07-4449-cv (L), 07-4450-cv (CON) Southerland v. City of New York 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## ORDER **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 22 nd** **day of May, two thousand twelve.** 4 5 - - - - - - - - - - - - - - - - - - - -X 6 **SONNY B. SOUTHERLAND, SR.,** 7 **individually and as parent and** 8 **natural guardian of VENUS** 9 **SOUTHERLAND, SONNY B. SOUTHERLAND,** 10 **JR., NATHANIEL SOUTHERLAND, EMMANUEL** 11 **FELIX, KIAM FELIX, AND ELIZABETH** 12 **FELIX,** 13 14 **Plaintiffs-Appellants ,**  15 16 **-v.- 07-4449-cv (L)** 17 18 **CITY OF NEW YORK, TIMOTHY WOO, JOHN** 19 **DOES 1-9,** 20 21 **Defendants-Appellees .**  22 - - - - - - - - - - - - - - - - - - - -X 23 24 MICHAEL G. O’NEILL, New York, N.Y., for 25 Plaintiffs-Appellants Venus S., Sonny B.S. 26 Jr., Nathaniel S., Emmanuel F., Kiam F., and 27 Elizabeth F. 28 29 SONNY B. SOUTHERLAND, Brooklyn, N.Y., Plaintiff30 Appellant , pro se . 31 32 JULIAN L. KALKSTEIN, City of New York (Michael A. 33 Cardozo, Corporation Counsel; Larry A. 34 Sonnenshein, of counsel), New York, N.Y., for 35 Defendants-Appellees

. 362 Following disposition of this appeal on February 2, 1 2012, and prior to the amended disposition on May 14, 2012, 2 an active judge of the Court requested a poll on whether to 3 rehear the case in banc . A poll having been conducted and 4 there being no majority favoring in banc review, rehearing 5 in banc is hereby **DENIED**
. 6 7 Judge Raggi dissents in an opinion joined by Chief 8 Judge Jacobs and Judges Cabranes, Wesley, and Livingston. 9 10 Chief Judge Jacobs dissents in an opinion joined by 11 Judges Cabranes, Raggi, Wesley, and Livingston. 12 13 14 15 FOR THE COURT: 16 CATHERINE O’HAGAN WOLFE, CLERK 171 REENA RAGGI , Circuit Judge, with whom Chief Judge JACOBS , Judge C ABRANES , Judge 1 WESLEY , and Judge LIVINGSTONjoin, dissenting from the denial of rehearing en banc : 2 3 In 1998, after a five-day trial in New York State Family Court, Sonny Southerland 4 was found to have abused his seven children so severely—sexually and corporally—as to 5 warrant denying him custody for seven years. This ruling and the findings supporting it have 6 never been disturbed. SeeIn re Ciara M. , 273 A.D.2d 312, 314, 708 N.Y.S.2d 717, 719 (2d 7 Dep’t) (upholding abuse findings and affirming orders denying custody), leave to appeal 8 denied , 95 N.Y.2d 767, 717 N.Y.S.2d 547 (2000). A panel of this court concludes that 9 Southerland can nevertheless invoke 42 U.S.C. § 1983 to demand money damages from 10 Timothy Woo, the caseworker who rescued the Southerland children from their father’s 11 abuse. The panel further concludes that Southerland’s abused children can also maintain 12 such a damages action against their rescuer. 13 Essentially, plaintiffs complain that Woo—who had been assigned to investigate a 14 report that Southerland’s teenage daughter Ciara might be suicidal and that her father was 15 indifferent to her need for care—entered the Southerland home pursuant to a warrant that was 16 not supported by probable cause. SeeU.S. Const. amend. IV. They further contend that 17 Woo removed Southerland’s six other children from the home without evidence of exigency, 18 thereby effecting an unreasonable seizure and a deprivation of plaintiffs’ liberty interest in 19 a continuing family relationship without due process. Id. amend. IV, XIV. With respect to 20 the removal claim, plaintiffs do not contend—nor could they in light of the Family Court 21 ruling—that Southerland did not, in fact, pose an exigent threat to his children’s safety. They 22 contend only that Woo was not yet aware that the threat was exigent. 231 Plaintiffs cannot frame their § 1983 claimsin any way that challenges the validity 1 of the state court custody decision or the findings of fact supporting that decision. See 2 Rooker v. Fidelity Trust Co. , 263 U.S. 413, 415–16 (1923) (forbidding state court losers from 3 complaining in federal court of injuries caused by state court judgments); accordSkinner v. 4 Switzer , 131 S. Ct. 1289, 1297 (2011); Green v. Mattingly , 585 F.3d 97, 103 (2d Cir. 2009) 5 (discussing when Rooker-Feldmandoctrine would likely bar challenge to Family Court 6 adjudication); see alsoLa Fleur v. Whitman , 300 F.3d 256, 271–75 (2d Cir. 2002) (applying 7 New York collateral estoppel rule to preclude relitigation of factual issues in federal court). 8 Nevertheless, they maintain that they can recover money damages for Woo’s premature 9 interruption of the adjudicated abuse of which he was not yet fully aware. 10 2 By even plaintiffs’ account, it did not take long for Woo to gain such awareness. 1 Within four days of effecting the challenged removal, Woo learned and reported to the 2 Family Court that “Southerland has been sexually abusing his daughter Ciara Manning (age 3 16) since she was eight years old. On numerous occasions over the past nine years 4 respond[e]nt S[o]utherland has had sexual interc ourse with Ciara and would threaten to kill 5 Ciara if she told anyone.” Ex. D to Silverberg Decl. in Supp. of Summ. J. at 5, Southerland 6 v. City of N.Y. , No. 99-CV-3329 (E.D.N.Y. Sept. 18, 2006) (“Silverberg Decl.”), ECF No. 7 168-7. Further, before the month was out, Woo learned and reported to the Family Court that 8 the six children removed from the Southerland home—then ages three to nine—had revealed 9 that their father hit them “with broom stic ks, exercise equipment and other objects causing 10 welts and bruises,” and had punished the children for “tak[ing] food from the refrigerator 11 without permission” by hitting them “with various objects.” Ex. E to Silverberg Decl. at 6, 12 ECF No. 168-8. The state court’s custody determination makes clear that the Southerland 13 children would have continued to experience such abuse but for the challenged removal for 14 which they and their abusive father now demand compensation from Woo. 1 153 The district court sensibly dismissed this action, awarding summary judgment in favor 1 of Woo on the ground of qualified immunity. SeeSoutherland v. City of N.Y. , 521 F. Supp. 2 2d 218, 231–32 (E.D.N.Y. 2007) (Sifton, J. ). In reversing that judgment, the panel concludes 3 both that (1) the constitutional rights asserted here by Southerland and his abused children 4 were clearly established in the circumstances confronting Woo at the time of his challenged 5 actions, seeSoutherland v. City of N.Y. , --- F.3d ----, 2012 WL 1662981, at *18–19, *27 (2d 6 Cir. 2012); and (2) the record reveals disputed issues of fact that a reasonable jury could 7 resolve in plaintiffs’ favor, seeid. at *12–17, *19, *28. I respectfully disagree with both 8 conclusions for reasons that merit en bancreview. These reasons can be briefly summarized 9 as follows. 10 First , the panel concludes that Woo lacked probable cause to seek Ciara Manning, the 11 reported neglected child, in Southerland’s home because Woo had been told that she might 12 have run away. Seeid. at *13–14. This misperceives the probable cause requirement, which 13 neither demands certainty nor is defeated by possibilities. In the context of child welfare 14 investigations, there is always probable cause to look for an at-risk child in the home of the 15 custodial parent, at least absent conclusive evidence that the child is in fact somewhere else, 16 which was not the case here. To the extent th at five judges of this c ourt hold that view of 17 probable cause, it can hardly be said that no reasonable child welfare worker could have 18 thought likewise. Thus, Woo is entitled to qualified immunity on plaintiffs’ Fourth 19 Amendment challenge to his entry into the Southerland home. 20
214 Second , in allowing an adjudicated abusive father and the children he abused to sue 1 a caseworker for prematurely halting the abuse, the panel extends our due process precedent 2 in a way that the court should reject en banc . The cases cited by the panel as recognizing a 3 parent’s right to sue for due process violations by child welfare authorities all involved 4 circumstances in which suspicions of abuse or neglect eventually proved unfounded, seeKia 5 P. v. McIntyre , 235 F.3d 749, 751 (2d Cir. 2000); Tenenbaum v. Williams , 193 F.3d 581, 587 6 (2d Cir. 1999); Hurlman v. Rice , 927 F.2d 74, 76 (2d Cir. 1991), or no state judicial process 7 was ever afforded to confirm such suspicions, seeDuchesne v. Sugarman , 566 F.2d 817, 823 8 (2d Cir. 1977). None involved due process cl aims by parents adjudicated to have abused 9 their children, or by the children who were victims of such abuse. For the same reasons that 10 the law does not permit a convicted defendant to challenge the sufficiency of the evidence 11 supporting his arrest, seeCameron v. Fogarty , 806 F.2d 380, 388–89 (2d Cir. 1986), it should 12 not permit an adjudicated abusive parent, or the children he abused, to sue a rescuing 13 caseworker on a theory that the caseworker prematurely intervened. Recognizing a viable 14 claim for money damages in such circumstances risks bringing the law into disrepute. 15 Further, it endangers future abuse victims by unnecessarily deterring caseworkers from 16 promptly intervening for fear of being liable in money damages, not only in cases where no 17 parental abuse or neglect is established but alsoin cases where courts conclusively determine 18 that it is. 19 Thus, the scope and parameter of the cons titutional rights at issue in the context of 20 state adjudications of parental abuse raise questions of exceptional importance warranting 215 en bancreview. SeeFed. R. App. P. 35(a)(2). Insofar as a majority of the active members 1 of this court decline to undertake such review, I respectfully dissent from the denial of 2 rehearing en banc

. 3 * * * 4 1. Qualified Immunity 5 6 To allow government officials to perform discretionary duties without fear of undue 7 interference or threat of potentially disabling liability, the law affords them qualified 8 immunity from suits for money damages, provided that their conduct does not violate clearly 9 established statutory or constitutional rights of which a reasonable person would have been 10 aware. SeeHarlow v. Fitzgerald , 457 U.S. 800, 806, 818 (1982); accordFilarsky v. Delia , 11 132 S. Ct. 1657, 1665 (2012) (recognizing qualified immunity doctrine to serve vital purpose 12 of “[e]nsuring that those who serve the government do so with the decisiveness and the 13 judgment required by the public good” (internal quotation marks omitted)). Such immunity 14 has been recognized to provide a broad shiel d, protecting “all but the plainly incompetent or 15 those who knowingly violate the law.” Malley v. Briggs , 475 U.S. 335, 341 (1986); accord 16 Ashcroft v. al-Kidd , 131 S. Ct. 2074, 2085 (2011). 17 A threshold question to any immunity claim is whether the facts, viewed in the light 18 most favorable to the plaintiff, show that a statutory or constitutional right was violated. If 19 that question can clearly be answered no, there is simply “no necessity for further inquiries 20 concerning qualified immunity.” Saucier v. Katz , 533 U.S. 194, 201 (2001), overruled in 21 part on other grounds byPearson v. Callahan , 555 U.S. 223 (2009); accordWalczyk v. Rio , 226 496 F.3d 139, 154 (2d Cir. 2007) (collecting cases explaining that resolution of threshold 1 question favorably to defendant “moots” further qualified immunity inquiry). If the answer 2 is yes, or at least not clearly no, seePearson v. Callahan , 555 U.S. at 237, the pertinent 3 qualified immunity inquiry is whether the right was clearly established at the time of the 4 defendant’s actions, seeAshcroft v. al-Kidd , 131 S. Ct. at 2080; Walczyk v. Rio , 496 F.3d 5 at 154. As the Supreme Court has emphasized, this second question is not answered by 6 reference to how courts or lawyers might haveunderstood the state of the law. Rather, the 7 “relevant, dispositive inquiry in determining whether a right is clearly established is whether 8 it would be clear to a reasonable officer that his conduct was unlawful in the situation he 9 confronted.” Saucier v. Katz , 533 U.S. at 202; seeMesserschmidt v. Millender , 132 S. Ct. 10 1235, 1245 (2012). Thus, even if the right at issue “was clearly established in certain 11 respects,” a state actor “is s till entitled to qualified immunity if ‘officers of reasonable 12 competence could disagree’ on the legality of the action at issue in its particular factual 13 context.” Walcyzk v. Rio , 496 F.3d at 154 (quoting Malley v. Briggs , 475 U.S. at 341). 14 Applying these principles to this case, the district court correctly awarded Woo 15 judgment on the ground of qualified immunity. 16
17 2. Entry into the Southerland Home: Probable Cause Claim 18 On June 9, 1997, having procured a court order under New York Family Court Act 19 § 1034(2) (McKinney 1997), Timothy Woo entered the Southerland home in order to 20 conduct an investigation mandated by New York Social Services Law § 424. The latter 212SeeN.Y. Fam. Ct. Act § 1012(f)(i) (stating that child is neglected if her “physical, 1 mental or emotional condition has been impaired or is in imminent danger of becoming 2 impaired as a result of the failure of h[er] parent or other person legally responsible for h[er] 3 care to exercise a minimum degree of care”); id. § 1012(f)(i)(A) (recognizing minimum care 4 to include provision of necessary medical care). Insofar as Southerland attempts to disavow 5 responsibility for Ciara’s neglect by claiming that he periodically sought state assistance in 6 controlling the child, seeSoutherland v. City of N.Y. , 2012 WL 1662981, at *14, the 7 assertion is beside the point. Such action might mitigate Southerland’s culpability for any 8 neglect, but it does not alter the probability that Ciara was a neglected child at the time of the 9 challenged entry, when Southerland, not the State of New York, was responsible for her care. 10 7 statute requires child welfare authorities, upon receipt of a complaint of possible child abuse 1 or neglect, “to commence, within twenty-four hours, an appropriate investigation which shall 2 include an evaluation of the environment of the child named in the report and any other 3 children in the same home and a determination of the risk to such children if they continue 4 to remain in the existing home environment.” N.Y. Soc. Serv. Law § 424(6)(a). Meanwhile, 5 New York Family Court Act § 1034(2) permits courts to authorize a home entry even without 6 parental consent upon finding “probable cause to believe that an abused or neglected child 7 may be found on premises.” In procuring a § 1034(2) warrant to enter the Southerland home, 8 Woo submitted an affidavit stating that he believed that named children in the residence were 9 neglected or abused because (1) one child, sixteen-year-old Ciara Manning, had “tried to kill 10 herself by swallowing non-toxic paint,” and her custodial father, Southerland, had not 11 obtained any treatment for her; 2and (2) Southerland had refused to allow child welfare 12 workers into his home to speak to other named children on the premises. Southerland v. City 13 of N.Y. , 2012 WL 1662981, at *4 n.5 (quoting Woo application in entirety). 14
158 The fact that Woo’s challenged entry was pursuant to a court order gives rise to “a 1 presumption that it was objectively reasonable for [him] to believe” that the entry “was 2 supported by probable cause,” thereby affording him qualified immunity from suit for a 3 purported violation of the Fourth Amendment. Martinez v. City of Schenectady , 115 F.3d 4 111, 115 (2d Cir. 1997); seeMesserschmidt v. Millender , 132 S. Ct. at 1245 (“Where the 5 alleged Fourth Amendment violation involves a search or seizure pursuant to a warrant, the 6 fact that a neutral magistrate has issued a warrant is the clearest indication that the officers 7 acted in an objectively reasonable manner or, aswe have sometimes put it, in objective good 8 faith.” (internal quotation marks omitted)); Walczyk v. Rio , 496 F.3d at 155–56. To 9 overcome this presumption, plaintiffs were obliged to make “a substantial preliminary 10 showing” (1) that Woo “knowingly and intentionally, or with reckless disregard for the 11 truth,” made false statements or material omissions to secure the entry order; and (2) that the 12 allegedly false statements or material omissions were “necessary to the finding of probable 13 cause.” Franks v. Delaware , 438 U.S. 154, 155–56 (1978); accordWalcyzk v. Rio , 496 F.3d 14 at 155–56; seeMartinez v. City of Schenectady , 115 F.3d at 115. 15 Toward that end, plaintiffs alleged that Woo’s § 1034(2) application contained a 16 number of knowing or reckless misstatements and omissions that defeated probable cause. 17 In rejecting this claim, the district court relied on the corrected affidavit doctrine, which 18 affords qualified immunity if, when false material is set aside, or omitted information is 19 supplied, “the corrected affidavit would have supported a” reasonable officer’s belief that 20 probable cause existed. Martinez v. City of Schenectady , 115 F.3d at 115 (internal quotation 219 marks omitted); accordWalczyk v. Rio , 496 F.3d at 158. Reversing, the panel reasons that 1 insofar as Woo’s § 1034(2) application identified Ciara Manning as the neglected or abused 2 child to be sought in the Southerland home, th e required probable cause to believe that she 3 would be found “on premises” was defeated if Woo’s affidavit were corrected to include the 4 omitted facts that (1) school reports indicated that Ciara might be staying outside the 5 Southerland home, over the opposition of her father; and (2) Southerland had told Woo that 6 Ciara was a runaway not living at home. SeeSoutherland v. City of N.Y. , 2012 WL 7 1662981, at *13–14. 8 The conclusion that these corrections defeat probable cause to think that Ciara 9 Manning might be found in the Southerland home is wrong as a matter of law. While 10 probable cause requires more than “mere suspicion,” Mallory v. United States , 354 U.S. 449, 11 454 (1957), it does not demand “hard certainties,” Illinois v. Gates , 462 U.S. 213, 231 12 (1983). Indeed, probable cause does not even require that something be more likely so than 13 not so, the preponderance standard of proof. Seeid. at 235 (cautioning that “[f]inely-tuned 14 standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, 15 useful in formal trials, have no place” in probable cause determination). Rather, probable 16 cause is a “fluid concept,” concerned simply with “probabilities.” Id. at 232. In assessing 17 what is probable, a judicial officer must look to “‘the factual and practical considerations of 18 everyday life on which reasonable and prudent men, not legal technicians, act.’” Id. at 231 19 (quoting Brinegar v. United States , 338 U.S. 160, 175 (1949)); accordWalczyk v. Rio , 496 20 F.3d at 156–57. 2110 With these principles in mind, it is important to note exactly what New York Family 1 Court Act § 1034(2) requires be probable to authorize entry into a home, i.e. , that “an abused 2 or neglected child maybe found on premises.” N.Y. Fam. Ct. Act § 1034(2) (emphasis 3 added). In short, it need not be probable th at an abused or neglected child “will be found” 4 on the premises; it need only be probable that su ch a child “may be found” there. Among the 5 various probabilities required by law to justify searches or seizures serving different 6 purposes, § 1034(2)’s “may be found” requirement is not a particularly demanding one. See 7 United States v. Abu-Jihaad , 630 F.3d 102, 121–29 (2d Cir. 2010) (contrasting probable 8 cause requirements for criminal and national security surveillance and recognizing flexibility 9 of Constitution’s warrant requirement, such that different probable cause standards may be 10 compatible with Fourth Amendment in light of different purposes and practical 11 considerations at issue). Indeed, plaintiffs do not dispute that a “may be found” requirement 12 is consistent with the purpose being pursued, which in the case of a § 1034(2) entry is not 13 prosecutorial but protective, i.e. , promptly to locate and assist an at-risk child. See generally 14 Nicholson v. Scoppetta , 344 F.3d 154, 158 (2d Cir. 2003) (“Few matters are closer to the 15 core of a State’s essential function than the protection of its children against those who 16 would, intentionally or not, do them harm.”). Thus, while an entry into a criminal target’s 17 home to execute a warrant for his arrest requires a reasonable belief that the suspect “is 18 within,” Payton v. New York , 445 U.S. 573, 603 (1980); seeUnited States v. Lauter , 57 F.3d 19 212, 214 (2d Cir. 1995), an entry into premises to locate a neglected or abused child requires 20 a probability only that the child “may be found” on those premises. 2111 In identifying the places where a neglected or abused child “may be found,” this court 1 should clarify that there is always probable cau se to think that a child may be found at her 2 legal residence, i.e. , the residence of her custodial parent, at least absent conclusive evidence 3 to the contrary. Indeed, it is the first place that any “reasonable and prudent” person would 4 look for a child. Illinois v. Gates , 462 U.S. at 231. 5 The addition of the omitted information to Woo’s affidavit warrants no different 6 conclusion. School reports that Ciara Manning might be staying some place other than her 7 legal residence referenced, at most, a possibility, which is not enough to defeat the 8 probability that the child nevertheless “may be found” at her residence. Cf. United States v. 9
Fama , 758 F.2d 834, 838 (2d Cir. 1985) (holding that possible “innocent explanation” for 10 facts alleged “does not negate probable cause” toinfer criminality from those facts). As for 11 Southerland’s characterization of his daughter as a runaway, the law does not require that 12 such a statement be credited. See generallyRobison v. Via , 821 F.2d 913, 922 (2d Cir. 1987) 13 (stating that officials need not defer action merely because parent protests innocence or 14 promises future protection if evidence indicates parent’s past unwillingness or inability to 15 assure child’s safety and well-being). Any different conclusion would yield the perverse 16 result of an abusive parent having only to deny a child’s presence on the premises to preclude 17 a caseworker from obtaining or executing a warrant to investigate reports of abuse. Precisely 18 to avoid the risk that any such argument could be derived from the panel opinion, the court 19 needs to clarify en bancthat there is always probable cause to think that an at-risk child “may 20 be found” at the residence of her custodial parent absent conclusive evidence that she is in 213The panel suggests that Woo’s deposition testimony indicates that, at the time he 1 entered the Southerland home, he himself did not think Ciara Manning would be found on 2 the premises. SeeSoutherland v. City of N.Y. , 2012 WL 1662981, at *16. First , the panel 3 makes this observation only in explaining why a jury could find that Woo’s purported 4 misstatements and omissions were knowing and reckless. Seeid. at *15. That subjective 5 inquiry should not be confused with the objective inquiry into whether a corrected affidavit 6 would have supported probable cause. Indeed, because probable cause is an objective 7 standard, its existence can neither be established nor undermined by the subjective beliefs 8 of a particular officer. SeeTorraco v. Port Auth. of N.Y. & N.J. , 615 F.3d 129, 139 (2d Cir. 9 2010). 10 Second , even as a matter of Woo’s subjective belief, the deposition exchange does not 11 support a reasonable inference that Woo knew for a fact that Ciara Manning would not be 12 found in the Southerland home. Nothing in the record indicates that when Woo entered the 13 Southerland home he knew anything more about Ciara Manning’s whereabouts than what 14 school officials or Southerland had told him, i.e. , that Ciara might be living elsewhere or 15 have run away. For the reasons stated in text, such statements are insufficient to defeat the 16 probability that an at-risk child whose exact whereabouts are unknown nevertheless “may 17 be found” at her legal residence. 18

4Indeed, a reasonable caseworker could well have concluded that the facts in a

1 corrected affidavit established a probability that other abused or neglected children “may be 2 found” on the Southerland premises. It is undisputed that other children were then residing 3 in the Southerland home. The affidavit’s misstatement of their names—using the names of 4 12 fact somewhere else. 3 1 With that understanding of the law, a corrected affidavit in this case “discloses no 2 genuinedispute” as to the existence of probable cause to enter the Southerland home to look 3 for the identified neglected child, Ciara Manning. Walczyk v. Rio , 496 F.3d at 158 4 (emphasis in original). In any event, because five judges of this court hold that view of the 5 law, the panel can hardly maintain that no “officer[] of reasonable competence” could have 6 reached the same conclusion. Malley v. Briggs , 475 U.S. at 341; Walczyk v. Rio , 496 F.3d 7 at 154 (collecting cases). Thus, Woo is plainly entitled to qualified immunity from plaintiffs’ 8 Fourth Amendment illegal entry claims. 4 9Ciara Manning’s step-siblings residing with her mother rather than the names of her step1 siblings residing with Southerland, seeSoutherland v. City of N.Y. , 2012 WL 1662981, at 2 *13—is immaterial to that essential fact. Further, those children shared the same custodial 3 residence as Ciara, a child who had expressed thoughts of suicide, swallowed a can of paint 4 at school, and purportedly run away from home. This is sufficient to permit a reasonable 5 caseworker to think that something was amiss in the Southerland home that could affect any 6 child living there. Add to these facts the custodial father’s “fail[ure] to follow through w[ith] 7 mental health referrals” for the suicidal child, id. at *2 (quoting Child Protective Services 8 intake report), and his apparent ignorance as to that child’s whereabouts, and the probability 9 increases that what is amiss is indicative of parental neglect (if not yet abuse) that would 10 extend to any child in the father’s care. In such circumstances, even if Southerland had not 11 expressly “refused” Woo entry into the home, id. at *4 n.5, Southerland’s purported inability 12 to identify a convenient time for a home visit would reasonably be viewed as stalling, 13 reinforcing the probability that other children who were neglected—or worse—would be 14 found in his home. I do not pursue the point further, however, because my main concern 15 with the panel decision pertains to its determination that a corrected affidavit failed to state 16 probable cause to believe that Ciara Manning “may be found” in the Southerland home. 17 13 3. Removal of the Southerland Children: Due Process and Unreasonable Seizure Claims 1 The panel concludes that at the time of the challenged removal, it was clearly 2 established under both the Due Process Clause and the Fourth Amendment that, absent 3 exigent circumstances, Woo could not remove the Southerland children from their father’s 4 home without a court removal order. SeeSoutherland v. City of N.Y. , 2012 WL 1662981, 5 at *18. To the extent the right at stake is procedural due process, the panel references dual 6 underlying liberty interests, one, by parents, “‘in the care, custody and management of their 7 children,’” id. at *10 (quoting Tenenbaum v. Williams , 193 F.3d at 593); and the other, by 8 children, “‘in not being dislocated from the emotional attachments that derive from the 9 intimacy of daily family association,’” id. (quoting Kia P. v. McIntyre , 667 F.3d at 759). 10 The problem with the panel’s due process analysis, as I noted at the outset of this 11 opinion, is that it derives entirely from cases in which the challenged intrusion into family 125In Nicholson v. Scoppetta , 344 F.3d 154, the class of plaintiffs raising a due process 1 challenge to the ex parteremoval of children from the custody of a battered parent was broad 2 enough to include parents challenging removals approved by New York courts, seeid. at 162 3 n.4. This court did not need to reach, let al one decide, whether such parents could maintain 4 a due process action because, on certified questions, the New York Court of Appeals 5 effectively resolved the case favorably to plaintiffs through its interpretation of the term 6 “neglected child” in New York Family Court Act § 1012(f), (h). SeeNicholson v. Scoppetta , 7 3 N.Y.3d 357, 367–72, 787 N.Y.S.2d 196, 200–03 (2004). 8 14 liberty was based on suspicions of abuse or neglect that were eventually shown to be 1 unfounded, seeKia P. v. McIntyre , 235 F.3d at 71; Tenenbaum v. Williams , 193 F.3d at 587; 2 Hurlman v. Rice , 927 F.2d at 76, or at least were never confirmed in a state judicial 3 proceeding, seeDuchesne v. Sugarman , 566 F.2d at 823. In each of these cases, parents and 4 children who had maintained a recognizable family bond were allowed to sue for intrusions 5 that allegedly violated their procedural due process rights. The panel cites to no case, 6 however, in which an adjudicatedabusive parent, or the children he abused, have been 7 permitted to pursue claims that officials who stopped the abuse did so in violation of 8 procedural due process. 5Nor does the panel explain why the cited precedent should apply 9 equally in such circumstances. In fact, it should not. 10 When, as here, a state court adjudicates a parent to have been so abusive of his 11 children as to deny him further custody, it effectively finds that the parent, by his abuse, has 12 himself severed the familial bond that was the source of any liberty interest for which he and 13 his children might claim procedural due process rights. Thus, it is not the Family Court’s 14 abuse determination that extinguished any liberty interest these plaintiffs may once have 15 derived from a common family bond but, rather, Southerland’s actual abuse that did so. For 166The panel recognizes an open legal question as to whether an abusive parent or 1 abused child can pursue a substantivedue process claim under such circumstances. See 2 Southerland v. City of N.Y. , 2012 WL 1662981, at *6 n.9. 3 15 this reason, I would conclude that an adjudicated abusive parent, such as Southerland, cannot 1 sue the caseworker who rescued children from further abuse on either substantive or 2 procedural due process grounds. To hold otherwise would imply that an abusive parent, or 3 abused children, have a liberty interest in continued abuse. 6 4 The conclusion here urged would foreclose due process removal claims against child 5 welfare workers in only a small category of cases: those in which a parent has been 6 adjudicated so abusive or neglectful as to be denied custody. The conclusion finds an 7 analogy in our precedent holding that criminal defendants, once convicted, will not be heard 8 to challenge whether their arrest was supported by probable cause to believe they had 9 committed the crime of conviction. SeeCameron v. Fogarty , 806 F.2d at 388–89. A number 10 of our sister circuits have similarly ruled, citing favorably to Cameron . SeeHoward v. 11 Dickerson , 34 F.3d 978, 981 n.2 (10th Cir. 1994); Hoffman v. Moss , 929 F.2d 692 (Table), 12 1991 WL 41503, at *1 (4th Cir. 1991) (unpublished opinion); Malady v. Crunk , 902 F.2d 10, 13 11 (8th Cir. 1990); Walker v. Schaeffer , 854 F.2d 138, 143 (6th Cir. 1988); see alsoKing v. 14 Goldsmith , 897 F.2d 885, 886 (7th Cir. 1990) (assuming, without deciding, that Cameron 15 was correctly decided). But seeRose v. Bartle , 871 F.2d 331, 351 (3d Cir. 1989) (noting, in 16 dictum , doubts as to “policy determinations underlying Cameron”); Brumfield v. Jones , 849 17 F.2d 152, 155 n.4 (5th Cir. 1988) (noting, without resolving, possible tension between 18 Cameronand Brown v. Edwards , 721 F.2d 1442, 1447–48 & n.8 (5th Cir. 1984)). 197Cameronfurther reasoned that the availability of the exclusionary rule in criminal 1 proceedings “lessens the need for § 1983 actions as a deterrent to the making of arrests on 2 less than probable cause.” Cameron v. Fogarty , 806 F.2d at 388. Although the exclusionary 3 16 Cameronitself derived from City of Newport v. Fact Concerts, Inc. , 453 U.S. 247 1 (1981), in which the Supreme Court recognized that Congress, in enacting § 1983, 2 “expressed no intention to do away with the immunities afforded state officials at common 3 law.” Id. at 258; seeFilarsky v. Delia , 132 S. Ct. at 1661–62. The common law—with 4 common sense—had long recognized that once guilt is proved, “the injury” to a defendant’s 5 personal liberty “caused solely by prematurity of arrest is, of itself, insubstantial,” and 6 therefore not legally cognizable. Cameron v. Fogarty , 806 F.2d at 388. 7 Common law had no occasion to apply this principle to child removal proceedings, 8 a legal innovation arising largely in the nineteenth century. SeeNaomi Cahn, Perfect 9 Substitutes or the Real Thing? , 52 Duke L.J. 1077, 1090–91 (2003) (dating state removal of 10 abused and neglected children in the United States to late nineteenth century); Developments 11 in the Law: The Constitution and the Family , 93 Harv. L. Rev. 1156, 1221–22 (1980) 12 (recognizing that by early nineteenth century, so me English chancery courts exercised parens 13 patriaepower to remove children from custody of abusive or neglectful parents). 14 Nevertheless, Cameron ’s reasoning and the common law defense of conviction apply with 15 equal force to child custody determinations. Once a parent is found guilty of abuse and 16 neglect serious enough to warrant a court denial of custody, any “injury caused solely by 17 prematurity of [the removal of his children] is , of itself, insubstantial.” Cameron v. Fogarty , 18 806 F.2d at 388. 7 19rule appears not to be available in New York child removal proceedings, seeIn re Diane P. , 1 110 A.D.2d 354, 356, 494 N.Y.S.2d 881, 883 (2d Dep’t 1985), it was also not available in 2 proceedings at common law, seeUnited States v. Blue , 384 U.S. 251, 255 (1966) (noting that 3 “general common-law practice [wa]s to admit evidence despite its illegal origins”). If the 4 deterrent effect of the exclusionary rule in criminal proceedings did not inform the 5 development of the common law defense of conviction, it would surely be irrelevant to child 6 custody proceedings. 7 17 Indeed, the injury of premature removal to an abusive parent may be less substantial 1 than the injury of premature arrest to a convicted felon. While a felon’s interest in his own 2 liberty is exclusive to himself, a parent’s liberty interest in a family relationship is shared 3 with his children and based on an expectation of parental care, not abuse. Thus, an 4 adjudicated abusive parent’s claimed liberty interest in continuing an abusive relationship 5 with his children is certainly de minimis , if not non-existent. The same conclusion obtains 6 with respect to abused children claiming any lib erty interest in remaining in what has been 7 adjudicated to have been an abusive relationship. 8 This ground for affirming the district court’ s grant of summary judgment on plaintiffs’ 9 due process claim would extend Cameron , a matter that merits careful consideration. But it 10 would be far worse to conclude, as the panel does without any consideration of Cameron ’s 11 reasoning, that adjudicated abusive parents and the children they abused can maintain 12 constitutional claims against child welfare workers for prematurely stopping the abuse. 13 Although defendants themselves did not raise a Cameron -based objection to suit, a court may 14 affirm summary judgment for any reason supported in the record. SeeLee v. Kemna , 534 15 U.S. 362, 391 (2002) (“[I]t is well settled that an appellate tribunal may affirm a trial court’s 16 judgment on any ground supported by the record.”); 10 Ellicott Square Court Corp. v. 178In 1999, i.e. , after the removal here at issue, this court clarified that the imminent 1 danger standard was not satisfied if there was “reasonable time consistent with the safety of 2 the child to obtain a judicial order” before effecting the removal. Tenenbaum v. Williams , 3 193 F.3d at 596. 4 18 Mountain Valley Indem. Co. , 634 F.3d 112, 125 (2d Cir. 2011). Such an affirmance is 1 particularly warranted where the challenged judgment is based on qualified immunity, the 2 very purpose of which is to “permit the defeat of insubstantial claims without resort to trial.” 3 Harlow v. Fitzgerald , 457 U.S. at 813; accordJenkins v. City of N.Y. , 478 F.3d 76, 87 n.9 4 (2d Cir. 2007). 5 No different conclusion should obtain because the Southerland children also cast their 6 removal as an unreasonable seizure under the Fourth Amendment. The panel assumes that 7 the children could persuade a reasonable jury that it was constitutionally unreasonable for 8 Woo to remove them from the Southerland home without a court order in the absence of 9 evidence that they were in imminent danger of harm on those premises. SeeSoutherland v. 10 City of N.Y. , 2012 WL 1662981, at *28. 8But once the Family Court, after a full trial, 11 determined that the children were at risk of such harm in their father’s custody, thereby 12 precluding their return, any Fourth Amendment injury “caused solely by prematurity of [the 13 removal] is, of itself, insubstantial” and, theref ore, should not be recognized at law. Cameron 14 v. Fogarty , 806 F.2d at 388. In short, once a home environment is adjudicated to have been 15 abusive, no responsible society would accept as objectively reasonable children’s claims that 16 they had a cognizable constitutional right not to be prematurely removed from the premises. 17 Cf. California v. Greenwood , 486 U.S. 35, 39 (1988) (collecting cases recognizing that 1819 Fourth Amendment protects only subjective expectations of privacy that “society accepts as 1 objectively reasonable”). 2 Even if plaintiffs could state a cognizable constitutional claim under either the Fourth 3 or Fourteenth Amendment with respect to the children’s removal—which they cannot—the 4 qualified immunity question would not be whether a reasonable jurycould conclude that the 5 children were not at imminent risk of harm but, rather, whether a reasonable caseworker in 6 Woo’s position could have concluded that they were. SeeMesserschmidt v. Millender , 132 7 S. Ct. at 1246; Malley v. Briggs , 475 U.S. at 341; Walczyk v. Rio , 496 F.3d at 154 (requiring 8 assessment of qualified immunity in “particular factual context” rather than in abstract). 9 Even setting aside the considerable evidence of neglect that Woo says he confronted upon 10 entering the Southerland home and that Southerland disputes, seeSoutherland v. City of 11
N.Y. , 2012 WL 1662981, at *4, some caseworkers of reasonable competence could conclude 12 from the otherwise undisputed evidence that one or more of the Southerland children were 13 at risk of imminent harm in their father’s custody. 14 As already noted, before entering Southerland’s home, caseworkers knew from school 15 counselors that one of Southerland’s children, Ciara, had expressed thoughts of suicide and 16 engaged in self-destructive behavior. Whatever the source of Ciara’s troubles, Southerland 17 had not secured care for her and was, in fact, dismissive of her need for care. Seeid. at 9. 18 To the extent Southerland sought to excuse hi s neglect by claiming that Ciara had left home, 19 this cannot alter the fact that caseworkers were looking for an at-risk child who was in 20 Southerland’s legal custody. That the custodial parent purported not to know the 2120 whereabouts of such a child would heighten, not minimize, a reasonable caseworker’s 1 concern as to Southerland’s ability to care for children in his custody. That concern would 2 be magnified, moreover, when, upon entry into the Southerland home, caseworkers found 3 a child on the premises, nine-year-old Venus Southerland, with an untreated puncture wound 4 to her foot from stepping on a nail, and saw no sign that Southerland planned to secure the 5 treatment necessary to protect the child against tetanus. SeeEx. D to Silverberg Decl. at 6, 6 ECF No. 168-7. In these circumstances, and in the absence of clearly established law to the 7 contrary, reasonable caseworkers could certainly have viewed Venus as facing imminent 8 serious harm if she was not removed from the premises and promptly afforded medical care. 9 SeeMesserschmidt v. Millender , 132 S. Ct. at 1245; Malley v. Briggs , 475 U.S. at 341. 10 Thus, Woo is at a minimum entitled to qualified immunity for removing Venus from 11 Southerland’s home. 12 As for Woo’s removal of the other Southerland children, this court appears never to 13 have ruled as to whether the risk of imminent harm required to effect a warrantless removal 14 is child-specific. We have provided no guidance to a caseworker who discovers one injured, 15 malnourished, or severely beaten child in needof immediate care as to whether (1) he can 16 effect a warrantless removal of all children found in the same household, or (2) he can 17 remove only the one child and must leave other children behind. Tenenbaum might be 18 understood to instruct caseworkers not to attempt to make such decisions if there is time to 19 seek judicial authorization. See Tenenbaum v. Williams , 193 F.3d at 596. But Tenenbaum 20 was not decided at the time of the removal at issue and, even now, it does not tell 2121 caseworkers who do not have time to secure judicial authorization what removal decisions 1 will be lawful and unlawful with respect to the removal of a number of children when a risk 2 of imminent harm has been identified as to one. 3 Thus, in June 1997, when Woo removed the Southerland children from their father’s 4 home, it was possible for “officers of reasonable competence” to “disagree” as to whether 5 the discovery that Venus Southerland was at risk of serious imminent harm unless removed 6 for prompt medical treatment sufficed to s upport the warrantless removal of all children in 7 Southerland’s home. Malley v. Briggs , 475 U.S. at 341; seeWalcyzk v. Rio , 496 F.3d at 8 154. In the face of such possible reasonable disagreement—that is, in the absence of a 9 clearly established statutory or constitutional rule of which a reasonable caseworker would 10 have been aware, seeHarlow v. Fitzgerald , 457 U.S. at 818—Woo is entitled to qualified 11 immunity even from cognizable claims. 12 This is, however, a secondary point. For the reasons stated, the court should conclude 13 that plaintiffs state no cognizable due process or Fourth Amendment claims in connection 14 with the challenged removal. By analogy to Cameron v. Fogarty , 806 F.2d at 388–89, the 15 court should rule that an adjudicated abusive father and the children he abused cannot seek 16 damages from a child welfare worker for prematurely removing the children from the abusive 17 home. 18 * * * 19 By refusing to convene en banc , a majority of this court, no less than the panel itself, 20 tells a child welfare worker that he may have to pay money damages to an adjudicated 2122 abusive father for rescuing children from his abusive custody. Further, the court tells the 1 worker that he may also have to pay damages to the abused children he rescued on some 2 theory that the caseworker did not yet appreciate that the circumstances were 3 exigent—though, in fact, they were. Such possible judgments are exactly what the doctrine 4 of qualified immunity is intended to protect against. 5 Rather than allow this case to go forward, this court should clarify two principles of 6 law: (1) there is always probable cause to look for an at-risk child in the home of his or her 7 custodial parent, at least absent conclusive evidence to the contrary; and (2) once a parent has 8 been adjudicated to have so abused and neglected his children as to be denied custody, 9 neither the adjudicated abusive parent nor the children he abused can sue the caseworker who 10 effected the initial removal for money damages based on due process or Fourth Amendment 11 claims that the removal was premature. With these principles clarified, there is no question 12 that the defendant caseworker, Timothy Woo, is entitled to summary judgment on the ground 13 of qualified immunity. Accordingly, I respectfully disagree with the panel decision to 14 reverse the award of summary judgment in thiscase, and I dissent from the court’s decision 15 not to review that reversal en banc

. 16
17
18
191 DENNIS JACOBS, Chief Judge , with whom Judge CABRANES, Judge 1 RAGGI, Judge WESLEY, and Judge LIVINGSTON join, dissenting 2 from the denial of rehearing in banc : 3 I concur entirely in Judge Raggi’s dissenting opinion. 4 I dissent separately to make some additional points. 5 6

**I** 7 Under Section 1983, personal liability may not be 8 imposed on a government actor unless [1] his conduct 9 violated “clearly established constitutional rights” and [2] 10 it would have been unreasonable for him to have believed 11 otherwise. Holcomb v. Lykens , 337 F.3d 217, 220 (2d Cir. 12 2003) (quoting Weyant v. Okst , 101 F.3d 845, 857 (2d Cir. 13 1996)). Liability is precluded if government actors “of 14 reasonable competence could disagree on the legality of the 15 action at issue in its particular factual context.” 16 Manganiello v. City of N.Y. , 612 F.3d 149, 165 (2d Cir. 17 2010) (internal quotation mark omitted). “When properly 18 applied, [qualified immunity] protects all but the plainly 19 incompetent or those who knowingly violate the law.” 20 Ashcroft v. al-Kidd , 131 S. Ct. 2074, 2085 (2011) (internal 21 quotation marks omitted). 222 It is easy to demonstrate that the panel opinion has 1 jumped the rails. Not only could other reasonably competent 2 child welfare workers conclude (as Mr. Woo did) that the 3 Southerland household constituted an “emergency,” but Mr. 4 Woo’s supervisor reached that very conclusion in this very 5 instance. See Southerland v. City of N.Y. , Nos. 07-4449-cv 6 (L), 07-4450-cv (CON), 2012 WL 1662981, at *4 (2d Cir. May 7 14, 2012) (recounting that Mr. Woo applied for an order to 8 enter the Southerland apartment “at the direction of [his] 9 supervisor” and that, based on Mr. Woo’s observations inside 10 the apartment, “[Mr.] Woo and his supervisor concluded that 11 the children’s safety was threatened, and [Mr. Woo’s 12 supervisor] directed [Mr.] Woo to remove the children from 13 the home”); see also Messerschmidt v. Millender , 132 S. Ct. 14 1235, 1250 (2012) (that an officer obtained the approval of 15 a superior before applying for a warrant “is certainly 16 pertinent in assessing whether [he] could have held a 17 reasonable belief that the warrant was supported by probable 18 cause”). And the Family Court would not have taken the 19 children from Southerland unless a hearing confirmed Mr. 20 Woo’s professional judgment that the conditions created by 21 Southerland were unsafe for children. See In re Ciara M. , 223 708 N.Y.S.2d 717, 719 (App. Div. 2d Dep’t) (affirming the 1 Family Court’s finding that Southerland sexually and 2 physically abused his children), leave to appeal denied , 95 3 N.Y.2d 767 (2000). These circumstances should have disposed 4 of this case years ago on a basis that would require no 5 opinion. 6
7

**II** 8 The State of New York deemed Southerland unfit to keep 9 custody of his children by reason of his neglect, beatings 10 and sexual abuse. Yet, in a way that seems unaccountable, 11 the panel opinion allows him to seek damages for loss of 12 consortium against the child welfare worker who temporarily 13 removed the children from his home. And it allows the 14 abused children to sue their rescuer for allegedly effecting 15 the rescue prematurely. Our legal system cannot afford such 16 a result. In my view, Mr. Woo conducted himself as a 17 reasonable and conscientious child services worker. 18
**Fourth Amendment.** The panel concludes that Mr. Woo is 19 not entitled even to qualified immunity on the plaintiffs’ 20 Fourth Amendment unlawful search claims, on the ground that 21 errors and omissions in his affidavit for an Order 224 Authorizing Entry to Southerland’s apartment would, if 1 corrected, have defeated probable cause. The panel finds 2 fault with Mr. Woo’s affidavit because: [1] information is 3 omitted suggesting that Ciara (a daughter who drank a can of 4 paint and later complained of molestation by her father) 5 might not be found at Southerland’s apartment because she 6 was said to have run away; [2] Ciara’s swallowing of a can 7 of paint was characterized as a suicide attempt; [3] no 8 mention is made that Ciara swallowed the paint at school 9 (rather than in Southerland’s apartment); and [4] the 10 children listed were the six children living with 11 Southerland’s former “common-law wife,” Diane Manning, not 12 the six children living with Southerland. See Southerland , 13 2012 WL 1662981 , at *13-14, *16. 14 I find it uncontroversial (to say the least) that a 15 child welfare worker has probable cause to believe that a 16 child may be found on the premises of the residence of her 17 custodial parent. Moreover, Southerland himself would be 18 the ultimate source for any report that Ciara had “run 19 away.” Even ifMr. Woo believed Southerland’s report that 20 Ciara had run away, he still would have had cause to believe 21 that she might be found in Southerland’s apartment--she 225 could have returned home, or been returned, or her father 1 may have lied, and she might have been there all along 2 enduring his sexual abuse. Mr. Woo cannot be faulted for 3 starting his investigation of child abuse at the child’s 4 legal residence. And one must hope that child abusers do 5 not learn that probable cause for a warrant can be defeated 6 by a parent’s assurance that his abused child is no longer 7 residing at home. 8 As to the affidavit’s characterization of Ciara’s paint 9 swallowing, it seems obvious that this was a suicide 10 attempt, or at least an ideation of suicide that required 11 prompt intervention. That is how it was understood by the 12 guidance counselor who reported the incident. See id. at 13 *3. It makes no difference whether the incident took place 14 at school or at Southerland’s apartment; either way, 15 Southerland’s failure to seek medical attention for his 16 daughter bespeaks neglect. 17 The panel criticizes Mr. Woo for listing the wrong 18 children’s names on the application, as if this were an 19 obvious and decisive blunder. Given that there are at least 20 thirteen children and five adults in this decidedly 21 improvised family structure, such an error cannot render the 226 affidavit fatally defective. Regardless of the children’s 1 names, Mr. Woo’s application accurately conveyed the basis 2 for his reasonable belief that probable cause existed to 3 think that children in Southerland’s apartment were being 4 neglected-- as in fact they were . Because there is no 5

“ genuine dispute that a magistrate would have issued the 6 warrant on the basis of the corrected affidavit[],” Mr. Woo 7 was entitled to judgment as a matter of law. Walczyk v. 8 Rio , 496 F.3d 139, 158 (2d Cir. 2007) (internal quotation 9 mark omitted). 10 Even if the supposed errors in Mr. Woo’s affidavit were 11 essential to the finding of probable cause--and they plainly 12 were not--there is no basis for thinking that any of the 13 errors were made out of malice or recklessness, as opposed 14 to justified haste. Mr. Woo is entitled to qualified 15 immunity on that basis alone. See Golino v. City of New 16
Haven , 950 F.2d 864, 870-71 (2d Cir. 1991) (to sustain a 17 Section 1983 claim based on errors in a warrant affidavit, a 18 plaintiff must show “that the affiant knowingly and 19 intentionally, or with reckless disregard for the truth, 20 made a false statement in his affidavit and that the 21 allegedly false statement was necessary to the finding of 221 The panel opinion suggests that Mr. Woo’s answer to a deposition question concerning his reason for entering the Southerland apartment implies that he knew Ciara Manning would not be found there. Not so: Mr. Woo explained that he sought to enter the apartment to look for “[t]he Manning children,” which obviously includes Ciara. Southerland , 2012 WL 1662981, at *16 (brackets in original). 7 probable cause” (internal quotation mark omitted)). 1 Plaintiffs never alleged malice, and there is no such record 2 evidence. 1 Absent some such evidence, there can be no 3 genuine issue of material fact necessitating a trial on 4 plaintiffs’ claims of unlawful search. 5 **Due Process and Seizure.** As to the claims of 6 procedural due process and Fourth Amendment unlawful 7 seizure, the panel holds that, at the time the children were 8 removed, it was clearly established law that officials could 9 not remove a child from the custody of a parent (without 10 consent or a prior court order) absent emergency 11 circumstances. Southerland , 2012 WL 1662981, at *18; see 12 also Hurlman v. Rice , 927 F.2d 74, 80 (2d Cir. 1991). 13 But Mr. Woo as well as his supervisor (who ordered the 14 removal) concluded that an emergency existed. Based on Mr. 15 Woo’s observations and what he knew, he reasonably perceived 16 a pattern of neglect and abuse. The panel assumes (though I 17 do not) that a reasonable jury would conclude that Mr. Woo-- 188 who was found in Family Court to have truthfully reported 1 Southerland’s sexual and corporal abuse--is lying about 2 perceived evidence of neglect, whereas Southerland--who was 3 found to have lied in Family Court when he denied the abuse4 -is telling the truth about maintaining a home for the 5 children that was tidy, safe, and stocked with nourishing 6 food. But in any event, a pattern of neglect was manifested 7 by facts that cannot be disputed: Southerland’s reported 8 failure to seek medical attention for Ciara after her 9 suicide attempt, or for Venus, whom caseworkers found 10 limping from a foot injury she incurred after stepping on an 11 exposed nail. As the opinion concedes, this Circuit has 12 never “set forth exhaustively the types of factual 13 circumstances that constitute imminent danger justifying 14 emergency removal.” Southerland , 2012 WL 1662981, at *17. 15 That seems to me to be a wise forbearance. But here, where 16 no medical treatment was sought notwithstanding that the 17 Southerland children were at risk for suicide and lockjaw **,** 18 it was not objectively unreasonable for Mr. Woo to believe 19 that the children were “bereft of adequate care or 20 supervision” and that their removal was therefore justified. 21 Robison v. Via , 821 F.2d 913, 922 (2d Cir. 1987)

. The 229 panel’s contrary decision undermines our precedent, which 1 has “emphasize[d] . . . the importance of the availability 2 of qualified immunity where child welfare workers are 3 seeking to protect children from abuse.” Tenenbaum v. 4 Williams , 193 F.3d 581, 605 (2d Cir. 1999); see also id. 5 (“If caseworkers of reasonable competence could disagree on 6 the legality of a defendant’s actions their behavior is 7 protected.” (internal quotation marks and brackets 8 omitted)). 9
10

**III** 11 Nothing can account for such an opinion and result 12 except the panel’s tacit assumption that Mr. Woo is merely a 13 nominal defendant, that the City of New York will take on 14 his defense and indemnify him for any judgment, and that 15 litigation like this is not really a claim against the 16 individual but is in effect an instrument for developing 17 ever more ramified constitutional principles and for 18 policing governmental compliance with these constitutional 19 developments. This is an almost-complete misconception of 20 Section 1983 claims against individuals. 21 An individual defendant has at stake his savings, his 2210 pension, the equity in his home, the kids’ college fund: 1 This should tell us something about the threshold of 2 liability. Properly applied, Section 1983 punishes 3 intentional and egregious violations of constitutional 4 rights while respecting the discretion of government actors, 5 and tolerating their good faith errors and misjudgments. 6
See Defore v. Premore , 86 F.3d 48, 50 (2d Cir. 1996) (per 7 curiam) (discussing the “importance of the defense of 8 qualified immunity to insure that publicly employed 9 caseworkers have adequate latitude to exercise their 10 professional judgment in matters of child welfare”). 11 The drift of the law that has carried this case along 12 has been to ignore the standard appropriate to liability of 13 individuals, and to assume that a Section 1983 action is in 14 effect a suit not against the individual defendant but 15 against the government subdivision that employs him. This 16 buried assumption inheres in other cases; but this case 17 raises it to the surface. There are several things wrong 18 with that approach. 19

! Municipalities are not liable under Section 1983 20 for the actions of their employees based on respondeat 21 superior ; municipalities are liable only if the violation of 2211 individual rights results from the “government’s policy or 1 custom.” Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 691- 2 94 (1978). The idea that the municipality or other state 3 subdivision is the real defendant in a case against the 4 individual is thus an end-run around Monell

. 5

! We have come to treat municipal indemnification 6 like insurance, and in that way discount the harshness of a 7 potential damages award against the individual government 8 worker. Of course, juries are not permitted to consider the 9 availability of insurance in assessing fault. See, e.g. , 10 Fed. R. Evid. 411; Salm v. Moses , 13 N.Y.3d 816, 817 (2009) 11 (memorandum). One reason is the risk that jurors would 12 disregard controlling principles in order to compensate 13 plaintiffs without valid claims and over-compensate those 14 whose claims are valid. See Loughlin v. Brassil , 79 N.E. 15 854, 857 (N.Y. 1907) (observing that “in the case of an 16 individual defendant it might make it much easier to find an 17 adverse verdict if the jury understood that an insurance 18 company would be compelled to pay the verdict”). 19 Universally, juries are insulated from the temptation to 20 distort the law in that way; it would be healthy if we 21 recognized the comparable risk that municipal 2212 indemnification poses to judicial consideration of Section 1 1983 claims. 2

! The premise--that a suit against an individual 3 government employee is in substance a suit against his 4 employer--is also wrong. In the City of New York (and 5 doubtless in some other political subdivisions of this 6 Circuit), the government supplies defense counsel and pays 7 the judgment--except in the egregious cases to which alone 8 Section 1983 should apply. But this Circuit includes scores 9 of counties and hundreds of towns and municipalities; and 10 there are thousands of political subdivisions in the nation. 11 Not all of them will indemnify their employees for Section 12 1983 judgments ; many cannot even afford to furnish a 13 defense; some can barely keep the school open. Counterparts 14 to Mr. Woo, who are employed elsewhere, face ruin and 15 bankruptcy in Section 1983 cases. 16

! There is a big gap between the egregious conduct 17 that supports Section 1983 liability and merely imperfect or 18 negligent conduct. Some would fill that gap by an 19 assumption, contrary to fact, that government workers are 20 all constitutional law professors, or at least lawyers--or 21 that they would be improved if they were. Such persons fail 2213 to understand that child welfare workers, teachers, prison 1 guards, probation officers, and police learn and practice 2 the skills of their own demanding professions, and do not in 3 the usual course absorb lengthy opinions of this Court, not 4 all of which are illuminating. 5

! The panel’s opinion and the assumptions that 6 animate it have effects that reach beyond Mr. Woo and the 7 City of New York as his employer: There is a substantial 8 and direct impact on public safety. The imposition of 9 personal liability, particularly in jurisdictions where the 10 judgment is not indemnified or insured, creates an incentive 11 for child welfare workers (and other government employees 12 charged with protecting the public) not to act. When the 13 panel opinion in this case is considered together with 14 DeShaney v. Winnebago County Department of Social Services , 15 489 U.S. 189 (1989), holding that state officials have no 16 constitutional duty to protect children against domestic 17 abuse, a perverse incentive is created. A child welfare 18 worker is shielded from liability when she recklessly fails 19 to protect abused children, but she is exposed to personal 20 liability when she acts in good faith to protect them. 21 Faced with these choices, a rational child welfare worker 2214 will err on the side of caution every time--and children who 1 otherwise would have been rescued from dangerous and abusive 2 situations will live in peril. 3
4

**IV** 5 We should appreciate that conscientious child welfare 6 workers must promptly make anguished decisions. As judges, 7 we can weigh the legal issues presented and draft at 8 leisure, assisted by a journal of law clerks. Mr. Woo had 9 none of these advantages; and he acted as (one hopes) any 10 dutiful child welfare worker in his position would have 11 done. Not only was Mr. Woo not so “plainly incompetent” as 12 to forfeit the protections of qualified immunity, al-Kidd , 13 131 S. Ct. at 2085 (quoting Malley v. Briggs , 475 U.S. 335, 14 341 (1986)), his judgment that Southerland was abusing or 15 neglecting his children was spot on, and was vindicated by 16 the Family Court’s findings of sexual and physical abuse. 17 The panel would send Mr. Woo to a jury for an 18 assessment of his liability and the damages he should pay. 19 I would shake his hand. 20
21