and an opportunity to be

heard prior to the deprivation of her liberty interest in the care, custody, and

management of her children was clearly established in January 1993, despite

Deputy Hill’s argument to the contrary. See Stanley v. Illinois, 405 U.S. at 651-

58; Santosky, 455 U.S. at 753-54, 758-59; Martinez v. Mafchir, 35 F.3d 1486,

1491 (10th Cir. 1994); Spielman v. Hildebrand, 873 F.2d 1377, 1385 (10th Cir.

1989); United States v. Watts, 513 F.2d 5, 6 (10th Cir. 1975) (citing In re Gault,

387 U.S. 1, 33-34 (1967)). Therefore, we must next consider whether Deputy Hill

has sustained his burden of demonstrating that it was objectively reasonable for

him to believe that his actions did not violate Ms. Hollingsworth’s right to due

process.

2. Objective Reasonableness and Extraordinary Circumstances

Once the plaintiff has established the inference that the defendant’s conduct

violated a clearly established constitutional right, a qualified immunity defense

ordinarily fails. Cannon v. City and County of Denver, 998 F.2d 867, 870-71

(10th Cir. 1993). A defendant may nevertheless be entitled to immunity from suit

if he can demonstrate that “extraordinary circumstances” intervened and “so

‘prevented [him] from knowing that his actions were unconstitutional that he

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should not be imputed with knowledge of an admittedly clearly established

right.’” Cannon, 998 F.2d at 871 (quoting V-1 Oil Co. v. Wyoming Dep’t of

Envtl. Quality, 902 F.2d 1482, 1488 (10th Cir.), cert. denied, 498 U.S. 920

(1990)); see Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982).

The extraordinary circumstances exception is most frequently applicable in

cases that involve reliance upon counsel. V-1 Oil Co., 902 F.2d at 1488.

Although reliance upon counsel is not itself an extraordinary circumstance, it is a

vital ingredient in cases where we have found extraordinary circumstances to

exist. See id. (listing cases). We have identified four factors that, when applied

on a case-by-case basis, help us discern when such extraordinary circumstances

exist in the context of reliance on counsel. We consider “[1] how unequivocal

and specifically tailored to the particular facts giving rise to the controversy, the

advice was, [2] whether complete information had been provided to the advising

attorney(s), [3] the prominence and competence of the attorney(s), and [4] how

soon after the advice was received the disputed action was taken.” V-1 Oil Co.,

902 F.2d at 1489 (citations omitted).

The factors relevant to extraordinary circumstances uniformly favor Deputy

Hill’s claim of qualified immunity. First, Assistant District Attorney Driesel’s

advice was specifically tailored to the facts giving rise to this controversy because

his advice concerned only the proper response to the Order. Second, when he

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formulated his advice, Driesel possessed all of the information at Deputy Hill’s

disposal, namely the Order. Third, as an Assistant District Attorney, Driesel had

the prominence of a county officer who was charged by statute to advise the

Sheriff’s Department. Other than the advice in question, the record contains no

evidence implying that Driesel was incompetent. Fourth, Deputy Hill served the

Order and transferred Ms. Hollingsworth’s children to their father immediately

after he received the advice.

After our application of these factors, we conclude that it was objectively

reasonable for an officer in Deputy Hill’s position to believe that his actions did

not violate Ms. Hollingsworth’s constitutional right. The test for qualified

immunity requires that we look to a reasonable law enforcement officer in Deputy

Hill’s position to determine whether his actions were objectively reasonable.

Thus, we are bound to evaluate the reasonableness of Deputy Hill’s actions from

his perspective at the time. In light of the circumstances facing an officer in

Hill’s position, we conclude that Hill’s actions were objectively reasonable.

At the time of the events in question, Deputy Hill was a sixteen-year law

enforcement veteran. He had received training in child abuse investigation

including instruction concerning hearings “after the [abused] child is removed

from the home.” He had also been trained in the service and execution of victim

protective orders. When asked what he was taught about such orders he replied,

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“You know, you follow the instructions of the judge . . . on what the protective

order explains to do.”

Deputy Hill had never before served a victim’s protective order which

listed the defendant’s children as plaintiffs. Hill read the Order, and its facial

ambiguity struck him immediately. The Order, which was clearly designated “ex

parte” (informing Hill that no adversarial hearing had occurred), was entitled a

protective order. Although we know now that there was no evidence of abuse or

neglect, the Order’s use of the word “protective” to describe its function no doubt

connoted its common sense meaning—a judge had signed a valid court order that

the children, named plaintiffs on the document, were in need of some kind of

protection. Deputy Hill’s knowledge of the case was limited to the information

contained in the Order. He knew from the face of the Order that both parents had

some rights in the children’s care, custody, and maintenance, but apparently that

their father was entitled to more than mere visitation. Mr. Hollingsworth was

arguably entitled to residential custody, with only reasonable visitation rights

residing with Ms. Hollingsworth. Deputy Hill thought that he was to deliver the

children immediately back to their father, who clearly also had rights under the

Order. Based upon these observations Hill believed that the “judge knew what he

was doing when he signed [the Order],” and that the children were probably to be

transferred from Ms. Hollingsworth to Mr. Hollingsworth.

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Before acting, Deputy Hill sought legal advice from Assistant District

Attorney Driesel. Hill was entitled to seek such advice under Okla. Stat. tit. 22,

§ 215.5 and was expected to do so under Sheriff’s Department custom. Hill

delivered the Order to Driesel for his review. Driesel agreed with Deputy Hill’s

instinct; he concluded that the Order required Hill to remove the children from

Ms. Hollingsworth’s custody when he served the Order. 3 After speaking with

Driesel, Deputy Hill served the order upon Ms. Hollingsworth and transferred the

children directly to their father’s custody.

Hill did not take the children for any purpose other than to comply with the

terms of the Order. The Oklahoma domestic and child abuse statutes are premised

upon the assumption that the state itself is taking temporary custody of the

children. Deputy Hill knew that the state itself was not taking such custody.

Upon advice of counsel, Deputy Hill believed he was required to transfer custody

between two private parties pursuant to a court order. He was acting under the

advice of counsel. His clear intent, evidenced by his immediate transfer of the

children to their father, was to give effect to the Order.

3

Driesel’s advice is analogous to the advice given in V-1 Oil where a Wyoming

Assistant Attorney General advised the defendant official that a Wyoming statute

permitted the official to conduct a warrantless search. V-1 Oil, 902 F.2d at 1484. In fact,

Driesel’s advice went further. More than merely advising Hill of permissible action

under a statute, Driesel advised Hill that the protective order required Hill to remove

Hollingsworth’s children.

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The benefit of our constitutional hindsight clearly reveals that Ms.

Hollingsworth was entitled to notice and an opportunity to be heard before she

was deprived of custody of her children. Yet, we recognize that Deputy Hill was

positioned between two private parties in the midst of a domestic dispute with a

valid court order called a “protective” order. In that position at the time, Deputy

Hill simply did not have the benefit of the constitutional hindsight that we rely on

today. The circumstances prevented Hill from knowing that his actions were

unconstitutional. Even if the right to procedural due process was clearly

established, Deputy Hill’s actions were reasonable in light of the circumstances

he faced at the time he acted. Therefore, we hold that he is entitled to qualified

immunity.

Because we find that Deputy Hill is entitled to qualified immunity, we need

not consider whether he is entitled to absolute quasi-judicial immunity. We

affirm the district court’s decision granting Deputy Hill summary judgment.

B. Local Government Liability

We next evaluate the district court’s conclusion that McCurtain County,

through its representative Sheriff McPeak, was not liable for any constitutional

injury to Ms. Hollingsworth under Monell v. Department of Soc. Servs., 436 U.S.

658 (1978). Under 42 U.S.C. § 1983, a local government may be held liable for

the constitutional violation of its employees only when employee “action pursuant

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to official municipal policy . . . caused a constitutional tort.” Monell, 436 U.S. at

691. Therefore, “to establish municipal liability a plaintiff must show (1) the

existence of a municipal custom or policy and (2) a direct causal link between the

custom or policy and the violation alleged.” Jenkins v. Wood, 81 F.3d 988, 993-

94 (10th Cir. 1996) (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989) and

Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)). In this case,

municipal liability refers to the potential local government liability of McCurtain

County through its representative Sheriff McPeak.

Ms. Hollingsworth asserts three separate bases for her argument that

McCurtain County is liable. First, she asserts that the decision to remove her

children from her custody was an official policy of McCurtain County that

resulted in the deprivation of her due process rights. Second, she contends that

Sheriff McPeak’s custom of seeking legal advice from the McCurtain County

District Attorney caused the violation of her rights. Third, she maintains that

Sheriff McPeak’s failure to adopt a policy applicable to the circumstances

demonstrated deliberate indifference to her constitutional rights. We address each

contention in turn.

1. The Decision to Remove Ms. Hollingsworth’s Children

Ms. Hollingsworth argues that the decision to remove her children was the

official policy of McCurtain County. Where a “plaintiff seeks to impose

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municipal liability on the basis of a single incident, the plaintiff must show that

the particular illegal course of action was taken pursuant to a decision made by a

person with authority to make policy decisions on behalf of the entity being

sued.” Jenkins, 81 F.3d at 994 (citing Pembaur v. City of Cincinnati, 475 U.S.

469, 483-85 (1986)). Ms. Hollingsworth does not argue that Deputy Hill was

authorized to make Sheriff’s Department policy. Neither does she maintain that

Sheriff McPeak directed the removal of her children or ratified Deputy Hill’s

decision to remove them. Rather, Hollingsworth identifies Assistant District

Attorney Driesel as the final policymaker relevant to the decision to remove her

children in violation of her due process rights.

Whether an individual possesses final policymaking authority “is a legal

issue to be determined by the court based on state and local law.” Randle v. City

of Aurora, 69 F.3d 441, 447 (10th Cir. 1995). Under Pembaur and its progeny,

Driesel could become the County’s final policymaker with respect to the events at

issue in two ways. First, Driesel could possess explicit final policymaking

authority pursuant to Oklahoma statutory or local government law. See Randle,

69 F.3d at 447 (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988));

Jantz v. Muci, 976 F.2d 623, 630 (10th Cir. 1992). Second, Sheriff McPeak could

delegate final policymaking authority to Driesel. See Randle, 69 F.3d at 448;

Ware v. Unified Sch. Dist., 902 F.2d 815, 818 (10th Cir. 1990).

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Assistant District Attorneys in Oklahoma possess explicit statutory

authority to render legal advice to county officers such as sheriffs:

The District Attorney or his assistants shall give opinion and advice

to . . . civil officers of his counties when requested by such officers

. . . upon all matters in which any of the counties of his district are

interested, or relating to the duties of such . . . officers in which the

state or counties may have an interest.

Okla. Stat. tit. 19, § 215.5. This language is similar to the relevant Ohio statutory

language discussed in Pembaur. 4 Ms. Hollingsworth’s reliance upon this

similarity, however, is misplaced. In Oklahoma, the Assistant District Attorney is

not a county officer like the Ohio County Prosecutor in Pembaur. The statutory

authority of the Assistant District Attorney does not encompass the right to

“instruct[]” sheriff’s deputies how to accomplish their task, but only to render

advice and opinion. Pembaur, 475 U.S. at 485. Assistant District Attorney

Driesel is an officer of the State, Laidley v. McClain, 914 F.2d 1386, 1389 (10th

Cir. 1990), and is not vested with authority over the conduct of McCurtain County

sheriff’s deputies or the service and execution of protective orders issued by

Oklahoma courts. Rather, Sheriff McPeak is vested with the final policymaking

authority over the Sheriff’s Department, including the conduct of deputy sheriffs

and the service and execution of orders issued by Oklahoma courts. Okla. Stat.

4

“Ohio Rev. Code Ann. § 309.09(a) (1979) provides that county officers may

‘require instructions from [the County Prosecutor] in matters connected with their official

duties.’” Pembaur, 475 U.S. at 484-85 (omission in original).

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tit. 19, §§ 514, 516, 547(A). Thus, we must determine whether Sheriff McPeak,

as part of his standing policy to request legal opinion and advice from the District

Attorney, delegated his authority over the service and execution of court orders to

Driesel.

Ms. Hollingsworth bases her contention that Sheriff McPeak delegated his

final policymaking authority to Driesel on the similar, but distinguishable,

reliance of the Pembaur defendants on the Ohio County Prosecutor for legal

direction. Whether a policymaker has delegated his authority depends upon “(1)

whether the official is meaningfully constrained ‘by policies not of that official’s

own making’[, and] (2) whether the official’s decision[s] are final—i.e., are they

subject to any meaningful review.” Randle, 69 F.3d at 448 (citing Praprotnik, 485

U.S. at 127 and Ware, 902 F.2d at 818 (“Delegation does not occur when a

subordinate’s decisions are constrained by policies not of his making or when

those decisions are subject to review by the authorized policymaker.”)).

In Pembaur, the Sheriff’s Office had a policy of referring legal questions to

the County Prosecutor and strictly following his advice. There, the deputies’

supervisor “told them to call Assistant Prosecutor Whalen and to follow his

instructions.” Pembaur, 475 U.S. at 473 (emphasis added). The Sheriff directed

his deputies to seek and follow the instructions of the County Prosecutor,

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transforming the County Prosecutor’s advice into a “clear command” that

constituted county policy. Id. at 485.

In the case at bar, undisputed facts establish that Sheriff McPeak and his

deputies usually followed the advice of the District Attorney. This necessarily

implies that the Sheriff’s Department sometimes did not follow the advice of the

District Attorney. No evidence, however, supports the inference that the Sheriff

required his deputies to follow that advice. Sheriff McPeak and his deputies

retained the authority and discretion to reject the advice of the District

Attorney—that is, they retained the authority to conduct a meaningful review of

the District Attorney’s opinion. The record contains no evidence that would allow

a reasonable jury to infer that Sheriff McPeak delegated to Driesel the decision of

whether or not to remove Ms. Hollingsworth’s children from her custody.

Thus, neither Driesel nor Sheriff McPeak was responsible for the “policy”

decision to remove Ms. Hollingsworth’s children without notice and a hearing.

Further, although Deputy Hill was responsible for the decision, he is not a final

policymaker for the purposes of local government liability. The authority to make

policy and the decision to act did not reside with Driesel, McPeak, or Hill at any

one time. Therefore, Ms. Hollingsworth may not base her claim of local

government liability upon the decision to remove her children as an official policy

of McCurtain County.

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2. McPeak’s Custom of Seeking Advice

Next, Ms. Hollingsworth contends that the County is liable because Sheriff

McPeak’s custom of seeking legal advice and opinion from the District Attorney

caused the violation of her constitutional right to due process. Plaintiff must

show that there is a direct causal link between the official policy and the injury

alleged. Jenkins, 81 F.3d at 993-94 (citing Harris, 489 U.S. at 385). “[T]he

official policy must be the moving force for the constitutional violation in order

to establish” local government liability. Haines v. Fisher, 82 F.3d 1503, 1507

(10th Cir. 1996) (citing Monell, 436 U.S. at 694). Therefore, “[i]t is only when

the execution of the government’s policy or custom . . . inflicts the injury that the

municipality may be held liable under § 1983.” Harris, 489 U.S. at 385 (quoting

Springfield v. Kibbe, 480 U.S. 257, 267 (1987) (O’Connor, J., dissenting))

(internal quotations omitted) (omission in original).

In this case, the record contains no evidence to indicate a direct causal link

between the Sheriff’s Department custom of seeking legal advice from the

District Attorney and the unconstitutional removal of Ms. Hollingsworth’s

children. The execution of the custom itself did not inflict Hollingsworth’s

injury. Deputy Hill’s decision to seek Driesel’s opinion caused injury to no one.

Rather, Hill’s independent decision to remove Ms. Hollingsworth’s children

inflicted her injury. “[M]unicipal liability is limited to ‘acts that are, properly

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speaking, acts “of the municipality”—that is, acts which the municipality has

officially sanctioned or ordered.’” Starrett v. Wadley, 876 F.2d 808, 818 (10th

Cir. 1989) (quoting Pembaur, 475 U.S. at 480)). McCurtain County did not

officially sanction the decision to remove Ms. Hollingsworth’s children through

the Sheriff’s Department custom of seeking legal advice from the District

Attorney. Therefore, Hollingsworth may not base her claim of local government

liability upon that custom.

3. Sheriff McPeak’s Alleged Deliberate Indifference

Finally, Ms. Hollingsworth argues that Sheriff McPeak’s failure to adopt a

policy applicable to the circumstances presented in this case demonstrated

deliberate indifference to Ms. Hollingsworth’s constitutional rights. Where the

official policy that forms the basis of a local government liability claim consists

of a failure to act, the plaintiff “must demonstrate that the municipality’s inaction

was the result of deliberate indifference to the rights of its inhabitants.” Hinton

v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993) (internal quotations and

citations omitted). A local government acts with deliberate indifference when the

need to act “is so obvious, and the inadequacy [of existing policy or custom] so

likely to result in the violation of constitutional rights, that the policymakers . . .

can reasonably be said to have been deliberately indifferent to the need.” Harris,

489 U.S. at 390. Thus, a local government policymaker is deliberately indifferent

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when he “deliberately” or “consciously” fails to act when presented with an

obvious risk of constitutional harm which will almost inevitably result in

constitutional injury of the type experienced by the plaintiff. Id. at 389-90.

Ms. Hollingsworth argues that the McCurtain County Sheriff’s Department

failed to craft policies concerning the service of protective orders or the removal

of juveniles from the custody and care of their parents. She contends that Sheriff

McPeak admitted that the Department had no such policies. On the contrary,

Sheriff McPeak testified merely that the Sheriff’s Department manual of policies

and procedures did not contain such policies. This fact alone, however, does not

mean that the Sheriff’s Department failed to craft any policy.

Sheriff McPeak testified that the Sheriff’s Department had multiple policies

applicable in circumstances similar to those faced by Deputy Hill. He testified

that, in instances of child abuse or neglect, members of his department followed

the process set out in Oklahoma law concerning dependent and neglected

children. See Okla. Stat. tit. 10, §§ 1101-1149. In addition, Sheriff McPeak

testified that he had ordered his deputies to make certain that they notified proper

authorities in circumstances involving “any court process that has a statutory

hearing attached to it.” Finally, Department policy required sheriff’s deputies to

seek legal advice from the District Attorney when the Department received a

facially defective or otherwise questionable order or warrant.

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Although these policies failed to prevent constitutional injury to Ms.

Hollingsworth, no reasonable jury could conclude that the McCurtain County

Sheriff was deliberately indifferent to her rights because of his failure to act. The

policies in place were designed to ensure that sheriff’s deputies followed relevant

federal constitutional and Oklahoma state law.

In addition, the injury experienced by Ms. Hollingsworth did not result

from an obvious risk of which Sheriff McPeak knew or should have known. In

Canton v. Harris, 489 U.S. at 390 n.10, the Supreme Court gave an example of the

type of risk necessary to give rise to deliberate indifference. Hypothetical city

policymakers who provide their police officers firearms to allow them to

apprehend fleeing felons would exhibit deliberate indifference either by (1)

failing to teach officers the constitutional limitations on the use of deadly force,

or (2) ignoring the frequent excessive use of force by its officers. Id. In both

cases, the policymakers either knew or should have known that their officers were

or would be presented with the deadly force issue, and that some officers

inevitably would exercise excessive force. Id.

In this case, however, the risk of constitutional harm which resulted in Ms.

Hollingsworth’s injury was not an obvious risk that inevitably led to the harm she

suffered. In many years of experience, neither Sheriff McPeak nor Deputy Hill

had ever encountered an internally inconsistent Emergency Protective Order in

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which the plaintiffs were children in the defendant-parent’s custody. Given the

Sheriff’s Department policies in place, the risk of constitutional harm was not

obvious and Ms. Hollingsworth’s injury was not inevitable. The circumstances

faced by Deputy Hill did not present an obvious risk of harm that the Sheriff’s

Department should have anticipated through a policy specifically designed to

avoid the harm inflicted upon Ms. Hollingsworth.

Drawing all reasonable inferences in favor of Ms. Hollingsworth, no

rational trier of fact could conclude that Sheriff McPeak’s lack of policy

constituted deliberate indifference to Ms. Hollingsworth’s right to procedural due

process. We affirm the district court’s decision granting Sheriff McPeak

summary judgment.

CONCLUSION

Based upon the above analysis, we hold that Deputy Hill is entitled to

qualified immunity from suit because it was objectively reasonable for him to

believe that his actions did not violate Ms. Hollingsworth’s due process rights. In

addition, we conclude that McCurtain County is not subject to local government

liability through its representative Sheriff McPeak. Therefore, we AFFIRM the

Order of the district court in all respects.

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