Brittain v. Campbell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELAINE BRITTAIN, 

Plaintiff-Appellee,

v.

No. 03-57012

WILLIAM HANSEN; REBECCA SCOTT;

COUNTY OF SAN BERNARDINO,  D.C. No.

CV-01-00595-VAP

Defendants,

OPINION

and

BRIAN CAMPBELL, #C0191,

Defendant-Appellant.



Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, District Judge, Presiding

Argued and Submitted

September 15, 2005—Pasadena, California

Filed June 22, 2006

Before: J. Clifford Wallace, Barry G. Silverman, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Wallace;

Concurrence by Judge Silverman

6903

BRITTAIN v. CAMPBELL 6907

COUNSEL

Dennis E. Wagner, Deputy County Counsel, San Bernardino,

California, for defendant-appellant Brian Campbell.

George G. Romain, Haney, Buchanan & Patterson, L.L.P.,

Los Angeles, California, for plaintiff-appellee Elaine Brittain.

OPINION

WALLACE, Senior Circuit Judge:

Appellant Police Officer Brian Campbell takes this inter-

locutory appeal from the district court’s denial of his sum-

6908 BRITTAIN v. CAMPBELL

mary judgment motion based upon qualified immunity. We

have jurisdiction pursuant to 28 U.S.C. § 1292. We reverse.

I.

This appeal arises out of a child custody dispute between

Elaine Brittain and William Hansen, the unmarried parents of

Matthew Brittain (Matthew). Brittain and Hansen had previ-

ously litigated custody of Matthew in the San Bernardino

Superior Court. The adjudication resulted in a custody order

awarding Hansen sole legal custody of Matthew, who was

thirteen years old at the time of the events in dispute.

Although Hansen was the sole legal guardian, the superior

court awarded visitation rights to Brittain.

The custody order included a visitation schedule which

governed in the event that Brittain and Hansen were unable to

agree on one of their own. Brittain and Hansen rarely agreed

on a schedule. Two paragraphs of that order are central to this

appeal:

11. The last week during each period the minor is

off track from school, or if minor is not in a year-

round program, for three non-consecutive weeks

during summer vacation. Mother is to notify Father

prior to May 15 of each year of the three weeks dur-

ing summer vacation she intends to have the minor.

If the parties cannot agree on the specific three

weeks, Mother shall have the minor the last full

week of each of the months of June, July, and

August.

12. Father shall have the right to a three or four

week vacation each year in which he may remove

the minor from the state of California and during

which time the Mother’s visitation shall be sus-

pended. Father will give Mother a one month written

notice of the dates he intends to take his vacation.

BRITTAIN v. CAMPBELL 6909

On July 20, 2000, Hansen gave Brittain notice that he

would be taking Matthew for vacation from August 21 to Sep-

tember 3, 2000. When Hansen delivered the note, he told Brit-

tain that no replacement week would be provided.

On August 20, Hansen arrived at Brittain’s house to pick

up Matthew. Matthew went outside and told his father that he

would not be going with him because it was Brittain’s week

for visitation. Brittain called the police. It was not unusual for

law enforcement to be called to mediate this custody dispute;

Matthew estimated that it had occurred around forty times. By

the time Deputy Sheriff Dorough arrived, Hansen had left.

Brittain showed him the custody order. Dorough indicated

that he believed Brittain’s interpretation of the visitation order

was correct.

Hansen returned the following day to Brittain’s residence

with his sister, Rebecca Scott. Shortly thereafter, approxi-

mately 2:30 p.m., Officer Campbell arrived at Brittain’s resi-

dence. Hansen handed Campbell a copy of the child custody

order and a copy of Hansen’s note informing Brittain of his

intention to take Matthew on vacation. Campbell reviewed the

documents and discussed the dispute with Hansen.

Campbell then telephoned Brittain and asked her and Mat-

thew to come out of the residence. Brittain came out into the

front yard and opened a gate to admit Campbell onto the

property. Campbell and Brittain then discussed the custody

dispute and order. Brittain acknowledged receiving Hansen’s

July 20 note and never disputed the validity of the custody

order. Campbell stated that he believed paragraph 12 con-

trolled and therefore Hansen was entitled to custody for the

disputed week.

At this point, Brittain unsuccessfully attempted to call her

lawyers. Brittain then called the Highland Police Department

and asked to speak to the watch commander. After speaking

with Brittain, the watch commander asked to speak with

6910 BRITTAIN v. CAMPBELL

Campbell. At some point during this call, Campbell switched

on his recorder. Brittain stated that Campbell became irate

because she had called his supervisor and thereafter spoke to

her in alternately a “hostile and condescending tone” or “ag-

gressive and condescending tone.”

After speaking with the watch commander, Campbell and

Brittain resumed their discussion over the custody dispute.

Campbell expressed his opinion that “You can’t stop at line

25. You have to go on and read 26, [beginning of paragraph

12] the rest of it.” After additional argument, Brittain asked

Campbell for more time to try to contact her lawyers again.

Campbell refused and said that he was “deciding it right

now.” Campbell said that he was “going to take Matthew”

and that “[h]e’s going with [Hansen].” He then ordered Brit-

tain to bring Matthew out of the house. Brittain also stated,

and Campbell denies, that Campbell threatened her with arrest

if she did not comply. After stating that she would sue Camp-

bell and that “I can play any game I want with my son,” Brit-

tain agreed to bring Matthew outside the house.

The transfer of Matthew to Hansen was then apparently

accomplished without further incident. Campbell stated that

Matthew never indicated that he did not wish to go with Han-

sen. Matthew stated he was not sure if he told Campbell that

he did not wish to go with Hansen.

Campbell estimated that he had previously handled

between five and ten custody disputes during his fifteen years

as an officer. In those previous instances, Campbell did not

order an objecting parent to transfer a child.

Campbell testified that he had never met Hansen, Scott or

Brittain previously. However, Brittain has pointed to evidence

that allegedly supports the inference that there was a conspir-

acy between Campbell, Hansen, and Scott to deprive Brittain

of her visitation rights. In an April 4, 2000 incident, law

enforcement officers were called to mediate a similar dispute

BRITTAIN v. CAMPBELL 6911

and sided with Brittain. Matthew testified that Scott said that

“next time [we’re] going to get [our] cop.” Matthew also testi-

fied that, at some point, his aunt “did meet a cop at a bar,”

although Matthew did not know to which officer Scott was

referring. Matthew also believed that Campbell may have cal-

led Hansen and Scott by their first names. Matthew stated that

Scott and Hansen were “laughing and smirking” at times dur-

ing the dispute. Lastly, Matthew testified that Campbell

appeared to know that Hansen intended to go to Oceanside for

the vacation.

Brittain also argues that a tape recording from Campbell’s

belt recorder of parts of the August 20 incident shows a con-

spiracy among Campbell, Hansen and Scott and evidence

tampering. Brittain points out that the tape was not turned on

until about five minutes into the incident and that the tape was

turned off and on twice during the dispute. Based on this evi-

dence, the district court found that there was a material issue

of fact as to whether there was a conspiracy among Campbell,

Hansen and Scott.

II.

Although we ordinarily review only final judgments, offi-

cers are permitted to take an interlocutory appeal of a district

court’s denial of qualified immunity. Mitchell v. Forsyth, 472

U.S. 511, 530 (1985); Genzler v. Longanbach, 410 F.3d 630,

636 (9th Cir.), cert. denied, 126 S.Ct. 737 (2005). This is

because qualified immunity is “immunity from suit rather

than mere defense to liability . . . [and] is effectively lost if

a case is erroneously permitted to go to trial.” Mitchell, 472

U.S. at 526 (emphasis omitted). We do not resolve factual dis-

putes on interlocutory review, see Johnson v. Jones, 515 U.S.

304, 313-17 (1995), but “[w]here disputed facts exist, how-

ever, we can determine whether the denial of qualified immu-

nity was appropriate by assuming that the version of the

material facts asserted by the non-moving party is correct.”

KRL v. Moore, 384 F.3d 1105, 1110 (9th Cir. 2004), quoting

6912 BRITTAIN v. CAMPBELL

Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001) (as

amended). We review a district court’s denial of summary

judgment based on qualified immunity de novo. Genzler, 410

F.3d at 636.

Qualified immunity shields government officials “from lia-

bility for civil damages insofar as their conduct does not vio-

late clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted); see

also Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified

immunity protects “all but the plainly incompetent or those

who knowingly violate the law”). Consideration of qualified

immunity in a Section 1983 claim raises two questions.

Menotti v. City of Seattle, 409 F.3d 1113, 1152 (9th Cir.

2005). Under the approach set out by Saucier v. Katz, we first

must ask “whether a constitutional right would have been vio-

lated on the facts alleged.” 533 U.S. 194, 200 (2001). “If no

constitutional right would have been violated were the allega-

tions established, there is no necessity for further inquiries

concerning qualified immunity.” Id. at 201.

If a constitutional violation is established, we consider

“whether that right was ‘clearly established’ such that ‘it

would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.’ ” Menotti, 409 F.3d

at 1152, quoting Saucier, 533 U.S. at 202. “This inquiry is

wholly objective and is undertaken in light of the specific fac-

tual circumstances of the case.” San Jose Chapter of the Hells

Angels Motorcycle Club v. City of San Jose, 402 F.3d 962,

971 (9th Cir.), cert. denied sub nom., Decena v. San Jose

Charter of Hells Angels Motorcycle Club, 126 S.Ct. 796

(2005), citing Saucier, 533 U.S. at 201. “Under the Harlow

standard . . . an allegation of malice is not sufficient to defeat

immunity if the defendant acted in an objectively reasonable

manner.” Malley, 475 U.S. at 341. “The relevant, dispositive

inquiry in determining whether a right is clearly established

is whether it would be clear to a reasonable officer that his

BRITTAIN v. CAMPBELL 6913

conduct was unlawful in the situation he confronted.” City of

San Jose, 402 F.3d at 971, quoting Saucier, 533 U.S. at 202.

“[I]f officers of reasonable competence could disagree on this

issue, immunity should be recognized.” Malley, 475 U.S. at

341.

III.

We turn first to Brittain’s substantive due process claim.

There are four issues we must discuss in resolving this claim.

A.

The district court relied upon precedents concerning seizure

of children from custodial parents based on allegations of

child abuse, primarily two of our precedents, Ram v. Rubin,

118 F.3d 1306 (9th Cir. 1997), and Wallis v. Spencer, 202

F.3d 1126 (9th Cir. 1999), to hold that “the Fourteenth

Amendment prohibited [Campbell], absent an emergency,

from depriving plaintiff of custody of Matthew.” Quoting

Ram, the district court held that Brittain “could not be sum-

marily deprived of that custody without notice and a hearing,

except when the children were in imminent danger.” The dis-

trict court concluded that there was “no functional difference”

between the issues of custody and visitation.

Both Ram and Wallis were cases in which social workers

or police acted on the basis of suspected sexual abuse. See

Ram, 118 F.3d at 1309; Wallis, 202 F.3d at 1134-35. Both

cases have their doctrinal origins in, and relied upon, the

Supreme Court decision in Santosky v. Kramer, 455 U.S. 745

(1982). Santosky required, before parents could permanently

be deprived of custody based on child abuse, proof of that

abuse by clear and convincing evidence at a hearing. Id. at

769-70. Some of our later precedents expanded this protection

so that a custodial parent could not be deprived of physical

custody on a temporary basis without either an emergency or

6914 BRITTAIN v. CAMPBELL

a pre-deprivation hearing. See, e.g., Ram, 118 F.3d at 1310;

Caldwell v. LeFaver, 928 F.2d 331, 333 (9th Cir. 1991).

The first issue is whether the district court was correct that

there is “no functional difference” between custody and visi-

tation. We see this issue differently.

[1] There are vital distinctions between the child abuse pre-

cedents and the present matter that the district court failed to

consider. First, permanent custody is a greater interest than a

single visitation period. Santosky, for example, relied on the

premise that “[w]hen the State initiates a parental rights termi-

nation proceeding, it seeks not merely to infringe that funda-

mental liberty interest, but to end it.” 455 U.S. at 759.

Furthermore, “[i]f the state prevails, it will have worked a

unique kind of deprivation.” Id. (internal quotations and cita-

tion omitted). In the present case Brittain only alleges

infringement that will not effect that “unique kind” of depri-

vation.

[2] Our sister circuits have recognized that visitation is a

lesser interest than permanent custody. See Zakrzewski v. Fox,

87 F.3d 1011, 1013-14 (8th Cir. 1996); Wise v. Bravo, 666

F.2d 1328, 1332-33 (10th Cir. 1981). In Zakrzewski, the

father-plaintiff had lost custody due to a divorce decree and

only had visitation rights with his son. 87 F.3d at 1012. Cen-

tral to its holding, the Tenth Circuit recognized that

“Zakrzewski’s liberty interest in the care, custody, and man-

agement of his son has been substantially reduced by the

terms of the divorce decree . . . .” Id. at 1014. Similarly, Wise

held that the liberty interest in visitation was sufficiently lim-

ited that interference with that interest did not give rise to a

constitutional violation under 42 U.S.C. § 1983. Wise, 666

F.2d at 1333; see also Weller v. Dep’t of Soc. Servs., 901 F.2d

387, 394 (4th Cir. 1990) (holding that while some procedures

are sufficient “when visitation and placement decisions are at

stake, we believe that the greater liberty interest inherent in

the custody of one’s child requires something more”); cf. Elk

BRITTAIN v. CAMPBELL 6915

Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 13-18

(2004) (non-custodial parent lacks prudential standing to

bring Establishment Clause challenge based on relationship

with his daughter).

Treating visitation as identical to custody also fails to give

effect to the state court judgment. That judgment, which

awarded sole custody to Hansen, undeniably reduced Brit-

tain’s parental rights vis-à-vis Matthew. Those proceedings,

whose validity is unchallenged, led to Brittain’s loss of legal

custody and left her only with visitation rights. That judgment

undoubtedly had a profound impact on the relationship

between Brittain and Matthew, and we would be treating it as

a legal nullity if we held there was “no functional difference”

between legal custody and visitation.

The nature of the actions is also significantly different.

When the state seeks to terminate parental rights due to child

abuse, the state is required to prove abuse or neglect by clear

and convincing evidence. Santosky, 455 U.S. at 769-70. Such

hearings necessarily are adversarial in nature, with the gov-

ernment bringing accusations of fault against parents. Id. at

748, 759-62 (“[T]he factfinding stage of a state-initiated per-

manent neglect proceeding bears many of the indicia of a

criminal trial”) (citations omitted). When the government

brings legal actions against individuals and seeks to deprive

them of liberty interests, the constitutional concerns are at

their zenith. See Santosky, 455 U.S. at 756 (explaining that

termination of parental rights based on child abuse requires

heightened constitutional scrutiny because the actions are

“government-initiated proceedings that threaten the individual

with a significant deprivation of liberty or stigma”) (internal

quotations and citation omitted, emphasis added); see also In

re Winship, 397 U.S. 358, 362-65 (1970) (requiring proof

beyond a reasonable doubt for criminal convictions).

[3] By contrast, the states regularly adjudicate custody dis-

putes between the parents on a “best interests of the child”

6916 BRITTAIN v. CAMPBELL

standard. See Reno v. Flores, 507 U.S. 292, 303-04 (1993)

(“ ‘The best interests of the child,’ a venerable phrase familiar

from divorce proceedings, is a proper and feasible criterion

for making the decision as to which of two parents will be

accorded custody”). Such proceedings involve no government

accusations of fault or the government acting in an adversarial

role against the parents. Indeed, the Supreme Court has stated

that “persons faced with forced dissolution of their parental

rights have a more critical need for procedural protections

than do those resisting state intervention into ongoing family

affairs.” Santosky, 455 U.S. at 753 (emphasis added). Rather

than acting in a prosecutorial role, as the government does in

child abuse cases, here Campbell acted to resolve a dispute

between two individuals who both had liberty interests in the

physical custody of Matthew.

[4] By failing to recognize the lesser liberty interest in visi-

tation and the differing nature of this action from child abuse

hearings, the district court applied an erroneous legal stan-

dard.

B.

Having concluded that the child abuse cases are not the cor-

rect legal precedents to apply in this action, we must deter-

mine the framework that applies to the present situation:

where an officer intervenes in a child custody dispute between

parents, based on each parent’s claimed entitlement to present

custody.

Federal courts have “always been reluctant to expand the

concept of substantive due process because guideposts for

responsible decisionmaking in this uncharted area are scarce

and open ended.” Albright v. Oliver, 510 U.S. 266, 271-72

(1994) (plurality opinion), quoting Collins v. City of Harker

Heights, 503 U.S. 115, 125 (1992). The Court has cautioned

that we “must therefore exercise the utmost care whenever we

are asked to break new ground in this field, lest the liberty

BRITTAIN v. CAMPBELL 6917

protected by the Due Process Clause be subtly transformed

into the policy preferences of [federal judges].” Washington

v. Glucksburg, 521 U.S. 702, 720 (1997) (internal quotations

and citation omitted). Furthermore, “the Fourteenth Amend-

ment is not a font of tort law to be superimposed upon what-

ever systems may already be administered by the States . . . .”

County of Sacramento v. Lewis, 523 U.S. 833, 848 (1998)

(internal quotations and citation omitted). Substantive due

process is ordinarily reserved for those rights that are “funda-

mental.” See Glucksburg, 521 U.S. at 721-22.

[5] This case further implicates two separate lines of

Supreme Court cases in which the Court has urged particular

caution: those regulating police conduct, see Graham v. Con-

nor, 490 U.S. 386, 395 (1989) (refusing to extend substantive

due process to claims against officers for arrests, stops, and

excessive force), and those concerning domestic relations. See

Sosna v. Iowa, 419 U.S. 393, 404 (1975) (“[D]omestic rela-

tions [is] an area that has long been regarded as a virtually

exclusive province of the States”) (punctuation omitted);

Newdow, 542 U.S. at 12 (“[T]he whole subject of the domes-

tic relations of husband and wife, parent and child, belongs to

the laws of the States and not to the laws of the United

States”) (internal quotations and citations omitted).

[6] Brittain has offered no reason why the child abuse pre-

cedents should be expanded into parental child custody dis-

putes and instead relies on the proposition that the child abuse

precedents already directly apply to this case. As discussed

previously, there are significant differences between these two

areas. With no other proffered rationale and because of these

significant distinctions, we will not create a new substantive

due process right by extending the child abuse precedents into

child custody disputes between parents.

Our holding does not fully resolve this claim, however. We

must also examine more generally this constitutional protec-

tion to determine its application to this case.

6918 BRITTAIN v. CAMPBELL

[7] Substantive due process protects individuals from arbi-

trary deprivation of their liberty by government. See Lewis,

523 U.S. at 845-49. The Court has repeatedly “spoken of the

cognizable level of executive abuse of power as that which

shocks the conscience.” Id. at 846. “[O]nly the most egregious

official conduct can be said to be arbitrary in a constitutional

sense.” Id. (internal quotations and citation omitted). Such

conduct can be shown by “conduct intended to injure in some

way unjustifiable by any government interest.” Id. at 849.

[8] It is not enough to allege conscience shocking action,

however. “As a threshold matter, ‘to establish a substantive

due process claim a plaintiff must show a government depri-

vation of life, liberty, or property.’ ” Squaw Valley Dev. Co.

v. Goldberg, 375 F.3d 936, 948 (9th Cir. 2004) (punctuation

omitted), quoting Nunez v. City of Los Angeles, 147 F.3d 867,

871 (9th Cir. 1998). This is because “there is no general lib-

erty interest in being free from capricious government

action.” Id. at 949 (internal quotations and citation omitted).

Thus, in order to establish a constitutional violation based on

substantive due process, Brittain must show both a depriva-

tion of her liberty and conscience shocking behavior by the gov-

ernment.1 We next discuss each of these requirements.

1

The concurrence believes this appeal can be resolved solely on the

basis that Campbell “acted reasonably in interpreting the ambiguous court

order and in defusing the domestic dispute . . . .” Concur. op. at 6939. The

concurrence asserts that the appeal “is as simple as that.” Id.

This argument presupposes that the only legal issue is the reasonable-

ness of Campbell’s actions. Brittain argues, with some support, that sub-

stantive due process bars any governmental interference with her visitation

rights without a specific court order. We are obliged to address this argu-

ment, which would require affirming the district court if she were correct.

Because none of our precedents has set forth the applicable legal standard

for evaluating police involvement in custodial disputes, our analysis of

Brittain’s argument is necessarily detailed.

Unlike the concurrence, we will not assert the case is “as simple as”

assessing the reasonableness of Campbell’s actions without first establish-

ing that reasonableness is the applicable legal standard. Notably, the cor-

BRITTAIN v. CAMPBELL 6919

C.

1.

[9] We first consider whether Brittain had a liberty interest

in her court-ordered visitation rights. It is long-settled that

custodial parents have a liberty interest in the “companion-

ship, care, custody, and management” of their children. Stan-

ley v. Illinois, 405 U.S. 645, 651 (1972); see also Lassiter v.

Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981) (such right was

“plain beyond the need for multiple citation”); Miller v. Cali-

fornia Dep’t of Soc. Servs., 355 F.3d 1172, 1175 (9th Cir.

2004). We have not had occasion to decide whether parents

who have visitation rights, but lack legal custody, have a simi-

lar liberty interest.

[10] Most of the federal circuits to reach this issue have

determined that some liberty interest exists. See Zakrzewski,

87 F.3d at 1013-14; Franz v. United States, 707 F.2d 582,

594-602 (D.C. Cir. 1982) (considering complete and perma-

nent severance of parental relationship after mother and chil-

rect legal standard is whether Campbell’s actions “shock the conscience.”

Objective reasonableness is one means of assessing whether Campbell’s

actions meet that standard. See Moreland v. Las Vegas Metro. Police

Dep’t, 159 F.3d 365, 371 n.4 (9th Cir. 1998).

While the concurrence suggests that a footnote in Moreland provides

the applicable legal standard, Moreland considered a claim based on the

allegedly reckless use of police force, whereas this appeal concerns custo-

dial rights. Similarly, the concurrence’s citation of an out-of-circuit Fourth

Amendment precedent, Wilson v. Spain, 209 F.3d 713 (8th Cir. 2000), also

does not conclusively resolve the issue. While we agree with the concur-

rence that the same “shocks the conscience” standard ultimately applies,

some additional analysis is required to reach this holding.

We understand our colleague’s desire to simplify this appeal. This case

is one of first impression, however, and some detailed analysis is required.

We believe that reasoned analysis is preferable to unsupported assertions

of what the applicable legal standard should be.

6920 BRITTAIN v. CAMPBELL

dren were placed in witness protection program); Wise, 666

F.2d at 1331-33. The Fourth Circuit implicitly found a liberty

interest in visitation when it stated that while some remedies

were sufficient for visitation, “the greater liberty interest

inherent in the custody of one’s child requires something

more.” Weller, 901 F.2d at 394. The Seventh Circuit has

assumed that such a right exists. See Terry v. Richardson, 346

F.3d 781, 784 (7th Cir. 2003) (assuming, without deciding,

that a non-custodial parent has a liberty interest in “care, cus-

tody, and control” of his or her offspring).

[11] The rationale of these cases is compelling and we

therefore hold that non-custodial parents with court-ordered

visitation rights have a liberty interest in the companionship,

care, custody, and management of their children.2 Such an

interest is unambiguously lesser in magnitude than that of a

parent with full legal custody. Similar to the Eighth Circuit,

we hold that Brittain’s “liberty interest in the care, custody,

and management of [her] son has been substantially reduced

by the terms” of the state court custody judgment. See

Zakrzewski, 87 F.3d at 1014; see also Weller, 901 F.2d at

394. In doing so, we recognize the obvious reality that visita-

tion is a lesser interest than legal custody, a fact to which par-

ents seeking full legal custody of their children would

undoubtedly attest. We reiterate that to hold otherwise would

fail to give proper effect to the state court’s judgment.

2.

[12] Having determined that Brittain has a liberty interest

at stake, Brittain must show a deprivation of that interest to

have a cognizable Section 1983 claim. Two of our sister cir-

cuits have held that a relatively minor infringement on this

liberty interest in visitation will not give rise to a Section

2

The fact that none of our prior decisions has addressed whether parents

have a liberty interest in visitation is another factor that makes this appeal

more complicated.

BRITTAIN v. CAMPBELL 6921

1983 substantive due process claim. See Zakrzewski, 87 F.3d

at 1014-15; Wise, 666 F.2d at 1333; see also Terry, 346 F.3d

at 786 (referring to de minimis approach of Wise and

Zakrzewski but concluding it unnecessary to decide in that

case whether that plaintiff’s “interest is too insignificant to be

actionable”); Brown v. Brienen, 722 F.2d 360, 364 (7th Cir.

1983) (citing Wise for proposition that visitation rights cannot

give rise to Section 1983 action). The factual circumstances

of both Zakrzewski and Wise are similar to the present action

and merit our discussion.

In Zakrzewski, a divorce decree had given visitation rights

to Zakrzewski with his son and sole legal custody to his ex-

wife. 87 F.3d at 1012. After Zakrzewski properly took physi-

cal custody of his son for Memorial Day weekend, a dispute

arose as to who had custody for the following week. Id. at

1013. The ex-wife’s attorney called the sheriff’s office and

accused Zakrzewski of violating the terms of the divorce

decree and requested assistance in regaining physical custody

of the child. Id. The sheriff then called Zakrzewski, warning

him that if he did not return his son, he would be charged with

a felony. Id. Zakrzewski went to the sheriff’s office to protest

the demand, but the sheriff reiterated his warning. Id. On the

way home from the sheriff’s office, Zakrzewski was pulled

over by two deputies who told him to turn over his son or they

would arrest him. Id. Zakrzewski then agreed to deliver his

son to his ex-wife. Id. The Eighth Circuit held that the

infringement of Zakrzewski’s liberty interest was not suffi-

cient to give rise to a substantive due process claim. Id. at

1014-15.3

3

The concurrence apparently believes that Zakrzewski takes a position

contrary to Wise and “left open the possibility” that under different cir-

cumstances the same amount of deprivation might be constitutionally cog-

nizable. Concur. op. at 6941. This belief is squarely at odds with the

language in Zakrzewski. That case clearly states that its “holding that this

case presents no constitutional violation is consistent with a similar Tenth

Circuit case,” 87 F.3d at 1014, citing Wise. Furthermore, Zakrzewski

6922 BRITTAIN v. CAMPBELL

Similarly, in Wise, the plaintiff-father had lost legal custody

of his daughter in a divorce decree but obtained visitation

rights. 666 F.2d at 1330. The Tenth Circuit described the situ-

ation which gave rise to his lawsuit as follows:

On March 17, 1978, Wise took his daughter for an

extended visit following an oral agreement with

Gayle. On March 24, 1978, Gayle phoned Wise

advising him that she wanted their daughter back

that night. Wise refused, claiming that he didn’t have

to return the child at that time. . . . [B]oth Wise and

Gayle called the Police Department. In addition,

Gayle called Captain Bravo at his home. Later that

evening, Captain Bravo and five other police officers

arrived at Wise’s apartment to retrieve the girl. The

officers knocked on the door, identified themselves

as police officers, and asked to come in. Upon seeing

Bravo, Wise stated that he was “not welcome” in the

apartment. Officer Avery stated that Bravo was an

officer and had as much right as the rest to enter. The

police then entered the apartment without further

objection from Wise. Avery told Wise that they were

there for the purpose of returning the little girl to her

mother. Wise consented and released his daughter to

the police officers.

quotes language from Wise that “any deprivation of Wise’s visitation

rights was so insubstantial in duration and effect it failed to rise to a fed-

eral constitutional level,” and then states “[t]he case before us is, for the

most part, indistinguishable from Wise, and we agree with the reasoning

set forth in that case.” Id. (emphasis added). Thus, it is clear that

Zakrzewski is not contrary to Wise.

The concurrence’s quotation that “the one-time interpretation of

Zakrzewski’s right to visitation in this case does not amount to a depriva-

tion of liberty” actually supports the proposition that a longer visitation

period might give rise to a viable claim. It does not support the concur-

rence’s apparent belief that a wrongful deprivation of visitation, no matter

how short in duration, would support a substantive due process claim.

BRITTAIN v. CAMPBELL 6923

Id. Wise also stated that one of the officers “carried ‘a little

black decanter sort of thing,’ which he assumed to be Mace,

and that he felt threatened by the object’s presence.” Id. The

Tenth Circuit concluded that “[a]ny deprivation of Wise’s vis-

itation rights was so insubstantial in duration and effect [that

it failed] to rise to a federal constitutional level.” Id. at 1333.

The court further held that Section 1983 “should not be

viewed as a vehicle to resolve a dispute involving visitation

rights-privileges. That is a subject uniquely reserved to the

state court system.” Id.4

4

Though prominently briefed by Campbell, Brittain failed to cite, let

alone distinguish, Wise and Zakrzewski in her appellee brief. At oral argu-

ment, Brittain offered three unpersuasive reasons for distinguishing those

cases. First, Brittain pointed out that the custody order granting Brittain

visitation rights refers to “custody” and not visitation. Brittain therefore

tried to distinguish those cases on the basis that Brittain has “custody

rights” rather than visitation.

The use of the word “custody” to which Brittain refers is found in this

sentence: “Mother shall have custody of Matthew for purposes of visita-

tion for the following times . . . .” Moreover, the order grants “physical

and legal custody” to Hansen and then specifies her rights under the head-

ing “Mother’s visitation rights.” This reference to “custody” is obviously

a reference to physical custody during visitation. The right involved in this

case is clearly visitation and Wise and Zakrzewski cannot be distinguished

on that basis.

Brittain next argued that the deprivation in this case is greater than in

Wise and Zakrzewski. It is true that the visitation period in Wise is unclear

because it was pursuant to an oral agreement that was not resolved by the

court. See Wise, 666 F.2d at 1330, 1333. However, the disputed visitation

period in Zakrzewski, like this case, was one week. 87 F.3d at 1012-13.

Lastly, Brittain attempted to distinguish Wise and Zakrzewski on the

basis that the transfers of those children were “consensual.” However, the

close factual similarity of Zakrzewski once again refutes this argument.

Like this case, the transfer of the child in Zakrzewski was effected only

after repeated threats of arrest. 87 F.3d at 1013. Indeed, Zakrzewski had

also been threatened with being charged with a felony. Id. at 1013. Simi-

larly, in Wise, the transfer was accomplished after the police came to

Wise’s residence and ordered him to transfer the child, under the per-

ceived threat of force. 666 F.2d at 1330.

6924 BRITTAIN v. CAMPBELL

The district court sought to distinguish Wise and

Zakrzewski on the facts, however. The district court held that

“[t]he most that can be said about Wise and Zakrzewski is that,

under the facts of those cases, the courts held that the alleged

violations did not rise to the level of a federal constitutional

violation.” Then, without any analysis distinguishing those

facts from the facts of this case, the court said that the evi-

dence proffered by Brittain was sufficient to state a constitu-

tional violation. We do not believe the factual circumstances

are materially different and we do not give such a restrictive

reading to Wise and Zakrzewski. Like Zakrzewski, the transfer

of the child was only accomplished under a threat of arrest

(and also a threat of a felony charge), which led to the loss of

one week of visitation. In both cases the police ordered the

transfer of the child over the protest of the parent that they

were entitled to custody. Lastly, in both cases, the police

intervened in a child custody dispute and acted on behalf of

the parent with legal custody. The attempt to distinguish these

cases as presenting significantly different factual circum-

stances is unpersuasive.

We hold that the deprivation of Brittain’s liberty interest in

custody over Matthew, like the deprivations in Wise and

Zakrzewski, did not rise to the level of a federal constitutional

violation. In so holding, we are mindful that this case arises

in the intersection of several fields of law where federal courts

have shown the greatest hesitation in creating new federal

mandates. We will not disregard this justifiable caution

lightly. Substantive due process vindicates those interests

which are fundamental and, contrary to Brittain’s theory, may

not to be used as a “font of tort law to be superimposed upon

whatever systems may already be administered by the States

. . . .” Lewis, 523 U.S. at 848 (internal quotations and citation

omitted). Allowing Section 1983 substantive due process

claims to proceed under the alleged deprivation of liberty here

could have unfortunate consequences for our federal system.

It could dramatically interject federal courts and federal law

into domestic relations disputes involving children which, as

BRITTAIN v. CAMPBELL 6925

previously pointed out, is “an area that has long been regarded

as a virtually exclusive province of the States.” Sosna, 419

U.S. at 404; see also Newdow, 124 S.Ct. 2301 at 2309.

We are also mindful that Brittain’s visitation rights, unlike

custodial rights, are a creation of state law. The extent to

which other creations of state law resembling parental rights,

such as foster parents and de facto parents, give rise to accom-

panying constitutional liberty interests depends on the con-

texts in which the issues are raised. See Miller, 355 F.3d at

1176 (“Nor does the fact that the Millers were ‘de facto’ par-

ents under California law for purposes of the juvenile court

proceedings create a liberty interest in contact with the chil-

dren”); Backlund v. Barnhart, 778 F.2d 1386, 1390 (9th Cir.

1985) (“The relationship between this foster parent and foster

child is a creature of the Washington child welfare statutes.

Those statutes confer no new due process rights”). In line

with these cases, we believe that states should be given flexi-

bility in interpreting and enforcing a right of their own cre-

ation.

We therefore agree with our sister circuits that some “gate-

keeping” requirement is necessary to respect the strong feder-

alism and judicial restraint concerns at issue in cases such as

this. If any deprivation of visitation rights, no matter how

slight, can give rise to a substantive due process claim, liti-

gants will not only be able to use substantive due process as

a “font of tort law,” but also as a tool to transform federal

courts into family courts. In the particular custody dispute

before us, the police had been called out to mediate on as

many as forty occasions. The proper venue to litigate at the

very least most of these disputes is in state court. If every cus-

tody dispute, including ones only concerning a weekend or

even an hour of visitation, can give rise to a federal claim

necessitating federal interpretation of a state custody order,

federal courts could rapidly become de facto family courts.

Such a result is not permitted by Supreme Court jurispru-

dence.

6926 BRITTAIN v. CAMPBELL

It is not, however, for us to determine whether we should

impose as strict a threshold requirement as Wise and

Zakrzewski. We need not hold that visitation rights will never

give rise to a substantive due process claim. Cf. Wise, 666

F.2d at 1333 (Section 1983 “should not be viewed as a vehicle

to resolve a dispute involving visitation rights-privileges. That

is a subject uniquely reserved to the state court system.”);

Zakrzewski, 87 F.3d at 1015 (“The case before us is, for the

most part, indistinguishable from Wise, and we agree with the

reasoning set forth in that case.”). We need not reach the

question whether interference with a lengthy visitation period

or repeated interference with shorter periods may give rise to

a cognizable substantive due process claim. We need not

decide here whether interference that affects the existence of

visitation rights altogether, rather than discrete instances of

visitation, might give rise to a viable claim. Nor need we

reach the question whether custodial parents may bring suit.

[13] The reason why we need not address these issues is

because this is not such a case. Here the deprivation is of a

single week period in a long-running custody dispute. Given

the relatively short duration of the interference and limited

nature of the liberty interest compared to custody, we hold

that even if we departed from Wise and Zakrzewski, this case

will not support a substantive due process claim.

[14] Regardless whether visitation rights collectively may

be a “fundamental” liberty interest to the parent involved, we

do not believe a single instance of visitation, of a single week

in duration, is a “fundamental” right. As such, substantive due

process does not provide a remedy in this case.

Our approach to resolving this case heeds the Supreme

Court’s directive to “avoid constitutional issues when resolu-

tion of such issues is not necessary for disposition of a case.”

In re Snyder, 472 U.S. 634, 642 (1985); see also United States

v. Sandoval-Lopez, 122 F.3d 797, 802 n.9 (9th Cir. 1997)

(“We avoid constitutional questions when an alternative basis

BRITTAIN v. CAMPBELL 6927

for disposing of the case presents itself”). Thus, we hold for

another case whether child custody disputes may, and under

what circumstances, can give rise to a substantive due process

claim. While Brittain may well have possessed other state law

claims, substantive due process will not provide her relief in

this action.

A substantive due process claim is not a means for litigants

or federal courts to subvert family courts. Nor is it an excuse

to ignore strong concerns of federalism and judicial restraint.

Even if a threshold requirement of deprivation of liberty is

necessary to protect these interests, Brittain has failed to over-

come that threshold.

D.

[15] Brittain’s claims also fail because Campbell’s actions

were not “conscience shocking” as a matter of law. Camp-

bell’s interpretation of the visitation order was reasonable.

While there is a potential conflict between paragraphs 11 and

12, paragraph 12 (upon which Hansen and Campbell relied)

contains a specific clause which provided for the cessation of

Brittain’s visitation when paragraph 12 was invoked. Brittain

could point to no supersession clause and simply relied on the

argument that this interpretation would allow Hansen to

thwart the intent of paragraph 11. In refusing to accept Brit-

tain’s interpretation of the order, Campbell did not violate

Brittain’s substantive due process rights.

We need not decide whether Campbell’s interpretation of

the order is the best legal interpretation, because it is suffi-

cient to conclude, as we do, that it was reasonable and not

conscience shocking. We do not require police officers to act

as legal experts to avoid violating the Constitution; substan-

tive due process secures individuals from “arbitrary” govern-

ment action that rises to the level of “egregious conduct,” not

from reasonable, though possibly erroneous, legal interpreta-

tion. Indeed, in Zakrzewski the state courts later held the cus-

6928 BRITTAIN v. CAMPBELL

todial parent in contempt for violating the custody order and

denying Zakrzewski the visitation rights to which he was enti-

tled. 87 F.3d at 1014. Nonetheless, the Eighth Circuit still

held the officers’ actions, though based on an erroneous legal

conclusion that Zakrzewski was not entitled to custody, were

not conscience shocking. Id.

[16] The decision to effectuate the transfer of Matthew, and

thus enforce the state court judgment, was objectively reason-

able as a matter of law. Campbell was presented with a lawful

court order whose validity was conceded by Brittain.

Although the relevant clause suspending her visitation rights

was conditioned on notice being given at least one month in

advance, Campbell was presented with evidence that such

notice was given and Brittain conceded as much. Campbell

then reasonably determined that, under the state court order,

Hansen was entitled to custody at that point and that Brittain

was in direct violation of her obligations under that order.

[17] These undisputed facts entitled Campbell to take at

least two relevant actions under state law. Campbell was sta-

tutorily authorized under state law to take Matthew into pro-

tective custody if “[t]here are conflicting custody orders or

conflicting claims to custody and the parties cannot agree

which party should take custody of the child.” Cal. Penal

Code § 279.6(a)(3) (West 1999). Upon taking Matthew into

protective custody, Campbell further would have been permit-

ted, among other things, to “[r]elease the child to the lawful

custodian of the child . . . .” Id. § 279.6(b)(1). Alternately,

these facts would appear to have provided Campbell with

probable cause that Brittain was engaged in a felony, see Cal.

Penal Code § 278.5 (West 1999), by withholding a child from

a lawful custodian, thus entitling him to arrest her. See

Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If

an officer has probable cause to believe that an individual has

committed even a very minor criminal offense in his presence,

he may . . . arrest the offender”); see also Cal. Penal Code

§ 836 (West 2005) (“A peace officer may arrest a person . . .

BRITTAIN v. CAMPBELL 6929

[if] [t]he officer has probable cause to believe that the person

to be arrested has committed a public offense in the officer’s

presence [or the] person arrested has committed a felony,

although not in the officer’s presence.”).

[18] Thus, Campbell had statutory authorization both to

effectuate a transfer of Matthew and to arrest Brittain. In light

of these powers, we hold, as a matter of law, that Campbell’s

actions were not conscience shocking. Indeed, they were

objectively reasonable. See Moreland, 159 F.3d at 371 n.4 (if

an officer’s actions “were objectively reasonable, it follows

that his conduct did not offend the more stringent standard

applicable to substantive due process claims”). Even without

specific statutory authorization to make the transfer, Camp-

bell’s reasonable actions to enforce the state court order,

whose validity was conceded, is not conscience shocking. Nor

does a threat to arrest Brittain change this analysis as Camp-

bell appears to have possessed constitutional and statutory

authorization to arrest her. See Graham, 490 U.S. at 396

(“Fourth Amendment jurisprudence has long recognized that

the right to make an arrest or investigatory stop necessarily

carries with it the right to use some degree of physical coer-

cion or threat thereof to effect it”). Because Campbell’s

actions were not shocking, Brittain’s substantive due process

claim fails.5

5

Although not identified by either party, two additional cases from our

sister circuits address somewhat similar circumstances. In Hurlman v.

Rice, the Second Circuit considered a situation in which police officers

effected the transfer of a child, under threat of arrest, from a custodial par-

ent to a parent with visitation rights. 927 F.2d 74, 77-78 (2d Cir. 1991).

The officers did so on the basis of an order to show cause why she should

not be stripped of custody. Id. at 76. Furthermore, while the order in Hurl-

man contained a provision ordering immediate transfer of the child, that

provision had been stricken by a state judge. Id. Holding the dispute to be

primarily factual, the Second Court dismissed the interlocutory appeal for

lack of appellate jurisdiction. Id. at 78-81.

Hurlman is readily distinguishable from the present action. First, the

applicable order was not a state court judgment whose validity was uncon-

6930 BRITTAIN v. CAMPBELL

Brittain’s “conspiracy” evidence does not alter our determi-

nation of reasonableness. Under the Harlow objective reason-

ableness standard, subjective intent is not a relevant inquiry.

See Malley, 475 U.S. at 341 (“Under the Harlow standard . . .

an allegation of malice is not sufficient to defeat immunity if

the defendant acted in an objectively reasonable manner”);

see also Saucier, 533 U.S. at 210 (Ginsburg, J., concurring in

the judgment) (“Underlying intent or motive are not relevant

to the inquiry; rather, ‘the question is whether the officers’

actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them’ ”), quoting Graham, 490

U.S. at 397.

Thus, as long as Campbell’s actions were objectively rea-

sonable, his subjective intent is irrelevant. Brittain’s conspir-

acy allegations all amount to issues of intent, which while

tested, but rather an order to show cause. Furthermore, authorization to

transfer the child immediately had been specifically rejected by a state

court judge. Finally, the police transferred the child from a custodial par-

ent to a non-custodial parent, without any claimed right to physical cus-

tody at that time. Hurlman therefore presents no bar to holding Campbell

acted reasonably.

In Wooley v. City of Baton Rouge, the Fifth Circuit reversed summary

judgment based on qualified immunity in a case involving a police-

ordered transfer of a child. 211 F.3d 913, 927 (5th Cir. 2000). There,

police officers, acting on conflicting custody orders, required a transfer of

a boy from a woman caring for him, under the direction of the mother, to

the paternal grandparents. Id. at 917-18. Both sides produced family court

orders which established their right to custody. Id. at 917. Based on a spe-

cific Louisiana requirement for a civil warrant before transferring a child,

the Fifth Circuit held the officers’ actions were not objectively reasonable

and denied qualified immunity. Id. at 926. Wooley has already been effec-

tively distinguished on the basis of the Louisiana civil warrant requirement

in a case strikingly similar to this present action. See Williams v. Blaisdell,

173 F. Supp. 2d 574, 582 (N.D. Tex. 2001) (holding officer’s actions were

objectively reasonable in ordering transfer of child in visitation dispute

based on court order). Furthermore, California not only lacks such a war-

rant requirement, but affirmatively grants the police the authority to trans-

fer the child to the custodial parent through protective custody.

BRITTAIN v. CAMPBELL 6931

disputed, are not relevant. Brittain’s allegations regarding the

tape recording similarly are not relevant.

Brittain has also alleged that Campbell acted with “hostili-

ty” towards her during the August 21 incident. She asserts

Campbell spoke to her in a “very hostile and condescending

tone” as well as “nasty tone of voice.” However, substantive

due process does not guarantee a pleasant tone of voice or

courteous manner and assertions of hostile tone of voice do

not otherwise transform Campbell’s actions into conscience

shocking conduct.

Finally, Brittain contends that because Campbell’s usual

“policy” was not to order transfer of a child in similar circum-

stances, Campbell’s actions shock the conscience by deviating

from his past practice. At oral argument, Brittain’s counsel

stated that:

The issue is not whether it is unreasonable for a

police officer to look at a court order, and to enforce

it. The issue is whether it was unreasonable for a

police officer who has been in similar circumstances

before, and has adopted a procedure, which is to do

nothing and let the parties resort to the state court

. . ., to decide on this particular occasion to deny my

client . . . that opportunity.

Brittain has not cited any cases to support this proposition.

It is not conscience shocking that an officer would act in a

non-identical fashion in cases presenting similar (though not

identical) factual circumstances. This is especially true when

the alleged “procedure” is formed from five to ten previous

cases, spread over fifteen years, whose facts are not before us.

Campbell need not act with perfect consistency in similar cir-

cumstances to avoid violating the Constitution. The standard

for substantive due process violations is conscience shocking

behavior, not adherence to personal policy.

6932 BRITTAIN v. CAMPBELL

Brittain’s suggestion, if accepted, would also unnecessarily

burden police officers by preventing them from learning on

the job or adapting their procedures to new circumstances.

Substantive due process at most requires reasonable behavior,

not perfect personal consistency. Moreover, the procedures

for domestic relations are properly left to the states to develop

within constitutional limits. See Sosna, 419 U.S. at 404; Wise,

666 F.2d at 1332.

[19] Thus, even assuming that Brittain’s version of the

material facts is correct, she has failed to establish a violation

of substantive due process. Brittain has established neither a

sufficient deprivation of liberty nor conscience shocking con-

duct. The district court therefore erred in denying summary

judgment to Campbell on Brittain’s substantive due process

claim.

IV.

We next turn to Brittain’s procedural due process claim.

The district court applied two child abuse precedents, Ram

and Wallis, to hold that children cannot be removed from their

parent without notice and a pre-deprivation hearing, absent

imminent danger to the child. On appeal, Brittain, citing Ram

and Wallis, urges that “the accepted rule is that an official

may not effectively resolve a disputed custody issue between

a parent and another without following any due process proce-

dures.”6 Although Ram and Wallis both required pre-

6

The concurrence appears to believe that we can resolve this claim on

the basis that Brittain does not undertake a Matthews v. Eldridge analysis

and because “Brittain makes no further effort at describing what process

Officer Campbell owed her, and that is fatal to her procedural due process

claim.” Concur. op. at 6942. However, “it is [the court’s] job, not the

plaintiffs’, to explicate the standard that makes the facts alleged by the

plaintiffs adequate or inadequate to state a claim. [The court] cannot non-

suit them for [its] failure to do so.” See Vieth v. Jubelier, 541 U.S. 267,

301 (2004) (plurality opinion). Thus, we are required to set forth the appli-

cable legal standard for determining whether the state’s actions violate

Brittain’s due process rights.

BRITTAIN v. CAMPBELL 6933

deprivation hearings in child abuse cases, we have already

pointed out that it was erroneous to apply child abuse prece-

dents directly to child custody disputes. Child abuse prece-

dents, while potentially instructive, do not control this case or

dictate the constitutionally required procedures. Because of

the differing nature of child abuse actions, the procedural

safeguards required for resolving custodial disputes will ordi-

narily be less than those required in the child abuse prece-

dents.

[20] “The Fourteenth Amendment’s Due Process Clause

protects persons against deprivations of life, liberty, or prop-

erty; and those who seek to invoke its procedural protection

must establish that one of these interests is at stake.” Wilkin-

son v. Austin, 125 S. Ct. 2384, 2393 (2005). Having held that

Brittain has a protected liberty interest in the “companionship,

care, custody, and management” of her child by virtue of her

visitation rights, we must decide what process Brittain was

due.

Procedural due process claims should not be subject to de

minimis analysis. Unlike substantive due process claims, in

which interests either do or do not give rise to a claim, see

Brown, 722 F.2d at 364 (listing protected interests which will

not give rise to a Section 1983 claim), procedural due process

claims are resolved by balancing tests, where differing inter-

ests can give rise to many differing procedural requirements.

Moreover, Brittain has asserted what process she believes is required—

a pre-deprivation hearing—which is a claim we are required to resolve.

Notably, the district court, whose judgment we are reviewing, also specifi-

cally held that a pre-deprivation hearing was required, absent an emer-

gency.

It is somewhat ironic that the concurrence, which accuses us of underes-

timating the importance of custodial rights, would hold that a claim based

on those rights can be waived in its entirety for failing to use a preferred

method of argumentation.

6934 BRITTAIN v. CAMPBELL

See Wilkinson, 125 S.Ct. at 2395 (“[T]he requirements of due

process are flexible and call for such procedural protections

as the particular situation demands”) (internal quotations, cita-

tion, and punctuation omitted). Compare, e.g., Goldberg v.

Kelly, 397 U.S. 254, 264 (1970) (pre-termination hearing

required before welfare benefits may be discontinued) with

Mathews v. Eldridge, 424 U.S. 319, 349 (1976) (no evidenti-

ary hearing required before termination of disability benefits).

Moreover, an interest may simply be too weak, under the bal-

ancing tests, to require any additional procedures. See, e.g.,

Zakrzewski, 87 F.3d at 1014 (state post-deprivation remedies

to enforce visitation orders were constitutionally sufficient).

Furthermore, many of the reasons to be cautious with sub-

stantive due process are not present in procedural due process.

Procedural due process is not limited to interests which are

“fundamental.” Procedural due process also has not been con-

sidered to raise the same concerns of unbounded discretion

and judicial supremacy.

Having determined Brittain has a protected liberty interest,

we turn to what procedures were constitutionally required.

Mathews provides the applicable test for determining how

much process is due, and directs us to examine:

first, the private interest that will be affected by the

official action; second, the risk of an erroneous

deprivation of such interest through the procedures

used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the

Government’s interest, including the function

involved and the fiscal and administrative burdens

that the additional or substitute procedural require-

ment would entail.

424 U.S. at 334-35.

Brittain has not alleged any failure of post-deprivation pro-

ceedings. Presumably, Brittain could have petitioned the state

BRITTAIN v. CAMPBELL 6935

court for a clarification of the custody order and a makeup

visitation week. See Cal. Fam. Code §§ 3022, 3028 (West

2004); see In re Marriage of Kreiss, 19 Cal. Rptr. 3d 260,

261-62 (Cal. Ct. App. 2004) (California courts retain continu-

ing jurisdiction to enforce and modify custody orders). Brit-

tain instead challenges the lack of a pre-deprivation hearing

(citing Ram and Wallis) before she could be deprived of one

week of visitation. We must therefore determine whether a

pre-deprivation hearing was required under Mathews.

Under the first part of Mathews, there are three important

private interests at stake. First, there is Brittain’s interest in

being able to enjoy the visitation rights to which she is alleg-

edly entitled under the custody order without interference by

the police. Second, we must consider Hansen’s interest enjoy-

ing the custodial rights to which he is also allegedly entitled.

Finally, we must consider Matthew’s interest.

By requiring a pre-deprivation hearing before any coerced

transfer of a child, we would essentially award the parent then

holding the child with continued custody until the matter

could be adjudicated. The potential exposure of the custodial

parent is therefore greater because that parent has more custo-

dial time to lose. In addition, the liberty interest of the custo-

dial parent is already greater than the parent with visitation

rights. Hansen’s interest, as well as his potential exposure to

erroneous deprivation, is therefore greater in both magnitude

and duration.

Nor is there an overwhelming liberty interest in a single

week of visitation. Cf. Terry, 346 F.3d at 786 (“Losing a sin-

gle day of visitation differs in kind and duration from the

deprivations [in child abuse cases] cited by [plaintiff], which

is significant because the gravity of his loss determines the

process to which he is entitled”) (citations omitted). The

applicable interest here is even less, however. Because the

state courts could provide a makeup week or other relief, Brit-

tain’s liberty interest for this procedural due process analysis

6936 BRITTAIN v. CAMPBELL

is more limited. We must consider Brittain’s interest in having

a particular week of visitation, rather than a makeup week, as

well as her interest in not having any week infringed upon by

the police without a prior hearing. Cf. Mathews, 424 U.S. at

340 (“Since a [social security disability] recipient whose ben-

efits are terminated is awarded full retroactive relief if he ulti-

mately prevails, his sole interest is in the uninterrupted receipt

of this source of income pending final administrative decision

on his claim”). Against this we must weigh Hansen’s interest

in regaining custody, without needing to go though the time

and expense of a full pre-deprivation hearing, where there has

been a potentially wrongful withholding. Brittain’s interest is

therefore limited and substantially outweighed by the interest

of Hansen.

Matthew’s interests do not appear to affect the balance of

interests significantly. Children undoubtedly have an interest

in not being transferred by the police over the objections of

one of their parents. However, children also have an interest

in seeing that the custody schedule set out by the state court

is followed. This is particularly true as custody schedules are

usually adjudicated to be in the best interest of the child. See

Cal. Fam. Code § 3100 (West 2004). Finally, if children are

being wrongfully held by a parent, they have a clear interest

in being returned to the parent who is entitled to physical cus-

tody at the time without additional time-consuming proce-

dures. Matthew’s interests therefore do not appear to weigh

substantially towards or against a pre-deprivation hearing.

Under the second part of Mathews, there would undoubt-

edly be some value to additional proceedings and somewhat

lessened risk of erroneous deprivation. Given the exception-

ally compressed time schedule any pre-deprivation hearing

would require in order to adjudicate the very short periods of

time involved, this value is somewhat limited. We are also

mindful that many custodial disputes will be unambiguously

wrongful withholdings of children, rather than interpretive

disagreements over court orders. In such circumstances, the

BRITTAIN v. CAMPBELL 6937

value of additional procedures and the risk of erroneous depri-

vation are quite minimal and the interest of the parent whose

child is wrongfully withheld is exceptionally great.

Under the third part of Mathews, California’s interest in not

requiring pre-deprivation hearings is significant. The adminis-

trative costs and burdens of a hearing on the merits of a cus-

tody dispute are substantially greater than the interest in a

single week of visitation, especially where that week can be

made up at a later date. Additionally, California’s interest in

enforcing its court judgments is significant. See Duranceau v.

Wallace, 743 F.2d 709, 711-12 (9th Cir. 1984) (suggesting

“strong governmental interest” in “expeditious enforcement of

judgments” and stating that “[a]ny rule that requires hearings

after judgment diminishes the value of judgments and threat-

ens to turn litigation into an endless round of procedures with

no possibility of vindication or ultimate success”) (holding no

pre-deprivation hearing was necessary before the state could

enforce a disputed child support order). This interest would be

significantly diminished if we were to require a hearing

before any enforcement action can be taken. In the present

case, the police have been called out about forty times to

mediate this particular child custody dispute. If even a small

fraction of those disputes were to require hearings, the admin-

istrative burden would be very substantial.

In addition, we are also guided by our sister circuits who

have considered the issue of whether a pre-deprivation hear-

ing is required before visitation can be denied on the basis of

suspected child abuse. Although we believe it erroneous to

apply child abuse precedents directly to this action, such pre-

cedents are instructive. We point out, however, the nature of

the action, with the government acting in an adversarial and

accusatorial role, will often require additional procedures in

child abuse cases. See Santosky, 455 U.S. at 748-70.

The Eighth Circuit has held that there is no requirement of

a pre-deprivation hearing before visitation can be reduced.

6938 BRITTAIN v. CAMPBELL

See Fitzgerald v. Williamson, 787 F.2d 403, 408 (8th Cir.

1986) (visitation reduced based on suspicion of child abuse).

The court in that case held it was sufficient that the parents

could have “petition[ed] the juvenile court for modification of

custody orders at any time.” Id. (citations omitted). Similarly,

in Zakrzewski the court held that the availability of state post

deprivation remedies to enforce visitation orders was constitu-

tionally sufficient. 87 F.3d at 1014 (child custody dispute).

The Seventh Circuit has also held that neither a pre-

deprivation, nor immediate post-deprivation, hearing was con-

stitutionally required where the parent’s interest was only vis-

itation. See Terry, 346 F.3d at 786-87 (suspected child abuse).

Instead, the court held that available state remedies were suf-

ficient. Id. at 787. Finally, the Second Circuit has also held

that there was no clearly established right to a pre-deprivation

hearing before reduction of visitation. See Young v. County of

Fulton, 160 F.3d 899, 903 (2d Cir. 1998) (stating that all

cases to decide issue had found no right to pre-deprivation

hearing).

[21] Guided by these precedents and based on our analysis

under Mathews, we hold that no pre-deprivation hearing was

required before Brittain could be deprived of a week of visita-

tion. The available state procedures were sufficient to satisfy

the requirements of due process.

[22] The states are, of course, free to require pre-

deprivation proceedings by statute, as the state of Louisiana

apparently has. See Wooley, 211 F.3d at 926. California has

not, however, and we hold that California’s procedures did

not violate Brittain’s Fourteenth Amendment rights. Because

Brittain has failed to establish a violation of her procedural

due process rights, there is no need for further inquiry regard-

ing qualified immunity. See Saucier, 533 U.S. at 201. Camp-

bell is entitled to qualified immunity on the procedural due

process claim.

BRITTAIN v. CAMPBELL 6939

V.

Brittain would have us interject burdensome new federal

requirements into a field of law that is virtually the exclusive

province of the states. We will not do so. Nor will we dramat-

ically blur the vital distinctions between child abuse and child

custody precedents.

Brittain’s substantive due process claim fails because she

has not alleged a sufficient deprivation of liberty and because

Campbell’s actions were not conscience shocking. Addition-

ally, the Due Process Clause of the Fourteenth Amendment

did not require a pre-deprivation hearing before Campbell

could enforce the child custody order. Brittain has failed to

show a violation of either her substantive or procedural due

process rights; thus, Campbell is entitled to qualified immu-

nity. See Saucier, 533 U.S. at 201.

REVERSED.

SILVERMAN, Circuit Judge, concurring:

With all due respect, the majority makes this case much

more complicated than it needs to be. We should reverse the

denial of qualified immunity to Deputy Campbell because the

undisputed facts show that he acted reasonably in interpreting

the ambiguous court order and in defusing the domestic dis-

pute to which he had been summoned. It is as simple as that.

I.

Deputy Campbell was called to the scene of a dispute

between warring parents with a child caught in the cross-fire.

In reliance on his interpretation of the custody decree, the

father came to the mother’s house, with bags packed and

loaded in the car, ready to pick up the youngster and com-

6940 BRITTAIN v. CAMPBELL

mence a two-week vacation. In reliance on her interpretation

of the decree, the mother refused to let the boy go. It was to

this volatile situation that Deputy Campbell was called.

As this drama was playing out in the front yard of the

mother’s house, Campbell had to decide in a hurry what to do

to peaceably resolve the situation lest it escalate out of con-

trol, a scenario which is not unheard of in such matters. Both

parties relied on the terms of the custody decree. Although the

court order was not a model of clarity as to who was entitled

to Matthew on the dates in question, Campbell gave the

decree a reasonable interpretation and caused the matter to be

resolved in a civil fashion until the parties could return to

court for clarification of the decree. Even if Campbell were

mistaken in his interpretation, his conduct was exactly the sort

of immediate, on-the-scene judgment by a law enforcement

officer that qualified immunity was intended to protect. See

Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified immu-

nity protects “all but the plainly incompetent or those who

knowingly violate the law”).

Substantive due process protects individuals from arbitrary

deprivations, see Lewis, 523 U.S. at 845, not the conse-

quences of a reasonable, good-faith judgment call like the one

made in this case. As we said in Moreland, 159 F.3d at 371

n.4, if an officer’s actions “were objectively reasonable, it fol-

lows that his conduct did not offend the more stringent stan-

dard applicable to substantive due process claims.” Thus,

whatever the minimum standard of acceptable conduct for law

enforcement officers responding to a dispute between parents

over visitation rights, Campbell’s actions clearly did not fall

below that standard. For this reason, Campbell is entitled to

qualified immunity under the first prong of Saucier — specifi-

cally, the plaintiffs failed to establish that a constitutional

right was violated on the facts alleged. See Saucier, 533 U.S.

at 200 (“[T]he first inquiry must be whether a constitutional

right would have been violated on the facts alleged. . . .”).

BRITTAIN v. CAMPBELL 6941

II.

I write separately also to note a disagreement over another

point. According to the majority, “a single instance of visita-

tion, of a single week in duration,” is not a fundamental right.

(Emphasis in original.) I do not believe that is always true.

Even though a non-custodial parent may have visitation

“only” every other weekend, to some parents that weekend is

the moon and the stars. See, e.g., Brown, 722 F.2d at 364

(whether interest is substantial enough to warrant constitu-

tional protection “depends on the security with which it is

held under state law and its importance to the holder”). As a

former state-court trial judge who has presided over thousands

of domestic relations cases, I note that visitation rights are

profoundly important both to non-custodial parents and their

children. They are not afterthoughts; they are integral compo-

nents of custody plans. It is well known that children who

have regular, frequent, and hassle-free visitation with their

non-custodial parents survive the breakup of their parents’

relationship much better than those who do not.

Indeed, the Eighth Circuit’s decision in Zakrzewski actually

refutes the majority’s position that depriving a parent of a

one-week visitation period can never amount to a substantive

due process claim. In that case, the court concluded that the

officer’s conduct in transferring the child to the custodial par-

ent “was within the bounds of reasonableness” and thus dis-

missed the non-custodial parent’s substantive due process

claim. See 87 F.3d at 1014. It necessarily left open the possi-

bility that, under other circumstances, an officer’s conduct in

removing a child from a non-custodial parent absent an emer-

gency or court order may be so arbitrary or unreasonable as

to constitute a due process violation. Id. (“[T]he one-time

interruption of Zakrzewski’s right to visitation in this case

does not amount to a deprivation of liberty.” (emphasis

added)).

Had the decree in this case clearly granted visitation to

Brittain for the date and time in question, I fail to see why a

6942 BRITTAIN v. CAMPBELL

plainly wrongful or malicious deprivation of those rights by

a police officer, in the absence of an emergency or court

order, would not constitute an “abuse of power.” Lewis, 523

U.S. at 846. But that is not the case before us. Because Camp-

bell acted reasonably under the circumstances, there was no

deprivation of a constitutional right. Our inquiry should end

there. See Wilson v. Spain, 209 F.3d 713, 717 (8th Cir. 2000)

(“Since Spain’s acts were objectively reasonable, however, no

violation of the Fourth Amendment occurred, and there was

no ‘deprivation of rights.’ ”).

III.

With respect to her procedural due process claim, Brittain

also contends that in the face of the ambiguous decree, she

had a “right” to expect Campbell to leave Matthew with her

and do nothing at the scene except refer the parties back to

court. She makes a cursory reference to Ram and Wallis to

support that claim, but as the majority correctly points out,

those are cases involving the removal of children from their

homes and their placement in foster care by child protective

services workers, cases that have no relevance here. Brittain

makes no further effort at describing what process Officer

Campbell owed her, and that is fatal to her procedural due

process claim.