United States Court of Appeals

for the Fifth Circuit

No. 21-50888

Megan Marie McMurry, Individually and as next friend of J.M.; 

Adam Seth McMurry, Individually and as next friend of J.M., 

Plaintiffs—Appellees,

versus

Kevin Brunner, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:20-CV-242

Before Higginbotham, Higginson, and Oldham, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:*

Officer Kevin Brunner removed a child from her home during a child 

endangerment investigation. The child and her parents sued Brunner, 

claiming the removal violated the child’s Fourth Amendment rights and the 

parents’ Fourteenth Amendment rights. Asserting qualified immunity, 

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

December 7, 2022

Lyle W. Cayce

Clerk

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Brunner moved to dismiss. The district court denied Brunner’s motion. We 

affirm.

I.

In October 2018, Megan and Adam McMurry lived in a gated

apartment complex in Midland, Texas with their daughter and son, J.M. and 

C.M. Ms. McMurry was a teacher at Abell Junior High School, part of the 

Midland Independent School District. Mr. McMurry served in the National 

Guard and was then deployed to Kuwait and Syria. J.M. was fourteen years 

old and homeschooled online and C.M. was twelve years old and attended 

AJHS at the time of the events of this case. 

While Mr. McMurry was deployed, Ms. McMurry was away 

exploring teaching opportunities in Kuwait from October 25 to October 30, 

2018; she arranged for her neighbors, Gabriel and Vanessa Vallejos, to look 

after J.M. and C.M., as they had done before when she was away. Ms. 

McMurry also arranged for coworkers to take C.M. to school.

The day after Ms. McMurry left, the school counselor scheduled to 

drive C.M. to school fell sick and asked an MISD police officer, Alexandra 

Weaver, if she could drive C.M. while Ms. McMurry was out of town. 

Weaver did not take C.M. to school, but the counselor got another AJHS 

faculty member to drive C.M. Meanwhile, Weaver opened an investigation 

into the children’s welfare, and told her supervisor, Officer Kevin Brunner, 

of her conversation with the counselor. Brunner met in turn with other 

faculty members who, while confirming that Ms. McMurry was traveling,

also told Brunner that neighbors were checking on the children.

Weaver meanwhile filed a complaint against Ms. McMurry with the 

Texas Department of Family and Protective Services (CPS). Brunner and 

Weaver then traveled to the McMurry apartment to conduct a welfare check 

on J.M. Brunner asked J.M. when Ms. Vallejos last checked on her and J.M. 

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said Ms. Vallejos had been over that morning.1 The officers told J.M. that 

they would be taking her to another location. J.M. texted her father that the 

police were at the McMurry apartment.

The officers took J.M. to the apartment complex’s conference room 

for further questioning and ordered J.M. not to respond to her father who

repeatedly called and texted her. J.M. told an apartment complex staff 

member that she wanted to reach her father, but when the staff member told 

the officers this, Brunner refused to let J.M. call her father. Brunner called 

Ms. Vallejos and asked her to meet them at AJHS. Brunner and Weaver then 

took J.M. to the junior high school in the backseat of their police car. Ms. 

Vallejos called J.M., but Brunner told J.M. that she could not take the call. 

At the school, Brunner placed J.M. in an office. The Vallejoses came 

and spoke to Brunner, stating that they had last seen the children the night 

before. The Vallejoses were then allowed to see J.M. and they Facetimed Mr. 

McMurry. That afternoon, CPS investigated the status of the children but 

found no neglect or unreasonable risk of harm and sent the children home 

with the Vallejoses.

Brunner nonetheless continued his investigation and filed probable 

cause affidavits on December 2 and 4, 2018, to obtain an arrest warrant for 

Ms. McMurry. In January 2020, a jury acquitted Ms. McMurry of the 

charges of abandoning or endangering her children.

After the acquittal, the McMurrys sued Brunner under 42 U.S.C. 

§ 1983. J.M. asserted that Brunner violated her Fourth Amendment right to 

be free from unreasonable seizures. Mr. and Ms. McMurry asserted that 

1 Although Brunner later learned that Ms. Vallejos had not checked on J.M. since 

the prior evening, this was not known to him when removed J.M. from the apartment.

Brunner acted under the belief that Ms. Vallejos last checked on J.M. that morning.

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Brunner violated their rights to substantive and procedural due process under 

the Fourteenth Amendment by taking J.M. from their home. Brunner moved 

to dismiss, asserting qualified immunity.2

The district court concluded that Brunner was not entitled to qualified 

immunity as to J.M.’s Fourth Amendment claim and the McMurrys’

Fourteenth Amendment procedural due process claims but found that

qualified immunity protected Brunner from the McMurrys’ substantive due 

process claim. Brunner timely appealed.

II.

We review de novo the district court’s denial of the motion to dismiss 

under Federal Rule of Civil Procedure 12(b)(6).3 To survive a motion to 

dismiss, a plaintiff must plead “enough facts to state a claim to relief that is 

plausible on its face.”4 We accept all facts as pleaded and construe them in 

the light most favorable to the plaintiff.5 “A claim has facial plausibility when 

the pleaded factual content allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.”6

III.

“The doctrine of qualified immunity shields officials from civil 

liability so long as their conduct does not violate clearly established statutory 

or constitutional rights of which a reasonable person would have known.”7

2 Brunner also raised a state statutory defense, which the district court denied. 

Brunner did not appeal the denial of his state statutory defense. 

3 Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc).

4 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

5 Reed v. Goertz, 995 F.3d 425, 429 (5th Cir. 2021) (internal quotation omitted).

6 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

7 Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (internal quotation omitted).

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When a defendant asserts qualified immunity at the motion to dismiss stage, 

a plaintiff must “have alleged facts sufficient to plausibly show that (1) the 

defendant’s conduct violated a constitutional right and (2) the constitutional 

right was clearly established at the time of the alleged misconduct.”8

A.

The removal of J.M. was an unreasonable seizure in violation of the 

Fourth Amendment as a reasonable fourteen-year-old would not have 

believed she was free to leave when an officer removed them from her home 

for questioning while instructing her not to respond to calls from her father.9

At the time of this alleged constitutional violation, our precedent in Gates v. 

Texas Dep’t of Protective & Regul. Servs10 and Wernecke v. Garcia11 had clearly 

established that an officer could not reasonably remove a child from their 

home absent a court order, parental consent, or exigent circumstances.

A right is clearly established if it is sufficiently clear that every 

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

right at the time of the challenged conduct.12 Brunner argues that Justice 

Kavanaugh’s concurrence in Caniglia v. Strom undermines the clarity of the 

established law.13 A single sentence from a justice’s concurring opinion in

2021 does not erode the notice value of our precedent at the time of the alleged 

8 Harmon v. City of Arlington, Texas, 16 F.4th 1159, 1163 (5th Cir. 2021).

9 United States v. Mendenhall, 446 U.S. 544, 554 (1980); see also J.D.B. v. North 

Carolina, 564 U.S. 261, 271–77 (2011) (noting that a child’s age must be considered in a 

Miranda custody analysis as children are more susceptible to outside pressure).

10 537 F.3d 404, 427–29 (5th Cir. 2008).

11 591 F.3d 386, 398 (5th Cir. 2009).

12 Reichle v. Howards, 566 U.S. 658, 664 (2012).

13 141 S. Ct. 1596, 1605 (2021) (Kavanaugh, J., concurring).

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misconduct three years earlier in 2018. Brunner was on notice to the clearly 

established right given Gates and Wernecke.

Brunner had no court order or parental consent; to the contrary, he 

prevented J.M. from communicating with her father. Brunner claims exigent 

circumstances justified the removal of J.M. But “[e]xigent circumstances in 

this context means that, based on the totality of the circumstances, there is 

reasonable cause to believe that the child is in imminent danger . . . if [s]he 

remains in h[er] home.”14 The mere possibility of danger arising in the future 

is not enough.15 Accepting the facts as pleaded, we see no indication of any 

imminent danger to J.M. At the time of the seizure, J.M. was in her family’s 

apartment in a gated complex with staff present and Brunner believed that 

Ms. Vallejos had checked on J.M. that very morning. Absent exigent 

circumstance, Brunner’s removal of J.M. was an unreasonable seizure that 

violated her clearly established Fourth Amendment right.

B.

Brunner invokes the independent intermediary doctrine to argue that 

the grand jury’s indictment of Ms. McMurry for a charge of abandoning or 

endangering a child establishes that his actions were reasonable. In his brief’s 

statement of the issues, Brunner asserted that the actions of the magistrate 

and district attorney were also findings by independent intermediaries, but 

then failed to develop the argument, only focused on the grand jury, thus

waiving any argument on appeal relating to the magistrate and district 

14 Gates, 537 F.3d at 429; see also Roe v. Tex. Dep’t Protective & Regul. Servs., 299 

F.3d 395, 407 (5th Cir. 2002) (citing Tenenbaum v. Williams, 193 F.3d 581, 604–05 (2d Cir. 

1999)) (holding exigent circumstances exist if there is reason to believe that life or limb is 

in immediate jeopardy).

15 See Gates, 537 F.3d at 427 (citing Tenenbaum, 193 F.3d at 594).

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attorney.16 We address the independent intermediary doctrine only with 

regards to the grand jury.

Under the independent intermediary doctrine, a grand jury’s 

indictment can shield an officer who violates the Fourth Amendment by 

breaking the causal chain, ratifying the reasonableness of the officer’s 

actions.17 To break the causal chain, all the facts must have been presented 

to the grand jury.18 This doctrine applies even if the indictment occurred 

after the officer acts and even if no conviction ultimately occurs.19 However, 

where misdirection of the independent intermediary “taints” its decision,

the causal chain remains unbroken.20

Brunner’s invocation of the independent intermediary doctrine is 

unavailing as his probable cause affidavit—presented to the grand jury—

contained information that Brunner did not knowwhen he removed J.M. The 

grand jury was presented with information obtained in an investigation that 

continued after Brunner removed J.M., namely how long it had actually been 

since Ms. Vallejos last checked on J.M.21 And it is significant that the affidavit 

omitted the fact that Mr. McMurry was available and trying to communicate 

and Brunner knew this. Given the asymmetry of information presented to the 

grand jury and information known to Brunner at the time of the alleged 

16 Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“A party who inadequately 

briefs an issue is considered to have abandoned the claim.”).

17 Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994), overruled on other grounds by

Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (en banc).

18 Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir. 1988).

19 Buehler v. City of Austin/Austin Police Dep’t, 824 F.3d 548, 554 (5th Cir. 2016).

20 Hand, 838 F.2d at 1428.

21 Brunner believed Ms. Vallejos had been to the apartment earlier that morning 

when she had only visited the prior evening.

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misconduct, the indictment of Ms. McMurry did not ratify Brunner’s actions 

as reasonable, a conclusion refuted with an acquittal by a fully informed jury. 

The independent intermediary doctrine does not apply.

IV.

In child removal cases, the same misconduct that supports a child’s 

Fourth Amendment claim can also support a parent’s Fourteenth 

Amendment claim to their due process right to be free from interference with 

the care, custody, and management of their children.22 The McMurry 

parents brought substantive and procedural due process claims against 

Brunner. The district court found that Brunner was entitled to qualified 

immunity as to the parents’ substantive due process claim but not their

procedural due process claim. Brunner appeals the denial.

In analyzing parents’ Fourteenth Amendment claims arising from the 

removal a child, this Court has said that the same rule from Gates applies: “A 

child cannot be removed ‘without a court order or exigent 

circumstances.’”23 There was no court order, parental consent, or exigent 

circumstances to justify the removal of J.M. from the family apartment.

Brunner’s actions violated the parents’ right to procedural due process under 

the Fourteenth Amendment, law that was clearly established as Gates placed 

officials “on notice that they violate procedural due process when they 

remove children without a court order or exigent circumstances.”24 Brunner 

22 Romero v. Brown, 937 F.3d 514, 521–23 (5th Cir. 2019).

23 Id. at 521 (quoting Gates, 537 F.3d at 434).

24 Id. at 523 (citing Gates, 537 F.3d at 434). Although Romero was published after 

the events at issue here, Romero concluded that Gates clearly established the law in 2008, a 

decade prior to Brunner’s actions in 2018. Thus, the law with regards to the Fourteenth 

Amendment was clearly established at the time of the misconduct here. 

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was not entitled to qualified immunity as to the Fourteenth Amendment 

claims at the motion to dismiss stage.

V.

We AFFIRM the district court’s denial of Brunner’s motion to 

dismiss on the basis of qualified immunity. Accepting the facts as pleaded, 

there was no justification for the actions of Brunner, which violated J.M.’s 

clearly established Fourth Amendment right and the McMurrys’ Fourteenth 

Amendment rights to procedural due process. The law is clear, where an 

officer seeks to remove a child from their home, the officer must secure a 

court order, parental consent, or there must be exigent circumstances such 

that there is an imminent danger to the child.

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Andrew S. Oldham, Circuit Judge, concurring in the judgment:

In my view, two things differentiate this case from so many other 

qualified-immunity appeals that we handle on a weekly basis. First, this case 

does not involve a split-second decision by an officer who was trying to 

protect the public from violence; rather, according to the complaint, the 

officer in this case executed a deliberate and premeditated vendetta on the 

McMurry family. And second, the officer in this case used his badge and gun 

to interfere with the McMurry’s parental rights. Different parents might 

have different reactions to the decisions the McMurrys made. But qualified 

immunity provides no defense to an officer who so grossly misuses his 

governmental power to interpose himself between parents and their children. 

I.

We are reviewing a motion-to-dismiss decision, so we must describe 

the facts as plaintiffs plausibly allege them, drawing every reasonable 

inference in their favor. See Heinze v. Tesco Corp., 971 F.3d 475, 479 (5th Cir. 

2020). At this stage, here’s what we must accept as true:

At the time of the incident, Adam McMurry was serving in the 

Mississippi Army National Guard and was stationed abroad in Kuwait. 

Megan McMurry was a teacher at Midland Independent School District 

(“MISD”), specifically at Abell Junior High School (“AJHS”) campus. 

They have two kids: JM (daughter) and CM (son). JM was 14 and CM was 

12. JM was homeschooled through an online program; CM attended school 

at AJHS, which is the same place Mrs. McMurry taught. The McMurry 

family lived in a gated apartment complex in Midland, Texas.

Mrs. McMurry wanted to reunite her family. So in 2018, she applied 

for teaching positions in Kuwait. Later that year, she got an interview with an 

international school there. She then scheduled a trip to Kuwait for the 

interview that would last five days (from October 25 to October 30). During 

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the trip, JM and CM would stay in the family’s apartment in Midland, Texas. 

Mrs. McMurry made arrangements with her “neighbors”—the Vallejos 

family—to take care of the kids. Mrs. McMurry also informed her colleagues 

at AJHS about her trip and arranged for coworkers to drive CM to and from 

school.

Defendants are Alexandra Weaver and Kevin Brunner. At the time of 

the incident, Weaver was a police officer for the school district and was 

stationed at AJHS. Brunner was Weaver’s supervisor.

The series of unfortunate events started on October 26, one day into 

Mrs. McMurry’s trip. At 8:00 a.m., the coworker who was supposed to take 

CM to school asked Officer Weaver to do so because the coworker was sick. 

An honest mistake. Who would’ve guessed that Weaver’s reaction would be 

this: Weaver, after hearing that Mrs. McMurry was out of town through the 

weekend, called Brunner and started an investigation into Mrs. McMurry. 

Weaver and Brunner then talked to a couple of Mrs. McMurry’s coworkers 

to confirm she was out of town through the weekend. Weaver called Texas 

Department of Family and Protective Services (“CPS”).

Instead of investigating further, Weaver and Brunner decided to 

conduct a welfare check on JM at the McMurrys’ apartment. (Weaver did 

not take CM to school; the coworker got another AJHS faculty member to 

drive CM to school.) The officers directed an employee of the apartment 

complex to knock on the door, while the officers hid behind him. JM opened 

the door and was startled to see police. Brunner asked JM when Mrs. Vallejos 

last checked on her, and JM said that Mrs. Vallejos had been over that 

morning.

Brunner then told JM that “they were going to take her somewhere 

else to talk to her and that she needed to go back inside to change into warmer 

clothing.” JM began to cry but reluctantly complied with the officer’s order. 

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Weaver then followed JM into the apartment and proceeded to search it. 

Weaver found nothing out of the ordinary during this unconstitutional 

search.

JM texted her father “Dad, I’m scared. The police are here.” But 

Weaver and Brunner took JM to the apartment complex’s conference room 

to ask JM some questions anyway. They even ordered JM not to respond to 

her father who had been repeatedly calling and texting her. After some 

questioning, Brunner and Weaver contacted CPS again. Then they put JM in 

the back of their police car and took her to AJHS. Mrs. Vallejos called JM, 

but Brunner told JM that she could not take the call. Brunner and Weaver 

contacted the Vallejos, and Mrs. Vallejos went to the school to talk to the 

officers.

In the afternoon, CPS arrived to investigate. The CPS investigator—

who obviously understands these situations far better than Brunner or 

Weaver—then rebuked the officers’ purported concerns. Specifically, CPS 

concluded that the “children’s needs were being met, that Ms. McMurry had 

made appropriate child care arrangements for the children and for C.M.’s 

transportation to school in her absence, that the children were able to respond 

to emergencies, that they faced no unreasonable risk of harm, and that there 

was no finding of abuse or neglect.” CPS then let the children “leave with 

Ms. Vallejos to return to their home.” 

You might reasonably think that would be the end of the matter. 

Brunner and Weaver had snatched a fourteen-year-old girl from her home, 

held her incommunicado, searched her apartment without any form of 

suspicion or cause, and held her in the back of a police car and in a school she 

did not attend. But after CPS arrived and rebuked the officers, then they 

would surely stop. 

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Wrong. Brunner pressed a criminal investigation of Mrs. McMurry 

for child abandonment and endangerment. This investigation resulted in two 

significant consequences. First, when Mrs. McMurry returned to Midland, 

the school district put her “on administrative leave without pay pending the 

outcome of the ‘current investigation’ of the abandonment of children 

complaint.” She was later fired. She “has not worked as a teacher since 

October 2018.” Second, on December 4, Brunner sought an arrest warrant. 

And he somehow got one. Two days later, Mrs. McMurry “turned herself 

into the Midland County Jail,” and she stayed in jail “for 19 hours while the 

staff there completed the processing of her bail bond.” She was eventually 

acquitted by a jury.

Thereafter, the McMurry family sued, bringing numerous claims. JM 

sued Weaver and Brunner for unlawfully seizing her. The parents sued 

Weaver for an unlawful search and sued both officers for violating the 

parents’ substantive- and procedural-due-process rights. Mrs. McMurry 

sued Weaver for defamation and invasion of privacy.

The officers moved to dismiss all claims. The district court granted in 

part and denied in part. After the court’s decision, four claims remained: 

(1) the parents’ claim for unlawful search against Weaver; (2) JM’s claim for 

unlawful seizure against both officers; (3) the parents’ procedural-dueprocess claim against both officers; and (4) Mrs. McMurry’s claim for 

invasion of privacy against Weaver. Only Brunner timely filed a notice for 

interlocutory appeal, so Weaver is not before us. 

There are thus two claims on appeal. The first is JM’s claim based on 

a violation of her Fourth Amendment rights as incorporated by the 

Fourteenth Amendment (“Fourth Amendment claim”). The second is JM’s 

parents’ claim based on a violation of their procedural-due-process rights 

under the Fourteenth Amendment (“Due Process claim”). We have 

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jurisdiction under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530 

(1985). Our review is de novo. Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 

2019).

II.

I first (A) explain my understanding of qualified immunity, which 

differs somewhat from the majority’s. I then (B) conclude that Brunner 

violated the parents’ procedural-due-process rights under clearly established 

law. I then (C) conclude that Brunner violated JM’s Fourth Amendment 

rights under clearly established law. 

A.

Qualified immunity includes two inquiries. The first question is 

whether the officials violated a constitutional right. Jackson v. Gautreaux, 3 

F.4th 182, 186 (5th Cir. 2021). The second question is whether the right at 

issue was clearly established at the time of the alleged misconduct. Ibid. The 

second question has caused some confusion.

Clearly established law is all about fair notice. See Brosseau v. Haugen, 

543 U.S. 194, 198 (2004) (per curiam) (Qualified immunity’s “focus is on 

whether the officer had fair notice that her conduct was unlawful.”). For 

there to be fair notice, the clearly-established-law standard “requires that the 

legal principle clearly prohibit the officer’s conduct in the particular 

circumstances before him.” District of Columbia v. Wesby, 138 S. Ct. 577, 590 

(2018). That is, the “rule’s contours must be so well defined that it is clear 

to a reasonable officer that his conduct was unlawful in the situation he 

confronted.” Ibid. (quotation omitted). There are generally two different 

paths to show this: (1) an on-point case and (2) the obvious-case exception.

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1.

Start with the on-point-case requirement. To show that the law is 

clearly established, the plaintiff must identify a Supreme Court decision 

before the time of the alleged misconduct that held there was a constitutional 

violation on fundamentally or materially similar facts. 

There’s a lot packed in there. So let’s break that down. First, the onpoint case must be a Supreme Court decision issued before the alleged 

misconduct. See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (“[T]he court 

must decide whether the right at issue was ‘clearly established’ at the time of 

defendant’s alleged misconduct.” (emphasis added)). The Supreme Court has 

never held that circuit precedent can clearly establish the law. See Wesby, 138 

S. Ct. at 591 n.8 (“We have not yet decided what precedents—other than our 

own—qualify as controlling authority for purposes of qualified immunity.”); 

Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (per curiam) (“assuming 

that Circuit precedent can clearly establish law for purposes of § 1983”); 

Nerio v. Evans, 974 F.3d 571, 576 n.2 (5th Cir. 2020) (“Although we know 

the Supreme Court’s decisions can clearly establish the law, the Supreme 

Court has never held that our decisions can do the same.”). Until they do, I 

would not rely on circuit precedent to deny qualified immunity.

Second, the plaintiff must identify a Supreme Court case with 

fundamentally or materially similar facts. See, e.g., Hope v. Pelzer, 536 U.S. 

730, 741 (2002) (“Although earlier cases involving fundamentally similar facts

can provide especially strong support for a conclusion that the law is clearly 

established, they are not necessary to such a finding. The same is true of cases 

with materially similar facts.” (emphases added) (quotation omitted)); White 

v. Pauly, 137 S. Ct. 548, 552 (2017) (“The panel majority misunderstood the 

‘clearly established’ analysis: It failed to identify a case where an officer 

acting under similar circumstances as Officer White was held to have violated 

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the Fourth Amendment.”). Identification of such a case ensures that the rule 

has been defined with specificity.

Third, the “decision must at least hold there was some violation of the 

[relevant] Amendment.” Nerio, 974 F.3d at 575; see also City of Tahlequah v. 

Bond, 142 S. Ct. 9, 12 (2021) (per curiam) (“Neither the panel majority nor 

the respondent has identified a single precedent finding a Fourth 

Amendment violation under similar circumstances. The officers were thus 

entitled to qualified immunity.”); White, 137 S. Ct. at 552 (“The panel 

majority misunderstood the ‘clearly established’ analysis: It failed to identify 

a case where an officer acting under similar circumstances as Officer White 

was held to have violated the Fourth Amendment.”). 

It makes sense for the plaintiff to have to point to a holding because 

“[d]ictum is not law, and hence cannot be clearly established law.” Morrow, 

917 F.3d at 875; see also United States v. Vargas-Soto, 35 F.4th 979, 997 (5th 

Cir. 2022) (Dicta has “no binding force.”); Wright v. Spaulding, 939 F.3d 

695, 700 (6th Cir. 2019) (Thapar, J.) (“[O]nly holdings are binding, not 

dicta.”). “And while officers are charged with knowing the results of 

[Supreme Court] cases . . . officers are not charged with memorizing every 

jot and tittle . . . writ[t]e[n] to explain them.” Morrow, 917 F.3d at 875–76 

(quotation omitted).

It also makes sense for that holding to be a constitutional violation. 

That’s because the best way for a reasonable officer to understand a 

constitutional rule’s contours is when it’s applied to 

materially/fundamentally similar facts that result in a holding of a violation. 

It’d be difficult to say that facts are materially or fundamentally similar if the 

result in case X is no violation but the result in case Y is a violation. The 

difference in outcome shows that the facts are fundamentally/materially 

different, not similar.

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In sum, to show that the law is clearly established, the plaintiff must 

identify a Supreme Court decision issued before the time of the alleged 

misconduct that held there was a constitutional violation on fundamentally 

or materially similar facts.

2.

The other path is the obvious-case exception. This exception has 

benefits but often-insurmountable burdens.

Benefits first. As best I understand it, the obvious-case exception 

excuses the on-point-case requirement. In other words, a plaintiff always 

must point to a Supreme Court decision issued before the time of the alleged 

misconduct holding a violation of the constitutional right with fundamentally 

or materially similar facts unless he satisfies the obvious-case exception. See, 

e.g., Rivas-Villegas, 142 S. Ct. at 8 (“In an obvious case, these standards can 

clearly establish the answer, even without a body of relevant case law.” 

(quotation omitted)); Wesby, 138 S. Ct. at 590 (“Of course, there can be the 

rare ‘obvious case,’ where the unlawfulness of the officer’s conduct is 

sufficiently clear even though existing precedent does not address similar 

circumstances.”); Salazar v. Molina, 37 F.4th 278, 285 (5th Cir. 2022) (“It’s 

true Hope established that a plaintiff need not identify an on-point case to 

overcome qualified immunity when a violation is ‘obvious.’”). The plaintiff 

may instead rely on “general statements of the law” from a Supreme Court 

decision to show that the officer had “fair and clear warning.” Kisela v. 

Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam) (quotation omitted). Put 

another way, the plaintiff may rely on general statements to show that “the 

statutory or constitutional question [is] beyond debate.” Ashcroft v. al-Kidd, 

563 U.S. 731, 741 (2011).

But to get that benefit, the plaintiff must meet a heavy burden. The 

Supreme Court recently made clear that for the obvious-case exception, 

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there are two necessary conditions: (1) “particularly egregious facts” and 

(2) “no evidence” that the official’s actions “were compelled by necessity

or exigency.” Taylor v. Riojas, 141 S. Ct. 52, 54 (2020) (per curiam); cf. 

Kentucky v. King, 563 U.S. 452 (2011) (explaining that reactions from policecreated exigencies are not split-second decisions).1

B.

Under the above framework, the McMurrys have shown that 

(1) Brunner violated their procedural-due-process rights and (2) this is such 

an obvious case, on egregious facts, involving no exigency beyond the one 

Brunner himself created, that Brunner had ample fair notice of his personal 

liability.

1.

Start with the violation. The Fourteenth Amendment provides that 

no State may “deprive any person of life, liberty, or property, without due 

process of law.” U.S. Const. amend. XIV, § 1. The “standard analysis” 

is “two steps.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam). 

“We first ask whether there exists a liberty or property interest of which a 

person has been deprived, and if so we ask whether the procedures followed 

by the State were constitutionally sufficient.” Ibid. Both are obviously met 

here.

1 Such a result makes sense. When an officer has to make a split-second reaction, 

the clearly-established-law standard is extra rigorous: “[T]he law must be so clearly 

established that—in the blink of an eye, in the middle of a high-speed chase—every 

reasonable officer would know it immediately.” Morrow, 917 F.3d at 876; see also Gonzalez 

v. Trevino, 42 F.4th 487, 507 (5th Cir. 2022) (Oldham, J., dissenting) (suggesting that 

officers who do not make split-second decisions “should not get the same qualifiedimmunity benefits that cops on the beat might get”).

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a.

The McMurrys obviously have a fundamental liberty interest. It’s 

well-established that parents have a “fundamental right . . . to make decisions 

concerning the care, custody, and control of their children.” Troxel v. 

Granville, 530 U.S. 57, 66 (2000). As Justice Alito put it: “In our society, 

parents, not the State, have the primary authority and duty to raise, educate, 

and form the character of their children.” Mahanoy Area Sch. Dist. v. B. L. by 

& through Levy, 141 S. Ct. 2038, 2053 (2021) (Alito, J., concurring).

2 The 

2 See also, e.g., Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925) (discussing “the 

liberty of parents and guardians to direct the upbringing and education of children under 

their control”); Meyer v. Nebraska, 262 U.S. 390, 400 (1923); Prince v. Massachusetts, 321 

U.S. 158, 166 (1944); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (“The history and 

culture of Western civilization reflect a strong tradition of parental concern for the nurture 

and upbringing of their children. This primary role of the parents in the upbringing of their 

children is now established beyond debate as an enduring American tradition.”); Stanley v. 

Illinois, 405 U.S. 645, 651 (1972) (“The rights to conceive and to raise one’s children have 

been deemed essential, basic civil rights of man, and rights far more precious than property 

rights.” (quotation omitted)); Parham v. J. R., 442 U.S. 584, 602 (1979) (“Our cases have 

consistently followed that course; our constitutional system long ago rejected any notion 

that a child is the mere creature of the State and, on the contrary, asserted that parents 

generally have the right, coupled with the high duty, to recognize and prepare their children 

for additional obligations.” (quotation omitted)); Espinoza v. Montana Dep’t of Revenue, 140 

S. Ct. 2246, 2261 (2020) (“Drawing on enduring American tradition, we have long 

recognized the rights of parents to direct the religious upbringing of their children.” 

(quotation omitted)); Michael H. v. Gerald D., 491 U.S. 110, 123–24 (1989) (“Our decisions 

establish that the Constitution protects the sanctity of the family precisely because the 

institution of the family is deeply rooted in this Nation’s history and tradition.”); M.L.B. 

v. S.L.J., 519 U.S. 102, 116 (1996) (“Choices about marriage, family life, and the upbringing 

of children are among associational rights this Court has ranked as of basic importance in 

our society, rights sheltered by the Fourteenth Amendment against the State’s 

unwarranted usurpation, disregard, or disrespect.” (quotation omitted)); Brown v. Ent. 

Merchs. Ass’n, 564 U.S. 786, 795 n.3 (2011) (“Most of his dissent is devoted to the 

proposition that parents have traditionally had the power to control what their children 

hear and say. This is true enough.”); id. at 834 (Thomas, J., dissenting) (“The history 

clearly shows a founding generation that believed parents to have complete authority over 

their minor children and expected parents to direct the development of those children.”).

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Supreme Court has squarely held that age-old liberty interest is protected by 

the procedural guarantee of the Due Process Clause. See, e.g., Santosky v. 

Kramer, 455 U.S. 745, 753–54 (1982). 

Officer Brunner obviously deprived the McMurrys of their liberty 

interest. JM’s parents ordered JM to continue her homeschooling (via online 

instruction) on October 26 (a weekday) while Mrs. McMurry was in Kuwait. 

By staying in the McMurrys’ apartment during school hours, JM was 

following her parents’ instruction. And while JM was in her parents’ 

apartment acting lawfully, she was in her parents’ custody. By removing JM 

from the apartment, Brunner forced JM to violate her parents’ entirely lawful 

instruction and thus deprived the parents of their right to custody and control 

of their daughter. Even more, Brunner stopped JM’s father from further 

directing his daughter when Brunner prevented JM from answering his calls 

for no conceivable reason. Prong one is thus easily satisfied.

b.

The McMurrys also did not receive the process they were due. In fact, 

they received no process whatsoever. No ex parte court order, no warrant, no 

notice, no hearing. Nothing. Surely, the McMurrys had a right to at least some

predeprivation process before their child was snatched from their home.

The Supreme Court has repeatedly explained that “[t]he right to prior 

notice and a hearing is central to the Constitution’s command of due 

process.” United States v. James Daniel Good Real Prop., 510 U.S. 43, 53 

(1993); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) 

(“An essential principle of due process is that a deprivation of life, liberty, or 

property be preceded by notice and opportunity for hearing appropriate to 

the nature of the case.” (quotation omitted)). Admittedly, there are “some 

exceptions to the general rule requiring predeprivation notice and hearing, 

but only in extraordinary situations where some valid governmental interest 

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is at stake that justifies postponing the hearing until after the event.” James 

Daniel, 510 U.S. at 53 (quotation omitted); see also Gilbert v. Homar, 520 U.S. 

924, 930 (1997) (“This Court has recognized, on many occasions, that where 

a State must act quickly, or where it would be impractical to provide 

predeprivation process, postdeprivation process satisfies the requirements of 

the Due Process Clause.”). For this reason, the Supreme Court has held that 

“[u]nless exigent circumstances are present, the Due Process Clause 

requires the Government to afford notice and a meaningful opportunity to be 

heard before seizing real property.” James Daniel, 510 U.S. at 62; see also

Connecticut v. Doehr, 501 U.S. 1, 18 (1991) (“[B]y failing to provide a 

preattachment hearing without at least requiring a showing of some exigent 

circumstance, clearly falls short of the demands of due process.”).3

If predeprivation process is required for property unless there is an 

exigency, then the liberty interest here requires at least the same, if not more. 

After all, a “parent’s desire for and right to the companionship, care, 

custody, and management of his or her children is an interest far more precious 

than any property right.” Santosky, 455 U.S. at 758–59 (emphasis added) 

(quotation omitted); see also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., 

452 U.S. 18, 27 (1981) (“This Court’s decisions have by now made plain 

beyond the need for multiple citation that a parent’s desire for and right to 

the companionship, care, custody and management of his or her children is 

an important interest that undeniably warrants deference and, absent a 

powerful countervailing interest, protection.” (quotation omitted)). 

Therefore, unless Brunner establishes an exigency, the McMurrys’ 

procedural-due-process rights were violated.

3 Brunner did not get a court order of any kind, so I need not discuss whether an ex 

parte court order is sufficient process. The only question is whether the McMurrys had a 

right to any process.

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Brunner cannot come close to establishing such an exigency. The 

mere fact a 14-year-old is home alone cannot possibly justify immediately 

removing the teenager from the home. At the time Brunner seized JM, he 

knew JM had been without adult supervision for less than a day. JM answered 

the door, squelching any concern that she was already seriously injured. And 

nothing from JM’s appearance indicated that she was at risk of imminent 

injury.

Moreover, Brunner’s colleague (Weaver) performed an unlawful 

search of the apartment and found nothing indicating that JM was in any 

danger—let alone imminent danger. If it was really Brunner’s “decision to 

prioritize the confirmation of [JM’s] safety over the continuance of the 

investigation,” as he claims, then at least at that point, Brunner received the 

very confirmation he prioritized. Instead, he continued to deprive the 

McMurrys of their liberty interest without justification. For example, after 

receiving the confirmation, Brunner took JM to AJHS, even though by his 

own admission, he did so in substantial part for his own “convenience” and 

to solve a “logistical problem.” Blue Br. 8 (quoting ROA.76 ¶ 33); 

ROA.508; Blue Br. 29. 

Brunner in his brief tries to smuggle in safety concerns he obviously 

didn’t have. To begin with, seven of Brunner’s eight purported reasons for 

seizing JM were not even facially exigent. And the eighth purported reason 

does not pass the straight-face test: Brunner feigns concern that JM was at 

risk of “self-harm” because JM was crying and was worried her mother was 

in trouble. See Blue Br. 30. Besides the briefing, there is nothing in the record 

to suggest Brunner had this concern—let alone that he had it before he made 

the decision to remove JM from the apartment. He offers no reason to think 

JM would commit “self-harm” simply because she was crying. He offers no 

connection between his purported concern about “self-harm” to JM’s 

mother. Plus, if Brunner really thought JM was considering “self-harm” 

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because of her mother, he would’ve let JM talk to her father—who was 

repeatedly calling and texting her. And never mind that all of the fourteenyear-old’s tears were created by Brunner’s heavy-handedness. 

In short, Brunner did precisely what the Supreme Court has forbade: 

“[T]he Due Process Clause does not permit a State [or one of its officers] to 

infringe on the fundamental right of parents to make child rearing decisions 

simply because a state judge [or officer] believes a better decision could be made.” 

Troxel, 530 U.S. at 72–73 (emphasis added). Brunner simply thought his idea 

was better than the one the parents made. Prong two is thus met.

2.

Next, clearly established law. The Supreme Court has not decided 

many cases on parents’ rights to procedural due process. And I see none 

finding a violation on materially similar facts. So the McMurrys must show 

that this is an obvious case to pass prong two. They do.

First, as explained above, there’s no evidence of necessity or exigency 

compelling Brunner to make a split-second reaction. See supra, at 7. No 

officer could reasonably have believed that JM was at risk of serious injury 

any time in the near future. And obviously, neither Brunner himself nor any 

member of the public faced any danger whatsoever. 

Second, the facts here are particularly egregious. Weaver performed 

an illegal search in front of her supervisor (Brunner). And instead of settling 

for one constitutional violation (the search), Brunner went on to commit two 

more (unlawfully seizing JM and violating the McMurrys’ due-process 

rights). And after taking custody of JM, Brunner prevented JM from talking 

to her father and the Vallejos for a significant amount of time. All while JM 

was crying and confused. Then CPS told Brunner that his safety concerns 

were baseless. And still, inexplicably, Brunner persisted and pushed for 

criminal charges against Mrs. McMurry. Like CPS, a jury of Mrs. 

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McMurry’s peers squarely rejected Brunner’s charges. But the damage was 

already done: Mrs. McMurry was already fired, was already prevented from 

teaching again, and had already spent 19 hours in jail.

Finally, the constitutional question is beyond debate. The Supreme 

Court has clearly held that for property, the Due Process Clause requires 

predeprivation process unless there is an exigency. The Court has also clearly 

held that a parent’s liberty interest is far greater than any ordinary property 

interest. There was no exigency beyond the one Brunner created on his own. 

So it’s beyond debate that the Due Process Clause required some 

predeprivation process here, and the McMurrys got none.

C.

Finally, JM’s Fourth Amendment claim. The Fourth Amendment 

protects “[t]he right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures.” U.S. 

Const. amend. IV; see also Mapp v. Ohio, 367 U.S. 643, 655 (1961) 

(incorporating the Fourth Amendment against the States). Under clearly 

established law, Brunner violated JM’s Fourth Amendment rights.

On appeal, all agree that Brunner seized JM the moment she opened 

the door. That’s when Brunner ordered JM to put on warmer clothes, 

Brunner declared that he was going to take her elsewhere for questioning, and 

JM began complying with Brunner’s order. And all agree that unless there 

were exigent circumstances, that seizure was unreasonable.

There’s no evidence of exigent circumstances to justify Brunner’s 

seizure of JM. Brunner claims that there were exigent circumstances because 

(1) it was reasonable to believe that JM was in danger of serious injury and 

(2) it was reasonable to act when he did. See Brigham City v. Stuart, 547 U.S. 

398, 403 (2006) (“One exigency obviating the requirement of a warrant is the 

need to assist persons who are seriously injured or threatened with such 

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injury. . . . Accordingly, law enforcement officers may enter a home without 

a warrant to render emergency assistance to an injured occupant or to protect 

an occupant from imminent injury.”). Even assuming it was reasonable for 

Brunner to believe JM was at risk of serious injury when he arrived at the 

apartment complex, it was obviously unreasonable for him to seize JM when 

he did. Brunner seized JM the moment she opened the door. He did not ask 

JM any questions before the seizure. For a seizure of JM to be reasonable at 

that moment, there’d have to be some evidence to show, not just a risk of 

danger, but an imminent risk. And for the same reasons above, Brunner 

cannot come even close to showing an imminent risk. See supra, at 7. 

The law is also clearly established under the obvious-case exception. 

There’s no evidence of exigency, the facts are particularly egregious, and the 

law is beyond debate. See supra, at 7, 10–11.4

For these reasons, I concur in the judgment rejecting Brunner’s 

qualified-immunity defense.

4 The independent-intermediary doctrine also provides no help to Brunner. Under 

that doctrine, “the chain of causation between the officer’s conduct and the unlawful arrest 

‘is broken only where all the facts are presented to the grand jury, or other independent 

intermediary where the malicious motive of the law enforcement officials does not lead 

them to withhold any relevant information from the independent intermediary.’” Winfrey 

v. Rogers, 901 F.3d 483, 497 (5th Cir. 2018) (quoting Buehler v. City of Austin/Austin Police 

Dep’t, 824 F.3d 548, 554 (5th Cir. 2016)). It beggars belief that Brunner could demand child 

abandonment and endangerment charges while omitting the facts that (1) Mr. McMurry 

was available and eagerly trying to reach his daughter and (2) Brunner himself was the one 

who prevented McMurry from doing so.

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