*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 UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 August Term, 2008 3 (Argued: April 21, 2009 Decided: June 10, 2011) 4 5 Docket Nos. 07-4449-cv (L), 07-4450-cv (CON) 6

------------------------------------- 7 SONNY B. SOUTHERLAND, SR., individually and as parent and natural 8 guardian of VENUS SOUTHERLAND, SONNY B. SOUTHERLAND, JR., 9 NATHANIEL SOUTHERLAND, EMMANUEL FELIX, KIAM FELIX, and ELIZABETH 10 FELIX, 11 Plaintiffs-Appellants , 12

- v - 13 CITY OF NEW YORK, TIMOTHY WOO, JOHN DOES 1-9, 14 Defendants-Appellees

. * 15

------------------------------------- 16 Before: KEARSE, SACK, and HALL, Circuit Judges

. 17 18 Consolidated appeals from a summary judgment entered by 19 the United States District Court for the Eastern District of New 20 York (Charles P. Sifton, Judge ) in favor of, inter alios , the 21 defendant Woo. The plaintiffs -- a father and his children -- 22 bring various claims under 42 U.S.C. § 1983 asserting that Woo, a 23 children's services caseworker employed by the defendant City of 24 New York, entered their home unlawfully and effected an 25 unconstitutional removal of the children into state custody. The 26 district court concluded that Woo was entitled to qualified 272 immunity with respect to all of the claims against him. We 1 disagree. As to each claim that has been preserved for appeal: 2 Vacated and remanded. 3 MICHAEL G. O'NEILL, New York, N.Y., for 4 Plaintiffs-AppellantsVenus S., Sonny 5 B.S. Jr., Nathaniel S., Emmanuel F., 6 Kiam F., and Elizabeth F. 7 8 SONNY B. SOUTHERLAND, Brooklyn, N.Y., 9 Plaintiff-Appellant , pro se . 10 JULIAN L. KALKSTEIN, City of New York 11 (Michael A. Cardozo, Corporation 12 Counsel; Larry A. Sonnenshein, of 13 counsel), New York, N.Y., for 14 Defendants-Appellees

. 15 16 SACK, Circuit Judge : 17 This lawsuit involves a man and a woman -- the 18 plaintiff Sonny B. Southerland Sr. ("Southerland") and non-party 19 Diane Manning -- two groups of children, and a caseworker's 20 apparent confusion between the two groups. Plaintiff Ciara 21 Manning is the daughter of Southerland and Diane Manning. Ciara 22 was supposed to be living with Southerland at the time in 23 question, but in fact had left to live with a friend. 24 In addition to Ciara, plaintiff Southerland fathered, 25 by one or more women other than Diane Manning, six other 26 children: the plaintiffs Venus Southerland, Sonny B. Southerland 27 Jr., Nathaniel Southerland, Emmanuel Felix, Kiam Felix, and 28 Elizabeth Felix (together, the "Southerland Children"). At the 29 time of the principal events in question, the Southerland 30 Children, unlike Ciara, were living with their father. 313 Diane Manning also allegedly bore, by one or more men 1 other than Southerland, six children other than Ciara: Eric 2 Anderson, Richy Anderson, Felicia Anderson, Erica Anderson, 3 Michael Manning, and Miracle Manning (together, the "Manning 4 Children"). They lived with Diane and, like her, are not parties 5 to this lawsuit. 6 In May 1997, the defendant Timothy Woo, a caseworker in 7 the Brooklyn Field Office of the New York City Administration for 8 Children's Services ("ACS"), was assigned to investigate a report 9 by a school counselor about then-sixteen-year-old Ciara Manning. 10 School staff had thought Ciara to be acting strangely at school. 11 After being unable, despite repeated attempts, to gain 12 entry to the Southerland home to investigate the report, Woo 13 sought and obtained from the Kings County Family Court an order 14 authorizing entry into the apartment. Woo's application to 15 obtain that order contained several misstatements of fact, which 16 suggested Woo's possible confusion about which of the children 17 resided with Southerland. 18 Under the authority of the Family Court's order, Woo 19 then entered the Southerland apartment. Ciara was not there; 20 some of Southerland's other children who lived with him were

. 21 Based on what Woo perceived to be the poor condition of the home 22 and of the Southerland Children, and his other observations from 23 the investigation undertaken to that date, Woo and his supervisor 24 decided to carry out an immediate removal of the children into 25 ACS custody. 261We 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); seeMapp v. Ohio , 367 U.S. 643, 655 (1961).

2Judge Sifton passed away while these appeals were pending. 4 Southerland and the Southerland Children brought this 1 action based on Woo's entry into the apartment and removal of the 2 children. They claim that Woo violated their Fourth Amendment 1 3 rights to be free from unreasonable searches of their home, and 4 that the manner in which the Southerland Children were removed 5 violated their procedural due process rights under the Fourteenth 6 Amendment. Southerland also claims that the removal of the 7 Southerland Children from his home violated his substantive due 8 process rights under the Fourteenth Amendment. Finally, the 9 Southerland Children claim that their removal violated their 10 Fourth Amendment rights to be free from unreasonable seizure. 11 The district court (Charles P. Sifton, Judge ) 2 12 concluded, inter alia , that Woo was entitled to qualified 13 immunity with respect to all of the claims against him and 14 granted summary judgment in his favor. We disagree with those 15 conclusions and therefore vacate the district court's judgment as 16 to those claims that have been pursued on appeal and remand the 17 matter for further proceedings. 18

**BACKGROUND** 19 The relevant facts are rehearsed in detail in the 20 district court's opinion. SeeSoutherland v. City of N.Y. , 521 215 F. Supp. 2d 218 (E.D.N.Y. 2007) ("Southerland II "). They are set 1 forth here only insofar as we think it necessary for the reader 2 to understand our resolution of these appeals. Where the facts 3 are disputed, we construe the evidence in the light most 4 favorable to the plaintiffs, who are the nonmoving parties. See, 5

e.g. , SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d 6 Cir. 2009). We also draw all reasonable factual inferences in 7 the plaintiffs' favor. See, e.g. , id. 8 The ACS Investigation 9 On May 29, 1997, a school guidance counselor reported 10 to the New York State Central Registry Child Abuse Hotline that 11 one of the school's students, Ciara Manning, the then-sixteen12 year-old daughter of Diane Manning and plaintiff Southerland, was 13 "emotionally unstable." The counselor further reported: 14 Fa[ther] fails to follow through w[ith] 15 mental health referrals. On 5/12/97 the 16 ch[ild] swallowed a can of paint. F[ather] 17 failed to take the ch[ild] for medical 18 attention. Fa[ther] is unable to control or 19 supervise the ch[ild]. She may be staying 20 out of the home in an i[m]proper 21 enviro[n]ment. 22 Intake Report at 3, Office of Children and Family Services, Child 23 Protective Services, May 29, 1997 ("Intake Report"), Ex. A to the 24 Declaration of Janice Casey Silverberg (Dkt. No. 168) 25 ("Silverberg Decl."), Southerland v. City of N.Y. , No. 99-cv-3329 26 (E.D.N.Y. Sept. 18, 2006). The Intake Report was transmitted to 27 the Brooklyn Field Office of the ACS. There, Fritz Balan, a 28 supervisor, assigned the case to defendant Timothy Woo, an ACS 296 caseworker, for investigation. Woo, who was required by New York 1 law to begin his investigation within 24 hours, did so that day. 2 He first examined the files of a case pending in that 3 ACS office regarding Ciara's mother, Diane Manning. Material in 4 those files disclosed that Ciara had several younger half5 siblings: the Manning Children. According to Woo, this material 6 also indicated that Ciara lived with her father, Southerland, at 7 a Brooklyn address, although the plaintiffs correctly note the 8 absence of any evidence as to the source of that information and 9 the time it was received. It is not clear from the record 10 whether Woo was aware that the children referenced in Diane 11 Manning's case file were not related to Southerland and that they 12 did not live with him. SeeSoutherland II , 521 F. Supp. 2d at 13 222, 224 & n.8. 14 Woo also contacted the school guidance counselor who 15 had called the child-abuse hotline. According to Woo, the 16 counselor told him that while at school, Ciara had swallowed non17 toxic paint, expressed thoughts of suicide, and was generally 18 behaving aggressively and "acting out." Declaration of Timothy 19 Woo ¶ 10 (Dkt. No. 169) ("Woo Decl."), Southerland v. City of 20

N.Y. , No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). Woo's 21 handwritten notes from the conversation indicate that the 22 counselor told Woo that "father [i.e., Southerland] doesn't 23 approve of the place [where Ciara] is staying." Notes of Timothy 24 Woo at 1, Ex. A to the Declaration of Michael G. O'Neill(Dkt. 25 No. 182) ("O'Neill Decl."), Southerland v. City of N.Y. , No. 99- 267 cv-3329 (E.D.N.Y. Dec. 28, 2006). It is disputed whether the 1 counselor also told Woo that Southerland had been unresponsive to 2 the school's stated concerns about Ciara's behavior. 3 Later that day, Woo attempted to visit Southerland's 4 apartment in Brooklyn where, for reasons that are not clear from 5 the record, Woo thought Ciara was staying. When no one answered 6 the door, Woo left a note containing his contact information. 7 The following day, May 30, Southerland telephoned Woo. 8 During the course of their conversation, Southerland described 9 Ciara as a runaway who would not obey him. Southerland suggested 10 that he visit the ACS office to discuss the matter with Woo 11 further. The plaintiffs dispute Woo's assertion that during the 12 phone conversation, Southerland indicated that he would not 13 permit Woo to visit Southerland's apartment. Southerland 14 contends that, although he did question why Woo needed to visit 15 the apartment since Ciara did not live there, Southerland 16 nonetheless indicated that he would be willing to make an 17 appointment for Woo to conduct a home visit if Woo insisted. 18 Southerland visited the ACS office and met with Woo 19 later that day. According to Southerland's deposition testimony, 20 he told Woo that Ciara had run away and that he had obtained 21 several "Persons in Need of Supervision" ("PINS") warrants 22 against her. Woo's case notes indicate that Woo asked 23 Southerland why he had not sought medical attention for Ciara 24 after the paint-swallowing incident. Southerland did not answer 253Southerland 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. 3SeeProgress Notes of T. Woo at 1 ("Progress 1 Notes"), Ex. B to O'Neill Decl. 2 Southerland told Woo and Balan, Woo's supervisor, that 3 Ciara did not need psychiatric help, and that she "'was only 4 acting the way she did to get attention.'" Southerland II , 521 5 F. Supp. 2d at 223 (quoting Woo Decl. ¶ 10); see alsoDeclaration 6 of Fritz Balan ¶ 7 (Dkt. No. 170) ("Balan Decl."), Southerland v. 7 City of N.Y. , No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). 8 According to Woo, he explained to Southerland that various 9 services were available through ACS to assist him and his 10 children, including counseling and help with obtaining food, 11 furniture, and clothing. Southerland declined. According to 12 Southerland, however, no such assistance was ever offered. 13 When Woo said he would need to make a home visit, 14 Southerland replied that it would be "no problem" as long as he 15 was notified in advance. Southerland II , 521 F. Supp. 2d at 223; 16 see alsoDeposition of Sonny B. Southerland at 207 ("Southerland 17 Dep."), Ex. F to O'Neill Decl. Southerland asserts that Woo 18 stated he would call him to arrange the visit, but that Woo never 19 made such a call. 20 On June 2, 1997, Woo made a second attempt to examine 21 the Southerland apartment. A woman whose identity was unknown to 229 Woo answered the door. She said that Southerland was not at 1 home. Woo left. 2 The following day, June 3, Woo again went to the 3 apartment. He heard noises inside, but no one answered the door. 4 Again, he left. 5 The next day, June 4, Woo went to the apartment for a 6 fourth time. He waited in the hallway for several minutes. 7 Southerland emerged accompanied by five school-aged children: 8 Sonny Jr., Venus, Emmanuel, Nathaniel, and Kiam. Woo wrote down 9 their names in his case notes. Southerland told Woo that he did 10 not have time to talk because he was taking the children to 11 school. Woo gave Southerland an ACS business card and told him 12 that if he continued to be uncooperative, ACS would seek court 13 action. Southerland II , 521 F. Supp. 2d at 223-24 & n.6; see 14 alsoProgress Notes at 2. 15 The Removal of the Southerland Children 16 On June 6, 1997, at the direction of supervisor Balan, 17 Woo applied to the Kings County Family Court for an order to 18 enter the Southerland apartment pursuant to section 1034(2) of 19 the New York Family Court Act. It is ACS policy to investigate 20 not only the status of the child named in a report of suspected 21 abuse or maltreatment of the type referred to in section 1034(2), 22 but also that of any other children residing in the same home. 23 Woo listed Ciara on the application. Instead of including the 24 names of the children he had met leaving Southerland's home on 25 June 4, however, he listed the other children of Ciara's mother 264Woo 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 Diane -- the Manning Children: Eric Anderson, Richy Anderson, 1 Felicia Anderson, Michael Manning, Miracle Manning, and Erica 2 Anderson -- whose names he apparently had obtained from the Diane 3 Manning case files he had reviewed at ACS's Brooklyn Field 4 Office. 4The Family Court issued an "Order Authorizing Entry" 5 into the Southerland apartment the same day, June 6. 6
See Southerland II , 521 F. Supp. 2d at 224. 7 Three days later, on the evening of June 9, 1997, 8 pursuant to the Order Authorizing Entry, Woo and another 9 caseworker entered the Southerland apartment with the assistance 105The 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 of officers from the New York City Police Department. 1 Southerland and the Southerland Children were present inside the 2 home. Woo Decl. ¶¶ 13-15, 19. The district court described what 3 happened next, from Woo's perspective: 4 Woo determined that there were six children 5 between the ages of three and nine residing 6 in the apartment. He listed their names 7 [correctly] as Venus, Sonny Jr., Nathaniel, 8 Emmanuel, Kiam, and Elizabeth Felix. Soon 9 after beginning his evaluation of the home, 10 Woo called his supervisor [Balan] on his cell 11 phone, described his observations, and 12 answered his supervisor's questions. Woo 13 reported that the four boys slept on the 14 floor in one bedroom and the two girls slept 15 on a cot in another bedroom. The children 16 appeared as though they had not been bathed 17 in days and their clothing was malodorous. 18 In the refrigerator, Woo found only beer, a 19 fruit drink, and English muffins. Woo did 20 not examine the contents of the kitchen 21 cupboards. The other caseworker observed 22 that one child, Venus, was limping because of 23 a foot injury. The child stated that she had 24 stepped on a nail. The caseworker concluded 25 that Southerland had not sought medical 26 attention for her. Woo reported that the 27 only light source in the bedroom area was 28 from a blank television screen. Woo observed 29 an electric lamp on the floor, without a 30 shade, connected to an outlet in the living 31 room by means of several extension cords 32 along the floor. Woo reported that another 33 room contained stacks of electronic 34 equipment. Woo and his supervisor concluded 35 that the children's safety was threatened, 36 and Balan directed Woo to remove the children 37 from the home. 38 Id.at 224-25 (footnotes omitted). 5 39or 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.

6After 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 As the district court also observed, the plaintiffs -- 1 relying primarily on later deposition testimony by Southerland -- 2 offer a starkly different description of the conditions in the 3 Southerland home at the time. According to Southerland's 4 testimony, the apartment did not lack proper bedding; the boys 5 had a bunk bed in their room, although they preferred to sleep on 6 yellow foam sleeping pads on the floor. Id. at 225 n.10. The 7 children were not dirty; Southerland testified that he laundered 8 the children's clothing about once a week and bathed the children 9 daily. Id.at 225 n.11. There was food in the refrigerator, and 10 it is also a reasonable inference from Southerland's testimony 11 that there was food in the cupboards (which Woo did not examine), 12 because Southerland testified that groceries for the household 13 were purchased on a regular basis. Id. at 225 n.12. The 14 household did not lack lighting; Southerland testified that he 15 had a lamp plugged into a wall in each room. Id. at 225 n.14. 16 Finally, although Southerland does not dispute that Venus had a 17 foot injury, the plaintiffs stress Woo's concession that he did 18 not personally observe the injury during his assessment of the 19 home. 6Id.at 225 n.13. 20Southerland II , 521 F. Supp. 2d at 225 n.13.

7On March 14, 2007, Southerland made a pro sesubmission 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 SeSubmission 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 In the early hours of June 10, 1997, at Balan's 1 direction, Woo removed the Southerland Children from the 2 Southerland home. Woo took them to the ACS pre-placement 3 emergency shelter and arranged for emergency foster care. Id. at 4 226. 5 At some point -- it is not clear exactly when -- Woo 6 interviewed Ciara Manning, whom he had found living at the home 7 of her friend. Ciara told Woo that her father had sexually 8 abused her and threatened to kill her if she told anyone about it 9 -- allegations she later recanted. 7The Southerland Children 10 also complained of various kinds of abuse and mistreatment at the 11 hands of Southerland and his companion, Vendetta Jones. These 12 allegations concerning Ciara and the Southerland Children were 13 included in a verified petition filed by ACS with the Family 14 Court on June 13, 1997, and amended on June 27, 1997. The 15 petitions commenced child-protective proceedings under Article 10 16 of the New York Family Court Act, §§ 1011 et seq. , through which 17 ACS sought to have the Southerland Children adjudicated as abused 18 and neglected. 1914 On July 1, 1998, more than a year after the children 1 were removed from the Southerland home, the Kings County Family 2 Court concluded after a five-day trial that Southerland had 3 engaged in excessive corporal punishment of the Southerland 4 Children and that he had abused and neglected them. The court 5 also concluded that he had sexually abused his daughter Ciara. 6 The court ordered that the Southerland Children remain in foster 7 care, where they had resided since the June 1997 removal. The 8 New York Appellate Division, Second Department, affirmed these 9 orders, seeIn re Ciara M. , 273 A.D.2d 312, 708 N.Y.S.2d 717 (2d 10 Dep't 2000), and the New York Court of Appeals denied leave to 11 appeal, seeIn re Ciara M. , 95 N.Y.2d 767, 740 N.E.2d 653, 717 12 N.Y.S.2d 547 (2000). 13 In March 2004, nearly seven years after their removal 14 from the Southerland home, Sonny Jr. and Venus were permitted to 15 return to live with Southerland. Some seven months thereafter, 16 Nathaniel and Emmanuel were discharged from the juvenile justice 17 system by the Office of Children and Family Services and also 18 returned to the Southerland home. As far as we can determine 19 from the record, neither Kiam nor Elizabeth ever returned to live 20 with Southerland. 21 However strongly the facts of mistreatment found by the 22 Family Court at trial may indicate that Woo's perceptions about 23 the dangers to the Southerland Children of their remaining with 24 Southerland were correct, virtually none of this information was 25 in Woo's possession when he effected the June 9, 1997, entry and 2615 removal, as the district court correctly observed. See 1 Southerland II , 521 F. Supp. 2d at 226 n.19. These subsequently 2 determined facts therefore do not bear upon our consideration of 3 whether Woo's actions in effecting the removal were 4 constitutional. Seeid. 5 Prior Federal Court Proceedings 6 In June 1999, some two years after the removal and 7 while the Southerland Children remained in foster care, 8 Southerland, on behalf of himself and his children, filed a pro 9

secomplaint in the United States District Court for the Eastern 10 District of New York against more than forty defendants for the 11 allegedly wrongful removal of the Southerland Children from his 12 home. On February 1, 2000, the district court (Charles P. 13 Sifton, Judge ) granted the defendants' motion to dismiss on 14 grounds that included failure to state a claim, failure to plead 15 certain matters with particularity, lack of subject-matter 16 jurisdiction, and Eleventh Amendment immunity. SeeOpinion & 17 Order (Dkt. No. 43), Southerland v. City of N.Y. , No. 99-cv-3329 18 (E.D.N.Y. Feb. 2, 2000). 19 Southerland appealed. We affirmed in part, reversed in 20 part, and remanded the action. We ruled, inter alia , that the 21 district court had erred in dismissing Southerland's claims under 22 42 U.S.C. § 1983 relating to the seizure and removal of the 23 Southerland Children

. See Southerland v. Giuliani , 4 F. App'x 24 33, 36 (2d Cir. 2001) (summary order) (" Southerland I "). We 25 concluded that the pro secomplaint stated valid claims for 268Michael G. O'Neill was appointed as counsel for both Southerland and the Southerland Children. In April 2004, Southerland resumed proceeding pro sebefore 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 litemto 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.

9The 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 violations of both the substantive and procedural components of 1 the Fourteenth Amendment's Due Process Clause. Seeid.at 36-37. 2 We "emphasize[d] that our holding [wa]s limited to the claims 3 made directly by Sonny Southerland," noting that "[a]lthough the 4 children probably have similar claims, we have held that a non5 attorney parent must be represented by counsel in bringing an 6 action on behalf of his or her child." Id. at 37 (citation and 7 internal quotation marks omitted). We therefore "le[ft] it to 8 the district court upon remand to determine whether Southerland 9 should be given a chance to hire a lawyer for his children or to 10 seek to have one appointed for them." Id. 11 On remand, the district court appointed counsel to 12 represent both Southerland and the Southerland Children. 8 13 Southerland II , 521 F. Supp. 2d at 227. In November 2002, 14 through counsel, Southerland and the Southerland Children jointly 15 filed an amended complaint, id. at 221 & n.1, asserting nine 16 claims under 42 U.S.C. § 1983 against Woo and the City of New 17 York, id.at 221 n.2. 9 18plaintiff in the original complaint, she was dropped from the suit when the amended complaint was filed.

10The 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. SeeTapia-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 In the amended complaint, Southerland asserts four 1 separate claims against Woo. 10First, Southerland alleges an 2 unlawful-search claim, asserting that Woo's entry into his home 3 "without privilege, cause or justification" violated the Fourth 4 Amendment. Am. Compl. ¶¶ 40-41 (Dkt. No. 75), Southerland v. 5 City of N.Y. , No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002). 6 Southerland asserts a second Fourth Amendment unlawful-search 7 claim for Woo's remaining in his home even after discovering that 8 the children listed on the Order Authorizing Entry were not 9 there. Third, Southerland asserts a Fourteenth Amendment 10 procedural due process claim for removal of the Southerland 11 Children from his home without a court order and in the absence 12 of an immediate threat of harm to their lives or health. 13 Finally, Southerland alleges a substantive due process claim, 1411In 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 also under the Fourteenth Amendment, for Woo's removal of the 1 Southerland Children absent a reasonable basis for doing so. 2 The amended complaint also interposes various claims on 3 behalf of the Southerland Children. First, the Children assert 4 the same procedural due process claim under the Fourteenth 5 Amendment as does Southerland. Second, they assert a substantive 6 due process claim under the Fourteenth Amendment. The district 7 court recharacterized the latter claim as arising under the 8 Fourth Amendment's guarantee of protection against unlawful 9 seizure. 11SeeSoutherland II , 521 F. Supp. 2d at 230 n.24. 10 Finally, the district court construed the amended complaint as 11 asserting on behalf of the Children the same two Fourth Amendment 12 unlawful-search claims as were asserted by Southerland. 13 Southerland and the Southerland Children also bring 14 several claims against the City of New York. Southerland asserts 15 that the City is liable under 42 U.S.C. § 1983 for the removal of 16 the Southerland Children insofar as that removal was conducted 17 pursuant to two alleged official City policies: to remove 18 children without a reasonable basis, and to remove children 19 without a court order despite the absence of any immediate threat 20 of harm to their lives or health. Southerland and the 21 Southerland Children also allege that high-ranking policymakers 2212The 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. SeeSoutherland II , 521 F. Supp. 2d at 235 n.34. 19 within the City's police department knew or should have known 1 that the City's failure to train police officers accompanying ACS 2 employees on home visits and investigations would deprive New 3 York City residents of their constitutional rights. 12 4 On the defendants' motion for summary judgment, the 5 district court concluded that Woo was entitled to qualified 6 immunity as to all of the claims against him. With respect to 7 the Fourth Amendment unlawful-search claims, the court concluded 8 that the false and misleading statements made by Woo in his 9 application for the Order Authorizing Entry did not strip him of 10 qualified immunity because the plaintiffs could not show that 11 these statements were necessary to the finding of probable cause 12 to enter the home. Southerland II , 521 F. Supp. 2d at 230-31. 13 The court decided that qualified immunity was warranted because 14 "a corrected affidavit specifying all of the information known to 15 Woo establishes an objective basis that would have supported a 16 reasonable caseworker's belief that probable cause existed." Id. 17 at 231 (brackets, citation, and internal quotation marks 18 omitted). 19 With respect to the Southerland Children's Fourth 20 Amendment unlawful-seizure claim, and the procedural due process 21 claims brought by both sets of plaintiffs, the district court 22 decided that qualified immunity shielded Woo from liability 2320 because his actions pre-dated the clear establishment of law in 1 this context, which in its view did not occur until this Court's 2 decision in Tenenbaum v. Williams , 193 F.3d 581, 593 (2d Cir. 3 1999), cert. denied , 529 U.S. 1098 (2000). See Southerland II , 4 521 F. Supp. 2d at 231-32. 5 Lastly, with regard to Southerland's substantive due 6 process claim, the district court concluded that Woo was entitled 7 to qualified immunity because "it was objectively reasonable for 8 [him] to conclude that Southerland's substantive due process 9 rights were not violated" when Woo removed the Southerland 10 Children from the home, because "[b]rief removals of children 11 from their parents generally do not rise to the level of a 12 substantive due process violation, at least where the purpose of 13 the removal is to keep the child safe during investigation and 14 court confirmation of the basis for removal." Id. at 32 15 (brackets and internal quotation marks omitted). 16 Notwithstanding the district court's conclusion that 17 Woo was entitled to qualified immunity as to every claim asserted 18 against him, the court proceeded to consider, in the alternative, 19 the underlying merits of the plaintiffs' various claims. The 20 court decided that even in the absence of immunity, Woo would be 21 entitled to summary judgment with respect to the plaintiffs' 22 Fourth Amendment unlawful-search claims and Southerland's 23 substantive due process claim. Specifically, with respect to the 24 Fourth Amendment unlawful-search claims, the district court 25 decided that "no reasonable juror could infer that Woo knowingly 2621 and intentionally made false and misleading statements to the 1 family court in order to receive an order authorizing his entry 2 into the Southerland home." Id. at 233. With respect to 3 Southerland's substantive due process claim, the court concluded 4 that "no reasonable juror could find that the removal of the 5 children from their home in order to verify that they had not 6 been neglected or abused was so 'shocking, arbitrary, and 7 egregious' that Southerland's substantive due process rights were 8 violated." Id.at 234-35 (citation omitted). 9 The district court concluded that the City was also 10 entitled to summary judgment on all of the claims against it. 11
SeeSoutherland II , 521 F. Supp. 2d at 235-39. The plaintiffs do 12 not appeal from that portion of the judgment and therefore have 13 abandoned their claims against the City. SeeLoSacco v. City of 14 Middletown , 71 F.3d 88, 92-93 (2d Cir. 1995). 15 The district court determined, however, that without 16 qualified immunity protection, summary judgment would not be 17 appropriate on the merits of the procedural due process claims 18 brought by both Southerland and the Southerland Children because, 19 "[a]lthough defendants argue that the 'totality of the 20 circumstances' Woo encountered in the Southerland home required 21 an ex parte removal, they fail to explain why there was not 22 sufficient time for Woo to seek a court order removing the 23 children." SeeSoutherland II , 521 F. Supp. 2d at 235 n.31. Nor 24 would summary judgment be appropriate on the merits of the 25 Southerland Children's Fourth Amendment unlawful-seizure claim, 2622 the district court said, because the defendants could not explain 1 "why the particular circumstances that Woo encountered in the 2 Southerland home established that there was imminent danger to 3 the children's life or limb requiring removal in the absence of a 4 court order." Id.at 234 n.29. 5 Both Southerland and the Southerland Children now 6 appeal from the dismissal of each of their claims against Woo, 7 except for one Fourth Amendment claim brought by all plaintiffs. 8 The plaintiffs have not appealed the district court's adverse 9 ruling as to their claim that Woo violated the Fourth Amendment 10 by remaining in their home even after determining that the 11 children listed on the Order Authorizing Entry were not present. 12 We vacate and remand with respect to each of the 13 plaintiffs' claims that have been preserved for appeal. 14

**DISCUSSION** 15 I. Standard of Review 16 "We review a district court's grant of summary judgment 17 de novo , construing the evidence in the light most favorable to 18 the non-moving part[ies] and drawing all reasonable inferences in 19 [their] favor." Allianz Ins. Co. v. Lerner , 416 F.3d 109, 113 20 (2d Cir. 2005). "[S]ummary judgment is appropriate where there 21 exists no genuine issue of material fact and, based on the 22 undisputed facts, the moving party is entitled to judgment as a 23 matter of law." D'Amico v. City of N.Y. , 132 F.3d 145, 149 (2d 24 Cir.), cert. denied , 524 U.S. 911 (1998); seeFed. R. Civ. P. 25 56(a). 2623 II. Qualified Immunity 1 Qualified immunity shields public officials from 2 liability "insofar as their conduct does not violate clearly 3 established statutory or constitutional rights of which a 4 reasonable person would have known." Harlow v. Fitzgerald , 457 5 U.S. 800, 818 (1982). "In general, public officials are entitled 6 to qualified immunity if (1) their conduct does not violate 7 clearly established constitutional rights, or (2) it was 8 objectively reasonable for them to believe their acts did not 9 violate those rights." Holcomb v. Lykens , 337 F.3d 217, 220 (2d 10 Cir. 2003) (internal quotation marks omitted). An officer is 11 also entitled to qualified immunity "if officers of reasonable 12 competence could disagree on the legality of the action at issue 13 in its particular factual context." Manganiello v. City of N.Y. , 14 612 F.3d 149, 165 (2d Cir. 2010) (internal quotation marks 15 omitted). 16 III. Overview of Constitutional Law in the Context of 17 the State's Removal of Children from Their Home 18 As we observed in a decision post-dating the events at 19 issue in these appeals, "[p]arents . . . have a constitutionally 20 protected liberty interest in the care, custody and management of 21 their children." Tenenbaum, 193 F.3d at 593; see alsoTroxel v. 22 Granville , 530 U.S. 57, 65-66 (2000) (collecting cases concerning 23 the "fundamental right of parents to make decisions concerning 24 the care, custody, and control of their children"). "[C]hildren 25 have a parallel constitutionally protected liberty interest in 26 not being dislocated from the emotional attachments that derive 2724 from the intimacy of daily family association." Kia P. v. 1 McIntyre , 235 F.3d 749, 759 (2d Cir. 2000) (brackets and internal 2 quotation marks omitted), cert. denied , 534 U.S. 820 (2001); see 3 alsoDuchesne v. Sugarman , 566 F.2d 817, 825 (2d Cir. 1977) 4 ("Th[e] right to the preservation of family integrity encompasses 5 the reciprocal rights of both parent and children."). The 6 state's removal of a child from his or her parent may give rise 7 to a variety of cognizable constitutional claims. 8 First, both the parents and the children may have a 9 cause of action for violation of the Fourteenth Amendment under a 10 theory of denial of procedural due process. The Fourteenth 11 Amendment imposes a requirement that except in emergency 12 circumstances, judicial process must be accorded both parent and 13 child before removal of the child from his or her parent's 14 custody may be effected. See, e.g. , Kia P. , 235 F.3d at 759-60; 15 Tenenbaum, 193 F.3d at 593-94; Duchesne , 566 F.2d at 825-26. 16 Both Southerland and the Southerland Children have asserted such 17 a procedural due process claim against Woo in this case. 18 Second, a parent may also bring suit under a theory of 19 violation of his or her right to substantive due process. 20 Southerland does so here. Parents have a "substantive right 21 under the Due Process Clause to remain together [with their 22 children] without the coercive interference of the awesome power 23 of the state." Tenenbaum, 193 F.3d at 600 (internal quotation 24 marks omitted); see also, e.g. , Anthony v. City of N.Y. , 339 F.3d 25 129, 142-43 (2d Cir. 2003); Kia P. , 235 F.3d at 757-58. Such a 2613"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 claim can only be sustained if the removal of the child "would 1 have been prohibited by the Constitution even had the [parents] 2 been given all the proceduralprotections to which they were 3 entitled." Tenenbaum, 193 F.3d at 600 (emphasis in original). 4 In other words, while a procedural due process claim challenges 5 the procedure by which a removal is effected, a substantive due 6 process claim challenges the "fact of [the] removal" itself. 7 Bruker v. City of N.Y. , 92 F. Supp. 2d 257, 266-67 (S.D.N.Y. 8 2000). 9 For such claims brought by children, however, we have 10 concluded that the Constitution provides an alternative, more 11 specific source of protection. 13When a child is taken into 12 state custody, his or her person is "seized" for Fourth Amendment 13 purposes. The child may therefore assert a claim under the 14 Fourth Amendment that the seizure of his or her person was 15 unreasonable. SeeTenenbaum, 193 F.3d at 602. Such a claim 16 belongs only to the child, not to the parent, although a parent 17 has standing to assert it on the child's behalf. Id. at 601 18 n.13. In accordance with our order in Southerland I , 4 F. App'x 19 at 37 n.2 , the district court determined that the Southerland 20 Children's substantive due process claim should be construed 2126 instead as a Fourth Amendment unlawful-seizure claim. See 1 Southerland II , 521 F. Supp. 2d at 230 n.24. 2 Finally, depending on the circumstances in which a 3 removal occurs, other Fourth Amendment claims might also be 4 viable. Here, Southerland and the Southerland Children asserted 5 two Fourth Amendment claims for unlawful search: one claim 6 relating to Woo's entry into the Southerland home, and one (now 7 abandoned) claim relating to Woo's remaining in the home even 8 after determining that the Manning Children were not present. 9 Both claims were based on an allegation that Woo made false 10 statements to the Family Court in order to obtain the Order 11 Authorizing Entry, and therefore that there was no probable cause 12 to carry out a search of the Southerland apartment. 13 IV. The Fourth Amendment Unlawful-Search Claims 14 The district court determined that summary judgment was 15 warranted on the plaintiffs' Fourth Amendment unlawful-search 16 claims on two separate grounds. First, the district court 17 concluded that Woo was entitled to qualified immunity under the 18 "corrected affidavit" doctrine. SeeSoutherland II , 521 19 F. Supp. 2d at 230-31. Second, the district court decided that 20 Woo was entitled to summary judgment on the merits because no 21 reasonable juror could find that Woo had knowingly made false or 22 misleading statements in seeking to obtain the Order Authorizing 23 Entry. Id.at 233. We disagree with both conclusions. 2427 A.The Corrected-Affidavit Doctrine 1 We begin with the plaintiffs' argument that the 2 district court erred in its application of the corrected3 affidavit doctrine, under which a defendant who makes erroneous 4 statements of fact in a search-warrant affidavit is nonetheless 5 entitled to qualified immunity unless the false statements in the 6 affidavit were "necessary to the finding of probable cause." 7 Martinez v. City of Schenectady, 115 F.3d 111, 115 (2d Cir. 1997) 8 (internal quotation marks omitted). In order to determine 9 whether false statements were "necessary to the finding of 10 probable cause," the court must "put aside allegedly false 11 material, supply any omitted information, and then determine 12 whether the contents of the 'corrected affidavit' would have 13 supported a finding of probable cause." Id. (citation and 14 internal quotation marks omitted). In applying the corrected15 affidavit doctrine, qualified immunity is warranted only if, 16 after correcting for the false or misleading statements, the 17 affidavit accompanying the warrant was sufficient "to support a 18 reasonable officer's belief that probable cause existed." Id. 19 (internal quotation marks omitted). 20 The district court, which "assum[ed] for purposes of 21 the qualified immunity defense that Woo made false and misleading 22 statements" in applying for the Order Authorizing Entry, 23 Southerland II , 521 F. Supp. 2d at 230, correctly noted that the 24 plaintiffs "would still have to demonstrate that those statements 25 were necessary to the finding of probable cause for qualified 2628 immunity not to attach to Woo's actions," id. at 230-31 (citation 1 and internal quotation marks omitted). The court determined that 2 Woo was entitled to qualified immunity based on its conclusion 3 that a corrected affidavit, containing all of the information 4 available to Woo at the time the affidavit was made, would have 5 supported a finding of probable cause to enter the home. Id. at 6 231. 7 We disagree. Section 1034(2) of the New York State 8 Family Court Act, which provides the evidentiary standard for a 9 showing of probable cause sufficient for the issuance of an 10 investigative order, governed Woo's application to obtain the 11 Order Authorizing Entry. The district court, in its September 12 2007 decision, cited the statute as it had been amended in 13 January 2007. Seeid.at 224 n.7. But the version that governed 14 at the time of Woo's application was materially different. Under 15 the version of the statute that applied at the time of Woo's 16 actions, the affiant was required to demonstrate "probable cause 17 to believe that an abused or neglected child may be found on 18 premises ," N.Y. Fam. Ct. Act § 1034(2) (McKinney's 1997) 19 (emphasis added), presumably meaning the "premises" identified in 20 the application submitted to the Family Court. 21 The district court should have engaged in its 22 corrected-affidavit analysis with reference to the earlier law. 23 The children that Woo listed on his application for the Order 24 Authorizing Entry -- the Manning Children and Ciara -- were 25 children who did notreside "on premises" in the Southerland 2614The defendants also argue, with respect to the probable cause determination, that irrespective of therequirements 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 home. The district court concluded that "a properly made 1 application would stilllist Ciara Manning on the application 2 because Southerland is her father and was the parent legally 3 responsible for her care, even if she had run away." Southerland 4

II , 521 F. Supp. 2d at 231. That may be relevant to an inquiry 5 under the statute as amended in 2007, but it is not relevant to 6 the appropriate question under the applicable version of the law: 7 whether there existed probable cause for Woo to believe that 8 Ciara Manning could be found "on premises" at the Southerland 9 home. In fact, she, like the Manning Children, was not "on 10 premises." And Woo had reason to know that she was not -- from 11 the information in the initial Intake Report transmitted to Woo; 12 from the guidance counselor's statement to Woo that Southerland 13 did not approve of the place where Ciara was staying; and from 14 Southerland's own statements during his May 30 telephone 15 conversation with Woo that Ciara was a runaway and did not live 16 at his home. 14 17"environment," nor to evaluate the other children living there. 30 The plaintiff children point out that there were other 1 deficiencies in the district court's corrected-affidavit analysis 2 that undermine the court's conclusion that the information known 3 to Woo at the time he applied for the Order Authorizing Entry 4 would have supported a finding of probable cause. For example, 5 Woo's application stated that Ciara "tried to kill herself by 6 swallowing non-toxic paint," and that Southerland "did not take 7 [Ciara] to a medical doctor and refused to take [Ciara] for 8 psychiatric evaluation." Application for Authorization to Enter 9 Premises dated June 6, 1997, at 1 ("June 6 Application"), Ex. C 10 to Silverberg Decl. The plaintiff children argue that the 11 application omitted several relevant facts that, according to 12 Southerland's version of events, were known to Woo at that time: 13 that the paint-swallowing incident took place at school, not at 14 home; that Southerland was willing to obtain treatment for his 15 daughter, but had trouble doing so, precisely because she was not 16 living in his home; and that Southerland had attempted to assert 17 control over his daughter by applying for PINS warrants. 18 Southerland Children's Br. at 30-31; see alsoid.at 28-36 19 (disputing additional assertions of fact, such as whether the 20 swallowing of paint indeed was a suicide attempt). As the 21 plaintiff children put it: 22 Woo's omission of the fact that the incident 23 took place at school allowed the court to 24 assume that the suicide attempt took place in 25 Southerland's residence. The overall picture 26 painted by Woo is that Southerland's daughter 2715In child-abuse investigations, a Family Court order is equivalent to a search warrant for Fourth Amendment purposes. SeeNicholson v. Scoppetta , 344 F.3d 154, 176 (2d Cir. 2003); Tenenbaum, 193 F.3d at 602. 31 attempted to kill herself, that Southerland 1 did nothing about it, and refused to let 2 others do something about it as well. By 3 omitting the fact that the daughter was not 4 even living at the Southerland apartment, Woo 5 gave the family court the impression that it 6 was necessary to allow Woo to enter the 7 apartment in order to render assistance to a 8 suicidal teenager in the home of a parent who 9 could not be bothered to help her and who 10 prevented the efforts of ACS to provide help 11 to her. 12 Id.at 31-32. The district court included much of this 13 information in its recitation of facts, Southerland II , 521 F. 14 Supp. 2d at 222-23 & nn.4 & 5, but it did not factor these 15 considerations into its application of the corrected-affidavit 16 doctrine. 17 We have observed that the materiality of a 18 misrepresentation or omission in an application for a search 19 warrant is a mixed question of law and fact. 15Velardi v. Walsh , 20 40 F.3d 569, 574 (2d Cir. 1994). "The legal component depends on 21 whether the information is relevant to the probable cause 22 determination under controlling substantive law." Id. "[T]he 23 weight that a neutral magistrate would likely have given such 24 information," however, is a question for the factfinder. Id. 25 In such circumstances, a court may grant summary judgment to a 26 defendant based on qualified immunity only where "the evidence, 27 viewed in the light most favorable to the plaintiffs, discloses 28 no genuine dispute that a magistrate would have issued the 2932 warrant on the basis of the corrected affidavits." Walczyk v. 1 Rio , 496 F.3d 139, 158 (2d Cir. 2007) (emphasis, citation, and 2 internal quotation marks omitted). We cannot conclude as a 3 matter of law -- although a trier of fact might so conclude after 4 an evidentiary hearing -- that the Family Court, in deciding 5 whether there was "probable cause to believe that an abused or 6 neglected child may [have] be[en] found [in the Southerland 7 home]," N.Y. Fam. Ct. Act § 1034(2), would have issued the order 8 had a corrected affidavit been presented to it. 9

B. Knowing or Reckless Misstatements of Fact 10 The district court also concluded that even if the 11 corrected-affidavit doctrine did not apply, summary judgment was 12 appropriate because, on the merits, "no reasonable juror could 13 infer that Woo knowingly and intentionally made false and 14 misleading statements to the family court in order to receive an 15 order authorizing his entry into the Southerland home." 16 Southerland II , 521 F. Supp. 2d at 233. Based on that premise, 17 the district court concluded that "the [O]rder [Authorizing 18 Entry] was issued with probable cause and Woo's entry into and 19 search of Southerland's home did not violate plaintiffs' Fourth 20 Amendment rights." Id. 21 We disagree. If the district court were correct that 22 Woo did not knowingly make false and misleading statements, that 23 would entitle Woo to qualified immunity, but would not 24 necessarily render his underlying conduct lawful. When a person 25 alleges a Fourth Amendment violation arising from a search 2633 executed by a state official, "the issuance of a search 1 warrant . . . creates a presumption that it was objectively 2 reasonable for the [defendant] to believe that the search was 3 supported by probable cause" so as to render the defendant 4 qualifiedly immune from liability. Martinez , 115 F.3d at 115. 5 To defeat the presumption of reasonableness, a plaintiff must 6 make "a substantial preliminary showing that the affiant 7 knowingly and intentionally, or with reckless disregard for the 8 truth, made a false statement in his affidavit and that the 9 allegedly false statement was necessary to the finding of 10 probable cause" for which the warrant was issued. Golino v. City 11 of New Haven , 950 F.2d 864, 870 (2d Cir. 1991) (internal 12 quotation marks omitted), cert. denied , 505 U.S. 1221 (1992). 13 We need not consider further whether the district court 14 erred by confusing the qualified immunity and merits analyses, 15 however, because we also do not agree with the district court's 16 premise that no reasonable juror could find that Woo did not 17 knowingly or recklessly make false statements. We think that 18 several disputed facts, taken together and viewed in the light 19 most favorable to the plaintiffs, would permit -- though not 20 require -- a reasonable factfinder to find otherwise. 21 First, substantial evidence, viewed in the light most 22 favorable to the plaintiffs, suggests that Woo had reason to know 23 that Ciara was not residing at the Southerland home when he 24 applied for the Order Authorizing Entry. For example, the May 29 25 Intake Report informed ACS that Ciara "may be staying out of the 2634 home in an i[m]proper enviro[n]ment." Intake Report at 3. And 1 Southerland told Woo on May 30 that Ciara was a runaway and that 2 he had taken out PINS warrants against her. Southerland II , 521 3 F. Supp. 2d at 223. A reasonable juror could find that Woo's 4 application to the Family Court on June 6 was knowingly or 5 recklessly misleading in stating: "I have reasonable cause to 6 believe that the above named children [including Ciara] may be 7 found at the above premises [the Southerland home]." June 6 8 Application at 1. 9 Second, evidence in the record, again viewed in the 10 light most favorable to the plaintiffs, would permit a reasonable 11 juror to conclude that Woo had knowingly or recklessly 12 misrepresented the nature of the paint-swallowing incident in his 13 application. About one week before June 6, Woo learned from a 14 school counselor that Ciara had "swallowed non-toxic paint at 15 school" and had been "acting out and expressing thoughts of 16 suicide." Woo Decl. ¶ 6. Although the counselor informed Woo 17 that Southerland had failed to seek medical treatment for Ciara, 18

seeid. , Southerland later explained to Woo that the reason he 19 had not taken Ciara for treatment was that she did not reside 20 with Southerland and did not listen to him, id. ¶ 8. Yet Woo's 21 application represented to the Family Court that Ciara "tried to 22 kill herself by swallowing non-toxic paint" and that Southerland 23 "did not take [her] to a medical doctor and refused to take [her] 24 for psychiatric evaluation." June 6 Application at 1. A 25 reasonable trier of fact might find the foregoing statements to 2635 be materially misleading insofar as they characterize Ciara's 1 paint-swallowing as a suicide attempt; fail to note that the 2 incident occurred at school rather than in Southerland's home; 3 and omit the fact that Ciara may have been living outside the 4 home and free from Southerland's control. 5 Finally, the district court overlooked the parties' 6 dispute concerning Woo's knowledge about which children resided 7 in the Southerland apartment. The district court stated that Woo 8 "had reason to believe that the Manning children would be found 9 in the Southerland apartment because of a separate investigation 10 of the Manning children and his personal observation that there 11 were other children in the Southerland home who had not yet been 12 positively identified." Southerland II , 521 F. Supp. 2d at 233. 13 But, as the district court opinion elsewhere observes, on June 4, 14 1997 -- two days before he applied for the Order Authorizing 15 Entry -- Woo met the Southerland Children emerging from the 16 Southerland apartment and wrote down their names. Seeid.at 17 223-24 & n.6. We think that there is a triable issue of fact as 18 to whether Woo in fact believed, as he wrote in his application 19 to the Family Court, that it was the Manning Children and not the 20 Southerland Children who were in the Southerland home, or whether 21 he recklessly confused or knowingly conflated the two. 22 Although these alleged misrepresentations may turn out 23 to be no more than accidental misstatements made in haste, the 24 plaintiffs have nonetheless made a "substantial preliminary 25 showing" that Woo knowingly or recklessly made false statements 2636 in his application for the Order Authorizing Entry. Golino , 950 1 F.2d at 870 (internal quotation marks omitted). This showing 2 rebuts the presumption of reasonableness that would otherwise 3 apply to shield Woo with qualified immunity at the summary 4 judgment stage. 5 In sum, because we conclude that genuine issues of 6 material fact exist, both as to whether Woo knowingly or 7 recklessly made false statements in his affidavit to the Family 8 Court and as to whether such false statements were necessary to 9 the court's finding of probable cause, we vacate the district 10 court's grant of summary judgment on the plaintiffs' Fourth 11 Amendment unlawful-search claims. 12 Once again, we note that a trier of fact might, after 13 review of the evidence, conclude that the errors in the June 6 14 Application were either accidental or immaterial. We vacate the 15 grant of summary judgment because we cannot reach that conclusion 16 ourselves on the current record as a matter of law. 17 V. The Plaintiffs' Procedural Due Process Claims 18 Southerland and the Southerland Children each assert a 19 procedural due process claim against Woo. The district court 20 held that Woo was entitled to qualified immunity on these claims. 21 We disagree. 22

A. Procedural Due Process in the Child-Removal Context 23 "'As a general rule . . . before parents may be 24 deprived of the care, custody, or management of their children 25 without their consent, due process -- ordinarily a court 2637 proceeding resulting in an order permitting removal -- must be 1 accorded to them.'" Nicholson v. Scoppetta , 344 F.3d 154, 171 2 (2d Cir. 2003) (quoting Tenenbaum, 193 F.3d at 593). "However, 3 'in emergency circumstances, a child may be taken into custody by 4 a responsible State official without court authorization or 5 parental consent.'" Id. (quoting Tenenbaum, 193 F.3d at 594). 6 "'If the danger to the child is not so imminent that there is 7 reasonably sufficient time to seek prior judicial authorization, 8 ex parteor otherwise, for the child's removal, then the 9 circumstances are not emergent.'" Id. (quoting Tenenbaum, 193 10 F.3d at 594). 11 To prevail, "[t]he government must offer 'objectively 12 reasonable' evidence that harm is imminent." Id. Although we 13 have not exhaustively set forth the types of factual 14 circumstances that constitute imminent danger justifying 15 emergency removal as a matter of federal constitutional law, we 16 have concluded that these circumstances include "the peril of 17 sexual abuse," id. , the "risk that children will be 'left bereft 18 of care and supervision,'" id. (quoting Hurlman v. Rice , 927 F.2d 19 74, 80 (2d Cir. 1991)), and "immediate threat[s] to the safety of 20 the child," Hurlman , 927 F.2d at 80 (internal quotation marks 21 omitted); see alsoN.Y. Fam. Ct. Act § 1024(a) (defining 22 emergency circumstances, for the purposes of state law, as 23 "circumstance[s]" wherein a child's remaining in the parent's 24 care and custody "presents an imminent danger to the child's life 25 or health"). 2616We disagree with the defendants' assertion that Hurlman and Robisonare 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 B. Analysis 1 The district court correctly concluded that summary 2 judgment was not appropriate on the underlying merits of the 3 plaintiffs' procedural due process claims because Woo did not 4 demonstrate, as a matter of law, that he did not have time to 5 obtain a court order authorizing the removal of the Southerland 6 Children before taking that act. SeeSoutherland II , 521 F. 7 Supp. 2d at 235 n.31 (citing Nicholson , 344 F.3d at 171). The 8 court nonetheless granted summary judgment on qualified immunity 9 grounds, concluding that "the law concerning procedural due 10 process rights in the context of child removals was not clearly 11 defined at the time of the events in question." Id. at 232. 12 But in Hurlman , we recognized that 13 officials may remove a child from the custody 14 of the parent without consent or a prior 15 court order only in "emergency" 16 circumstances. Emergency circumstances mean 17 circumstances in which the child is 18 immediately threatened with harm, for 19 example, where there exists an immediate 20 threat to the safety of the child, or where 21 the child is left bereft of care and 22 supervision, or where there is evidence of 23 serious ongoing abuse and the officials have 24 reason to fear imminent recurrence. 25 Hurlman , 927 F.2d at 80 (citations and internal quotation marks 26 omitted); see alsoRobison v. Via , 821 F.2d 913, 921-22 (2d Cir. 27 1987) (describing the "'emergency' circumstances" exception and 28 collecting cases). 16It thus was clearly established at the time 29home. 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. SeeSoutherland II , 521 F. Supp. 2d at 224, 226, 235 n.31. 39 of the Southerland Children's removal that state officials could 1 not remove a child from the custody of a parent without either 2 consent or a prior court order unless "'emergency' circumstances" 3 existed. Hurlman , 927 F.2d at 80; see alsoCecere v. City of 4

N.Y. , 967 F.2d 826, 829-30 (2d Cir. 1992) (setting forth "clearly 5 established" procedural due process principles); see alsoVelez 6 v. Reynolds , 325 F. Supp. 2d 293, 314-15 (S.D.N.Y. 2004) 7 (explaining the principles). 8 In concluding that the law of procedural due process 9 was not clearly established in the child-removal context in 1997, 10 the district court in the case at bar relied primarily on our 11 decision in Tenenbaum. There we held as a matter of first 12 impression that "where there is reasonable time consistent with 13 the safety of the child to obtain a judicial order, the 14 'emergency' removal of a child is unwarranted." Tenenbaum, 193 15 F.3d at 596. Because this principle was not clearly established 16 in 1990 -- the year the underlying conduct at issue in Tenenbaum 17 took place -- we affirmed the district court's decision in that 18 case that the defendants were entitled to qualified immunity. We 19 also made clear, however, that even in 1990, "it was established 20 as a general matter . . . that 'except where emergency 21 circumstances exist' a parent can 'not be deprived' of the 22 custody of his or her child 'without due process, generally in 2317In Tenenbaum, a removal was carried out because the child had reported -- albeit under questionable circumstances -- that her father had sexually abused her. SeeTenenbaum, 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. Seeid.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 the form of a predeprivation hearing.'" Id. at 596 (quoting 1 Hurlman , 927 F.2d at 79). 2 In the present case, the plaintiffs assert "not solely 3 that defendants had sufficient time to obtain a court order, but 4 that the circumstances in which Woo found the children did not 5 warrant their removal at all, whether evaluated by pre- or post6 Tenenbaumstandards." Southerland Children's Br. at 39. 17We 7 understand the plaintiffs' contention to be that "emergency 8 circumstances" warranting removal simply did not exist. 9 The district court did not decide as a matter of law 10 that emergency circumstances existed in the Southerland home. To 11 the contrary, the district court concluded that "[v]iewing the 12 facts in the light most favorable to plaintiffs, a reasonable 13 juror could determine that the circumstances Woo encountered did 14 not demonstrate an imminent danger to the children's life or 15 limb." Southerland II , 521 F. Supp. 2d at 234 n.29. The court 1618The 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. SeeSoutherland 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, ifthe 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 further decided that "a reasonable juror could find that there 1 was sufficient time to acquire a court order prior to the 2 removal." Id.at 235 n.31. In light of those determinations, 3 with which we agree, and our assessment that the relevant law was 4 clearly established in 1997, we cannot conclude as a matter of 5 law that "it was objectively reasonable for [Woo] to believe 6 [that his] acts did not violate those [clearly established] 7 rights." Holcomb , 337 F.3d at 220. Qualified immunity therefore 8 is not available to Woo on the plaintiffs' procedural due process 9 claims at the summary judgment stage. Because summary judgment 10 also cannot be granted to the defendants on the underlying merits 11 of these claims, 18we vacate the grant of summary judgment to Woo 12 as to the procedural due process claims. 13 VI. Southerland's Substantive Due Process Claim 14 Southerland asserts a substantive due process claim 15 against Woo under the Fourteenth Amendment. The district court 16 held not only that qualified immunity attached to Woo's actions, 1742 but also that summary judgment would be warranted on the merits 1 even in the absence of qualified immunity. We disagree with both 2 conclusions. 3

A.Substantive Due Process in the Child-Removal Context 4 Substantive due process guards a person's rights 5 "against the government's 'exercise of power without any 6 reasonable justification in the service of a legitimate 7 governmental objective.'" Tenenbaum, 193 F.3d at 600 (quoting 8 County of Sacramento v. Lewis , 523 U.S. 833, 846 (1998)). "To 9 establish a violation of substantive due process rights, a 10 plaintiff must demonstrate that the state action was 'so 11 egregious, so outrageous, that it may fairly be said to shock the 12 contemporary conscience.'" Okin v. Vill. of Cornwall-on-Hudson 13 Police Dep't , 577 F.3d 415, 431 (2d Cir. 2009) (quoting Lewis , 14 523 U.S. at 847 n.8). The interference with the plaintiff's 15 protected right must be "'so shocking, arbitrary, and egregious 16 that the Due Process Clause would not countenance it even were it 17 accompanied by full procedural protection.'" Anthony, 339 F.3d 18 at 143 (quoting Tenenbaum, 193 F.3d at 600); see alsoLewis , 523 19 U.S. at 840 (doctrine of substantive due process "bar[s] certain 20 government actions regardless of the fairness of the procedures 21 used to implement them" (internal quotation marks omitted)). 22 Thus, in the child-removal context, we ask whether "the 23 removal . . . would have been prohibited by the Constitution even 24 had the [plaintiffs] been given all the procedural protections to 2543 which they were entitled." Tenenbaum, 193 F.3d at 600 (emphasis 1 omitted). 2 We have long recognized that parents have a 3 "constitutionally protected liberty interest in the care, custody 4 and management of their children," id. at 593, and that the 5 deprivation of this interest is actionable under a theory of 6 substantive due process, seeid.at 600 (recognizing a 7 "substantive right under the Due Process Clause 'to remain 8 together without the coercive interference of the awesome power 9 of the state'" (quoting Duchesne , 566 F.2d at 825)). We have 10 also observed, however, that "[a]lthough parents enjoy a 11 constitutionally protected interest in their family integrity, 12 this interest is counterbalanced by the compelling governmental 13 interest in the protection of minor children, particularly in 14 circumstances where the protection is considered necessary as 15 against the parents themselves." Wilkinson ex rel. Wilkinson v. 16 Russell , 182 F.3d 89, 104 (2d Cir. 1999) (internal quotation 17 marks omitted), cert. denied , 528 U.S. 1155 (2000). 18 We have explained that, in part because the law 19 contemplates a careful balancing of interests, a parent's 20 substantive constitutional rights are not infringed if a 21 caseworker, in effecting a removal of a child from the parent's 22 home, has a reasonable basis for thinking that a child is abused 23 or neglected. Seeid."This Circuit has adopted a standard 24 governing case workers which reflects the recognized need for 25 unusual deference in the abuse investigation context. An 2644 investigation passes constitutional muster provided simply that 1 case workers have a 'reasonable basis' for their findings of 2 abuse." Id. ; see alsoid.at 108 (concluding that the 3 "reasonable basis test" requires that caseworkers' decisions to 4 substantiate an allegation of child abuse "be consistent with 5 some significant portion of the evidence before them"). We have 6 applied this "reasonable basis" standard from time to time in 7 recent years. See, e.g. , Nicholson , 344 F.3d at 174; Phifer v. 8 City of N.Y. , 289 F.3d 49, 60 (2d Cir. 2002); Kia P. , 235 F.3d at 9 758-59. 10 We have also recognized that substantive due process 11 claims in the child-removal context have a temporal dimension. 12 Because state interference with a plaintiff's liberty interest 13 must be severe before it rises to the level of a substantive 14 constitutional violation, see, e.g. , Anthony, 339 F.3d at 143, 15 "brief removals [of a child from a parent's home] generally do 16 not rise to the level of a substantive due process violation, at 17 least where the purpose of the removal is to keep the child safe 18 during investigation and court confirmation of the basis for 19 removal," Nicholson , 344 F.3d at 172 (citing Tenenbaum, 193 F.3d 20 at 600–01 & n.12); see alsoCecere , 967 F.2d at 830 (ruling that 21 plaintiff's due process claim failed because a "brief" four-day 22 removal, executed "in the face of a reasonably perceived 23 emergency," did not violate due process); Joyner ex rel. Lowry v. 24 Dumpson , 712 F.2d 770, 779 (2d Cir. 1983) (no substantive 25 violation where temporary transfer of custody to foster-care 2645 system did not "result in parents' wholesale relinquishment of 1 their right to rear their children"). 2

B.Analysis 3 The district court, in deciding that qualified immunity 4 protection prevailed, concluded that it was objectively 5 reasonable for Woo to think that Southerland's substantive due 6 process rights were not being violated because "[b]rief removals 7 of children from their parents generally do not rise to the level 8 of a substantive due process violation," Southerland II , 521 F. 9 Supp. 2d at 232 (brackets and internal quotation marks omitted), 10 and because the Southerland Children "were removed in the context 11 of a child protective investigation [in which] removal would be 12 subject to court confirmation," id. ; see alsoid.at 234 13 (suggesting that "a family court judge confirmed the removal" at 14 a "timely post-deprivation hearing"). 15 We agree in principle. The removal of a child from his 16 or her parent does not violate the parent's substantive due 17 process rights if a post-removal judicial proceeding is promptly 18 held to confirm that there exists a reasonable basis for the 19 removal. The period of time in which the child and parent are 20 separated at the sole instruction of the defendant is, in such a 21 case, not severe enough to constitute a substantive due process 22 violation by the defendant. SeeNicholson , 344 F.3d at 172; 23 Tenenbaum, 193 F.3d at 600-01. If it were clear in the record 24 that the removal of the Southerland Children was confirmed by a 25 prompt and adequate judicial confirmation proceeding, we would 2619SeeSoutherland 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 agree with the district court that summary judgment would be 1 appropriate on that basis. 2 But the record is not sufficiently clear for us to 3 determine whether such a post-removal judicial proceeding 4 occurred, and if so, the nature of it. The district court stated 5 that the Southerland Children were removed and held in ACS 6 custody "pending a timely post-deprivation hearing where a family 7 court judge confirmed the removal." Southerland II , 521 F. Supp. 8 2d at 234. And the court had previously observed that the 9 Southerland Children "remained in custody without a court order 10 until the morning of June 12, 1997" -- about forty-eight hours -- 11 "at which time Woo obtained a court order confirming the 12 removal." Southerland v. City of N.Y. , No. 99-cv-3329, 2006 WL 13 2224432, at *1, 2006 U.S. Dist. LEXIS 53582, at *4 (E.D.N.Y. Aug. 14 2, 2006). Although the parties do not appear to dispute that a 15 post-removal judicial confirmation proceeding was held, nor do 16 they dispute that this proceeding took place within several days 17 after removal, they provide no further detail upon which we can 18 assess the nature of the proceeding in terms of its timeliness 19 and adequacy. 19 20court proceedings were insufficiently prompt to pass constitutional muster." Southerland I , 4 F. App'x at 36. 47 We are also unable to determine from the present record 1 on what factual basis the Family Court decided that the continued 2 removal of the Southerland Children was warranted. We do not 3 know, for example, whether its decision to confirm the removal 4 was based solely on written submissions by Woo to the same effect 5 and containing the same errors as Woo's application for the Order 6 Authorizing Entry. 7 Apparently relying on the understanding that the Family 8 Court had promptly confirmed the Southerland Children's removal, 9 the district court concluded that no reasonable trier of fact 10 could find that the removal of the Children was "so 'shocking, 11 arbitrary, and egregious' that Southerland's substantive due 12 process rights were violated." Southerland II , 521 F. Supp. 2d 13 at 235 (citation omitted). For much the same reason that we 14 conclude that material questions of fact preclude summary 15 judgment on the merits of the plaintiffs' procedural due process 16 claims, however, we conclude that summary judgment was 17 inappropriate on the merits of Southerland's substantive due 18 process claim. 19 A plaintiff's substantive due process claim fails if 20 "there is an objectively reasonable basis for believing that 21 parental custody constitutes a threat to the child's health or 22 safety." Gottlieb v. County of Orange , 84 F.3d 511, 518 (2d Cir. 23 1996). Although this "reasonable basis" standard appears to 2448 impose a lesser burden on a defendant than the "emergency 1 circumstances" standard applicable to procedural due process 2 claims, summary judgment is nevertheless not appropriate unless 3 "there exists no genuine issue of material fact and, based on the 4 undisputed facts, the moving party is entitled to judgment as a 5 matter of law." D'Amico , 132 F.3d at 149. 6 The facts concerning the nature of Southerland's 7 behavior during Woo's investigation and the conditions in the 8 Southerland apartment at the time that Woo effected the removal 9 remain hotly contested by the parties. For example, while Woo 10 contends that the apartment lacked enough food, lighting, and 11 bedding; that the Children were malodorous; and that various 12 safety hazards were present, Southerland has tendered admissible 13 evidence (albeit largely in the form of his own testimony) that 14 each of those factual assertions is false. If the trier of fact 15 were to credit Southerland's account, we cannot say that it would 16 be unreasonable for it to then conclude that a reasonable 17 caseworker in Woo's position lacked an "objectively reasonable 18 basis" for removing the Children, Gottlieb , 84 F.3d at 518, and 19 thus that Woo's actions were "shocking, arbitrary, and 20 egregious," Anthony, 339 F.3d at 143 (internal quotation marks 21 omitted). Moreover, in the absence of record evidence as to the 22 substance of the post-removal judicial confirmation proceeding, 23 we cannot conclude that the fact that the Family Court confirmed 24 the removal of the Southerland Children suffices to show that 2549 Woo's conduct had an objectively reasonable basis. Cf. 1 Southerland II , 521 F. Supp. 2d at 234-35. 2 Finally, we consider whether Woo is nonetheless 3 entitled to summary judgment on the basis of qualified immunity. 4 As noted, qualified immunity is available to defendants "insofar 5 as their conduct does not violate clearly established statutory 6 or constitutional rights of which a reasonable person would have 7 known." Harlow , 457 U.S. at 818; see alsoCornejo v. Bell , 592 8 F.3d 121, 128 (2d Cir.), cert. denied , 131 S. Ct. 158 (2010). 9 When a defendant official invokes qualified immunity as a basis 10 for summary judgment, a court must consider not only whether 11 evidence in the record suggests a violation of a statutory or 12 constitutional right, but also "whether that right was clearly 13 established at the time of the alleged violation." Tracy v. 14 Freshwater , 623 F.3d 90, 96 (2d Cir. 2010). Thus, if it could be 15 shown that, at the time of the events in question, Woo lacked a 16 legal basis upon which he could conclude that his actions would 17 violate Southerland's substantive due process rights, Woo would 18 be entitled to qualified immunity. 19 "The relevant, dispositive inquiry in determining 20 whether a right is clearly established is whether it would be 21 clear to a reasonable officer [in the position of the defendant] 22 that his conduct was unlawful in the situation he confronted." 23 Saucier v. Katz , 533 U.S. 194, 202 (2001), overruled on other 24 grounds byPearson v. Callahan , 555 U.S. 223 (2009). In 25 answering that question, we consider: "(1) whether the right was 2650 defined with reasonable specificity; (2) whether Supreme Court or 1 court of appeals case law supports the existence of the right in 2 question, and (3) whether under preexisting law a reasonable 3 defendant would have understood that his or her acts were 4 unlawful." Scott v. Fischer , 616 F.3d 100, 105 (2d Cir. 2010). 5 "The task of framing the right at issue with some precision is 6 critical in determining whether that particular right was clearly 7 established at the time of the defendants' alleged violation." 8 Redd v. Wright , 597 F.3d 532, 536 (2d Cir. 2010); see alsoWilson 9 v. Layne , 526 U.S. 603, 609 (1999). Although the matter of 10 whether a right at issue is clearly established is a question of 11 law, Higazy v. Templeton , 505 F.3d 161, 170 (2d Cir. 2007), that 12 question is "tied to the specific facts and context of the case," 13 Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir. 2007). 14 In 1997, when Woo effected the removal, it was well 15 established as a general matter that parents possess a 16 substantive right under the Due Process Clause of the Fourteenth 17 Amendment to exercise care, custody, and control over their 18 children. See, e.g. , Santosky v. Kramer , 455 U.S. 745, 753 19 (1982); Gottlieb , 84 F.3d at 518; Joyner ex rel. Lowry, 712 F.2d 20 at 777. It was also the law, however, that where "parental 21 custody constitutes a threat to the child's health or safety, 22 government officials may remove a child from his or her parents' 23 custody at least pending investigation." Gottlieb , 84 F.3d at 24 518; see alsoStanley v. Illinois , 405 U.S. 645, 649-53 (1972); 2551 Croft v. Westmoreland County Children & Youth Servs. , 103 F.3d 1 1123, 1125 (3d Cir. 1997). 2 We therefore determined prior to 1997 that where the 3 state has an "objectively reasonable basis" for removing a child 4 from his or her parent, the parent's substantive constitutional 5 rights are not infringed. Gottlieb , 84 F.3d at 518; see 6 generallyid.at 520; van Emrik v. Chemung County Dep't of Soc. 7
Servs. , 911 F.2d 863, 866 (2d Cir. 1990). We also repeatedly 8 assured potential defendants that qualified immunity would be 9 available to "protect state officials in choosing between 10 [difficult] alternatives, provided that there is an objectively 11 reasonable basis for their decision, whichever way they make it." 12 van Emrik , 911 F.2d at 866; see alsoDefore v. Premore , 86 F.3d 13 48, 50 (2d Cir. 1996) (per curiam) (qualified immunity exists to 14 "insure that publicly employed caseworkers have adequate latitude 15 to exercise their professional judgment in matters of child 16 welfare"). 17 In 1999, two years after the events in question here, 18 we summarized the state of the law in Wilkinson : "Although 19 parents enjoy a constitutionally protected interest in their 20 family integrity, this interest is counterbalanced by the 21 'compelling governmental interest in the protection of minor 22 children, particularly in circumstances where the protection is 23 considered necessary as against the parents themselves.'" 24 Wilkinson , 182 F.3d at 104 (quoting Manzano v. S.D. Dep't of Soc. 25
Servs. , 60 F.3d 505, 510 (8th Cir. 1995) (internal quotation 2652 marks omitted)). We observed that "[t]he difficulty of balancing 1 the weighty interests apparent in the [child] abuse context . . . 2 has prompted courts to impose few concrete restrictions on case 3 workers, in exercising their discretion, short of [certain] 4 obvious extremes." Id.We described those "extremes" as 5 including circumstances where a caseworker "ignor[es] 6 overwhelming exculpatory information" or "manufactur[es] false 7 evidence." Id.We concluded in dicta that our decisions to that 8 date had left the defendants at bar "with little or no indication 9 that their alleged misconduct, as near as it was to the 10 constitutional borderline, would have even implicated serious 11 constitutional concerns." Id. at 107; see alsoPatel v. Searles , 12 305 F.3d 130, 139 (2d Cir. 2002), cert. denied , 538 U.S. 907 13 (2003). Our discussion in Wilkinsonwould seem to suggest that 14 perhaps there was a lack of clearly established law available to 15 guide Woo's conduct. 16 We nonetheless cannot conclude as a matter of law that, 17 in 1997, Woo lacked sufficient legal guidance by which to discern 18 the lawfulness of his actions. Assuming, as we must at the 19 summary judgment stage, that the factual circumstances are as 20 Southerland, not Woo, describes them, and resolving all 21 credibility questions and drawing all reasonable inferences in 22 Southerland's favor, we are not able to say that Woo would then 23 have lacked a legal basis for understanding that removing the 24 children from their home would be unlawful. Indeed, the district 25 court here was also of the view that "Southerland's substantive 2653 due process rights were clearly established at the time of the 1 removal of the children." Southerland II , 521 F. Supp. 2d at 2 232. 3 We therefore cannot conclude on this record that the 4 principles of law applicable to the facts as we must view them on 5 appeal from a grant of summary judgment were not clearly 6 established in 1997. Woo is thus not entitled at this stage to 7 qualified immunity on Southerland's substantive due process 8 claim, although, again, once the relevant disputes of material 9 fact are resolved, the district court might eventually conclude 10 that Woo is entitled to such immunity. 11 VII. The Southerland Children's Fourth 12 Amendment Unlawful-Seizure Claim 13 Finally, the Southerland Children assert a claim for 14 violation of their own substantive due process rights, which the 15 district court recharacterized as a claim of unlawful seizure 16 under the Fourth Amendment. SeeSoutherland II , 521 F. Supp. 2d 17 at 227 n.22, 230 n.24. The district court concluded that Woo was 18 entitled to qualified immunity because "prior to the Court of 19 Appeals' decision in Tenenbaum[in 1999], there was no clear 20 application of Fourth Amendment standards in the child removal 21 context." Id.at 231. Although we agree with the district 22 court's observation that this Circuit had not yet applied Fourth 23 Amendment unlawful-seizure principles in the child-removal 24 context by 1997, we think that the district court erred by 25 conducting its inquiry solely by reference to the Fourth 26 Amendment. 2720We 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 Our decision in Tenenbaumeffected a change in the 1 legal framework applicable to a child's claim for substantive 2 constitutional violations arising out of the child's removal from 3 his or her parent's home. There, the plaintiffs contended that 4 "[their daughter's] temporary removal for the purpose of 5 subjecting her to a medical examination violated their and [the 6 daughter's] substantive due-process rights." Tenenbaum, 193 F.3d 7 at 599. Relying on Albright v. Oliver , 510 U.S. 266, 273 (1994) 8 (plurality opinion of Rehnquist, C.J. ), we observed that 9 where a particular Amendment provides an 10 explicit textual source of constitutional 11 protection against a particular sort of 12 government behavior, that Amendment, not the 13 more generalized notion of substantive due 14 process, must be the guide for analyzing 15 these claims. 16 Tenenbaum, 193 F.3d at 599 (brackets and internal quotation marks 17 omitted). We said that "'[s]ubstantive due process analysis 18 is . . . inappropriate . . . if [the] claim is covered by the 19 Fourth Amendment.'" Id. at 600 (quoting Lewis , 523 U.S. at 843) 20 (second brackets in original; other internal quotation marks 21 omitted). We then concluded that the daughter's "removal and her 22 examination constituted a seizure and search, respectively, under 23 the Fourth Amendment," id. , and that her claim "therefore 'must 24 be analyzed under the standard appropriate to [the Fourth 25 Amendment], not under the rubric of substantive due process.'" 20 26would 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 Id.(quoting United States v. Lanier , 520 U.S. 259, 272 n.7 1 (1997)). 2 The fact that Tenenbaum changed the legal "rubric" 3 applicable to the Southerland Children's constitutional claims, 4 however, is not determinative of whether their rights were 5 clearly established in 1997. It would be inappropriate, we 6 think, to afford Woo qualified immunity on the Southerland 7 Children's claims solely because, two years after the events in 8 question, we shifted the constitutional framework for evaluating 9 those claims from the Fourteenth to the Fourth Amendment. 10 We reached a similar conclusion in Russo v. City of 11 Bridgeport , 479 F.3d 196 (2d Cir.), cert. denied , 552 U.S. 818 12 (2007). There we made clear that the constitutional "right to be 13 free from prolonged detention caused by law enforcement 14 officials' mishandling or suppression of exculpatory evidence," 15 id.at 211, was a species of the right to be free from unlawful 16 seizure under the Fourth Amendment, not a substantive due process 17 right under the Fourteenth Amendment, seeid.at 208-09. In then 18 proceeding to undertake a qualified immunity inquiry, we 19 cautioned that our "clarification [of the law was] of no 20 consequence to the question of whether the right was clearly 21 established [at the time of the relevant events], because the 22 proper inquiry is whether the rightitself -- rather than its 23

source-- is clearly established." Id. at 212 (collecting cases; 2456 emphasis in original). Here, as in Russo , in inquiring whether 1 there was clearly established law to govern the Southerland 2 Children's claims in 1997, we look not only to authorities 3 interpreting the Fourth Amendment, but to all decisions 4 concerning the same substantive right. 5 At the time of the events in question in this case, a 6 child's claim for violation of his or her right to "preservation 7 of family integrity," Duchesne , 566 F.2d at 825, would likely 8 have been understood to arise under the substantive due process 9 guarantee of the Fourteenth Amendment. This right had been 10 recognized in our case law by 1997, seeJoyner ex rel. Lowry, 712 11 F.2d at 777-78; Rivera v. Marcus , 696 F.2d 1016, 1026 (2d Cir. 12 1982); Leonhard v. United States , 633 F.2d 599, 618 (2d Cir. 13 1980) (collecting cases); Duchesne , 566 F.2d at 825, although it 14 had been less frequently litigated than the corresponding 15 substantive parental right. 16 As with the corresponding parental right, however, the 17 law in 1997 also recognized the countervailing principle that the 18 state may remove children from the custody of their parents 19 without violating the children's constitutional rights where 20 there is a reasonable basis for concluding that the children are 21 abused or neglected. See, e.g. , Rivera , 696 F.2d at 1017. 22 For much the same reason that we determined that Woo is 23 not entitled to qualified immunity as a matter of law on the 24 current record as to Southerland's substantive due process claim, 25 resolving all disputed facts in the plaintiffs' favor for these 2657 purposes, we conclude that a reasonable caseworker in Woo's 1 position would not have lacked a sufficient legal basis for 2 knowing that his conduct under those circumstances would infringe 3 upon the substantive constitutional rights of the Southerland 4 Children. As with the other claims addressed in these appeals, 5 though, the district court may yet conclude on remand and after 6 further development of the facts that Woo is entitled to 7 qualified immunity in this context. 8 Finally, we note that the district court concluded 9 that, in the absence of qualified immunity protection, Woo would 10 not be entitled to summary judgment on the merits of the 11 Southerland Children's Fourth Amendment unlawful-seizure claim. 12
SeeSoutherland II , 521 F. Supp. 2d at 234 n.29. We have no 13 reason to disturb that ruling on appeal. 14

**CONCLUSION** 15 For the foregoing reasons, we vacate the district 16 court's grant of summary judgment on each of the plaintiffs' 17 claims that have been preserved for appeal: (1) Southerland's and 18 the Southerland Children's claims for Fourth Amendment violations 19 arising out of the allegedly unlawful search of the Southerland 20 home; (2) Southerland's and the Southerland Children's claims for 21 violations of procedural due process under the Fourteenth 22 Amendment; (3) Southerland's claim for violation of substantive 23 due process under the Fourteenth Amendment; and (4) the 24 Southerland Children's claim for unlawful seizure under the 25 Fourth Amendment. We remand for further proceedings. 26