Rosenbaum v. Washoe County

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERSHEL OSCAR ROSENBAUM; C. R.; 

J. R.,

Plaintiffs-Appellants,

No. 10-15637

v.

D.C. No.

WASHOE COUNTY; DENNIS BALAAM,  3:08-cv-00418-ECR-

in his official capacity; MICHAEL RAM

HALEY, in his official capacity;

OPINION

JAMES FORBUS, in his individual

capacity,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Nevada

Edward C. Reed, Senior District Judge, Presiding

Argued and Submitted

May 11, 2011—San Francisco, California

Filed August 22, 2011

Before: Ronald M. Gould and Milan D. Smith, Jr.,

Circuit Judges, and Nancy Gertner, District Judge.*

Opinion by Judge Gertner

*The Honorable Nancy Gertner, U.S. District Judge for the District of

Massachusetts, sitting by designation.

11379

ROSENBAUM v. WASHOE COUNTY 11383

COUNSEL

Robert R. Hager and Treva J. Hearne, Hager & Hearne, Reno,

Nevada, for the appellants.

David Creekman, Herbert Kaplan, Washoe County District

Attorney’s Office, Reno, Nevada, for the appellees.

OPINION

GERTNER, District Judge:

Hershel Oscar Rosenbaum (“Rosenbaum”) and his children

appeal the district court’s order granting the defendants’

motion for summary judgment on the grounds of qualified

immunity.

Rosenbaum was arrested as he stood outside a fair selling

promotional tickets that he had received for free from a radio

station. He was wearing a t-shirt with the logo of the station;

his children, ages eight and four, were standing beside him.

He was arrested for abuse, neglect or endangerment of a child,

and obtaining money under false pretenses. Officers walked

his children across the street to the car where their mother was

waiting. On the way, they told the children that what their

father did “was wrong,” that “you know what your father did

was wrong,” and that he was going to jail for what he had

done. Rosenbaum spent eight hours in jail and was released

on bail. He had in fact not violated any statute. There is no

scalping law in Nevada; no other charge applied to his con-

duct. The charges against him were ultimately dropped.

11384 ROSENBAUM v. WASHOE COUNTY

Rosenbaum and his children brought a § 1983 suit against

Washoe County, County Sheriff Dennis Balaam, County Dep-

uty Sheriff Lieutenant James Forbus (“Forbus “), and Under-

sheriff Michael Haley, for damages resulting from the

unlawful arrest. They claimed a violation of two constitu-

tional rights: (1) the right to be free from unlawful arrest

under the Fourth and Fourteenth Amendment, and (2) the sub-

stantive and procedural due process right to family integrity

under the Fourteenth Amendment. They also brought state

claims for libel, assault, battery, negligent and intentional

infliction of emotional distress, false arrest, and false impris-

onment.

The County defendants moved for summary judgment on

the grounds of qualified immunity, and the district court

granted the motion. The district court held that while the

arresting officer, Forbus, did not have probable cause to arrest

Rosenbaum, he was entitled to qualified immunity because a

criminal statute, “collecting for benefit without authority,”

Nev. Rev. Stat. § 205.415, which was offered by the defen-

dants to justify the arrest, was ambiguous.

Significantly, the statute on which the district court relied

in finding qualified immunity was unknown to Forbus at the

time of the arrest. It has no published authority or legislative

history. While there is a factual dispute about when the

County defendants found this statute, it is clear that it was

found at some point after the arrest and even after Rosenbaum

was released. The Rosenbaums allege that it was the district

attorney who found it after this section 1983 case was

brought, almost two years after the arrest. The County defen-

dants claim that it was Officer Forbus who found the statute.

A Westlaw search of Nevada law found not a single reference

to this statute other than in this case.

The district court further held that while the officer’s com-

ments to the children were offensive, they did not rise to the

level of a constitutional violation.

ROSENBAUM v. WASHOE COUNTY 11385

For the reasons that follow, we reverse the district court’s

ruling on qualified immunity for the unlawful arrest and

affirm the district court’s ruling on the right to integrity of the

family.

BACKGROUND

Rosenbaum received free promotional tickets for the

Nevada State Fair from the Reno radio station KOZZ. On

August 26, 2006, Rosenbaum stood across the street from the

entrance to the fair with his children and sold the tickets for

the discounted price of $5 per ticket. He was wearing a t-shirt

with the KOZZ logo at the time.

Deputy Sheriff Forbus responded to a complaint by fair

personnel that an individual was attempting to sell free pro-

motional tickets. He spoke with KOZZ, the radio station that

distributed the free tickets and sponsored the event, and was

told that no one had been authorized to sell tickets for a profit.

He then spoke with three witnesses who had bought tickets

from Rosenbaum. He called for back up and approached

Rosenbaum. Rosenbaum first denied and then admitted to

selling the tickets. Forbus placed him under arrest.

Rosenbaum’s two children were escorted to their mother,

who was in a parked vehicle a short distance away. Forbus—

and perhaps other officers—told them that what their father

had done “was wrong,” that “you know what your father did

was wrong,” and that their father was going to jail for what

he had done.

Rosenbaum was booked on felony charges for abuse,

neglect, or endangerment of a child and for obtaining money

by false pretenses, as well as on a misdemeanor charge for

obtaining money under false pretenses. He was released on

bail the following day. The Washoe County District Attor-

ney’s Office would later charge Rosenbaum only with one

11386 ROSENBAUM v. WASHOE COUNTY

felony count of obtaining money by false pretenses and then

drop the charge.

This lawsuit was filed on August 1, 2008. The Rosen-

baums’ complaint asserts nine causes of action: (1) False

Arrest, Unlawful Detention, False Imprisonment and Mali-

cious Prosecution Pursuant to the Fourteenth Amendment and

42 U.S.C. § 1983; (2) Violation of Substantive and Procedural

Due Process Right to Familial Integrity, and of Liberty Inter-

est to Rear Children Without Unreasonable Government

Interference; (3) Libel (based on a August 26, 2006, press

release requesting information about Rosenbaum and the sale

of the tickets); (4) Libel (based on a August 31, 2006 press

release); (5) Assault; (5) Battery; (6) Intentional Infliction of

Emotional Distress; (7) Negligent Infliction of Emotional Dis-

tress; (8) False Arrest; and (9) False Imprisonment. They seek

damages in an amount in excess of $10,000 on each of these

causes of action.

The County defendants moved for summary judgment on

July 10, 2009. The district court granted summary judgment

on the grounds of qualified immunity in an unpublished deci-

sion on February 25, 2010. Rosenbaum v. Washoe County,

No. 08-418, 2010 WL 745451 (D. Nev. Feb. 25, 2010). Hav-

ing dismissed the federal claims, the district court declined to

exercise jurisdiction over the pendent state claims. Id. at *8.

The Rosenbaums appealed to this court on March 23, 2010.

STANDARD OF REVIEW

This court reviews a district court’s ruling on summary

judgment on the grounds of qualified immunity de novo.

McSherry v. City of Long Beach, 584 F.3d 1129, 1134 (9th

Cir. 2009), cert. denied, 131 S. Ct. 79 (2010). Summary judg-

ment will be granted—or affirmed—where “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

ROSENBAUM v. WASHOE COUNTY 11387

party is entitled to a judgment as a matter of law.” Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986) (internal quotation

marks and citation omitted); Fed. R. Civ. P. 56. In making

this determination, we will consider all of the facts in the light

most favorable to Rosenbaum. See Scott v. Harris, 550 U.S.

372, 378 (2007).

DISCUSSION

[1] The court applies a two-prong analysis to determine

whether officials are entitled to qualified immunity: (1)

whether the facts alleged show that the officer violated a con-

stitutional right; and (2) if so, whether that right was clearly

established at the time of the event. See Ashcroft v. al-Kidd,

131 S. Ct. 2074, 2080 (2011). These two questions may be

considered in either order. Pearson v. Callahan, 555 U.S.

223, 236 (2009). The linchpin of qualified immunity is the

reasonableness of the official’s conduct. Anderson v. Creigh-

ton, 483 U.S. 635, 638-39 (1987) (“[W]hether an official pro-

tected by qualified immunity may be held personally liable

for an allegedly unlawful official action generally turns on the

objective legal reasonableness of the action, assessed in light

of the legal rules that were clearly established at the time it

was taken.” (emphasis added) (internal quotation marks and

citations omitted)).

In this case, the Rosenbaums allege that the officials vio-

lated two constitutional rights: the right to be free from

unlawful arrest and the substantive due process right to family

integrity. We will consider each in turn, addressing first

whether the right was violated and then whether the law was

clearly established such that the official would have been on

notice that his conduct was unlawful.

I. Unlawful Arrest

[2] It is well established that “an arrest without probable

cause violates the Fourth Amendment and gives rise to a

11388 ROSENBAUM v. WASHOE COUNTY

claim for damages under § 1983.” Borunda v. Richmond, 885

F.2d 1384, 1391 (9th Cir. 1988). An officer who makes an

arrest without probable cause, however, may still be entitled

to qualified immunity if he reasonably believed there to have

been probable cause. See Ramirez v. City of Buena Park, 560

F.3d 1012, 1024 (9th Cir. 2009).

In the context of an unlawful arrest, then, the two prongs

of the qualified immunity analysis can be summarized as: (1)

whether there was probable cause for the arrest; and (2)

whether it is reasonably arguable that there was probable

cause for arrest—that is, whether reasonable officers could

disagree as to the legality of the arrest such that the arresting

officer is entitled to qualified immunity. Jenkins v. City of

New York, 478 F.3d 76, 87 (2d Cir. 2007) (noting that an offi-

cer will not be entitled to qualified immunity “if officers of

reasonable competence would have to agree that the informa-

tion possessed by the officer at the time of arrest did not add

up to probable cause”).1 We will consider each question in

turn.

A. Probable Cause

[3] An officer has probable cause to make a warrantless

arrest when the facts and circumstances within his knowledge

are sufficient for a reasonably prudent person to believe that

the suspect has committed a crime. Crowe v. County of San

Diego, 608 F.3d 406, 432 (9th Cir. 2010), cert. denied, 131

S. Ct. 905, 907 (2011). The analysis involves both facts and

1

To be sure, the application of the qualified immunity doctrine varies

with the nature of the right. Some constitutional rights are stated in rela-

tively specific rules. Some, like the Fourth Amendment’s prohibition

against unreasonable searches and seizures, are not. Allowance for reason-

able error is already built into the underlying constitutional standard in the

first instance—before a qualified immunity analysis. As such, as one

scholar described it, qualified immunity is cast in terms of whether there

was “reasonably unreasonable” behavior. See John C. Jeffries, What’s

Wrong with Qualified Immunity, 62 Fla. L. Rev. 851, 860 (2010).

ROSENBAUM v. WASHOE COUNTY 11389

law. The facts are those that were known to the officer at the

time of the arrest. The law is the criminal statute to which

those facts apply.

[4] This case raises the question of which criminal statute

should be considered in the probable cause analysis. The dis-

trict court cited Devenpeck for the proposition that there will

be probable cause so long as the facts known to the officer

give rise to probable cause “for any criminal offense.” Rosen-

baum, 2010 WL 745451, at *3 (emphasis added) (citing

Devenpeck v. Alford, 543 U.S. 146, 153-55 (2004)). The dis-

trict court then analyzed probable cause under three criminal

statutes, including one that was found after the defendant was

released (and perhaps after this suit was brought), and with

which neither Rosenbaum, nor apparently anyone in the stat-

ute’s history, was ever charged. Rosenbaum, 2010 WL

745451, at *4-5. The district court ultimately found no proba-

ble cause. Id. at *5.

While we do not agree with the district court that the

Nevada criminal statute “collecting for benefit without

authority” should be considered in evaluating probable cause

in this case, we do agree that the facts do not support probable

cause for any crime—even under that statute. We first address

Devenpeck and then turn to each of the offenses offered by

the defendants to justify the arrest.

1. Limits of Devenpeck

[5] Devenpeck permits retrospective analysis of probable

cause. 543 U.S. 153. The Court held that the crime for which

there was probable cause need not be the one that the officer

stated at the time of the arrest. Id. at 154-55. Indeed, accord-

ing to Devenpeck, the offense on which the post hoc analysis

is based need not even be closely related to the crime stated

by the officer at the time of the arrest or charging. Id. at

153-55. It is perfectly permissible for an officer or district

11390 ROSENBAUM v. WASHOE COUNTY

attorney to later determine the appropriate statute under which

to charge a defendant.

This case, however, raises a question that Devenpeck did

not address: While a retrospective analysis of probable cause

is appropriate, can an arrest without a warrant be justified

after the fact with any statute—even one that is so remote and

obscure as to not be within any reasonable officer’s arsenal of

criminal offenses? The district court did not ask or address

this question.

The concern in Devenpeck was that the constitutionality of

an arrest should not depend on the experience of the arresting

officer. “The rule that the offense establishing probable cause

must be ‘closely related’ to, and based on the same conduct

as, the offense identified by the arresting officer at the time

of arrest,” the Court explained, would render the constitution-

ality of arrests subject to the experience of the arresting offi-

cer. Id. at 153-54. “An arrest made by a knowledgeable,

veteran officer would be valid, whereas an arrest made by a

rookie in precisely the same circumstances would not.” Id. at

154. But here it is likely that no reasonable officer, no matter

how experienced, would have known of § 205.415, “collect-

ing for benefit without authority.” There is no evidence that

anyone has ever been charged with this crime in Nevada.

Indeed, even in this case, once the officials had discovered the

crime, Rosenbaum was never charged or prosecuted with it.

[6] It cannot be that probable cause for a warrantless arrest

exists so long as the facts may arguably give rise to probable

cause under any criminal statute on the books—even if the

crime is buried deep in a dust-covered tomb and never

charged or prosecuted. If it were so, officers could arrest with-

out a warrant under virtually any set of facts and later search

the legal archives for a statute that might arguably justify it.

Such an approach would be inconsistent with the Fourth

Amendment’s fundamental requirement that searches be cab-

ined by the requirement of reasonableness.

ROSENBAUM v. WASHOE COUNTY 11391

[7] To be clear, our holding is narrow: while the crime for

which there is probable cause need not be related to the crime

for which an individual is arrested without a warrant, the

crime must be reasonably within the arsenal of crimes that

officers enforce in the state.2

2. No probable cause for any offense

In any event, in this case, the district court held—and we

agree—that the facts known to Forbus did not give rise to

probable cause for any offense, even the offense of “collect-

ing for benefit without authority.” When Forbus arrested

Rosenbaum, he knew the following facts: Forbus had received

a complaint by State Fair personnel that an individual was

attempting to sell free promotional tickets to the fair. He had

spoken with KOZZ, the radio station that distributed the free

tickets and sponsored the event, and was told that no one had

been authorized to sell the tickets for a profit. Forbus saw

Rosenbaum standing with his children, wearing a t-shirt with

the KOZZ logo. Forbus spoke with three witnesses who con-

firmed that they had purchased tickets for $5 each. When he

approached and spoke with Rosenbaum, Rosenbaum first

denied but then admitted to having sold tickets.

2

We do not imply that no one may be arrested for “collecting for benefit

without authority” under any circumstances. Indeed, this case may well

have surfaced the offense for future officers. The linchpin of the analysis

is reasonableness: if one would have to delve into the depths of the library,

after the fact, to find a statute that may possibly apply to the facts, then

an officer is not entitled to make the arrest without a warrant.

Such a requirement poses no burden on public safety. It arises in the rar-

est of circumstances, when little known, or unenforced offenses are used

to justify an arrest post hoc. For example, in Michigan, it is a misdemea-

nor offense to blaspheme the name of God. Mich. Comp. Laws § 750.102.

That this offense still exists on the books does not mean that an officer can

arrest a man who has otherwise committed no crime and then claim that

there was probable cause because he thought he heard the suspect say,

“Oh, God.”

11392 ROSENBAUM v. WASHOE COUNTY

[8] The County defendants acknowledged that there was

no probable cause for abuse, neglect or endangerment of a

child. They proposed that there was probable cause for two

offenses: “obtaining money by false pretenses” in violation of

Nev. Rev. Stat. § 205.380 (2005) (now codified at Nev. Stat.

§ 205.380 (2011)); and “collecting for benefit without author-

ity” in violation of § 205.415 (2005) (now codified at Nev.

Stat. § 205.415 (2011)).

a. Obtaining money by false pretenses

[9] Section 205.380, obtaining money by false pretenses,

provides:

A person who knowingly and designedly by any

false pretense obtains from any other person . . .

money . . . with the intent to cheat or defraud the

other person, is a cheat, and, unless otherwise pre-

scribed by law, shall be punished[.]

The elements of this crime are: the intent to defraud, a false

representation, reliance on that representation, and that the

victim is defrauded. Barron v. State, 783 P.2d 444, 449 (Nev.

1989). In this case, however, there was no evidence to suggest

that Rosenbaum intended to defraud his customers or that he

was misrepresenting himself. He was openly selling promo-

tional tickets, that he had received for free, for a price of $5.

His customers received exactly what they paid for; they were

not victims of fraud. This is not a case, for example, where

someone was selling counterfeit or fake tickets. The district

court held, supported by the record, that these facts do not

give rise to probable cause for obtaining money under false

pretenses.

b. Collecting for benefit without authority

Section 205.415, “collecting for benefit without authority,”

provides:

ROSENBAUM v. WASHOE COUNTY 11393

A person who sells one or more tickets to any ball,

benefit or entertainment, or asks or receives any sub-

scription or promise thereof, for the benefit or pre-

tended benefit of any person, association or order,

without being authorized thereto by the person, asso-

ciation or order for whose benefit or pretended bene-

fit it is done, shall be punished[.]

The County defendants argue that Rosenbaum appeared to be

holding himself out as a representative of KOZZ because he

was wearing their t-shirt. He appeared, they argue, to be sell-

ing tickets for the benefit of KOZZ. And because he was

unauthorized to do so, he appeared to be violating this statute.

This interpretation assumes that the statute makes it a crime

to sell tickets for the pretended benefit of another.

[10] The district court, however, interpreted the statute dif-

ferently. The district court reasoned—and we agree—that the

purpose of the offense is to protect charities from fraud.

Rosenbaum, 2010 WL 745451, at *5. The district court noted

that there is no published authority, state or federal, that con-

strues the provision, nor is there any legislative history that

clarifies its terms. Id. As such, the district court was obliged

to predict how the Nevada Supreme Court would have inter-

preted the statute. Id. The district court emphasized the provi-

sion’s title, “Collecting for benefit without authority,” and

found that a common-sense reading suggests that the provi-

sion makes it a crime to sell tickets to a charity event (ball,

concert, or entertainment) without authorization. Id. The

phrase “for the benefit or pretended benefit of any person”

modifies “any ball, benefit or entertainment” instead of modi-

fying the word “tickets.” In other words, it is a crime to sell

tickets without authorization to an event that benefits another

rather than to sell tickets without authorization for the benefit

of another. Id. As such, the facts known to Forbus at the time

of the arrest did not give rise to probable cause for “collecting

for benefit without authority” because the fair was not a char-

ity event. Id.

11394 ROSENBAUM v. WASHOE COUNTY

[11] We agree with the district court and conclude that

there was no probable cause to arrest Rosenbaum, and his

constitutional right to be free from unlawful arrest was vio-

lated.

B. Reasonable Belief of Probable Cause

[12] Even if the arrest was made without a warrant and

without probable cause, however, the officer may still be

immune from suit if it was objectively reasonable for him to

believe that he had probable cause. Ramirez, 560 F.3d at

1024. The linchpin of the qualified immunity analysis is the

reasonableness of the officer’s conduct in the particular case

at hand. Anderson, 483 U.S. at 638. The law acknowledges

that an otherwise competent officer will sometimes make an

unreasonable decision or make an unreasonable mistake as to

law or fact. In those instances, the officer will appropriately

be liable under § 1983. See Liberal v. Estrada, 632 F.3d 1064,

1078 (9th Cir. 2011) (denying qualified immunity because the

officer’s mistake of fact was unreasonable).

Framing the reasonableness question somewhat differently,

the question in determining whether qualified immunity

applies is whether all officers would agree that there was no

probable cause in this instance. See Ashcroft, 131 S. Ct. at

2083 (holding that an official is not entitled to qualified

immunity where “every reasonable official” would have

understood that he was violating a clearly established right

(emphasis added) (internal quotation marks and citation omit-

ted)).3

3

The Court uses the language “all reasonable officers” or “every reason-

able officer” to explain that it must be clear that the conduct is unlawful;

qualified immunity will attach whenever reasonable officers could dis-

agree about whether the facts in the particular case give rise to probable

cause. The law does not imply, however, that police officers are the ulti-

mate arbiters of constitutional questions. The lawfulness of their conduct

does not turn on whether all, or most, officers think that the law is clearly

ROSENBAUM v. WASHOE COUNTY 11395

[13] In this case, Forbus does not allege that he made any

mistake of fact that would have led to probable cause. Nor

does he allege that he misunderstood the law at the time of the

arrest. Rather, the district court granted qualified immunity to

Forbus on the grounds that a later-discovered statute, that

could arguably apply to the facts of this case, is ambiguous.

Rosenbaum, 2010 WL 745451, at *6.

To be sure, the law must be clearly established such that it

would “be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier v. Katz, 533

U.S. 194, 202 (2001), overruled on other grounds by Pearson,

555 U.S. 223; see also Ramirez, 560 F.3d at 1024. The pur-

pose of qualified immunity is to ensure that officers are given

fair notice of the law that they are required to uphold. Ander-

son, 483 U.S. at 640.

The lack of clarity of a law of which no reasonable officer

would have known, however, is irrelevant to this analysis.

This is not a case where courts disagree about the contours of

a constitutional right or where officers may be confused about

what is required of them under various circumstances. Here,

the law that the district court chose to analyze is one that has

apparently never been enforced—even in this particular case.

Qualified immunity for an unlawful arrest should not arise

because some enterprising official after the fact searched the

bowels of a library to find a little known or entirely unknown

old statute that may apply to the facts.4 Such a holding would

established. For example, if the Supreme Court has issued an opinion con-

demning racial profiling, but 90 percent of the police in a given geo-

graphic area think racial profiling is just fine, an officer would not be

entitled to qualified immunity simply because his fellow officers disagree

with a clear Supreme Court ruling.

4

We view the facts in the light most favorable to Rosenbaum for pur-

poses of determining qualified immunity at summary judgment. If there

exists a genuine dispute as to the material fact of whether a reasonably

11396 ROSENBAUM v. WASHOE COUNTY

defy the principle of reasonableness upon which qualified

immunity is based. See id. at 638.

[14] Here, considering the facts in the light most favorable

to Rosenbaum, all reasonably competent officers would have

agreed that he was not committing a crime. There is no scalp-

ing law in Nevada; it is simply not a crime to sell tickets to

a fair—even when the tickets were received for free. His t-

shirt did not suggest fraud, nor were the ticket buyers duped

by the sale.

[15] The district court’s grant of summary judgment on the

grounds of qualified immunity for an unlawful arrest is

reversed.

II. Substantive Due Process Right to Family Integrity

Next, Rosenbaum and his children argue that Forbus vio-

lated their substantive due process right to family integrity

when he handcuffed Rosenbaum in front of his children,

escorted the children to their mother, asked them whether

Rosenbaum had been selling tickets and whether they knew

what he was doing was wrong, and told them that it “was

wrong” and that he was going to jail for it. The question is

whether these facts—taken in the light most favorable to the

Rosenbaums—rise to the level of a constitutional violation.

[16] The substantive due process right to family integrity

or to familial association is well established. A parent has a

competent Nevada officer would have been aware of § 205.415

(“collecting for benefit without authority”), the dispute should be pre-

sented to and resolved by the fact-finder at trial. The district court may

then decide qualified immunity based on the judicially determined facts.

See Norse v. City of Santa Cruz, 629 F.3d 966, 978 (9th Cir. 2010) (en

banc) (“[T]he district court may entertain a post-trial motion for judgment

as a matter of law on the issue of qualified immunity after the facts are

resolved at trial.”).

ROSENBAUM v. WASHOE COUNTY 11397

“fundamental liberty interest” in companionship with his or

her child. Kelson v. City of Springfield, 767 F.2d 651, 654-55

(9th Cir. 1985). A state may not interfere with this liberty

interest, and indeed the violation of the right to family integ-

rity is subject to remedy under § 1983. Id. To amount to a vio-

lation of substantive due process, however, the harmful

conduct must “shock[ ] the conscience” or “offend the com-

munity’s sense of fair play and decency.” Rochin v. Califor-

nia, 342 U.S. 165, 172-73 (1952); see also Pittsley v. Warish,

927 F.2d 3 (1st Cir. 1991) (abrogated on other grounds). For

example, we have held that a plaintiff stated a claim under

§ 1983 for a violation of the right to family integrity where

her mentally disabled son was mistaken for another person,

falsely arrested, caused to be extradited to New York from

California, and imprisoned; the police department misin-

formed her of his whereabouts on several occasions until he

was finally released two years later. Lee v. City of Los Ange-

les, 250 F.3d 668, 685-86 (9th Cir. 2001). In Kelson, we held

that parents had stated a cause of action for a violation of their

right to companionship and society of a child where their

teenage son had committed suicide at school. Kelson, 767

F.2d at 653-55.

[17] The facts of the case before us do not come close to

rising to the level of conduct that “shocks the conscience.”

Unlike Lee or Kelson, Rosenbaum was not separated from his

children for any extended period of time; rather, the children

were walked across the street to their mother who was waiting

in their car. It is true that Forbus’s—and perhaps other

officers’—words to the children were inappropriate and even

offensive. The children’s father had not in fact done anything

“wrong” and Forbus likely exacerbated an already traumatic

experience for this four year old and eight year old. And yet

we do not hold that the inappropriate conduct amounts to a

constitutional violation.

We do not imply that verbal abuse—and even verbal abuse

to children in the midst of an arrest—would never rise to the

11398 ROSENBAUM v. WASHOE COUNTY

level of a constitutional violation. Rather, in this instance, the

officers’ conduct does not “shock the conscience.”

Because we conclude that the Rosenbaums’ right to family

integrity was not violated, we need not reach the question of

whether Forbus is entitled to qualified immunity for the viola-

tion of the right to family integrity.

CONCLUSION

For the foregoing reasons, the district court’s decision

granting summary judgment to the defendants is reversed on

the unlawful arrest claim and affirmed on the right to family

integrity claim. The case is remanded to the district court for

proceedings consistent with this opinion. Each party to bear

his or her own costs.