Rachel Scanlon v. County of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RACHEL SCANLON; STEVEN No. 21-55999

SAWYER, individually and as

Guardian Ad Litem for K.X. and G.X.; D.C. No.

K. X., a minor; G. X., a minor, 2:18-cv-07759-

CBM-AS

Plaintiffs-Appellants,

v. OPINION

COUNTY OF LOS ANGELES;

LOURDES OLARTE; MARISOL

GONZALEZ; ANGELA

HASHIZUME,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted June 15, 2023

Pasadena, California

Filed February 2, 2024

2 SCANLON V. COUNTY OF LOS ANGELES

Before: Jay S. Bybee and Morgan Christen, Circuit Judges,

and Eric N. Vitaliano, * District Judge.

Opinion by Judge Bybee

SUMMARY **

Social Worker Immunity

The panel affirmed in part and reversed in part the

district court’s judgment in favor of the Department of Child

and Family Services of the County of Los Angeles and

individual social workers in a 42 U.S.C. § 1983 action

arising when social workers removed minor children K.X.

and G.X. from their parents’ custody following an

anonymous report that the parents were using medical

marijuana therapy to treat K.X.’s severe autism.

The panel reversed the district court’s summary

judgment for defendants on the parents’ judicial deception

claims. The panel concluded that defendants’ application

filed in support of the warrant of removal contained

misrepresentations and omissions of fact and that a

reasonable trier of fact could find the misrepresentations

material. Defendants were not entitled to qualified

*

The Honorable Eric N. Vitaliano, United States District Judge for the

Eastern District of New York, sitting by designation.

**

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

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

SCANLON V. COUNTY OF LOS ANGELES 3

immunity because the right to be free from judicial deception

was clearly established.

The panel affirmed the district court’s judgment on the

pleadings for defendants on the parents’ Fourth Amendment

claim concerning social worker Lourdes Olarte’s interview

of G.X. at her school. Lourdes was entitled to qualified

immunity because she lacked fair notice that her conduct

was unlawful.

The panel reversed the district court summary judgment

for defendants on the parents’ claim for intentional infliction

of emotional distress, which the district court dismissed for

the same reason as the judicial deception claim. Because the

panel reversed the district court’s holding on judicial

deception claim, it also reversed the district court’s holding

on the emotional distress claim.

The panel reversed the district court’s summary

judgment for defendants on the parents’ Monell claim

because there was evidence in the record from which a jury

could find that defendants maintain a practice of omitting

exculpatory information from petitions for removal in a

manner tantamount to an official “policy of inaction.”

Finally, the panel held that the district court did not abuse

its discretion by re-reading its jury instructions, rather than

providing additional instructions, in response to a jury

question.

4 SCANLON V. COUNTY OF LOS ANGELES

COUNSEL

Joseph S. Klapach (argued), Klapach & Klapach PC,

Sherman Oaks, California, for Plaintiffs-Appellants.

Avi Burkwitz (argued) and Gil Burkwitz, Peterson Bradford

Burkwitz LLP, California, for Defendants-Appellees.

OPINION

BYBEE, Circuit Judge:

Plaintiffs Rachel Scanlon and Steven Sawyer (together,

the “Parents”) have two young children, one of whom has

severe autism. After consultation with medical

professionals, the Parents received a recommendation for

their autistic daughter to begin medical marijuana therapy.

Following an anonymous report, social workers from the

Department of Child and Family Services of the County of

Los Angeles (“DCFS” or the “Department”) investigated the

report, obtained a judicial order authorizing them to remove

both children, and placed them in foster care. Alleging

numerous deficiencies in DCFS’s investigative and removal

processes, the Parents, on their own and as guardians ad

litem for their minor children, brought suit against DCFS and

individual social workers under 42 U.S.C. § 1983.

The district court granted summary judgment for the

defendants on the majority of the Parents’ claims. Scanlon

v. County of Los Angeles, No. 18-CV-7759, 2021 WL

2420164 (C.D. Cal. May 21, 2021); Scanlon v. County of Los

Angeles, 495 F. Supp. 3d 894 (C.D. Cal. 2020). The

remaining claims went to trial, where a jury returned a

verdict for the defendants. The Parents have appealed the

SCANLON V. COUNTY OF LOS ANGELES 5

district court’s summary judgment rulings and bring one

claim of trial error. We affirm in part and reverse in part.

I. FACTS AND PROCEEDINGS

A. Facts

The facts of this case are lengthy and sharply contested.

The Parents have two minor children who, in the interest of

anonymity, were referred to throughout the proceedings

below as K.X. and G.X. At the time of the events in

question, K.X. was nine years old; G.X. was five. 1 K.X. was

diagnosed with autism when she was two-and-a-half years

old. Because of her special needs, K.X. has received

behavioral treatment at home, school, and in outpatient

centers.

Around age five, K.X. began showing signs of

aggression, such as hitting, scratching, biting, and kicking

others. By age seven, these behaviors had turned on herself:

K.X. would often bang her head against the wall and bite

herself. These episodes grew worse and more frequent with

time. By 2017, when K.X. was nine, she would suffer

multiple bouts of aggression and self-harm every hour.

Because of her violent behavior, K.X. struggled to

participate in class, her private school canceled her after-

school activities, and she was eventually asked to leave.

The Parents engaged professionals to help K.X. cope

with her behavioral issues. Scanlon initially met with K.X.’s

pediatrician, Dr. Elaine Gutierrez. Upon learning of K.X.’s

aggression, Dr. Gutierrez prescribed Vayarin, a medication

used to treat Attention-Deficit/Hyperactivity Disorder

1

To the extent that this opinion reveals sealed information, the court

unseals that information for purposes of this disposition only.

6 SCANLON V. COUNTY OF LOS ANGELES

(“ADHD”). Dr. Gutierrez also referred K.X. to a

psychiatrist, but K.X. was unable to take the psychiatrist’s

written, spoken, and typed tests, and the referral proved

ineffective. Scanlon asked Dr. Gutierrez about trying other

ADHD medications, but Dr. Gutierrez advised against them.

In the course of her conversations with Dr. Gutierrez,

Scanlon inquired about medical marijuana as a possible

treatment for K.X. Dr. Gutierrez replied that she did not

have any experience with this approach. In February or

March 2017, Scanlon attempted to schedule an appointment

with Dr. Bonni Goldstein, a leading expert on pediatric

medical marijuana who had treated more than a thousand

autistic and epileptic children. At that time, Dr. Goldstein

had a year-long waiting list, which meant she would not be

able to offer any immediate solutions to K.X.’s behavioral

problems.

In the meantime, Scanlon got in touch with CannaKids,

an organization that provides guidance on medical cannabis

for patients of all ages, to learn more about possible

marijuana treatments. CannaKids referred Scanlon to

Dr. Peter Mendelsohn, a board-certified anesthesiologist and

pain management specialist in Los Angeles, who had some

experience treating autistic children with medical marijuana.

On July 28, 2017, Scanlon consulted Dr. Mendelsohn.

He gave K.X. a physical evaluation and concluded that she

was a good candidate for treatment. Dr. Mendelsohn gave a

recommendation for K.X. to begin using medical marijuana,

which was valid for one month and required a follow-up visit

to obtain any additional recommendations. Dr. Mendelsohn

advised patients like K.X. to start marijuana treatment at the

lowest possible dose and to watch for side effects. He

SCANLON V. COUNTY OF LOS ANGELES 7

observed that CannaKids shared this philosophy. He did not

recommend or prescribe any particular dosage.

After obtaining Dr. Mendelsohn’s recommendation,

Scanlon ordered THC 2 oil from CannaKids. For dosing, she

worked with Janie Maedler, a dosing specialist at

CannaKids. Maedler, who lived outside California and was

not a licensed medical provider, was the mother of an autistic

child and had advised other parents with autistic children.

Maedler recommended giving K.X. 0.2 milliliters of THC

oil for a week and then noting her response. According to

Scanlon, the difference in K.X.’s behavior “was like night

and day.” Her tantrums and aggression decreased, and she

was more compliant and better behaved in school. After a

week, Maedler suggested that Scanlon slightly increase the

dosage to see if the improvements in K.X.’s behavior would

continue. Scanlon did so and thought that K.X.’s progress

was “even better.”

On August 28, 2017, K.X. had a follow-up phone call

with Dr. Mendelsohn. He recommended that she continue

the regimen and issued a second recommendation for

medical marijuana, which was valid until the following July.

K.X.’s new treatment did not go unnoticed at school.

Alida Turner, K.X.’s teacher, knew from conversations with

Scanlon that K.X. was on a new medication, although she

did not initially know she was taking medical marijuana.

Turner thought K.X. was better behaved and “more

2

“THC” stands for tetrahydrocannabinol, a compound contained in

cannabis. It is distinguished from cannabidiol (“CBD”), another

cannabis compound, which does not generally produce the psychoactive

effects of THC. See Substance Abuse & Mental Health Servs. Admin.,

Pub. No. PEP22-06-04-003, SAMHSA Advisory: Cannabidiol

(CBD)—Potential Harms, Side Effects, and Unknowns 1 (2023).

8 SCANLON V. COUNTY OF LOS ANGELES

talkative, compliant, . . . . [and] calm.” During this period,

Turner texted with Scanlon and told her, “[I]t’s working. I

can see. I can work with her better.” She reported to Scanlon

that the new medicine was “doing good” and that when K.X.

was not taking the medicine, she was “more aggressive.” At

some point, Turner learned that K.X.’s new medication was

marijuana-based.

In September, the DCFS child welfare hotline received

two separate anonymous referrals. These reported that K.X.

had arrived at school lethargic, with glazed eyes, and

apparently under the influence of marijuana. On

September 15, social worker Lourdes Olarte was assigned to

investigate the referrals. That same day, Olarte went to

K.X.’s school and spoke with Turner. Many details of this

visit are disputed. Olarte reported that Turner told her that

“school staff”—never identified—had smelled marijuana on

K.X., although Turner herself had not. Olarte further

claimed Turner told her that K.X. “appeared to be under the

influence, . . . . giggly one moment and overly calm the

next”; that K.X.’s eyes were “droopy,” and she showed

“delayed response”; that K.X. was more “mellow” and “s[at]

out during recess”; and that K.X. was “so affected by [her]

medication” that she had trouble keeping her balance and

was “unable to write her name or keep her pencil straight.”

Turner contradicted these observations in her deposition.

She claimed that she never observed K.X. behaving in an

intoxicated manner and that, if she had, she would have

called someone to report it. Turner also testified that,

although she told Olarte that K.X. was “mellow” and “giggly

one moment and overly calm the next,” she never claimed

that K.X. was “under the influence,” stumbling, that her eyes

were “droopy,” or that she was unable to write her name or

keep her pencil straight.

SCANLON V. COUNTY OF LOS ANGELES 9

Later that same day, Olarte spoke to Scanlon at home.

The parties also disagree about what happened during this

encounter. Scanlon claims that Olarte told her there had

been a report of K.X. “having some difficulty with [her]

balance and . . . [that] someone had smelled something on

her breath.” Olarte asked directly about K.X.’s medications,

so Scanlon assumed that Olarte had learned of K.X.’s

medical marijuana treatment from her school. She recalls

showing Olarte the THC bottle and letting her handle it and

read the label. Scanlon says that she told Olarte that K.X.

was receiving medical marijuana therapy under the

supervision of Dr. Mendelsohn, a trained physician; that she

offered to send her a copy of Dr. Mendelsohn’s

recommendation via email; and that she told Olarte about

CannaKids and said Olarte could contact Maedler through

the organization’s website. Scanlon also asserts that when

Olarte expressed concerns about THC storage and safety, the

Parents purchased a lockbox that same day or the very next.

Three days after Olarte’s initial house visit, Scanlon sent her

a message in which she provided the email address of the

CEO of CannaKids and indicated that someone there would

be willing to speak with her.

Olarte paints a very different picture of her meeting with

Scanlon. She contends that Scanlon was uncooperative and

refused to divulge information about the doctor supervising

K.X.’s treatment, the dosage of the THC oil, or K.X.’s sister,

G.X., whose details were pertinent “to verify that all the

people on the referral [we]re accounted for.” Olarte also

claims that Scanlon would not let her handle the THC bottle

and instead simply “flashed it . . . and put it away.” Despite

their different recollections of this September 15 meeting,

the parties agree that Scanlon did not provide specific dosage

information at that time and that Olarte told Scanlon that the

10 SCANLON V. COUNTY OF LOS ANGELES

household needed a lockbox to store the THC. They also

agree that Scanlon sent Olarte Dr. Mendelsohn’s written

recommendation for K.X.’s treatment as well as contact

information for K.X.’s pediatrician, Dr. Gutierrez.

From Scanlon’s home, Olarte went directly to G.X.’s

school. Olarte pulled G.X. out of class and met with her

alone in an administrative office. She reported that G.X.

looked “healthy and well cared for.” Nevertheless, Olarte

asked her several questions about K.X.’s medicine,

including if she had access to it. G.X. replied that the

medicine was on a “high shelf,” that only her sister took the

medicine, and that she was not allowed to touch it. Still,

“[s]he giggled” and admitted having handled the THC bottle

while climbing on the counter to get snacks.

Three days later, on September 18, Olarte reached out to

Dr. Gutierrez. Dr. Gutierrez was unaware that K.X. was

taking medical marijuana but, while unfamiliar with its use

for autism, had “heard . . . [of] children with epilepsy . . .

being treated with cannabis oil.” Olarte tried contacting

Dr. Mendelsohn and CannaKids but was unsuccessful.

Ultimately, she referred the case to her supervisor, Marisol

Gonzalez.

At DCFS’s request, the Parents met with Olarte and

another social worker, Marisha Harris, at the DCFS office

on September 19. As with their prior encounters, the parties

similarly disagree about what happened at this meeting.

Sawyer claims that Harris opened the meeting by telling

them they were “great parents” but that DCFS would have

to remove their kids. According to the Parents, Harris and

Olarte urged them to sign a bevy of documents, including a

medical consent form. When the Parents refused to do so

without their attorney—who was not present per DCFS

SCANLON V. COUNTY OF LOS ANGELES 11

policy—the social workers took back the papers without

giving the Parents a chance to read them. At that point, the

Parents say, Harris told Olarte that DCFS “should just go for

removal” of the two girls, and Olarte agreed. According to

Scanlon, DCFS was intent on removing the children despite

her informing the social workers that she had satisfied

Olarte’s instruction by buying a lockbox and although the

social workers never asked the Parents to discontinue

medical marijuana during the meeting. Following this

baffling encounter, Sawyer asked for a supervisor, and

Gonzalez joined the meeting.

The defendants’ memory of their meeting with the

Parents begins with the social workers asking for additional

information about K.X.’s treatment and the degree to which

a pediatrician was involved. They claim that DCFS

expressed a desire “to work with the[] [Parents] in assuring

[K.X.] [wa]s getting the proper treatment” but that Sawyer

rejected this suggestion as an attempt to force them into

doing what DCFS “tell[s] [them] to do.” Once the social

workers “explained . . . the court process,” Sawyer evidently

lost his temper and yelled that DCFS was scheming to

remove the children. Fearing that further discussion would

get them nowhere, the social workers informed the Parents

that, because they were not forthcoming about K.X.’s

treatment, DCFS had no choice but to take the girls. On

September 26, 2017, Olarte prepared a Statement of Cause

to apply for a “protective custody warrant” to detain both

children. Despite Olarte’s own observations that the

children appeared to be healthy, the warrant application

alleges “probable cause to believe” that K.X. and G.X. are

“person[s] described by Welfare and Institutions Code

§ 300,” that “[t]he child(ren)’s physical environment poses a

threat to the[ir] health or safety,” and that “there are no

12 SCANLON V. COUNTY OF LOS ANGELES

reasonable means by which the[y] . . . can be protected

without temporary removal from the physical custody of the

parents.” 3

In support of its claim of “general neglect” by the

Parents, the Statement rests entirely on “evidence[] . . . that

mother and father are treating child, minor [K.X.]’s autism

with cannabis oil and have not consulted with a medical

professional or a professional who deals with autism.” The

evidence of neglect includes purported observations by

K.X.’s teacher that “[K.X] appeared to be under the

influence” and that “school staff . . . smelled the scent of

marijuana on [her].” The Statement claims that Scanlon was

“‘experimenting’ with the dosage” of marijuana she gave to

her daughter, leading K.X.’s teacher to find her “unable to

3

California Welfare and Institutions Code § 300 sets forth the

circumstances under which “[a] child . . . comes within . . . the

jurisdiction of the juvenile court [and] may [be] adjudge[d] . . . to be a

dependent child of the court.” Id. The grounds for filing a petition with

the juvenile court include that “[t]he child has suffered, or there is a

substantial risk that the child will suffer,” either “serious physical harm

inflicted nonaccidentally . . . by the child’s parent or guardian,” id.

§ 300(a), or “serious physical harm or illness, as a result of . . . [t]he

failure or inability of the child’s parent or guardian to adequately

supervise or protect the child,” id. § 300(b)(1).

Section 340 provides the grounds for a court to issue a “protective

custody warrant . . . without filing a petition under Section 300.” To do

so, the court must find “probable cause to support all of the following”:

(1) The child is a person described in Section 300.

(2) There is a substantial danger to the safety or to the

physical or emotional health of the child.

(3) There are no reasonable means to protect the

child’s safety or physical health without removal.

Id. § 340(b); see also id. § 306(a)(2) (providing the grounds for taking a

child into protective custody without a warrant).

SCANLON V. COUNTY OF LOS ANGELES 13

write her name or keep her pencil straight.” It further

references Scanlon’s “limited cooperation” with DCFS and

asserts that she had failed to be forthcoming about K.X.’s

treatment. Although the Statement concludes by noting that

the Parents “have not consulted with a medical professional

or a professional who deals with autism,” it earlier refers to

their consultations with pain specialist Dr. Mendelsohn and

K.X.’s regular pediatrician, Dr. Gutierrez, as well as the

Parents’ pending appointment with a pediatrician

specializing in treating autism with cannabis, Dr. Goldstein.

Olarte vouched for the above under penalty of perjury.

On September 27, 2017, a warrant directing the removal

of K.X. and G.X. was approved by the Superior Court. The

following day, DCFS personnel picked up K.X. and G.X.

and sent them to separate foster homes—neither of which

“w[as] experienced in dealing with children with autism”—

where they spent the next five days. After the children’s

removal, Olarte tried to reach Dr. Goldstein but was

unsuccessful.

The Dependency Court held a hearing on the girls’ case

on October 3, 2017. Dr. Goldstein attended the hearing and

agreed to be involved in K.X.’s treatment going forward.

That same day, the Dependency Court released K.X. and

G.X. back to their Parents. On December 7, 2017, the

Dependency Court dismissed DCFS’s petition with

prejudice, in the “Interest of Justice.”

B. Proceedings Below

In September 2018, the Parents (for themselves and on

behalf of their minor children) sued DCFS, Olarte,

Gonzalez, Harris, a third social worker (Angela Hashizume),

and ten Doe defendants under 42 U.S.C. § 1983. Defendants

filed a motion to dismiss, which the district court granted

14 SCANLON V. COUNTY OF LOS ANGELES

with leave to amend. The Parents then filed their first

amended complaint, alleging six causes of action: (1) First,

Fourth, and Fourteenth Amendment violations in connection

with Olarte’s September 15 interview of G.X. at school;

(2) Fourth and Fourteenth Amendment violations for

procuring the children’s removal by a fraudulent or

misleading warrant; (3) a violation of the Fourteenth

Amendment right to be free from judicial deception;

(4) Fourth and Fourteenth Amendment violations for

medical examinations of the children; (5) a Monell claim 4

against DCFS; and (6) a claim for intentional infliction of

emotional distress (“IIED”) against the individual social

workers.

Defendants answered the Parents’ amended complaint

and moved for judgment on the pleadings as to the first,

fourth, and fifth claims identified above. In October 2020,

the district court granted defendants’ motion as to the first

and fourth 5 claims and denied it as to the fifth claim, except

insofar as the Monell claim stemmed from Olarte’s

schoolhouse interview of G.X. (the basis for the first claim).

Scanlon, 495 F. Supp. 3d at 904. Relying on Capp v. County

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

concluded that a social worker’s interview of a child without

parental consent was not a clearly established constitutional

violation and so the defendants were entitled to qualified

immunity. Scanlon, 495 F. Supp. 3d at 898–99.

4

See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 662–63 (1978)

(holding that “local government[s] . . . are ‘persons’” for purposes of

42 U.S.C. § 1983).

5

The Parents “neither oppose[d] nor address[ed]” defendants’ motion as

to the fourth claim (concerning medical examinations of the children);

hence, the court granted the motion as to that claim.

SCANLON V. COUNTY OF LOS ANGELES 15

Defendants moved for summary judgment, this time on

plaintiffs’ remaining claims. Scanlon, 2021 WL 2420164.

In May 2021, the district court granted summary judgment

for defendants as to the fraudulent warrant, judicial

deception, and IIED claims (plaintiffs’ second, third, and

sixth claims, respectively), to the extent those claims were

directed to the removal of K.X., and granted summary

judgment for defendants as to the entirety of the Monell

claim (plaintiffs’ fifth claim). The court concluded that the

alleged misrepresentations included in the removal

warrant—namely those pertaining to the degree of medical

involvement in K.X.’s treatment and her reported

intoxication—“[we]re not material to [the Superior Court’s]

finding that there was probable cause to remove the minors

from [P]arents’ custody.” It also found no triable issue as to

the Monell claim, since DCFS maintained a general policy

of “honesty and integrity in report[ing]” and review with

respect to warrants. As for the IIED claim, the court held

that this failed for the same reason as the judicial deception

claim—specifically, defendants’ satisfactory showing that

“the warrant package did not contain material

misrepresentations.” The court, however, denied summary

judgment as to the portions of plaintiffs’ second, third, and

sixth claims concerning G.X., finding a triable issue of fact

regarding whether the Parents had communicated their

purchase of a lockbox to DCFS and whether the absence of

a lockbox was material to G.X.’s detention.

The court proceeded with trial on the remaining claims.

Based on the nature of these claims, the key issue at trial was

the Parents’ purchase of a lockbox. The Parents each

testified that they bought a lockbox after their initial

September 15 meeting with Olarte. They likewise insisted

that they told Olarte about their purchase at the subsequent

16 SCANLON V. COUNTY OF LOS ANGELES

September 19 meeting and that she indicated the lockbox

was no longer an issue at that time. However, beyond their

own sworn testimony, the Parents did not produce any

evidence to prove that they ever bought a lockbox. Contrary

to the Parents’ contentions, Olarte denied ever being

informed about the lockbox, as did Harris and Gonzalez.

At closing argument, counsel for the defendants asserted

that the Parents had failed, more likely than not, to

communicate their purchase of a lockbox to DCFS, since the

record disclosed no email, text, receipt, or proof of purchase.

During deliberations, this line of argument prompted a juror

to pose the following question to the judge:

How come the receipt of the box is not

brought up during the trial and why it’s only

now in the rebuttal? If it is not, why deal with

the receipt where, in fact, that dad said he has

purchased the box during the meeting

September 19, 2017? Verbal is enough as

long as it is documented. Correct me if I am

wrong.

After receiving this note (“Juror Note No. 4”), the court

met with counsel outside the presence of the jury and

proposed to respond by re-reading instructions 1, 3, 5, 8, and

24. These focused on the jury’s mandate to decide the case

“solely on the evidence before [it].” Counsel for the Parents

agreed with this approach, while counsel for the defendants

suggested adding an additional instruction to clarify that

closing arguments may highlight the absence of evidence

from the record. This proposal elicited an objection from the

Parents’ counsel, who feared the instruction would imply

that the Parents had an affirmative duty to produce

SCANLON V. COUNTY OF LOS ANGELES 17

documentary evidence. The court called back the jury and

had the juror who submitted the question read it aloud. In

response, the court indicated that it could not say “why [the

receipt issue] did not come up earlier.” It then re-read the

instructions, as previously proposed to counsel.

Outside the presence of the jury, defendants’ counsel

asked to submit additional briefing on the propriety of an

instruction about the absence of documentary evidence. The

Parents’ counsel objected to this request and voiced renewed

concern over the juror’s question as to the sufficiency of oral

evidence standing alone. The Parents’ counsel observed that

the ultimate issue—whether testimony about the purchase of

a lockbox was enough without a physical receipt—had not

been addressed by the court. The court’s instruction to

decide the case solely on the evidence may thus have caused

additional confusion. The court replied that, in its view, the

problem was that none of the parties had directed evidence—

testimonial or documentary—to the question of a receipt for

purchase of the lockbox. The Parents’ counsel asked the

court to instruct the jury that it could credit testimony that

the Parents had bought a lockbox, even without specific

testimony concerning a receipt. The court refused to give

this instruction. The jury returned a unanimous verdict in

favor of the defendants, and the court entered final judgment

on September 8, 2021.

The Parents now appeal the district court’s judgment on

the pleadings as to their Fourth Amendment claim

concerning Olarte’s interview of G.X.; its grant of summary

judgment on their judicial deception, Monell, and IIED

claims; and its refusal to provide an additional instruction in

response to the juror’s question.

18 SCANLON V. COUNTY OF LOS ANGELES

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 28 U.S.C.

§ 1331, and we have jurisdiction under 28 U.S.C. § 1291.

We review an order granting judgment on the pleadings de

novo. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.

2009). Judgment on the pleadings is proper “when there is

no issue of material fact in dispute, and the moving party is

entitled to judgment as a matter of law.” Id. In our review,

we must “accept all factual allegations in the complaint as

true and construe them in the light most favorable to the non-

moving party.” Id. (citing Turner v. Cook, 362 F.3d 1219,

1225 (9th Cir. 2004)).

We similarly review a district court’s order granting

summary judgment de novo. Our review must “determine

if, viewing the evidence and drawing all inferences in the

light most favorable to the non-moving party, ‘any genuine

issues of material fact remain and whether the district court

correctly applied the relevant substantive law.’” Nieves

Martinez v. United States, 997 F.3d 867, 875 (9th Cir. 2021)

(quoting Bravo v. City of Santa Maria, 665 F.3d 1076, 1083

(9th Cir. 2011)). Where summary judgment was granted on

the basis of qualified immunity, “[o]ur jurisdiction is limited

to questions of law, and does not extend to qualified

immunity claims involving disputed issues of material fact.

Where disputed facts exist, we assume that the version of the

material facts asserted by . . . the non-moving party[] is

correct.” Costanich v. Dep’t of Soc. & Health Servs.,

627 F.3d 1101, 1107 (9th Cir. 2010) (quoting KRL v. Est. of

Moore, 512 F.3d 1184, 1188–89 (9th Cir. 2008)).

A district court’s response to a juror’s question, when

countered by a timely objection, is reviewed for abuse of

discretion. Arizona v. Johnson, 351 F.3d 988, 993 (9th Cir.

SCANLON V. COUNTY OF LOS ANGELES 19

2003). If counsel fails to object, we review for plain error.

Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794, 797

(9th Cir. 2017).

III. DISCUSSION

The Parents have raised five issues on appeal: first,

whether the district court erred in granting summary

judgment on their claim that the individual defendants filed

a materially misleading Statement of Cause in connection

with the application to remove K.X. and G.X., in violation

of the Fourth and Fourteenth Amendments; second, whether

the district court erred in granting judgment on the pleadings

as to their Fourth and Fourteenth Amendment claims

regarding Olarte’s interview of G.X.; third, whether the

district court erred in granting summary judgment on their

IIED claim; fourth, whether the district court erred in

granting summary judgment for DCFS on their Monell

claim; and fifth, whether the district court erred when it

reread its jury instructions in response to a juror question.

We affirm the judgment with respect to the second and fifth

issues. We reverse as to the first, third, and fourth issues.

A. The District Court Erred in Granting Summary

Judgment for Defendants on Plaintiffs’ Judicial

Deception Claim

The Parents argue that DCFS social workers violated

their right to familial association under the Due Process

Clause of the Fourteenth Amendment, as well as the Fourth

Amendment rights of K.X. and G.X., by providing false or

misleading information to the dependency court that

authorized the children’s removal. The district court

reviewed “[t]he alleged misrepresentations, omissions, and

false statements” in the Statement of Cause submitted with

the application and concluded that they “[we]re not material

20 SCANLON V. COUNTY OF LOS ANGELES

to finding that there was probable cause to remove the

minors from [P]arents’ custody.” Scanlon, 2021 WL

2420164, at *5. We disagree.

1. Constitutional and Statutory Standards for Removing

Children from Their Parents

The Fourteenth Amendment provides that no state shall

“deprive any person of life, liberty, or property, without due

process of law.” U.S. Const. amend. XIV, § 1. Among “the

oldest of the fundamental liberty interests recognized by [the

Supreme] Court” is “the fundamental right of parents to

make decisions concerning the care, custody, and control of

their children.” Troxel v. Granville, 530 U.S. 57, 65–66

(2000) (plurality opinion). Although the Supreme Court has

largely grounded this right in the Due Process Clause, we

have also found it to be protected by the First and Fourth

Amendments, made applicable to the states by the

Fourteenth Amendment. Keates v. Koile, 883 F.3d 1228,

1235 (9th Cir. 2018) (observing that “[the] right [to familial

association] is entirely judge-made” and that the “courts

[have not] been entirely clear regarding [its] source,” relying

“variously . . . on the Fourteenth, First, and Fourth

Amendments”). This right has both substantive and

procedural components, thus placing a high burden of proof

on the state and guaranteeing parents “fundamentally fair

procedures” before the “state interven[es] into ongoing

family affairs.” Santosky v. Kramer, 455 U.S. 745, 753–54

(1982). K.X. and G.X. likewise have a Fourth Amendment

right to be free from “unreasonable . . . seizures,” U.S. Const.

amend. IV, which was implicated when they were taken into

state custody. Despite the differing constitutional sources of

the right to familial association, we have held that “the same

legal standard applies in evaluating [both] Fourth and

Fourteenth Amendment claims for the removal of the

SCANLON V. COUNTY OF LOS ANGELES 21

children.” Keates, 883 F.3d at 1236 (quoting Wallis v.

Spencer, 202 F.3d 1126, 1137 n.8 (9th Cir. 2000)). We have

woven these constitutional threads into a

discrete constitutional right in cases where

state officials remove children from parents

without consent or due process. . . . [T]he

rights of parents and children to familial

association under the Fourteenth, First, and

Fourth Amendments are violated if a state

official removes children from their parents

without their consent, and without a court

order, unless information at the time of the

seizure, after reasonable investigation,

establishes reasonable cause to believe that

the child is in imminent danger of serious

bodily injury, and the scope, degree, and

duration of the intrusion are reasonably

necessary to avert the specific injury at issue.

Id. at 1236–38.

Our cases have addressed the constitutional standards for

seizing a child without a warrant. See, e.g., id. at 1235–38;

Kirkpatrick v. County of Washoe, 843 F.3d 784, 790–91 (9th

Cir. 2016) (en banc); Rogers v. County of San Joaquin, 487

F.3d 1288, 1294–96 (9th Cir. 2007); Mabe v. San

Bernardino County, 237 F.3d 1101, 1106–09 (9th Cir.

2001); Wallis, 202 F.3d at 1140–41. K.X. and G.X.,

however, were seized pursuant to a warrant. See Cal. Welf.

& Inst. Code § 340(a) (setting out the standards for issuing a

protective custody warrant); In re Jerry R., 313 Cal. Rptr. 3d

422, 443 (Ct. App. 2023) (“[Section 340(a)] authorizes the

issuance of a warrant where the danger is substantial but falls

22 SCANLON V. COUNTY OF LOS ANGELES

short of the exigency justifying warrantless removal.”); In re

Robert F., 307 Cal. Rptr. 3d 228, 232 (Ct. App. 2023)

(“[S]ection 340 requires neither imminent danger nor the

threat of physical harm for the court to issue a warrant.”).

After the children were seized, DCFS filed a dependency

petition, which resulted in a judicial hearing and the return

of the children. See Cal. Welf. & Inst. Code § 300(b)(1)

(setting out the standards for declaring a child a dependent

of the juvenile court).

We have never examined whether California’s statutory

standards for obtaining a warrant prior to a full dependency

hearing satisfy the procedural and substantive requirements

of the U.S. Constitution. See Sigal v. County of Los Angeles,

No. 18-56085, 2021 WL 4061120, at *1 (9th Cir. Sept. 7,

2021) (unpublished) (assuming, without deciding, “that

probable cause exists to remove a child when the child faces

a ‘substantial risk of harm’” (citing Cal. Welf. & Inst. Code

§ 300(b)(1))); Olvera v. County of Sacramento, 932 F. Supp.

2d 1123, 1150 (E.D. Cal. 2013) (holding that “[t]he issuance

of the warrant to place [plaintiffs’ child] in protective

custody must . . . have been supported by probable cause that

the circumstances in the [plaintiffs’] home endangered [the

child]’s health or welfare” (citing Cal. Welf. & Inst. Code

§ 340(a))). But the Parents do not challenge the

constitutionality of California’s standards for removal.

Rather, they dispute whether the warrant was obtained

through judicial deception. We will address that claim and

leave to another day the constitutional sufficiency of

California’s scheme. See Marks v. Hudson, 933 F.3d 481,

487 (5th Cir. 2019) (noting potential constitutional

challenges to the Texas child removal statute but concluding

that, “[w]hatever questions might be raised by this statutory

language, the parties here argue the case solely on the basis

SCANLON V. COUNTY OF LOS ANGELES 23

of whether an affidavit without fabrications or omissions

would have supported probable cause”).

2. Judicial Deception and DCFS’s Application for

Removal

We have recognized a cause of action under 42 U.S.C.

§ 1983 for violations of the Fourth and Fourteenth

Amendments where a warrant or other authorization to seize

a child was obtained through judicial deception. Indeed,

“[o]ur caselaw clearly establishes that, as part of the right to

familial association, parents and children have a ‘right to be

free from judicial deception’ in child custody proceedings

and removal orders.” David v. Kaulukukui, 38 F.4th 792,

800 (9th Cir. 2022) (quoting Greene v. Camreta, 588 F.3d

1011, 1034 (9th Cir. 2009), vacated in part and remanded in

part, 563 U.S. 692 (2011)). “Judicial deception” consists of

either “deliberate omission or affirmative

misrepresentation.” Id. at 801 n.3. A statement can also be

misleading if, although technically true, it has been so

wrenched from its context that the judicial officer will not

comprehend how it fits into the larger puzzle. For example,

a statement uttered jokingly or sarcastically will be

understood by those present one way but, when reproduced

on the written page and read out of context, the statement

may be understood to mean the opposite of what was said.

In such a case, “the officer [has] omitted facts required to

prevent technically true statements in the affidavit from

being misleading.” Ewing v. City of Stockton, 588 F.3d

1218, 1224 (9th Cir. 2009). Even otherwise true

observations made misleading by the omission of facts that

are not themselves material may result in an affidavit that,

considered as a whole, is materially misleading. “[B]y

reporting less than the total story, an affiant can manipulate

the inferences a magistrate will draw . . . . [and] denude the

24 SCANLON V. COUNTY OF LOS ANGELES

probable cause requirement of all real meaning.” Liston v.

County of Riverside, 120 F.3d 965, 973 (9th Cir. 1997)

(internal quotation marks and citations omitted).

“To state a violation of the constitutional right to familial

association through judicial deception, a plaintiff must allege

‘(1) a misrepresentation or omission (2) made deliberately

or with a reckless disregard for the truth, that was

(3) material to the judicial decision.’” David, 38 F.4th at 801

(quoting Benavidez v. County of San Diego, 993 F.3d 1134,

1147 (9th Cir. 2021)). “A misrepresentation or omission is

‘material’ if a court ‘would have declined to issue the order

had [the defendant] been truthful.’” Id. (alteration in

original) (quoting Greene, 588 F.3d at 1035). “Because the

[Parents] appeal from a grant of summary judgment, they

need only make a ‘substantial showing’ of the [state actors’]

deliberate or reckless false statements and omissions.”

Chism v. Washington, 661 F.3d 380, 387 (9th Cir. 2011)

(quoting Liston, 120 F.3d at 973). “‘Clear proof of

deliberat[ion] or reckless[ness] is not required’ at the

summary judgment stage.” Id. at 387–88 (alterations in

original) (quoting United States v. Stanert, 762 F.2d 775,

781 (9th Cir.), amended by 769 F.2d 1410 (9th Cir. 1985)).

“If a plaintiff satisfies these requirements, ‘the matter should

go to trial.’” Butler v. Elle, 281 F.3d 1014, 1024 (9th Cir.

2002) (quoting Liston, 120 F.3d at 972–75).

The question before us is whether the Department’s

Statement of Cause contains material omissions or

misrepresentations such that a reasonable magistrate,

informed of the true facts, would not have issued a protective

custody warrant for the seizure of K.X. and G.X. We

conclude that the Statement contained misrepresentations

and omissions of fact and so remand to the district court.

SCANLON V. COUNTY OF LOS ANGELES 25

In September 2017, DCFS filed an Application and

Statement of Cause in support of a warrant to remove K.X.

and G.X. from their parents. Through a series of check-the-

box statements, the Department advised that there was

“probable cause to believe that continuance in the home of

the parent(s) . . . [wa]s contrary to the child(ren)’s welfare”

because “[t]he child(ren)’s physical environment pose[d] a

threat to the[ir] . . . health or safety and there [we]re no

reasonable means by which the child(ren) c[ould] be

protected without temporary removal.” 6 The Application

was accompanied by Olarte’s lengthy Statement of Cause.

The Statement made two critical points: First, the Parents

were treating K.X. with cannabis oil without medical

supervision, and second, the treatment adversely affected

K.X.’s behavior at school. The Parents have alleged that this

Statement contained false statements, statements taken so far

out of context as to be misleading, and omissions of

important facts. The Parents further allege that these

inaccurate, incomplete, and omitted facts, taken together,

6

We note that this language from the form misstates California law. The

form requires DCFS to certify only that there is “a threat to the

child(ren)’s health or safety.” By contrast, the statute states that a

juvenile dependency petition requires proof of “a substantial risk that the

child will suffer[] serious physical harm.” Cal. Welf. & Inst. Code

§ 300(b)(1) (emphasis added). A petition for a protective custody

warrant—one to be issued in advance of a juvenile dependency

hearing—likewise requires probable cause to believe that the juvenile

dependency criteria are met and, further, that “[t]here is substantial

danger to the safety or to the physical or emotional health of the child”

and that such danger cannot “reasonabl[y]” be prevented “without

removal.” Id. § 340(b)(2)-(3) (emphasis added). The Findings and

Orders form signed by the Superior Court judge contains similar

misstatements of California law.

26 SCANLON V. COUNTY OF LOS ANGELES

were material and made either deliberately or with a reckless

disregard for the truth. 7

a. The Statement of Cause’s claim that K.X. was

not being treated by a medical professional or an

autism specialist

The Parents’ principal contention is that Olarte’s

Statement of Cause included at least one statement about

their treatment of K.X. with cannabis oil that Olarte knew to

be false. In her conclusion, Olarte summed up her evidence

as follows:

Based upon my 12 years of experience as a

social worker investigating over 2,500 child

abuse referrals, this social worker believes

that the conduct of mother Rachel Scanlon

and father Steven Sawyer, which includes,

but is not limited to general neglect as

evidenced by the fact that mother and father

are treating child, minor [K.X.’s] autism with

cannabis oil and have not consulted with a

medical professional or a professional who

deals with autism, endangers the physical and

emotion well-being of the child such that the

7

The Parents further allege that Olarte misrepresented her conversations

with them and portrayed them in a false light in her Statement of Cause.

Because we hold that the misrepresentations with respect to K.X.’s

medical care and her behavior at school are sufficient to require reversal,

we decline to address the Parents’ allegations concerning how they were

depicted in the Statement. They may renew these arguments on remand.

SCANLON V. COUNTY OF LOS ANGELES 27

children are at risk of suffering emotional or

physical harm.

(emphasis added). 8

We need not detain ourselves long to hold that this

statement constituted a misrepresentation which a

reasonable trier of fact could find was recklessly or

deliberately made. See David, 38 F.4th at 801. Indeed, it

contradicts Olarte’s own account of her investigation.

Elsewhere in her lengthy Statement, Olarte reports that

Scanlon told her in her first interview that “what is important

is that the oil was prescribed by a doctor.” As we have

discussed, that recommendation came from Dr. Peter

Mendelsohn, a board-certified anesthesiologist and pain

specialist. Olarte’s narrative recites that “[Scanlon]

forwarded a Physician’s Statement & Recommendation via

email” to Olarte and that “Olarte attempted to reach

Dr. Peter Mendelsohn . . . but the call only rang and there

[wa]s no answer.” Although her investigation was

inconclusive, Olarte expressed no doubts concerning the

veracity of the Parents’ claim that they had consulted with

Dr. Mendelsohn and obtained a recommendation from him

to treat K.X. with medical cannabis. Her affirmative

statement that the Parents “ha[d] not consulted with a

medical professional” was false, could be found material and

8

As with the DCFS forms, we note that Olarte’s statement misstates

what DCFS had to prove under California law. While the Statement

concludes merely that “the children are at risk of suffering emotional or

physical harm,” even a petition for juvenile dependency—which would

have entitled the Parents to a hearing before their children were

removed—requires proof of “a substantial risk that the child will suffer[]

serious physical harm.” Cal. Welf. & Inst. Code § 300(b)(1) (emphasis

added).

28 SCANLON V. COUNTY OF LOS ANGELES

deliberate or reckless by a reasonable jury, and is itself

sufficient to reverse the district court’s holding as to the

Parents’ judicial deception claim.

Olarte’s conclusion was misleading in yet another way:

She contended that the Parents “ha[d] not consulted

with . . . a professional who deals with autism.” This was

contradicted elsewhere in Olarte’s statement. She earlier

noted having spoken with Dr. Gutierrez, K.X.’s treating

pediatrician, who knew K.X. had been diagnosed with

autism in 2010. Dr. Gutierrez prescribed Vayarin, an

Omega-3 fatty acid, “to . . . address [K.X.’s] symptoms and

balance [her] behaviors,” and she had referred K.X. to a

psychologist. When Olarte asked about treating K.X. with

medical marijuana, “Dr. Gutierrez said that treatment ha[d]

not been discussed with her. She said she herself [wa]s not

very familiar with the treatment but heard, in some cases,

children with epilepsy are being treated with cannabis oil.

Dr. Gutierrez ha[d] not heard about autism being also treated

with cannabis oil.” Elsewhere, Olarte noted that Scanlon

told her in the second interview that she was “giving [K.X.]

the Vayarin [Dr. Gutierrez] prescribed to her.”

Further belying both of Olarte’s statements (regarding

the lack of involvement of either a medical professional or

one experienced with autism), the Statement of Cause

reflects that the Parents told Olarte that “[K.X.] [wa]s

already scheduled to meet with a pediatric[ian] specializing

on [sic] cannabis oil”—that was Dr. Goldstein—but that she

was on a year-long waiting list. All in all, the details in

Olarte’s report confirm that the Parents had consulted with

at least two doctors—one, a pediatrician who worked with

them on K.X.’s autism, and the other, a board-certified

anesthesiologist and pain management specialist who

recommended cannabis oil to treat her autism—and were on

SCANLON V. COUNTY OF LOS ANGELES 29

an extended waiting list to see a third doctor who was known

for treating autistic children with cannabis oil. That simply

cannot be squared with Olarte’s recommendation that K.X.

and G.X. be removed because the Parents “ha[d] not

consulted with a medical professional or a professional who

deals with autism.”

A reasonable trier of fact could find that these

misrepresentations were “material to the judicial decision.”

David, 38 F.4th at 801 (internal quotation marks and citation

omitted). In her Statement of Cause, Olarte characterized

K.X. as being “under the influence.” Similarly, the

Statement relates that, in one of her meetings with the

Parents, Olarte told them that K.X.’s “symptoms [we]re

th[ose] of someone under the influence of drugs.” When

Sawyer replied that “[K.X.’s] side effects [we]re no different

than the side effects of prescribed medication,” Olarte

“explained that prescribed medication is FDA approved and

always monitored by a doctor” and suggested that K.X.’s

treatment should be monitored by her pediatrician, Dr.

Guitierrez.

This exchange emphasizes the materiality of the Parents’

consultation with Dr. Mendelsohn. If the Parents in fact

obtained medical oversight for K.X.’s treatment, it would

mean that DCFS’s basis for removing the children—“the

fact that [the Parents] . . . [we]re treating . . . [K.X.’s] autism

with cannabis oil”—was entirely legal under California law,

a fact DCFS failed to mention. In the Compassionate Use

Act of 1996, California declared that “seriously ill

Californians have the right to obtain and use marijuana for

medical purposes where that medical use is deemed

appropriate and has been recommended by a physician who

has determined that the person’s health would benefit from

the use of marijuana.” Cal. Health & Safety Code

30 SCANLON V. COUNTY OF LOS ANGELES

§ 11362.5(b)(1)(A) (emphasis added). A “serious medical

condition” that may warrant treatment with medical

marijuana includes “[a]ny . . . chronic or persistent medical

symptom that either . . . [s]ubstantially limits the ability of

the person to conduct one or more major life activities as

defined in the federal Americans with Disabilities Act of

1990 [(“ADA”)] . . . [or] [i]f not alleviated, may cause

serious harm to the patient’s safety or physical or mental

health.” Id. § 11362.7(h)(12). 9 Significantly, nothing in the

Compassionate Use Act restricts the use of medical

marijuana to adults. See generally Off. of the Att’y Gen.,

Cal. Dep’t of Just., Guidelines for the Security and Non-

Diversion of Cannabis Grown for Medical Use 1, 9 (2019),

https://oag.ca.gov/system/files/attachments/press-

docs/MEDICINAL%20CANNABIS%20Guidelines.pdf

(defining “[a] qualified patient” as “a person whose

physician has recommended the use of cannabis to treat a

serious illness,” without setting a threshold age to qualify).

Indeed, certain provisions contemplate that minors may be

treated consistent with the Act. See Cal. Health & Safety

Code § 11362.7(e) (“A primary caregiver shall be at least 18

years of age, unless the primary caregiver is the parent of a

minor child who is a qualified patient . . . .” (emphasis

added)); id. § 11362.755(d) (referring to “the legal guardian

of a qualified patient under the age of 18”).

Since California has legalized medical marijuana

(including for children) when recommended by a doctor, a

reasonable magistrate could not have ordered the children

9

We have long recognized that autism is a condition within the scope of

the ADA. See, e.g., Paul G. ex rel. Steve G. v. Monterey Peninsula

Unified Sch. Dist., 933 F.3d 1096, 1098 (9th Cir. 2019); Christopher S.

ex rel. Rita S. v. Stanislaus Cnty. Off. of Educ., 384 F.3d 1205, 1207,

1214 (9th Cir. 2004).

SCANLON V. COUNTY OF LOS ANGELES 31

removed merely because K.X. was receiving medical

marijuana. Here, medical supervision separates lawful

parental behavior from actionable concerns on the part of

DCFS. A reasonable jury could therefore find Olarte’s

assertions that the Parents had not obtained supervision to be

material. In sum, we find the Parents have stated a

cognizable claim for judicial deception on this basis.

b. The Statement of Cause’s attribution to K.X.’s

teacher of claims concerning K.X.’s behavior

The Parents also claim that Olarte mischaracterized and

misattributed statements made by Alida Turner, who had

been K.X.’s teacher for two years, which contributed to a

materially misleading Statement of Cause. Olarte’s

description of her conversation with Turner was critical to

DCFS’s warrant application because it was the principal

evidence that K.X. was in “substantial risk . . . [of] serious

physical harm” from her cannabis oil treatments. Cal. Welf.

& Inst. Code § 300(a). As we noted in the previous

subsection, DCFS characterized K.X. as presenting “under

the influence” at school. The bare fact of K.X. being “under

the influence” of medical marijuana, administered on the

recommendation of a doctor as authorized by the

Compassionate Use Act, would not likely have been enough

for a reasonable magistrate to discern a legally sufficient

risk. The point of any regimen of prescribed or

recommended medical substances—from Acetaminophen to

Zoloft—is to come “under the influence.” Whether the

treatment has placed the patient at “substantial risk . . . [of]

serious physical harm” is an entirely different question. The

details of the “influence” of K.X.’s cannabis treatment

mattered, and Turner’s testimony was the cornerstone of the

Statement of Cause.

32 SCANLON V. COUNTY OF LOS ANGELES

Here is the relevant paragraph in its entirety:

On 09/15/17, CSW Olarte responded to

Cabrillo Elementary. CSW met with

[K.X.]’s teacher, Alida Turner, who said

school staff reportedly smelled the scent of

marijuana on [K.X.]. She herself did not

smell it as [K.X.] had already consumed

some orange juice when she approached her

and was only able to pick up the scent of

orange juice. She did, however, notice

[K.X.] appeared to be under the influence.

[K.X.] was giggly one moment and overly

calm the next. [K.X.] stumbled around and

at times and [sic] was close to falling over.

[K.X.] had to be assisted, almost carried, due

to her state. [K.X.]’s eyes were “droopy” and

she displayed a delayed response. She added

that the prior school year, [K.X.] had

difficulty with her behavior, however, her

behavior worsened during the summer. She

described [K.X.] as becoming aggressive and

self-harming. [K.X.] would throw tantrums

and hit her head. She said, this year, [K.X.]

seems mellow and sits out during recess. The

previous year, [K.X.] would get on the

tricycle and run around the yard but this year

[K.X.] stares into space. [K.X.] also seems to

be so affected by medication and she is

unable to write her name or keep her pencil

straight. She denied having any concerns the

previous year. [K.X.] has good attendance

SCANLON V. COUNTY OF LOS ANGELES 33

and always presents as well cared for and

well groomed.

When Turner was asked in her deposition whether she told

Olarte these things, she denied saying them. For example,

Turner testified that she never said K.X. “appeared to be

under the influence,” “had to be carried,” “had a delayed

response,” “stared into space,” was “so affected by

medication [that] she [wa]s unable to write her name or keep

her pencil straight,” or that her “eyes were droopy.” 10

Beyond denying that she made these statements to

Olarte, Turner testified that she would not have said such

things because they were untrue. She had never seen K.X.

behave in a way that suggested she was intoxicated. To the

contrary, Turner claimed that, thanks to the new regimen,

K.X. was “more talkative, compliant, let’s say well-behaved.

She was calm.” This was in contrast to the prior year, when

K.X. would “hit herself,” “hurt[] the assistants,” “bang[] her

head on the floor . . . [and] the walls,” “scratch others[,] and

cry . . . and scream a lot.” Turner testified that she was in

frequent contact with Scanlon, who asked for feedback on

the medication, and that she had told Scanlon, “[I]t’s

working. I can see. I can work with [K.X.] better.” It is

difficult to see how someone who testified to these facts

would, at the same time, tell Olarte that K.X. was left semi-

catatonic owing to her use of cannabis oil. Accordingly,

there are substantial differences between what Olarte

10

Some of the statements Olarte attributes to Turner appear to have been

pulled from the referrals called into DCFS concerning K.X., which came

from an unnamed aide at the school. Turner denied ever hearing any of

these statements from an aide or conveying such statements to Olarte.

So far as we can tell, Olarte never actually spoke with anyone at the

school other than Turner.

34 SCANLON V. COUNTY OF LOS ANGELES

reported about her conversation with Turner and what

Turner said she told Olarte.

There are also genuine factual disputes concerning

whether Olarte properly characterized the statements that

Turner asserted she did make during their conversation.

When Turner testified that K.X. mellowed out once she

started taking the medicine, intending to convey that her

behavior had improved from its violent baseline, Olarte

reported that the girl was “under the influence.” When

Turner said K.X. was giggly, but that her giggles did not

increase when she started taking medical marijuana, Olarte

reported that K.X. was emotionally labile: “giggly one

moment and overly calm the next.” And when Turner and

Olarte together observed K.X. on the playground during

Olarte’s schoolhouse visit, they likewise came away with

very different recollections. Olarte’s Statement said that,

“[t]he previous year, [K.X.] would get on [a] tricycle and run

around the yard”—but this year, she did nothing but “stare[]

into space.” Turner, meanwhile, recalled telling Olarte

about K.X.’s tantrums the prior year and noted that “that

moment . . . was a good time to observe [K.X.] because she

was playing. She liked the tricycle, and she was riding it.”

“[V]iewing the evidence . . . in the light most favorable

to the [Parents],” Turner’s testimony strongly supports the

Parents’ claim that Olarte mischaracterized Turner’s

comments, placing them in a false light. Nieves Martinez,

997 F.3d at 875. A reasonable trier of fact could find that

Turner’s testimony casts doubt on whether Turner actually

said the negative comments Olarte attributed to her in her

Statement. To the extent the primary fact witness in Olarte’s

Statement of Cause (other than Olarte herself) did not report

any negative behavioral effects from K.X.’s treatment, a

reasonable trier of fact could find such misrepresentations

SCANLON V. COUNTY OF LOS ANGELES 35

were material to the issuance of a warrant to remove the

children.

* * *

To recapitulate, Olarte’s Statement is inconsistent with

the evidence in the record in numerous respects. We find

that Olarte’s statements regarding the Parents’ failure to

obtain medical supervision were misrepresentations and that

the statements she attributed to Alida Turner could likewise

be found by a reasonable jury to be misrepresentations.

Either set of statements could reasonably be held material to

the magistrate’s issuance of a warrant to detain the children.

As we noted above, under California law, a child

becomes a “dependent” within the jurisdiction of the

juvenile court only if “there is a substantial risk that the child

will suffer[] serious physical harm or illness” resulting from

“parental neglect.” Cal. Welf. & Inst. Code § 300(a).

California law further provides that a warrant to remove a

child prior to a hearing cannot issue absent a showing of

probable cause to believe that “[t]here is a substantial danger

to the safety or to the physical or emotional health of the

child” and “[t]here are no reasonable means to protect the

child’s safety or physical health without removal.” Id.

§ 340(b)(2), (3). The Fourteenth Amendment requires at

least such a showing. Keates, 883 F.3d at 1237–38; Olvera,

932 F. Supp. 2d at 1150–51. If the Parents were consulting

with a doctor on K.X.’s treatment—and if the effects of that

treatment on K.X.’s behavior were not the dour picture

painted by the Statement of Cause—a fully informed judicial

officer might well have concluded that either the California

or the federal standard was not met here.

Because there are triable issues of fact as to whether the

warrant application materially misrepresented information

36 SCANLON V. COUNTY OF LOS ANGELES

and “omitted facts required to prevent . . . the affidavit from

being misleading,” Liston, 120 F.3d at 973 (citation

omitted), leading to the removal of K.X. and G.X., we hold

that the district court erred in granting summary judgment to

defendants. We also observe that the defendants are not

entitled to qualified immunity. The right to be free from

judicial deception was clearly established prior to 2016 and

so before the events of this case. David, 38 F.4th at 801

(“[T]he right to be free from judicial deception in matters of

child custody ‘is beyond debate.’” (quoting Hardwick v.

County of Orange, 844 F.3d 1112, 1117 (9th Cir. 2017)));

see Benavidez, 993 F.3d at 1152; Greene, 588 F.3d at 1034–

35; Costanich, 627 F.3d at 1111–12. We therefore reverse

and remand for additional consideration of the judicial

deception claim.

B. The District Court Did Not Err in Granting Judgment on

the Pleadings as to Plaintiffs’ Fourth Amendment Claim

Concerning G.X.’s School Interview

The Fourth Amendment, made applicable to the states

through the Fourteenth Amendment, ensures an individual’s

right to be free from “unreasonable searches and seizures.”

U.S. Const. amend. IV. “A ‘seizure’ triggering the Fourth

Amendment’s protections occurs only when government

actors have, ‘by means of physical force or show of

authority, . . . in some way restrained the liberty of a

citizen.’” Capp, 940 F.3d at 1059 (alteration in original)

(quoting Graham v. Connor, 490 U.S. 386, 395 n.10

(1989)). In other words, “a seizure occurs if, ‘in view of all

of the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.’”

Dees v. County of San Diego, 960 F.3d 1145, 1154 (9th Cir.

2020) (quoting Brendlin v. California, 551 U.S. 249, 255

(2007)). Because “children possess a Fourth Amendment

SCANLON V. COUNTY OF LOS ANGELES 37

right to ‘be secure in their persons . . . against unreasonable

searches and seizures,’” Mann v. County of San Diego,

907 F.3d 1154, 1164 (9th Cir. 2018) (alteration in original)

(quoting U.S. Const. amend. IV), when considering what a

“reasonable person” might believe, we must take into

account that “children cannot be viewed simply as miniature

adults,” J.D.B. v. North Carolina, 564 U.S. 261, 274 (2011).

In evaluating the Fourth Amendment rights of the child (as

opposed to those of her parents), we must analyze the alleged

seizure from the perspective of a child the age of the

plaintiff, not that of the average adult; this is “a reality that

courts cannot simply ignore.” Id. at 277; see Kirkpatrick,

843 F.3d at 790–92 (considering the Fourth Amendment

rights of a newborn seized from her mother at the hospital).

Social worker investigations conducted prior to

removing a child from her parents fall within the ambit of

state action proscribed by the Fourth Amendment. In

Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999), we held

that a social worker’s warrantless entry into the home as part

of a child abuse investigation was a “well established”

Fourth Amendment violation. Id. at 813–14. Even if the

entry “was primarily to protect the children, not investigate

crime, . . . . warrants should be obtained if consent is

refused.” Id. at 817.

Temporary seizures of children at school for

investigatory purposes present a more nuanced instance of

this problem. The school is not the home and, when the

school has its own interests, the Supreme Court has sought

to “strike the balance between the schoolchild’s legitimate

expectations of privacy and the school’s equally legitimate

need to maintain an environment in which learning can take

place.” New Jersey v. T.L.O., 469 U.S. 325, 340 (1985); see

also Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S.

38 SCANLON V. COUNTY OF LOS ANGELES

364, 370–71 (2009). Here, we are not confronted with

questions around seeking a balance between the interests of

the child and those of her school but, rather, between the

interests of the child and those of the state in securing the

welfare of children at home. We have some history in this

area. Although in general “[t]he Fourth Amendment

protects a child’s right to be free from unreasonable seizure

by a social worker,” Dees, 960 F.3d at 1154 (citing

Kirkpatrick, 843 F.3d at 790–91), the details surrounding the

investigation have proven critical.

In Greene, 588 F.3d 1011, Nimrod Greene was arrested

on suspicion of sexually abusing his friends’ seven-year-old

son. The Oregon Department of Human Services also

learned that Nimrod may have abused one of his daughters,

nine-year-old S.G. Bob Camreta, a social worker, together

with a sheriff’s deputy, went to S.G.’s school, where they

interviewed her for two hours. The investigation was

inconclusive, and no charges were filed against Nimrod with

respect to S.G. S.G.’s mother subsequently brought a

Section 1983 action on S.G’s behalf against Camreta and the

deputy. We rejected Camreta’s claim that the balancing of

interests in which the Court engaged in T.L.O. provided the

appropriate standard. Greene, 588 F.3d at 1023–24. We

concluded that “‘[c]onstitutional claims based on searches or

seizures by public school officials relating to public school

students therefore call for an analysis . . . that is different

from that [for searches or seizures by caseworkers].’” Id. at

1024 (alterations in original) (quoting Tenenbaum v.

Williams, 193 F.3d 581, 607 (2d Cir. 1999)). Because of the

“presence of law enforcement objectives . . . ., ‘disentangling

[the goal of protecting a child’s welfare] from general law

enforcement purposes’ becomes particularly ‘difficult.’” Id.

at 1027 (second alteration in original) (quoting Roe v. Tex.

SCANLON V. COUNTY OF LOS ANGELES 39

Dep’t of Protective & Regul. Servs., 299 F.3d 395, 406–07

(5th Cir. 2002)). We observed that, “[a]ny time a

government official suspects that a child has been abused,

investigation of that abuse for child protection purposes may

uncover evidence of a crime” and, even if the caseworker is

only conducting a welfare check, she is not precluded from

sharing the information she finds with law enforcement

officers. Id. at 1029. In the end, we held that, “[a]t least

where there is . . . direct involvement of law enforcement in

an in-school seizure and interrogation of a suspected child

abuse victim, . . . . the decision to seize and interrogate [the

child] in the absence of a warrant, a court order, exigent

circumstances, or parental consent [i]s unconstitutional.” Id.

at 1030 (footnotes omitted). Nonetheless, we concluded that

this right had not been clearly established at the time of

Camreta’s investigation and so granted qualified immunity

to him and the deputy. Id. at 1033.

The Supreme Court granted certiorari and vacated

Greene’s Fourth Amendment holding on mootness grounds.

However, it left intact the qualified immunity determination.

Camreta, 563 U.S. at 698, 714 n.11 (“We leave untouched

the Court of Appeals’ ruling on qualified immunity and its

corresponding dismissal of S.G.’s claim because S.G. chose

not to challenge that ruling.”). The only surviving portion of

our decision in Greene is that the Fourth Amendment “right

of minor children to be free from unconstitutional seizures

and interrogations by social workers [w]as not . . . clearly

established” as of August 2015. Capp, 940 F.3d at 1059; see

Greene, 588 F.3d at 1033.

40 SCANLON V. COUNTY OF LOS ANGELES

We have not gone so far since Greene. 11 In Dees, a

social worker interviewed a nine-year-old girl, L.G., in

connection with an investigation of sexual abuse. Although

ostensibly performing a welfare check, the social worker

believed a criminal investigation was ongoing. The

interview took place in an administrative office and “lasted

only five minutes.” Dees, 960 F.3d at 1154. There were

conflicting accounts as to whether the minor was upset by

the interview but no evidence that the social worker tried to

“coerce or otherwise intimidate” her. Id. at 1151, 1153–54.

L.G.’s mother sued on her behalf for violations of her Fourth

Amendment rights. A jury returned a verdict for the social

worker, but the district court subsequently granted plaintiffs’

renewed motion for judgment as a matter of law. Id. at

1150–51. We reversed, finding that the court had

“inappropriately weighed the facts.” Id. at 1154. To that

end, we identified three facts that distinguished Dees from

other cases: First, no law enforcement officer was present;

second, the interview was brief; and third, L.G. was nine,

suffered from cognitive difficulties, and may not have felt

free to end the conversation. Id. at 1154–55. From these

factors (which cut in different directions), we concluded that

L.G.’s circumstances were sufficiently different from our

prior cases that the district court had erred in finding that the

minor was unreasonably seized “as a matter of law.” Id. at

11

In Capp, we held that plaintiffs had failed to demonstrate a Fourth

Amendment violation stemming from social workers’ schoolhouse

interviews of two minors, then ages nine and eleven. 940 F.3d at 1059.

There, however, the record was unclear as to parental consent. Id.

Hence, we could not “conclude that [the minors] . . . were impermissibly

restrained,” absent additional information regarding “whether the

interviews were conducted without either parent’s permission . . ., the

length of the interviews, or the specific circumstances [thereof].” Id.

SCANLON V. COUNTY OF LOS ANGELES 41

1155 (emphasis in original). Nevertheless, we observed that

it was

at least arguable whether a nine-year old girl

with cognitive disabilities, called into the

administrative office of her school by a

woman who she knew had the authority to

disrupt her family’s life, would feel

empowered to leave or could have consented

to the discussion.

Id. at 1156. We affirmed the district court’s alternative

holding to grant a new trial. Dees suggests that a different

set of facts could transform a social worker interview into a

Fourth Amendment seizure, but it does not firmly establish

that principle.

At least three circuits, the Sixth, Seventh, and Tenth,

have weighed in on this question, but we think that the

results are a mixed bag. The strongest case for G.X. is

Schulkers v. Kammer, 955 F.3d 520 (6th Cir. 2020). In that

case, social workers followed up on a report that a mother of

five children who had recently given birth tested positive for

opiates. Two social workers interviewed each of the older

children, ages 8, 9, 9, and 13, at their public schools. The

interviews lasted about thirty minutes, and the children were

asked pointed questions about their mother’s drug and

alcohol use. Id. at 530. The Sixth Circuit held that the social

workers were entitled to qualified immunity against the

Fourth Amendment claims, but it proceeded to resolve the

constitutional claim on the merits. The court concluded that,

“[a]t a minimum, a social worker must have reasonable

suspicion of child abuse before conducting an in-school

interview without a warrant or consent.” Id. at 538. That

42 SCANLON V. COUNTY OF LOS ANGELES

conclusion, however, appears to be dicta: The court

accepted as true that, at the time of the interviews, the social

workers knew that the drug test had been a false positive and

that they lacked “any plausible suspicion that the . . .

children were subjected to abuse or neglect.” Id. (emphasis

in original); see also Barber v. Miller, 809 F.3d 840, 845

(6th Cir. 2015) (holding the “Fourth Amendment right to

avoid warrantless, in-school interviews by social workers on

suspicion of child abuse not to have been clearly established

in January 2011” and declining to rule on the constitutional

merits of the claim).

The social worker’s awareness that her investigation was

baseless also distinguishes the Tenth Circuit’s decision in

Jones v. Hunt, 410 F.3d 1221 (10th Cir. 2005). There, a

social worker and a police officer interviewed a 16-year-old

for several hours, knowing that there was “no legitimate

basis . . . for detaining [the] child.” Id. at 1229; see id. at

1231 (“A social worker who lacks any legitimate

justification for seizing a child, but nonetheless seizes the

child and demands, in direct contravention of a court order,

that she enter the custody of her abusive father, would

clearly know that his conduct is unconstitutional.” (footnote

omitted)). Jones contrasts with an earlier decision of the

Tenth Circuit, in which a social worker interviewed a nine-

year-old who was suspected of having sexually assaulted a

five-year-old. Doe v. Bagan, 41 F.3d 571, 574 (10th Cir.

1994). The social worker in that case conducted the

interview alone at school over the course of about ten

minutes. The Tenth Circuit held that the social worker did

not violate the child’s Fourth Amendment rights: “[T]his

brief detention by a social services caseworker [wa]s not of

constitutional dimension. . . .[,] [since it] was a de minimis

interference with Doe’s liberty, insufficient at that stage to

SCANLON V. COUNTY OF LOS ANGELES 43

trigger constitutional liberty concerns.” Id. at 575. In a

lengthy footnote, the court expanded on its analysis:

The seizure here was justified at its inception

because a victim of child abuse had identified

Doe as her abuser; a ten minute interview

with a social services caseworker was

reasonably related in scope to determining

Doe’s role in the incident. This seizure,

therefore, was reasonable as a matter of

law. . . . This was simply an interview by a

caseworker incident to an ongoing child

abuse investigation.

Id. at 574–75 n.3 (citation omitted).

In Doe v. Heck, 327 F.3d 492 (7th Cir. 2003), the

Seventh Circuit held that a twenty-minute interview of an

eleven-year-old conducted by a caseworker in the presence

of a uniformed police officer violated the boy’s Fourth

Amendment rights. What is unusual about Heck is that the

court held that the interview was “presumptively

unreasonable,” id. at 513, because the child was attending a

private school, which was the constitutional equivalent of an

interview in the home, id. at 512–13. The court thus held a

Wisconsin statute, which authorized social workers to

interview children at any location (other than the home) if

the agency thought the child “[wa]s in need of protection or

services,” unconstitutional as applied to private school

students. Id. at 502, 515–16. But it also granted the

defendants qualified immunity. Id. at 516–17; see also

Michael C. v. Gresbach, 526 F.3d 1008, 1018 (7th Cir.

2008) (holding that, in light of Heck, a social worker who

44 SCANLON V. COUNTY OF LOS ANGELES

interviewed minors at a private school was not entitled to

qualified immunity).

We cannot discern a clear rule from these decisions, and

the plain import of our own is that Olarte is entitled to

qualified immunity as to claims stemming from her

schoolhouse interview of G.X. “Qualified immunity

attaches when an official’s conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Kisela v. Hughes,

138 S. Ct. 1148, 1152 (2018) (quoting White v. Pauly,

580 U.S. 73, 78–79 (2017) (per curiam)). “Because the

focus is on whether the officer had fair notice that her

conduct was unlawful, reasonableness is judged against the

backdrop of the law at the time of the conduct.” Id. (quoting

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per

curiam)). Our decisions are inconclusive. That conclusion

is only reinforced by our review of decisions from other

circuits. The only one with language broad enough to

constitute some warning to Olarte is the Sixth Circuit’s

decision in Schulkers—decided three years after the events

in this case.

In a case where we conclude that the defendant is entitled

to qualified immunity because the constitutional right was

not clearly established at the time of the events, we have the

discretion to reach the constitutional question to “promote[]

the development of constitutional precedent.” Pearson v.

Callahan, 555 U.S. 223, 236 (2009). As the Court has

observed, “if the policy of avoidance were always followed

in favor of ruling on qualified immunity whenever there was

no clearly settled constitutional rule of primary conduct,

standards of official conduct would tend to remain uncertain,

to the detriment both of officials and individuals.” County

of Sacramento v. Lewis, 523 U.S. 833, 840–41 n.5 (1998).

SCANLON V. COUNTY OF LOS ANGELES 45

Nonetheless, this matter is left to our “sound discretion.”

Pearson, 555 U.S. at 242.

At oral argument, counsel for the Parents candidly urged

us to address the merits of the constitutional claim, even if

only to provide future guidance. Although we are

sympathetic, we decline the invitation to resolve the Fourth

Amendment contours of social worker interviews of children

at school. There are a number of factors that have to be

balanced in these cases. See Demuth v. County of Los

Angeles, 798 F.3d 837, 839 (9th Cir. 2015) (“[I]n the Fourth

Amendment context, . . . ‘the constitutional standard—

reasonableness—is always a very fact-specific inquiry.’”

(quoting C.B. v. City of Sonora, 769 F.3d 1005, 1026

(9th Cir. 2014) (en banc))). These include: the age of the

child; whether the child suffers from any cognitive or

emotional conditions; where the interview took place;

whether the parents knew in advance of the interview and

consented or objected to the interview; the nature of the

claim being investigated, including whether the claim may

result in criminal charges; whether the nature of the claim is

such that the child may be in physical danger; whether the

child is considered a possible victim, a perpetrator, or a

witness; the length of the interview; whether law

enforcement is present; whether the child is allowed to have

present a trusted adult, such as a teacher, counselor, or other

school administrator; whether the child felt coerced or

intimidated; and whether the child has the option of stopping

the interview. See Dees, 960 F.3d at 1149–50 (noting the

County of San Diego’s guidelines for social worker

interviews).

Some of the facts in this case are troubling, while others

point to the reasonableness of the interview. At the time of

Olarte’s schoolhouse interview of G.X., the latter was only

46 SCANLON V. COUNTY OF LOS ANGELES

five years old—roughly half the age of, and more

impressionable than, for example, even the nine-year-old in

Dees. See id. at 1154. Her Parents did not know that she

would be interviewed and may not have consented. Olarte

had no information that G.X. was in any immediate danger,

nor other grounds for believing that the Parents might have

violated any criminal law. But the investigation was still in

an early stage, and Olarte was properly concerned that G.X.

might have access to her sister’s medical marijuana. There

are also numerous questions about Olarte’s interview that

have not been briefed and that might be relevant to resolving

the Fourth Amendment question. The record suggests that

Olarte interviewed G.X. alone and for a very short time, but

it is not crystal clear on either point. We know little about

the circumstances under which G.X. was brought to the

interview and whether she knew that a teacher or other

trusted adult could be in the room with her or at least nearby.

Although Olarte’s interview of G.X. doubtlessly effected a

seizure, we would want additional facts before we concluded

that it represented an unreasonable one. Given the range of

views on this question, compare Schulkers, 955 F.3d at 538

(“[A] social worker must have reasonable suspicion of child

abuse before conducting an in-school interview without a

warrant or consent.”), with Bagan, 41 F.3d at 575 (holding

that a “brief detention by a social services caseworker” does

not violate the Fourth Amendment), we will not address the

Fourth Amendment question on this record. We therefore

affirm the district court’s grant of judgment on the pleadings

as to the schoolhouse interview of G.X.

C. The District Court Erred in Granting Summary

Judgment for Defendants on Plaintiffs’ IIED Claim

The Parents allege it was erroneous for the district court

to dismiss the IIED claim as “inextricably intertwined” with

SCANLON V. COUNTY OF LOS ANGELES 47

their other claims. To succeed on an IIED claim under

California law, a plaintiff must establish “(1) that the

defendant’s conduct was outrageous, (2) that the defendant

intended to cause or recklessly disregarded the probability of

causing emotional distress, and (3) that the plaintiff’s severe

emotional suffering was (4) actually and proximately caused

by the defendant’s conduct.” Austin v. Terhune, 367 F.3d

1167, 1172 (9th Cir. 2004) (citation omitted). The district

court dismissed the Parents’ IIED claim for the same reason

as their judicial deception claim: It found that “[d]efendants

met their burden of showing that the warrant package did not

contain material misrepresentations” and, therefore, that

“the violation of the [P]arents’ and K.X.’s constitutional

rights based on removal of K.X. fail[ed].” Scanlon,

2021 WL 2420164, at *7. Because we have reversed on the

judicial deception claim, we must reverse that holding as

well.

On remand, the district court should consider evidence

beyond the judicial deception claim that might support a

finding of IIED. As evidence of outrageous state conduct,

the Parents’ complaint cites the “interview of G.X. at the

school,” “wrongful removal and continued detention of both

minor Plaintiffs,” “false statements and misrepresentations

to the juvenile court,” and “unlawful medical and/or mental

health examinations” of G.X. and K.X. Their IIED claim

also incorporates all prior paragraphs of the complaint,

which include additional facts from which a jury could find

IIED. For example, the Parents complain that the children

were placed in separate foster homes despite Scanlon’s

request that they be kept together. G.X. was placed in a

foster home even though Scanlon gave DCFS contact

information for a family that could take her temporarily.

DCFS also never arranged for the Parents to visit their

48 SCANLON V. COUNTY OF LOS ANGELES

children. This evidence may be relevant to the Parents’ IIED

claim.

We therefore reverse and remand the IIED claim for

additional consideration.

D. The District Court Erred in Granting Summary

Judgment for Defendants on Plaintiffs’ Monell Claim

The Parents contend that DCFS has “an unofficial policy

of encouraging its social workers to omit exculpatory

information from warrant applications and refusing to

adequately train them about their constitutional obligations.”

The Parents assert that this failure to train constitutes a

Monell violation. The defendants respond that the Parents’

Monell claim fails for lack of an underlying constitutional

violation.

We have held that “[p]arents and children have a well-

elaborated constitutional right to live together without

governmental interference.” Wallis, 202 F.3d at 1136–37

(collecting cases). In light of our disposition on the judicial

deception claim, the defendants’ position is not viable. But

the question remains whether the Parents can state a Monell

claim. The district court concluded they could not, crediting

a DCFS witness who said that the Department’s practice in

preparing removal applications is to include mitigating facts.

For the reasons we elaborate, this is not a sufficient basis to

deny the Parents’ Monell claim on summary judgment.

To sustain their Monell claim, the Parents must show that

the action that caused their constitutional injury was part of

an “official municipal policy of some nature.” Kirkpatrick,

843 F.3d at 793 (quoting Monell, 436 U.S. at 691). There

are four criteria: “(1) [The Parents] had a constitutional right

of which [they] were deprived; (2) the municipality had a

SCANLON V. COUNTY OF LOS ANGELES 49

policy; (3) the policy amounts to deliberate indifference to

[their] constitutional right; and (4) ‘the policy is the moving

force behind the constitutional violation.’” Gordon v.

County of Orange, 6 F.4th 961, 973 (9th Cir. 2021) (quoting

Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir.

2011)). We have also observed three ways a plaintiff can

satisfy Monell’s policy requirement: The municipal

government acts pursuant to an express official policy, the

government maintains a longstanding practice or custom, or

the act was committed or ratified by an official with policy-

making authority. Id. at 973–74. Official nonfeasance can

constitute a Monell violation when the municipality in effect

“has a policy of inaction and such inaction amounts to a

failure to protect constitutional rights.” Mortimer v. Baca,

594 F.3d 714, 722 (9th Cir. 2010) (quoting Berry v. Baca,

379 F.3d 764, 767 (9th Cir. 2004)).

This is not our first occasion to consider Monell liability

as it pertains to a county’s child-removal policy. Unlike the

warrant-based seizure at issue here, in Kirkpatrick, social

workers took a newborn from the hospital without securing

a warrant. In evaluating the validity of this seizure, we

started from our “well-settled” position that “a child [can]not

be removed without prior judicial authorization absent

evidence that the child [i]s in imminent danger of serious

bodily injury.” Kirkpatrick, 843 F.3d at 792 (citing, inter

alia, Rogers, 487 F.3d at 1295, and Wallis, 202 F.3d at

1138). We concluded that the social workers there had time

to obtain a judicial warrant, although we granted them

qualified immunity. Turning to the Monell claim, we asked

whether we could “trace the social workers’ unconstitutional

removal to a systemic failure to train [social workers] to

obtain a warrant before seizing a child.” Id. at 793. We

found that there was evidence that the county had “no policy

50 SCANLON V. COUNTY OF LOS ANGELES

or procedures,” either “for obtaining warrants before

removing children from parental custody, or for training its

social workers to recognize that a warrant may be required.”

Id. at 796. We held that “the municipality’s ‘inadequacy

[was] so likely to result in the violation of constitutional

rights’ that a jury could reasonably find § 1983 liability

without needing a pattern of violations” from which to do so.

Id. at 796–97 (quoting City of Canton v. Harris, 489 U.S.

378, 390 (1989)). We therefore reversed the grant of

summary judgment for the county on plaintiffs’ Monell

claim.

Here, DCFS operated under a more formal policy than

the one at issue in Kirkpatrick, removing the children

pursuant to a warrant. The Application and Statement of

Cause that Olarte prepared to obtain the removal warrant

references our decision in Wallis “and its progeny” on its

opening page. A section captioned “Request for

Authorization for Removal” directs the preparing social

worker to indicate whether, in her “professional

opinion[,] . . . the child(ren) should be detained” pursuant to

“Welfare and Institutions Code § 300 pending a Welfare and

Institutions Code § 319 hearing because there is probable

cause to believe that continuance in the home of the parent(s)

. . . is contrary to the child(ren)’s welfare.” From there, the

social worker must identify the source of the purported harm

from among a series of options. Here, Olarte indicated that

“[t]he child(ren)’s physical environment poses a threat to the

child(ren)’s health or safety and there are no reasonable

means by which the child(ren) can be protected without

temporary removal from the physical custody of the parents

or guardians,” language that duplicates that of Welfare and

SCANLON V. COUNTY OF LOS ANGELES 51

Institutions Code § 340(a). 12 Olarte checked another box

referring the court to her “attached declaration,” which

contained “additional information supporting the need for

protective custody.” More than merely referencing the

relevant standards, DCFS’s Application and Statement of

Cause thus requires social workers to vet the validity of a

proposed removal against the requirements of probable

cause and California state law.

Despite DCFS’s nominal compliance with federal and

state standards, there is evidence in the record from which a

jury could find that the Department’s policy governing the

preparation of warrant applications is insufficient in practice

to protect the constitutional rights of parents like these.

Specifically, there is evidence that DCFS maintains a

practice of omitting exculpatory information from petitions

for removal in a manner tantamount to an official “policy of

inaction.” Mortimer, 594 F.3d at 716 (citation omitted). To

be sure, some DCFS employees testified that supervisors

ensure statements of cause contain mitigating information by

reviewing and directing social workers to insert “relevant”

details where absent. But many employees reported never

receiving training on the constitutional requirement to

include such information. Indeed, several witnesses testified

that there was no requirement. Witness Fred Shook—a 24-

year DCFS veteran with policy-drafting responsibility—

12

As we previously noted, see supra note 6, the form does not accurately

state California’s statutory standards under either Cal. Welf. & Inst.

Code § 300 or § 340. Nevertheless, the Parents have argued only “that

the County had an unofficial policy, practice, and failure of training that

encouraged social workers to make false representations and omit

exculpatory information in warrants submitted to the juvenile court for

the removal of children.” Hence, we do not address how these

inaccuracies bear on the Parents’ Monell claim.

52 SCANLON V. COUNTY OF LOS ANGELES

testified that the Department has no written policy requiring

social workers to include mitigating facts in warrant

applications. And defendant Hashizume testified that the

general practice of DCFS social workers was to include only

information that would encourage the court to separate

parents from their children. When asked if she was “trained

by DCFS that the information that is included in a petition

should be exclusively limited to information that would

support the proposition that the court should take jurisdiction

over the minor child” (emphasis added), Hashizume replied,

“Yes.”

Drawing all inferences in the Parents’ favor, as we must

on a motion for summary judgment, a jury could conclude

that DCFS’s practices are inadequate to protect against

constitutional violations such as those now claimed. We

therefore remand the Monell claim to the district court for

additional consideration.

E. The District Court Did Not Abuse Its Discretion by

Repeating Jury Instructions to a Confused Juror

Finally, the Parents argue that the district court

committed instructional error in its response to a jury

question concerning whether to credit verbal testimony in

the absence of documentary evidence that the Parents had

purchased a lockbox for the cannabis oil. Properly

considered, this claim is not about the jury instructions per

se but about the court’s response to a juror note.

The parties dispute whether the Parents properly

objected to this issue in the proceedings below. We find that

they did. “An objection to a jury instruction ‘need not be

formal’ . . . .” Hunter v. County of Sacramento, 652 F.3d

1225, 1230 (9th Cir. 2011) (quoting Norwood v. Vance,

591 F.3d 1062, 1066 (9th Cir. 2010)). We have previously

SCANLON V. COUNTY OF LOS ANGELES 53

found proper objections when counsel moved for a new trial,

Shorter v. Baca, 895 F.3d 1176, 1183 (9th Cir. 2018); sent a

letter to the court, Dunlap, 878 F.3d at 798; or proposed an

alternate instruction for the jury, Hunter, 652 F.3d at 1231.

Here, the Parents’ counsel properly objected to the

district court’s response to Juror Note No. 4. Counsel

disputed the defendants’ proposed supplemental instructions

and renewed his objection to the court’s response to the

juror’s question—re-reading instructions 1, 3, 5, 8, and 24—

after it did so. Counsel pointed out that the principal issue

suggested by Juror Note No. 4—potential confusion among

the jury over how to weigh oral versus documentary

evidence—may not have been clarified by the court’s

instruction (and indeed, that further confusion may have

resulted). To that end, counsel requested an additional

instruction that the jury may believe testimony about the

purchase of a lockbox even without testimony regarding a

receipt, which the court refused. These actions were

sufficient to preserve the objection for appeal. Counsel

having properly objected, we review for abuse of discretion,

rather than plain error. Compare Johnson, 351 F.3d at 993,

995 (reviewing for abuse of discretion—although defendant

“did not object to the [relevant] instruction”—the district

court’s decision to respond to a jury question “by simply

referring the jury to the instructions that had already been

given”), with C.B., 769 F.3d at 1016 (reviewing a district

court’s failure to give a requested jury instruction for plain

error absent a timely objection).

The general rule is the jury must decide the case on the

basis of the evidence before it. It “may not enlist the court

as its partner in the factfinding process,” so “the trial judge

must proceed circumspectly in responding to inquiries from

the jury.” Johnson, 351 F.3d at 994 (quoting United

54 SCANLON V. COUNTY OF LOS ANGELES

States v. Walker, 575 F.2d 209, 214 (9th Cir. 1978)).

However, so long as the court does not usurp the jury’s

responsibility, “[w]hen a jury makes explicit its

difficulties[,] a trial judge should clear them away with

concrete accuracy.” Crowley v. Epicept Corp., 883 F.3d

739, 750 (9th Cir. 2018) (quoting United States v. Anekwu,

695 F.3d 967, 986 (9th Cir. 2012)).

Our precedents suggest that there is a delicate balance to

be struck between giving the jury additional instructions and

directing it to the instructions that have already been given.

For example, in McDowell v. Calderon, 130 F.3d 833

(9th Cir. 1997), we concluded that repeating legally correct

jury instructions was insufficient to clarify a juror’s

confusion because “[t]here is no point in reiterating language

which has failed to enlighten the jury.” Id. at 838 (quoting

People v. McDowell, 763 P.2d 1269, 1287 (Cal. 1988)

(Broussard, J., concurring in part and dissenting in part)).

However, in Arizona v. Johnson, we determined that

addressing a juror’s question about the capacity to consent

while in custody by “referring the jury to the instructions

they had already been given” did not constitute an abuse of

discretion. 351 F.3d at 995. Similarly, in Crowley, the jury

asked whether the timing of a predicate event was relevant

to the plaintiffs’ “failure to do what [the] contract required.”

883 F.3d at 750. We concluded that the district court did not

commit reversible error when it responded to the jury’s

question by referring “back to the instructions already given

and the evidence presented at trial.” Id. at 751. Crowley

held that when “the court’s original instructions provide a

correct statement of the law and ‘generally address[] the

jury’s question,’ a district court acts ‘within its discretion by

simply referring the jury to the instructions they had already

SCANLON V. COUNTY OF LOS ANGELES 55

been given.’” Id. at 750–51 (quoting Johnson, 351 F.3d at

995).

The facts of this case more closely mirror Johnson and

Crowley than McDowell. Here, the jury appears to have

been confused as to the sufficiency of verbal testimony

regarding a lockbox in the absence of documentary evidence

to that effect. However, while the parties disagree as to

whether the district court’s response adequately answered

the juror’s question, neither disputes that the proffered jury

instructions were legally correct. Counsel for the Parents

argued that the question showed that the jury was confused

about whether plaintiffs had the burden of proving the

existence of a receipt for the lockbox. But nothing in the

court’s response changed the burden of proof described in

the original jury instructions. In addition, the court’s

response admonished the jury that witness testimony—

including Sawyer’s testimony that he had purchased a

lockbox—was evidence that it could consider. Taken

together, these facts show “it is more probable than not” that

the jury’s verdict was not affected by the court’s response to

Juror Note No. 4. Dunlap, 878 F.3d at 798 (internal

quotation marks and citation omitted). We conclude that the

district court’s response did not constitute an abuse of

discretion.

IV. CONCLUSION

We affirm the district court’s ruling that plaintiffs’

Fourth Amendment claim regarding the schoolhouse

interview of G.X. is barred by qualified immunity. We also

affirm the district court’s response to Juror Note No. 4. We

reverse the judgment of the district court as to the judicial

deception, Monell, and IIED claims and remand for further

proceedings. Each side shall bear its own costs. Exxon

56 SCANLON V. COUNTY OF LOS ANGELES

Valdez v. Exxon Mobil, 568 F.3d 1077, 1081 (9th Cir. 2009).

The Parents’ motions to file a reply brief under seal and for

additional time in which to do so (Dkt. Nos. 64, 68–69) are

hereby granted.

AFFIRMED in part, REVERSED AND

REMANDED in part.