Jamie Kirkpatrick v. County of Washoe

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMIE KIRKPATRICK, individually, No. 12-15080

and as the natural father and legal

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

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

ECR-VPC

v.

COUNTY OF WASHOE; AMY OPINION

REYNOLDS, WCDSS social worker;

ELLEN WILCOX, WCDSS social

worker; LINDA KENNEDY, WCDSS

social worker,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Nevada

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

Argued and Submitted En Banc June 22, 2016

San Francisco, California

Filed December 9, 2016

Before: Sidney R. Thomas, Chief Judge, and Alex

Kozinski, Diarmuid F. O’Scannlain, Ronald M. Gould,

Johnnie B. Rawlinson, Carlos T. Bea, Mary H. Murguia,

Morgan B. Christen, Paul J. Watford, Andrew D. Hurwitz,

and Michelle T. Friedland, Circuit Judges.

2 KIRKPATRICK V. CTY. OF WASHOE

Opinion by Judge Murguia;

Concurrence by Judge Christen;

Partial Concurrence and Partial Dissent by

Judge Friedland;

Dissent by Judge Kozinski

SUMMARY*

Civil Rights

The en banc court affirmed in part and reversed in part

the district court’s summary judgment and remanded in a

42 U.S.C. § 1983 action against the County of Washoe and

County social workers alleging violations of the Fourth and

Fourteenth Amendment arising from the warrantless

removal of plaintiff’s biological two-day old daughter from

the custody of her mother.

The en banc court affirmed the district court’s grant of

summary judgment to the defendants on plaintiff’s claim that

they violated his Fourteenth Amendment rights by seizing

the child without due process because plaintiff had no

enforceable parental rights at the time of her removal.

The en banc court affirmed the district court’s grant of

summary judgment to the social workers on the daughter’s

Fourth Amendment claim. Although the social workers

should have obtained a warrant, their constitutional obligation

*

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

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

KIRKPATRICK V. CTY. OF WASHOE 3

to do so was not clearly established, and they were therefore

entitled to qualified immunity on this claim.

The en banc court reversed the district court’s summary

judgment and remanded on the daughter’s claim against

Washoe County because plaintiff presented sufficient

evidence to raise a genuine issue of material fact regarding

whether the County maintained a policy of unconstitutionally

seizing children in non-exigent circumstances.

Concurring, Judge Christen, joined by Judge Hurwitz,

agreed with the results reached by the majority but wrote

separately to address what the court described as the unlikely

possibility that the child’s mother might unexpectedly

abscond with the child.

Concurring in part and dissenting in part, Judge Friedland,

joined by Chief Judge Thomas, agreed with the majority’s

opinion as to municipal liability but dissented from its

affirmance of summary judgment on the claim against the

individual defendants. In Judge Friedland’s view, qualified

immunity should be denied and summary judgment entered

for plaintiff on the Fourth Amendment claim.

Dissenting in part, Judge Kozinski, joined by Judges

O’Scannlain, Rawlinson and Bea, and by Judge Watford with

respect to Part 2, agreed that the social workers were entitled

to qualified immunity and joined that part of the opinion. But

Judge Kozinski could not agree that the social workers

committed a constitutional violation, nor that the County

could be liable for a policy of unconstitutional conduct under

Monell v. Dep’t of Soc. Servs. of N.Y.

4 KIRKPATRICK V. CTY. OF WASHOE

COUNSEL

David J. Beauvais (argued), Oakland, California; Jeffrey

Friedman (argued) and William R. Kendall, Reno, Nevada;

for Plaintiff-Appellant.

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

Richard A. Gammick, District Attorney; Reno, Nevada; for

Defendant-Appellee County of Washoe.

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

Armstrong Delk Balkenbush & Eisinger, Reno, Nevada, for

Defendants-Appellees Amy Reynolds, Ellen Wilcox, and

Linda Kennedy.

OPINION

MURGUIA, Circuit Judge:

This appeal arises from Washoe County social workers’

warrantless removal of a two-day-old child from the custody

of her mother, who had a history of drug abuse and whose

two other children had been previously placed in the care of

the Washoe County Department of Social Services (“DSS”).

The biological father subsequently brought suit under

42 U.S.C. § 1983 against the social workers and the County,

claiming the removal of his daughter violated the Fourth and

Fourteenth Amendments. We have jurisdiction under

28 U.S.C. § 1291, and we affirm in part the district court’s

grant of summary judgment in the defendants’ favor, reverse

in part, and remand for further proceedings.

KIRKPATRICK V. CTY. OF WASHOE 5

BACKGROUND

The following facts are not in dispute. On July 15, 2008,

Rachel Whitworth gave birth to a daughter, B.W.,1 via

cesarean section at a hospital in Reno, Nevada. B.W. was

born five weeks premature. Whitworth admitted to nursing

staff that she used methamphetamine throughout her

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

tested positive for methamphetamine at birth. At the time,

Whitworth was unemployed and living with a friend. She

had recently self-admitted to a drug rehabilitation program

but left after three days.

Whitworth informed the hospital that she had two other

children who were already in the custody of DSS, and

volunteered the name of the social worker managing their

case, Chondra Ithurralde. After B.W. was born, the hospital

contacted Ithurralde, who noted that a permanent plan to

terminate Whitworth’s parental rights for her other children

had been approved by a court due to her failure to comply

with the DSS case plan, her lack of appropriate housing, and

her demonstrated inability to care for her children. Ithurralde

also advised placing a protective hold on B.W. to prevent her

from being discharged. The hospital typically honors DSS

hold requests as a courtesy, but it is not legally obligated to

do so. The hold did not prevent Whitworth from interacting

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

remained in the room with Whitworth, who failed to feed the

infant on schedule and to change her diapers.

1

The Court refers to B.W., a minor, only by her initials to protect her

privacy.

6 KIRKPATRICK V. CTY. OF WASHOE

The next day, Ithurralde visited the hospital with DSS

social worker Ellen Wilcox. Wilcox interviewed Whitworth,

and informed her of the hold and that a protective custody

hearing had been scheduled for the following day. Until the

hearing, DSS planned to place B.W. in the same foster home

as her two half-siblings. Wilcox’s supervisor, Linda

Kennedy, directed Wilcox to take B.W. when the hospital

released her. On July 17, 2008, the hospital discharged two-

day-old B.W. into DSS’s care. DSS did not attempt to obtain

a warrant before assuming custody of B.W.

On July 18, the family division of Nevada’s Second

Judicial District Court held a protective custody hearing at

which Whitworth participated by phone from the hospital.

The court determined that B.W. should remain in protective

custody due to Whitworth’s ongoing drug use, finding

reasonable cause to believe that continuation in Whitworth’s

care was contrary to B.W.’s welfare. Following the hearing,

Whitworth made no contact with her attorney or DSS. On

July 28, 2008, DSS filed a petition alleging that B.W. was a

child in need of protection. Whitworth failed to attend any of

the subsequent adjudicatory or dispositional hearings. DSS

attempted to locate Whitworth but was unable to find her.

Plaintiff-Appellant Jamie Kirkpatrick was present at the

hospital when Whitworth gave birth to B.W., although he did

not know at the time whether he was B.W.’s biological father,

nor did he sign an affidavit of paternity. Kirkpatrick first

learned of DSS’s involvement soon after Wilcox took custody

of B.W. on July 17, 2008. He left his contact information

with Wilcox for the purpose of scheduling a paternity test to

determine whether he was B.W.’s biological father.

Kirkpatrick also advised DSS that he was moving to Elko,

Nevada. Kirkpatrick did not attend the protective custody

KIRKPATRICK V. CTY. OF WASHOE 7

hearing on July 18, 2008, but the court ordered a paternity

test at his request. The test revealed that Kirkpatrick is indeed

B.W.’s biological father.

Kirkpatrick visited B.W. twice in the Fall of 2008, and

expressed an interest in reunification at a six-month

permanency hearing held in January 2009. After the hearing,

Kirkpatrick returned to Reno and began visiting B.W. more

frequently. He continued to maintain his visits, employment,

and housing over the next year. In June 2009, B.W.’s foster

family determined that they were no longer able to care for

B.W. and her half-siblings, and the children were transferred

to a different foster home. Kirkpatrick became concerned

about B.W.’s care there, and after an incident during which

B.W. suffered a large bruise on her forehead Kirkpatrick

began advocating more strongly that B.W. should be placed

with him. On December 31, 2009, B.W. was reunified with

Kirkpatrick.

In October 2009, Kirkpatrick brought suit under

42 U.S.C. § 1983 against Washoe County and DSS workers

Ellen Wilcox, Linda Kennedy, and Amy Reynolds—another

supervisor—for removing B.W. from Whitworth without a

warrant. In the operative complaint—the Second Amended

Complaint (“SAC”)—Kirkpatrick alleged one cause of action

against the social-worker defendants and another cause of

action against the County, both on behalf of “Plaintiff,” in the

singular. The SAC also stated that “Plaintiff is the father and

legal guardian of the minor child, [B.W.],” and requested

damages because “[B.W.’s] constitutional right to be with her

parents was violated.”

The district court granted the defendants’ motion for

summary judgment. The district court first determined that

8 KIRKPATRICK V. CTY. OF WASHOE

Kirkpatrick had asserted only claims on his own behalf under

the Fourth and Fourteenth Amendments. Accordingly, the

district court found that Kirkpatrick had not demonstrated

that the defendants violated his constitutional rights because

only B.W. suffered a potential Fourth Amendment violation,

and Kirkpatrick had not established parental rights as of the

date of the challenged seizure that could give rise to a

Fourteenth Amendment claim. Finding that Kirkpatrick had

failed to prove a constitutional violation, the court also

entered judgment in favor of Washoe County. This appeal

followed.

DISCUSSION

Section 1983 provides a remedy for violations of rights

secured by the Constitution by persons acting under the color

of state law. 42 U.S.C. § 1983. However, the doctrine of

qualified immunity shields individual officers “from liability

for civil damages insofar as their conduct [did] not violate

clearly established . . . constitutional rights of which a

reasonable person would have known.” Pearson v. Callahan,

555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). Municipalities and other local

governmental units are “persons” subject to suit under

§ 1983, but to prevail on a claim against a municipal entity

for a constitutional violation, a plaintiff must also show that

his or her injury is attributable “to official municipal policy

of some nature.” Monell v. Dep’t of Soc. Servs. of N.Y.,

436 U.S. 658, 691 (1978).

Kirkpatrick’s claims against the social workers and

Washoe County are addressed, in turn, below.

KIRKPATRICK V. CTY. OF WASHOE 9

I.

We apply a two-prong analysis in qualified immunity

cases, under which summary judgment is improper if,

resolving all disputes of fact and credibility in favor of the

party asserting the injury, (1) the facts adduced show that the

officer’s conduct violated a constitutional right, and (2) that

right was “clearly established” at the time of the violation.

Saucier v. Katz, 533 U.S. 194, 201 (2001). Thus, even if

Kirkpatrick demonstrates that there is a question of fact as to

whether the social workers violated his or B.W.’s

constitutional rights, the workers are entitled to qualified

immunity unless the law at the time of B.W.’s removal in

2008 clearly established the unconstitutionality of their

conduct.

A.

Two provisions of the Constitution protect the parent-

child relationship from unwanted interference by the state:

the Fourth and the Fourteenth Amendments.2 First, parents

“have a well-elaborated constitutional right to live” with their

children that “is an essential liberty interest protected by the

Fourteenth Amendment’s guarantee that parents and children

will not be separated by the state without due process of law

except in an emergency.” Wallis v. Spencer, 202 F.3d 1126,

2

“Where a particular Amendment provides an explicit textual source

of constitutional protection against a particular sort of government

behavior, that Amendment, not the more generalized notion of substantive

due process, must be the guide for analyzing these claims.” County of

Sacramento v. Lewis, 523 U.S. 833, 842 (1998). Therefore, because the

Fourth Amendment provides a bulwark against unreasonable seizures,

children who have been “seized” must pursue their claims under the

purview of that specific constitutional provision.

10 KIRKPATRICK V. CTY. OF WASHOE

1136 (9th Cir. 1999); accord Mabe v. San Bernardino Cty.,

Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir.

2001); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997).

Second, the Fourth Amendment safeguards children’s “right

. . . to be secure in their persons . . . against unreasonable . . .

seizures” without a warrant, U.S. Const. amend. IV, although

we similarly recognize an exception to the warrant

requirement where the exigencies of the situation are so

compelling that a warrantless seizure is objectively

reasonable under the Fourth Amendment, see Rogers v.

County of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007).

Therefore, we have said that the tests under the Fourth and

Fourteenth Amendment for when an official may remove a

child from parental custody without a warrant are equivalent.

Wallis, 202 F.3d at 1137 n.8.

i.

We consider first Kirkpatrick’s Fourteenth Amendment

claim against the DSS workers. The parental right secured by

the Fourteenth Amendment “is not reserved for parents with

full legal and physical custody.” James v. Rowlands,

606 F.3d 646, 651 (9th Cir. 2010); see also Burke v. Cty. of

Alameda, 586 F.3d 725, 733 (9th Cir. 2009) (holding that

non-custodial parents have a reduced liberty interest in the

companionship, care, custody, and management of their

children). At the same time, however, “[p]arental rights do

not spring full-blown from the biological connection between

parent and child.” Lehr v. Robertson, 463 U.S. 248, 260

(1983) (quoting Caban v. Mohammed, 441 U.S. 380, 397

(1979) (Stewart, J., dissenting)) (emphasis omitted).

Judicially enforceable interests arising under the Fourteenth

Amendment “require relationships more enduring,” which

reflect some assumption “of parental responsibility.” Id.

KIRKPATRICK V. CTY. OF WASHOE 11

(internal quotation marks omitted). It is “[w]hen an unwed

father demonstrates a full commitment to the responsibilities

of parenthood by coming forward to participate in the rearing

of his child,” that “his interest in personal contact with his

child acquires substantial protection under the due process

clause.” Id. at 261 (internal quotation marks and alteration

omitted). Until then, a person with only potential parental

rights enjoys a liberty interest in the companionship, care, and

custody of his children that is “unambiguously lesser in

magnitude.” James, 606 F.3d at 651 (quoting Brittain v.

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

When the seizure of B.W. occurred, Kirkpatrick’s due

process rights concerning B.W. were negligible. Whitworth

informed Kirkpatrick that he might be the father just prior to

giving birth to B.W., but told him that there was “a possibility

it could be someone else’s as well.” Kirkpatrick

acknowledged that he “did not know” whether he was the

father and that there were “possibly other candidates.” At the

time, Kirkpatrick lived and worked several hours away in

Elko, and although he was present for B.W.’s birth, he

returned to Elko immediately thereafter. He did not attend

the initial protective custody hearing held two days after

B.W. was born. Kirkpatrick remained unsure whether he was

B.W.’s biological father until the results of the court-ordered

genetic test confirmed his paternity. Before then, Kirkpatrick

had minimal contact with Whitworth or B.W., and no

responsibility—financial or otherwise—for either’s care.

Consequently, Kirkpatrick was not a parent to B.W. in her

first few days of life in the constitutional sense, and his

substantive rights were not violated when the social workers

placed her in protective custody without a warrant.

12 KIRKPATRICK V. CTY. OF WASHOE

ii.

This brings us to B.W.’s Fourth Amendment claim. The

district court construed the SAC as stating claims only on

behalf of Kirkpatrick. We disagree. As noted above, the

SAC alleged that “[B.W.’s] constitutional right to be with her

parents was violated.” Later, Kirkpatrick also alleged that

“Defendants . . . acted under color of state law to deprive

Plaintiff, as described herein, of constitutionally protected

rights, including, but not limited to: . . . (d) the right to be free

from unreasonable searches and seizures; . . . [and] (f) the

right to be with her parents.” Moreover, the defendants

moved for summary judgment on the merits of B.W.’s Fourth

Amendment claim and have thus not been prejudiced by any

linguistic imprecision on Kirkpatrick’s part in drafting the

SAC. Accordingly, we conclude that Kirkpatrick sufficiently

asserted a violation of B.W.’s Fourth Amendment rights to

apprise the defendants that Kirkpatrick sought to adjudicate

her claims in addition to his own. The district court erred in

granting summary judgment to the defendants on the grounds

that the SAC did not provide adequate notice of B.W.’s

Fourth Amendment claim, and we address this theory of relief

and the concomitant issue of qualified immunity for the first

time on appeal. See Moreland v. Las Vegas Metro. Police

Dep’t, 159 F.3d 365, 369 (9th Cir. 1998) (“We may affirm

the district court’s judgment on any ground finding support

in the record, even if it relied on the wrong ground or

reasoning.”).

Under the Fourth Amendment, government officials are

ordinarily required to obtain prior judicial authorization

before removing a child from the custody of her parent.

However, officials may seize a child without a warrant “if the

information they possess at the time of the seizure is such as

KIRKPATRICK V. CTY. OF WASHOE 13

provides reasonable cause to believe that the child is in

imminent danger of serious bodily injury and that the scope

of the intrusion is reasonably necessary to avert that specific

injury.” Wallis, 202 F.3d at 1138.

In Rogers v. County of San Joaquin, we clarified that

seizing a child without a warrant is excusable only when

officials “have reasonable cause to believe that the child is

likely to experience serious bodily harm in the time that

would be required to obtain a warrant.” 487 F.3d at 1295

(citing Mabe, 237 F.3d at 1108) (emphasis added). Rogers

concerned a social worker’s removal of two children—ages

three and five—from their home eighteen days after receiving

an anonymous report that the children displayed signs of

severe neglect. See Rogers, 487 F.3d at 1291. The report

alleged that the children were not toilet-trained, that the

parents locked the children in their rooms at night, that the

children were not receiving medical or dental care, that the

home was dirty and maggot-infested, and that the children

had access to unsecured guns. Id. Child Protective Services

(“CPS”) classified the case as a non-emergency, one that only

necessitated a response within ten days. Id. But after

eventually observing the children in the home and talking to

their parents, a CPS worker immediately removed the

children without seeking a warrant. Id. at 1292–93.

We began in Rogers from the settled premise that social

workers violate the Fourth Amendment by removing children

absent a warrant or exigent circumstances. Id. at 1294.

Under that standard, we found that none of the allegations of

neglect in Rogers were sufficiently serious to justify the

children’s removal. See id. at 1294–95. Bottle rot,

malnourishment, and disorderly home conditions do not

present an imminent risk of serious bodily harm. Id. at 1295.

14 KIRKPATRICK V. CTY. OF WASHOE

Furthermore, the “official’s prior willingness to leave the

children in their home militate[d] against a finding of

exigency.” Id. We observed that “[s]erious allegations of

abuse that have been investigated and corroborated usually

give rise to a ‘reasonable inference of imminent danger

sufficient to justify taking children into temporary custody’

if they might again be beaten or molested during the time it

would take to get a warrant,” but concluded that the chance

of grave harm befalling the Rogerses’ children during the

“few hours” the social worker believed it would have taken

to request a warrant was very low—so low as to “not

establish reasonable cause to believe that the children were in

immediate danger.” Id. at 1294–95.

Rogers thus makes clear that when social workers

investigating suspected abuse or neglect can reasonably

obtain a warrant without significantly risking serious bodily

harm to the child in question, the Fourth Amendment

mandates that they do so. This conclusion finds support in

long-standing Fourth Amendment precedent. See, e.g.,

Mincey v. Arizona, 437 U.S. 385, 394 (1978) (finding “no

exigent circumstances” supporting a warrantless search

because “[t]here was no indication that evidence would be

lost, destroyed, or removed during the time required to obtain

a search warrant”); Michigan v. Tyler, 436 U.S. 499, 509

(1978) (“[A] warrantless entry by criminal law enforcement

officials may be legal when there is compelling need for

official action and no time to secure a warrant.”); United

States v. Echegoyen, 799 F.2d 1271, 1279 n.5 (9th Cir. 1986)

(“Exigent circumstances necessarily imply that there is

insufficient time to get a warrant.”); United States v. Good,

780 F.2d 773, 775 (9th Cir. 1986) (“Exigent circumstances

alone, however, are insufficient as the government must also

show that a warrant could not have been obtained in time.”).

KIRKPATRICK V. CTY. OF WASHOE 15

This rule is the logical corollary to the Constitution’s

proscription of warrantless seizures absent exigent

circumstances; if the state had time to obtain a warrant, it

stands to reason that there can be no “exigent circumstance.”

Accordingly, under Rogers, the social workers here

lacked cause to forgo a warrant if they had adequate time to

pursue one through the ordinary judicial process without

risking B.W.’s well-being. We hold that Kirkpatrick has

raised a genuine dispute as to whether B.W. was in such

imminent danger of serious bodily injury that no warrant was

necessary. Whitworth’s methamphetamine abuse did not

pose a direct threat to B.W. while both mother and daughter

remained in the hospital, where nurses were supervising all of

B.W.’s medical needs. Nor did Whitworth’s unemployment

or lack of a stable place to live justify the social workers’

actions. “[R]eliance on factors so closely related to economic

status as a justification for removal would border on the

unconstitutional.” Rogers, 487 F.3d at 1296. In addition,

although B.W.’s age may have rendered her more vulnerable

to the harms of neglect if it were to occur, the undisputed

evidence belies any contention that B.W. was in jeopardy of

neglect in the maternity ward of the hospital, which

Kennedy—a DSS supervisor—considered to be a safe

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

case, similarly confirmed that there was no danger to B.W.

“[b]etween the time the hold was put on the child in the

hospital and the time just before [she] left the hospital.”

According to Kennedy’s deposition testimony, the only

potential “imminent risk” facing B.W. at the time that Wilcox

removed her from Whitworth’s custody was that B.W. “could

die if she goes home with a mother who’s high on drugs and

forgets to feed her.” But Whitworth was recovering from a

16 KIRKPATRICK V. CTY. OF WASHOE

cesarean section and had demonstrated no resistance to the

social workers’ intervention: Whitworth even volunteered her

case worker’s contact information to hospital staff and

remained in the hospital at the time of the protective custody

hearing the day after B.W.’s removal. At DSS’s request, the

hospital also put a hold on B.W. Accordingly, the unlikely

possibility that Whitworth might unexpectedly abscond with

B.W. did not justify dispensing with the warrant requirement.

See Rogers, 487 F.3d at 1295 (“So remote a risk does not

establish reasonable cause to believe that the children were in

immediate danger.”). A rational jury presented with this

evidence could find that B.W. was under no immediate threat

of serious physical injury, and, therefore, that the social

workers violated her Fourth Amendment rights by removing

her from her mother under non-exigent circumstances.

B.

We therefore turn to the second prong of the qualified

immunity analysis, which requires Kirkpatrick and B.W. to

demonstrate that this right was “clearly established.” See

Kennedy v. City of Ridgefield, 439 F.3d 1055, 1065 (9th Cir.

2006).

“To determine whether a right is clearly established, the

reviewing court must consider whether a reasonable [official]

would recognize that his or her conduct violate[d] that right

under the circumstances faced, and in light of the law that

existed at that time.” Id. While “[s]pecific binding precedent

is not required to show that a right is clearly established,”

Calabretta v. Floyd, 189 F.3d 808, 813 (9th Cir. 1999)

(citation omitted), “existing precedent must have placed the

statutory or constitutional question beyond debate,” Ashcroft

v. al-Kidd, 563 U.S. 731, 741 (2011). “Our task is to

KIRKPATRICK V. CTY. OF WASHOE 17

determine whether the preexisting law provided the

defendants with ‘fair warning’ that their conduct was

unlawful.” Kennedy, 439 F.3d at 1065 (quoting Flores v.

Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1137 (9th Cir.

2003)). “This exacting standard gives government officials

breathing room to make reasonable but mistaken judgments

by protect[ing] all but the plainly incompetent or those who

knowingly violate the law.” City & Cty. of San Francisco v.

Sheehan, 135 S. Ct. 1765, 1774 (2015) (internal quotation

marks omitted).

In July 2008 it was well-settled that a child could not be

removed without prior judicial authorization absent evidence

that the child was in imminent danger of serious bodily

injury. See Rogers, 487 F.3d at 1297 (recognizing that the

law has been clearly established in the Ninth Circuit since

Mabe, if not earlier); see also Mabe, 237 F.3d at 1106;

Wallis, 202 F.3d at 1138; Ram, 118 F.3d at 1310. But 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.” al-Kidd, 563 U.S. at 742 (citation

omitted). “Qualified immunity is no immunity at all if

‘clearly established’ law can simply be defined as the right to

be free from unreasonable searches and seizures.” Sheehan,

135 S. Ct. at 1776.

In 2008, it was not beyond debate that the confluence of

factors set forth above would not support a finding of

exigency. No Supreme Court precedent defines when a

warrant is required to seize a child under exigent

circumstances. And although the Supreme Court has

assumed that circuit precedent can be a dispositive source of

clearly established law, see id.; Carroll v. Carman, 135 S. Ct.

348, 350 (2014); Reichle v. Howards, 132 S. Ct. 2088, 2094

18 KIRKPATRICK V. CTY. OF WASHOE

(2012), none of the cases from this court explain when

removing an infant from a parent’s custody at a hospital to

prevent neglect, without a warrant, crosses the line of

reasonableness and violates the Fourth Amendment. See

Rogers, 487 F.3d at 1291–93 (finding that malnourishment

and bottle rot were not “imminent dangers” to two toddlers);

Mabe, 237 F.3d at 1108 (denying summary judgment where

social worker seized a 14-year-old girl who accused her

stepfather of sexual abuse without a warrant); Wallis,

202 F.3d at 1138 (holding that there was a genuine factual

dispute over the “imminency” of the danger to a child based

on allegations that the child’s father intended to ritually

sacrifice him to Satan the following week). In fact, very few

cases from any circuit have addressed what constitutes

exigent circumstances in a case that remotely resembles this

one. Cf. Kia P. v. McIntyre, 235 F.3d 749, 761–63 (2d Cir.

2000) (holding that a hospital’s retention of a newborn who

tested positive for methadone at birth was reasonable under

the Fourth Amendment). No matter how carefully a

reasonable social worker had read our case law, she could not

have known that seizing B.W. would violate federal

constitutional law. Without that fair notice, the social

workers in this case are entitled to qualified immunity.

II.

Our inquiry, however, is not over. Summary judgment on

B.W.’s Fourth Amendment claim against Washoe County is

still inappropriate if we can trace the social workers’

unconstitutional removal to a systemic failure to train DSS

officers to obtain a warrant before seizing a child to

investigate abuse or neglect.

KIRKPATRICK V. CTY. OF WASHOE 19

To prevail on a claim against a municipal entity for a

constitutional violation, a plaintiff must show that an

official’s action that caused the plaintiff’s injury was pursuant

“to official municipal policy of some nature.” Monell,

436 U.S. at 691. To do so, a plaintiff must go beyond the

respondeat superior theory of liability and demonstrate that

the alleged constitutional deprivation was the product of a

policy or custom of the local governmental unit. Connick v.

Thompson, 563 U.S. 51, 60 (2011). Under this standard, a

municipal defendant can be held liable because of a failure to

properly train its employees only if the failure reflects a

“conscious” choice by the government. Bd. of the Cty.

Comm’rs v. Brown, 520 U.S. 397, 407 (1997); City of Canton

v. Harris, 489 U.S. 378, 389 (1989). In other words, the

government’s omission must amount to a “policy” of

deliberate indifference to constitutional rights. Harris,

489 U.S. at 389. A plaintiff can satisfy this requirement by

showing that “the need for more or different training is so

obvious, and the inadequacy so likely to result in the violation

of constitutional rights, that the policymakers . . . can

reasonably be said to have been deliberately indifferent to the

need.” Id. at 390.

“‘[D]eliberate indifference’ is a stringent standard of

fault, requiring proof that a municipal actor disregarded a

known or obvious consequence of his action.” Connick,

563 U.S. at 61 (quoting Brown, 520 U.S. at 410). Satisfying

this standard requires proof that the municipality had “actual

or constructive notice that a particular omission in their

training program” will “cause[] [municipal] employees to

violate citizens’ constitutional rights.” Id. (quoting Brown,

520 U.S. at 410). In turn, to demonstrate that the

municipality was on notice of a constitutionally significant

gap in its training, it is “ordinarily necessary” for a plaintiff

20 KIRKPATRICK V. CTY. OF WASHOE

to demonstrate a “pattern of similar constitutional violations

by untrained employees.” Id. at 62.

Contrary to the dissent’s suggestion, evidence of a pattern

of constitutional violations is not always required to succeed

on a Monell claim. See Dissent Op. at 36–37, 38. The

Supreme Court has reaffirmed that “in a narrow range of

circumstances” a particular “showing of ‘obviousness’ can

substitute for the pattern of violations ordinarily necessary to

establish municipal culpability.” Connick, 563 U.S. at 63.

Such a situation is “rare”—“the unconstitutional

consequences of failing to train” must be “patently obvious”

and the violation of a protected right must be a “highly

predictable consequence” of the decision not to train. Id. For

example, the Supreme Court has opined that a single incident

of excessive force, coupled with evidence that a city had

neglected to train its armed officers on the constitutional

limitations on using force against fleeing felons, might

establish that the city manifested deliberate indifference in

training law enforcement. See Harris, 489 U.S. at 390 n.10.

A.

In support of his claim that Washoe County maintained an

unconstitutional practice of seizing children without a warrant

in non-exigent circumstances, Kirkpatrick adduced testimony

from Wilcox and Kennedy that they were wholly unfamiliar

with the process for obtaining a warrant before taking custody

of a child. Wilcox started working at DSS in June of 2007, a

year before she handled B.W.’s case. Yet, Wilcox testified

that she never received training on how to obtain a warrant

during the two years that she was employed by Washoe

County, or that she was instructed that social workers must

obtain a warrant in non-emergency situations. And, although

KIRKPATRICK V. CTY. OF WASHOE 21

Wilcox stated that she was trained on “imminent” danger, she

could not provide detail on what she had been taught. Under

questioning, Wilcox admitted that a hypothetical child in

B.W.’s circumstances was not in imminent danger:

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

his father for four days. Is that imminent

danger?

A: No.

Wilcox also testified that she would likely remove such a

child anyway, and without a warrant:

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

mother insists on returning him to a dangerous

situation and the father insists on getting him

in that dangerous situation, no questions

asked, you have already determined and

everybody agrees it’s a danger?

A: Then we remove the child.

Q: You don’t get a warrant?

A: No.

Q: The child you admitted is not in imminent

danger.

A: No. We don’t get a warrant.

22 KIRKPATRICK V. CTY. OF WASHOE

Q: But would you remove the child even

though the danger may be three or four days

away?

A: Yes.

Wilcox attributed her answer to Washoe County’s unofficial

custom or protocol:

Q: Let me ask you an obvious question. If the

child wasn’t in danger in the hospital and was

there for several days, why didn’t you seek a

warrant before you removed the child from

mom? Is it because you didn’t know you had

to? You weren’t trained on that?

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

No one told me to get a warrant and they

didn’t train me how to go about getting a

warrant.

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

warrant?

A: No. They didn’t.

Kennedy—who supervised between five and seven social

workers, including Wilcox—confirmed that it was “not in

[DSS’s] general practice” to obtain a warrant before

removing a child:

Q: Back in July of ’08, did you understand

that there was a distinction between removing

KIRKPATRICK V. CTY. OF WASHOE 23

a child with a court warrant and without a

court warrant?

A. No. I don’t believe at that point we ever

had court warrants . . . .

Q. So your best recollection is that as of July

of ’08, Washoe County Child Protective

Services did not obtain court warrants prior to

the removal of a child in any circumstances?

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

not in our general practice. No. There could

be—we had asked for warrants sometimes

when there was like a suspected kidnapping or

something like that where we had some prior

knowledge, let’s say. But generally speaking,

we did not. I don’t recall ever getting a

warrant to go out with one of my investigators

to go out and pick up a child unless it was a

special circumstance.

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

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

ever doing so:

Q: You mentioned that you have a recollection of

obtaining—of seeking warrants in situations like

kidnappings and things like that. . . . What I’m more

interested in is the case where you’ve gotten a

complaint or a report of some sort of child neglect

that triggers an investigation which leads to

determining that a child needs to be removed. Okay?

That’s the case I’m more interested in. Under those

24 KIRKPATRICK V. CTY. OF WASHOE

kind of circumstances, do you have any knowledge of

ever obtaining a warrant to remove a child under

those type of general circumstances?

A: I do not recollect doing that. No.

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

career with Washoe County Child Protective

Services you’re not aware of ever obtaining a

warrant to remove a child from a parent?

A: I don’t recollect ever doing that. However,

that is not to say that it could have occurred in

a rare instance that I’m not just recalling. It

was not a general practice ever to get a

warrant.

While discussing the process of removing a child from her

parent without a warrant, Kennedy noted that “Washoe

County has all kinds of policies and procedures for

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

when removing children:

Q: You stated when a baby or a child is

kidnapped that would be a situation where

you would get a warrant.

A: Generally speaking, yes. That happens

very rarely.

Q: A warrant to remove the child from the

kidnapper or a warrant to arrest the

kidnapper?

KIRKPATRICK V. CTY. OF WASHOE 25

A: A warrant to remove the child. We have

nothing to do arresting people.

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

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

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

warrants when we remove children when I

worked as a supervisor.

Q: There was a policy to not get warrants or

there was no policy?

A: There was no policy related to warrants.

B.

The County does not dispute that, at the time of B.W.’s

seizure, it had no policy or procedures for obtaining warrants

before removing children from parental custody, or for

training its social workers to recognize that a warrant may be

required. The lack of a formal policy is not necessarily

unconstitutional if DSS removes children only in cases in

which the removal is justified by exigent circumstances. Cf.

Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (finding

evidence that a city had indemnified an officer in an

excessive force case was not facially unconstitutional and

thus insufficient for municipal liability). Nor does a single

unconstitutional incident, without more, establish that a

municipality failed to provide proper training. City of

Oklahoma City v. Tuttle, 471 U.S. 808, 821–24 (1985); cf.

Miranda v. City of Cornelius, 429 F.3d 858, 869 (9th Cir.

2005) (holding that the city incurred no liability under § 1983

based solely on a constitutional violation sustained by the

26 KIRKPATRICK V. CTY. OF WASHOE

plaintiff where the violation occurred in contravention of the

city’s official policy). However, the evidence that the social

workers violated B.W.’s Fourth Amendment rights, in

conjunction with Wilcox and Kennedy’s testimony that the

County had no policy of obtaining warrants before removing

children from parental custody and that it was social workers’

regular practice to remove children regardless of the risk of

imminent bodily harm, raises more than a spectre of

deliberate indifference by Washoe County.3 This is therefore

a case in which the municipality’s “inadequacy [is] so likely

to result in the violation of constitutional rights” that a jury

could reasonably find § 1983 liability without needing a

pattern of violations to find the County culpable. See Harris,

489 U.S. at 390 (holding that the city could be held liable for

failing to train police officers in determining whether

detainees needed medical care because of the likelihood that,

absent proper training, the officers would default on their

constitutional obligations). Given the work performed by

DSS social workers, the need for DSS to train its employees

on the constitutional limitations of separating parents and

children is “so obvious” that its failure to do so is “properly

. . . characterized as ‘deliberate indifference’ to [the]

3

The dissent notes that both Kennedy and Wilcox testified that they

were trained to remove a child only in the presence of imminent danger,

which indicates that the County trains its social workers pursuant to a

lawful policy for removing children from parental custody. See Dissent

Op. at 37. But Wilcox also testified that she could not recall her

“imminent” danger training and admitted that, despite any such training,

she would likely effectuate a warrantless removal of a child who was not

in imminent danger. Further, Wilcox testified that she was never trained

on how to obtain a warrant and Kennedy confirmed that it was generally

not the County’s protocol to obtain a warrant prior to removing a child.

This testimony is sufficient to raise a genuine issue of material fact as to

whether the County maintained a policy of unconstitutionally seizing

children in non-exigent circumstances.

KIRKPATRICK V. CTY. OF WASHOE 27

constitutional rights” of Washoe County families. See id. at

390 & n.10. Accordingly, a question of material fact exists

regarding whether Washoe County maintained an

unconstitutional, unofficial policy. Summary judgment on

this claim is inappropriate.

There is also a question of fact for the jury as to whether

these customs and practices had a “direct causal link” to the

deprivation of B.W.’s Fourth Amendment rights. See id. at

389 (“[A] municipality can be liable under § 1983 only where

its policies are the ‘moving force [behind] the constitutional

violation.’” (quoting Monell, 436 U.S. at 694)). A reasonable

jury could conclude that DSS’s policy of conducting

warrantless seizures of children in non-exigent circumstances

was the moving force behind the warrantless removal of B.W.

from Whitworth’s custody. See Wallis, 202 F.3d at 1143

(concluding that material issues of fact precluded summary

judgment regarding the existence of a municipal custom or

practice of taking children from their homes without adequate

safeguards based on testimony from three detectives who had

seized a child from his home). Consequently, the County is

not entitled to summary judgment.

CONCLUSION

For the foregoing reasons, we affirm the district court’s

grant of summary judgment to the defendants on

Kirkpatrick’s claim that they violated his Fourteenth

Amendment rights by seizing B.W. without due process

because he had no enforceable parental rights at the time of

her removal. We also affirm the district court’s grant of

summary judgment to the social workers on B.W.’s Fourth

Amendment claim; although the social workers should have

obtained a warrant, their constitutional obligation to do so

28 KIRKPATRICK V. CTY. OF WASHOE

was not clearly established, and they are therefore entitled to

qualified immunity on this claim. However, we reverse

summary judgment and remand on B.W.’s claim against

Washoe County because Kirkpatrick has presented sufficient

evidence to raise a genuine issue of material fact regarding

whether the County maintained a policy of unconstitutionally

seizing children in non-exigent circumstances.

AFFIRMED in part; REVERSED in part and

REMANDED. Each party shall bear their own costs on

appeal.

CHRISTEN, Circuit Judge, with whom Circuit Judge

HURWITZ joins, concurring:

I agree with the results reached by the majority:

Kirkpatrick’s claim was correctly dismissed; a reasonable

jury could have found the warrantless seizure of B.W.

violated her constitutional rights but the individual social

workers were entitled to qualified immunity; and the County

was not entitled to summary judgment on the claim that its

policies violated B.W.’s Fourth Amendment rights. I write

separately to address, briefly, what the court describes as “the

unlikely possibility that Whitworth might unexpectedly

abscond with B.W.” Maj. Op. at 16.

In Rogers v. County of San Joaquin, we unequivocally

explained that social workers are required to obtain a warrant

before seizing a child unless there is “reasonable cause to

believe that the child is likely to experience serious bodily

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

487 F.3d 1288, 1294 (9th Cir. 2007). Here, the social

KIRKPATRICK V. CTY. OF WASHOE 29

workers’ testimony makes plain that they gave no thought to

obtaining a warrant, apparently because the County made no

effort to train its social workers on this requirement. The

dissent argues that B.W.’s constitutional rights were not

violated because the County correctly trained its workers to

remove children only in exigent circumstances. See Dissent

Op. at 37. But the record tells us nothing about how long it

might have taken to obtain a warrant and almost nothing

about how likely it was that Whitworth would leave the

hospital before a warrant could be obtained. For example, we

cannot tell whether the social workers’ conversations with

Whitworth caused concern that she might leave. There were

unresolved questions of fact at the summary judgment stage,

but it was known that the informal “hold” DSS requested did

not actually prevent Whitworth from leaving the hospital with

B.W., or giving another adult permission to remove the baby.

If the disputed facts are construed in the light most

favorable to B.W., it must be assumed that it would have been

possible for the social workers to obtain a warrant without

delay. On the other hand, it only takes minutes to walk out of

a hospital. Even if the risk that Whitworth would leave with

B.W. was small, I cannot set aside the possibility that

Whitworth might have done so simply because she was

recovering from a cesarean section. See Maj. Op. at 15–16.

Social workers are entitled to rely on their experience, and at

least one social worker testified that she had seen patients

recovering from cesarean sections leave the hospital

unexpectedly. Compounding the problem, Whitworth had a

poor track record of staying in touch with the social workers

and they knew they had no way to reach her if she left the

hospital.

30 KIRKPATRICK V. CTY. OF WASHOE

Boiled down, it seems to me that the individual social

workers correctly determined that this newborn faced a

catastrophic risk if her mother removed her from the hospital,

(she “could die if she goes home with a mother who’s high on

drugs and forgets to feed her”), and it would only have taken

a few minutes for someone to leave with B.W. The social

workers’ error, if any, was in pegging the likelihood that

B.W.’s mother would leave with her. The social workers

may have jumped the gun, but how much risk were they

required to tolerate with the life of a newborn baby at stake?

I conclude the social workers reasonably refused to gamble

that Whitworth would make the sound decision to leave B.W.

in the hospital. Thus, the applicable standards entitle them to

qualified immunity.

FRIEDLAND, Circuit Judge, with whom THOMAS, Chief

Judge, joins, concurring in part and dissenting in part:

I join the majority’s opinion as to municipal liability but

dissent from its affirmance of summary judgment on the

claim against the individual defendants. An official is liable,

and not entitled to qualified immunity, if her “conduct

violated a clearly established constitutional right.” Pearson

v. Callahan, 555 U.S. 223, 232 (2009). The constitutional

rule that B.W. could not be seized without a warrant absent

imminent danger was clearly established, and it was equally

clear that there was no imminent danger to B.W. On the

Fourth Amendment claim against the social workers, I would

therefore hold that summary judgment to Defendants should

KIRKPATRICK V. CTY. OF WASHOE 31

be reversed and Plaintiff’s cross-motion for summary

judgment should be granted.1

The majority correctly recognizes that the rule of law at

issue here was clearly established at the time: “[A] child

could not be removed without prior judicial authorization

absent evidence that the child was in imminent danger of

serious bodily injury.” Maj. Op. at 17 (citing Rogers v. Cty.

of San Joaquin, 487 F.3d 1288, 1297 (9th Cir. 2007)); see

also Mabe v. San Bernardino Cty., Dep’t of Pub. Soc. Servs.,

237 F.3d 1101, 1106 (9th Cir. 2001) (“Government officials

are required to obtain prior judicial authorization before

intruding on a parent’s custody of her child unless they

possess information at the time of the seizure that establishes

‘reasonable cause to believe that the child is in imminent

danger of serious bodily injury and that the scope of the

intrusion is reasonably necessary to avert that specific

injury.’” (quoting Wallis v. Spencer, 202 F.3d 1126, 1138

(9th Cir. 2000))). Nevertheless, the majority holds that the

social workers are entitled to qualified immunity because it

was debatable whether B.W. was in imminent danger. I

disagree.

The only conclusion to be drawn from the very record

evidence the majority discusses is that no reasonable social

worker could have believed B.W. was in imminent danger of

serious bodily injury. See Saucier v. Katz, 533 U.S. 194, 207

(2001) (“Fourth Amendment issues [ ] are evaluated for

objective reasonableness based upon the information the

officers had when the conduct occurred.”). As the majority

correctly points out, Whitworth’s methamphetamine abuse

1

Plaintiff filed a cross-motion for summary judgment and has argued

on appeal that it should have been granted.

32 KIRKPATRICK V. CTY. OF WASHOE

could not have reasonably posed a threat to B.W. while both

were in the hospital because, even though hospital staff noted

that Whitworth was apparently not taking adequate care of

B.W., nurses were attending to the newborn’s needs. Maj.

Op. at 15.2 Nor was there any reasonable risk that Whitworth

would abscond with B.W. In the majority’s own words,

“Whitworth was recovering from a cesarean section, and had

demonstrated no prior resistance to the social workers’

intervention[.] . . . [S]he remained in the hospital at the time

of the protective custody hearing the day after B.W.’s

removal [, and] the hospital [had] also put a hold on B.W.”

Maj. Op. at 15–16. “Accordingly,” the majority correctly

concludes, there was only an “unlikely possibility that

Whitworth might unexpectedly abscond with B.W.” Id. at

20. “So remote a risk does not establish reasonable cause to

believe that the child[] [was] in immediate danger.” Rogers,

487 F.3d at 1295.

Indeed, as the majority correctly recognizes, the social

workers expressly admitted that they did not believe B.W.

was in imminent danger at the time they seized her. See Maj.

Op. at 15 (describing Defendant Kennedy’s testimony that the

hospital’s maternity ward is a safe environment and

Defendant Wilcox’s testimony that there was no danger to

B.W. while the hospital’s hold was in place). I am aware of

no contrary testimony that would create a triable issue as to

whether B.W. was in imminent danger. On this record, it is

2

Whitworth’s unemployment and lack of stable housing could not

justify the warrantless seizure because, again as the majority aptly states,

“[r]eliance on factors so closely related to economic status as a

justification for removal would border on the unconstitutional.” Maj. Op.

at 15 (quoting Rogers, 487 F.3d at 1296). Nor did Whitworth’s

unemployment and a lack of stable housing pose an imminent danger to

B.W. while both were in the hospital.

KIRKPATRICK V. CTY. OF WASHOE 33

thus clear that B.W. was not in imminent danger. The social

workers therefore violated B.W.’s clearly established rights

in failing to obtain a warrant before seizing her.

Although it is true that no binding authority has addressed

this exact factual scenario, such specificity is not required for

a constitutional obligation to be “clearly established.” See

Hope v. Pelzer, 536 U.S. 730, 739 (2002) (stating that for a

constitutional right to be clearly established, the “very action

in question” need not have “previously been held unlawful,”

as long as “in the light of pre-existing law the unlawfulness

[is] apparent” (quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987))). It was clearly established that a child could not

be seized without a warrant absent imminent danger, and the

inescapable conclusion to be drawn from this record is that no

objective social worker could have believed—and indeed,

these social workers did not believe—that B.W. was in

imminent danger. It follows, therefore, that the social

workers violated B.W.’s clearly established constitutional

rights.

In my view, qualified immunity should be denied and

summary judgment entered for Plaintiff on the Fourth

Amendment claim. I dissent from the majority’s contrary

conclusion.

34 KIRKPATRICK V. CTY. OF WASHOE

KOZINSKI, Circuit Judge, with whom Circuit Judges

O’SCANNLAIN, RAWLINSON and BEA join, and Circuit

Judge WATFORD joins with respect to Part 2, dissenting in

part:

For the reasons explained in my panel dissent, I agree that

the social workers here are entitled to qualified immunity and

join that part of the opinion. But I cannot agree that the social

workers committed a constitutional violation, nor that the

County can be liable for a policy of unconstitutional conduct

under Monell. I therefore dissent from those portions of the

opinion.

1. There Was No Constitutional Violation

The majority acknowledges that Whitworth was a drug

addict who used meth throughout her pregnancy—

transferring it to her baby—and had no job or stable living

situation. Op. at 5, 15. And my colleagues recognize that

“B.W.’s age may have rendered her more vulnerable to the

harms of neglect if it were to occur.” Id. at 15. They even

quote Kennedy testifying that B.W. “could die if she goes

home with a mother who’s high on drugs and forgets to feed

her.” Id. at 15.

The majority dismisses this exigency because Whitworth

remained in the hospital recovering from her c-section “and

had demonstrated no resistance to the social workers’

intervention: Whitworth even volunteered her case worker’s

contact information to hospital staff.” Id. at 15–16. I

disagree with both prongs of the majority’s reasoning.

That Whitworth was recovering from surgery certainly

doesn’t mean she couldn’t leave the hospital on short notice.

KIRKPATRICK V. CTY. OF WASHOE 35

The social workers here testified that moms like Whitworth

“don’t always stay for a few days at the hospital, sometimes

they just leave” even after a c-section, as Judge Christen

notes. See Christen, J., concurring, at 29. It may have been

foolish for Whitworth to do so, but someone who abuses her

body and baby by using meth throughout her pregnancy can

hardly be counted on to calculate danger rationally or avoid

putting herself and her baby at risk.

We may evaluate the risks differently with the benefit of

hindsight, but that is not the test. The test is whether well-

informed social workers on the scene could reasonably

believe that leaving the baby in the mother’s control while

they sought a warrant would put the baby at some risk of

serious bodily injury or death. See Ryburn v. Huff, 132 S. Ct.

987, 992 (2012) (per curiam); Ashcroft v. al-Kidd, 563 U.S.

731, 735–36, 743–44 (2011). I don’t read the majority as

saying that there was no risk of harm to the baby, only that

the risk was small. As Judge Christen aptly notes, “the social

workers reasonably refused to gamble that Whitworth would

make the sound decision to leave B.W. in the hospital.”

Christen, J., concurring, at 30. We are not entitled to second-

guess that judgment.

That the mother was cooperative was no guarantee that

she wouldn’t change her mind. Meth addicts can be volatile.

Because “it only takes minutes to walk out of a hospital,” id.

at 29, and put a baby’s life in danger, any time the social

workers took to get a warrant would be too much. My

colleagues in the majority are willing to risk a baby’s life on

the presumed rational behavior of a woman who treats her

own health and that of her baby with contempt. I can’t agree

that the social workers were unreasonable in taking a

different view. Indeed, they reasonably could have taken the

36 KIRKPATRICK V. CTY. OF WASHOE

mother’s cooperation as consent, which also would have

obviated the need for a warrant.

The test under the Fourth Amendment is reasonableness.

The Supreme Court has “instructed that reasonableness must

be judged from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.”

Ryburn, 132 S. Ct. at 992 (internal quotation marks and

citation omitted). “Judged from the proper perspective of a

reasonable officer forced to make a split-second decision in

response to a rapidly unfolding chain of events,” id., the

social workers here acted reasonably in the difficult

circumstances presented to them. Had they left to get a

warrant, and had the mother departed the hospital with the

baby, they would have had the baby’s life on their

conscience. I cannot blame them for refusing to take that

small—but far from trivial—risk.

2. The County Is Not Liable Under Monell

The majority compounds its error by holding that the

County can be liable for B.W.’s supposedly unconstitutional

removal: “Summary judgment on B.W.’s Fourth Amendment

claim against Washoe County is still inappropriate if we can

trace the social workers’ unconstitutional removal to a

systemic failure to train DSS officers to obtain a warrant

before seizing a child to investigate abuse or neglect.” Op. at

18. But the majority never points to any evidence of a

systemic problem. The only evidence we have is the

experience of the two social workers who were named as

defendants in this case. There is no evidence that the training

these social workers received was typical. The plaintiffs

presented no evidence at all as to the training and guidance

given to the rest of the County’s social workers, or even how

KIRKPATRICK V. CTY. OF WASHOE 37

many of them there were. The experience of these two

individuals could be atypical; two data points aren’t enough

to establish a pattern or policy.

The majority frames this case as one where the

unconstitutional consequences of failing to train were so

“obvious” that the violation of a right was “highly

predictable.” Id. at 20 (quoting Connick v. Thompson,

563 U.S. 51, 64 (2011)); see also id. at 26–27. But the social

workers testified that the County trained them on the law and

instructed them to remove a child only if there were an

imminent risk of harm. So there was training and there was

a standard: “imminent risk to the well being of that child” or

“imminent danger.” According to the evidence, this meant “a

child’s life was in danger”; that a “child would suffer a

serious injury or even possibly death if something wasn’t

done.” That’s the constitutional standard: If there are exigent

circumstances, no warrant is required. It’s not “highly

predictable” that the County’s training would lead to

unconstitutional results.

The majority recognizes that “[t]he lack of a formal

policy is not necessarily unconstitutional if DSS removes

children only in cases in which the removal is justified by

exigent circumstances.” Id. at 25. The majority gets around

that conclusion by finding “it was social workers’ regular

practice to remove children regardless of the risk of imminent

bodily harm.” Id. at 26. As is often the case with appellate

fact-finding, this is a figment.

The majority points to no evidence of a “regular practice”

or even a single other instance of children being removed

when there was no imminent risk of harm. Instead, they rely

on Wilcox’s testimony that “she was trained on ‘imminent’

38 KIRKPATRICK V. CTY. OF WASHOE

danger,” but couldn’t remember the specifics of that training

at a deposition three years later. Id. at 20–21, 26 n.3. So

what? The County is hardly at fault because employees are

unable to give details of their training sessions years later.

The majority also uses a deposition hypothetical—whether

Wilcox would get a warrant to remove a child who will return

in four days to a molesting father—as proof that the County’s

training was insufficient because it didn’t teach the social

workers to get a warrant. Id. at 21–22, 26 n.3. The

hypothetical is totally inapposite here, where even a few

minutes would be enough for Whitworth to leave the hospital

with B.W. and put her life at risk. See supra p. 35. The

County cannot be held liable under Monell based on what an

employee says she would have done in a non-analogous,

hypothetical situation.

But even if the majority’s illusory finding were supported

by the record, it wouldn’t be enough. “A pattern of similar

constitutional violations by untrained employees is

‘ordinarily necessary’ to demonstrate deliberate indifference

for purposes of failure to train.” Connick, 563 U.S. at 62

(emphasis added) (citation omitted). Here, there is no

evidence that the County unconstitutionally removed any

other child because it failed to train social workers on how to

get warrants. The majority derives a pattern from a single

data point.

* * *

The majority gets it almost right. I dissent because, when

life or death are concerned, “almost right” isn’t.