Court Cases
STATE ex rel JUVENILE DEPARTMENT
OF LANE COUNTY,
Appellant,
v.
MICHELLE PARSHALL,
JOHN CARTER,
and URIAH NI'EM CARTER,
Respondents.
( what not to do…Below)
MILLER V SANTA BARBERA. Miller attempts to avoid the absolute prosecutorial immunity of the district attorney's office and the quasi-prosecutorial immunity of the Child Protective Services Division (CPS) and its employees by focusing on the adequacy of the investigation they conducted. With respect to the district attorney's office, however, Miller points to no specific conduct at all. There is no evidence that the district attorney's office ever conducted any investigation other than the evidentiary evaluation inherent in deciding whether to initiate a prosecution, or that it stepped outside of the prosecutorial role covered by absolute immunity under Imbler v. Pachtman, 424 U.S. 409, 427 (1976); see id. at 430-31. With respect to the CPS, its employees and Laura Slaughter, Miller does not challenge any quasi-prosecutorial or testimonial conduct that would be absolutely immune. See Meyers v. Contra Costa County Dep't of Social Servs., 812 F.2d 1154, 1156-57 (9th Cir.) (quasi-prosecutorial immunity), cert. denied, 108 S.Ct. 98 (1987); Briscoe v. LaHue, 460 U.S. 325, 345-46 (1983) (testimonial immunity). To the extent that any investigatory conduct falls outside of these protected spheres, it is entitled to qualified immunity. While Miller challenges appellees' techniques and the completeness of their investigation, we find no evidence suggesting that their conduct either violated "clearly established statutory or constitutional rights of which a reasonable person would have known" or was otherwise inconsistent with a standard of "objective legal reasonableness." Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982); see Anderson v. Creighton, 107 S.Ct. 3034, 3038-39 (1987).
DEANNAFOGARTY-HARDWICK,Plaintiff and Respondent, v. COUNTY OF ORANGE
We find the contention, which amounts to a restatement of the collateral
estoppel argument, unpersuasive. As we have already explained, the outcome of the dependency case, as well as the later award of permanent custody to Fogarty-Hardwick‟s former husband in 2001, were both profoundly influenced by the dependency court‟s initial decision to remove the children from Fogarty-Hardwick‟s custody; and that order was, in turn, caused by the misconduct of the social workers. There is no compelling reason to conclude that, in the absence of the misconduct, those subsequent custody orders would have been the same.5
The doctrine of estoppel by record precludes a party from denying the issues adjudicated by a court of competent jurisdiction (Collateral Estoppel) or any matter spelled out in a judicial record (judicial estoppel).
Collateral estoppel, sometimes known as estoppel by judgment, prevents the re-argument of a factual or legal issue that has already been determined by a valid judgment in a prior case involving the same parties. For example, suppose Ms. Jones, who owns a business next to Mr. Smith's, sues Mr. Smith for damage to her property caused by the digging of a hole. Mr. Smith defends by arguing that the hole is on his land. After considering all the evidence, the court determines that Mr. Smith owns the land. Later that year, after a late night at work, Mr. Smith cuts across the back lot, falls into the hole, and is injured. He then sues Ms. Jones for negligent maintenance of her property. In this situation, the court will apply collateral estoppel, preventing Mr. Smith from re-litigating an issue that was already decided between the same parties in the prior proceeding.
The related doctrine of judicial estoppel binds a party to his or her judicial declarations, such as allegations contained in a lawsuit complaint or testimony given under oath at a previous trial. Judicial estoppel protects courts from litigants' using opposing theories in the attempt to prevail twice. For instance, a tenant trying to avoid liability to a property owner may not, in the tenant's Bankruptcy case, successfully represent to a court that the property agreement is a lease and then later, when the property owner sues for nonpayment of rent, declare that the agreement is a mortgage rather than a lease (Port Authority v. Harstad, 531 N.W.2d 496 [Minn. Ct. App. 1995]).
Estoppel by record is frequently confused with the related doctrine of Res Judicata (a matter adjudged), which bars re-litigation of the same Cause of Action between the same parties once there has been a judgment. For example, if Mr. Chen sues Ms. Lopez for breach of contract and the court returns a decision, Ms. Lopez cannot later sue Mr. Chen for breach of the same contract. Ms. Lopez has the right to appeal the first decision, but she cannot bring a new lawsuit that raises the same claim.
One of the essential rules of appellate law is that '[a] judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. [Citations.]'(In re Marriage of Arceneaux(1990) 51 Cal.3d 1130, 1133.) It is the duty of the appellant to present an adequate record to the court from which prejudicial error is shown.(Null v. City of Los Angeles(1988) 206 Cal.App.3d 1528, 1533.)"(Kurinij v. Hanna& Morton(1997) 55 Cal.App.4th 853, 865.)Here, we are required to begin with the presumption the court ruled correctly when it denied the County leave to add the absolute immunity defense to its answer prior to trial. The County having failed to even claim, let alone establish, that ruling amounted to error, we must affirm the trial court's determination the defense of absolute mmunity was waived. IV The County also contends liability was precluded by the defense of qualified immunity, but its argument seems to be predicated on the idea that[*39]
Fogarty-Hardwick had to satisfy a distinct burden of proving causation in connection with the defense -- apparently a different element of causation than the one she satisfied in connection with her primafacie case -- and that she purportedly failed to do so. Specifically, the County relies on Ramirez v. County of Los Angeles(2005) 397 F.Supp.2d 1208, which it contends stands for the proposition that in order to "defeat qualified immunity" in a case where governmental actors falsified information to the court and deceived the court, . . . a plaintiff would have to show "that but for the dishonesty, the challenged action would not have occurred." But Ramirez says no such thing. To the contrary, Ramirez addresses a police officer's motion for summary judgment based upon the affirmative defense, and thus necessarily involves only what the officer must prove in order to justify such relief.Significantly, what Ramirez ultimately concludes is that a police officer who knowingly falsified evidence in support of a search warrant application, in circumstances where he should have known the evidence was otherwise insufficient to support the warrant, was not entitled to rely upon qualified immunity[*40]as a defense. In doing so, the court quoted the rule set forth in Branch v. Tunnell (1991) 937 F.2d. 1382, 1387: "'If an officer submitted an affidavit that contained statements he knew to be false or would have known were false had he not recklessly disregarded the truth and no accurate information sufficient to constitute probable cause attended the false statements, ... he cannot be said to have acted in an objectively reasonable manner,' and the shield of qualified immunity is lost."Thus, the
Ramirez decision simply reflects an understanding that the essence of the federal defense of qualified immunity is the reasonableness, or "good faith," of the defendant's conduct. The defense is applicable in situations where defendants establish that their actions, even if harmful to plaintiff's constitutional rights, were nonetheless carried out in good faith. As explained by the Supreme Court, "[q]ualified or 'good faith' immunity is an affirmative defense that must be pleaded by a defendant official.Gomez v. Toledo(1980) 446 U.S. 635 [fn. omitted]. Decisions of this Court have established that the 'good faith' defense has both an 'objective' and a 'subjective' aspect. The objective element [*41]involves a presumptive knowledge of and respect for 'basic, unquestioned constitutional rights.'Wood v.Strickland (1975) 420 U.S. 308, 322. The subjective component refers to 'permissible intentions.' Ibid. Characteristically the Court has defined these elements by id mmunity would not be entifying the circumstances in which qualified Is available. Referring both to the objective and subjective elements, we have held that qualified immunity would be defeated if an official' knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury . . . .' Ibid.(Emphasis added.)" (Harlow v. Fitzgerald (1982) 457 U.S. 800, 815, fn. omitted.)In this case, the jury specifically concluded that Vreeken and Dwojak lied, falsified evidence, and suppressed exculpatory evidence -- all of which was material to the dependency court's decision to depriveFogarty-Hardwick of custody -- and that they did so with malice. These findings are clearly sufficient to satisfy the Supreme Court'sdefinition[*42]of Circumstances in which "qualified immunity would not be available."There was no error in the rejection of qualified immunity in this case
Fogarty-Hardwick
finally regained shared custody of her daughters in June of 2006. She had filed this lawsuit inFebruary of 2001, alleging tort causes of action based upon state law, as well as causes of action under federal law,which sought damages based upon alleged violations of [*12]her constitutional right to familial association. The basis of these causes of action was
Fogarty-Hardwick's
allegation that the County's social workers had relied upon"intentional[ly] false statements," fabricated evidence, and "perjury" as part of a successful effort to convince the juvenile court to remove her daughters from her custody and place them in foster care.
Fogarty-Hardwick also alleged the social workers deliberately withheld information from the court concerning the emotional detriment suffered by her daughters while in foster placement, and thereby convinced the court to extend the children's placement.
Fogarty-Hardwick
also asserted the County had a policy of "deliberate indifference" to the rights of parents in her situation, and as a result of that policy, the County failed to supervise, control or direct the conduct of its social workers. The County challenged several iterations of Fogarty-Hardwick's
complaint, and relied upon collateral estoppel and absolute immunity under state law as the bases for its demurrer to her second amended complaint. Although the trial court sustained that demurrer in its entirety without leave to amend, this court determined the ruling[*13]was correct only as to the state law tort claims. Rather than relying upon the arguments made by the trial court in sustaining the demurrer, we concluded Fogarty-Hardwick had failed to state a cause of action under state law. However, we also concluded the causes of action based upon the alleged violation of Fogarty-Hardwick's federal civil rights had been properly alleged, and reversed the judgment with directions to overrule the demurrer with respect to those claims.
( Fogarty-Hardwick v. County of Orange
(Mar. 29, 2004, G030302) [nonpub. opn.].
demurrer
n. (dee-muhr-ur) a written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit. A hearing before a judge (on the law and motion calendar) will then be held to determine the validity of the demurrer. Some causes of action may be defeated by a demurrer while others may survive. Some demurrers contend that the complaint is unclear or omits an essential element of fact. If the judge finds these errors, he/she will usually sustain the demurrer (state it is valid), but "with leave to amend" in order to allow changes to make the original complaint good. An amendment to the complaint cannot always overcome a demurrer, as in a case filed after the time allowed by law to bring a suit. If after amendment the complaint is still not legally good, a demurrer will be granted sustained. In rare occasions, a demurrer can be used to attack an answer to a complaint. Some states have substituted a motion to dismiss for failure to state a cause of action for the demurrer.
In this case, by contrast, Fogarty- Hardwick did not initiate successive proceedings, each seeking relief against the same party, based upon the same prior acts of misconduct and the same injury. Stated simply, her injuries
arose out of the proceeding in which the perjury occurred, i.e., the corrupted dependency proceeding, and she had no ability to assert any claim based upon those injuries within that proceeding. Collateral estoppel will not be applied unless “the party against whom the earlier decision is asserted had a „full and fair‟ opportunity to litigate the issue.” (Rodgers v. Sargent Controls & Aerospace
(2006) 136 Cal.App.4th 82, 90.) And it will not be applied “if injustice would result or if the public interest requires that relitigation not be foreclosed.” (Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891,
902, disapproved on other grounds in Kowis v. Howard(1992) 3 Cal.4th 888.
“ ‘Traditionally, collateral estoppel has been found to bar relitigation of an issue decided at a previous proceeding “if (1) the issue necessarily decided at the previous [proceeding] is identical to the one which is sought to be relitigated; (2) the previous [proceeding] resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior [proceeding].” ․’ [Citations.]” (People v. Carter (2005) 36 Cal.4th 1215, 1240, 32 Cal.Rptr.3d 838, 117 P.3d 544; see also Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1015, 48 Cal.Rptr.2d 174.) “In addition to these factors, ․ the courts consider whether the party against whom the earlier decision is asserted had a ‘full and fair’ opportunity to litigate the issue.” (Roos v. Red (2005) 130 Cal.App.4th 870, 880, 30 Cal.Rptr.3d 446.) Collateral estoppel will not be applied “if injustice would result or if the public interest requires that relitigation not be foreclosed.” (Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 902, 160 Cal.Rptr. 124, 603 P.2d 41.) To determine whether to preclude relitigation on collateral estoppel grounds, judicial notice may be taken of a prior judgment and other court records.4 (Kirkpatrick v. City of Oceanside (1991) 232 Cal.App.3d 267, 281, 283 Cal.Rptr. 191; Carroll v. Puritan Leasing Co. (1978) 77 Cal.App.3d 481, 486, 143 Cal.Rptr. 772.)
And of course, that principle is not applicable here, for the obvious reason that a dependency case is not a criminal action. Moreover, the numerous avenues to challenge a criminal conviction listed in Heck are not necessarily available in a dependency case –as far as we are aware, there is no procedure for “expungement” of a dependency dispositional order–and even though a
writ of habeas corpus might be theoretically available (at least during the time the child actually remains in detention),we have already explained why requiring a parent to resort to such a remedy, merely to preserve a subsequent claim for damages, is inconsistent with the goals of the dependency proceeding. We therefore decline to extend this rule applicable to criminal convictions and sentences to the challenged ruling in the underlying dependency case.
Meyers v. Contra Costa County Dep't of Social Servs.
We hold, first, that Haaland was entitled to absolute prosecutorial immunity for all of his actions except those which preceded the institution of judicial proceedings and as to those actions, qualified immunity applies
All of Haaland's challenged actions except for the January 1982 testimony took place within a short period of time--between October 9, 1981, and November 17, 1981. All revolve around Haaland's initiation of dependency proceedings against David. They include his instructions to David before proceedings were instituted to stay away from the children until custody had been resolved, and his subsequent testimony against David in the dependency proceedings. The district court held that Haaland was entitled to absolute immunity for these actions. We agree as to all except actions which were taken before the institution of judicial proceedings
It is beyond question that Haaland is entitled to absolute immunity for the testimony he gave during the dependency proceedings and the custody hearing because witnesses, including government witnesses, are immune from liability for their testimony. Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983).
Although child services workers do not initiate criminal proceedings, their responsibility for bringing dependency proceedings, and their responsibility to exercise independent judgment in determining when to bring such proceedings, is not very different from the responsibility of a criminal prosecutor. The social worker must make a quick decision based on perhaps incomplete information as to whether to commence investigations and initiate proceedings against parents who may have abused their children. The social worker's independence, like that of a prosecutor, would be compromised were the social worker constantly in fear that a mistake could result in a time-consuming and financially devastating civil suit. We therefore hold that social workers are entitled to absolute immunity in performing quasi-prosecutorial functions connected with the initiation and pursuit of child dependency proceedings. Such a holding is consistent with the holdings of other courts. See, e.g., Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir.1984); Pepper v. Alexander, 599 F.Supp. 523, 526-27 (D.N.M.1984); Whelehan v. County of Monroe, 558 F.Supp. 1093, 1098-99 (W.D.N.Y.1983).
Heck v. Humphrey-(1994) 512 U.S. 477, in which the Supreme Court held “in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a [42 U.S.C. section 1983] plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court‟s issuance of a writ of habeas corpus, 28 U.S.C. [section] 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under [42 U.S.C. section 1983].” (Id. at pp. 486-487.)
Monell u. Department of Social Services- the Court further opined that “it is when execution
of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under Q 1983.”2
Miller v. Gammie(9th Cir. 2002) 335 F. 3d. 889, holds that social workers have absolute immunity only for the quasi-prosecutorial decision to institute dependency proceedings. Beyond that, the burden is on a social[*14]worker defendant to show that other functions he or she performed are similar to conduct accorded absolute prosecutorial immunity at common law."(Fogarty-Hardwick v.County of Orange, supra,G030302, p. 14.) We then noted that the claims asserted by Fogarty-Hardwick included conduct occurring after the initiation of the dependency case, and thus that "the demurrer to the federal claims cannot be sustained on this ground." (Id.at p. 15.) We specifically left it to the trial court, on remand, "to sort out which of the individual defendants may be protected by absolute (or qualified) immunity, should that issue be raised by the Countyupon a proper motion."(Ibid.)In its answer to the second amended complaint, the County pleaded the affirmative defense of qualified immunity, but did not plead the defense of absolute immunity
quasi-prosecutorial- the action taken and discretion exercised by public administrative agencies or bodies that are obliged to investigate or ascertain facts and draw conclusions from them as the foundation for official actions. an agency engages in adjudication when it follows a process for the formulation of an order. With the exception of rule making, any decision by an agency that has a legal effect is a quasi-judicial action.
decision to institute dependency proceedings -Hearsay is admissible, including the allegations of a verified petition, statements of those who will be present at an adjudication, and reports of experts. The petition must be verified-…. A verification is a statement in the petition that reads:"The undersigned hereby verifies on her oath that the above and foregoing petition is true and correct to the best of her knowledge and belief."
Due Process denied if misrepresentation allowed “JMD”
Has the petitioner met the burden of proof? If no, order the child returned to the parent and dismiss the petition. If yes, adjudicate the child dependent and award legal custody of the child to the petitioner.
Shelley u. Kr~emer,”~ all six Justices considering the matter agreed that in a case to enforce restrictive covenants, which deprived citizens of their Fourteenth Amendment rights, the state’s supreme court rulings approving the covenants constituted “state action.””~
O’Connor u. Donald~on,~~~ all nine Justices agreed that when a state committed a “nondangerous” person to a state mental hospital, damages could be recovered against the state because of “state action.” Eight Justices agreed that “under color of law” had been established in parratt Vs taylor
Parratt u. Taylor, when a state prisoner’s personal property was lost due to the negligence of prison guards, but the state prisoner could not recover the value of his lost property because negligence does not establish lack of due process
Brandon u. HoZ~,~~~ which made clear the distinction between “official capacity” and “personal liability” actions, the Supreme Court held that it was error to award fees against the governmental entity that employed the “state actor” because this was a “personal liability” and not an ‘‘official capacity” action. When one seeks recovery against a sovereign, there is a greater burden than when one seeks recovery merely against an official of the sovereign. Writing the unanimous opinion, Justice Thurgood Marshall stated: In Kentucky u. [Tlo establish personal liability in a 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right. More is required in an official-capacity action, however, for a governmental entity is liable under 1983 only when the entity itself is a “moving force” behind the deprivation.356
In Hafer u. Me10,~~~the Supreme Court permitted discharged employees of the Commonwealth of
Pennsylvania to bring a 1983 action for damages against the State’s Auditor General in her personal capacity. Justice O’Connor, writing the Court’s unanimous opinion and expanding on Graham, made it clear that in an “official capacity” case the real party in interest is the governmental unit, even if it is not made a party defendant. Even though a suit against a state for official acts performed by state officials is an action against the state itself, the Court held that damages may be recovered in a 1983 action against those officials who deprived others of their federal rights simply because those officials performed their duties as authorized by the governmental entity that employed them.
The rationale for that proposition was that when it was said in:
Will u. Department of State that those officials were not “persons” within 1983, what was intended was that such officials were not covered by 1983 in an “official capacity” action; they “fit
comfortably,” however, within the statutory term “person” when named in a “personal liability” action.363 The second reason for the Court’s decision is that “[state executive officials are not entitled to absolute immunity for their official action~.”~~~ Hence, it appears that when there is no deviation from the official dictates of the authority, both the state official and the state may be sued under 1983.36
. Sub-type II-A-Misuse or abuse of authority, i.e., the “pretense” or “pretext” meaning of %nder color of‘ The cases that fall into sub-type 11-A are those involving an “abuse” or “misuse” of authority possessed by an official
United States u. Classic and Screws u. United States - indicate that “under color of” contained in the statutes providing a remedy for deprivation of rights includes the intentional excessiveness to warrant conviction. The first split of opinion about the breadth of the term appeared in screws.37o Justice William 0. Douglas, in his plurality opinion, made it clear that the term was broad enough to include abuse of authority by officials If officials exceeded their authority
Justice William 0. Douglas announced the judgment of the Court reversing defendants’ conviction and remanding the case for a new trail He wrote a plurality opinion in which he categorized this type of behavior as acting under “pretense” of law. He said: It is clear that under “color” of law means under “pretense” of law. Thus acts of officers in the ambit of their personal pursuits are plainly excluded. Acts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it. If, as suggested, the statute was designed to embrace only action which the State in fact authorized, the words “under color of any law” were hardly apt words to express the idea.
West u. AtI~irzs~~~ an inmate at a North Carolina state prison- hospital sued a private physician who was under contract with the state to provide part-time orthopedic services to prisoners because
they were prohibited from using physicians of their choice. The suit was brought in federal district court, presumably for damages pursuant to 1983, alleging that plaintiffs Eighth Amendment
rights to be free from cruel and unusual treatment had been violated. The case was brought under the Eighth Amendment, but because the Fourteenth Amendment was another ground for relief plaintiff had to prove that the “state actor” (doctor) acted “under color of state The Court was unanimous in concluding that such requirement was met
Monell v. New York City Dep’t of Social Servs., 436 US. 658,690 (1978). See infra note . The Court did not overrule
its earlier pronouncement, to the effect that a municipality is not a person that can be liable under the statute, but that: [A]
local government may not be sued under 1983 for an injury inflicted solely by its employees or agents. Instead, it is
when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under 1983
Board of County Comm’rs v. Brown, 520 US. 397, 404 (1997),- in which it as stated that: [Ilt is not enough for a 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the “moving force” behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights. Punitive damages are not recoverable against a municipality. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271(1981). Six members of the Court in Monroe had been replaced, and this time the Court voted seven to two that municipalities were “persons” under 1983. Monell, 436 U.S. at 690. Justice Brennan, switching his position from 1961, wrote the majority opinion. Justice Brennan determined that the mistake of the 1961 Court in Monroe was its analysis of the legislative history of the 1871 Act. Id. at 669. According to the Court in Monroe, Congress in 1871 thought that it did not have the power to impose any obligation upon county and town organizations. Id. at 674-75. Upon an exhaustive analysis of the legislative history, the Court in Monell held that “Congress did intend municipalities and other local government units to be included among those persons to whom 1983 applies.” Id. at 690. The Court again made it clear, however, that municipal liability could not be based on respondeat superior. Id. at 694
State v. Cazares-Mendez, 233 Or App 310, 227 P3d 172 (2010), Sup Ct review allowed- Where state law completely precludes reliable, ma te ri ally exculpatory evidence, exclusion of that evidence violates Due Process Clauses of United States Constitu tion
." 11 Wright & Miller, Federal Practice & Procedure, Civil §2861, at 194 (1973) (emphasis added). The savings clause contained in Rule 60(b) provides that a party may file an independent action for relief from a judgment, order or proceeding for "fraud upon the court." In order to prevail on this ground, the burden is on the moving party to show by clear and convincing evidence that "an unconscionable plan or scheme... designed to improperly influence the court in its decision"
. Occhiuto v. Occhiuto, 97 Nev. 143, 146 n.2, 625 P.2d 568 (1981), quoting England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960). -Thus, if the perjury is discovered within six months of the family courts entry of the divorce decree, the aggrieved party may file an appropriate motion with the family court seeking relief from the judgment pursuant to NRCP 60(b)(2). If the perjury is discovered after such six-month period, however, the aggrieved party must file an independent action seeking to be relieved of the judgment that was obtained as a result of his or her former spouses use of perjured testimony.
Justice Frankfurter has described due process as a legal concept in these terms: "Due
process is perhaps the most majestic concept in our whole constitutional system.
While it contains the garnered wis dom of the past in assuring fundamental justice,
it is also a living principle not confined to past instances." Not surprisingly, then,
the interpretation and application of due process have become pro foundly practical
matters that, because of the inherent flexibility of a process of adaptation and adjustment, negate any concept of fixed procedures rigidly applicable to all situations. From this it is seen that procedural due process is not cast in a rigid mold
and has evolved through the centuries to embody "those ... usages and modes of
proceeding" existing in Anglo-American law that have come to stand for
an abiding sense of fundamental fairness in the relations between government
and citizen. Thus, due process of law, again in the words of Justice Frankfurter,
is a summarized constitutional guarantee of respect for those per sonal immunities which, as
Mr. Justice Cardozo twice wrote for the Court, are [principles of justice) "so rooted in the
traditions and conscience of our people as to be ranked as fundamental,
Beltran v. Santa Clara County,514 F.3d 906 (9th Cir.2008) (en banc), we held:-Parties to section 1983 suits are generally entitled only to immunities that existed at common law. We have therefore granted state actors absolute immunity only for those functions that were critical to the judicial process itself, such as initiating a prosecution. It follows that social workers have absolute immunity when they make discretionary, quasiprosecutorial decisions to institute court dependency proceedings to take custody away from parents. But they are not entitled to absolute immunity from claims that they fabricated evidence during an investigation or made false statements in a dependency petition affidavit that they signed under penalty of perjury, because such actions aren't similar to discretionary decisions about whether to prosecute.
Beltran decision in Mabe v. San Bernardino County Department of Public Social Services,237 F.3d 1101 (9th Cir.2001), -for the proposition that "social workers enjoy absolute, quasi-judicial immunity when making post-adjudication custody decisions pursuant to a valid court order." Id. at 1109 (internal quotation omitted). Mabe provides no support for Camreta's position in this case for two reasons. First, the quoted passage refers specifically to post-adjudication conduct, whereas the Greenes allege that Camreta misrepresented the fruits of his investigation before the Juvenile Court's adjudication of the protective custody order. Second, Mabe itself distinguished the presentation of false evidence from other, discretionary decisions made by caseworkers during a child abuse investigation: Mabe held that "social workers are entitled to absolute immunity for the initiation and pursuit of dependency proceedings," as well as any "post-adjudication custody decisions," but noted that plaintiff's allegations of false evidence in that case failed only "because [plaintiff] failed to offer any evidence of false or perjured testimony" by the caseworker. Id.
Roe v. Texas Department of Protective and Regulatory Services In June 1999
Strickland ultimately fails to identify a “special need” separate from the purposes of general law enforcement. Identifying the goal of protecting a child’s welfare and removing him from an
abusive home is easy; disentangling that goal from general law enforcement purposes is difficult. . . . Texas law describes social workers’ investigations as a tool both for gathering evidence for criminal convictions and for protecting the welfare of the child. Ferguson teaches that we must apply the traditional Fourth Amendment analysis where a child protective services
search is so intimately intertwined with law enforcement.
Whitaker v. Garcetti,486 F.3d 572, 581 (9th Cir.2007) (citing Butler v. Elle,281 F.3d 1014, 1024 (9th Cir.2002) (per curiam)). Camreta is not entitled to qualified immunity as to the false representation claim, as the Greenes' right to be free from judicial deception in securing the removal order was clearly established at the time of Camreta's alleged misrepresentations to the court. We have repeatedly held that "[a] seizure conducted pursuant to a warrant obtained by judicial deception violates the Fourth Amendment."
KRL v. Moore,384 F.3d 1105, 1117 (9th Cir.2004-"To support a § 1983 claim of judicial deception, a plaintiff must show that the defendant deliberately or recklessly made false statements or omissions that were material to the finding of probable cause."),
Citing Galbraith v. County of Santa Clara,307 F.3d 1119, 1126 (9th Cir.2002). Whether a false statement was "material" to the finding of probable cause is a question of law for the reviewing court. KRL, 384 F.3d at 1117; Butler, 281 F.3d at 1024.
Devereaux v. Perez,218 F.3d 1045 (9th Cir.2000), for example, we held in the context of a child abuse proceeding that "the constitutional right to be free from the knowing presentation of false or perjured evidence" is clearly established. Id. at 1055-56. Even earlier, we stated emphatically that "if an officer submitted an affidavit that contained statements he knew to be false or would right against judicial deception" were clearly established by 1996).
See also Snell v. Tunnell,920 F.2d 673 (10th Cir.1990) (holding social workers who deliberately fabricated evidence of child sexual abuse to secure a removal order not entitled to qualified immunity).
In short, applying the traditional Fourth Amendment requirements, the decision to seize and interrogate S.G. in the absence of a warrant, a court order, exigent circumstances,17 or parental consent18 was unconstitutional. We follow the lead of our sister circuits and hold that in the context of the seizure of a child pursuant to a child abuse investigation, a court order permitting the seizure of the child is the equivalent of a warrant.19See, e.g., Tenenbaum, 193 F.3d at 602; Doe v. Heck, 327 F.3d at 517; Gates v. Texas Dept. of Protective and Regulatory Servs.,537 F.3d 404, 429 (5th Cir.2008). We therefore reverse the district court to the extent that it held that Alford and Camreta had not violated S.G.'s right to be free from an unconstitutional seizure.
Pearson, 129 S.Ct. at 815 (quoting Harlow v. Fitzgerald,457 U.S. 800-Even where, as here, government officials have violated citizens' constitutional rights, "[t]he doctrine of qualified immunity protects government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
???Jackson v. City of Bremerton,268 F.3d 646, 651 (9th Cir. 2001). If a government official "could ... have reasonably but mistakenly believed that his or her conduct did not violate a clearly established constitutional right," he is entitled to qualified immunity.??????
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727-38, 73 L.Ed.2d 396 (1982).
Qualified or "good faith" immunity is an affirmative defense that must be pleaded by a defendant official.
Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). Decisions of this Court have established that the "good faith" defense has both an "objective" and a "subjective" aspect. The objective element involves a presumptive knowledge of and respect for "basic, unquestioned constitutional rightsHeld: In an action brought under 42 U.S.C. 1983 against a public official whose position might entitle him to qualified immunity, the plaintiff is not required to allege that the defendant acted in bad faith in order to state a claim for relief, but the burden is on the defendant to plead good faith as an affirmative defense. By § 1983's plain terms, the plaintiff is required to make only two allegations in order to state a cause of action under the statute: (1) that some person deprived him of a federal right, and (2) that such person acted under color of state or territorial law. This allocation of the burden of pleading is supported by the nature of the qualified-immunity defense, since whether such immunity has been established depends on facts peculiarly within the defendant's knowledge and control, the applicable test focusing not only on whether he has an objectively reasonable basis for his belief that his conduct was lawful but also on whether he has a subjective belief. Pp. 638-641.602 F.2d 1018 (1st Cir.), reversed and remanded. Our conclusion as to the allocation of the burden of pleading is supported by the nature of the qualified immunity defense. As our decisions make clear, whether such immunity has been established depends on facts peculiarly within the knowledge and control of the defendant. Thus we have stated that "it is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct." Scheuer v. Rhodes, supra, 416 U.S., at 247-248, 94 S.Ct., at 1692. The applicable test focuses not only on whether the official has an objectively reasonable basis for that belief, but also on whether "the official himself is acting sincerely and with a belief that he is doing right," Wood v. Strickland, supra, 420 U.S., at 321, 95 S.Ct., at 1000. There may be no way for a plaintiff to know in advance whether the official has such a belief or, indeed, whether he will even claim that he does. The existence of a subjective belief will frequently turn on factors which a plaintiff cannot reasonably be expected to know. For example, the official's belief may be based on state or local law, advice of counsel, administrative practice, or some other factor of which the official alone is aware. To impose the pleading burden on the plaintiff would ignore this elementary fact and be contrary to the established practice in analogous areas of the law. 8
The decision of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975)- The subjective component refers to "permissible intentions." Ibid. Characteristically the Court has defined these elements by identifying the circumstances in which qualified immunity would not be available. Referring both to the objective and subjective elements, we have held that qualified immunity would be defeated if an official "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action to cause a deprivation of constitutional rights or other injury. . . ." Ibid. (emphasis added).
Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967).34- By defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct. The public interest in deterrence of unlawful conduct and in compensation of victims remains protected by a test that focuses on the objective legal reasonableness of an official's acts. Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action.33 But where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken "with independence and without fear of consequences."
White v. Pierce County, 797 F.2d 812, 815 (9th Cir. 1986)
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727-38, 73 L.Ed.2d 396 (1982).- Government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known
Saucier v. Katz,533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)- The Court's decision severely limited Saucier v. Katz. The Court modified Saucier's two-step inquiry in two ways. First, it eliminated the requirement that qualified immunity issues be considered in order. Thus, courts after Pearson can first consider whether federal law forbidding an action was clearly established at the time of that action, instead of first analyzing the sometimes more difficult question of whether the law actually forbid the action, regardless of its clarity. Second, it made Saucier's two-step process advisory. The Court said: "we conclude that, while the sequence set forth (in Saucier v. Katz) is often appropriate, it should no longer be regarded as mandatory."[5]
Pearson v. Callahan, 129 S.Ct. 808, 818 (2009)). If the Constitution was not violated, that is the end of the inquiry. If there was a violation, however, we proceed to the question of qualified immunity. Officers are protected by qualified immunity, which is “an immunity from suit rather than a mere defense to liability,” Pearson129 S.Ct. at 815. When an officer asserts immunity, the court dismisses the case unless the officer knew that his conduct was “clearly unlawful,” that is, unless the officer understood or should have understood that his actions violated a clearly established right. Saucier, 533U.S. at 202. Although we have flexibility in deciding which part of the analysis to address first, we think it important in this case to determine first whether a constitutional violation occurred. See Pearson, 129 S.Ct. at 818 (holding that “while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory”).
Wallis v. Spencer,202 F.3d 1126, 1130 (9th Cir.2000
Sevigny v. Dicksey, 846 F.2d 953, 957 (4th Cir. 1988) (holding that child abuse investigator has duty to investigate information that would have clarified matters prior to separating children from their parents)
BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) -(officer has duty to "make a thorough investigation and exercise reasonable judgment before invoking the awesome power of arrest and detention"). Whether a reasonable avenue of investigation exists, however, depends in part upon the time element and the nature of the allegations.
Rogers v. County of San Joaquin,487 F.3d 1288, 1291 (9th Cir.2007)
Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). "Parents and children have a well-elaborated constitutional right to live together without governmental interference.
Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir.2000). "The Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies.
Mabe v. San Bernardino County, Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir.2001). Officials violate this right if they remove a child from the home absent "information at the time of the seizure that establishes `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.
Doe v. Lebbos, 348 F.3d 820, 827 n. 9 (9th Cir. 2003). Officials, including social workers, who remove a child from its home without a warrant must 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. Mabe, 237 F.3d at 1108.
Ram v. Rubin, 118 F.3d 1306, 1311 (9th Cir.1997). Serious 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
. Mabe, 237 F.3d at 1108; Wallis, 202 F.3d at 1140.-However, an official's prior willingness to leave the children in their home militates against a finding of exigency, as does information that the abuse occurs only on certain dates or at certain times of day
Santosky v. Kramer, 455 U.S. 745, 753 (1982). -The first prong of the qualified immunity test focuses on whether the law governing Perry's removal of MD from the Mabe home was clearly established. The constitutional right of parents and children to live together without govern- mental interference is well established.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); Ram, 118 F.3d at 1310 (9th Cir. 1997)- (holding that in 1993"it was clear that a parent had a constitutionally protected right to the care and custody of his children and that he could not be summarily deprived of that custody without notice and a hearing except when the children were in imminent danger").
White v. Pierce County, 797 F.2d 812, 815 (9th Cir. 1986) (citing Payton v. New York, 445 U.S. 573, 588-90 (1980)). --The Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emer The second prong of the qualified immunity test focuses on whether a reasonable official could have believed her conduct was lawful. See id. Whether Perry could have believed that removing MD under the facts of this case was lawful depends on whether a reasonable social worker could have believed that exigent circumstances existed on August 21, 1995, sufficient to override the warrant requirement. See Two relevant cases involving the availability of qualified immunity based on claims of exigency for officials conducting child abuse investigations bracket the facts in this case.
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1205 (10th Cir. 2003)
Phelan v. Laramie County Cmty. Coll. Bd. of Trs.,235 F.3d 1243, 1246- The district court granted summary judgment in favor of the defendants on all remaining claims. We review de novo the district court's grant of summary judgment.
(10th Cir.2000), cert. denied, 532 U.S. 1020, 121 S.Ct. 1960, 149 L.Ed.2d 755 (2001). Accordingly, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When we apply this standard, we examine the record and any reasonable inferences drawn therefrom in the light most favorable to the non-moving party. 19 Solid Waste Dept. Mechs. v. City of Albuquerque,156 F.3d 1068, 1071 (10th Cir.1998).
Darryl H. v. Coler, 801 F.2d
893, 901 n.7 (7th Cir. 1986). See also, Wallis v.
Spencer, 202 F.3d 1126, 1137 n.8 (9th Cir. 2000)
See Weller v. Department of Soc. Serv.,
901 F.2d 387, 392 (4th Cir. 1990) ("Substantive
due process does not categorically bar the
government from altering parental custody
rights.").
Croft, 103F.3d at 1125. Thus, a balance must be reached
between the fundamental right to the family unit
and the state's interest in protecting children
from abuse, especially in cases where children
are removed from their homes. Miller v. City of
Philadelphia, 174 F.3d 368, 373 (3d Cir. 1999
See Lehr, 463 U.S. at 254-56, 103 S.Ct. at 2990- declaring liberty interests in preserving the family unit "are sufficiently vital to merit constitutional protection in appropriate cases") (emphasis added); accord Myers, 810 F.2d at 1462-63 (noting parental liberty interest in maintaining integrity of family unit is not a clearly established right where there is a "reasonable suspicion" abuse may have occurred).
Our focus here is whether the information available to the defendants at the time would have created an objectively reasonable suspicion of abuse justifying the degree of interference with the Crofts' rights as Chynna's parents.4 Absent such reasonable grounds, governmental intrusions of this type are arbitrary abuses of power. See Gottlieb v. County of Orange,84 F.3d 511, 517 (2d Cir.1996) (finding no due process violation for removing child where child welfare workers possess objectively reasonable basis for believing parental custody represents a threat to child's health or safety);
Thomason v. SCAN Volunteer Services, Inc.,85 F.3d 1365, 1371 (8th Cir.1996) (holding child care worker entitled to qualified immunity in § 1983 action where he or she removes child on reasonable suspicion of child abuse); cf. 42 Pa. Cons.Stat. § 6324 and 23 Pa. Cons.Stat. § 6315 (providing for removing child from home only where there are reasonable grounds to believe the child suffers from injury, or is in imminent danger of injury from her surroundings); Myers, 810 F.2d at 1462-63 (noting parental liberty interest in maintaining integrity of family unit is not a clearly established right where there is a "reasonable suspicion" that abuse may have occurred).
Dr. Croft confirmed that an incident bearing only the barest resemblance to the anonymous tip had happened. Far from corroborating the anonymous tip, the Crofts' statements raised serious questions about the veracity of the informant. An anonymous tip may justify investigation but will not provide reasonable grounds for removal of a family member absent independent, articulable criteria of reliability; and certainly not when all evidence is to the contrary. Cf. Alabama v. White,496 U.S. 325, 328, 110 S.Ct. 2412, 2415, 110 L.Ed.2d 301 (1990) (anonymous tip, absent sufficient indicia of reliability, will not support reasonable suspicion necessary to justify stop-and-frisk);
United States v. Roberson,90 F.3d 75, 78 (3d Cir.1996) (anonymous tip that only contains information readily observable at the time the tip is made does not supply reasonable suspicion to stop).
Danovsky, in her deposition testimony, pointed to what she called "red flags" — statements given during the interviews which raised questions in her mind Danovsky was entitled to view the statements of an alleged perpetrator skeptically. She was not, however, entitled to rely on the unknown credibility of an anonymous informant unless she could corroborate the information through other sources which would have reduced the chance that the informant was recklessly relating incorrect information or had purposely distorted information. See Illinois v. Gates,462 U.S. 213, 235-37, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983) (anonymous tip, without other indicia of reliability, does not establish probable about whether the tip was true — as further justification for forcing Henry Croft from his home. The red flags cited by Defendants are incapable of providing the necessary reasonable grounds. For example, at one point during the interview, Dr. Croft told Danovsky that he had applied vaginal creams to Chynna when she had a rash, which Danovsky interpreted to mean that he regularly gave his daughter vaginal exams. Likewise, Danovsky's reliance on supposed inconsistencies between the statements of Carol and Dr. Croft is without foundation. None of the cited inconsistencies is evidence of child sexual abuse, nor did any of the statements in any way confirm the allegations of the anonymous tip. Even considered together, minor inconsistencies which provide no affirmative evidence of sexual abuse cannot alone establish the objectively reasonable grounds necessary to remove a family member from the family unit.
GREENE V. CAMRETA, 06-35333 ( Oregon) Camreta is not entitled to qualified immunity as to the false representation claim, as the Greenes' right to be free from judicial deception in securing the removal order was clearly established at the time of Camreta's alleged misrepresentations to the court
Hafer v. Melo, (S.Ct. 1991) Social workers (and other government employees) may be sued for deprivation of civil rights under 42 U.S.C. § 1983 if they are named in their ‘official and individual capacity’
Wallis v. Spencer, (9th Cir. 1999)-State law cannot provide immunity from suit for Federal civil rights violations. State law providing immunity from suit for child abuse investigators has no application to suits under § 1983.
McCord v. Maggio, (5th Cir. 1991)- Immunity is defeated if the official took the complained of action with malicious intention to cause a deprivation of rights, or the official violated clearly established statutory or constitutional rights of which a reasonable person would have known.
Young v. Biggers, (5th Cir. 1991)- A defendant in a civil rights case is not entitled to any immunity if he or she gave false information either in support of an application for a search warrant or in presenting evidence to a prosecutor on which the prosecutor based his or her charge against the plaintiff
Snell v. Tunnel, (10 Cir. 1990) Social workers are not entitled to qualified immunity on claims they deceived judicial officers in obtaining a custody order or deliberately or recklessly incorporated known falsehoods into their reports, criminal complaints and applications. Use of information known to be false is not reasonable, and acts of deliberate falsity or reckless disregard of the truth are not entitled to qualified immunity. No qualified immunity is available for incorporating allegations into the report or application where official had no reasonable basis to assume the allegations were true at the time the document was prepared.
Whisman v. Rinehart, (8th Cir. 1997)-
Defendants were not entitled to prosecutorial immunity where complaint was based on failure to investigate, detaining minor child, and an inordinate delay in filing court proceedings, because such actions did not aid in the presentation of a case to the juvenile court.
, Doe v. Heck,- the Seventh Circuit expanded and refined this balancing test for analyzing familial relations cases.The case involved the Wisconsin Department of Health and Family Services’ (the “Department”) investigation of alleged corporeal punishment at a private school.After the Department conducted
prolonged interviews at the school with students thought to be involved in the alleged abuse, eight sets of parents brought suit against the Department and the workers w
ho conducted the investigation for violating their constitutional right to familial relations under the Fourteenth Amendment.The Doe court noted that Troxel failed to provide lower courts with the level of scrutiny to be applied in cases alleging violations of
this constitutional right; however, it concluded that “courts are to use some form of heightened scrutiny.”Echoing Brokaw, the court maintained that the right to familial relations is not absolute and is limited by the government’s compelling interest in protecting children. In Doe, the Seventh Circuit also refined its balancing test by adopting reasonableness factors that it had previously used to evaluate Fourth Amendment claims.When considering the competing interests involved in familial relations claims, Doe held that courts must consider: the nature of the privacy interest upon which the action taken by the State intrudes; the character of the intrusion that is complained of; the nature and immediacy of the governmental concern at issue; and the efficacy of the means employed by the government for meeting this concern.115These factors provide courts with an analytic framework in which to evaluate whether the governmental interference with an individual right is justified and whether this interference is “reasonably related in scope to the circumstances” to that original justification.116Nevertheless, Doe emphasized that the last two factors constituted a threshold that must be met before inquiring further.If the challenged governmental actions were not based on “some definite and articulable evidence giving rise to a reasonable suspicion that a child ha[d] been abused of [was] in imminent danger of abuse,” the government can have no interest in protecting children from their parents
In applying this test,Doe concluded that the custodial interviews without parental consent were a considerable intrusion upon the parents’ privacy, as the parents
Exhibited a subjective expectation of privacy by enrolling their child in a private school.Moreover, the court considered the subject of the interview, potential abuse by the parents, to exacerbate the character of the intrusion.Nevertheless, Doe ultimately held that the Department violated the parents’ familial rights because there was no evidence that gave rise to a reasonable suspicion that the parents had abused their children.Emphasizing the constitutional presumption that fit parents act in the best interest of their children, Doe concluded that the Department failed to presume
the fitness of the parents and treated corporeal punishment as per se abuse, which the Department’s own standards considered insufficient without further evidence
of physical injuries.Doe demonstrates the Seventh Circuit’s struggle to adopt a test that both protects parents’ liberty interest in controlling their children but also recognizes the limits of this right. Acknowledging that the Supreme Court has provided little guidance to carry out this task, Doe’s balancing test embodies the ambiguous status of this liberty
interest and provides courts in its circuit ample freedom to protect this right based on the facts before them. The application of this balancing test and the exercise of this
discretion is demonstrated in U.S. v. Hollingsworth.124This decision provides a predictive case study as to how future courts can and will treat familial rights claims
Mooney v. Holohan, 294 U.S. 103, 112-where the Court ruled on what nondisclosure by a prosecutor violates due process: "It is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a State to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation."
Pyle v. Kansas, 317 U.S. 213, 215 -216, we phrased the rule in broader term
Petitioner's papers are inexpertly drawn, but they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him. These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to release from his present custody. Mooney v. Holohan, 294 U.S. 103
The Third Circuit in the Baldi case construed that statement in Pyle v. Kansas to mean that the "suppression of evidence favorable" to the accused was itself sufficient to amount to a denial of due process. 195 F.2d, at 820. In Napue v. Illinois, 360 U.S. 264, 269 , we extended the test formulated in
Mooney v. Holohan when we said: "The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." And see Alcorta v. Texas, 355 U.S. 28 ; Wilde v. Wyoming, 362 U.S. 607 . Cf. Durley v. Mayo, 351 U.S. 277, 285 (dissenting opinion).
We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution
BRADY v. MARYLAND, 373 U.S. 83 (1963) 373 U.S. 8- ” However, even though the LA District Attorney’s Office knew of Fink’s reduced-sentence deals, the truth was not known to the Deputy District Attorney who personally prosecuted Goldstein’s case, and this information consequently was not disclosed to Goldstein or his attorney, as is required under Brady v. Maryland. .
HERVEY v. ESTES (Ninth Circuit Court)
The district court granted summary judgment in favor of defendants on all claims. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse in part, affirm in part, and remand for further proceedings.
We review de novo the district court's grant of summary judgment. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). We also review de novo the application of qualified immunity. White by White v. Pierce County, 797 F.2d 812, 815 (9th Cir.1986)
We reverse summary judgment in favor of Estes, and remand the case for trial. Estes is not entitled to qualified immunity in this case because her conduct was not objectively reasonable, indeed it was thoroughly unprofessional. At trial, Hervey will have to convince a jury that Estes deliberately or recklessly included the false statements in the affidavit. That is a factual determination for the trier of fact.
HERVEY v. ESTES (Ninth Circuit Court)con’t:
Section 1983 applies to the actions of “persons” acting under color of state law. It is beyond dispute that a local governmental unit or municipality can be sued as a “person” under section 1983. Monell v. Department of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978). Governmental units may not assert the good faith of their officers or employees as a defense to liability under section 1983. Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d 673 (1980). The district court therefore erred by granting summary judgment to TNET on grounds of qualified immunity.
Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 1409, 63 L.Ed.2d
d) Rejection of a construction of § 1983 that would accord municipalities a qualified immunity for their good-faith constitutional violations is compelled both by the purpose of § 1983 to provide protection to those persons wronged by the abuse of governmental authority and to deter future constitutional violations, and by considerations of public policy. In view of the qualified immunity enjoyed by most government officials, many victims of municipal malfeasance would be left remediless if the city were also allowed to assert a good-faith defense. The concerns that justified decisions conferring qualified immunities on various government officials—the injustice, particularly in the absence of bad faith, of subjecting the official to liability, and the danger that the threat of such liability would deter the official's willingness to execute his office effectively—are less compelling, if not wholly inapplicable, when the liability of the municipal entity is at issue. Pp. 650-656 589 F.2d 335,
reversed. Irving Achtenberg, Kansas City, Mo., for petitioner.
Richard G. Carlisle, Independence, Mo., for respondents.
Mr. Justice BRENNAN delivered the opinion of the Court.
