NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IMELDA HARTLEY, on behalf of her six 

minor children, E.G., P.I.O., J.L.O., K.S.O., 

J.P.O., J.V.O.; ANDREA J. GARCIA, 

Plaintiffs-Appellees, 

 v. 

TIFFANY HUGHES; JENNIFER 

GARLAND, 

Defendants-Appellants.

No. 23-15932 

D.C. No. 2:21-cv-01098-SMB 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Susan M. Brnovich, District Judge, Presiding

Argued and Submitted June 6, 2024

Pasadena, California

Before: CLIFTON and COLLINS, Circuit Judges, and RODRIGUEZ,** District 

Judge.

Imelda Hartley brought this action under 42 U.S.C. § 1983 claiming that 

Defendants Tiffany Hughes and Jennifer Garland violated her familial rights by 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Xavier Rodriguez, United States District Judge for the 

Western District of Texas, sitting by designation.

FILED

SEP 19 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 23-15932 

removing her children from her home without a warrant. Defendants appeal the 

district court’s order granting partial summary judgment to Hartley and denying 

Defendants’ claim to qualified immunity.

We review the denial of qualified immunity de novo. Hines v. Youseff, 914 

F.3d 1218, 1227 (9th Cir. 2019). We have jurisdiction under 28 U.S.C. § 1291,1

and we reverse.

Government officials are “entitled to qualified immunity under § 1983 

unless (1) they violated a federal statutory or constitutional right, and (2) the 

unlawfulness of their conduct was ‘clearly established at the time.’” District of 

Columbia v. Wesby, 583 U.S. 48, 62–63 (2018) (quoting Reichle v. Howards, 566 

U.S. 658, 664 (2012)). Defendants contest only the second prong on appeal, 

arguing that they are entitled to qualified immunity because the relevant law was 

not clearly established at the time of the incident in 2014.

“To be clearly established, a right must be sufficiently clear ‘that every 

reasonable official would have understood that what he is doing violates that 

right.’” Reichle, 566 U.S. at 664 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741

1 Hartley asserts that because the district court’s order identified genuine disputes 

of material fact, we lack jurisdiction to hear this interlocutory appeal. While we 

may not review the finding that factual disputes exist, we nonetheless have 

jurisdiction to consider the purely legal question of “whether the defendant would 

be entitled to qualified immunity as a matter of law, assuming all factual disputes 

are resolved, and all reasonable inferences are drawn, in plaintiff’s favor.” Ballou 

v. McElvain, 29 F.4th 413, 421 (9th Cir. 2022) (internal quotation marks omitted).
3 23-15932 

(2011)) (brackets and internal quotation marks omitted). While qualified immunity 

does not require “a case on all fours,” Hines, 914 F.3d at 1230, “existing precedent 

must have placed the statutory or constitutional question beyond debate,” Ashcroft, 

563 U.S. at 741. This “demanding standard protects ‘all but the plainly 

incompetent or those who knowingly violate the law.’” Wesby, 583 U.S. at 63 

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

The Supreme Court has “repeatedly told courts not to define clearly 

established law at too high a level of generality.” City of Tahlequah v. Bond, 595 

U.S. 9, 12 (2021); see Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (“[The 

qualified immunity] inquiry must be undertaken in light of the specific context of 

the case, not as a broad general proposition.” (internal quotation marks omitted)).

Our inquiry, then, boils down to whether it was beyond debate in 2014 that 

Defendants’ warrantless removal of Hartley’s children under the specific 

circumstances before them was unlawful.

Under our Fourteenth Amendment precedents, “parents will not be separated 

from their children without due process of law except in emergencies.” Mabe v. 

San Bernadino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir. 

2001). An official conducting a warrantless removal “must have reasonable cause 

to believe that the child is likely to experience serious bodily harm in the time that 

would be required to obtain a warrant.” Rogers v. County of San Joaquin, 487 F.3d 
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1288, 1294 (9th Cir. 2007); see Mabe, 237 F.3d at 1108 (“[I]mminent danger of 

future harm is required to show exigency.”).

Hartley relies chiefly on Rogers. In Rogers, a social worker removed the 

plaintiff family’s children without a warrant after observing their poor state of 

health, such as “bottle rot” and “malnutrition,” 487 F.3d at 1292–93, and 

unsanitary conditions at the home, including “feces” and “rat droppings,” id. at 

1293. We refused to grant qualified immunity because none of these facts 

“indicate[d] any imminent risk of serious bodily harm.” Id. at 1295. Hartley 

contends that Defendants’ decision to remove her children based on the 

household’s squalid state is no different.

Two key facts distinguish our case from Rogers, however, such that Rogers

could not have given fair warning about the unlawfulness of Defendants’ conduct.

First, unlike in Rogers, there was the danger posed by Juan Ortiz, the allegedly 

abusive father of some of the children. Not only had Ortiz previously been reported 

to the police by Hartley for throwing a shoe at one of his daughters, but the 

Department of Child Safety had also recently received a report that Ortiz had 

molested another daughter for ten years. The unserved order of protection against 

Ortiz provided “specific, articulable evidence,” Wallis v. Spencer, 202 F.3d 1126, 

1138 (9th Cir. 2000), that he could return to the home anytime, as was indeed the 

case during the summer of 2014.
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It is true that Defendants had known about allegations of Ortiz’s sexually

abusive conduct for about two months when they removed the children, and that 

“an official’s prior willingness to leave the children in their home militates against 

a finding of exigency.” Rogers, 487 F.3d at 1295; see Mabe, 237 F.3d at 1108 

(reasoning that social worker’s choice to leave child at home following allegations 

of molestation undermined reasonable belief about exigency). In this instance, 

however, Defendants gained new information shortly before removing the 

children. “Defendants did not learn that the order of protection was unserved until 

the police told them,” as Hartley concedes. Hughes was also alerted for the first 

time to the possibility of Hartley covering for Ortiz when she heard Hartley 

coaching the children to lie about Ortiz’s visits. We cannot conclude that every 

reasonable official faced with these new facts would have determined that the 

children faced no imminent danger of harm.

Second, Defendants could not be sure of obtaining a warrant “within hours,” 

as was the case in Rogers. 487 F.3d at 1295. Central to our holding in Rogers was 

the fact that none of the deplorable conditions at the children’s home could cause 

harm within the few hours it would have taken to obtain a warrant. See id. at 1295–

1296; see also Mabe, 237 F.3d at 1108 (“[I]t is difficult to understand how the 

further delay of a few hours necessary to obtain the warrant would have put [the 

child] in imminent danger of serious physical injury.”). In this case, Arizona law at 
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the time of the events required filing a dependency petition before obtaining a 

warrant. A.R.S. § 8-821 (2014) (revised 2015). The record shows that it

subsequently took five days for the state Attorney General to prepare and file the 

petition, and another two days for the court to approve it. Defendants could have 

reasonably believed that Ortiz might return to the home on any one of those days 

and harm the children. The parties dispute, with neither side providing evidence,

whether a dependency petition could have been filed faster. Within this confined 

record, it was not “plainly incompetent” for Defendants to deem the window for 

obtaining a warrant long enough to pose serious risk to the children.

We reverse and remand for the entry of judgment in favor of Defendants and 

for any further proceedings consistent with this decision. 

REVERSED AND REMANDED.