Jamie Kirkpatrick v. County of Washoe

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMIE KIRKPATRICK, individually, No. 12-15080

and as the natural father and legal

guardian of B.W., a minor, D.C. No.

Plaintiff-Appellant, 3:09-cv-00600-

ECR-VPC

v.

COUNTY OF WASHOE; AMY OPINION

REYNOLDS, WCDSS social worker;

ELLEN WILCOX, WCDSS social

worker; LINDA KENNEDY, WCDSS

social worker,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Nevada

Edward C. Reed, Jr., Senior District Judge, Presiding

Argued and Submitted

January 28, 2014—University of Nevada, Las Vegas

Filed July 10, 2015

Before: Stephen Reinhardt, Alex Kozinski,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee;

Partial Dissent by Judge Kozinski

2 KIRKPATRICK V. COUNTY OF WASHOE

SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the

district court’s summary judgment in favor of defendants and

remanded in a 42 U.S.C. § 1983 action against the County of

Washoe and three social workers alleging violations of the

Fourth and Fourteenth Amendment when defendants took

plaintiff’s biological daughter, B.W., into protective custody

when she was two days old and placed her with a foster

parent without obtaining prior judicial authorization.

The panel affirmed the district court’s summary judgment

in favor of all of the defendants on the Fourteenth

Amendment claim alleged by plaintiff on his own behalf.

The panel held that plaintiff did not have a constitutionally

recognized liberty interest in his relationship with B.W. when

she was taken into custody because his paternity was not yet

established.

The panel reversed the district court’s summary judgment

in favor of two social workers and Washoe County on the

claim that they violated B.W.’s Fourth Amendment right to

be free from unreasonable seizures. The panel concluded that

the district court erred in deciding that the complaint did not

provide adequate notice that B.W. asserted a Fourth

Amendment claim on her own behalf. The panel further

concluded that the social workers seized B.W. without

obtaining a warrant under circumstances where a reasonable

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

KIRKPATRICK V. COUNTY OF WASHOE 3

juror might find that a reasonable social worker could not

have determined that the child was in imminent danger of

serious bodily injury. The panel determined that the social

workers were not entitled to qualified immunity on B.W.’s

Fourth Amendment claim.

The panel held that the evidence presented at least an

inference of an unconstitutional, unofficial custom in Washoe

County of taking custody of children under non-exigent

circumstances, without obtaining prior judicial authorization.

The County therefore was not entitled to summary judgment.

The panel remanded for further proceedings on the Fourth

Amendment claim filed on behalf of B.W. against these three

defendants.

The panel affirmed the district court’s summary judgment

in favor of social worker Amy Reynolds with respect to all

claims because the plaintiffs had not alleged any facts

suggesting that she was involved with the decision to take

custody of B.W.

Dissenting in part, Judge Kozinski stated that the majority

ignored the Supreme Court’s clear admonition that qualified

immunity protects all but the plainly incompetent or those

who knowingly violate the law. Judge Kozinski stated that

the majority imposed personal liability on two child

protective service workers whose actions were anything but

malicious or incompetent.

4 KIRKPATRICK V. COUNTY OF WASHOE

COUNSEL

David J. Beauvais (argued), Oakland, California; William R.

Kendall, Reno, Nevada; Jeffrey Friedman, Reno, Nevada, for

Plaintiffs-Appellants.

Brian M. Brown (argued) and Kevin A. Pick, Thorndal,

Armstrong, Delk, Balkenbush & Eisinger, Reno Nevada, for

Defendants-Appellees Amy Reynolds, Ellen Wilcox, and

Linda Kennedy.

Herbert B. Kaplan (argued), Deputy District Attorney;

Richard Gammick, District Attorney, Reno, Nevada, for

Defendant-Appellee Washoe County.

OPINION

BYBEE, Circuit Judge:

“Government officials are required to obtain prior judicial

authorization before intruding on a parent’s custody of her

child unless they possess information at the time of the

seizure that establishes ‘reasonable cause to believe that the

child is in imminent danger of serious bodily injury and that

the scope of the intrusion is reasonably necessary to avert that

specific injury.’” Mabe v. San Bernardino Cnty., Dep’t of

Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir. 2001)

(quoting Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir.

1999)). The Washoe County Department of Social Services

(WCDSS) took B.W. into protective custody when she was

two-days old and placed her with a foster parent without

obtaining prior judicial authorization. B.W.’s biological

father, Jamie Kirkpatrick, filed this 42 U.S.C. § 1983 action

KIRKPATRICK V. COUNTY OF WASHOE 5

against the County and three of its social workers, alleging

violations of the Fourth and Fourteenth Amendments. The

district court granted summary judgment in favor of all of the

defendants. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo the district court’s order granting

summary judgment. Oswalt v. Resolute Indus., Inc., 642 F.3d

856, 859 (9th Cir. 2011).

We affirm in part and reverse in part the district court’s

grant of summary judgment and remand for further

proceedings.

I

A. The County Takes Custody of B.W.

On July 15, 2008, Rachel Whitworth gave birth to her

daughter B.W. at a hospital in Reno, Nevada. Whitworth

admitted that she used methamphetamine throughout her

pregnancy, including as recently as two days earlier. B.W.

tested positive for methamphetamine at birth. When

Whitworth informed hospital staff that her two other children

were in the custody of the WCDSS, the hospital contacted

Chondra Ithurralde, the WCDSS social worker managing the

open case.

The next day, Ithurralde visited the hospital with WCDSS

social worker Ellen Wilcox. Ithurralde notified the hospital

that Whitworth was an active methamphetamine user who

lacked stable housing and the supplies necessary to care for

an infant and that the Department planned to terminate her

parental rights vis-à-vis her two other children. Wilcox

interviewed Whitworth, who again acknowledged that she

was a methamphetamine user who did not have the means to

6 KIRKPATRICK V. COUNTY OF WASHOE

provide for B.W. In light of this information, Wilcox

requested that the hospital place a “hold” on B.W. to prevent

her from being discharged. The hospital typically honors the

Department’s hold request as a courtesy, but it is not a court

order. The hold did not prevent Whitworth from interacting

with B.W. while they were in the hospital together. The

hospital’s notes state that B.W. remained in the room with

Whitworth, who failed to feed the infant on schedule and

keep her dry. Meanwhile, Wilcox conferred with her

supervisor Linda Kennedy, who authorized Wilcox to take

custody of B.W. when the hospital released the infant.

Wilcox informed Whitworth that she had placed a hold on the

child and that a protective custody hearing would be

scheduled.

On July 17, 2008, the hospital discharged two-day-old

B.W. into the custody of the WCDSS. The Department

arranged for B.W. to stay with the foster parent who was

caring for Whitworth’s other children. The WCDSS had not

requested judicial authorization before taking custody of

B.W.

The family division of Nevada’s Second Judicial District

Court held a protective custody hearing the next day, with

Whitworth participating by phone from the hospital. The

court determined that B.W. should remain in protective

custody due to Whitworth’s ongoing drug use, her lack of

stable housing and employment, her inability to provide for

the child, and the fact that Whitworth’s other children were

already in foster care.

KIRKPATRICK V. COUNTY OF WASHOE 7

B. Kirkpatrick’s Involvement

Jamie Kirkpatrick, B.W.’s biological father, was present

at the hospital when Whitworth gave birth to B.W. While

Whitworth was pregnant, she notified Kirkpatrick that he

might be the father, though she also told him that there were

other potential candidates. Kirkpatrick spoke with Whitworth

a couple of times during her pregnancy, but he did not

participate in providing any type of prenatal care. He

acknowledged that he did not know whether he was B.W.’s

biological father at the time of her birth.

Kirkpatrick first learned of the Department’s involvement

soon after it took custody of the child on July 17, 2008. He

left his contact information with Whitworth so that the

Department could schedule a paternity test to determine

whether he was B.W.’s biological father. Kirkpatrick did not

attend the protective custody hearing the next day, but the

court ordered a paternity test at his request. The test revealed

that Kirkpatrick is indeed B.W.’s biological father.

On July 28, 2008, the WCDSS filed a petition alleging

that B.W. was a child in need of protection. The court held

hearings on August 25, 2008, and September 15, 2008.

Neither Whitworth nor Kirkpatrick attended despite being

served with notice. Kirkpatrick visited B.W. twice before

January 2009, when he attended a six-month permanency

hearing and expressed interest in reunifying with his

daughter. He returned to Reno—where B.W. lived with her

foster family—and began visiting his child more frequently.

In October 2009, Kirkpatrick initiated this § 1983 action

against Washoe County, Amy Reynolds, Ellen Wilcox, and

Linda Kennedy. Following discovery, the parties filed cross-

8 KIRKPATRICK V. COUNTY OF WASHOE

motions for summary judgment. The district court denied

Kirkpatrick’s motion for summary judgment and granted

summary judgment in favor of Washoe County and the three

individual defendants. Kirkpatrick timely appealed.

II

The state’s decision to take custody of a child implicates

the constitutional rights of the parent and the child under the

Fourteenth and Fourth Amendments, respectively. “Parents

and children have a well-elaborated constitutional right to

live together without governmental interference. That right

is an essential liberty interest protected by the Fourteenth

Amendment’s guarantee that parents and children will not be

separated by the state without due process of law except in an

emergency.” Wallis, 202 F.3d at 1136 (internal citations

omitted). “The claims of the parents in this regard should

properly be assessed under the Fourteenth Amendment

standard for interference with the right to family association.”

Id. at 1137 n.8. But “[b]ecause only the children [a]re

subjected to a seizure, their claims should properly be

assessed under the Fourth Amendment.” Id. Parents cannot

assert that the seizure of their child violated their own Fourth

Amendment rights. Mabe, 237 F.3d at 1111 (“[The parent]

has no standing to claim a violation of [the child’s] Fourth

Amendment rights.”).

We evaluate the claims of children who are taken into

state custody under the Fourth Amendment right to be free

from unreasonable seizures rather than the Fourteenth

Amendment right to familial association “[b]ecause [when]

the Fourth Amendment provides an explicit textual source of

constitutional protection against this sort of physically

intrusive governmental conduct, that Amendment, not the

KIRKPATRICK V. COUNTY OF WASHOE 9

more generalized notion of ‘substantive due process,’ must be

the guide.” Graham v. Connor, 490 U.S. 386, 395 (1989);

see also Southerland v. City of New York, 680 F.3d 127, 143

(2d Cir. 2011) (“For child removal claims brought by the

child, we have concluded that the Constitution provides an

alternative, more specific source of protection than

substantive due process. When a child is taken into state

custody, his or her person is ‘seized’ for Fourth Amendment

purposes. The child may therefore assert a claim under the

Fourth Amendment that the seizure of his or her person was

‘unreasonable.’”); Hernandez ex rel. Hernandez v. Foster,

657 F.3d 463, 474 (7th Cir. 2011) (“[S]ubstantive due process

may not be called upon when a specific constitutional

provision (here, the Fourth Amendment) protects the right

allegedly infringed upon. . . . [The child’s] claim arising

from his initial removal is properly analyzed under the Fourth

Amendment because it is premised on his seizure and does

not coincide with sufficiently separate conduct involving his

relationship with his parents.” (first alteration in original)

(internal quotation marks and citations omitted)).

III

A. Kirkpatrick’s Fourteenth Amendment Claim

We first consider whether the district court correctly

granted the defendants’ motion for summary judgment on

Kirkpatrick’s claim that the County and its agents violated his

Fourteenth Amendment right not to be separated from B.W.

without due process under non-exigent circumstances. See

Mabe, 237 F.3d at 1106; Wallis, 202 F.3d at 1136. We affirm

the district court’s summary judgment in favor of all of the

defendants on Kirkpatrick’s claim because the facts alleged,

construed in the light most favorable to Kirkpatrick, do not

10 KIRKPATRICK V. COUNTY OF WASHOE

show that the defendants violated his constitutional rights.

See Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If no

constitutional right would have been violated were the

allegations established, there is no necessity for further

inquiries.”).

Kirkpatrick did not have a constitutionally recognized

liberty interest in his relationship with B.W. when she was

taken into custody on July 17, 2008, because he was not yet

a “parent” to B.W. At the time, no one was confident about

whether Kirkpatrick was B.W.’s biological father.

Kirkpatrick acknowledged that he “did not know” whether he

was the father and that there were “possibly other

candidates.” Rachel Whitworth had informed Kirkpatrick

that B.W. might be his child, but that there was “a possibility

it could be someone else’s as well.” The test that eventually

established Kirkpatrick’s paternity was not administered until

four days after B.W. was taken into custody.

We have recognized that the constitutional interest in a

biological parent’s relationship with his child persists even

when that relationship is, as a practical matter, quite

attenuated. See Burke v. Cnty. of Alameda, 586 F.3d 725, 733

(9th Cir. 2009) (holding that a biological father had a liberty

interest in his relationship with his daughter even though the

child’s mother had sole physical custody of the child);

Brittain v. Hansen, 451 F.3d 982, 992 (9th Cir. 2006)

(holding that “non-custodial parents with court-ordered

visitation rights have a liberty interest in the companionship,

care, custody, and management of their children”). But

Kirkpatrick did not take any steps to confirm that he was

B.W.’s biological father before the WCDSS took custody of

B.W., such as requesting a paternity test before she was born

or during her two days in the hospital, or attempting to

KIRKPATRICK V. COUNTY OF WASHOE 11

execute a voluntary acknowledgment of paternity declaration.

See Nev. Rev. Stat. § 126.053 (providing that a voluntary

acknowledgment of paternity declaration is “deemed to have

the same effect as a judgment or order of a court determining

the existence of the relationship of parent and child if the

declaration is signed . . . by the mother and father of the

child”). Of course Kirkpatrick was not obligated to attempt

to confirm his paternity, but he cannot claim the

constitutional entitlements that have been allocated to

biological parents when he did not seek to establish that he

was B.W.’s father.

On these facts, we conclude that Kirkpatrick lacked a

cognizable liberty interest in his relationship with B.W.

Because Kirkpatrick cannot prove a violation of his

constitutional rights, the district court properly granted

summary judgment in favor of all of the defendants on the

claim asserted by Kirkpatrick on his own behalf.

B. B.W.’s Fourth Amendment Claim

We next consider whether the defendants violated B.W.’s

Fourth Amendment right to be free from unreasonable

seizures when she was taken into custody by the WCDSS.

1. Adequate notice

The district court granted summary judgment in favor of

the defendants because it concluded that the operative

complaint—which is styled the second amended complaint—

does not assert a cause of action on behalf of B.W. The court

noted that the complaint repeatedly refers to the “Plaintiff” in

the singular, including in the caption. Only once, the district

court observed, does the complaint allege that “[B.W.’s]

12 KIRKPATRICK V. COUNTY OF WASHOE

constitutional right to be with her parents was violated.” The

court reasoned that the complaint fails to articulate a claim on

behalf of B.W. because “[r]ead in the context of the entire

complaint, this one sentence does not provide notice that

B.W. is a plaintiff to this case or that [Kirkpatrick] is

asserting a cause of action on her behalf.” Furthermore, the

complaint’s sole reference to the Fourth Amendment is

located in a paragraph asserting that the defendants “acted

under color of state law to deprive Plaintiff . . . of

constitutionally protected rights, including . . . the right to be

free from unreasonable searches and seizures.” The district

court inferred that the singular “Plaintiff” refers to

Kirkpatrick, not B.W., and, under these circumstances, a

parent cannot claim relief on the grounds that the state

violated his own Fourth Amendment rights by seizing his

child. See Mabe, 237 F.3d at 1111.

The district court did not appear to disagree with the

premise that a parent is authorized to assert causes of action

belonging to his minor child on behalf of the child. See Fed.

R. Civ. P. 17(c)(2) (“A minor or an incompetent person who

does not have a duly appointed representative may sue by a

next friend or by a guardian ad litem.”); Fed. R. Civ. P.

17(b)(3) (“Capacity to sue or be sued is determined . . . by the

law of the individual’s domicile.”); Nev. Rev. Stat. § 12.080

(“[T]he father or the mother, without preference to either,

may maintain an action for the injury of a minor child who

has not been emancipated, if the injury is caused by the

wrongful act or neglect of another.”). Instead, the court

determined that the complaint simply failed to “provide

notice to the Defendants or the Court that B.W. is also a

plaintiff in this case, or that Plaintiff is asserting a cause of

action on her behalf.” We respectfully disagree with the

district court’s reading of the complaint.

KIRKPATRICK V. COUNTY OF WASHOE 13

The operative complaint recites that “[B.W.’s]

constitutional right to be with her parents was violated. This

also resulted in the violation of Plaintiff’s constitutional right

to be with his daughter.” These sentences indicate that the

complaint alleges claims on behalf of both B.W. and

Kirkpatrick. A pleading need not repeat the same assertion

more than once to provide notice. We understand that the

defendants or the court might have been confused to

encounter this pair of claims given that the rest of the

complaint refers to a singular “Plaintiff.” But defendants can

resolve such ambiguities by filing a Rule 12(e) motion for a

more definite statement. See Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 514 (2002) (“If a pleading fails to specify the

allegations in a manner that provides sufficient notice, a

defendant can move for a more definite statement under Rule

12(e) before responding.”); see also Crawford-El v. Britton,

523 U.S. 574, 598 (1998) (encouraging district courts to

“grant the defendant’s motion for a more definite statement

under Rule 12(e)” where, as here, discovery in an action

against a public official would undermine “the substance of

the qualified immunity defense”). The district court may also

sua sponte request a more definite statement from the

plaintiffs, even if the defendants find the complaint

comprehensible. See Anderson v. Dist. Bd. of Trs. of Cent.

Fla. Cmty. Coll., 77 F.3d 364, 367 n.5 (11th Cir. 1996)

(“[T]he court, acting sua sponte, should have struck the

plaintiff’s complaint, and the defendants’ answer, and

instructed plaintiff’s counsel to file a more definite

statement.”).

The district court correctly observed that the complaint

never expressly states that B.W. asserts that the defendants

violated her Fourth Amendment right to be free from

unreasonable seizures. When evaluating a complaint, we ask

14 KIRKPATRICK V. COUNTY OF WASHOE

whether the pleading gives the defendant fair notice of the

claim and includes sufficient “factual matter” to state a

plausible ground for relief. See Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555–56, 561–62 (2007). To be clear, the

question here is not whether the complaint “contain[s]

sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at

570). Rather, the question is whether the complaint gave

“notice of the claim such that the opposing party may defend

himself or herself effectively.” Starr v. Baca, 652 F.3d 1202,

1212 (9th Cir. 2011).1 “[U]nder the Federal Rules of Civil

Procedure, a complaint need not pin plaintiff’s claim for

relief to a precise legal theory. Rule 8(a)(2) of the Federal

Rules of Civil Procedure generally requires only a plausible

‘short and plain’ statement of the plaintiff’s claim, not an

exposition of his legal argument.” Skinner v. Switzer, 131 S.

Ct. 1289, 1296 (2011); see also Fontana v. Haskin, 262 F.3d

871, 877 (9th Cir. 2001) (“Specific legal theories need not be

pleaded so long as sufficient factual averments show that the

claimant may be entitled to some relief.”). The complaint is

therefore not inadequate merely because the assertion that

1

Although this case is not about pleading standards per se, in order to

review the district court’s summary judgment order we must decide

whether the complaint gave the defendants notice of the claims against

them, as if we were reviewing an order granting a motion to dismiss. We

have analyzed whether a complaint provides adequate notice through the

lens of Rule 8(a)(2) even when the question arises at the summary-

judgment stage. See Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963,

968 (9th Cir. 2006) (evaluating “whether [the] plaintiff’s complaint

complied with the notice pleading requirements of Fed. R. Civ. P. 8”

where the district court granted summary judgment on the basis that the

complaint failed to give the defendant “adequate notice” of particular

claims).

KIRKPATRICK V. COUNTY OF WASHOE 15

“[B.W.’s] constitutional right to be with her parents was

violated” is not coupled with a reference of the Fourth

Amendment. The complaint recites the relevant legal

standard by stating that the defendants took B.W. into

custody without a warrant when they “had no reasonable

cause to believe that [B.W.] was likely to experience serious

bodily harm in the time that would be required to obtain a

warrant.”

We need not speculate about whether the complaint

provided notice of the Fourth Amendment claim sufficient to

allow the defendants to defend against it because the

defendants themselves construed the complaint as asserting

a Fourth Amendment claim on behalf of B.W. In their motion

to dismiss, the defendants stated that “[w]hile the Second

Amended Complaint indicates the Plaintiff as ‘Jamie

Kirkpatrick, individually and as the natural father and legal

guardian of [B.W.], a minor’, it is believed that the action is

intended in pursuit of only causes of action on behalf of the

minor child.” In their motion for summary judgment, the

individual defendants correctly pointed out that “Mr.

Kirkpatrick can only assert a violation of [B.W.’s] Fourth

Amendment rights, as a representative, on behalf of his

daughter.” The individual defendants then devoted seven

pages to arguing that they were entitled to summary judgment

on the “Plaintiffs’ representative Fourth Amendment claim.”

We cannot agree with the district court’s assessment that “the

operative complaint . . . does not provide notice to the

Defendants or the Court that B.W. is also a plaintiff in this

case” when the entire litigation proceeded in accordance with

the defendants’ acknowledgment that B.W. is a plaintiff and

that Kirkpatrick is asserting a Fourth Amendment claim on

B.W.’s behalf.

16 KIRKPATRICK V. COUNTY OF WASHOE

We by no means require defendants to adopt overly broad

readings of ambiguous or incoherent complaints out of an

abundance of caution. The defendants could have moved to

dismiss the Fourth Amendment claim on the basis that the

complaint purports to assert the claim on behalf of

Kirkpatrick rather than assuming that it stated a facially valid

claim on behalf of B.W. Or, as we have already noted, either

the defendants or the court could have insisted on a more

definite statement at the pleading stage. If the plaintiffs

continued to assert a facially invalid claim after amending

their complaint in response to a motion to dismiss or a motion

for a more definite statement pointing out the defect in the

pleading, then the district court could have taken the

complaint at its word and dismissed the claim with prejudice.

But that is not what happened in this case. Instead, the court

raised the issue sua sponte for the first time at the summary-

judgment stage, even though the defendants actually

understood the claim, repeatedly addressed it on the merits,

and could have clarified it earlier in the litigation.

We conclude that the district court erred in deciding that

the complaint did not provide adequate notice that B.W.

asserted a Fourth Amendment claim on her own behalf. The

defendants are not entitled to summary judgment on this

basis.

2. Qualified immunity

Having determined that the operative complaint asserts a

violation of B.W.’s Fourth Amendment right to be free from

unreasonable seizures, we next address whether the individual

defendants are entitled to qualified immunity on B.W.’s

claim. See United States ex rel. Ali v. Daniel, Mann, Johnson

& Mendenhall, 355 F.3d 1140, 1144 (9th Cir. 2004) (“We

KIRKPATRICK V. COUNTY OF WASHOE 17

may affirm a grant of summary judgment on any ground

supported by the record, even if not relied upon by the district

court.”). “Qualified immunity shields federal and state

officials from money damages unless a plaintiff pleads facts

showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.” Ashcroft

v. al-Kidd, 131 S. Ct. 2074, 2080 (2011).

a. Constitutional right

“Government officials are required to obtain prior judicial

authorization before intruding on a parent’s custody of her

child unless they possess information at the time of the

seizure that establishes ‘reasonable cause to believe that the

child is in imminent danger of serious bodily injury and that

the scope of the intrusion is reasonably necessary to avert that

specific injury.’” Mabe, 237 F.3d at 1106 (quoting Wallis,

202 F.3d at 1138). There are thus two ways for a government

official to take custody of a child without transgressing the

Constitution. First, he can obtain prior judicial authorization.

Or, second, he can take custody of the child without a warrant

if he “possess[es] information at the time of the seizure that

establishes reasonable cause to believe that the child is in

imminent danger of serious bodily injury and that the scope

of the intrusion is reasonably necessary to avert that specific

injury.” Id. (internal quotation marks and citation omitted).

The defendants did not attempt to obtain judicial

authorization before taking custody of B.W. Ellen Wilcox—

who visited B.W. at the hospital and took her into the

Department’s custody—stated that neither she nor anyone

else from the WCDSS requested a warrant. Linda

Kennedy—who authorized the decision to take custody of

18 KIRKPATRICK V. COUNTY OF WASHOE

B.W. in her role as Wilcox’s supervisor—agreed that she

would not have requested a warrant under these

circumstances.

The decision to take custody of B.W. was therefore

permissible only if the defendants “possess[ed] information

at the time of the seizure that establishes reasonable cause to

believe that the child is in imminent danger of serious bodily

injury.” Id. (internal quotation marks and citation omitted).

“The existence of reasonable cause, and the related questions,

are all questions of fact to be determined by the jury.

Summary judgment in favor of the defendants is improper

unless, viewing the evidence in the light most favorable to the

plaintiffs, it is clear that no reasonable jury could conclude

that the plaintiffs’ constitutional rights were violated.”

Wallis, 202 F.3d at 1138 (internal citations omitted).

It is undisputed that B.W. remained in the hospital

between the social workers’ first visit on July 16, 2008, and

her discharge into the Department’s custody the next day.

Kennedy acknowledged that the WCDSS considered the

maternity floor of the hospital a “safe environment.” She

noted that a mother in Rachel’s position might unexpectedly

abscond with her child, but she also stated that the hospital

“generally cooperates” with the Department’s request that it

hold the child.

Importantly, “social workers[] who remove a child from

its home without a warrant must have reasonable cause to

believe that the child is likely to experience serious bodily

harm in the time that would be required to obtain a warrant.”

Rogers v. Cnty. of San Joaquin, 487 F.3d 1288, 1294 (9th Cir.

2007) (emphasis added); see also Doe v. Lebbos, 348 F.3d

820, 826 n.9 (9th Cir. 2003), overruled on other grounds by

KIRKPATRICK V. COUNTY OF WASHOE 19

Beltran v. Santa Clara Cnty., 514 F.3d 906, 909 (9th Cir.

2008) (en banc)); Wallis, 202 F.3d at 1137 n.8 (explaining

that the claims of children who are taken into custody without

a warrant under non-exigent circumstances “should properly

be assessed under the Fourth Amendment” because “the

children were subjected to a seizure”). In Rogers, we

concluded that a social worker did not have reasonable cause

to believe that the children at issue were in imminent danger

of serious bodily injury even though they showed symptoms

of neglect and would have remained in an unsanitary home

while the social worker obtained a warrant. Id. at 1295–96.

Here, B.W. would have very likely remained in the hospital,

under constant medical supervision, while the defendants

requested a warrant because the hospital was not planning on

releasing B.W. to her mother or anyone other than the

WCDSS. Viewing the facts in the light most favorable to the

plaintiff, we think a reasonable juror could find that Wilcox

and Kennedy could not have reasonably believed that B.W.

would “likely experience serious bodily harm” during the

time it would have taken to obtain a warrant. For reasons we

have discussed, the defendants’ actions implicate B.W.’s

Fourth Amendment right to be free from unreasonable

seizures.

Our analysis is unaffected by the fact that B.W. was only

two days old and had yet to leave the hospital when the

WCDSS took custody of her. The Fourth Amendment

protects the “right of the people to be secure . . . against

unreasonable . . . seizures.” It does not make exceptions

based on age, mobility, or the capacity to understand the

state’s actions. The minor plaintiffs in Wallis were two years

old and five years old when they were taken into custody.

Wallis, 202 F.3d at 1131. A two-year old child—like a two-

day old infant—is under the near-constant control of adults

20 KIRKPATRICK V. COUNTY OF WASHOE

and probably cannot meaningfully comprehend the notion of

being “seized” by the state. Yet we held that the children in

Wallis were “subjected to a seizure” and analyzed their

claims under the Fourth Amendment. Id. at 1137 n.8.

Other courts have applied the same Fourth Amendment

analysis to newborn children like B.W. In Kia P. v. McIntyre,

235 F.3d 749 (2d Cir. 2000), a hospital held an infant for the

first ten days of her life because it believed that the child’s

mother used harmful drugs while pregnant. Id. at 751. The

court held that “there is no doubt that [the child’s] retention

by the Hospital was a ‘seizure’ within the meaning of the

Fourth Amendment.” Id. at 762. It recited the familiar

standard that “[a] ‘seizure’ occurs where, ‘in view of all of

the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.’”

Id. (quoting United States v. Mendenhall, 446 U.S. 544, 554

(1980) (plurality opinion)). The court acknowledged that

“the usual phrasing of the seizure test is difficult to apply”

under these circumstances because an infant “is unlikely to

have had a ‘belief’ as to whether or not she was free to

leave.” Id. at 762. But the court nevertheless concluded that

the child was seized because her mother “was told in no

uncertain terms that she could not take [the child] home” and

“[i]t was clear to [the mother], if not to [the child], that [the

child] was not free to leave.” Id. In other words, a child’s

ability to subjectively understand that she has been “seized”

is not a prerequisite to the application of the Fourth

Amendment. As the Supreme Court explained, “Mendenhall

establishes that the test for existence of a ‘show of authority’

is an objective one: not whether the citizen perceived that he

was being ordered to restrict his movement, but whether the

officer’s words and actions would have conveyed that to a

reasonable person.” California v. Hodari D., 499 U.S. 621,

KIRKPATRICK V. COUNTY OF WASHOE 21

628 (1991). Here, the WCDSS physically removed B.W.

from the hospital and placed her with a foster family rather

than permitting her to leave with her mother. Physically

restraining a person and directing her movement is a

prototypical example of a “seizure” that implicates the Fourth

Amendment. Id. at 626 (“The word ‘seizure’ readily bears

the meaning of a laying on of hands or application of physical

force to restrain movement.”).2

Wilcox and Kennedy seized B.W. without obtaining a

warrant under circumstances where a reasonable juror might

find that a reasonable social worker could not have

determined that the child was in imminent danger of serious

bodily injury. We therefore conclude that the plaintiffs have

satisfied the first prong of the qualified immunity inquiry

because, “[t]aken in the light most favorable to the party

asserting the injury, [ ] the facts alleged show the officer’s

conduct violated a constitutional right[.]” Saucier, 533 U.S.

at 201.

b. Clearly established

We next address whether the constitutional right at issue

“was ‘clearly established’ at the time of the challenged

conduct.” al-Kidd, 131 S. Ct. at 2080. “A Government

official’s conduct violates clearly established law when, at the

time of the challenged conduct, ‘[t]he contours of [a] right

[are] sufficiently clear’ that every ‘reasonable official would

have understood that what he is doing violates that right.’”

2

Because the WCDSS eventually seized B.W. by taking physical

custody of her and placing her with a foster family, we need not consider

whether B.W. was “seized” during the period when she remained in the

hospital subject to the Department’s hold request.

22 KIRKPATRICK V. COUNTY OF WASHOE

Id. at 2083 (alterations in original) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)). “We do not require a

case directly on point, but existing precedent must have

placed the statutory or constitutional question beyond

debate.” Id.

Our inquiry begins and ends with our decision in Rogers.

Not only is Rogers almost “directly on point,” but it also

plainly holds that the constitutional right at issue in this case

is “clearly established.” Our opinion in Rogers explained that

“[t]he law was clearly established at the time of the events in

[Rogers] that a child could not be removed from the home

without prior judicial authorization absent evidence of

‘imminent danger of serious bodily injury and [unless] the

scope of the intrusion is reasonably necessary to avert that

specific injury.’” Rogers, 487 F.3d at 1297 (third alternation

in original) (quoting Mabe, 237 F.3d at 1106). The conduct

reviewed in Rogers occurred in 2001, and we issued our

opinion in 2007. The WCDSS did not take custody of B.W.

until 2008. The alleged violation of B.W.’s Fourth

Amendment rights thus occurred after the relevant

constitutional rule was clearly established and after we

expressly held that the right is clearly established.3

3

Once we have issued an opinion on point—here, Rogers—we mean

business, and all officials must abide by that instruction. Judge Kozinski

argues that “Rogers alone cannot have placed every reasonable official on

notice that taking B.W. into custody was unconstitutional.” Dissent at 40.

We disagree. Where a single case “‘has clear applicability’ to a

subsequent set of facts,” that case alone is sufficient to put law

enforcement officials on notice. Feathers v. Aey, 319 F.3d 843, 850 (6th

Cir. 2003) (quoting Hope v. Pelzer, 536 U.S. 730, 742 (2002)) (“Hope

specifically states that a right is clearly established . . . when the ‘premise’

of one case ‘has clear applicability’ to a subsequent set of facts.”); cf.

Rojas v. Anderson, 727 F.3d 1000, 1004 (10th Cir. 2013) (holding that a

KIRKPATRICK V. COUNTY OF WASHOE 23

The case before us is not distinguishable from Rogers. It

is true that Rogers—like Mabe and Wallis—refers to a

qualified prohibition on removing children “from the home”

whereas, here, the WCDSS took custody of B.W. while she

was in the hospital. See Rogers, 487 F.3d at 1294; Mabe,

237 F.3d at 1107; Wallis, 202 F.3d at 1136. But we do not

think that any reasonable social worker would read Rogers or

its predecessors to stand for the proposition that the

constitutional limitations on the seizure of children apply

only when the children are at home. See Anderson, 483 U.S.

at 640 (“The contours of the right must be sufficiently clear

that a reasonable official would understand that what he is

doing violates that right. This is not to say that an official

action is protected by qualified immunity unless the very

action in question has previously been held unlawful, but it is

to say that in the light of pre-existing law the unlawfulness

must be apparent.” (emphasis added) (internal citation

omitted)). The fact that B.W. was in the hospital arguably

should have made it more apparent to a reasonable social

worker that she was not “likely to experience serious bodily

harm in the time that would be required to obtain a warrant.”

Rogers, 487 F.3d at 1294. In Rogers, we concluded that

“there was no indication of imminent danger” to the seized

children even though they would have remained in an

“unsanitary” home with allegedly neglectful parents while the

social worker obtained a warrant. Id. at 1295. Here, B.W.

almost certainly would have remained in the hospital, where

there is likely less “imminent risk of serious bodily harm”

than in the conditions endured by the children in Rogers.

right was not clearly established where the plaintiff failed to provide “a

single case citation to support” that notion).

24 KIRKPATRICK V. COUNTY OF WASHOE

We also note that B.W. was a two-day old infant when

she was taken into custody by the WCDSS, whereas the

children in Rogers were three-years old and five-years old.

Id. at 1291. Age is often crucial in determining whether a

social worker could have reasonably believed that the child

was in imminent danger of serious bodily injury because a

two-day old infant like B.W. is far more vulnerable than an

older child. But no reasonable social worker could read

Rogers and its predecessors to suggest that it is always

reasonable to conclude that an infant is in imminent danger of

serious bodily injury. Although infants are uniquely

susceptible to serious injury, the maternity ward of a hospital

is an especially safe place, particularly where, as here, the

hospital has been instructed not to discharge the infant

without notifying the social workers.

The defendants contend that they could have reasonably

believed that Nevada law authorized the WCDSS to take

custody of B.W. without obtaining a warrant. They cite Nev.

Rev. Stat. § 432B.390(1)(a), which provides that social

workers “[m]ay place a child in protective custody without

the consent of the person responsible for the child’s welfare

if the [social worker] has reasonable cause to believe that

immediate action is necessary to protect the child from injury,

abuse or neglect.” There is no indication that the state-law

standard differs meaningfully from the constitutional rule that

social workers may take custody of a child without prior

judicial authorization if there is “reasonable cause to believe

that the child is in imminent danger of serious bodily injury.”

Wallis, 202 F.3d at 1138. Nev. Rev. Stat. § 432B.390(1)(a)

does not authorize social workers to take custody of children

under non-exigent circumstances. It says nothing at all about

when, if ever, a social worker may take custody of a child

when he does not have “reasonable cause to believe that

KIRKPATRICK V. COUNTY OF WASHOE 25

immediate action is necessary to protect the child from injury,

abuse or neglect.” We are not confronted with a situation

where an applicable state statute is in tension with the federal

constitutional right on which the plaintiffs rely. See Dittman

v. California, 191 F.3d 1020, 1027 (9th Cir. 1999)

(explaining that “it was reasonable for [the defendant] to

believe that [a state statute] was constitutional and to enforce

its mandates” when “there was no clear case law in either the

federal courts or the state courts of California establishing

that” the practice authorized by the state statute was

unconstitutional); Grossman v. City of Portland, 33 F.3d

1200, 1209 (9th Cir. 1994) (“[W]here a police officer has

probable cause to arrest someone under a statute that a

reasonable officer could believe is constitutional, the officer

will be immune from liability even if the statute is later held

to be unconstitutional.”).4

Next, the defendants argue that they are entitled to

qualified immunity because they were not informed of the

need to obtain a warrant before taking custody of a child

under non-exigent circumstances. Kennedy—who was a

supervisor—stated that when the WCDSS took B.W. into

custody in July 2008 she did not understand the distinction

between removing a child with a warrant and doing so

4

The plaintiffs do not challenge the constitutionality of Nev. Rev. Stat.

§ 432B.390(1)(a). We express no view on whether the phrase “reasonable

cause to believe that immediate action is necessary to protect the child

from injury, abuse or neglect” in the state statute is broader than the

phrase “reasonable cause to believe that the child is in imminent danger

of serious bodily injury” in our cases. Even assuming arguendo that there

might be a case where a social worker would consider the warrantless

seizure of a child justified under the state standard but not under the

federal standard, we do not think that any reasonable social worker could

have concluded that either standard was satisfied in this case.

26 KIRKPATRICK V. COUNTY OF WASHOE

without a warrant. She explained that it was not her “general

practice” to obtain a warrant unless there were “special

circumstances” such as a “suspected kidnapping or something

like that.” Wilcox said that, as of July 2008, she had not been

trained in how to obtain a warrant. She was aware that other

social workers received warrants before taking custody of

children under certain circumstances, but she did not recall

any specific instances where the practice had occurred and

had never obtained a warrant herself. The defendants’

argument is unavailing because “[i]f the law was clearly

established, the immunity defense ordinarily should fail, since

a reasonably competent public official should know the law

governing his conduct.” Harlow v. Fitzgerald, 457 U.S. 800,

819–20 (1982) (emphasis added); see also Groh v. Ramirez,

540 U.S. 551, 563–64 (2004); Crawford-El, 523 U.S. at 591.

“[W]hether an official protected 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.” Anderson,

483 U.S. at 639 (internal citations omitted) (quoting Harlow,

457 U.S. at 818–19). The reasonableness of the defendants’

conduct must therefore be assessed in light of the clearly

established law that social workers must obtain a warrant

before taking custody of a child under non-exigent

circumstances, and not in light of their own subjective beliefs

about the law. See Sorrels v. McKee, 290 F.3d 965, 970 (9th

Cir. 2002) (“The relevant inquiry under this second prong [of

the qualified-immunity analysis] is wholly objective; an

official’s subjective belief as to the lawfulness of his conduct

is irrelevant.” (citing Anderson, 483 U.S. at 641)).

We conclude that Wilcox and Kennedy are not entitled to

qualified immunity on B.W.’s Fourth Amendment claim, and

KIRKPATRICK V. COUNTY OF WASHOE 27

reverse the district court’s summary judgment.5 We think

that a reasonable juror might find that a reasonable social

worker could not have determined that B.W. would be in

imminent danger of serious bodily injury in the time that it

would have taken to obtain a warrant. Because a genuine

dispute of material fact exists, we remand this issue for trial.

See Mabe, 237 F.3d at 1108–09, 1112.

3. Municipal liability

The final issue before us is whether Washoe County is

entitled to summary judgment. “[A] municipality cannot be

held liable solely because it employs a tortfeasor—or, in other

words, a municipality cannot be held liable under § 1983 on

a respondeat superior theory.” Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 691 (1978). But “local governments . . .

may be sued for constitutional deprivations visited pursuant

to governmental ‘custom’ even though such a custom has not

received formal approval through the body’s official

decisionmaking channels.” Id. at 690–91; Price v. Sery,

513 F.3d 962, 966 (9th Cir. 2008) (noting that a plaintiff can

establish municipal liability by showing that “the

constitutional tort was the result of a longstanding practice or

custom which constitutes the standard operating procedure of

the local government entity” (internal quotation marks

omitted)).6

5

Although we reverse the summary judgment in favor of Wilcox and

Kennedy, we affirm the district court’s summary judgment in favor of

Amy Reynolds because the plaintiffs have not alleged any facts suggesting

that she was involved with the decision to take custody of B.W.

6

Because the district court dismissed Kirkpatrick’s claims and did not

think that the complaint included B.W. as a plaintiff, the district court

addressed, but did not fully analyze, the Monell claim. It nevertheless

28 KIRKPATRICK V. COUNTY OF WASHOE

The County represents that it does not have a policy of

removing children from their parents absent a finding of

imminent danger, but there is evidence in the record that

contradicts the County’s claim. That is, record evidence

suggests that the County had an unofficial, unconstitutional

custom of taking custody of children under non-exigent

circumstances without obtaining prior judicial authorization.

As a result, this case implicates the so-called “direct path to

municipal liability.” Gibson v. Cnty. of Washoe, Nev.,

290 F.3d 1175, 1185 (9th Cir. 2002).

Neither Ellen Wilcox nor Linda Kennedy was familiar

with the process for obtaining a warrant before taking custody

of a child. Wilcox, the social worker in charge of B.W.’s

case, stated that she never received training on how to obtain

a warrant while she was employed by Washoe County from

2007 through 2009, and in those two years, she had never

actually obtained a warrant. Under questioning, Wilcox

admitted that a hypothetical child in B.W.’s circumstances

was not in imminent danger:

Q: But a child is not going to be returned to

his father for four days. Is that imminent

danger?

A: No.

But she testified that she would likely remove such a child

anyway, and without a warrant:

expressed concern with Washoe County’s practices. The Monell question

was briefed by both parties and discussed at oral argument. The record is

sufficiently developed for us to determine whether the County was entitled

to summary judgment.

KIRKPATRICK V. COUNTY OF WASHOE 29

Q: So what do you do for that child when the

mother insists on returning him to a dangerous

situation and the father insists on getting him

in that dangerous situation, no questions

asked, you have already determined and

everybody agrees it’s a danger?

A: Then we remove the child.

Q: You don’t get a warrant?

A: No.

Q: The child you admitted is not in imminent

danger.

A: No. We don’t get a warrant.

Q: But would you remove the child even

though the danger may be three or four days

away?

A: Yes.

Wilcox later attributed her answer to Washoe County’s

unofficial custom or protocol:

Q: Let me ask you an obvious question. If

the child wasn’t in danger in the hospital and

was there for several days, why didn’t you

seek a warrant before you removed the child

from mom? Is it because you didn’t know

you had to? You weren’t trained on that?

30 KIRKPATRICK V. COUNTY OF WASHOE

A: It wasn’t the protocol of Washoe County.

No one told me to get a warrant and they

didn’t train me how to go about getting a

warrant.

Q: Or did they even tell you you could get a

warrant?

A: No. They didn’t.

Kennedy—who supervised between five and seven social

workers, including Wilcox at the time—confirmed that it was

“not in our general practice” to obtain a warrant before

removing a child:

Q: So your best recollection is that as of July

of ’08, Washoe County Child Protective

Services did not obtain court warrants prior to

the removal of a child in any circumstances?

A: I wouldn’t say in no circumstances. But

not in our general practice. No.

There could be—we had asked for

warrants sometimes when there was like a

suspected kidnapping or something like that

where we had some prior knowledge, let’s

say.

But generally speaking, we did not. I

don’t recall ever getting a warrant to go out

with one of my investigators to go out and

pick up a child unless it was a special

circumstance.

KIRKPATRICK V. COUNTY OF WASHOE 31

She elaborated that in cases like B.W.’s, she might have

obtained a warrant “in a rare instance,” but she did not recall

ever doing so:

Q: You mentioned that you have a

recollection of obtaining—of seeking warrants

in situations like kidnappings and things like

that.

....

What I’m more interested in is the case

where you’ve gotten a complaint or a report of

some sort of child neglect that triggers an

investigation which leads to determining that

a child needs to be removed.

Okay? That’s the case I’m more

interested in.

Under those kind of circumstances, do you

have any knowledge of ever obtaining a

warrant to remove a child under those type of

general circumstances?

A: I do not recollect doing that. No.

Q: So it would be safe to say that in your

career with Washoe County Child Protective

Services you’re not aware of ever obtaining a

warrant to remove a child from a parent?

A: I don’t recollect ever doing that.

However, that is not to say that it could have

32 KIRKPATRICK V. COUNTY OF WASHOE

occurred in a rare instance that I’m not just

recalling. It was not a general practice ever to

get a warrant.

While discussing the process of removing a child from its

parent without a warrant, Kennedy noted that “Washoe

County has all kinds of policies and procedures for

everything,” and that the “policy[] was to never get warrants”

when removing children:

Q: You stated when a baby or a child is

kidnapped that would be a situation where

you would get a warrant.

A: Generally speaking, yes.

That happens very rarely.

Q: A warrant to remove the child from the

kidnapper or a warrant to arrest the

kidnapper?

A: A warrant to remove the child.

We have nothing to do arresting people.

Q: So if it’s a kidnapper you get a warrant to

remove it but if it’s a parent you don’t?

A: That’s our policy, was never to get

warrants when we remove children when I

worked as a supervisor.

KIRKPATRICK V. COUNTY OF WASHOE 33

Q: There was a policy to not get warrants or

there was no policy?

A: There was no policy related to warrants.

Like Wilcox, Kennedy understood that the “legal criteria” for

warrantless removals mandated the existence of an “imminent

risk to the well being of that child.” However, Kennedy’s

definition of “imminent risk” was hazy, at best.

Importantly, Kennedy had “no recollection” of B.W.’s

case, and she did not know what facts were used to justify

B.W.’s removal. But speaking in the abstract and using her

knowledge as a supervisor, she said that under these

circumstances a child could be removed without a warrant:

Q: Based upon your review of [B.W.’s case]

can you tell me all of the facts that were relied

upon to remove—to make the decision to

remove [B.W.]?

A: I can tell you I don’t know what facts

Amy [Reynolds] used in this regard.

But I can tell you that as far as a

supervisor the fact that the child tested

positive for methamphetamine, that the

mother admitted to recent methamphetamine

use, that she admitted that she’s unemployed,

she does not have stable housing and then

after she said she used methamphetamine

during her entire pregnancy, which means we

also have a drug baby here, that drug babies

are generally more difficult to parent because

34 KIRKPATRICK V. COUNTY OF WASHOE

they get agitated, they cry a lot, so we have a

mom who is not necessarily stable and she has

a difficult child, she lives with friends from

place to place, she has a CPS history, which

apparently we also had other children of hers

in care, all of that would have been researched

prior to removing that child to see if we had

prior history on her, what it was and the fact

that she never followed through for her other

children to try to get them back, never

followed through on any services, when you

look at that whole picture, then that would be

why you would have removed that child.

Like Wilcox, Kennedy said no warrant was necessary to

remove B.W., even though Kennedy also admitted that B.W.

was not in any immediate danger:

Q: In your opinion, is the maternity floor of

Renown Regional Medical Center considered

a safe environment by Washoe County Child

Protective Services?

A: Yes. It is.

Q: And the child, [B.W.], was not in any

danger at Renown, was she?

A: No.

Because there were nurses generally present.

....

KIRKPATRICK V. COUNTY OF WASHOE 35

Q: The baby would be in imminent danger if

Rachel checked out of the hospital with the

baby? Is that basically what you’re saying?

A: We would consider that imminent danger.

Yes.

Q: What was the imminent danger to the

baby while in the hospital?

A: I don’t know that the child was in

imminent danger there.

....

Q: Would [there] be [an imminent risk to the

child] if mom took the child from the

hospital?

A: Yes.

Q: But in the hospital it wasn’t imminent

risk?

A: Right.

While, as Judge Kozinski notes, Dissent at 40, the only

evidence of an unofficial custom comes from two

depositions, both Wilcox and Kennedy traced their actions in

B.W.’s case to the “general practice” and “protocol” in

Washoe County. Wilcox started working at WCDSS in June

of 2007, a year before she handled B.W.’s case. Kennedy

worked as a social worker for twenty-two years in various

offices before retiring; she testified that she spent seven of

36 KIRKPATRICK V. COUNTY OF WASHOE

those years working in the Child Protective Services

department at WCDSS. Based on their experience working

at WCDSS, both Wilcox and Kennedy should have known

the constitutional standard for removing a child: Government

officials must obtain a warrant before removing a child unless

they have “reasonable cause to believe that the child is in

imminent danger of serious bodily harm and that the scope of

the intrusion is reasonably necessary to avert that specific

injury.” Mabe, 237 F.3d at 1106 (quoting Wallis, 202 F.3d at

1138). But neither did. Instead, both understood that the

“general practice” and “protocol” in Washoe County was to

remove children without obtaining warrants. Wilcox

admitted that B.W. was not in imminent danger at the

hospital, but she did not first obtain a warrant before

removing B.W. because “[i]t wasn’t the protocol of Washoe

County.” Kennedy could not even remember B.W.’s specific

case, but she relied on her knowledge as a WCDSS

supervisor to confirm that no warrant was necessary to

remove B.W. because “[i]t was not a general practice ever to

get a warrant.”7

Because the evidence presented here creates at least an

inference of an unconstitutional, unofficial custom in Washoe

County, the County is not entitled to summary judgment.

Although the plaintiffs failed to compile any evidence of any

other constitutional violations—that is, specific instances

where Washoe County social workers took custody of

7

Whether the unofficial County policy was not to get warrants or was

silent on getting warrants, either policy would be unconstitutional because

government employees are automatically required to get warrants unless

the child is in “imminent danger of serious bodily harm” and a speedy

removal “is reasonably necessary to avert that specific injury.” Mabe, 237

F.3d at 1106 (quoting Wallis, 202 F.3d at 1138).

KIRKPATRICK V. COUNTY OF WASHOE 37

children without obtaining a warrant when they were

constitutionally required to do so—we think there is minimal

evidence sufficient to controvert the County’s Monell defense

at this stage of the proceedings. The record is relatively

sparse (with depositions from only two WCDSS workers),

and Wilcox’s and Kennedy’s testimonies of the imminent

danger standard are unclear, but “ambiguity in favor of the

defendant is not sufficient” to “dispose of a case on summary

judgment.” Sery, 513 F.3d at 972 (“If a reasonable person

could side with the plaintiff’s interpretation of events, the

issue must survive for trial.”). A triable issue exists as to

whether the root of the unconstitutional behavior exhibited in

B.W.’s case lies in the unofficial operating procedure of

Washoe County or in the errant acts of individual social

workers, and this question should go to a jury.

IV

We affirm the district court’s summary judgment in favor

of all of the defendants on the claim alleged by Kirkpatrick

on his own behalf. We reverse the district court’s summary

judgment in favor of Ellen Wilcox, Linda Kennedy, and

Washoe County on the claim that they violated B.W.’s Fourth

Amendment right to be free from unreasonable seizures.8 We

remand to the district court for further proceedings on the

Fourth Amendment claim filed on behalf of B.W. against

these three defendants. We affirm the district court’s

summary judgment in favor of Amy Reynolds with respect to

all claims because the plaintiffs have not alleged any facts

8

Because we reverse the district court’s grant of summary judgment in

favor of Washoe County, we deny as moot Kirkpatrick’s motion for

judicial notice of the “papers and pleadings on file in the case of Garver

v. County of Washoe, Ninth Circuit docket number 11-18015.”

38 KIRKPATRICK V. COUNTY OF WASHOE

suggesting that she was involved with the decision to take

custody of B.W. Each party shall bear its own costs on

appeal.

AFFIRMED in part, and REVERSED in part.

KOZINSKI, Circuit Judge, dissenting in part:

This term the Supreme Court once again summarily

reversed a lower court for failing to appreciate that a state

official is protected by qualified immunity unless “every

reasonable official [in the defendant’s situation] would have

understood that what he is doing violates” a constitutional

right. Taylor v. Barkes, No. 14-939, 2015 WL 2464055, at *2

(U.S. June 1, 2015) (internal quotation marks omitted). The

Court has stressed time and again that, “[w]hen properly

applied, qualified immunity protects all but the plainly

incompetent or those who knowingly violate the law.” Id.

(quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011)).

The majority ignores that clear admonition, and imposes

personal liability on two child protective service workers

whose actions were anything but malicious or incompetent.

Under the majority’s holding, Ellen Wilcox and Linda

Kennedy are exposed to liability because they removed a

vulnerable baby, B.W., from the care of her mother, Rachel.

Rachel was a drug addict who had taken methamphetamine

so recently that it was found in her daughter’s blood at the

time of the child’s birth. Rachel previously had two other

children removed from her custody because of her manifest

inability to care for them. She also had no fixed address, and

therefore no way of being found, had she left the hospital.

KIRKPATRICK V. COUNTY OF WASHOE 39

Had Rachel absconded with B.W., the baby’s life could well

have been in peril.

The majority doesn’t appear to dispute this conclusion;

nonetheless it finds there was no “imminent danger of serious

bodily harm” to B.W. Rogers v. Cnty. of San Joaquin,

487 F.3d 1288, 1295 (9th Cir. 2007). The majority reasons

that B.W. “would have very likely remained in the hospital

. . . while the defendants requested a warrant” due to the

informal “hold” the Washoe County Department of Social

Services placed on her. Op. at 19. But, “very likely” is cold

comfort when the life of a newborn baby is at stake. In any

event, this crucial inference is entirely speculative. The

majority fails to hold plaintiffs to their burden of

“identify[ing] affirmative evidence from which a jury could

find” a violation of clearly established law. Crawford-El v.

Britton, 523 U.S. 574, 600 (1998) (emphasis added).

There simply is no evidence in the record that the

informal “hold” would have prevented Rachel from leaving

the hospital and taking B.W. with her. It is undisputed that

the “hold” didn’t constitute a formal restriction on their

movement—indeed, if it did, then the “hold” itself would

have been a seizure. Because the hospital didn’t have the

lawful authority to restrain Rachel or B.W., it was at least

possible that mother and daughter could have left while a

warrant application was pending. Reasonable minds might

disagree as to the precise quantum of risk faced by B.W., but,

under the circumstances, it was hardly malicious or “plainly

incompetent” of Wilcox and Kennedy to temporarily take

B.W. out of harm’s way. al-Kidd, 131 S. Ct. at 2085 (internal

quotation marks omitted).

40 KIRKPATRICK V. COUNTY OF WASHOE

We’ve been cautioned numerous times to undertake our

qualified immunity analysis “in light of the specific context

of the case, not as a broad general proposition.” Brosseau v.

Haugen, 543 U.S. 194, 198 (2004) (per curiam) (internal

quotation marks omitted). A test like Rogers that is “cast at

a high level of generality” constitutes clearly established law

only “in an obvious case.” Id. at 199. At the time B.W. was

taken into custody, we had never applied Rogers in the

context of an especially vulnerable child, like a baby, or in a

situation where social workers have no means of locating a

child once it leaves their immediate supervision. Rogers

alone cannot have placed every reasonable official on notice

that taking B.W. into custody was unconstitutional. I worry

that future babies will pay with their lives because social

workers hesitate to take them into custody based on today’s

decision.

Nor am I convinced that the county should be liable under

Monell. The few remarks Wilcox and Kennedy made during

their depositions, standing alone, don’t support an inference

that there is a practice of constitutional violations “so

persistent and widespread as to practically have the force of

law.” Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011).

There is nothing else. I therefore respectfully dissent from

Parts III.B.2 and III.B.3 of the majority opinion.