Jones v. County of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL N. JONES, an individual; No. 12-55995

JILL JONES, an individual; G. J., an

individual, D.C. No.

Plaintiffs-Appellees, 2:11-cv-02851-

SJO-VBK

v.

COUNTY OF LOS ANGELES, OPINION

Defendant,

and

DR. CLAUDIA WANG, an individual,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California

S. James Otero, District Judge, Presiding

Argued and Submitted

April 11, 2014—Pasadena, California

Filed September 21, 2015

2 JONES V. WANG

Before: N. Randy Smith and Mary H. Murguia, Circuit

Judges, and Stephen M. McNamee, District Judge.*

Opinion by Judge Murguia;

Dissent by Judge McNamee

SUMMARY**

Civil Rights / Qualified Immunity

The panel affirmed the district court’s denial of Dr.

Claudia Wang’s motion for summary judgment based on her

alleged qualified immunity in a 42 U.S.C. § 1983 action

brought against Dr. Wang.

The Jones family alleged that Dr. Wang violated their

Fourth and Fourteenth Amendment rights and committed

various torts during her investigation into whether G.J. had

been abused.

The panel held that, resolving all factual disputes in the

Joneses’ favor, the alleged conduct of Dr. Wang could

support a claim that Dr. Wang violated the Joneses’ clearly

established constitutional rights. Namely, the panel held that

the Joneses’ version of the facts supported a claim that Dr.

Wang seized G.J. from his parents without exigent

*

The Honorable Stephen M. McNamee, United States District Judge for

the District of Arizona, sitting by designation.

**

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

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

JONES V. WANG 3

circumstances. The panel held that because both parts of the

qualified immunity test were satisfied, the Joneses were

entitled to attempt to prove their version of the facts to a jury

and summary judgment was not appropriate.

The panel also held, concerning Dr. Wang’s asserted state

statutory immunities to the Joneses’ state-law claims, that Dr.

Wang was not entitled as a matter of law to the reporters’

privilege under Cal. Penal Code § 11172(a) or discretionary

immunity under Cal. Government Code § 820.2.

District Judge McNamee dissented, and he would find

that Dr. Wang is entitled to qualified immunity because she

did not violate either the Fourth Amendment or clearly

established law.

COUNSEL

Donald A. Garrard (argued) and Steven D. Davis, Garrard &

Davis LLP, Santa Monica, California, for Defendant-

Appellant.

Robyn C. Crowther (argued), Michael J. Proctor, Jeffrey M.

Chemerinsky, Caldwell Leslie & Proctor, PC, Los Angeles,

California, for Plaintiffs-Appellees.

4 JONES V. WANG

OPINION

MURGUIA, Circuit Judge:

The Jones family—Jill, Michael, and their son

G.J.—brought this action under 42 U.S.C. § 1983 alleging

that Dr. Claudia Wang violated their Fourth and Fourteenth

Amendment rights and committed various torts during her

investigation into whether G.J. had been abused. The district

court denied Dr. Wang summary judgment on her qualified

immunity defense. We conclude that, resolving all factual

disputes in the Joneses’ favor, the alleged conduct of Dr.

Wang can support a claim that Dr. Wang violated the

Joneses’ clearly established constitutional rights.

I. Factual and Procedural Background

Dr. Wang appeals the district court’s denial of summary

judgment on her qualified immunity defense. We accept as

true all of the Joneses’ evidence, and we draw all justifiable

inferences in the Joneses’ favor. Tolan v. Cotton, 134 S. Ct.

1861, 1863 (2014) (per curiam).

The events underlying this suit begin on the evening of

February 24, 2010. As Jill Jones descended the steps from the

loft in her Santa Monica condominium with her sleeping

infant son G.J. in her arms, she tripped and G.J. slipped out

of her grip. G.J. tumbled down several stairs and landed on

his head on the hardwood floor. Jill rushed G.J. to the

Emergency Department at the Santa Monica UCLA Medical

Center.

At the Emergency Department, a CT scan of G.J.’s head

revealed a complex fracture on the back of G.J.’s skull. G.J.’s

JONES V. WANG 5

ribs were also fractured, but because the bones were still

aligned, the fractures were not visible on the x-ray of G.J.’s

chest done that day. Hospital staff made a routine report of

G.J.’s injury to the LA County Department of Children and

Family Services (DCFS), noting that G.J.’s injuries were

consistent with Jill’s explanation that she had accidentally

fallen down the stairs. G.J. stayed in the hospital for two

days after the accident. On February 26, 2010, he was

discharged to his parents. After Jill brought G.J. home from

the hospital, she noticed a popping noise coming from G.J.’s

chest, which was caused by the undetected rib fractures. Jill

was concerned because G.J. appeared to be in pain every time

she heard a pop from his chest.

On March 4, 2010, Nancy Hayes, UCLA’s Suspected

Child Abuse and Negligence (SCAN) team case manager,

referred G.J.’s case to Dr. Claudia Wang, the SCAN team

medical director. Dr. Wang reviewed the case and concluded

that G.J.’s injuries were unusual and potentially, but not

necessarily, inconsistent with Jill’s explanation. Even though

the skull fracture could be consistent with Jill’s explanation

that G.J. had fallen down stairs and hit his head, because of

the fracture’s severity, Dr. Wang decided to order routine

child abuse screening tests and examine G.J. herself. Dr.

Wang called G.J’s pediatrician, who called Jill and

coordinated with Jill to bring G.J. in for an opthalmological

exam, a skeletal survey x-ray, and a physical examination

with Dr. Wang the following morning. Jill’s pediatrician told

Jill that the tests were routinely done to rule out child abuse

and should have been done before G.J. was discharged from

the hospital the week before. Dr. Wang also called Jill and

assured her that the tests were routine. Jill was also aware that

these tests were routinely conducted to investigate child abuse

because of her work as a lawyer for L.A. County Social

6 JONES V. WANG

Services. Jill told Dr. Wang about the popping she heard in

G.J.’s chest and the pain it was causing G.J.

The next day, March 5, 2010, Jill brought G.J. to the

UCLA Westwood campus medical facilities for the tests as

scheduled. The opthamological examination showed that G.J.

had no retinal hemorrhages, which are often found in infants

with abusive head trauma.

The first radiologist to interpret G.J.’s skeletal survey, Dr.

Ines Boechat, told Dr. Wang that she saw fractures on G.J.’s

sixth and seventh right ribs on the posterior (back) side. Dr.

Wang looked at the skeletal survey images herself and

compared them with the chest x-ray taken at the Emergency

Department immediately after the fall, which appeared not to

show any rib fractures. Dr. Wang was not able to make out

the fractures on G.J’s right ribs that Dr. Boechat identified,

but she did see fractures on G.J.’s left sixth and seventh ribs.

Dr. Wang surmised that the left fractures were new, while the

right side fractures were not. Dr. Boechat suggested to Dr.

Wang that the skeletal survey might faintly show another

skull fracture on the left side of G.J.’s skull that had also not

been detectable on the February 24, 2010, CT scan. Dr.

Boechat recommended that Dr. Wang get an opinion from

another radiologist.

At Dr. Wang’s request, a second radiologist, Dr. Ted Hall,

reviewed both the chest x-ray from the Emergency

Department and that morning’s skeletal survey. Unlike Dr.

Boechat and Dr. Wang, Dr. Hall interpreted G.J.’s skeletal

survey to show fractures on G.J.’s sixth and seventh ribs on

both sides. Dr. Hall opined that the right-side fractures might

have been present on the February 24 chest x-ray, but he did

not see the left-side fractures on that x-ray image. Dr. Hall

JONES V. WANG 7

saw no second fracture on the left side of G.J.’s skull. Dr.

Hall also disagreed with Dr. Wang’s observation that G.J.

might have fractures on his femur and tibial bones. He

explained to her that what she suspected were fractures were

actually a normal variant in infant legs.

After consulting with specialists after that morning’s child

abuse screening tests, Dr. Wang knew that (1) G.J. did not

have retinal hemorrhaging, and (2) G.J. had rib fractures. Dr.

Wang concluded—mistakenly, as it turned out—that G.J.’s

ribs had been fractured after the accident. Before meeting

with Jill or examining G.J., Dr. Wang called Nancy Hayes,

the SCAN team case manager, and asked her to report G.J.’s

case to DCFS. Dr. Wang also called the UCLA police

department because she was concerned that Jill might try to

leave the clinic with G.J. When the police officers arrived,

Dr. Wang spoke with them and asked them to remain in the

clinic while she met with Jill.

Dr. Wang met with Jill in the Pediatric Ambulatory

Clinic. Jill recounted for Dr. Wang the accident and G.J.’s fall

down the stairs. Dr. Wang then informed Jill that, as a

mandated child abuse reporter, she had requested that a report

be made to DCFS and the UCLA police because G.J.’s

injuries were compatible with non-accidental trauma. Despite

Dr. Hall’s opinion that G.J. did not have a second skull

fracture, Dr. Wang told Jill that G.J. might have an additional

skull fracture and possibly leg fractures and recommended

that G.J. have another CT scan. Dr. Wang also recommended

to Jill that Jill admit G.J. into the hospital for a bone specialist

consult to determine whether G.J. had a metabolic bone

disorder that was causing the fractures. Dr. Wang’s primary

purpose, however, in recommending to Jill that G.J. be

hospitalized—which she did not tell Jill—was to detain G.J.

8 JONES V. WANG

at the hospital and prevent Jill from taking G.J. home. Dr.

Wang later testified that had she not suspected abuse, she

would have told the Joneses that they could take G.J. home

and return in the following weeks for outpatient testing. In

fact, Dr. Wang testified that the main reason for admitting

G.J. was that she did not have a plan to discharge him safely

to his home. Dr. Wang also acknowledged that, because it

was Friday, admitting G.J. into the hospital would likely keep

him there over the weekend, preventing his parents from

taking him home until at least Monday, March 8, 2010. After

recommending an additional CT scan and hospitalization, Dr.

Wang informed Jill that officers from the Santa Monica

police department were there to interview her.

Jill agreed to the CT scan and to admit G.J. to the

hospital. Jill believed that the CT scan was medically

necessary. Jill’s sister, who came to the hospital to support

Jill, remembered that she and Jill became hysterical after

hearing about G.J.’s new injuries and learning that he needed

to be re-hospitalized. One of the Santa Monica police officers

recalled that Jill seemed exhausted but agreed to the course

recommended by Dr. Wang because she was concerned about

G.J.’s well-being.

After the additional CT scan, it was nearly 5:00 p.m.,

closing time for the Pediatric Ambulatory Clinic. Two Santa

Monica Police Department officers, SCAN team case

manager Nancy Hayes, and pediatric resident Dr. Adrian

Castro escorted Jill, her husband Michael, who had by now

joined Jill at the clinic, and G.J. to the Emergency

Department to admit G.J. to the hospital. Before the group

left for the Emergency Department, Dr. Wang told Hayes to

make sure that Jill and Michael did not take G.J. home.

JONES V. WANG 9

At 5:49 p.m. on March 5, while the Joneses were en route

to the Emergency Department from the Pediatric Ambulatory

Clinic, Dr. Wang received a page confirming that the CT scan

did not show that G.J. had a second skull fracture.

Once the Joneses arrived at the Emergency Department,

where the admission process was to begin, Jill began to

realize that Dr. Wang had misled her and her husband into

thinking that G.J. needed to be hospitalized. Dr. Cooper, the

Emergency Department attending physician, told the Joneses

that there was no reason G.J. needed to be admitted to the

hospital simply to get the blood work Dr. Wang had ordered.

Dr. Cooper also told Jill that the CT scan showed that G.J. did

not have a second skull fracture, which Dr. Wang had not told

Jill or Michael. The Joneses asked to take G.J. home.

At 8:06 p.m. on March 5, Dr. Castro, the pediatric

resident who accompanied the Joneses from the Pediatric

Ambulatory Clinic to the Emergency Department, paged Dr.

Wang: “Parents now threatening to leave. [Social worker]

calling DCFS to ask if on official hold and whether we need

to call security to assure they do not leave. Do you know if on

hold or should we place? Thanks, Adrian.” Dr. Wang told Dr.

Castro that only DCFS had the authority to place a hospital

hold, so if the Joneses tried to leave with G.J., Dr. Castro

could not use the security or police to stop them.

Dr. Wang spoke with Shawn Rivas, the DCFS social

worker assigned to the Joneses’ case, and admitted she did

not have a definitive diagnosis of child abuse and wanted

time to conduct further tests. Dr. Wang also stated that she

believed G.J. would be in danger if released. Rivas decided

that G.J. was not in immediate danger and that he therefore

10 JONES V. WANG

did not have a basis to issue a hospital hold under California

state law.1

At around midnight, Rivas met with the Joneses in the

Emergency Department. The Joneses asked Rivas if they

could take G.J. home. Rivas told the Joneses that Dr. Wang

suspected that G.J.’s injuries were not accidental and led the

Joneses to believe that the decision of whether the Joneses

could take G.J. home lay with Dr. Wang. Rivas advised Jill

and Michael to “keep playing ball” and not try to take G.J.

home. Rivas added that if they resisted Dr. Wang’s

hospitalization order and tried to take G.J. home, not only

would G.J. be “detained,” but it would look like they were

refusing medical treatment, which could provide Rivas with

a basis to remove G.J. from their custody.

Early in the morning on Saturday, March 6, 2010, the

Joneses signed Admission and Medical Service Agreements

forms for G.J., and G.J. was transferred to the UCLA Medical

Center in Santa Monica and given a special tracking bracelet.

Dr. Wang ordered that there be a sitter in G.J.’s room; the

sitter stayed in G.J.’s room at all times to prevent Jill and

Michael from being alone with G.J.

1

By statute, a county welfare department social worker may assume and

maintain temporary custody of a minor without a warrant when the social

worker has reasonable cause to believe the “child has suffered, or there is

a substantial risk that the child will suffer, serious physical harm or illness,

as a result of the failure or inability of his or her parent or guardian to

adequately supervise or protect the child,” and the social worker has

reasonable cause to believe the child is in immediate danger of physical

abuse. Cal. Welf. & Inst. Code §§ 306(a)(2), 300(b)(1).

JONES V. WANG 11

On Sunday, March 7, 2010, Rivas still believed that there

was insufficient evidence “to issue a hold or detain G.J.,” and

continued to wait for Dr. Wang’s conclusions.

On Monday, March 8, 2010, Dr. Wang told Rivas that

G.J.’s injuries were “highly suspicious” for abuse and asked

that he place a hospital hold. Rivas issued the hold.

Jill and Michael lost physical custody of G.J. for months

pending the resolution of dependency proceedings brought by

DCFS in juvenile court. Ultimately, the Commissioner

presiding over the proceedings determined that G.J. had not

been abused and that there was no risk that G.J. would be

abused in the future. Jill, Michael, and G.J. Jones filed the

instant suit against Dr. Wang and several DCFS employees

and county defendants, asserting violations of the Joneses’

federal and state constitutional rights as well as various state

law tort claims. The district court denied Dr. Wang’s motion

for summary judgment on the merits and her qualified

immunity defense. Dr. Wang now appeals the district court’s

denial of qualified immunity.

II. Qualified Immunity

Although we generally do not have jurisdiction under

28 U.S.C. § 1291 to review a district court’s denial of

summary judgment because it is not a “final decision,” we

have jurisdiction under § 1291 over a defendant’s appeal

from a denial of summary judgment on qualified immunity.

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).2 This is

because qualified immunity “is an immunity from suit rather

2

Therefore, we lack jurisdiction to review the district court’s denial of

summary judgment to Dr. Wang on the merits of the Joneses’ claims.

12 JONES V. WANG

than a mere defense to liability; and like an absolute

immunity, it is effectively lost if a case is erroneously

permitted to go to trial.” Id. at 526. A district court’s “denial

of summary judgment finally and conclusively determines the

defendant’s claim of right not to stand trial on the plaintiff’s

allegations.” Id. at 527. When the district court denies

summary judgment on qualified immunity grounds, “the

appealable issue is a purely legal one: whether the facts

alleged [by the plaintiff] support a claim of violation of

clearly established law.” Id. at 528 n.9. Thus, we have

jurisdiction to consider whether, accepting the Joneses’

version of the events of March 5–8, 2010, Dr. Wang’s alleged

conduct supports a claim of violation of a clearly established

legal standard; if so, the district court’s denial of qualified

immunity was appropriate. See Wilkins v. City of Oakland,

350 F.3d 949, 952 (9th Cir. 2003).

Section 1983 creates a cause of action against any person

who, acting under color of state law, violates the federal

constitutional rights of another person. See 42 U.S.C. § 1983.

“The doctrine of qualified immunity protects government

officials ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Thus, the qualified immunity analysis has two prongs:

(1) whether the official violated the plaintiff’s constitutional

rights, and (2) whether the right violated was clearly

established at the time of the official’s conduct. Id. at 232.

For a right to be clearly established,

[t]he contours of the right must be sufficiently

clear that a reasonable official would

JONES V. WANG 13

understand that what he is doing violates that

right. That 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 light of

pre-existing law the unlawfulness must be

apparent.

Calabretta v. Floyd, 189 F.3d 808, 812 (9th Cir. 1999)

(internal quotation marks omitted). However, “[s]pecific

binding precedent is not required to show that a right is

clearly established for qualified immunity purposes.” Id.

(internal quotation marks omitted). Whether specific facts

constitute a violation of established law and whether that law

was clearly established are both legal determinations that we

review de novo. Mabe v. San Bernardino Cnty., Dep’t of Pub.

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

Step One: Violation of a Constitutional Right

We begin with whether the Joneses’ version of the facts

can support a claim that Dr. Wang violated their

constitutional rights.

[I]n the area of child abuse, as with the

investigation and prosecution of all crimes,

the state is constrained by the substantive and

procedural guarantees of the Constitution. The

fact that the suspected crime may be

heinous—whether it involves children or

adults—does not provide cause for the state to

14 JONES V. WANG

ignore the rights of the accused or any other

parties.

Wallis v. Spencer, 202 F.3d 1126, 1130 (9th Cir. 1999).

Families in child abuse investigations are protected by

two provisions of the Constitution, the Due Process Clause of

the Fourteenth Amendment and the Search and Seizure

Clause of the Fourth Amendment. “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.” Id. at

1136 (citations omitted). Under the Fourteenth Amendment

right to familial association, an official who removes a child

from parental custody 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). The child subjected to

seizure is also protected by the Fourth Amendment’s

prohibition against unreasonable searches and seizures.

Kirkpatrick v. Cnty. of Washoe, — F.3d —, No. 12-15080,

2015 WL 4154039, at *2–*3 (9th Cir. July 10, 2015); Wallis,

202 F.3d at 1137 n.8. While the constitutional source of the

parent’s and the child’s rights differ, the tests under the

Fourteenth Amendment and the Fourth Amendment for when

a child may be seized without a warrant are the same. Wallis,

202 F.3d at 1137 n.8. The Constitution requires an official

separating a child from its parents to obtain a court order

unless the official has reasonable cause to believe the child is

in “imminent danger of serious bodily injury.” Id. at 1138.

Seizure of a child is reasonable also where the official obtains

JONES V. WANG 15

parental consent. See James v. Rowlands, 606 F.3d 646, 652

n.2 (9th Cir. 2010) (noting that “seizing and interrogating a

suspected child abuse victim without parental consent

violates the child’s Fourth Amendment rights” absent a

warrant, court order, or exigent circumstances).

Our analysis of whether the Joneses’ allegations support

a claim that Dr. Wang violated their constitutional rights

centers on two issues. The first is whether the Joneses’

version of the facts supports a claim that Dr. Wang seized

G.J. under the meaning of both the Fourth and Fourteenth

Amendments; in other words, in this case, whether Wang’s

conduct as the Joneses characterized it would have caused

reasonable parents in the Joneses’ position to believe they

could not refuse consent to G.J.’s hospitalization. If so, the

second issue is whether the Joneses’ version of the facts

further establishes that this seizure was justified by exigent

circumstances. We conclude that the Joneses’ account of Dr.

Wang’s conduct permits a conclusion that Dr. Wang seized

G.J. without consent and without reasonable cause to believe

that G.J. was in imminent danger of serious bodily harm,

thereby violating the Joneses’ constitutional rights.

Seizure

Typically, a seizure of a person 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.” United States v. Mendenhall, 446 U.S. 544, 554

(1980). This standard does not fit neatly in the context of

child abuse investigations, because to ask whether a

reasonable child would feel free to leave under the

circumstances overlooks a parent’s right to exercise custody

over her children. Accordingly, a child is seized for purposes

16 JONES V. WANG

of the Fourth and Fourteenth Amendments when a

representative of the state takes action causing a child to be

detained at a hospital as part of a child abuse investigation,

such that a reasonable person in the same position as the

child’s parent would believe that she cannot take her child

home. See Kia P. v. McIntyre, 235 F.3d 749, 762 (2d Cir.

2000) (citing Mendenhall, 446 U.S. at 554) (holding that a

child was seized when a hospital told the child’s parent that

she could not take the child home); California v. Hodari D.,

499 U.S. 621, 625 (1991) (“‘A seizure is a single act, and not

a continuous fact.’” (quoting Thompson v. Whitman, 85 U.S.

457, 471 (1873)).

Practically speaking, then, the question whether a

reasonable parent would feel free to take a child home from

the hospital is indistinguishable from the question whether

that parent would feel free to withhold consent to the

hospital’s retaining the child. See id. “[T]he Fourth and

Fourteenth Amendments require that a consent not be

coerced, by explicit or implicit means, by implied threat or

covert force.” Schneckloth v. Bustamonte, 412 U.S. 218, 228

(1973); see also United States v. Ocheltree, 622 F.2d 992,

994 (9th Cir. 1980) (concluding that the defendant’s consent

to a search of his briefcase was coerced, and therefore

ineffective, where a law enforcement agent threatened to

arrest him unlawfully if consent was withheld). Accordingly,

our analysis of whether the Joneses’ allegations could support

a claim that Dr. Wang seized G.J. turns on whether the

Joneses knowingly and voluntarily consented to Dr. Wang’s

alleged seizure.

We conclude that the Joneses’ version of the facts

supports a rational conclusion that, due to Dr. Wang’s alleged

conduct, reasonable parents in the Joneses’ position would

JONES V. WANG 17

not have felt free to leave with G.J. According to the Joneses,

Dr. Wang coerced them into consenting to G.J.’s

hospitalization—and not withdrawing that consent throughout

the weekend—in a number of ways. First, Dr. Wang told the

Joneses that the tests she wished to perform would require

G.J.’s hospitalization, despite knowing that the tests could be

conducted on an outpatient basis. This misrepresentation

would lead a reasonable parent to believe that she could not

withhold consent lest she be deemed to have refused her child

necessary medical treatment.3

Second, Dr. Wang marshaled considerable authority to

cajole the Joneses into granting consent and to prevent them

from withdrawing it. Dr. Wang informed Jill that Dr. Wang

was a mandated child abuse reporter and that G.J.’s injuries

were consistent with child abuse. Dr. Wang contacted the

police, who interviewed Jill on the matter of child abuse and

accompanied G.J. and the Joneses to the ER. Dr. Wang also

told Rivas that the tests she wished to perform required

hospitalization, prompting Rivas to tell the Joneses that they

should “keep playing ball” and that G.J. would be detained if

3

In declaring that the only “affirmative evidence” that Dr. Wang seized

G.J. was “actions of third parties,” Dissent 33, the dissent overlooks Dr.

Wang’s deliberate misrepresentation that the testing she wished to perform

required hospitalization.

The dissent also suggests that we have impermissibly examined Dr.

Wang’s “subjective intent,” rather than the objective circumstances

surrounding G.J.’s seizure. Id. at 34 (citing Scott v. United States, 436

U.S. 128, 138 (1978)). We respectfully disagree. Dr. Wang represented

to the Joneses that G.J.’s tests required hospitalization. This was untrue.

These are both objective facts, neither of which depends on Dr. Wang’s

subjective intent in making the misrepresentations. And based on these

facts, reasonable parents in the Joneses’ position would not feel free to

refuse G.J.’s hospitalization.

18 JONES V. WANG

the Joneses tried to take him home. Dr. Wang coordinated

behind the scenes with Hayes, the SCAN team case manager,

to keep G.J. at the hospital, knowing that she could not

formally take G.J. into custody. All of this took place in the

face of the Joneses’ repeated requests for permission to take

G.J. home. Most importantly, at some point during the

weekend, Dr. Wang directed that a sitter be placed in G.J.’s

room to prevent the Joneses from being alone with him.

Short of a formal hold, there is no stronger message to parents

that they are not free to make decisions for their child than

that the state does not trust them to be alone with their infant

son.4

We offer no opinion on the ultimate question of whether

the Jones’s constitutional rights were violated. We decide

only that a jury is needed to determine what a reasonable

parent in the Jones’s position would have believed and

whether Dr. Wang’s conduct amounted to a seizure. Based on

the facts that the Joneses have alleged, however, a rational

jury could conclude that Dr. Wang’s efforts would lead

reasonable parents in the Joneses’ position to believe that

they could not take G.J. home. See Kia P., 235 F.3d at 762.

In short, the Joneses’ allegations support a claim that Dr.

Wang caused a seizure of G.J. For the same reasons, those

allegations support a rational conclusion that the Joneses’

4

The dissent observes that Dr. Wang told emergency staff not to

interfere should the Joneses attempt to leave the hospital with G.J.

Dissent 33. What the dissent overlooks is the record’s lack of any

evidence that the Joneses knew Dr. Wang had given this directive. If the

Joneses did not know that Dr. Wang told emergency staff not to prevent

them from leaving the hospital, then Dr. Wang’s instruction has no

bearing on whether a reasonable parent in the Joneses’ position would feel

free to refuse consent to G.J.’s hospitalization. See Kia P., 235 F.3d at

762; Schneckloth, 412 U.S. at 228.

JONES V. WANG 19

consent to G.J’s hospitalization was involuntary and therefore

ineffective.

Exigent Circumstances

Seizure of a child is permissible under the Fourth and

Fourteenth Amendments where there are exigent

circumstances. Exigent circumstances exist where an official

has “‘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.’” Kirkpatrick, 2015 WL

4154039, at *7 (quoting Rogers, 487 F.3d at 1294). On

appeal from the district court’s denial of qualified immunity

at the summary judgment stage, we must determine whether

the Joneses’ account of the facts permits a rational conclusion

that Dr. Wang had reasonable cause to believe that G.J. faced

serious bodily harm, the risk of which was so imminent that

injury was likely before a court order could be obtained. See

Rogers, 487 F.3d at 1294. We conclude that, based on the

Joneses’ version of events, a rational jury could conclude that

Dr. Wang’s seizure of G.J. did not occur under exigent

circumstances.

We do not take lightly the undisputed evidence that G.J.

had newly discovered rib fractures on March 5, 2010, a week

after the initial accident. However, there are several facts that

undermine a reasonable belief that G.J. faced such imminent

harm that Dr. Wang or DCFS had no time to obtain a warrant,

and the question of exigency even in a close case should be

put to a jury.

First, DCFS social worker Shawn Rivas, who had the

statutory authority to issue a hospital hold, decided he had an

insufficient basis to do so after speaking with Dr. Wang and

20 JONES V. WANG

meeting with the Joneses. See Mabe, 237 F.3d at 1108 (social

worker’s decision to delay the removal of a child from a

residence raised a “serious question” about the

reasonableness of the belief that the child was in imminent

danger); see also Rogers, 487 F.3d at 1296 (“That neither [the

Child Protective Services social worker] nor the other staff

members thought that the allegations required immediate

action militates against a finding of exigency.”). In fact,

Rivas continued to conclude that a hospital hold was

inappropriate until Monday, March 8, 2010, when Dr. Wang

first told him that G.J.’s injuries were “highly suspicious.”

Rivas’s understanding until March 8, 2010, when he finally

issued the hospital hold, was that Dr. Wang had not

concluded that G.J.’s rib fractures were the result of abuse

and therefore that there was an insufficient basis for a

hospital hold.

Second, aside from G.J.’s rib fractures, which could have

been sustained by G.J. during the accidental fall, there was no

evidence that the Joneses neglected G.J., and there was no

evidence pointing to either Jill or Michael as the potential

abuser. See Wallis, 202 F.3d at 1142 n.14 (noting that the

state must have reasonable evidence that a specific parent is

unfit and that the child is in danger from that parent and may

not separate a child from one parent because of the real or

imagined conduct of the other parent). During G.J.’s first

hospitalization, every physician accepted Jill’s story about the

fall down the stairs, found nothing concerning about G.J.’s

complex skull fracture, and allowed G.J. to return home with

Jill and Michael after his hospitalization. It is undisputed that

Jill appeared appropriately concerned about G.J. throughout

the day on March 5. Jill willingly brought G.J. to the hospital

for abuse screening tests. And there is no evidence that

JONES V. WANG 21

Michael acted inappropriately after he arrived at the Pediatric

Ambulatory Clinic on March 5.

According to the Joneses’ version of the facts, even Dr.

Wang was not sure whether G.J. had been abused or whether

he would be in danger if he was sent home with his parents.

She knew that G.J. had no signs of retinal hemorrhaging, no

new skull fracture, and no leg fractures. At most, Dr. Wang

had evidence of new rib fractures, but she admitted that even

this evidence was not sufficient to show child abuse. Dr.

Wang also told Dr. Castro on Friday, March 5, 2010, that

security and the police should not be used to stop the Joneses

if they tried to leave the hospital with G.J. This suggests that

at the time she did not believe that G.J. would face an

immediate threat of serious physical injury or death if he left

the hospital with his parents, or at least that Dr. Wang could

not persuade DCFS of such a threat. It was not until Monday,

March 8, 2010, more than two days after G.J. was first

admitted to the hospital, that Dr. Wang told Rivas that G.J.’s

injuries were “highly suspicious” for child abuse and told him

to order a hospital hold.

In sum, the Joneses’ account of the evidence supports a

claim that Dr. Wang seized G.J., and did so despite the

absence of exigent circumstances.5 Accordingly, the first

5

The dissent suggests that we must defer to Dr. Wang’s conclusions

regarding G.J.’s injuries. Dissent 34. The question, however, is not

whether Dr. Wang reasonably surmised that G.J.’s fractures were the

result of abuse, but whether Dr. Wang could reasonably believe that G.J.

was likely to come to serious harm in the time it would take to obtain a

warrant. See Rogers, 487 F.3d at 1294. The dissent points to no evidence

in the record to suggest that G.J. faced such an immediate risk of harm if

permitted to return home with the Joneses, and we are aware of none.

Under our longstanding precedent, mere suspicion that specific injuries

22 JONES V. WANG

prong of the test for whether the district court correctly

denied qualified immunity at the summary judgment stage

has been satisfied.

Step Two: Clearly Established Law

The second prong of the qualified-

immunity analysis asks whether the right in

question was “clearly established” at the time

of the violation. Governmental actors are

“shielded from liability for civil damages if

their actions did not violate ‘clearly

established statutory or constitutional rights of

which a reasonable person would have

known.’” “[T]he salient question is . . .

whether the state of the law” at the time of an

incident provided “fair warning” to the

defendants “that their alleged [conduct] was

unconstitutional.”

Tolan, 134 S. Ct. at 1866 (alterations in original) (citation

omitted) (quoting Hope v. Pelzer, 536 U.S. 730, 739, 741

(2002)). Whether the law placed a state actor on reasonable

notice that her conduct would violate the Constitution must

be determined “in light of the specific context of the case, not

as a broad general proposition.” Brosseau v. Haugen,

543 U.S. 194, 198 (2004) (quoting Saucier v. Katz, 533 U.S.

194, 201 (2001)). We also must “take care not to define [this]

were the result of child abuse are not sufficient to detain a child. If we

were to hold that Dr. Wang’s suspicions justified a seizure in order to

confirm those suspicions or lay them to rest, the protections promised to

parents and their children by the Wallis line of cases would become

illusory.

JONES V. WANG 23

case’s ‘context’ in a manner that imports genuinely disputed

factual propositions.” Tolan, 134 S. Ct. at 1866. In other

words, we must determine whether a reasonable state actor in

Dr. Wang’s position—viewing Dr. Wang’s actions under the

totality of the circumstances known to her and in the light

most favorable to the Joneses—would know that (1) Dr.

Wang’s conduct “seized” G.J., and (2) exigent circumstances

did not justify the seizure.

We begin our analysis with the principle that “[t]he

constitutional right of parents and children to live together

without governmental interference is well established.” Mabe,

237 F.3d at 1107. Were we faced with a social worker who

detained a child without exigent circumstances, this case

would fall neatly within our existing case law. See, e.g.,

Kirkpatrick, 2015 WL 4154039, at *9–*10 (social workers

not entitled to qualified immunity for removing an infant

from the hospital and placing her in a foster home without

judicial authorization or a reason to believe that the child

would be harmed while in the hospital); Rogers, 487 F.3d at

1295 (social worker not entitled to qualified immunity for

removing children from parents’ custody because children’s

bottle rot, malnourishment, and the disorderly conditions of

their home did not present an imminent risk of serious bodily

harm as a matter of law); Mabe, 237 F.3d at 1108–09 (social

worker not entitled to qualified immunity for warrantless

removal of child from parents’ custody where facts

undermined reasonableness of belief that child was in

imminent danger of being molested by stepfather); Wallis,

202 F.3d at 1138–40 (police officers not entitled to qualified

immunity for warrantless removal of children from parents’

custody without specific, articulable evidence of imminent

abuse). What makes this case more difficult is that Dr. Wang

was a physician investigating child abuse, not a social

24 JONES V. WANG

worker, and the seizure occurred in a hospital. Therefore, the

question presented by this case is whether these two

facts—that Dr. Wang was a physician investigating abuse, not

a social worker, and that G.J. was detained in a hospital

following his parents’ consent to hospitalization—sufficiently

differentiate this case from our precedent in child abuse

investigations such that our precedent does not clearly apply.

We conclude that our case law provided fair warning to Dr.

Wang that detaining G.J. would violate the Constitution.6

First, our case law clearly establishes that Dr. Wang

“seized” G.J. Though we address whether our cases give an

official fair notice that her conduct violates the Constitution

“‘in light of the specific context of the case,’” the violation is

sometimes so “obvious” as to be clearly established “even

without a body of relevant case law.” Brosseau, 543 U.S. at

198–99 (quoting Katz, 533 U.S. at 201). As characterized by

the Joneses, Dr. Wang’s conduct so obviously caused G.J. to

be “seized” that no closely analogous case law is needed to

alert her to the fact. Dr. Wang told the Joneses that the tests

she wished to perform required hospitalization, despite

knowing that they could be done on an outpatient basis. No

6

The dissent suggests that our cases, such as Rogers, Mabe, and Wallis,

cannot furnish clearly established law because other circuits disagree with

them. Dissent 36, 38. However, this court regularly finds a principle to

be clearly established based solely on its own decisions. See Kirkpatrick,

2015 WL 4154039, at *9–*10 (finding an infant’s right not to be seized

from his mother’s custody at the hospital clearly established based on

Rogers); Rogers, 487 F.3d at 1297 (finding the law governing removal of

children from the home without judicial authorization clearly established

based on Mabe, Wallis, and Ram v. Rubin, 118 F.3d 1306 (9th Cir. 1997)).

We must continue to rely on our own cases to determine whether the law

is clearly established until this court sitting en banc or the Supreme Court

tells us that we may not.

JONES V. WANG 25

reasonable physician could fail to understand that this

misrepresentation would cause the Joneses to consent to

hospitalize G.J., knowing that refusal could be construed as

refusing medical treatment to their child. Dr. Wang also

caused a SCAN team member to escort the Joneses to the ER

and posted a sitter in G.J.’s hospital room over the weekend.

Any reasonable physician would realize that this conduct

communicated to the Joneses that they were not free to

revoke their consent to G.J.’s hospitalization. That Dr. Wang

seized G.J. is “obvious” enough to warrant affirming the

district court’s denial of summary judgment.7 See id. at 199.

Second, our cases put a reasonable physician in Dr.

Wang’s position on notice that G.J.’s condition did not

indicate an imminent risk of serious bodily injury. In Rogers,

we held that two children’s bottle rot and malnutrition, as

well as the squalid conditions in their home, did not alone

require the conclusion that serious injury would result if the

children were not immediately removed. 487 F.3d at

1295–96. In addition, we observed that social workers had

twice decided that complaints of the conditions in the

children’s home did not warrant immediate action. Id. at

1296. Here, as in Rogers, G.J. suffered injuries, but the

record contains no evidence that G.J.’s medical condition

indicated that he risked imminent, serious injury if not

immediately removed from the Joneses’ custody. Here, as in

Rogers, a social worker familiar with G.J.’s

7

The dissent appears to take issue with this reasoning. Dissent 37 n.3.

The dissent does not, however, explain how it could be anything other

than obvious to a reasonable medical professional that telling parents that

their child must be hospitalized would cause reasonable parents to believe

that they were not free to take their child home, especially after

government officials warned the parents to “keep playing ball” or risk

having their child detained.

26 JONES V. WANG

condition—Rivas—believed that seizing G.J. was not

warranted between March 5 and 8, 2010. Accordingly,

Rogers clearly established that Dr. Wang’s conduct between

those dates was not justified by exigent circumstances.8

Our recent decision in Kirkpatrick supports our

conclusion that Dr. Wang’s efforts to keep G.J. in the

hospital—as described by the Joneses—violated clearly

established law. In Kirkpatrick, in July 2008, social workers

removed a newborn infant from her methamphetamine-

addicted mother and placed the infant with a foster parent

without first seeking judicial authorization. 2015 WL

4154039, at *1–*2. We concluded that the social workers

violated the infant’s right to be free from unreasonable

8

The dissent draws a number of factual distinctions between the matter

before us and our earlier cases—Dr. Wang was not a social worker or

police officer, G.J. was not removed from a home, G.J.’s injuries were

more serious than those presented in other cases, and G.J. was too young

to be able to communicate. Dissent 37–38. What the dissent does not

explain is how these differences would deprive Dr. Wang of notice that

her conduct violated the law. First, our case law makes clear that, when

Dr. Wang took it upon herself to detain G.J. in the hospital, she acted as

a government official investigating potential child abuse, not a physician.

See Mabe, 237 F.3d at 1106 (holding that immunity turns not on “the

official’s title or agency, but on the nature of the function that the person

was performing”). Second, whether G.J. was removed from the home or

prevented from returning home makes no difference—Dr. Wang interfered

with the Joneses’ right to exercise custody over him. See Kirkpatrick,

2015 WL 4154039, at *9. Third, the extent of G.J.’s injuries and his

inability to speak do not change the ultimate question governing the

lawfulness of Dr. Wang’s conduct: whether Dr. Wang could reasonably

believe that G.J. would be seriously harmed in the time necessary to

obtain a warrant. See Rogers, 487 F.3d at 1294; Mabe, 237 F.3d at 1108.

Rogers and Mabe provided ample notice that Dr. Wang’s efforts to detain

G.J. at the hospital—as described by the Joneses—violated the

Constitution.

JONES V. WANG 27

seizure. Id. at *7–*9. We went on to conclude that the social

workers were not entitled to qualified immunity. Id. at *11.

We reasoned that the case was “not distinguishable from

Rogers” because, as in Rogers, no reasonable person in the

social workers’ position could think that the infant would

come to harm in the time it would have taken to obtain a

warrant. Id. at *9–*10 (citing Rogers, 487 F.3d at 1294).

That the infant in Kirkpatrick was removed from the hospital

rather than from the home made no difference. Id. at *9. If

the infant’s removal from her mother’s custody without

reason to believe that she faced an imminent risk of serious

harm violated clearly established law in July 2008, then so

did Dr. Wang’s alleged detention of G.J. at the hospital in

March 2010. See id. at *9–*10; see also Osolinski v. Kane,

92 F.3d 934, 936 (9th Cir. 1996) (holding that “post-incident

cases that make a determination regarding the state of the law

at the time of the incident are persuasive authority”).

Dr. Wang’s primary argument on appeal is that this case

falls in the interim period that occurs before a hospital hold

can be issued because further investigation is necessary,

rendering our precedent not clearly applicable. We agree that

this case falls within this interim period, but we reject the

contention that the constitutional standard clearly set forth in

our precedent does not apply to this period. As the district

court observed, it has been the clearly established law of this

circuit for over a decade that a state official may not seize a

child in the course of a child abuse investigation unless the

official has “‘reasonable cause to believe that the child is in

imminent danger of serious bodily injury.’” Mabe, 237 F.3d

at 1106–07 (quoting Wallis, 202 F.3d at 1138). Necessarily,

then, our case law prohibits an official from detaining a child

before the official develops a reasonable belief that a risk of

serious harm is imminent. It follows from this clearly

28 JONES V. WANG

established principle that an official may not detain a child

merely in the hope that further investigation will turn up facts

suggesting that exigent circumstances exist.

We next turn to whether this case is distinguishable from

the general rule because Dr. Wang is a physician

investigating child abuse rather than a social worker. Dr.

Wang insists that because she is a physician investigating the

cause of serious injuries sustained by an infant, the

constitutional standard that we have applied to social workers

is not clearly established with respect to her. Again, we

disagree. “It is well-settled that the immunity to which a

public official is entitled depends not on the official’s title or

agency, but on the nature of the function that the person was

performing when taking the actions that provoked the

lawsuit.” Id. at 1106. The appropriate frame for our analysis

therefore focuses on what Dr. Wang did, not her title or

person.

Dr. Wang was investigating child abuse in her capacity as

the medical director of the SCAN team. While Dr. Wang was

indeed using her medical training to determine whether G.J.’s

injuries were attributable to non-accidental causes, according

to the Joneses’ version of the facts, Dr. Wang’s primary goal

was not to treat or heal G.J. Rather, it was to investigate the

nature and extent of G.J.’s injuries and whether they were

caused by abuse. In detaining G.J. to confirm her suspicions,

Dr. Wang was operating not as G.J.’s pediatrician but as the

SCAN team medical director responsible for investigating

abuse.

This case presents complex legal and factual issues.

However, once the legal landscape is properly understood, the

simplicity of the Joneses’ claim underscores why the district

JONES V. WANG 29

court did not err when it denied Dr. Wang summary

judgment. We are cognizant of the Supreme Court’s

admonition that, “[w]hen properly applied, [the defense of

qualified immunity] protects ‘all but the plainly incompetent

or those who knowingly violate the law.’” Ashcroft v. al-

Kidd, 131 S. Ct. 2074, 2085 (2011) (quoting Malley v. Briggs,

475 U.S. 335, 341 (1986)). It is clearly established law that

a state actor may not remove a child from their parents’

custody absent a court order or exigent circumstances.

According to the Joneses, that is exactly what Dr. Wang did:

she orchestrated G.J.’s hospitalization without sufficient

evidence that G.J. was in imminent danger, implicitly coerced

the Joneses to consent to that hospitalization, and ensured

they could not remain alone with their child while Dr. Wang

made the final decision whether to request a hospital hold. If

the Joneses’ version of events were believed, a rational juror

could conclude that Dr. Wang knew she was violating the

law. Dr. Wang knew she did not have sufficient evidence to

detain G.J., yet a rational juror could find that she seized him

anyway to further her investigation. The clear guidance our

precedent provides to state officials investigating child abuse

would put any reasonable state official in Dr. Wang’s position

on notice that such conduct violated G.J.’s and the Joneses’

rights. Accordingly, because both prongs of the qualified

immunity test were satisfied, the Joneses are entitled to

attempt to prove their version of the facts to a jury and

summary judgment was not appropriate.9

9

We do not share our dissenting colleague’s fear that our decision will

interfere with social workers’ and other state officials’ efforts to protect

children from abuse. See Dissent 39. If, in the future, a state-actor

physician like Dr. Wang worries that discharging a child to his parents

will result in serious and immediate harm, that physician should do what

the Fourth and Fourteenth Amendments require—get a warrant to detain

the child. Nor will our decision prevent a physician from ordering

30 JONES V. WANG

III. State Statutory Privileges

We turn finally to Dr. Wang’s asserted state statutory

immunities to the Joneses’ state-law claims.10 We agree with

the district court that Dr. Wang is not entitled as a matter of

law to the reporter’s privilege under section 11172(a) of the

California Penal Code or discretionary immunity under

section 820.2 of the California Government Code.

Reporter’s Privilege Under California Penal Code

Section 11172(a)

Section 11172(a) of the California Penal Code provides

absolute immunity to a mandatory reporter of child abuse and

neglect, which includes physicians, against civil and criminal

liability for a mandatory report of child abuse. See Cal. Penal

Code § 11165.9, 11165.7(a)(21) (requiring reporting and

including physicians among mandatory reporters). Under

section 11172(a), the “reporter’s privilege” extends to

“conduct committed in furtherance of diagnosing whether

abuse occurred,” Arce v. Cnty. of L.A., 150 Cal. Rptr. 3d 735,

765 (Ct. App. 2012), as well as “subsequent communications

between the reporter and the public authorities responsible for

investigating or prosecuting abuse,” Robbins v. Hamburger

Home for Girls, 38 Cal. Rptr. 2d 534, 538 (Ct. App. 1995).

Here, however, Dr. Wang’s challenged conduct occurred after

medically necessary tests or procedures for a child. In doing so, that

physician need only be forthright and not misrepresent the nature of those

tests or procedures in a way that interferes with the parents’ ability to give

knowing and voluntary consent.

10

State-law immunities do not apply to federal constitutional claims

brought under 42 U.S.C. § 1983. Wallis, 202 F.3d at 1144.

JONES V. WANG 31

she reported G.J.’s case to DCFS. Viewing the facts in the

light most favorable to the Joneses, her complained-of

conduct usurped DCFS’s authority under California law to

take a child into temporary custody. See id. at 639 (explaining

that the reporter’s privilege does not extend to conduct that

usurps the role of DCFS); see also James W. v. Super. Ct.,

21 Cal. Rptr. 2d 169, 254–57 (Ct. App. 1993) (holding that

the privilege does not extend to unreasonable post-report

investigation). Therefore, we affirm the district court’s denial

of Dr. Wang’s motion for summary judgment on her

immunity under the reporter’s privilege.

Discretionary Immunity Under California Government

Code Section 820.2

Section 820.2 of the California Government Code grants

public employees immunity from liability for the employee’s

acts or omissions during the employee’s exercise of

discretion invested in her. Discretion is vested in the

employee when it is specifically assigned to the employee’s

agency by statute. Newton v. Cnty. of Napa, 266 Cal. Rptr.

682, 687 (Ct. App. 1990). Dr. Wang can point to no statute

granting her discretion to admit a child into the hospital for

the child’s safety. Therefore, the district court properly

denied Dr. Wang summary judgment on the grounds that she

is immune from the Joneses’ state law claims.

Conclusion

We do not know whether a jury will find—and we

express no opinion as to whether a jury should find—that Dr.

Wang seized G.J. or that she did so absent exigent

circumstances. Our task at this juncture is merely to

determine whether, accepting the Joneses’ version of the

32 JONES V. WANG

facts, Dr. Wang violated the Joneses’ clearly established

rights of which any reasonable child-abuse investigator

should have been aware. We conclude that, resolving all

factual disputes in the Joneses’ favor, the Joneses’ version of

the facts supports a claim that Dr. Wang seized G.J. from his

parents without exigent circumstances, which would

constitute a violation of the Joneses’ clearly established

constitutional rights. Therefore, at the summary judgment

stage, Dr. Wang is not immune from suit.

AFFIRMED.

McNAMEE, District Judge, dissenting:

I find that Dr. Wang is entitled to qualified immunity

because she did not violate either the Fourth Amendment or

clearly established law. From Harlow v. Fitzgerald, 457 U.S.

800 (1982), to Taylor v. Barkes, 135 S.Ct. 2042 (2015), the

Supreme Court’s direction has been consistent: particularized

facts and legal standards—not generalized propositions of

law—determine whether a state actor is entitled to qualified

immunity. The Court has stressed that “when properly

applied, [qualified immunity] protects all but the plainly

incompetent or those who knowingly violate the law.” al-

Kidd, 131 S. Ct. at 2085 (internal quotations ommitted).

Applying these principles to Dr. Wang’s case, I cannot join

the majority in denying qualified immunity to Dr. Wang, a

respected physician, professor, and 23-year veteran of the

UCLA Suspected Child Abuse and Neglect team whose

actions were anything but malicious or incompetent.

JONES V. WANG 33

I. Fourth Amendment Seizure

The record before us does not support a finding that Dr.

Wang violated the Joneses’ constitutional rights. I disagree

with the majority’s reasoning on a number of grounds. First,

the majority cobbles together multiple facts spanning over

three days to find that Dr. Wang seized G.J. However, as

noted in the opinion, “[a] seizure is a single act, and not a

continuous fact.” Hodari D., 499 U.S. at 625. I therefore

disagree with the majority’s analysis.

Second, the affirmative evidence does not show that the

Joneses gave involuntary consent. Even if we were to assume

that Dr. Wang seized G.J., a seizure of a child is reasonable

where the official obtains parental consent. James, 606 F.3d

at 652 n.2. “[T]he Fourth and Fourteenth Amendments

require that a consent not be coerced, by explicit or implicit

means, by implied threat or covert force.” Schneckloth,

412 U.S. at 228. The only affirmative evidence “implying”

that the Joneses did not give or maintain voluntary consent to

G.J.’s hospitalization stems from communications and actions

of third parties–nurses, police, and Rivas–to which no causal

link implicating Dr. Wang has been drawn. In fact, the record

shows that Dr. Wang unambiguously ordered that, without a

hold issued by DCSF, the Joneses were not to be prevented

from leaving with G.J. Further, the Joneses admit that Dr.

Wang did not explicitly threaten G.J.’s detention. Therefore,

as the affirmative evidence does not suggest that the Joneses

gave involuntary consent, we cannot find that Dr. Wang

violated the Joneses’ Fourth Amendment rights. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (holding that the

moving party bears no duty to negate the opponent’s claims).

34 JONES V. WANG

Third, the majority improperly uses Dr. Wang’s

subjective intent. If, as the majority suggests, the relevant

inquiry is whether the Joneses felt free to leave, then

unknown facts to the Joneses, such as Dr. Wang’s underlying

intent in recommending hospitalization, are immaterial. See

Scott v. U.S., 436 U.S. 128, 138 (1978). Moreover, as the

Fourth Amendment requires an objective analysis, it is

dispositive that the Joneses have offered no evidence, expert

testimony or otherwise, suggesting that Dr. Wang acted

objectively unreasonably in recommending accelerated

testing to address G.J.’s injuries. Id.; Celotex Corp., 477 U.S.

at 323. Accordingly, I find that Dr. Wang did not violate the

Joneses’ rights.

Turning now to exigency, deference must be given to Dr.

Wang’s findings of immediate harm. The majority argues that

no exigency existed because Dr. Wang had not “concluded

that G.J.’s rib fractures were the result of abuse.” Op. at 20.

However, our case law does not require a definitive

diagnosis. See Rogers, 487 F.3d at 1294; Mabe, 237 F.3d at

1108 (holding that exigency requires a state actor to hold at

least a “reasonable cause to believe” that a child would be

seriously harmed in the time necessary to obtain a warrant).

The record shows that Dr. Wang (along with Dr. Lauren Kim

and Yolanda Johnson (DCFS supervisor)) found that G.J.’s

newly-discovered injuries caused by his parents were “highly

specific and concerning for non-accidental trauma” and

believed that G.J. would be harmed if allowed to return home.

JONES V. WANG 35

It is undisputed that the medical literature supports this

finding.1 As it was only reasonable to assume that the

Joneses would have taken G.J. from the hospital upon his

release, Dr. Wang had “reasonable cause” to fear for G.J.’s

immediate safety.2 Accordingly, deference to Dr. Wang’s

finding of exigency is proper by mandate. See Saucier v.

Katz, 533 U.S. 194, 205 (2001) (cautioning against “the 20/20

1

The literature provides, in relevant part:

Overall, a rib fracture for children under three years of

age had a positive predictive value of 95% for the

diagnosis of non-accidental trauma. After exclusion of

children with a defined history of accident and/or

disease, the positive predictive value for non-accidental

trauma increased to 100%. Katherine Barsness M.D., et

al. The Positive Predictive Value of Rib Fractures as an

Indicator of Nonaccidental Trauma in Children,

Journal of Trauma, Vol. 54, No. 6, June 2003, at

1107–10); see also Blake Bulloch, et al., Cause and

Clinical Characteristics of Rib Fractures in Infants,

Pediatrics, Vol. 105, No. 4, April 2000, at 1–5,

(reporting that 82% of rib fractures in infants less than

one year old were caused by child abuse); and Christine

Chiaviello, et al., Stairway-Related Injuries in

Children, Pediatrics, Vol. 94, No. 5, November 1994,

at 679–81 (reporting that severe head injury is

compatible with stairway related fall, however

injuries involving multiple body regions, or severe

truncal or extremity injuries should prompt a

search for an alternate mechanism including

intentional trauma)(emphasis added).

2

Indeed, the likelihood of parents remaining in the hospital while

officials seek to obtain a warrant is “cold comfort when the life of a

newborn baby is at stake.” Kirkpatrick, 2015 WL 415039 at *15

(Kozinski, J., dissenting).

36 JONES V. WANG

vision of hindsight” in favor of deference to the judgment of

reasonable state actors on the scene).

Overall, even when viewed in the Joneses’ favor, the

record does not suggest that Dr. Wang violated the Joneses’

constitutional rights. In my opinion, G.J.’s progressing,

textbook injuries suffered while in the exclusive custody of

his parents gave Dr. Wang adequate evidence of child abuse

and imminent harm to meet even higher levels of suspicion

than that required by our case law. We should not now expose

Dr. Wang to liability simply because she recommended

further testing.

II. Clearly Established Law

Even assuming that Dr. Wang violated the Joneses’

constitutional rights, she is entitled to qualified immunity

because (A) the facts of this case differ materially from our

existing case law in 2010 and (B) the legal standards from the

other Circuits are in disagreement.

A. Wallis, Mabe, Rogers

Under the majority’s holding, Dr. Wang would be

exposed to liability because she recommended further

hospital testing and monitoring for a nonverbal infant

suffering from a complex depressed parietal skull fracture, an

occipital skull fracture, extra axial bleeding, and bilateral

posterior rib injuries. The majority does not dispute the

medical literature, of which Dr. Wang was aware, confirming

that these injuries were highly indicative of child abuse. Nor

does it contest either Dr. Wang’s or Michael Jones’s

conclusion that Jill Jones’s March 5 explanation for G.J.’s

injuries was inadequate. Nonetheless, the majority, citing

JONES V. WANG 37

Rogers, 487 F.3d at, 1295–96, and Mabe, 237 F.3d at

1106–07 (quoting Wallis, 202 F.3d at 1138), finds that there

was no “imminent danger of serious bodily harm” to G.J.3

We must apply the test–or what the majority calls the

“general rule”– announced in Wallis and adopted by Mabe

and Rogers “in light of the specific context of the case, not as

a broad general proposition.” Brosseau, 543 U.S. at 198. The

contextual similarities between Dr. Wang’s investigation and

our then-existing case law are therefore of paramount

importance in determining whether Dr. Wang knew or should

have known that her actions violated the constitution. See Id.

“Even a cursory glance at the facts,” City & Cnty. of San

Francisco, Calif. v. Sheehan, 135 S.Ct. 1765, 1776 (2015),

from Wallis, Mabe, and Rogers confirms just how different

those cases are from this one. This is not a case involving a

social worker or a police officer. Wallis, 202 F.3d at 1131;

Mabe, 237 F.3d at 1105; Rogers, 487 F.3d at 1291. This is not

a case where home removal is at issue. Id. This is not a case

where the injuries to the child were imagined, Wallis,

202 F.3d at 1131–32, specific to a certain time of day, Mabe,

237 F.3d at 1105, or mere signs of “child neglect”, Rogers,

3

To circumvent a portion of the qualified immunity analysis, the

majority submits, while concurrently finding that “[t]his case presents

complex legal and factual issues,” that Dr. Wang “obviously” seized G.J.

Op. at 25–26, 28–29. I oppose this argument based on my positions

expressed in the previous section. I also highlight that the sitter placed in

G.J.’s room did not materially change the Joneses’ freedom to leave, as it

is undisputed that Dr. Kim, the attending physician when the sitter was

placed, held both the obligation and authority to discharge the Joneses,

regardless of the sitter’s presence. While this fact does not necessarily

address whether the Joneses felt free to leave, it further confirms that the

record does not sufficiently implicate Dr. Wang.

38 JONES V. WANG

487 F.3d at 1291. Nor is this a case where the child was able

to communicate. Wallis, 202 F.3d at 1131–32; Mabe,

237 F.3d at 1105; Rogers, 487 F.3d at 1291. In sum, “there is

a world of difference,” Sheehan, 135 S.Ct. at 1776, between

a social worker removing young children without physical

manifestations of abuse from their homes and Dr. Wang

recommending hospital care to a nonverbal infant with

textbook head and rib injuries suggesting serious child abuse.

Given the unique situation presented in this case, a finding

that “every reasonable official [in Dr. Wang’s situation]

would have understood that what he is doing violated” a

constitutional right is simply unsupported. Taylor, 135 S.Ct.

at 2044; Anderson v. Creighton, 483 U.S. 635, 640 (1987).

B. Lack of Circuit Consensus

“[T]o the extent that a robust consensus of cases of

persuasive authority could itself clearly establish the federal

right [alleged], no such consensus exists here. If anything, the

opposite is true.” Sheehan, 135 S. Ct. at 1778 (internal

markings and citations ommitted); see Gates v. Texas Dept.

Of Protective and Regulatory Servs. 537 F.3d 404, 428–29

(5th Cir. 2008) (discussing the various standards applied by

the Circuits); Gomes v. Wood, 451 F.3d 1122, 1130 (10th Cir.

2006) (highlighting the broad disagreement concerning

exigency in child abuse investigations); Hatch v. Dep’t for

Children, Youth & Their Families, 274 F.3d 12, 21 (1st Cir.

2001) (calling Wallis the minority view). That the Circuits

cannot agree over the correct legal standard further calls into

question whether the Ninth Circuit’s child abuse investigation

law is “beyond debate.” al–Kidd, 131 S.Ct. at 2083.

JONES V. WANG 39

III. Conclusion

The lack of affirmative facts implicating Dr. Wang, the

distinct circumstances of this case, and the cornucopia of

child abuse investigation standards lead me to find that Dr.

Wang is entitled to qualified immunity. “Reasonable minds

may disagree concerning the quantum of risk faced by [G.J.],

but, under the circumstances, it was hardly malicious or

‘plainly incompetent’” of Dr. Wang to recommend additional

testing and monitoring. Kirkpatrick, 2015 WL 415039 at *16

(Kozinski, J., dissenting). I share Judge Kozinski’s concern

that “future babies will pay with their lives” due to the current

trajectory of our qualified immunity case law. Id. I also fear

that today’s decision will encourage state officials,

particularly investigating doctors, to forgo medically

reasonable tests and procedures before making life-altering

accusations. I therefore respectfully dissent from the

majority’s opinion.