this panel to reaffirm that a parent has a constitutional right under the fourteenth amendment to bring a cause of action against social workers and police offices for the removal of their children in case to me is why i was in a claim brought by the parents on behalf of the children under the fourth a member me just seems to me you can argue about whether the due process was clear but the fourth amendment was certainly more clear to again specifically allows this because states does say that the parent's rights are a mirror image of the of the children which means to me your honor that the children would have a fourteenth and fourth amendment existing circumstances if there is a court order that would comply with the fourth amendment then it says then that also complies with procedural due process i see that in gates but to me that doesn't automatically mean the opposite that if you don't have exit in circumstances a recorder then you automatically have a procedural due process violation do you see any fifth circuit cases saying man that without looking at whether there was a hearing in the typical sort of procedural due process if the contours are sufficient so that the social workers or police officers would know that they are violating a right and i believe ron in this case they found it was i believe the there was reasonable cause to believe there was danger correct so what cases have south held the opposite of found the due process violation when there was a pending domestic violence investigation well if i can clarify on the domestic violence that was five six months before it was unfounded and the the social workers basically told the father he had to leave the had to leave the house and that created additional judge said you had plenty time to apply for an order and had you applied for that order you would have received it so we're here today because they violated their own procedures was that hearing because gates also says if you have the hearing within a day which they did here it indicates that that's part of the due process copulation are you are you bringing procedural due process subset of due process or both but you know it's very important when you when you when parents have seven children and one is a baby and all of a sudden all seven children are taken and all of a sudden they're enforced to homes all over texas and then that shock that shock to the to the parents and next day they go to court and the judge said return those children immediately assuming you are bringing both procedural due process and substantive process fourteenth amendment claims yes or it seems like an array of arguments that they're making responses well it doesn't apply to social workers number one but if it does apply to social workers it doesn't apply to a temporary seizure as opposed to a three year term a nation of parental rights that's their second to relate argument and the third one is more of a constitutional argument that all of gates and the fourteenth amendment really collapses just back into the fourth amendment which you didn't allege you want to take on one or three of those arguments well with respect i believe gates when when when gates said that they see no reason to deviate from the other circuits i believe that pulls the two apart procedural due process of things ok and we don't have to worry about the twenty four hours because they were said even though you have to investigate allegations within twenty four hours that does not give you a right to violate someone's constitutional rights that's in gates and and i think that's pretty important for this case with  specter the other issue i'm sure was a second issue gun well well maybe you're trying to answer it there if if one looks at sentara ski thirty five years ago and then you look at gates those did factually happen to involve prolonged removals correct but the the what hasn't evolved since then even with gates because i mean gates even stan gates that the court was not pleased with how the social workers operated in that fashion then they said but we was doubly sure right now so gates tried to put the social workers on notice that you can't take a child or children without that's in circumstances a court order or parental consent any interference at all regardless of time i believe so you don't yes the district court focused more on substantive due process sort of locating it especially just the palaces that seem to be all that the district or did was dearborn and the district or just said i'm looking at what you have a legend that's in that nebulous middle and therefore qualified immunity but if i may talk about the middle i know the the court did say was in the middle the middle would occur in my to the end of the continuum in that particular case the state's interest should be negligible now i will agree if it was in the middle of the continuum we would be in that big area with family integrity feel familiar association factually which case of ours is this closest to the found a violation of due process i think one a key one a key also you're right you go to war nicky when he had a similar situation where he had a similar situation and similar situation only it was worse there was so ridges all over there was potential abuse potential child abuse and the court looked at both claims but then they said we're not going to rule on the fourteenth amendment claim because we want to send it back to the district court for further development so they didn't they did not rule on the fourteenth amendment claim of the parents but in this particular case they did find there was no exigent circumstances even though the situation was worse than that in the romeros for me the trickiest part of this case is the police officers for several reasons it to me the allegations were pretty conclusory as to their participation whether they were integrity involved or if they just sort of automatically accompanies social workers and it's reasonable for them to rely on a social worker that said hey i was here the day before and i've gotten in danger meant concern and i just need you to come with me if i may address that there is a texas family which i addressed in the in the appeal which says that its police officer or social worker is not supposed to take a  unless he has personal he or she was to but what do you have i mean the district courts are asked you this or wrote in the opinion what's the case that strips police officers of qualified immunity when they are accompanying a social worker who is the one with the notice of removal do you have a case well based on well in this particular case they the office is threatened at the moment of that but just do we have any case that simply ha the officers a company a social worker i know you have alleged they spoke to miss brown and she said i've got no idea but no reason to do this essentially but even assuming that i guess i'm just wondering do you see a case anywhere where the role of the police was to accompany a social worker and yet they aren't given qualified immunity for the removal however violative it was by miss brown not with social not with social workers per se but  aware that's a search exceeded the warrants limits go but they all to act was not a bystander by us we believe that the police officers should not have threaten the mother even released the children the c p s or you're going to jail we feel that's an integral part of the of the argument that they are liable yada you tell me why is forgetting the case law for a second i don't see why the fourth amendment would have the same rule as the procedural due process because normally in the supreme court has emphasized this recently different constitutional provisions protect different interests and that sort of makes sense why why do something it's duplicative and the fourth amendment protecting unlawful seizures procedural due process is usually you look at a balancing test of the process that's given based on the interest of the individual no the burden on the government so why should it just be a matter of whether there's  child back why isn't that sufficient procedural due process because because that would give with a twenty four hour all that would give social workers the right to violate somebody other area where the the fourteenth amendment due process turns on the fourth amendment now that the step in this case now with respect to the supervisor  we feel that as stated in the complaint that she was aware of the facts and she approved the seizure of the child and we believe and that was we believe that in different she knew there was a small apartment financial issues with the with the parents and they could have did least alternative means they could help them out rather than season the children so we feel that the the ability based on the liberal indifference now if i may say warnings i think in this case gates was a case that gave the reasonable warnings you can't take a child under these and then that we circumstances and also in hips the court said a constitutional right to special what had been very specifically out that we don't believe that would apply here because you know in any excessive force cases if you have two cases and you change one fact just one this could be yes and this could be no just like with tasering a lot of case in the fifth circuit a lot of times you're allowed one free taser but in this case there was a clear violation of the parents rights and they should have the right to bring that action against the social workers  they please the court are in canon for the child welfare officials the substantive due process in a couple of what is your honor you know the substantive due process interest that the parents are relying on is nebulous and under the current state of law and under the circumstances alleged does not rise to the level of a substantive due process violation and cannot overcome qualified immunity and there are three points that i'd like to have to really focus on in response to my opponent's argument the the first thing is that you know based on the pleadings and the argument that we just heard that there's really no dispute that there were really some issues about the home about the home environment that the social worker observed when she was carrying out her official duties and showed up at the house and did this investigation where arguing we've heard argument about how exit didn't those circumstances are but that doesn't mean that addressing admitted issues about the home environment is arbitrary or good regis and not the type of violation that substantive due process is intended to cover that sort of the worst of the worst governmental misconduct intrusion that behavior that shocks the conscience which is not a standard that the parents are trying to show and you combine that with this brief one day duration of the removal means that substantive due process is going to be a very hard standard for the parents to overcome and particularly in the qualified immunity posture where courts like the district court here are it seems on if you can see this but it seems pretty clear that the complaint does allege a fourth amendment violation if nothing more and so if if the officers you know offer to be reasonable about the law giving constructive notice to government officials if the child welfare officials should have known it was on lawful unconstitutional because of the fourth amendment why should they get any qualified immunity protection i mean you say it's because the qualified immunity isn't on a claim by trailer but also just conceptually that the fourth amendment right is distinct from the fourteenth amendment right the fourth amendment right is covers a personal liberty interest violation in the seizure of the person that is personal to the person being seized the fourteenth amendment right of the parents is more nebulous concept and it sweeps in sort of a bundle of interests and they haven't been really well defined but they still in the distinction you're making movies because if they are if the official should know it's unconstitutional because of the fourth the minute why do why give protection to what is unconscious they know they should know is unconstitutional want to be just because of the specific claim the other side decides to bring but i would want to start by clarifying that it's possible that allegations like the ones the plaintiffs have brought in might raise a gates violation but i can't commit the state to a position on that because the reasonableness under the fourth amendment is you know it's based on the seizure under all the circumstances and at this stage we don't yet have all the circumstances developed but putting that aside the the reasonableness of the removal under the fourth amendment it covers a specific type of personal liberty and tress that is it's different and wouldn't necessarily put you on notice that you work as a social worker investigating in this ongoing investigation that involves domestic abuse you're making personal observations of the home environment you wouldn't be on notice and a that that you aren't serving a state interest by doing so and b that the very short duration of the removal so that the kids can then be brought in front of a judge who can test the basis it would violate how would a social worker not know after send out ski and gates that our court has been clear or that we agree with the various circuits that say we equate the analysis with the fourth amendment with a procedural due process argument so put aside dearborn subsume due process how how do you not read gates to put her on notice that there would be a procedure due process violation i think is the court alluded to the in the opening and discussing with my opponent that just because the process under the fourth amendment where a seizure complies with the fourth amendment that would satisfy the separate fourteenth amendment interest doesn't mean that it's necessary to do so and there's reason to think that that you wouldn't be on notice just because there is arguably some fourth amendment violation again because the the the interests are are different  the fourth amendment right is a different right than that fourteenth amendment right that fourteenth amendment right is it when you step back the fourth amendment right there reasonable this of the seizure whether there's even it's essentially that's when you can remove the children with the hope process maybe the opposite put the fourth amendment aside it hasn't been alleged here they disclaimed it i'm just looking at supreme court into the circuit law and i'm wondering if if you interpret that body of law that seems quite clear to me to not apply and if so why put the fourth amendment and the displacement theory completely aside i thought your brief was saying well that body of law only applies to prolonged removals under the current state of the law that is rated only the the body of law about substantive due process is about prolonged removals and i think is more is versus dearborne discusses that where when you've got a temporary removal especially one that's that's of the shore and it's followed up by a hearing that's not going to rise to the level of a substantive due process violation and we're going again in this qualified immunity posture going to do your bit more and what we said was three years is not even close to the line i'm sure you remember the exact quote not even close to the line that allows temporary removals and how do we finish the sentence that allows temporary remov when there is an ongoing child abuse investigation and that's what we have here there's an ongoing investigation into child abuse well there's an ongoing investigation into domestic violence between the parents that necessarily implicates the state's interest in ensuring that children that are in that environment are you know are safe not the allegations here were that mr cruz had been removed there was no danger at  all he wasn't even in the house well mr cruz was not in the house but that doesn't negate the fact that there was an ongoing domestic violence investigation and the reason the side but i thought again just be as precise as you can  allegations the allegation of violence was from parent to parent if true is there any hint scintilla anywhere of any risk to the child abuse of the child that's just a yes or no question is that i can't answer that on that anything's at this stage and again we're at a motion to dismiss qualified immunity stage where it would essentially be that the plaintiff's burden to bring the case what is the authority that says that the state's interest in investigating and making sure that children are ok and safe and properly cared for is torpedoed just because there is a difference of opinion about what the parents observed and what the social worker observed the pla cited that case i'm certainly not aware of anything holding that there is as far as i can tell and no precedent of this court holding  duration when you keep saying that what's the case that stands for the fact you can sort interfere just for a short period of time just not up to three you wrote you put a spin on send out ski but send out talks about not just custody talks about care and management and it's very clear that the case law it's indorsing and relies on it being the supreme court is no interference with the ongoing family relation it doesn't say that this is there's some three year limit which creates the fourteenth amendment violation what's your best circuit authority that short removals from ongoing family care and management don't violate but at some point they become too intrusive by the state into the family what's your best circuit authority for that position it's not just mine it's one that the no i'm asking you the best circuit case that asserts that interpretation of send out what's the best circuit case you can look directly to this case the so you say i did it and it when i look at it is it not going to involve an allegation of child abuse my guess is it will say i think the circumstances are more similar to what the plaintiffs allege and there is a social worker who was parental violence to each other not and still the children are taken in the second circuit says qualified immunity that's essentially what the framework is going to be didn't just say qualified immunity it said no substantive due process violates all at all but putting all that aside i think the way that the court looks at these these substantive due process violations is essentially it's a function of is there some state interest in being involved in that family relationship at all and is there a temporary removal and there is some state interest here there is a very short removal there is qualified immunity under that continuum approach at least under the current state of law as it is now and the parents are essentially asking the court to make new law and set new boundaries for substantive due process which is our case that said clutter and syringes don't give enough which well we're talking about a social worker carrying out official duties we can argue about whether that's exit or not but for substantive due process you'd expect to see something like there were no circumstances that needed correction that's not what we have here in the plaintiff's don't dispute for example when they said that there were financial crisis small cluttered apartment it's all based on the personal observations of a social worker she's doing her job she's they are in the course of an ongoing investigation that plaintiffs haven't come forward with any supreme court authority directly of controlling authority from this court or anything close to a consensus of authorities from any other circuit that says that when a social worker walks into that environment that that state just has no interest in making sure that that home conditions are are correct that you would expect for a substantive due process violation a case where you know it's alleged to be something more extreme of an intrusion where there is no saint state interest at all whether  related at least expect a longer duration of the removal we don't have that here and that's why there is no liability no qualified immunity for ms brown and root and that's why the court  some of his argument applies to the officers but i realize of course on this very thorough thorough colloquy that it gets off into issues that the officers don't even need to address and that is about whether there was  circumstance whether it was reasonable or not for these social workers to take the actions they did although i would agree with mr cohen in that the social workers are protected i don't need to argue that because the officers are because they're even further removed from the social workers and even if there were no qualified immunity for the social workers the officers do have qualified immunity because once you plead it you have it until the plaintiff shows that you don't it's the plaint confirming that there is no such a circumstance to the social worker is still not enough to overcome the officers entitle me to qualified immunity because the social workers are going for the officers are there to ensure the safety of the children the parents any bystanders there are occasions when people see someone something happening and there's a crowd and they get involved can't have something like that here and so the officers are there to make sure that this is a safe situation that this removal whether it's right or not whether it's lawful or not that no one's going to get injured and so there's nothing pleaded that overcomes their entitle applies what do you do you have a case that sort of explores that only because i would think they would name if they know that no quarter were no exit in see no parental consent it seems like they're right there in with miss brown assuming that that's all true if their role is to ensure that there is no harm in this encounter then it doesn't really matter about the rest of that because that gets settled in court the next day and so they're not saying let's take these kids away yes i agree with you let's remove these children and violate someone's rights instead it's like what you're doing this and i want to make sure nobody gets hurt in the process of the case that's just police walking in taking the chair is it will eat will eat is that i'm i'm not certain of that that sounds right i don't have to look and see well let's assume it's brown weren't there and this was the police and they knew there were no exit circumstance if there were no social workers i don't know how far is going to range with this your honor but before i became a lawyer i was a social worker for a while and there are if there's domestic violence between the spouses and even if one of the home that doesn't mean that the children are safe sometimes the spouse will come back and kill people right now i don't know what it was in miss brown's observation or her thought processes that said this is something we need to investigate there's been a history of domestic violence to at least two allegations we don't know if they were substantiated or not but there are some basis for that and so i wouldn't distinguish that cleanly and neatly between violence between parents and children who might get hurt in the process in the way if an enraged man for example picks up and in table and throws it across the room of his wife and there are seven children in this small space this big the chances that one of them gets hurt is pretty high this is something was a child who first reported the abuse between the parents right yes to it at school yes that's right six year old i believe  time but again the officers were there to ensure the safety of everyone and there's nothing pleaded that overcomes they're entitled to qualified immunity given their role of making sure that whatever this is even if it's wrong nobody's going to get hurt here in this that would be a strong proposition for us to put in writing in other words no matter how wrong and how violated of the constitution and how where the police if they're there just to accompany a social worker they will always get qualified i mean well if it were slapping them in the face that this social worker doesn't have any grounds for doing this and i don't think that's the case they had this notice of removal yes all right and so yes  rely on other sources of information other officers or even say a confidential informant now i'm just saying this is roughly analogous to what we have here in them relying on a notice of removal from a state official the social worker we had a case abuse or no child endangerment we're talking about an incident that was five months prior and even the state court judge said it was unfounded and he she ordered that the husband returned to the house because there was no probable cause to even remove him from the house and i think that's very important now with respect to the police officers in gates gates cut the quote unquote they cut their offices some slack because they knew there was continual involvement with the gates family and they felt they had some sort of knowledge here the police offices just threaten the mother saying if you don't we turn over the kid you're going to jail and again we believe they were in a legal participants and should not have qualified immunity and of removal yes what is that for the she wanted i but there is a form where they give to the parents we're taking your children i believe my client did not sign it because she didn't agree to her children being removed i guess then the argument is the police officers really have no expertise to assess that social worker form they would think well it's there's been a determination of endangerment mr brown came the day before we weren't there she concluded something she actually then ran it up her supervisors got the documents well at this point in the litigation we don't know but as we allege we believe this the police officers knew there was no edge in circumstances so i think that's why hopefully your honor this will get reversed and we can proceed to trial on this and get all the facts back on ms brown as i understand texas argument they're saying that given the state of the law gates and dearborn there isn't a fourteenth amendment violation when the following occurs there is some anxiety parental disharmony plus a very brief removal that leading to a hearing the next day and they're saying that that doesn't really trigger the law of the line this century that school is right this is the nebulous middle we just don't have that constellation of facts but if i may address that i think we're way out like i said before  continuum but gates does say that imminent danger of physical or sexual abuse if the person the perpetrator off if the children remain in the house but he was never he's outside the house so the children could not be in imminent danger of bodily harm because even though this was unfounded he was not living in the hell so there is your fourth amendment violation and i believe still the fourteenth amendment  does help the parents here just like there was a reason the that it helps that's all you charge it's your only complaint is the ford well the complaint is that they should have the right to bring an action for the removal of the children because it was a shock to conscience really that seven children were removed don including a baby and that would give any parent you know like and zion what have them my kids for no reason so we feel that the social workers violated the rights and rather so i believe this case should be reversed and we can proceed on further develop the case and possibly go to trial thank you i thank you your hon next case we're hearing today is