Foy v. Holston

United States Court of Appeals,

Eleventh Circuit.

No. 95-6227.

Terry FOY, and Gloria Foy, individually, and as parents and next

friend of Theresa* Foy, Darron Foy, Tabitha Foy and Lasonya Foy,

minors; Booker Grantham, and Fannie Grantham, individually, and as

parents and next friend of Jamie Grantham, a minor, on behalf of

themselves and all others similarly situated, Plaintiffs-Appellees,

v.

Febru HOLSTON, Iola Williams, Charlotte Boatright, Lena Hardaway,

Gail Shelfer, Andrew P. Hornsby, Jr., individually and as agents,

servants, employees, supervisors and/or directors of the Department

of Human Resources, an agency of the State of Alabama, Defendants-

Appellants,

Department of Human Resources of the State of Alabama, an agency

of the State of Alabama, Defendants.

Sept. 17, 1996.

Appeal from the United States District Court for the Northern

District of Alabama. (No. CV-94-C-516-W), U.W. Clemon, Judge.

Before EDMONDSON and DUBINA, Circuit Judges, and FARRIS**, Senior

Circuit Judge.

EDMONDSON, Circuit Judge:

The issue in this interlocutory appeal is whether certain

Alabama officials are entitled to qualified immunity for their acts

involving the Holyland, a religious community. Because Plaintiffs

have failed to demonstrate that a defendant violated clearly

established federal law, we reverse and instruct the district court

to grant each individual defendant summary judgment based on

qualified immunity. We remand for further proceedings on claims

*

The docket sheet of the court lists Teresa as "Theresa."

In this opinion, we have used the correct spelling of her name.

**

Honorable Jerome Farris, Senior U.S. Circuit Judge for the

Ninth Circuit, sitting by designation.

which are not foreclosed by the granting of qualified immunity.

I. Facts1

The Foys and the Granthams are married couples with minor

children who belong to Christ Temple Church and live in "The

Holyland"—property in Sumter County, Alabama, which the Church

owns. When the Foy's daughter, Teresa, was 15 she became friends

with Angela Smith, an adult who lived and worked at the Holyland.

Teresa's school work and overall comportment deteriorated, and she

eventually ran away from home. After three days living outside the

Holyland at Angela's aunt's house, Teresa returned to her family.

Upon her return, Teresa was spanked with a belt by her father;

her arm was bruised when she dropped her hands to cover her rear.

About a week later, Teresa ran away again—this time accompanied by

another Holyland youth, Monica Sandifer. After spending the first

night away at a house close to the Holyland, the two went to

Angela's aunt's house. Angela told her aunt to send the girls to

an abandoned store. The Sumter County Department of Human

Resources ("DHR") received a tip that two teenagers who had run

1

The "facts" we recite are those found in our review (for

our authority to review the record, see note 3, infra ) of the

pleadings, depositions and affidavits. See Fed.R.Civ.P. 56(c).

The evidence is construed in the light most favorable to the

plaintiff, and we draw all reasonable inferences most favorably

to plaintiffs. Forbus v. Sears Roebuck & Co., 30 F.3d 1402, 1403

n. 1 (11th Cir.1994). Most of these "facts" are only the facts

for purposes of reviewing a summary judgment decision involving

the defense of qualified immunity. A trial (and the jury's

ability to make inferences which we may not) might show the

actual "facts" to be different from some facts we set out here.

See generally Rodgers v. Horsley, 39 F.3d 308, 309 (11th

Cir.1994) (making a similar observation).

away from the Holyland were at the store.2

DHR employees (and defendants below) Iola Williams and

Charlotte Boatright went to the store and picked up the two girls.

The girls said they had run away from the Holyland; Teresa, who

was crying, told Defendants that she had been hit by her father

with a belt—she also displayed the bruises on her arm. Monica

described being pinched on her breast by a Holyland staffer. The

girls alleged other children—naming specifically the Grantham

children—were also abused at the Holyland.

Teresa told Defendants that she did not want to see her

parents or return to the Holyland; she did not want to have her

parents contacted. Monica asked Defendants to call her mother who

lived in Mississippi. Williams told Teresa that her parents had to

be contacted because of the abuse allegations and to tell them that

their daughter was safe. Williams called the Holyland but was told

that the Foys were not in. Williams left her name and phone number

so that the Foys could call.

Teresa and Monica were taken by Williams to a medical doctor

for a physical exam. The doctor reported that Teresa told him that

she did not want to go back to the Holyland. In addition, Teresa

said she would kill herself if she had to go back. The doctor also

2

DHR has wide-ranging duties and responsibilities under

Alabama law where there are reports that a child's welfare is in

jeopardy. For example, DHR is charged with making thorough

investigations upon oral or written reports of child abuse.

Ala.Code § 26-14-7. ("Abuse" is defined as "harm or threatened

harm to a child's health or welfare." Ala.Code § 26-14-1.) And,

DHR is authorized to take a child into protective custody

initially without the consent of the child's parents if the

circumstances are such that continuing custody with the parents

presents an imminent danger to the child's life or health.

Ala.Code § 26-14-6.

said he observed the bruises on Teresa's arm and said that he

observed marks on Monica's breast.

Teresa was placed in foster care. About 10 days after Teresa

was picked up, a "72-hour hearing" was held before Judge Hardaway.

(Judge Hardaway had signed a "pick-up" order for Teresa the day

before.) Defendant Williams, herself, was notified of the 30 April

hearing on 29 April. She called the Holyland to notify Teresa's

parents. Teresa's mother attended the hearing with an appointed

lawyer. At the hearing, Teresa testified and also talked with

Judge Hardaway privately; she informed Judge Hardaway that she did

not wish to return to the Holyland and said she did not want to

have contact with her parents. Teresa's mother was not allowed to

talk to Teresa before or during the hearing. Just over a week

later, the Juvenile Court held another hearing; and the court gave

temporary custody of Teresa to DHR.

Monica was picked up by her mother; but Teresa remained in

foster care. While in foster care, Teresa was permitted telephone

contact with her mother. Defendants Boatright and Williams called

Teresa on the phone and also drove Teresa to counseling sessions.

In her later deposition, Teresa testified that Defendants Boatright

and Williams (as well as another DHR worker, Ms. Widemon) were

supportive and told her that things were going to be all right.

Initially, the Foys had little contact with their daughter; but

Teresa eventually decided that she wanted to see her mother, and

DHR employees set up meetings between the two. In August 1993,

Teresa returned to her parents.

Meanwhile, DHR, filed a June 1993 petition (called the

"Grantham case") in Juvenile Court seeking to investigate

allegations that 17 children living in the Holyland had been

abused. In October, a court ordered the children to be produced;

and DHR conducted videotaped interviews with the children. By

November 1993, the interviews were completed and soon thereafter

DHR moved to dismiss the Grantham case.

In December 1993, Defendant Hornsby, Commissioner of the

Department of Human Resources, conducted a multi-agency meeting

about the Holyland. State and County officials discussed the

Holyland's sewage system, a fire on the Holyland's grounds, the

application of child labor laws to the Holyland, and reports of

child abuse. The different agencies discussed their contacts with

and responsibilities for the Holyland. The agencies also prepared

memoranda about the concerns raised at the meeting. The record

does not show that this meeting spurred acts by state officials

directed against the Holyland or its residents.

Plaintiffs sued various state officials connected with DHR

under section 1983. Plaintiffs alleged that the state official

defendants were prejudiced against the Holyland and its residents

and had denied them the rights "of Freedom of Religion and the free

exercise of their religion and their right to freedom of

association and freedom of speech as guaranteed under the

Constitution of the United States." Plaintiffs also alleged equal

protection violations. Defendants moved for summary judgment based

on qualified immunity, but the district court denied this motion.

Defendants took this interlocutory appeal.3

II. Discussion

Claims for money damages against government officials in their

individual capacity involve substantial costs not only for the

individual official—who incidentally may be innocent—but for

society in general. "These social costs include the expenses of

litigation, the diversion of official energy from pressing public

issues, and the deterrence of able citizens from acceptance of

public office. Finally, there is the danger that fear of being

sued will "dampen the ardor of all but the most resolute, or the

most irresponsible [public officials], in the unflinching discharge

3

We have jurisdiction despite the absence of a final order.

This appeal—unlike Johnson v. Jones, --- U.S. ----, 115 S.Ct.

2151, 132 L.Ed.2d 238 (1995)—is not based solely on questions of

evidentiary sufficiency. Instead, the appellants raise the core

qualified immunity issue (which is a legal issue) of whether,

taking the facts in the light most favorable to the plaintiffs,

clearly established federal rights were violated. It is the

raising of this legal issue which permits us to review on

interlocutory appeal the order denying qualified immunity. See

Behrens v. Pelletier, --- U.S. ----, ----, 116 S.Ct. 834, 842,

133 L.Ed.2d 773 (1996) ("[S]ummary-judgment determinations are

appealable when they resolve a dispute concerning an abstract

issue of law relating to qualified immunity—typically, the issue

whether the federal right allegedly infringed was clearly

established.") (citations, internal quotation marks and brackets

omitted).

The district court denied Defendants' motion by

stamping the word "DENIED" on the motion and signing the

judge's name under the stamp. So, the district court made

no express findings of fact and did not discuss whether it

was clearly established that Defendants acted unlawfully.

The Supreme Court has explained that where core qualified

immunity issues are raised on appeal and where the district

court fails to make findings of fact, the appellate court

must undertake a review of the record to determine the facts

in the light most favorable to the nonmoving party.

Behrens, --- U.S. at ----, 116 S.Ct. at 842. On the right

of appellate courts to review the record in interlocutory

appeals of the denial of qualified immunity generally, see

Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir.1996).

of their duties.' " Harlow v. Fitzgerald, 457 U.S. 800, 814, 102

S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982) (citations omitted).

The qualified immunity defense is the public servant's (and

society's) strong shield against these dangerous costs. Qualified

immunity protects government officials performing discretionary

functions from civil trials (and the other burdens of litigation,

including discovery) and from liability if their conduct violates

no clearly established statutory or constitutional rights of which

a reasonable person would have known. Harlow, 457 U.S. at 817-19,

102 S.Ct. at 2738. According to the Supreme Court, the Harlow

standard "purged qualified immunity doctrine of its subjective

components," Mitchell v. Forsyth, 472 U.S. 511, 517, 105 S.Ct.

2806, 2810, 86 L.Ed.2d 411 (1985), and "rejected the inquiry into

state of mind in favor of a wholly objective standard," Davis v.

Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139

(1984). As the Supreme Court has written just this year, "Harlow

adopted this criterion of "objective legal reasonableness,' rather

than good faith, precisely in order to "permit the defeat of

insubstantial claims without resort to trial.' " Behrens v.

Pelletier, --- U.S. ----, ----, 116 S.Ct. 834, 838, 133 L.Ed.2d 773

(1996) (citations omitted). "Objective legal reasonableness is the

touchstone." Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1150

(11th Cir.1994) (en banc).

Once the qualified immunity defense is raised, plaintiffs

bear the burden of showing that the federal rights allegedly

violated were clearly established. See Barts v. Joyner, 865 F.2d

1187, 1190 (11th Cir.1989) (citing Mitchell, 472 U.S. at 526-28,

105 S.Ct. at 2816). This burden is not easily discharged: "That

qualified immunity protects government actors is the usual rule;

only in exceptional cases will government actors have no shield

against claims made against them in their individual capacities."

Lassiter, 28 F.3d at 1149. Plaintiffs cannot carry their burden of

proving the law to be clearly established by stating constitutional

rights in general terms. Dartland v. Metropolitan Dade County, 866

F.2d 1321, 1323 (11th Cir.1989). We conclude from our review of

Plaintiffs' pleadings, briefs, and the record that they have

asserted two kinds of constitutional claims which require

discussion: family privacy and discrimination on the basis of

religion.4

A. Discrimination

As we understand it, Plaintiffs say that placing (and

keeping) Teresa in foster care, interviewing the children in the

Grantham case, and holding the multi-departmental meeting of state

officials violated their constitutional rights because Defendants

acted as they did out of a hostility toward the religious teachings

of the Christ Temple Church. Because Plaintiffs argue that their

First Amendment and equal protection rights have been violated by

disparate treatment on the basis of religion, discriminatory

4

We also observe that Plaintiffs did not allege (or argue to

us) that Defendants' failure to follow state procedures resulted

in a violation of procedural due process. We point out that

Defendants cannot be said to have violated clearly established

federal law simply by failing (if there was a failure) to follow

provisions of the Alabama code or state regulations which govern

child custody matters. See Davis v. Scherer, 468 U.S. 183, 193-

95, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984) (officials "do

not lose their qualified immunity merely because their conduct

violates some [state] statutory or administrative provision").

purpose is something which Plaintiffs must prove to prevail.5 See

General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 390-

92, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982) (observing that

Equal Protection clause can be violated only by "purposeful

discrimination"); see also Church of Scientology v. City of

Clearwater, 2 F.3d 1514, 1525 (11th Cir.1993) ("Religious groups

and their members that are singled out for discriminatory

government treatment ... have standing to seek redress in federal

courts"); Jones v. White, 992 F.2d 1548, 1573 (11th Cir.1993) ("To

prevail on an equal protection claim that a facially neutral

statute is being applied unequally, purposeful discrimination must

be shown") (quotation marks omitted).

Defendants' first response to this charge is that the record

supports no finding of discriminatory intent. But, we accept that

Plaintiffs have presented a triable issue of fact on whether

Defendants were motivated by a hostility toward the religion at the

Holyland. In addition, we, for now, resolve this disputed issue by

making an assumption in Plaintiffs' favor. So, the question

becomes whether this assumption—that is, Defendants' acts were

motivated some by prejudice against Plaintiffs' religion—is a bar

5

But, many constitutional torts do not require the plaintiff

to prove that the defendant possessed discriminatory intent in

acting. For qualified immunity in such cases, no court doubts

that Harlow 's test of objective reasonableness applies: The

subjective intent of the government actor is unimportant to the

resolution of the qualified immunity issue. The sole question is

whether any reasonable official (regardless of subjective motive)

could have acted as the defendant acted without violating clearly

established law. For an example of such a constitutional tort,

see Part II.B. (discussing family privacy claim).

to immunity.6

Sometimes a plaintiff has avoided summary judgment based on

qualified immunity when an issue of fact existed about whether the

defendants acted with subjective discriminatory intent where

discriminatory intent was an element of the constitutional tort.

See, e.g., McMillian v. Johnson, 88 F.3d 1554 (11th Cir.1996);

Ratliff v. DeKalb County, 62 F.3d 338 (11th Cir.1995). Immunity

(at the summary judgment stage) was denied despite Harlow 's

admonition that qualified immunity requires not a subjective

inquiry, but an objective inquiry. Our former decisions, however,

must not be understood to rule out qualified immunity wherever

discriminatory intent appears in the summary judgment record even

if discriminatory intent is an element of the underlying

6

We, in the past, have held state officials to be entitled

to qualified immunity where a plaintiff alleged discriminatory

intent and the summary judgment record showed discriminatory

intent perhaps existed. See Beauregard v. Olson, 84 F.3d 1402

(11th Cir.1996) (court assumed defendant fired plaintiff because

of political affiliation); Bates v. Hunt, 3 F.3d 374 (11th

Cir.1993) (allegation—assumed to be true—of gender discrimination

on pay and record showed that employer was, in fact, motivated,

at least in part, by lawful consideration of work experience);

see also Zeigler v. Jackson, 716 F.2d 847, 850 (11th Cir.1983)

(individuals granted immunity on equal protection claim upon

which plaintiff prevailed where defendants believed state law

required them to act as they acted).

And, other courts have said that a state official is

entitled to immunity where he had an arguable basis for

thinking he was acting lawfully despite his treating the

plaintiff adversely based on the class of persons to which

plaintiff belongs or because the plaintiff had engaged in

certain conduct. See, e.g., Harrison & Burrowes Bridge v.

Cuomo, 981 F.2d 50, 61 (2d Cir.1992) (intentional

discrimination on basis of race not plainly unlawful);

Henry v. Metropolitan Sewer Dist., 922 F.2d 332 (6th

Cir.1990) (intentional discrimination on basis of union

membership not plainly unlawful); Wilson v. Schillinger,

761 F.2d 921 (3d Cir.1985) (intentional discrimination on

basis of religion not plainly unlawful).

constitutional tort.

Qualified immunity is too important a right of public servants

and too important a public policy to be nullified so easily. The

Supreme Court has not instructed us to drop qualified immunity

(with its test of objective reasonableness) from cases in which

discriminatory intent is an element of the underlying tort. Cf.

Anderson v. Creighton, 483 U.S. 635, 645-46, 107 S.Ct. 3034, 3042,

97 L.Ed.2d 523 (1987) ("Harlow clearly expressed the understanding

that the general principle of qualified immunity it established

would be applied "across the board.' "). So, whenever a public

officer is sued for money damages in his individual capacity for

violating federal law, the basic qualified immunity question looms

unchanged: Could a reasonable officer have believed that what the

defendant did might be lawful in the circumstances and in the light

of the clearly established law?

When public officials do their jobs, it is a good thing.

Qualified immunity is a real-world doctrine designed to allow local

officials to act (without always erring on the side of caution)

when action is required to discharge the duties of public office.

See Davis v. Scherer, 468 U.S. 183, 196, 104 S.Ct. 3012, 3020, 82

L.Ed.2d 139 (1984) ("[O]fficials should not always err on the side

of caution."). For many public servants, a failure to act can have

severe consequences for the citizenry. For example, if child

welfare officials fail to act, the death or serious permanent

injury of a child could be the result.

As we decide this case, we cannot forget the purpose of

qualified immunity. The qualified immunity defense functions to

prevent public officials from being intimidated—by the threat of

lawsuits which jeopardize the official and his family's welfare

personally—from doing their jobs. Qualified immunity can be a

muscular doctrine that impacts on the reality of the workaday world

as long as judges remember that the central idea is this pragmatic

one: officials can act without fear of harassing litigation only

when they can reasonably anticipate— before they act or do not

act—if their conduct will give rise to damage liability for them.

Davis, 468 U.S. at 195, 104 S.Ct. at 3019-20. If objective

observers cannot predict—at the time the official acts—whether the

act was lawful or not, and the answer must await full adjudication

in a district court years in the future, the official deserves

immunity from liability for civil damages. See Elder v. Holloway,

510 U.S. 510, 513-15, 114 S.Ct. 1019, 1022, 127 L.Ed.2d 344 (1994).

This lesson is at the heart of the rule of qualified immunity.

That state officials can act lawfully even when motivated by

a dislike or hostility to certain protected behavior by a citizen

is well established. See Mt. Healthy v. Doyle, 429 U.S. 274, 97

S.Ct. 568, 50 L.Ed.2d 471 (1979). That state officials can be

motivated, in part, by a dislike or hostility toward a certain

protected class to which a citizen belongs and still act lawfully

is likewise well established. See Vil. of Arlington Hts. v. Metro.

Housing Dev., 429 U.S. 252, 269-71, 97 S.Ct. 555, 566 n. 21, 50

L.Ed.2d 450 (1977). For example, state officials act lawfully

despite having discriminatory intent, where the record shows they

would have acted as they, in fact, did act even if they had lacked

discriminatory intent. Mt. Healthy, 429 U.S. at 286-87, 97 S.Ct.

at 576.

The Mt. Healthy doctrine is part of the law and, when the

concept is presented by a defendant's argument, must not be

7

overlooked in the qualified immunity analysis. Where

discriminatory intent is an element of the tort and the summary

judgment record seems to show that discriminatory intent might have

played a part in the state official's acts, the existence of the

Mt. Healthy doctrine complicates and, therefore, can cloud the

question of whether the official acted lawfully or unlawfully in

the circumstances. This cloud, in turn, raises the possibility

that even conduct which might ultimately be found to be unlawful

was objectively reasonable when it was done.

One trigger to the doctrine's application depends upon

whether the record establishes that the defendant, in fact, did

possess a substantial lawful motive for acting as he did act. At

least when an adequate lawful motive is present, that a

discriminatory motive might also exist does not sweep qualified

immunity from the field even at the summary judgment stage. Unless

it, as a legal matter, is plain under the specific facts and

circumstances of the case that the defendant's conduct—despite his

having adequate lawful reasons to support the act—was the result of

his unlawful motive, the defendant is entitled to immunity. Where

the facts assumed for summary judgment purposes in a case involving

qualified immunity show mixed motives (lawful and unlawful

7

We are not the only circuit to recognize that Mt.

Healthy-type concerns are important in interlocutory appeals from

the denial of qualified immunity. See, for example, Gehl Group

v. Koby, 63 F.3d 1528 (10th Cir.1995).

motivations) and pre-existing law does not dictate that the merits

of the case must be decided in plaintiff's favor, the defendant is

entitled to immunity.

Given the undisputed facts in this case, the Mt. Healthy idea

does obscure the answer for the question of whether Defendants

acted lawfully or unlawfully in the circumstances. 8 Applying the

usual summary judgment rules (Rule 56[c], [d] ), the record does

show Defendants had, in fact, cause to understand that Teresa was

possibly being mistreated. The record also shows Defendants were,

in fact, aware of information that would warrant investigation of

other children. These justifications for acting are lawful. See

Myers v. Morris, 810 F.2d 1437, 1462-63 (8th Cir.1987); Watterson

8

Mt. Healthy is not a case about qualified immunity. Mt.

Healthy teaches about causation when the merits of a claim are to

be decided. The concept it sets out is suggestive of a kind of

balancing between (that is, to estimate the relative importance

of) lawful causes and unlawful causes for an act. In this case,

we put Mt. Healthy in the qualified immunity context: We try to

take into account subjective intent and, at the same time, we try

to advance and give credit to the principles which the Supreme

Court has repeatedly said justify qualified immunity.

When the law contemplates some kind of balancing test

to determine the ultimate question of lawfulness or

unlawfulness of an act, qualified immunity almost always

applies to shield the public servant defendant: the lack of

bright lines associated with balancing tests prevents the

preexisting law, given the circumstances of a specific case,

from having been clearly established when the public servant

took the step that resulted in his later being a defendant

in a lawsuit. See generally Hansen v. Soldenwagner, 19 F.3d

573, 575 (11th Cir.1994).

The only question today before us is one of immunity.

A decision on qualified immunity is separate and distinct

from the merits of the case. We do not (and need not)

decide that Defendants could not possibly be liable if the

case were fully litigated to a conclusion on the merits,

that is, if immunity were no issue at all in the case. And

the case does involve some defendants and some claims for

relief to which qualified immunity does not apply.

v. Page, 987 F.2d 1, 8 (1st Cir.1993); see also Part II.B. No

jury could find that it would have been unlawful for a child

custody worker to do as Defendants did if the worker lacked

discriminatory intent. More important, no jury could find that

reasonable child custody workers would never have done the things

defendants did but for a discriminatory intent. In addition, the

record makes it clear that Defendants' acts were actually motivated

by lawful considerations without which they would not have acted.9

9

We know that matters of intent are often jury questions.

But, even at summary judgment, "where the defendant's

justification evidence completely overcomes any inference to be

drawn from the evidence submitted by the plaintiff the [ ] court

may properly acknowledge that fact...." Young v. General Foods

Corp., 840 F.2d 825, 830 (11th Cir.1988) (quoting Grigsby v.

Reynolds Metals Co., 821 F.2d 590, 597 (11th Cir.1987)).

Because the record does establish that Defendants'

acts, in fact, were motivated, in part at least, by lawful

justifications, this case is materially different than

McMillian. See 88 F.3d at 1564-65 (case in which district

court [taking all of the reasonable inferences in

plaintiff's favor] found, that is, assumed for the purpose

of qualified immunity determinations, no legitimate reason,

in fact, motivated defendants' acts). Given our

precedents—whether they are right or wrong, the question for

qualified immunity here cannot just be whether some

official, acting without discriminatory intent, could have

lawfully acted as Defendants acted. McMillian says that

where intent is an element of the constitutional tort, the

intent of the government official can be part of the

circumstances which we are forced to consider. (But for our

precedents allowing subjective intent to count in the

qualified immunity context, defendants in this case would

certainly be due immunity. See Millspaugh v. County Dept.

of Public Welfare, 937 F.2d 1172, 1173 (7th Cir.1991).)

Given Mt. Healthy's teachings (part of the

constitutional backdrop against which local officials decide

whether an act which they think necessary is also lawful),

we must consider the fact of lawful intent just as we

consider the fact of unlawful intent. Here the record, in

fact, shows substantial lawful intent, while not ruling out

some unlawful intent, too. Unlike McMillian and Ratliff

(which involved pointed district court fact findings—that we

did not review—about the intent of the defendants and in

So, unless it was already clearly established when Defendants

acted that no child custody worker could lawfully act—that is, do

what Defendants did—to protect children in the circumstances of

this case if the worker also acted, in part, out of hostility

toward the parent's religion, Defendants are entitled to immunity.

On the question of the legal consequences of the facts (proved in

favor of defendants and assumed in favor of plaintiffs) in this

case, Plaintiffs point us to no cases (and we have found none)

which would have clearly established as a matter of law that child

custody workers cannot act lawfully under these circumstances—even

when we accept that the circumstances do include substantial

prejudice by the officials against Plaintiffs on account of

Plaintiffs' religious beliefs.10

In the circumstances, no clear legal standard could firmly

which the Mt. Healthy doctrine was not discussed), we are

deciding the qualified immunity question based on

circumstances which include indisputable and sufficient

lawful motivations on the part of Defendants.

10

Protecting children is the job for which social workers

are paid. Never has the Supreme Court or this circuit or

Alabama's appellate courts held that a social worker cannot act

to protect children—when faced with circumstances that would

warrant a pure-hearted reasonable person to act—if the particular

social worker's motivations are, in fact, mixed, some lawful and

some not. We cannot say the preexisting law was so clearly

established, at the pertinent moment, that a social worker (who

had unlawful motivations) would have known—even when faced with

circumstances that would have justified a reasonable (and

pure-hearted) social worker to act—that he, because some of his

motivations were not right, had to turn away and not to act on

behalf of the children if he wished to avoid violating federal

law. And, as we understand it, unless the law was to that degree

clearly established (that is, so clearly established that the

pertinent, partially bad-hearted, social worker would be acting

lawfully only if he did not act in defense of the children—given

the particular social worker's subjective feelings), the Supreme

Court's teachings on qualified immunity say the social worker is

due immunity.

direct Defendants when the time to act or not to act was upon them.

Because, given the circumstances and the state of the law, a

reasonable child custody worker could have considered Defendants'

conduct arguably proper even if Defendants were motivated in

substantial part by unlawful motives, Defendants' conduct was

objectively reasonable for the purposes of qualified immunity.

Defendants are entitled to summary judgment based on qualified

immunity on this disparate treatment claim.

B. Family Liberty

Plaintiffs have alleged violations of their right to "freedom

of association," which we construe to include a claim that their

rights to preserve their family unit have been violated. See Lehr

v. Robertson, 463 U.S. 248, 258, 103 S.Ct. 2985, 2991-92, 77

L.Ed.2d 614 (1983) ("[t]he relationship of love and duty in a

recognized family unit is an interest in liberty entitled to

constitutional protection"). Plaintiffs also allege a free

exercise violation. Family-oriented liberty rights can involve the

right to raise children in accordance with certain religious

teachings. See Prince v. Massachusetts, 321 U.S. 158, 166, 64

S.Ct. 438, 442, 88 L.Ed. 645 (1944).

To prevail on a claim about family privacy, parents need to

prove that a state actor interfered with a protected liberty

interest without sufficient justification. This constitutional

tort requires no element of intent. For example, no showing need

be made that the state official acted out of a hostility toward the

family unit or toward protected religious behavior engaged in by

the family. Cf. Canas-Segovia v. INS, 902 F.2d 717, 723 n. 12 (9th

Cir.1990), vacated on other grounds, 502 U.S. 1086, 112 S.Ct. 1152,

117 L.Ed.2d 401 (1992) (observing that equal protection cases are

different from freedom of religion cases because equal protection

cases "require[ ] proof of discriminatory intent"). So, as we have

discussed in note 5, the qualified immunity question on this claim

is whether any reasonable officer (that is, one without hostility

toward Plaintiffs' religion or family) could have acted as these

Defendants acted without violating federal law.

Family relationships are an area of state concern, and the

state has a compelling interest in removing children who may be

abused. See Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.1987).

Likewise, "[t]he right to family integrity clearly does not include

a constitutional right to be free from child abuse investigations."

Watterson v. Page, 987 F.2d 1, 8 (1st Cir.1993). Violations of the

right to family association are determined by a balancing of

competing interests. Manzano v. South Dakota Dep't of Social

Servs., 60 F.3d 505 (8th Cir.1995). So, state officials who act to

investigate or to protect children where there are allegations of

abuse almost never act within the contours of "clearly established

law." See Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir.1992).

Thus, it is no surprise that state officials who investigate

allegations of child abuse and in so doing disrupt a family have

been entitled to qualified immunity. See, e.g., Thomason v. SCAN

Volunteer Services, 85 F.3d 1365 (8th Cir.1996); Manzano, 60 F.3d

at 511; Watterson, 987 F.2d at 8; Frazier, 957 F.2d at 931;

Myers, 810 F.2d at 1462; Backlund v. Barnhart, 778 F.2d 1386 (9th

Cir.1985) (foster parents claim free exercise right to use corporal

punishment).

Here, the record is undisputed that Teresa (1) alleged abuse

by her parents, (2) had bruises on her arm, (3) said she did not

wish to return to her parents, and (4) threatened suicide. Monica

also alleged abuse which was supported by the doctor's exam. And,

each girl alleged that they were not the only children abused by

Holyland adults. (We do not conclude the record proves child

abuse, in fact.) Under the circumstances, no clearly established

right to family privacy has been shown to have been violated by the

conduct of Defendants. This conclusion is so even if the

investigation and custody determination procedures were not

"textbook perfect." See Manzano, 60 F.3d at 513 (citing Watterson,

987 F.2d at 8). As such, the district court should have granted

the Defendant's motion for summary judgment on these claims (as

well as all others).

In sum, we reverse the order denying Defendants summary

judgment based on qualified immunity. We remand and instruct that

the district court grant each individual defendant summary judgment

from the claims which seek to hold an individual defendant

personally liable for money. The only issue in this appeal is the

issue of qualified immunity; so, we also remand for further

proceedings.

REVERSED and REMANDED.