*

 The Clerk of Court is directed to amend the official

caption in accordance with the foregoing. 

07-4449-cv (L)

Southerland v. City of New York

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2008

4 (Argued: April 21, 2009 Decided: June 10, 2011)

5

6 Docket Nos. 07-4449-cv (L), 07-4450-cv (CON)

7 -------------------------------------

8 SONNY B. SOUTHERLAND, SR., individually and as parent and natural

9 guardian of VENUS SOUTHERLAND, SONNY B. SOUTHERLAND, JR.,

10 NATHANIEL SOUTHERLAND, EMMANUEL FELIX, KIAM FELIX, and ELIZABETH

11 FELIX,

12 Plaintiffs-Appellants,

13 - v -

14 CITY OF NEW YORK, TIMOTHY WOO, JOHN DOES 1-9,

Defendants-Appellees.* 15

16 -------------------------------------

17 Before: KEARSE, SACK, and HALL, Circuit Judges.

18

19 Consolidated appeals from a summary judgment entered by

20 the United States District Court for the Eastern District of New

21 York (Charles P. Sifton, Judge) in favor of, inter alios, the

22 defendant Woo. The plaintiffs -- a father and his children --

23 bring various claims under 42 U.S.C. § 1983 asserting that Woo, a

24 children's services caseworker employed by the defendant City of

25 New York, entered their home unlawfully and effected an

26 unconstitutional removal of the children into state custody. The

27 district court concluded that Woo was entitled to qualified
2

1 immunity with respect to all of the claims against him. We

2 disagree. As to each claim that has been preserved for appeal:

3 Vacated and remanded.

4 MICHAEL G. O'NEILL, New York, N.Y., for

5 Plaintiffs-Appellants Venus S., Sonny

6 B.S. Jr., Nathaniel S., Emmanuel F.,

7 Kiam F., and Elizabeth F.

8

9 SONNY B. SOUTHERLAND, Brooklyn, N.Y.,

10 Plaintiff-Appellant, pro se.

11 JULIAN L. KALKSTEIN, City of New York

12 (Michael A. Cardozo, Corporation

13 Counsel; Larry A. Sonnenshein, of

14 counsel), New York, N.Y., for

15 Defendants-Appellees.

16

17 SACK, Circuit Judge:

18 This lawsuit involves a man and a woman -- the

19 plaintiff Sonny B. Southerland Sr. ("Southerland") and non-party

20 Diane Manning -- two groups of children, and a caseworker's

21 apparent confusion between the two groups. Plaintiff Ciara

22 Manning is the daughter of Southerland and Diane Manning. Ciara

23 was supposed to be living with Southerland at the time in

24 question, but in fact had left to live with a friend.

25 In addition to Ciara, plaintiff Southerland fathered,

26 by one or more women other than Diane Manning, six other

27 children: the plaintiffs Venus Southerland, Sonny B. Southerland

28 Jr., Nathaniel Southerland, Emmanuel Felix, Kiam Felix, and

29 Elizabeth Felix (together, the "Southerland Children"). At the

30 time of the principal events in question, the Southerland

31 Children, unlike Ciara, were living with their father. 
3

1 Diane Manning also allegedly bore, by one or more men

2 other than Southerland, six children other than Ciara: Eric

3 Anderson, Richy Anderson, Felicia Anderson, Erica Anderson,

4 Michael Manning, and Miracle Manning (together, the "Manning

5 Children"). They lived with Diane and, like her, are not parties

6 to this lawsuit. 

7 In May 1997, the defendant Timothy Woo, a caseworker in

8 the Brooklyn Field Office of the New York City Administration for

9 Children's Services ("ACS"), was assigned to investigate a report

10 by a school counselor about then-sixteen-year-old Ciara Manning. 

11 School staff had thought Ciara to be acting strangely at school. 

12 After being unable, despite repeated attempts, to gain

13 entry to the Southerland home to investigate the report, Woo

14 sought and obtained from the Kings County Family Court an order

15 authorizing entry into the apartment. Woo's application to

16 obtain that order contained several misstatements of fact, which

17 suggested Woo's possible confusion about which of the children

18 resided with Southerland.

19 Under the authority of the Family Court's order, Woo

20 then entered the Southerland apartment. Ciara was not there;

21 some of Southerland's other children who lived with him were. 

22 Based on what Woo perceived to be the poor condition of the home

23 and of the Southerland Children, and his other observations from

24 the investigation undertaken to that date, Woo and his supervisor

25 decided to carry out an immediate removal of the children into

26 ACS custody.
1

 We refer throughout this opinion to asserted Fourth

Amendment rights of the plaintiffs. Inasmuch as the defendants

are state and not federal actors, of course, whatever rights the

plaintiffs have are "under the Fourth Amendment, as applied to

the States under the Fourteenth Amendment['s]" Due Process

Clause. Kia P. v. McIntyre, 235 F.3d 749, 761 (2d Cir. 2000);

see Mapp v. Ohio, 367 U.S. 643, 655 (1961).

2 Judge Sifton passed away while these appeals were pending.

4

1 Southerland and the Southerland Children brought this

2 action based on Woo's entry into the apartment and removal of the

children. They claim that Woo violated their Fourth Amendment1 3

4 rights to be free from unreasonable searches of their home, and

5 that the manner in which the Southerland Children were removed

6 violated their procedural due process rights under the Fourteenth

7 Amendment. Southerland also claims that the removal of the

8 Southerland Children from his home violated his substantive due

9 process rights under the Fourteenth Amendment. Finally, the

10 Southerland Children claim that their removal violated their

11 Fourth Amendment rights to be free from unreasonable seizure. 

The district court (Charles P. Sifton, Judge)2 12

13 concluded, inter alia, that Woo was entitled to qualified

14 immunity with respect to all of the claims against him and

15 granted summary judgment in his favor. We disagree with those

16 conclusions and therefore vacate the district court's judgment as

17 to those claims that have been pursued on appeal and remand the

18 matter for further proceedings.

19 BACKGROUND

20 The relevant facts are rehearsed in detail in the

21 district court's opinion. See Southerland v. City of N.Y., 521
5

1 F. Supp. 2d 218 (E.D.N.Y. 2007) ("Southerland II"). They are set

2 forth here only insofar as we think it necessary for the reader

3 to understand our resolution of these appeals. Where the facts

4 are disputed, we construe the evidence in the light most

5 favorable to the plaintiffs, who are the nonmoving parties. See,

6 e.g., SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d

7 Cir. 2009). We also draw all reasonable factual inferences in

8 the plaintiffs' favor. See, e.g., id.

9 The ACS Investigation

10 On May 29, 1997, a school guidance counselor reported

11 to the New York State Central Registry Child Abuse Hotline that

12 one of the school's students, Ciara Manning, the then-sixteen13 year-old daughter of Diane Manning and plaintiff Southerland, was

14 "emotionally unstable." The counselor further reported:

15 Fa[ther] fails to follow through w[ith]

16 mental health referrals. On 5/12/97 the

17 ch[ild] swallowed a can of paint. F[ather]

18 failed to take the ch[ild] for medical

19 attention. Fa[ther] is unable to control or

20 supervise the ch[ild]. She may be staying

21 out of the home in an i[m]proper

22 enviro[n]ment.

23 Intake Report at 3, Office of Children and Family Services, Child

24 Protective Services, May 29, 1997 ("Intake Report"), Ex. A to the

25 Declaration of Janice Casey Silverberg (Dkt. No. 168)

26 ("Silverberg Decl."), Southerland v. City of N.Y., No. 99-cv-3329

27 (E.D.N.Y. Sept. 18, 2006). The Intake Report was transmitted to

28 the Brooklyn Field Office of the ACS. There, Fritz Balan, a

29 supervisor, assigned the case to defendant Timothy Woo, an ACS
6

1 caseworker, for investigation. Woo, who was required by New York

2 law to begin his investigation within 24 hours, did so that day. 

3 He first examined the files of a case pending in that

4 ACS office regarding Ciara's mother, Diane Manning. Material in

5 those files disclosed that Ciara had several younger half6 siblings: the Manning Children. According to Woo, this material

7 also indicated that Ciara lived with her father, Southerland, at

8 a Brooklyn address, although the plaintiffs correctly note the

9 absence of any evidence as to the source of that information and

10 the time it was received. It is not clear from the record

11 whether Woo was aware that the children referenced in Diane

12 Manning's case file were not related to Southerland and that they

13 did not live with him. See Southerland II, 521 F. Supp. 2d at

14 222, 224 & n.8. 

15 Woo also contacted the school guidance counselor who

16 had called the child-abuse hotline. According to Woo, the

17 counselor told him that while at school, Ciara had swallowed non18 toxic paint, expressed thoughts of suicide, and was generally

19 behaving aggressively and "acting out." Declaration of Timothy

20 Woo ¶ 10 (Dkt. No. 169) ("Woo Decl."), Southerland v. City of

21 N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). Woo's

22 handwritten notes from the conversation indicate that the

23 counselor told Woo that "father [i.e., Southerland] doesn't

24 approve of the place [where Ciara] is staying." Notes of Timothy

25 Woo at 1, Ex. A to the Declaration of Michael G. O'Neill (Dkt.

26 No. 182) ("O'Neill Decl."), Southerland v. City of N.Y., No. 99-
7

1 cv-3329 (E.D.N.Y. Dec. 28, 2006). It is disputed whether the

2 counselor also told Woo that Southerland had been unresponsive to

3 the school's stated concerns about Ciara's behavior. 

4 Later that day, Woo attempted to visit Southerland's

5 apartment in Brooklyn where, for reasons that are not clear from

6 the record, Woo thought Ciara was staying. When no one answered

7 the door, Woo left a note containing his contact information. 

8 The following day, May 30, Southerland telephoned Woo. 

9 During the course of their conversation, Southerland described

10 Ciara as a runaway who would not obey him. Southerland suggested

11 that he visit the ACS office to discuss the matter with Woo

12 further. The plaintiffs dispute Woo's assertion that during the

13 phone conversation, Southerland indicated that he would not

14 permit Woo to visit Southerland's apartment. Southerland

15 contends that, although he did question why Woo needed to visit

16 the apartment since Ciara did not live there, Southerland

17 nonetheless indicated that he would be willing to make an

18 appointment for Woo to conduct a home visit if Woo insisted. 

19 Southerland visited the ACS office and met with Woo

20 later that day. According to Southerland's deposition testimony,

21 he told Woo that Ciara had run away and that he had obtained

22 several "Persons in Need of Supervision" ("PINS") warrants

23 against her. Woo's case notes indicate that Woo asked

24 Southerland why he had not sought medical attention for Ciara

25 after the paint-swallowing incident. Southerland did not answer
3

 Southerland later testified that the school contacted him

with a medical referral after the paint-swallowing incident, and

that he had tried to get Ciara to go to the appointment that was

scheduled for her, but that she refused to go. 

8

the question.3 1 See Progress Notes of T. Woo at 1 ("Progress

2 Notes"), Ex. B to O'Neill Decl.

3 Southerland told Woo and Balan, Woo's supervisor, that

4 Ciara did not need psychiatric help, and that she "'was only

5 acting the way she did to get attention.'" Southerland II, 521

6 F. Supp. 2d at 223 (quoting Woo Decl. ¶ 10); see also Declaration

7 of Fritz Balan ¶ 7 (Dkt. No. 170) ("Balan Decl."), Southerland v.

8 City of N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). 

9 According to Woo, he explained to Southerland that various

10 services were available through ACS to assist him and his

11 children, including counseling and help with obtaining food,

12 furniture, and clothing. Southerland declined. According to

13 Southerland, however, no such assistance was ever offered. 

14 When Woo said he would need to make a home visit,

15 Southerland replied that it would be "no problem" as long as he

16 was notified in advance. Southerland II, 521 F. Supp. 2d at 223;

17 see also Deposition of Sonny B. Southerland at 207 ("Southerland

18 Dep."), Ex. F to O'Neill Decl. Southerland asserts that Woo

19 stated he would call him to arrange the visit, but that Woo never

20 made such a call. 

21 On June 2, 1997, Woo made a second attempt to examine

22 the Southerland apartment. A woman whose identity was unknown to
9

1 Woo answered the door. She said that Southerland was not at

2 home. Woo left. 

3 The following day, June 3, Woo again went to the

4 apartment. He heard noises inside, but no one answered the door. 

5 Again, he left. 

6 The next day, June 4, Woo went to the apartment for a

7 fourth time. He waited in the hallway for several minutes. 

8 Southerland emerged accompanied by five school-aged children:

9 Sonny Jr., Venus, Emmanuel, Nathaniel, and Kiam. Woo wrote down

10 their names in his case notes. Southerland told Woo that he did

11 not have time to talk because he was taking the children to

12 school. Woo gave Southerland an ACS business card and told him

13 that if he continued to be uncooperative, ACS would seek court

14 action. Southerland II, 521 F. Supp. 2d at 223-24 & n.6; see

15 also Progress Notes at 2.

16 The Removal of the Southerland Children

17 On June 6, 1997, at the direction of supervisor Balan,

18 Woo applied to the Kings County Family Court for an order to

19 enter the Southerland apartment pursuant to section 1034(2) of

20 the New York Family Court Act. It is ACS policy to investigate

21 not only the status of the child named in a report of suspected

22 abuse or maltreatment of the type referred to in section 1034(2),

23 but also that of any other children residing in the same home. 

24 Woo listed Ciara on the application. Instead of including the

25 names of the children he had met leaving Southerland's home on

26 June 4, however, he listed the other children of Ciara's mother
4

 Woo listed the Manning Children's names at the top of the

application, along with Southerland's name and the address of the

Southerland apartment. The body of the application states in its

entirety:

I, Timothy Woo, Caseworker for ACS, am a person

conducting a child protective investigation pursuant to

the Social Services Law. I have reasonable cause to

believe that the above named children may be found at

the above premises. I have reason to believe that the

children are abused or neglected children. The reasons

and the sources of information are as follows:

That on May 12, 1997, Sierra [sic] Manning, age 16

tried to kill herself by swallowing non-toxic paint. 

Mr. Sutherland [sic] did not take Sierra [sic] to a

medical doctor and refused to take Sierra [sic] for

psychiatric evaluation. 

Mr. Sutherland [sic] has refused to allow the

Administration for Children's Services into his home to

speak to the above named children.

WHEREFORE, the applicant moves for an order authorizing

the Administration for Children's Services accompanied

by police to enter the premises to determine whether

the above named children are present and to proceed

thereafter with its child protective investigation.

Application for Authorization to Enter Premises dated June 6,

1997, Ex. C to Silverberg Decl. 

10

1 Diane -- the Manning Children: Eric Anderson, Richy Anderson,

2 Felicia Anderson, Michael Manning, Miracle Manning, and Erica

3 Anderson -- whose names he apparently had obtained from the Diane

4 Manning case files he had reviewed at ACS's Brooklyn Field

Office.4 5 The Family Court issued an "Order Authorizing Entry"

6 into the Southerland apartment the same day, June 6. 

7 See Southerland II, 521 F. Supp. 2d at 224.

8 Three days later, on the evening of June 9, 1997,

9 pursuant to the Order Authorizing Entry, Woo and another

10 caseworker entered the Southerland apartment with the assistance
5 The district court summarized Woo's and Balan's stated

reasons for removing the Children as including: the seriousness

of the initial allegation in the Intake Report -- that Ciara had

attempted suicide; that Southerland had failed to seek medical

assistance for Ciara or for Venus; that he had resisted allowing

ACS to visit his home; that he had refused to accept ACS services

11

1 of officers from the New York City Police Department. 

2 Southerland and the Southerland Children were present inside the

3 home. Woo Decl. ¶¶ 13-15, 19. The district court described what

4 happened next, from Woo's perspective: 

5 Woo determined that there were six children

6 between the ages of three and nine residing

7 in the apartment. He listed their names

8 [correctly] as Venus, Sonny Jr., Nathaniel,

9 Emmanuel, Kiam, and Elizabeth Felix. Soon

10 after beginning his evaluation of the home,

11 Woo called his supervisor [Balan] on his cell

12 phone, described his observations, and

13 answered his supervisor's questions. Woo

14 reported that the four boys slept on the

15 floor in one bedroom and the two girls slept

16 on a cot in another bedroom. The children

17 appeared as though they had not been bathed

18 in days and their clothing was malodorous. 

19 In the refrigerator, Woo found only beer, a

20 fruit drink, and English muffins. Woo did

21 not examine the contents of the kitchen

22 cupboards. The other caseworker observed

23 that one child, Venus, was limping because of

24 a foot injury. The child stated that she had

25 stepped on a nail. The caseworker concluded

26 that Southerland had not sought medical

27 attention for her. Woo reported that the

28 only light source in the bedroom area was

29 from a blank television screen. Woo observed

30 an electric lamp on the floor, without a

31 shade, connected to an outlet in the living

32 room by means of several extension cords

33 along the floor. Woo reported that another

34 room contained stacks of electronic

35 equipment. Woo and his supervisor concluded

36 that the children's safety was threatened,

37 and Balan directed Woo to remove the children

38 from the home.

Id. at 224-25 (footnotes omitted).5 39 
or assistance; that the home lacked food and adequate light; that

the use of multiple extension cords for the electronic equipment

was dangerous; and that the children were dirty. This

combination of factors, according to Woo and Balan, "established

in [their] minds that Southerland could not parent the children

responsibly." Southerland II, 521 F. Supp. 2d at 225.

6

 After the Southerland Children's removal, Woo brought

Venus "to a hospital based on the instructions of a nurse at the

agency that first examined the children. At the hospital, the

wound was dressed and the child received a tetanus shot." 

12

1 As the district court also observed, the plaintiffs --

2 relying primarily on later deposition testimony by Southerland --

3 offer a starkly different description of the conditions in the

4 Southerland home at the time. According to Southerland's

5 testimony, the apartment did not lack proper bedding; the boys

6 had a bunk bed in their room, although they preferred to sleep on

7 yellow foam sleeping pads on the floor. Id. at 225 n.10. The

8 children were not dirty; Southerland testified that he laundered

9 the children's clothing about once a week and bathed the children

10 daily. Id. at 225 n.11. There was food in the refrigerator, and

11 it is also a reasonable inference from Southerland's testimony

12 that there was food in the cupboards (which Woo did not examine),

13 because Southerland testified that groceries for the household

14 were purchased on a regular basis. Id. at 225 n.12. The

15 household did not lack lighting; Southerland testified that he

16 had a lamp plugged into a wall in each room. Id. at 225 n.14. 

17 Finally, although Southerland does not dispute that Venus had a

18 foot injury, the plaintiffs stress Woo's concession that he did

19 not personally observe the injury during his assessment of the

home.6 20 Id. at 225 n.13. 
Southerland II, 521 F. Supp. 2d at 225 n.13.

7 On March 14, 2007, Southerland made a pro se submission to

the district court requesting that the court take judicial notice

of a number of documents, including a declaration by Ciara

Manning that had been sworn on April 20, 2002. In that

declaration, Ciara stated that Southerland had never molested or

abused her in any way and that the statements she made previously

to Woo and to the Family Court to that effect were false. See

Pro Se Submission of Sonny B. Southerland at 26-27 (Dkt. No.

192), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Mar.

14, 2007).

13

1 In the early hours of June 10, 1997, at Balan's

2 direction, Woo removed the Southerland Children from the

3 Southerland home. Woo took them to the ACS pre-placement

4 emergency shelter and arranged for emergency foster care. Id. at

5 226. 

6 At some point -- it is not clear exactly when -- Woo

7 interviewed Ciara Manning, whom he had found living at the home

8 of her friend. Ciara told Woo that her father had sexually

9 abused her and threatened to kill her if she told anyone about it

-- allegations she later recanted.7 10 The Southerland Children

11 also complained of various kinds of abuse and mistreatment at the

12 hands of Southerland and his companion, Vendetta Jones. These

13 allegations concerning Ciara and the Southerland Children were

14 included in a verified petition filed by ACS with the Family

15 Court on June 13, 1997, and amended on June 27, 1997. The

16 petitions commenced child-protective proceedings under Article 10

17 of the New York Family Court Act, §§ 1011 et seq., through which

18 ACS sought to have the Southerland Children adjudicated as abused

19 and neglected. 
14

1 On July 1, 1998, more than a year after the children

2 were removed from the Southerland home, the Kings County Family

3 Court concluded after a five-day trial that Southerland had

4 engaged in excessive corporal punishment of the Southerland

5 Children and that he had abused and neglected them. The court

6 also concluded that he had sexually abused his daughter Ciara. 

7 The court ordered that the Southerland Children remain in foster

8 care, where they had resided since the June 1997 removal. The

9 New York Appellate Division, Second Department, affirmed these

10 orders, see In re Ciara M., 273 A.D.2d 312, 708 N.Y.S.2d 717 (2d

11 Dep't 2000), and the New York Court of Appeals denied leave to

12 appeal, see In re Ciara M., 95 N.Y.2d 767, 740 N.E.2d 653, 717

13 N.Y.S.2d 547 (2000). 

14 In March 2004, nearly seven years after their removal

15 from the Southerland home, Sonny Jr. and Venus were permitted to

16 return to live with Southerland. Some seven months thereafter,

17 Nathaniel and Emmanuel were discharged from the juvenile justice

18 system by the Office of Children and Family Services and also

19 returned to the Southerland home. As far as we can determine

20 from the record, neither Kiam nor Elizabeth ever returned to live

21 with Southerland. 

22 However strongly the facts of mistreatment found by the

23 Family Court at trial may indicate that Woo's perceptions about

24 the dangers to the Southerland Children of their remaining with

25 Southerland were correct, virtually none of this information was

26 in Woo's possession when he effected the June 9, 1997, entry and
15

1 removal, as the district court correctly observed. See

2 Southerland II, 521 F. Supp. 2d at 226 n.19. These subsequently

3 determined facts therefore do not bear upon our consideration of

4 whether Woo's actions in effecting the removal were

5 constitutional. See id.

6 Prior Federal Court Proceedings

7 In June 1999, some two years after the removal and

8 while the Southerland Children remained in foster care,

9 Southerland, on behalf of himself and his children, filed a pro

10 se complaint in the United States District Court for the Eastern

11 District of New York against more than forty defendants for the

12 allegedly wrongful removal of the Southerland Children from his

13 home. On February 1, 2000, the district court (Charles P.

14 Sifton, Judge) granted the defendants' motion to dismiss on

15 grounds that included failure to state a claim, failure to plead

16 certain matters with particularity, lack of subject-matter

17 jurisdiction, and Eleventh Amendment immunity. See Opinion &

18 Order (Dkt. No. 43), Southerland v. City of N.Y., No. 99-cv-3329

19 (E.D.N.Y. Feb. 2, 2000).

20 Southerland appealed. We affirmed in part, reversed in

21 part, and remanded the action. We ruled, inter alia, that the

22 district court had erred in dismissing Southerland's claims under

23 42 U.S.C. § 1983 relating to the seizure and removal of the

24 Southerland Children. See Southerland v. Giuliani, 4 F. App'x

25 33, 36 (2d Cir. 2001) (summary order) ("Southerland I"). We

26 concluded that the pro se complaint stated valid claims for
8 Michael G. O'Neill was appointed as counsel for both

Southerland and the Southerland Children. In April 2004,

Southerland resumed proceeding pro se before the district court,

while Mr. O'Neill continued to represent the Southerland Children

(including Venus and Sonny Jr., even after they were no longer

minors). In April 2004, the district court also appointed a

guardian ad litem to represent the Southerland Children's

interests. Southerland II, 521 F. Supp. 2d at 221 n.1. In the

instant appeals, Southerland represents himself pro se, while Mr.

O'Neill continues to represent the Southerland Children. 

9

 The amended complaint did not name as defendants or

assert any claims against any of the other thirty-nine defendants

that had been named by Southerland in his original pro se

complaint. Additionally, although Ciara was identified as a

16

1 violations of both the substantive and procedural components of

2 the Fourteenth Amendment's Due Process Clause. See id. at 36-37. 

3 We "emphasize[d] that our holding [wa]s limited to the claims

4 made directly by Sonny Southerland," noting that "[a]lthough the

5 children probably have similar claims, we have held that a non6 attorney parent must be represented by counsel in bringing an

7 action on behalf of his or her child." Id. at 37 (citation and

8 internal quotation marks omitted). We therefore "le[ft] it to

9 the district court upon remand to determine whether Southerland

10 should be given a chance to hire a lawyer for his children or to

11 seek to have one appointed for them." Id. 

12 On remand, the district court appointed counsel to

represent both Southerland and the Southerland Children.8 13

14 Southerland II, 521 F. Supp. 2d at 227. In November 2002,

15 through counsel, Southerland and the Southerland Children jointly

16 filed an amended complaint, id. at 221 & n.1, asserting nine

17 claims under 42 U.S.C. § 1983 against Woo and the City of New

York, id. at 221 n.2.9 18 
plaintiff in the original complaint, she was dropped from the

suit when the amended complaint was filed.

10 The amended complaint also joins nine John Doe

defendants, including all persons who "supervis[ed], monitor[ed]

and assist[ed] Woo in his actions with respect to the

[Southerland] Children." Am. Compl. ¶ 39 (Dkt. No. 75),

Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Nov. 22,

2002). The complaint asserts that "said Does are individually

liable to [Southerland] for the deprivation of his constitutional

rights and the constitutional rights of the [Southerland]

Children as alleged herein." Id. 

In their briefing on appeal, the plaintiffs do not address

these John Doe defendants. We conclude that the plaintiffs have

abandoned their claims against the John Does. We note that even

if the plaintiffs now sought to amend their complaint to identify

the John Doe defendants, the claims against the newly named

defendants would be time-barred. See Tapia-Ortiz v. Doe, 171

F.3d 150, 151-52 (2d Cir. 1999) (per curiam); Barrow v.

Wethersfield Police Dep't, 66 F.3d 466, 468-70 (2d Cir. 1995),

modified, 74 F.3d 1366 (2d Cir. 1996).

17

1 In the amended complaint, Southerland asserts four

separate claims against Woo.10 2 First, Southerland alleges an

3 unlawful-search claim, asserting that Woo's entry into his home

4 "without privilege, cause or justification" violated the Fourth

5 Amendment. Am. Compl. ¶¶ 40-41 (Dkt. No. 75), Southerland v.

6 City of N.Y., No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002). 

7 Southerland asserts a second Fourth Amendment unlawful-search

8 claim for Woo's remaining in his home even after discovering that

9 the children listed on the Order Authorizing Entry were not

10 there. Third, Southerland asserts a Fourteenth Amendment

11 procedural due process claim for removal of the Southerland

12 Children from his home without a court order and in the absence

13 of an immediate threat of harm to their lives or health. 

14 Finally, Southerland alleges a substantive due process claim,
11 In so doing, the district court relied upon our

statement, when the case was previously on appeal, that "[t]he

children's claims for unreasonable seizure would proceed under

the Fourth Amendment rather than the substantive component of the

Due Process Clause." Southerland I, 4 F. App'x at 37 n.2 (citing

Kia P. v. McIntyre, 235 F.3d 749, 757-58 (2d Cir. 2000)).

18

1 also under the Fourteenth Amendment, for Woo's removal of the

2 Southerland Children absent a reasonable basis for doing so. 

3 The amended complaint also interposes various claims on

4 behalf of the Southerland Children. First, the Children assert

5 the same procedural due process claim under the Fourteenth

6 Amendment as does Southerland. Second, they assert a substantive

7 due process claim under the Fourteenth Amendment. The district

8 court recharacterized the latter claim as arising under the

9 Fourth Amendment's guarantee of protection against unlawful

seizure.11 10 See Southerland II, 521 F. Supp. 2d at 230 n.24. 

11 Finally, the district court construed the amended complaint as

12 asserting on behalf of the Children the same two Fourth Amendment

13 unlawful-search claims as were asserted by Southerland.

14 Southerland and the Southerland Children also bring

15 several claims against the City of New York. Southerland asserts

16 that the City is liable under 42 U.S.C. § 1983 for the removal of

17 the Southerland Children insofar as that removal was conducted

18 pursuant to two alleged official City policies: to remove

19 children without a reasonable basis, and to remove children

20 without a court order despite the absence of any immediate threat

21 of harm to their lives or health. Southerland and the

22 Southerland Children also allege that high-ranking policymakers
12 The district court later permitted the Southerland

Children to assert their failure-to-train claim against the City

not only with respect to the police, but also with respect to

ACS. See Southerland II, 521 F. Supp. 2d at 235 n.34.

19

1 within the City's police department knew or should have known

2 that the City's failure to train police officers accompanying ACS

3 employees on home visits and investigations would deprive New

York City residents of their constitutional rights.12 4

5 On the defendants' motion for summary judgment, the

6 district court concluded that Woo was entitled to qualified

7 immunity as to all of the claims against him. With respect to

8 the Fourth Amendment unlawful-search claims, the court concluded

9 that the false and misleading statements made by Woo in his

10 application for the Order Authorizing Entry did not strip him of

11 qualified immunity because the plaintiffs could not show that

12 these statements were necessary to the finding of probable cause

13 to enter the home. Southerland II, 521 F. Supp. 2d at 230-31. 

14 The court decided that qualified immunity was warranted because

15 "a corrected affidavit specifying all of the information known to

16 Woo establishes an objective basis that would have supported a

17 reasonable caseworker's belief that probable cause existed." Id.

18 at 231 (brackets, citation, and internal quotation marks

19 omitted). 

20 With respect to the Southerland Children's Fourth

21 Amendment unlawful-seizure claim, and the procedural due process

22 claims brought by both sets of plaintiffs, the district court

23 decided that qualified immunity shielded Woo from liability
20

1 because his actions pre-dated the clear establishment of law in

2 this context, which in its view did not occur until this Court's

3 decision in Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.

4 1999), cert. denied, 529 U.S. 1098 (2000). See Southerland II,

5 521 F. Supp. 2d at 231-32. 

6 Lastly, with regard to Southerland's substantive due

7 process claim, the district court concluded that Woo was entitled

8 to qualified immunity because "it was objectively reasonable for

9 [him] to conclude that Southerland's substantive due process

10 rights were not violated" when Woo removed the Southerland

11 Children from the home, because "[b]rief removals of children

12 from their parents generally do not rise to the level of a

13 substantive due process violation, at least where the purpose of

14 the removal is to keep the child safe during investigation and

15 court confirmation of the basis for removal." Id. at 32

16 (brackets and internal quotation marks omitted).

17 Notwithstanding the district court's conclusion that

18 Woo was entitled to qualified immunity as to every claim asserted

19 against him, the court proceeded to consider, in the alternative,

20 the underlying merits of the plaintiffs' various claims. The

21 court decided that even in the absence of immunity, Woo would be

22 entitled to summary judgment with respect to the plaintiffs'

23 Fourth Amendment unlawful-search claims and Southerland's

24 substantive due process claim. Specifically, with respect to the

25 Fourth Amendment unlawful-search claims, the district court

26 decided that "no reasonable juror could infer that Woo knowingly
21

1 and intentionally made false and misleading statements to the

2 family court in order to receive an order authorizing his entry

3 into the Southerland home." Id. at 233. With respect to

4 Southerland's substantive due process claim, the court concluded

5 that "no reasonable juror could find that the removal of the

6 children from their home in order to verify that they had not

7 been neglected or abused was so 'shocking, arbitrary, and

8 egregious' that Southerland's substantive due process rights were

9 violated." Id. at 234-35 (citation omitted).

10 The district court concluded that the City was also

11 entitled to summary judgment on all of the claims against it. 

12 See Southerland II, 521 F. Supp. 2d at 235-39. The plaintiffs do

13 not appeal from that portion of the judgment and therefore have

14 abandoned their claims against the City. See LoSacco v. City of

15 Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). 

16 The district court determined, however, that without

17 qualified immunity protection, summary judgment would not be

18 appropriate on the merits of the procedural due process claims

19 brought by both Southerland and the Southerland Children because,

20 "[a]lthough defendants argue that the 'totality of the

21 circumstances' Woo encountered in the Southerland home required

22 an ex parte removal, they fail to explain why there was not

23 sufficient time for Woo to seek a court order removing the

24 children." See Southerland II, 521 F. Supp. 2d at 235 n.31. Nor

25 would summary judgment be appropriate on the merits of the

26 Southerland Children's Fourth Amendment unlawful-seizure claim,
22

1 the district court said, because the defendants could not explain

2 "why the particular circumstances that Woo encountered in the

3 Southerland home established that there was imminent danger to

4 the children's life or limb requiring removal in the absence of a

5 court order." Id. at 234 n.29.

6 Both Southerland and the Southerland Children now

7 appeal from the dismissal of each of their claims against Woo,

8 except for one Fourth Amendment claim brought by all plaintiffs. 

9 The plaintiffs have not appealed the district court's adverse

10 ruling as to their claim that Woo violated the Fourth Amendment

11 by remaining in their home even after determining that the

12 children listed on the Order Authorizing Entry were not present.

13 We vacate and remand with respect to each of the

14 plaintiffs' claims that have been preserved for appeal.

15 DISCUSSION

16 I. Standard of Review

17 "We review a district court's grant of summary judgment

18 de novo, construing the evidence in the light most favorable to

19 the non-moving part[ies] and drawing all reasonable inferences in

20 [their] favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113

21 (2d Cir. 2005). "[S]ummary judgment is appropriate where there

22 exists no genuine issue of material fact and, based on the

23 undisputed facts, the moving party is entitled to judgment as a

24 matter of law." D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d

25 Cir.), cert. denied, 524 U.S. 911 (1998); see Fed. R. Civ. P.

26 56(a).
23

1 II. Qualified Immunity

2 Qualified immunity shields public officials from

3 liability "insofar as their conduct does not violate clearly

4 established statutory or constitutional rights of which a

5 reasonable person would have known." Harlow v. Fitzgerald, 457

6 U.S. 800, 818 (1982). "In general, public officials are entitled

7 to qualified immunity if (1) their conduct does not violate

8 clearly established constitutional rights, or (2) it was

9 objectively reasonable for them to believe their acts did not

10 violate those rights." Holcomb v. Lykens, 337 F.3d 217, 220 (2d

11 Cir. 2003) (internal quotation marks omitted). An officer is

12 also entitled to qualified immunity "if officers of reasonable

13 competence could disagree on the legality of the action at issue

14 in its particular factual context." Manganiello v. City of N.Y.,

15 612 F.3d 149, 165 (2d Cir. 2010) (internal quotation marks

16 omitted).

17 III. Overview of Constitutional Law in the Context of

18 the State's Removal of Children from Their Home

19 As we observed in a decision post-dating the events at

20 issue in these appeals, "[p]arents . . . have a constitutionally

21 protected liberty interest in the care, custody and management of

22 their children." Tenenbaum, 193 F.3d at 593; see also Troxel v.

23 Granville, 530 U.S. 57, 65-66 (2000) (collecting cases concerning

24 the "fundamental right of parents to make decisions concerning

25 the care, custody, and control of their children"). "[C]hildren

26 have a parallel constitutionally protected liberty interest in

27 not being dislocated from the emotional attachments that derive
24

1 from the intimacy of daily family association." Kia P. v.

2 McIntyre, 235 F.3d 749, 759 (2d Cir. 2000) (brackets and internal

3 quotation marks omitted), cert. denied, 534 U.S. 820 (2001); see

4 also Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977)

5 ("Th[e] right to the preservation of family integrity encompasses

6 the reciprocal rights of both parent and children."). The

7 state's removal of a child from his or her parent may give rise

8 to a variety of cognizable constitutional claims.

9 First, both the parents and the children may have a

10 cause of action for violation of the Fourteenth Amendment under a

11 theory of denial of procedural due process. The Fourteenth

12 Amendment imposes a requirement that except in emergency

13 circumstances, judicial process must be accorded both parent and

14 child before removal of the child from his or her parent's

15 custody may be effected. See, e.g., Kia P., 235 F.3d at 759-60;

16 Tenenbaum, 193 F.3d at 593-94; Duchesne, 566 F.2d at 825-26. 

17 Both Southerland and the Southerland Children have asserted such

18 a procedural due process claim against Woo in this case.

19 Second, a parent may also bring suit under a theory of

20 violation of his or her right to substantive due process. 

21 Southerland does so here. Parents have a "substantive right

22 under the Due Process Clause to remain together [with their

23 children] without the coercive interference of the awesome power

24 of the state." Tenenbaum, 193 F.3d at 600 (internal quotation

25 marks omitted); see also, e.g., Anthony v. City of N.Y., 339 F.3d

26 129, 142-43 (2d Cir. 2003); Kia P., 235 F.3d at 757-58. Such a
13 "Where another provision of the Constitution provides an

explicit textual source of constitutional protection, a court

must assess a plaintiff's claims under that explicit provision

and not the more generalized notion of substantive due process." 

Kia P., 235 F.3d at 757-58 (quoting Conn v. Gabbert, 526 U.S.

286, 293 (1999)) (brackets and internal quotation marks omitted).

25

1 claim can only be sustained if the removal of the child "would

2 have been prohibited by the Constitution even had the [parents]

3 been given all the procedural protections to which they were

4 entitled." Tenenbaum, 193 F.3d at 600 (emphasis in original). 

5 In other words, while a procedural due process claim challenges

6 the procedure by which a removal is effected, a substantive due

7 process claim challenges the "fact of [the] removal" itself. 

8 Bruker v. City of N.Y., 92 F. Supp. 2d 257, 266-67 (S.D.N.Y.

9 2000).

10 For such claims brought by children, however, we have

11 concluded that the Constitution provides an alternative, more

specific source of protection.13 12 When a child is taken into

13 state custody, his or her person is "seized" for Fourth Amendment

14 purposes. The child may therefore assert a claim under the

15 Fourth Amendment that the seizure of his or her person was

16 unreasonable. See Tenenbaum, 193 F.3d at 602. Such a claim

17 belongs only to the child, not to the parent, although a parent

18 has standing to assert it on the child's behalf. Id. at 601

19 n.13. In accordance with our order in Southerland I, 4 F. App'x

20 at 37 n.2, the district court determined that the Southerland

21 Children's substantive due process claim should be construed
26

1 instead as a Fourth Amendment unlawful-seizure claim. See

2 Southerland II, 521 F. Supp. 2d at 230 n.24. 

3 Finally, depending on the circumstances in which a

4 removal occurs, other Fourth Amendment claims might also be

5 viable. Here, Southerland and the Southerland Children asserted

6 two Fourth Amendment claims for unlawful search: one claim

7 relating to Woo's entry into the Southerland home, and one (now

8 abandoned) claim relating to Woo's remaining in the home even

9 after determining that the Manning Children were not present. 

10 Both claims were based on an allegation that Woo made false

11 statements to the Family Court in order to obtain the Order

12 Authorizing Entry, and therefore that there was no probable cause

13 to carry out a search of the Southerland apartment. 

14 IV. The Fourth Amendment Unlawful-Search Claims

15 The district court determined that summary judgment was

16 warranted on the plaintiffs' Fourth Amendment unlawful-search

17 claims on two separate grounds. First, the district court

18 concluded that Woo was entitled to qualified immunity under the

19 "corrected affidavit" doctrine. See Southerland II, 521

20 F. Supp. 2d at 230-31. Second, the district court decided that

21 Woo was entitled to summary judgment on the merits because no

22 reasonable juror could find that Woo had knowingly made false or

23 misleading statements in seeking to obtain the Order Authorizing

24 Entry. Id. at 233. We disagree with both conclusions.
27

1 A. The Corrected-Affidavit Doctrine

2 We begin with the plaintiffs' argument that the

3 district court erred in its application of the corrected4 affidavit doctrine, under which a defendant who makes erroneous

5 statements of fact in a search-warrant affidavit is nonetheless

6 entitled to qualified immunity unless the false statements in the

7 affidavit were "necessary to the finding of probable cause." 

8 Martinez v. City of Schenectady, 115 F.3d 111, 115 (2d Cir. 1997)

9 (internal quotation marks omitted). In order to determine

10 whether false statements were "necessary to the finding of

11 probable cause," the court must "put aside allegedly false

12 material, supply any omitted information, and then determine

13 whether the contents of the 'corrected affidavit' would have

14 supported a finding of probable cause." Id. (citation and

15 internal quotation marks omitted). In applying the corrected16 affidavit doctrine, qualified immunity is warranted only if,

17 after correcting for the false or misleading statements, the

18 affidavit accompanying the warrant was sufficient "to support a

19 reasonable officer's belief that probable cause existed." Id.

20 (internal quotation marks omitted). 

21 The district court, which "assum[ed] for purposes of

22 the qualified immunity defense that Woo made false and misleading

23 statements" in applying for the Order Authorizing Entry,

24 Southerland II, 521 F. Supp. 2d at 230, correctly noted that the

25 plaintiffs "would still have to demonstrate that those statements

26 were necessary to the finding of probable cause for qualified
28

1 immunity not to attach to Woo's actions," id. at 230-31 (citation

2 and internal quotation marks omitted). The court determined that

3 Woo was entitled to qualified immunity based on its conclusion

4 that a corrected affidavit, containing all of the information

5 available to Woo at the time the affidavit was made, would have

6 supported a finding of probable cause to enter the home. Id. at

7 231. 

8 We disagree. Section 1034(2) of the New York State

9 Family Court Act, which provides the evidentiary standard for a

10 showing of probable cause sufficient for the issuance of an

11 investigative order, governed Woo's application to obtain the

12 Order Authorizing Entry. The district court, in its September

13 2007 decision, cited the statute as it had been amended in

14 January 2007. See id. at 224 n.7. But the version that governed

15 at the time of Woo's application was materially different. Under

16 the version of the statute that applied at the time of Woo's

17 actions, the affiant was required to demonstrate "probable cause

18 to believe that an abused or neglected child may be found on

19 premises," N.Y. Fam. Ct. Act § 1034(2) (McKinney's 1997)

20 (emphasis added), presumably meaning the "premises" identified in

21 the application submitted to the Family Court. 

22 The district court should have engaged in its

23 corrected-affidavit analysis with reference to the earlier law. 

24 The children that Woo listed on his application for the Order

25 Authorizing Entry -- the Manning Children and Ciara -- were

26 children who did not reside "on premises" in the Southerland
14 The defendants also argue, with respect to the probable

cause determination, that irrespective of the requirements of New

York Family Court Act § 1034(2), Woo was required to visit the

Southerland home under a provision of the New York Social

Services Law that requires that, within twenty-four hours of

receipt of a "report[] of suspected child abuse or maltreatment"

as provided for under New York Social Services Law § 424(1), ACS

must undertake an investigation that includes "an evaluation of

the environment of the child named in the report and any other

children in the same home," id. § 424(6)(a). However,

considering that Woo had reason to know that Ciara, the child

identified in the report, was not living at the Southerland home

-- and, indeed, reason to know that none of the children named in

his application to the Family Court were living there -- his

reliance on this provision of the Social Services Law fails. If

Ciara was not living "on premises" at the Southerland home, Woo

was not entitled to enter the home to evaluate this

29

1 home. The district court concluded that "a properly made

2 application would still list Ciara Manning on the application

3 because Southerland is her father and was the parent legally

4 responsible for her care, even if she had run away." Southerland

5 II, 521 F. Supp. 2d at 231. That may be relevant to an inquiry

6 under the statute as amended in 2007, but it is not relevant to

7 the appropriate question under the applicable version of the law:

8 whether there existed probable cause for Woo to believe that

9 Ciara Manning could be found "on premises" at the Southerland

10 home. In fact, she, like the Manning Children, was not "on

11 premises." And Woo had reason to know that she was not -- from

12 the information in the initial Intake Report transmitted to Woo;

13 from the guidance counselor's statement to Woo that Southerland

14 did not approve of the place where Ciara was staying; and from

15 Southerland's own statements during his May 30 telephone

16 conversation with Woo that Ciara was a runaway and did not live

at his home.14 17
"environment," nor to evaluate the other children living there.

30

1 The plaintiff children point out that there were other

2 deficiencies in the district court's corrected-affidavit analysis

3 that undermine the court's conclusion that the information known

4 to Woo at the time he applied for the Order Authorizing Entry

5 would have supported a finding of probable cause. For example,

6 Woo's application stated that Ciara "tried to kill herself by

7 swallowing non-toxic paint," and that Southerland "did not take

8 [Ciara] to a medical doctor and refused to take [Ciara] for

9 psychiatric evaluation." Application for Authorization to Enter

10 Premises dated June 6, 1997, at 1 ("June 6 Application"), Ex. C

11 to Silverberg Decl. The plaintiff children argue that the

12 application omitted several relevant facts that, according to

13 Southerland's version of events, were known to Woo at that time:

14 that the paint-swallowing incident took place at school, not at

15 home; that Southerland was willing to obtain treatment for his

16 daughter, but had trouble doing so, precisely because she was not

17 living in his home; and that Southerland had attempted to assert

18 control over his daughter by applying for PINS warrants. 

19 Southerland Children's Br. at 30-31; see also id. at 28-36

20 (disputing additional assertions of fact, such as whether the

21 swallowing of paint indeed was a suicide attempt). As the

22 plaintiff children put it:

23 Woo's omission of the fact that the incident

24 took place at school allowed the court to

25 assume that the suicide attempt took place in

26 Southerland's residence. The overall picture

27 painted by Woo is that Southerland's daughter
15 In child-abuse investigations, a Family Court order is

equivalent to a search warrant for Fourth Amendment purposes. 

See Nicholson v. Scoppetta, 344 F.3d 154, 176 (2d Cir. 2003);

Tenenbaum, 193 F.3d at 602.

31

1 attempted to kill herself, that Southerland

2 did nothing about it, and refused to let

3 others do something about it as well. By

4 omitting the fact that the daughter was not

5 even living at the Southerland apartment, Woo

6 gave the family court the impression that it

7 was necessary to allow Woo to enter the

8 apartment in order to render assistance to a

9 suicidal teenager in the home of a parent who

10 could not be bothered to help her and who

11 prevented the efforts of ACS to provide help

12 to her.

13 Id. at 31-32. The district court included much of this

14 information in its recitation of facts, Southerland II, 521 F.

15 Supp. 2d at 222-23 & nn.4 & 5, but it did not factor these

16 considerations into its application of the corrected-affidavit

17 doctrine.

18 We have observed that the materiality of a

19 misrepresentation or omission in an application for a search

warrant is a mixed question of law and fact.15 20 Velardi v. Walsh,

21 40 F.3d 569, 574 (2d Cir. 1994). "The legal component depends on

22 whether the information is relevant to the probable cause

23 determination under controlling substantive law." Id. "[T]he

24 weight that a neutral magistrate would likely have given such

25 information," however, is a question for the factfinder. Id.

26 In such circumstances, a court may grant summary judgment to a

27 defendant based on qualified immunity only where "the evidence,

28 viewed in the light most favorable to the plaintiffs, discloses

29 no genuine dispute that a magistrate would have issued the
32

1 warrant on the basis of the corrected affidavits." Walczyk v.

2 Rio, 496 F.3d 139, 158 (2d Cir. 2007) (emphasis, citation, and

3 internal quotation marks omitted). We cannot conclude as a

4 matter of law -- although a trier of fact might so conclude after

5 an evidentiary hearing -- that the Family Court, in deciding

6 whether there was "probable cause to believe that an abused or

7 neglected child may [have] be[en] found [in the Southerland

8 home]," N.Y. Fam. Ct. Act § 1034(2), would have issued the order

9 had a corrected affidavit been presented to it.

10 B. Knowing or Reckless Misstatements of Fact

11 The district court also concluded that even if the

12 corrected-affidavit doctrine did not apply, summary judgment was

13 appropriate because, on the merits, "no reasonable juror could

14 infer that Woo knowingly and intentionally made false and

15 misleading statements to the family court in order to receive an

16 order authorizing his entry into the Southerland home." 

17 Southerland II, 521 F. Supp. 2d at 233. Based on that premise,

18 the district court concluded that "the [O]rder [Authorizing

19 Entry] was issued with probable cause and Woo's entry into and

20 search of Southerland's home did not violate plaintiffs' Fourth

21 Amendment rights." Id.

22 We disagree. If the district court were correct that

23 Woo did not knowingly make false and misleading statements, that

24 would entitle Woo to qualified immunity, but would not

25 necessarily render his underlying conduct lawful. When a person

26 alleges a Fourth Amendment violation arising from a search
33

1 executed by a state official, "the issuance of a search

2 warrant . . . creates a presumption that it was objectively

3 reasonable for the [defendant] to believe that the search was

4 supported by probable cause" so as to render the defendant

5 qualifiedly immune from liability. Martinez, 115 F.3d at 115. 

6 To defeat the presumption of reasonableness, a plaintiff must

7 make "a substantial preliminary showing that the affiant

8 knowingly and intentionally, or with reckless disregard for the

9 truth, made a false statement in his affidavit and that the

10 allegedly false statement was necessary to the finding of

11 probable cause" for which the warrant was issued. Golino v. City

12 of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (internal

13 quotation marks omitted), cert. denied, 505 U.S. 1221 (1992).

14 We need not consider further whether the district court

15 erred by confusing the qualified immunity and merits analyses,

16 however, because we also do not agree with the district court's

17 premise that no reasonable juror could find that Woo did not

18 knowingly or recklessly make false statements. We think that

19 several disputed facts, taken together and viewed in the light

20 most favorable to the plaintiffs, would permit -- though not

21 require -- a reasonable factfinder to find otherwise. 

22 First, substantial evidence, viewed in the light most

23 favorable to the plaintiffs, suggests that Woo had reason to know

24 that Ciara was not residing at the Southerland home when he

25 applied for the Order Authorizing Entry. For example, the May 29

26 Intake Report informed ACS that Ciara "may be staying out of the
34

1 home in an i[m]proper enviro[n]ment." Intake Report at 3. And

2 Southerland told Woo on May 30 that Ciara was a runaway and that

3 he had taken out PINS warrants against her. Southerland II, 521

4 F. Supp. 2d at 223. A reasonable juror could find that Woo's

5 application to the Family Court on June 6 was knowingly or

6 recklessly misleading in stating: "I have reasonable cause to

7 believe that the above named children [including Ciara] may be

8 found at the above premises [the Southerland home]." June 6

9 Application at 1.

10 Second, evidence in the record, again viewed in the

11 light most favorable to the plaintiffs, would permit a reasonable

12 juror to conclude that Woo had knowingly or recklessly

13 misrepresented the nature of the paint-swallowing incident in his

14 application. About one week before June 6, Woo learned from a

15 school counselor that Ciara had "swallowed non-toxic paint at

16 school" and had been "acting out and expressing thoughts of

17 suicide." Woo Decl. ¶ 6. Although the counselor informed Woo

18 that Southerland had failed to seek medical treatment for Ciara,

19 see id., Southerland later explained to Woo that the reason he

20 had not taken Ciara for treatment was that she did not reside

21 with Southerland and did not listen to him, id. ¶ 8. Yet Woo's

22 application represented to the Family Court that Ciara "tried to

23 kill herself by swallowing non-toxic paint" and that Southerland

24 "did not take [her] to a medical doctor and refused to take [her]

25 for psychiatric evaluation." June 6 Application at 1. A

26 reasonable trier of fact might find the foregoing statements to
35

1 be materially misleading insofar as they characterize Ciara's

2 paint-swallowing as a suicide attempt; fail to note that the

3 incident occurred at school rather than in Southerland's home;

4 and omit the fact that Ciara may have been living outside the

5 home and free from Southerland's control.

6 Finally, the district court overlooked the parties'

7 dispute concerning Woo's knowledge about which children resided

8 in the Southerland apartment. The district court stated that Woo

9 "had reason to believe that the Manning children would be found

10 in the Southerland apartment because of a separate investigation

11 of the Manning children and his personal observation that there

12 were other children in the Southerland home who had not yet been

13 positively identified." Southerland II, 521 F. Supp. 2d at 233. 

14 But, as the district court opinion elsewhere observes, on June 4,

15 1997 -- two days before he applied for the Order Authorizing

16 Entry -- Woo met the Southerland Children emerging from the

17 Southerland apartment and wrote down their names. See id. at

18 223-24 & n.6. We think that there is a triable issue of fact as

19 to whether Woo in fact believed, as he wrote in his application

20 to the Family Court, that it was the Manning Children and not the

21 Southerland Children who were in the Southerland home, or whether

22 he recklessly confused or knowingly conflated the two. 

23 Although these alleged misrepresentations may turn out

24 to be no more than accidental misstatements made in haste, the

25 plaintiffs have nonetheless made a "substantial preliminary

26 showing" that Woo knowingly or recklessly made false statements
36

1 in his application for the Order Authorizing Entry. Golino, 950

2 F.2d at 870 (internal quotation marks omitted). This showing

3 rebuts the presumption of reasonableness that would otherwise

4 apply to shield Woo with qualified immunity at the summary

5 judgment stage. 

6 In sum, because we conclude that genuine issues of

7 material fact exist, both as to whether Woo knowingly or

8 recklessly made false statements in his affidavit to the Family

9 Court and as to whether such false statements were necessary to

10 the court's finding of probable cause, we vacate the district

11 court's grant of summary judgment on the plaintiffs' Fourth

12 Amendment unlawful-search claims.

13 Once again, we note that a trier of fact might, after

14 review of the evidence, conclude that the errors in the June 6

15 Application were either accidental or immaterial. We vacate the

16 grant of summary judgment because we cannot reach that conclusion

17 ourselves on the current record as a matter of law.

18 V. The Plaintiffs' Procedural Due Process Claims

19 Southerland and the Southerland Children each assert a

20 procedural due process claim against Woo. The district court

21 held that Woo was entitled to qualified immunity on these claims. 

22 We disagree. 

23 A. Procedural Due Process in the Child-Removal Context

24 "'As a general rule . . . before parents may be

25 deprived of the care, custody, or management of their children

26 without their consent, due process -- ordinarily a court
37

1 proceeding resulting in an order permitting removal -- must be

2 accorded to them.'" Nicholson v. Scoppetta, 344 F.3d 154, 171

3 (2d Cir. 2003) (quoting Tenenbaum, 193 F.3d at 593). "However,

4 'in emergency circumstances, a child may be taken into custody by

5 a responsible State official without court authorization or

6 parental consent.'" Id. (quoting Tenenbaum, 193 F.3d at 594). 

7 "'If the danger to the child is not so imminent that there is

8 reasonably sufficient time to seek prior judicial authorization,

9 ex parte or otherwise, for the child's removal, then the

10 circumstances are not emergent.'" Id. (quoting Tenenbaum, 193

11 F.3d at 594). 

12 To prevail, "[t]he government must offer 'objectively

13 reasonable' evidence that harm is imminent." Id. Although we

14 have not exhaustively set forth the types of factual

15 circumstances that constitute imminent danger justifying

16 emergency removal as a matter of federal constitutional law, we

17 have concluded that these circumstances include "the peril of

18 sexual abuse," id., the "risk that children will be 'left bereft

19 of care and supervision,'" id. (quoting Hurlman v. Rice, 927 F.2d

20 74, 80 (2d Cir. 1991)), and "immediate threat[s] to the safety of

21 the child," Hurlman, 927 F.2d at 80 (internal quotation marks

22 omitted); see also N.Y. Fam. Ct. Act § 1024(a) (defining

23 emergency circumstances, for the purposes of state law, as

24 "circumstance[s]" wherein a child's remaining in the parent's

25 care and custody "presents an imminent danger to the child's life

26 or health").
16 We disagree with the defendants' assertion that Hurlman

and Robison are not controlling here because the state officers

in those cases were unlawfully on the premises, whereas Woo had a

court order (albeit a disputed one) to enter the Southerland

38

1 B. Analysis

2 The district court correctly concluded that summary

3 judgment was not appropriate on the underlying merits of the

4 plaintiffs' procedural due process claims because Woo did not

5 demonstrate, as a matter of law, that he did not have time to

6 obtain a court order authorizing the removal of the Southerland

7 Children before taking that act. See Southerland II, 521 F.

8 Supp. 2d at 235 n.31 (citing Nicholson, 344 F.3d at 171). The

9 court nonetheless granted summary judgment on qualified immunity

10 grounds, concluding that "the law concerning procedural due

11 process rights in the context of child removals was not clearly

12 defined at the time of the events in question." Id. at 232. 

13 But in Hurlman, we recognized that

14 officials may remove a child from the custody

15 of the parent without consent or a prior

16 court order only in "emergency"

17 circumstances. Emergency circumstances mean

18 circumstances in which the child is

19 immediately threatened with harm, for

20 example, where there exists an immediate

21 threat to the safety of the child, or where

22 the child is left bereft of care and

23 supervision, or where there is evidence of

24 serious ongoing abuse and the officials have

25 reason to fear imminent recurrence.

26 Hurlman, 927 F.2d at 80 (citations and internal quotation marks

27 omitted); see also Robison v. Via, 821 F.2d 913, 921-22 (2d Cir.

28 1987) (describing the "'emergency' circumstances" exception and

collecting cases).16 29 It thus was clearly established at the time
home. Woo's removal of the Southerland Children was without

prior judicial authorization. Although Woo did have a court

order to enter the home, then, he did not have an order to remove

the Southerland Children from it. See Southerland II, 521 F.

Supp. 2d at 224, 226, 235 n.31.

39

1 of the Southerland Children's removal that state officials could

2 not remove a child from the custody of a parent without either

3 consent or a prior court order unless "'emergency' circumstances"

4 existed. Hurlman, 927 F.2d at 80; see also Cecere v. City of

5 N.Y., 967 F.2d 826, 829-30 (2d Cir. 1992) (setting forth "clearly

6 established" procedural due process principles); see also Velez

7 v. Reynolds, 325 F. Supp. 2d 293, 314-15 (S.D.N.Y. 2004)

8 (explaining the principles).

9 In concluding that the law of procedural due process

10 was not clearly established in the child-removal context in 1997,

11 the district court in the case at bar relied primarily on our

12 decision in Tenenbaum. There we held as a matter of first

13 impression that "where there is reasonable time consistent with

14 the safety of the child to obtain a judicial order, the

15 'emergency' removal of a child is unwarranted." Tenenbaum, 193

16 F.3d at 596. Because this principle was not clearly established

17 in 1990 -- the year the underlying conduct at issue in Tenenbaum

18 took place -- we affirmed the district court's decision in that

19 case that the defendants were entitled to qualified immunity. We

20 also made clear, however, that even in 1990, "it was established

21 as a general matter . . . that 'except where emergency

22 circumstances exist' a parent can 'not be deprived' of the

23 custody of his or her child 'without due process, generally in
17 In Tenenbaum, a removal was carried out because the

child had reported -- albeit under questionable circumstances --

that her father had sexually abused her. See Tenenbaum, 193 F.3d

at 594. There was no doubt at the time that the possibility of

sexual abuse was, as it always is, a serious concern. At issue

was whether there was nonetheless time under the circumstances to

secure a court order prior to effecting the removal without

risking imminent danger to the child. See id. at 608 (Jacobs,

J., dissenting) (describing majority opinion as holding that,

while there was "exigency," there was still no "emergency,"

because there was time to obtain a court order). Tenenbaum

represented a novel application of procedural due process law

because of the majority's holding that regardless of the

seriousness of the allegations, it was still necessary to obtain

a court order if time permitted. Here, by contrast, we

understand the plaintiffs to assert that the circumstances

presented did not necessitate an inquiry into whether there was

time to obtain a court order, because the conditions in the

Southerland home were not grave enough to trigger that inquiry.

40

1 the form of a predeprivation hearing.'" Id. at 596 (quoting

2 Hurlman, 927 F.2d at 79). 

3 In the present case, the plaintiffs assert "not solely

4 that defendants had sufficient time to obtain a court order, but

5 that the circumstances in which Woo found the children did not

6 warrant their removal at all, whether evaluated by pre- or postTenenbaum standards." Southerland Children's Br. at 39.17 7 We

8 understand the plaintiffs' contention to be that "emergency

9 circumstances" warranting removal simply did not exist.

10 The district court did not decide as a matter of law

11 that emergency circumstances existed in the Southerland home. To

12 the contrary, the district court concluded that "[v]iewing the

13 facts in the light most favorable to plaintiffs, a reasonable

14 juror could determine that the circumstances Woo encountered did

15 not demonstrate an imminent danger to the children's life or

16 limb." Southerland II, 521 F. Supp. 2d at 234 n.29. The court
18 The district court correctly noted that there are

material factual disputes concerning whether emergency

circumstances existed warranting the immediate removal of the

Southerland Children from their home. See Southerland II, 521 F.

Supp. 2d at 234 n.29 & 235 n.31. But even where emergency

circumstances warranting removal exist, "'the constitutional

requirements of notice and opportunity to be heard are not

eliminated but merely postponed.'" Kia P., 235 F.3d at 760

(quoting Duchesne, 566 F.2d at 826). Therefore, a plaintiff may

have a viable claim for violation of procedural due process even

where emergency circumstances existed at the time of removal, if

the plaintiff does not receive a timely and adequate postdeprivation hearing. See id. at 760-61. In this case, as will

be explained below, important factual questions remain concerning

the post-removal judicial confirmation proceedings, if any, that

took place in the days after the Southerland Children's removal

from their home.

41

1 further decided that "a reasonable juror could find that there

2 was sufficient time to acquire a court order prior to the

3 removal." Id. at 235 n.31. In light of those determinations,

4 with which we agree, and our assessment that the relevant law was

5 clearly established in 1997, we cannot conclude as a matter of

6 law that "it was objectively reasonable for [Woo] to believe

7 [that his] acts did not violate those [clearly established]

8 rights." Holcomb, 337 F.3d at 220. Qualified immunity therefore

9 is not available to Woo on the plaintiffs' procedural due process

10 claims at the summary judgment stage. Because summary judgment

11 also cannot be granted to the defendants on the underlying merits

of these claims,18 12 we vacate the grant of summary judgment to Woo

13 as to the procedural due process claims.

14 VI. Southerland's Substantive Due Process Claim

15 Southerland asserts a substantive due process claim

16 against Woo under the Fourteenth Amendment. The district court

17 held not only that qualified immunity attached to Woo's actions,
42

1 but also that summary judgment would be warranted on the merits

2 even in the absence of qualified immunity. We disagree with both

3 conclusions.

4 A. Substantive Due Process in the Child-Removal Context

5 Substantive due process guards a person's rights

6 "against the government's 'exercise of power without any

7 reasonable justification in the service of a legitimate

8 governmental objective.'" Tenenbaum, 193 F.3d at 600 (quoting

9 County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). "To

10 establish a violation of substantive due process rights, a

11 plaintiff must demonstrate that the state action was 'so

12 egregious, so outrageous, that it may fairly be said to shock the

13 contemporary conscience.'" Okin v. Vill. of Cornwall-on-Hudson

14 Police Dep't, 577 F.3d 415, 431 (2d Cir. 2009) (quoting Lewis,

15 523 U.S. at 847 n.8). The interference with the plaintiff's

16 protected right must be "'so shocking, arbitrary, and egregious

17 that the Due Process Clause would not countenance it even were it

18 accompanied by full procedural protection.'" Anthony, 339 F.3d

19 at 143 (quoting Tenenbaum, 193 F.3d at 600); see also Lewis, 523

20 U.S. at 840 (doctrine of substantive due process "bar[s] certain

21 government actions regardless of the fairness of the procedures

22 used to implement them" (internal quotation marks omitted)). 

23 Thus, in the child-removal context, we ask whether "the

24 removal . . . would have been prohibited by the Constitution even

25 had the [plaintiffs] been given all the procedural protections to
43

1 which they were entitled." Tenenbaum, 193 F.3d at 600 (emphasis

2 omitted).

3 We have long recognized that parents have a

4 "constitutionally protected liberty interest in the care, custody

5 and management of their children," id. at 593, and that the

6 deprivation of this interest is actionable under a theory of

7 substantive due process, see id. at 600 (recognizing a

8 "substantive right under the Due Process Clause 'to remain

9 together without the coercive interference of the awesome power

10 of the state'" (quoting Duchesne, 566 F.2d at 825)). We have

11 also observed, however, that "[a]lthough parents enjoy a

12 constitutionally protected interest in their family integrity,

13 this interest is counterbalanced by the compelling governmental

14 interest in the protection of minor children, particularly in

15 circumstances where the protection is considered necessary as

16 against the parents themselves." Wilkinson ex rel. Wilkinson v.

17 Russell, 182 F.3d 89, 104 (2d Cir. 1999) (internal quotation

18 marks omitted), cert. denied, 528 U.S. 1155 (2000). 

19 We have explained that, in part because the law

20 contemplates a careful balancing of interests, a parent's

21 substantive constitutional rights are not infringed if a

22 caseworker, in effecting a removal of a child from the parent's

23 home, has a reasonable basis for thinking that a child is abused

24 or neglected. See id. "This Circuit has adopted a standard

25 governing case workers which reflects the recognized need for

26 unusual deference in the abuse investigation context. An
44

1 investigation passes constitutional muster provided simply that

2 case workers have a 'reasonable basis' for their findings of

3 abuse." Id.; see also id. at 108 (concluding that the

4 "reasonable basis test" requires that caseworkers' decisions to

5 substantiate an allegation of child abuse "be consistent with

6 some significant portion of the evidence before them"). We have

7 applied this "reasonable basis" standard from time to time in

8 recent years. See, e.g., Nicholson, 344 F.3d at 174; Phifer v.

9 City of N.Y., 289 F.3d 49, 60 (2d Cir. 2002); Kia P., 235 F.3d at

10 758-59.

11 We have also recognized that substantive due process

12 claims in the child-removal context have a temporal dimension.

13 Because state interference with a plaintiff's liberty interest

14 must be severe before it rises to the level of a substantive

15 constitutional violation, see, e.g., Anthony, 339 F.3d at 143,

16 "brief removals [of a child from a parent's home] generally do

17 not rise to the level of a substantive due process violation, at

18 least where the purpose of the removal is to keep the child safe

19 during investigation and court confirmation of the basis for

20 removal," Nicholson, 344 F.3d at 172 (citing Tenenbaum, 193 F.3d

21 at 600–01 & n.12); see also Cecere, 967 F.2d at 830 (ruling that

22 plaintiff's due process claim failed because a "brief" four-day

23 removal, executed "in the face of a reasonably perceived

24 emergency," did not violate due process); Joyner ex rel. Lowry v.

25 Dumpson, 712 F.2d 770, 779 (2d Cir. 1983) (no substantive

26 violation where temporary transfer of custody to foster-care
45

1 system did not "result in parents' wholesale relinquishment of

2 their right to rear their children"). 

3 B. Analysis

4 The district court, in deciding that qualified immunity

5 protection prevailed, concluded that it was objectively

6 reasonable for Woo to think that Southerland's substantive due

7 process rights were not being violated because "[b]rief removals

8 of children from their parents generally do not rise to the level

9 of a substantive due process violation," Southerland II, 521 F.

10 Supp. 2d at 232 (brackets and internal quotation marks omitted),

11 and because the Southerland Children "were removed in the context

12 of a child protective investigation [in which] removal would be

13 subject to court confirmation," id.; see also id. at 234

14 (suggesting that "a family court judge confirmed the removal" at

15 a "timely post-deprivation hearing"). 

16 We agree in principle. The removal of a child from his

17 or her parent does not violate the parent's substantive due

18 process rights if a post-removal judicial proceeding is promptly

19 held to confirm that there exists a reasonable basis for the

20 removal. The period of time in which the child and parent are

21 separated at the sole instruction of the defendant is, in such a

22 case, not severe enough to constitute a substantive due process

23 violation by the defendant. See Nicholson, 344 F.3d at 172;

24 Tenenbaum, 193 F.3d at 600-01. If it were clear in the record

25 that the removal of the Southerland Children was confirmed by a

26 prompt and adequate judicial confirmation proceeding, we would
19 See Southerland Children's Br. at 23 ("The children were

held by the defendants without court order from June 9 until June

13, 1997. ACS filed a petition in the Family Court on June 13,

1997, and apparently some kind of proceeding was held on that

day, although there is no evidence of it in the record.");

Appellees' Br. at 19 ("Plaintiff Southerland's children, the

Court found, were removed from the home and held in ACS custody

pending a timely post-deprivation hearing where a family court

judge confirmed the removal."). The parties have failed to brief

the issue despite our prior instruction that Southerland "be

given an opportunity to prove . . . that the subsequent family

46

1 agree with the district court that summary judgment would be

2 appropriate on that basis.

3 But the record is not sufficiently clear for us to

4 determine whether such a post-removal judicial proceeding

5 occurred, and if so, the nature of it. The district court stated

6 that the Southerland Children were removed and held in ACS

7 custody "pending a timely post-deprivation hearing where a family

8 court judge confirmed the removal." Southerland II, 521 F. Supp.

9 2d at 234. And the court had previously observed that the

10 Southerland Children "remained in custody without a court order

11 until the morning of June 12, 1997" -- about forty-eight hours --

12 "at which time Woo obtained a court order confirming the

13 removal." Southerland v. City of N.Y., No. 99-cv-3329, 2006 WL

14 2224432, at *1, 2006 U.S. Dist. LEXIS 53582, at *4 (E.D.N.Y. Aug.

15 2, 2006). Although the parties do not appear to dispute that a

16 post-removal judicial confirmation proceeding was held, nor do

17 they dispute that this proceeding took place within several days

18 after removal, they provide no further detail upon which we can

19 assess the nature of the proceeding in terms of its timeliness

and adequacy.19 20
court proceedings were insufficiently prompt to pass

constitutional muster." Southerland I, 4 F. App'x at 36.

47

1 We are also unable to determine from the present record

2 on what factual basis the Family Court decided that the continued

3 removal of the Southerland Children was warranted. We do not

4 know, for example, whether its decision to confirm the removal

5 was based solely on written submissions by Woo to the same effect

6 and containing the same errors as Woo's application for the Order

7 Authorizing Entry.

8 Apparently relying on the understanding that the Family

9 Court had promptly confirmed the Southerland Children's removal,

10 the district court concluded that no reasonable trier of fact

11 could find that the removal of the Children was "so 'shocking,

12 arbitrary, and egregious' that Southerland's substantive due

13 process rights were violated." Southerland II, 521 F. Supp. 2d

14 at 235 (citation omitted). For much the same reason that we

15 conclude that material questions of fact preclude summary

16 judgment on the merits of the plaintiffs' procedural due process

17 claims, however, we conclude that summary judgment was

18 inappropriate on the merits of Southerland's substantive due

19 process claim. 

20 A plaintiff's substantive due process claim fails if

21 "there is an objectively reasonable basis for believing that

22 parental custody constitutes a threat to the child's health or

23 safety." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir.

24 1996). Although this "reasonable basis" standard appears to
48

1 impose a lesser burden on a defendant than the "emergency

2 circumstances" standard applicable to procedural due process

3 claims, summary judgment is nevertheless not appropriate unless

4 "there exists no genuine issue of material fact and, based on the

5 undisputed facts, the moving party is entitled to judgment as a

6 matter of law." D'Amico, 132 F.3d at 149. 

7 The facts concerning the nature of Southerland's

8 behavior during Woo's investigation and the conditions in the

9 Southerland apartment at the time that Woo effected the removal

10 remain hotly contested by the parties. For example, while Woo

11 contends that the apartment lacked enough food, lighting, and

12 bedding; that the Children were malodorous; and that various

13 safety hazards were present, Southerland has tendered admissible

14 evidence (albeit largely in the form of his own testimony) that

15 each of those factual assertions is false. If the trier of fact

16 were to credit Southerland's account, we cannot say that it would

17 be unreasonable for it to then conclude that a reasonable

18 caseworker in Woo's position lacked an "objectively reasonable

19 basis" for removing the Children, Gottlieb, 84 F.3d at 518, and

20 thus that Woo's actions were "shocking, arbitrary, and

21 egregious," Anthony, 339 F.3d at 143 (internal quotation marks

22 omitted). Moreover, in the absence of record evidence as to the

23 substance of the post-removal judicial confirmation proceeding,

24 we cannot conclude that the fact that the Family Court confirmed

25 the removal of the Southerland Children suffices to show that
49

1 Woo's conduct had an objectively reasonable basis. Cf.

2 Southerland II, 521 F. Supp. 2d at 234-35.

3 Finally, we consider whether Woo is nonetheless

4 entitled to summary judgment on the basis of qualified immunity. 

5 As noted, qualified immunity is available to defendants "insofar

6 as their conduct does not violate clearly established statutory

7 or constitutional rights of which a reasonable person would have

8 known." Harlow, 457 U.S. at 818; see also Cornejo v. Bell, 592

9 F.3d 121, 128 (2d Cir.), cert. denied, 131 S. Ct. 158 (2010). 

10 When a defendant official invokes qualified immunity as a basis

11 for summary judgment, a court must consider not only whether

12 evidence in the record suggests a violation of a statutory or

13 constitutional right, but also "whether that right was clearly

14 established at the time of the alleged violation." Tracy v.

15 Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). Thus, if it could be

16 shown that, at the time of the events in question, Woo lacked a

17 legal basis upon which he could conclude that his actions would

18 violate Southerland's substantive due process rights, Woo would

19 be entitled to qualified immunity. 

20 "The relevant, dispositive inquiry in determining

21 whether a right is clearly established is whether it would be

22 clear to a reasonable officer [in the position of the defendant]

23 that his conduct was unlawful in the situation he confronted." 

24 Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled on other

25 grounds by Pearson v. Callahan, 555 U.S. 223 (2009). In

26 answering that question, we consider: "(1) whether the right was
50

1 defined with reasonable specificity; (2) whether Supreme Court or

2 court of appeals case law supports the existence of the right in

3 question, and (3) whether under preexisting law a reasonable

4 defendant would have understood that his or her acts were

5 unlawful." Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010). 

6 "The task of framing the right at issue with some precision is

7 critical in determining whether that particular right was clearly

8 established at the time of the defendants' alleged violation." 

9 Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010); see also Wilson

10 v. Layne, 526 U.S. 603, 609 (1999). Although the matter of

11 whether a right at issue is clearly established is a question of

12 law, Higazy v. Templeton, 505 F.3d 161, 170 (2d Cir. 2007), that

13 question is "tied to the specific facts and context of the case,"

14 Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir. 2007). 

15 In 1997, when Woo effected the removal, it was well

16 established as a general matter that parents possess a

17 substantive right under the Due Process Clause of the Fourteenth

18 Amendment to exercise care, custody, and control over their

19 children. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753

20 (1982); Gottlieb, 84 F.3d at 518; Joyner ex rel. Lowry, 712 F.2d

21 at 777. It was also the law, however, that where "parental

22 custody constitutes a threat to the child's health or safety,

23 government officials may remove a child from his or her parents'

24 custody at least pending investigation." Gottlieb, 84 F.3d at

25 518; see also Stanley v. Illinois, 405 U.S. 645, 649-53 (1972);
51

1 Croft v. Westmoreland County Children & Youth Servs., 103 F.3d

2 1123, 1125 (3d Cir. 1997).

3 We therefore determined prior to 1997 that where the

4 state has an "objectively reasonable basis" for removing a child

5 from his or her parent, the parent's substantive constitutional

6 rights are not infringed. Gottlieb, 84 F.3d at 518; see

7 generally id. at 520; van Emrik v. Chemung County Dep't of Soc.

8 Servs., 911 F.2d 863, 866 (2d Cir. 1990). We also repeatedly

9 assured potential defendants that qualified immunity would be

10 available to "protect state officials in choosing between

11 [difficult] alternatives, provided that there is an objectively

12 reasonable basis for their decision, whichever way they make it." 

13 van Emrik, 911 F.2d at 866; see also Defore v. Premore, 86 F.3d

14 48, 50 (2d Cir. 1996) (per curiam) (qualified immunity exists to

15 "insure that publicly employed caseworkers have adequate latitude

16 to exercise their professional judgment in matters of child

17 welfare"). 

18 In 1999, two years after the events in question here,

19 we summarized the state of the law in Wilkinson: "Although

20 parents enjoy a constitutionally protected interest in their

21 family integrity, this interest is counterbalanced by the

22 'compelling governmental interest in the protection of minor

23 children, particularly in circumstances where the protection is

24 considered necessary as against the parents themselves.'" 

25 Wilkinson, 182 F.3d at 104 (quoting Manzano v. S.D. Dep't of Soc.

26 Servs., 60 F.3d 505, 510 (8th Cir. 1995) (internal quotation
52

1 marks omitted)). We observed that "[t]he difficulty of balancing

2 the weighty interests apparent in the [child] abuse context . . .

3 has prompted courts to impose few concrete restrictions on case

4 workers, in exercising their discretion, short of [certain]

5 obvious extremes." Id. We described those "extremes" as

6 including circumstances where a caseworker "ignor[es]

7 overwhelming exculpatory information" or "manufactur[es] false

8 evidence." Id. We concluded in dicta that our decisions to that

9 date had left the defendants at bar "with little or no indication

10 that their alleged misconduct, as near as it was to the

11 constitutional borderline, would have even implicated serious

12 constitutional concerns." Id. at 107; see also Patel v. Searles,

13 305 F.3d 130, 139 (2d Cir. 2002), cert. denied, 538 U.S. 907

14 (2003). Our discussion in Wilkinson would seem to suggest that

15 perhaps there was a lack of clearly established law available to

16 guide Woo's conduct.

17 We nonetheless cannot conclude as a matter of law that,

18 in 1997, Woo lacked sufficient legal guidance by which to discern

19 the lawfulness of his actions. Assuming, as we must at the

20 summary judgment stage, that the factual circumstances are as

21 Southerland, not Woo, describes them, and resolving all

22 credibility questions and drawing all reasonable inferences in

23 Southerland's favor, we are not able to say that Woo would then

24 have lacked a legal basis for understanding that removing the

25 children from their home would be unlawful. Indeed, the district

26 court here was also of the view that "Southerland's substantive
53

1 due process rights were clearly established at the time of the

2 removal of the children." Southerland II, 521 F. Supp. 2d at

3 232. 

4 We therefore cannot conclude on this record that the

5 principles of law applicable to the facts as we must view them on

6 appeal from a grant of summary judgment were not clearly

7 established in 1997. Woo is thus not entitled at this stage to

8 qualified immunity on Southerland's substantive due process

9 claim, although, again, once the relevant disputes of material

10 fact are resolved, the district court might eventually conclude

11 that Woo is entitled to such immunity.

12 VII. The Southerland Children's Fourth 

13 Amendment Unlawful-Seizure Claim

14 Finally, the Southerland Children assert a claim for

15 violation of their own substantive due process rights, which the

16 district court recharacterized as a claim of unlawful seizure

17 under the Fourth Amendment. See Southerland II, 521 F. Supp. 2d

18 at 227 n.22, 230 n.24. The district court concluded that Woo was

19 entitled to qualified immunity because "prior to the Court of

20 Appeals' decision in Tenenbaum [in 1999], there was no clear

21 application of Fourth Amendment standards in the child removal

22 context." Id. at 231. Although we agree with the district

23 court's observation that this Circuit had not yet applied Fourth

24 Amendment unlawful-seizure principles in the child-removal

25 context by 1997, we think that the district court erred by

26 conducting its inquiry solely by reference to the Fourth

27 Amendment.
20 We reaffirmed this approach in Kia P., 235 F.3d at 757-

58, where we also construed a child's claimed violation of

substantive due process as instead arising under the Fourth

Amendment. In Southerland I, we relied on Kia P. in stating that

"[t]he [Southerland] children's claims for unreasonable seizure

54

1 Our decision in Tenenbaum effected a change in the

2 legal framework applicable to a child's claim for substantive

3 constitutional violations arising out of the child's removal from

4 his or her parent's home. There, the plaintiffs contended that

5 "[their daughter's] temporary removal for the purpose of

6 subjecting her to a medical examination violated their and [the

7 daughter's] substantive due-process rights." Tenenbaum, 193 F.3d

8 at 599. Relying on Albright v. Oliver, 510 U.S. 266, 273 (1994)

9 (plurality opinion of Rehnquist, C.J.), we observed that 

10 where a particular Amendment provides an

11 explicit textual source of constitutional

12 protection against a particular sort of

13 government behavior, that Amendment, not the

14 more generalized notion of substantive due

15 process, must be the guide for analyzing

16 these claims.

17 Tenenbaum, 193 F.3d at 599 (brackets and internal quotation marks

18 omitted). We said that "'[s]ubstantive due process analysis

19 is . . . inappropriate . . . if [the] claim is covered by the

20 Fourth Amendment.'" Id. at 600 (quoting Lewis, 523 U.S. at 843)

21 (second brackets in original; other internal quotation marks

22 omitted). We then concluded that the daughter's "removal and her

23 examination constituted a seizure and search, respectively, under

24 the Fourth Amendment," id., and that her claim "therefore 'must

25 be analyzed under the standard appropriate to [the Fourth

Amendment], not under the rubric of substantive due process.'"20 26
would proceed under the Fourth Amendment rather than the

substantive component of the Due Process Clause." Southerland I,

4 F. App'x at 37 n.2.

55

1 Id. (quoting United States v. Lanier, 520 U.S. 259, 272 n.7

2 (1997)).

3 The fact that Tenenbaum changed the legal "rubric"

4 applicable to the Southerland Children's constitutional claims,

5 however, is not determinative of whether their rights were

6 clearly established in 1997. It would be inappropriate, we

7 think, to afford Woo qualified immunity on the Southerland

8 Children's claims solely because, two years after the events in

9 question, we shifted the constitutional framework for evaluating

10 those claims from the Fourteenth to the Fourth Amendment.

11 We reached a similar conclusion in Russo v. City of

12 Bridgeport, 479 F.3d 196 (2d Cir.), cert. denied, 552 U.S. 818

13 (2007). There we made clear that the constitutional "right to be

14 free from prolonged detention caused by law enforcement

15 officials' mishandling or suppression of exculpatory evidence,"

16 id. at 211, was a species of the right to be free from unlawful

17 seizure under the Fourth Amendment, not a substantive due process

18 right under the Fourteenth Amendment, see id. at 208-09. In then

19 proceeding to undertake a qualified immunity inquiry, we

20 cautioned that our "clarification [of the law was] of no

21 consequence to the question of whether the right was clearly

22 established [at the time of the relevant events], because the

23 proper inquiry is whether the right itself -- rather than its

24 source -- is clearly established." Id. at 212 (collecting cases;
56

1 emphasis in original). Here, as in Russo, in inquiring whether

2 there was clearly established law to govern the Southerland

3 Children's claims in 1997, we look not only to authorities

4 interpreting the Fourth Amendment, but to all decisions

5 concerning the same substantive right. 

6 At the time of the events in question in this case, a

7 child's claim for violation of his or her right to "preservation

8 of family integrity," Duchesne, 566 F.2d at 825, would likely

9 have been understood to arise under the substantive due process

10 guarantee of the Fourteenth Amendment. This right had been

11 recognized in our case law by 1997, see Joyner ex rel. Lowry, 712

12 F.2d at 777-78; Rivera v. Marcus, 696 F.2d 1016, 1026 (2d Cir.

13 1982); Leonhard v. United States, 633 F.2d 599, 618 (2d Cir.

14 1980) (collecting cases); Duchesne, 566 F.2d at 825, although it

15 had been less frequently litigated than the corresponding

16 substantive parental right.

17 As with the corresponding parental right, however, the

18 law in 1997 also recognized the countervailing principle that the

19 state may remove children from the custody of their parents

20 without violating the children's constitutional rights where

21 there is a reasonable basis for concluding that the children are

22 abused or neglected. See, e.g., Rivera, 696 F.2d at 1017.

23 For much the same reason that we determined that Woo is

24 not entitled to qualified immunity as a matter of law on the

25 current record as to Southerland's substantive due process claim,

26 resolving all disputed facts in the plaintiffs' favor for these
57

1 purposes, we conclude that a reasonable caseworker in Woo's

2 position would not have lacked a sufficient legal basis for

3 knowing that his conduct under those circumstances would infringe

4 upon the substantive constitutional rights of the Southerland

5 Children. As with the other claims addressed in these appeals,

6 though, the district court may yet conclude on remand and after

7 further development of the facts that Woo is entitled to

8 qualified immunity in this context.

9 Finally, we note that the district court concluded

10 that, in the absence of qualified immunity protection, Woo would

11 not be entitled to summary judgment on the merits of the

12 Southerland Children's Fourth Amendment unlawful-seizure claim. 

13 See Southerland II, 521 F. Supp. 2d at 234 n.29. We have no

14 reason to disturb that ruling on appeal.

15 CONCLUSION

16 For the foregoing reasons, we vacate the district

17 court's grant of summary judgment on each of the plaintiffs'

18 claims that have been preserved for appeal: (1) Southerland's and

19 the Southerland Children's claims for Fourth Amendment violations

20 arising out of the allegedly unlawful search of the Southerland

21 home; (2) Southerland's and the Southerland Children's claims for

22 violations of procedural due process under the Fourteenth

23 Amendment; (3) Southerland's claim for violation of substantive

24 due process under the Fourteenth Amendment; and (4) the

25 Southerland Children's claim for unlawful seizure under the

26 Fourth Amendment. We remand for further proceedings.