PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ ADAM LOWTHER, on behalf of himself and as next friend of minor children, W.L. and A.L; JESSICA LOWTHER, on behalf of herself and as ne xt friend of minor children, W.L. and A.L; KELLY STOUT SANCHEZ, guardian ad litem for A.L. and W.L., Plaintiffs - Appellants,

v. CHILDREN YOUTH AND FAMILY DEPARTMENT; BERNALILLO COUNTY SHERIFF'S DEPARTMENT; MARIA MORALES; JACOB WOOTTON; CATHERINE SMALLS; BRIAN THORNTON; MARTIN LOZANO; ANDREA MILES; BOARD OF COUNTY COMMISSIONERS FOR BERNALILLO COUNTY, Defendants - Appellees. No. 23-2056

________________ _________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:18-C V-00868-MIS-JFR)

________________ _________________ Vincent Ward, The Ward La w Firm, Albuquerque, New Me xico, for Plaintiffs – Appellants. Brian Griesmeyer, SaucedoChavez, P.C. (Fra nk T. Apodaca with him on the brief) and H. Nicole Werkmeister, Stiff, Garcia & Asso ciates, LLC (John S. Stiff and Kathy L. Black on the brief), Albuquerque, New Mexico, for Defenda nts – Appellees. FILED United States Court of Appeals Tenth Circuit 

### May 7, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 12 ________________ _________________ Before McHUGH , MURPHY , and CARSON , Circuit Judges.

________________ _________________ McHUGH , Circuit Judge.

________________ _________________ New Mexico’s Children, Youth, and Fa mily Department (“CYFD”) received an anonymous report that Dr. Adam Lowthe r was sexually abusi ng his four-year-old daughter, A.L. The report wa s based on a disclosure A.L. made to her schoolteacher and A.L.’s inappropriate beha vior in class. Within a fe w hours, a social worker and several law enforcement officers entere d the Lowther home without a warrant and took A.L. and her older brother into cust ody. Dr. Lowther was arrested, and the children were eventually retu rned to their moth er, Jessica Lowther. But the children were removed a second time after it became apparent Dr. Lowther would be released from jail. Ultimately, the charges against Dr. Lo wther were dismissed and the children returned to their parents. Dr. and Mrs. Lo wther then sued various state officials on behalf of themselves and their children, asserting constituti onal claims under 42 U.S.C. § 1983 and state law claims under the New Mexico Tort Claims Act. The district court granted summary judgment in Defendants’ favor, concluding they are entitled to qualified immunity on the § 1983 claims and that the state law claims fail for similar reasons. The Lowthe rs appealed, but they have not shown any error in the district court’s ruli ngs. We thus affirm. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 23 I. BACKGROUND A. Factual History 1. The Initial Report At the time of the removals, Dr. and Mrs. Lowther had two children, sevenyear-old W.L. and four-year-old A.L. A. L. was enrolled in school and taught by Betty DuBoise. On August 25, 2017, Ms. DuBoise called Dr. Lowther and told him A.L. had been “touching [A.L.’s] private area and hiking up her dress” in class. App. Vol. II at 492. Dr. Lowther said that he and Mrs. Lowther had “been working with” A.L. on this behavior and th at “she gets it from watchi ng” her brother “touch himself while sucking his thumb.” Id. A few days later, Ms. DuBoise spoke with Mrs. Lowther about A.L.’s be havior. Mrs. Lowther stated that A.L. had “been having a hard time and that she would talk with her.” Id. On August 30, 2017, at approximately 2:28 p.m., Ms. DuBoise anonymously called CYFD. She reported her suspicion that Dr. Lowther was sexually abusing A.L. 1 CYFD’s intake report described Ms . DuBoise’s account as follows, with Ms. DuBoise identified as “Source”: [A.L] told a male student that he had a penis. Source redirected the children. Source asked [A.L.] how she knew the word. [A.L.] says [Dr. Lowther] puts her on his lap when he goes to the bathroom and likes to move her up and down like a horsey. [Dr. Lowther] sleeps with her and kisses her on the lips with tongue . [Dr. Lowther] touches her on her

1 The Lowthers state that “the alleged disclosure occurred after [they] criticized [Ms.] DuBoise’s teaching skills and asked to disenroll A.L. from the school.” Appellants’ Br. at 7. Because Defenda nts were not privy to this information, it is irrelevant to our analysis. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 34 bottom and puts his finger inside of he r. [A.L.] was able to demonstrate the movement with her hands and finge rs. [A.L.] relayed that her brother kisses her with tongue and that her brother touche s her as well. [A.L.] said [Dr. Lowther] also touches her brother but did not give any detail. [A.L.] stated that this happens all th e time. Source asked [A.L.] if she had told [Mrs. Lowther]. [A.L.] said [Dr. Lowther] told her not to and that it was their secret. [Dr. Lowther] told [A.L.] that [Mrs. Lowther] would get mad. Source tried to encourage [A.L.] to speak with [Mrs. Lowther] and [A.L.] said [Mrs. Lowther] would ye ll. [A.L.] has been demonstrating some behaviors in class since the st art of school. She is not listening, talking back, she spit at another girl and has been aggressive toward other children. Id. at 492–93 (“[A.L.]” alterations in orig inal). The CYFD intake report also described Ms. DuBoise’s conve rsations with Dr. and Mrs. Lowther concerning A.L. touching herself in class. Less than two hours later, at approxi mately 3:45 p.m., CYFD Investigator Maria Morales contacted Ms. DuBoise and confirmed the contents of the intake report. Investigator Morales also cont acted the Bernalillo County Sheriff’s Department (“BCSO”) and “re quest[ed] assistance in co nducting a welfare check of the Lowther children.” Id. at 492. At approximately 3:50 p.m., BCSO dispatched Deputies Catherine Small, Brian Thornton, and Martin Lozano (collectively, “the Deputies”) to the Lowther home, with De puty Small as the lead field deputy. 2
2. First Contact with the Lowthers At 4:05 p.m., the Deputies arrived at the Lowther home and met with Investigator Morales, who gave them “m ore detail regarding the nature of the

2 Deputy Catherine Small appears to have been incorrectly named as Catherine Smalls in this matter. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 45 allegations.” Id. at 493. At approximately 4:19 p.m., the Deputies knocked on the Lowthers’ front door and bega n speaking with Mrs. Lowther. Mrs. Lowther was on the phone with Dr. Lowther when she answ ered the door, and she contemporaneously relayed her conversation with th e Deputies to Dr. Lowther. The Deputies told Mrs. Lowther they n eeded to conduct a welfare check of her children. They said a welf are check was necessary “because ‘somebody called and wanted to remain anonymous that they were worried [about the children].’” Id. at 494 (alteration in original). Mrs. Lowther re fused entry, stating she would not let the Deputies “in the house until her husband arrived.” Id. Deputy Thornton responded, “So in [the] State of New Mexico, and we’re conducting a check on children, if you deny us access you can be arrested.” Id. Mrs. Lowther relayed Deput y Thornton’s response to Dr. Lowther. She also stated, “I don’t understand what ’s going on – what? Well, th at’s what they’re telling me, I don’t know what to do here. I don’t unde rstand what’s going on.” App. Vol. VI at 1322. Mrs. Lowther told the Deputies that Dr. Lowther was on his way home and that they needed to stay out side until he arrived. Deputy Thornton replied, “Sure,” but told Mrs. Lowther she c ould not close the front door. Id. at 1323. Mrs. Lowther told Dr. Lowther that she was “ not allowed to close the door.” Id. Mrs. Lowther also instructed A.L. and W.L. to go to their rooms. Deputy Thornton offered to explain “what’s going on” if Mrs. Lowther ended her call with Dr. Lowther. Id. Mrs. Lowther said she did not want to end the call, and Deputy Thornton replied, “That’s fine.” Id. However, Deputy Th ornton did explain Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 56 that the visit was prompted by a pho ne call CYFD received “from school.” Id. at 1324. 3. Dr. Lowther’s Arrival At approximately 4:41 p.m., Detective Jacob Wootton was dispatched to the Lowther home to lead the investigation. On his way, he instru cted the Deputies to detain Dr. Lowther when Dr. Lowther arrived. Dr. Lowther arrived home at 4:42 p.m. Deputy Thornton met him outside and explained that the Deputies were respondi ng to an anonymous call concerning the welfare of the Lowther child ren. The Deputies did not pe rmit Dr. Lowther to enter his home. Investigator Morales also spoke with Dr . Lowther when he arrived. She briefly explained that there were al legations of child abuse, but she did not identify the suspected perpetrator. Inve stigator Morales provided Dr . Lowther with a parent’s guide that detailed the process if the ch ildren were taken into CYFD custody and Dr. Lowther’s right to file a complaint against her. Investigator Morales told Dr. Lowther that she would provide more de tail when Detective Wootton arrived. After Dr. Lowther and Investigator Morales spoke, Dr. Lowther informed Deputy Thornton “that he was ‘not going to let anybody into the house.’” App. Vol. II at 495. In response, Deputy Thornton de tained Dr. Lowther by placing him in the back of a patrol car. At th is point, Deputy Thornton clarif ied for Dr. Lowther that the complaint was specifically against him. Deputy Thor nton also stated that Detective Wootton would explain more when he arrived and that N.M. Stat. § 30-6-4 Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 67 permitted the Deputies to enter a home “to check on the welfare of children.” App. Vol. VI at 1335. Deputy Thornton also took Dr. Lowther’s phones because they might have contained evidence. While Dr. Lowther was in the patrol car, Deputies Thornton and Lozano asked him if there were firearms in the home and where they were located. Dr. Lowther confirmed he had firearms in the home a nd said Mrs. Lowther would know their location. Deputy Thornton thanked Dr . Lowther for his cooperation. Shortly after this conversation, Deput y Small asked Dr. Lowther to exit the patrol car. She handcuffed him and ha d him return to the patrol car. 4. The Warrantless Entry While Dr. Lowther was outside, the Deputies continued to speak with Mrs. Lowther at the front door. They provi ded more detail about the CYFD report, including that A.L. made “very descriptiv e” statements to someone at her school. App. Vol. II at 495. They also told Mrs. Lowther that a detective was on his way. Mrs. Lowther “expressed incredulity” that the visit was prompted by something a four-year-old said. Id. at 496. The Deputies also explained that “Dr. Lowther was being detained but was not under arrest.” Id. Mrs. Lowther asked what A.L. ha d said at school, and a deputy told her that he did not know. Mrs. Lowther re plied, “At what point is the information going to flow?” App. Vol. VI at 1350. The Deputies said there would be more information after A.L. was inte rviewed by a child therapist. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 78 The Deputies and Mrs. Lowther continued to talk, and Mrs. Lowther said A.L. “was not unsafe.” App. Vol. II at 496. A deputy responded that if this were his investigation, Mrs. Lowther “would already be in the back of a police car because she was obstructing the officers’ duty to check on the welfare of a child.” Id. Mrs. Lowther then stated, “My duty is to my husband and my husband –” at which point the deputy cut her off and said, “I don’t care right now. . . . I’m just letting you know that if this was my investigation, you would be in handcuffs in the back of a car. So you might want to consider your actions.” App. Vol. VI at 1351. Deputy Small then addressed Mrs. Lo wther. She explained that medical personnel were coming to examine the child ren, and Mrs. Lowther “could either allow them access or be detained.” App. Vo l. II at 496. In response, Mrs. Lowther asked if the child therapist who would in terview A.L. had arri ved. Deputy Thornton explained that a therapist was not coming because A.L. would be transported to a safehouse for the interview. Mrs. Lowther asked if this meant the Deputies were going to take A.L., and a deputy responded that “no deci sions had been made” but A.L. would eventually be interviewed at a safehouse. Id. At this point, Deputy Small again stat ed that medical personnel were coming and asked Mrs. Lowther if she was going to let them in side or be detained. The Deputies entered the Lowther home at appr oximately 4:44 p.m., about twenty-five minutes after they first arrived. Medical personnel arrived and did a medical check on the children at about 5:13 p.m. While the De puties were inside, Mrs. Lowther “lied to the officers regarding her knowledge of whet her there were any w eapons or firearms Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 89 in the house.” App. Vol. III at 774. She later “acknowledged the location of the firearms and agreed not to go near them.” Id. 5. Detective Wootton’s Arrival Detective Wootton arrived approximate ly six minutes after the Deputies entered the Lowther home. Detective Woott on understood the situation because he had reviewed the CYFD report, and the Deputies had informed him that Dr. and Mrs. Lowther were not cooperating. Additi onally, when Detective Wootton arrived, he discussed the case with Investigator Morales. When Detective Wootton went inside the home, he read Mrs. Lowther her Miranda rights, and she agreed to answer hi s questions. Detective Wootton began the interview by asking Mrs. Lowther why sh e had not let the Deputies inside. She replied, “I just, I just do n’t like letting people into my house who I don’t know. I was with my children by myself.” App. Vol. VI at 1410. Detective Wootton asked if Dr. Lowther said to let the Deputies in. Mr s. Lowther responded, “He said not to let you in.” Id. After this exchange, Investigator Morale s discussed the abuse allegations with Mrs. Lowther. Investigator Morales explai ned, “So, the allegations right now that we’re looking at is sexual mo lestation and sexual abuse and lack of supervision. So, those are the allegations against both you and dad.” Id. at 1413. Mrs. Lowther replied that these allegations came “comp letely out of left field.” Id. Detective Wootton then informed Mrs. Lowther that he would be “taking the children on a 48-hour hold.” Id. at 1415. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 910 Next, Detective Wootton went outs ide to speak with Dr. Lowther. Detective Wootton told Dr. Lowther the specific nature of the allegations and reiterated that Dr. Lowther was not under arrest. Dr. Lowther asked why he was still in handcuffs, and Detective W ootton replied, “I have no idea.” App. Vol. II at 498. Detective Wootton then directed Deputy Thor nton to remove the handcuffs. After the handcuffs were removed, Dr. Lowther wa s placed back in the patrol car. 6. The First Removal & Sa fehouse Interviews A.L. and W.L. were removed from their home, transported to a safehouse, and forensically interviewed that night (“First Removal”). A.L. was interviewed twice for a total of fifty-four minutes. W.L. wa s interviewed once for forty minutes. The district court provided the following synopsis of the interviews, which the parties have not challenged: A.L. stated, among other things, that she got into trouble for touching her privates at school; she sits on her fath er’s lap while he is defecating; her father touches her “pee-pee” and “g ina” in the bathroom, which she repeatedly stated was th eir “secret”; her father kisses her “butt-cheeks”; and takes photographs and videos of her “butt a nd gina,” with his phone, sometimes while she is saying “fuck.” W.L. stated that he and his sist er are spanked on the bottom with a wooden spoon; sometimes, mostly by his father, they are slapped on the face; he feels nervous around his mother ; he does not feel safe around his father; his father “is r eal mean and I don’t like to be around him a lot . . . because he hurts me a lot;” and that his father sometimes pushes him “hard down on the ground” which causes him to hit the back of his head. Id. at 499. Detective Wootton review ed the interviews that night and directed the Deputies to transport Dr. and Mrs. Lowther to the BCSO station. Detective Wootton Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 1011 charged Dr. Lowther with criminal sexual pe netration of a minor and criminal sexual contact of a minor. Mrs. Lowther was not charged and was allowed to leave the station. That night, after th e interviews, BCSO obtained a warrant and searched the Lowthers’ home. 7. A.L.’s Physical Exam The following day, August 31, Investigat or Morales took A.L. for a physical exam at the Albuquerque Sexual Assault Nurse Examiners (SANE) Collaborative. A.L. had a follow-up exam the next day, September 1. The follow-up exam occurred at a different facility and was conducted by Dr. Shalon Nienow. Dr. Nienow’s report noted that in the SANE exam , “an injury was noted at 12 o’clock on the anus” that was “consistent with teari ng and/or bruising.” App. Vo l. III at 811. Dr. Nienow reexamined A.L. and reported, “Normal anal folds. Skin tag at 12 o’clock. Tearing visualized on SANE photographs has resolved with new skin present on right side of anal tag.” Supp. App. at 620. In the “diagnostic impressi ons” section of the report, Dr. Nienow wrote, “Normal physical examin ation today. Previous examination with anal tear present. This finding is consiste nt with the child’s disclosure of anal penetration and constitu tes child sexual abuse.” Id. 8. The Safety Plan Also on September 1, Investigator Mora les and Mrs. Lowther spoke about the allegations against Dr. Lowther. Mrs. Lowther said “she was unaware of any misconduct by her husband” and “did not accep t the allegation as true . . . because nothing in [her] 18 years of marriage to him would indicate that he could or would Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 1112 commit any crime.” App. Vol. III at 812. Mrs. Lowther wanted A.L. to be in therapy because she did not believe A.L. “would say such things unless something had happened to her.” Id. That same day, CYFD developed a safe ty plan to releas e the children from protective custody. Mrs. Lowthe r’s parents, John and Terry Borg, would act as safety monitors. CYFD uses safety monitors “to allow children to be returned to their parents’ custody, even when CYFD has linge ring concerns about the parents’ ability to protect their children.” App. Vol. IV at 1054. Safety monitors must remain neutral and cannot express their belief or disbelief of abuse disclosures. In-home services clinician Andrea Miles explained this neutrali ty requirement to th e Borgs before they became safety monitors. On September 4, CYFD held a transfer meeting with Mrs. Lowther, the Borgs, Investigator Morales, Ms. Miles, and CYFD supervisor s Yvonne Meade and Robin Yoder to discuss returning custody to Mrs. Lowther with the Borgs acting as safety monitors. The meeting participants agreed that Ms. Miles w ould work with the family. The children were th en in Mrs. Lowther’s cust ody under the safety monitor arrangement. 3

3 It is unclear when the ch ildren were returned to Mrs. Lowther. But they must have been returned on or before Septembe r 6, the date the children were removed a second time. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 1213 9. The Second Removal On September 5, a New Mexico state di strict court held a hearing concerning Dr. Lowther’s release from jail . The assistant district atto rney assigned to the case “expressed concerns regarding Dr. Lowt her’s potential access to the Lowther children via his influence over Mrs. Lo wther and her parents, the Borgs.” Id. at 1054–55. This concern stemmed from record ed calls between Dr. and Mrs. Lowther “in which they discussed leav ing town with the children.” Id. at 1055. Mr. Borg and Ms. Miles were both at the criminal hearing. During or immediately after the hearing, Mr. Bo rg approached Ms. Miles and “angrily expressed his disbelief to [her] on the a llegations against Dr. Lowther, putting his hand on her, calling her his ‘helper,’ and te lling her she needed to fix the situation.” Id. Because of this interaction, Ms. Miles was concerned that Mr. Borg was not a neutral safety monitor. The following morning, the New Mexico district court issued an order releasing Dr. Lowther from custody. Ther e were several conditions placed on the release, including that Dr. Lowther wear a GPS monitor and not contact Mrs. Lowther or their children. Within th irty minutes after th e order was entered, CYFD personnel—including Inve stigator Morales and Ms. Miles—met to discuss the Borgs’ ability to serve as safety monitors “g iven Dr. Lowther’s imminent release from custody.” Id. at 1056. The meeting participants had their “original concerns about the ability of Dr. and Mrs. Lowther to care for their children,” but they were Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 1314 also worried about the Borgs’ ability to remain neutral a nd the “possibility that Dr. and Mrs. Lowther posed a risk of absconding with” the children. Id. Based on these concerns, e ither Investigator Morale s or Ms. Miles called Detective Wootton regarding a second 48-hour hold. “[Detective] Wootton considered CYFD’s input and concerns, a nd he then decided to place the Lowther children on a second 48-hour hold, before Dr. Lowther was released from jail.” Id. The children were removed a second time (“ Second Removal”), although they were ultimately reunited with Dr. and Mrs. Lo wther. The charges against Dr. Lowther were dismissed after the district atto rney’s office declin ed to prosecute. B. Procedural History On behalf of themselves and their chil dren, Dr. and Mrs. Lowther filed suit against BCSO, Detective Wootton, the Depu ties, CYFD, Investigator Morales, and Ms. Miles (collectively, “Defendants”). They alleged several viol ations of the United States Constitution and the New Mexico To rt Claims Act. The constitutional claims were brought pursuant to 42 U.S.C. § 1983. After several rounds of br iefing, the district court granted summary judgment in Defendants’ favor on all federal claims . The Lowthers file d a timely appeal. Before considering the merits of the Lowt hers’ appellate argumen ts, we outline their claims on appeal and the distri ct court’s relevant rulings. 1. Counts 1 & 10 – Warrantless Arrest In Count 1, Dr. Lowther asserts that Detective Wootton and the Deputies (collectively, “the County Defendants”) violated the Fourth Amendment by Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 1415 unlawfully seizing and arresti ng Dr. Lowther on August 30, 2017. 4 The County Defendants moved for summary judgment on Count 1, arguing they are entitled to qualified immunity because any warrantless arrest of Dr. Lowther was justified by probable cause. The district court agreed with the Count y Defendants, concluding there was probable cause to arrest Dr. Lo wther both before and after the children’s safehouse interviews. The court further concluded that even if there was a constitutional violation, it was not clearly established. In Count 10, the Lowthers assert a claim against BCSO under the New Mexico Tort Claims Act for false arrest and imprisonment of Dr. Lowther on August 30, 2017. The district court dism issed this claim based on its ruling that any warrantless arrest of Dr. Lowther was supported by probable cause. 2. Count 4 – Warrantless Entry In Count 4, the Lowthers assert that Investigator Morales and the County Defendants violated the Fourth Amendm ent by entering the Lowther home on August 30, 2017, without a warrant. 5 The County Defendants ar gued they are entitled to

4 Dr. Lowther also asserted Count I ag ainst BCSO. He has not appealed the dismissal of Count I against BCSO, so we do not address it further.

5 The Lowthers also asserted Count 4 against CYFD but voluntarily dismissed that claim. That voluntary dismis sal is not at issue on appeal. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 1516 qualified immunity because Mrs. Lowther c onsented to the entry and alternatively, because the warrantless en try was justified by ex igent circumstances. The Lowthers argued, among other things, that the C ounty Defendants had not timely raised the exigent circ umstances exception. The dist rict court initially ruled that exigency had been waived, but later reconsidered and concluded exigency had been timely raised. The distri ct court further concluded that the County Defendants were entitled to qualified immunity because exigent circumstan ces justified the warrantless entry. The exigent circumstan ces were the reasonable suspicion A.L. “had been abused or [was] in imminent pe ril of abuse.” App. Vol. III at 681. The district court later dismissed Count 4 against Investigator Morales because she is also entitled to qualified immu nity based on the exig ent circumstances. 3. Counts 5 & 12 – First Removal In Count 5, the Lowthers assert that Investigat or Morales and Detective Wootton violated the F ourth and Fourteenth Amendments 6 by removing the

6 The Fourth Amendment clai ms in Counts 5 and 6 can be asserted only by the children because Fourth Amendment rights are personal and cannot be asserted vicariously. See Hollingsworth v. Hill , 110 F.3d 733, 738 ( 10th Cir. 1997). And because A.L. and W.L. have a claim under the Fourth Amendment, they do not have an independent due process claim under the Fourteenth Amendment. See Silvan W. v. Briggs , 309 F. App’x 216, 222 n.4 ( 10th Cir. 2009) (unpublished); Becker v. Kroll , 494 F.3d 904, 919 (10th Cir. 2007). So, the Fourteenth Amendment claims in Counts 5 and 6 can be asserted by Dr. and Mr s. Lowther only, not their children. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 1617 Lowther children “without a warrant or re asonable suspicion the children were in imminent danger.” 7 App. Vol. II at 571. This clai m stems from the First Removal. Detective Wootton moved for summary judgment, arguing he is entitled to qualified immunity because ex igent circumstances justified the First Removal. He contended there was an exigen cy because he had reasonabl e suspicion A.L. and W.L. had been abused and were in imminent danger of abuse. Alternatively, he argued the law was not clearly established. The district court granted summary j udgment in Detective Wootton’s favor, concluding the First Removal was justified by exigent circumstances and that even if there was a constitutional violation, the law was not clearly established. The Lowthers asked the court to reconsider th is ruling. Among othe r things, they argued the court incorrectly applied the Fourteenth Amendment ex igency standard to their Fourth Amendment claim. In response, Det ective Wootton argued that the Fourth and Fourteenth Amendment exigen cy standards are the same, so the court’s application was correct. The district cour t declined to reconsider, c oncluding “that the standard governing Fourth Amendment vi olations in the context of the warrantless removal of a child closely tracks that of the Fourteen th Amendment such th at qualified immunity should be granted.” A pp. Vol. III at 778.

7 Count 5 was also asserted against CY FD. The Lowthers have not appealed the dismissal of Count 5 against CYFD , so we do not addr ess it further. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 1718 The district court later dismissed Count 5 against Investigator Morales as well, reiterating its prior ruling that the Fi rst Removal was justified by exigent circumstances and that any constitutional violation was not clearly established. In Count 12, the Lowthers assert BCSO violated the New Mexico Tort Claims Act by falsely arresting and imprisoning the Lowther children during the First Removal. 8 The district court dismissed this cl aim for the same reasons it dismissed Count 6—exigent circumstance s justified the removal. 4. Count 6 – Second Removal In Count 6, the Lowthers assert that Investigat or Morales and Ms. Miles violated the Fourth and Fourteenth Ame ndments by removing the Lowther children “without a warrant or reasona ble suspicion the children we re in imminent danger.” 9 App. Vol. II at 572. This claim is based on the Second Removal. Investigator Morales and Ms. Miles m oved for summary judgment on Count 6, asserting qualified immunity. They first argued they could not be held liable for the Second Removal because law enforcement offi cers were responsible for the removal. Alternatively, they argued there was no co nstitutional violation because of exigent circumstances, namely their reasonable susp icion the children had been abused and

8 In their Brief, the Lowthe rs incorrectly state this claim was asserted against CYFD.

9 This claim was also asserted agains t CYFD, but the Lowthers voluntarily dismissed the claim against CYFD. That vo luntarily dismissal is not at issue on appeal. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 1819 were in imminent danger of abuse. They further contended that if there was a violation, it was not clearly established. The district court ruled that Investigat or Morales and Ms. Mi les are entitled to qualified immunity because th e Lowthers had not shown the alleged violation was clearly established. The di strict court therefore decl ined to address the other arguments for dismissal. 5. Final Judgment After the various summary judgment ru lings, only a state law claim against BCSO remained. The district court declined to exercise supplemental jurisdiction over that claim, dismissing it without pr ejudice. The district court entered final judgment, and the Lowthers timely appealed. II. DISCUSSION We review de novo a district court’ s grant of summary judgment based on qualified immunity. McInerney v. King , 791 F.3d 1224, 12 27 (10th Cir. 2015). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the mova nt is entitled to j udgment as a matter of law.” Fed. R. Civ. P. 56(a) . We view the evidence and reasonable inferences drawn therefrom in the light most favor able to the nonmoving party. McInerney , 791 F.3d at 1227. “When a defendant asserts the defense of qualified immunity, the onus is on the plaintiff to demonstrate (1) that the official conduct viol ated a statutory or constitutional right, and (2) that the right was clearly es tablished at the time of the Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 1920 challenged conduct.” A.M. v. Holmes , 830 F.3d 1123, 1134 (10th Cir. 2016) (internal quotation marks omitted). If th e plaintiff fails to make e ither showing, the defendant is entitled to qualified immunity. Id. at 1134–35. For a right to be clearly es tablished, “there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established wei ght of authority from other courts must have found the law to be as the plai ntiff maintains.” Mocek v. City of Albuquerque , 813 F.3d 912, 922 ( 10th Cir. 2015) (quota tion marks omitted). The Supreme Court has cautioned “not to define clearly established la w at a high level of generality.” Ashcroft v. al-Kidd , 563 U.S. 731, 742 (2011). The “clearly established” inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz , 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson v. Callahan , 555 U.S. 223 (2009). Further, a “clearly establishe d right is one that is ‘su fficiently clear that every reasonable official would have understood that what he is doing violates that right.’” Mullenix v. Luna , 577 U.S. 7, 11 (2015) (quoting Reichle v. Howards , 566 U.S. 658, 664 (2012)). If reasonable offi cers could disagree, the right is not clearly established. Malley v. Briggs , 475 U.S. 335, 341 (1986). The Lowthers challenge the district court’s rulings on each of the claims outlined above. See supra Section I.B. We address thos e claims in turn, concluding the district court did not err. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 2021 A. Counts 1 & 10 – Warrantless Arrest Dr. Lowther challenges the district cour t’s conclusion that his warrantless arrest was justified by probable cause. We first address this challenge under the Fourth Amendment in Count 1, and then we consider this claim under the New Mexico Tort Claims Act in Count 10. 1. Count 1 – Fourth Amendment The Lowthers assert that when Dr. Lo wther arrived home on August 30, 2017, the County Defendants violated the Fourth Amendment by arresting him without a warrant or probable cause. The County De fendants respond that Dr. Lowther was merely detained and that regardless, th ey had probable cause. For purposes of our analysis, we assume Dr. Lowt her was arrested when he arrived home. Nonetheless, we conclude the County Defendants are en titled to qualified imm unity because they had probable cause to believe Dr. Lowther had committed a crime. The Fourth Amendment generally require s law enforcement officers to obtain a warrant before an arrest. Oliver v. Woods , 209 F.3d 1179, 11 85–86 (10th Cir. 2000); see also U.S. Const. amend IV. A warrant is not necessary, however, if the officers have probable cause. Oliver , 209 F.3d at 1186. Probable cause exists if there is “reasonably trustworthy information that would lead a reasonable officer to believe” the arrestee “h as committed or is abou t to commit a crime.” Cortez v. McCauley , 478 F.3d 1108, 1116 (10t h Cir. 2007) (en banc). Probable cause is an objective inquiry based on the to tality of the circumstances. Id. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 2122 The district court concluded probable cau se existed to arrest Dr. Lowther. In reaching this conclusion, the court relied on the following evidence: (1) “[Detective] Wootton had been presented with the cont ents of the CYFD Report, which included that A.L. had disclosed to [Ms.] DuBoise, in graphic detail, inappropriate sexual conduct with her father”; (2 ) Investigator Morales spoke to Ms. DuBoise and relayed that conversation to Detective Wootton; an d (3) when Detective Wootton arrived at the Lowther home, he was briefed by the Deputies and Investigator Morales, who informed him the Lowthers “had been uncooperative.” App. Vol. II at 504. Considering the evidence in to tality, we perceive no erro r in the district court’s probable cause analysis—particularly given A.L.’s graphic disclosure. Nevertheless, the Lowthers argue probable cause was lacki ng because the County Defendants relied solely on the double-hearsay statement of a four-year-old. The Lowthers’ argument rests on our decision in Cortez v. McCauley , 478 F.3d 1108 (10th Cir. 2007) (en banc).
In Cortez , a woman took her two-year-old daughter to the hospital “alleging that the child had complain ed that her babysitter’s ‘boyfriend’ had ‘hurt her pee pee.’” 478 F.3d at 1113 (footnote omitted). A nurse called the sheriff’s department and reported the disclosure. Id. at 1112–13. Sheriff’s depu ties immediately went to the boyfriend’s house. Id. at 1113. The deputies “did not wa it to receive th e results of the medical examination of the child, did not interview the child or her mother, and did not seek to obtain a warrant.” Id. Moreover, they arrived at the home around 1:00 Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 2223 a.m., and when the boyfrie nd answered the door, the deputies seized, handcuffed, and Mirandized him before putting him in a patrol car and questioning him. Id. We held that the deputies violated clear ly established law b ecause they did not have probable cause to arrest the boyfriend. Id. at 1116–22. We reached this conclusion because the de puties possessed only “a double-hearsay statement, allegedly derived from a two-year-old.” Id. at 1122. Additionally, the deputies “conducted no investigation,” even though “witnesses were read ily available for interviews, physical evidence was avai lable, and a medical diagnosis was forthcoming.” Id. at 1117. Like Cortez , this case involves the hearsay statement of a young child. But there are material difference s. First, A.L. was four, not two, and her statement was more detailed than saying somebody “hurt her pee pee.” Id. at 1113. A.L. described specific disturbing actions—she said Dr. Lowther “kisses her on the lips with tongue” and “touches her on her bottom and puts his finge r inside of her.” App. Vol. II at 492. A.L. also demonstrated “the move ment with her hands and fingers.” Id. at 492–93. She further reported that Dr. Lowther t ouched W.L. inappropriately and that Dr. Lowther told A.L. not to tell Mrs. Lo wther. Additionally, th e CYFD report noted that A.L. had been touching hers elf inappropriately at school. The hearsay chain in this ca se is also different from Cortez . In Cortez , the nurse who reported the alleged abuse did not hear the alle gations directly from the child. 478 F.3d at 1116. Convers ely, Ms. DuBoise heard the allegations directly from A.L. and personally observed A. L.’s inappropriate behavior in class, as well as Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 2324 A.L.’s hand motion demonstrating how Dr . Lowther touched her. Further, we emphasized in Cortez that depending on the circum stances, double hearsay could give rise to probable cause. See id. at 1118 n.10 (“No one disput es that hearsay (with sufficient indicia of reliability ) may be considered as part of the totality of the circumstances in making a probable cause determination. The double-hearsay statement in this case could be considered; but it was insuffi cient, in and of itself, to support probable cause.”); id. at 1118 n.11 (“Again, we do not suggest a per se rule that unsubstantiated double-h earsay can never give rise to probable cause. There, in fact, may be situations in which a double-h earsay statement involves individuals or circumstances of sufficient trustworthiness to give rise to probable cause.”); see also United States v. Mathis , 357 F.3d 1200, 1205 (10th Ci r. 2004) (“We restate that multiple layers of hearsay may form the ba sis of a finding of probable cause.”). This case also differs from Cortez because there were not additional witnesses or evidence readily available. See Cortez , 478 F.3d at 1117–19. The mother in Cortez reported the alleged abuse and took her ch ild to the hospital fo r an examination. Thus, there was nothing to suggest she would impede further investigation. Additionally, the defendants could have interviewed the nurse who reported the alleged abuse and the doctor who examined the child, and they could have waited for the “forthcoming” medical diagnosis. Id. at 1117. In contrast , Mrs. Lowther would not allow the County Defendants inside the house, and she announced she did not take the allegations seriously . So, unlike the defendants in Cortez , the County Defendants did not have evidence or witnesses readily available. See id. at 1117–18. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 2425 In sum, A.L.’s detailed di sclosure and her inappropriat e behavior in class gave rise to probable cause to believe Dr. Lowther had committed a crime. Because Dr. Lowther has not shown a constitutional violation, the dist rict court properly dismissed Count 1. 2. Count 10 – New Mexico Tort Claims Act The district court dismissed Count 10, relying on its conclusion that the County Defendants had probable cause to a rrest Dr. Lowther. Although the Lowthers identify this as a ruling they challenge on appeal, they offer no argument for why the district court’s ruling was incorrect. Thus, they waived any argument that the dismissal of Count 10 was erroneous, a nd we do not consider it further. See Phillips v. Calhoun , 956 F.2d 949, 954 (10th Cir. 1992) (“ [E]ven issues designated for review are lost if they are not actually argued in the party’s brief.”). B. Count 4 – Warrantless Entry The Lowthers contend that Investigator Morales and the County Defendants violated the Fourth Amendment by enteri ng their home without a warrant. They further contend the warrantle ss entry was not justifie d by exigent circumstances. 10

10 For the first time in their Reply Brief, the Lowthers cite Kentucky v. King , 563 U.S. 452 (2011), and argue the exig ent circumstances ex ception cannot apply because the County Defendants “repeatedly threaten ed [Mrs. Lowther] with arrest or detention.” Reply at 5. This argument is waived, so we do not consider it. Anderson v. U.S. Dep’t of Lab. , 422 F.3d 1155, 1174 ( 10th Cir. 2005) (“The failure to raise an issue in an opening brief wa ives that issue.”). But we assume for purposes of our analysis that Mrs. Lowther did not voluntarily consent to entry. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 2526 Assuming the warrantle ss entry violated the Fourth Amendment, we nonetheless affirm the district court because the violation was not clearly established. We begin by concluding that although Investigator Morales is not a law enforcement officer, she may be liable for the warrantless entry. Next, we reject the Lowthers’ argument that the County Defendan ts waived their exig ency defense. We then outline our precedent concerning exig ent circumstances under the Fourth and Fourteenth Amendments. As we explain, th is precedent creates some ambiguity about how to evaluate exigen cy in child welfare cases. We t hus conclude that even if the County Defendants violated the Fourth Am endment, the violation was not clearly established. 1. Investigator Morales Investigator Morales contends that because she is not a law enforcement officer, she could not have obt ained a search warrant and wa s thus entitled to “rely on law enforcement’s judgment to enter the Lowthers’ home.” CYFD Br. at 25. Consequently, she argues she cannot be lia ble for an unlawful entry. We disagree. The Fourth Amendment “provides that th e Government shall not violate ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’” Dubbs v. Head Start, Inc. , 336 F.3d 1194, 1204 (10th Cir. 2003) (alteration in original) (quoting U.S. Const. amend. IV). Thus, the “Fourth Amendment protects the right of th e people to be ‘secure in their persons’ from government intrusion, whether the threat to privacy arises from a policeman or Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 2627 a Head Start administrator.” Id. at 1205. “There is no ‘social worker’ exception to the Fourth Amendment.” Id. Investigator Morales does not distinguish this case fr om others where we have declined to recognize a so cial worker exception to the Fourth Amendment. See id. ; see also Roska ex rel. Roska v. Peterson , 328 F.3d 1230, 1242 (10th Cir. 2003) (“[T]he state’s interest in protecting child ren does not excuse social workers from the warrant requirement of the Fourth Amendmen t.”). We thus reject her argument that she cannot be liable for an unlawful entry. 2. Waiver The Lowthers argue the County Defenda nts waived their exigency defense by not raising it in their Motion for Partial Summary Judgment. A lthough the parties dispute this point, we assume the County De fendants did not raise exigency in their Motion for Partial Summary Judgment. Even so, the Lowthers had an opportunity to oppose the exigency defense, so the di strict court was not prohibited from considering it. “Our case law forbids the district court from relying on new arguments or materials to decide a su mmary judgment motion unless the opposing party is provided an opportunity to respond.” Geddes v. United Staffing All. Emp. Med. Plan , 469 F.3d 919, 928 (10th Cir. 2006). Before the district c ourt, the Lowthers had two opportunities to respond to the exigency defense. First, the Lowthers responded to th e County Defendants’ Motion for Partial Summary Judgment by filing a combined Response and Cross-Motion for Partial Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 2728 Summary Judgment. The County Defendant s’ Response to this Cross-Motion expressly raised exigency as a defense to the unlawful entry claim. The Lowthers filed a Reply to this Respons e, wherein they could have addressed exigency. Second, the district court originally ruled that the exigency defense was waived, and the County Defendants filed a Rule 59(e) Mo tion asking the court to reconsider. The Lowthers responded to the Rule 59(e) Motion, arguing both that the exigent circumstances exception ha d been waived and that it was inapplicable. The exigent circumstances exception was fully briefed before the district court, and the Lowthers had a fair opportunity to address it. As a result , it was not improper for the district court to cons ider exigent circumstances. Geddes , 469 F.3d at 928; cf. Stewart v. City of Oklahoma City , 47 F.4th 1125, 1132 (10th Cir. 2022) (“Furthermore, we may affirm a grant of summary judgment on grounds other than those relied on by the distri ct court when the record contains an adequate and independent basis for the result.” (i nternal quotation marks omitted)). 3. Exigent Circumstances Although the warrantless entry claim is brought under the Fourth Amendment, the Fourteenth Amendment is relevant to our analysis because the parties dispute whether the Fourth and Fourteenth Ame ndment exigency sta ndards are identical. Investigator Morales and the County Defendants argue the standards are Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 2829 indistinguishable, while the Lowthers contend the Fourth Amendment standard is

narrower. As we now explain, our precedent is unclear concerning the applicable exigency standards under the Fourth and F ourteenth Amendments in child welfare cases. We next consider how, because of this ambi guity, it was not clearly established that the warrant less entry here violated the Fourth Amendment.

a. Tenth Circuit precedent “It is a ‘basic principle of Fourth Amendment law’ th at searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York , 445 U.S. 573, 586 (1980) (quoting Coolidge v. New Hampshire , 403 U.S. 443, 477 (1971)). However, a warrant is not required when exigen t circumstances are present. Brigham City v. Stuart , 547 U.S. 398, 40 3 (2006). “One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury.” Id. This type of exigency ex ists when officials “have objectively reasonable grounds to believe that there is an immediate need to protect their lives or others.” Cortez , 478 F.3d at 1124. Under thes e circumstances, officials “do not need probable cause.” Armijo ex rel. Armijo Sanchez v. Peterson , 601 F.3d 1065, 1070 (10t h Cir. 2010); see also Cortez , 478 F.3d at 1124 n.21 (noting that Brigham City v. Stuart , 547 U.S. 398 (2006), “did not expressly require probable cause” for there to be exigent circumstances). Under the Fourteenth Amendment, th e state may not permanently sever parental rights or temporarily remove children from a home “w ithout affording the Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 2930 parents due process of law.” Arredondo v. Locklear , 462 F.3d 1292, 1298 (10th Cir. 2006). Due process typically requires “notice and an opportunity to be heard before state officials remove children from the home.” Id. But when “[f]aced with emergency circumstances which pose an immedi ate threat to the sa fety of a child, the state may temporarily deprive a parent of custody without parental consent or a court order.” Id. (internal quotation marks omitted). Investigator Morales and the County Defendants argue that under both the Fourth and Fourteenth Amen dments, exigent circumstan ces exist when there is reasonable suspicion that a “child has been a bused or is in immine nt peril of abuse.” County Br. at 21 (quoting Arredondo , 462 F.3d at 1298). Th e Lowthers disagree. They contend the standards are different and that the Fourth Amendment “requires [a] reasonable basis to believe a child is in imminent danger of death or serious physical injury.” Appellants’ Br. at 32. Put differently, they contend there must be imminent danger, not just past abuse. The disagreement between the parties stems from our precedent considering exigent circumstances in th e child welfare context. i. Roska ex rel. Roska v. Peterson In Roska ex rel. Roska v. Peterson , school employees suspected a student was being abused by his mother. 328 F.3d 1230, 1237–38 (10t h Cir. 2003). The employees told a social work er they were worried the student “might die” without intervention. Id. at 1238. Two days later, social wo rkers and a police officer entered the mother’s home without a warrant and removed the student without judicial Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 3031 authorization. Id. The student and his family sued th e social workers and other state actors under § 1983 for various violations of the Fourth and Fourteenth Amendments. Id. at 1239. The district court dismissed al l claims based on qu alified immunity. Id. On appeal, we considered whether exigent circumstan ces justified the warrantless entry. Id. at 1240–41. Under the Fourth Am endment, we concluded there was not an exigency because there was “no evidence” indi cating the student “was in immediate threat of death or severe physical harm.” Id. at 1241 (emphasis added). Turning to the second prong of the qua lified immunity analysis, however, we concluded the law was not clear ly established at the time of the violation because our Fourth Amendment precedent had incorrectly suggested the ri sk to the child’s safety need not be immediate. Id. at 1249–50 & nn.23–24. But we clarified that for future cases, “absent probable cause and a warrant or exigent ci rcumstances, social workers may not enter an individual’s home for the purpose of taking a child into protective custody.” Id. at 1250 n.23. We further instructed that the exigen t circumstances exception cannot apply if the risk to th e child’s safety is “not immediate.” Id. at 1250 n.24. We next considered whether the st udent’s removal without judicial authorization violated th e Fourteenth Amendment. Id. at 1245–46. We explained that notice and a hearing are not required befo re a removal if there are “emergency circumstances which pose an immediate threat to the safe ty of a child.” Id. at 1245 (quotation marks omitted). Because emer gency circumstances were not present before the student’s removal, we concl uded there had been a violation of the Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 3132 Fourteenth Amendment. Id. at 1246. Moreover, we dete rmined this violation was clearly established because th e student’s “health and safe ty were not in immediate danger.” Id. at 1250. In sum, Roska required evidence of imminent danger under both the Fourth and Fourteenth Amendments. Id. at 1241, 1245. But Roska did not consider possible differences between the Fourth and Fourteenth Amendment standards. ii. Gomes v. Wood In Gomes v. Wood , a mother took her nine-month-old daughter to the pediatrician, claiming the daughter had a skull fracture from falling off a bed. 451 F.3d 1122, 1124 (10th Cir. 2006). The pediatrician found th is explanation “possible but suspicious.” Id. And although he “was comfor table” sending the daughter home, he told the mother he woul d have to report the injury. Id. at 1125. Several days later, a caseworker removed the daughter from th e mother’s home without a court order. Id. at 1126. The mother sued the casewor ker and others under § 1983. Id. She asserted the defendants violated the Fourteenth Ame ndment by removing her daughter without prior notice and hearing. Id. The district court grante d summary judgment to the defendants on all claims. Id. at 1126. We affirmed based on qualified immunity, concluding the law was not clearly established. Id. at 1135–38. We began by explaining that a child ma y be removed without prior notice and a hearing if there are “[e]me rgency circumstances which pos e an immediate threat to the safety of a child.” Id. at 1128 (alteration in origin al) (quotation marks omitted). Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 3233 However, we acknowledged there is no “precise definition of emergency circumstances which pose an immediate threat to the safe ty of a child.” Id. (quotation marks omitted). We thus considered caselaw from our sister circuits. Id. at 1129–30. We quoted the First Circuit as noting that “a majority of circuits addressing this issue have held that ‘a case wo rker . . . may place a child in temporary custody when he has evidence giving rise to a reasonable and articulable suspicion that the child has been abused or is in i mminent peril of abuse.’” Id. at 1129 (alteration in original) (quoting Hatch v. Dep’t for Children , Youth, & Their Families , 274 F.3d 12, 20 (1st Cir. 2001)). We then acknowledged that th e Ninth and Eleventh Circuits require “reasonable or probable cau se of imminent danger.” Id. Ultimately, we decided to follow “the majority approach” and concluded “that state officials may remove a child from th e home without prior notice and a hearing when they have a reasonable suspicion of an immediate th reat to the safety of the child if he or she is al lowed to remain there.” Id. at 1130. Although we stated we were adopting “the majority approach”— which appears to re quire only reasonable suspicion “the child has been abused,” id. at 1129 (quoting Hatch , 274 F.3d at 20)— the standard we articulated required “a reasonable suspicion of an immediate threat to the safety of the child,” id. at 1130. Turning back to the merits, we held there was a genuine dispute whether the defendants had reasonable suspicion to remove the daughter without a hearing. Id. at 1135. However, the law was not clearly es tablished because “a reasonable official could have believed that ther e was an immediate threat” to the daughter’s safety that Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 3334 justified her removal without a hearing. Id. at 1137. Thus, the defendants were entitled to qualified immunity. Id. at 1138. iii. Arredondo v. Locklear In Arredondo v. Locklear , a mother took her eleven-month-old daughter, Jasmine, to the emergency r oom with a fractured arm. 46 2 F.3d 1292, 1294 (10th Cir. 2006). The mother gave an inconsistent and confusing explanation for the arm fracture. Id. Additionally, the mother re turned to the emergency room four days later because Jasmine could not put weight on her leg. Id. at 1295. Based on the two serious injuries and the “conf licting stories,” hospital staff reported the mother to the state’s family division, which c oded the report as a non-emergency. Id. A social worker and a detec tive went to the family’s home where they spoke to the mother and inspected the home. Id. The detective removed Jasmine immediately based on the two injuries and because he thought the mother’s explanation for the injuries was conflicting and unlikely. Id. The detective also wanted to remove Jasmine’s older sister, Ashley, from the home. Id. Ashley showed no signs of abuse or injury, but the detectiv e was worried she would beco me a target of abuse once Jasmine was gone. Id. at 1295–96. The social worker believed there was no threat to Ashley and refused to take her into custody. Id. at 1296. The next day, however, the social worker removed Ashley from her home after conferring with other social workers. Id. Jasmine and Ashley’s parents sued under § 1983, asserting the removal of the children without judicial authorization violated the Fourt eenth Amendment. Id. at Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 3435 1297. The district court granted summary judgment to the defendants based on qualified immunity, and we affirmed. Id. at 1297, 1302. On appeal , we explained that under Gomes , the state may remove a child without notice and a hearing if there is “evidence giving rise to a reasonable and arti culable suspicion that the child has been abused or is in immi nent peril of abuse.” Id. at 1298 (quotation marks omitted). We then concluded that “the evid ence available to state official s was sufficient to create a reasonable suspicion that Jasmine had been abused, and that Ashley was in imminent peril of abuse.” Id. at 1299. Concerning Jasmine, we stated the defendants “had ample evidence” she “h ad been abused or was in imminent danger of abuse,” emphasizing that within four days she suffe red two injuries that required emergency

care. Id. We also explained that a “team of so cial workers” agre ed Jasmine was “in immediate danger of harm.” Id. at 1300. For these reasons , we held there was no Fourteenth Amendment violation and did no t consider whether the law was clearly established. Id. at 1302. iv. Silvan W. v. Briggs In Silvan W. v. Briggs , a teenager was sexually assaulted by her brother-inlaw. 11 309 F. App’x 216, 219 (10th Cir. 2009) (unpublished). The teenager’s mother

11 Because Silvan W. v. Briggs , 309 F. App’x 216 (10th Cir. 2009), is unpublished, it cannot clea rly establish the law. Green v. Post , 574 F.3d 1294, 1305 n.10 (10th Cir. 2009). But we may consider it when deciding the state of our law. See Morris v. Noe , 672 F.3d 1185, 1197 n.5 (10th Cir. 2012) (“But we have never held that a district court must ignore unpublished opinions in deciding whether the law is clearly established.”). Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 3536 reported the assault but also “hooked [the brother-in-law] up with a lawyer,” encouraged the teenager to be forgiving, and allowe d the brother-in-law in the family’s home after the assault. Id. Concerned for the teenag er’s safety, police took her into custody without a warrant or hearing. Id. at 220. The family brought a § 1983 action against state officials, asse rting Fourth and Fourteenth Amendment claims. Id. at 220–21. The district court gr anted summary judgment to the defendants, and we affirmed based on qualified immunity. Id. at 221, 226. We addressed the Fourteenth Amendment claim first, citing the standard from Arredondo —“state officials must have eviden ce giving rise to a reasonable and articulable suspicion that the child has been abused or is in imminent peril of abuse.” Id. at 222 (quotation marks omitted). We c oncluded there was reasonable suspicion that the teenager “h ad been abused and was in i mminent peril of further abuse” because the mother did not appreciate the seri ousness of the assau lt, stated “that the [brother-in-law] was somehow a victim,” en couraged the teenager to be forgiving, did not like law enforcement “going after” th e brother-in-law, hired an attorney for the brother-in-law, a nd did not want the teenager to testify. Id. at 223. We then briefly addressed the Fourth Amendment claim and explained that “[a]n immediate risk to [the child’s] safety would give rise to exig ent circumstances.” Id. at 224 (second alteration in original) (inter nal quotation marks omitted). For the reasons “already expressed,” we concluded that exigent circumstances justified the teenager’s removal. Id. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 3637 v. Halley v. Huckaby In Halley v. Huckaby , the state received an a nonymous call from somebody concerned about the safety of a six-year-old boy. 12 902 F.3d 1136, 1142 (10th Cir. 2018). A police officer—without judici al authorization—removed the boy from school and took him to a safehouse for an interview. Id. at 1142–43, 1147. The interview did not reveal any evidence of a buse, so the boy was taken back to school, and there was no further investigation. Id. at 1143. The boy sued the deputy and several st ate employees unde r § 1983, alleging they violated his Fourth Amendment rights. 13 Id. The parties agreed that under the Fourth Amendment, the offici als needed “reasonable suspic ion of imminent abuse in order to seize [the boy].” Id. at 1146. With this in mind, we held “that a reasonable officer in possession of the facts could not have had reasonable suspicion that [the boy] was in imminent danger.” Id. We therefore held that by seizing the boy, two of the defendants violated clearly established law. 14 Id. at 1151.

12 Halley v. Huckaby , 902 F.3d 1136 (10th Cir. 2018), was decided after the events of this case, so it could not have cl early established the la w. But we discuss it because it helps demonstrate some of the uncertainty in our precedent.

13 The boy also brought a Fourteenth Amendment claim, but that claim was based on substantive due process, so it is not relevant here. Id. at 1153–58.

14 A third defendant did not violate clea rly established law because he merely relied on other officials’ instructions “without conduc ting his own investigation.” Halley , 902 F.3d at 1150. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 3738 In reaching that conclusion, we noted the parties had cited Gomes

. Id. at 1146 n.3. Although “ Gomes is not a Fourth Amendment case, ” we acknowledged that “its holding hews close to Fourth Amendment doctrine, and is ther efore instructive.” Id. vi. Summary Our decision in Roska required an “immediate thre at” of harm under both the Fourth and Fourteenth Amendments. 15 328 F.3d at 1241, 1245. This is consistent with Fourth and Fourteenth Amendment caselaw re quiring an imminent threat of harm to support exigent circumstances. See Brigham City , 547 U.S. at 403 (explaining that under the Fourth Amendment, officials “may enter a home without a warrant . . . to protect an occupant from imminent injury”); Hollingsworth v. Hill , 110 F.3d 733, 739 (10th Cir. 1997) (explaini ng that under the Fourteenth Amendment, “officials may temporarily deprive a parent of cust ody without” judicial authorization “in emergency circumstances which pose an immedi ate threat to the sa fety of a child”). These decisions are consiste nt with the concept that, by definition, circumstances

15 Our precedent uses different phr asing when describing the required imminent threat. For example, “threat of imminent abuse,” Halley , 902 F.3d at 1146 (Fourth Amendment); “immi nent peril of abuse,” Gomes v. Wood , 451 F.3d 1122, 1129 (10th Cir. 2006) (quoting Hatch v. Dep’t for Children, Youth, & Their Families , 274 F.3d 12, 20 (1st Cir. 2001)) (Fourteen th Amendment); “immediate threat of death or severe physical harm,” Roska ex rel. Roska v. Peterson , 328 F.3d 1230, 1241 (10th Cir. 2003) (Fourth Amen dment); “immediate threat to the safety of a child,” Hollingsworth , 110 F.3d at 739 (Fourteenth Amendm ent). These differences are not material because, at bottom, all requi re an imminent threat of harm. See Brigham City v. Stuart , 547 U.S. 398, 403 (2006) (holding that “law enforcem ent officers may enter a home without a warrant . . . to prot ect an occupant from imminent injury”). Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 3839 qualify as “exigent” only if there is a need for “immediate action.” Exigency , Black’s Law Dictionary (11th ed. 2019). Gomes , however, injected some ambigu ity into our precedent. There, we stated the Fourteenth Amendment requires “a reasonable suspicion of an immediate threat to the safety of the child if he or she is allowed to re main” at home. 451 F.3d at 1130 (emphasis added). But we also purported to adopt an approach that requires only “a reasonable and articulabl e suspicion that the ch ild has been abused or is in imminent peril of abuse.” Id. at 1129 (emphasis added) (quoting Hatch , 274 F.3d at 20). The disjunctive phrasing in “has been abused or is in imminent peri l of abuse” suggests an imminent threat of harm is not required. Id. ; cf. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 116 (2012) (explaining that

“ or creates alternatives”). Arredondo and Silvan W. contributed to the ambiguity by similarly articulating the standa rd to require that the child “has been abused or is in imminent peril of abuse.” Arredondo , 462 F.3d at 1298 (quotation marks omitted); Silvan W. , 309 F. App’x at 222 (quotation ma rks omitted). Given the disjunctive phrasing, reasonable offici als could have concluded that under the Fourteenth Amendment, exigent ci rcumstances were present if th ere was reasonable suspicion of past abuse, even in the absence of reasonable suspicion of imminent harm. Reasonable officials could have also tr anslated this inco rrect understanding to the Fourth Amendment. Granted, Gomes and Arredondo considered only Fourteenth Amendment claims. Gomes , 451 F.3d at 1126; Arredondo , 462 F.3d at 1297. And Silvan W. did not cite Gomes or Arredondo in its analysis under the Fourth Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 3940 Amendment. Silvan W. , 309 F. App’x at 224. However, we have never held that the Fourth and Fourteenth Amendments have different exigency re quirements. Instead, we have suggested the standards are alike. Cf. Halley , 902 F.3d at 1146 n.3 (noting that Gomes ’s “holding hews close to Fourth Am endment doctrine, and is therefore instructive”). A reasonable offi cial could conclude that if one set of facts constituted an exigency under the Fourt eenth Amendment, those same facts also constituted an exigency under the Fourth Amendment. Indeed, requiring separate analyses under each Amendment would be wholly impracticable. Because the disjunctive phrasing in Gomes is unclear, we ta ke this opportunity to clarify our precedent. Although Gomes , Arredondo , and Silvan W. may reasonably be read as not requiring a th reat of imminent harm, that reading is divorced from the context of the standard. Gomes adopted the phrasing “has been abused or is in imminent peril of abuse” as a definition of “emergency circumstances which pose an immediate threat to the sa fety of a child.” 451 F.3d at 1128–29 (emphasis added) (quotation marks omitted). And Gomes , Arredondo , and Silvan W. still considered whether there was a threat of imminent harm despite evidence of past abuse. See Gomes , 451 F.3d at 1135 (evaluating whethe r the caseworker “had a reasonable suspicion of emergency circumstances which pose an immediate thr eat to the safety of a child” (internal quotation marks omitted)); Arredondo , 462 F.3d at 1299–1300 (considering the child’s recent and serious injuries, as well as social worker concerns that the child “was still in immediate danger of harm”); Silvan W. , 309 F. App’x at Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 4041 222–23 (concluding there was r easonable suspicion the teen ager “had been abused and was in imminent per il of further abuse”). To be sure, evidence of past abuse ma y demonstrate a thre at of imminent harm, but it will not always do so. Fact ors important to assessing the risk of imminent harm include, but are not limited to, the strength of th e evidence indicating prior abuse, the severity of the prior abuse, the temporal proximity to the prior abuse, the identity of the alleged abuser, the al leged abuser’s acce ss to the child, and whether there is time to obtain a wa rrant or judicial authorization. See Halley , 902 F.3d at 1146–47; Silvan W. , 309 F. App’x at 222–23; Arredondo , 462 F.3d at 1299– 1302; Gomes , 451 F.3d at 1135; Roska , 328 F.3d at 1240–41. For the circumstances to justify warrantless entry and seizure ba sed on exigent circumst ances, there must be a threat of imminent harm under both th e Fourth and Fourteenth Amendments. Careful review reveals that our decisions do not depart from that requirement in application, even when using the disj unctive “or” in stating the standard. See Gomes , 451 F.3d at 1129, 1135. To day we clarify that even in th e child welfare context, there must be a threat of imminent harm when officials enter a hom e or seize children without a warrant or j udicial authorization. 16

16 In Gomes , we adopted a reasonable suspici on standard for evaluating child removals under the Fourteenth Amendment. 451 F.3d at 1130. But under the Fourth Amendment, the Supreme Court requires an “objectively reasonable basis for believing that an occupant is seriously inju red or imminently th reatened with such injury.” Brigham City, 547 U.S. at 400 (emphasis added). We have held that “reasonable basis” is “more lenient than the probable cause standard.” United States v. Porter , 594 F.3d 1251, 1258 ( 10th Cir. 2010). Howeve r, we have not yet Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 4142 Nevertheless, Defendants here did not have the benefit of this clarification. Accordingly, they could have reasonably, but incorrectly, beli eved that under the Fourth and Fourteenth Amendm ents, exigent circumstances were present if there was reasonable suspicion of past abuse, even in the absenc e of imminent harm. This means Defendants did not violate clearly established law so long as they had reasonable suspicion of past abuse. See Malley , 475 U.S. at 341 (holding a right is not clearly established if reasonable offi cers could disagree over it). We now consider whether they had such suspicion. b. Defendants’ warrantless entry When Investigator Morales and the County Defendants entered the Lowther home, they had probable cause to believe that Dr. Lowther had abused A.L. See

supra Section II.A.1. Therefore, they also had reasonable suspicion A.L. had been abused. See Illinois v. Wardlow , 528 U.S. 119, 123 (2 000) (explaining that “‘reasonable suspicion’ is a less demanding standard than probable cause”). Yet, the Lowthers argue there could not have been an exigency because Dr. Lowther was detained outside the home a nd was thus unable to harm the children. But as explained, the County Defendant s could have reasonably believed that

considered whether the “reasona ble basis” standard from Brigham City is equivalent to reasonable suspicion. Nor did the partie s here ask us to answer that question. Moreover, concerning the Second Removal, we conclude Inves tigator Morales and Ms. Miles had both reasonable suspicion and a reasonable basis for believing the children were in imminent danger. See infra Section II.D. Accordingly, it is unnecessary to decide today whether reas onable basis and reasonable suspicion are identical standards. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 4243 reasonable suspicion of past abuse justified the warrantless entry, even when further abuse was not imminent. Based on our precedent, a reasonable inve stigator or officer could reasonably believe warrantless entry was justified by reasonable suspic ion of past abuse. Thus, Investigator Morales and th e County Defendants did not violate clearly established Fourth Amendment law. Accordingly, we affirm the district court’s ruling that Investigator Morales and the County Defend ants are entitled to qualified immunity on Count 4. C. Counts 5 & 12 – First Removal The Lowthers assert that the First Rem oval violated the Four th and Fourteenth Amendments, and the New Mexico Tort Cl aims Act. We address the constitutional claims first and then the state law claim. 17
1. Count 5 – Fourth and Fourteenth Amendments The Lowthers assert the First Removal violated the Fourth and Fourteenth Amendments because Investigator Morale s and Detective Wootton did not have “a warrant or reasonable suspici on the children were in immi nent danger.” App. Vol. II at 571. We conclude that Investigator Mo rales and Detective Wootton are entitled to

17 Investigator Morales contends she cannot be liable for the First Removal because BCSO decided to remove th e children and she did not have “decision-making authority.” CYFD Br. at 27. We need not address this argument because we affirm the di smissal of Counts 5 and 12 on other grounds. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 4344 qualified immunity on Count 5 because th ey reasonably suspected A.L. had been abused. Recall that under the Fourth Amendmen t, seizures without a warrant are presumptively unreasonable. Payton , 445 U.S. at 586. Simila rly, the Fourteenth Amendment typically requires judicial aut horization before children are removed. Arredondo , 462 F.3d at 1298. However, the Four th and Fourteenth Amendments both incorporate an exception fo r exigent circumstances. Brigham City , 547 U.S. at 403; Arredondo , 462 F.3d at 1298. And because our relevant precedent was unclear, Defendants could have reasona bly believed that exigent ci rcumstances were present under the Fourth and Fourteenth Amendmen t if there was reasonable suspicion of past abuse. See supra Section II.B.3.a.vi. When Investigator Morales and Det ective Wootton sei zed the children on August 30, 2017, they had the same info rmation as when th ey entered the home earlier that afternoon. And we have alread y concluded that the available information supported a reasonable suspicio n a child had been abused. See supra Section II.B.3.b. Thus, Investigator Morales and Detectiv e Wootton could have reasonably believed the First Removal was justif ied by exigent circumstances, and the Lowthers have not shown a violation of cl early established law. The Lowthers, however, argue that Roska demonstrates the First Removal clearly violated the Fourth Amendment. Roska did not clearly esta blish a violation here for two reasons. Fi rst, as explained, Roska was decided before our precedent created uncertainty about how to evalua te exigency. Second, the facts are not Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 4445 comparable— Roska did not involve a graphic di sclosure, accompanied by hand gestures, from a child who was t ouching herself inappropriately. See Roska , 328 F.3d at 1237–39. Because of these differences, Roska did not clearly esta blish a violation here. See Saucier , 533 U.S. at 201. The Lowthers also urge us “to focus on the fact that under the novel facts of this case, Detective Wootto n and Investigator Morale s had ample opportunity to obtain a warrant prior to removing the child ren from their home, without jeopardizing the children’s safety.” Appe llants’ Br. at 33. They contend there was “ample opportunity to obtain a warrant” for the removal because BCSO was able to obtain a search warrant for the Lowt hers’ home later that night. Id. We have held that an “i mportant consideration” wh en evaluating exigency is “whether state officials had time to seek and obtain judicial authorization for the removal without jeopardizing the safety of the child.” Gomes , 451 F.3d at 1131. Still, this factor is not “n ecessarily dispositive.” Id. ; see also Arredondo , 462 F.3d at 1300. And “[i]n many instances, it may not be entir ely clear either how long it would take to obtain judicial approval or whether th is period of delay would jeopardize the safety of the child.” Gomes , 451 F.3d at 1130. Investigator Morales and De tective Wootton argue that a “seizure warrant” for child removals does not exist and that it is unclear how much time they would have needed to obtain judicial authorization. CYFD Br. at 7. As Detective Wootton explains, obtaining judicial authorization can take “an unpredictable amount of time” and “requires CYFD to file a petition fo r an ex parte custody order with the Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 4546 children’s court.” County Br. at 37; see also N.M. Stat. § 32A-4-4 (providing CYFD with authority to f ile an ex parte custody petition); App. Vol. VII at 1726 (Deposition of Ms. Meade, CYFD Investigations supe rvisor) (“So we don’t do warrants, and we would have gotten an ex parte if we could ha ve been assured that they would be safe while obtaining the ex parte.”). In this case, for example, CYFD submitted an ex parte custody petition on Septembe r 8, 2017, but the court did not file an ex parte custody order until September 13, 2017. Th e Lowthers do not cite any contrary authority that establishes Defendants could have obtained a warrant for the removal. Nor do they provide evidence of how mu ch time such a warr ant would take. For these reasons, Investig ator Morales and Detect ive Wootton could have reasonably believed there were exigent ci rcumstances that ju stified removing the children without judicial authorization. We t hus affirm the district court’s ruling that Investigator Morales and De tective Wootton are entitled to qualified immunity on Count 5. 2. Count 12 – New Mexico Tort Claims Act The district court dismissed Count 12 be cause there was “reasonable suspicion to place the Lowther children in state custody” and becau se the Lowthers failed to provide a “substantive argument.” App. Vol. II I at 699. The Lowthers identify this as a ruling they challenge on appeal, but they pr ovide no relevant an alysis. As a result, Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 4647 they waived any challenge to the dist rict court’s dismissal of Count 12. See Phillips , 956 F.2d at 954. D. Count 6 – Second Removal The Lowthers assert that Investigator Morales a nd Ms. Miles violated the Fourth and Fourteenth Amendments by rem oving the children “without a warrant or reasonable suspicion the children were in i mminent danger.” App. Vol. II at 572. But considering the totality of the evidence, Investigator Morales and Ms. Miles had a reasonable basis for believing and reasonable suspicion th at the children were in imminent danger of harm at the time of the Second Removal. They are therefore entitled to qualified immunity. 18 First, Investigator Morales and Ms. Mi les had the same information available at the time of the First Removal. They kn ew that A.L. had been touching herself inappropriately in class and had made a graphic disclosure to Ms. DuBoise. Moreover, there was new information corrobora ting A.L.’s disclosure . In her forensic interview, for example, A.L. stated that her father “tak es photographs and videos of her ‘butt and gina.’” App. Vol. II at 499. W.L. also made concerning statements, namely that he and A.L. “are slapped across the face” and that “h is father pushes him ‘hard down on the ground’ which causes hi m to hit the back of his head.” Id. Further,

18 Investigator Morales and Ms. Miles contend they cannot be liable for the Second Removal because there is no eviden ce they “had decision-making authority . . . or that they actually ma de the decision to remove th e children.” CYFD Br. at 27. We need not address this argument because we affirm the dismissal of Count 6 on other grounds. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 4748 Dr. Nienow documented that during A.L.’s SANE exam, “an injury was noted at 12 o’clock on the anus” that “a ppeared consistent with tearing and/or bruising.” 19 App. Vol. III at 811. Next, Mr. Borg approached Ms. Miles at the crimin al hearing and “angrily expressed his disbelief” of th e allegations against Dr. Lowt her. App. Vol. IV at 1055. Mr. Borg’s behavior indicated the Borgs could not remain neutral. The Lowthers, however, argue that the children were not in danger just because Mr. Borg refused “to accept as true an unprove n allegation of the most egre gious type.” Reply at 18. This argument misses the point. Mr. Bo rg was not required to believe that Dr. Lowther abused A.L. and W.L. But Mr. Borg was required to remain neutral, and his behavior at the criminal hearing indicated he was not. Finally, Investigator Morales and Ms. Miles knew that Dr. Lowther was going to be released from jail and that he and Mrs. Lowther had “discussed leaving town with the children.” App. Vol. IV at 1055. Investigator Morales and Ms. Miles also knew that the assistant district attorn ey had “expressed c oncerns regarding Dr. Lowther’s potential acces s to the Lowther childre n via his influence over [Mrs.] Lowther and her parents.” Id. at 1054–55.

19 The Lowthers contend the children’s interviews and A.L.’s medical exam “are irrelevant to the central claims in this case.” Appe llants’ Br. at 10 n.1. In support, they cite a letter written by a deputy district attorney, which they characterize as “a scathing declination” of the inves tigation of Dr. Lowther. Id. at 9 n.1. We do not consider th e letter because it was written after the Second Removal and thus could not have factored into the decision to remove the children. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 4849 Considering the totality of the circum stances—specifically , the evidence of past abuse, the results of the children’s interviews and A.L.’s physical examination, Mr. Borg’s behavior at the criminal hear ing, Dr. Lowther’s im pending release from jail, and the Lowthers’ discussions indi cating they planned to abscond with the children—Investigator Morales and Ms. M iles had reasonable suspicion the children were in immediate danger. Thus, the remaining question is whether Investigator Morales and Ms. Miles also had “an objectively reasonable basis for believing” the children were in imminent danger. See Brigham City , 547 U.S. at 400 (stating Fourth Amendment standard). Although we have not decided whether “objectively reasonable basis for believing” and reasonable suspicion are the same standard, see supra note 16, we have held that “[r]ea sonable belief” is “more lenient than the probable cause standard,” United States v. Porter , 594 F.3d 1251, 1258 (10th Cir. 2010). With that in mind, we have no trouble concluding In vestigator Morales and Ms. Miles had an objectively reasonable basis for believing the children were in imminent danger, for the same reasons they had reasonable suspicion. We thus need not determine whether “objectively reasona ble basis for believing” and reasonable suspicion are equivalent standards. Under either framing, Investigator Morales and Ms. Miles acted reasonably. Nonetheless, the Lowthers point to Ms . Miles’s statement after the criminal hearing that she did not think the childre n were in imminent danger. Ms. Miles’s subjective beliefs are not re levant, however, because reas onableness is an objective, Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 4950 not a subjective, inquiry. 20 Brigham City, 547 U.S. at 404; see also Arredondo , 462 F.3d at 1300 (explaining that a defendant’s “subjective belie f that the situation was not an ‘emergency’ does not change the fact that the [d]efendants had an objectively reasonable basis to suspect that [a child] had been abused or faced imminent peril of abuse”). The Lowthers also argue th at if the children had been in imminent danger of harm, they would have been removed right after the criminal hearing. Although the children were not removed immediately after the hearing, they were removed within twenty-four hours of the hearing. And more importantly, they were removed before Dr. Lowther was released from jail, thus addressing concerns that Dr. Lowther would have access to or abscond with the children. For the foregoing reasons, Investigat or Morales and Ms. Miles acted reasonably. Accordingly, the Lowthers fa iled to show that the Second Removal violated the Fourth or Fourteenth Amendm ents. The district court properly dismissed Count 6 based on qualified immunity.

20 The Lowthers cite cases where we c onsidered a non-party’s statement that a child was not in imminent danger. See Roska , 328 F.3d at 1241 (considering that the child’s “attending physician stat ed on the phone that it woul d be a mistake to remove him from the home”); Gomes , 451 F.3d at 1135 (consideri ng doctor’s report that he was “comfortable” sending a child home). But we did not consider these statements for the purpose of evaluating the defenda nts’ subjective be liefs. Rather, we considered the non-party statements becau se the subjective opinions of the nonparties constituted evidence available to the defendant s. These cases are thus inapposite. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 5051 III. CONCLUSION The Lowthers have not shown any erro r in the district court’s summary judgment rulings. We thus AFFIRM. Appellate Case: 23-2056 Document: 010111045110 Date Filed: 05/07/2024 Page: 51