Suboh v. District Attorney's Office

United States Court of Appeals

For the First Circuit

____________________

Nos. 01-2272, 01-2524

MOUNA KANDY SUBOH, INDIVIDUALLY, AS ADMINISTRATIX OF THE ESTATE

OF ISHAQ SUBOH, AND AS NEXT FRIEND OF HER MINOR DAUGHTER SOFIA

KANDY,

Plaintiff, Appellee,

v.

DISTRICT ATTORNEY'S OFFICE OF THE SUFFOLK DISTRICT, MICHAEL N.

MURPHY, CARL BORGIOLI,

Defendants, Appellants,

CITY OF REVERE, MASSACHUSETTS; ROBERT J. HAAS JR.; JAMES RUSSO;

STEVEN PISANO; JOHN MCRAE; STEVEN WALLACE; THEODORE MICHALSKI;

JULIEANN MAVAROSA; ANTONIO ARCOS; JOHN M. AZZARI; RICHARD

BACHOUR; RALPH C. MARTIN II; INDIVIDUALLY AND IN THEIR OFFICIAL

CAPACITIES,

Defendants.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

____________________

Before

Selya and Lynch, Circuit Judges,

and Schwarzer,* Senior District Judge.

____________________

Linda A. Wagner, Assistant Attorney General, with whom Thomas

F. Reilly, Attorney General, was on the brief for appellants

District Attorney's Office and Michael N. Murphy.

*

Of the Northern District of California, sitting by

designation.

Michael J. Akerson with whom Austin M. Joyce and Edward P.

Reardon, P.C. were on the brief for appellant Carl Borgioli.

Harvey A. Schwartz with whom Kimberly H. Scheckner, Rodgers,

Powers & Schwartz, James R. Knudsen, and Wittenberg & Associates

were on the brief for appellee.

____________________

August 1, 2002

____________________

LYNCH, Circuit Judge. This appeal presents issues of

qualified immunity for public officers, beneath which lie

significant issues about parents' rights under the United States

Constitution. The case history is one of international intrigue

and of local law enforcement officers attempting to respond to the

requirements of both criminal law and family law. Of the two

defendants before us on appeal, we hold that one, Assistant

District Attorney Michael Murphy, is entitled to qualified

immunity. The other, Revere Police Officer Carl Borgioli, is not

so entitled at the summary judgment stage. Consequently, we

reverse the district court's denial of summary judgment on this

issue as to Murphy and affirm the denial as to Borgioli.

I.

We give the general background and then focus on what was

known to the two defendants. We describe the facts in favor of the

nonmoving party on summary judgment.

This case arises out of a complicated family dispute,

involving three generations and three continents. The end result,

according to the plaintiff, is that she has been deprived of

custody of her young daughter due to the actions of the defendants.

The plaintiff, Mouna Kandy Suboh, is a native of Morocco

and is now a resident of Massachusetts. In 1991, while still

living with her parents in Morocco, she became pregnant out of

wedlock. Suboh then fled to Holland to avoid what she says was her

father's rage at her pregnancy. A daughter, Sofia, was born in

Holland on April 9, 1992. Shortly thereafter, Suboh's mother

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traveled to Holland and convinced her to return to Morocco with the

baby. Suboh's parents, the Kandys, then raised Sofia as if she

were their own child. At some point, Suboh says, the Kandys

obtained a fake birth certificate purporting to certify that Sofia

was their biological child. At no point did they ever legally

adopt Sofia; according to the plaintiff, Moroccan law does not

allow such adoptions and Morocco officially recognizes Suboh as

Sofia's mother. Suboh claims that her father is physically abusive

and controlling, and that she agreed to her parents pretending to

be Sofia's parents only because she feared her parents would not

let her see Sofia at all if she did not agree.

In 1995, Suboh met an American citizen, Ishaq Suboh, and

moved to Massachusetts to marry him. She says that the Kandys had

promised to send Sofia to live with her in the United States, but

reneged on that promise once she had left Morocco. Suboh says she

returned to Morocco four times, attempting to obtain custody. She

also filed a case in the Moroccan court system, but she says that

the case was never adjudicated, due to her father's power and

influence in Morocco. She eventually dropped the legal case so

that her father would allow her to see Sofia again.

In April 1998, the Kandys came to Massachusetts in order

for Suboh's father to receive medical treatment. They brought

Sofia with them and stayed with Suboh and her husband at their

apartment in Revere. On May 26, 1998, Suboh and her husband

quarreled with the Kandys about whether Sofia would be returning to

Morocco with the Kandys or staying with Suboh in Massachusetts.

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Following that fight, Suboh's husband called the Boston city

councillor's office to explain the situation. An official there

advised the pair to keep Sofia with them. Suboh and her husband

then packed up their things, took Sofia, and went to the city

councillor's office. They took with them Sofia's Dutch birth

certificate, Moroccan birth identification records showing that

Suboh was Sofia's mother, a document from the Dutch hospital where

Sofia was born, papers from Suboh's Moroccan attorney, and copies

of the Kandys' forged documentation. An official at the city

councillor's office told them she would contact an attorney for

them, and advised them to stay away from the Kandys and keep Sofia

with them in the meantime. Suboh and her husband also went to the

Immigration and Naturalization Service office to try to obtain

residency papers for Sofia, but were unable to do so because they

did not have her passport. Later that day, they checked into a

hotel. The following day, after Suboh's husband spoke with Mr.

Kandy, the two checked into another hotel.

Mustapha Kandy, Suboh's father, called the Revere police

and reported that one of his daughters (Suboh) had kidnapped his

other daughter (Sofia). The Kandys told the Revere police that

Suboh and Sofia were sisters and that they, the Kandys, were

Sofia's parents. The Kandys showed the police a birth certificate

in French and Arabic indicating that Sofia was their daughter.

This birth certificate was translated by a Revere police officer.

In the early morning of May 28, Officer Borgioli became

involved with the case. He reviewed the information that his

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colleagues had obtained on the previous day. He went to the Revere

apartment to interview the Kandys. The Kandys also showed him

Sofia's passport and a document that turned out to be the forged

birth certificate. While at the apartment, Borgioli also spoke

with the officer who had translated the Kandys' documents.

Borgioli also spoke with the Kandy's niece, who was visiting at the

time. Borgioli stated in an affidavit that the niece told him that

the Kandys had raised Sofia from a very young age.

Borgioli testified at his deposition that Mrs. Kandy told

either him or one of the FBI agents that Suboh was Sofia's

biological mother and that the Kandys had adopted Sofia. In his

police report, Borgioli did not include anything about this

supposed adoption, or the fact that the Kandys allegedly told him

that Suboh was Sofia's biological mother. His affidavit confirms

that he learned that Suboh was the biological mother from Suboh

herself, when he interviewed her on the following day at the police

station. Borgioli testified that he was under the impression,

based on something that an Arabic-speaking FBI agent told him, that

the Kandys' documents were adoption papers. But he also testified

that he did not recall that either the Kandys or anyone else had

ever used the word adoption. And this belief was also inconsistent

with the document itself, which refers to Mrs. Kandy as the mother

and says nothing about adoption.

Mr. Kandy told Borgioli that their son-in-law, Ishaq

Suboh, had come to the apartment at some point earlier that day or

on the previous day. Mr. Kandy said that, at that time, Ishaq had

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stolen a Rolex watch from him and asked for money, which he gave

him. Mr. Kandy said that Ishaq then asked for more money and said

he would call back later to arrange for a time for them to meet.

Borgioli stated that Mr. Kandy believed that Suboh and her husband

were holding Sofia for ransom money. There is nothing in the

record, however, about Ishaq Suboh requesting ransom for the return

of Sofia and nothing indicating that Mouna Suboh knew of such

requests, if any were made.

Officer Borgioli called the District Attorney's office

from the apartment. Borgioli spoke with Assistant District

Attorney Murphy, telling him that the case involved a kidnapping

for ransom and asking him questions about setting up a tap on the

apartment's telephone. Murphy did not remember whether Borgioli

told him that the Kandys were the biological parents of Sofia, or

her custodians, but he says that Borgioli led him to believe that

the Kandys had legal custody of Sofia.

While Borgioli was obtaining information from the Kandys,

a fellow Revere police officer, who was with him at the Revere

apartment, obtained information that Ishaq Suboh had attempted to

charge airline tickets to his credit card, which was at its limit.

At this point, the FBI was called in to assist with the case.

At some point during the day, Ishaq Suboh called from a

number that the police later learned was the Boston City Council.

He refused to speak with Mr. Kandy, but spoke with Mrs. Kandy and

arranged to meet her at a nearby donut shop. Borgioli says that he

understood the purpose of the meeting was to arrange the

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circumstances for Sofia's return. A special agent from the FBI

listened in on the phone conversation. The meeting never took

place.

The following day, two Revere police officers (not

including Borgioli) located Suboh in a hotel in Malden. Suboh told

the police at that time that Sofia was her daughter and attempted

to give them official, certified documentation showing that she was

Sofia's birth mother. The police declined to accept the documents

at that time.

The police then took Suboh and Sofia to the Revere police

station to be interviewed. Borgioli conducted the interview.

Suboh told Borgioli that she was Sofia's mother and that the

Kandys' documents were false. She says she told him about the

fight with her parents regarding whether Sofia would return to

Morocco. She says she also told him that she had legal custody of

Sofia. She again showed all her documentation from the Netherlands

and Morocco. She also repeatedly requested that Borgioli call the

Moroccan embassy or the Netherlands embassy to verify her

documentation. The police took Suboh's documents and photocopied

them, although they made no effort to have them translated or to

confirm them with the relevant embassies. Suboh also told Borgioli

that her parents' visa was about to expire, and they had tickets to

return to Morocco with Sofia. She says she asked the police to

keep Sofia in state custody. Suboh says that the police repeatedly

asked her about the stolen watch and her husband's alleged demand

for money, and that she responded, "Which watch, what money, I

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don't know what you're talking about." She says they were only

concerned about the money and the watch, and her movements over the

previous two days, and not about her claims to be Sofia's mother.

Borgioli testified that Suboh told him she had given up

custody of Sofia to the Kandys, or that the Kandys had adopted

Sofia without Suboh's consent and that she was trying to "regain"

custody. This is contrary to Suboh's testimony, as is Borgioli's

statement that Suboh never told him not to release Sofia to the

Kandys, or expressed fear that the Kandys would take Sofia to

Morocco. Borgioli did admit that Suboh said she had never given

her permission for an adoption. He also testified that Suboh had

suggested that the Kandys' documents were forged, but said that "it

was just speculation on her part" and he thought she was just

trying to avoid being arrested. He also recalled her telling him

about the difficulties she had trying to regain custody under the

Moroccan system. He said that he made no effort to investigate

whether Suboh's claims about the various custody documents were

true, because he had no reason, other than Suboh's word, to believe

her. The same was, of course, true for the Kandys' word.

During the interview, Borgioli again called Assistant

District Attorney Murphy. Both Borgioli and Murphy agree that, at

this point, Borgioli told Murphy that Suboh was Sofia's biological

mother. He asked Murphy, in a case where Suboh was the biological

mother but not the legal guardian, whether he should charge her

with straight kidnapping, kidnapping by a relative, or kidnapping

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by a parent. He also either asked if he could release Sofia to the

Kandys, or stated that he was going to release Sofia to them.

Murphy replied that he would have to call back. When he called

back a few minutes later, Murphy told Borgioli that Suboh should be

charged with kidnapping by a relative. Murphy may have also said

"okay" in response to Borgioli's statement or question about

releasing Sofia to the Kandys, but Murphy did not recall having

said that. There is no evidence in the record that Murphy was

given any additional information about the case, such as the fact

that Suboh had documentation beyond what the Kandys had presented

or the fact that Suboh alleged that the Kandys' documents were

forged. There is no evidence that Murphy was told that legal

custody of the child was disputed. There is also no evidence that

Murphy knew, or had reason to believe, that the Kandys' visa was

expiring or that they planned to take Sofia back to Morocco

immediately.

Suboh says that Borgioli told her that Sofia would be

temporarily placed in state custody. Suboh says that an FBI agent

who was present also told her that Sofia would be placed with the

state Department of Social Services (DSS), and the police would

keep her passport. She says the agent instructed Borgioli to "keep

the passport and the daughter at the DSS."1 Borgioli says that he

never considered involving the DSS.

1

There does not appear to have been any discovery from the

FBI agents about what they told Suboh or Borgioli.

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The police charged Suboh with kidnapping by a relative

and transported her to court. Suboh asked if Sofia could come with

her, and Borgioli told her that Sofia could not come to court, but

that Suboh would see Sofia when she came out of court.

Despite these representations to Suboh and the statement

by the FBI agent instructing Borgioli to place the child with DSS,

Borgioli then released Sofia to the Kandys. Borgioli did not ask

the Kandys not to leave the country, nor did he make any efforts to

make sure that they would not leave the country with Sofia. He

admits that he never told Suboh that he was going to release Sofia

to the Kandys and admits that it is fair to say that the decision

to release Sofia to the Kandys was his decision.

Immediately after Sofia was returned to them, the Kandys

returned to Morocco with the child. The charges against Suboh and

her husband were later dismissed. Suboh has not been able to

regain physical custody of her daughter since that time.

II.

On March 6, 2000, Suboh, the estate of her now-deceased

husband, and Sofia (acting through Suboh, her next friend) brought

suit in the federal district court of Massachusetts against

Borgioli, Murphy, the District Attorney's office, the City of

Revere, and various other individuals associated with the case. The

case alleged deprivation of the rights of Suboh, her husband, and

Sofia, as secured by the Constitution and the laws of the United

States, and liability under the Massachusetts Torts Claims Act,

Mass. Gen. Laws. ch. 258, § 2 (2000), the Massachusetts Civil

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Rights Act, id. ch. 12 § 11I, and various state law tort claims.

For purposes of this appeal, we analyze all of the claims as

Suboh's claims.

On August 1, 2000, Murphy filed a motion to dismiss the

§ 1983 claims brought against him in his individual capacity,

asserting immunity and other defenses.2 Suboh v. City of Revere,

141 F. Supp. 2d 124, 127 (D. Mass. 2001). On March 30, 2001, the

district court denied the motion to dismiss, holding that Murphy

was not entitled to either absolute prosecutorial immunity or

qualified immunity. Id. at 136-45. As for Murphy's claim of

absolute prosecutorial immunity, the district court reasoned that

because "the deprivation of which [the plaintiffs] complain is

wholly unrelated to any prosecutorial functions," there was no

prosecutorial immunity. Id. at 137. The district court then

concluded that Murphy was not protected by qualified immunity

because Suboh's claim "lies at the core" of a clearly established

right to familial integrity, id. at 140, and that, as the case was

presented by Suboh, "a reasonable person in Murphy's position would

have known that his release of Sofia into the Kandys' custody

violated that right," id. at 142. As a second ground, it reasoned

that Murphy's conduct violated a clearly established "substantive

due process right of a parent and her child not to have a child in

2

The motion to dismiss also encompassed other claims

against Murphy and the District Attorney's office. The district

court dismissed some claims, and denied the motion as to other

claims. Suboh v. City of Revere, 141 F. Supp. 2d 124, 124, 145 (D.

Mass. 2001). These other claims are not at issue in this appeal.

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state custody turned over to someone whom the state knows, or

should know, to be dangerous." Id.

Murphy originally appealed from the district court's

decision, but then voluntarily withdrew his appeal without

prejudice, after filing a motion for summary judgment with the

district court. On September 25, 2001, the district court denied

Murphy's motion for summary judgment. The court agreed that it was

undisputed that "the whole case was presented to Mr. Murphy [by

Borgioli] in a sense favorable to the grandparents." Nonetheless,

it found that there was a material fact in dispute as to whether

Borgioli asked Murphy for legal advice regarding whether to release

Sofia to the Kandys.

On August 17, 2001, Borgioli filed a motion for summary

judgment. On September 5, 2001, the district court granted

Borgioli's motion with respect to Suboh's Fourth Amendment claims,

but left Suboh's Fourteenth Amendment claims standing and denied

Borgioli's qualified immunity defense for the reasons articulated

in its March 30, 2001, decision regarding Murphy's qualified

immunity defense.

The court stayed the trial pending Murphy's and

Borgioli's appeals.3

3

The district court initially denied Borgioli's motion to

stay the trial, ruling that it was untimely because the legal

conclusion from which Borgioli sought to appeal was articulated in

its March 30, 2001, ruling, from which Borgioli took no appeal.

Borgioli petitioned this court, which issued an order clarifying

that Borgioli's motion was timely. Following that order, the

district court immediately granted the requested stay.

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III.

This court has jurisdiction to consider interlocutory

appeals from the denial of a defendant's motion to dismiss or for

summary judgment on a qualified immunity defense. Behrens v.

Pelletier, 516 U.S. 299, 305-07 (1996); Duriex-Gauthier v. Lopez-

Nieves, 274 F.3d 4, 6 (1st Cir. 2001). Denials of summary judgment

on qualified immunity grounds are reviewed "to the extent that the

qualified immunity defense turns upon a 'purely legal' question"

and any disputed facts are not material to the issue of immunity.

Fletcher v. Town of Clinton, 196 F.3d 41, 45 (1st Cir. 1999)

(citations and internal quotation marks omitted). Our standard of

review in such cases is de novo. Id. at 48.

We use a three-part test to determine whether an official

is entitled to qualified immunity, Hatch v. Dep't of Children,

Youth & Their Families, 274 F.3d 12, 20 (1st Cir. 2001), following

the guidance provided by the Supreme Court, see Wilson v. Layne,

526 U.S. 603, 609 (1999); County of Sacramento v. Lewis, 523 U.S.

833, 841 n.5 (1998); Siegert v. Gilley, 500 U.S. 226, 232 (1991).

The threshold inquiry is whether the plaintiff's allegations, if

true, establish a constitutional violation. Hope v. Pelzer, 122 S.

Ct. 2508, 2513 (2002); Saucier v. Katz, 533 U.S. 194, 201 (2001);

Siegert, 500 U.S. at 232. The second question is whether the right

was clearly established at the time of the alleged violation. That

inquiry is necessary because officers should be on notice that

their conduct is unlawful before they are subject to suit. Hope,

122 S. Ct. at 2516-18; Anderson v. Creighton, 483 U.S. 635, 638-40

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(1987). The third is whether a reasonable officer, similarly

situated, would understand that the challenged conduct violated

that established right. Swain v. Spinney, 117 F.3d 1, 9 (1st Cir.

1997). The question of whether a right is clearly established is

an issue of law for the court to decide. Elder v. Holloway, 510

U.S. 510, 516 (1994). The reasonableness inquiry is also a legal

determination, although it may entail preliminary factual

determinations if there are disputed material facts (which should

be left for a jury). Swain, 117 F.3d at 10.

Borgioli argues that none of the three criteria are met.

Murphy makes the more restrained argument that the second two

criteria are not met. The arguments merge to the extent that they

both assert that there is no clear definition of what the district

court called a "right to familial integrity." Suboh, 141 F. Supp.

2d at 139.

A. Identification of a Constitutional Right

The district court based its ruling on an abstract right

to "familial integrity" inherent in the substantive component of

the Due Process Clause of the Fourteenth Amendment. Id. In doing

so, the district court relied on a series of Supreme Court cases

ranging from Meyer v. Nebraska, 262 U.S. 390 (1923), to Troxel v.

Granville, 530 U.S. 57 (2000). These cases cover a range of

issues, from constraints on a state's power to mandate compulsory

public education, Meyer, 262 U.S. 390, to constraints on a state’s

ability to mandate grandparent visitation rights, Troxel, 530 U.S.

57.

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There is a danger in the use of broad abstract terms such

as "familial integrity". The Supreme Court has warned against

using generalized definitions of constitutional rights in the

qualified immunity setting. Anderson, 483 U.S. at 639. This

court, in Frazier v. Bailey, 957 F.2d 920, 929-30 (1st Cir. 1992),

held that it is not sufficient for a plaintiff to allege an

abstract due process liberty interest in family relationships. The

qualified immunity defense requires that the "familial integrity"

right asserted be stated with particularity. Id.; see also Hatch,

274 F.3d at 20.

Putting aside notions of generalized "familial

integrity," there are, more pertinently, much more narrow interests

that are at stake here. To begin, "[t]he interest of parents in

the care, custody, and control of their children is among the most

venerable of the liberty interests embedded in the Constitution."

Hatch, 274 F.3d at 20; see also Croft v. Westmoreland County

Children & Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997)

(recognizing "the constitutionally protected liberty interests that

parents have in the custody, care and management of their

children"); Jordan v. Jackson, 15 F.3d 333, 342 (4th Cir. 1994)

("The state's removal of a child from his parents indisputably

constitutes an interference with a liberty interest of the parents

and thus triggers the procedural protections of the Fourteenth

Amendment."); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391

(4th Cir. 1990) ("[The plaintiff] clearly does have a protectible

liberty interest in the care and custody of his children."); Hooks

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v. Hooks, 771 F.2d 935, 941 (6th Cir. 1985) ("It is well-settled

that parents have a liberty interest in the custody of their

children.") The child has a similar liberty interest in being in

the care and custody of her parents. See Brokaw v. Mercer County,

235 F.3d 1000, 1018-19 (7th Cir. 2000); Wooley v. City of Baton

Rouge, 211 F.3d 913, 923 (5th Cir. 2000); Duchesne v. Sugarman, 566

F.2d 817, 825 (2d Cir. 1977); Opinion of the Justices to the

Senate, 427 Mass. 1201, 691 N.E.2d 911, 915 (1998).

This liberty interest is protected both by the

substantive component of the Due Process Clause, which constrains

governmental interference with certain fundamental rights and

liberty interests, and by the procedural component of the Due

Process Clause, which guarantees "fair process." Washington v.

Glucksberg, 521 U.S. 702, 720 (1997). In this case, we focus our

analysis primarily on the procedural aspect, which is most directly

implicated by the facts presented here.4 What is at issue here is

the right of a parent to procedural due process protections before

a governmental official resolves the disputed issue of custody of

a child, when there are known competing claims to custody.

Due process claims more commonly arise in situations

where state agency officials remove a child from the custodial

parents, usually where there is some suspicion of child abuse or

4

The district court's holding regarding the "substantive

due process right of a parent and her child not to have a child in

state custody turned over to someone whom the state knows, or

should know, to be dangerous" was in error. Suboh, 141 F. Supp. 2d

at 142. There is no evidence in the record to establish that the

defendants had any reason to think that the Kandys posed a danger

to Sofia.

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neglect. In Santosky v. Kramer, 455 U.S. 745 (1982), the Supreme

Court held that before a state may sever the parent's rights in

their child, due process requires that the state support its

allegations of abuse or neglect by at least clear and convincing

evidence, id. at 768-71. In cases where the safety of the child

is at risk, there are competing liberty interests, and so the

parents' rights are not absolute. Based on this principle, we have

frequently upheld immunity for state actors who investigate child

abuse allegations and take emergency action to protect a child.

See Hatch, 274 F.3d 12, 20-22, 24-25; DaCosta v. Chabot, 59 F.3d

279 (1st Cir. 1995); Frazier, 957 F.2d at 920, 931.

Generally speaking, the question of what process is due

involves a weighing of the different interests of the child, the

parents, and the state. Hatch, 274 F.3d at 20; see also Weller,

901 F.2d at 395-96 (considering interests and facts in case to

determine what process was due); Opinion of the Justices, 691

N.E.2d at 915; Care & Prot. of Robert, 408 Mass. 52, 556 N.E.2d

993, 996-97 (1990). Due process protects a parent's rights even

when a state temporarily removes a child before obtaining a court

order, as the state may place a child in temporary custody only

when it has evidence giving rise to a suspicion that the child has

been abused or is in imminent danger. Hatch, 274 F.3d at 20; see

also Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000); Croft,

103 F.3d at 1125. Moreover, due process requires that some sort of

process be provided promptly after an emergency removal. "'[I]n

those "extra-ordinary situations" where deprivation of a protected

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interest is permitted without prior process, the constitutional

requirements of notice and an opportunity to be heard are not

eliminated, but merely postponed.'" Weller, 901 F.2d at 393

(quoting Hooks, 771 F.2d at 942 (quoting Duchesne, 566 F.2d at

826)); see also Brokaw, 235 F.3d at 1021; Campbell v. Burt, 141

F.3d 927, 929 (9th Cir. 1998); Jordan, 15 F.3d at 343. Both the

right to predeprivation process and the right to postdeprivation

process are at issue in this case.

Suboh's claim is that Officer Borgioli, enabled by

Assistant District Attorney Murphy, effectively decided the custody

dispute by turning the child over to the Kandys while knowing the

Kandys were about to leave the country with the child; thus, he

effectively deprived Suboh of her parental right to the care and

custody of her child without providing her with due process

procedures. In so doing, Borgioli ignored due process procedures

established by state law to deal with situations such as this one.

These include procedures for the state to take custody of a child

whose guardian is unavailable, Mass. Gen. Laws ch. 119, § 23(C)

(2000), procedures for the state to take temporary custody of

children needing care and protection, id. ch. 119, § 24 (2000),

procedures for determining custody of children born out of wedlock,

id. ch. 209C, § 10 (2000), and procedures for enforcing foreign

custody judgments within Massachusetts, id. ch. 209B, § 12 (2000).

Yet Borgioli short-circuited all of these procedures by deciding

the issue on his own.

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Generally, "there is a presumption that fit parents act

in the best interests of their children." Troxel, 530 U.S. at 68.

Here, there was no suspicion of child abuse or reason to suspect

that the child would be in imminent peril, and thus no reason to

sever Suboh's parental rights prior to the state's resolution of

the custody dispute through its normal procedures. See Hatch, 274

F.3d at 20. One of Suboh's rights as a mother was the right to

choose a proxy custodian for Sofia following her arrest. See In re

Dep't of Pub. Welfare, 383 Mass. 573, 421 N.E.2d 28, 34 (1981)

(noting, in case of incarcerated mother, that mother's "presumptive

right to custody of the child includ[es] the right to choose a

caretaker proxy"). Borgioli's actions deprived her of this right.

Moreover, there was evidence both that Suboh told

Borgioli that the Kandys were planning on leaving the jurisdiction

with Sofia within days and that Borgioli knew the Kandys' visa was

about to expire and that they had return tickets to Morocco.

Borgioli therefore had reason to know that Suboh would never

receive any postdeprivation hearing. See Weller, 901 F.2d at 396

("[I]t is alleged that in addition to depriving [the parent] of

custody without a hearing, defendants arranged for [the child] to

be taken out of the jurisdiction . . . thereby reducing the

possibility of a post-deprivation hearing."); Hooks, 771 F.2d at

942 ("Here the children were turned over . . . allegedly with the

knowledge that they would immediately be taken . . . out of the

jurisdiction . . ., effectively eliminating the opportunity for

plaintiff to receive a post-deprivation hearing.").

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We think it plain that Suboh alleges a violation of a

constitutional right.

B. Clearly established at the time

Both defendants say there was sufficient ambiguity as to

the scope of "familial integrity" rights when they acted in 1998

that they are entitled to immunity because the right was not

clearly established at the time. This court has held that, at

least as of 1992, "the dimensions of this right [to familial

integrity] have yet to be clearly established." Frazier, 957 F.2d

at 931. Articulating the right as one of "familial integrity"

casts too broad a net. The inquiry into whether a right is clearly

established "must be undertaken in light of the specific context of

the case, not as a broad general proposition." Saucier, 533 U.S.

at 201; see also Wilson, 526 U.S. at 615. The constitutional right

at issue here is the right to procedural and substantive due

process before the state takes a child away from his or her parent.

One tried and true way of determining whether this right

was clearly established at the time the defendants acted, is to ask

whether existing case law gave the defendants fair warning that

their conduct violated the plaintiff's constitutional rights.

Hope, 122 S. Ct. at 2522. This inquiry encompasses not only

Supreme Court precedent, but all available case law. Hatch, 274

F.3d at 23.

A parent's liberty interest in the care and custody of

her child was established long before the facts of this case arose.

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The Supreme Court has noted that "[t]he liberty interest . . . of

parents in the care, custody, and control of their children . . .

is perhaps the oldest of the fundamental liberty interests

recognized by this Court." Troxel, 530 U.S. at 65. Applying this

substantive due process right in Troxel, four members of the Court

found it unconstitutional for a state to fail to give weight to a

custodial parent’s interests in determining the care of her

children when adjudicating a grandparent’s contested petition for

visitation because the presumption is that a fit parent will act in

their child's best interests. Troxel, 530 U.S. at 70-73 (plurality

opinion).

The long-standing acknowledgment of a substantive due

process interest in familial integrity, e.g., Meyer, 262 U.S. 390,

formed the backdrop for the Supreme Court's 1972 opinion in Stanley

v. Illinois, 405 U.S. 645 (1972), in which the Court held that

procedural due process demanded that a parent be given "a hearing

on his fitness as a parent before his children were taken from

him," id. at 649. This principle was further developed by the

Court in Santosky, in which the Court held that procedural due

process required that a person's parental rights not be terminated

unless the state's allegations of unfitness were supported by

"clear and convincing evidence." 455 U.S. at 769. The

Massachusetts Supreme Judicial Court has long recognized parents'

rights to procedural due process in cases in which the state

intervenes in the care and custody of their children, citing often

to the Stanley and Santosky decisions. See, e.g., Opinion of the

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Justices, 691 N.E.2d at 913; Adoption of Eugene, 415 Mass. 431, 614

N.E.2d 645, 647 (1993); Dep't of Pub. Welfare v. J.K.B., 379 Mass.

1, 393 N.E.2d 406, 407-08 (1979).

We have no doubt that there is a clearly established

constitutional right at stake, although we have found no case

exactly on all fours with the facts of this case. The difference

in contexts in which the right is discussed in the case law does

not mean such a right does not exist. See Hope, 122 S. Ct. at

2515-16 (rejecting requirement that facts of previous cases be

"materially similar" to instant case as an overly "rigid gloss" on

qualified immunity determinations). "[O]fficials can still be on

notice that their conduct violates established law even in novel

factual circumstances. . . . [T]he salient question . . . is

whether the state of the law [at the time of the action] gave [the

defendants] fair warning that their alleged treatment of [the

plaintiff] was unconstitutional." Id. at 2516.

As the district court stated, "[i]t is clearly

established that a parent cannot be deprived of custody of a child

absent notice and a hearing unless there are exigent circumstances

of abuse or neglect." Suboh, 141 F. Supp. 2d at 143 (citing

Stanley, 405 U.S. at 650-57). Even when there are such exigent

circumstances, there must be an adequate post-deprivation hearing

within a reasonable time. The cases discussing this right are not

new and existed long before the events in this case. E.g., Hooks,

771 F.2d at 942; Duchesne, 566 F.2d at 826-28.

-23-

Our precedent in Hatch settles the matter. Hatch

involved the standard (reasonable suspicion of imminent danger) by

which a state actor would be justified in temporarily taking a

child from her parent pending a hearing. 274 F.3d at 23-24.

Hatch, decided in 2001, found the right clearly established by the

time of the events in question there, which occurred in 2000. Our

case concerns events in May 1998. Nonetheless, Hatch relied on

cases dating from the early and mid 1990s that established due

process protections for even temporary removals of children pending

a due process hearing. Id. at 20, 23.

Moreover, long before the events at issue in this case,

many of our sister circuits had articulated a constitutional right

to procedural due process when the state transfers custody from a

custodial parent. See, e.g., Weller, 901 F.2d at 393, 398 (finding

that complete denial of a hearing following emergency transfer of

custody violated due process); see also Wooley, 211 F.3d at 917,

924 (finding that mother's and child's due process rights not to

have state deprive mother of custody absent court order or

emergency circumstances were clearly established in 1995). In

particular, the 1985 Hooks case bears marked factual similarities

to this case. 771 F.2d 935. In Hooks, the noncustodial father,

who resided out of state, informed the local police of an

outstanding warrant against the custodial mother. Id. at 939. The

mother attempted to make interim care arrangements for her

children, but the police refused to allow her to do so. Id. at

940. She was released on her own recognizance within a few hours

-24-

of arrest, but, in the meantime, the police had turned the children

over to her ex-husband, who had immediately left the state with

them. Id. at 939. The court held that a transfer of custody that

"effectively eliminat[ed] the opportunity for . . . a post-

deprivation hearing" violated the mother's due process rights. Id.

at 942.

It follows from Santosky and Stanley, reinforced by the

cases cited in Hatch and those from our sister circuits, that it

was clearly established in 1998 that a state official could not

effectively resolve a disputed custody issue between a parent and

another without following any due process procedures at all.

Defendants had fair warning of the existence of these rights.

Hope, 122 S. Ct. at 2516.

C. The Understanding of An Objectively Reasonable Officer

The inquiry under the third prong of the qualified

immunity analysis is whether an objectively reasonable officer in

the defendant’s position would have understood his action to

violate the plaintiff’s rights. See Saucier, 533 U.S. at 205 ("If

the officer's mistake as to what the law requires is reasonable

. . . the officer is entitled to the immunity defense."); Swain,

117 F.3d at 9-10. The analysis differs as to Murphy and to

Borgioli.

1. Murphy

Unlike Borgioli, Murphy was not given facts indicating

that there was any dispute over the custody of the child. Indeed,

Murphy’s only information on this point, from Borgioli, was that

-25-

the Kandys were the child’s lawful custodians. These facts alone

would seem to mandate that Murphy be given qualified immunity. It

is not material that Borgioli's and Murphy's memories diverged over

whether there was any discussion of whether to release the child to

the Kandys.

Suboh makes two arguments in response. First, Suboh says

Murphy had no legal authority to release the child. Second, Suboh

says that Murphy was negligent in not determining whether there was

a custody dispute between Suboh and the Kandys. Neither argument

has merit.

First, the claim as to which immunity is sought is a

federal constitutional claim, brought under § 1983, not a state law

claim about an individual exceeding his authority. The

constitutional claim does not turn on the scope of the authority of

the Assistant District Attorney. Whether or not he had authority,

he simply did not know there was a custody dispute.

Suboh's second argument assumes that there was some fact

that should have put Murphy on inquiry notice that there was a

custody dispute. The facts alleged here concerning Murphy's

involvement in the matter would not put a reasonable prosecutor on

such notice.

The district court denied immunity to Murphy on the basis

that Murphy may have given Borgioli legal advice about whether he

could turn custody of the child over to the Kandys. The record is

clear that Murphy did not know that there was a custody dispute

and, indeed, implicitly was told custody was not in dispute. Given

-26-

these facts, we cannot say it was unreasonable for Murphy to acede

to Borgioli's suggestion that the child be returned to individuals

that Murphy was told were her legal guardians. The district

court’s conclusion cannot stand. Accordingly, we reverse the

district court; Murphy is entitled to qualified immunity on the

§ 1983 claim.

2. Borgioli

Borgioli, in contrast, knew that there was a custody

dispute from his interrogation of Suboh and knew that Suboh had

documents that she said supported her claim to custody. Suboh had

shown him a birth certificate that showed her as the birth parent,

as well as various other documents that supported her claims.

Suboh had also told him that the documentation shown by the Kandys

was forged and that the Kandys had lied to him. He knew that the

Kandys had given the police inconsistent information about who the

birth mother was.

Borgioli argues that it was factually reasonable for him

to release the child to the Kandys even if a clearly established

right was involved. In essence he makes three arguments. First,

he argues that the facts as he knew them indicated that the Kandys

were Sofia’s custodians. Second, he argues that he had probable

cause to arrest Suboh and her husband for kidnapping and that was

enough to justify his release of the child. Third, Borgioli argues

that ADA Murphy agreed to releasing the child to the Kandys, and

that immunizes him. We take each argument in turn.

-27-

We, like the district court, think that no reasonable

officer could have concluded on the facts before him that the

Kandys had undisputed custody of the child, despite Suboh's claims,

and so no process of any sort was due before the child could be

released to the Kandys. Suboh repeatedly told him that she was the

biological mother of Sofia, which directly conflicted with the

information provided by the Kandys, who at times said they were the

biological parents and had provided a birth certificate indicating

that they were the biological parents. Suboh also provided

documentation that was obviously different from the documentation

provided by the Kandys and which she said supported her claim of

custody. Suboh told him that the Kandys' custodial documents were

forged. No objectively reasonable officer could immediately

conclude that the Kandys' documents were valid and Suboh's

documents were forged, or that there was no custody dispute.

Borgioli also failed to pursue reasonable avenues of

investigation to determine whether Suboh's claims were true, such

as having her documents translated from Dutch, French, and Arabic,

or calling the embassies, as Suboh requested. See Wallis, 202 F.3d

at 1138 (police should pursue "reasonable avenues of

investigation," within circumstances of case, before removing

children from parents' custody). It is also relevant that the

Kandys' documentation, even if valid, did not give the police

authority to effect a transfer of custody, see Mass. Gen. Laws ch.

209B, § 12 (setting forth rules for filing and enforcing custody

judgments of foreign states in Massachusetts); Wooley, 211 F.3d at

-28-

926 (it was not objectively reasonable for police officer to rely

on court custody order to transfer custody when state law required

a civil warrant).

We also reject Borgioli's argument that the probable

cause determination as to the kidnapping charges entitles a

reasonable officer to make a conclusive determination of a disputed

custody matter. The threshold for probable cause in a criminal

case is low, as Borgioli certainly must know. "[P]robable cause

exists when 'the facts and circumstances within [the police

officer’s] knowledge and of which they had reasonably trustworthy

information were sufficient to warrant a prudent [person] in

believing that the [defendant] had committed or was committing an

offense.'" Rivera v. Murphy, 979 F.2d 259, 263 (1st Cir. 1992)

(quoting United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.

1987) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)) (internal

quotation marks omitted). That there is probable cause that a

crime has been committed is not a determination on the merits that

a crime was committed: an arrest is not a conviction. Indeed, in

order to prove kidnapping by a relative, as Borgioli must have

known, the state would have had to show that Suboh did not have

custody of the child. Mass. Gen. Laws ch. 265, § 26A (2000). As

a matter of law, mere probable cause for arrest on kidnapping

charges of a person claiming custody is not a sufficient basis on

which to determine a custody dispute, nor is an arresting police

officer the correct person to be making such a determination.

Compare Rivera, 979 F.2d at 263 (articulating standard for probable

-29-

cause), with Santosky, 455 U.S. 745 (articulating standard for

permanent deprivation of parental rights). While a temporary

emergency transfer of custody may issue on the basis of "reasonable

cause" to believe that a child is in danger of abuse or neglect,

see Care & Prot. of Robert, 556 N.E.2d at 995-96, that is a far cry

from a police officer making a custody decision that is effectively

nonreversible on the basis of probable cause for arrest for

kidnapping by a relative. The probable cause argument works

against Borgioli, not for him. A reasonable officer could not view

cause for arrest as the extent of the process due before usurping

the parent's right to the care and custody of her child.

Borgioli’s reliance on Murphy does not help him.

Although Borgioli had facts before him that there was a keenly

disputed custody issue, he refrained from telling Murphy about that

dispute. A reasonable officer would not rely on a district

attorney's assent, when he knew the district attorney had not been

given the material information. Cf. Rodriques v. Furtado, 950 F.2d

805, 812 (1st Cir. 1991) (there is no qualified immunity if police

officer was "constitutionally negligent" and knew that facts

submitted in search warrant affidavit were insufficient to

establish probable cause).

On the facts alleged by Suboh, Borgioli's actions were

not on the "hazy border" between acceptable and unacceptable

behavior. Saucier, 533 U.S. at 206 (quoting Priester v. City of

Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000)) (internal

quotation marks omitted). Whatever the exact contours of the right

-30-

to due process in the context of child removals in other

circumstances, see, e.g., Frazier, 957 F.2d at 931, this case

falls well within the area of clarity. Borgioli cannot prevail on

qualified immunity at the summary judgment stage.

IV.

Pendent Jurisdiction

Defendants ask us to take jurisdiction over their appeals

from the denial of qualified immunity on the Massachusetts Civil

Rights Act claim against Borgioli, the denial of immunity on the

Massachusetts Torts Claims Act claims against the District

Attorney's office, and the denial of summary judgment on state tort

claims against Murphy. Generally, interlocutory review of a

decision denying qualified immunity under § 1983 "does not in and

of itself confer jurisdiction over other contested issues in the

case." Roque-Rodriguez v. Lema Moya, 926 F.2d 103, 105 & n.2 (1st

Cir. 1991). In order for the court to exercise pendent

jurisdiction, the party seeking jurisdiction must show that the

issues are "inextricably intertwined with [the district] court’s

decision to deny the individual defendants' qualified immunity

motions, or that review of the [decision for which pendent

jurisdiction is sought] was necessary to ensure meaningful review

of the [qualified immunity decision]." Swint v. Chambers County

Comm’n, 514 U.S. 35, 51 (1995); see also Fletcher v. Town of

Clinton, 196 F.3d 41, 55-56 (1st Cir. 1999). We have thoroughly

reviewed the qualified immunity decision of the trial court without

any need to touch on the pendent claims. Consequently, there is no

-31-

pendent appellate jurisdiction here. That said, however, we fully

expect that the district court, either sua sponte or upon timely

request, will reevaluate its earlier rulings in light of this

opinion.

Conclusion

The denial of summary judgment as to Murphy is reversed

and the claim against him under § 1983 is ordered dismissed on

qualified immunity grounds. The denial of summary judgment as to

Borgioli's claim of qualified immunity is affirmed. No costs are

awarded. So ordered.

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