FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGELINA NUNES, individually and 

as Guardian Ad Litem for her minor 

children D.X. and L.X.; D.X., a 

minor; L.X., a minor; EMANUEL 

ALVES,

Plaintiffs-Appellees,

v.

ARATA, SWINGLE, VAN EGMOND &

GOODWIN (PLC); BRAD J. SWINGLE;

AMANDA J. HEITLINGER,

Defendants-Appellants,

and

CARRIE STEPHENS; COUNTY OF 

STANISLAUS,

Defendants.

No. 19-16815

D.C. No.

1:19-cv-00204-

AWI-BAM
2 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN

ANGELINA NUNES, individually and 

as Guardian Ad Litem for her minor 

children D.X. and L.X.; D.X., a 

minor; L.X., a minor; EMANUEL 

ALVES,

Plaintiffs-Appellees,

v.

CARRIE STEPHENS; COUNTY OF 

STANISLAUS,

Defendants-Appellants,

and

ARATA, SWINGLE, VAN EGMOND &

GOODWIN (PLC); BRAD J. SWINGLE;

AMANDA J. HEITLINGER,

Defendants.

No. 19-16816

D.C. No.

1:19-cv-00204-

AWI-BAM

OPINION

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Argued and Submitted July 14, 2020

San Francisco, California

Filed December 29, 2020
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 3

Before: Richard C. Tallman and Danielle J. Hunsaker, 

Circuit Judges, and Roslyn O. Silver,* District Judge.

Per Curiam Opinion;

Concurrence by Judge Hunsaker

SUMMARY**

Civil Rights

The panel reversed the district court’s denial of a motion 

to dismiss on qualified immunity grounds, and remanded, in 

an action brought under 42 U.S.C. § 1983 against the County 

of Stanislaus and its attorneys for unlawfully viewing the 

juvenile records of D.X. and L.X. in violation of California 

Welfare & Institutions Code Section 827.

Plaintiffs sued defendants for unlawfully accessing the 

children’s juvenile records without first obtaining a court 

order from the juvenile court, as required under California 

Welfare & Institutions Code Section 827. County Counsel 

believed W&I § 827 did not require court authorization to 

access the records and disclose them to the County’s outside 

counsel in a related lawsuit.

The panel held that this court’s opaque opinion in 

Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003), did not 

* The Honorable Roslyn O. Silver, United States District Judge for 

the District of Arizona, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
4 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN

clearly establish a constitutional privacy right in juvenile 

records. Therefore, the panel could not conclude that every 

reasonable official acting as defendants did would have 

known they were violating the constitutional rights of 

plaintiffs based on Gonzalez, the only authority on which 

plaintiffs relied. The panel did not decide whether the 

Constitution provides a privacy right in juvenile records; 

rather, the panel decided only that no such right was clearly 

established at the time of the defendants’ alleged conduct. 

Therefore, defendants were entitled to qualified immunity.

Concurring, Judge Hunsaker, joined by Judge Silver, 

wrote separately to emphasize one point—that an en banc 

court should reconsider Gonzalez v. Spencer, 336 F.3d 832 

(9th Cir. 2003), and address in earnest whether there exists a 

constitutional right to privacy in juvenile records.

COUNSEL

Jesse M. Rivera (argued) and Jill B. Nathan, Rivera Hewitt 

Paul LLP, Gold River, California; Michael R. Mordaunt 

(argued) and Lori Reihl, Riggio Mordaunt & Kelly,

Stockton, California; for Defendants-Appellants.

Robert R. Powell (argued), Powell & Associates, San Jose, 

California, for Plaintiffs-Appellees.
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 5

OPINION

PER CURIAM:

Angelina Nunes, individually and as Guardian Ad Litem 

for her minor children D.X. and L.X., and Emanuel Alves1

(Plaintiffs) brought the present action under 42 U.S.C. 

§ 1983 against the County of Stanislaus (County) and its 

attorneys for unlawfully viewing the juvenile records of 

D.X. and L.X. in violation of California Welfare & 

Institutions Code Section 827. The district court denied the 

Defendants’ motion to dismiss on qualified immunity 

grounds. For the reasons set forth below, we reverse.

I. BACKGROUND

A. The Parties

Plaintiffs brought suit against the (1) County, (2) County 

Counsel Carrie Stephens (County Counsel), (3) the County’s 

outside law firm Arata, Swingle, Van Egmond & Goodwin 

(ASVG), and (4) two attorneys from ASVG—Brad Swingle 

and Amanda Heitlinger.2 For purposes of the present appeal, 

the County and County Counsel are represented by the same 

attorneys, and ASVG (including Swingle and Heitlinger) is

represented by separate attorneys. Each filed an appeal 

resulting in two Court of Appeals case numbers. We resolve 

both appeals in this consolidated opinion.

1 Alves is the biological father of L.X.

2 Outside counsel, including both the law firm and attorneys Swingle 

and Heitlinger, are collectively referred to as ASVG.
6 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN

B. The Separation Case

Prior to July 2016, the County’s Community Services 

Agency (CSA) began a child abuse investigation related to 

D.X. and L.X. after L.X., then five-months old, suffered a 

skull fracture. D.X. and L.X. were separated from Nunes and 

Alves. Plaintiffs filed a civil rights lawsuit against the 

County challenging the separation (Separation Case). ASVG 

represented the County in the Separation Case. During that 

litigation, County Counsel provided ASVG with D.X. and 

L.X.’s juvenile records.

C. Present Lawsuit

In this case, Plaintiffs sued all Defendants for unlawfully 

accessing the children’s juvenile records without first 

obtaining a court order from the juvenile court, as required 

under California Welfare & Institutions Code Section 827 

(W&I § 827). County Counsel believed W&I § 827 did not 

require court authorization to access the records and disclose 

them to the County’s outside counsel. In addition, Plaintiffs 

allege that the juvenile records contained medical records of 

L.X., which are subject to additional protection under the 

Health Insurance Protection and Accountability Act 

(“HIPAA”).

After Plaintiffs learned about the disclosure to ASVG, 

they filed the present § 1983 lawsuit against Defendants, 

arguing that the disclosure violated Plaintiffs’ state and 

federal constitutional rights to privacy and L.X.’s medical 

privacy rights. Specifically, Plaintiffs brought two claims for 

relief. First, Plaintiffs sought § 1983 relief from a violation 

of their “right to privacy and/or state and federal 

constitutional rights in keeping the juvenile records and/or 

case files related to their family and their involvement with 

the Community Services Agency private and confidential.” 
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 7

Second, Plaintiffs brought Monell3 claims against the 

County based on its custom and policy of allowing its inhouse counsel and outside counsel to unlawfully access 

juvenile records without judicial authorization.4

D. Procedural Background

The County defendants and ASVG filed separate 

motions to dismiss, each asserting a qualified immunity 

defense. The district court noted that Plaintiffs’ complaint 

did not identify which constitutional provision was allegedly 

violated, and it evaluated Plaintiffs’ claims under the Fourth 

and Fourteenth Amendments. The district court denied 

qualified immunity for all Defendants with respect to a 

Fourth Amendment privacy claim based on a violation of 

W&I § 827. The district court held that the dissenting 

opinion in Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 

2003), clarified the Fourth Amendment right implicated by 

a W&I § 827 violation. It also concluded that Gonzalez

found a viable Fourth Amendment claim when the attorney 

defending Los Angeles County wrongfully accessed a 

juvenile case file in violation of W&I § 827. But the district 

court dismissed the Plaintiffs’ claims to the extent they were 

premised on the Fourteenth Amendment. Defendants 

appealed the denial of qualified immunity, and we have 

3 Monell v. Dep’t of Soc. Servs. of. N.Y.C., 436 U.S. 658, 694 (1978) 

(holding local governments can be liable under § 1983 for customs or 

policies that result in constitutional deprivations).

4 “[U]nlike various government officials, municipalities do not 

enjoy immunity . . . under § 1983.” Leatherman v. Tarrant Cnty.

Narcotics Intel. & Coordination Unit, 507 U.S. 163, 166 (1993). Thus,

this ruling does not affect Plaintiffs’ Monell claim against the County, 

which is still pending before the district court.
8 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN

jurisdiction under 28 U.S.C. § 1291. Behrens v. Pelletier, 

516 U.S. 299, 307, 311 (1996).

II. DISCUSSION

We review denial of a motion to dismiss under 

Rule 12(b)(6) de novo. Dunn v. Castro, 621 F.3d 1196, 1198 

(9th Cir. 2010). Qualified immunity is an affirmative defense 

that shields public officials facing liability under 42 U.S.C. 

§ 1983 unless “(1) they violated a federal statutory or 

constitutional right, and (2) the unlawfulness of their 

conduct was clearly established at the time” of the violation. 

District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) 

(internal quotation marks and citation omitted). We have 

discretion to decide which question to consider first, and this 

case turns on the clearly-established-right inquiry.5 See 

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

A. Clearly Established Right

A right is clearly established when its “contours [are] 

sufficiently definite that any reasonable official in the 

defendant’s shoes would have understood that he was 

violating it.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) 

(per curiam) (internal quotation marks and citation omitted). 

A clearly established right is one that has a “sufficiently clear 

foundation in then-existing precedent.” Wesby, 138 S. Ct. 

at 589. That is, the rule must be “settled law,” meaning it is 

“dictated by controlling authority or a robust consensus of 

cases of persuasive authority.” Id. at 589–90 (internal 

quotation marks and citations omitted). There need not be a 

5 Our analysis is confined to whether Gonzalez clearly established 

that a violation of W&I § 827, as alleged here, violates Plaintiffs’ rights 

under the Fourth Amendment.
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 9

“case directly on point,” but existing precedent must place 

the statutory or constitutional question “beyond debate.” 

Kisela, 138 S. Ct. at 1152 (internal quotation marks and 

citation omitted). The Supreme Court has repeatedly 

instructed us not to define clearly established law at a high 

level of generality. Id. (“This Court has repeatedly told 

courts—and the Ninth Circuit in particular—not to define 

clearly established law at a high level of generality.” 

(quoting City & Cnty. of San Francisco v. Sheehan, 135 S. 

Ct. 1765, 1775–76 (2015)) (internal quotation marks 

omitted)).

“[S]pecificity is especially important in the Fourth 

Amendment context, where the Court has recognized that it 

is sometimes difficult for an officer to determine how the 

relevant legal doctrine . . . will apply to the factual situation 

the officer confronts.” Id. (internal quotation marks and 

citation omitted). In Kisela, the alleged constitutional 

violation was excessive force—an area where the outcome 

is highly fact-dependent. Id. at 1152–53. We acknowledge 

that this case presents a different scenario than those where 

officers are forced to make “split-second judgments—in 

circumstances that are tense, uncertain, and rapidly 

evolving.” Id. at 1152 (internal quotation marks and citation 

omitted). But the underlying question remains the same: Did 

Defendants’ conduct violate a clearly established 

constitutional right of the Plaintiffs?

B. Gonzalez v. Spencer

Plaintiffs rely solely on Gonzalez in arguing that 

Defendants’ conduct violated a clearly established right. In 

Gonzalez, while defending Los Angeles County in a civil 

rights suit brought by Raul Gonzalez, the County’s attorney 

accessed Gonzalez’s juvenile court file without notifying 

him and without obtaining authorization from the juvenile 
10 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN

court as required under W&I § 827(a)(1)(M) and Cal. Rules 

of Court 1423(b). 336 F.3d at 834. The County’s attorney 

used the juvenile records to cross-examine Gonzalez at his 

deposition. Id. In a split decision, the per curiam majority 

wrote a two-page opinion.6 Without identifying a specific 

constitutional right at issue, or conducting any analysis, the 

court concluded:

If [the County attorney] violated Gonzalez’s 

constitutional rights, he is entitled at least to 

nominal damages, even if [the attorney] 

could have obtained the documents lawfully.

Because [the attorney] improperly obtained 

access to Gonzalez’s juvenile court file, we 

need not reach the question whether [the 

attorney]’s use of Gonzalez’s file in 

depositions also violated his constitutional 

rights.

Id. at 835 (internal citation omitted). And without any further 

discussion of the right that was potentially violated, the court 

held that the County attorney was not entitled to qualified 

immunity. Id.

As the district court noted, “the majority opinion does 

not explain why a violation of W&I § 827 was sufficient to 

constitute a violation of the Fourth Amendment.” Order on 

Defs.’ Mot. To Dismiss, Nunes v. Stephens, No. 1:19-CV0204 AWI BAM, at 10 (E.D. Cal. Aug. 22, 2019). Indeed, 

the Gonzalez majority did not even specify that Fourth 

Amendment rights were at issue. That is gleaned only from 

6 Gonzalez was originally issued as a memorandum disposition but 

was later published after two requests for publication.
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 11

the dissenting opinion. See Gonzalez, 336 F.3d at 836 

(“Gonzalez contends that [the attorney]’s access to and use 

of his juvenile court case file constituted a violation of the 

Fourth Amendment.”) (W. Fletcher, J., dissenting). Nor does

Gonzalez discuss or cite to any Supreme Court or Ninth 

Circuit precedent regarding constitutional privacy rights in 

juvenile records specifically or informational privacy rights 

generally. See 336 F.3d at 832–35.

Lastly, a strong indication that Gonzalez did not clearly 

establish any constitutional privacy rights regarding juvenile 

records is its treatment in the district courts. In A.C. v. 

Cortez, the district court held that Gonzalez did not establish 

a federal right to privacy. 398 F. Supp. 3d 748, 752 (S.D. 

Cal. 2019), appeal docketed, No. 19-55895 (9th Cir. Aug. 1, 

2019). The A.C. court followed the reasoning of two 

unpublished district court cases that reached the same 

conclusion. Ismail v. Fulkerson, No. SA CV 10-00901-VBFAJW, 2014 WL 3962488 (C.D. Cal. Aug. 12, 2014), and 

Rigsby v. County of Los Angeles, No. CV 11-02766 SJO 

(PJWx), 2011 WL 13143544 (C.D. Cal Aug. 2, 2011), aff’d, 

531 F. App’x 811 (9th Cir. 2013).

In A.C., the district court noted: “This remains an 

underdeveloped area of federal law . . . . Nevertheless, the 

Court finds the debatable holding of one case does not 

establish a current constitutional right to privacy covering 

juvenile records.” 398 F. Supp. 3d at 750. In Ismail, the court 

found that Gonzalez “did not address or definitively 

determine the existence or scope of any constitutional 

informational privacy right.” 2014 WL 3962488, at *11. The 

Ismail court also noted, as do we, that Gonzalez failed to cite 

to Supreme Court or Ninth Circuit precedent and merely 

assumed, without deciding, that a W&I § 827 violation 

constituted a violation of a federal privacy right. Id. And 
12 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN

prior to Ismail, Rigsby recognized that the Ninth Circuit has 

held a constitutional right to informational privacy exists, 

but that such right has not clearly been extended to the 

nondisclosure of juvenile records. Rigsby, 2011 WL 

13143544, at *3–4.

Accordingly, we, like the district courts, conclude that 

the opaque opinion in Gonzalez did not clearly establish a 

constitutional privacy right in juvenile records. Gonzalez did 

not explain what right was at issue or what constitutional 

source it flowed from. It did not even explain whether that 

unnamed right was violated by the attorney’s conduct, 

stating instead only that it could have been. Gonzalez, 

336 F.3d at 835 (“If [the attorney] violated Gonzalez’s 

constitutional rights...” (emphasis added)). Such an opinion, 

which leaves fundamental questions unanswered about the 

origin, nature, and scope of the right at issue, cannot place 

the constitutional issue “beyond debate.” See Kisela, 138 S. 

Ct. at 1152; see also Ashcroft v. al-Kidd, 563 U.S 731, 741 

(2011). We cannot conclude that every reasonable official 

acting as Defendants did would have known they were 

violating the constitutional rights of Plaintiffs based on 

Gonzalez, the only authority on which Plaintiffs’ rely. See 

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).

III. CONCLUSION

We do not decide whether the Constitution provides a 

privacy right in juvenile records; rather, we decide only that 

no such right was clearly established at the time of the 

Defendants’ alleged conduct. Therefore, Defendants are 

entitled to qualified immunity.
NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN 13

REVERSED and REMANDED for further 

proceedings consistent with this opinion.7

HUNSAKER, Circuit Judge, with whom District Judge 

Silver joins, concurring:

I write separately to emphasize one point—our en banc 

court should reconsider Gonzalez v. Spencer, 336 F.3d 832 

(9th Cir. 2003), and address in earnest whether there exists a 

constitutional right to privacy in juvenile records. We 

carefully dodge this issue today by focusing on the clearlyestablished-law prong of qualified immunity given the 

dearth of reasoning and guidance in the Gonzalez decision. 

But Gonzalez will continue to stymie district courts and 

litigants.1

The Supreme Court has identified a constitutional 

privacy “interest in avoiding disclosure of personal matters” 

under the Fourteenth Amendment. Whalen v. Roe, 429 U.S. 

at 589, 599–600 (1977). This is referred to as the right to 

“informational privacy.” See NASA v. Nelson, 562 U.S. 134, 

7 The parties’ motions for judicial notice are denied as moot.

1 District courts have split interpreting Gonzalez. The district court 

here read Gonzalez as establishing a viable Fourth Amendment violation 

based on conduct allegedly prohibited by § 827. But district courts in 

A.C. v. Cortez, Ismail v. Fulkerson, and Rigsby v. County of Los Angeles, 

facing similar claims, read Gonzalez differently. See 398 F. Supp. 3d 

748, 752 (S.D. Cal. 2019), appeal docketed, No. 19-55895 (9th Cir. Aug. 

1, 2019); SA CV 10-00901-VBF-AJW, 2014 WL 3962488, at *11 (C.D. 

Cal. Aug. 12, 2014); No. CV 11-02766 SJO (PJWx), 2011 WL 

13143544, at *3 (C.D. Cal Aug. 2, 2011), aff’d, 531 F. App’x 811 (9th 

Cir. 2013). And we affirmed Rigsby in a memorandum disposition 

interpreting Gonzalez narrowly. 531 F. App’x 811, 812 (9th Cir. 2013).
14 NUNES V. ARATA SWINGLE VAN EGMOND & GOODWIN

144 (2011). And we have recognized this right but have 

cautioned that it is “not absolute; rather, it is a conditional 

right which may be infringed upon a showing of proper 

governmental interest.” Endy v. Cnty. of Los Angeles, 

975 F.3d 757, 769 (9th Cir. 2020) (quoting In re Crawford, 

194 F.3d 954, 959 (9th Cir. 1999)). In analyzing 

informational privacy rights in any given case, “[o]ur 

precedents demand that we engage in the delicate task of 

weighing competing interests to determine whether the 

government may properly disclose [the] private information 

[at issue].” In re Crawford, 194 F.3d at 959 (internal 

quotation marks and citation omitted).

The question here, whether there is a constitutional right 

of privacy that protects against disclosure of juvenile 

records, was answered in Gonzalez like an overconfident yet 

underprepared student—casually, without explanation or 

supporting authority. We should do better. And until the en 

banc court performs the analysis that Gonzalez neglected, 

our law on this issue will remain unclear. See, e.g., A.C., 

398 F. Supp. 3d at 752.