DC: Because the circuit hasn’t ruled on the standard for seizure of a child from the home, officials get qualified immunity

The circuits are split on whether a Fourth Amendment seizure of children from the home requires reasonable suspicion or probable cause. Moreover, what is an exigency is not consistent among the circuits. The point is that this circuit has not ruled, and that’s qualified immunity for the officers of the agency. Doe v. District of Columbia, 2015 U.S. App. LEXIS 14014 (D.C.Cir. August 11, 2015):

In some circuits, reasonable suspicion of past abuse can justify warrantless seizure of a child. This is a very low standard, and could allow for the removal of a child without court order based on a single suspected incident. See Hatch v. Dep’t for Children, Youth and Their Families, 274 F.3d 12, 21 (1st Cir. 2001); see also Berman v. Young, 291 F.3d 976, 983-84 (7th Cir. 2002); Croft v. Westmoreland Cnty. Children & Youth Servs., 103 F.3d 1123, 1126 (3d Cir. 1997); White by White v. Chambliss, 112 F.3d 731, 736 (4th Cir. 1997); Manzano v. S.D. Dep’t of Social Servs., 60 F.3d 505, 511 (8th Cir. 1995). In other circuits, there must be reasonable suspicion of imminent abuse. These courts consider several factors, including whether abuse was ongoing and whether there was time to obtain a warrant. See Kovacic v. Cuyahoga Cnty. Dep’t of Children & Family Servs., 724 F.3d 687, 695 (6th Cir. 2013); Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 429 (5th Cir. 2008); Arredondo v. Locklear, 462 F.3d 1292, 1298 (10th Cir. 2006) (citing Gomes v. Wood, 451 F.3d 1122, 1129 (10th Cir. 2006)); Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1240 (10th Cir. 2003); Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 1999). In the Eleventh Circuit, the “reasonable suspicion” standard gives way to the higher “probable cause” standard, with consideration of many of the same factors. Doe v. Kearney, 329 F.3d at 1295. And in the Second Circuit, “it is unconstitutional for state officials to effect a child’s removal on an ’emergency’ basis where there is reasonable time safely to obtain judicial authorization consistent with the child’s safety.” Tenenbaum, 193 F.3d at 596.

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The parties do not dispute that in an exigency the state may, consistent with the Constitution, seize children without a court order or a pre-deprivation hearing. But the precise contours of when an exigency exists to justify removal without a warrant or pre-deprivation hearing are not settled, as the other Circuits’ varied formulations demonstrate. Given the uncertainty regarding when exactly an exigency exists and the lack of our own controlling precedent, the law in question was not “clearly established” at the time of the seizure. The individual defendants are thus entitled to qualified immunity as the district court held. See Pearson, 555 U.S. at 244-45; Johnson, 734 F.3d at 1201-02.