Angelina Nunes v. Carrie Stephens

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGELINA NUNES, individually and No. 19-16815

as Guardian Ad Litem for her minor

children D.X. and L.X.; D.X., a D.C. No.

minor; L.X., a minor; EMANUEL 1:19-cv-00204-

ALVES, AWI-BAM

Plaintiffs-Appellees,

v.

ARATA, SWINGLE, VAN EGMOND &

GOODWIN (PLC); BRAD J. SWINGLE;

AMANDA J. HEITLINGER,

Defendants-Appellants,

and

CARRIE STEPHENS; COUNTY OF

STANISLAUS,

Defendants.

2 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN

ANGELINA NUNES, individually and No. 19-16816

as Guardian Ad Litem for her minor

children D.X. and L.X.; D.X., a D.C. No.

minor; L.X., a minor; EMANUEL 1:19-cv-00204-

ALVES, AWI-BAM

Plaintiffs-Appellees,

v. OPINION

CARRIE STEPHENS; COUNTY OF

STANISLAUS,

Defendants-Appellants,

and

ARATA, SWINGLE, VAN EGMOND &

GOODWIN (PLC); BRAD J. SWINGLE;

AMANDA J. HEITLINGER,

Defendants.

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Argued and Submitted July 14, 2020

San Francisco, California

Filed December 29, 2020

NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 3

Before: Richard C. Tallman and Danielle J. Hunsaker,

Circuit Judges, and Roslyn O. Silver, * District Judge.

Per Curiam Opinion;

Concurrence by Judge Hunsaker

SUMMARY **

Civil Rights

The panel reversed the district court’s denial of a motion

to dismiss on qualified immunity grounds, and remanded, in

an action brought under 42 U.S.C. § 1983 against the County

of Stanislaus and its attorneys for unlawfully viewing the

juvenile records of D.X. and L.X. in violation of California

Welfare & Institutions Code Section 827.

Plaintiffs sued defendants for unlawfully accessing the

children’s juvenile records without first obtaining a court

order from the juvenile court, as required under California

Welfare & Institutions Code Section 827. County Counsel

believed W&I § 827 did not require court authorization to

access the records and disclose them to the County’s outside

counsel in a related lawsuit.

The panel held that this court’s opaque opinion in

Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003), did not

*

The Honorable Roslyn O. Silver, United States District Judge for

the District of Arizona, sitting by designation.

**

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

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

4 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN

clearly establish a constitutional privacy right in juvenile

records. Therefore, the panel could not conclude that every

reasonable official acting as defendants did would have

known they were violating the constitutional rights of

plaintiffs based on Gonzalez, the only authority on which

plaintiffs relied. The panel did not decide whether the

Constitution provides a privacy right in juvenile records;

rather, the panel decided only that no such right was clearly

established at the time of the defendants’ alleged conduct.

Therefore, defendants were entitled to qualified immunity.

Concurring, Judge Hunsaker, joined by Judge Silver,

wrote separately to emphasize one point—that an en banc

court should reconsider Gonzalez v. Spencer, 336 F.3d 832

(9th Cir. 2003), and address in earnest whether there exists a

constitutional right to privacy in juvenile records.

COUNSEL

Jesse M. Rivera (argued) and Jill B. Nathan, Rivera Hewitt

Paul LLP, Gold River, California; Michael R. Mordaunt

(argued) and Lori Reihl, Riggio Mordaunt & Kelly,

Stockton, California; for Defendants-Appellants.

Robert R. Powell (argued), Powell & Associates, San Jose,

California, for Plaintiffs-Appellees.

NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 5

OPINION

PER CURIAM:

Angelina Nunes, individually and as Guardian Ad Litem

for her minor children D.X. and L.X., and Emanuel Alves 1

(Plaintiffs) brought the present action under 42 U.S.C.

§ 1983 against the County of Stanislaus (County) and its

attorneys for unlawfully viewing the juvenile records of

D.X. and L.X. in violation of California Welfare &

Institutions Code Section 827. The district court denied the

Defendants’ motion to dismiss on qualified immunity

grounds. For the reasons set forth below, we reverse.

I. BACKGROUND

A. The Parties

Plaintiffs brought suit against the (1) County, (2) County

Counsel Carrie Stephens (County Counsel), (3) the County’s

outside law firm Arata, Swingle, Van Egmond & Goodwin

(ASVG), and (4) two attorneys from ASVG—Brad Swingle

and Amanda Heitlinger. 2 For purposes of the present appeal,

the County and County Counsel are represented by the same

attorneys, and ASVG (including Swingle and Heitlinger) is

represented by separate attorneys. Each filed an appeal

resulting in two Court of Appeals case numbers. We resolve

both appeals in this consolidated opinion.

1

Alves is the biological father of L.X.

2

Outside counsel, including both the law firm and attorneys Swingle

and Heitlinger, are collectively referred to as ASVG.

6 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN

B. The Separation Case

Prior to July 2016, the County’s Community Services

Agency (CSA) began a child abuse investigation related to

D.X. and L.X. after L.X., then five-months old, suffered a

skull fracture. D.X. and L.X. were separated from Nunes and

Alves. Plaintiffs filed a civil rights lawsuit against the

County challenging the separation (Separation Case). ASVG

represented the County in the Separation Case. During that

litigation, County Counsel provided ASVG with D.X. and

L.X.’s juvenile records.

C. Present Lawsuit

In this case, Plaintiffs sued all Defendants for unlawfully

accessing the children’s juvenile records without first

obtaining a court order from the juvenile court, as required

under California Welfare & Institutions Code Section 827

(W&I § 827). County Counsel believed W&I § 827 did not

require court authorization to access the records and disclose

them to the County’s outside counsel. In addition, Plaintiffs

allege that the juvenile records contained medical records of

L.X., which are subject to additional protection under the

Health Insurance Protection and Accountability Act

(“HIPAA”).

After Plaintiffs learned about the disclosure to ASVG,

they filed the present § 1983 lawsuit against Defendants,

arguing that the disclosure violated Plaintiffs’ state and

federal constitutional rights to privacy and L.X.’s medical

privacy rights. Specifically, Plaintiffs brought two claims for

relief. First, Plaintiffs sought § 1983 relief from a violation

of their “right to privacy and/or state and federal

constitutional rights in keeping the juvenile records and/or

case files related to their family and their involvement with

the Community Services Agency private and confidential.”

NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 7

Second, Plaintiffs brought Monell 3 claims against the

County based on its custom and policy of allowing its in-

house counsel and outside counsel to unlawfully access

juvenile records without judicial authorization. 4

D. Procedural Background

The County defendants and ASVG filed separate

motions to dismiss, each asserting a qualified immunity

defense. The district court noted that Plaintiffs’ complaint

did not identify which constitutional provision was allegedly

violated, and it evaluated Plaintiffs’ claims under the Fourth

and Fourteenth Amendments. The district court denied

qualified immunity for all Defendants with respect to a

Fourth Amendment privacy claim based on a violation of

W&I § 827. The district court held that the dissenting

opinion in Gonzalez v. Spencer, 336 F.3d 832 (9th Cir.

2003), clarified the Fourth Amendment right implicated by

a W&I § 827 violation. It also concluded that Gonzalez

found a viable Fourth Amendment claim when the attorney

defending Los Angeles County wrongfully accessed a

juvenile case file in violation of W&I § 827. But the district

court dismissed the Plaintiffs’ claims to the extent they were

premised on the Fourteenth Amendment. Defendants

appealed the denial of qualified immunity, and we have

3

Monell v. Dep’t of Soc. Servs. of. N.Y.C., 436 U.S. 658, 694 (1978)

(holding local governments can be liable under § 1983 for customs or

policies that result in constitutional deprivations).

4

“[U]nlike various government officials, municipalities do not

enjoy immunity . . . under § 1983.” Leatherman v. Tarrant Cnty.

Narcotics Intel. & Coordination Unit, 507 U.S. 163, 166 (1993). Thus,

this ruling does not affect Plaintiffs’ Monell claim against the County,

which is still pending before the district court.

8 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN

jurisdiction under 28 U.S.C. § 1291. Behrens v. Pelletier,

516 U.S. 299, 307, 311 (1996).

II. DISCUSSION

We review denial of a motion to dismiss under

Rule 12(b)(6) de novo. Dunn v. Castro, 621 F.3d 1196, 1198

(9th Cir. 2010). Qualified immunity is an affirmative defense

that shields public officials facing liability under 42 U.S.C.

§ 1983 unless “(1) they violated a federal statutory or

constitutional right, and (2) the unlawfulness of their

conduct was clearly established at the time” of the violation.

District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)

(internal quotation marks and citation omitted). We have

discretion to decide which question to consider first, and this

case turns on the clearly-established-right inquiry. 5 See

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

A. Clearly Established Right

A right is clearly established when its “contours [are]

sufficiently definite that any reasonable official in the

defendant’s shoes would have understood that he was

violating it.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)

(per curiam) (internal quotation marks and citation omitted).

A clearly established right is one that has a “sufficiently clear

foundation in then-existing precedent.” Wesby, 138 S. Ct.

at 589. That is, the rule must be “settled law,” meaning it is

“dictated by controlling authority or a robust consensus of

cases of persuasive authority.” Id. at 589–90 (internal

quotation marks and citations omitted). There need not be a

5

Our analysis is confined to whether Gonzalez clearly established

that a violation of W&I § 827, as alleged here, violates Plaintiffs’ rights

under the Fourth Amendment.

NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 9

“case directly on point,” but existing precedent must place

the statutory or constitutional question “beyond debate.”

Kisela, 138 S. Ct. at 1152 (internal quotation marks and

citation omitted). The Supreme Court has repeatedly

instructed us not to define clearly established law at a high

level of generality. Id. (“This Court has repeatedly told

courts—and the Ninth Circuit in particular—not to define

clearly established law at a high level of generality.”

(quoting City & Cnty. of San Francisco v. Sheehan, 135 S.

Ct. 1765, 1775–76 (2015)) (internal quotation marks

omitted)).

“[S]pecificity is especially important in the Fourth

Amendment context, where the Court has recognized that it

is sometimes difficult for an officer to determine how the

relevant legal doctrine . . . will apply to the factual situation

the officer confronts.” Id. (internal quotation marks and

citation omitted). In Kisela, the alleged constitutional

violation was excessive force—an area where the outcome

is highly fact-dependent. Id. at 1152–53. We acknowledge

that this case presents a different scenario than those where

officers are forced to make “split-second judgments—in

circumstances that are tense, uncertain, and rapidly

evolving.” Id. at 1152 (internal quotation marks and citation

omitted). But the underlying question remains the same: Did

Defendants’ conduct violate a clearly established

constitutional right of the Plaintiffs?

B. Gonzalez v. Spencer

Plaintiffs rely solely on Gonzalez in arguing that

Defendants’ conduct violated a clearly established right. In

Gonzalez, while defending Los Angeles County in a civil

rights suit brought by Raul Gonzalez, the County’s attorney

accessed Gonzalez’s juvenile court file without notifying

him and without obtaining authorization from the juvenile

10 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN

court as required under W&I § 827(a)(1)(M) and Cal. Rules

of Court 1423(b). 336 F.3d at 834. The County’s attorney

used the juvenile records to cross-examine Gonzalez at his

deposition. Id. In a split decision, the per curiam majority

wrote a two-page opinion. 6 Without identifying a specific

constitutional right at issue, or conducting any analysis, the

court concluded:

If [the County attorney] violated Gonzalez’s

constitutional rights, he is entitled at least to

nominal damages, even if [the attorney]

could have obtained the documents lawfully.

Because [the attorney] improperly obtained

access to Gonzalez’s juvenile court file, we

need not reach the question whether [the

attorney]’s use of Gonzalez’s file in

depositions also violated his constitutional

rights.

Id. at 835 (internal citation omitted). And without any further

discussion of the right that was potentially violated, the court

held that the County attorney was not entitled to qualified

immunity. Id.

As the district court noted, “the majority opinion does

not explain why a violation of W&I § 827 was sufficient to

constitute a violation of the Fourth Amendment.” Order on

Defs.’ Mot. To Dismiss, Nunes v. Stephens, No. 1:19-CV-

0204 AWI BAM, at 10 (E.D. Cal. Aug. 22, 2019). Indeed,

the Gonzalez majority did not even specify that Fourth

Amendment rights were at issue. That is gleaned only from

6

Gonzalez was originally issued as a memorandum disposition but

was later published after two requests for publication.

NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 11

the dissenting opinion. See Gonzalez, 336 F.3d at 836

(“Gonzalez contends that [the attorney]’s access to and use

of his juvenile court case file constituted a violation of the

Fourth Amendment.”) (W. Fletcher, J., dissenting). Nor does

Gonzalez discuss or cite to any Supreme Court or Ninth

Circuit precedent regarding constitutional privacy rights in

juvenile records specifically or informational privacy rights

generally. See 336 F.3d at 832–35.

Lastly, a strong indication that Gonzalez did not clearly

establish any constitutional privacy rights regarding juvenile

records is its treatment in the district courts. In A.C. v.

Cortez, the district court held that Gonzalez did not establish

a federal right to privacy. 398 F. Supp. 3d 748, 752 (S.D.

Cal. 2019), appeal docketed, No. 19-55895 (9th Cir. Aug. 1,

2019). The A.C. court followed the reasoning of two

unpublished district court cases that reached the same

conclusion. Ismail v. Fulkerson, No. SA CV 10-00901-VBF-

AJW, 2014 WL 3962488 (C.D. Cal. Aug. 12, 2014), and

Rigsby v. County of Los Angeles, No. CV 11-02766 SJO

(PJWx), 2011 WL 13143544 (C.D. Cal Aug. 2, 2011), aff’d,

531 F. App’x 811 (9th Cir. 2013).

In A.C., the district court noted: “This remains an

underdeveloped area of federal law . . . . Nevertheless, the

Court finds the debatable holding of one case does not

establish a current constitutional right to privacy covering

juvenile records.” 398 F. Supp. 3d at 750. In Ismail, the court

found that Gonzalez “did not address or definitively

determine the existence or scope of any constitutional

informational privacy right.” 2014 WL 3962488, at *11. The

Ismail court also noted, as do we, that Gonzalez failed to cite

to Supreme Court or Ninth Circuit precedent and merely

assumed, without deciding, that a W&I § 827 violation

constituted a violation of a federal privacy right. Id. And

12 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN

prior to Ismail, Rigsby recognized that the Ninth Circuit has

held a constitutional right to informational privacy exists,

but that such right has not clearly been extended to the

nondisclosure of juvenile records. Rigsby, 2011 WL

13143544, at *3–4.

Accordingly, we, like the district courts, conclude that

the opaque opinion in Gonzalez did not clearly establish a

constitutional privacy right in juvenile records. Gonzalez did

not explain what right was at issue or what constitutional

source it flowed from. It did not even explain whether that

unnamed right was violated by the attorney’s conduct,

stating instead only that it could have been. Gonzalez,

336 F.3d at 835 (“If [the attorney] violated Gonzalez’s

constitutional rights…” (emphasis added)). Such an opinion,

which leaves fundamental questions unanswered about the

origin, nature, and scope of the right at issue, cannot place

the constitutional issue “beyond debate.” See Kisela, 138 S.

Ct. at 1152; see also Ashcroft v. al-Kidd, 563 U.S 731, 741

(2011). We cannot conclude that every reasonable official

acting as Defendants did would have known they were

violating the constitutional rights of Plaintiffs based on

Gonzalez, the only authority on which Plaintiffs’ rely. See

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).

III. CONCLUSION

We do not decide whether the Constitution provides a

privacy right in juvenile records; rather, we decide only that

no such right was clearly established at the time of the

Defendants’ alleged conduct. Therefore, Defendants are

entitled to qualified immunity.

NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 13

REVERSED and REMANDED for further

proceedings consistent with this opinion. 7

HUNSAKER, Circuit Judge, with whom District Judge

Silver joins, concurring:

I write separately to emphasize one point—our en banc

court should reconsider Gonzalez v. Spencer, 336 F.3d 832

(9th Cir. 2003), and address in earnest whether there exists a

constitutional right to privacy in juvenile records. We

carefully dodge this issue today by focusing on the clearly-

established-law prong of qualified immunity given the

dearth of reasoning and guidance in the Gonzalez decision.

But Gonzalez will continue to stymie district courts and

litigants. 1

The Supreme Court has identified a constitutional

privacy “interest in avoiding disclosure of personal matters”

under the Fourteenth Amendment. Whalen v. Roe, 429 U.S.

at 589, 599–600 (1977). This is referred to as the right to

“informational privacy.” See NASA v. Nelson, 562 U.S. 134,

7

The parties’ motions for judicial notice are denied as moot.

1

District courts have split interpreting Gonzalez. The district court

here read Gonzalez as establishing a viable Fourth Amendment violation

based on conduct allegedly prohibited by § 827. But district courts in

A.C. v. Cortez, Ismail v. Fulkerson, and Rigsby v. County of Los Angeles,

facing similar claims, read Gonzalez differently. See 398 F. Supp. 3d

748, 752 (S.D. Cal. 2019), appeal docketed, No. 19-55895 (9th Cir. Aug.

1, 2019); SA CV 10-00901-VBF-AJW, 2014 WL 3962488, at *11 (C.D.

Cal. Aug. 12, 2014); No. CV 11-02766 SJO (PJWx), 2011 WL

13143544, at *3 (C.D. Cal Aug. 2, 2011), aff’d, 531 F. App’x 811 (9th

Cir. 2013). And we affirmed Rigsby in a memorandum disposition

interpreting Gonzalez narrowly. 531 F. App’x 811, 812 (9th Cir. 2013).

14 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN

144 (2011). And we have recognized this right but have

cautioned that it is “not absolute; rather, it is a conditional

right which may be infringed upon a showing of proper

governmental interest.” Endy v. Cnty. of Los Angeles,

975 F.3d 757, 769 (9th Cir. 2020) (quoting In re Crawford,

194 F.3d 954, 959 (9th Cir. 1999)). In analyzing

informational privacy rights in any given case, “[o]ur

precedents demand that we engage in the delicate task of

weighing competing interests to determine whether the

government may properly disclose [the] private information

[at issue].” In re Crawford, 194 F.3d at 959 (internal

quotation marks and citation omitted).

The question here, whether there is a constitutional right

of privacy that protects against disclosure of juvenile

records, was answered in Gonzalez like an overconfident yet

underprepared student—casually, without explanation or

supporting authority. We should do better. And until the en

banc court performs the analysis that Gonzalez neglected,

our law on this issue will remain unclear. See, e.g., A.C.,

398 F. Supp. 3d at 752.