Southerland v. City of New York

07-4449-cv (L), 07-4450-cv (CON)

Southerland v. City of New York

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ORDER

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 22nd day of May, two thousand twelve.

5

6 - - - - - - - - - - - - - - - - - - - -X

7 SONNY B. SOUTHERLAND, SR.,

8 individually and as parent and

9 natural guardian of VENUS

10 SOUTHERLAND, SONNY B. SOUTHERLAND,

11 JR., NATHANIEL SOUTHERLAND, EMMANUEL

12 FELIX, KIAM FELIX, AND ELIZABETH

13 FELIX,

14

15 Plaintiffs-Appellants,

16

17 -v.- 07-4449-cv (L)

18

19 CITY OF NEW YORK, TIMOTHY WOO, JOHN

20 DOES 1-9,

21

22 Defendants-Appellees.

23 - - - - - - - - - - - - - - - - - - - -X

24

25 MICHAEL G. O’NEILL, New York, N.Y., for

26 Plaintiffs-Appellants Venus S., Sonny B.S.

27 Jr., Nathaniel S., Emmanuel F., Kiam F., and

28 Elizabeth F.

29

30 SONNY B. SOUTHERLAND, Brooklyn, N.Y., Plaintiff-

31 Appellant, pro se.

32

33 JULIAN L. KALKSTEIN, City of New York (Michael A.

34 Cardozo, Corporation Counsel; Larry A.

35 Sonnenshein, of counsel), New York, N.Y., for

36 Defendants-Appellees.

1 Following disposition of this appeal on February 2,

2 2012, and prior to the amended disposition on May 14, 2012,

3 an active judge of the Court requested a poll on whether to

4 rehear the case in banc. A poll having been conducted and

5 there being no majority favoring in banc review, rehearing

6 in banc is hereby DENIED.

7

8 Judge Raggi dissents in an opinion joined by Chief

9 Judge Jacobs and Judges Cabranes, Wesley, and Livingston.

10

11 Chief Judge Jacobs dissents in an opinion joined by

12 Judges Cabranes, Raggi, Wesley, and Livingston.

13

14

15

16 FOR THE COURT:

17 CATHERINE O’HAGAN WOLFE, CLERK

2

1 REENA RAGGI, Circuit Judge, with whom Chief Judge JACOBS, Judge CABRANES, Judge

2 WESLEY, and Judge LIVINGSTON join, dissenting from the denial of rehearing en banc:

3

4 In 1998, after a five-day trial in New York State Family Court, Sonny Southerland

5 was found to have abused his seven children so severely—sexually and corporally—as to

6 warrant denying him custody for seven years. This ruling and the findings supporting it have

7 never been disturbed. See In re Ciara M., 273 A.D.2d 312, 314, 708 N.Y.S.2d 717, 719 (2d

8 Dep’t) (upholding abuse findings and affirming orders denying custody), leave to appeal

9 denied, 95 N.Y.2d 767, 717 N.Y.S.2d 547 (2000). A panel of this court concludes that

10 Southerland can nevertheless invoke 42 U.S.C. § 1983 to demand money damages from

11 Timothy Woo, the caseworker who rescued the Southerland children from their father’s

12 abuse. The panel further concludes that Southerland’s abused children can also maintain

13 such a damages action against their rescuer.

14 Essentially, plaintiffs complain that Woo—who had been assigned to investigate a

15 report that Southerland’s teenage daughter Ciara might be suicidal and that her father was

16 indifferent to her need for care—entered the Southerland home pursuant to a warrant that was

17 not supported by probable cause. See U.S. Const. amend. IV. They further contend that

18 Woo removed Southerland’s six other children from the home without evidence of exigency,

19 thereby effecting an unreasonable seizure and a deprivation of plaintiffs’ liberty interest in

20 a continuing family relationship without due process. Id. amend. IV, XIV. With respect to

21 the removal claim, plaintiffs do not contend—nor could they in light of the Family Court

22 ruling—that Southerland did not, in fact, pose an exigent threat to his children’s safety. They

23 contend only that Woo was not yet aware that the threat was exigent.

1

1 By even plaintiffs’ account, it did not take long for Woo to gain such awareness.

2 Within four days of effecting the challenged removal, Woo learned and reported to the

3 Family Court that “Southerland has been sexually abusing his daughter Ciara Manning (age

4 16) since she was eight years old. On numerous occasions over the past nine years

5 respond[e]nt S[o]utherland has had sexual intercourse with Ciara and would threaten to kill

6 Ciara if she told anyone.” Ex. D to Silverberg Decl. in Supp. of Summ. J. at 5, Southerland

7 v. City of N.Y., No. 99-CV-3329 (E.D.N.Y. Sept. 18, 2006) (“Silverberg Decl.”), ECF No.

8 168-7. Further, before the month was out, Woo learned and reported to the Family Court that

9 the six children removed from the Southerland home—then ages three to nine—had revealed

10 that their father hit them “with broom sticks, exercise equipment and other objects causing

11 welts and bruises,” and had punished the children for “tak[ing] food from the refrigerator

12 without permission” by hitting them “with various objects.” Ex. E to Silverberg Decl. at 6,

13 ECF No. 168-8. The state court’s custody determination makes clear that the Southerland

14 children would have continued to experience such abuse but for the challenged removal for

15 which they and their abusive father now demand compensation from Woo.1

1

1 Plaintiffs cannot frame their § 1983 claims in any way that challenges the validity

2 of the state court custody decision or the findings of fact supporting that decision. See

3 Rooker v. Fidelity Trust Co., 263 U.S. 413, 415–16 (1923) (forbidding state court losers from

4 complaining in federal court of injuries caused by state court judgments); accord Skinner v.

5 Switzer, 131 S. Ct. 1289, 1297 (2011); Green v. Mattingly, 585 F.3d 97, 103 (2d Cir. 2009)

6 (discussing when Rooker-Feldman doctrine would likely bar challenge to Family Court

7 adjudication); see also La Fleur v. Whitman, 300 F.3d 256, 271–75 (2d Cir. 2002) (applying

8 New York collateral estoppel rule to preclude relitigation of factual issues in federal court).

9 Nevertheless, they maintain that they can recover money damages for Woo’s premature

10 interruption of the adjudicated abuse of which he was not yet fully aware.

2

1 The district court sensibly dismissed this action, awarding summary judgment in favor

2 of Woo on the ground of qualified immunity. See Southerland v. City of N.Y., 521 F. Supp.

3 2d 218, 231–32 (E.D.N.Y. 2007) (Sifton, J.). In reversing that judgment, the panel concludes

4 both that (1) the constitutional rights asserted here by Southerland and his abused children

5 were clearly established in the circumstances confronting Woo at the time of his challenged

6 actions, see Southerland v. City of N.Y., --- F.3d ----, 2012 WL 1662981, at *18–19, *27 (2d

7 Cir. 2012); and (2) the record reveals disputed issues of fact that a reasonable jury could

8 resolve in plaintiffs’ favor, see id. at *12–17, *19, *28. I respectfully disagree with both

9 conclusions for reasons that merit en banc review. These reasons can be briefly summarized

10 as follows.

11 First, the panel concludes that Woo lacked probable cause to seek Ciara Manning, the

12 reported neglected child, in Southerland’s home because Woo had been told that she might

13 have run away. See id. at *13–14. This misperceives the probable cause requirement, which

14 neither demands certainty nor is defeated by possibilities. In the context of child welfare

15 investigations, there is always probable cause to look for an at-risk child in the home of the

16 custodial parent, at least absent conclusive evidence that the child is in fact somewhere else,

17 which was not the case here. To the extent that five judges of this court hold that view of

18 probable cause, it can hardly be said that no reasonable child welfare worker could have

19 thought likewise. Thus, Woo is entitled to qualified immunity on plaintiffs’ Fourth

20 Amendment challenge to his entry into the Southerland home.

21

3

1 Second, in allowing an adjudicated abusive father and the children he abused to sue

2 a caseworker for prematurely halting the abuse, the panel extends our due process precedent

3 in a way that the court should reject en banc. The cases cited by the panel as recognizing a

4 parent’s right to sue for due process violations by child welfare authorities all involved

5 circumstances in which suspicions of abuse or neglect eventually proved unfounded, see Kia

6 P. v. McIntyre, 235 F.3d 749, 751 (2d Cir. 2000); Tenenbaum v. Williams, 193 F.3d 581, 587

7 (2d Cir. 1999); Hurlman v. Rice, 927 F.2d 74, 76 (2d Cir. 1991), or no state judicial process

8 was ever afforded to confirm such suspicions, see Duchesne v. Sugarman, 566 F.2d 817, 823

9 (2d Cir. 1977). None involved due process claims by parents adjudicated to have abused

10 their children, or by the children who were victims of such abuse. For the same reasons that

11 the law does not permit a convicted defendant to challenge the sufficiency of the evidence

12 supporting his arrest, see Cameron v. Fogarty, 806 F.2d 380, 388–89 (2d Cir. 1986), it should

13 not permit an adjudicated abusive parent, or the children he abused, to sue a rescuing

14 caseworker on a theory that the caseworker prematurely intervened. Recognizing a viable

15 claim for money damages in such circumstances risks bringing the law into disrepute.

16 Further, it endangers future abuse victims by unnecessarily deterring caseworkers from

17 promptly intervening for fear of being liable in money damages, not only in cases where no

18 parental abuse or neglect is established but also in cases where courts conclusively determine

19 that it is.

20 Thus, the scope and parameter of the constitutional rights at issue in the context of

21 state adjudications of parental abuse raise questions of exceptional importance warranting

4

1 en banc review. See Fed. R. App. P. 35(a)(2). Insofar as a majority of the active members

2 of this court decline to undertake such review, I respectfully dissent from the denial of

3 rehearing en banc.

4 ***

5 1. Qualified Immunity

6

7 To allow government officials to perform discretionary duties without fear of undue

8 interference or threat of potentially disabling liability, the law affords them qualified

9 immunity from suits for money damages, provided that their conduct does not violate clearly

10 established statutory or constitutional rights of which a reasonable person would have been

11 aware. See Harlow v. Fitzgerald, 457 U.S. 800, 806, 818 (1982); accord Filarsky v. Delia,

12 132 S. Ct. 1657, 1665 (2012) (recognizing qualified immunity doctrine to serve vital purpose

13 of “[e]nsuring that those who serve the government do so with the decisiveness and the

14 judgment required by the public good” (internal quotation marks omitted)). Such immunity

15 has been recognized to provide a broad shield, protecting “all but the plainly incompetent or

16 those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986); accord

17 Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011).

18 A threshold question to any immunity claim is whether the facts, viewed in the light

19 most favorable to the plaintiff, show that a statutory or constitutional right was violated. If

20 that question can clearly be answered no, there is simply “no necessity for further inquiries

21 concerning qualified immunity.” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in

22 part on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009); accord Walczyk v. Rio,

5

1 496 F.3d 139, 154 (2d Cir. 2007) (collecting cases explaining that resolution of threshold

2 question favorably to defendant “moots” further qualified immunity inquiry). If the answer

3 is yes, or at least not clearly no, see Pearson v. Callahan, 555 U.S. at 237, the pertinent

4 qualified immunity inquiry is whether the right was clearly established at the time of the

5 defendant’s actions, see Ashcroft v. al-Kidd, 131 S. Ct. at 2080; Walczyk v. Rio, 496 F.3d

6 at 154. As the Supreme Court has emphasized, this second question is not answered by

7 reference to how courts or lawyers might have understood the state of the law. Rather, the

8 “relevant, dispositive inquiry in determining whether a right is clearly established is whether

9 it would be clear to a reasonable officer that his conduct was unlawful in the situation he

10 confronted.” Saucier v. Katz, 533 U.S. at 202; see Messerschmidt v. Millender, 132 S. Ct.

11 1235, 1245 (2012). Thus, even if the right at issue “was clearly established in certain

12 respects,” a state actor “is still entitled to qualified immunity if ‘officers of reasonable

13 competence could disagree’ on the legality of the action at issue in its particular factual

14 context.” Walcyzk v. Rio, 496 F.3d at 154 (quoting Malley v. Briggs, 475 U.S. at 341).

15 Applying these principles to this case, the district court correctly awarded Woo

16 judgment on the ground of qualified immunity.

17

18 2. Entry into the Southerland Home: Probable Cause Claim

19 On June 9, 1997, having procured a court order under New York Family Court Act

20 § 1034(2) (McKinney 1997), Timothy Woo entered the Southerland home in order to

21 conduct an investigation mandated by New York Social Services Law § 424. The latter

6

1 statute requires child welfare authorities, upon receipt of a complaint of possible child abuse

2 or neglect, “to commence, within twenty-four hours, an appropriate investigation which shall

3 include an evaluation of the environment of the child named in the report and any other

4 children in the same home and a determination of the risk to such children if they continue

5 to remain in the existing home environment.” N.Y. Soc. Serv. Law § 424(6)(a). Meanwhile,

6 New York Family Court Act § 1034(2) permits courts to authorize a home entry even without

7 parental consent upon finding “probable cause to believe that an abused or neglected child

8 may be found on premises.” In procuring a § 1034(2) warrant to enter the Southerland home,

9 Woo submitted an affidavit stating that he believed that named children in the residence were

10 neglected or abused because (1) one child, sixteen-year-old Ciara Manning, had “tried to kill

11 herself by swallowing non-toxic paint,” and her custodial father, Southerland, had not

12 obtained any treatment for her;2 and (2) Southerland had refused to allow child welfare

13 workers into his home to speak to other named children on the premises. Southerland v. City

14 of N.Y., 2012 WL 1662981, at *4 n.5 (quoting Woo application in entirety).

15

2

1 See N.Y. Fam. Ct. Act § 1012(f)(i) (stating that child is neglected if her “physical,

2 mental or emotional condition has been impaired or is in imminent danger of becoming

3 impaired as a result of the failure of h[er] parent or other person legally responsible for h[er]

4 care to exercise a minimum degree of care”); id. § 1012(f)(i)(A) (recognizing minimum care

5 to include provision of necessary medical care). Insofar as Southerland attempts to disavow

6 responsibility for Ciara’s neglect by claiming that he periodically sought state assistance in

7 controlling the child, see Southerland v. City of N.Y., 2012 WL 1662981, at *14, the

8 assertion is beside the point. Such action might mitigate Southerland’s culpability for any

9 neglect, but it does not alter the probability that Ciara was a neglected child at the time of the

10 challenged entry, when Southerland, not the State of New York, was responsible for her care.

7

1 The fact that Woo’s challenged entry was pursuant to a court order gives rise to “a

2 presumption that it was objectively reasonable for [him] to believe” that the entry “was

3 supported by probable cause,” thereby affording him qualified immunity from suit for a

4 purported violation of the Fourth Amendment. Martinez v. City of Schenectady, 115 F.3d

5 111, 115 (2d Cir. 1997); see Messerschmidt v. Millender, 132 S. Ct. at 1245 (“Where the

6 alleged Fourth Amendment violation involves a search or seizure pursuant to a warrant, the

7 fact that a neutral magistrate has issued a warrant is the clearest indication that the officers

8 acted in an objectively reasonable manner or, as we have sometimes put it, in objective good

9 faith.” (internal quotation marks omitted)); Walczyk v. Rio, 496 F.3d at 155–56. To

10 overcome this presumption, plaintiffs were obliged to make “a substantial preliminary

11 showing” (1) that Woo “knowingly and intentionally, or with reckless disregard for the

12 truth,” made false statements or material omissions to secure the entry order; and (2) that the

13 allegedly false statements or material omissions were “necessary to the finding of probable

14 cause.” Franks v. Delaware, 438 U.S. 154, 155–56 (1978); accord Walcyzk v. Rio, 496 F.3d

15 at 155–56; see Martinez v. City of Schenectady, 115 F.3d at 115.

16 Toward that end, plaintiffs alleged that Woo’s § 1034(2) application contained a

17 number of knowing or reckless misstatements and omissions that defeated probable cause.

18 In rejecting this claim, the district court relied on the corrected affidavit doctrine, which

19 affords qualified immunity if, when false material is set aside, or omitted information is

20 supplied, “the corrected affidavit would have supported a” reasonable officer’s belief that

21 probable cause existed. Martinez v. City of Schenectady, 115 F.3d at 115 (internal quotation

8

1 marks omitted); accord Walczyk v. Rio, 496 F.3d at 158. Reversing, the panel reasons that

2 insofar as Woo’s § 1034(2) application identified Ciara Manning as the neglected or abused

3 child to be sought in the Southerland home, the required probable cause to believe that she

4 would be found “on premises” was defeated if Woo’s affidavit were corrected to include the

5 omitted facts that (1) school reports indicated that Ciara might be staying outside the

6 Southerland home, over the opposition of her father; and (2) Southerland had told Woo that

7 Ciara was a runaway not living at home. See Southerland v. City of N.Y., 2012 WL

8 1662981, at *13–14.

9 The conclusion that these corrections defeat probable cause to think that Ciara

10 Manning might be found in the Southerland home is wrong as a matter of law. While

11 probable cause requires more than “mere suspicion,” Mallory v. United States, 354 U.S. 449,

12 454 (1957), it does not demand “hard certainties,” Illinois v. Gates, 462 U.S. 213, 231

13 (1983). Indeed, probable cause does not even require that something be more likely so than

14 not so, the preponderance standard of proof. See id. at 235 (cautioning that “[f]inely-tuned

15 standards such as proof beyond a reasonable doubt or by a preponderance of the evidence,

16 useful in formal trials, have no place” in probable cause determination). Rather, probable

17 cause is a “fluid concept,” concerned simply with “probabilities.” Id. at 232. In assessing

18 what is probable, a judicial officer must look to “‘the factual and practical considerations of

19 everyday life on which reasonable and prudent men, not legal technicians, act.’” Id. at 231

20 (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)); accord Walczyk v. Rio, 496

21 F.3d at 156–57.

9

1 With these principles in mind, it is important to note exactly what New York Family

2 Court Act § 1034(2) requires be probable to authorize entry into a home, i.e., that “an abused

3 or neglected child may be found on premises.” N.Y. Fam. Ct. Act § 1034(2) (emphasis

4 added). In short, it need not be probable that an abused or neglected child “will be found”

5 on the premises; it need only be probable that such a child “may be found” there. Among the

6 various probabilities required by law to justify searches or seizures serving different

7 purposes, § 1034(2)’s “may be found” requirement is not a particularly demanding one. See

8 United States v. Abu-Jihaad, 630 F.3d 102, 121–29 (2d Cir. 2010) (contrasting probable

9 cause requirements for criminal and national security surveillance and recognizing flexibility

10 of Constitution’s warrant requirement, such that different probable cause standards may be

11 compatible with Fourth Amendment in light of different purposes and practical

12 considerations at issue). Indeed, plaintiffs do not dispute that a “may be found” requirement

13 is consistent with the purpose being pursued, which in the case of a § 1034(2) entry is not

14 prosecutorial but protective, i.e., promptly to locate and assist an at-risk child. See generally

15 Nicholson v. Scoppetta, 344 F.3d 154, 158 (2d Cir. 2003) (“Few matters are closer to the

16 core of a State’s essential function than the protection of its children against those who

17 would, intentionally or not, do them harm.”). Thus, while an entry into a criminal target’s

18 home to execute a warrant for his arrest requires a reasonable belief that the suspect “is

19 within,” Payton v. New York, 445 U.S. 573, 603 (1980); see United States v. Lauter, 57 F.3d

20 212, 214 (2d Cir. 1995), an entry into premises to locate a neglected or abused child requires

21 a probability only that the child “may be found” on those premises.

10

1 In identifying the places where a neglected or abused child “may be found,” this court

2 should clarify that there is always probable cause to think that a child may be found at her

3 legal residence, i.e., the residence of her custodial parent, at least absent conclusive evidence

4 to the contrary. Indeed, it is the first place that any “reasonable and prudent” person would

5 look for a child. Illinois v. Gates, 462 U.S. at 231.

6 The addition of the omitted information to Woo’s affidavit warrants no different

7 conclusion. School reports that Ciara Manning might be staying some place other than her

8 legal residence referenced, at most, a possibility, which is not enough to defeat the

9 probability that the child nevertheless “may be found” at her residence. Cf. United States v.

10 Fama, 758 F.2d 834, 838 (2d Cir. 1985) (holding that possible “innocent explanation” for

11 facts alleged “does not negate probable cause” to infer criminality from those facts). As for

12 Southerland’s characterization of his daughter as a runaway, the law does not require that

13 such a statement be credited. See generally Robison v. Via, 821 F.2d 913, 922 (2d Cir. 1987)

14 (stating that officials need not defer action merely because parent protests innocence or

15 promises future protection if evidence indicates parent’s past unwillingness or inability to

16 assure child’s safety and well-being). Any different conclusion would yield the perverse

17 result of an abusive parent having only to deny a child’s presence on the premises to preclude

18 a caseworker from obtaining or executing a warrant to investigate reports of abuse. Precisely

19 to avoid the risk that any such argument could be derived from the panel opinion, the court

20 needs to clarify en banc that there is always probable cause to think that an at-risk child “may

21 be found” at the residence of her custodial parent absent conclusive evidence that she is in

11

1 fact somewhere else.3

2 With that understanding of the law, a corrected affidavit in this case “discloses no

3 genuine dispute” as to the existence of probable cause to enter the Southerland home to look

4 for the identified neglected child, Ciara Manning. Walczyk v. Rio, 496 F.3d at 158

5 (emphasis in original). In any event, because five judges of this court hold that view of the

6 law, the panel can hardly maintain that no “officer[] of reasonable competence” could have

7 reached the same conclusion. Malley v. Briggs, 475 U.S. at 341; Walczyk v. Rio, 496 F.3d

8 at 154 (collecting cases). Thus, Woo is plainly entitled to qualified immunity from plaintiffs’

9 Fourth Amendment illegal entry claims.4

3

1 The panel suggests that Woo’s deposition testimony indicates that, at the time he

2 entered the Southerland home, he himself did not think Ciara Manning would be found on

3 the premises. See Southerland v. City of N.Y., 2012 WL 1662981, at *16. First, the panel

4 makes this observation only in explaining why a jury could find that Woo’s purported

5 misstatements and omissions were knowing and reckless. See id. at *15. That subjective

6 inquiry should not be confused with the objective inquiry into whether a corrected affidavit

7 would have supported probable cause. Indeed, because probable cause is an objective

8 standard, its existence can neither be established nor undermined by the subjective beliefs

9 of a particular officer. See Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 139 (2d Cir.

10 2010).

11 Second, even as a matter of Woo’s subjective belief, the deposition exchange does not

12 support a reasonable inference that Woo knew for a fact that Ciara Manning would not be

13 found in the Southerland home. Nothing in the record indicates that when Woo entered the

14 Southerland home he knew anything more about Ciara Manning’s whereabouts than what

15 school officials or Southerland had told him, i.e., that Ciara might be living elsewhere or

16 have run away. For the reasons stated in text, such statements are insufficient to defeat the

17 probability that an at-risk child whose exact whereabouts are unknown nevertheless “may

18 be found” at her legal residence.

4

1 Indeed, a reasonable caseworker could well have concluded that the facts in a

2 corrected affidavit established a probability that other abused or neglected children “may be

3 found” on the Southerland premises. It is undisputed that other children were then residing

4 in the Southerland home. The affidavit’s misstatement of their names—using the names of

12

1 3. Removal of the Southerland Children: Due Process and Unreasonable Seizure Claims

2 The panel concludes that at the time of the challenged removal, it was clearly

3 established under both the Due Process Clause and the Fourth Amendment that, absent

4 exigent circumstances, Woo could not remove the Southerland children from their father’s

5 home without a court removal order. See Southerland v. City of N.Y., 2012 WL 1662981,

6 at *18. To the extent the right at stake is procedural due process, the panel references dual

7 underlying liberty interests, one, by parents, “‘in the care, custody and management of their

8 children,’” id. at *10 (quoting Tenenbaum v. Williams, 193 F.3d at 593); and the other, by

9 children, “‘in not being dislocated from the emotional attachments that derive from the

10 intimacy of daily family association,’” id. (quoting Kia P. v. McIntyre, 667 F.3d at 759).

11 The problem with the panel’s due process analysis, as I noted at the outset of this

12 opinion, is that it derives entirely from cases in which the challenged intrusion into family

1 Ciara Manning’s step-siblings residing with her mother rather than the names of her step-

2 siblings residing with Southerland, see Southerland v. City of N.Y., 2012 WL 1662981, at

3 *13—is immaterial to that essential fact. Further, those children shared the same custodial

4 residence as Ciara, a child who had expressed thoughts of suicide, swallowed a can of paint

5 at school, and purportedly run away from home. This is sufficient to permit a reasonable

6 caseworker to think that something was amiss in the Southerland home that could affect any

7 child living there. Add to these facts the custodial father’s “fail[ure] to follow through w[ith]

8 mental health referrals” for the suicidal child, id. at *2 (quoting Child Protective Services

9 intake report), and his apparent ignorance as to that child’s whereabouts, and the probability

10 increases that what is amiss is indicative of parental neglect (if not yet abuse) that would

11 extend to any child in the father’s care. In such circumstances, even if Southerland had not

12 expressly “refused” Woo entry into the home, id. at *4 n.5, Southerland’s purported inability

13 to identify a convenient time for a home visit would reasonably be viewed as stalling,

14 reinforcing the probability that other children who were neglected—or worse—would be

15 found in his home. I do not pursue the point further, however, because my main concern

16 with the panel decision pertains to its determination that a corrected affidavit failed to state

17 probable cause to believe that Ciara Manning “may be found” in the Southerland home.

13

1 liberty was based on suspicions of abuse or neglect that were eventually shown to be

2 unfounded, see Kia P. v. McIntyre, 235 F.3d at 71; Tenenbaum v. Williams, 193 F.3d at 587;

3 Hurlman v. Rice, 927 F.2d at 76, or at least were never confirmed in a state judicial

4 proceeding, see Duchesne v. Sugarman, 566 F.2d at 823. In each of these cases, parents and

5 children who had maintained a recognizable family bond were allowed to sue for intrusions

6 that allegedly violated their procedural due process rights. The panel cites to no case,

7 however, in which an adjudicated abusive parent, or the children he abused, have been

8 permitted to pursue claims that officials who stopped the abuse did so in violation of

9 procedural due process.5 Nor does the panel explain why the cited precedent should apply

10 equally in such circumstances. In fact, it should not.

11 When, as here, a state court adjudicates a parent to have been so abusive of his

12 children as to deny him further custody, it effectively finds that the parent, by his abuse, has

13 himself severed the familial bond that was the source of any liberty interest for which he and

14 his children might claim procedural due process rights. Thus, it is not the Family Court’s

15 abuse determination that extinguished any liberty interest these plaintiffs may once have

16 derived from a common family bond but, rather, Southerland’s actual abuse that did so. For

5

1 In Nicholson v. Scoppetta, 344 F.3d 154, the class of plaintiffs raising a due process

2 challenge to the ex parte removal of children from the custody of a battered parent was broad

3 enough to include parents challenging removals approved by New York courts, see id. at 162

4 n.4. This court did not need to reach, let alone decide, whether such parents could maintain

5 a due process action because, on certified questions, the New York Court of Appeals

6 effectively resolved the case favorably to plaintiffs through its interpretation of the term

7 “neglected child” in New York Family Court Act § 1012(f), (h). See Nicholson v. Scoppetta,

8 3 N.Y.3d 357, 367–72, 787 N.Y.S.2d 196, 200–03 (2004).

14

1 this reason, I would conclude that an adjudicated abusive parent, such as Southerland, cannot

2 sue the caseworker who rescued children from further abuse on either substantive or

3 procedural due process grounds. To hold otherwise would imply that an abusive parent, or

4 abused children, have a liberty interest in continued abuse.6

5 The conclusion here urged would foreclose due process removal claims against child

6 welfare workers in only a small category of cases: those in which a parent has been

7 adjudicated so abusive or neglectful as to be denied custody. The conclusion finds an

8 analogy in our precedent holding that criminal defendants, once convicted, will not be heard

9 to challenge whether their arrest was supported by probable cause to believe they had

10 committed the crime of conviction. See Cameron v. Fogarty, 806 F.2d at 388–89. A number

11 of our sister circuits have similarly ruled, citing favorably to Cameron. See Howard v.

12 Dickerson, 34 F.3d 978, 981 n.2 (10th Cir. 1994); Hoffman v. Moss, 929 F.2d 692 (Table),

13 1991 WL 41503, at *1 (4th Cir. 1991) (unpublished opinion); Malady v. Crunk, 902 F.2d 10,

14 11 (8th Cir. 1990); Walker v. Schaeffer, 854 F.2d 138, 143 (6th Cir. 1988); see also King v.

15 Goldsmith, 897 F.2d 885, 886 (7th Cir. 1990) (assuming, without deciding, that Cameron

16 was correctly decided). But see Rose v. Bartle, 871 F.2d 331, 351 (3d Cir. 1989) (noting, in

17 dictum, doubts as to “policy determinations underlying Cameron”); Brumfield v. Jones, 849

18 F.2d 152, 155 n.4 (5th Cir. 1988) (noting, without resolving, possible tension between

19 Cameron and Brown v. Edwards, 721 F.2d 1442, 1447–48 & n.8 (5th Cir. 1984)).

6

1 The panel recognizes an open legal question as to whether an abusive parent or

2 abused child can pursue a substantive due process claim under such circumstances. See

3 Southerland v. City of N.Y., 2012 WL 1662981, at *6 n.9.

15

1 Cameron itself derived from City of Newport v. Fact Concerts, Inc., 453 U.S. 247

2 (1981), in which the Supreme Court recognized that Congress, in enacting § 1983,

3 “expressed no intention to do away with the immunities afforded state officials at common

4 law.” Id. at 258; see Filarsky v. Delia, 132 S. Ct. at 1661–62. The common law—with

5 common sense—had long recognized that once guilt is proved, “the injury” to a defendant’s

6 personal liberty “caused solely by prematurity of arrest is, of itself, insubstantial,” and

7 therefore not legally cognizable. Cameron v. Fogarty, 806 F.2d at 388.

8 Common law had no occasion to apply this principle to child removal proceedings,

9 a legal innovation arising largely in the nineteenth century. See Naomi Cahn, Perfect

10 Substitutes or the Real Thing?, 52 Duke L.J. 1077, 1090–91 (2003) (dating state removal of

11 abused and neglected children in the United States to late nineteenth century); Developments

12 in the Law: The Constitution and the Family, 93 Harv. L. Rev. 1156, 1221–22 (1980)

13 (recognizing that by early nineteenth century, some English chancery courts exercised parens

14 patriae power to remove children from custody of abusive or neglectful parents).

15 Nevertheless, Cameron’s reasoning and the common law defense of conviction apply with

16 equal force to child custody determinations. Once a parent is found guilty of abuse and

17 neglect serious enough to warrant a court denial of custody, any “injury caused solely by

18 prematurity of [the removal of his children] is, of itself, insubstantial.” Cameron v. Fogarty,

19 806 F.2d at 388.7

7

1 Cameron further reasoned that the availability of the exclusionary rule in criminal

2 proceedings “lessens the need for § 1983 actions as a deterrent to the making of arrests on

3 less than probable cause.” Cameron v. Fogarty, 806 F.2d at 388. Although the exclusionary

16

1 Indeed, the injury of premature removal to an abusive parent may be less substantial

2 than the injury of premature arrest to a convicted felon. While a felon’s interest in his own

3 liberty is exclusive to himself, a parent’s liberty interest in a family relationship is shared

4 with his children and based on an expectation of parental care, not abuse. Thus, an

5 adjudicated abusive parent’s claimed liberty interest in continuing an abusive relationship

6 with his children is certainly de minimis, if not non-existent. The same conclusion obtains

7 with respect to abused children claiming any liberty interest in remaining in what has been

8 adjudicated to have been an abusive relationship.

9 This ground for affirming the district court’s grant of summary judgment on plaintiffs’

10 due process claim would extend Cameron, a matter that merits careful consideration. But it

11 would be far worse to conclude, as the panel does without any consideration of Cameron’s

12 reasoning, that adjudicated abusive parents and the children they abused can maintain

13 constitutional claims against child welfare workers for prematurely stopping the abuse.

14 Although defendants themselves did not raise a Cameron-based objection to suit, a court may

15 affirm summary judgment for any reason supported in the record. See Lee v. Kemna, 534

16 U.S. 362, 391 (2002) (“[I]t is well settled that an appellate tribunal may affirm a trial court’s

17 judgment on any ground supported by the record.”); 10 Ellicott Square Court Corp. v.

1 rule appears not to be available in New York child removal proceedings, see In re Diane P.,

2 110 A.D.2d 354, 356, 494 N.Y.S.2d 881, 883 (2d Dep’t 1985), it was also not available in

3 proceedings at common law, see United States v. Blue, 384 U.S. 251, 255 (1966) (noting that

4 “general common-law practice [wa]s to admit evidence despite its illegal origins”). If the

5 deterrent effect of the exclusionary rule in criminal proceedings did not inform the

6 development of the common law defense of conviction, it would surely be irrelevant to child

7 custody proceedings.

17

1 Mountain Valley Indem. Co., 634 F.3d 112, 125 (2d Cir. 2011). Such an affirmance is

2 particularly warranted where the challenged judgment is based on qualified immunity, the

3 very purpose of which is to “permit the defeat of insubstantial claims without resort to trial.”

4 Harlow v. Fitzgerald, 457 U.S. at 813; accord Jenkins v. City of N.Y., 478 F.3d 76, 87 n.9

5 (2d Cir. 2007).

6 No different conclusion should obtain because the Southerland children also cast their

7 removal as an unreasonable seizure under the Fourth Amendment. The panel assumes that

8 the children could persuade a reasonable jury that it was constitutionally unreasonable for

9 Woo to remove them from the Southerland home without a court order in the absence of

10 evidence that they were in imminent danger of harm on those premises. See Southerland v.

11 City of N.Y., 2012 WL 1662981, at *28.8 But once the Family Court, after a full trial,

12 determined that the children were at risk of such harm in their father’s custody, thereby

13 precluding their return, any Fourth Amendment injury “caused solely by prematurity of [the

14 removal] is, of itself, insubstantial” and, therefore, should not be recognized at law. Cameron

15 v. Fogarty, 806 F.2d at 388. In short, once a home environment is adjudicated to have been

16 abusive, no responsible society would accept as objectively reasonable children’s claims that

17 they had a cognizable constitutional right not to be prematurely removed from the premises.

18 Cf. California v. Greenwood, 486 U.S. 35, 39 (1988) (collecting cases recognizing that

8

1 In 1999, i.e., after the removal here at issue, this court clarified that the imminent

2 danger standard was not satisfied if there was “reasonable time consistent with the safety of

3 the child to obtain a judicial order” before effecting the removal. Tenenbaum v. Williams,

4 193 F.3d at 596.

18

1 Fourth Amendment protects only subjective expectations of privacy that “society accepts as

2 objectively reasonable”).

3 Even if plaintiffs could state a cognizable constitutional claim under either the Fourth

4 or Fourteenth Amendment with respect to the children’s removal—which they cannot—the

5 qualified immunity question would not be whether a reasonable jury could conclude that the

6 children were not at imminent risk of harm but, rather, whether a reasonable caseworker in

7 Woo’s position could have concluded that they were. See Messerschmidt v. Millender, 132

8 S. Ct. at 1246; Malley v. Briggs, 475 U.S. at 341; Walczyk v. Rio, 496 F.3d at 154 (requiring

9 assessment of qualified immunity in “particular factual context” rather than in abstract).

10 Even setting aside the considerable evidence of neglect that Woo says he confronted upon

11 entering the Southerland home and that Southerland disputes, see Southerland v. City of

12 N.Y., 2012 WL 1662981, at *4, some caseworkers of reasonable competence could conclude

13 from the otherwise undisputed evidence that one or more of the Southerland children were

14 at risk of imminent harm in their father’s custody.

15 As already noted, before entering Southerland’s home, caseworkers knew from school

16 counselors that one of Southerland’s children, Ciara, had expressed thoughts of suicide and

17 engaged in self-destructive behavior. Whatever the source of Ciara’s troubles, Southerland

18 had not secured care for her and was, in fact, dismissive of her need for care. See id. at 9.

19 To the extent Southerland sought to excuse his neglect by claiming that Ciara had left home,

20 this cannot alter the fact that caseworkers were looking for an at-risk child who was in

21 Southerland’s legal custody. That the custodial parent purported not to know the

19

1 whereabouts of such a child would heighten, not minimize, a reasonable caseworker’s

2 concern as to Southerland’s ability to care for children in his custody. That concern would

3 be magnified, moreover, when, upon entry into the Southerland home, caseworkers found

4 a child on the premises, nine-year-old Venus Southerland, with an untreated puncture wound

5 to her foot from stepping on a nail, and saw no sign that Southerland planned to secure the

6 treatment necessary to protect the child against tetanus. See Ex. D to Silverberg Decl. at 6,

7 ECF No. 168-7. In these circumstances, and in the absence of clearly established law to the

8 contrary, reasonable caseworkers could certainly have viewed Venus as facing imminent

9 serious harm if she was not removed from the premises and promptly afforded medical care.

10 See Messerschmidt v. Millender, 132 S. Ct. at 1245; Malley v. Briggs, 475 U.S. at 341.

11 Thus, Woo is at a minimum entitled to qualified immunity for removing Venus from

12 Southerland’s home.

13 As for Woo’s removal of the other Southerland children, this court appears never to

14 have ruled as to whether the risk of imminent harm required to effect a warrantless removal

15 is child-specific. We have provided no guidance to a caseworker who discovers one injured,

16 malnourished, or severely beaten child in need of immediate care as to whether (1) he can

17 effect a warrantless removal of all children found in the same household, or (2) he can

18 remove only the one child and must leave other children behind. Tenenbaum might be

19 understood to instruct caseworkers not to attempt to make such decisions if there is time to

20 seek judicial authorization. See Tenenbaum v. Williams, 193 F.3d at 596. But Tenenbaum

21 was not decided at the time of the removal at issue and, even now, it does not tell

20

1 caseworkers who do not have time to secure judicial authorization what removal decisions

2 will be lawful and unlawful with respect to the removal of a number of children when a risk

3 of imminent harm has been identified as to one.

4 Thus, in June 1997, when Woo removed the Southerland children from their father’s

5 home, it was possible for “officers of reasonable competence” to “disagree” as to whether

6 the discovery that Venus Southerland was at risk of serious imminent harm unless removed

7 for prompt medical treatment sufficed to support the warrantless removal of all children in

8 Southerland’s home. Malley v. Briggs, 475 U.S. at 341; see Walcyzk v. Rio, 496 F.3d at

9 154. In the face of such possible reasonable disagreement—that is, in the absence of a

10 clearly established statutory or constitutional rule of which a reasonable caseworker would

11 have been aware, see Harlow v. Fitzgerald, 457 U.S. at 818—Woo is entitled to qualified

12 immunity even from cognizable claims.

13 This is, however, a secondary point. For the reasons stated, the court should conclude

14 that plaintiffs state no cognizable due process or Fourth Amendment claims in connection

15 with the challenged removal. By analogy to Cameron v. Fogarty, 806 F.2d at 388–89, the

16 court should rule that an adjudicated abusive father and the children he abused cannot seek

17 damages from a child welfare worker for prematurely removing the children from the abusive

18 home.

19 ***

20 By refusing to convene en banc, a majority of this court, no less than the panel itself,

21 tells a child welfare worker that he may have to pay money damages to an adjudicated

21

1 abusive father for rescuing children from his abusive custody. Further, the court tells the

2 worker that he may also have to pay damages to the abused children he rescued on some

3 theory that the caseworker did not yet appreciate that the circumstances were

4 exigent—though, in fact, they were. Such possible judgments are exactly what the doctrine

5 of qualified immunity is intended to protect against.

6 Rather than allow this case to go forward, this court should clarify two principles of

7 law: (1) there is always probable cause to look for an at-risk child in the home of his or her

8 custodial parent, at least absent conclusive evidence to the contrary; and (2) once a parent has

9 been adjudicated to have so abused and neglected his children as to be denied custody,

10 neither the adjudicated abusive parent nor the children he abused can sue the caseworker who

11 effected the initial removal for money damages based on due process or Fourth Amendment

12 claims that the removal was premature. With these principles clarified, there is no question

13 that the defendant caseworker, Timothy Woo, is entitled to summary judgment on the ground

14 of qualified immunity. Accordingly, I respectfully disagree with the panel decision to

15 reverse the award of summary judgment in this case, and I dissent from the court’s decision

16 not to review that reversal en banc.

17

18

19

22

1 DENNIS JACOBS, Chief Judge, with whom Judge CABRANES, Judge

2 RAGGI, Judge WESLEY, and Judge LIVINGSTON join, dissenting

3 from the denial of rehearing in banc:

4 I concur entirely in Judge Raggi’s dissenting opinion.

5 I dissent separately to make some additional points.

6

7 I

8 Under Section 1983, personal liability may not be

9 imposed on a government actor unless [1] his conduct

10 violated “clearly established constitutional rights” and [2]

11 it would have been unreasonable for him to have believed

12 otherwise. Holcomb v. Lykens, 337 F.3d 217, 220 (2d Cir.

13 2003) (quoting Weyant v. Okst, 101 F.3d 845, 857 (2d Cir.

14 1996)). Liability is precluded if government actors “of

15 reasonable competence could disagree on the legality of the

16 action at issue in its particular factual context.”

17 Manganiello v. City of N.Y., 612 F.3d 149, 165 (2d Cir.

18 2010) (internal quotation mark omitted). “When properly

19 applied, [qualified immunity] protects all but the plainly

20 incompetent or those who knowingly violate the law.”

21 Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (internal

22 quotation marks omitted).

1

1 It is easy to demonstrate that the panel opinion has

2 jumped the rails. Not only could other reasonably competent

3 child welfare workers conclude (as Mr. Woo did) that the

4 Southerland household constituted an “emergency,” but Mr.

5 Woo’s supervisor reached that very conclusion in this very

6 instance. See Southerland v. City of N.Y., Nos. 07-4449-cv

7 (L), 07-4450-cv (CON), 2012 WL 1662981, at *4 (2d Cir. May

8 14, 2012) (recounting that Mr. Woo applied for an order to

9 enter the Southerland apartment “at the direction of [his]

10 supervisor” and that, based on Mr. Woo’s observations inside

11 the apartment, “[Mr.] Woo and his supervisor concluded that

12 the children’s safety was threatened, and [Mr. Woo’s

13 supervisor] directed [Mr.] Woo to remove the children from

14 the home”); see also Messerschmidt v. Millender, 132 S. Ct.

15 1235, 1250 (2012) (that an officer obtained the approval of

16 a superior before applying for a warrant “is certainly

17 pertinent in assessing whether [he] could have held a

18 reasonable belief that the warrant was supported by probable

19 cause”). And the Family Court would not have taken the

20 children from Southerland unless a hearing confirmed Mr.

21 Woo’s professional judgment that the conditions created by

22 Southerland were unsafe for children. See In re Ciara M.,

2

1 708 N.Y.S.2d 717, 719 (App. Div. 2d Dep’t) (affirming the

2 Family Court’s finding that Southerland sexually and

3 physically abused his children), leave to appeal denied, 95

4 N.Y.2d 767 (2000). These circumstances should have disposed

5 of this case years ago on a basis that would require no

6 opinion.

7

8 II

9 The State of New York deemed Southerland unfit to keep

10 custody of his children by reason of his neglect, beatings

11 and sexual abuse. Yet, in a way that seems unaccountable,

12 the panel opinion allows him to seek damages for loss of

13 consortium against the child welfare worker who temporarily

14 removed the children from his home. And it allows the

15 abused children to sue their rescuer for allegedly effecting

16 the rescue prematurely. Our legal system cannot afford such

17 a result. In my view, Mr. Woo conducted himself as a

18 reasonable and conscientious child services worker.

19 Fourth Amendment. The panel concludes that Mr. Woo is

20 not entitled even to qualified immunity on the plaintiffs’

21 Fourth Amendment unlawful search claims, on the ground that

22 errors and omissions in his affidavit for an Order

3

1 Authorizing Entry to Southerland’s apartment would, if

2 corrected, have defeated probable cause. The panel finds

3 fault with Mr. Woo’s affidavit because: [1] information is

4 omitted suggesting that Ciara (a daughter who drank a can of

5 paint and later complained of molestation by her father)

6 might not be found at Southerland’s apartment because she

7 was said to have run away; [2] Ciara’s swallowing of a can

8 of paint was characterized as a suicide attempt; [3] no

9 mention is made that Ciara swallowed the paint at school

10 (rather than in Southerland’s apartment); and [4] the

11 children listed were the six children living with

12 Southerland’s former “common-law wife,” Diane Manning, not

13 the six children living with Southerland. See Southerland,

14 2012 WL 1662981, at *13-14, *16.

15 I find it uncontroversial (to say the least) that a

16 child welfare worker has probable cause to believe that a

17 child may be found on the premises of the residence of her

18 custodial parent. Moreover, Southerland himself would be

19 the ultimate source for any report that Ciara had “run

20 away.” Even if Mr. Woo believed Southerland’s report that

21 Ciara had run away, he still would have had cause to believe

22 that she might be found in Southerland’s apartment--she

4

1 could have returned home, or been returned, or her father

2 may have lied, and she might have been there all along

3 enduring his sexual abuse. Mr. Woo cannot be faulted for

4 starting his investigation of child abuse at the child’s

5 legal residence. And one must hope that child abusers do

6 not learn that probable cause for a warrant can be defeated

7 by a parent’s assurance that his abused child is no longer

8 residing at home.

9 As to the affidavit’s characterization of Ciara’s paint

10 swallowing, it seems obvious that this was a suicide

11 attempt, or at least an ideation of suicide that required

12 prompt intervention. That is how it was understood by the

13 guidance counselor who reported the incident. See id. at

14 *3. It makes no difference whether the incident took place

15 at school or at Southerland’s apartment; either way,

16 Southerland’s failure to seek medical attention for his

17 daughter bespeaks neglect.

18 The panel criticizes Mr. Woo for listing the wrong

19 children’s names on the application, as if this were an

20 obvious and decisive blunder. Given that there are at least

21 thirteen children and five adults in this decidedly

22 improvised family structure, such an error cannot render the

5

1 affidavit fatally defective. Regardless of the children’s

2 names, Mr. Woo’s application accurately conveyed the basis

3 for his reasonable belief that probable cause existed to

4 think that children in Southerland’s apartment were being

5 neglected--as in fact they were. Because there is no

6 “genuine dispute that a magistrate would have issued the

7 warrant on the basis of the corrected affidavit[],” Mr. Woo

8 was entitled to judgment as a matter of law. Walczyk v.

9 Rio, 496 F.3d 139, 158 (2d Cir. 2007) (internal quotation

10 mark omitted).

11 Even if the supposed errors in Mr. Woo’s affidavit were

12 essential to the finding of probable cause--and they plainly

13 were not--there is no basis for thinking that any of the

14 errors were made out of malice or recklessness, as opposed

15 to justified haste. Mr. Woo is entitled to qualified

16 immunity on that basis alone. See Golino v. City of New

17 Haven, 950 F.2d 864, 870-71 (2d Cir. 1991) (to sustain a

18 Section 1983 claim based on errors in a warrant affidavit, a

19 plaintiff must show “that the affiant knowingly and

20 intentionally, or with reckless disregard for the truth,

21 made a false statement in his affidavit and that the

22 allegedly false statement was necessary to the finding of

6

1 probable cause” (internal quotation mark omitted)).

2 Plaintiffs never alleged malice, and there is no such record

3 evidence.1 Absent some such evidence, there can be no

4 genuine issue of material fact necessitating a trial on

5 plaintiffs’ claims of unlawful search.

6 Due Process and Seizure. As to the claims of

7 procedural due process and Fourth Amendment unlawful

8 seizure, the panel holds that, at the time the children were

9 removed, it was clearly established law that officials could

10 not remove a child from the custody of a parent (without

11 consent or a prior court order) absent emergency

12 circumstances. Southerland, 2012 WL 1662981, at *18; see

13 also Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991).

14 But Mr. Woo as well as his supervisor (who ordered the

15 removal) concluded that an emergency existed. Based on Mr.

16 Woo’s observations and what he knew, he reasonably perceived

17 a pattern of neglect and abuse. The panel assumes (though I

18 do not) that a reasonable jury would conclude that Mr. Woo--

1

The panel opinion suggests that Mr. Woo’s answer to a

deposition question concerning his reason for entering the

Southerland apartment implies that he knew Ciara Manning

would not be found there. Not so: Mr. Woo explained that

he sought to enter the apartment to look for “[t]he Manning

children,” which obviously includes Ciara. Southerland,

2012 WL 1662981, at *16 (brackets in original).

7

1 who was found in Family Court to have truthfully reported

2 Southerland’s sexual and corporal abuse--is lying about

3 perceived evidence of neglect, whereas Southerland--who was

4 found to have lied in Family Court when he denied the abuse-

5 -is telling the truth about maintaining a home for the

6 children that was tidy, safe, and stocked with nourishing

7 food. But in any event, a pattern of neglect was manifested

8 by facts that cannot be disputed: Southerland’s reported

9 failure to seek medical attention for Ciara after her

10 suicide attempt, or for Venus, whom caseworkers found

11 limping from a foot injury she incurred after stepping on an

12 exposed nail. As the opinion concedes, this Circuit has

13 never “set forth exhaustively the types of factual

14 circumstances that constitute imminent danger justifying

15 emergency removal.” Southerland, 2012 WL 1662981, at *17.

16 That seems to me to be a wise forbearance. But here, where

17 no medical treatment was sought notwithstanding that the

18 Southerland children were at risk for suicide and lockjaw,

19 it was not objectively unreasonable for Mr. Woo to believe

20 that the children were “bereft of adequate care or

21 supervision” and that their removal was therefore justified.

22 Robison v. Via, 821 F.2d 913, 922 (2d Cir. 1987). The

8

1 panel’s contrary decision undermines our precedent, which

2 has “emphasize[d] . . . the importance of the availability

3 of qualified immunity where child welfare workers are

4 seeking to protect children from abuse.” Tenenbaum v.

5 Williams, 193 F.3d 581, 605 (2d Cir. 1999); see also id.

6 (“If caseworkers of reasonable competence could disagree on

7 the legality of a defendant’s actions their behavior is

8 protected.” (internal quotation marks and brackets

9 omitted)).

10

11 III

12 Nothing can account for such an opinion and result

13 except the panel’s tacit assumption that Mr. Woo is merely a

14 nominal defendant, that the City of New York will take on

15 his defense and indemnify him for any judgment, and that

16 litigation like this is not really a claim against the

17 individual but is in effect an instrument for developing

18 ever more ramified constitutional principles and for

19 policing governmental compliance with these constitutional

20 developments. This is an almost-complete misconception of

21 Section 1983 claims against individuals.

22 An individual defendant has at stake his savings, his

9

1 pension, the equity in his home, the kids’ college fund:

2 This should tell us something about the threshold of

3 liability. Properly applied, Section 1983 punishes

4 intentional and egregious violations of constitutional

5 rights while respecting the discretion of government actors,

6 and tolerating their good faith errors and misjudgments.

7 See Defore v. Premore, 86 F.3d 48, 50 (2d Cir. 1996) (per

8 curiam) (discussing the “importance of the defense of

9 qualified immunity to insure that publicly employed

10 caseworkers have adequate latitude to exercise their

11 professional judgment in matters of child welfare”).

12 The drift of the law that has carried this case along

13 has been to ignore the standard appropriate to liability of

14 individuals, and to assume that a Section 1983 action is in

15 effect a suit not against the individual defendant but

16 against the government subdivision that employs him. This

17 buried assumption inheres in other cases; but this case

18 raises it to the surface. There are several things wrong

19 with that approach.

20 ! Municipalities are not liable under Section 1983

21 for the actions of their employees based on respondeat

22 superior; municipalities are liable only if the violation of

10

1 individual rights results from the “government’s policy or

2 custom.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-

3 94 (1978). The idea that the municipality or other state

4 subdivision is the real defendant in a case against the

5 individual is thus an end-run around Monell.

6 ! We have come to treat municipal indemnification

7 like insurance, and in that way discount the harshness of a

8 potential damages award against the individual government

9 worker. Of course, juries are not permitted to consider the

10 availability of insurance in assessing fault. See, e.g.,

11 Fed. R. Evid. 411; Salm v. Moses, 13 N.Y.3d 816, 817 (2009)

12 (memorandum). One reason is the risk that jurors would

13 disregard controlling principles in order to compensate

14 plaintiffs without valid claims and over-compensate those

15 whose claims are valid. See Loughlin v. Brassil, 79 N.E.

16 854, 857 (N.Y. 1907) (observing that “in the case of an

17 individual defendant it might make it much easier to find an

18 adverse verdict if the jury understood that an insurance

19 company would be compelled to pay the verdict”).

20 Universally, juries are insulated from the temptation to

21 distort the law in that way; it would be healthy if we

22 recognized the comparable risk that municipal

11

1 indemnification poses to judicial consideration of Section

2 1983 claims.

3 ! The premise--that a suit against an individual

4 government employee is in substance a suit against his

5 employer--is also wrong. In the City of New York (and

6 doubtless in some other political subdivisions of this

7 Circuit), the government supplies defense counsel and pays

8 the judgment--except in the egregious cases to which alone

9 Section 1983 should apply. But this Circuit includes scores

10 of counties and hundreds of towns and municipalities; and

11 there are thousands of political subdivisions in the nation.

12 Not all of them will indemnify their employees for Section

13 1983 judgments; many cannot even afford to furnish a

14 defense; some can barely keep the school open. Counterparts

15 to Mr. Woo, who are employed elsewhere, face ruin and

16 bankruptcy in Section 1983 cases.

17 ! There is a big gap between the egregious conduct

18 that supports Section 1983 liability and merely imperfect or

19 negligent conduct. Some would fill that gap by an

20 assumption, contrary to fact, that government workers are

21 all constitutional law professors, or at least lawyers--or

22 that they would be improved if they were. Such persons fail

12

1 to understand that child welfare workers, teachers, prison

2 guards, probation officers, and police learn and practice

3 the skills of their own demanding professions, and do not in

4 the usual course absorb lengthy opinions of this Court, not

5 all of which are illuminating.

6 ! The panel’s opinion and the assumptions that

7 animate it have effects that reach beyond Mr. Woo and the

8 City of New York as his employer: There is a substantial

9 and direct impact on public safety. The imposition of

10 personal liability, particularly in jurisdictions where the

11 judgment is not indemnified or insured, creates an incentive

12 for child welfare workers (and other government employees

13 charged with protecting the public) not to act. When the

14 panel opinion in this case is considered together with

15 DeShaney v. Winnebago County Department of Social Services,

16 489 U.S. 189 (1989), holding that state officials have no

17 constitutional duty to protect children against domestic

18 abuse, a perverse incentive is created. A child welfare

19 worker is shielded from liability when she recklessly fails

20 to protect abused children, but she is exposed to personal

21 liability when she acts in good faith to protect them.

22 Faced with these choices, a rational child welfare worker

13

1 will err on the side of caution every time--and children who

2 otherwise would have been rescued from dangerous and abusive

3 situations will live in peril.

4

5 IV

6 We should appreciate that conscientious child welfare

7 workers must promptly make anguished decisions. As judges,

8 we can weigh the legal issues presented and draft at

9 leisure, assisted by a journal of law clerks. Mr. Woo had

10 none of these advantages; and he acted as (one hopes) any

11 dutiful child welfare worker in his position would have

12 done. Not only was Mr. Woo not so “plainly incompetent” as

13 to forfeit the protections of qualified immunity, al-Kidd,

14 131 S. Ct. at 2085 (quoting Malley v. Briggs, 475 U.S. 335,

15 341 (1986)), his judgment that Southerland was abusing or

16 neglecting his children was spot on, and was vindicated by

17 the Family Court’s findings of sexual and physical abuse.

18 The panel would send Mr. Woo to a jury for an

19 assessment of his liability and the damages he should pay.

20 I would shake his hand.

21

14