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

L I S A D E M

A R E E , wife; A

N T H O N Y (“A.J .”) D E M

A R E E , husband; on behalf of themselves and as the natural g uardians and g

uardians ad litem for their three minor children, T.D., J .D., and L

. D.,

Plaintiffs-Appellants,

v

.

L A U R A P E D E R S O N ; A M

Y V A N N E S S , Defendants-Appellees. N o. 14-16207

D.C. No. 2:11-cv-00046- ROS

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na Rosly n O. Silver, Senior District J udg e, Presiding

Arg ued and Submitted J uly 6, 2016 San F rancisco, California

F iled J anuary

23, 2018

B efore: Marsha S. B e rz on, and N. Randy Smith, Circuit J u dg es, and J ack Z o uhary
, * District J udg e.

* T h e Ho n o rab le J ack Z o u h ary , Un ited States District J u d g e f o r th e No rth ern District o f

Oh io , sittin g b y

d esig n atio n

.D E M A R E E V

. P E D E R S O

N 2

Per Curiam Opinion;

Concurrence by

J udg e B erz on; Partial Concurrence and Partial Dissent by J udg e Z ouhary ; Dissent by

J udg e N.R. Smith

SUMMARY * *

Civil Rights

The pa n el affirmed the district c ourt’s order deny ing plaintiffs’ motion to seal t he district court’s summary judg ment order, reversed th e district court’s order g ranting
summary judg ment in favor of social workers on the basis o f qualified immunity , and remanded for further proceeding s.

Plaintiffs a lleg ed that Child Protective Services so ci a ls workers violated their a nd their children’s constituti o n al rig hts t o family unity and companionship by temporarily removing the children from their home without a warrant o r court order. The social workers r emoved the children during

a possible sex ual a

buse investig atio n after a W al-Mart employ e e contacted police that while printing family photos dropped off by plaintiffs, they n o ticed several pictures portray ing child nudity

.

The p anel first r ejected defendants’ contention that plaintiffs’ appeal was not t i mely filed because plaintiffs’ “lodg ed” motion to alter or amend the judg m e n t under F ederal Rule Civil Pr o c edure 59 could not toll the deadline

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

t es n o p art o f th 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.D E M A R E E V

. P E D E R S O

N 3

for appeal under F ederal Rule C i v il Procedure 4(a)(4). Apply ing Hamer v. Neighborhood Hous. Servs. of Chi.
, 138 S. C t

. 13, 16-17 (2017) the panel held that Rule 4(a)(4) i s not jurisdictional but r ather is a mandatory cl ai m

processing rule. The pa n el then held that the appeal was timely because the Rule 59 motion was actually phy sically delivered to the cle r k w h e n it was timely lodg ed in conjunction with the request to file under seal, and the district

co u r t t reated the motion as filed when it ruled on the merits of the motion.

The panel held that the social workers were not e ntitled to qualified im m unity

. Viewing the facts in the lig ht most favorable to t he plaintiffs, the social workers did not have reasonable cause to believe t h e c h ildren were at risk o f serious bodily harm or molesta t i o n when they removed the children from their home without judicial authoriz a tion. The panel further held that plaintiffs’ constitutional r ig ht was

c l e a r l y e stablished at the time. The panel held that specific judicial p recedent c learly g ave notice to t h e social workers that children could not be removed from their homes without

a court o rder or warrant absent cog ent, fact

- f o c u sed reasonable cause to believe the children would be imminently subject to phy sical injury

or phy sical sex ual abuse.

The panel af

f i r med the district court order deny ing plaintiffs’ motion to seal the summary judg ment order. The panel held that: ( 1) the d istrict court prop e r l y protected the privacy of the children b y maintaining under seal any motions

or ex hibits containing their full n ames or identify ing information; (2) Ariz ona law prohibited the rel e as e of f iles related to investig ations conducted by child protective services; and (3) the d istrict court o rder employ ed clinical,D E M A R E E V

. P E D E R S O

N 4

anatomically corr e ct lang uag e to briefly describe the nudity depicted in the photog raphs at issue.

Concurring
, J udg e B e rz on wrote separately to emphasiz e why it is essential that the courts scrupulously g uard a child’s constitutional rig ht to remain a t h ome a b sent a court order o r true ex ig ency

. Concurring and dissenting in part, J udg e Z ouhary ag reed with the per curiam opinion as it pertained to the timel i n e ss of the appeal and the district c ourt denial of the motion to seal the summary judg ment opinion. He respectfully dissented f r o m the majority view on the merits o f the case. He would have affirmed the d i strict court o r der g ranting summary judg ment based on qualified immunity

. Dissenting on jurisdiction and timeliness g rounds, J udg e N.R. Smith s tated that because p laintiffs failed to file their notice of a

ppeal within thirty day s of the judg ment, the court had no jurisdiction or authority over their appeal.

COUNSEL

Richard R. Treon (arg

ued), Treon & Ag uirre PL L C, Phoenix
, Ariz ona, for Plaintiffs-Appellants.

Michael G. G aug ha n (arg ued), Assistant Attorney General; Mark B rnovich, United St a tes Attorney ; United States Attorney ’s Office, Phoenix
, Ariz ona; for DefendantsAppellees.D E M A R E E V

. P E D E R S O

N 5

OP INION

PER CURI AM: 1

As this c ourt has stated repeatedly
, families have a “welle laborated constitutional rig h t to live tog e ther without
g ov ernmental interference.” W allis v. Spencer
, 202 F .3d 1126, 1 136 (9th Cir. 2000); accord Kirkpatrick v. Cty. of W ashoe
, 843 F .3d 784, 789 (9th Cir. 2016) (en banc); Burke

v. Cty. of Alameda
, 586 F .3d 725, 731 ( 9th Cir. 2009); Rogers

v. Cty. of San Joaquin
, 487 F .3d 1288, 1294 (9th Cir. 2 007); Mabe v

. San B ernardino Cty.
, 237 F

. 3 d 1101, 1107 (9th Cir. 2001); Ram v. Rubin
, 118 F .3d 13 0 6
, 1 310 (9th Cir. 1997). W e c onsi der here L isa a nd A nthony (“A.J .”) Demaree’s contention that social workers L a u r a Pederson and Amy Van Ness violated t h e i r constitutional rig hts to family unity a nd companionship, and their small child r e n’s as well, b y removing the children f

rom home w ithout a warrant o r court order.

I. B A C K G R O U N D

A.J

. Demaree d

ropped of

f some family photos to be printed at a Wal-Mart in Ariz ona on F riday
, Aug ust 2 9, 2008. W h ile d eveloping t h e p ictures, a n employ ee noticed that several p ictures portray e d nude children. W al-Mart called the police. D etective J ohn Krause came and collected the pictur e s

. On Saturday
, he p hotocopied the o nes that concerned the W al-Mart employ ee and went to the Demarees’ home.

1 J u d g e Berzo n co n cu rs i n t h e en tirety o f th is o p in io n

. J u d g e N.R. Sm ith co n cu

rs in all b u t P art II(A )(ii) o f th is o p in io n

. J u d g e Z o u h ary

co n cu rs in all b u t

P art II(B )(ii) o f

th i s o p in io n

.D E M A R E E V

. P E D E R S O

N 6

O n c e there, he and his partner separately interview e d
p a rents L isa and A.J

. Demaree. B oth parents looked at t h e pictures, identified their daug hters—five-y ear-old T.D., foury e a r

- o l d J .D., and one-and-a-half-y e a r-old L .D.—and said the pictures had been taken “ in the last couple of months” by o ne

or both pa r e n ts. W hen asked what he would d o with o ne photo, which portray ed h is t h r e e children ly ing d own on a towel nude, focusing on their ex posed b uttocks but with some g enitalia showing, h e responded, “I ’m not g oing to do
any thing w ith that one. That’s not g oing in a photo album; that’s just one we have.” Krause said, “Obviously y ou’re not g oing to share it w i th somebody
, I would hope,” to which A.J

. responded, “No, absolutely n ot!” K rause then asked why he would take the photo in the first place, and A.J

. responded,

“ S o w hen we look back o n e m y ears later, look at their c u t e little butts.”

None of the photog raphs portray ed children e n ga ge d in

sex ual activity

. None portray e d the c h i l d r en’s g e nitalia frontally

.

After the interviews, the detectives took T

. D

. , J .D., a nd L .D. to forensic and medical ex ams t o investig ate possible

sex ual abuse. The phy sical ex ams came back normal for all three children. After the interviews were finished, Krause’s partner dropped the children back off with th e i r parents. Krause w r o t e in his report, “[ a] pparently after the forensic interviews and medical ex ams were comp l e t e d, [Child Protective Services] declined to remove the children from the parent’s custody
, and had d irected [ h is partner] to return the
g irls to L isa and A.J .” 2

2 P ed erso n an d Van Ness d id n o t rely u po n th e fo r e n s i c in terv iew s b ef o re o r af ter th ey d ecid ed to rem o v e th e ch i ld ren

.D E M A R E E V

. P E D E R S O

N 7

W h ile the ex ams were in prog ress, the police department requested a

nd received a warrant to search the Demarees’ home. Ex ecuting the warrant, t h e department seiz ed all the evidence that mig ht be r elevant to a child pornog r a p h y investig ation: computers, printers, photog raphs, cell p hones, undeveloped f

ilm, floppy discs, D VDs, CDs, VHS tapes, a nd

cameras.

As the home searc h w a s nearing its end, and after the children had b een returned to their p arents, Child Protective Services (“CPS”) investig ating officer L aura Pederson called

one o f the police officers to discuss the case

. After the conversation, she decided to drive over to the house. There, Pederson discusse d with K rause the e vidence seiz ed, the content of the pictures, and Krause’s ex pectation that felony child sex u al ex ploitation charg es would be broug ht ag ainst both parents.

After reviewing the evidence Krause showed h er, Pederson decided to ta ke the c h ildren into emerg ency t e m p orary custody
, w ithout o btaining a court order o r a warrant. She later said, “ I was rely ing on the fact that . . . at the time there was a pending criminal investig ation with both parents named as suspects. I was rely ing on information that Krause obtai n ed during the investig ation

. . . his opinion o f the criminal acts that were committed, my viewing of the pictures and the fact that the— a l l of this sug g ested these children were at risk of further ex p loitation.” She discussed her recommendation with her supervisor
, Amy Van N ess, who ag reed.

Pederson g ave the parents a “Temporary Custo d y N o t i ce

. ” I n that notice, in the space provided for investig ators to “[ c] hec k t he circumstances ( imminent riskD E M A R E E V

. P E D E R S O

N 8

factor ) that most clearly describes the r e a s o n temporary custody was n e cessary ,” Pederson checked “[ o] ther,” a nd wrote, “mother & father have taken sex ually ex plicit pictures of all three children.” She d id not check the b ox for situations where “[ t] he child’s careg iver has eng ag e d in

s e x u al c onduct with a c hild, or has allowed the child to participate in sex ual activity with others.” On the nex t pag e , in the space provided f

or investig a tors to i n f

o r m parents o f the “complaint or alleg ation concerning [ their] family [ that] is currently under investig ation,” she w rote, “Sex ual Abuse—child pornog raphy /ex ploitation.”

Pederson then drove T .D. and J .D. to one foster home a nd L .D. to anot h e r

. Two day s later, Pederson b roug ht the children to their g r andparents’ home, where a ll three stay ed for about a month, after which they w ere r e t u r n ed to their parents. The juvenile court n e v er adjudicated t h e children abused or neg lected, and neither A.J

. nor L isa were a r r e s ted or charg ed with any

crime.

A.J

. and L isa later filed the instant ac t i o n o n behalf o f themselves a

nd their children, al l e g ing v iolations of v arious constitutional rig hts. The d istrict court dismissed the c laims
ag ainst all d efendants ex c e pt K rause, Pederson, and Van Ness. The Demarees later settled their claims ag ainst Krause.

As relevant here, the district c ourt g ranted summary judg ment in favor of Pederson and Van N e s s based on qualified immunity

. I t ordered the parties to propose appropriate r edactions to the summary judg ment order, which

was temporarily filed under seal on April 23, 2014. On May 21, the Demarees requested leave to file under seal a motion
to alter or amend the judg ment under F e deral Civil Rule 59. Six day s later, the d istrict court d enied the motion for leaveD E M A R E E V

. P E D E R S O

N 9

to file under sea l
, and also denied the Demarees’ request to seal th e s u m m a ry judg ment order in its entirety

. The Demarees filed this appeal on J une 23.

II. D I S C U S S I O N

A. Tim eliness of

the Appeal

B e fore we address the merits, we consider whether this appeal is timely

. Three cour t ru l e s are pertinent to our inquiry here: F irst, F ederal Rule of Appellate Procedure 4(a)(4)(A) tolls the d eadline to file a no tice of appeal upon the timely f

iling of certain motions, including a motion to alter or amend th e j u d gm ent under F ederal Rule of Civil Procedure 59, such that the time to appeal— h ere, 30 day s—runs “from the entry of the o rder d i sposing o f the last such remaining motion.” Second, F ederal Rule of Civil Procedure 5(d)(2) provides that “ [ a] paper is filed b y delivering it

. . . to the c lerk.” And third, Ariz ona L ocal Rule 5.6(c) requires a document meant to be filed un d e r seal first
to “be lodg ed with the Court in elect r o n i c f orm” using the electronic filing sy stem.

The Demarees according ly “lodg ed” a copy of their Rule 59 motion and requested leave to file it under seal. The d i s t rict court denied the request. B u t its order, althoug h in form a denial o f the r equest to file the motion under seal, did
not refer to or discuss any of the factors relevant t o fi l ing documents under seal. Cf. Foltz v. State Farm M ut. Auto. Ins. Co.
, 331 F

. 3d 1122, 1135 (9th Cir. 2003). I nstead, the order addressed only the merits of the Rule 59 motion, deny ing the request to f

ile u nder seal because the u nderlying motion was

“ unnecessary

” and “a repeat of arg uments previously m a d e, at g reat l e n g th, in Plaintiffs’ filing s.” The Demarees filedD E M A R E E V

. P E D E R S O

N 10

their Notice of Appeal twenty

- seven d ay s after the issuance of the order deny ing leave to file their Rule 59 motion under seal, and fifty -five day s after t h e summary judg ment order. Pederson and Van Ness c o ntend that the Demarees’ appeal

was not timely because the Rule 59 motion was never actually filed a

nd therefore could not toll the dead l i n e f o r appeal under Rule 4(a)(4).

(i) Jurisdiction versus m andatory claim -processing

The parties describe the timeliness issue as jurisdictional. Under a recent Supreme Court case, it is not.

“[ A] n appeal filing deadline prescribed by statute will be
reg arded as ‘ j u r i s dictional’.

. . . B ut a time limit prescribed only in a cour t

- m ade rule

. . . is not jurisdictional; it is, i n s t e ad, a mandatory claim-processing r ule.

. . .” Hamer v. Neighborhood Hous. Servs. of Chi.
, 13 8 S

. Ct. 13, 16–17 (2017). I n other words, “[ i] f a time p rescription g overning the transfer of adjudicatory authority f rom one A rticle I I I
court to another appears in a statute, the li m i t a tion is jurisdictional; otherwise, the time specification fits within the claim-processing categ ory

. ” Id. at 20 (internal citations a nd footnote omitted).

B e fore Hamer
, we held t h e timeliness rule at issue here jurisdi ct ional. S

ee United States v. Comprehensive Drug Testing, Inc.
, 513 F .3d 1085, 1100 (9th Cir. 2008), aff’d and adopted e n b anc , U

n ited States v. Comprehensive Drug Testing, Inc.
, 621 F .3d 1162, 1 1 67 (9th Cir. 2010) (en banc). Comprehensive Drug Testing r ecog niz ed that “F ed. R. App. P. 4(a)(4) does not contain lang uag e from 28 U.S.C. § 2107,”D E M A R E E V

. P E D E R S O

N 11

or any other relevan t s t a tute. 3 B u t Comprehensive Drug Testing reg arded Bowles v. Russell
, 551 U.S. 205, 2 14 (2007)

as indicating that all timeliness problems in notices of appeal

were jurisdictional, whether directly traceable to a statutory requirement or not. Comprehensive Drug Testing , 513 F .3d at 1100.

Hamer
, 138 S. Ct. at 21, squarely rejected Comprehensive Drug Testing ’s reading of Bowles in the contex t o f a n other provision o f Fe d. R. App. P. 4, Rule 4(a)(5)(C). That Rule also e stablished a “time p rescription

. . . absent from the U.S. Code.” Id. Hamer noted that “[ s] everal Courts of A ppeal

. . . ha[ d] tripped over [ its] statement in Bowles that ‘the taking o f

an appeal wi t h i n the prescribed time is “mandatory a nd jurisdictional,”’” e v e n thoug h that statement was “a characteriz ation left over from day s when [ the Supreme C o u r t] w [ as] ‘less than meticulous’ in [ its] use of the t e r m ‘jurisdictional.’” I

d

. (internal cit a t i ons and footnotes omitted).

Comprehensive Drug Testing r ecog n i z e d the absence o f

a statutory basis for Rule 4(a)(4) but—un d e r s tandably
, a s Hamer recog niz es—tripped o ver the very lang uag e in Bowles that Hamer d i s a v ows. Comprehensive Drug Testing ’s holding that all timelin e s s i ssues in notices of appeal a re jurisdictional, e ven where, as here, the Rule’s p r ovision is not statutorily mandated, is thus f latly irreconcilable w ith Hamer

. See Miller v. Gammie
, 335 F

. 3 d 889, 900 (9th Cir. 2003) (en

3 S ee a l s o O b a y d u lla h v. Ob ama , 6 88 F.3 d 7 8 4
, 7 8 8

– 9 1 (D.C. Cir. 2 0 1 2 ) (d escrib in g th e relatio n sh ip b etw een Fed

. R. A p p

. P

. 4(a ) ( 4 ) an d 2 8 U.S.C. § 2 1 0 7
, an d ex p lain i n g t h at t h e to llin g p ro v isio n o f Ru l e 4(a)(4 ) h as n o statu to ry

an alo g ).D E M A R E E V

. P E D E R S O

N 12

banc). Under Hamer
, Rule 4(a)(4) is not j u risdictional; instead, Rule 4(a)(4) is a mandatory claim-processing rule.

The defendants challeng e d the timeliness of this appeal in their brief before us, so we must address that question, even thoug h not jurisdictional. See, e.g., Amalgamated T r a n s i t Union Local 1309 v

. Laidlaw Transit S e rvs., Inc.
, 4 35 F .3d 1140, 1145 (9th Cir. 2006); Kwai Fun W ong v. Beebe
, 732 F .3d 1030, 1035–36, 1047 (9th Cir. 2013) (en banc).

(ii) This appeal was tim ely

T u rn ing to the particular a pplication of Rule 4(a)(4) before us: W e recently addressed a similar issue in Escobedo

v. Applebees
, a sex discrimination c ase. T here, Escobedo delivered her c o m p laint to the clerk’s office six ty -nine day s after receiving her rig ht-to-sue letter from the EEOC. 787 F .3d at 1227. She also filed an in forma pauperis application, which was later d e n ied, and she pa i d h er filing fee b y the deadline imposed b y the court, which fell 133 day s after she received the rig ht-to-sue letter. I d

. a t 1230. The defendant arg ued that the complaint was time-barred because it w as “filed” after the ni n e t y

- d ay statutory deadline, even thoug h it was orig inally submitted to the clerk within the time limit.

The district court dismissed the lawsuit, and we reversed, holding that “[ a] s with other p leading s and papers, a complaint is f

ile d ‘by delivering it

. . . to the clerk.’” Id. at 1232–33 ( quoting F ed. R. Civ. P. 5(d)(2)). Thoug h Escobedo advanced “constructive filing ” and equitable tolling theories,

we based our decision on o ther gr o u n d s

. We noted that “scant justification ex is ts to invoke” the “leg al fiction” inherent in those theories because “[ i] t is undisputed that theD E M A R E E V

. P E D E R S O

N 13

complaint w as actual l y , phy sically d elivered to the clerk . . . .” Id. at 1231–32.

Similarly
, in Ordonez v. J o h nson , 254 F .3d 814, 8 16 (9th Cir. 2001) ( per curiam), we h el d t hat a pro se prisoner complaint was timely f

iled when delivered to the clerk, even thoug h the clerk rejected the complaint for noncompliance with a local r

ule requiring submission of a courtesy copy

. W e reasoned that “ elevat[ ing] a l ocal rule

. . . to the status of a jurisdictional requirement would conflict with the mandate o f F e d e r a l R u le of Civil Procedure 1 to provide a just a nd speedy d etermination of every action.” Id. (internal quotation marks and citations omitted).

L ikewise, in Klemm v

. Astrue
, 543 F .3d 1139 (9th Cir. 2008), Klemm mailed h is n ot i c e o f a ppeal to the c lerk’s office, along with a post-dated check for the filing fee. The clerk r ejected the notice and instructed Kl e m m to file

e l e c t ronically
, as r equired by local rule. He did so, but his electronic filing fell three day s after the relevant d e adline. W e held t h e notice of a p p eal “was deemed filed when it ‘a r r i v ed in the hands of the Clerk within the statutory period.’” Id. at 1143 (quoting Loya v. Desert Sands Unified Sch. Dist.
, 721 F .2d 2 79, 280 ( 9 th Cir. 1983)). W e reasoned that “filing requirements dictated by local r u les are not j u r i s dictional.

. . . L ocal rules g o vern local practice, bu t a violation o f local rules cannot divest this court of the jurisdicti o n a f

f o rded to it by Cong r ess.” Id. (citation omitted).

I n this c ase, the Demarees’ Rule 59 motion was “actually
, phy sically ” delivered to the clerk when it was timely lodg ed in c onjunction with the request to file under seal. Escobedo
, 787 F .3d at 1232. A nd the district c o urt treated the motion a sD E M A R E E V

. P E D E R S O

N 14

f i l ed, as it ruled on the merits of the motion. 4 A c cording ly
, the time to file an appeal beg an running from May 27, 2014, the date of the district court’s final order, and the Demarees timely filed their Notice of Appeal, on J une 23, 2014.

J udg e N.R. S m i t h ’ s dissent cites to several cases that disting uish between lodg ed and f iled documents for purposes of determining whether a document is included in the record under F ederal Rule of Appellate Procedure 10(a). Dissenting Opn. of Smit h
, N

. R., C.J
., at 4 2–44 (citing Nicholson v

. Hyannis A ir S

erv., I nc. , 580 F

. 3d 1116, 1127 n

. 5 (9th Cir. 2009 ) ; Barcamerica Int’l USA Trust. v. Tyfield Imps., Inc.
, 289 F .3d 589, 594–95 (9th Cir. 2002); Levald v. City of Palm Desert , 998 F .2d 680, 684 n.1 (9th Cir. 1993)). Those cases

are not r elevant here, both because we are addressing a question of timeliness concerning w hen a pleading w as filed,
not determining the content of th e e v identiary record on appeal, and because the district c ourt resolved the motion on its merits, thereby

treating it as if it were filed.

W e therefore hold that this appeal is timely

.

B. Qualif

ied Im m unity

W e nex t c onsider whether Pederson and V an Ness were entitled to qualified immunity when they removed T.D., J .D., and L .D. from their home without judicial authoriz ation.

S e c t ion 1983 provides a remedy f or the violation of constitutional rig hts by any person acting under color of state

4 W e lo o k to th e su b stan ce an d ef

f ect o f an o rd er, n o t so lely its title. S ee Delta Co mp u ter Co rp

. v. S a msu ng S emico n d u cto r & Teleco mm. Co

. , 8 7 9 F.2 d 6 6 2 , 6 65 (9 th

Cir. 1 9 8 9 ).D E M A R E E V

. P E D E R S O

N 15

law. 42 U.S.C. § 1983. B u t it does not provide a r emedy for all constitutional v iolations. “The doctrine of qualified i m m u n i ty protects g overnment officials from liability for civ i l damag es insofar a s thei r c o n duct does not violate clearly established statutory or c o n stitutional rig hts of which a reasonable p erson would h ave k nown.” Pearson v. Callahan
, 555 U .S. 223, 231 (2009) (internal quotation marks omitted). W e use a two-step test t o e v a luate claims of qualified immunity
, “ under which summary judg ment is impr o p e r if, resolving all disput e s of fact and credibility in favor o f the party asserting the injury

, ( 1) the facts adduced show that the officer’s conduct violate d a c onstitutional rig ht, and (2) that rig ht was ‘clearly e stablished’ at the time of the viol a t i o n

. ” Kirkpatrick v. Cty. o

f W ashoe
, 8 43 F

. 3d 784, 788 ( 9th Cir. 2016) (en banc).

This section 1983 a ction c oncerns parents’ and children’s “well-elaborated constitutional r ig ht to live tog ether without
g overnmental interference.” Burke v. Cty. of A lameda
, 586 F .3d 725, 731 (9th Cir. 2009) (inte r n a l quotation marks and citation omitted). I n particular
, “[ u] nder the F ourth Amendment, g overnment officials are ordinarily required to obtain prior judicial authoriz a t ion before removing a child from the custody of her parent.” Kirkpatrick
, 843 F

. 3d at 790.

There are narrow c ircumstances in which the g overnment may c onsti t u t ionally remove children from their f amilies temporarily without judicial authoriz ation. I n an emerg ency , g overnment officials may take a child out of her h o m e a nd
away from her parents without a court order “when officials have r easonable cause to b elieve that the c h i l d is likely to

ex p erience serious bodily h a rm in the time that w ould be required to obtain a warrant.” K i r k p atrick
, 843 F .3d at 790D E M A R E E V

. P E D E R S O

N 16

(orig inal italics a

nd internal quotation marks omitted). This requirement “balance[ s]
, on the one h and, the need to protect children from abuse and neg lect and, on the other, the preservation o f the e ssential privacy and liberty interests that families are g uaranteed under b oth the F ourth a nd F ourteenth Amendments of our Constitution.” Rogers v. Cty. of San Joaquin , 487 F .3d 1288, 1297 (9th Cir. 2007).

(i) Constitutional violations

The D emarees, o n behalf of the m s elves and their children, claim Pederson and Van Ness viol a t ed their clearly established constitutional rig hts when Pederson removed the children from the home without a court order a n d a b sent an emerg ency

. 5

W e beg in with the first step of o u r qualified immunity inquiry —whether the social workers ac t ed constitutionally when they took the D emaree c hildren from their p a rents without court authoriz ation. “Serious a l l e g ations o f abuse that have b een investig a ted and corroborated usually g ive r ise
to a ‘reasonable inference of imm inent dang er sufficient to justify taking children into temporary custody ’ if they mig ht
ag ain be beaten or molested during the time it would take to
g et a w arrant.” R ogers , 487 F

. 3d at 1294–95 (quoting Ram
, 118 F .3d at 1 311). W e therefore consider w hether the defendant social workers had reasonable cause to believe that

5 T h e Dem arees co n ten d
, altern ativ ely
, th at ev en if th e rem o v al itself

w as p ro p e r , P ed erso n an d Van Ness v io lated th eir an d th eir ch ild ren ’ s

co n stitu tio n al rig h ts b y placin g th e ch ild ren in n o n

- relativ e fo ster care,

r a t h e r t h a n d irectly p lacin g th em w ith th eir relativ es. B ecau se w e ag ree

w ith th e Dem arees th at t

h e rem o v al w as im

p ro p er, w e d o n o t co n sid er th is altern ativ e co n ten tio n

.D E M A R E E V

. P E D E R S O

N 17

T.D., J .D., a

nd L

. D. w ere at imminent risk of serious bodily injury or molestation. W

allis
, 202 F .3d. at 1138.

Vi ew i n g t h e f

ac t s i n t h e l i gh t m o s t f av o r a b l e t o t h e Demarees, the social workers d id not have reasonable c ause to believe the children were a t risk of serious bodily h arm o r molestation. Pederson and Van Ness did n ot represe n t t h at the Demaree children mig ht “ag ain be b eaten or molested,” Rogers
, 4 87 F .3d at 1294, if left in their home—the children

were n ever beaten or molested in the first place. I nstead, the articulated c oncern w as tha t the children could be subjected
to future criminal “sex ual e x ploitation” because the parents had “tak[ e n] sex ually ex p licit pictures of all three children.” 6

I t is helpful to ident i f

y w h at this stated risk did not include. The risk identified by the defendants did not include taking photos of a nude c hild in an ex ploitative situation a nd distributing them, because there was no alleg ation o r indication that A.J

. and L isa h ad d istributed, or were likely in

6 T h e d ef en d an ts rely

o n th e in v estig atio n

in to th e p aren ts’ p o ten tial

v io latio n o f A rizo n a’ s crim in al law co n cern in g th e sex u al ex plo itatio n of

a m in o r. Un d er th at law
, “ [a] perso n co m m its sex u al ex p lo ita t io n o f a

m in o r b y k

n o w in g ly : 1

. Reco rd in g , f ilm in g , p h o to g rap h in g , dev elo p in g

o r d u p l i c a t i ng an y v isu al d ep ictio n in w h ich a m i n o r is en g ag ed in

ex p lo itativ e ex h ib itio n or o th er sex u a l co n d u ct. 2

. D istrib u tin g , tran sp o rtin g , ex h ib itin g , receiv in g , sellin g , p u rch asin g , electro n ically
tran sm ittin g , p ossessin g o r ex ch an g in g an y v isu al d e p i c t io n in w h ich a

m in o r is en g ag ed in ex

p lo itativ e ex h ib itio n o r o th er sex u al co n d u ct .” A riz. Rev

. S tats. § 1 3

- 35 5 3 (A ). “ Ex p lo itativ e e x h ib itio n ” is d ef i n ed as

“ t h e actu al or sim

u lated ex h ib itio n o f th e g en itals o r p u b ic o r rectal areas

o f an y p erso n f

o r th e p u r p o s e o f sex u al stim u latio n o f th e v iew er.” Id

. § 1 3

- 3 55 1 (5 ). Here, rev iew in g th e f acts in th e lig h t m o st f

av orab le to th e p l a i n t i f f s, t h ere w as n o ev id en ce th at th e paren ts m ean t to u se th e p h o to g rap h s f

o r sex u al stim

u latio n o f t

h em selv es o r an y o n e else, m u ch less to tak e n ew

p h o to g rap h s f

o r th at p u rp o se.D E M A R E E V

. P E D E R S O

N 18

the future to d istribute, nude pictures of their children to any one. 7 Nor d id the identified risk include taking p hotos o f

a nude child e ng ag ing in sex ual conduct, because there w a s

no alleg ation A .J

. and L isa had e ver t ak e n , o r were likely to take, photos of their children eng ag ing in sex ual conduct. 8 And the risk was not that the Demarees would see their o wn children, ag es five, four, and one-and-a-half, nude, including their g e n i t a lia, as caring for children of those ag e s necessitates doing

so.

M o s t important, the articul a t e d r i s k

— t a k i n g s ex u a l l y

ex p l i c i t photos—did not include a ny risk of phy sical sex ual abuse. T here was no alleg a tion that A.J

. and L isa were likely
to p ut their children at risk of sex ual assault or abuse; indeed, after the children w e r e professionally evaluated for sig ns o f

sex ual abuse, Detective Krause reported that “neither could provide a ny information relevant to the investigation,” a nd Detective Shearer stated that “[ T.D.] and [ J .D.] did not make disclosures in the forensic interviews.” A t t h e e nd of the

e v a l u a t i o n s , D e tective Krause reported that “[ Child Pr o t e c t i v e Services] declined to remove the chi l d r en from the parent’s custody [ sic ]
, and

. . . directed Detective Shearer to return the
g irls to L isa and A.J .”

7 A lso , tak in g th e ch ild ren aw ay w o u ld n o t

p rev en t th e p aren t s f

ro m d istrib u tin g ex istin g p h o to g rap h s w ere th ey so in clin ed —w h i ch th ere is n o in d icatio n th at th ey w ere.

8 It w o u ld be in ap p ro p riate t o attach th e p h o to g rap h s to th is o pin io n , as d o in g so co u ld f

u rth er in v ad e th e ch ild ren ’ s p r i v a c y in terests in

an o n y m i ty

. W e n o te, h o w ev er, i n s o f ar as J u d g e Z o u h ary ’ s d issen t

su g g ests th at th e p h o to g rap h s p o rtra y e d th e ch ild ren in “ p ro v o cativ e p o ses,” s ee Dissen tin g Op n

. o f Z o u h ary , J
., at 3 8

– 3 9
, w e see th at p o rtray al

o f t h e p h o to g rap h s a s i n accu rate. T h e t erm su g g ests f ro n t al n u d ity or

sex u ally ex plicit p o ses, n eith er o f w h ich w as rep resen ted

.D E M A R E E V

. P E D E R S O

N 19

Nor d id Pederson a ct o n fear o f p hy sical sex ual abuse. B efore r emoving the children, Pederson filled o ut a “Temporary Custody Notice,” which included a sp ace instructing investig at o r s to “[ c] heck the circumstances ( imminent risk factor ) that most clearly describes the reason t emporary custody was n ecessary .” She did not check the box for situations where “ [ t] he child’s careg iver has eng ag ed in sex u al conduc t w i t h a child, or h as allowed the child to participate in sex ual a c tivity w ith others.” I nstead, Pederson checked “[ o] ther,” and wrote, “ m o ther & father have taken

sex ually ex plicit pictures of all three children.”

F urther, any cog niz able risk could not h ave been imminent i n the sense our case law requires—that the children “mig ht a g ain be beaten or molested during the time it would take to g et a w arrant.” Rogers
, 487 F .3d at 1294–95. The defendants sug g est that we s h o uld measure imminence i n this case in day s and potentially weeks, noting that under Ariz ona Revised Statute § 8-824(A), the earliest a court could have conducted a full hearing would have been f ive to seven day s after a dependency petition was filed. B ut Ariz o na law
recog niz es that juvenile courts can issue same-day “motions for pickup.” See Ariz. Dep’t of Econ. Sec. v. Lee ex rel. Cty. of Maricopa
, 228 Ariz

. 150, 151 (Ariz

. Ct. App

. 2 0 1 1 ) (noting that the department filed a dependency petition and, “[ o] n the same day
, t h e juvenile court g ranted a motion for pickup of the Child based o n [ the department’s] assertion that the ‘child is at imminent risk of abuse and/or neg le ct due to Mother’s substance abuse’”); s e e also Tyren T. v. Dep’t of Child Safety
, No. 1 CA-J C 16-0091, 2016 W L 4 474154, at *1 (Ariz . Ct. App. Aug

. 25, 2016); Michael C. v. Ariz. Dep’t of Econ. Sec.
, No. 1 CA-J V 12-0005, 2 012 W L 1964581, at *1 (Ariz

. Ct. App. May 3 1, 2012); Magdaline L. v. Ariz. Dept. ofD E M A R E E V

. P E D E R S O

N 20

Econ. Sec.
, No. 1 CA-J V 08-0076, 2008 W L 5 403657, a t *1 (Ariz . Ct. App. Dec. 30, 2008).

Here, the parties ag re e t h a t the juvenile court was not open on L abor Day weekend, when the events in this case occurred. We therefore c onsider imminence of harm in terms of day s rather than hours. 9

This c onsideration is straig h tforward. The defendants did not sug g est that there was any possible harm of the requisite
sort to the children before t h e j u venile courts would r eopen after the holiday

. Ag ain, there was no eviden c e o f s e x ual assault o r a

buse; the defendants did not a nd do not rely on the children’s forensic ex amination and interview as indicati n g otherwi s e

. B ecause the d efendants did not identify any risk of phy sical injury or molestation to the children, they did not identify the r equisite risk of imminent p h y s ical injury o r abuse. 1 0

9 T h e p lain tiffs d o n o t arg u e th at th e ab sen ce o f av ailab le j u d icial

o f f icers o v er th e w eek en d, an d t h e co n seq u en t u n av ailab ility of a t i m ely j u d icial d eterm in atio n , co n stitu ted a d u e p ro cess v io latio n in itself

.

10 Ev en f ocu sin g —in ap p ro p riatel y

— o n w h eth er t h ere w as ev id en ce th at th e D em arees w o u ld lik ely t ak e m o re n u d e p ictu res o f th eir ch ild ren , o r d istrib u te n ew o r ex istin g p ictu r e s , i n th e f ew day s b ef

o re th e g o v ern m en t co u ld g et a co u rt o rd er , th ere w as n o su ch ev id en ce. A t th e tim e sh e rem o v ed th e ch ild ren , Ped erso n d i d n o t id en t if y an y im m in en t f u tu re p h oto g rap h y on h er n o t ice o f t em p o rary rem o v al; rath er, sh e n oted th at “ m o t h er & f ath er h a ve ta ken sex u ally ex p l i c i t p i c tu res o f all th ree ch ild ren ” (em

p h asis ad d ed ). It d o es n o t ap p ear th at P ed erso n reaso n ab ly

co u ld h av e id en tif

ied m o re ph o to g rap h y as an im m in en t risk
, becau se th e p o lice h ad tak en f

ro m t h e Dem arees’ h o m e all th e cam eras, cell p h o n es,

co m pu ters, an d p rin ters f

o u n d (in ad d itio n to p o ten tially relev an t p h o to g rap hs
, u n d ev elo p ed f ilm
, f lo p p y d isk s, DVDs, CDs, an d VHS tap es), as th ey ex p lain ed to P ed erso n b ef o r e s h e r e m o v ed t

h e ch ild ren

.D E M A R E E V

. P E D E R S O

N 21

I n sum, viewing t h e record most favorably to the Demarees, there was no suspected risk to the c h i l dren o f serious b odily h a r m , including molestation, imminent o r otherwise. Therefore, viewi n g t he record most favorably to t h e Demarees, the defendants acted unconstitutionally i n taking the three children away f rom home without judicial authoriz ation.

(ii) Whether the constitutiona l right was clearly established

W e move to the second step of the qual i f i e d immunity inquiry —whether the relevant judicial precedents at the time

o f t h e incident clearly g a ve notice that what happened he r e violated the Demaree f a m i l y ’ s F ourth a

nd F ourteenth Amendment rig hts. W e conclude that the ap p l i cable precedents did provide that notice.

I n 2007, the y ear before the events in this case took place, Rogers held that a social w orker v iolated a family ’ s clearly

e s tablished federal r ig hts by removing children with n o warrant b ecause of r eports that a three-y e ar-old and five-y earold “were not toilet-trained, were locked in their rooms at nig ht and in a r oom at their parents’ business during the day
, were not r eceiving medical or dental care, that [ one] had lost his teeth due to bottle rot, that [ the other] was still being fed with a b o ttle, that their home was dirty and mag g ot-infested, and that there were u nsecured g uns in the home. ” R o gers , 487 F .3d a t 1291. The social worker in that case “could have obtained a w arrant w ithin hours,” and “[ t] h e r e [ w as] no indication in the record that so short a delay could have

A n d
, ag ain
, th ere w as n o ev id en ce th at t h e p aren ts h ad ev er distrib u ted or h ad an y in ten t to d istrib u te th e p h o to s.D E M A R E E V

. P E D E R S O

N 22

resulted in a sig nificant worsening of the children’s phy sical conditions or an increase in the prospects of long -term harm.” Id. at 1 295. O ne child’s “ ‘pain’ was not s o s e r i o u s t hat he

c eased to be ‘play ful’ a nd ‘alert,’” the phy sical risk t h e

c h i l d ren faced from being locked in a room for the ti m e i t would take to obtain a w arrant was “very low,” and “the mess in the Rog ers living quarters

. . . was a chronic, ong oing problem.” Id

.

Even in the face of this sig nificant accumulation o f
neg lect a nd bodily harm, which all parties ag reed had resulted in bodily injury to the small children, we held that there was

no reasonable cause to believe an ex ig ency supported the children’s warrantless removal. Id. at 1296

. W e concluded that their r emoval therefore violated their clearly e stablished rig hts. Id.

Here, there had been no actual or threatened p h y s i c al harm to o r phy sical sex ual abuse of the D e m a rees’ children before they were taken from their home. So the likelihood that they would suffer such abuse in the day s it would take to g et a warrant was necessarily less than t h e l i k elihood o f future phy sical injury to t h e R o g ers’ children in the hours it would take to g et a warrant.

Similarly
, i n M

a b e v. San Bernardino Cty.
, 2 37 F .3d 1101, 1109 (9th Cir. 2001), viewing the facts in the lig ht most fa v o r a b l e to the plaintiff family
, we held that a jury could have found that a defendant social w orker violated a mother’s clearly established c onstitutional rig hts by remo v i n g her teenag e daug hter from her h ome without a warrant. W e were unpersuaded that the sex ual a buse alleg a tions were ex ig ent a s

a matter o f law, even thoug h the teen a ge r ’s stepfather

s e x ually abused her by “touch[ ing ] her breasts and cr o t c hD E M A R E E V

. P E D E R S O

N 23

a r ea throug h her clothing at nig ht in h er bedroom

. . . ev e r y other nig ht for

. . . two o r three months.” Id. a t 1104–05. W e reasoned that, “[ a ] lthoug h the conduct by the stepfather was clearly inappropriate, it d id not involve violence o r penetration and the only

time it had taken place was at nig ht when MD was in her bedroom. Assuming that [ the worker] could obtain a warrant the same d ay

. . . , it i s d i f f i c u l t to understand how the further delay o f a few hours necessary to obtain the warrant would have put MD in imminent dang er o f serious phy sical injury .” Id

. a t 1 108 (internal footnote omitted). That conclusion was f urther underscored by the fact that the social worker “opted to leave M D i n t h e residence after interviewing MD and Mabe about the alleg ed molestation.” 1 1 I

d.

Despite quite serious alleg ati ons of p hy sical sex ual assault and bodily injury in Mabe
, we were u n willing to hold as a matter of law that there was reasonable cause to believe there would be “ imminent dang er of future harm” within the time it would take to g et a warrant. Id. W e held, instead, that “a reasonable jury co uld conclude that [ the mother’s] constitutional rig hts w ere violat ed ,” id. at 1109. W e do the same here. 1 2

11 Sim ilarly h ere, Ch ild P ro tectiv e S e r v ices in itially retu rn ed th e ch ild ren to th eir p aren ts.

12 C ases ap p ly in g Ro g ers an d Ma b e af ter th e ev en ts g iv i n g rise to th is
case, w h ile n o t d irectly ap p licab le to th e clearly estab lish ed law in qu iry
, co n f irm o u r u n d erstan d in g o f Ro g ers an d Ma b e

. W e h av e co n tin u ed to b e caref u l to em p h asize th e n eed f

o r a clear sh ow in g o f b o th im m in en ce an d
sp ecif ic, serio u s p h y sical d an g er to th e ch ild

. Fo r e x a m p le, i n Bu rke v. C t y

. o f Ala med a , 5 8 6 F.3 d 72 5
, 7 3 1

– 32 (9 t h C ir. 2 00 9 ), w e h eld t h a t , u n d er circu m stan ces o f th at case, in w h i ch a step f

ath er’ s sex u al ab u se an d
p h y sical v i o len ce co u ld recu r at an y tim e acco r d in g to th e ch i l d ’ s rep o rtD E M A R E E V

. P E D E R S O

N 24

The defendants disag ree with the above analy sis. They
sug g est that cases in the Ninth Circuit do not clearly establish the c onstitutional requirements for w arrantless removals o f children in the event of alleg e dly ex ploitative photos of nude children because those cases deal with other forms of sex ual abuse and involve cour t orders available within a few hours rather than a few day

s.

W h en evaluating qualified immunity claims, “[ w] e do not require a case directly on p oint, but ex isting precedent must have pl aced the statutory o r constitutional question bey ond debate.” A shcroft v

. al-Kidd
, 563 U.S. 731, 741 (2011). I t is

“ b e y o nd d ebate,” id.
, that ex isting Ninth Circuit p recedent establishes that children c an only be taken from home without

a warrant to p rotect them f rom imminent phy sical injury o r molestation in the period before a warrant could be o btained. See Mabe
, 237 F .3d at 1108–09. The clearly established case law requires articulable, imminent, a n d serious phy sical injury or phy sical abuse to children to justify removing them from their parents’ home without a judicial order. There was no such injury

identified here.

P u t another way , to say a child c an b e removed only i f x is likely to happen necessarily means she cannot be removed if there is no indication that x is likely to happen. That there is no case l a w c o n ce r n ing a situation in which y , but not x , may be likely to happen does no t make the r ule setting the
st a n dards for removal any less clear—the rule is that o nly a

o f ab u se, th ere w as r e a so n a b l e cau se to b eliev e th at an im m in en t risk of serio u s b o d ily in

j u ry j u stif

ied a th e c h i l d ’ s w arran tless rem ov al. W e reiterated th at “ [p ]o lice o f f i cers m u s t h av e sp ecif

ic, articu lab le ev id en ce

. . . th at a ch i l d i s i n i m m i n e n t d an g er o f ab u se.” Id

. at 7 3 1 (in tern al
q u o tatio n m ark s o m itted ).D E M A R E E V

. P E D E R S O

N 25

reasonable fear of x , n ot y , can provide a constitutional basis for ex ig ent removal.

Here, the rule remains that ther e c a n b e no removal

w i t h o ut a court o rder “ absent e vidence that the child was i n imminent dang er of serious bodily injury .” Kirkpatrick
, 8 4 3 F .3d at 792. The risk identified here simply d o e s n o t meet that s t andard, as it does not involve p hy sical injury o r abuse.

Notably
, unlike in Kirkpatrick
, the issue here is not the level of risk in a particular circumstance. See id

. I n that c ase,

a mother who had abused methamphetamine g ave birth to a child and, althoug h both stay ed in the hospital to recove r, several social workers as s u med temporary custody o f the newborn w ithout a warrant. Id. at 786–87. B ecause n o case had addressed the level of risk of p h y s ical harm at issue where a p otentially abusive mother is in the hospital but could leave w ith the child, we held that the s o c i a l workers were entitled to qualified immunity

. Id. at 793. Here, thoug h, the social workers never identified any r isk of h arm to the children o ver the applicable p eriod that c o m e s within the

ex ig ent circumstances stand ard articulated in W allis and its
prog e ny

.

F urther, the case law was clear in 2008 that it does not matter w h e ther the w arrant could be obtained in hours o r day s. W hat matters is whether there is an identifiable risk o f serious harm or abuse during w h a t e v e r the delay p eriod is

. See Rogers
, 487 F .3d at 1 294

– 1295 (“Serious alleg ations o f abuse that h ave been invest i g ated and corroborated usually
g ive rise to a reasonable infe r e n ce o f imminent d a ng er sufficient to justify taking children into temporary custody if
t h e y mig ht ag ain be beaten or molested during the tim e i tD E M A R E E V

. P E D E R S O

N 26

w o uld take to get a warrant

. ” (emphasis added and interna l quotation marks o mitted)); United States v. Echegoyen
, 799 F .2d 1 271, 1279 n.5 (9 th Cir. 1986) (“Ex ig ent circumstances necessarily imply that there is insufficient time
to g et a warrant.”); U

nited S tates v. Good
, 780 F

. 2d 773, 775 (9th Cir. 1986) ( “Ex ig ent circum s tances alone

. . . a re insufficient as the g overnment must also show that a warrant could not have been obtained in time.”).

W e note that at least o ne other federal court of appeal has dealt with facts similar to th o s e b efore us. I n Malik v

. Arapaho e C t

y. Dep’t of Soc. Servs.
, 191 F .3d 1306, 1309 (10th Cir. 1999), the Tenth Circuit held that, viewing the facts in the lig ht most favorable to the Maliks, a police officer a nd social w orker c ould h ave violated Ms. Malik’s and her foury ear-old daug hter’s clearly established constitutional rig hts. The d efendants had removed the daug hter on the authority o f

a court order obtained throug h misre presentation several weeks after they had d iscovered a set o f ten photog raphs portray ing the daug hter partially clot h e d, “some w ith full frontal g enital ex posure.” Id. 1 3 The d a ug hter’s uncle, an artist, had taken the photos five months ea r l i e r , and the mother had sent the photos to be p rocessed; as here, the photo processing center called the police. Id.

The Tenth Ci r c u it held that the defendants w ere not entitled to qualified immunity

. I d. at 1315. That “conclusion hing e[ d] upon the d istrict court’s finding that ‘[ d] e f endants acknowledg ed [ t h e daug hter] w as in no imminent d ang er at the time they soug ht the order and the f acts sug g est[ ed] [ the

w a r r a n t ] w a s s e c u r e d o n l y t h r o u g h d i s t o r t i o n , mis r e p r e s en tation a

nd omission.’” Id. at 1315 n.5. I n the

13 No n e o f

th e p h o to g rap h s h ere at issu e m eets th at d escrip tio n

.D E M A R E E V

. P E D E R S O

N 27

absence of imminent dang er that the daug hter would be the subject of more photog r aphs—even if the sex ual ex ploitation i n herent in the ex isting ones would have justif i e d

re m o v al—the g overnment could not remove the daug hter wit h o u t a leg itimate judicial order. Clearly established law, said the Tenth Circuit, compelled that conclusion.

T o r ecap: W e do not here deal with a “g ener al propositi o n , for ex ample, that an unreasonable search o r seiz ure vi olates the F ourth Amendment,” which “is of little help in determining whether the violative nature of particular cond u c t i s clearly e stablished.” al-Kidd
, 563 U.S. at 742. I n s tead, we have here a very specific line of cas e s , culminat i n g in Rogers and Mabe
, which identified a nd applied law clearly establishing t h a t children may not be removed from their homes without a court order or warrant absent cog ent, fact-focused r easonable cause to b e l ieve the children would be imminently subject to p h y sical injury o r phy sical sex u a l abuse. Rogers
, the last in the series before the e vents in this c ase, summariz e d that law and ex p lained

w h y qualified immunity was inapplicable: “Prior to t h e events in q

uestion, we had repeatedl y held that a family ’s rig hts were v iolated if the c h i l d ren were removed absent an imminent risk of serious bodily ha r m

. A reasonable social worker w ould need nothing more to understand that she may not remove a child fr o m [ h is o r her] h ome on the b asis of a [ situat i o n ] that does not present such a risk.” 487 F .3d at 1297. Mabe
, Rogers
, and their predecessors thus g ave clear notice of the law to social workers responsible for protecting children from sex u al abuse and families from unnecessary intrusion.

W e a ccord ing ly reverse the d istrict court’s g r a nt o f qualified immunity

to Pederson and Van Ness.D E M A R E E V

. P E D E R S O

N 28

C. Motion to Seal

“[ C] ourts of this c ountry recog niz e a g eneral rig ht to inspect a nd copy public records a n d documents, inc luding judicial re c o r ds a

nd documents.” Nixon v. W arner Commc’n s , I

n c. , 435 U.S. 5 89, 597 (1978) (footnotes omitted). W e there f

o re “start with a strong presumption in favor of access to court records.” F oltz
, 3 3 1 F. 3 d at 1135. “A p arty seeking to seal a judicial record

. . . . must ‘articulate[ ] compelling reasons supported by specific f actual finding s.’” Kamakana v. City & Cty. of Honolulu
, 447 F .3d 1172, 1 178 (9th Cir. 2006) (quoting Foltz
, 331 F .3d at 1135).

“ ‘[ C] ompelling reasons’ sufficient to outweig h the p ublic’s interest in disclosure” ex ist w hen court records mig ht “‘become a vehicle for improper purposes,’ such as the use o f records to g ratify private spite, p r o m o te public scandal, circulate libelous statements, or release trade secrets.” Id. at 1179 (quoting Nixon
, 435 U.S. at 5 98). “The m e r e f act that the production of r ecords may lead to a litig ant’s embarrassment, incrimi n a t ion, or ex posure to f urther litig ation will not, without more, compel the court to seal its records.” Id.

The Demarees’ arg u ments can be summariz ed as follows: (1) sealing the s u m m a r y judg ment order is necessary “to protect[ ] the privacy and innocence of children”; ( 2) A riz o na law provides that records related to CPS investig ations a re confidential; and (3) the unse a l e d order could be u sed for improper purposes, such as to provide “sex ual[ ] stimulat[ ion] .”

None of these are compelling reasons for sealing the order here. F irst, the district court p roperly protected the p rivacy o f the children by maintaining under seal any motions o rD E M A R E E V

. P E D E R S O

N 29

ex h ibits containing their full names or iden t ify ing information. Second, A riz ona law prohibits the Department of Economic Secur i t y from releasing “files that c ontain information related to investig ations conducted by c h i ld protective services.” Ariz

. Rev. Stats. § 41-1959(A). I t also provides that “records of

. . . dependency proceeding [ s] shall
not be open to public inspection.” Ariz

. Rev. Stat. § 8

- 208(F ). B ut the summary judg ment o rder neither releases any CPS files nor opens the r ecord s of any dependency proceeding

. I n short, the district c ourt did not violate A riz o na law by publishing the order.

F inally
, the district c o urt order employ ed clinical, anatomically correct lang uag e to briefly describe the nudity depicted in the photog raphs at issue. The unquantifiable odds that an unsavory individual mig ht find this lang u ag e titillating does not create a compelling reason for removing it from the public record—especially since the D e m a r e es did not file their Complaint under seal, and in f act g ave public interviews in which they
, themselves, described the photos and the nudity depicted.

III. C O N C L U S I O N

W e affirm the district court order deny ing the Demarees’ motion to seal the summary judg ment order. We reverse the district court order g ranting s u m mary judg ment in favor o f Pederson and Van Ness based on qualified immunity

. W e remand for further proceeding s consistent with this opinion.

AF F IRMED IN P A RT, REVERSED IN P ART, AND REMANDED.D E M A R E E V

. P E D E R S O

N 30

B ERZ ON, Circuit J udg e , concurring :

I concur in the per curiam opinion in full. I wr i t e separately to emphasiz e w hy i t i s e ssential that the courts scrupulously g uard a child’s constitutional rig ht to r emain at home absent a court order or true ex ig ency

. Taking a c h i ld from h is or her home, family
, a nd community constitutes a separate trauma, in and o f i t self. Our cases so recog niz e, and so ordinarily permit that trauma
to occur on l y after a court determination that the a lternative is worse.

Nearly two decade s ag o, we described the purposes underly ing constitutional restrictions on removal of children from their homes without any judicial supervision:

The problem of child a b u s e is a critical one, with deep personal and social co s t s

. F or too lo n g, i n t r a

- f

a m i l i a l s e x u a l a b u s e was considered to be a “private” matt e r

. Today
, the law is chang ing

. . . .

Because the swing of every pendulum brin gs with it potential adverse c onsequences, it is important to emphasiz e t h a t in the area o f child abuse, a s w ith the investig ation a nd prosecution of all c r imes, the state is constrained by the substantive and procedural
g uarantees of the Cons t i t u t ion. The fact that the suspect e d c r i m e may b e heinous—whether it involves c h ildren or adults—does not provide cause for the state to ig nore the rig hts of the accused or an y other parties.D E M A R E E V

. P E D E R S O

N 31

Otherwise, serious injustices ma y result. I n

cases of alleg ed child abuse, g overnmental failure to abide by constitutional constraint s may have deleterious long -term c onsequences for the child and, indeed, for the entire f amily

. I ll-consider ed and improper g overnmental action may

create significant injury

where no problem of any

kind previously

ex isted.

W allis v. Spencer , 202 F .3d 1126, 1130–31 (9th Cir. 2000).

I n other w ords, for children in n e glect and abuse
proce ed i n gs, “entry into f oster care br[ ing s] them the additional trauma of separation f rom their h o m es and often their communities.” 42 U.S.C. § 5111(a)(2) (finding s supporting the federal Child Abuse Prevention and Treatment Act). “The events o f the day of p lacement constitute a crisis for children because e v e r

y thing in their lives chang es and the children a

re overwhelmed w ith feeling s of abandonment, rejection, worthlessness, g uilt, and helplessne ss.” Rosalind D. F olman, “I W

as Tooken”: How Children E x perience Removal from Their Parents Preliminary to Placement into Foster Care
, A D O P T I O N Q U A R T E R L Y , no. 2, 1 998, at 7
, 12 (evaluating the ex periences of 90 children removed from their homes as a result of abuse and neg lect).

Research confirms that “unex pectedly being snatched b y th e police or protective service workers traumatiz e[ s]

. . . children.” Id. at 29; see also A my J .L

. B ake r e t al., F oster Children’s Views o

f T heir Birth Parents: A Review o f the Literature
, 67 C H I L D R E N A N D Y O U T H S E R

V S

. R E V

. 177, 180–81 (2016) (conducting a meta-analy sis of 27 studies o f the ex periences of children and y o uth in foster care , a nd finding strong evidence that children remain attached to theirD E M A R E E V

. P E D E R S O

N 32

homes and families despite ab u s e )

. F or small children especially
, being taken from a home and family by a strang er is a profoundly frig htening and destabiliz ing ex perience, even if that home and family

are flawed.

B y assuring close judicial supervision of even temporary g o v e r n m e n t a l i n t e r f e r e n c e i n t h e p a r e n t

- c h i l d relationship—absent reasonable c a use to believe a true, identifiable, serious ex ig ency ex ists

— o ur case law implements the F ourth and F ourteenth A mendme n t ’s protection of vulnerable children a nd their parents. B ecause our decision today

reaffirms that critical principle, I concur.

Z O UHARY, D istrict J udg e, concurring and di s senting in part:

I c oncur in the p er curiam O pinion rega rding the
t imeliness of the appeal and the district court denial of the motion to sea l t h e summary judg ment opinion. B ut I respectfully dissent f

rom the majority view on the merits o f the case. I would affirm the district court o r d e r g ranting
summary judg ment based on qualified immunity

.

Constitutional Violations

A g overnment o fficial who removes a child from parental custody without judicial authoriz ation must have reasonable

cause to believe that the child is at risk of abuse during the time necessary to obtain a court o rder. Rogers v. Cty. of San Joaquin
, 487 F .3d 1288, 1 294–95 (9th Cir. 2007). Thus, whether an emerg ency removal is permitted depends on bothD E M A R E E V

. P E D E R S O

N 33

the amount of time required to o btain a warrant and the nature of the alleg a tions.

I n cases where children were n ot in immediate phy s i c al dang er and a warrant coul d b e o b tained “within hours,” this Court concluded that the ex ig ent circumstances requirement

was n o t m e t

. See Rogers
, 487 F .3d at 1295 (“There is no indication in the record that so short a delay could have resulted in a sig nificant worsening of the children’s phy sical conditions o r an increase in the prospects o f long

- t e r m harm.”); Mabe v. San Bernardino Cty.
, 237 F .3d 1 101, 1108 (9th Cir. 2001) (holding questions o f fact rem a i n e d on the issues of ex ig ent circumstances, g iven that the sex ual abuse last occurred more than a month before the removal, a nd a warrant likely cou l d have been obtained within “a few hours”).

I n this case, Pederson presented evi d e nce that obtaining

a court order would take her day s, not hou r s

. A s suming
, a s the majority sug g ests, that Pederson co uld have o btained a warrant o n a pre-hearing motion for pickup—wh i c h neither side arg ued before the district c o u r t—the earliest she could have be e n h eard was the T uesday following the L abor Day holiday

. A g a inst this time line, Pederson had to evaluate the following information:

• A W almart emplo y e e was concerned when he discovered photos of naked children on the Demarees’ memory stick, and he notified the police;

• Krause reviewed the p h otos, interviewed the parents, served a search warrant at the De m a rees’ r esidence, and seiz ed variousD E M A R E E V

. P E D E R S O

N 34

cameras, computers, fi lm, and other

photos;

• The children were interviewed a nd medically e x amined. D uring the forensic interview, one of the children r eported that their mother “tickle[ d] around her
pr i v ate.” The interviewer recommended tha t the children have no contact with thei r f a ther p ending completion of the investig ation; 1

• The phy sical ex a ms were all normal, but the assessment no t e d that “[ a] n ormal
g enital ex am does n ot preclude the possibility o f inappropriate sex ual contact [ sic] the concern described in the history

. Many ty pes o f s e x ual abuse do not have associated phy sical finding s sig nificant
enoug h to be found on medical ex am;”

• Krau se informed Pederson that at least five of the photos me t the statutory definition of sex u al ex ploitation of a minor, and he planned to charg e both parents with five felony counts o f sex ual

ex p loitation of a minor;

1 A s b o th th e m aj o rity

an d th e d istrict co u rt n o te, P ed erso n an d Van Ness d o n ot su g g est th ey relied o n th e resu lts of th e f o ren sic in terv iew in

m ak in g th e decisio n t o rem o v e th e ch ild ren

. N ev erth eless, t h e reco rd ref l ects th at P ed erso n

w as aw are o f

th i s in f o rm atio n at th e tim e.D E M A R E E V

. P E D E R S O

N 35

• Pederso n reviewed the edited black a nd white copies of the photos a nd determined that the c hildren were nu d e , w ith their
g enitals ex posed to the camera, and some of the imag es appeared posed.

Pederson later ex plained the sig nificance of her belief that the children (ag es five, four, and 19 mont h s ) a p p eared to be posed: “I would be very concerned if children were posing in provocative manners without c l o thing on themselves. That would c o n c e rn me as to what they ’ve observed in their

. . . home.”

At the time of the removal, then, Pederson knew that there

were “[ s] e rious alleg ations of a b use” ag ainst the Dema r e es, which she investig ated and cor ro b o rated by reviewing the photos, speaking with Shearer about the results o f the forensic interview a

nd medical ex ams, and conf e r r i ng with Krause about the potential criminal charg es. Rogers
, 487 F .3d at 1294. T hese circumstances “usually g ive rise to a ‘reasonable inference of imminent dang er sufficient to justify taking children into temporary custody ,’” if the children mig ht be at risk during the time required to obtain a removal order. Id.

The majority concludes, and I ag ree, that the only “articulated” risk to the children is that the parents would take

more sex ually ex plicit photos of them. This m a y n o t have been the only “articulable” ri s k
, in lig ht of the forensic interview report, but the record is c lear that Pederson summarily identified the “sex ually e x plicit pictures ” a s the basis for the emerg ency removal. She also prov i ded the parents with a notice informing them that they were under i n v e s t i g a t i o n f o r “ s e x u a l a b u s e

— c h i l d
pornog raphy

/ex ploitation.” N evertheless, viewing the fa c tsD E M A R E E V

. P E D E R S O

N 36

in the lig ht most f

a v o r a b l e to the Demarees, a jury could conclude tha t t h e children faced no immediate dang er o f abuse, and it was safe to leave them with their p a rents over the holiday weekend. A ccording ly
, that same jury could find that Pederson and Van Ness committ e d a constitutional violation by removing th e c hildren under non-ex ig ent circumstances without a court order. I therefore c oncur in this portion of the per curiam Opinion. B ut this is not the e nd of the inquiry

. Clearly Established Law

The s e c o n d prong of the qualified immunity analy sis is whether the rig ht a t issue was clearly established. I n determi ning whether a rig ht is clearly established, “[ w] e do

no t r e q u i r e a case directly on point.” Ashcroft v. al-Kidd
, 563 U.S. 731, 741 (2011). At the s a m e t ime, the Supreme Court h as “repeatedly told courts—and th e Ninth Circuit in particular—not to define clearly establ i shed law at a hig h level of g e nerality .” I

d. at 742 (citation omitted). Neither the parties nor the majority identify any c i r c uit precedent that addresses w hether a

n emerg ency removal is j u stified under circumstances like these, w h e r e the ty pe of abuse alleg ed is

sex ual ex p loitation, a

nd it w ould take a social worker at least several day s to obtain a removal order.

I disag r e e with the majority ’ s view o f Malik v. Arapahoe County Department of Social Services
, 191 F .3d 1306 (10th Cir. 1999). I n that case, the soci a l w o r k e r had a court order (albeit o ne based on “misrepresentation and omission”) to remove the child, and the defendants conceded there was no imminent dan ge r o f abuse. I d. at 1311–12. The court therefore d evoted little consideration to the questi o n o f

ex ig ency , see id. at 1315 n.5:D E M A R E E V

. P E D E R S O

N 37

Our c onclusion that d isputed f acts as viewed by the district court in the lig ht most favorable
to plaintiffs-appellees support a conclusion that defendants violated clearly established law by no means restricts the authority of law enforcement a

n d child pr o tective officers to seek pr otective custody of a child when they ha v e leg itimate concerns for the child’s safety

. Rather, our conclusi on hing es upon the district c ourt’s finding that “[ d] e fendants ack n o wledg ed J ulie w as in no imminent dang er at t h e t i me they soug ht the order a nd the facts sug g est i t was secured only throug h distortion, misrepresentation and omission.”

F urther, in Malik
, the phot o s at issue w ere f ive months old, an d t h e child’s u ncle, who took the photos, lived o ut o f
state. L aw enforcement officials had also been in contact with the child’s mother a

nd her attorney for about two weeks before seeking a temporary custody order, which supports the conclusion that they d id not consider the case an emerg ency

.

I n c ontrast, in this case, both parents li ved in the home and were subjects of a

n ong oing criminal investig ation. They admitted to r eg ularly taking nude photos of the children—in fact, A.J

. initially thoug ht K ra u s e wanted to question him about a dditional photos that were not included i n t h e set obtained f

r o m W almart. 2 CPS then became involved less than twenty -four hours after the photos were first d iscovered,

2 T h e m aj o rity seem s to su g g est t h at th ere w as n o f

u rth er risk of

ex p lo itatio n b ecau s e t

h e po l i c e s eized th e Dem arees’ p h oto g rap h y eq u ip m en t

. T h is f

act is n o t d eterm in ativ e. Ev en in 2 0 0 8
, cam eras co u ld b e easily , leg ally , an d in ex p en siv ely o b tain ed f ro m a v ariety o f v en d o rs.D E M A R E E V

. P E D E R S O

N 38

and Pederson, Van N e ss, and Krause all ag reed that
emerg ency r emoval w as appropriate under the circumstances.

Despite the absence of authority directly on point, the majority concludes that it was nevertheless “bey ond debate” in 2 008 that an emerg ency r emoval is only justified to protect

a child from “imminent phy sical injury or molestation,” a nd “[ t] he risk identified here simply does n ot meet that standard,

as i t d o es not involve p hy sical injury or abuse.” Per curiam Op. at 24–25. I

respectfully

disag r ee for two reasons.

Fi r s t, framing the issue in this way overlooks anoth e r well-established formulation of the standard, o n e which is quoted earlier in the Opinion: “Serious alleg a tions of abuse that have b een investig ated and corroborated usually g ive r ise
to a ‘reasonable inference of imminent dang er suffi cient to justify taking children into temporary c ustody ’

. . . .” R o gers , 487 F .3d at 1 294 (emphasis added) (q u o t i n g Ram v. Rubin
, 118 F .3d 1306, 1311 (9th Cir. 1997)). I n most cases, a serious alleg ation o f abuse may be sy nony mous with a risk o f phy sical injury

. Yet I do not interpret the majority to sug g e st that alleg a tions of sex u al ex plo itation or child pornog raphy are not “serious.”

Here, Pederson investig ated and c o r roborated a serious alleg ation of abuse. T r

ue, it d i d not necessarily involve traditional phy sical injury

. B ut the record reflects t h a t the
nature of the concern—sex uall y ex plicit photos—is not limited to snapping a picture. I n other word s , t he potential dang er was n o t t h a t the Demarees would take more naked pictures o f the g irls; rather, the risk was that the parents were

sex u a l l y ex ploiting their children. As Pederson ex plained, inherent in this alleg ation is the c o n cern that there is more to the situation than meets the ey e—for ex ample
, that theD E M A R E E V

. P E D E R S O

N 39

parents may have posed the children, or that the children may have adopted p rovocative p oses based on behavior observed in the home. W ithout the benefit of clearer g uidance d efining the “usual” case, a reasonable social worker could be unsure how to proceed under these circumstances.

Second, the majority treats the nature of the risk a n d the time required to obtain a wa r rant as entirely d istinct considerations. I do not consider th e m so easily separated. Ninth Circuit authority in this area rig htly focuses on whether the threat to a child’s saf e ty is sufficiently “imminent” to justify immediate removal, without wai t i ng for court approval. See, e.g.
, Kirkpatrick v. Cty. o f W ashoe
, 843 F .3d 784, 791 (9th Cir. 2016) (en b anc ) (“[ T] he social workers here lacked cause to f

org o a warrant if they had adequate time
to pursue one throug h the ordinary judicial process without

r i s king [ the child’s] well-being .”). This is because in t h e ty pical case, judicial review is available “within hours.” The analy sis therefore naturally focuses on whether the alleg ations of abuse are both severe a nd urg ent enoug h that it is unacceptable to allow the child to r emain in the home for even a short period of time.

This case is unique: no judicial review was available for
at least several day s. A n d t his fact is both critical and, perhaps, u nl i k e l y to be repeated. As the majority correctly notes, certain all e g a t ions of abuse or n eg lect mig ht lead a

re a s o n able social worker to f eel comfortable leaving a child in the custody of his paren t s f o r just a few hours. See, e.g. , Rogers
, 487 F .3d at 1291 (bottle rot and other chronic
neg lect); Mabe
, 237 F .3 d at 1104–05 (sex ual abuse only taking place at nig ht). B ut this Court h as not had o ccasion to consider w hether those sa m e a lleg ations mig ht be cause for

c o n c e rn if the delay were ex tended to a few d ay s. No o n eD E M A R E E V

. P E D E R S O

N 40

wants to inflict unne c e s s a ry trauma on children, see Concurring Op. of B e rz on, J
., at 31–32, but surely this worthy consideration must be balanced b y protecting their phy sical well-being in those cases w here it is actually threatened. All involved in the child welfare sy stem would be w ell served b y clear leg a l standards from this Court to assist social workers in making these difficult decisions.

Pederson faced a t o ug h judg ment c all o n that Saturday nig ht: she c o u l d err on the side o f caution and take the children into temporary custody
, or she could wait three day s until the courts reopened to seek a removal order. I n Aug ust 2008, it was clearly established that a child c o uld not be removed fr o m the home without a court order, absent evidence that the child was in imminent d ang er o f abuse. See Ki r k p a t r i c k
, 843 F .3d at 792 ( citing c ases). B ut it was not “bey ond debate that the confluence of factors set forth above would not support a finding of ex ig ency

. ” I d

. at 793. No Ninth Circuit a

uthority addresses wheth e r removing a child during an ong oing criminal investig ation “ c r o sse[ s] the line of reasonableness” when the courts are c l o s e d for several day s, and judicial review is simply not available. Id.

W ithout fair notice, I would hold that Pederson and Van N ess are entitled to qualified immunity for removing the children without a court order. I therefore respectfully dissent from this portion of the per curiam Opinion.D E M A R E E V

. P E D E R S O

N 41

N

. R

. SMI TH, Circuit J u dg e, dissenting on jurisdiction and t h e timeliness of the appeal. 1

The Plaintiffs failed to fil e their notice of appeal within
t h i r t y day s of the judg ment, thus we have no jurisdiction o r authority over this a

p peal. I n order to overcome this b a r r i er, the majority concludes that a “lodg ed” document has “ filed”
status , a l l owing the Plaintiffs more time to file the notice o f appeal. There is no support f o r that position. W e have no authority to hear this case.

The district court e n tered summary judg ment on April 23, 2014. F r om that date, the Demare e s ’ time to either file a notice of ap p eal (30 day s), F e d. R. App. P. 4(a)(1)(A), or a Rule 59 motion (28 day s), F ed. R. Civ. P. 59(e), beg an to r un.

F irst, because a notice o f appeal was not f iled by May 23, 2014 (it was a ctually filed o n J une 23, 2014), this court does
not have jurisdiction. 28 U.S.C. § 2107(a). “[ T ] h e t aking o f

a n a p p eal within the prescribed time is ‘mandatory a nd jurisdictional.’” B owles v

. Russell
, 551 U.S. 205, 209 (2007) (quoting G r i

g g s v. Provident Consumer Discount Co.
, 459 U.S. 5 6, 61 (1982) (per curiam)). There is no dispute the Demarees did not file a timely notice of appeal.

1 I ag ree w i th th e Maj ority th at Ha mer v. Neig h b o rh o od Ho u sin g S ervices o f Ch i ca g o , 1 3 8 S

. Ct. 1 3 (2 0 1 7 ), clearly articu l ated th e d if f eren ce b etw een j u risd ictio n al ru les (th o se g ro u n d ed in th e Un ited States C o de) an d “m an d ato ry claim

- p ro cessin g ru les” w h ich “ m u st b e

en f o rced ,” b u

t , n ev erth eless, m ay also b e w aiv ed o r f o rf eited
, an d th at th e

ru le p rim arily at q u estio n in th is case (Ru l e 4 (a)(4 ) an d th e ef f ect o f th e to llin g m o tio n s listed th erein ) is a “ m an d ato ry claim

- p ro cessin g ru le” an d

n o t a j u risd ictio n al ru le. Id

. at 1 7.D E M A R E E V

. P E D E R S O

N 42

Second, because the Rule 59 motion was not f iled b y May 21, 2014, there is no tolling of the time to file a n o tice o f appeal under Rule 4(a)(4)(A). I n s tead, the Demarees filed a motion to seal on May 2 1
, 2 014 and lodg ed their Rule 59 motion the same day
, allowing themselves the option n o t to file it in the future. B e y o nd the ex ceptions contained in Appellate Rule 4 (in this case the filing of a Rule 59 motion), “[ w] e do n ot have a

uthor i t y

. . . to create additional

ex c e ptions based o n our own sense of what is e quitable o r fair.” Melendres v. Maricopa C t y

. , 815 F .3d 645, 649 (9th Cir. 2016). Our court is, quite simply
, not “at liberty to overlook a defect with the notice of appeal[ ,] no matter how compelling an appellant’s arg ument may be.” Id. “I f properly invoked, mandatory claim-processing rules must be enforced
, but they may be waived or forfeited.” Hamer
, 138 S. Ct. at 17 (emphasis added). 2 Therefore, neither the fact that it may be

a sy mpa t h e t ic situation, nor the f act that the district court addressed the merits of a lodg ed motion, are ex ceptions we

can invoke to create authority to hear a case w h e re there is

none. The notice of appeal was not f iled on time because the underly ing Rule 59 motion was never actually filed with the district court.

T h e m a jority errs in its effort to remedy the situatio n , because there is a funda m e ntal difference between a “ filed” document and a “lodg ed” document; a “lodg ed” document is
not before the court for co n s i d e ration. “A document not suitable for filing will normally be stamped ‘l o d ge d ’ a nd placed in the court file but n o t i n cluded in the record on appeal.” File
, Black’s Law Dictionary (10th ed. 2 014). A s

2 T here is n o q u estio n th e Def en d an ts d id n o t w aiv e o r f o rf eit th is
arg u m en t: “ T h e Dem arees f iled a tim ely

No tice o f A

p peal (ER 1 9 ) as to p o stj u d g m en t o rd ers (ER 1 ,3 ), b u t n o t as to th e J u d g m en t (ER 4 ).”D E M A R E E V

. P E D E R S O

N 43

such, authority over this appeal is precluded by operation o f law.

W e have previously a d dres s ed w hether “lodg ed” filing s

are b efore the court and considered “filed” for purposes o f litig ation. The short a

nswer is no. I n Nicholson v. Hyannis Air Serv., I nc. , 580 F. 3 d 1116 ( 9th Cir. 2009), the p laintiff h ad moved to file a sur-reply (which h ad a c ru c i a l em ploy ee handbook as an ex hibit) with the dist r i c t c o u rt. I d

. at 1127 n.5. The sur-reply w as c onsidered “lodg ed” while the district
court considered the motion to file the sur-r ep l y

. Id. Ultimately the district court d enied the motion to file the surr e p l y a nd, on appeal, we held that a merely “lodge d ” document is n o t part of the record for appeal. I d. ; see also Barcamerica Int’l USA T r u s t v. Tyfield Importers, Inc.
, 289 F .3d 589, 595 (9th Cir. 2002) (holding that while
arg uments that lodg ed d ocuments were before the court were “interesting ,” they w ere nonetheless meritless because a lodg ed document was not filed); Levald, Inc. v. City o f Palm Desert
, 9 98 F .2d 680, 684 n .1 (9th Cir. 1993) (holding an amended c o m plaint was n ot part of the record on appeal because it was “lodg ed w ith, b ut n o t a c cepted for filing by
, the district court”). Thes e cases are on point and ex plicitly resolve whether a “lodg ed” document is considered “filed.” 3 The Demarees did not “file” the motion for reconsideration.

3 T h e Maj o rity m isch aracterizes t h ese cases, su g g estin g th ey are in ap p licab le b ecau se th e q u estio n b ef o re th e p an el is tim elin ess, n o t a q u estio n o f th e ev id en tia ry reco rd o n ap p eal. In d eed
, b y th e sam e

reaso n i n g , th e Maj o rity ’ s cases are in ap p l icab l e b e c a u s e th ey in v o lv e

co m plain t s o r a dm i n istrativ e ap p eals, n o t Ru le 5 9 m o t io n s. T h e pro per q u estio n is w

h eth er a g iv en d o cu m en t w as p ro perly b ef o re th e co u rt or

n o t ; i.e., w

h eth er it w as “ f

iled ” o r “ lo d g ed .” In th is reg ard
, N ich o lso n , Ba rca merica
, an d Leva ld are o n p o in t, b ecau se th ey an sw er w h eth er a

“ l o dg ed ” d o cu m en t is “ f

i led ”: th e p recise q u estio n b ef o re th e p an el.D E M A R E E V

. P E D E R S O

N 44

I t was lodg ed while awaiting a ruling o n t h e m otion to file under seal. After denial, the motion was considered to never have b een filed, and, t h u s , i t d id not toll the time to file a notice of appeal per Appellate Rule 4(a)(4)(A).

The cas e s , cited by the Majority

, also reflect this understanding . Those cases each demonstrate that a p laintiff (affirmatively seeking to actually publicly file a document) is
not barred from filing due to either technical difficulties or a filing fee waiver request. I n Klemm v. A strue , 543 F .3d 1139 (9th Cir. 2008), a

nd Ordonez v. Johnson
, 254 F

. 3 d 814 (9th Cir. 2001), the plaintiffs sought to file the complaint o r administrative appeal, but were b arred by technical rules
reg arding how to file. K

lemm
, 543 F .3d at 1143 (“Thus, a notice of a

ppeal is f iled when it is r eceived by the c l e r k, notwithstanding deficiencies in form that violate local rules.” (emphasis added)); Ordonez
, 254 F .3d a t 8 16 (holding that
paper fili n g, i n stead of e lectronic filing per the local rule,
meant the complaint was “constructively filed”). Similarly
, the p laintiff in Escobedo v. Applebees
, 7 8 7 F .3d 1226 (9th Cir. 2015), soug ht to actually file her c o m p laint; the filing barrier was her r equest to f ile with o u t p ay ing the filing fee. Id. at 1231–33 (“No justification ex ists to alter the definition of ‘filing ’ simply because a c ompl a int is submitted to the clerk’s office al o ng w ith an I F P a pplication.”). Unlike this
case, the plaintiffs in Klemm
, O rdonez
, and Escobedo did not “lodg e” their complaints or motions while awaiting filing or

a ruling

. F u rther, the plaintiffs in t h o s e c ases each soug h t to file their c omplaint as is
, n o t under seal, or if the motion to seal was denied, revised so as to protect the information they initially soug h t to place under seal.

Here, the Demarees un d e r s tood that the motion was not actually b e fore the court. The Ariz ona District Court’s localD E M A R E E V

. P E D E R S O

N 45

rules (AZ L R) specifically require a movant seeking to file a document under seal to file the motion to file under seal and “[ t] he d ocument or documents that are the subject of any such motion or stipulation must not be appended to the motion or stipulation, and must be lodged with the Court separately

. ” AZ L R 5.6( b ) (emphasis added). The consequences of the
court deny ing a request to file under seal are ex plicit: “[ i] f a request to file under seal is denied in pa r t or in full, the lodg ed document will not be filed.” A Z L R 5.6(c) (emphasis added). F urther, if the c ourt does deny a request to f ile under seal, the party has f

ive day s to file the motion p u b l i c l y

. AZ L R 5 .6(e). There can be no question the D emarees knew their document was not filed.

B y seeking to file u nder seal, it is obvious that the Demarees did not want the motion p ublicly f iled. After the District Court rejected the Plaintiffs’ m otion, it was the Plaintiffs ’ d e cision to (1) file publicly ; (2) revise and file publicly ; or (3) not file the motion. I t w a s t h e Demarees’ decision and the local rule respects that rig ht.

To accord the Plaintiffs “an out,” the Ma j o r i ty arg ues it has authority o ver this case by g iving credence to the fact that the d istrict c o urt c omments on the merits of the lodg ed motion in its denial o f the Demarees’ motion to seal. I n response, the Majority

, first, c ites n o actual leg al authority for this arg u ment, because there is none. Second, althoug h the district court discusses the merits of the lodg ed mo t i o n , the ultimate ruling is that the “ M o t i o n s to Seal (Doc. 363 a nd 370) are DENIED

. ” 4 Third, the Rule 59 motion w as n ever

4 Do cu m en t 3 6 3 w as a m o t io n t o file u n d er seal to s u p p lem en t th e

reco rd in su

p p o rt o f th eir R

u l e 5 9 m o t i o n a n d D o cu m en t 3 70 w as th e

m o tio n to f ile th e Ru le 5 9 m o tio n

u n d er seal.D E M A R E E V

. P E D E R S O

N 46

actually before the district c ourt in order for it to consider the motion. The local r

ule required that the lodg ed motion “must
not be appended to the motion [ to seal] .” A Z L R 5.6(b) (emphasis added). A ccording ly , the district court could only consider the merits of on l y t h e motion to seal because that

was the o n ly document b efore it. I ndeed, the lodg ed document, in essence, d isa p p e a r s if the motion to seal is denied: “[ i] f a request to file under seal is denied in part or in full, the lodg e d document will not b e filed .” AZ L R 5

. 6(e) (emphasis added). Althoug h, g enerally
, “[ a] paper is filed b y delivering it: ( A) to the clerk,” F ed. R. Civ. P. 5(d)(2)(A), the Demaree s d i d not “deliver[ ] ” the Rule 59 motion “to the clerk” to file it

. Id

. By lodg ing the d ocument, the Demarees

ex p licitly s tated they wanted it to remain un filed until the district court g rante d the motion to seal. After the district
court denied their motion to seal, the Demarees had five day s to file t h e i r document publicly
, which they did not do. 5 AZ L R 5.6(e). Thus, the document was never before the district

Fu rth er, th e Dem arees h av e n o t ap p ealed th e d istrict co u rt’ s d en ial of th eir m o tio n s to seal arg u in g th e d istrict co u rt ab u sed its d i scretio n b y n o t

co n sid erin g th e m erits o f th e sealin g , b u t rath er to d en y t

h e m o t i o n to seal b ased o n th e m e rits o f th e lo d g ed R u le 5 9 m o tio n

. T h is i s su e, th u s, is

w aiv ed o n ap p eal. S

mith v. Ma rsh
, 1 9 4 F.3 d 1 04 5
, 1 0 52 (9 th C ir. 19 9 9) (“ [O] n a p p e a l
, arg u m en ts n o t raised b y a p arty in its o p en in g b rief are d eem ed w aiv ed .”).

5 If th e Dem arees h ad f

iled th eir Ru le 5 9 m otio n pu b licly w i th in f

iv e d ay s af ter th e d istrict co u rt en tered its d en i al, th ey w o u ld h av e a m u ch
stro n g er arg u m en t th at th eir situ atio n w as ak in to th e p lain tif f in Esco b ed

o , w h ere th e d istrict co u rt g av e th e p lain tif f th irty d ay s to p ay

h er f ilin g f ee af ter d en y in g h er m o tio n t o p ro ceed w ith o u t p ay in g it. Esco b ed

o , 7 8 7 F.3 d
at 1 2 2 8

. Esco b ed o p aid th e f ilin g f ee w i th i n th e d ead lin e set b y th e d istrict

co u rt an d
, o n ap p eal, th is co u rt h eld th e f ilin g w as tim ely

. Id

. at 1 2 3 3

– 3 4

. T h is, h o w ev er, is n o t w

h at th e Dem arees d id

.D E M A R E E V

. P E D E R S O

N 47

court to consider, much less somehow confer authority o n this court by considering the merits of a lodg ed motion.

According ly
, this case i s n o t properly before us for lack of jurisdiction and timely filing of a tolling motion.