At the time of this seizure of an infant from the parents in 2008, it was clearly established that child protection workers could not remove children from the parents without a warrant or exigency, but not something like these facts . “In 2008, it was not beyond debate that the confluence of factors set forth above would not support a finding of exigency.” (Slip op. at 17) A preliminary determination had been made here that there was no exigency, but, by the time the home inspection occurred, the worker there seized the children because of the condition of the home. [This case has a good discussion of the generality and clearly established.] Kirkpatrick v. County of Washoe, 2016 U.S. App. LEXIS 21925 (9th Cir. Dec. 9, 2016) (en banc) [panel decision: 792 F.3d 1184 (9th Cir. 2015), vacated on grant of rehearing en banc, 813 F.3d 1258 (9th Cir. 2016)]:
This appeal arises from Washoe County social workers’ warrantless removal of a two-day-old child from the custody of her mother, who had a history of drug abuse and whose two other children had been previously placed in the care of the Washoe County Department of Social Services (“DSS”). The biological father subsequently brought suit under 42 U.S.C. § 1983 against the social workers and the County, claiming the removal of his daughter violated the Fourth and Fourteenth Amendments. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part the district court’s grant of summary judgment in the defendants’ favor, reverse in part, and remand for further proceedings.
. . .
This brings us to B.W.’s Fourth Amendment claim. The district court construed the SAC as stating claims only on behalf of Kirkpatrick. We disagree. As noted above, the SAC alleged that “[B.W.’s] constitutional right to be with her parents was violated.” Later, Kirkpatrick also alleged that “Defendants … acted under color of state law to deprive Plaintiff, as described herein, of constitutionally protected rights, including, but not limited to: … (d) the right to be free from unreasonable searches and seizures; … [and] (f) the right to be with her parents.” Moreover, the defendants moved for summary judgment on the merits of B.W.’s Fourth Amendment claim and have thus not been prejudiced by any linguistic imprecision on Kirkpatrick’s part in drafting the SAC. Accordingly, we conclude that Kirkpatrick sufficiently asserted a violation of B.W.’s Fourth Amendment rights to apprise the defendants that Kirkpatrick sought to adjudicate her claims in addition to his own. The district court erred in granting summary judgment to the defendants on the grounds that the SAC did not provide adequate notice of B.W.’s Fourth Amendment claim, and we address this theory of relief and the concomitant issue of qualified immunity for the first time on appeal. See Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998) (“We may affirm the district court’s judgment on any ground finding support in the record, even if it relied on the wrong ground or reasoning.”).
Under the Fourth Amendment, government officials are ordinarily required to obtain prior judicial authorization before removing a child from the custody of her parent. However, officials may seize a child without a warrant “if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.” Wallis, 202 F.3d at 1138.
In Rogers v. County of San Joaquin, we clarified that seizing a child without a warrant is excusable only when officials “have reasonable cause to believe that the child is likely to experience serious bodily harm in the time that would be required to obtain a warrant.” 487 F.3d at 1295 (citing Mabe, 237 F.3d at 1108) (emphasis added). Rogers concerned a social worker’s removal of two children—ages three and five—from their home eighteen days after receiving an anonymous report that the children displayed signs of severe neglect. See Rogers, 487 F.3d at 1291. The report alleged that the children were not toilet-trained, that the parents locked the children in their rooms at night, that the children were not receiving medical or dental care, that the home was dirty and maggot-infested, and that the children had access to unsecured guns. Id. Child Protective Services (“CPS”) classified the case as a non-emergency, one that only necessitated a response within ten days. Id. But after eventually observing the children in the home and talking to their parents, a CPS worker immediately removed the children without seeking a warrant. Id. at 1292-93.
We began in Rogers from the settled premise that social workers violate the Fourth Amendment by removing children absent a warrant or exigent circumstances. Id. at 1294. Under that standard, we found that none of the allegations of neglect in Rogers were sufficiently serious to justify the children’s removal. See id. at 1294-95. Bottle rot, malnourishment, and disorderly home conditions do not present an imminent risk of serious bodily harm. Id. at 1295. Furthermore, the “official’s prior willingness to leave the children in their home militate[d] against a finding of exigency.” Id. We observed that “[s]erious allegations of abuse that have been investigated and corroborated usually give rise to a ‘reasonable inference of imminent danger sufficient to justify taking children into temporary custody’ if they might again be beaten or molested during the time it would take to get a warrant,” but concluded that the chance of grave harm befalling the Rogerses’ children during the “few hours” the social worker believed it would have taken to request a warrant was very low—so low as to “not establish reasonable cause to believe that the children were in immediate danger.” Id. at 1294-95.
Rogers thus makes clear that when social workers investigating suspected abuse or neglect can reasonably obtain a warrant without significantly risking serious bodily harm to the child in question, the Fourth Amendment mandates that they do so. This conclusion finds support in long-standing Fourth Amendment precedent. See, e.g., Mincey v. Arizona, 437 U.S. 385, 394 (1978) (finding “no exigent circumstances” supporting a warrantless search because “[t]here was no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant”); Michigan v. Tyler, 436 U.S. 499, 509 (1978) (“[A] warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant.”); United States v. Echegoyen, 799 F.2d 1271, 1279 n.5 (9th Cir. 1986) (“Exigent circumstances necessarily imply that there is insufficient time to get a warrant.”); United States v. Good, 780 F.2d 773, 775 (9th Cir. 1986) (“Exigent circumstances alone, however, are insufficient as the government must also show that a warrant could not have been obtained in time.”). This rule is the logical corollary to the Constitution’s proscription of warrantless seizures absent exigent circumstances; if the state had time to obtain a warrant, it stands to reason that there can be no “exigent circumstance.”
Accordingly, under Rogers, the social workers here lacked cause to forgo a warrant if they had adequate time to pursue one through the ordinary judicial process without risking B.W.’s well-being. We hold that Kirkpatrick has raised a genuine dispute as to whether B.W. was in such imminent danger of serious bodily injury that no warrant was necessary. Whitworth’s methamphetamine abuse did not pose a direct threat to B.W. while both mother and daughter remained in the hospital, where nurses were supervising all of B.W.’s medical needs. Nor did Whitworth’s unemployment or lack of a stable place to live justify the social workers’ actions. “[R]eliance on factors so closely related to economic status as a justification for removal would border on the unconstitutional.” Rogers, 487 F.3d at 1296. In addition, although B.W.’s age may have rendered her more vulnerable to the harms of neglect if it were to occur, the undisputed evidence belies any contention that B.W. was in jeopardy of neglect in the maternity ward of the hospital, which Kennedy—a DSS supervisor—considered to be a safe environment. Wilcox, the social worker in charge of B.W.’s case, similarly confirmed that there was no danger to B.W. “[b]etween the time the hold was put on the child in the hospital and the time just before [she] left the hospital.”
According to Kennedy’s deposition testimony, the only potential “imminent risk” facing B.W. at the time that Wilcox removed her from Whitworth’s custody was that B.W. “could die if she goes home with a mother who’s high on drugs and forgets to feed her.” But Whitworth was recovering from a cesarean section and had demonstrated no resistance to the social workers’ intervention: Whitworth even volunteered her case worker’s contact information to hospital staff and remained in the hospital at the time of the protective custody hearing the day after B.W.’s removal. At DSS’s request, the hospital also put a hold on B.W. Accordingly, the unlikely possibility that Whitworth might unexpectedly abscond with B.W. did not justify dispensing with the warrant requirement. See Rogers, 487 F.3d at 1295 (“So remote a risk does not establish reasonable cause to believe that the children were in immediate danger.”). A rational jury presented with this evidence could find that B.W. was under no immediate threat of serious physical injury, and, therefore, that the social workers violated her Fourth Amendment rights by removing her from her mother under non-exigent circumstances.
B.
We therefore turn to the second prong of the qualified immunity analysis, which requires Kirkpatrick and B.W. to demonstrate that this right was “clearly established.” See Kennedy v. City of Ridgefield, 439 F.3d 1055, 1065 (9th Cir. 2006).
“To determine whether a right is clearly established, the reviewing court must consider whether a reasonable [official] would recognize that his or her conduct violate[d] that right under the circumstances faced, and in light of the law that existed at that time.” Id. While “[s]pecific binding precedent is not required to show that a right is clearly established,” Calabretta v. Floyd, 189 F.3d 808, 813 (9th Cir. 1999) (citation omitted), “existing precedent must have placed the statutory or constitutional question beyond debate,” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “Our task is to determine whether the preexisting law provided the defendants with ‘fair warning’ that their conduct was unlawful.” Kennedy, 439 F.3d at 1065 (quoting Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1137 (9th Cir. 2003)). “This exacting standard gives government officials breathing room to make reasonable but mistaken judgments by protect[ing] all but the plainly incompetent or those who knowingly violate the law.” City & Cty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (internal quotation marks omitted).
In July 2008 it was well-settled that a child could not be removed without prior judicial authorization absent evidence that the child was in imminent danger of serious bodily injury. See Rogers, 487 F.3d at 1297 (recognizing that the law has been clearly established in the Ninth Circuit since Mabe, if not earlier); see also Mabe, 237 F.3d at 1106; Wallis, 202 F.3d at 1138; Ram, 118 F.3d at 1310. But the Supreme Court has “repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality.” al-Kidd, 563 U.S. at 742 (citation omitted). “Qualified immunity is no immunity at all if ‘clearly established’ law can simply be defined as the right to be free from unreasonable searches and seizures.” Sheehan, 135 S. Ct. at 1776.
In 2008, it was not beyond debate that the confluence of factors set forth above would not support a finding of exigency. No Supreme Court precedent defines when a warrant is required to seize a child under exigent circumstances. And although the Supreme Court has assumed that circuit precedent can be a dispositive source of clearly established law, see id.; Carroll v. Carman, 135 S. Ct. 348, 350 (2014); Reichle v. Howards, 132 S. Ct. 2088, 2094 (2012), none of the cases from this court explain when removing an infant from a parent’s custody at a hospital to prevent neglect, without a warrant, crosses the line of reasonableness and violates the Fourth Amendment. See Rogers, 487 F.3d at 1291-93 (finding that malnourishment and bottle rot were not “imminent dangers” to two toddlers); Mabe, 237 F.3d at 1108 (denying summary judgment where social worker seized a 14-year-old girl who accused her stepfather of sexual abuse without a warrant); Wallis, 202 F.3d at 1138 (holding that there was a genuine factual dispute over the “imminency” of the danger to a child based on allegations that the child’s father intended to ritually sacrifice him to Satan the following week). In fact, very few cases from any circuit have addressed what constitutes exigent circumstances in a case that remotely resembles this one. Cf. Kia P. v. McIntyre, 235 F.3d 749, 761-63 (2d Cir. 2000) (holding that a hospital’s retention of a newborn who tested positive for methadone at birth was reasonable under the Fourth Amendment). No matter how carefully a reasonable social worker had read our case law, she could not have known that seizing B.W. would violate federal constitutional law. Without that fair notice, the social workers in this case are entitled to qualified immunity.
