F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

S T E P H E N S J U R S E T , personally

and as

nex t friend for N.S. and T.B

.,

Plaintiff-Appellee

,

v

.

C H A R L E S B U T T O N , Stay

ton City Police Department, in his individual and official capacity ; M I C H A E L M E E K S , Stay

ton City Police Department, in his individual and official capacity ; S C O T T M U M E Y , Stay ton City Police Department, in his individual and official capacity

,

Defendants-Appellants

,

and

M A R Y A N N E M I L L E R , in her individual capacity ; D Y A N B R A D L E Y , in her individual capacity ; C I T Y O F S T A

Y T O N , a municipal entity

, Defendants

. N o. 13-35851

D.C. No. 6:12-cv-00282- AA

OPI NI ON

A ppeal from the United States District Court for the District of Oreg on Ann L . Aiken, Chief District J u dg e, PresidingS J U R S E T V

. B U T T O N 2

Arg ued and Submitted

October 14, 2015—Portland, Oreg on

F iled December 4, 2015

B efore: F erdinand F . F ernandez , Ronald L ee Gilman, * and Carlos T. B ea, Circuit J udg es.

Opinion by

J udg e Gilman

SUMMARY * *

Civil Rights

The panel reversed the district court’s order on summary judg ment d eny ing qualified immunity to police officers, a nd remanded in an action broug ht pursuant to 42 U.S.C. § 1983 in which plaintiff alleg ed that the officers took custody of his children without r easo n a b le cause or a court order, in violation of p laintiff’s F our t e enth Amendment rig ht to familial a s s o c iation and the children’s F ourth A mendment rig ht to be free from unreasonable seiz u r e.

The p anel f

irst r eje c t e d p l a i n t i ff’s contention that pursuant to Johnson v. Jones
, 515 U.S. 3 04 (1995), disp uted f actual issues precluded it from h earing the o fficers’ appeal f rom the

* T h e Ho n o rab le Ro n ald L ee Gilm an , S en io r Circu it J u d g e f or th e U .S. Co u rt o f A p peals f o r th e Six th

Circu it, sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S J U R S E T V

. B U T T O N 3

district court’s order. T h e panel held t h at J ohnson was inapplicable because this appeal was based o n u n disputed facts as they related to a p urely abstract issue of law—that is, whether the o fficers violated clearly established law when they acted in reliance on the determination m a de b y Department of Human Services officials that the children were in imminent dang er.

The panel h e ld that the officers were not incompetent in believing that they w e r e leg a lly authoriz ed to act in reliance

on the Department of Human Services’ determination that the children were in imminent dang e r

. T he panel further h eld that even if the officers were mistaken in their belief that they could r emove the children at the direction of the Department of Human Services without c ourt authoriz ation, their actions

were objectively reasonable un der the circumstances. According ly

, the panel held that the officers were entitled to qualified immunity and remanded the c ase to the district court for entry of judg ment in their favor.

COUNSEL

Edward S. McGlo n e I I I
, L ake Osweg o, Oreg on, for Defendants-Appellants.

Mikel Ross Miller, B end, Oreg on, for Plaintiff-Appellee.S J U R S E T V

. B U T T O N 4

OP INION

GI L MAN, Senior Circuit J udg e:

I n F ebruary 2010, three police officers from the Stay t o n City Police D epartment (the Stay ton officers), actin g a t the direction of o fficials from the Oreg on D epartment of H uman Services (DHS), entered the h ome of Stephe n Sjurset a nd assis ted in removing his two y oung children from the residence without a court order. Sjurset subsequently f iled an action o n behalf of himself and his children ag a inst the Stay ton officers, four DHS officials, and the City of Stay ton pursuant to 42 U.S.C. § 1983. He alleg ed tha t DHS and the Stay ton o f f i c e rs took custody of his children without reasonable cause t o b elieve that the children were in im m i nent dang er of serious bodily injury

, thus violating his F ourteenth Amendment r ig ht to familial as s o c i ation and the children’s F ourth Amendment rig ht to be free from unreasonable seiz ure.

A t the summary

-

judg ment stag e of the case, the distr i ct court dismissed Sjurset’s c laims a ga inst the City of Stay ton and the two DHS offic i a l s who w ere not involved in the decision to remove the c hil d ren. I t rejected claims by the Stay ton officers and the two r emaining DHS officials that they were entitled to qualified immunity

. O nly the Stay ton officers a

ppeal. F o r t he reasons set forth below, we REVERSE the decision of the d istrict court with r e gard to the Stay ton o fficers and REMAND the case to the district court for entry

of judg ment in their favor.S J U R S E T V

. B U T T O N 5

I. BACK G R OUND

A. F actual background

On F ebruary 18, 2 010, officials at DHS received a phone call from a medical doctor’s o f fice r eporting that J e s s i c a B orchers—the sig nificant other of Stephen Sjurset—ha d tested positive t

h a t d a y f o r m e thamphetamine, amphetamines, and marijuana. B orchers, who was preg nant at the time, lived in Stay ton , Oreg on with Sjurset and her two- and five-y earold children, N .S. and T.B

. Sjurset is N.S.’s father and T.B

. ’s leg al g uardian.

The incid e n t was not the first of its kind. I n 2007, B orchers also tested p o sitive for using methamphetamine while preg nant with her second child, N.S. As a result of that prior incident, both B orchers a nd Sjurset were c o n v icted o f endang ering the welfare of a minor un d er Or. Rev. Stat. § 163.575. T.B

. was placed in temporar y f o s t e r c are until B orchers successfully

completed a drug -treatment prog ram.

Acting on the newly reg istered c omplaint, DHS immediately initiated an investig a tion. DHS c ase worker Cary n Moller-Mata attempted to meet with B orch ers a nd Sjurset to verify t h e h ealth and safety of the two children. She f irst contacted B orchers on Fr i day

, F ebruary 19, 2010. B orchers said that s h e w a s out of town and that Sjurset was taking care of t h e c hildren. Moller-Mata then made several attempts to contact Sjurset, but received no response. At the end of the day

, when she w as u n a b l e to locate or meet with either p a rent, Moller-Mata c a lled the Stay ton City P o l ice Department and requested that it dispatch officers to Sjurset’s house over the weekend to conduct an i n -p e r son w elfare check on N.S. and T.B

.S J U R S E T V

. B U T T O N 6

At approx imately 9:00 p.m. on Saturday

, F ebruary 20, officers B utton, Meeks, and Mumey a r rived outside Sjurset’s house. Officer B utton requested to speak with B orchers a nd
to s e e t h e children, but Sjurset r efused to let the officers inside the house without a warrant. W hen B orchers a ppeared
at the door, however, she said that the officers could v iew the children throug h the front window.

Unsure of what to do nex t, the Stay ton officers contacted DHS for further g uidance. DHS dispatched an on-duty social worker, Mary Anne Miller, to the scene. On t h e w a y to Sjurset’s house, Miller phoned Moller-Mata a nd the two discussed Sjurset’s and B orchers’s prior child-endang erment convictions an d their refusals to cooperate with the ong oing DHS investig ation. I mportantly

, because these events transpired on a Saturday e vening

, DHS officials could not obtain a court order authoriz ing the children’s removal until the following Monday

morning

, which was at least 36 hours
away

. Miller then c ontacted h er supervisor, Dy an B radley

, to evaluate the situation. They discussed B orchers’s recent positive drug test, Sjurset’s and B orchers’s refusal to cooperate, their prior convictions, and the risk of leaving the children in the care of the c o u p l e f or another 36 hours. I n lig ht of these concerns, Mi l l er and B radley made an on-thespot decision to take the children into protective c ustody without a court order.

All the parties are in ag reeme n t t h a t the Stay ton officers d i d n o t participate in the decision by Miller and B radley t o take protective custody of the childre n

. T h e parties f urther
ag ree that Miller and B radley made the protective-custody det e r mination prior to the Stay ton officers’ entry into the house. F inally , the record indicates that the Stay ton officers did not make their own independent judg ments as to whetherS J U R S E T V

. B U T T O N 7

there was probable c ause to enter the home and remove the children without a warrant.

I n accordance with DHS’s determi n a tion, the Stay ton officers entered the house along side Miller a nd removed N.S. and T.B

. The district court’s opinion note s t h a t DHS “concede[ d] that there was no visual evidence of drug use in the area of the h ouse that the officials occupied while the children were removed.” N o other part of the h o u s e w a s searched. N.S. and T .B

. w ere placed into tempor ar y f oster

care an d

, f

o l lowing a “shelter hearing ” two day s later, DHS obtained custody

.

B. P rocedural background

Sjurset broug ht an a ction o n b e h alf of himself and his children ag ainst the City of Stay ton, the DHS officials, a

nd the Stay ton officers u n der 42 U.S.C. § 1983, alleg ing that the parties had ( 1) violated his F ourteenth A mendment rig h t to familial association a

n d (2) violated t h e children’s F ourth A mendment rig ht to be free f rom u nreasonable seiz ure b y

r emoving the children in the absence of a court o r d e r o r evidence o f imminent dang er of serious bodily harm. H e also alleg ed that DHS officials Moller-Mata and Maria Randa l l had p resented false information a t the shelter h earing

, in viol a tion o f his substantive- and p r ocedural-due-process rig hts. Id.

All the defendants mo v e d for summary judg ment on Sjurset’s § 1 9 83 claims, arg uing that their actions did not viola t e Sjurset’s or his children’s constitutional rig hts. The district court g ranted summary judg ment in favor of both the City of Stay

ton and the two DHS officials who testified at the shelter he a r i n g. B ut it denied qualified immunity to Miller,S J U R S E T V

. B U T T O N 8

B radley

, and the Stay

ton o fficers. Relevant to this appeal, the
court rejected the Stay ton officers’ arg u ment for the following reasons:

Once the Stay

ton Defendants entered the home, they apparentl y saw no phy sical evidence sug g esting that the children were in imminent dang er. F urther, no defendant
sug g ests that B orchers was in a n y way under the influence of subst a n c es, or that there was

e v i d e n c e o f t h e e x i s t e n c e o f d r u g p a r a p herna l i a

. A l t h o u gh t h e S t a y t o n Defendants arg ue that they did not take action until Miller ar ri v ed on the scene a nd announced s h e had taken custody of the chi ldren, the Court is not convinced that reliance on Miller was reasonable as a matter of law, g ive [ sic] the a

ppar e n t a bsence o f

ex ig ent circumstance s or visible sig n s o f imminent dang er to NS and TB

. T h u s , plaintiffs have successfully r aised a question of fact as to w h e t h er the Stay ton Defendants

v iolated [ the plaintiffs’] clearly establishe d ri gh t s by removing the children f rom the home, and summary judg ment in favor of the officers is therefore inappropriate.

The Stay ton o fficers timely filed this appeal. T hey a rg ue that the district court erred in deny i ng them qualified immunity because (1) the officers violated no c l e a rly established r ig ht o f the plaintiffs when they carr i e d out DHS’s instructions to enter the h ome an d remove the children; (2) police officers are entitled to act in g ood faith on the instructions of other law-enforcement officers, includingS J U R S E T V

. B U T T O N 9

child-welfare officials, even if the basis for those instructions is mistaken or erroneous; and (3) t h e S t ay ton officers were not incompetent in believing that they were leg ally authoriz ed to act in reliance on DHS’s determination.

II. ANALYSIS

A. Standard of

review

“A g r ant of summary judg ment is a ppropriate when ‘there is no g enuine dispute as to any material fact and the movant is entitled to judg ment as a matter of law

. ’ ” Albino v. Baca
, 747 F

. 3d 1162, 1168 (9th Cir. 2014) (en banc) (quoting F ed. R. Civ. P. 56(a)), c ert. den i e d s u b n om. Scott v. Albino

, 135 S. Ct. 403 (2014). I n apply ing this standard, we “view[ ] the evidence in the lig ht most favorable to the nonmoving p arty

. ” Burke v. Cnty. of

Alameda

, 586 F

. 3 d 7 25, 730 (9th Cir. 2009). “A district court’s decision deny ing summary judg ment on the g round of qualified immunity is r eviewed de n o v o

. ” Hopkins v. Bonvicino
, 573 F .3d 752, 762 (9th Cir. 2009). W e thus review the evidence presented in the lig ht most favorable
to Sjurset, the nonmoving p arty , to deter m i n e w h ether the district court erred in deny ing qualified i m m u n i ty to the Stay ton officers.

B. The law of

qualif ied im m unity

Qualified immunity “protects g overnment officials from liability for civil damag es insofar as their conduct does not violate c learly established statutory or constitutional rig h ts o f which a reasonable p e r son would have k nown.” Mueller v

. Auker ( Mueller II

), 7 00 F .3d 1180, 1185 (9th Cir. 2 012) (quoting M

esserschmidt v

. M

illender

, 132 S. Ct. 1235, 1244–45 (2012)) (internal qu o t a t i on marks o mitted). TheS J U R S E T V

. B U T T O N 10

doctrine “g ives g overnment o fficials breathing room to make reasonable but mistaken judg ments” and “protects ‘all but the plainly incompetent or those w ho knowing ly v i o late the law.’” A shcroft v. a l- K

i dd

, 131 S. Ct. 2074, 2085 (2011) (quoting Malley v. Brigg s , 4 7 5 U.S. 3 3 5, 341 (1986)). I t “makes allowance for some c onstitutional mistakes,” Mueller II
, 700 F .3d at 1185–86, such as “when an officer reasonably believ e s that his or her conduct complies with the law,” Pearson v. Callahan , 555 U.S. 223, 244 (2009).

A qualified-immunity analy sis requires us to a scertain (1) whether, “[ t] a ken in the lig ht most favorable to the party asserting the injury

, . . . the facts alleg ed show the officer’s conduct violated a constitutional rig h t,” and ( 2) “ whether the law clearly establi s hed that the officer’s conduct was unlawful in the circumstances of the case.” Saucier v. Katz
, 533 U.S. 194, 201 (2001), overru l ed in part by Pearson
, 555 U.S. 223 ( holding that S aucier ’s two-step sequence is not mandatory

).

I n Pearson
, the Supreme Court warned ag ainst beg inning with the first prong of the qualified-immunity analy sis when it w ould unnecessarily wade into “difficul t questions” o f constitutional interpretation that “have no effect on the
outcome of the case.” 555 U.S. a t 236–37; see also al-Kidd

, 131 S. Ct. at 2080. The Court further emphasiz ed that lower
courts have d iscre t i o n t o decide which of the two prong s to “address[ ] first in lig h t of the circumstances in the particular

case at hand.” Pearson
, 555 U.S. at 236. “W hen q u alified immunity is asserted at the pleading stag e,” for ex ample, “the

answer to whether there was a violation may d ep e n d on a kaleidoscope of facts not y et fully d eveloped.” Id. at 238–39 (brackets and internal quotation marks omitted).S J U R S E T V

. B U T T O N 11

W e therefore have discretion to apply the second prong o f the S a ucier test at the outset in order to determine whether the law g overning the Stay

ton officers’ conduct was clearly

es t ablished. I f indeed the Stay ton officers did not violate clearly e stablished law, then we can determine that qualified i m munity is appropriate and may thus dispose of the c ase without undertaking an analy sis of whether a constitutional violation occurred in the first instance.

I n sum, w e will heed the Supreme Court’s admonition
aga i nst prematurely attempting to define the particular

cons t i t utional violation in q uestion in this case. This is especially a

ppropriate here because the distr i c t court has already determined that “a number of factual issues

. . . remain unresolved” reg arding the circumstances under which the DHS officials made their protec t ive-custody decision. Recog niz ing the “g eneral rule of constitutional a voidance,” id. at 241, we now turn to the second pr o n g o f t h e Saucier
test.

I n dete r mining whether a g overnment official’s conduct violates clearly established law, th e t e s t is whether, “ at the time of the challeng ed conduct

, the c ontours of a rig h t a re sufficiently clear tha t e very reasonable official would have understood that w h a t he is doing violates that rig ht. W e do
not require a c ase d irectly on point, but ex isting p recedent
must have placed the statutory or c onstitution a l q u estion bey ond debate.” Al-Kidd

, 131 S. Ct. at 2083 (quoting Anderson v. Creighton

, 483 U .S. 635, 640 (1987)) (brackets, citation, and internal quotation marks omitted). The Supreme Court h as “repeatedly told c ourts—and the Ninth Circuit in particular—not to define c l e arly established law at a hig h level of g enerality .” Id. a t 2084 (c i t ation omitted). “The inquiry

. . . must b e undertaken in the lig ht o f the specificS J U R S E T V

. B U T T O N 12

contex t of the case, not as a broad g eneral proposition.” Mueller II

, 700 F .3d at 1185 (quoting Brosseau v. Haugen
, 543 U.S. 194, 198 ( 2004)) (internal quotation marks omitted).

Nor d oes our analy sis end there. “[ E] ven if the v iolated rig ht was clearly established, [ the Supreme Court] recog niz ed that it may

be difficult for a police o f ficer fully to appreciate how the leg al constraints apply to the specific situation he o r she faces. Under such a circumstance, if the officer’s mistake

as to w hat the law requires is reasonable,

. . . t h e o fficer is entitled to the immunity defense.” Blankenhorn v

. City of Orange
, 4 85 F .3d 4 6 3, 471 (9th Cir. 2007) (alteration in orig inal) (quoting Motley v. Parks

, 432 F .3d 1072, 1 077 (9th C i r

. 2005) (en banc), overruled in p a rt on other grounds b y United States v. King
, 687 F. 3 d 1189 (9th Cir. 2012) (en banc)) (brackets and internal quotation marks omitted).

C. F actual issues do not p r e clude us f rom hearing the Stayton of

f icers’ appeal

I n d eny ing summary j u d g ment for the Stay ton officers, the district court concluded that there w as sufficient evidence to create a g enuine dispute as to whether reasonable officers could have believed that Sjurset’s children were in imminent dang er of serious bodily injury at the time of removal. Given this conclusion, Sjurset contends that w e should refrain from deciding the reaso n a b l e n ess of the Stay ton officers’ belief that the children were in such imminent dang er that their removal was justified. H e cites in s u pport the case o f Johnson v. Jones
, 515 U.S. 304 (1995), in which the Supreme Court held that “ a defendant, entitled to invok e a q u alified immunity d efense, may not appeal a district court’s summary judg ment order insofar a s t h at order d etermines whether o rS J U R S E T V

. B U T T O N 13

n o t t he pretrial record sets forth a ‘g enuine’ issue of fact for trial.” Id. at 319–20.

As we held in R am v. Rubin

,

we reiterate that we do not have jurisdiction to determine the factual is s u e whether a reasonable officer c o uld have beli eved that, based on the information known to [ the officer]

, seiz ing Ram’s children was lawful. The district co urt d enied [the officer]
summary judg ment because the pretrial record i n dicated that g enuine issues o f material fac t

ex isted. This ends our inquiry with reg ard to [ the officer’s] appeal.

118 F .3d 1306, 1311 (9th Cir. 1997).

Sjurset thus makes a co mpelling arg ument that would preclude o ur ability to consider the factual is s u es reg arding whether seiz ing Sjurset’s children was lawful. As applied to the appeal before us, however, Sjurset’s arg ument is without merit. To start with, the Supr e me Court cabined the holding of Johnson in a subsequent c a se. I t c larified that even if i ssues r emain reg arding the sufficiency of the evidence,

“ s u m m a r y judg ment determinations a re a ppealab l e w h e n t

h e y resolve a dispute concerning an abstract issue of law relating
to qualified immunity ,” such a s “ w h ether the federal rig ht alleg edly infring ed was clearly established.” B eh r e ns v

. Pelletier

, 516 U.S. 299, 313 (1996) (quoting Jo h n son , 515 U.S. at 317) (brackets and internal quotati o n m arks omitted).S J U R S E T V

. B U T T O N 14

W e have held that the Behrens rule applies i n cases “where the appeal focuses on whether the defendants v iolated

a clear l y e s t ablished law g iven the undisputed facts.” Knox

v. S w. Airlines

, 124 F .3d 1103, 1107 (9th Cir. 1997). This is
p articularly important in the q ualified-immunity c ont e x t because “[ i] mmunity ordinarily s h o u ld be decided by the
court long before trial.” Hunter v

. Bryant
, 502 U.S. 2 24, 228 (1991).

Sjurset correctly

points out that J

ohnson would preclude

us from determining the reasonableness of the DHS officials’ actions b a s e d on the facts that remain in dispute. B ut Johnson is inapplicable here because this appeal is based on undisputed facts as they relate to a purely “a b s t r a c t issue o f l aw”—that is, whether the Stayton officers violated cl e a r l y established law when they a c t ed in reliance on the DHS officials’ determination. The di s trict court ex plicitly acknowledg ed that the facts concerning the Stay ton officers’ actions are not in dispute.

W h at the district court did find in dispute—namely

, t he number of calls that Moller-Mata made to Sju r s e t a nd B orchers on the day before the w elfare check, the nature o f B orchers’s d r u g a buse, and whether viewing the children throug h a window could reasonably g ive rise to a showing o f imminent dang er—do n ot form the basi s of the Stay ton officers’ appeal. These disputed facts mig ht well a pply to the reasonableness of the DHS offici a ls’ protective-custody determination, but they do not apply to whether the Stay ton officers violated clearly e stablished rig hts of the plaintiffs b y

r e l y i n g o n t h e D H S o f f i c i a l s ’ p r o t e c t i v e

- c u s t o d y determination.S J U R S E T V

. B U T T O N 15

I n a ddition, the district c o urt noted that the parties all
ag reed that DHS, and not the Stay ton officers, made the decision to take protective custody of the c h i l d r e n

. There is

n o dispute that the Stay ton officers entered Sjurs e t ’s residence and assisted in the children’s removal in reliance on that decision. F inally

, no one disputes that, under O reg on law, D HS has the statutory authority t o take protective custody “ [w] hen [ a] child’s condition o r surrounding s reasonably appear to be such as to jeopardiz e the child’s welfare.” Or. Rev. Stat. § 4 19B .150(1)(a). These undisputed facts provide a sufficient bas i s t o determine whether the Stay ton officers’ reliance o n DHS’s determinat i o n v iolated
any clearly established rig ht of th e p laintiffs. An analy sis based on these facts is therefore a p p r opriate. See Knox
, 124 F .3d at 1106–07.

D. The Stayton of

f icers did not violate clearly established law

Under the framework set f orth above, we now f

ocus on whether, o n F ebruary 2 0, 2010, the la w c l e arly e stablished that the Stay

ton officers c ould not act p ursuant to DHS’s protective-custody determination in entering Sjurset’s h ouse and removing the c h ildren without a c ourt o r d e r

. Sjurset

c o ntends that his F ourteenth Amendment rig ht to familial association is clearly established, pointing to our holding in W allis v. Spencer

that

[ o] fficials may remove a child f r o m the custody o f i ts parent without prior judicial authoriz ati o n only if the information they
possess a t the time of the seiz ure is such a s provides reasonable c a u s e to b elieve that the child is in imminent d ang er of serious bodilyS J U R S E T V

. B U T T O N 16

injury and that the scope of the i n t rusion is reasonably necessary to avert that specific injury

.

202 F .3d 1126, 1138 (9th Cir. 1999).

F urthermore, as to the F ourth Amendment claim, Sjurset
arg ues that the Stay

ton officers should h a ve known that clearly established law permits a warrantless entry into a home only if an ex ception to the warrant requirement a pplies, such a s emerg ency , e x ig ency , o r consent. See Espinosa v

. City & Cnty. of San Francisco
, 598 F .3d 528, 5 3 3 ( 9 t h C ir. 2 0 1 0). Sjurset c ontends that, u nder the facts alleg ed, the DHS officials could n ot have reasonably concluded that the children were in imminent dang er d u r i n g the 36 hours that would h ave passed before the courts r eopened Monday morning

. B y ex tension, he arg ues , t h e Stay ton officers’ actions based on this determination v i o l a ted his and his children’s constitutional rig hts.

Sjurset p o i n t s to our decision in W allis to arg ue that clearly established law prohibited the o fficers from removing the children unless t h e y were in imminent dang er. See 202 F .3d a t 1138. I n W

a llis w e denied summary judg ment to t h e City of Escondido when its police officers entered a family ’s h o use at midnig ht, interviewed the family ’s children, and took custody of t he c hildren b ased on a purported “pickup order” from the state’s c hild-welfare ag ency

. Id. at 1132–34. I n actuality

, however, “no [ protective-custody] order ever ex isted and [ the child-welfare ag ency ] had not y et

even r eached a deci sion a bout whether to seek protective custody of the children.” I

d. at 1133.S J U R S E T V

. B U T T O N 17

The police officers’ a ctions in W allis are therefore readily disting uishable from the case at hand in two important way s. F irst, W allis involved a factua l d ispute whether the c hildwelfare-ag ency officials had actually issued an order to take protective custody

. Id. at 1133–35. Second, the police in W allis acted independently without verify ing the ex istence o f the purported order. Id. They therefore acted not in reliance

on the child-welfare ag ency , but instead in the absence of the
ag ency ’s direction.

I n the present case, the e x act opposite is true—the Stay ton officers acted not independentl y o f

, b ut pursuant to, the protective-custody determination by DHS. The Stay ton officers traveled to Sjurset ’ s residence to conduct a w elfare check a t the behest of DHS. When Sjurset denied their entry , the Stay ton officers did not take matters into their own h ands

or make their own independent jud gm e n t s, as the W allis officers had; instead, they called DHS for ad d i tional
g uidance, and Miller w as dispatched to the scene. Thus, unlike the W

allis officers, the Stay

ton officer s w e r e careful
not to take any action that was not f i r s t a u thoriz ed by DHS. I n addition, and unlike in W allis

, M i l l e r and B r adley made their protective-custody determination in the midst o f the
ong oing welfare check, when the Stay ton office r s were p hy sically present, and the Stay ton officers accompanied Miller as she ex plained to Sjurset and B orchers the rationale for the determination. The authenticity of the determination was therefore readily

verifiable.

I n lig ht of these obvious distinctions, W allis falls short o f clearly establishing that reasonable officers i n t h e Stay ton officers’ situation would have understood that they had a

c o n s t i t u t i o n a l r e s p o n s i b i l i t y t o second-g uess DHS’s protective-custody d etermination. Such second-g uessingS J U R S E T V

. B U T T O N 18

would have r equired the officers either to disrupt or to refuse
to take part in the entry a

n d removal of Sjurset’s children. T o be sure, if the Stay

ton officers had p articipated in the decision
t o take protective custody of Sjurset’s children, then o u r precedent in W

allis and similar cases would clearly establish that the officers could not do so without a reasonable basis for believing that the children were in imminent dang er

. See,
e.g. , M abe v. San Bernar d ino Cnty., Dep’t of Pub. Soc. Servs.
, 237 F .3d 1101, 1 108–09 (9th Cir. 2001) (holding that the imminent-dang e r ex ception applies to police officers a nd social workers who make protective-custody decisions). B ut here the police officers did not participate in such a decision; they instead relied on DHS’s determination.

Sjurset further contends that the Stay ton officers’ role as “integ ral participants” in the entry and removal is e noug h to trig g er their liability for any v i o l ations of Sjurset’s constitutional rig hts. To support this theory

, Sjurset r elies on Boyd v. Benton County
, 3 7 4 F .3d 773 (9th Cir. 2 004). I n Boyd

, w e h eld that officers who provided b a c kup during a search in w hich one officer threw a lethal “flash-bang ” device in t o a d ark room w ere “integ ral participant[ s] ” f o r the
purpose o f the plaintiff’s ex c essive-force claim. Id. at 780. W e n o ted that the supporting officers did not p hy sical l y throw the device, but concluded tha t t he plaintiff h ad nevertheless satisfied the first p r ong of the Saucier test because the officers “ stood a rmed behind” the acting officer,

were “aware of the decision to use the flash-bang ” device, and “did not object to it.” Id.

B u t Sjurset’s reliance on Boyd is misplaced both f actually and leg ally

. As a factual matter, the officers in Boyd acted a s

a c o l lective team a

n d were carry

ing out a preplanned search operation. Id. at 777. B ef o re t he search, the officersS J U R S E T V

. B U T T O N 19

“g athered for a b r i e f i n g ” an d “ d i s c u s s ed v a r i o us circumstances surrounding the operation.” Id. Only after this collective discussion d id the s u p e r v ising serg eant make the ultimate decision to use a flash-bang device. Id. I n contrast,

n o f a c ts in this c ase sug g e st that the Stay ton officers we r e privy to any discussions, briefing s, o r collective d e c i sions made by DHS in its protective-custody determination.

Moreover, even after the serg e a nt in Boyd made his decision, the officers c ollectiv e l y discussed “the manner o f deploy ing the flash-bang

. . . , taking into account the fact that several people mig ht be sleeping in the apartment.” Id. Boyd thus involved a collective decisionmaking process a mong the officers, with the result that all o f them cou l d b e c onsidered “integ ral participants” in the e x ecut i o n o f t h e plan. Id. I t does not squarely address t h e c ase at hand, wherein an entirely separate ag ency

— DHS—made a protective-custody determination over which the Stay ton officers had no input.

A n d even if we were to assume that the Stay ton o f f i c e rs

were “integ ral participants” in the ex ecution of the protectivecustody determination, Boyd would not help S j u r s e t’s
arg ument. This is because in Boyd we ultimately

concluded that—despite the ex istence o f a c onstitutional violation—the officers were ent i t l ed to qualified immunity because no clearly established law specifically precluded the use of a flash-bang device in the contex t of a search. Id

. at 784 (holding that “a r easonable officer f aced with these facts, a

nd without g uidance from the courts, was not on notice that the

use o f a flash-b a n g w a s unconstitutional”). Boyd thus supports the notion that even officers who are i n t eg ral participants in an unconst i t utional search are immune from liability if the unlawfulness of the conduct is not clearly established.S J U R S E T V

. B U T T O N 20

I n sum, neither W

a llis nor Boyd c learly e stablishes that the Stay ton officers v iolated Sjurset’s constitutio n a l rig hts when they acted i n r e l iance on D HS’s protective-custody d etermination. W e must therefore look elsewhere to de c i d e whether the o fficers were on n otice that their conduct v iolated clearly established law. Neither statute nor precedent, h o w ever, squarely addresses the circumstances o f thi s particular case.

F irst, under the ex isting reg ulatory framework, O r eg o n’s

c h i l d

- p r o t e c t i o n s t a t u t e gi v e s D H S a u t h o ri t y o v e r “investig ation and enforcement of child protection services” in the state. Or. Rev. Stat. § 409.185(1). The statute f urther
empowers D HS empl o y e e s a n d peace officers alike to take protective custody of a child “[ w] hen the child’s c ondition o r surrounding s reasonably appear to be such a s t o jeopardiz e the child’s welfare.” Id. § 419B .150(1)(a). Once a protective-custody determination is made

, however, the
statute does not address whether assisting o fficials should conduct their own independent inquiry a s t o t he validity o f that determination. Nor does the sta t u t e d irect officers to refuse to c arry out a protective- cu stody determination in the absence of a court order. See id. c hs. 40 9
, 4 1 9 B. Under

ex isting Oreg on law, therefore, the Stay ton o fficers were not

ex p ected to verify the leg ality o f DHS’s decision after it was made.

Second, th e re is no “robust consensus of cases o f persuasive a u t h o r i ty ” that would put the officers on notice that they could not enter Sjurset’s residence and re m o v e t he

c h i l d r e n p u r s u a n t t o t h e D H S p r o t e c t i v e

- c u s t o d y determination, even if that d etermination was flawed. See a lKidd

, 131 S. Ct. a t 2084; s e e a lso United S tates v. Black

, 482 F .3d 1 035, 1040 (9th Cir. 2007) (holding thatS J U R S E T V

. B U T T O N 21

“conscientious” police o fficers “ [ e] rring o n t he side o f caution” in conducting a welfare s e a r c h without consent a re entitled to immunity ).

One Ninth Circuit decisio n in particular would be d ifficult
to disting uish if we were to hold that the Stay ton o f fi c ers’ conduct violated clearly established law. I n Mueller v. Auker ( M uell e r I ), a mother sued a police detective for taking custody of her sick infant without a court order, “at the behest of hospital doctors,” despite the moth e r ’s objections. 576 F .3d 979, 982 (9th Cir. 2009). On a second a p p e al, we held that the detective’s reliance on the doctors’ medical judg ment was objectiv e l y reasonable and thus g ranted him qualified im m u n i ty

. W e noted that, “ [ e] ven were we to

assume with hindsig ht that the [ medical] assessment was

wr o n g, t o attribute such a professional error in judg ment to Detective Rog ers would be manifestly inap p ropriate.” Mueller II

, 7 00 F .3d at 1188. W e further held that two police officers ac t i ng at the direction of the detective w e re entitled
to qualified immunity

, noting that the off i c e rs “made no decisions at all.” Id. at 1189.

I n Mueller II we noted that the d istrict court observed that “[ t] he phrase ‘imminent dange r ’ h a s not been g iven any detailed definition, either by W allis

. . . or any other case, that could have g uided” the detective. Id. at 1188. We must therefore be c autious not to “repeat the analy tical mistake we made in Brosseau
, where we approached this issue [ o f clearly established law] based u pon g eneral tests and abstract constitutional propositions instead of focusing on the precise factual scenario confronted by the officers.” Id.

L ike the two officers in Mueller who “made n o decisions
at all,” id. at 1189, the Stay to n officers similarly made noS J U R S E T V

. B U T T O N 22

independent decisions reg ardi n g protective custody a nd merely a ssisted DHS in securing the c h i l d ren. W e thus decline to find that the Stay ton officers we re either plainly incompetent or that they k nowing ly violated the la w w h en they relied on DHS’s d etermination that Sjurset’s c hi l d r e n were in imminent dang er.

To hold otherwise would place the Stay ton officers in a Catch-22 situation: e ither c halleng e D HS’s determination, which could potentially endang e r the c hildren’s safety a nd put the officers at risk of liabilit y o r d i s cipline if harm h ad befallen the children, or c a rry out DHS’s i nstructions in the absence of a court o rder at the risk of b e ing sued for violating
t h e children’s and the p arents’ constitutional rig h ts. T h e correct answer would not be obvious to a reasonable officer. Thus, the “contours” of the F ourteenth and F ourth Amendment rig hts at issue were n ot clearly established in this

c o n tex t. According ly

, for the purposes of qualified immunity

, those rig hts did not preclude the officers’ reliance on DHS’s determination.

The d istrict court, however, hel d t h a t Sjurset h ad “successfully r aised a question of fact” as to whether the Stay ton o fficers had violat e d clearly established law. Our analy sis above ex plains why we respectfully disag ree. B ut

even if we were to ass u m e that the Stay ton officers did violate c l e arly established law in entering the home a nd

re m oving the c hildren at the direction of the DHS officials,

we would neve rtheless conclude that the Stay ton officers

ac t e d reasonably under the circumstances and would therefore be entitled to qualified immunity

. See Blankenhorn

v. City of Orange
, 485 F

. 3d 463, 471 (9th Cir. 2007) (noting that “even if the violated rig h t was clearly established, . . . if the o f f icer’s mistake a s to what the law requires is reasonable,S J U R S E T V

. B U T T O N 23

. . . the officer is e n t i t led to the immunity defense”) (second

a l t e r a tion in orig inal) (quoting Motley

, 432 F .3d at 107 7 ) (brackets and internal quotation marks omitted).

Part of the district court’ s r a tionale in ruling to the contrary was b ecause the Stay ton officers “did not rely on the word o f a fellow police of f icer, but rather that o f a DHS worker.” B ut this view is contrary to wel l

- e stablished precedent, which holds that “[ l] aw enforcement officers and agencies are entitled to rely on one another to a c ertain

ex tent.” Guerra v

. Sutton
, 7 83 F .2d 1371, 1375 (9th Cir. 1986) (emphases added) (holding that, in the interag ency contex t where “[ t] he sy stem requires reasonable cooperation and division of labor,

. . . the I NS may reasonably rely on the statement of a responsible law enforcement officer”).

The district c ourt’s r efusal to ex tend th i s reliance principle is also u ndercut by Mueller II
, in which we held that the d e tective’s reliance on the opinions of several doctors was objectively reasonable u nder the circumstances. 700 F .3d at 1188 ( noting that “[ r] easonableness must be judg ed from the perspective o f a reasonable o ffic e r on the scene, rather than with the 20/20 vision of hi n d sig ht

. . . .” (quoting Ryburn v

. Huff

, 132 S. Ct. 987, 992 (2012)) (internal quotation marks omitted))

. This reliance principle is particularly applicable here because the officers were a cting at the direction of DHS, the very ag ency wi t h subject-matter e x pertise a nd authority
to make child-welfare determinations. See Or. Rev. Stat. §§ 409.185(1), 419B .150(1)(a).

Sjurset correctly p oint s out, however, that an officer
cannot blindly rely on the ex istence of a protective-custody determination to avoid liability

. I nstead, Sjurset arg ues, the Stay ton officers had a “duty to inquire” into the specific factsS J U R S E T V

. B U T T O N 24

surrounding DHS’s dec i sion to take the children into protective custody

. Sjurset supports this a r g ument with precedent holdin g that officers “must make reasonable inquiries to determine if there is a s u f fi c ient basis for the entry and search.” Espinos a , 5 9 8 F .3d a t 535; see also Guerra
, 78 3 F. 2d a t 1375 (“An I NS a g ent who conducts a search or makes a

n arrest without k

nowledg e of the details o f the warrant u nde r w h i c h he presumes to act v iolates clearly established law.”).

B u t such a duty t o m a k e reasonable inquiries is necessarily linked to the second p rong of the Saucier test, i.e., whether the “conduct was unlawfu l i n t he circumstances o f
t h e c a se.” Saucier v. Katz
, 533 U.S. 194, 201 (2001). T h e reasonableness of an o f fi cer’s conduct is thus contex tsensitive and dependent upon the details known to the officer at the time of the search.

F ocusing on the case at hand, Sjurset arg ues that “[ t] here

were no facts known to the police o ffi c ers that would have allowed t h e m to believe the children were in dang e r o f imminent h arm,” and “[ t] here was no evidence that N .S. a nd T.B

. were in imminent dang er of being h armed within the 36 hours that the police claim i t w ould h ave taken to obtain a court order.” B ut the record shows otherwise. I n addition to the fact that DHS had a lready made a definitive protectivecustody determination, the Stay ton officers were aware that
t h e c h i l d r e n ’ s m o t h e r h a d t e s t e d p o s i t i v e f o r methamphetamine and other drug s and h ad previously been convicted o f child endang erm e n t b ased on an incident involving similar conduct. They also witnessed first-hand Sjurset’s and B orchers’s refusals to permit any o fficial from meeting with or speak i n g t o the children, effectively preventing the officers from verify ing the children’s safety

.S J U R S E T V

. B U T T O N 25

F inally

, the Stay

ton officers knew that a w arrant could not be procured for at least 3 6 hours, which a mplified the p erceived risk o f jeopardiz ing the children’s safety i n the intervening period. T he o fficers therefore were not acting blindly a t the instruction of DHS; they h a d k nowledg e of the key d etails that informed DHS’s determination. See Guerra
, 783 F .2d at 1375 (holding that the duty to inquire requires a n official to have “knowledg e of the details of the warrant” o n w h i ch he relies). I n lig ht of these circumstances, and g iven the potential h arm of failing to a c t , t h eir reliance on DHS’s instruction was objectively reasonable.

F urth er s upporting the o bjective reasonableness of the Stay ton officers’ conduct was the fact that they had no reason to believe that DH S ’ s i nvestig ation was inadequate o r incompetently performed. S ee M o t ley v. Parks

, 4 32 F .3d 1072, 1081 (9th Cir. 2 005) (en banc) (“[ A ] bsent some indication to a superv i s o r that an investig a tion was inadequate

or incompetent, supervisors are n ot oblig e d t o undertake de

novo investig ations o r to cross ex amine subordi n at es

. . . . ” (quoting Cecere v. City of N.Y

. , 967 F. 2 d 826, 8 2 9 (2d Cir. 1992)) (internal quotation marks omitted)). I nst e a d, the Stay ton officers knew that D HS h ad initiated an investig ation based on a reliable tip from a doctor’s o ffice, had ma d e several atte m p t s t o carry out its investig ation, a nd had been prevented from doing

so by Sjurset and B orchers.

Th e S t ay ton officers were therefore not incompetent in believing that they were leg ally au t h o r i z ed to act in reliance

on DHS’s determi n ation. And even if the officers were mistaken in their belief that they could remove the children at the direction of D HS without c o u rt authoriz ation, th eir actions were objectively reasonable u nder the circumstances.S J U R S E T V

. B U T T O N 26

According ly

, the Stay

ton officers are e ntitled to qualified immunity

.

III. CONCLUSION

F or all of the reasons set f orth above, we REVERSE the judg ment of the district c o u r t w ith reg ard to the Stay ton officers and R EMAND the c ase to the district court for entry of judg ment in their favor.