Natia Sampson v. County of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIA SAMPSON, No. 18-55450

Plaintiff-Appellant,

D.C. No.

v. 5:17-cv-00599-

PA-PJW

COUNTY OF LOS ANGELES, by and

through the Los Angeles County

Department of Children and Family OPINION

Services; NICOLE DAVIS; AHMED

OBAKHUME; DAWNA YOKOYAMA;

GERALDO IBARRA,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Argued and Submitted November 8, 2019

Pasadena, California

Filed September 9, 2020

Before: Mary H. Murguia and Andrew D. Hurwitz, Circuit

Judges, and Jack Zouhary, * District Judge.

*

The Honorable Jack Zouhary, United States District Judge for the

Northern District of Ohio, sitting by designation.

2 SAMPSON V. COUNTY OF LOS ANGELES

Opinion by Judge Murguia;

Partial Concurrence and Partial Dissent by Judge Hurwitz;

Partial Concurrence and Partial Dissent by Judge Zouhary

SUMMARY **

Civil Rights

The panel affirmed in part and vacated in part the district

court’s order dismissing a complaint on qualified immunity

grounds, and remanded, in an action brought pursuant to 42

U.S.C. § 1983 against the Los Angeles County Department

of Children and Family Services and four individual

employees alleging sexual harassment in violation of the

Equal Protection Clause of the Fourteenth Amendment,

retaliation under the First Amendment, and related

constitutional claims.

The panel first vacated the district court’s grant of

qualified immunity to defendants on plaintiff’s First

Amendment retaliation claim. The panel held that it was

clearly established at the time of defendants’ conduct that the

First Amendment prohibits public officials from threatening

to remove a child from an individual’s custody to chill

protected speech out of retaliatory animus for such speech.

Defendants therefore should have known that it was

unconstitutional to retaliate against plaintiff for speaking out

about the sexual harassment she allegedly suffered. The

panel remanded to the district court for it to determine in the

**

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

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

SAMPSON V. COUNTY OF LOS ANGELES 3

first instance whether plaintiff plausibly alleged a retaliation

claim under the First Amendment.

The panel reluctantly affirmed the district court’s grant

of qualified immunity to defendants on plaintiff’s equal

protection claim because the right of private individuals to

be free from sexual harassment at the hands of social

workers was not clearly established at the time of

defendants’ conduct in this case. Nevertheless, moving

forward, the panel explicitly held that public officials,

including social workers, violate the Equal Protection

Clause of the Fourteenth Amendment when they sexually

harass private individuals while providing them social

services.

Concurring in part and dissenting in part, Judge Hurwitz

agreed with Judge Murguia that the qualified immunity

doctrine, however ill-conceived, barred plaintiff’s otherwise

plausible equal protection claim, and therefore concurred in

Section IV.B of the majority opinion. Judge Hurwitz

dissented from Section IV.A of the opinion, stating that on

the issue of whether defendants were entitled to qualified

immunity on the First Amendment claim, there was no

sufficiently similar binding precedent at the time of the

conduct at issue that would have warned the alleged

violators that their actions were constitutionally forbidden.

Concurring in part and dissenting in part, District Judge

Zouhary agreed with Judge Murguia that the application of

qualified immunity was improper with respect to the First

Amendment claim. He stated that when the conduct at issue

took place, it was clearly established that public officials

may not threaten to remove a child from an individual’s

custody in retaliation for protected speech. He therefore

joined in Section IV.A of the opinion. As for the Equal

4 SAMPSON V. COUNTY OF LOS ANGELES

Protection claim, Judge Zouhary agreed that defendants’

alleged actions violated plaintiff’s constitutional right to be

free of sexual harassment. However, he disagreed that this

right was not yet clearly established, and therefore he

dissented from Section IV.B of the opinion.

COUNSEL

Andre L. Clark (argued), Law Office of Andre Clark, San

Bernardino, California; Daniel C. Sharpe, Law Offices of

Vincent W. Davis & Assoc., Arcadia, California, for

Plaintiff-Appellant.

Jaime Verducci (argued), David J. Weiss, and Michael H.

Foman, Law Offices of David J. Weiss, Los Angeles,

California, for Defendants-Appellees.

OPINION

MURGUIA, Circuit Judge:

Natia Sampson volunteered to become the legal guardian

of her niece, H.S., after her parents were incarcerated.

Sampson alleges that throughout the process of applying for

and obtaining legal guardianship of H.S., she was sexually

harassed by a social worker assigned to her case; when

Sampson complained about the harassment, the social

worker and his supervisors allegedly retaliated against her.

Sampson sued the Los Angeles County Department of

Children and Family Services (“DCFS”) and four individual

employees thereof (collectively, “Defendants”) under

42 U.S.C. § 1983, alleging sexual harassment in violation of

SAMPSON V. COUNTY OF LOS ANGELES 5

the Equal Protection Clause of the Fourteenth Amendment,

retaliation under the First Amendment, and other related

constitutional claims. The district court granted qualified

immunity to Defendants on the Fourteenth Amendment

sexual harassment and First Amendment retaliation claims

and dismissed all other claims.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we affirm in part and vacate in part. We vacate the district

court’s grant of qualified immunity to Defendants on

Sampson’s First Amendment retaliation claim because it

was clearly established at the time of Defendants’ conduct

that the First Amendment prohibits public officials from

threatening to remove a child from an individual’s custody

to chill protected speech out of retaliatory animus for such

speech. In other words, Defendants should have known that

it was unconstitutional to retaliate against Sampson for

speaking out about the sexual harassment she allegedly

suffered.

We reluctantly affirm, however, the district court’s grant

of qualified immunity to Defendants on Sampson’s equal

protection claim because the right of private individuals to

be free from sexual harassment at the hands of social

workers was not clearly established at the time of

Defendants’ conduct in this case. Nevertheless, moving

forward, we explicitly hold that public officials, including

social workers, violate the Equal Protection Clause of the

Fourteenth Amendment when they sexually harass private

individuals while providing them social services. The Equal

Protection Clause protects all of us from sexual harassment

at the hands of public officials who are supposed to serve us.

This is especially true for vulnerable individuals like

Sampson, who availed herself of the State’s social services

to become H.S.’s permanent legal guardian to protect her

6 SAMPSON V. COUNTY OF LOS ANGELES

niece from being placed in the State’s foster care system. To

hold otherwise would be contrary to the Constitution’s

guarantee of equal protection under the law.

I. Factual Background

Sampson alleged the following facts, which we take as

true in this appeal from the district court’s order dismissing

the operative complaint. See Mier v. Owens, 57 F.3d 747,

750 (9th Cir. 1995). Sampson is a paternal aunt of minor

H.S. During the summer of 2014, Sampson learned H.S.’s

parents had been incarcerated, resulting in the placement of

H.S. in foster care. After contacting DCFS about H.S.,

Sampson moved from Nevada to San Bernardino County,

California, to be H.S.’s caregiver. In November 2014, the

Los Angeles County juvenile dependency court ordered H.S.

to be placed in Sampson’s care pending Sampson’s

guardianship application.

DCFS assigned Ahmed Obakhume, a social worker at its

“Vermont Corridor” office, to H.S.’s case. Obakhume

commented on Sampson’s appearance and marital status,

urging her to end her marriage, inappropriately touching her,

and attempting to coerce her into riding in his vehicle.

Sampson did not initially report Obakhume’s conduct,

fearing it would negatively impact her case. In February

2015, however, after several months of unwanted advances,

Sampson complained about Obakhume’s conduct to his

supervisor, Nicole Davis, who replied that Obakhume was

“one of her best” social workers and the only one willing to

work with H.S.’s biological parents. Obakhume’s conduct

continued.

Throughout 2015, Sampson experienced two other

issues in dealing with DCFS officials. First, DCFS required

Sampson to supervise visits between H.S. and the biological

SAMPSON V. COUNTY OF LOS ANGELES 7

parents. Sampson expressed her unwillingness to do so to

Kilene Short—another Vermont Corridor social worker

briefly assigned to H.S.’s case—but Short refused to remedy

the situation. Second, Sampson had difficulties obtaining

the additional “F-Rate” funding 1 for caregivers of children

with special needs, for which Sampson claimed she was

eligible. DCFS officials failed to provide the proper F-Rate

paperwork, clothing allowances, and other reimbursements

to Sampson. Obakhume also failed to advise Sampson that

completing a class was required to qualify for F-Rate

funding, and even after Sampson completed the class,

Obakhume continued to incorrectly tell her there were other

unsatisfied requirements.

In August 2015, the juvenile court granted Sampson

legal guardianship of H.S. at the request of both biological

parents. A month later, Geraldo Ibarra, Deputy Director of

DCFS, assured Sampson he would remedy the F-Rate

funding issue, assign H.S. another social worker, and address

Obakhume’s conduct.

In October 2015, Sampson allowed Ronald Sampson,

her brother and H.S.’s father, to visit H.S. unsupervised,

based on Obakhume’s representation that Ronald had

unmonitored visitation rights. Ronald then absconded with

H.S., who was found the following day unclothed and

hungry. Obakhume visited Sampson’s residence to discuss

the incident and stated, “I don’t know where you get off

sending all these complaint emails and making all these

1

The Specialized Care Increment F-Rate is a higher foster care rate

paid in addition to the basic foster care rate by Los Angeles County to

foster caregivers of children with medical problems, physical conditions,

or developmental disabilities/delays. See Specialized Care Increment

(SCI) – F Rate, http://policy.dcfs.lacounty.gov/content/Specialized_Care

_Increme.htm (last visited August 6, 2020).

8 SAMPSON V. COUNTY OF LOS ANGELES

calls, but you are going to find out that we at the Vermont

Corridor stick together, and cover for each other. No one is

going to lose their job behind you and your mess.” Sampson

immediately contacted Ibarra, who said he would intervene,

but never did.

The next month, with Davis’ permission, Obakhume

filed unsupported allegations that Sampson was neglecting

and abusing H.S., prompting a county child protective

services investigator to visit Sampson’s home on November

10 and 12. That week, Sampson emailed Dawna Yokoyama,

Assistant Regional Administrator of DCFS, to complain

about Obakhume’s sexual harassment and DCFS’s false

accusations of abuse and neglect. Sampson then took H.S.

to Nevada for Thanksgiving. Meanwhile, DCFS petitioned

for, and received, a warrant authorizing the removal of H.S.

from Sampson’s care; however, the warrant was never

executed and soon expired.

After the expired warrant, DCFS sought an order from

the juvenile court to remove H.S. from Sampson’s care,

again alleging, without justification, that Sampson was

abusing and neglecting H.S. The court held a hearing on

December 9, 2015, at which Sampson successfully opposed

DCFS’s request to remove H.S. because DCFS could not

show that Sampson was abusing or neglecting H.S.

Nonetheless, DCFS was so determined to remove H.S. from

Sampson’s care that it filed a petition for an extraordinary

writ with the California Court of Appeal requesting a stay of

the juvenile court’s order. The court of appeal granted the

petition and authorized DCFS to remove H.S. pending

briefing; DCFS removed H.S. two days later. On January 7,

2016, after reviewing the merits of DCFS’s petition, the

California Court of Appeal vacated its stay order and

returned H.S. to Sampson’s care, realizing that DCFS’s

SAMPSON V. COUNTY OF LOS ANGELES 9

allegations of abuse and neglect leveled against Sampson

were unfounded.

H.S.’s juvenile dependency case was transferred to San

Bernardino County in June 2016, and closed in February

2017. Sampson remains H.S.’s legal guardian.

II. Procedural History

Sampson brought this action in July 2017; her first

amended complaint alleged five claims against the County,

Obakhume, Davis, Yokoyama, and Ibarra under 42 U.S.C.

§ 1983: 2 (1) retaliation in violation of the First Amendment

for falsely accusing Sampson of abuse and neglect and

seeking to remove H.S. from her custody; (2) sexual

harassment in violation of the Equal Protection Clause of the

Fourteenth Amendment for Obakhume’s conduct;

(3) violation of substantive due process under the Fourteenth

Amendment for judicial deception; (4) denial of procedural

due process under the Fourteenth Amendment; and

(5) liability against the County under Monell v. Department

of Social Services, 436 U.S. 658 (1978).

The district court dismissed the first four claims without

leave to amend on qualified immunity grounds and the

Monell claim under Federal Rule of Civil Procedure

12(b)(6). The district court applied qualified immunity

because it found that Sampson had no protected interest to

support her substantive and procedural due process claims,

and the rights asserted in her First Amendment retaliation

and Equal Protection sexual harassment claims were not

“clearly established.” After granting Sampson two

2

Short was also named as a defendant but was dismissed for

Sampson’s failure to prosecute and comply with a district court order.

10 SAMPSON V. COUNTY OF LOS ANGELES

opportunities to amend her Monell claim, the district court

dismissed that claim with prejudice and entered a final

judgment.

On appeal, Sampson challenges only the district court’s

dismissal based on qualified immunity of her Fourteenth

Amendment equal protection and First Amendment

retaliation claims.

III. Standard of Review

“We review de novo a district court’s dismissal under

Federal Rule of Civil Procedure 12(b)(6), accepting as true

all allegations of fact in a well-pleaded complaint and

construing those facts in the light most favorable to the

plaintiff.” Karam v. City of Burbank, 352 F.3d 1188, 1192

(9th Cir. 2003). “We review de novo a district court’s

decision on qualified immunity.” Vazquez v. County of

Kern, 949 F.3d 1153, 1159 (9th Cir. 2020).

IV. Analysis

Section 1983 “is not itself a source of substantive rights,

but a method for vindicating federal rights elsewhere

conferred.” Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.

2003) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3

(1979)); see 42 U.S.C. § 1983. In order to state a claim under

§ 1983, a plaintiff must plausibly allege that “she suffered

the deprivation of a federally protected right and that ‘the

alleged deprivation was committed by a person acting under

color of state law.’” Hyun Ju Park v. City & Cnty. of

Honolulu, 952 F.3d 1136, 1140 (9th Cir. 2020) (quoting

West v. Atkins, 487 U.S. 42, 48 (1988)).

In § 1983 actions, “qualified immunity protects

government officials ‘from liability for civil damages insofar

SAMPSON V. COUNTY OF LOS ANGELES 11

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.’” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)); see Kisela v. Hughes (“Kisela II”), 138 S. Ct. 1148,

1152 (2018) (per curiam). To determine whether qualified

immunity applies, we ask whether (1) the plaintiff has

plausibly alleged a violation of a constitutional right, and

(2) the constitutional right was “clearly established” at the

time of the conduct at issue. Wilk v. Neven, 956 F.3d 1143,

1148 (9th Cir. 2020) (quoting Pearson, 555 U.S. at 236).

Lower courts have discretion to address the questions in

reverse order, see Pearson, 555 U.S. at 236, 242, and the

district court did so here, taking up only the “clearly

established” prong.

A constitutional right is “clearly established” if “every

reasonable official would have understood that what he is

doing violates that right” at the time of his conduct. Taylor

v. Barkes, 575 U.S. 822 (2015) (per curiam) (quoting Reichle

v. Howards, 566 U.S. 658, 664 (2012)). Therefore, we ask

“whether the state of the law [at the time of the officials’

conduct] gave [them] fair warning that their alleged

[conduct] was unconstitutional.” Hope v. Pelzer, 536 U.S.

730, 741 (2002). In other words, because we focus “on

whether the officer had fair notice that her conduct was

unlawful, reasonableness is judged against the backdrop of

the law at the time of the conduct.” Kisela II, 138 S. Ct.

at 1152 (quoting Brosseau v. Haugen, 543 U.S. 194, 198

(2004) (per curiam)). “We do not require a case directly on

point, but existing precedent must have placed the statutory

or constitutional question beyond debate.” Barkes, 575 U.S.

at 822 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011)). “[O]fficials can still be on notice that their conduct

violates established law even in novel factual

12 SAMPSON V. COUNTY OF LOS ANGELES

circumstances” where there are no prior cases with

“fundamentally similar” or “materially similar” facts. Hope,

536 U.S. at 741.

A. First Amendment retaliation claim.

To state a First Amendment retaliation claim, Sampson

must plausibly allege that (1) she engaged in a

constitutionally protected activity, (2) Defendants’ actions

would chill a person of ordinary firmness from continuing to

engage in the protected activity, and (3) the protected

activity was a substantial or motivating factor in Defendants’

conduct. O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir.

2016) (quoting Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d

755, 770 (9th Cir. 2006)). To prevail, Sampson must

establish that Defendants’ “retaliatory animus” was the “but-

for” cause of her injury, “meaning that the adverse action

against [her] would not have been taken absent the

retaliatory motive.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722

(2019) (first two quoting Hartman v. Moore, 547 U.S. 250,

259, 260 (2006)). In other words, Sampson must show that

Defendants’ false accusations of abuse and neglect and their

efforts to remove H.S. from her custody were motivated by

their desire to retaliate against her for speaking out about

Obakhume’s sexual harassment.

Sampson alleged that she engaged in constitutionally

protected activity when she complained about Obakhume’s

sexual harassment, Davis and Short’s refusal to process her

F-Rate funding paperwork, and Davis and Short’s demands

that Sampson monitor visits with H.S.’s biological parents.

“[T]he First Amendment prohibits government officials

from subjecting an individual to retaliatory actions . . . for

speaking out.” Hartman, 547 U.S. at 256; see Capp v.

County of San Diego, 940 F.3d 1046, 1054 (9th Cir. 2019)

(“It is well settled that the activity for which [the plaintiff]

SAMPSON V. COUNTY OF LOS ANGELES 13

was allegedly retaliated against—voicing criticism of the

Agency’s conduct—is constitutionally protected.”).

Clearly, Sampson’s complaints about DCFS and its

employees are constitutionally protected.

Sampson also alleges that, in retaliation for her

complaints, Defendants withheld reimbursement funds,

refused to communicate the requirements and procedures for

those funds, falsely accused her of failing to comply with

home visit requirements, demanded that she arrange and

supervise visits with H.S.’s parents, and falsely accused her

of abusing and neglecting H.S., ultimately filing a baseless

action in state juvenile court to remove H.S. from her

custody. The district court granted Defendants qualified

immunity, finding no binding case law clearly establishing

that public officials outside of the law enforcement, prison,

employment, or school contexts can be liable for retaliation

under the First Amendment. We disagree.

It was clearly established at the time of Defendants’

conduct that the First Amendment prohibits public officials

from threatening to remove a child from an individual’s

custody to chill protected speech out of retaliatory animus

for such speech. See Capp, 940 F.3d at 1058–59.

In Capp, we denied qualified immunity to a social

worker because “[a] reasonable official would have known

that taking the serious step of threatening to terminate a

parent’s custody of his children, when the official would not

have taken this step absent her retaliatory intent, violates the

First Amendment.” Id. at 1059. There, after a father

complained about an allegedly unfounded child welfare

services investigation, the social worker assigned to his case

allegedly retaliated against the father by convincing his

children’s mother to file a baseless ex-parte motion for

custody. Id. at 1050–52.

14 SAMPSON V. COUNTY OF LOS ANGELES

Capp is indistinguishable from the instant case. Here,

too, Defendants knew or should have known that taking the

serious steps of falsely accusing Sampson of neglect and

abuse and convincing the juvenile court to temporarily

remove H.S. from her custody, when Defendants would not

have taken these steps absent their retaliatory intent, violates

the First Amendment. Although Capp was decided in 2019,

it held that the right at issue was clearly established by

August 2015. Id. at 1051, 1059. Therefore, under Capp,

Sampson’s First Amendment right was clearly established

on November 2015—the relevant date here. 3

Defendants argue that Capp is distinguishable because it

involves a biological parent. The fact that Sampson is H.S.’s

court-appointed legal guardian, rather than her biological

parent, does not mean that Defendants could have

reasonably understood that threatening to remove H.S. from

her custody in retaliation for her protected activity did not

3

Judge Hurwitz’s partial dissent argues that we may not draw this

conclusion in light of the Supreme Court’s decision in Kisela II, which

reversed our denial of qualified immunity in Hughes v. Kisela (“Kisela

I”), 862 F.3d 775 (9th Cir. 2016). Kisela I implicated conduct that

occurred in 2010, and we similarly cited to a 2011 case that involved

conduct from 2006. See Kisela I, 862 F.3d at 783 (citing Glenn v.

Washington County, 673 F.3d 864, 879–80 (9th Cir. 2011)). But,

critically, the 2011 case did not reach the clearly established prong of the

qualified immunity analysis and said nothing about whether the right was

clearly established prior to 2011. See Glenn, 673 F.3d at 870. In fact,

our court in Kisela I relied on the 2011 case as “illustrative, not as

indicative of the clearly established law in 2010,” 862 F.3d at 783 n.2,

and the Supreme Court reversed that decision based on the well-

established principle that “a reasonable officer is not required to foresee

judicial decisions that do not yet exist,” Kisela II, 138 S. Ct. at 1154.

Here, unlike the 2011 case at issue in Kisela I, Capp explicitly held that

the right to be free from retaliation in the form of threatened legal

sanctions and other similar means of coercion and intimidation at issue

here was clearly established as of August 2015.

SAMPSON V. COUNTY OF LOS ANGELES 15

violate the First Amendment. See Barkes, 575 U.S. at 822.

To the contrary, Capp simply articulated, in the context of

social workers, what is a longstanding, clearly established

right under the First Amendment to be free from retaliation

in the form of threatened legal sanctions and other similar

means of coercion, persuasion, and intimidation. See

Mulligan, 835 F.3d at 989 n.5 (“Informal measures, such as

‘the threat of invoking legal sanctions and other means of

coercion, persuasion, and intimidation,’ can violate the First

Amendment.” (quoting White, 227 F.3d at 1228)); Nieves,

139 S. Ct. at 1772 (“‘[A]s a general matter the First

Amendment prohibits government officials from subjecting

an individual to retaliatory actions’ for engaging in protected

speech.” (quoting Hartman, 547 U.S. at 256)); Hartman,

547 U.S. at 256 (“Official reprisal for protected speech

‘offends the Constitution [because] it threatens to inhibit

exercise of the protected right,’ and the law is settled that as

a general matter the First Amendment prohibits government

officials from subjecting an individual to retaliatory actions

. . . for speaking out.” (quoting Crawford-El v. Britton,

523 U.S. 574, 588 n.10, 592 (1998))); Perry v. Sindermann,

408 U.S. 593, 597 (1972) (noting that the government may

not deprive a person of a benefit on the basis of her

“constitutionally protected speech”); see also Austin v.

Terhune, 367 F.3d 1167, 1170–71 (9th Cir. 2004) (holding

that prisoner stated a First Amendment retaliation claim

where he alleged that a guard exposed his genitalia to him

and the guard then filed a false disciplinary report against

him after he complained). That clearly established right is

at issue with equal force in the instant case, where Sampson

alleges that Defendants used the threat of removing H.S.

from her custody to coerce, persuade, and intimidate her into

dropping her complaints of misconduct against them. In

other words, Perry, Nieves, Hartman, and Mulligan clearly

establish that the threat of losing custody of a child would

16 SAMPSON V. COUNTY OF LOS ANGELES

ordinarily chill First Amendment activity of both biological

parents and legal guardians alike. See O’Brien, 818 F.3d

at 933. Therefore, because the same clearly established right

at issue in Capp is also at issue here, the cases that supported

denial of qualified immunity in Capp also compel us to deny

qualified immunity in the instant case. 4

Defendants also argue that they were on notice that they

could not retaliate against parents—but not legal

guardians—because we have held that biological parents

have a clearly established due process right under the

Fourteenth Amendment to be free from the deliberate use of

perjured testimony and fabricated evidence during juvenile

dependency proceedings. See, e.g., Hardwick v. County of

Orange, 844 F.3d 1112, 1116–17 (9th Cir. 2017); see also

Greene v. Camreta, 588 F.3d 1011, 1035 (9th Cir. 2009)

(holding that “the ‘constitutional right to be free from the

knowing presentation of false or perjured evidence’ is

clearly established” (quoting Devereaux v. Perez, 218 F.3d

1045, 1055–56 (9th Cir. 2000))). This argument is

unavailing because Hardwick and Greene involve the

Fourteenth Amendment’s guarantee of due process, not the

First Amendment’s guarantee to be free from retaliation for

protected speech. These are two separate rights. That is to

say, even if we held that Sampson has no due process right

4

Judge Hurwitz’s partial dissent argues that, even assuming that a

legal guardian is in a similar position as a biological or adoptive parent,

Capp does not resolve this case because the cases Capp relied on defined

the right at too high a level of generality. But we must follow the

reasoning in Capp—a factually indistinguishable and binding opinion

from our court. See Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir.

2001) (“[C]aselaw on point is the law. If a court must decide an issue

governed by a prior opinion that constitutes binding authority, the later

court is bound to reach the same result, even if it considers the rule

unwise or incorrect.”).

SAMPSON V. COUNTY OF LOS ANGELES 17

under the Fourteenth Amendment to be free from the

deliberate use of perjured testimony and fabricated

evidence, 5 she is still entitled to be free from retaliation

under the First Amendment. Hartman, 547 U.S. at 256.

Hardwick does not—indeed, it cannot—stand for the

proposition that somehow biological parents have more of a

right to be free from retaliation under the First Amendment

than legal guardians, such that it was permissible for

Defendants to think that it was constitutional to retaliate

against a legal guardian but not against a biological parent.

In sum, because the First Amendment right to criticize

official conduct of public officials without being subject to

the threat of losing custody was “clearly established” as of

August 2015, when the events of Capp took place, we hold

that the same right was clearly established when Defendants

sought and obtained a warrant to remove H.S. from

Sampson’s custody in November 2015. Therefore, we

vacate the district court’s grant of qualified immunity to

Defendants on Sampson’s § 1983 claim for retaliation under

the First Amendment, since Defendants were not so entitled.

Because the district court did not address the other prong

of the qualified immunity analysis, and the parties did not

brief the issue on appeal, we remand this claim to the district

court for it to determine in the first instance whether

Sampson plausibly alleged a retaliation claim under the First

Amendment. See Gordon v. County of Orange, 888 F.3d

1118, 1125 (9th Cir. 2018) (declining to address the question

5

Neither Hardwick nor Greene foreclose the possibility that we

might hold in the future that permanent legal guardians like Sampson

also have a due process right not to be confronted with perjured

testimony or fabricated evidence.

18 SAMPSON V. COUNTY OF LOS ANGELES

of qualified immunity where the district court did not reach

the issue).

B. Fourteenth Amendment sexual harassment claim.

“The Equal Protection Clause of the Fourteenth

Amendment commands that no State shall ‘deny to any

person within its jurisdiction the equal protection of the

laws,’ which is essentially a direction that all persons

similarly situated should be treated alike.” City of Cleburne

v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting

Plyler v. Doe, 457 U.S. 202, 216 (1982)). “To state a claim

under 42 U.S.C. § 1983 for a violation of the Equal

Protection Clause of the Fourteenth Amendment a plaintiff

must show that the defendants acted with an intent or

purpose to discriminate against the plaintiff based upon

membership in a protected class.” Lee v. City of Los

Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting Barren

v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)).

Although the Supreme Court has never explicitly

considered whether sexual harassment violates the Equal

Protection Clause, it has long recognized that sex-based

discrimination by state actors that does not serve important

governmental objectives and is not substantially related to

the achievement of those objectives is unconstitutional. See,

e.g., J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129, 146

(1994) (jury selection); Davis v. Passman, 442 U.S. 228,

234–36 & n.12 (1979) (employment discrimination); Craig

v. Boren, 429 U.S. 190, 204 (1976) (legal drinking age);

Stanton v. Stanton, 421 U.S. 7, 8–9, 17 (1975) (parental

support obligations for sons and daughters); Frontiero v.

Richardson, 411 U.S. 677, 678–79, 690–91 (1973)

(entitlement to benefits for spouses of armed services

members); Reed v. Reed, 404 U.S. 71, 73, 76–77 (1971)

(statutory preference for male estate administrators).

SAMPSON V. COUNTY OF LOS ANGELES 19

Drawing on these equal protection principles, we have held

that allegations of “persistent and unwelcome physical and

verbal abuse” in the workplace “state a claim of sexual

harassment, which can be impermissible sex discrimination

in violation of the Equal Protection Clause.” Bator v.

Hawaii, 39 F.3d 1021, 1027, 1028 (9th Cir. 1994).

Here, Sampson complains that Obakhume sexually

harassed her by commenting on her appearance and marital

status, urging her to end her marriage, inappropriately

touching her, and attempting to coerce her into riding in his

vehicle. The district court found the constitutional right not

to be sexually harassed by public officials providing social

services was not clearly established outside of the workplace

or school contexts. 6 Although we reluctantly agree that this

right was not clearly established at the time of Obakhume’s

conduct, and therefore Defendants are entitled to qualified

immunity in the instant case, we hold that the Equal

Protection Clause protects the right to be free from sexual

harassment at the hands of public officials providing social

services.

To “‘promote[] the development of constitutional

precedent’ in an area where [our] guidance is sorely needed,”

we first address whether Sampson asserts a violation of a

constitutional right. Mattos v. Aragano, 661 F.3d 433, 440

(9th Cir. 2011) (en banc) (quoting Pearson, 555 U.S. at 236).

We have broadly held—on multiple occasions—that “[w]ell

prior to 1988 the protection afforded under the Equal

Protection Clause was held to proscribe any purposeful

6

We have also held that individuals in jails and prisons have a

constitutional right to be free from sexual harassment under the Eighth

Amendment. See, e.g., Vazquez, 949 F.3d at 1165; Wood v. Beauclair,

692 F.3d 1041, 1046, 1048–51 (9th Cir. 2012).

20 SAMPSON V. COUNTY OF LOS ANGELES

discrimination by state actors, be it in the workplace or

elsewhere, directed at an individual solely because of the

individual’s [sex].” Oona R.-S.- by Kate S. v. McCaffrey,

143 F.3d 473, 476 (9th Cir. 1998) (quoting Lindsey v.

Shalmy, 29 F.3d 1382, 1386 (9th Cir. 1994)). Sexual

harassment violates the Equal Protection Clause because, by

definition, it is “motivated by gender.” Bator, 39 F.3d

at 1027. 7

In Alaska v. EEOC, for example, senior male officials in

the governor’s office subjected the plaintiff to “sexual jokes”

and “unsolicited physical conduct” because she was a

woman. 564 F.3d 1062, 1068 (9th Cir. 2009) (en banc).

Similarly, in Bator, male coworkers at Hawaii’s probation

department subjected a stenographer to “unwelcome

physical and verbal abuse” because she was a woman.

39 F.3d at 1027. We also recognized in McCaffrey that the

plaintiff was subjected to sexual harassment at the hands of

her teacher and classmates “because of her gender.”

143 F.3d at 475.

Here, a male social worker subjected Sampson to

sexualized comments and unwanted physical advances

because she is a woman. The only difference with prior

cases is that Sampson’s harassment was at the hands of a

social worker assigned to her case, rather than a coworker,

7

Our sister circuits have also explained that sexual harassment

violates the Equal Protection Clause because it is, by definition,

motivated by, or based upon, the survivor’s gender. See, e.g., Feminist

Majority Found. v. Hurley, 911 F.3d 674, 703 (4th Cir. 2018); Beardsley

v. Webb, 30 F.3d 524, 529 (4th Cir. 1994); Andrews v. City of

Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990), superseded in part by

statute as recognized in Moody v. Atl. City Bd. of Educ., 870 F.3d 206,

214 (3d Cir. 2017); Volk v. Coler, 845 F.2d 1422, 1431 (7th Cir. 1988);

Bohen v. City of E. Chicago, 799 F.2d 1180, 1185 (7th Cir. 1986).

SAMPSON V. COUNTY OF LOS ANGELES 21

supervisor, classmate, or teacher. That difference is

inconsequential because the Equal Protection Clause

prohibits public officials, including social workers like

Obakhume, from “deny[ing] to any person within its

jurisdiction the equal protection of the laws.” U.S. Const.

amend. XIV, § 1. Obakhume’s conduct denied Sampson,

because she is a woman, the right to seek legal guardianship

of her niece and related services without being subjected to

hostile sexual harassment. Simply put, if she were a man,

Sampson would not have experienced this harassment in

seeking services from Obakhume, and that discrepancy

fundamentally offends the equality and fairness principles

embodied in the Equal Protection Clause. 8

The right under the Equal Protection Clause to be free

from sexual harassment by public officials in the workplace

and school contexts is clearly established by our prior case

law. See, e.g., Alaska, 564 F.3d at 1068–69 (workplace);

McCaffrey, 143 F.3d at 476 (public schools); Lindsey,

29 F.3d at 1386 (sexual harassment by public employees in

the workplace); Bator, 39 F.3d at 1027. However, as

Sampson acknowledges, these cases are factually

distinguishable, and we have never held that the Equal

Protection Clause protects private individuals who suffer

8

To be clear, not all allegations of sexual harassment leveled against

public officials are sufficiently egregious to constitute a constitutional

violation. In the employment and education contexts, we require

plaintiffs to plausibly allege that they suffered “purposeful, invidious”

harassment. Bator, 39 F.3d at 1029. Moreover, in order to hold the

perpetrator’s supervisors accountable for the harassment, including the

office or department the perpetrator works for, we require plaintiffs to

plausibly allege either that the office or department had an official policy

of promoting sexual harassment, or that the plaintiff’s supervisors

intentionally refused to redress the perpetrator’s sexual harassment. See

Alaska, 564 F.3d at 1069.

22 SAMPSON V. COUNTY OF LOS ANGELES

sexual harassment at the hands of public officials providing

them with social services. Thus, we cannot say that the

question raised by Sampson’s claim was “beyond debate”

when the conduct as issue occurred here. Barkes, 135 S. Ct.

at 2044 (quoting al-Kidd, 563 U.S. at 743). 9

Although we find that Sampson has plainly alleged a

constitutional violation here, for purposes of analyzing

qualified immunity, we must heed the Supreme Court’s

repeated admonitions “not to define clearly established law

at a high level of generality,” City of Escondido v. Emmons,

139 S. Ct. 500, 503 (2019) (quoting Kisela II, 138 S. Ct.

at 1152), because “doing so avoids the crucial question

whether the official acted reasonably in the particular

circumstances that he or she faced,” Plumhoff v. Rickard,

572 U.S. 765, 779 (2014); see also City & Cnty. of San

Francisco v. Sheehan, 135 S. Ct. 1765, 1775–76 (2015)

(“We have repeatedly told courts—and the Ninth Circuit in

particular—not to define clearly established law at a high

level of generality.” (quoting al-Kidd, 563 U.S. at 742));

Brosseau, 543 U.S. at 199 (same). Therefore, because we

cannot find a case with sufficiently similar facts, we cannot

say that Sampson’s right to be free from sexual harassment

9

Sampson also argues that a social worker can be liable for sexual

harassment under California law, thus putting Obakhume on notice that

his conduct was prohibited. See Cal. Civ. Code § 51.9. But, in general,

“a violation of state law does not lead to liability under § 1983.”

Campbell v. Burt, 141 F.3d 927, 930 (9th Cir. 1998) (citing Davis v.

Scherer, 468 U.S. 183, 194 (1984)); see also Davis, 468 U.S. at 194.

Therefore, even if section 51.9 prohibits sexual harassment at the hands

of social workers in California, it does not “clearly establish” the right to

be free from sexual harassment under the federal Constitution.

SAMPSON V. COUNTY OF LOS ANGELES 23

at the hands of a social worker was clearly established under

the Supreme Court’s impossibly high bar. 10

V. Conclusion.

We vacate the district court’s grant of qualified

immunity to Defendants on Sampson’s First Amendment

retaliation claim and remand for the district court to consider

in the first instance whether she plausibly alleged a

constitutional violation.

We reluctantly affirm, however, the district court’s grant

of qualified immunity to Defendants on Sampson’s

Fourteenth Amendment equal protection claim.

Unfortunately, the Supreme Court’s exceedingly narrow

interpretation of what constitutes a “clearly established”

right precludes us from holding what is otherwise obvious to

us—that the right of private individuals to be free from

sexual harassment at the hands of public officials outside of

the workplace and school contexts was clearly established

under the Equal Protection Clause at the time of Defendants’

conduct.

Although we are prevented from denying qualified

immunity in the instant case, we want to make it abundantly

10

Judge Zouhary’s partial dissent disagrees with our conclusion that

the law was not clearly established, reasoning that “a factually identical

scenario is unnecessary.” To be clear, we agree that “a case directly on

point” is not required. Ashcroft, 563 U.S. at 741. However, we must

evaluate whether Defendants’ conduct was clearly established “in light

of the specific context of the case.” Brosseau, 543 U.S. at 198 (emphasis

added). Here, as Judge Zouhary correctly points out, our precedent has

placed the constitutional question beyond debate “in a variety of

contexts, including prison, educational settings, and the workplace.”

But, until today, our law has not done so in the particular context at issue

here.

24 SAMPSON V. COUNTY OF LOS ANGELES

clear moving forward—if it was not already—that State

public officials violate our Constitution’s promise of equal

protection when they sexually harass the people they serve.

AFFIRMED in part; VACATED in part; and

REMANDED. Each party shall bear its own costs.

HURWITZ, Circuit Judge, concurring in part and dissenting

in part:

In relevant part, 42 U.S.C. § 1983 provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State . . . , subjects, or causes to be

subjected, any citizen of the United States . . .

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress . . . .

I agree with my colleagues that Natia Sampson has plausibly

alleged violations of both her First and Fourteenth

Amendment rights. In a world in which the plain language

of the statute controlled, that would end our analysis.

But, of course, it does not. We must also parse the judge-

made doctrine of qualified immunity, which is found

nowhere in the text of § 1983. See Baxter v. Bracey, 140

S. Ct. 1862, 1862–63 (2020) (Thomas, J., dissenting from

denial of certiorari). And that doctrine requires—in this case

and many others—the dismissal of facially plausible claims

of constitutional violations because the right at stake was not

SAMPSON V. COUNTY OF LOS ANGELES 25

“clearly established” at the time of the violation. Until the

Supreme Court revisits its qualified immunity jurisprudence,

as a constitutionally “inferior” court, U.S. Const. art. III, § 1,

we must continue to struggle to apply it.

I agree with Judge Murguia that the doctrine, however

ill-conceived, bars Sampson’s otherwise plausible equal

protection claim, and therefore concur in Section IV.B of the

majority opinion. But I am unable to reach a different

conclusion as to Sampson’s First Amendment retaliation

claim, and therefore cannot join Section IV.A.

I.

Before finding an asserted constitutional right was

“clearly established” at the time of the alleged violation, we

must under the Supreme Court’s jurisprudence identify

binding precedent that “placed the statutory or constitutional

question beyond debate,” Mullenix v. Luna, 136 S. Ct. 305,

308 (2015) (per curiam) (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011)), so that “every reasonable official

would have understood that what he is doing violates that

right,” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (per

curiam) (cleaned up); see also Plumhoff v. Rickard, 572 U.S.

765, 779 (2014).

To be sure, the Court has reiterated that a prior “case

directly on point” is not required, Mullenix, 136 S. Ct. at 308

(cleaned up), and that “officials can still be on notice that

their conduct violates established law even in novel factual

circumstances,” Hope v. Pelzer, 536 U.S. 730, 741 (2002).

But much like Lucy of “Charlie Brown” fame, the Court

repeatedly yanks away the football when lower courts

26 SAMPSON V. COUNTY OF LOS ANGELES

attempt to apply this language. 1 Lower courts have been

repeatedly rebuked for defining “clearly established law at a

high level of generality,” Kisela v. Hughes, 138 S. Ct. 1148,

1152 (2018) (per curiam) (cleaned up), and “fail[ing] to

identify a case” involving “similar circumstances,” White v.

Pauly, 137 S. Ct. 548, 552 (2017) (per curiam), “controlling

authority” or “a robust consensus of cases of persuasive

authority,” District of Columbia v. Wesby, 138 S. Ct. 577,

589–90 (2018) (cleaned up). Thus, although stating that

qualified immunity does not protect the “plainly

incompetent or those who knowingly violate the law,”

Kisela, 138 S. Ct. at 1152, the Court has protected

wrongdoers unless the violated constitutional right was

“particularized,” Pauly, 137 S. Ct. at 552 (cleaned up), and

defined “on the basis of the specific context of the case,”

Tolan v. Cotton, 572 U.S. 650, 657 (2014) (per curiam)

(cleaned up).

Although the Court has found this level of specificity

“especially important in the Fourth Amendment context,”

Kisela, 138 S. Ct. at 1152 (cleaned up), it has not yet limited

the requirement to those claims. 2 In the First Amendment

1

See Eric Schulmiller, All Your Life, Charlie Brown. All Your Life:

The Complete History of Lucy’s Pulling the Football Away, Slate (Oct.

8, 2014, 9:33 AM), https://slate.com/culture/2014/10/the-history-of-

lucys-pulling-the-football-away-from-charlie-brown-in-peanuts.html.

2

The qualified immunity test was adopted to serve the purpose of

“balancing [the] competing values” of efficiency and “the general costs

of subjecting officials to the risks of trial—distraction of officials from

their governmental duties, inhibition of discretionary action, and

deterrence of able people from public service.” Harlow v. Fitzgerald,

457 U.S. 800, 816 (1982); see Baxter, 140 S. Ct. at 1864 (Thomas, J.,

dissenting from denial of certiorari); Davis v. Scherer, 468 U.S. 183, 195

(1984) (“[O]ur cases strike [a balance] between the interests in

vindication of citizens’ constitutional rights and in public officials’

SAMPSON V. COUNTY OF LOS ANGELES 27

context, for example, the Court has admonished that “the

right in question is not the general right to be free from

retaliation for one’s speech,” but “the more specific right to

be free from a retaliatory” act under the facts of the case.

Reichle v. Howards, 566 U.S. 658, 665 (2012). As a

practical matter, therefore, we must identify a case

substantially similar, or nearly identical in some contexts, to

the one at hand to find “clearly established” what otherwise

would seem to be clear constitutional rights. 3

II.

I agree with my colleagues that every competent public

official should have understood in 2015 that he could not

attempt to end a guardianship with false accusations in

effective performance of their duties.”). Even assuming the doctrine

serves that purpose in the Fourth Amendment context, in which officers

sometimes make split-second decisions, see Kisela, 138 S. Ct. at 1152,

such considerations may not have equal force elsewhere.

3

See Erwin Chemerinsky, Federal Jurisdiction § 8.6, at 580 (6th ed.

2012) (“There is an obvious tension between Hope v. Pelzer, declaring

that there need not be a case on point to overcome qualified immunity,

and Brosseau v. Haugen and Ashcroft v. Al-Kidd, finding qualified

immunity based on the lack of a case on point . . . . Not surprisingly,

there is great confusion in the lower courts as to whether and when cases

on point are needed to overcome qualified immunity.”); Karen M. Blum,

Qualified Immunity: Time to Change the Message, 93 Notre Dame L.

Rev. 1887, 1889 (2018) (“[T]he Supreme Court has crafted their recent

qualified immunity jurisprudence to effectively eliminate § 1983 claims

by requiring an indistinguishable case and by encouraging courts to go

straight to the clearly established prong.” (cleaned up)); see also Knopf

v. Williams, 884 F.3d 939, 949–50 (10th Cir. 2018); Sebesta v. Davis,

878 F.3d 226, 234–35 (7th Cir. 2017); Morgan v. Swanson, 659 F.3d

359, 371–74 (5th Cir. 2011) (en banc); id. at 391–94 (Dennis, J.,

concurring in part); Jennings v. Jones, 499 F.3d 2, 26 (1st Cir. 2007)

(Lynch, J., dissenting).

28 SAMPSON V. COUNTY OF LOS ANGELES

retaliation for the guardian’s exercise of protected speech. It

has long been clear that the government cannot “deny a

benefit to a person because of his constitutionally protected

speech,” Perry v. Sindermann, 408 U.S. 593, 597 (1972),

and “that as a general matter the First Amendment prohibits

government officials from subjecting an individual to

retaliatory actions . . . for speaking out,” Hartman v. Moore,

547 U.S. 250, 256 (2006) (emphasis added). But “general”

is not good enough for the Supreme Court. See Reichle,

566 U.S. at 665 (rejecting as too general the “settled” rule

that “the First Amendment prohibits government officials

from subjecting an individual to retaliatory actions” (cleaned

up)).

So, the determinative question is whether Sampson can

point to a case close enough to hers that “warned” the alleged

violators that what they were doing was constitutionally

forbidden. The only case that Sampson (or the majority)

cites that approaches the requisite level of specificity is Capp

v. County of San Diego, 940 F.3d 1046 (9th Cir. 2019). Capp

held that “[a] reasonable official would have known that

taking the serious step of threatening to terminate a parent’s

custody of his children, when the official would not have

taken this step absent her retaliatory intent, violates the First

Amendment.” Id. at 1051, 1059. But our opinion in Capp

came down years after the conduct at issue in this case

occurred. 4 As a matter of pure logic, because Capp found

the asserted constitutional right clearly established at the

time of the official’s actions in that case, August 2015, it

ought to mean that the same right was clearly established

4

I assume for today’s purposes that Sampson, the legal guardian of

H.S., was in a similar position to that of a biological or adoptive parent.

SAMPSON V. COUNTY OF LOS ANGELES 29

several months later, when the allegedly retaliatory conduct

in this case occurred.

However, I do not read the Supreme Court’s caselaw as

allowing us to draw that logical conclusion—indeed, a panel

of this Court has already been reversed for attempting

something similar. See Kisela, 138 S. Ct. at 1154–55. The

conduct at issue in Kisela occurred in 2010, and the panel

cited a 2011 case that involved conduct from 2006, Glenn v.

Washington County, 673 F.3d 864 (9th Cir. 2011), as

“suggestive” and “illustrative” of the clearly established law

in 2006, even if not “indicative.” Hughes v. Kisela, 862 F.3d

775, 778, 783 n.2 (9th Cir. 2016). The Supreme Court found

no “apparent” difference between relying on the 2011 case

as illustrative, rather than indicative, and rejected Glenn as

“of no use in the clearly established inquiry.” Kisela, 138

S. Ct. at 1154 (cleaned up). The Court stated that Glenn

“could not have given fair notice to Kisela [in 2010] because

a reasonable officer is not required to foresee judicial

decisions that do not yet exist in instances where the

requirements of the Fourth Amendment are far from

obvious.” Id. (cleaned up); see also Brosseau v. Haugen,

543 U.S. 194, 200 n.4 (2004) (per curiam) (“The parties

point us to a number of other cases in this vein that postdate

the conduct in question . . . . These decisions, of course,

could not have given fair notice to Brosseau and are of no

use in the clearly established inquiry.”).

The same conclusion must obtain here. The “clearly

established” inquiry focuses on the judicial opinions extant

at the time of the conduct at issue, not on how subsequent

cases characterize pre-existing law. Decided years after the

relevant conduct here, Capp is of no use. And, the other

cases upon which the majority relies simply establish, in

factual contexts quite different than the one at hand, the

30 SAMPSON V. COUNTY OF LOS ANGELES

general principle that one has the right to be free from

retaliation by public officials for her speech. See Nieves v.

Bartlett, 139 S. Ct. 1715, 1728 (2019) (retaliatory arrest

claim); Hartman, 547 U.S. at 255–56 (retaliatory criminal

prosecution); Perry, 408 U.S. at 595–97 (retaliatory decision

not to rehire); Mulligan v. Nichols, 835 F.3d 983, 988, 989

n.5 (9th Cir. 2016) (retaliatory “media leaks” and “smear

campaign”). Under the Supreme Court’s jurisprudence, that

is not enough. See City of Escondido v. Emmons, 139 S. Ct.

500, 503 (2019) (per curiam).

III.

As to Sampson’s Fourteenth Amendment claim,

although it is also clear to me that any reasonable public

official should have known that the conduct alleged in this

case was illegal, I agree with Judge Murguia that at the time

of Obakhume’s conduct no case clearly established

Sampson’s constitutional right to be free from sexual

harassment in receiving public services from a social

worker. Qualified immunity therefore bars Sampson’s

claim, and Judge Murguia’s opinion ably demonstrates why

we are required to reach that unfortunate result.

ZOUHARY, District Judge, concurring in part and

dissenting in part:

With respect to the First Amendment claim, I agree with

Judge Murguia that the application of qualified immunity

was improper. When the conduct at issue took place, it was

clearly established that public officials may not threaten to

remove a child from an individual’s custody in retaliation for

protected speech. I therefore join in Section IV.A of the

opinion.

SAMPSON V. COUNTY OF LOS ANGELES 31

As for the Equal Protection claim, I agree that Defendant

Obakhume’s alleged actions violated Sampson’s

constitutional right to be free of sexual harassment.

However, I disagree that this right is not yet clearly

established.

The doctrine of qualified immunity is meant to balance

two competing interests: Government officials must be

allowed to reasonably perform their duties, but they also

must be held accountable when they irresponsibly exercise

governmental power. Pearson v. Callahan, 555 U.S. 223,

231 (2009). Properly applied, the doctrine “gives

government officials breathing room to make reasonable but

mistaken judgments about open legal questions,” but does

not protect “the plainly incompetent or those who knowingly

violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743

(2011) (citation omitted). Taking the facts alleged in the

Complaint as true, Obakhume is in the latter category.

I understand my colleagues’ reluctance to find this

constitutional right clearly established in light of recent

admonitions from the Supreme Court. True, we must “not

[] define clearly established law at a high level of

generality.” City of Escondido v. Emmons, 139 S. Ct. 500,

503 (2019) (per curium) (quoting Kisela v. Hughes, 138 S.

Ct. 1148, 1152 (2018) (per curium)). But that is not this

case. As an initial point, much of the Court’s recent

precedent cautioning against broadly defining constitutional

rights dealt with excessive force. The Court has “stressed

that the specificity of the [right] is especially important in

the Fourth Amendment context” because “excessive force is

an area of the law in which the result depends very much on

the facts of each case, and thus police officers are entitled to

qualified immunity unless existing precedent squarely

governs the specific facts at issue.” District of Columbia v.

32 SAMPSON V. COUNTY OF LOS ANGELES

Wesby, 138 S. Ct. 577, 590 (2018); Kisela, 138 S. Ct. at 1153

(quotation marks and citations omitted). Such cases involve

“split-second judgments” and implicate the “hazy border

between excessive and acceptable force.” Kisela, 138 S. Ct.

at 1152–53 (citations omitted). Here, Obakhume had no

quick decision to make—he allegedly undertook a persistent

course of inappropriate conduct over several weeks. Context

matters.

The Supreme Court has noted that “even though the very

action in question has not previously been held unlawful . . .

officials can still be on notice that their conduct violates

established law even in novel factual circumstances.” Hope

v. Pelzer, 536 U.S. 730, 741 (2002) (citation omitted). Thus,

a factually identical scenario is unnecessary. Rather, we

must determine whether the official had “fair notice” that his

actions were unconstitutional. Id. at 731. This Circuit has

repeatedly held that the right to be free of sexual harassment

by public officials is clearly established in a variety of

contexts, including prison, educational settings, and the

workplace. See Vazquez v. Cty. of Kern, 949 F.3d 1153,

1165–66 (9th Cir. 2020); Oona R.-S.- by Kate S. v.

McCaffrey, 143 F.3d 473, 476 (9th Cir. 1998); Bator v. State

of Hawai’i, 39 F.3d 1021, 1027–28 (9th Cir. 1994). These

cases clearly define the law on sexual harassment in this

Circuit: public officials cannot sexually harass others while

on the job. This is true irrespective of whether the other

person is a coworker, or a consumer of government

services—who has no choice but to interact with the public

official. Because existing cases place the unreasonableness

of Obakhume’s conduct “beyond debate,” Mullenix v. Luna,

136 S. Ct. 305, 309 (2015) (citation omitted), he had “fair

notice” that his conduct was unlawful.

SAMPSON V. COUNTY OF LOS ANGELES 33

Further, although the above case law clearly establishes

Sampson’s right, this is an “obvious case”—meaning a case

on all fours is unnecessary. See Brosseau v. Haugen,

543 U.S. 194, 199 (2004). Qualified immunity shields only

those officials whose “conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” City of Escondido,

139 S. Ct. at 503 (citation omitted). Novelty of circumstance

does not preclude liability. Hope, 536 U.S. 730. “The

easiest cases don’t even arise. There has never been . . . a

section 1983 case accusing welfare officials of selling foster

children into slavery; it does not follow that if such a case

arose, the officials would be immune from damages [or

criminal] liability.” United States v. Lanier, 520 U.S. 259,

271 (1997) (quoting United States v. Lanier, 73 F.3d 1380,

1410 (6th Cir. 1996) (Daughtrey, J., dissenting)). Taking

Sampson’s allegations as true, Obakhume’s conduct is

beyond the pale. 1

Giving the Supreme Court’s mandate a most narrow (and

unrealistic) reading leads to a bizarre conclusion:

Obakhume knew that he could not sexually harass others in

his workplace if, and only if, they were employed by the

County; but he was unaware (or confused or unsure) whether

he could subject a client of his office to the same treatment.

Although we clearly establish this right “going forward,”

1

The state legislature passed a law on the very subject, prohibiting

social workers from making unwanted sexual advances on members of

the public. See CAL. CIV. CODE § 51.9. While “a violation of state law

[generally] does not lead to liability under § 1983,” Campbell v. Burt,

141 F.3d 927, 930 (9th Cir. 1998) (citations omitted), we may consider

all “relevant” regulations and statutes in determining whether a

reasonable official would have known the conduct at issue was unlawful.

See Hope, 536 U.S. at 741–42.

34 SAMPSON V. COUNTY OF LOS ANGELES

there is no need to wait. The time is now. For this reason, I

respectfully dissent from Section IV.B of the opinion.