CA10: Qualified immunity denied for removing child from home without proper showing

CA10: Qualified immunity denied to defendant sued for removing plaintiffs’ child from the home without just cause; the child has a Fourth Amendment right, too. Two cases:

Turner v. Houseman, 268 Fed. Appx. 785 (10th Cir. 2008) (unpublished):

Turner has also met the second element of his burden, to show that the right allegedly violated was clearly established. “The law is clearly established when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from other courts shows that the right must be as the plaintiff maintains.” Roska, 328 F.3d at 1248. It was clearly established, at least two years before the events in question, that absent probable cause and a warrant or exigent circumstances, neither police nor social workers may enter a person’s home without a valid consent, even for the purpose of taking a child into custody, much less to conduct a search. Id. at 1248-50 & n.23. It was also established that the warrantless seizure and detention of a person without probable cause or exigent circumstances, as alleged in Turner’s petition, is unreasonable. See Olsen, 312 F.3d at 1312. We therefore affirm the district court’s denial of qualified immunity on Turner’s Fourth Amendment claim against Houseman.

Burgess v. Houseman, 268 Fed. Appx. 780 (10th Cir. 2008) (unpublished):

The law was clearly established, prior to the events in question, that children enjoy Fourth Amendment rights to be free from seizure, including the improper removal from their home. See J.B. v. Washington County, 127 F.3d 919, 928-29 (10th Cir. 1997). We therefore affirm the denial of qualified immunity on plaintiff’s Fourth Amendment claim.