Stephen Sjurset v. Charles Button

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHEN SJURSET, personally and as No. 13-35851

next friend for N.S. and T.B.,

Plaintiff-Appellee, D.C. No.

6:12-cv-00282-

v. AA

CHARLES BUTTON, Stayton City

Police Department, in his individual OPINION

and official capacity; MICHAEL

MEEKS, Stayton City Police

Department, in his individual and

official capacity; SCOTT MUMEY,

Stayton City Police Department, in

his individual and official capacity,

Defendants-Appellants,

and

MARY ANNE MILLER, in her

individual capacity; DYAN

BRADLEY, in her individual capacity;

CITY OF STAYTON, a municipal

entity,

Defendants.

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, Chief District Judge, Presiding

2 SJURSET V. BUTTON

Argued and Submitted

October 14, 2015—Portland, Oregon

Filed December 4, 2015

Before: Ferdinand F. Fernandez, Ronald Lee Gilman,*

and Carlos T. Bea, Circuit Judges.

Opinion by Judge Gilman

SUMMARY**

Civil Rights

The panel reversed the district court’s order on summary

judgment denying qualified immunity to police officers, and

remanded in an action brought pursuant to 42 U.S.C. § 1983

in which plaintiff alleged that the officers took custody of his

children without reasonable cause or a court order, in

violation of plaintiff’s Fourteenth Amendment right to

familial association and the children’s Fourth Amendment

right to be free from unreasonable seizure.

The panel first rejected plaintiff’s contention that pursuant

to Johnson v. Jones, 515 U.S. 304 (1995), disputed factual

issues precluded it from hearing the officers’ appeal from the

*

The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.

Court of Appeals for the Sixth Circuit, 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.

SJURSET V. BUTTON 3

district court’s order. The panel held that Johnson was

inapplicable because this appeal was based on undisputed

facts as they related to a purely abstract issue of law—that is,

whether the officers violated clearly established law when

they acted in reliance on the determination made by

Department of Human Services officials that the children

were in imminent danger.

The panel held that the officers were not incompetent in

believing that they were legally authorized to act in reliance

on the Department of Human Services’ determination that the

children were in imminent danger. The panel further held

that even if the officers were mistaken in their belief that they

could remove the children at the direction of the Department

of Human Services without court authorization, their actions

were objectively reasonable under the circumstances.

Accordingly, the panel held that the officers were entitled to

qualified immunity and remanded the case to the district court

for entry of judgment in their favor.

COUNSEL

Edward S. McGlone III, Lake Oswego, Oregon, for

Defendants-Appellants.

Mikel Ross Miller, Bend, Oregon, for Plaintiff-Appellee.

4 SJURSET V. BUTTON

OPINION

GILMAN, Senior Circuit Judge:

In February 2010, three police officers from the Stayton

City Police Department (the Stayton officers), acting at the

direction of officials from the Oregon Department of Human

Services (DHS), entered the home of Stephen Sjurset and

assisted in removing his two young children from the

residence without a court order. Sjurset subsequently filed an

action on behalf of himself and his children against the

Stayton officers, four DHS officials, and the City of Stayton

pursuant to 42 U.S.C. § 1983. He alleged that DHS and the

Stayton officers took custody of his children without

reasonable cause to believe that the children were in

imminent danger of serious bodily injury, thus violating his

Fourteenth Amendment right to familial association and the

children’s Fourth Amendment right to be free from

unreasonable seizure.

At the summary-judgment stage of the case, the district

court dismissed Sjurset’s claims against the City of Stayton

and the two DHS officials who were not involved in the

decision to remove the children. It rejected claims by the

Stayton officers and the two remaining DHS officials that

they were entitled to qualified immunity. Only the Stayton

officers appeal. For the reasons set forth below, we

REVERSE the decision of the district court with regard to

the Stayton officers and REMAND the case to the district

court for entry of judgment in their favor.

SJURSET V. BUTTON 5

I. BACKGROUND

A. Factual background

On February 18, 2010, officials at DHS received a phone

call from a medical doctor’s office reporting that Jessica

Borchers—the significant other of Stephen Sjurset—had

tested positive that day for methamphetamine, amphetamines,

and marijuana. Borchers, who was pregnant at the time, lived

in Stayton, Oregon with Sjurset and her two- and five-year-

old children, N.S. and T.B. Sjurset is N.S.’s father and T.B.’s

legal guardian.

The incident was not the first of its kind. In 2007,

Borchers also tested positive for using methamphetamine

while pregnant with her second child, N.S. As a result of that

prior incident, both Borchers and Sjurset were convicted of

endangering the welfare of a minor under Or. Rev. Stat.

§ 163.575. T.B. was placed in temporary foster care until

Borchers successfully completed a drug-treatment program.

Acting on the newly registered complaint, DHS

immediately initiated an investigation. DHS case worker

Caryn Moller-Mata attempted to meet with Borchers and

Sjurset to verify the health and safety of the two children.

She first contacted Borchers on Friday, February 19, 2010.

Borchers said that she was out of town and that Sjurset was

taking care of the children. Moller-Mata then made several

attempts to contact Sjurset, but received no response. At the

end of the day, when she was unable to locate or meet with

either parent, Moller-Mata called the Stayton City Police

Department and requested that it dispatch officers to Sjurset’s

house over the weekend to conduct an in-person welfare

check on N.S. and T.B.

6 SJURSET V. BUTTON

At approximately 9:00 p.m. on Saturday, February 20,

officers Button, Meeks, and Mumey arrived outside Sjurset’s

house. Officer Button requested to speak with Borchers and

to see the children, but Sjurset refused to let the officers

inside the house without a warrant. When Borchers appeared

at the door, however, she said that the officers could view the

children through the front window.

Unsure of what to do next, the Stayton officers contacted

DHS for further guidance. DHS dispatched an on-duty social

worker, Mary Anne Miller, to the scene. On the way to

Sjurset’s house, Miller phoned Moller-Mata and the two

discussed Sjurset’s and Borchers’s prior child-endangerment

convictions and their refusals to cooperate with the ongoing

DHS investigation. Importantly, because these events

transpired on a Saturday evening, DHS officials could not

obtain a court order authorizing the children’s removal until

the following Monday morning, which was at least 36 hours

away. Miller then contacted her supervisor, Dyan Bradley, to

evaluate the situation. They discussed Borchers’s recent

positive drug test, Sjurset’s and Borchers’s refusal to

cooperate, their prior convictions, and the risk of leaving the

children in the care of the couple for another 36 hours. In

light of these concerns, Miller and Bradley made an on-the-

spot decision to take the children into protective custody

without a court order.

All the parties are in agreement that the Stayton officers

did not participate in the decision by Miller and Bradley to

take protective custody of the children. The parties further

agree that Miller and Bradley made the protective-custody

determination prior to the Stayton officers’ entry into the

house. Finally, the record indicates that the Stayton officers

did not make their own independent judgments as to whether

SJURSET V. BUTTON 7

there was probable cause to enter the home and remove the

children without a warrant.

In accordance with DHS’s determination, the Stayton

officers entered the house alongside Miller and removed N.S.

and T.B. The district court’s opinion notes that DHS

“concede[d] that there was no visual evidence of drug use in

the area of the house that the officials occupied while the

children were removed.” No other part of the house was

searched. N.S. and T.B. were placed into temporary foster

care and, following a “shelter hearing” two days later, DHS

obtained custody.

B. Procedural background

Sjurset brought an action on behalf of himself and his

children against the City of Stayton, the DHS officials, and

the Stayton officers under 42 U.S.C. § 1983, alleging that the

parties had (1) violated his Fourteenth Amendment right to

familial association and (2) violated the children’s Fourth

Amendment right to be free from unreasonable seizure by

removing the children in the absence of a court order or

evidence of imminent danger of serious bodily harm. He also

alleged that DHS officials Moller-Mata and Maria Randall

had presented false information at the shelter hearing, in

violation of his substantive- and procedural-due-process

rights. Id.

All the defendants moved for summary judgment on

Sjurset’s § 1983 claims, arguing that their actions did not

violate Sjurset’s or his children’s constitutional rights. The

district court granted summary judgment in favor of both the

City of Stayton and the two DHS officials who testified at the

shelter hearing. But it denied qualified immunity to Miller,

8 SJURSET V. BUTTON

Bradley, and the Stayton officers. Relevant to this appeal, the

court rejected the Stayton officers’ argument for the

following reasons:

Once the Stayton Defendants entered the

home, they apparently saw no physical

evidence suggesting that the children were in

imminent danger. Further, no defendant

suggests that Borchers was in any way under

the influence of substances, or that there was

evidence of the existence of drug

paraphernalia. Although the Stayton

Defendants argue that they did not take action

until Miller arrived on the scene and

announced she had taken custody of the

children, the Court is not convinced that

reliance on Miller was reasonable as a matter

of law, give [sic] the apparent absence of

exigent circumstances or visible signs of

imminent danger to NS and TB. Thus,

plaintiffs have successfully raised a question

of fact as to whether the Stayton Defendants

violated [the plaintiffs’] clearly established

rights by removing the children from the

home, and summary judgment in favor of the

officers is therefore inappropriate.

The Stayton officers timely filed this appeal. They argue

that the district court erred in denying them qualified

immunity because (1) the officers violated no clearly

established right of the plaintiffs when they carried out

DHS’s instructions to enter the home and remove the

children; (2) police officers are entitled to act in good faith on

the instructions of other law-enforcement officers, including

SJURSET V. BUTTON 9

child-welfare officials, even if the basis for those instructions

is mistaken or erroneous; and (3) the Stayton officers were

not incompetent in believing that they were legally authorized

to act in reliance on DHS’s determination.

II. ANALYSIS

A. Standard of review

“A grant of summary judgment is appropriate when ‘there

is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.’” Albino v. Baca,

747 F.3d 1162, 1168 (9th Cir. 2014) (en banc) (quoting Fed.

R. Civ. P. 56(a)), cert. denied sub nom. Scott v. Albino, 135

S. Ct. 403 (2014). In applying this standard, we “view[] the

evidence in the light most favorable to the nonmoving party.”

Burke v. Cnty. of Alameda, 586 F.3d 725, 730 (9th Cir. 2009).

“A district court’s decision denying summary judgment on

the ground of qualified immunity is reviewed de novo.”

Hopkins v. Bonvicino, 573 F.3d 752, 762 (9th Cir. 2009). We

thus review the evidence presented in the light most favorable

to Sjurset, the nonmoving party, to determine whether the

district court erred in denying qualified immunity to the

Stayton officers.

B. The law of qualified immunity

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.” Mueller v.

Auker (Mueller II), 700 F.3d 1180, 1185 (9th Cir. 2012)

(quoting Messerschmidt v. Millender, 132 S. Ct. 1235,

1244–45 (2012)) (internal quotation marks omitted). The

10 SJURSET V. BUTTON

doctrine “gives government officials breathing room to make

reasonable but mistaken judgments” and “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

“makes allowance for some constitutional mistakes,” Mueller

II, 700 F.3d at 1185–86, such as “when an officer reasonably

believes that his or her conduct complies with the law,”

Pearson v. Callahan, 555 U.S. 223, 244 (2009).

A qualified-immunity analysis requires us to ascertain

(1) whether, “[t]aken in the light most favorable to the party

asserting the injury, . . . the facts alleged show the officer’s

conduct violated a constitutional right,” and (2) “whether the

law clearly established that the officer’s conduct was

unlawful in the circumstances of the case.” Saucier v. Katz,

533 U.S. 194, 201 (2001), overruled in part by Pearson,

555 U.S. 223 (holding that Saucier’s two-step sequence is not

mandatory).

In Pearson, the Supreme Court warned against beginning

with the first prong of the qualified-immunity analysis when

it would unnecessarily wade into “difficult questions” of

constitutional interpretation that “have no effect on the

outcome of the case.” 555 U.S. at 236–37; see also al-Kidd,

131 S. Ct. at 2080. The Court further emphasized that lower

courts have discretion to decide which of the two prongs to

“address[] first in light of the circumstances in the particular

case at hand.” Pearson, 555 U.S. at 236. “When qualified

immunity is asserted at the pleading stage,” for example, “the

answer to whether there was a violation may depend on a

kaleidoscope of facts not yet fully developed.” Id. at 238–39

(brackets and internal quotation marks omitted).

SJURSET V. BUTTON 11

We therefore have discretion to apply the second prong of

the Saucier test at the outset in order to determine whether the

law governing the Stayton officers’ conduct was clearly

established. If indeed the Stayton officers did not violate

clearly established law, then we can determine that qualified

immunity is appropriate and may thus dispose of the case

without undertaking an analysis of whether a constitutional

violation occurred in the first instance.

In sum, we will heed the Supreme Court’s admonition

against prematurely attempting to define the particular

constitutional violation in question in this case. This is

especially appropriate here because the district court has

already determined that “a number of factual issues . . .

remain unresolved” regarding the circumstances under which

the DHS officials made their protective-custody decision.

Recognizing the “general rule of constitutional avoidance,”

id. at 241, we now turn to the second prong of the Saucier

test.

In determining whether a government official’s conduct

violates clearly established law, the test is whether, “at the

time of the challenged conduct, the contours of a right are

sufficiently clear that every reasonable official would have

understood that what he is doing violates that right. We do

not require a case directly on point, but existing precedent

must have placed the statutory or constitutional question

beyond debate.” Al-Kidd, 131 S. Ct. at 2083 (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (brackets,

citation, and internal quotation marks omitted). The Supreme

Court has “repeatedly told courts—and the Ninth Circuit in

particular—not to define clearly established law at a high

level of generality.” Id. at 2084 (citation omitted). “The

inquiry . . . must be undertaken in the light of the specific

12 SJURSET V. BUTTON

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

Mueller II, 700 F.3d at 1185 (quoting Brosseau v. Haugen,

543 U.S. 194, 198 (2004)) (internal quotation marks omitted).

Nor does our analysis end there. “[E]ven if the violated

right was clearly established, [the Supreme Court] recognized

that it may be difficult for a police officer fully to appreciate

how the legal constraints apply to the specific situation he or

she faces. Under such a circumstance, if the officer’s mistake

as to what the law requires is reasonable, . . . the officer is

entitled to the immunity defense.” Blankenhorn v. City of

Orange, 485 F.3d 463, 471 (9th Cir. 2007) (alteration in

original) (quoting Motley v. Parks, 432 F.3d 1072, 1077 (9th

Cir. 2005) (en banc), overruled in part on other grounds by

United States v. King, 687 F.3d 1189 (9th Cir. 2012) (en

banc)) (brackets and internal quotation marks omitted).

C. Factual issues do not preclude us from hearing the

Stayton officers’ appeal

In denying summary judgment for the Stayton officers,

the district court concluded that there was sufficient evidence

to create a genuine dispute as to whether reasonable officers

could have believed that Sjurset’s children were in imminent

danger of serious bodily injury at the time of removal. Given

this conclusion, Sjurset contends that we should refrain from

deciding the reasonableness of the Stayton officers’ belief

that the children were in such imminent danger that their

removal was justified. He cites in support the case of

Johnson v. Jones, 515 U.S. 304 (1995), in which the Supreme

Court held that “a defendant, entitled to invoke a qualified

immunity defense, may not appeal a district court’s summary

judgment order insofar as that order determines whether or

SJURSET V. BUTTON 13

not the pretrial record sets forth a ‘genuine’ issue of fact for

trial.” Id. at 319–20.

As we held in Ram v. Rubin,

we reiterate that we do not have jurisdiction to

determine the factual issue whether a

reasonable officer could have believed that,

based on the information known to [the

officer], seizing Ram’s children was lawful.

The district court denied [the officer]

summary judgment because the pretrial record

indicated that genuine issues of material fact

existed. This ends our inquiry with regard to

[the officer’s] appeal.

118 F.3d 1306, 1311 (9th Cir. 1997).

Sjurset thus makes a compelling argument that would

preclude our ability to consider the factual issues regarding

whether seizing Sjurset’s children was lawful. As applied to

the appeal before us, however, Sjurset’s argument is without

merit. To start with, the Supreme Court cabined the holding

of Johnson in a subsequent case. It clarified that even if

issues remain regarding the sufficiency of the evidence,

“summary judgment determinations are appealable when they

resolve a dispute concerning an abstract issue of law relating

to qualified immunity,” such as “whether the federal right

allegedly infringed was clearly established.” Behrens v.

Pelletier, 516 U.S. 299, 313 (1996) (quoting Johnson,

515 U.S. at 317) (brackets and internal quotation marks

omitted).

14 SJURSET V. BUTTON

We have held that the Behrens rule applies in cases

“where the appeal focuses on whether the defendants violated

a clearly established law given the undisputed facts.” Knox

v. Sw. Airlines, 124 F.3d 1103, 1107 (9th Cir. 1997). This is

particularly important in the qualified-immunity context

because “[i]mmunity ordinarily should be decided by the

court long before trial.” Hunter v. Bryant, 502 U.S. 224, 228

(1991).

Sjurset correctly points out that Johnson would preclude

us from determining the reasonableness of the DHS officials’

actions based on the facts that remain in dispute. But

Johnson is inapplicable here because this appeal is based on

undisputed facts as they relate to a purely “abstract issue of

law”—that is, whether the Stayton officers violated clearly

established law when they acted in reliance on the DHS

officials’ determination. The district court explicitly

acknowledged that the facts concerning the Stayton officers’

actions are not in dispute.

What the district court did find in dispute—namely, the

number of calls that Moller-Mata made to Sjurset and

Borchers on the day before the welfare check, the nature of

Borchers’s drug abuse, and whether viewing the children

through a window could reasonably give rise to a showing of

imminent danger—do not form the basis of the Stayton

officers’ appeal. These disputed facts might well apply to the

reasonableness of the DHS officials’ protective-custody

determination, but they do not apply to whether the Stayton

officers violated clearly established rights of the plaintiffs by

relying on the DHS officials’ protective-custody

determination.

SJURSET V. BUTTON 15

In addition, the district court noted that the parties all

agreed that DHS, and not the Stayton officers, made the

decision to take protective custody of the children. There is

no dispute that the Stayton officers entered Sjurset’s

residence and assisted in the children’s removal in reliance on

that decision. Finally, no one disputes that, under Oregon

law, DHS has the statutory authority to take protective

custody “[w]hen [a] child’s condition or surroundings

reasonably appear to be such as to jeopardize the child’s

welfare.” Or. Rev. Stat. § 419B.150(1)(a). These undisputed

facts provide a sufficient basis to determine whether the

Stayton officers’ reliance on DHS’s determination violated

any clearly established right of the plaintiffs. An analysis

based on these facts is therefore appropriate. See Knox,

124 F.3d at 1106–07.

D. The Stayton officers did not violate clearly established

law

Under the framework set forth above, we now focus on

whether, on February 20, 2010, the law clearly established

that the Stayton officers could not act pursuant to DHS’s

protective-custody determination in entering Sjurset’s house

and removing the children without a court order. Sjurset

contends that his Fourteenth Amendment right to familial

association is clearly established, pointing to our holding in

Wallis v. Spencer that

[o]fficials may remove a child from the

custody of its parent without prior judicial

authorization only if the information they

possess at the time of the seizure is such as

provides reasonable cause to believe that the

child is in imminent danger of serious bodily

16 SJURSET V. BUTTON

injury and that the scope of the intrusion is

reasonably necessary to avert that specific

injury.

202 F.3d 1126, 1138 (9th Cir. 1999).

Furthermore, as to the Fourth Amendment claim, Sjurset

argues that the Stayton officers should have known that

clearly established law permits a warrantless entry into a

home only if an exception to the warrant requirement applies,

such as emergency, exigency, or consent. See Espinosa v.

City & Cnty. of San Francisco, 598 F.3d 528, 533 (9th Cir.

2010). Sjurset contends that, under the facts alleged, the

DHS officials could not have reasonably concluded that the

children were in imminent danger during the 36 hours that

would have passed before the courts reopened Monday

morning. By extension, he argues, the Stayton officers’

actions based on this determination violated his and his

children’s constitutional rights.

Sjurset points to our decision in Wallis to argue that

clearly established law prohibited the officers from removing

the children unless they were in imminent danger. See

202 F.3d at 1138. In Wallis we denied summary judgment to

the City of Escondido when its police officers entered a

family’s house at midnight, interviewed the family’s children,

and took custody of the children based on a purported

“pickup order” from the state’s child-welfare agency. Id. at

1132–34. In actuality, however, “no [protective-custody]

order ever existed and [the child-welfare agency] had not yet

even reached a decision about whether to seek protective

custody of the children.” Id. at 1133.

SJURSET V. BUTTON 17

The police officers’ actions in Wallis are therefore readily

distinguishable from the case at hand in two important ways.

First, Wallis involved a factual dispute whether the child-

welfare-agency officials had actually issued an order to take

protective custody. Id. at 1133–35. Second, the police in

Wallis acted independently without verifying the existence of

the purported order. Id. They therefore acted not in reliance

on the child-welfare agency, but instead in the absence of the

agency’s direction.

In the present case, the exact opposite is true—the Stayton

officers acted not independently of, but pursuant to, the

protective-custody determination by DHS. The Stayton

officers traveled to Sjurset’s residence to conduct a welfare

check at the behest of DHS. When Sjurset denied their entry,

the Stayton officers did not take matters into their own hands

or make their own independent judgments, as the Wallis

officers had; instead, they called DHS for additional

guidance, and Miller was dispatched to the scene. Thus,

unlike the Wallis officers, the Stayton officers were careful

not to take any action that was not first authorized by DHS.

In addition, and unlike in Wallis, Miller and Bradley made

their protective-custody determination in the midst of the

ongoing welfare check, when the Stayton officers were

physically present, and the Stayton officers accompanied

Miller as she explained to Sjurset and Borchers the rationale

for the determination. The authenticity of the determination

was therefore readily verifiable.

In light of these obvious distinctions, Wallis falls short of

clearly establishing that reasonable officers in the Stayton

officers’ situation would have understood that they had a

constitutional responsibility to second-guess DHS’s

protective-custody determination. Such second-guessing

18 SJURSET V. BUTTON

would have required the officers either to disrupt or to refuse

to take part in the entry and removal of Sjurset’s children. To

be sure, if the Stayton officers had participated in the decision

to take protective custody of Sjurset’s children, then our

precedent in Wallis and similar cases would clearly establish

that the officers could not do so without a reasonable basis for

believing that the children were in imminent danger. See,

e.g., Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc.

Servs., 237 F.3d 1101, 1108–09 (9th Cir. 2001) (holding that

the imminent-danger exception applies to police officers and

social workers who make protective-custody decisions). But

here the police officers did not participate in such a decision;

they instead relied on DHS’s determination.

Sjurset further contends that the Stayton officers’ role as

“integral participants” in the entry and removal is enough to

trigger their liability for any violations of Sjurset’s

constitutional rights. To support this theory, Sjurset relies on

Boyd v. Benton County, 374 F.3d 773 (9th Cir. 2004). In

Boyd, we held that officers who provided backup during a

search in which one officer threw a lethal “flash-bang” device

into a dark room were “integral participant[s]” for the

purpose of the plaintiff’s excessive-force claim. Id. at 780.

We noted that the supporting officers did not physically

throw the device, but concluded that the plaintiff had

nevertheless satisfied the first prong of the Saucier test

because the officers “stood armed behind” the acting officer,

were “aware of the decision to use the flash-bang” device,

and “did not object to it.” Id.

But Sjurset’s reliance on Boyd is misplaced both factually

and legally. As a factual matter, the officers in Boyd acted as

a collective team and were carrying out a preplanned search

operation. Id. at 777. Before the search, the officers

SJURSET V. BUTTON 19

“gathered for a briefing” and “discussed various

circumstances surrounding the operation.” Id. Only after this

collective discussion did the supervising sergeant make the

ultimate decision to use a flash-bang device. Id. In contrast,

no facts in this case suggest that the Stayton officers were

privy to any discussions, briefings, or collective decisions

made by DHS in its protective-custody determination.

Moreover, even after the sergeant in Boyd made his

decision, the officers collectively discussed “the manner of

deploying the flash-bang . . . , taking into account the fact that

several people might be sleeping in the apartment.” Id. Boyd

thus involved a collective decisionmaking process among the

officers, with the result that all of them could be considered

“integral participants” in the execution of the plan. Id. It

does not squarely address the case at hand, wherein an

entirely separate agency—DHS—made a protective-custody

determination over which the Stayton officers had no input.

And even if we were to assume that the Stayton officers

were “integral participants” in the execution of the protective-

custody determination, Boyd would not help Sjurset’s

argument. This is because in Boyd we ultimately concluded

that—despite the existence of a constitutional violation—the

officers were entitled to qualified immunity because no

clearly established law specifically precluded the use of a

flash-bang device in the context of a search. Id. at 784

(holding that “a reasonable officer faced with these facts, and

without guidance from the courts, was not on notice that the

use of a flash-bang was unconstitutional”). Boyd thus

supports the notion that even officers who are integral

participants in an unconstitutional search are immune from

liability if the unlawfulness of the conduct is not clearly

established.

20 SJURSET V. BUTTON

In sum, neither Wallis nor Boyd clearly establishes that

the Stayton officers violated Sjurset’s constitutional rights

when they acted in reliance on DHS’s protective-custody

determination. We must therefore look elsewhere to decide

whether the officers were on notice that their conduct violated

clearly established law. Neither statute nor precedent,

however, squarely addresses the circumstances of this

particular case.

First, under the existing regulatory framework, Oregon’s

child-protection statute gives DHS authority over

“investigation and enforcement of child protection services”

in the state. Or. Rev. Stat. § 409.185(1). The statute further

empowers DHS employees and peace officers alike to take

protective custody of a child “[w]hen the child’s condition or

surroundings reasonably appear to be such as to jeopardize

the child’s welfare.” Id. § 419B.150(1)(a). Once a

protective-custody determination is made, however, the

statute does not address whether assisting officials should

conduct their own independent inquiry as to the validity of

that determination. Nor does the statute direct officers to

refuse to carry out a protective-custody determination in the

absence of a court order. See id. chs. 409, 419B. Under

existing Oregon law, therefore, the Stayton officers were not

expected to verify the legality of DHS’s decision after it was

made.

Second, there is no “robust consensus of cases of

persuasive authority” that would put the officers on notice

that they could not enter Sjurset’s residence and remove the

children pursuant to the DHS protective-custody

determination, even if that determination was flawed. See al-

Kidd, 131 S. Ct. at 2084; see also United States v. Black,

482 F.3d 1035, 1040 (9th Cir. 2007) (holding that

SJURSET V. BUTTON 21

“conscientious” police officers “[e]rring on the side of

caution” in conducting a welfare search without consent are

entitled to immunity).

One Ninth Circuit decision in particular would be difficult

to distinguish if we were to hold that the Stayton officers’

conduct violated clearly established law. In Mueller v. Auker

(Mueller I), a mother sued a police detective for taking

custody of her sick infant without a court order, “at the behest

of hospital doctors,” despite the mother’s objections.

576 F.3d 979, 982 (9th Cir. 2009). On a second appeal, we

held that the detective’s reliance on the doctors’ medical

judgment was objectively reasonable and thus granted him

qualified immunity. We noted that, “[e]ven were we to

assume with hindsight that the [medical] assessment was

wrong, to attribute such a professional error in judgment to

Detective Rogers would be manifestly inappropriate.”

Mueller II, 700 F.3d at 1188. We further held that two police

officers acting at the direction of the detective were entitled

to qualified immunity, noting that the officers “made no

decisions at all.” Id. at 1189.

In Mueller II we noted that the district court observed that

“[t]he phrase ‘imminent danger’ has not been given any

detailed definition, either by Wallis . . . or any other case, that

could have guided” the detective. Id. at 1188. We must

therefore be cautious not to “repeat the analytical mistake we

made in Brosseau, where we approached this issue [of clearly

established law] based upon general tests and abstract

constitutional propositions instead of focusing on the precise

factual scenario confronted by the officers.” Id.

Like the two officers in Mueller who “made no decisions

at all,” id. at 1189, the Stayton officers similarly made no

22 SJURSET V. BUTTON

independent decisions regarding protective custody and

merely assisted DHS in securing the children. We thus

decline to find that the Stayton officers were either plainly

incompetent or that they knowingly violated the law when

they relied on DHS’s determination that Sjurset’s children

were in imminent danger.

To hold otherwise would place the Stayton officers in a

Catch-22 situation: either challenge DHS’s determination,

which could potentially endanger the children’s safety and

put the officers at risk of liability or discipline if harm had

befallen the children, or carry out DHS’s instructions in the

absence of a court order at the risk of being sued for violating

the children’s and the parents’ constitutional rights. The

correct answer would not be obvious to a reasonable officer.

Thus, the “contours” of the Fourteenth and Fourth

Amendment rights at issue were not clearly established in this

context. Accordingly, for the purposes of qualified

immunity, those rights did not preclude the officers’ reliance

on DHS’s determination.

The district court, however, held that Sjurset had

“successfully raised a question of fact” as to whether the

Stayton officers had violated clearly established law. Our

analysis above explains why we respectfully disagree. But

even if we were to assume that the Stayton officers did

violate clearly established law in entering the home and

removing the children at the direction of the DHS officials,

we would nevertheless conclude that the Stayton officers

acted reasonably under the circumstances and would

therefore be entitled to qualified immunity. See Blankenhorn

v. City of Orange, 485 F.3d 463, 471 (9th Cir. 2007) (noting

that “even if the violated right was clearly established, . . . if

the officer’s mistake as to what the law requires is reasonable,

SJURSET V. BUTTON 23

. . . the officer is entitled to the immunity defense”) (second

alteration in original) (quoting Motley, 432 F.3d at 1077)

(brackets and internal quotation marks omitted).

Part of the district court’s rationale in ruling to the

contrary was because the Stayton officers “did not rely on the

word of a fellow police officer, but rather that of a DHS

worker.” But this view is contrary to well-established

precedent, which holds that “[l]aw enforcement officers and

agencies are entitled to rely on one another to a certain

extent.” Guerra v. Sutton, 783 F.2d 1371, 1375 (9th Cir.

1986) (emphases added) (holding that, in the interagency

context where “[t]he system requires reasonable cooperation

and division of labor, . . . the INS may reasonably rely on the

statement of a responsible law enforcement officer”).

The district court’s refusal to extend this reliance

principle is also undercut by Mueller II, in which we held that

the detective’s reliance on the opinions of several doctors was

objectively reasonable under the circumstances. 700 F.3d at

1188 (noting that “[r]easonableness must be judged from the

perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight . . . .” (quoting Ryburn v.

Huff, 132 S. Ct. 987, 992 (2012)) (internal quotation marks

omitted)). This reliance principle is particularly applicable

here because the officers were acting at the direction of DHS,

the very agency with subject-matter expertise and authority

to make child-welfare determinations. See Or. Rev. Stat.

§§ 409.185(1), 419B.150(1)(a).

Sjurset correctly points out, however, that an officer

cannot blindly rely on the existence of a protective-custody

determination to avoid liability. Instead, Sjurset argues, the

Stayton officers had a “duty to inquire” into the specific facts

24 SJURSET V. BUTTON

surrounding DHS’s decision to take the children into

protective custody. Sjurset supports this argument with

precedent holding that officers “must make reasonable

inquiries to determine if there is a sufficient basis for the

entry and search.” Espinosa, 598 F.3d at 535; see also

Guerra, 783 F.2d at 1375 (“An INS agent who conducts a

search or makes an arrest without knowledge of the details of

the warrant under which he presumes to act violates clearly

established law.”).

But such a duty to make reasonable inquiries is

necessarily linked to the second prong of the Saucier test, i.e.,

whether the “conduct was unlawful in the circumstances of

the case.” Saucier v. Katz, 533 U.S. 194, 201 (2001). The

reasonableness of an officer’s conduct is thus context-

sensitive and dependent upon the details known to the officer

at the time of the search.

Focusing on the case at hand, Sjurset argues that “[t]here

were no facts known to the police officers that would have

allowed them to believe the children were in danger of

imminent harm,” and “[t]here was no evidence that N.S. and

T.B. were in imminent danger of being harmed within the 36

hours that the police claim it would have taken to obtain a

court order.” But the record shows otherwise. In addition to

the fact that DHS had already made a definitive protective-

custody determination, the Stayton officers were aware that

the children’s mother had tested positive for

methamphetamine and other drugs and had previously been

convicted of child endangerment based on an incident

involving similar conduct. They also witnessed first-hand

Sjurset’s and Borchers’s refusals to permit any official from

meeting with or speaking to the children, effectively

preventing the officers from verifying the children’s safety.

SJURSET V. BUTTON 25

Finally, the Stayton officers knew that a warrant could not be

procured for at least 36 hours, which amplified the perceived

risk of jeopardizing the children’s safety in the intervening

period. The officers therefore were not acting blindly at the

instruction of DHS; they had knowledge of the key details

that informed DHS’s determination. See Guerra, 783 F.2d at

1375 (holding that the duty to inquire requires an official to

have “knowledge of the details of the warrant” on which he

relies). In light of these circumstances, and given the

potential harm of failing to act, their reliance on DHS’s

instruction was objectively reasonable.

Further supporting the objective reasonableness of the

Stayton officers’ conduct was the fact that they had no reason

to believe that DHS’s investigation was inadequate or

incompetently performed. See Motley v. Parks, 432 F.3d

1072, 1081 (9th Cir. 2005) (en banc) (“[A]bsent some

indication to a supervisor that an investigation was inadequate

or incompetent, supervisors are not obliged to undertake de

novo investigations or to cross examine subordinates . . . .”

(quoting Cecere v. City of N.Y., 967 F.2d 826, 829 (2d Cir.

1992)) (internal quotation marks omitted)). Instead, the

Stayton officers knew that DHS had initiated an investigation

based on a reliable tip from a doctor’s office, had made

several attempts to carry out its investigation, and had been

prevented from doing so by Sjurset and Borchers.

The Stayton officers were therefore not incompetent in

believing that they were legally authorized to act in reliance

on DHS’s determination. And even if the officers were

mistaken in their belief that they could remove the children at

the direction of DHS without court authorization, their

actions were objectively reasonable under the circumstances.

26 SJURSET V. BUTTON

Accordingly, the Stayton officers are entitled to qualified

immunity.

III. CONCLUSION

For all of the reasons set forth above, we REVERSE the

judgment of the district court with regard to the Stayton

officers and REMAND the case to the district court for entry

of judgment in their favor.