Southerland v. City of New York, No. 07-4449 (2d Cir. 2011)

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Plaintiffs, a father and his children, brought various claims under 42 U.S.C. 1983 asserting that a children's services caseworker entered their home unlawfully and effected an unconstitutional removal of the children into state custody. At issue was whether the district court properly concluded that the caseworker was entitled to qualified immunity with respect to all of the claims against him and granted summary judgment in his favor. The court held that the caseworker was not entitled to qualified immunity and vacated the district court's grant of summary judgment on plaintiff's claims for Fourth Amendment violations arising out of the allegedly unlawful search of plaintiffs' home; plaintiffs' claims for violations of procedural due process under the Fourteenth Amendment; the father's claim for violation of substantive due process under the Fourteenth Amendment; and the children's claim for unlawful seizure under the Fourth Amendment. Accordingly, the court remanded for further proceedings.

The court issued a subsequent related opinion or order on February 2, 2012.
The court issued a subsequent related opinion or order on May 14, 2012.
The court issued a subsequent related opinion or order on May 22, 2012.

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07-4449-cv (L) Southerland v. City of New York 1 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 August Term, 2008 4 5 6 (Argued: April 21, 2009 Decided: June 10, 2011) Docket Nos. 07-4449-cv (L), 07-4450-cv (CON) 7 ------------------------------------- 8 9 10 11 SONNY B. SOUTHERLAND, SR., individually and as parent and natural guardian of VENUS SOUTHERLAND, SONNY B. SOUTHERLAND, JR., NATHANIEL SOUTHERLAND, EMMANUEL FELIX, KIAM FELIX, and ELIZABETH FELIX, 12 Plaintiffs-Appellants, 13 - v - 14 CITY OF NEW YORK, TIMOTHY WOO, JOHN DOES 1-9, 15 Defendants-Appellees.* 16 ------------------------------------- 17 18 19 Before: KEARSE, SACK, and HALL, Circuit Judges. 20 the United States District Court for the Eastern District of New 21 York (Charles P. Sifton, Judge) in favor of, inter alios, the 22 defendant Woo. 23 bring various claims under 42 U.S.C. § 1983 asserting that Woo, a 24 children's services caseworker employed by the defendant City of 25 New York, entered their home unlawfully and effected an 26 unconstitutional removal of the children into state custody. 27 district court concluded that Woo was entitled to qualified Consolidated appeals from a summary judgment entered by * The plaintiffs -- a father and his children -- The Clerk of Court is directed to amend the official caption in accordance with the foregoing. The 1 immunity with respect to all of the claims against him. 2 disagree. 3 We As to each claim that has been preserved for appeal: Vacated and remanded. 4 5 6 7 8 9 10 MICHAEL G. O'NEILL, New York, N.Y., for Plaintiffs-Appellants Venus S., Sonny B.S. Jr., Nathaniel S., Emmanuel F., Kiam F., and Elizabeth F. 11 12 13 14 15 16 JULIAN L. KALKSTEIN, City of New York (Michael A. Cardozo, Corporation Counsel; Larry A. Sonnenshein, of counsel), New York, N.Y., for Defendants-Appellees. 17 18 SONNY B. SOUTHERLAND, Brooklyn, N.Y., Plaintiff-Appellant, pro se. SACK, Circuit Judge: This lawsuit involves a man and a woman -- the 19 plaintiff Sonny B. Southerland Sr. ("Southerland") and non-party 20 Diane Manning -- two groups of children, and a caseworker's 21 apparent confusion between the two groups. 22 Manning is the daughter of Southerland and Diane Manning. 23 was supposed to be living with Southerland at the time in 24 question, but in fact had left to live with a friend. 25 Plaintiff Ciara Ciara In addition to Ciara, plaintiff Southerland fathered, 26 by one or more women other than Diane Manning, six other 27 children: the plaintiffs Venus Southerland, Sonny B. Southerland 28 Jr., Nathaniel Southerland, Emmanuel Felix, Kiam Felix, and 29 Elizabeth Felix (together, the "Southerland Children"). 30 time of the principal events in question, the Southerland 31 Children, unlike Ciara, were living with their father. 2 At the 1 Diane Manning also allegedly bore, by one or more men 2 other than Southerland, six children other than Ciara: Eric 3 Anderson, Richy Anderson, Felicia Anderson, Erica Anderson, 4 Michael Manning, and Miracle Manning (together, the "Manning 5 Children"). 6 to this lawsuit. They lived with Diane and, like her, are not parties 7 In May 1997, the defendant Timothy Woo, a caseworker in 8 the Brooklyn Field Office of the New York City Administration for 9 Children's Services ("ACS"), was assigned to investigate a report 10 by a school counselor about then-sixteen-year-old Ciara Manning. 11 School staff had thought Ciara to be acting strangely at school. 12 After being unable, despite repeated attempts, to gain 13 entry to the Southerland home to investigate the report, Woo 14 sought and obtained from the Kings County Family Court an order 15 authorizing entry into the apartment. 16 obtain that order contained several misstatements of fact, which 17 suggested Woo's possible confusion about which of the children 18 resided with Southerland. 19 Woo's application to Under the authority of the Family Court's order, Woo 20 then entered the Southerland apartment. 21 some of Southerland's other children who lived with him were. 22 Based on what Woo perceived to be the poor condition of the home 23 and of the Southerland Children, and his other observations from 24 the investigation undertaken to that date, Woo and his supervisor 25 decided to carry out an immediate removal of the children into 26 ACS custody. 3 Ciara was not there; 1 Southerland and the Southerland Children brought this 2 action based on Woo's entry into the apartment and removal of the 3 children. 4 rights to be free from unreasonable searches of their home, and 5 that the manner in which the Southerland Children were removed 6 violated their procedural due process rights under the Fourteenth 7 Amendment. 8 Southerland Children from his home violated his substantive due 9 process rights under the Fourteenth Amendment. They claim that Woo violated their Fourth Amendment1 Southerland also claims that the removal of the Finally, the 10 Southerland Children claim that their removal violated their 11 Fourth Amendment rights to be free from unreasonable seizure. The district court (Charles P. Sifton, Judge)2 12 13 concluded, inter alia, that Woo was entitled to qualified 14 immunity with respect to all of the claims against him and 15 granted summary judgment in his favor. 16 conclusions and therefore vacate the district court's judgment as 17 to those claims that have been pursued on appeal and remand the 18 matter for further proceedings. 19 BACKGROUND 20 21 We disagree with those The relevant facts are rehearsed in detail in the district court's opinion. See Southerland v. City of N.Y., 521 1 We refer throughout this opinion to asserted Fourth Amendment rights of the plaintiffs. Inasmuch as the defendants are state and not federal actors, of course, whatever rights the plaintiffs have are "under the Fourth Amendment, as applied to the States under the Fourteenth Amendment['s]" Due Process Clause. Kia P. v. McIntyre, 235 F.3d 749, 761 (2d Cir. 2000); see Mapp v. Ohio, 367 U.S. 643, 655 (1961). 2 Judge Sifton passed away while these appeals were pending. 4 1 F. Supp. 2d 218 (E.D.N.Y. 2007) ("Southerland II"). 2 forth here only insofar as we think it necessary for the reader 3 to understand our resolution of these appeals. 4 are disputed, we construe the evidence in the light most 5 favorable to the plaintiffs, who are the nonmoving parties. 6 e.g., SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d 7 Cir. 2009). 8 the plaintiffs' favor. 9 They are set Where the facts See, We also draw all reasonable factual inferences in See, e.g., id. The ACS Investigation 10 On May 29, 1997, a school guidance counselor reported 11 to the New York State Central Registry Child Abuse Hotline that 12 one of the school's students, Ciara Manning, the then-sixteen- 13 year-old daughter of Diane Manning and plaintiff Southerland, was 14 "emotionally unstable." The counselor further reported: 15 16 17 18 19 20 21 22 Fa[ther] fails to follow through w[ith] mental health referrals. On 5/12/97 the ch[ild] swallowed a can of paint. F[ather] failed to take the ch[ild] for medical attention. Fa[ther] is unable to control or supervise the ch[ild]. She may be staying out of the home in an i[m]proper enviro[n]ment. 23 Intake Report at 3, Office of Children and Family Services, Child 24 Protective Services, May 29, 1997 ("Intake Report"), Ex. A to the 25 Declaration of Janice Casey Silverberg (Dkt. No. 168) 26 ("Silverberg Decl."), Southerland v. City of N.Y., No. 99-cv-3329 27 (E.D.N.Y. Sept. 18, 2006). 28 the Brooklyn Field Office of the ACS. 29 supervisor, assigned the case to defendant Timothy Woo, an ACS The Intake Report was transmitted to 5 There, Fritz Balan, a 1 caseworker, for investigation. 2 law to begin his investigation within 24 hours, did so that day. 3 Woo, who was required by New York He first examined the files of a case pending in that 4 ACS office regarding Ciara's mother, Diane Manning. Material in 5 those files disclosed that Ciara had several younger half- 6 siblings: the Manning Children. 7 also indicated that Ciara lived with her father, Southerland, at 8 a Brooklyn address, although the plaintiffs correctly note the 9 absence of any evidence as to the source of that information and According to Woo, this material 10 the time it was received. 11 whether Woo was aware that the children referenced in Diane 12 Manning's case file were not related to Southerland and that they 13 did not live with him. 14 222, 224 & n.8. 15 It is not clear from the record See Southerland II, 521 F. Supp. 2d at Woo also contacted the school guidance counselor who 16 had called the child-abuse hotline. 17 counselor told him that while at school, Ciara had swallowed non- 18 toxic paint, expressed thoughts of suicide, and was generally 19 behaving aggressively and "acting out." 20 Woo ¶ 10 (Dkt. No. 169) ("Woo Decl."), Southerland v. City of 21 N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). 22 handwritten notes from the conversation indicate that the 23 counselor told Woo that "father [i.e., Southerland] doesn't 24 approve of the place [where Ciara] is staying." 25 Woo at 1, Ex. A to the Declaration of Michael G. O'Neill (Dkt. 26 No. 182) ("O'Neill Decl."), Southerland v. City of N.Y., No. 996 According to Woo, the Declaration of Timothy Woo's Notes of Timothy 1 cv-3329 (E.D.N.Y. Dec. 28, 2006). 2 counselor also told Woo that Southerland had been unresponsive to 3 the school's stated concerns about Ciara's behavior. 4 It is disputed whether the Later that day, Woo attempted to visit Southerland's 5 apartment in Brooklyn where, for reasons that are not clear from 6 the record, Woo thought Ciara was staying. 7 the door, Woo left a note containing his contact information. 8 9 When no one answered The following day, May 30, Southerland telephoned Woo. During the course of their conversation, Southerland described 10 Ciara as a runaway who would not obey him. 11 that he visit the ACS office to discuss the matter with Woo 12 further. 13 phone conversation, Southerland indicated that he would not 14 permit Woo to visit Southerland's apartment. 15 contends that, although he did question why Woo needed to visit 16 the apartment since Ciara did not live there, Southerland 17 nonetheless indicated that he would be willing to make an 18 appointment for Woo to conduct a home visit if Woo insisted. 19 Southerland suggested The plaintiffs dispute Woo's assertion that during the Southerland Southerland visited the ACS office and met with Woo 20 later that day. According to Southerland's deposition testimony, 21 he told Woo that Ciara had run away and that he had obtained 22 several "Persons in Need of Supervision" ("PINS") warrants 23 against her. 24 Southerland why he had not sought medical attention for Ciara 25 after the paint-swallowing incident. Woo's case notes indicate that Woo asked 7 Southerland did not answer 1 the question.3 2 Notes"), Ex. B to O'Neill Decl. 3 See Progress Notes of T. Woo at 1 ("Progress Southerland told Woo and Balan, Woo's supervisor, that 4 Ciara did not need psychiatric help, and that she "'was only 5 acting the way she did to get attention.'" 6 F. Supp. 2d at 223 (quoting Woo Decl. ¶ 10); see also Declaration 7 of Fritz Balan ¶ 7 (Dkt. No. 170) ("Balan Decl."), Southerland v. 8 City of N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). 9 According to Woo, he explained to Southerland that various 10 services were available through ACS to assist him and his 11 children, including counseling and help with obtaining food, 12 furniture, and clothing. 13 Southerland, however, no such assistance was ever offered. 14 Southerland II, 521 Southerland declined. According to When Woo said he would need to make a home visit, 15 Southerland replied that it would be "no problem" as long as he 16 was notified in advance. 17 see also Deposition of Sonny B. Southerland at 207 ("Southerland 18 Dep."), Ex. F to O'Neill Decl. 19 stated he would call him to arrange the visit, but that Woo never 20 made such a call. 21 22 Southerland II, 521 F. Supp. 2d at 223; Southerland asserts that Woo On June 2, 1997, Woo made a second attempt to examine the Southerland apartment. 3 A woman whose identity was unknown to Southerland later testified that the school contacted him with a medical referral after the paint-swallowing incident, and that he had tried to get Ciara to go to the appointment that was scheduled for her, but that she refused to go. 8 1 Woo answered the door. 2 home. She said that Southerland was not at Woo left. 3 The following day, June 3, Woo again went to the 4 apartment. 5 Again, he left. 6 He heard noises inside, but no one answered the door. The next day, June 4, Woo went to the apartment for a 7 fourth time. He waited in the hallway for several minutes. 8 Southerland emerged accompanied by five school-aged children: 9 Sonny Jr., Venus, Emmanuel, Nathaniel, and Kiam. Woo wrote down 10 their names in his case notes. Southerland told Woo that he did 11 not have time to talk because he was taking the children to 12 school. 13 that if he continued to be uncooperative, ACS would seek court 14 action. 15 also Progress Notes at 2. Woo gave Southerland an ACS business card and told him Southerland II, 521 F. Supp. 2d at 223-24 & n.6; see 16 The Removal of the Southerland Children 17 On June 6, 1997, at the direction of supervisor Balan, 18 Woo applied to the Kings County Family Court for an order to 19 enter the Southerland apartment pursuant to section 1034(2) of 20 the New York Family Court Act. 21 not only the status of the child named in a report of suspected 22 abuse or maltreatment of the type referred to in section 1034(2), 23 but also that of any other children residing in the same home. 24 Woo listed Ciara on the application. 25 names of the children he had met leaving Southerland's home on 26 June 4, however, he listed the other children of Ciara's mother It is ACS policy to investigate 9 Instead of including the 1 Diane -- the Manning Children: Eric Anderson, Richy Anderson, 2 Felicia Anderson, Michael Manning, Miracle Manning, and Erica 3 Anderson -- whose names he apparently had obtained from the Diane 4 Manning case files he had reviewed at ACS's Brooklyn Field 5 Office.4 6 into the Southerland apartment the same day, June 6. 7 See Southerland II, 521 F. Supp. 2d at 224. 8 9 10 The Family Court issued an "Order Authorizing Entry" Three days later, on the evening of June 9, 1997, pursuant to the Order Authorizing Entry, Woo and another caseworker entered the Southerland apartment with the assistance 4 Woo listed the Manning Children's names at the top of the application, along with Southerland's name and the address of the Southerland apartment. The body of the application states in its entirety: I, Timothy Woo, Caseworker for ACS, am a person conducting a child protective investigation pursuant to the Social Services Law. I have reasonable cause to believe that the above named children may be found at the above premises. I have reason to believe that the children are abused or neglected children. The reasons and the sources of information are as follows: That on May 12, 1997, Sierra [sic] Manning, age 16 tried to kill herself by swallowing non-toxic paint. Mr. Sutherland [sic] did not take Sierra [sic] to a medical doctor and refused to take Sierra [sic] for psychiatric evaluation. Mr. Sutherland [sic] has refused to allow the Administration for Children's Services into his home to speak to the above named children. WHEREFORE, the applicant moves for an order authorizing the Administration for Children's Services accompanied by police to enter the premises to determine whether the above named children are present and to proceed thereafter with its child protective investigation. Application for Authorization to Enter Premises dated June 6, 1997, Ex. C to Silverberg Decl. 10 1 of officers from the New York City Police Department. 2 Southerland and the Southerland Children were present inside the 3 home. 4 happened next, from Woo's perspective: Woo Decl. ¶¶ 13-15, 19. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 The district court described what Woo determined that there were six children between the ages of three and nine residing in the apartment. He listed their names [correctly] as Venus, Sonny Jr., Nathaniel, Emmanuel, Kiam, and Elizabeth Felix. Soon after beginning his evaluation of the home, Woo called his supervisor [Balan] on his cell phone, described his observations, and answered his supervisor's questions. Woo reported that the four boys slept on the floor in one bedroom and the two girls slept on a cot in another bedroom. The children appeared as though they had not been bathed in days and their clothing was malodorous. In the refrigerator, Woo found only beer, a fruit drink, and English muffins. Woo did not examine the contents of the kitchen cupboards. The other caseworker observed that one child, Venus, was limping because of a foot injury. The child stated that she had stepped on a nail. The caseworker concluded that Southerland had not sought medical attention for her. Woo reported that the only light source in the bedroom area was from a blank television screen. Woo observed an electric lamp on the floor, without a shade, connected to an outlet in the living room by means of several extension cords along the floor. Woo reported that another room contained stacks of electronic equipment. Woo and his supervisor concluded that the children's safety was threatened, and Balan directed Woo to remove the children from the home. Id. at 224-25 (footnotes omitted).5 5 The district court summarized Woo's and Balan's stated reasons for removing the Children as including: the seriousness of the initial allegation in the Intake Report -- that Ciara had attempted suicide; that Southerland had failed to seek medical assistance for Ciara or for Venus; that he had resisted allowing ACS to visit his home; that he had refused to accept ACS services 11 1 As the district court also observed, the plaintiffs -- 2 relying primarily on later deposition testimony by Southerland -- 3 offer a starkly different description of the conditions in the 4 Southerland home at the time. 5 testimony, the apartment did not lack proper bedding; the boys 6 had a bunk bed in their room, although they preferred to sleep on 7 yellow foam sleeping pads on the floor. 8 children were not dirty; Southerland testified that he laundered 9 the children's clothing about once a week and bathed the children Id. at 225 n.11. According to Southerland's Id. at 225 n.10. The 10 daily. 11 it is also a reasonable inference from Southerland's testimony 12 that there was food in the cupboards (which Woo did not examine), 13 because Southerland testified that groceries for the household 14 were purchased on a regular basis. 15 household did not lack lighting; Southerland testified that he 16 had a lamp plugged into a wall in each room. 17 Finally, although Southerland does not dispute that Venus had a 18 foot injury, the plaintiffs stress Woo's concession that he did 19 not personally observe the injury during his assessment of the 20 home.6 There was food in the refrigerator, and Id. at 225 n.12. The Id. at 225 n.14. Id. at 225 n.13. or assistance; that the home lacked food and adequate light; that the use of multiple extension cords for the electronic equipment was dangerous; and that the children were dirty. This combination of factors, according to Woo and Balan, "established in [their] minds that Southerland could not parent the children responsibly." Southerland II, 521 F. Supp. 2d at 225. 6 After the Southerland Children's removal, Woo brought Venus "to a hospital based on the instructions of a nurse at the agency that first examined the children. At the hospital, the wound was dressed and the child received a tetanus shot." 12 1 In the early hours of June 10, 1997, at Balan's 2 direction, Woo removed the Southerland Children from the 3 Southerland home. 4 emergency shelter and arranged for emergency foster care. 5 226. 6 Woo took them to the ACS pre-placement Id. at At some point -- it is not clear exactly when -- Woo 7 interviewed Ciara Manning, whom he had found living at the home 8 of her friend. 9 abused her and threatened to kill her if she told anyone about it Ciara told Woo that her father had sexually 10 -- allegations she later recanted.7 11 also complained of various kinds of abuse and mistreatment at the 12 hands of Southerland and his companion, Vendetta Jones. 13 allegations concerning Ciara and the Southerland Children were 14 included in a verified petition filed by ACS with the Family 15 Court on June 13, 1997, and amended on June 27, 1997. 16 petitions commenced child-protective proceedings under Article 10 17 of the New York Family Court Act, §§ 1011 et seq., through which 18 ACS sought to have the Southerland Children adjudicated as abused 19 and neglected. The Southerland Children These The Southerland II, 521 F. Supp. 2d at 225 n.13. 7 On March 14, 2007, Southerland made a pro se submission to the district court requesting that the court take judicial notice of a number of documents, including a declaration by Ciara Manning that had been sworn on April 20, 2002. In that declaration, Ciara stated that Southerland had never molested or abused her in any way and that the statements she made previously to Woo and to the Family Court to that effect were false. See Pro Se Submission of Sonny B. Southerland at 26-27 (Dkt. No. 192), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Mar. 14, 2007). 13 1 On July 1, 1998, more than a year after the children 2 were removed from the Southerland home, the Kings County Family 3 Court concluded after a five-day trial that Southerland had 4 engaged in excessive corporal punishment of the Southerland 5 Children and that he had abused and neglected them. 6 also concluded that he had sexually abused his daughter Ciara. 7 The court ordered that the Southerland Children remain in foster 8 care, where they had resided since the June 1997 removal. 9 New York Appellate Division, Second Department, affirmed these The court The 10 orders, see In re Ciara M., 273 A.D.2d 312, 708 N.Y.S.2d 717 (2d 11 Dep't 2000), and the New York Court of Appeals denied leave to 12 appeal, see In re Ciara M., 95 N.Y.2d 767, 740 N.E.2d 653, 717 13 N.Y.S.2d 547 (2000). 14 In March 2004, nearly seven years after their removal 15 from the Southerland home, Sonny Jr. and Venus were permitted to 16 return to live with Southerland. 17 Nathaniel and Emmanuel were discharged from the juvenile justice 18 system by the Office of Children and Family Services and also 19 returned to the Southerland home. 20 from the record, neither Kiam nor Elizabeth ever returned to live 21 with Southerland. 22 Some seven months thereafter, As far as we can determine However strongly the facts of mistreatment found by the 23 Family Court at trial may indicate that Woo's perceptions about 24 the dangers to the Southerland Children of their remaining with 25 Southerland were correct, virtually none of this information was 26 in Woo's possession when he effected the June 9, 1997, entry and 14 1 removal, as the district court correctly observed. 2 Southerland II, 521 F. Supp. 2d at 226 n.19. 3 determined facts therefore do not bear upon our consideration of 4 whether Woo's actions in effecting the removal were 5 constitutional. See These subsequently See id. 6 Prior Federal Court Proceedings 7 In June 1999, some two years after the removal and 8 while the Southerland Children remained in foster care, 9 Southerland, on behalf of himself and his children, filed a pro 10 se complaint in the United States District Court for the Eastern 11 District of New York against more than forty defendants for the 12 allegedly wrongful removal of the Southerland Children from his 13 home. 14 Sifton, Judge) granted the defendants' motion to dismiss on 15 grounds that included failure to state a claim, failure to plead 16 certain matters with particularity, lack of subject-matter 17 jurisdiction, and Eleventh Amendment immunity. 18 Order (Dkt. No. 43), Southerland v. City of N.Y., No. 99-cv-3329 19 (E.D.N.Y. Feb. 2, 2000). 20 On February 1, 2000, the district court (Charles P. Southerland appealed. See Opinion & We affirmed in part, reversed in 21 part, and remanded the action. We ruled, inter alia, that the 22 district court had erred in dismissing Southerland's claims under 23 42 U.S.C. § 1983 relating to the seizure and removal of the 24 Southerland Children. 25 33, 36 (2d Cir. 2001) (summary order) ("Southerland I"). 26 concluded that the pro se complaint stated valid claims for See Southerland v. Giuliani, 4 F. App'x 15 We 1 violations of both the substantive and procedural components of 2 the Fourteenth Amendment's Due Process Clause. 3 We "emphasize[d] that our holding [wa]s limited to the claims 4 made directly by Sonny Southerland," noting that "[a]lthough the 5 children probably have similar claims, we have held that a non- 6 attorney parent must be represented by counsel in bringing an 7 action on behalf of his or her child." 8 internal quotation marks omitted). 9 the district court upon remand to determine whether Southerland 10 should be given a chance to hire a lawyer for his children or to 11 seek to have one appointed for them." 12 See id. at 36-37. Id. at 37 (citation and We therefore "le[ft] it to Id. On remand, the district court appointed counsel to 13 represent both Southerland and the Southerland Children.8 14 Southerland II, 521 F. Supp. 2d at 227. 15 through counsel, Southerland and the Southerland Children jointly 16 filed an amended complaint, id. at 221 & n.1, asserting nine 17 claims under 42 U.S.C. § 1983 against Woo and the City of New 18 York, id. at 221 n.2.9 In November 2002, 8 Michael G. O'Neill was appointed as counsel for both Southerland and the Southerland Children. In April 2004, Southerland resumed proceeding pro se before the district court, while Mr. O'Neill continued to represent the Southerland Children (including Venus and Sonny Jr., even after they were no longer minors). In April 2004, the district court also appointed a guardian ad litem to represent the Southerland Children's interests. Southerland II, 521 F. Supp. 2d at 221 n.1. In the instant appeals, Southerland represents himself pro se, while Mr. O'Neill continues to represent the Southerland Children. 9 The amended complaint did not name as defendants or assert any claims against any of the other thirty-nine defendants that had been named by Southerland in his original pro se complaint. Additionally, although Ciara was identified as a 16 1 In the amended complaint, Southerland asserts four 2 separate claims against Woo.10 3 unlawful-search claim, asserting that Woo's entry into his home 4 "without privilege, cause or justification" violated the Fourth 5 Amendment. 6 City of N.Y., No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002). 7 Southerland asserts a second Fourth Amendment unlawful-search 8 claim for Woo's remaining in his home even after discovering that 9 the children listed on the Order Authorizing Entry were not First, Southerland alleges an Am. Compl. ¶¶ 40-41 (Dkt. No. 75), Southerland v. 10 there. Third, Southerland asserts a Fourteenth Amendment 11 procedural due process claim for removal of the Southerland 12 Children from his home without a court order and in the absence 13 of an immediate threat of harm to their lives or health. 14 Finally, Southerland alleges a substantive due process claim, plaintiff in the original complaint, she was dropped from the suit when the amended complaint was filed. 10 The amended complaint also joins nine John Doe defendants, including all persons who "supervis[ed], monitor[ed] and assist[ed] Woo in his actions with respect to the [Southerland] Children." Am. Compl. ¶ 39 (Dkt. No. 75), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002). The complaint asserts that "said Does are individually liable to [Southerland] for the deprivation of his constitutional rights and the constitutional rights of the [Southerland] Children as alleged herein." Id. In their briefing on appeal, the plaintiffs do not address these John Doe defendants. We conclude that the plaintiffs have abandoned their claims against the John Does. We note that even if the plaintiffs now sought to amend their complaint to identify the John Doe defendants, the claims against the newly named defendants would be time-barred. See Tapia-Ortiz v. Doe, 171 F.3d 150, 151-52 (2d Cir. 1999) (per curiam); Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 468-70 (2d Cir. 1995), modified, 74 F.3d 1366 (2d Cir. 1996). 17 1 also under the Fourteenth Amendment, for Woo's removal of the 2 Southerland Children absent a reasonable basis for doing so. 3 The amended complaint also interposes various claims on 4 behalf of the Southerland Children. First, the Children assert 5 the same procedural due process claim under the Fourteenth 6 Amendment as does Southerland. 7 due process claim under the Fourteenth Amendment. 8 court recharacterized the latter claim as arising under the 9 Fourth Amendment's guarantee of protection against unlawful Second, they assert a substantive The district 10 seizure.11 11 Finally, the district court construed the amended complaint as 12 asserting on behalf of the Children the same two Fourth Amendment 13 unlawful-search claims as were asserted by Southerland. 14 See Southerland II, 521 F. Supp. 2d at 230 n.24. Southerland and the Southerland Children also bring 15 several claims against the City of New York. 16 that the City is liable under 42 U.S.C. § 1983 for the removal of 17 the Southerland Children insofar as that removal was conducted 18 pursuant to two alleged official City policies: to remove 19 children without a reasonable basis, and to remove children 20 without a court order despite the absence of any immediate threat 21 of harm to their lives or health. 22 Southerland Children also allege that high-ranking policymakers 11 Southerland asserts Southerland and the In so doing, the district court relied upon our statement, when the case was previously on appeal, that "[t]he children's claims for unreasonable seizure would proceed under the Fourth Amendment rather than the substantive component of the Due Process Clause." Southerland I, 4 F. App'x at 37 n.2 (citing Kia P. v. McIntyre, 235 F.3d 749, 757-58 (2d Cir. 2000)). 18 1 within the City's police department knew or should have known 2 that the City's failure to train police officers accompanying ACS 3 employees on home visits and investigations would deprive New 4 York City residents of their constitutional rights.12 5 On the defendants' motion for summary judgment, the 6 district court concluded that Woo was entitled to qualified 7 immunity as to all of the claims against him. 8 the Fourth Amendment unlawful-search claims, the court concluded 9 that the false and misleading statements made by Woo in his With respect to 10 application for the Order Authorizing Entry did not strip him of 11 qualified immunity because the plaintiffs could not show that 12 these statements were necessary to the finding of probable cause 13 to enter the home. 14 The court decided that qualified immunity was warranted because 15 "a corrected affidavit specifying all of the information known to 16 Woo establishes an objective basis that would have supported a 17 reasonable caseworker's belief that probable cause existed." 18 at 231 (brackets, citation, and internal quotation marks 19 omitted). 20 Southerland II, 521 F. Supp. 2d at 230-31. Id. With respect to the Southerland Children's Fourth 21 Amendment unlawful-seizure claim, and the procedural due process 22 claims brought by both sets of plaintiffs, the district court 23 decided that qualified immunity shielded Woo from liability 12 The district court later permitted the Southerland Children to assert their failure-to-train claim against the City not only with respect to the police, but also with respect to ACS. See Southerland II, 521 F. Supp. 2d at 235 n.34. 19 1 because his actions pre-dated the clear establishment of law in 2 this context, which in its view did not occur until this Court's 3 decision in Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 4 1999), cert. denied, 529 U.S. 1098 (2000). 5 521 F. Supp. 2d at 231-32. 6 See Southerland II, Lastly, with regard to Southerland's substantive due 7 process claim, the district court concluded that Woo was entitled 8 to qualified immunity because "it was objectively reasonable for 9 [him] to conclude that Southerland's substantive due process 10 rights were not violated" when Woo removed the Southerland 11 Children from the home, because "[b]rief removals of children 12 from their parents generally do not rise to the level of a 13 substantive due process violation, at least where the purpose of 14 the removal is to keep the child safe during investigation and 15 court confirmation of the basis for removal." 16 (brackets and internal quotation marks omitted). 17 Id. at 32 Notwithstanding the district court's conclusion that 18 Woo was entitled to qualified immunity as to every claim asserted 19 against him, the court proceeded to consider, in the alternative, 20 the underlying merits of the plaintiffs' various claims. 21 court decided that even in the absence of immunity, Woo would be 22 entitled to summary judgment with respect to the plaintiffs' 23 Fourth Amendment unlawful-search claims and Southerland's 24 substantive due process claim. 25 Fourth Amendment unlawful-search claims, the district court 26 decided that "no reasonable juror could infer that Woo knowingly The Specifically, with respect to the 20 1 and intentionally made false and misleading statements to the 2 family court in order to receive an order authorizing his entry 3 into the Southerland home." 4 Southerland's substantive due process claim, the court concluded 5 that "no reasonable juror could find that the removal of the 6 children from their home in order to verify that they had not 7 been neglected or abused was so 'shocking, arbitrary, and 8 egregious' that Southerland's substantive due process rights were 9 violated." Id. at 233. With respect to Id. at 234-35 (citation omitted). 10 The district court concluded that the City was also 11 entitled to summary judgment on all of the claims against it. 12 See Southerland II, 521 F. Supp. 2d at 235-39. 13 not appeal from that portion of the judgment and therefore have 14 abandoned their claims against the City. 15 Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). 16 The plaintiffs do See LoSacco v. City of The district court determined, however, that without 17 qualified immunity protection, summary judgment would not be 18 appropriate on the merits of the procedural due process claims 19 brought by both Southerland and the Southerland Children because, 20 "[a]lthough defendants argue that the 'totality of the 21 circumstances' Woo encountered in the Southerland home required 22 an ex parte removal, they fail to explain why there was not 23 sufficient time for Woo to seek a court order removing the 24 children." 25 would summary judgment be appropriate on the merits of the 26 Southerland Children's Fourth Amendment unlawful-seizure claim, See Southerland II, 521 F. Supp. 2d at 235 n.31. 21 Nor 1 the district court said, because the defendants could not explain 2 "why the particular circumstances that Woo encountered in the 3 Southerland home established that there was imminent danger to 4 the children's life or limb requiring removal in the absence of a 5 court order." 6 Id. at 234 n.29. Both Southerland and the Southerland Children now 7 appeal from the dismissal of each of their claims against Woo, 8 except for one Fourth Amendment claim brought by all plaintiffs. 9 The plaintiffs have not appealed the district court's adverse 10 ruling as to their claim that Woo violated the Fourth Amendment 11 by remaining in their home even after determining that the 12 children listed on the Order Authorizing Entry were not present. 13 14 We vacate and remand with respect to each of the plaintiffs' claims that have been preserved for appeal. 15 DISCUSSION 16 I. Standard of Review 17 "We review a district court's grant of summary judgment 18 de novo, construing the evidence in the light most favorable to 19 the non-moving part[ies] and drawing all reasonable inferences in 20 [their] favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 21 (2d Cir. 2005). "[S]ummary judgment is appropriate where there 22 exists no genuine issue of material fact and, based on the 23 undisputed facts, the moving party is entitled to judgment as a 24 matter of law." 25 Cir.), cert. denied, 524 U.S. 911 (1998); see Fed. R. Civ. P. 26 56(a). D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d 22 1 II. Qualified Immunity 2 Qualified immunity shields public officials from 3 liability "insofar as their conduct does not violate clearly 4 established statutory or constitutional rights of which a 5 reasonable person would have known." 6 U.S. 800, 818 (1982). 7 to qualified immunity if (1) their conduct does not violate 8 clearly established constitutional rights, or (2) it was 9 objectively reasonable for them to believe their acts did not Harlow v. Fitzgerald, 457 "In general, public officials are entitled 10 violate those rights." Holcomb v. Lykens, 337 F.3d 217, 220 (2d 11 Cir. 2003) (internal quotation marks omitted). 12 also entitled to qualified immunity "if officers of reasonable 13 competence could disagree on the legality of the action at issue 14 in its particular factual context." 15 612 F.3d 149, 165 (2d Cir. 2010) (internal quotation marks 16 omitted). An officer is Manganiello v. City of N.Y., 17 18 III. Overview of Constitutional Law in the Context of the State's Removal of Children from Their Home 19 As we observed in a decision post-dating the events at 20 issue in these appeals, "[p]arents . . . have a constitutionally 21 protected liberty interest in the care, custody and management of 22 their children." 23 Granville, 530 U.S. 57, 65-66 (2000) (collecting cases concerning 24 the "fundamental right of parents to make decisions concerning 25 the care, custody, and control of their children"). 26 have a parallel constitutionally protected liberty interest in 27 not being dislocated from the emotional attachments that derive 23 Tenenbaum, 193 F.3d at 593; see also Troxel v. "[C]hildren 1 from the intimacy of daily family association." 2 McIntyre, 235 F.3d 749, 759 (2d Cir. 2000) (brackets and internal 3 quotation marks omitted), cert. denied, 534 U.S. 820 (2001); see 4 also Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) 5 ("Th[e] right to the preservation of family integrity encompasses 6 the reciprocal rights of both parent and children."). 7 state's removal of a child from his or her parent may give rise 8 to a variety of cognizable constitutional claims. 9 Kia P. v. The First, both the parents and the children may have a 10 cause of action for violation of the Fourteenth Amendment under a 11 theory of denial of procedural due process. 12 Amendment imposes a requirement that except in emergency 13 circumstances, judicial process must be accorded both parent and 14 child before removal of the child from his or her parent's 15 custody may be effected. 16 Tenenbaum, 193 F.3d at 593-94; Duchesne, 566 F.2d at 825-26. 17 Both Southerland and the Southerland Children have asserted such 18 a procedural due process claim against Woo in this case. 19 The Fourteenth See, e.g., Kia P., 235 F.3d at 759-60; Second, a parent may also bring suit under a theory of 20 violation of his or her right to substantive due process. 21 Southerland does so here. 22 under the Due Process Clause to remain together [with their 23 children] without the coercive interference of the awesome power 24 of the state." 25 marks omitted); see also, e.g., Anthony v. City of N.Y., 339 F.3d 26 129, 142-43 (2d Cir. 2003); Kia P., 235 F.3d at 757-58. Parents have a "substantive right Tenenbaum, 193 F.3d at 600 (internal quotation 24 Such a 1 claim can only be sustained if the removal of the child "would 2 have been prohibited by the Constitution even had the [parents] 3 been given all the procedural protections to which they were 4 entitled." 5 In other words, while a procedural due process claim challenges 6 the procedure by which a removal is effected, a substantive due 7 process claim challenges the "fact of [the] removal" itself. 8 Bruker v. City of N.Y., 92 F. Supp. 2d 257, 266-67 (S.D.N.Y. 9 2000). 10 Tenenbaum, 193 F.3d at 600 (emphasis in original). For such claims brought by children, however, we have 11 concluded that the Constitution provides an alternative, more 12 specific source of protection.13 13 state custody, his or her person is "seized" for Fourth Amendment 14 purposes. 15 Fourth Amendment that the seizure of his or her person was 16 unreasonable. 17 belongs only to the child, not to the parent, although a parent 18 has standing to assert it on the child's behalf. 19 n.13. 20 at 37 n.2, the district court determined that the Southerland 21 Children's substantive due process claim should be construed When a child is taken into The child may therefore assert a claim under the See Tenenbaum, 193 F.3d at 602. Such a claim Id. at 601 In accordance with our order in Southerland I, 4 F. App'x 13 "Where another provision of the Constitution provides an explicit textual source of constitutional protection, a court must assess a plaintiff's claims under that explicit provision and not the more generalized notion of substantive due process." Kia P., 235 F.3d at 757-58 (quoting Conn v. Gabbert, 526 U.S. 286, 293 (1999)) (brackets and internal quotation marks omitted). 25 1 instead as a Fourth Amendment unlawful-seizure claim. 2 Southerland II, 521 F. Supp. 2d at 230 n.24. 3 See Finally, depending on the circumstances in which a 4 removal occurs, other Fourth Amendment claims might also be 5 viable. 6 two Fourth Amendment claims for unlawful search: one claim 7 relating to Woo's entry into the Southerland home, and one (now 8 abandoned) claim relating to Woo's remaining in the home even 9 after determining that the Manning Children were not present. Here, Southerland and the Southerland Children asserted 10 Both claims were based on an allegation that Woo made false 11 statements to the Family Court in order to obtain the Order 12 Authorizing Entry, and therefore that there was no probable cause 13 to carry out a search of the Southerland apartment. 14 IV. The Fourth Amendment Unlawful-Search Claims 15 The district court determined that summary judgment was 16 warranted on the plaintiffs' Fourth Amendment unlawful-search 17 claims on two separate grounds. 18 concluded that Woo was entitled to qualified immunity under the 19 "corrected affidavit" doctrine. 20 F. Supp. 2d at 230-31. 21 Woo was entitled to summary judgment on the merits because no 22 reasonable juror could find that Woo had knowingly made false or 23 misleading statements in seeking to obtain the Order Authorizing 24 Entry. Id. at 233. First, the district court See Southerland II, 521 Second, the district court decided that We disagree with both conclusions. 26 1 A. The Corrected-Affidavit Doctrine 2 We begin with the plaintiffs' argument that the 3 district court erred in its application of the corrected- 4 affidavit doctrine, under which a defendant who makes erroneous 5 statements of fact in a search-warrant affidavit is nonetheless 6 entitled to qualified immunity unless the false statements in the 7 affidavit were "necessary to the finding of probable cause." 8 Martinez v. City of Schenectady, 115 F.3d 111, 115 (2d Cir. 1997) 9 (internal quotation marks omitted). In order to determine 10 whether false statements were "necessary to the finding of 11 probable cause," the court must "put aside allegedly false 12 material, supply any omitted information, and then determine 13 whether the contents of the 'corrected affidavit' would have 14 supported a finding of probable cause." 15 internal quotation marks omitted). 16 affidavit doctrine, qualified immunity is warranted only if, 17 after correcting for the false or misleading statements, the 18 affidavit accompanying the warrant was sufficient "to support a 19 reasonable officer's belief that probable cause existed." 20 (internal quotation marks omitted). 21 Id. (citation and In applying the corrected- Id. The district court, which "assum[ed] for purposes of 22 the qualified immunity defense that Woo made false and misleading 23 statements" in applying for the Order Authorizing Entry, 24 Southerland II, 521 F. Supp. 2d at 230, correctly noted that the 25 plaintiffs "would still have to demonstrate that those statements 26 were necessary to the finding of probable cause for qualified 27 1 immunity not to attach to Woo's actions," id. at 230-31 (citation 2 and internal quotation marks omitted). 3 Woo was entitled to qualified immunity based on its conclusion 4 that a corrected affidavit, containing all of the information 5 available to Woo at the time the affidavit was made, would have 6 supported a finding of probable cause to enter the home. 7 231. 8 9 We disagree. The court determined that Id. at Section 1034(2) of the New York State Family Court Act, which provides the evidentiary standard for a 10 showing of probable cause sufficient for the issuance of an 11 investigative order, governed Woo's application to obtain the 12 Order Authorizing Entry. 13 2007 decision, cited the statute as it had been amended in 14 January 2007. 15 at the time of Woo's application was materially different. 16 the version of the statute that applied at the time of Woo's 17 actions, the affiant was required to demonstrate "probable cause 18 to believe that an abused or neglected child may be found on 19 premises," N.Y. Fam. Ct. Act § 1034(2) (McKinney's 1997) 20 (emphasis added), presumably meaning the "premises" identified in 21 the application submitted to the Family Court. 22 The district court, in its September See id. at 224 n.7. But the version that governed Under The district court should have engaged in its 23 corrected-affidavit analysis with reference to the earlier law. 24 The children that Woo listed on his application for the Order 25 Authorizing Entry -- the Manning Children and Ciara -- were 26 children who did not reside "on premises" in the Southerland 28 1 home. The district court concluded that "a properly made 2 application would still list Ciara Manning on the application 3 because Southerland is her father and was the parent legally 4 responsible for her care, even if she had run away." 5 II, 521 F. Supp. 2d at 231. 6 under the statute as amended in 2007, but it is not relevant to 7 the appropriate question under the applicable version of the law: 8 whether there existed probable cause for Woo to believe that 9 Ciara Manning could be found "on premises" at the Southerland Southerland That may be relevant to an inquiry 10 home. In fact, she, like the Manning Children, was not "on 11 premises." 12 the information in the initial Intake Report transmitted to Woo; 13 from the guidance counselor's statement to Woo that Southerland 14 did not approve of the place where Ciara was staying; and from 15 Southerland's own statements during his May 30 telephone 16 conversation with Woo that Ciara was a runaway and did not live 17 at his home.14 14 And Woo had reason to know that she was not -- from The defendants also argue, with respect to the probable cause determination, that irrespective of the requirements of New York Family Court Act § 1034(2), Woo was required to visit the Southerland home under a provision of the New York Social Services Law that requires that, within twenty-four hours of receipt of a "report[] of suspected child abuse or maltreatment" as provided for under New York Social Services Law § 424(1), ACS must undertake an investigation that includes "an evaluation of the environment of the child named in the report and any other children in the same home," id. § 424(6)(a). However, considering that Woo had reason to know that Ciara, the child identified in the report, was not living at the Southerland home -- and, indeed, reason to know that none of the children named in his application to the Family Court were living there -- his reliance on this provision of the Social Services Law fails. If Ciara was not living "on premises" at the Southerland home, Woo was not entitled to enter the home to evaluate this 29 1 The plaintiff children point out that there were other 2 deficiencies in the district court's corrected-affidavit analysis 3 that undermine the court's conclusion that the information known 4 to Woo at the time he applied for the Order Authorizing Entry 5 would have supported a finding of probable cause. 6 Woo's application stated that Ciara "tried to kill herself by 7 swallowing non-toxic paint," and that Southerland "did not take 8 [Ciara] to a medical doctor and refused to take [Ciara] for 9 psychiatric evaluation." For example, Application for Authorization to Enter 10 Premises dated June 6, 1997, at 1 ("June 6 Application"), Ex. C 11 to Silverberg Decl. 12 application omitted several relevant facts that, according to 13 Southerland's version of events, were known to Woo at that time: 14 that the paint-swallowing incident took place at school, not at 15 home; that Southerland was willing to obtain treatment for his 16 daughter, but had trouble doing so, precisely because she was not 17 living in his home; and that Southerland had attempted to assert 18 control over his daughter by applying for PINS warrants. 19 Southerland Children's Br. at 30-31; see also id. at 28-36 20 (disputing additional assertions of fact, such as whether the 21 swallowing of paint indeed was a suicide attempt). 22 plaintiff children put it: 23 24 25 26 27 The plaintiff children argue that the As the Woo's omission of the fact that the incident took place at school allowed the court to assume that the suicide attempt took place in Southerland's residence. The overall picture painted by Woo is that Southerland's daughter "environment," nor to evaluate the other children living there. 30 1 2 3 4 5 6 7 8 9 10 11 12 attempted to kill herself, that Southerland did nothing about it, and refused to let others do something about it as well. By omitting the fact that the daughter was not even living at the Southerland apartment, Woo gave the family court the impression that it was necessary to allow Woo to enter the apartment in order to render assistance to a suicidal teenager in the home of a parent who could not be bothered to help her and who prevented the efforts of ACS to provide help to her. 13 Id. at 31-32. 14 information in its recitation of facts, Southerland II, 521 F. 15 Supp. 2d at 222-23 & nn.4 & 5, but it did not factor these 16 considerations into its application of the corrected-affidavit 17 doctrine. 18 The district court included much of this We have observed that the materiality of a 19 misrepresentation or omission in an application for a search 20 warrant is a mixed question of law and fact.15 21 40 F.3d 569, 574 (2d Cir. 1994). 22 whether the information is relevant to the probable cause 23 determination under controlling substantive law." 24 weight that a neutral magistrate would likely have given such 25 information," however, is a question for the factfinder. 26 In such circumstances, a court may grant summary judgment to a 27 defendant based on qualified immunity only where "the evidence, 28 viewed in the light most favorable to the plaintiffs, discloses 29 no genuine dispute that a magistrate would have issued the 15 Velardi v. Walsh, "The legal component depends on Id. "[T]he Id. In child-abuse investigations, a Family Court order is equivalent to a search warrant for Fourth Amendment purposes. See Nicholson v. Scoppetta, 344 F.3d 154, 176 (2d Cir. 2003); Tenenbaum, 193 F.3d at 602. 31 1 warrant on the basis of the corrected affidavits." 2 Rio, 496 F.3d 139, 158 (2d Cir. 2007) (emphasis, citation, and 3 internal quotation marks omitted). 4 matter of law -- although a trier of fact might so conclude after 5 an evidentiary hearing -- that the Family Court, in deciding 6 whether there was "probable cause to believe that an abused or 7 neglected child may [have] be[en] found [in the Southerland 8 home]," N.Y. Fam. Ct. Act § 1034(2), would have issued the order 9 had a corrected affidavit been presented to it. 10 11 B. Walczyk v. We cannot conclude as a Knowing or Reckless Misstatements of Fact The district court also concluded that even if the 12 corrected-affidavit doctrine did not apply, summary judgment was 13 appropriate because, on the merits, "no reasonable juror could 14 infer that Woo knowingly and intentionally made false and 15 misleading statements to the family court in order to receive an 16 order authorizing his entry into the Southerland home." 17 Southerland II, 521 F. Supp. 2d at 233. 18 the district court concluded that "the [O]rder [Authorizing 19 Entry] was issued with probable cause and Woo's entry into and 20 search of Southerland's home did not violate plaintiffs' Fourth 21 Amendment rights." 22 Based on that premise, Id. We disagree. If the district court were correct that 23 Woo did not knowingly make false and misleading statements, that 24 would entitle Woo to qualified immunity, but would not 25 necessarily render his underlying conduct lawful. 26 alleges a Fourth Amendment violation arising from a search 32 When a person 1 executed by a state official, "the issuance of a search 2 warrant . . . creates a presumption that it was objectively 3 reasonable for the [defendant] to believe that the search was 4 supported by probable cause" so as to render the defendant 5 qualifiedly immune from liability. 6 To defeat the presumption of reasonableness, a plaintiff must 7 make "a substantial preliminary showing that the affiant 8 knowingly and intentionally, or with reckless disregard for the 9 truth, made a false statement in his affidavit and that the Martinez, 115 F.3d at 115. 10 allegedly false statement was necessary to the finding of 11 probable cause" for which the warrant was issued. 12 of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (internal 13 quotation marks omitted), cert. denied, 505 U.S. 1221 (1992). 14 Golino v. City We need not consider further whether the district court 15 erred by confusing the qualified immunity and merits analyses, 16 however, because we also do not agree with the district court's 17 premise that no reasonable juror could find that Woo did not 18 knowingly or recklessly make false statements. 19 several disputed facts, taken together and viewed in the light 20 most favorable to the plaintiffs, would permit -- though not 21 require -- a reasonable factfinder to find otherwise. 22 We think that First, substantial evidence, viewed in the light most 23 favorable to the plaintiffs, suggests that Woo had reason to know 24 that Ciara was not residing at the Southerland home when he 25 applied for the Order Authorizing Entry. 26 Intake Report informed ACS that Ciara "may be staying out of the 33 For example, the May 29 1 home in an i[m]proper enviro[n]ment." 2 Southerland told Woo on May 30 that Ciara was a runaway and that 3 he had taken out PINS warrants against her. 4 F. Supp. 2d at 223. 5 application to the Family Court on June 6 was knowingly or 6 recklessly misleading in stating: 7 believe that the above named children [including Ciara] may be 8 found at the above premises [the Southerland home]." 9 Application at 1. 10 Intake Report at 3. And Southerland II, 521 A reasonable juror could find that Woo's "I have reasonable cause to June 6 Second, evidence in the record, again viewed in the 11 light most favorable to the plaintiffs, would permit a reasonable 12 juror to conclude that Woo had knowingly or recklessly 13 misrepresented the nature of the paint-swallowing incident in his 14 application. 15 school counselor that Ciara had "swallowed non-toxic paint at 16 school" and had been "acting out and expressing thoughts of 17 suicide." 18 that Southerland had failed to seek medical treatment for Ciara, 19 see id., Southerland later explained to Woo that the reason he 20 had not taken Ciara for treatment was that she did not reside 21 with Southerland and did not listen to him, id. ¶ 8. 22 application represented to the Family Court that Ciara "tried to 23 kill herself by swallowing non-toxic paint" and that Southerland 24 "did not take [her] to a medical doctor and refused to take [her] 25 for psychiatric evaluation." 26 reasonable trier of fact might find the foregoing statements to About one week before June 6, Woo learned from a Woo Decl. ¶ 6. Although the counselor informed Woo June 6 Application at 1. 34 Yet Woo's A 1 be materially misleading insofar as they characterize Ciara's 2 paint-swallowing as a suicide attempt; fail to note that the 3 incident occurred at school rather than in Southerland's home; 4 and omit the fact that Ciara may have been living outside the 5 home and free from Southerland's control. 6 Finally, the district court overlooked the parties' 7 dispute concerning Woo's knowledge about which children resided 8 in the Southerland apartment. 9 "had reason to believe that the Manning children would be found 10 in the Southerland apartment because of a separate investigation 11 of the Manning children and his personal observation that there 12 were other children in the Southerland home who had not yet been 13 positively identified." 14 But, as the district court opinion elsewhere observes, on June 4, 15 1997 -- two days before he applied for the Order Authorizing 16 Entry -- Woo met the Southerland Children emerging from the 17 Southerland apartment and wrote down their names. 18 223-24 & n.6. 19 to whether Woo in fact believed, as he wrote in his application 20 to the Family Court, that it was the Manning Children and not the 21 Southerland Children who were in the Southerland home, or whether 22 he recklessly confused or knowingly conflated the two. 23 The district court stated that Woo Southerland II, 521 F. Supp. 2d at 233. See id. at We think that there is a triable issue of fact as Although these alleged misrepresentations may turn out 24 to be no more than accidental misstatements made in haste, the 25 plaintiffs have nonetheless made a "substantial preliminary 26 showing" that Woo knowingly or recklessly made false statements 35 1 in his application for the Order Authorizing Entry. 2 F.2d at 870 (internal quotation marks omitted). 3 rebuts the presumption of reasonableness that would otherwise 4 apply to shield Woo with qualified immunity at the summary 5 judgment stage. 6 Golino, 950 This showing In sum, because we conclude that genuine issues of 7 material fact exist, both as to whether Woo knowingly or 8 recklessly made false statements in his affidavit to the Family 9 Court and as to whether such false statements were necessary to 10 the court's finding of probable cause, we vacate the district 11 court's grant of summary judgment on the plaintiffs' Fourth 12 Amendment unlawful-search claims. 13 Once again, we note that a trier of fact might, after 14 review of the evidence, conclude that the errors in the June 6 15 Application were either accidental or immaterial. 16 grant of summary judgment because we cannot reach that conclusion 17 ourselves on the current record as a matter of law. We vacate the 18 V. The Plaintiffs' Procedural Due Process Claims 19 Southerland and the Southerland Children each assert a 20 procedural due process claim against Woo. 21 held that Woo was entitled to qualified immunity on these claims. 22 We disagree. 23 A. 24 The district court Procedural Due Process in the Child-Removal Context "'As a general rule . . . before parents may be 25 deprived of the care, custody, or management of their children 26 without their consent, due process -- ordinarily a court 36 1 proceeding resulting in an order permitting removal -- must be 2 accorded to them.'" 3 (2d Cir. 2003) (quoting Tenenbaum, 193 F.3d at 593). 4 'in emergency circumstances, a child may be taken into custody by 5 a responsible State official without court authorization or 6 parental consent.'" 7 "'If the danger to the child is not so imminent that there is 8 reasonably sufficient time to seek prior judicial authorization, 9 ex parte or otherwise, for the child's removal, then the Nicholson v. Scoppetta, 344 F.3d 154, 171 "However, Id. (quoting Tenenbaum, 193 F.3d at 594). 10 circumstances are not emergent.'" 11 F.3d at 594). 12 Id. (quoting Tenenbaum, 193 To prevail, "[t]he government must offer 'objectively 13 reasonable' evidence that harm is imminent." 14 have not exhaustively set forth the types of factual 15 circumstances that constitute imminent danger justifying 16 emergency removal as a matter of federal constitutional law, we 17 have concluded that these circumstances include "the peril of 18 sexual abuse," id., the "risk that children will be 'left bereft 19 of care and supervision,'" id. (quoting Hurlman v. Rice, 927 F.2d 20 74, 80 (2d Cir. 1991)), and "immediate threat[s] to the safety of 21 the child," Hurlman, 927 F.2d at 80 (internal quotation marks 22 omitted); see also N.Y. Fam. Ct. Act § 1024(a) (defining 23 emergency circumstances, for the purposes of state law, as 24 "circumstance[s]" wherein a child's remaining in the parent's 25 care and custody "presents an imminent danger to the child's life 26 or health"). 37 Id. Although we 1 B. Analysis 2 The district court correctly concluded that summary 3 judgment was not appropriate on the underlying merits of the 4 plaintiffs' procedural due process claims because Woo did not 5 demonstrate, as a matter of law, that he did not have time to 6 obtain a court order authorizing the removal of the Southerland 7 Children before taking that act. 8 Supp. 2d at 235 n.31 (citing Nicholson, 344 F.3d at 171). 9 court nonetheless granted summary judgment on qualified immunity See Southerland II, 521 F. The 10 grounds, concluding that "the law concerning procedural due 11 process rights in the context of child removals was not clearly 12 defined at the time of the events in question." Id. at 232. 13 But in Hurlman, we recognized that 14 15 16 17 18 19 20 21 22 23 24 25 officials may remove a child from the custody of the parent without consent or a prior court order only in "emergency" circumstances. Emergency circumstances mean circumstances in which the child is immediately threatened with harm, for example, where there exists an immediate threat to the safety of the child, or where the child is left bereft of care and supervision, or where there is evidence of serious ongoing abuse and the officials have reason to fear imminent recurrence. 26 Hurlman, 927 F.2d at 80 (citations and internal quotation marks 27 omitted); see also Robison v. Via, 821 F.2d 913, 921-22 (2d Cir. 28 1987) (describing the "'emergency' circumstances" exception and 29 collecting cases).16 16 We disagree and Robison are not in those cases were court order (albeit It thus was clearly established at the time with the defendants' assertion that Hurlman controlling here because the state officers unlawfully on the premises, whereas Woo had a a disputed one) to enter the Southerland 38 1 of the Southerland Children's removal that state officials could 2 not remove a child from the custody of a parent without either 3 consent or a prior court order unless "'emergency' circumstances" 4 existed. 5 N.Y., 967 F.2d 826, 829-30 (2d Cir. 1992) (setting forth "clearly 6 established" procedural due process principles); see also Velez 7 v. Reynolds, 325 F. Supp. 2d 293, 314-15 (S.D.N.Y. 2004) 8 (explaining the principles). 9 Hurlman, 927 F.2d at 80; see also Cecere v. City of In concluding that the law of procedural due process 10 was not clearly established in the child-removal context in 1997, 11 the district court in the case at bar relied primarily on our 12 decision in Tenenbaum. 13 impression that "where there is reasonable time consistent with 14 the safety of the child to obtain a judicial order, the 15 'emergency' removal of a child is unwarranted." 16 F.3d at 596. 17 in 1990 -- the year the underlying conduct at issue in Tenenbaum 18 took place -- we affirmed the district court's decision in that 19 case that the defendants were entitled to qualified immunity. 20 also made clear, however, that even in 1990, "it was established 21 as a general matter . . . that 'except where emergency 22 circumstances exist' a parent can 'not be deprived' of the 23 custody of his or her child 'without due process, generally in There we held as a matter of first Tenenbaum, 193 Because this principle was not clearly established We home. Woo's removal of the Southerland Children was without prior judicial authorization. Although Woo did have a court order to enter the home, then, he did not have an order to remove the Southerland Children from it. See Southerland II, 521 F. Supp. 2d at 224, 226, 235 n.31. 39 1 the form of a predeprivation hearing.'" 2 Id. at 596 (quoting Hurlman, 927 F.2d at 79). 3 In the present case, the plaintiffs assert "not solely 4 that defendants had sufficient time to obtain a court order, but 5 that the circumstances in which Woo found the children did not 6 warrant their removal at all, whether evaluated by pre- or post- 7 Tenenbaum standards." 8 understand the plaintiffs' contention to be that "emergency 9 circumstances" warranting removal simply did not exist. 10 Southerland Children's Br. at 39.17 We The district court did not decide as a matter of law 11 that emergency circumstances existed in the Southerland home. 12 the contrary, the district court concluded that "[v]iewing the 13 facts in the light most favorable to plaintiffs, a reasonable 14 juror could determine that the circumstances Woo encountered did 15 not demonstrate an imminent danger to the children's life or 16 limb." 17 Southerland II, 521 F. Supp. 2d at 234 n.29. To The court In Tenenbaum, a removal was carried out because the child had reported -- albeit under questionable circumstances -that her father had sexually abused her. See Tenenbaum, 193 F.3d at 594. There was no doubt at the time that the possibility of sexual abuse was, as it always is, a serious concern. At issue was whether there was nonetheless time under the circumstances to secure a court order prior to effecting the removal without risking imminent danger to the child. See id. at 608 (Jacobs, J., dissenting) (describing majority opinion as holding that, while there was "exigency," there was still no "emergency," because there was time to obtain a court order). Tenenbaum represented a novel application of procedural due process law because of the majority's holding that regardless of the seriousness of the allegations, it was still necessary to obtain a court order if time permitted. Here, by contrast, we understand the plaintiffs to assert that the circumstances presented did not necessitate an inquiry into whether there was time to obtain a court order, because the conditions in the Southerland home were not grave enough to trigger that inquiry. 40 1 further decided that "a reasonable juror could find that there 2 was sufficient time to acquire a court order prior to the 3 removal." 4 with which we agree, and our assessment that the relevant law was 5 clearly established in 1997, we cannot conclude as a matter of 6 law that "it was objectively reasonable for [Woo] to believe 7 [that his] acts did not violate those [clearly established] 8 rights." 9 is not available to Woo on the plaintiffs' procedural due process Id. at 235 n.31. In light of those determinations, Holcomb, 337 F.3d at 220. Qualified immunity therefore 10 claims at the summary judgment stage. Because summary judgment 11 also cannot be granted to the defendants on the underlying merits 12 of these claims,18 we vacate the grant of summary judgment to Woo 13 as to the procedural due process claims. 14 VI. Southerland's Substantive Due Process Claim 15 Southerland asserts a substantive due process claim 16 against Woo under the Fourteenth Amendment. 17 held not only that qualified immunity attached to Woo's actions, 18 The district court The district court correctly noted that there are material factual disputes concerning whether emergency circumstances existed warranting the immediate removal of the Southerland Children from their home. See Southerland II, 521 F. Supp. 2d at 234 n.29 & 235 n.31. But even where emergency circumstances warranting removal exist, "'the constitutional requirements of notice and opportunity to be heard are not eliminated but merely postponed.'" Kia P., 235 F.3d at 760 (quoting Duchesne, 566 F.2d at 826). Therefore, a plaintiff may have a viable claim for violation of procedural due process even where emergency circumstances existed at the time of removal, if the plaintiff does not receive a timely and adequate postdeprivation hearing. See id. at 760-61. In this case, as will be explained below, important factual questions remain concerning the post-removal judicial confirmation proceedings, if any, that took place in the days after the Southerland Children's removal from their home. 41 1 but also that summary judgment would be warranted on the merits 2 even in the absence of qualified immunity. 3 conclusions. 4 A. 5 We disagree with both Substantive Due Process in the Child-Removal Context Substantive due process guards a person's rights 6 "against the government's 'exercise of power without any 7 reasonable justification in the service of a legitimate 8 governmental objective.'" 9 County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). 10 establish a violation of substantive due process rights, a 11 plaintiff must demonstrate that the state action was 'so 12 egregious, so outrageous, that it may fairly be said to shock the 13 contemporary conscience.'" 14 Police Dep't, 577 F.3d 415, 431 (2d Cir. 2009) (quoting Lewis, 15 523 U.S. at 847 n.8). 16 protected right must be "'so shocking, arbitrary, and egregious 17 that the Due Process Clause would not countenance it even were it 18 accompanied by full procedural protection.'" 19 at 143 (quoting Tenenbaum, 193 F.3d at 600); see also Lewis, 523 20 U.S. at 840 (doctrine of substantive due process "bar[s] certain 21 government actions regardless of the fairness of the procedures 22 used to implement them" (internal quotation marks omitted)). 23 Thus, in the child-removal context, we ask whether "the 24 removal . . . would have been prohibited by the Constitution even 25 had the [plaintiffs] been given all the procedural protections to Tenenbaum, 193 F.3d at 600 (quoting "To Okin v. Vill. of Cornwall-on-Hudson The interference with the plaintiff's 42 Anthony, 339 F.3d 1 which they were entitled." 2 omitted). 3 Tenenbaum, 193 F.3d at 600 (emphasis We have long recognized that parents have a 4 "constitutionally protected liberty interest in the care, custody 5 and management of their children," id. at 593, and that the 6 deprivation of this interest is actionable under a theory of 7 substantive due process, see id. at 600 (recognizing a 8 "substantive right under the Due Process Clause 'to remain 9 together without the coercive interference of the awesome power 10 of the state'" (quoting Duchesne, 566 F.2d at 825)). 11 also observed, however, that "[a]lthough parents enjoy a 12 constitutionally protected interest in their family integrity, 13 this interest is counterbalanced by the compelling governmental 14 interest in the protection of minor children, particularly in 15 circumstances where the protection is considered necessary as 16 against the parents themselves." 17 Russell, 182 F.3d 89, 104 (2d Cir. 1999) (internal quotation 18 marks omitted), cert. denied, 528 U.S. 1155 (2000). We have Wilkinson ex rel. Wilkinson v. 19 We have explained that, in part because the law 20 contemplates a careful balancing of interests, a parent's 21 substantive constitutional rights are not infringed if a 22 caseworker, in effecting a removal of a child from the parent's 23 home, has a reasonable basis for thinking that a child is abused 24 or neglected. 25 governing case workers which reflects the recognized need for 26 unusual deference in the abuse investigation context. See id. "This Circuit has adopted a standard 43 An 1 investigation passes constitutional muster provided simply that 2 case workers have a 'reasonable basis' for their findings of 3 abuse." 4 "reasonable basis test" requires that caseworkers' decisions to 5 substantiate an allegation of child abuse "be consistent with 6 some significant portion of the evidence before them"). 7 applied this "reasonable basis" standard from time to time in 8 recent years. 9 City of N.Y., 289 F.3d 49, 60 (2d Cir. 2002); Kia P., 235 F.3d at 10 Id.; see also id. at 108 (concluding that the We have See, e.g., Nicholson, 344 F.3d at 174; Phifer v. 758-59. 11 We have also recognized that substantive due process 12 claims in the child-removal context have a temporal dimension. 13 Because state interference with a plaintiff's liberty interest 14 must be severe before it rises to the level of a substantive 15 constitutional violation, see, e.g., Anthony, 339 F.3d at 143, 16 "brief removals [of a child from a parent's home] generally do 17 not rise to the level of a substantive due process violation, at 18 least where the purpose of the removal is to keep the child safe 19 during investigation and court confirmation of the basis for 20 removal," Nicholson, 344 F.3d at 172 (citing Tenenbaum, 193 F.3d 21 at 600 01 & n.12); see also Cecere, 967 F.2d at 830 (ruling that 22 plaintiff's due process claim failed because a "brief" four-day 23 removal, executed "in the face of a reasonably perceived 24 emergency," did not violate due process); Joyner ex rel. Lowry v. 25 Dumpson, 712 F.2d 770, 779 (2d Cir. 1983) (no substantive 26 violation where temporary transfer of custody to foster-care 44 1 system did not "result in parents' wholesale relinquishment of 2 their right to rear their children"). 3 B. Analysis 4 The district court, in deciding that qualified immunity 5 protection prevailed, concluded that it was objectively 6 reasonable for Woo to think that Southerland's substantive due 7 process rights were not being violated because "[b]rief removals 8 of children from their parents generally do not rise to the level 9 of a substantive due process violation," Southerland II, 521 F. 10 Supp. 2d at 232 (brackets and internal quotation marks omitted), 11 and because the Southerland Children "were removed in the context 12 of a child protective investigation [in which] removal would be 13 subject to court confirmation," id.; see also id. at 234 14 (suggesting that "a family court judge confirmed the removal" at 15 a "timely post-deprivation hearing"). 16 We agree in principle. The removal of a child from his 17 or her parent does not violate the parent's substantive due 18 process rights if a post-removal judicial proceeding is promptly 19 held to confirm that there exists a reasonable basis for the 20 removal. 21 separated at the sole instruction of the defendant is, in such a 22 case, not severe enough to constitute a substantive due process 23 violation by the defendant. 24 Tenenbaum, 193 F.3d at 600-01. 25 that the removal of the Southerland Children was confirmed by a 26 prompt and adequate judicial confirmation proceeding, we would The period of time in which the child and parent are See Nicholson, 344 F.3d at 172; If it were clear in the record 45 1 agree with the district court that summary judgment would be 2 appropriate on that basis. 3 But the record is not sufficiently clear for us to 4 determine whether such a post-removal judicial proceeding 5 occurred, and if so, the nature of it. 6 that the Southerland Children were removed and held in ACS 7 custody "pending a timely post-deprivation hearing where a family 8 court judge confirmed the removal." 9 2d at 234. The district court stated Southerland II, 521 F. Supp. And the court had previously observed that the 10 Southerland Children "remained in custody without a court order 11 until the morning of June 12, 1997" -- about forty-eight hours -- 12 "at which time Woo obtained a court order confirming the 13 removal." 14 2224432, at *1, 2006 U.S. Dist. LEXIS 53582, at *4 (E.D.N.Y. Aug. 15 2, 2006). 16 post-removal judicial confirmation proceeding was held, nor do 17 they dispute that this proceeding took place within several days 18 after removal, they provide no further detail upon which we can 19 assess the nature of the proceeding in terms of its timeliness 20 and adequacy.19 19 Southerland v. City of N.Y., No. 99-cv-3329, 2006 WL Although the parties do not appear to dispute that a See Southerland Children's Br. at 23 ("The children were held by the defendants without court order from June 9 until June 13, 1997. ACS filed a petition in the Family Court on June 13, 1997, and apparently some kind of proceeding was held on that day, although there is no evidence of it in the record."); Appellees' Br. at 19 ("Plaintiff Southerland's children, the Court found, were removed from the home and held in ACS custody pending a timely post-deprivation hearing where a family court judge confirmed the removal."). The parties have failed to brief the issue despite our prior instruction that Southerland "be given an opportunity to prove . . . that the subsequent family 46 1 We are also unable to determine from the present record 2 on what factual basis the Family Court decided that the continued 3 removal of the Southerland Children was warranted. 4 know, for example, whether its decision to confirm the removal 5 was based solely on written submissions by Woo to the same effect 6 and containing the same errors as Woo's application for the Order 7 Authorizing Entry. 8 9 We do not Apparently relying on the understanding that the Family Court had promptly confirmed the Southerland Children's removal, 10 the district court concluded that no reasonable trier of fact 11 could find that the removal of the Children was "so 'shocking, 12 arbitrary, and egregious' that Southerland's substantive due 13 process rights were violated." 14 at 235 (citation omitted). 15 conclude that material questions of fact preclude summary 16 judgment on the merits of the plaintiffs' procedural due process 17 claims, however, we conclude that summary judgment was 18 inappropriate on the merits of Southerland's substantive due 19 process claim. 20 Southerland II, 521 F. Supp. 2d For much the same reason that we A plaintiff's substantive due process claim fails if 21 "there is an objectively reasonable basis for believing that 22 parental custody constitutes a threat to the child's health or 23 safety." 24 1996). Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. Although this "reasonable basis" standard appears to court proceedings were insufficiently prompt to pass constitutional muster." Southerland I, 4 F. App'x at 36. 47 1 impose a lesser burden on a defendant than the "emergency 2 circumstances" standard applicable to procedural due process 3 claims, summary judgment is nevertheless not appropriate unless 4 "there exists no genuine issue of material fact and, based on the 5 undisputed facts, the moving party is entitled to judgment as a 6 matter of law." 7 D'Amico, 132 F.3d at 149. The facts concerning the nature of Southerland's 8 behavior during Woo's investigation and the conditions in the 9 Southerland apartment at the time that Woo effected the removal 10 remain hotly contested by the parties. For example, while Woo 11 contends that the apartment lacked enough food, lighting, and 12 bedding; that the Children were malodorous; and that various 13 safety hazards were present, Southerland has tendered admissible 14 evidence (albeit largely in the form of his own testimony) that 15 each of those factual assertions is false. 16 were to credit Southerland's account, we cannot say that it would 17 be unreasonable for it to then conclude that a reasonable 18 caseworker in Woo's position lacked an "objectively reasonable 19 basis" for removing the Children, Gottlieb, 84 F.3d at 518, and 20 thus that Woo's actions were "shocking, arbitrary, and 21 egregious," Anthony, 339 F.3d at 143 (internal quotation marks 22 omitted). 23 substance of the post-removal judicial confirmation proceeding, 24 we cannot conclude that the fact that the Family Court confirmed 25 the removal of the Southerland Children suffices to show that If the trier of fact Moreover, in the absence of record evidence as to the 48 1 Woo's conduct had an objectively reasonable basis. 2 Southerland II, 521 F. Supp. 2d at 234-35. 3 Cf. Finally, we consider whether Woo is nonetheless 4 entitled to summary judgment on the basis of qualified immunity. 5 As noted, qualified immunity is available to defendants "insofar 6 as their conduct does not violate clearly established statutory 7 or constitutional rights of which a reasonable person would have 8 known." 9 F.3d 121, 128 (2d Cir.), cert. denied, 131 S. Ct. 158 (2010). Harlow, 457 U.S. at 818; see also Cornejo v. Bell, 592 10 When a defendant official invokes qualified immunity as a basis 11 for summary judgment, a court must consider not only whether 12 evidence in the record suggests a violation of a statutory or 13 constitutional right, but also "whether that right was clearly 14 established at the time of the alleged violation." 15 Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). 16 shown that, at the time of the events in question, Woo lacked a 17 legal basis upon which he could conclude that his actions would 18 violate Southerland's substantive due process rights, Woo would 19 be entitled to qualified immunity. 20 Tracy v. Thus, if it could be "The relevant, dispositive inquiry in determining 21 whether a right is clearly established is whether it would be 22 clear to a reasonable officer [in the position of the defendant] 23 that his conduct was unlawful in the situation he confronted." 24 Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled on other 25 grounds by Pearson v. Callahan, 555 U.S. 223 (2009). 26 answering that question, we consider: "(1) whether the right was 49 In 1 defined with reasonable specificity; (2) whether Supreme Court or 2 court of appeals case law supports the existence of the right in 3 question, and (3) whether under preexisting law a reasonable 4 defendant would have understood that his or her acts were 5 unlawful." 6 "The task of framing the right at issue with some precision is 7 critical in determining whether that particular right was clearly 8 established at the time of the defendants' alleged violation." 9 Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010); see also Wilson Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010). 10 v. Layne, 526 U.S. 603, 609 (1999). 11 whether a right at issue is clearly established is a question of 12 law, Higazy v. Templeton, 505 F.3d 161, 170 (2d Cir. 2007), that 13 question is "tied to the specific facts and context of the case," 14 Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir. 2007). 15 Although the matter of In 1997, when Woo effected the removal, it was well 16 established as a general matter that parents possess a 17 substantive right under the Due Process Clause of the Fourteenth 18 Amendment to exercise care, custody, and control over their 19 children. 20 (1982); Gottlieb, 84 F.3d at 518; Joyner ex rel. Lowry, 712 F.2d 21 at 777. 22 custody constitutes a threat to the child's health or safety, 23 government officials may remove a child from his or her parents' 24 custody at least pending investigation." 25 518; see also Stanley v. Illinois, 405 U.S. 645, 649-53 (1972); See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 It was also the law, however, that where "parental 50 Gottlieb, 84 F.3d at 1 Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 2 1123, 1125 (3d Cir. 1997). 3 We therefore determined prior to 1997 that where the 4 state has an "objectively reasonable basis" for removing a child 5 from his or her parent, the parent's substantive constitutional 6 rights are not infringed. 7 generally id. at 520; van Emrik v. Chemung County Dep't of Soc. 8 Servs., 911 F.2d 863, 866 (2d Cir. 1990). 9 assured potential defendants that qualified immunity would be Gottlieb, 84 F.3d at 518; see We also repeatedly 10 available to "protect state officials in choosing between 11 [difficult] alternatives, provided that there is an objectively 12 reasonable basis for their decision, whichever way they make it." 13 van Emrik, 911 F.2d at 866; see also Defore v. Premore, 86 F.3d 14 48, 50 (2d Cir. 1996) (per curiam) (qualified immunity exists to 15 "insure that publicly employed caseworkers have adequate latitude 16 to exercise their professional judgment in matters of child 17 welfare"). 18 In 1999, two years after the events in question here, 19 we summarized the state of the law in Wilkinson: 20 parents enjoy a constitutionally protected interest in their 21 family integrity, this interest is counterbalanced by the 22 'compelling governmental interest in the protection of minor 23 children, particularly in circumstances where the protection is 24 considered necessary as against the parents themselves.'" 25 Wilkinson, 182 F.3d at 104 (quoting Manzano v. S.D. Dep't of Soc. 26 Servs., 60 F.3d 505, 510 (8th Cir. 1995) (internal quotation 51 "Although 1 marks omitted)). 2 the weighty interests apparent in the [child] abuse context . . . 3 has prompted courts to impose few concrete restrictions on case 4 workers, in exercising their discretion, short of [certain] 5 obvious extremes." 6 including circumstances where a caseworker "ignor[es] 7 overwhelming exculpatory information" or "manufactur[es] false 8 evidence." 9 date had left the defendants at bar "with little or no indication Id. We observed that "[t]he difficulty of balancing Id. We described those "extremes" as We concluded in dicta that our decisions to that 10 that their alleged misconduct, as near as it was to the 11 constitutional borderline, would have even implicated serious 12 constitutional concerns." 13 305 F.3d 130, 139 (2d Cir. 2002), cert. denied, 538 U.S. 907 14 (2003). 15 perhaps there was a lack of clearly established law available to 16 guide Woo's conduct. Id. at 107; see also Patel v. Searles, Our discussion in Wilkinson would seem to suggest that 17 We nonetheless cannot conclude as a matter of law that, 18 in 1997, Woo lacked sufficient legal guidance by which to discern 19 the lawfulness of his actions. 20 summary judgment stage, that the factual circumstances are as 21 Southerland, not Woo, describes them, and resolving all 22 credibility questions and drawing all reasonable inferences in 23 Southerland's favor, we are not able to say that Woo would then 24 have lacked a legal basis for understanding that removing the 25 children from their home would be unlawful. 26 court here was also of the view that "Southerland's substantive Assuming, as we must at the 52 Indeed, the district 1 due process rights were clearly established at the time of the 2 removal of the children." 3 232. 4 Southerland II, 521 F. Supp. 2d at We therefore cannot conclude on this record that the 5 principles of law applicable to the facts as we must view them on 6 appeal from a grant of summary judgment were not clearly 7 established in 1997. 8 qualified immunity on Southerland's substantive due process 9 claim, although, again, once the relevant disputes of material 10 fact are resolved, the district court might eventually conclude 11 that Woo is entitled to such immunity. 12 13 Woo is thus not entitled at this stage to VII. The Southerland Children's Fourth Amendment Unlawful-Seizure Claim 14 Finally, the Southerland Children assert a claim for 15 violation of their own substantive due process rights, which the 16 district court recharacterized as a claim of unlawful seizure 17 under the Fourth Amendment. 18 at 227 n.22, 230 n.24. 19 entitled to qualified immunity because "prior to the Court of 20 Appeals' decision in Tenenbaum [in 1999], there was no clear 21 application of Fourth Amendment standards in the child removal 22 context." 23 court's observation that this Circuit had not yet applied Fourth 24 Amendment unlawful-seizure principles in the child-removal 25 context by 1997, we think that the district court erred by 26 conducting its inquiry solely by reference to the Fourth 27 Amendment. Id. at 231. See Southerland II, 521 F. Supp. 2d The district court concluded that Woo was Although we agree with the district 53 Our decision in Tenenbaum effected a change in the 1 2 legal framework applicable to a child's claim for substantive 3 constitutional violations arising out of the child's removal from 4 his or her parent's home. 5 "[their daughter's] temporary removal for the purpose of 6 subjecting her to a medical examination violated their and [the 7 daughter's] substantive due-process rights." 8 at 599. 9 (plurality opinion of Rehnquist, C.J.), we observed that There, the plaintiffs contended that Tenenbaum, 193 F.3d Relying on Albright v. Oliver, 510 U.S. 266, 273 (1994) 10 11 12 13 14 15 16 where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims. 17 Tenenbaum, 193 F.3d at 599 (brackets and internal quotation marks 18 omitted). 19 is . . . inappropriate . . . if [the] claim is covered by the 20 Fourth Amendment.'" 21 (second brackets in original; other internal quotation marks 22 omitted). 23 examination constituted a seizure and search, respectively, under 24 the Fourth Amendment," id., and that her claim "therefore 'must 25 be analyzed under the standard appropriate to [the Fourth 26 Amendment], not under the rubric of substantive due process.'"20 20 We said that "'[s]ubstantive due process analysis Id. at 600 (quoting Lewis, 523 U.S. at 843) We then concluded that the daughter's "removal and her We reaffirmed this approach in Kia P., 235 F.3d at 75758, where we also construed a child's claimed violation of substantive due process as instead arising under the Fourth Amendment. In Southerland I, we relied on Kia P. in stating that "[t]he [Southerland] children's claims for unreasonable seizure 54 1 Id. (quoting United States v. Lanier, 520 U.S. 259, 272 n.7 2 (1997)). 3 The fact that Tenenbaum changed the legal "rubric" 4 applicable to the Southerland Children's constitutional claims, 5 however, is not determinative of whether their rights were 6 clearly established in 1997. 7 think, to afford Woo qualified immunity on the Southerland 8 Children's claims solely because, two years after the events in 9 question, we shifted the constitutional framework for evaluating 10 It would be inappropriate, we those claims from the Fourteenth to the Fourth Amendment. We reached a similar conclusion in Russo v. City of 11 12 Bridgeport, 479 F.3d 196 (2d Cir.), cert. denied, 552 U.S. 818 13 (2007). 14 free from prolonged detention caused by law enforcement 15 officials' mishandling or suppression of exculpatory evidence," 16 id. at 211, was a species of the right to be free from unlawful 17 seizure under the Fourth Amendment, not a substantive due process 18 right under the Fourteenth Amendment, see id. at 208-09. 19 proceeding to undertake a qualified immunity inquiry, we 20 cautioned that our "clarification [of the law was] of no 21 consequence to the question of whether the right was clearly 22 established [at the time of the relevant events], because the 23 proper inquiry is whether the right itself -- rather than its 24 source -- is clearly established." There we made clear that the constitutional "right to be In then Id. at 212 (collecting cases; would proceed under the Fourth Amendment rather than the substantive component of the Due Process Clause." Southerland I, 4 F. App'x at 37 n.2. 55 1 emphasis in original). 2 there was clearly established law to govern the Southerland 3 Children's claims in 1997, we look not only to authorities 4 interpreting the Fourth Amendment, but to all decisions 5 concerning the same substantive right. 6 Here, as in Russo, in inquiring whether At the time of the events in question in this case, a 7 child's claim for violation of his or her right to "preservation 8 of family integrity," Duchesne, 566 F.2d at 825, would likely 9 have been understood to arise under the substantive due process 10 guarantee of the Fourteenth Amendment. 11 recognized in our case law by 1997, see Joyner ex rel. Lowry, 712 12 F.2d at 777-78; Rivera v. Marcus, 696 F.2d 1016, 1026 (2d Cir. 13 1982); Leonhard v. United States, 633 F.2d 599, 618 (2d Cir. 14 1980) (collecting cases); Duchesne, 566 F.2d at 825, although it 15 had been less frequently litigated than the corresponding 16 substantive parental right. 17 This right had been As with the corresponding parental right, however, the 18 law in 1997 also recognized the countervailing principle that the 19 state may remove children from the custody of their parents 20 without violating the children's constitutional rights where 21 there is a reasonable basis for concluding that the children are 22 abused or neglected. 23 See, e.g., Rivera, 696 F.2d at 1017. For much the same reason that we determined that Woo is 24 not entitled to qualified immunity as a matter of law on the 25 current record as to Southerland's substantive due process claim, 26 resolving all disputed facts in the plaintiffs' favor for these 56 1 purposes, we conclude that a reasonable caseworker in Woo's 2 position would not have lacked a sufficient legal basis for 3 knowing that his conduct under those circumstances would infringe 4 upon the substantive constitutional rights of the Southerland 5 Children. 6 though, the district court may yet conclude on remand and after 7 further development of the facts that Woo is entitled to 8 qualified immunity in this context. 9 As with the other claims addressed in these appeals, Finally, we note that the district court concluded 10 that, in the absence of qualified immunity protection, Woo would 11 not be entitled to summary judgment on the merits of the 12 Southerland Children's Fourth Amendment unlawful-seizure claim. 13 See Southerland II, 521 F. Supp. 2d at 234 n.29. 14 reason to disturb that ruling on appeal. 15 16 We have no CONCLUSION For the foregoing reasons, we vacate the district 17 court's grant of summary judgment on each of the plaintiffs' 18 claims that have been preserved for appeal: (1) Southerland's and 19 the Southerland Children's claims for Fourth Amendment violations 20 arising out of the allegedly unlawful search of the Southerland 21 home; (2) Southerland's and the Southerland Children's claims for 22 violations of procedural due process under the Fourteenth 23 Amendment; (3) Southerland's claim for violation of substantive 24 due process under the Fourteenth Amendment; and (4) the 25 Southerland Children's claim for unlawful seizure under the 26 Fourth Amendment. We remand for further proceedings. 57

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