noting that although the parties did not brief the issue of whether the plaintiff had adequately alleged the violation of a constitutional right, "[w]e are obligated under Saucier ... to address this issue at the outset of our qualified immunity analysis"
How later courts described this case
- noting that although the parties did not brief the issue of whether the plaintiff had adequately alleged the violation of a constitutional right, "[w]e are obligated under Saucier ... to address this issue at the outset of our qualified immunity analysis"
- granting the County defendant summary judgment on plaintiffs’ Monell claim based on the lack of evidence that the failure to train its social workers “deliberately caused a deprivation of [plaintiffs’] constitutional rights”
- “We note that the parties did not brief the issue of whether Herrera’s alleged actions, if proven, violated a constitutional right. We are obligated under Saucier, however, to address this issue at the outset of our qualified immunity analysis.”
- “[C]ase qualified as an “emergency” 22 situation. Under our precedent, Herrera therefore did not violate the Does’ constitutional right to 23 family privacy, George’s right to family association, or Lacey’s Fourth Amendment rights by 24 detaining Lacey until the November 5 hearing.”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Beltran v. Santa Clara County, 514 F.3d 906 (2008)
” Rogers v. Cnty. of San Joaquin, 487 F.3d 1288, 1294 (9th Cir.2007) (emphasis added); see also Doe v. Lebbos, 348 F.3d 820, 826 n. 9 (9th Cir.2003), overruled on other grounds by Beltran v. Santa Clara Cnty., *1194 514 F.3d 906, 909 (9th Cir.2008) (en banc); Wallis, 202 F.3d at 1137 n. 8 (explaining that the claims of children who are taken into custody without a warrant under non-exigent circumstances “should prope…
The opinion
KLEINFELD, Circuit Judge,
dissenting in part:
I concur in all of the majority opinion except part 1(B)(2), qualified immunity for referring the child for an investigatory examination of her private parts. From that part, I respectfully dissent.
I concur in the majority’s conclusion that “on the Does’ version of the facts, Herrera violated the Does’ constitutional rights to family association and procedural due process.” 1 This is so, we are agreed, because a social worker needs parental consent or a court order to obtain an investigative medical examination of the child, in the absence of some urgent medical problem requiring immediate attention or a reasonable concern that material physical evidence may otherwise dissipate. 2 The majority bases qualified immunity on its erroneous conclusion that “Herrera reasonably could have believed that she had the requisite court order authorizing the examination.” 3
That conclusion runs contrary to what Herrera herself said. Herrera testified in her March 1, 2002 deposition that she “did not” obtain a court order before sending the little girl for an examination of her private parts:
Q. So you requested a sexual abuse exam of this child?
A. Yes.
Q. Did you obtain a court order before you did that?
A. No, I did not. 4
Herrera prepared written recommendations for other orders, and the judge at the dependency hearing signed orders dealing with other matters. Herrera never submitted, and the judge never signed, an order for the examination Herrera had forced upon the child. In fact, Herrera did not claim in her declaration, any more than in her deposition, that she thought the judge had ordered an investigatory medical examination. She referred to the judge’s actual orders and then, in a separate paragraph, she referred to the judge’s remarks, not as an order, but rather as an “inquiry ... as to whether Lacey Doe was receiving medical treatment for her vaginal infection.” 5
Could a reasonable social worker have believed that she was carrying out an order for a vaginal examination, even though this particular social worker did not so believe? The majority comes up with this on its own; the brief for the social worker and the county does not make this argument. And the argument seems quite a stretch on the facts of this case. The judge knew how to give orders, and distinguished her orders from her other remarks. Later in the same hearing, the judge said what orders she was making, and did not include an order for an examination. True, the social worker was not there (the agency’s lawyer evidently expected her, responding to the judge’s inquiry about “treatment ... for her vaginal infection” by saying, “I did intend to ask the social worker that this morning. She was not here, and I did not get the opportunity to call her....”). 6 The majority creates and then indulges a speculation that, told of the judge’s inquiry, the social *833 worker could have inferred that she had an order. That speculation is unsupported by any such claim from the social worker or the agency attorney at the hearing or in the brief. Also, between the time of the police report and the examination, this case was brought into court on another issue, so there was plenty of time to obtain judicial approval. Yet it was not sought.
Lacey never did get “treatment ... for her vaginal infection,” which the judge had inquired about. Fortunately, she did not have a vaginal infection — this was misinformation from Betsy Lebbos. In any event, the social worker did not send her to a doctor for treatment. The social worker sent her for a sex abuse examination by a physician’s assistant, not for medical treatment by a medical doctor:
Q. What did you make the arrangements for?
A. I had a SART exam completed.
Q. So you requested a sexual abuse exam of this child?
A. Yes. 7
The term “SART” means Sexual Assault Response Team. The physician’s assistant’s report likewise says that the referral was “for evaluation of concerns of possible child sexual abuse,” 8 not for diagnosis and treatment of a vaginal infection. The very long delay, from November 2, when the child was whisked away from her father with an allegation of vaginal infection, to November 10, when she was presented to the physician’s assistant (five days after the judge’s expressed concern for the child’s health), is plainly inconsistent with any concern by the social worker for her health. The physician’s assistant made the little girl display herself in “the supine frog leg position” and “the prone knee-chest position,” and she took magnified photographs of the child’s private parts. She found no evidence of penetration. 9
Of course the Wallis rule would allow, and common sense would require, that the social worker send the little girl for a medical examination without awaiting a court order if there were an “urgent medical problem,” such as to “require[ ] immediate attention.” 10 In this case, there is no way that the social worker could be covered by that exception. The social worker did not treat Lacey as having an “urgent” problem requiring “immediate” attention. Lacey was not examined until November 10, eight days after the police report indicated an accusation of a vaginal infection, and five days after a judge specifically inquired about it. None of us would wait that long on our own “urgent medical problem[s]” requiring “immediate attention.” Lacey’s examination plainly did not satisfy this standard from Wallis.
Overzealousness by government agents taking children away from their parents can have (and in this case apparently did have) devastating consequences, consequences not ameliorated in the slightest by self-righteous confidence of government agents sure that they are doing good. We do children no good by overindulging government agents who take them away from their families with immunity beyond what the facts and the law justify. As we said in Calabretta v. Floyd, “[t]he government’s interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children’s interest in ... the lawfully exercised authority of their parents.” 11
*834 Lacey was taken away from her father on the basis of “lack of food, clothing, shelter and medical care inadequate,” and an accusation of suspected sexual abuse. 12 These accusations came from Betsy Leb-bos. Lebbos’s written statement explained what she meant by lack of food: when she got fast food on the way home from shopping, “Lacey did not eat her hamburger or any food”; the next morning she refused to eat her cereal; her father said she would not eat fruits and vegetables. 13 The concern for lack of clothes was that Lacey arrived from Miami with only summer clothes, and Betsy Lebbos disapproved of her father’s letting his child sleep in the same pair of pajamas every night. 14 The October 31 incident that triggered Lebbos’s call to the state and all the subsequent events of this case was that Lebbos “purchased Lacey a beautiful $15.00 princess dress,” yet her father took her from Lebbos’s house and did not put her in her princess dress for Halloween. 15 According to the social-service intake form, Lebbos then held Lacey’s father’s things hostage to get custody of the little girl: “As per officer, Betsy Lebbos has appeared irate and irrational, saying she wouldn’t give dad his clothes unless he gave child to her. Officer is concerned that Betsy Lebbos is attempting to gain custody of child.” 16
The agency screener characterized this supposedly neglected child, a few hours after being whisked away, as “friendly and cooperative.... She appeared to enjoy watching cartoons and playing with toys, exhibited curiosity about her surrounding. She displayed no anxiety to be among strangers and ate a sandwich, chips and cookies hungrily.” 17 Those who took Lacey away left behind her glasses. Her father brought them to court and asked that they be delivered to her. The bureaucracy, it appears, focused on her genitals, not on her eyes, despite her obvious amblyopia. The physician’s assistant who did the sex abuse examination and photography likewise characterized Lacey upon arrival at her office as a “pleasant, cooperative preschool female in no acute distress,” normal in height, weight, and other respects. 18
After being bounced around in the agency and foster-parent bureaucracy for over a year, Lacey was quite a different little girl. She was “diagnosed with Post Traumatic Stress Disorder, hearing voices, and suicidal ideation.” 19 She was put on anti-psychotic medication. She had taken to smearing feces and to other abnormal and highly disruptive behavior. Though Lacey had' somehow held her personality together through her mother’s death, her father’s lack of financial success, and the move back to California, what the county did to her to “protect” her apparently destroyed her. Something in this experience, perhaps being ripped away from her father for whom she consistently expressed love during the whole miserable period, perhaps having strangers strip her and search her heretofore private parts, perhaps being put with caretakers instead of her father, amounted to a trauma that was too much for her.
*835 On these facts, the majority grants Herrera qualified immunity; it calls what she did a “reasonable” mistake. Instead, we should remember Justice Brandeis’s warning and remand this case for trial:
Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men bom to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. 20
. Maj. Op. at 829.
. Wallis v. Spencer, 202 F.3d 1126, 1141 (9th Cir.2000).
. Maj. Op. at 829.
. E.R. at 319-20.
. Id. at 49-50.
.Id. at 99.
. Id. at 319.
. Id. at 119.
. Id. at 119-20.
. Wallis, 202 F.3d at 1141 .
. Calabretta v. Floyd, 189 F.3d 808, 820 (9th Cir.1999).
. E.R. at 58.
. Id. at 213.
. Id. ("To make your daughter sleep in the same pair of pajamas every night is neglect.”).
. Id. at 217.
. Id. at 207.
. Id. at 227-28.
. Id. at 120.
. Id. at 107.
. Olmstead v. United States, 277 U.S. 438, 479 , 48 S.Ct. 564 , 72 L.Ed. 944 (1928) (Brandeis, J., dissenting).