Southerland v. City of New York, No. 07-4449 (2d Cir. 2012)

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This opinion or order relates to an opinion or order originally issued on June 10, 2011.

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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 (Argued: April 21, 2009 Decided: As Amended: February 2, 2012) June 10, 2011 6 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 Timothy Woo. 23 children -- bring various claims under 42 U.S.C. § 1983 asserting 24 that Woo, a children's services caseworker employed by the 25 defendant City of New York, entered their home unlawfully and 26 effected an unconstitutional removal of the children into state Consolidated appeals from a summary judgment entered by * The plaintiffs -- a father and his The Clerk of Court is directed to amend the official caption in accordance with the foregoing. 1 custody. 2 qualified immunity with respect to all of the claims against him. 3 The grant of summary judgment is affirmed with respect to the 4 father's substantive due process claim, but vacated and remanded 5 with respect to the father's and children's Fourth Amendment 6 unlawful-search and Fourteenth Amendment procedural due process 7 claims, and the children's Fourth Amendment unlawful-seizure 8 claim. 9 10 The district court concluded that Woo was entitled to As amended, affirmed in part; vacated and remanded in part. 11 12 13 14 15 16 17 18 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. SONNY B. SOUTHERLAND, Brooklyn, N.Y., Plaintiff-Appellant, pro se. 19 20 21 22 23 24 25 26 JULIAN L. KALKSTEIN, City of New York (Michael A. Cardozo, Corporation Counsel; Larry A. Sonnenshein, of counsel), New York, N.Y., for Defendants-Appellees. SACK, Circuit Judge: This lawsuit involves a man and a woman -- the 27 plaintiff Sonny B. Southerland Sr. ("Southerland") and non-party 28 Diane Manning -- two groups of children, and a caseworker's 29 apparent confusion between the two groups. 30 Manning is the daughter of Southerland and Diane Manning. 2 Plaintiff Ciara Ciara 1 was supposed to be living with Southerland at the time in 2 question, but in fact had left to live with a friend, and had not 3 resided in Southerland's home for at least a year. 4 In addition to Ciara, plaintiff Southerland fathered, 5 by one or more women other than Diane Manning, six other 6 children: the plaintiffs Venus Southerland, Sonny B. Southerland 7 Jr., Nathaniel Southerland, Emmanuel Felix, Kiam Felix, and 8 Elizabeth Felix (together, the "Southerland Children"). 9 time of the principal events in question, the Southerland 10 11 At the Children, unlike Ciara, were living with their father. Diane Manning also allegedly bore, by one or more men 12 other than Southerland, six children other than Ciara: Eric 13 Anderson, Richy Anderson, Felicia Anderson, Erica Anderson, 14 Michael Manning, and Miracle Manning (together, the "Manning 15 Children"). 16 to this lawsuit. They lived with Diane and, like her, are not parties 17 In May 1997, the defendant Timothy Woo, a caseworker in 18 the Brooklyn Field Office of the New York City Administration for 19 Children's Services ("ACS"), was assigned to investigate a report 20 by a school counselor about then-sixteen-year-old Ciara Manning. 21 School staff had thought Ciara to be acting strangely. 22 After being unable, despite repeated attempts, to gain 23 entry to the Southerland home to investigate the report, Woo 24 sought and obtained from the Kings County Family Court an order 3 1 authorizing entry into the apartment. 2 obtain that order contained several misstatements of fact, which 3 suggested Woo's possible confusion about which of the children 4 resided with Southerland. 5 Woo's application to Under the authority of the Family Court's order, Woo 6 then entered the Southerland apartment. Ciara was not there; 7 some of Southerland's other children who lived with him, the 8 Southerland Children, were. 9 the poor condition of the home and of the Southerland Children, Based on what Woo perceived to be 10 and based upon his other observations from the investigation 11 undertaken to that date, Woo and his supervisor decided to carry 12 out an immediate removal of the children into ACS custody. 13 Southerland and the Southerland Children brought this 14 action based on Woo's entry into the apartment and removal of the 15 children. 16 rights to be free from unreasonable searches of their home, and 17 that the manner in which the Southerland Children were removed 18 violated their procedural due process rights under the Fourteenth 19 Amendment. 20 Southerland Children from his home violated his substantive due They claim that Woo violated their Fourth Amendment1 Southerland also claims that the removal of the 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). 4 1 process rights under the Fourteenth Amendment. Finally, the 2 Southerland Children claim that their removal violated their 3 Fourth Amendment rights to be free from unreasonable seizure. The district court (Charles P. Sifton, Judge)2 4 5 concluded, inter alia, that Woo was entitled to qualified 6 immunity with respect to all of the claims against him and 7 granted summary judgment in his favor. 8 Southerland's substantive due process claim. 9 however, as to Southerland's and the Southerland Children's We agree with respect to We disagree, 10 Fourth Amendment unlawful-search claims, Southerland's and the 11 Southerland Children's procedural due process claims, and the 12 Southerland Children's Fourth Amendment unlawful-seizure claim. 13 To that extent, we vacate the district court's judgment and 14 remand for further proceedings. 15 BACKGROUND 16 The relevant facts are rehearsed in detail in the 17 district court's opinion. 18 F. Supp. 2d 218 (E.D.N.Y. 2007) ("Southerland II"). 19 forth here only insofar as we think it necessary for the reader 20 to understand our resolution of these appeals. 21 are disputed, we construe the evidence in the light most 22 favorable to the plaintiffs, who are the nonmoving parties. 23 e.g., SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d 2 See Southerland v. City of N.Y., 521 They are set Where the facts See, Judge Sifton passed away while these appeals were pending. 5 1 Cir. 2009). We also draw all reasonable factual inferences in 2 the plaintiffs' favor. See, e.g., id. 3 The ACS Investigation 4 On May 29, 1997, a school guidance counselor reported 5 to the New York State Central Registry Child Abuse Hotline that 6 one of the school's students, Ciara Manning, the then-sixteen- 7 year-old daughter of Diane Manning and plaintiff Southerland, was 8 "emotionally unstable." The counselor further reported: 9 10 11 12 13 14 15 16 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. 17 Intake Report at 3, Office of Children and Family Services, Child 18 Protective Services, May 29, 1997 ("Intake Report"), Ex. A to the 19 Declaration of Janice Casey Silverberg (Dkt. No. 168) 20 ("Silverberg Decl."), Southerland v. City of N.Y., No. 99-cv-3329 21 (E.D.N.Y. Sept. 18, 2006). 22 the Brooklyn Field Office of the ACS. 23 supervisor, assigned the case to defendant Timothy Woo, an ACS 24 caseworker, for investigation. 25 law to begin his investigation within 24 hours, did so that day. 26 The Intake Report was transmitted to There, Fritz Balan, a Woo, who was required by New York He first examined the files of a case pending in that 27 ACS office regarding Ciara's mother, Diane Manning. 28 those files disclosed that Ciara had several younger half6 Material in 1 siblings: the Manning Children. 2 also indicated that Ciara was reported to be living with her 3 father, Southerland, at a Brooklyn address, although plaintiffs 4 correctly note the absence of any further evidence as to the 5 source of that information or the time it was received. 6 not clear from the record whether Woo was aware that the children 7 referenced in Diane Manning's case file were not related to 8 Southerland and that they did not live with him. 9 II, 521 F. Supp. 2d at 222, 224 & n.8. 10 According to Woo, this material It is See Southerland Woo also contacted the school guidance counselor who 11 had called the child-abuse hotline. 12 counselor told him that while at school, Ciara had swallowed non- 13 toxic paint, expressed thoughts of suicide, and was generally 14 behaving aggressively and "acting out." 15 Woo ¶ 6 (Dkt. No. 169) ("Woo Decl."), Southerland v. City of 16 N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). 17 handwritten notes from the conversation indicate that the 18 counselor told Woo that Ciara was having "problems trying to get 19 [her] fa[ther's] attention" and that her "father doesn't approve 20 of the place [where she] is staying." 21 ("Counselor Phone Call Notes"), Ex. A to the Declaration of 22 Michael G. O'Neill (Dkt. No. 182) ("O'Neill Decl."), Southerland 23 v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Dec. 29, 2006). 24 disputed whether the counselor also told Woo that Southerland had 7 According to Woo, the Declaration of Timothy Woo's Notes of Timothy Woo at 1 It is 1 been unresponsive to the school's stated concerns about Ciara's 2 behavior. 3 Later the same day, May 29, 1997, Woo attempted to 4 visit Southerland's apartment in Brooklyn. 5 thought Ciara was residing at that apartment because an open case 6 file on Ciara's mother indicated that Ciara lived with her 7 father. 8 conversation with the counselor earlier in the day suggested that 9 Ciara was not living with her father. Woo Decl. ¶¶ 5,7. Woo testified that he However, as discussed above, Woo's When no one answered the 10 door at Southerland's home, Woo left a note containing his 11 contact information. 12 The following day, May 30, Southerland telephoned Woo. 13 During the course of their conversation, Southerland described 14 Ciara as a runaway who would not obey him. 15 that he visit the ACS office to discuss the matter with Woo 16 further. 17 phone conversation, Southerland indicated that he would not 18 permit Woo to visit Southerland's apartment. 19 contends that, although he did question why Woo needed to visit 20 the apartment since Ciara did not live there, Southerland 21 nonetheless indicated that he would be willing to make an 22 appointment for Woo to conduct a home visit if Woo insisted. 23 24 Southerland suggested The plaintiffs dispute Woo's assertion that during the Southerland Southerland visited the ACS office and met with Woo later that day. According to Southerland's deposition testimony, 8 1 he told Woo that Ciara had run away and that he had obtained 2 several "Persons in Need of Supervision" ("PINS") warrants 3 against her.3 4 Southerland why he had not sought medical attention for Ciara 5 after the paint-swallowing incident. 6 the question.4 7 Notes"), Ex. B to O'Neill Decl. Woo's case notes indicate that Woo asked Southerland did not answer See Progress Notes of T. Woo at 1 ("Progress 8 Southerland told Woo that Ciara did not need 9 psychiatric help, and that she "was only acting the way she did 10 to get attention." Woo Decl. ¶ 10; see also Declaration of Fritz 11 Balan ¶ 7 (Dkt. No. 170) ("Balan Decl."), Southerland v. City of 12 N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). 13 Woo, Woo explained to Southerland that various services were 14 available through ACS to assist him and his children, including 15 counseling and help with obtaining food, furniture, and clothing. 16 Woo said Southerland declined. 17 deposition testimony, however, no such assistance was ever 18 offered. According to According to Southerland's 3 Under New York law, a parent may initiate a proceeding to adjudicate a child as a "person in need of supervision" when that parent alleges that he or she cannot control the child and needs the state's assistance. Such proceedings are governed by Article 7 of the New York Family Court Act. See N.Y. Fam. Ct. Act § 711 et seq. 4 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. 9 1 When Woo said he would need to make a home visit, 2 Southerland replied that it would be "no problem" as long as he 3 was notified in advance. 4 see also Deposition of Sonny B. Southerland at 207 ("Southerland 5 Dep."), Ex. F to O'Neill Decl. 6 stated he would call him to arrange the visit, but that Woo never 7 made such a call. 8 9 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. 10 Woo answered the door. 11 home. A woman whose identity was unknown to She said that Southerland was not at Woo left. 12 The following day, June 3, Woo again went to the 13 apartment. 14 Again, he left. 15 He heard noises inside, but no one answered the door. The next day, June 4, Woo went to the apartment for a 16 fourth time. He waited in the hallway for several minutes. 17 Southerland emerged accompanied by five school-aged children: 18 Sonny Jr., Venus, Emmanuel, Nathaniel, and Kiam. 19 their names in his case notes. 20 not have time to talk because he was taking the children to 21 school. 22 that if he continued to be uncooperative, ACS would seek court 23 action. 24 also Progress Notes at 2. Woo wrote down Southerland told Woo that he did Woo gave Southerland an ACS business card and told him See Southerland II, 521 F. Supp. 2d at 223-24 & n.6; see 10 1 The Removal of the Southerland Children 2 On June 6, 1997, at the direction of supervisor Balan, 3 Woo applied to the Kings County Family Court for an order to 4 enter the Southerland apartment pursuant to section 1034(2) of 5 the New York Family Court Act. 6 not only the status of the child named in a report of suspected 7 abuse or neglect of the type referred to in section 1034(2), but 8 also to ascertain the condition of any other children residing in 9 the same home. It is ACS policy to investigate Woo listed Ciara on the application. Instead of 10 including the names of the children he had met leaving 11 Southerland's home on June 4, however, he listed the other 12 children of Ciara's mother Diane -- the Manning Children: Eric 13 Anderson, Richy Anderson, Felicia Anderson, Michael Manning, 14 Miracle Manning, and Erica Anderson -- whose names he apparently 15 had obtained from the Diane Manning case files he had reviewed at 16 ACS's Brooklyn Field Office.5 The Family Court issued an "Order 5 Woo listed the names and dates of birth of Ciara and the Manning Children 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. 11 1 Authorizing Entry" into the Southerland apartment the same day, 2 June 6. See Southerland II, 521 F. Supp. 2d at 224. 3 Three days later, on the evening of June 9, 1997, 4 pursuant to the Order Authorizing Entry, Woo and at least one 5 other caseworker entered the Southerland apartment with the 6 assistance of officers from the New York City Police Department. 7 Southerland and the Southerland Children were inside the 8 apartment. 9 what happened next, from Woo's perspective: 10 11 12 13 14 15 16 17 18 19 20 21 Woo Decl. ¶¶ 13-15, 19. The district court described 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 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. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 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. Southerland II, 521 F. Supp. 2d at 224-25 (footnotes omitted).6 24 As the district court also observed, the plaintiffs -- 25 relying primarily on later deposition testimony by Southerland -- 26 offer a starkly different description of the conditions in the 27 Southerland home at the time. 28 testimony, the apartment did not lack proper bedding; the boys According to Southerland's 6 The district court summarized Woo's and Balan's stated reasons for removing the Southerland Children as including: 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 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. 13 1 had a bunk bed in their room, although they preferred to sleep on 2 yellow foam sleeping pads on the floor. 3 children were not dirty; Southerland testified that he laundered 4 the children's clothing about once a week and bathed the children 5 daily. 6 it is also a reasonable inference from Southerland's testimony 7 that there was food in the cupboards (which Woo did not examine), 8 because Southerland testified that groceries for the household 9 were purchased on a regular basis. Id. at 225 n.11. Id. at 225 n.10. The There was food in the refrigerator, and Id. at 225 n.12. The 10 household did not lack adequate lighting; Southerland testified 11 that he had a lamp plugged into a wall in each room, id. at 225 12 n.14, and that there were no extension cords running from room to 13 room. 14 had a foot injury, the plaintiffs stress Woo's concession that he 15 did not personally observe the injury during his assessment of 16 the home.7 Finally, although Southerland does not dispute that Venus 17 Id. at 225 n.13. In the early morning hours of June 10, 1997, at Balan's 18 direction, Woo removed the Southerland Children from the 19 Southerland home. 20 emergency shelter and arranged for emergency foster care. 21 226. Woo took them to the ACS pre-placement 7 Id. at 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." Southerland II, 521 F. Supp. 2d at 225 n.13. 14 1 At some point -- it is not clear from the record 2 exactly when -- Woo interviewed Ciara Manning, whom he had found 3 living at the home of her friend. 4 had sexually abused her and threatened to kill her if she told 5 anyone about the abuse -- allegations she later recanted.8 6 Southerland Children also complained of various kinds of abuse 7 and mistreatment at the hands of Southerland and his companion, 8 Vendetta Jones. 9 Ciara were included in a verified petition filed by ACS with the 10 Family Court on June 13, 1997, and that petition was amended on 11 June 27, 1997, to add allegations concerning corporal punishment 12 of the Southerland Children. 13 protective proceedings under Article 10 of the New York Family 14 Court Act, §§ 1011 et seq., through which ACS sought to have the 15 Southerland Children adjudicated as abused, neglected, or both. 16 Ciara told Woo that her father The The allegations concerning the sexual abuse of The petitions commenced child- On July 1, 1998, more than a year after the children 17 were removed from the Southerland home, the Kings County Family 18 Court concluded following a five-day fact-finding hearing that 8 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). 15 1 Southerland had engaged in excessive corporal punishment of the 2 Southerland Children and that he had abused and neglected them. 3 The court also concluded that he had sexually abused his daughter 4 Ciara. 5 foster care, where they had resided since the June 1997 removal. 6 The New York Appellate Division, Second Department, affirmed 7 these orders, In re Ciara M., 273 A.D.2d 312, 708 N.Y.S.2d 717 8 (2d Dep't 2000), and the New York Court of Appeals denied leave 9 to appeal, 95 N.Y.2d 767, 740 N.E.2d 653, 717 N.Y.S.2d 547 10 11 The court ordered that the Southerland Children remain in (2000). In March 2004, nearly seven years after their removal 12 from the Southerland home, Sonny Jr. and Venus were permitted to 13 return to live with Southerland. 14 Nathaniel and Emmanuel were discharged from the juvenile justice 15 system by the Office of Children and Family Services and also 16 returned to the Southerland home. 17 to suggest that Kiam or Elizabeth ever returned to live with 18 Southerland. 19 Some seven months thereafter, There is nothing in the record However strongly the facts of mistreatment found by the 20 Family Court at trial in July 1998 may support Woo's perceptions 21 about the dangers to the Southerland Children of their remaining 22 with Southerland, virtually none of this information was in Woo's 23 possession when he effected the June 9, 1997, entry and removal, 24 as the district court correctly observed. 16 See Southerland II, 1 521 F. Supp. 2d at 226 n.19. Although Woo mentions in his 2 briefing that the Family Court eventually determined that Ciara 3 and the Southerland Children had been abused and neglected, he 4 does not dispute the plaintiffs' assertion that these 5 subsequently determined facts should not bear upon our 6 consideration of whether Woo's actions in effecting the removal 7 were constitutional. 8 relevance, if any, of these subsequent events on the plaintiffs' 9 ability to recover on their constitutional claims.9 10 Prior Federal Court Proceedings 11 In June 1999, some two years after the removal and We therefore need not consider the 12 while the Southerland Children remained in foster care, 13 Southerland, on behalf of himself and his children, filed a pro 14 se complaint in the United States District Court for the Eastern 9 It appears to be an unresolved question of law in this Circuit whether a plaintiff parent is permitted to recover damages on a theory of substantive due process against a caseworker under circumstances where, although the initial removal lacked a reasonable basis, the child is nonetheless ultimately found to have been abused or neglected by the parent following a family-court fact-finding hearing. Under such circumstances, it is an open question whether a defendant caseworker's conduct in removing the child -- even where the caseworker initially lacked a reasonable basis for doing so -can be said to be "'so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,'" Okin v. Vill. of Cornwall-on-Hudson Police Dep't, 577 F.3d 415, 431 (2d Cir. 2009) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). However, because Woo has not made this argument in this case, and because we ultimately affirm the dismissal of Southerland's substantive due process claim on other grounds, we need not consider this question at this time. 17 1 District of New York against more than forty defendants for the 2 allegedly wrongful removal of the Southerland Children from his 3 home. 4 Sifton, Judge) granted the defendants' motion to dismiss on 5 grounds that included failure to state a claim, failure to plead 6 certain matters with particularity, lack of subject-matter 7 jurisdiction, and Eleventh Amendment immunity. 8 Order (Dkt. No. 43), Southerland v. City of N.Y., No. 99-cv-3329 9 (E.D.N.Y. Feb. 2, 2000), Ex. G to Silverberg Decl. 10 On February 1, 2000, the district court (Charles P. Southerland appealed. See Opinion & We affirmed in part, reversed in 11 part, and remanded. We ruled, inter alia, that the district 12 court had erred in dismissing Southerland's claims under 42 13 U.S.C. § 1983 relating to the seizure and removal of the 14 Southerland Children. 15 33, 36 (2d Cir. 2001) (summary order) ("Southerland I"). 16 concluded that the pro se complaint stated valid claims for 17 violations of both the substantive and procedural components of 18 the Fourteenth Amendment's Due Process Clause. 19 We "emphasize[d] that our holding [wa]s limited to the claims 20 made directly by Sonny Southerland," noting that "[a]lthough the 21 children probably have similar claims, we have held that a non- 22 attorney parent must be represented by counsel in bringing an 23 action on behalf of his or her child." 24 footnote, and internal quotation marks omitted). See Southerland v. Giuliani, 4 F. App'x 18 We See id. at 36-37. Id. at 37 (citation, We therefore 1 "le[ft] it to the district court upon remand to determine whether 2 Southerland should be given a chance to hire a lawyer for his 3 children or to seek to have one appointed for them." 4 Id. On remand, the district court appointed counsel to 5 represent both Southerland and the Southerland Children.10 6 Southerland II, 521 F. Supp. 2d at 227. 7 through counsel, Southerland and the Southerland Children jointly 8 filed an amended complaint, id. at 221 & n.1, asserting nine 9 claims under 42 U.S.C. § 1983 against Woo and the City of New 10 York, id. at 221 n.2.11 11 12 In November 2002, In the amended complaint, Southerland asserts four separate claims against Woo.12 First, he brings an unlawful- 10 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. See 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. 11 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 plaintiff in the original complaint, she was dropped from the suit when the amended complaint was filed. 12 The amended complaint also joins nine John Doe defendants, including several 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, 19 1 search claim, asserting that Woo's entry into his home "without 2 privilege, cause or justification" violated the Fourth Amendment. 3 Am. Compl. ¶¶ 40-41 (Dkt. No. 75), Southerland v. City of N.Y., 4 No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002). 5 second Fourth Amendment unlawful-search claim for Woo's remaining 6 in his home even after discovering that the children listed on 7 the Order Authorizing Entry were not there. 8 asserts a Fourteenth Amendment procedural due process claim for 9 removal of the Southerland Children from his home without a court 10 order and in the absence of an immediate threat of harm to their 11 lives or health. 12 process claim, also under the Fourteenth Amendment, for Woo's 13 removal of the Southerland Children absent a reasonable basis for 14 doing so. 15 16 Southerland brings a Third, Southerland Finally, Southerland asserts a substantive due The amended complaint also interposes various claims on behalf of the Southerland Children. First, the Children assert 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). 20 1 the same procedural due process claim under the Fourteenth 2 Amendment as does Southerland. 3 due process claim under the Fourteenth Amendment on the theory 4 that they were removed from their home without reasonable basis. 5 The district court recharacterized the latter claim as arising 6 under the Fourth Amendment's guarantee of protection against 7 unlawful seizure.13 8 n.24. 9 complaint as asserting on behalf of the Children the same two Second, they bring a substantive See Southerland II, 521 F. Supp. 2d at 230 Finally, the district court construed the amended 10 Fourth Amendment unlawful-search claims as were asserted by 11 Southerland, see id. at 233-34 & n. 28, a decision that Woo has 12 not challenged on appeal. 13 Southerland and the Southerland Children also bring 14 several claims against the City of New York. 15 that the City is liable under 42 U.S.C. § 1983 for the removal of 16 the Southerland Children insofar as that removal was conducted 17 pursuant to two alleged official City policies: to remove 18 children without a reasonable basis, and to remove children 19 without a court order despite the absence of any immediate threat 20 of harm to their lives or health. 13 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)). 21 1 Southerland Children also allege that high-ranking policymakers 2 within the City's police department knew or should have known 3 that the City's failure to train police officers accompanying ACS 4 employees on home visits and investigations would deprive New 5 York City residents of their constitutional rights.14 6 On the defendants' motion for summary judgment, the 7 district court concluded that Woo was entitled to qualified 8 immunity as to all of the claims against him. 9 the Fourth Amendment unlawful-search claims, the court concluded With respect to 10 that the false and misleading statements made by Woo in his 11 application for the Order Authorizing Entry did not strip him of 12 qualified immunity because the plaintiffs could not show that 13 these statements were necessary to the finding of probable cause 14 to enter the home. 15 The court decided that qualified immunity was warranted because 16 "a corrected affidavit specifying all of the information known to 17 Woo establishes an objective basis that would have supported a 18 reasonable caseworker's belief that probable cause existed." 19 at 231 (brackets, citation, and internal quotation marks 20 omitted). Southerland II, 521 F. Supp. 2d at 230-31. 14 Id. 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. 22 1 With respect to the Southerland Children's Fourth 2 Amendment unlawful-seizure claim, and the procedural due process 3 claims brought by both sets of plaintiffs, the district court 4 decided that qualified immunity shielded Woo from liability 5 because his actions pre-dated the clear establishment of law in 6 this context, which in its view did not occur until this Court's 7 decision in Tenenbaum v. Williams, 193 F.3d 581, 596-97 (2d Cir. 8 1999), cert. denied, 529 U.S. 1098 (2000). 9 521 F. Supp. 2d at 231-32. 10 See Southerland II, Lastly, with regard to Southerland's substantive due 11 process claim, the district court concluded that Woo was entitled 12 to qualified immunity because "it was objectively reasonable for 13 [him] to conclude that Southerland's substantive due process 14 rights were not violated" when Woo removed the Southerland 15 Children from the home, because "[b]rief removals of children 16 from their parents generally do not rise to the level of a 17 substantive due process violation, at least where the purpose of 18 the removal is to keep the child safe during investigation and 19 court confirmation of the basis for removal." 20 (brackets and internal quotation marks omitted). 21 Id. at 232 Notwithstanding the district court's conclusion that 22 Woo was entitled to qualified immunity as to every claim asserted 23 against him, the court proceeded to consider, in the alternative, 24 the underlying merits of the plaintiffs' various claims. 23 The 1 court decided that even in the absence of immunity, Woo would be 2 entitled to summary judgment with respect to the plaintiffs' 3 Fourth Amendment unlawful-search claims and Southerland's 4 substantive due process claim. 5 Fourth Amendment unlawful-search claims, the district court 6 decided that "no reasonable juror could infer that Woo knowingly 7 and intentionally made false and misleading statements to the 8 family court in order to receive an order authorizing his entry 9 into the Southerland home." Specifically, with respect to the Id. at 233. With respect to 10 Southerland's substantive due process claim, the court concluded 11 that "no reasonable juror could find that the removal of the 12 children from their home in order to verify that they had not 13 been neglected or abused was so 'shocking, arbitrary, and 14 egregious' that Southerland's substantive due process rights were 15 violated." Id. at 234-35 (citation omitted). 16 The district court concluded that the City was also 17 entitled to summary judgment on all of the claims against it. 18 See Southerland II, 521 F. Supp. 2d at 235-39. 19 not appeal from that portion of the judgment and therefore have 20 abandoned their claims against the City. 21 Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). 22 The plaintiffs do See LoSacco v. City of The district court determined, however, that without 23 qualified immunity protection, summary judgment would not be 24 appropriate on the merits of the procedural due process claims 24 1 brought by both Southerland and the Southerland Children because, 2 "[a]lthough defendants argue that the 'totality of the 3 circumstances' Woo encountered in the Southerland home required 4 an ex parte removal, they fail to explain why there was not 5 sufficient time for Woo to seek a court order removing the 6 children." 7 would summary judgment be appropriate on the merits of the 8 Southerland Children's Fourth Amendment unlawful-seizure claim, 9 the district court said, because the defendants could not explain See Southerland II, 521 F. Supp. 2d at 235 n.31. Nor 10 "why the particular circumstances that Woo encountered in the 11 Southerland home established that there was imminent danger to 12 the children's life or limb requiring removal in the absence of a 13 court order." 14 Id. at 234 n.29. Both Southerland and the Southerland Children now 15 appeal from the dismissal of each of their claims against Woo, 16 with the exception of one of their Fourth Amendment claims. 17 plaintiffs have not appealed the district court's adverse ruling 18 as to their claim that Woo violated the Fourth Amendment by 19 remaining in their home even after determining that the children 20 listed on the Order Authorizing Entry were not present. 21 The We affirm with respect to the dismissal of 22 Southerland's substantive due process claim. 23 remand with respect to Southerland's and the Southerland 24 Children's Fourth Amendment unlawful-search claims; Southerland's 25 We vacate and 1 and the Southerland Children's procedural due process claims; and 2 the Southerland Children's unlawful-seizure claim. 3 DISCUSSION 4 I. Standard of Review 5 "We review a district court's grant of summary judgment 6 de novo, construing the evidence in the light most favorable to 7 the non-moving part[ies] and drawing all reasonable inferences in 8 [their] favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 9 (2d Cir. 2005). "[S]ummary judgment is appropriate where there 10 exists no genuine issue of material fact and, based on the 11 undisputed facts, the moving party is entitled to judgment as a 12 matter of law." 13 Cir.), cert. denied, 524 U.S. 911 (1998); see Fed. R. Civ. P. 14 56(a). D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d 15 II. Principles of Qualified Immunity 16 Qualified immunity shields public officials "from 17 liability for civil damages insofar as their conduct does not 18 violate clearly established statutory or constitutional rights of 19 which a reasonable person would have known." 20 Fitzgerald, 457 U.S. 800, 818 (1982). 21 officials are entitled to qualified immunity if (1) their conduct 22 does not violate clearly established constitutional rights, or 23 (2) it was objectively reasonable for them to believe their acts 24 did not violate those rights." Harlow v. "In general, public Holcomb v. Lykens, 337 F.3d 217, 26 1 220 (2d Cir. 2003) (internal quotation marks omitted). 2 is "'clearly established'" when "[t]he contours of the right . . 3 . [are] sufficiently clear that a reasonable official would 4 understand that what he is doing violates that right." 5 v. Creighton, 483 U.S. 635, 640 (1987). 6 "affirmative defense," Gomez v. Toledo, 446 U.S. 635, 636, 639-41 7 (1980), and "it is incumbent upon the defendant to plead[] and 8 adequately develop" that defense, Zellner v. Summerlin, 494 F.3d 9 344, 368 (2d Cir. 2007) (internal quotation marks omitted). 10 A right Anderson Qualified immunity is an In this Circuit, "[e]ven where the law is 'clearly 11 established' and the scope of an official's permissible conduct 12 is 'clearly defined,' the qualified immunity defense also 13 protects an official if it was 'objectively reasonable' for him 14 at the time of the challenged action to believe his acts were 15 lawful." 16 Cir. 2010) (some internal quotation marks omitted); accord 17 Walczyk v. Rio, 496 F.3d 139, 154 n.16 (2d Cir. 2007). 18 words, a caseworker is also entitled to qualified immunity "if 19 'officers of reasonable competence could disagree' on the 20 legality of the action at issue in its particular factual 21 context." 22 Cir. 2010) (quoting Walczyk, 496 F.3d at 154); see also 23 Tenenbaum, 193 F.3d at 605 (applying same principle to "child 24 welfare workers"). Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d In other Manganiello v. City of N.Y., 612 F.3d 149, 165 (2d But see Taravella, 599 F.3d at 136-41 27 1 (Straub, J., dissenting) (stating that this prong of the 2 qualified-immunity analysis "has no basis in Supreme Court 3 precedent and has served to confuse the case law in this area"); 4 Okin, 577 F.3d at 433 n.11 ("[O]nce a court has found that the 5 law was clearly established at the time of the challenged conduct 6 and for the particular context in which it occurred, it is no 7 defense for a police officer who violated this clearly 8 established law to respond that he held an objectively reasonable 9 belief that his conduct was lawful."); Walczyk, 496 F.3d at 165- 10 71 (Sotomayor, J., concurring) ("[W]hether a right is clearly 11 established is the same question as whether a reasonable officer 12 would have known that the conduct in question was unlawful.") 13 (emphasis in original). 14 15 III. 16 As we observed in a decision post-dating the events at 17 issue in these appeals, "[p]arents . . . have a constitutionally 18 protected liberty interest in the care, custody and management of 19 their children." 20 Granville, 530 U.S. 57, 65-66 (2000) (collecting cases concerning 21 the "fundamental right of parents to make decisions concerning 22 the care, custody, and control of their children"). 23 have a parallel constitutionally protected liberty interest in 24 not being dislocated from the emotional attachments that derive 25 from the intimacy of daily family association." Overview of Constitutional Principles Relating to the State's Removal of Children from Their Homes Tenenbaum, 193 F.3d at 593; see also Troxel v. 28 "[C]hildren Kia P. v. 1 McIntyre, 235 F.3d 749, 759 (2d Cir. 2000) (brackets and internal 2 quotation marks omitted), cert. denied, 534 U.S. 820 (2001); see 3 also Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) 4 ("Th[e] right to the preservation of family integrity encompasses 5 the reciprocal rights of both parent and children."). 6 state's removal of a child from his or her parent may therefore 7 give rise to a variety of cognizable constitutional claims. 8 9 The First, both the parents and the children may have a cause of action for violation of the Fourteenth Amendment under a 10 theory of denial of procedural due process. 11 Amendment imposes a requirement that except in emergency 12 circumstances, judicial process must be accorded both parent and 13 child before removal of the child from his or her parent's 14 custody may be effected. 15 Tenenbaum, 193 F.3d at 593-94; Duchesne, 566 F.2d at 825-26. 16 Both Southerland and the Southerland Children have asserted such 17 a procedural due process claim against Woo in this case. 18 The Fourteenth See, e.g., Kia P., 235 F.3d at 759-60; Second, a parent may also bring suit under a theory of 19 violation of his or her right to substantive due process. 20 Southerland does so here. 21 under the Due Process Clause to remain together [with their 22 children] without the coercive interference of the awesome power 23 of the state." 24 marks omitted); see also, e.g., Anthony v. City of N.Y., 339 F.3d Parents have a "substantive right Tenenbaum, 193 F.3d at 600 (internal quotation 29 1 129, 142-43 (2d Cir. 2003); Kia P., 235 F.3d at 757-58. 2 claim can only be sustained if the removal of the child "would 3 have been prohibited by the Constitution even had the [parents] 4 been given all the procedural protections to which they were 5 entitled." 6 other words, while a procedural due process claim challenges the 7 procedure by which a removal is effected, a substantive due 8 process claim challenges the "fact of [the] removal" itself. 9 Bruker v. City of N.Y., 92 F. Supp. 2d 257, 266-67 (S.D.N.Y. 10 11 Such a Tenenbaum, 193 F.3d at 600 (emphasis deleted). In 2000). "Where another provision of the Constitution provides 12 an explicit textual source of constitutional protection, a court 13 must assess a plaintiff's claims under that explicit provision 14 and not the more generalized notion of substantive due process." 15 Kia P., 235 F.3d at 757-58 (quoting Conn v. Gabbert, 526 U.S. 16 286, 293 (1999)) (brackets and internal quotation marks omitted). 17 For child removal claims brought by the child, we have concluded 18 that the Constitution provides an alternative, more specific 19 source of protection than substantive due process. 20 is taken into state custody, his or her person is "seized" for 21 Fourth Amendment purposes. 22 claim under the Fourth Amendment that the seizure of his or her 23 person was "unreasonable." 24 193 F.3d at 602. When a child The child may therefore assert a U.S. Const. amend. IV; see Tenenbaum, 30 1 A Fourth Amendment child-seizure claim belongs only to 2 the child, not to the parent, although a parent has standing to 3 assert it on the child's behalf. 4 n.13. 5 at 37 n.2, the district court therefore determined that the 6 Southerland Children's substantive due process claim should be 7 construed instead as a Fourth Amendment unlawful-seizure claim. 8 See Southerland II, 521 F. Supp. 2d at 230 n.24. Tenenbaum, 193 F.3d at 601 In accordance with our order in Southerland I, 4 F. App'x 9 Finally, depending on the circumstances in which a 10 removal occurs, other Fourth Amendment claims might also be 11 viable. 12 two Fourth Amendment claims for unlawful search: one claim 13 relating to Woo's entry into the Southerland home, and one (now 14 abandoned) relating to Woo's remaining in the home even after 15 determining that the Manning Children were not present. 16 claims were based on an allegation that Woo made false statements 17 to the Family Court in order to obtain the Order Authorizing 18 Entry, and therefore that there was no valid judicial 19 authorization for him to carry out a search of the Southerland 20 apartment. 21 claim based on Woo's allegedly unlawful entry. Here, Southerland and the Southerland Children asserted Both We begin our analysis with the unabandoned search 22 IV. 23 The district court determined that summary judgment was 24 The Fourth Amendment Unlawful-Search Claims warranted on the plaintiffs' Fourth Amendment unlawful-search 31 1 claims on two separate grounds. 2 concluded that Woo was entitled to qualified immunity under the 3 "corrected affidavit" doctrine. 4 F. Supp. 2d at 230-31. 5 Woo was entitled to summary judgment on the merits because no 6 reasonable juror could find that Woo had knowingly made false or 7 misleading statements in seeking to obtain the Order Authorizing 8 Entry. 9 A. Id. at 233. First, the district court See Southerland II, 521 Second, the district court decided that We disagree with both conclusions. The Corrected-Affidavit Doctrine 10 The plaintiffs argue that the district court erred in 11 its application of the corrected-affidavit doctrine, under which 12 a defendant who makes erroneous statements of fact in a search- 13 warrant affidavit is nonetheless entitled to qualified immunity 14 unless the false statements in the affidavit were "necessary to 15 the finding of probable cause." 16 115 F.3d 111, 115 (2d Cir. 1997) (internal quotation marks 17 omitted). 18 "necessary to the finding of probable cause," the court must "put 19 aside allegedly false material, supply any omitted information, 20 and then determine whether the contents of the 'corrected 21 affidavit' would have supported [the] finding . . . ." 22 (citation and internal quotation marks omitted). 23 corrected-affidavit doctrine, qualified immunity is warranted 24 only if, after correcting for the false or misleading statements, Martinez v. City of Schenectady, In order to determine whether false statements were 32 Id. In applying the 1 the affidavit accompanying the warrant was sufficient "to support 2 a reasonable officer's belief that probable cause existed." 3 (internal quotation marks omitted). 4 Id. We have observed that the materiality of a 5 misrepresentation or omission in an application for a search 6 warrant is a mixed question of law and fact.15 7 40 F.3d 569, 574 (2d Cir. 1994). 8 whether the information is relevant to the probable cause 9 determination under controlling substantive law." Velardi v. Walsh, "The legal component depends on Id. "[T]he 10 weight that a neutral magistrate would likely have given such 11 information," however, is a question for the factfinder. 12 In such circumstances, a court may grant summary judgment to a 13 defendant based on qualified immunity only if "the evidence, 14 viewed in the light most favorable to the plaintiffs, discloses 15 no genuine dispute that a magistrate would have issued the 16 warrant on the basis of the corrected affidavits." 17 F.3d at 158 (emphasis and internal quotation marks omitted). 18 Here, we cannot conclude as a matter of law -- although a trier 19 of fact might conclude after an evidentiary hearing or the 20 district court might conclude as a matter of law in light of 21 additional evidence -- that the Family Court, in deciding whether 15 Id. Walczyk, 496 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. 33 1 there was "probable cause to believe that an abused or neglected 2 child may [have] be[en] found [in the Southerland home]," N.Y. 3 Fam. Ct. Act § 1034(2), would have issued the order had a 4 corrected affidavit been presented to it. 5 The district court, which "[a]ssum[ed] for purposes of 6 the qualified immunity defense that Woo made false and misleading 7 statements" in applying for the Order Authorizing Entry, 8 Southerland II, 521 F. Supp. 2d at 230, correctly noted that the 9 plaintiffs "would still have to demonstrate that those statements 10 were necessary to the finding of probable cause for qualified 11 immunity not to attach to Woo's actions," id. at 230-31 (citation 12 and internal quotation marks omitted). 13 Woo was entitled to qualified immunity based on its conclusion 14 that a corrected affidavit, containing all of the information 15 available to Woo at the time the affidavit was made, would have 16 supported a finding of probable cause to enter the home under the 17 applicable substantive law. 18 We disagree. The court determined that Id. at 231. Section 1034(2) of the New York State 19 Family Court Act, which provides the evidentiary standard for a 20 showing sufficient for the issuance of an investigative order, 21 governed Woo's application to obtain the Order Authorizing Entry. 22 The district court, in its September 2007 decision, cited the 23 statute as it had been amended in January 2007. 24 n.7. See id. at 224 But under the version of the statute that governed at the 34 1 time of Woo's application, unlike the version of the statute in 2 effect in 2007, the affiant was required to demonstrate "probable 3 cause to believe that an abused or neglected child may be found 4 on premises," N.Y. Fam. Ct. Act § 1034(2) (McKinney 1997) 5 (emphasis added), presumably meaning the "premises" identified in 6 the application submitted to the Family Court.16 7 The district court should have engaged in its 8 corrected-affidavit analysis with reference to the law applicable 9 at the time of the events in question. The children that Woo 10 listed on his application for the Order Authorizing Entry -- the 11 Manning Children and Ciara -- were children who did not reside 12 "on premises" in the Southerland home. 13 The district court concluded that "a properly made 14 application would still list Ciara Manning on the application 15 because Southerland is her father and was the parent legally 16 responsible for her care, even if she had run away." 17 II, 521 F. Supp. 2d at 231. 18 under the statute as amended in 2007, but it is not relevant to 19 the appropriate question under the applicable version of the law 20 at the time of the entry: whether there existed probable cause Southerland That may be relevant to an inquiry 16 The defendants do not argue that a corrected affidavit would have supported a finding of probable cause under the Fourth Amendment even if it would not have met the evidentiary standard set out in section 1034(2) of the applicable New York statute. We therefore do not consider whether Woo would have had constitutionally adequate cause to enter the apartment notwithstanding the absence of a valid warrant or its equivalent. 35 1 for Woo to believe that Ciara Manning could be found "on 2 premises" at the Southerland home. 3 Manning Children, was not "on premises." 4 know that she was not -- from the information in the initial 5 Intake Report transmitted to Woo; from the guidance counselor's 6 statement to Woo that Southerland did not approve of the place 7 where Ciara was staying; and from Southerland's own statements 8 during his May 30 telephone conversation with Woo that Ciara was 9 a runaway and did not live at his home.17 10 In fact, she, like the And Woo had reason to The plaintiff children point out that there were other 11 deficiencies in the district court's corrected-affidavit analysis 12 that undermine the court's conclusion that the information known 13 to Woo at the time he applied for the Order Authorizing Entry 17 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 "environment," nor to evaluate the other children living there, for he had not received any information suggesting that any child other than Ciara might be at risk. 36 1 would have supported a finding of probable cause. 2 Woo's application stated that Ciara "tried to kill herself by 3 swallowing non-toxic paint," and that Southerland "did not take 4 [Ciara] to a medical doctor and refused to take [Ciara] for 5 psychiatric evaluation." 6 Premises dated June 6, 1997, at 1 ("June 6 Application"), Ex. C 7 to Silverberg Decl. 8 application omitted several relevant facts that, according to 9 Southerland's version of events, were known to Woo at that time: 10 that the paint-swallowing incident took place at school, not at 11 home; that Southerland was willing to obtain treatment for his 12 daughter, but had trouble doing so, precisely because she was not 13 living in his home; and that Southerland had attempted to assert 14 control over his daughter by applying for PINS warrants. 15 Southerland Children's Br. at 30-31; see also id. at 28-36 16 (disputing additional assertions of fact, such as whether the 17 swallowing of paint indeed was a suicide attempt). 18 plaintiff children put it: 19 20 21 22 23 24 25 26 27 28 29 30 For example, Application for Authorization to Enter But 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 this suicide attempt took place in Southerland's residence. The overall picture painted by Woo is that Southerland's daughter 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 37 1 2 3 4 5 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. 6 Id. at 31-32. 7 information in its recitation of facts, Southerland II, 521 F. 8 Supp. 2d at 222-23 & nn.4 & 5, but it did not factor these 9 considerations into its application of the corrected-affidavit 10 The district court included much of this doctrine. 11 For these reasons, application of the corrected- 12 affidavit doctrine does not as a matter of law preclude liability 13 in this case. 14 B. 15 Knowing or Reckless Misstatements of Fact The district court also concluded that even if the 16 corrected-affidavit doctrine did not apply, summary judgment was 17 appropriate because, on the merits, "no reasonable juror could 18 infer that Woo knowingly and intentionally made false and 19 misleading statements to the family court in order to receive an 20 order authorizing his entry into the Southerland home." 21 Southerland II, 521 F. Supp. 2d at 233. 22 the district court concluded that "the [O]rder [Authorizing 23 Entry] was issued with probable cause and Woo's entry into and 24 search of Southerland's home did not violate plaintiffs' Fourth 25 Amendment rights." Id. 38 Based on that premise, 1 We disagree. If the district court were correct that 2 Woo did not knowingly make false and misleading statements, that 3 would entitle Woo to qualified immunity, but would not 4 necessarily render his underlying conduct lawful -- the issue the 5 court was addressing. 6 violation arising from a search executed by a state official, 7 "the issuance of a search warrant . . . creates a presumption 8 that it was objectively reasonable for the [defendant] to believe 9 that the search was supported by probable cause" so as to render When a person alleges a Fourth Amendment 10 the defendant qualifiedly immune from liability. 11 F.3d at 115. 12 plaintiff must make "a substantial preliminary showing that the 13 affiant knowingly and intentionally, or with reckless disregard 14 for the truth, made a false statement in his affidavit and that 15 the allegedly false statement was necessary to the finding of 16 probable cause" for which the warrant was issued. 17 of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (internal 18 quotation marks omitted), cert. denied, 505 U.S. 1221 (1992). 19 Martinez, 115 To defeat the presumption of reasonableness, a Golino v. City We need not consider further whether the district court 20 erred by confusing the qualified immunity and merits analyses, 21 however, because we also do not agree with the district court's 22 conclusion that no reasonable juror could find that Woo did not 23 knowingly or recklessly make false statements -- the immunity 24 inquiry. We think that several disputed facts, taken together 39 1 and viewed in the light most favorable to the plaintiffs, would 2 permit a reasonable factfinder to find otherwise. 3 First, there is substantial evidence, viewed in the 4 light most favorable to the plaintiffs, that Woo knew or had 5 reason to know that Ciara was not residing at the Southerland 6 home when he applied for the Order Authorizing Entry. 7 Woo appears to assert that he was justified in searching for 8 Ciara at the Southerland home because, according to ACS's Diane 9 Manning case files, "Ciara was reported to be living with her On appeal, 10 father, Sonny B. Southerland, Sr. at his address at 10 Amboy St. 11 Brooklyn." 12 substance of this report was accurate, they do not effectively 13 dispute that the information was contained in ACS's records,18 14 nor do they dispute that Southerland's home was, in fact, Ciara's 15 legal residence. 16 their complaint that Southerland was the parent with "physical 17 and legal custody" at the relevant time. 18 Woo Decl. ¶ 5. Although the plaintiffs deny that the To the contrary, they affirmatively allege in Am Compl. ¶¶ 9-10. If Woo had no further knowledge or reliable information 19 about Ciara's whereabouts, we think -- having regard to the 20 "factual and practical considerations of everyday life," Gates, 21 462 U.S. at 231 (internal quotation marks omitted) -- that Woo 18 The plaintiffs also do not explicitly argue that this information had become "stale." See generally Walczyk, 496 F.3d at 162 (enumerating Fourth Amendment standards for staleness); United States v. Ortiz, 143 F.3d 728, 732-33 (2d Cir. 1998) (same), cert. denied, 525 U.S. 910 (1998). 40 1 might well have had probable cause to believe that Ciara was to 2 be found at Southerland's apartment -- her custodial parent's 3 home. 4 even where an officer "relied on mistaken information, so long as 5 it was reasonable for him to rely on it"). 6 the fact that both Southerland and the school counselor informed 7 Woo that Ciara did not live with Southerland alone sufficient to 8 establish that Woo believed otherwise. 9 F.2d 913, 922 (2d Cir. 1987) ("[T]he officials need not defer Cf. Manganiello, 612 F.3d at 161 (probable cause may exist Nor, we think, was Cf. Robison v. Via, 821 10 action [on a child-abuse report] merely on account of a parent's 11 protestations of innocence or promises of future 12 protection . . . ."). 13 But there is more. At his deposition, Woo appeared to 14 concede that he did know with some certainty -- if not by the 15 time of applying for the Order Authorizing Entry on June 6, then 16 by the time of executing that Order on June 9 -- that Ciara did 17 not reside with Southerland and would not be found at his home. 18 When asked by plaintiffs' counsel why he had persisted in seeking 19 to enter the Southerland apartment once he knew that Ciara 20 Manning was not staying there, Woo -- plainly accepting the 21 factual premise of the question -- explained that he had sought 22 to enter in order to, among other things, "contact [Southerland] 23 to find out about [Ciara's] whereabouts," Deposition of Timothy 24 Woo at 17 ("Woo Dep."), Ex. D to O'Neill Decl.; to "a[ss]ess the 41 1 safety of the children's home environment," id.; to look for 2 "[t]he Manning children," id. at 18-19; and to investigate the 3 well-being of the children who Woo knew were residing with 4 Southerland, id. at 20-22. 5 support of the defendants' summary-judgment motion, moreover, Woo 6 did not identify when it was that he found Ciara living in the 7 home of her friend, but instead stated only that his interview of 8 Ciara occurred "[d]uring the course of the investigation" when he 9 went to the home. In his declaration tendered in Woo Decl. ¶ 23. His statements thus strongly 10 support the notion that Woo was well aware that, wherever Ciara 11 was, it was unlikely to be in the Southerland Apartment.19 12 Second, evidence in the record, again viewed in the 13 light most favorable to the plaintiffs, would permit a reasonable 14 juror to conclude that Woo knowingly or recklessly misrepresented 15 the nature of the paint-swallowing incident in his application. 16 About one week before June 6, Woo learned from a school counselor 17 that Ciara had "swallowed non-toxic paint at school" and had been 18 "acting out and expressing thoughts of suicide." 19 Although the counselor informed Woo that Southerland had failed 20 to seek mental health treatment for Ciara, see id., before Woo 21 made his application to Family Court, Southerland had explained Woo Decl. ¶ 6. Indeed, Woo does not explicitly challenge the plaintiffs' repeated assertion that before the events of June 9, 1997, Woo knew for a fact that Ciara was not staying in Southerland's apartment. 19 42 1 to Woo that the reason he had not taken Ciara for treatment was 2 that she did not reside with Southerland and did not listen to 3 him, id. ¶ 8. 4 Court that Ciara "tried to kill herself by swallowing non-toxic 5 paint" and that Southerland "did not take [her] to a medical 6 doctor and refused to take [her] for psychiatric evaluation." 7 June 6 Application at 1. 8 those statements to be materially misleading insofar as they 9 characterize Ciara's paint-swallowing as a suicide attempt; fail Yet Woo's application represented to the Family A reasonable trier of fact might find 10 to note that the incident occurred at school rather than in 11 Southerland's home; and omit the fact that Ciara may have been 12 living outside the home and free from Southerland's control. 13 Finally, the district court overlooked the parties' 14 dispute concerning Woo's knowledge about which children resided 15 in the Southerland apartment. 16 "had reason to believe that the Manning children would be found 17 in the Southerland apartment because of a separate investigation 18 of the Manning children and his personal observation that there 19 were other children in the Southerland home who had not yet been 20 positively identified." 21 But, as the district court opinion elsewhere observes, on June 4, 22 1997 -- two days before he applied for the Order Authorizing 23 Entry -- Woo met the Southerland Children, not the Manning 24 Children, emerging from the Southerland apartment and wrote down The district court stated that Woo Southerland II, 521 F. Supp. 2d at 233. 43 1 their names. 2 triable issue of fact as to whether Woo in fact believed, as he 3 wrote in his application to the Family Court, that it was the 4 Manning Children who were in the Southerland home, or whether he 5 recklessly confused or knowingly conflated the two groups of 6 children. 7 See id. at 223-24 & n.6. We think that there is a Although these alleged misrepresentations may turn out 8 to be no more than accidental misstatements made in haste, the 9 plaintiffs have nonetheless made a "substantial preliminary 10 showing" that Woo knowingly or recklessly made false statements 11 in his application for the Order Authorizing Entry. 12 F.2d at 870 (internal quotation marks omitted). 13 rebuts the presumption of reasonableness that would otherwise, at 14 the summary judgment stage, entitle Woo to qualified immunity, a 15 defense on which he has the burden of proof. 16 Golino, 950 This showing In sum, because we conclude that genuine issues of 17 material fact exist, both as to whether Woo knowingly or 18 recklessly made false statements in his affidavit to the Family 19 Court and as to whether such false statements were necessary to 20 the court's finding of probable cause, we vacate the district 21 court's grant of summary judgment on the plaintiffs' Fourth 22 Amendment unlawful-search claims. 23 24 Once again, we note that a trier of fact might, after review of the record (whether or not augmented by additional 44 1 evidence), conclude that the errors in the June 6 Application 2 were either accidental or immaterial. 3 summary judgment because, on the current record, we cannot reach 4 that conclusion ourselves as a matter of law. We vacate the grant of 5 V. The Plaintiffs' Procedural Due Process Claims 6 Southerland and the Southerland Children each assert a 7 procedural due process claim against Woo. 8 held that Woo was entitled to qualified immunity on these claims. 9 We disagree. 10 11 A. The district court Procedural Due Process in the Child-Removal Context "'As a general rule . . . before parents may be 12 deprived of the care, custody, or management of their children 13 without their consent, due process -- ordinarily a court 14 proceeding resulting in an order permitting removal -- must be 15 accorded to them.'" 16 Tenenbaum, 193 F.3d at 593). 17 circumstances, a child may be taken into custody by a responsible 18 State official without court authorization or parental consent.'" 19 Id. (quoting Tenenbaum, 193 F.3d at 594). 20 child is not so imminent that there is reasonably sufficient time 21 to seek prior judicial authorization, ex parte or otherwise, for 22 the child's removal, then the circumstances are not emergent.'" 23 Id. (quoting Tenenbaum, 193 F.3d at 594). 24 Nicholson, 344 F.3d at 171 (quoting "However, 'in emergency "'If the danger to the To show that emergency circumstances existed, "[t]he 45 1 government must offer 'objectively reasonable' evidence that harm 2 [was] imminent." 3 set forth exhaustively the types of factual circumstances that 4 constitute imminent danger justifying emergency removal as a 5 matter of federal constitutional law, we have concluded that 6 these circumstances include "the peril of sexual abuse," id., the 7 "risk that children will be 'left bereft of care and 8 supervision,'" id. (quoting Hurlman v. Rice, 927 F.2d 74, 80 (2d 9 Cir. 1991)), and "immediate threat[s] to the safety of the 10 child," Hurlman, 927 F.2d at 80 (internal quotation marks 11 omitted); see also N.Y. Fam. Ct. Act § 1024(a) (defining 12 emergency circumstances, for the purposes of state law, as 13 "circumstance[s]" wherein a child's remaining in the parent's 14 care and custody "presents an imminent danger to the child's life 15 or health"). 16 B. 17 Id. Although this Court has not attempted to Analysis The district court correctly concluded that summary 18 judgment was not appropriate on the underlying merits of the 19 plaintiffs' procedural due process claims because Woo did not 20 demonstrate, as a matter of law, that he did not have time to 21 obtain a court order authorizing the removal of the Southerland 22 Children before taking that act. 23 Supp. 2d at 235 n.31 (citing Nicholson, 344 F.3d at 171). 24 court nonetheless granted summary judgment on qualified immunity 46 See Southerland II, 521 F. The 1 grounds, concluding that "the law concerning procedural due 2 process rights in the context of child removals was not clearly 3 defined at the time of the events in question." 4 Id. at 232. However, the district court overstated the extent to 5 which the relevant standards were undeveloped at the time of the 6 removal. 7 issue, we recognized that 8 9 10 11 12 13 14 15 16 17 18 19 In Hurlman, some six years before the events here in 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. 20 Hurlman, 927 F.2d at 80 (citations and internal quotation marks 21 omitted); see also Robison, 821 F.2d at 921-22 (describing the 22 "'emergency' circumstances" exception and collecting cases).20 23 It thus was clearly established at the time of the Southerland 24 Children's removal that state officials could not remove a child 20 We disagree with the defendants' assertion that Hurlman and Robison are not controlling here because the state officers in those cases were unlawfully on the premises, whereas Woo had a court order (albeit a disputed one) to enter the Southerland home. Woo's removal of the Southerland Children was without prior judicial authorization. Although Woo did have a court order to enter the home, 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. 47 1 from the custody of a parent without either consent or a prior 2 court order unless "'emergency' circumstances" existed. 3 927 F.2d at 80; see also Cecere v. City of N.Y., 967 F.2d 826, 4 829-30 (2d Cir. 1992) (setting forth the "clearly established" 5 procedural due process principles that apply in this context); 6 Velez v. Reynolds, 325 F. Supp. 2d 293, 314-15 (S.D.N.Y. 2004) 7 (explaining those principles). 8 Hurlman, In concluding that the law of procedural due process 9 was not clearly established in the child-removal context by 1997, 10 the district court in this case relied primarily on our decision 11 in Tenenbaum. 12 we held as a matter of first impression that "where there is 13 reasonable time consistent with the safety of the child to obtain 14 a judicial order, the 'emergency' removal of a child is 15 unwarranted." 16 principle was not clearly established in 1990 -- the year the 17 underlying conduct at issue in Tenenbaum took place -- we 18 affirmed the district court's decision in that case that the 19 defendants were entitled to qualified immunity. 20 clear, however, that even in 1990, "it was established as a 21 general matter . . . that 'except where emergency circumstances 22 exist' a parent can 'not be deprived' of the custody of his or 23 her child 'without due process, generally in the form of a 24 predeprivation hearing.'" 25 at 79). There, two years after the events here in issue, Tenenbaum, 193 F.3d at 596. Because this We also made Id. at 596 (quoting Hurlman, 927 F.2d 48 1 In the present case, however, the plaintiffs assert 2 "not solely that defendants had sufficient time to obtain a court 3 order, but that the circumstances in which Woo found the children 4 did not warrant their removal at all, whether evaluated by pre- 5 or post-Tenenbaum standards." 6 39.21 7 "emergency circumstances" warranting removal simply did not exist 8 because the conditions in the Southerland home were 9 insufficiently dangerous. Southerland Children's Br. at We understand the plaintiffs' contention to be that 10 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 21 To 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 590, 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., concurring in part and dissenting in part) (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. 49 1 not demonstrate an imminent danger to the children's life or 2 limb." 3 further decided that "a reasonable juror could find that there 4 was sufficient time to acquire a court order prior to the 5 removal." 6 with which we agree, and our assessment that the relevant law was 7 clearly established by 1997, we cannot conclude as a matter of 8 law that "it was objectively reasonable for [Woo] to believe 9 [that his] acts did not violate those [clearly established] Southerland II, 521 F. Supp. 2d at 234 n.29. Id. at 235 n.31. The court In light of those determinations, 10 rights." 11 is not available to Woo on the plaintiffs' procedural due process 12 claims at the summary judgment stage. 13 also cannot be granted to the defendants on the underlying merits 14 of these claims,22 we vacate the grant of summary judgment to Woo 15 as to the procedural due process claims. Holcomb, 337 F.3d at 220. 22 Qualified immunity therefore Because summary judgment 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. 50 1 VI. Southerland's Substantive Due Process Claim 2 Southerland asserts a substantive due process claim 3 against Woo under the Fourteenth Amendment. 4 held not only that qualified immunity attached to Woo's actions, 5 but also that summary judgment would be warranted on the merits 6 even in the absence of qualified immunity. 7 entitled to summary judgment on the merits, and we therefore 8 affirm this portion of the district court's judgment. 9 A. 10 The district court We agree that Woo is Substantive Due Process in the Child-Removal Context Substantive due process rights safeguard persons 11 "against the government's 'exercise of power without any 12 reasonable justification in the service of a legitimate 13 governmental objective.'" 14 County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). 15 establish a violation of substantive due process rights, a 16 plaintiff must demonstrate that the state action was 'so 17 egregious, so outrageous, that it may fairly be said to shock the 18 contemporary conscience.'" 19 523 U.S. at 847 n.8). 20 protected right must be "'so shocking, arbitrary, and egregious 21 that the Due Process Clause would not countenance it even were it 22 accompanied by full procedural protection.'" 23 at 143 (quoting Tenenbaum, 193 F.3d at 600); see also Lewis, 523 24 U.S. at 840 (doctrine of substantive due process "bar[s] certain 25 government actions regardless of the fairness of the procedures Tenenbaum, 193 F.3d at 600 (quoting "To Okin, 577 F.3d at 431 (quoting Lewis, The interference with the plaintiff's 51 Anthony, 339 F.3d 1 used to implement them" (internal quotation marks omitted)). 2 Thus, in the child-removal context, we ask whether "the 3 removal . . . would have been prohibited by the Constitution even 4 had the [plaintiffs] been given all the procedural protections to 5 which they were entitled." 6 omitted). 7 Tenenbaum, 193 F.3d at 600 (emphasis We have long recognized that parents have a 8 "constitutionally protected liberty interest in the care, custody 9 and management of their children," id. at 593, and that the 10 deprivation of this interest is actionable on a substantive due 11 process theory, see id. at 600 (recognizing a "substantive right 12 under the Due Process Clause 'to remain together without the 13 coercive interference of the awesome power of the state'" 14 (quoting Duchesne, 566 F.2d at 825)). 15 however, that "[a]lthough parents enjoy a constitutionally 16 protected interest in their family integrity, this interest is 17 counterbalanced by the compelling governmental interest in the 18 protection of minor children, particularly in circumstances where 19 the protection is considered necessary as against the parents 20 themselves." 21 89, 104 (2d Cir. 1999) (internal quotation marks omitted), cert. 22 denied, 528 U.S. 1155 (2000). We have also observed, Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 23 We have explained that, in part because the law 24 contemplates a careful balancing of interests, a parent's 25 substantive constitutional rights are not infringed if a 52 1 caseworker, in effecting a removal of a child from the parent's 2 home, has a reasonable basis for thinking that a child is abused 3 or neglected. 4 has adopted a standard governing case workers which reflects the 5 recognized need for unusual deference in the abuse investigation 6 context. 7 simply that case workers have a 'reasonable basis' for their 8 findings of abuse." 9 108 (concluding that the "reasonable basis test" requires that 10 caseworkers' decisions to substantiate an allegation of child 11 abuse "be consistent with some significant portion of the 12 evidence before them"). 13 standard from time to time in recent years. 14 Nicholson, 344 F.3d at 174; Phifer v. City of N.Y., 289 F.3d 49, 15 60 (2d Cir. 2002); Kia P., 235 F.3d at 758-59. 16 See id.; Gottlieb, 84 F.3d at 518. "This Circuit An investigation passes constitutional muster provided Wilkinson, 182 F.3d at 104; see also id. at We have applied this "reasonable basis" See, e.g., We have also recognized that state interference with a 17 plaintiff's liberty interest must be severe before it rises to 18 the level of a substantive constitutional violation. 19 Anthony, 339 F.3d at 143. 20 from her parents" does not constitute an "interference [that is] 21 severe enough to constitute a violation of [the parents'] 22 substantive due-process rights," Tenenbaum, 193 F.3d at 601; see 23 also, e.g., Kia P., 235 F.3d at 759; Cecere, 967 F.2d at 830 24 (ruling that plaintiff's generalized due-process claim failed 25 because a "brief" four-day removal, executed "in the face of a See, e.g., "The temporary separation of [a child] 53 1 reasonably perceived emergency," did not violate due process); 2 Joyner ex rel. Lowry v. Dumpson, 712 F.2d 770, 779 (2d Cir. 1983) 3 (concluding that there was no substantive due process violation 4 where temporary transfer of custody to foster-care system did not 5 "result in parents' wholesale relinquishment of their right to 6 rear their children"). 7 contexts, our court and the Supreme Court had held that even very 8 brief seizures or detentions could violate the Fourth Amendment 9 rights of criminal suspects. See Tenenbaum, 193 F.3d at 601 In Tenenbaum, we observed that in other 10 (citing Davis v. Mississippi, 394 U.S. 721 (1969), which held 11 that police detention, even for a brief period of time, violated 12 the Fourth Amendment where there was no probable cause to arrest, 13 and United States v. Langer, 958 F.2d 522, 524 (2d Cir. 1992), 14 which held that police detention even for ten to fifteen minutes 15 was "constitutionally significant" for purposes of 18 U.S.C. § 16 242). 17 principle that brief seizures of people may be unreasonable and 18 therefore violate the Fourth Amendment that brief removals of 19 children from their parents to protect them from abuse are 20 without any reasonable justification in the service of a 21 legitimate governmental objective under the Due Process Clause." 22 Tenenbaum, 193 F.3d at 601 (internal quotation marks and citation 23 omitted). 24 25 We reasoned, however, that "[i]t does not follow from the Thus, "brief removals [of a child from a parent's home] generally do not rise to the level of a substantive due process 54 1 violation, at least where the purpose of the removal is to keep 2 the child safe during investigation and court confirmation of the 3 basis for removal." 4 Tenenbaum, 193 F.3d at 600 01 & n.12). 5 confirmation of the basis for removal" is obtained, id., any 6 liability for the continuation of the allegedly wrongful 7 separation of parent and child can no longer be attributed to the 8 officer who removed the child. 9 Tuffarelli, 692 F. Supp. 2d 347, 354, 368 (S.D.N.Y. 2010) Nicholson, 344 F.3d at 172 (citing And once such "court Cf., e.g., E.D. ex rel. V.D. v. 10 (applying brief-removal doctrine, and granting summary judgment 11 in favor of defendants, where family court confirmed the basis 12 for ACS's temporary removal of children three days after removal 13 occurred), aff'd, 408 F. App'x 448 (2d Cir. 2011). 14 B. 15 Analysis The district court, in deciding that Woo enjoyed 16 qualified-immunity protection as to these charges, observed that 17 the Southerland Children "were removed in the context of a child 18 protective investigation [in which] removal would be subject to 19 court confirmation," Southerland II, 521 F. Supp. 2d at 232, and 20 that "a timely post-deprivation hearing [was held] where a family 21 court judge confirmed the removal," id. at 234. 22 therefore concluded that it was objectively reasonable for Woo to 23 think that Southerland's rights were not being violated because 24 "[b]rief removals of children from their parents generally do not 25 rise to the level of a substantive due process violation." 55 The court Id. 1 at 232 (brackets and internal quotation marks omitted). 2 We agree with the district court that the removal of 3 children from their parent for the purpose of keeping the 4 children safe does not violate the parent's substantive due 5 process rights if a post-removal judicial proceeding is promptly 6 held to confirm that there exists a reasonable basis for the 7 removal. 8 separated solely at the instance of the defendant is, in such a 9 case, not sufficient to amount to a substantive due process The period of time in which the child and parent are 10 violation by the defendant caseworker. 11 at 172; Kia P., 235 F.3d at 759; Tenenbaum, 193 F.3d at 600-01. 12 This is not a matter of the defendant's qualified immunity: 13 Where the "brief-removal doctrine" applies, a plaintiff does not 14 have a cause of action for a substantive due process violation in 15 the first place. 16 brief-removal doctrine and concluding that plaintiff's "rights to 17 substantive due process were not abridged"). 18 See Nicholson, 344 F.3d See, e.g., Kia P., 235 F.3d at 759 (applying The viability of such a substantive due process cause 19 of action on the facts of this case is not an easy judgment to 20 make because the record is not entirely clear as to whether such 21 a post-removal judicial proceeding occurred, and if so, the 22 nature of it. 23 explained that the Southerland Children "remained in custody 24 without a court order until the morning of June 12, 1997, at 25 which time Woo obtained a court order confirming the removal." In a previous opinion, the district court 56 1 Southerland v. City of N.Y., No. 99-cv-3329, 2006 WL 2224432, at 2 *1, 2006 U.S. Dist. LEXIS 53582, at *4 (E.D.N.Y. Aug. 2, 2006) 3 (emphasis added). 4 affirmed the removal of the Southerland/Felix children . . . on 5 June 13, 1997," Woo Decl. ¶ 24, and Balan stated that "[t]he 6 removal was affirmed by Family Court on June 14, 1997," Balan 7 Decl. ¶ 18. 8 at that hearing, whenever it was, or on what factual basis the 9 Family Court decided that the continued removal of the 10 But Woo declared that "[t]he Family Court It is also unclear whether Southerland was present Southerland Children was warranted.23 11 We nonetheless conclude that summary judgment was 12 warranted. Southerland and the Southerland Children dispute 13 neither that a post-removal judicial confirmation proceeding was 14 held nor that it took place within four days after removal. 15 Southerland Children's Br. at 23; Pro Se Pl.'s Opp'n to Defs.' 16 Mot. for Summ. J. ¶¶ 36-37, Pro Se Submission of Sonny B. 17 Southerland at 7 (Dkt. No. 192), Southerland v. City of N.Y., No. 18 99-cv-3329 (E.D.N.Y. Mar. 14, 2007). 19 concession, only the (at most) four days of removal prior to the 20 court hearing are attributable to Woo. 21 2d at 354, 368. 22 becomes: See Therefore, based on this Tuffarelli, 692 F. Supp. In light of this concession, the question Was the four-day period a "shocking, arbitrary, and 23 These problems persist despite our prior instruction that Southerland "be given an opportunity to prove . . . that the subsequent family court proceedings were insufficiently prompt to pass constitutional muster." Southerland I, 4 F. App'x at 36. 57 1 egregious" amount of time for Southerland to have been separated 2 from his children at Woo's instruction, i.e., without an 3 intervening judicial confirmation of the basis for removal. 4 Anthony, 339 F.3d at 143 (internal quotation marks omitted). 5 We conclude, on the basis of previous consideration of 6 similar circumstances by courts in this Circuit and our own 7 judgment, that the four-day separation under these circumstances 8 was not so long as to constitute a denial of substantive due 9 process to Southerland. See Kia P., 235 F.3d at 759 ("day or 10 two" removal to review a child's case did not violate substantive 11 due process); Tuffarelli, 692 F. Supp. 2d at 368 (no substantive 12 due process violation where children were removed on a Friday 13 evening, and judicial proceedings commenced in a timely manner on 14 the following Monday); Green ex rel. T.C. v. Mattingly, 07-cv- 15 1790(ENV)(CLP), 2010 WL 3824119, at *10, 2010 U.S. Dist. LEXIS 16 99864, at *34-35 (E.D.N.Y. Sept. 23, 2010) (four-day removal of 17 child during ACS investigation did not violate substantive due 18 process). 19 Although the Southerland Children continued to be 20 separated from Southerland even after the post-removal 21 confirmation proceeding, in light of the presumption of 22 regularity that we attribute to state judicial proceedings, see, 23 e.g., Honeycutt v. Ward, 612 F.2d 36, 41 (2d Cir. 1979), and in 24 light of Southerland's failure to proffer any evidence tending to 25 rebut that presumption, we cannot conclude that the continued 58 1 separation of Southerland from his children following the 2 judicial confirmation proceeding is fairly attributable to Woo. 3 We therefore conclude that Southerland's substantive due process 4 claim fails on its merits.24 5 summary judgment to Woo on that basis as to this claim. 6 7 VII. 8 9 Accordingly, we affirm the grant of The Southerland Children's Fourth Amendment Unlawful-Seizure Claim Finally, the Southerland Children assert a claim for violation of their Fourth Amendment right to be free from 10 unreasonable seizure. 11 A. Evolution of the Southerland Children's Theory of Liability 12 The Southerland Children originally characterized this 13 constitutional claim as arising under the Due Process Clause of 14 the Fourteenth Amendment. 15 lacked a reasonable basis for removing the [Southerland] Children 16 from plaintiff's home without a court order," and that "[i]n so 17 doing, Woo deprived the [Southerland] Children of their 18 substantive due process liberty interests in being in the care 19 and custody of their father and natural guardian, guaranteed to 20 them by the [F]ourteenth [A]mendment." 21 relied upon the Fourteenth Amendment notwithstanding our 22 observation in Southerland I that "[t]he children's claims for Specifically, they alleged that "Woo 24 Am. Compl. ¶ 51. They As noted above, supra at 16 & n.9, because we affirm on that basis, we need not consider whether Southerland's substantive due process claim would be defeated on the alternate ground that Ciara and the Southerland Children were adjudged to be abused and neglected by the Family Court in July 1998. 59 1 unreasonable seizure would proceed under the Fourth Amendment [as 2 applied to the states by the Fourteenth] rather than the 3 substantive component of the Due Process Clause." 4 4 F. App'x at 37 n.2 (citing Kia P., 235 F.3d at 757-58). 5 Southerland I, By the time of the summary judgment proceedings after 6 remand, the Southerland Children appeared to recognize that their 7 claim did indeed arise under the Fourth Amendment. 8 Southerland Children's Mem. of Law in Opp'n to Mot. for Summ. J. 9 at 16-20 ("Children's Dist. Ct. Br.") (Dkt. No. 184), Southerland 10 v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Dec. 29, 2006) (arguing 11 the Southerland Children's substantive due process claim as 12 though it arose under the Fourth Amendment). 13 resolving the summary judgment motion, the district court 14 correctly noted that the Southerland Children's substantive due 15 process constitutional claim was governed by the Fourth 16 Amendment. 17 (citing Southerland I, 4 F. App'x at 37 n.2). 18 See And in its opinion See Southerland II, 521 F. Supp. 2d at 230 n.24 The Southerland Children also narrowed their theory of 19 liability as to the legal substance of that claim. 20 they pled that the removal was unconstitutional both because it 21 lacked a "reasonable basis," Am. Compl. ¶ 51, and because the 22 removal had the effect of separating them from Southerland, 23 thereby depriving them of their "liberty interests in being in 24 the care and custody of their father," id. 25 Southerland Children thus pled both that their warrantless 60 Originally, In effect, the 1 seizure was unreasonable because it was not supported by an 2 exception to the Fourth Amendment warrant requirement (no 3 "reasonable basis"), and that the seizure was unreasonable 4 insofar as it burdened the Southerland Children's substantive due 5 process right to "be[] in the care and custody of their 6 father."25 25 A Fourth Amendment unlawful-seizure claim differs from a Fourth Amendment unlawful-search claim. It is not yet clear from the case law of our Circuit what kinds of Fourth Amendment unlawful-seizure claims might be asserted by a child who is removed from his or her home. From reviewing our past decisions and those of other circuits, however, we can identify at least three possibilities. First, a child might assert that the act of seizure itself lacked a lawful basis, such as consent, probable cause, or exigent circumstances. See, e.g., Southerland II, 521 F. Supp. 2d at 234 n.29 (evaluating Southerland Children's Fourth Amendment unlawful-seizure claim in those terms). Second, a child might assert that the seizure was carried out in an unreasonable manner, such as through the use of excessive force or through a sudden, surprise raid. See, e.g., Brokaw v. Mercer County, 235 F.3d 1000, 1011-12 (7th Cir. 2000) (upholding manner-of-seizure claim brought by child removed from his home where officers "acted like kidnappers"). Third, a child might assert that the seizure endured for an unreasonable length, and thereby burdened the child's interest in being in the care and custody of his or her parents. See, e.g., Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 474 (7th Cir. 2011) (recognizing and upholding seized child's claim for "continued withholding" under the Fourth Amendment); see also Albright v. Oliver, 510 U.S. 266, 276-81 (1994) (Ginsburg, J., concurring) (endorsing "continuing seizure" doctrine in the lawenforcement context); Fontana v. Haskin, 262 F.3d 871, 878-80 & nn.4-5 (9th Cir. 2001) (discussing "continuing seizure" doctrine and collecting cases). 61 1 In their submission opposing the defendants' summary 2 judgment motion, however, the Southerland Children appeared to 3 have abandoned the theory that the seizure unreasonably burdened 4 their due process right to their father's care and custody. 5 other words, they no longer challenged the reasonableness of the 6 effect or duration of their removal as a violation of their 7 rights to substantive due process. 8 that the removal was unconstitutional as an unlawful seizure 9 because the act of removal itself was unsupported by sufficient In Instead, they argued only 10 legal justification: 11 either parental consent or exigent circumstances that would 12 justify the act of removal absent prior judicial authorization. 13 See generally Children's Dist. Ct. Br. at 16-20. 14 B. 15 Woo could not demonstrate the existence of District Court's Analysis The district court properly analyzed this claim solely 16 by reference to the theory set forth in the Southerland 17 Children's summary-judgment briefing -- i.e., that their Fourth 18 Amendment rights had been violated because there were no "exigent 19 circumstances" justifying their removal without a court order. 20 See Southerland II, 521 F. Supp. 2d at 234 n.29. 21 Southerland Children's abandonment of any of the other alleged 22 theories of liability, especially under principles of substantive 23 due process, the district court correctly framed the claim in 24 this manner. 62 In light of the 1 As with the procedural due process claim, see supra 2 Part V.A., the court concluded that at the time of the alleged 3 seizure, "there was no clear application of Fourth Amendment 4 standards in the child removal context." 5 Supp. 2d at 231. 6 193 F.3d at 605, our decision that viewed Fourteenth Amendment 7 due process claims as properly Fourth Amendment unlawful-seizure 8 claims of the sort asserted here, but that had not issued until 9 after the seizure in this case. See Southerland II, 521 F. Supp. Southerland II, 521 F. The court pointed, in particular, to Tenenbaum, 10 2d at 231. 11 Southerland Children's removal, the court held, as a matter of 12 law, that Woo was protected from this claim by qualified 13 immunity. 14 Based on the absence of clear law at the time of the Id. at 231. In addition to the immunity question, and despite 15 finding in Woo's favor on it, the district court nonetheless 16 addressed the merits of the Southerland Children's Fourth 17 Amendment unlawful-seizure claim. 18 that, "[i]n the absence of Woo's qualified immunity defense," 19 summary judgment would not be warranted on this claim on its 20 underlying merits because "a reasonable juror could determine 21 that the circumstances Woo encountered did not demonstrate an 22 imminent danger to the children's life or limb."26 It concluded in a footnote Id. at 234 In employing this "imminent danger" standard, the district court appears to have relied on section 1024(a) of the New York Family Court Act. See Southerland II, 521 F. Supp. 2d at 234 n.29. That statute provides that a child-protective 26 63 1 n.29. 2 C. Appeal 3 On appeal, the Southerland Children appear to persist 4 in their view that their Fourth Amendment unlawful-seizure claim 5 is addressed solely to the issue of whether there was a legal 6 basis for the act of removal. 7 24, 36-41; Woo Br. at 36-37; Southerland Children's Reply Br. at 8 6-8. 9 abandoned any argument the Southerland Children might have made See Southerland Children's Br. at We review the argument in those terms, treating as 10 that the removal was unreasonable because it had an unlawful 11 effect or was of unlawful duration, and was therefore a violation 12 of their substantive due process rights. 13 Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011). 14 15 1. 16 See City of N.Y. v. Standard for Evaluating Unlawful-Seizure Claims in the Child-Removal Context By way of footnote, the district court decided that Woo 17 was entitled to summary judgment with respect to the claim that 18 the removal was unlawful. In doing so, the court assumed that a worker may effect an ex parte removal of a child only where the worker has "reasonable cause to believe that the child is in such circumstance or condition that his or her continuing in . . . the care and custody of the parent . . . presents an imminent danger to the child's life or health" and where "there is not time enough to apply for a[] [court] order." N.Y. Fam. Ct. Act § 1024(a). Our assessment of the lawfulness of the removal of the Southerland Children from their home, however, is controlled by federal, not state, standards. See, e.g., United States v. Chirino, 483 F.3d 141, 149 (2d Cir. 2007). 64 1 seizure of a child without a court order is constitutionally 2 justified under the Fourth Amendment only if there are "exigent 3 circumstances." 4 This Court, however, has yet to articulate definitively the legal 5 standard that applies to a Fourth Amendment unlawful-seizure 6 claim brought by a child alleging that his or her removal without 7 parental consent or prior judicial authorization was not 8 supported by sufficient cause. 9 See Southerland II, 521 F. Supp. 2d at 234 n.29. In Tenenbaum, we considered this question, apparently 10 for the first time. 11 dicta, three possible "modes of determining whether a seizure was 12 'reasonable' under the Fourth Amendment . . . in cases where the 13 state seizes a child in order to prevent abuse or neglect." 14 P., 235 F.3d at 762 (citing and discussing Tenenbaum, 193 F.3d at 15 603-05). 16 See 193 F.3d at 603-05. We described, in Kia As one mode, we referred to the "exigent circumstances" 17 exception to the warrant requirement that is well-established in 18 the law-enforcement context. 19 (noting that "it is core Fourth Amendment doctrine that a seizure 20 without consent or a warrant is a 'reasonable' seizure if it is 21 justified by 'exigent circumstances'"); see generally United 22 States v. Klump, 536 F.3d 113, 117-19 (2d Cir. 2008) (describing 23 and applying the "exigent circumstances" exception in 24 law-enforcement context), cert. denied, 129 S. Ct. 664 (2008); See Tenenbaum, 193 F.3d at 604 65 1 United States v. MacDonald, 916 F.2d 766, 769-70 (2d Cir. 1990) 2 (en banc) (elaborating standards). 3 exception would be viable in the child-removal context too. 4 Tenenbaum, 193 F.3d at 604-05. 5 would apply when "a child is subject to the danger of abuse if 6 not removed . . . before court authorization can reasonably be 7 obtained." Id. at 605. 8 9 We concluded that such an We suggested that that exception As another mode, we said that a seizure conducted in accordance with the ordinary probable-cause standard -- the 10 standard that applies in the law-enforcement context -- might 11 also suffice. 12 remove a child from his or her home without parental consent or 13 prior judicial authorization if the caseworker knew "facts and 14 circumstances that were sufficient to warrant a person of 15 reasonable caution in the belief that" a child was abused or 16 neglected. Under such a rule, a caseworker could lawfully Id. at 602-03 (internal quotation marks omitted). 17 Alternatively, we noted that under some circumstances 18 an even lesser, "special needs," standard might apply, in which 19 case only "reasonable cause" would be necessary to render lawful 20 a warrantless seizure. 21 the principle that "there are some agencies outside the realm of 22 criminal law enforcement where government officials have 'special 23 needs beyond the normal need for law enforcement [that] make the 24 warrant and probable-cause requirement impracticable.'" See id. at 603-04. 66 That would reflect Id. at 1 603 (quoting O'Connor v. Ortega, 480 U.S. 709, 720 (1987) 2 (plurality opinion)) (alterations in Tenenbaum). 3 however, that case law in our sister circuits suggested that the 4 "emergency removal of a child by caseworkers is not such a 5 'special needs' situation." We observed, Id. at 603-04 (collecting cases). We did not decide in Tenenbaum which of those three 6 7 standards should apply as the constitutional floor in 8 child-removal cases -- i.e., the standard below which an officer 9 could not go without violating the Fourth Amendment. Id. at 605; 10 see also Kia P., 235 F.3d at 762-63 (reserving same question). 11 But we did conclude that, at least "where information possessed 12 by a state officer would warrant a person of reasonable caution 13 in the belief that a child is subject to the danger of abuse if 14 not removed from school before court authorization can reasonably 15 be obtained, the 'exigent circumstances' doctrine . . . permits 16 removal of the child without a warrant equivalent and without 17 parental consent." 18 927 F.2d at 80); see also Phifer, 289 F.3d at 60-61 (recognizing 19 and applying this holding in the context of a Rooker-Feldman 20 analysis). 21 the standard to be applied to such claims cannot be any less than 22 probable cause. 23 addressed . . . the question whether[,] in the context of the 24 seizure of a child by a state protective agency[,] the Fourth Tenenbaum, 193 F.3d at 605 (citing Hurlman, And, subsequent to Tenenbaum, we have assumed that See Nicholson, 344 F.3d at 173 ("We have not 67 1 Amendment might impose any additional restrictions above and 2 beyond those that apply to ordinary arrests." (emphasis added)). 3 Again here, we need not adopt a standard. We observe 4 first, as we did in Tenenbaum, that this case does not present 5 circumstances in which the "special needs" test applies, if ever 6 it does in the child-removal context. 7 603.27 8 of a warrant where practicable [would not] impose[] intolerable 9 burdens on the government officer or the courts, [and] would Tenenbaum, 193 F.3d at In this case "the requirement of obtaining the equivalent 10 [not] prevent such an officer from taking necessary action, or 11 tend to render such action ineffective," Tenenbaum, 193 F.3d at 12 604. 13 The elimination of a possible "special needs" approach 14 leaves either the probable-cause or exigent-circumstances 15 standard applicable to the merits of whether Woo's behavior 16 violated the Children's constitutional rights.28 But we need not 27 Case law from our sister circuits, subsequent to Tenenbaum, concludes that the "special needs" test is never applicable in this context. See, e.g., Siliven v. Ind. Dep't of Child Servs., 635 F.3d 921, 926-28 (7th Cir. 2011); Riehm v. Engelking, 538 F.3d 952, 965 (8th Cir. 2008); Gates v. Texas Dep't of Protective & Regulatory Servs., 537 F.3d 404, 427-29 (5th Cir. 2008). 28 Our sister circuits apply somewhat divergent standards in determining whether a seizure of a child without judicial authorization or parental consent violates the Fourth Amendment. See, e.g., See Siliven, 635 F.3d at 926-28 (probable cause or exigent circumstances sufficient); Riehm, 538 F.3d at 965 (same); Gates, 537 F.3d at 427-29 (exigent circumstances required); Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000) (same). 68 1 decide between them -- at least not yet. 2 regardless of which standard applies, Woo cannot establish as a 3 matter of law on the current record that he would be entitled to 4 qualified immunity or that no reasonable jury could find in favor 5 of the Children on the merits of their Fourth Amendment seizure 6 claim. 7 2. 8 9 As explained below, Qualified Immunity The district court decided that Woo was entitled to qualified immunity because "prior to the Court of Appeals' 10 decision in Tenenbaum [in 1999], there was no clear application 11 of Fourth Amendment standards in the child removal context." 12 Southerland II, 521 F. Supp. 2d at 231. 13 the district court's observation that this Circuit had not yet 14 applied Fourth Amendment unlawful-seizure principles in the 15 child-removal context by 1997, we think that the district court 16 erred by conducting its inquiry solely by reference to the 17 label -- "unlawful seizure" -- attached to the claim at issue. 18 Although we agree with Our decision in Tenenbaum did indeed effect a change in 19 the constitutional nomenclature governing a child's claim for 20 alleged substantive constitutional violations arising out of his 21 or her removal from a parental home. 22 contended that "[their daughter's] temporary removal [from 23 school] for the purpose of subjecting her to a medical 24 examination violated their and [their daughter's] substantive 69 There, the plaintiffs 1 due-process rights." Tenenbaum, 193 F.3d at 599. 2 the Supreme Court observed in Albright v. Oliver, 510 U.S. at 3 273, that We noted that 4 5 6 7 8 9 10 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. 11 Tenenbaum, 193 F.3d at 599 (brackets and internal quotation marks 12 omitted). 13 is . . . inappropriate . . . if [the] claim is covered by the 14 Fourth Amendment.'" 15 (second brackets in original; other internal quotation marks 16 omitted). 17 examination constituted a seizure and search, respectively, under 18 the Fourth Amendment," id., and that her claim "therefore 'must 19 be analyzed under the standard appropriate to [the Fourth 20 Amendment], not under the rubric of substantive due process.'" 21 Id. (quoting United States v. Lanier, 520 U.S. 259, 272 n.7 22 (1997)).29 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 29 We have since reaffirmed that "the Fourth Amendment applies in the context of the seizure of a child by a governmentagency official during a civil child-abuse or maltreatment investigation." Kia P., 235 F.3d at 762. We relied on Kia P. in turn in Southerland I in advising that "[t]he [Southerland] 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. 70 1 The fact that Tenenbaum changed the legal "rubric" 2 applicable to the Southerland Children's constitutional claim -- 3 from substantive due process to illegal seizure -- however, is 4 not alone determinative of whether the constitutional rights 5 implicated in the Children's seizure were clearly established 6 prior to the time of the seizure. 7 think, to afford Woo qualified immunity on the Southerland 8 Children's claim solely because, two years after the events in 9 question, we shifted the constitutional label for evaluating that It would be inappropriate, we 10 claim from the Fourteenth to the Fourth Amendment. 11 Tenenbaum, 193 F.3d at 605 (resting grant of qualified immunity 12 on basis that there "was no 'clearly established' law under the 13 Fourth Amendment" in 1990 concerning standards for removing a 14 child from her school). 15 reasonable caseworker in Woo's position would have known that 16 removing a child from his or her home without parental consent, 17 circumstances warranting the removal, or court order would 18 violate a constitutional right -- not whether the caseworker 19 would have known which constitutional provisions would be 20 violated if the caseworker proceeded to act in a particular way. 21 But cf. What matters is whether an objectively We reached a similar conclusion in Russo v. City of 22 Bridgeport, 479 F.3d 196 (2d Cir.), cert. denied, 552 U.S. 818 23 (2007). 24 free from prolonged detention caused by law enforcement There we made clear that the constitutional "right to be 71 1 officials' mishandling or suppression of exculpatory evidence," 2 id. at 211, was a species of the right to be free from unlawful 3 seizure under the Fourth Amendment, not a substantive due process 4 right under the Fourteenth Amendment, see id. at 208-09. 5 proceeding to undertake a qualified-immunity inquiry, we 6 cautioned that our "clarification [of the law was] of no 7 consequence to the question of whether the right was clearly 8 established [at the time of the relevant events], because the 9 proper inquiry is whether the right itself -- rather than its 10 source -- is clearly established." 11 In then emphases in original). 12 Id. at 212 (collecting cases; Here, as in Russo, in inquiring whether there was 13 clearly established law to govern the Southerland Children's 14 claim in 1997, we look not only to authorities interpreting the 15 Fourth Amendment, but to all decisions concerning the same 16 substantive right -- the right of a child not to be seized from 17 his or her home without parental consent, prior judicial 18 authorization, or the existence of special circumstances. 19 Although the standard for determining whether the 20 circumstances justify seizure of a child without judicial 21 authorization or parental consent under the Fourth Amendment was 22 not established by 1997 and, as we have pointed out, remains 23 unsettled to this day, the Children's right not to be taken from 24 the care of their parent without court order, parental consent, 72 1 or emergency circumstances was firmly established, albeit under a 2 procedural due process framework. 3 Regardless of whether probable cause or exigent circumstances 4 must be established to justify a warrantless seizure for Fourth 5 Amendment purposes, the existence of emergency circumstances 6 sufficient to justify removal of the Southerland Children in a 7 manner comporting with their due process rights would also 8 certainly suffice to justify their removal in a manner comporting 9 with their Fourth Amendment rights barring unreasonable See Hurlman, 927 F.2d at 80. 10 seizure.30 11 case, the Southerland Children's Fourth Amendment rights against 12 unreasonable seizure were clearly established. 13 To that extent, at the time of the events in this In light of this determination, the next question the 14 Court must address is whether "it was objectively reasonable for 15 [Woo] to believe [that his] acts did not violate th[e Childrens' 16 clearly established] right[]," Holcomb, 337 F.3d at 220, not to 17 be taken from the care of their parent without court order, 18 parental consent, or emergency circumstances. 19 the purposes of the qualified immunity analysis, the legal origin 20 of the right is not determinative. 21 he was objectively reasonable in believing that he did not 22 violate the Children's right to be free from unwarranted seizure 30 Once again, for If Woo has established that See supra, note 21 (discussing the distinction between an exigent circumstances and an emergency circumstances standard). 73 1 without exigent circumstances, court order, or parental consent, 2 then he is protected against their Fourth Amendment seizure 3 claim, no matter the standard used to determine liability on this 4 claim on the merits. 5 due process analysis -- that we cannot conclude as a matter of 6 law on the current record that it would have been objectively 7 reasonable for Woo to believe that his actions did not violate 8 the Children's constitutional right not to be removed from their 9 home barring exigent circumstances we cannot conclude as a For the same reasons as in our procedural 10 matter of law that Woo must prevail on the "objectively 11 reasonable" inquiry as to the violation of the children's Fourth 12 Amendment illegal seizure claims. 13 qualified immunity is unavailable to Woo at this stage on the 14 current record. 15 3. 16 See supra, Part V. Thus, The Merits of the Fourth Amendment Unlawful Seizure Claim Because we conclude here that Woo is not entitled to 17 qualified immunity as a matter of law, at least on this record, 18 the remaining question is whether Woo is entitled to summary 19 judgment on the merits. 20 seizure of a child without a court order or parental consent is 21 constitutionally justified under the Fourth Amendment only if 22 there are "exigent circumstances." 23 Supp. 2d at 234 n.29. 24 the light most favorable to the Southerland Children, "a 25 reasonable juror could determine that the circumstances Woo The district court assumed that a See Southerland II, 521 F. It concluded that, taking the evidence in 74 1 encountered did not demonstrate an imminent danger to the 2 children's life or limb." Id. 3 As our discussion here makes clear, however, this may 4 not be the standard that should apply in deciding the merits of 5 the Children's Fourth Amendment seizure claim. 6 court should reconsider the merits-question - on an expanded 7 record if the court deems that appropriate - cognizant of the 8 uncertainty in the legal landscape. 9 to decide, in the first instance, what standard should apply, but The district The district court may need 10 it may not. For example, if the court determines that under 11 either standard the Southerland children can establish that the 12 circumstances in the home did not justify the seizure as a matter 13 of law, then it need not decide whether the probable cause or 14 exigent circumstances standard is applicable. 15 VIII. Further Development of the Record 16 As should be clear by now, nothing in this opinion 17 should be read to foreclose the district court from exercising 18 its sound discretion as to the nature and scope of any further 19 pretrial proceedings on remand. 20 F.3d 116, 152 (2d Cir. 2004) (district court free to consider 21 whether granting additional discovery would be appropriate before 22 deciding a renewed motion for summary judgment on remand). 23 district court may, although it need not, permit additional 24 discovery, a renewed motion for summary judgment, or both. Cf. Huminski v. Corsones, 386 75 The And 1 it follows that, should this case proceed to trial, nothing in 2 this opinion should be construed as preventing the district court 3 from entertaining a properly supported motion for judgment as a 4 matter of law by the defendants. 5 CONCLUSION 6 For the foregoing reasons, we affirm the grant of 7 summary judgment as to Southerland's claim for infringement of 8 his substantive due process rights under the Fourteenth 9 Amendment. We vacate the district court's grant of summary 10 judgment as to Southerland's and the Southerland Children's 11 claims for Fourth Amendment violations arising out of the 12 allegedly unlawful search of the Southerland home; as to 13 Southerland's and the Southerland Children's claims for 14 violations of procedural due process under the Fourteenth 15 Amendment; and as to the Southerland Children's claim for 16 unlawful seizure under the Fourth Amendment and remand to the 17 district court for further proceedings. 18 19 Each party shall bear his, her or its own costs on appeal. 76