*The Clerk of Court is directed to amend the official caption in accordance with the foregoing. 07-4449-cv (L) Southerland v. City of New York UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 August Term, 2008 3 (Argued: April 21, 2009 Decided: June 10, 2011 4 As Amended: May 14, 2012) 5 Docket Nos. 07-4449-cv (L), 07-4450-cv (CON) 6

------------------------------------- 7 SONNY B. SOUTHERLAND, SR., individually and as parent and natural 8 guardian of VENUS SOUTHERLAND, SONNY B. SOUTHERLAND, JR., 9 NATHANIEL SOUTHERLAND, EMMANUEL FELIX, KIAM FELIX, and ELIZABETH 10 FELIX, 11 Plaintiffs-Appellants , 12

- v - 13 CITY OF NEW YORK, TIMOTHY WOO, JOHN DOES 1-9, 14 Defendants-Appellees

. * 15

------------------------------------- 16 Before: KEARSE, SACK, and HALL, Circuit Judges

. 17 18 Consolidated appeals from a summary judgment entered by 19 the United States District Court for the Eastern District of New 20 York (Charles P. Sifton, Judge ) in favor of, inter alios , the 21 defendant Timothy Woo. The plaintiffs -- a father and his 22 children -- bring various claims under 42 U.S.C. § 1983 asserting 23 that Woo, a children's services caseworker employed by the 24 defendant City of New York, entered their home unlawfully and 25 effected an unconstitutional removal of the children into state 262 custody. The district court concluded that Woo was entitled to 1 qualified immunity with respect to all of the claims against him. 2 Thegrant of summary judgment is affirmed with respect to the 3 father's substantive due process claim, but vacated and remanded 4 with respect to the father's and children's Fourth Amendment 5 unlawful-search and Fourteenth Amendment procedural due process 6 claims, and the children's Fourth Amendment unlawful-seizure 7 claim. 8 As amended, affirmed in part; vacated and remanded in 9 part. 10
11 MICHAEL G. O'NEILL, New York, N.Y., for 12 Plaintiffs-AppellantsVenus S., Sonny 13 B.S. Jr., Nathaniel S., Emmanuel F., 14 Kiam F., and Elizabeth F. 15 16 SONNY B. SOUTHERLAND, Brooklyn, N.Y., 17 Plaintiff-Appellant , pro se . 18 JULIAN L. KALKSTEIN, City of New York 19 (Michael A. Cardozo, Corporation 20 Counsel; Larry A. Sonnenshein, of 21 counsel), New York, N.Y., for 22 Defendants-Appellees

. 23 24 SACK, Circuit Judge : 25 This lawsuit involves a man and a woman -- the 26 plaintiff Sonny B. Southerland Sr. ("Southerland") and non-party 27 Diane Manning -- two groups of children, and a caseworker's 28 apparent confusion between the two groups. Plaintiff Ciara 29 Manning is the daughter of Southerland and Diane Manning. Ciara 303 was supposed to be living with Southerland at the time in 1 question, but in fact had left to live with a friend, and had not 2 resided in Southerland's home for at least a year. 3 In addition to Ciara, plaintiff Southerland fathered, 4 by one or more women other than Diane Manning, six other 5 children: the plaintiffs Venus Southerland, Sonny B. Southerland 6 Jr., Nathaniel Southerland, Emmanuel Felix, Kiam Felix, and 7 Elizabeth Felix (together, the "Southerland Children"). At the 8 time of the principal events in question, the Southerland 9 Children, unlike Ciara, were living with their father. 10 Diane Manning also allegedly bore, by one or more men 11 other than Southerland, six children other than Ciara: Eric 12 Anderson, Richy Anderson, Felicia Anderson, Erica Anderson, 13 Michael Manning, and Miracle Manning (together, the "Manning 14 Children"). They lived with Diane and, like her, are not parties 15 to this lawsuit. 16 In May 1997, the defendant Timothy Woo, a caseworker in 17 the Brooklyn Field Office of the New York City Administration for 18 Children's Services ("ACS"), was assigned to investigate a report 19 by a school counselor about then-sixteen-year-old Ciara Manning. 20 School staff had thought Ciara to be acting strangely. 21 After being unable, despite repeated attempts, to gain 22 entry to the Southerland home to investigate the report, Woo 23 sought and obtained from the Kings County Family Court an order 241We refer throughout this opinion to asserted Fourth Amendment rights of the plaintiffs. Inasmuch as the defendants are state and not federal actors, of course, whatever rights the plaintiffs have are "under the Fourth Amendment, as applied to the States under the Fourteenth Amendment['s]" Due Process Clause. Kia P. v. McIntyre , 235 F.3d 749, 761 (2d Cir. 2000); seeMapp v. Ohio , 367 U.S. 643, 655 (1961).
4 authorizing entry into the apartment. Woo's application to 1 obtain that order contained several misstatements of fact, which 2 suggested Woo's possible confusion about which of the children 3 resided with Southerland. 4 Under the authority of the Family Court's order, Woo 5 then entered the Southerland apartment. Ciara was not there; 6 some of Southerland's other children who lived with him, the 7 Southerland Children, were . Based on what Woo perceived to be 8 the poor condition of the home and of the Southerland Children, 9 and based upon his other observations from the investigation 10 undertaken to that date, Woo and his supervisor decided to carry 11 out an immediate removal of the children into ACS custody. 12 Southerland and the Southerland Children brought this 13 action based on Woo's entry into the apartment and removal of the 14 children. They claim that Woo violated their Fourth Amendment 1 15 rights to be free from unreasonable searches of their home, and 16 that the manner in which the Southerland Children were removed 17 violated their procedural due process rights under the Fourteenth 18 Amendment. Southerland also claims that the removal of the 19 Southerland Children from his home violated his substantive due 202Judge Sifton passed away while these appeals were pending.
5 process rights under the Fourteenth Amendment. Finally, the 1 Southerland Children claim that their removal violated their 2 Fourth Amendment rights to be free from unreasonable seizure. 3 The district court (Charles P. Sifton, Judge ) 2 4 concluded, inter alia , that Woo was entitled to qualified 5 immunity with respect to all of the claims against him and 6 granted summary judgment in his favor. We agree with respect to 7 Southerland's substantive due process claim. We disagree, 8 however, as to Southerland's and the Southerland Children's 9 Fourth Amendment unlawful-search claims, Southerland's and the 10 Southerland Children's procedural due process claims, and the 11 Southerland Children's Fourth Amendment unlawful-seizure claim. 12 To that extent, we vacate the district court's judgment and 13 remand for further proceedings. 14
BACKGROUND 15 The relevant facts are rehearsed in detail in the 16 district court's opinion. SeeSoutherland v. City of N.Y. , 521 17 F. Supp. 2d 218 (E.D.N.Y. 2007) ("Southerland II "). They are set 18 forth here only insofar as we think it necessary for the reader 19 to understand our resolution of these appeals. Where the facts 20 are disputed, we construe the evidence in the light most 21 favorable to the plaintiffs, who are the nonmoving parties. See, 22

e.g. , SCR Joint Venture L.P. v. Warshawsky , 559 F.3d 133, 137 (2d 236 Cir. 2009). We also draw all reasonable factual inferences in 1 the plaintiffs' favor. See, e.g. , id. 2 The ACS Investigation 3 On May 29, 1997, a school guidance counselor reported 4 to the New York State Central Registry Child Abuse Hotline that 5 one of the school's students, Ciara Manning, the then-sixteen6 year-old daughter of Diane Manning and plaintiff Southerland, was 7 "emotionally unstable." The counselor further reported: 8 Fa[ther] fails to follow through w[ith] 9 mental health referrals. On 5/12/97 the 10 ch[ild] swallowed a can of paint. F[ather] 11 failed to take the ch[ild] for medical 12 attention. Fa[ther] is unable to control or 13 supervise the ch[ild]. She may be staying 14 out of the home in an i[m]proper 15 enviro[n]ment. 16 Intake Report at 3, Office of Children and Family Services, Child 17 Protective Services, May 29, 1997 ("Intake Report"), Ex. A to the 18 Declaration of Janice Casey Silverberg (Dkt. No. 168) 19 ("Silverberg Decl."), Southerland v. City of N.Y. , No. 99-cv-3329 20 (E.D.N.Y. Sept. 18, 2006). The Intake Report was transmitted to 21 the Brooklyn Field Office of the ACS. There, Fritz Balan, a 22 supervisor, assigned the case to defendant Timothy Woo, an ACS 23 caseworker, for investigation. Woo, who was required by New York 24 law to begin his investigation within 24 hours, did so that day. 25 He first examined the files of a case pending in that 26 ACS office regarding Ciara's mother, Diane Manning. Material in 27 those files disclosed that Ciara had several younger half- 287 siblings: the Manning Children. According to Woo, this material 1 also indicated that Ciara was reported to be living with her 2 father, Southerland, at a Brooklyn address, although plaintiffs 3 correctly note the absence of any further evidence as to the 4 source of that information or the time it was received. It is 5 not clear from the record whether Woo was aware that the children 6 referenced in Diane Manning's case file were not related to 7 Southerland and that they did not live with him. SeeSoutherland 8

II , 521 F. Supp. 2d at 222, 224 & n.8. 9 Woo also contacted the school guidance counselor who 10 had called the child-abuse hotline. According to Woo, the 11 counselor told him that while at school, Ciara had swallowed non12 toxic paint, expressed thoughts of suicide, and was generally 13 behaving aggressively and "acting out." Declaration of Timothy 14 Woo ¶ 6 (Dkt. No. 169) ("Woo Decl."), Southerland v. City of 15

N.Y. , No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). Woo's 16 handwritten notes from the conversation indicate that the 17 counselor told Woo that Ciara was having "problems trying to get 18 [her] fa[ther's] attention" and that her "father doesn't approve 19 of the place [where she] is staying." Notes of Timothy Woo at 1 20 ("Counselor Phone Call Notes"), Ex. A to the Declaration of 21 Michael G. O'Neill(Dkt. No. 182) ("O'Neill Decl."), Southerland 22 v. City of N.Y. , No. 99-cv-3329 (E.D.N.Y. Dec. 29, 2006). It is 23 disputed whether the counselor also told Woo that Southerland had 248 been unresponsive to the school's stated concerns about Ciara's 1 behavior. 2 Later the same day, May 29, 1997, Woo attempted to 3 visit Southerland's apartment in Brooklyn. Woo testified that he 4 thought Ciara was residing at that apartment because an open case 5 file on Ciara's mother indicated that Ciara lived with her 6 father. Woo Decl. ¶¶ 5,7. However, as discussed above, Woo's 7 conversation with the counselor earlier in the day suggested that 8 Ciara was not living with her father. When no one answered the 9 door at Southerland's home, Woo left a note containing his 10 contact information. 11 The following day, May 30, Southerland telephoned Woo. 12 During the course of their conversation, Southerland described 13 Ciara as a runaway who would not obey him. Southerland suggested 14 that he visit the ACS office to discuss the matter with Woo 15 further. The plaintiffs dispute Woo's assertion that during the 16 phone conversation, Southerland indicated that he would not 17 permit Woo to visit Southerland's apartment. Southerland 18 contends that, although he did question why Woo needed to visit 19 the apartment since Ciara did not live there, Southerland 20 nonetheless indicated that he would be willing to make an 21 appointment for Woo to conduct a home visit if Woo insisted. 22 Southerland visited the ACS office and met with Woo 23 later that day. According to Southerland's deposition testimony, 243Under New York law, a parent may initiate a proceeding to adjudicate a child as a "person in need of supervision" when that parent alleges that he or she cannot control the child and needs the state's assistance. Such proceedings are governed by Article 7 of the New York Family Court Act. SeeN.Y. Fam. Ct. Act § 711 et seq.

4Southerland later testified that the school contacted him with a medical referral after the paint-swallowing incident, and that he had tried to get Ciara to go to the appointment that was scheduled for her, but that she refused to go.
9 he told Woo that Ciara had run away and that he had obtained 1 several "Persons in Need of Supervision" ("PINS") warrants 2 against her. 3Woo's case notes indicate that Woo asked 3 Southerland why he had not sought medical attention for Ciara 4 after the paint-swallowing incident. Southerland did not answer 5 the question. 4SeeProgress Notes of T. Woo at 1 ("Progress 6 Notes"), Ex. B to O'Neill Decl. 7 Southerland told Woo that Ciara did not need 8 psychiatric help, and that she "was only acting the way she did 9 to get attention." Woo Decl. ¶ 10; see alsoDeclaration of Fritz 10 Balan ¶ 7 (Dkt. No. 170) ("Balan Decl."), Southerland v. City of 11

N.Y. , No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). According to 12 Woo, Woo explained to Southerland that various services were 13 available through ACS to assist him and his children, including 14 counseling and help with obtaining food, furniture, and clothing. 15 Woo said Southerland declined. According to Southerland's 16 deposition testimony, however, no such assistance was ever 17 offered. 1810 When Woo said he would need to make a home visit, 1 Southerland replied that it would be "no problem" as long as he 2 was notified in advance. Southerland II , 521 F. Supp. 2d at 223; 3 see alsoDeposition of Sonny B. Southerland at 207 ("Southerland 4 Dep."), Ex. F to O'Neill Decl. Southerland asserts that Woo 5 stated he would call him to arrange the visit, but that Woo never 6 made such a call. 7 On June 2, 1997, Woo made a second attempt to examine 8 the Southerland apartment. A woman whose identity was unknown to 9 Woo answered the door. She said that Southerland was not at 10 home. Woo left. 11 The following day, June 3, Woo again went to the 12 apartment. He heard noises inside, but no one answered the door. 13 Again, he left. 14 The next day, June 4, Woo went to the apartment for a 15 fourth time. He waited in the hallway for several minutes. 16 Southerland emerged accompanied by five school-aged children: 17 Sonny Jr., Venus, Emmanuel, Nathaniel, and Kiam. Woo wrote down 18 their names in his case notes. Southerland told Woo that he did 19 not have time to talk because he was taking the children to 20 school. Woo gave Southerland an ACS business card and told him 21 that if he continued to be uncooperative, ACS would seek court 22 action. SeeSoutherland II , 521 F. Supp. 2d at 223-24 & n.6; see 23 alsoProgress Notes at 2. 245Woo listed the names and dates of birth of Ciara and the Manning Children at the top of the application, along with Southerland's name and the address of the Southerland apartment. The body of the application states in its entirety: I, Timothy Woo, Caseworker for ACS, am a person conducting a child protective investigation pursuant to the Social Services Law. I have reasonable cause to believe that the above named children may be found at the above premises. I have reason to believe that the children are abused or neglected children. The reasons and the sources of information are as follows: That on May 12, 1997, Sierra [sic] Manning, age 16 tried to kill herself by swallowing non-toxic paint.
11 The Removal of the Southerland Children 1 On June 6, 1997, at the direction of supervisor Balan, 2 Woo applied to the Kings County Family Court for an order to 3 enter the Southerland apartment pursuant to section 1034(2) of 4 the New York Family Court Act. It is ACS policy to investigate 5 not only the status of the child named in a report of suspected 6 abuse or neglect of the type referred to in section 1034(2), but 7 also to ascertain the condition of any other children residing in 8 the same home. Woo listed Ciara on the application. Instead of 9 including the names of the children he had met leaving 10 Southerland's home on June 4, however, he listed the other 11 children of Ciara's mother Diane -- the Manning Children: Eric 12 Anderson, Richy Anderson, Felicia Anderson, Michael Manning, 13 Miracle Manning, and Erica Anderson -- whose names he apparently 14 had obtained from the Diane Manning case files he had reviewed at 15 ACS's Brooklyn Field Office. 5The Family Court issued an "Order 16Mr. Sutherland [sic] did not take Sierra [sic] to a medical doctor and refused to take Sierra [sic] for psychiatric evaluation. Mr. Sutherland [sic] has refused to allow the Administration for Children's Services into his home to speak to the above named children. WHEREFORE, the applicant moves for an order authorizing the Administration for Children's Services accompanied by police to enter the premises to determine whether the above named children are present and to proceed thereafter with its child protective investigation. Application for Authorization to Enter Premises dated June 6, 1997, Ex. C to Silverberg Decl.
12 Authorizing Entry" into the Southerland apartment the same day, 1 June 6. See Southerland II , 521 F. Supp. 2d at 224. 2 Three days later, on the evening of June 9, 1997, 3 pursuant to the Order Authorizing Entry, Woo and at least one 4 other caseworker entered the Southerland apartment with the 5 assistance of officers from the New York City Police Department. 6 Southerland and the Southerland Children were inside the 7 apartment. Woo Decl. ¶¶ 13-15, 19. The district court described 8 what happened next, from Woo's perspective: 9 Woo determined that there were six children 10 between the ages of three and nine residing 11 in the apartment. He listed their names 12 [correctly] as Venus, Sonny Jr., Nathaniel, 13 Emmanuel, Kiam, and Elizabeth Felix. Soon 14 after beginning his evaluation of the home, 15 Woo called his supervisor [Balan] on his cell 16 phone, described his observations, and 17 answered his supervisor's questions. Woo 18 reported that the four boys slept on the 19 floor in one bedroom and the two girls slept 20 on a cot in another bedroom. The children 216The district court summarized Woo's and Balan's stated reasons for removing the Southerland Children as including: that Ciara had attempted suicide; that Southerland had failed to seek medical assistance for Ciara or for Venus; that he had resisted allowing ACS to visit his home; that he had refused to accept ACS services or assistance; that the home lacked food and adequate light; that the use of multiple extension cords for the electronic equipment was dangerous; and that the children were dirty. This combination of factors, according to Woo and Balan, "established in [their] minds that Southerland could not parent the children responsibly." Southerland II , 521 F. Supp. 2d at 225.
13 appeared as though they had not been bathed 1 in days and their clothing was malodorous. 2 In the refrigerator, Woo found only beer, a 3 fruit drink, and English muffins. Woo did 4 not examine the contents of the kitchen 5 cupboards. The other caseworker observed 6 that one child, Venus, was limping because of 7 a foot injury. The child stated that she had 8 stepped on a nail. The caseworker concluded 9 that Southerland had not sought medical 10 attention for her. Woo reported that the 11 only light source in the bedroom area was 12 from a blank television screen. Woo observed 13 an electric lamp on the floor, without a 14 shade, connected to an outlet in the living 15 room by means of several extension cords 16 along the floor. Woo reported that another 17 room contained stacks of electronic 18 equipment. Woo and his supervisor concluded 19 that the children's safety was threatened, 20 and Balan directed Woo to remove the children 21 from the home. 22 Southerland II , 521 F. Supp. 2d at 224-25 (footnotes omitted). 6 23 As the district court also observed, the plaintiffs -- 24 relying primarily on later deposition testimony by Southerland -- 25 offer a starkly different description of the conditions in the 26 Southerland home at the time. According to Southerland's 27 testimony, the apartment did not lack proper bedding; the boys 287After the Southerland Children's removal, Woo brought Venus "to a hospital based on the instructions of a nurse at the agency that first examined the children. At the hospital, the wound was dressed and the child received a tetanus shot." Southerland II , 521 F. Supp. 2d at 225 n.13.
14 had a bunk bed in their room, although they preferred to sleep on 1 yellow foam sleeping pads on the floor. Id. at 225 n.10. The 2 children were not dirty; Southerland testified that he laundered 3 the children's clothing about once a week and bathed the children 4 daily. Id. at 225 n.11. There was food in the refrigerator, and 5 it is also a reasonable inference from Southerland's testimony 6 that there was food in the cupboards (which Woo did not examine), 7 because Southerland testified that groceries for the household 8 were purchased on a regular basis. Id. at 225 n.12. The 9 household did not lack adequate lighting; Southerland testified 10 that he had a lamp plugged into a wall in each room, id. at 225 11 n.14, and that there were no extension cords running from room to 12 room. Finally, although Southerland does not dispute that Venus 13 had a foot injury, the plaintiffs stress Woo's concession that he 14 did not personally observe the injury during his assessment of 15 the home. 7Id. at 225 n.13. 16 In the early morning hours of June 10, 1997, at Balan's 17 direction, Woo removed the Southerland Children from the 18 Southerland home. Woo took them to the ACS pre-placement 19 emergency shelter and arranged for emergency foster care. Id. at 20 226. 218On March 14, 2007, Southerland made a pro sesubmission to the district court requesting that the court take judicial notice of a number of documents, including a declaration by Ciara Manning that had been sworn on April 20, 2002. In that declaration, Ciara stated that Southerland had never molested or abused her in any way and that the statements she made previously to Woo and to the Family Court to that effect were false. See Pro SeSubmission of Sonny B. Southerland at 26-27 (Dkt. No. 192), Southerland v. City of N.Y. , No. 99-cv-3329 (E.D.N.Y. Mar. 14, 2007).
15 At some point -- it is not clear from the record 1 exactly when -- Woo interviewed Ciara Manning, whom he had found 2 living at the home of her friend. Ciara told Woo that her father 3 had sexually abused her and threatened to kill her if she told 4 anyone about the abuse -- allegations she later recanted. 8The 5 Southerland Children also complained of various kinds of abuse 6 and mistreatment at the hands of Southerland and his companion, 7 Vendetta Jones. The allegations concerning the sexual abuse of 8 Ciara were included in a verified petition filed by ACS with the 9 Family Court on June 13, 1997, and that petition was amended on 10 June 27, 1997, to add allegations concerning corporal punishment 11 of the Southerland Children. The petitions commenced child12 protective proceedings under Article 10 of the New York Family 13 Court Act, §§ 1011 et seq. , through which ACS sought to have the 14 Southerland Children adjudicated as abused, neglected, or both. 15 On July 1, 1998, more than a year after the children 16 were removed from the Southerland home, the Kings County Family 17 Court concluded following a five-day fact-finding hearing that 1816 Southerland had engaged in excessive corporal punishment of the 1 Southerland Children and that he had abused and neglected them. 2 The court also concluded that he had sexually abused his daughter 3 Ciara. The court ordered that the Southerland Children remain in 4 foster care, where they had resided since the June 1997 removal. 5 The New York Appellate Division, Second Department, affirmed 6 these orders, In re Ciara M. , 273 A.D.2d 312, 708 N.Y.S.2d 717 7 (2d Dep't 2000), and the New York Court of Appeals denied leave 8 to appeal, 95 N.Y.2d 767, 740 N.E.2d 653, 717 N.Y.S.2d 547 9 (2000). 10 In March 2004, nearly seven years after their removal 11 from the Southerland home, Sonny Jr. and Venus were permitted to 12 return to live with Southerland. Some seven months thereafter, 13 Nathaniel and Emmanuel were discharged from the juvenile justice 14 system by the Office of Children and Family Services and also 15 returned to the Southerland home. There is nothing in the record 16 to suggest that Kiam or Elizabeth ever returned to live with 17 Southerland. 18 However strongly the facts of mistreatment found by the 19 Family Court at trial in July 1998 may support Woo's perceptions 20 about the dangers to the Southerland Children of their remaining 21 with Southerland, virtually none of this information was in Woo's 22 possession when he effected the June 9, 1997, entry and removal, 23 as the district court correctly observed. SeeSoutherland II , 249It appears to be an unresolved question of law in this Circuit whether a plaintiff parent is permitted to recover damages on a theory of substantive due process against a caseworker under circumstances where, although the initial removal lacked a reasonable basis, the child is nonetheless ultimately found to have been abused or neglected by the parent following a family-court fact-finding hearing. Under such circumstances, it is an open question whether a defendant caseworker's conduct in removing the child -- even where the caseworker initially lacked a reasonable basis for doing so -- can be said to be "'so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,'" Okin v. Vill. of Cornwall-on-Hudson Police Dep't , 577 F.3d 415, 431 (2d Cir. 2009) (quoting County of Sacramento v. Lewis , 523 U.S. 833, 847 n.8 (1998)). However, because Woo has not made this argument in this case, and because we ultimately affirm the dismissal of Southerland's substantive due process claim on other grounds, we need not consider this question at this time. See alsonote 31, infra

. 17 521 F. Supp. 2d at 226 n.19. Although Woo mentions in his 1 briefing that the Family Court eventually determined that Ciara 2 and the Southerland Children had been abused and neglected, he 3 does not dispute the plaintiffs' assertion that these 4 subsequently determined facts should not bear upon our 5 consideration of whether Woo's actions in effecting the removal 6 were constitutional. We therefore need not consider the 7 relevance, if any, of these subsequent events on the plaintiffs' 8 ability to recover on their constitutional claims. 9 9 Prior Federal Court Proceedings 10 In June 1999, some two years after the removal and 11 while the Southerland Children remained in foster care, 12 Southerland, on behalf of himself and his children, filed a pro 13

secomplaint in the United States District Court for the Eastern 1418 District of New York against more than forty defendants for the 1 allegedly wrongful removal of the Southerland Children from his 2 home. On February 1, 2000, the district court (Charles P. 3 Sifton, Judge ) granted the defendants' motion to dismiss on 4 grounds that included failure to state a claim, failure to plead 5 certain matters with particularity, lack of subject-matter 6 jurisdiction, and Eleventh Amendment immunity. SeeOpinion & 7 Order (Dkt. No. 43), Southerland v. City of N.Y. , No. 99-cv-3329 8 (E.D.N.Y. Feb. 2, 2000), Ex. G to Silverberg Decl. 9 Southerland appealed. We affirmed in part, reversed in 10 part, and remanded. We ruled, inter alia , that the district 11 court had erred in dismissing Southerland's claims under 42 12 U.S.C. § 1983 relating to the seizure and removal of the 13 Southerland Children

. See Southerland v. Giuliani , 4 F. App'x 14 33, 36 (2d Cir. 2001) (summary order) (" Southerland I "). We 15 concluded that the pro secomplaint stated valid claims for 16 violations of both the substantive and procedural components of 17 the Fourteenth Amendment's Due Process Clause. Seeid. at 36-37. 18 We "emphasize[d] that our holding [wa]s limited to the claims 19 made directly by Sonny Southerland," noting that "[a]lthough the 20 children probably have similar claims, we have held that a non21 attorney parent must be represented by counsel in bringing an 22 action on behalf of his or her child." Id. at 37 (citation, 23 footnote, and internal quotation marks omitted). We therefore 2410Michael G. O'Neill was appointed as counsel for both Southerland and the Southerland Children. In April 2004, Southerland resumed proceeding pro sebefore the district court, while Mr. O'Neill continued to represent the Southerland Children (including Venus and Sonny Jr., even after they were no longer minors). In April 2004, the district court also appointed a guardian ad litemto represent the Southerland Children's interests. SeeSoutherland II , 521 F. Supp. 2d at 221 n.1. In the instant appeals, Southerland represents himself pro se , while Mr. O'Neill continues to represent the Southerland Children.

11The amended complaint did not name as defendants or assert any claims against any of the other thirty-nine defendants that had been named by Southerland in his original pro se complaint. Additionally, although Ciara was identified as a plaintiff in the original complaint, she was dropped from the suit when the amended complaint was filed.

12The amended complaint also joins nine John Doe defendants, including several persons who "supervis[ed], monitor[ed] and assist[ed] Woo in his actions with respect to the [Southerland] Children." Am. Compl. ¶ 39 (Dkt. No. 75), Southerland v. City of N.Y. , No. 99-cv-3329 (E.D.N.Y. Nov. 22,
19 "le[ft] it to the district court upon remand to determine whether 1 Southerland should be given a chance to hire a lawyer for his 2 children or to seek to have one appointed for them." Id. 3 On remand, the district court appointed counsel to 4 represent both Southerland and the Southerland Children. 10 5 Southerland II , 521 F. Supp. 2d at 227. In November 2002, 6 through counsel, Southerland and the Southerland Children jointly 7 filed an amended complaint, id. at 221 & n.1, asserting nine 8 claims under 42 U.S.C. § 1983 against Woo and the City of New 9 York, id. at 221 n.2. 11 10 In the amended complaint, Southerland asserts four 11 separate claims against Woo. 12First, he brings an unlawful- 122002). The complaint asserts that "said Does are individually liable to [Southerland] for the deprivation of his constitutional rights and the constitutional rights of the [Southerland] Children as alleged herein." Id. In their briefing on appeal, the plaintiffs do not address these John Doe defendants. We conclude that the plaintiffs have abandoned their claims against the John Does. We note that even if the plaintiffs now sought to amend their complaint to identify the John Doe defendants, the claims against the newly named defendants would be time-barred. SeeTapia-Ortiz v. Doe , 171 F.3d 150, 151-52 (2d Cir. 1999) (per curiam); Barrow v. Wethersfield Police Dep't , 66 F.3d 466, 468-70 (2d Cir. 1995), modified , 74 F.3d 1366 (2d Cir. 1996).
20 search claim, asserting that Woo's entry into his home "without 1 privilege, cause or justification" violated the Fourth Amendment. 2 Am. Compl. ¶¶ 40-41 (Dkt. No. 75), Southerland v. City of N.Y. , 3 No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002). Southerland brings a 4 second Fourth Amendment unlawful-search claim for Woo's remaining 5 in his home even after discovering that the children listed on 6 the Order Authorizing Entry were not there. Third, Southerland 7 asserts a Fourteenth Amendment procedural due process claim for 8 removal of the Southerland Children from his home without a court 9 order and in the absence of an immediate threat of harm to their 10 lives or health. Finally, Southerland asserts a substantive due 11 process claim, also under the Fourteenth Amendment, for Woo's 12 removal of the Southerland Children absent a reasonable basis for 13 doing so. 14 The amended complaint also interposes various claims on 15 behalf of the Southerland Children. First, the Children assert 1613In so doing, the district court relied upon our statement, when the case was previously on appeal, that "[t]he children's claims for unreasonable seizure would proceed under the Fourth Amendment rather than the substantive component of the Due Process Clause." Southerland I , 4 F. App'x at 37 n.2 (citing Kia P. v. McIntyre , 235 F.3d 749, 757-58 (2d Cir. 2000)).
21 the same procedural due process claim under the Fourteenth 1 Amendment as does Southerland. Second, they bring a substantive 2 due process claim under the Fourteenth Amendment on the theory 3 that they were removed from their home without reasonable basis. 4 The district court recharacterized the latter claim as arising 5 under the Fourth Amendment's guarantee of protection against 6 unlawful seizure. 13SeeSoutherland II , 521 F. Supp. 2d at 230 7 n.24. Finally, the district court construed the amended 8 complaint as asserting on behalf of the Children the same two 9 Fourth Amendment unlawful-search claims as were asserted by 10 Southerland, seeid. at 233-34 & n. 28, a decision that Woo has 11 not challenged on appeal. 12 Southerland and the Southerland Children also bring 13 several claims against the City of New York. Southerland asserts 14 that the City is liable under 42 U.S.C. § 1983 for the removal of 15 the Southerland Children insofar as that removal was conducted 16 pursuant to two alleged official City policies: to remove 17 children without a reasonable basis, and to remove children 18 without a court order despite the absence of any immediate threat 19 of harm to their lives or health. Southerland and the 2014The district court later permitted the Southerland Children to assert their failure-to-train claim against the City not only with respect to the police, but also with respect to ACS. SeeSoutherland II , 521 F. Supp. 2d at 235 n.34.
22 Southerland Children also allege that high-ranking policymakers 1 within the City's police department knew or should have known 2 that the City's failure to train police officers accompanying ACS 3 employees on home visits and investigations would deprive New 4 York City residents of their constitutional rights. 14 5 On the defendants' motion for summary judgment, the 6 district court concluded that Woo was entitled to qualified 7 immunity as to all of the claims against him. With respect to 8 the Fourth Amendment unlawful-search claims, the court concluded 9 that the false and misleading statements made by Woo in his 10 application for the Order Authorizing Entry did not strip him of 11 qualified immunity because the plaintiffs could not show that 12 these statements were necessary to the finding of probable cause 13 to enter the home. Southerland II , 521 F. Supp. 2d at 230-31. 14 The court decided that qualified immunity was warranted because 15 "a corrected affidavit specifying all of the information known to 16 Woo establishes an objective basis that would have supported a 17 reasonable caseworker's belief that probable cause existed." Id. 18 at 231 (brackets, citation, and internal quotation marks 19 omitted). 2023 With respect to the Southerland Children's Fourth 1 Amendment unlawful-seizure claim, and the procedural due process 2 claims brought by both sets of plaintiffs, the district court 3 decided that qualified immunity shielded Woo from liability 4 because his actions pre-dated the clear establishment of law in 5 this context, which in its view did not occur until this Court's 6 decision in Tenenbaum v. Williams , 193 F.3d 581, 596-97 (2d Cir. 7 1999), cert. denied , 529 U.S. 1098 (2000). See Southerland II , 8 521 F. Supp. 2d at 231-32. 9 Lastly, with regard to Southerland's substantive due 10 process claim, the district court concluded that Woo was entitled 11 to qualified immunity because "it was objectively reasonable for 12 [him] to conclude that Southerland's substantive due process 13 rights were not violated" when Woo removed the Southerland 14 Children from the home, because "[b]rief removals of children 15 from their parents generally do not rise to the level of a 16 substantive due process violation, at least where the purpose of 17 the removal is to keep the child safe during investigation and 18 court confirmation of the basis for removal." Id. at 232 19 (brackets and internal quotation marks omitted). 20 Notwithstanding the district court's conclusion that 21 Woo was entitled to qualified immunity as to every claim asserted 22 against him, the court proceeded to consider, in the alternative, 23 the underlying merits of the plaintiffs' various claims. The 2424 court decided that even in the absence of immunity, Woo would be 1 entitled to summary judgment with respect to the plaintiffs' 2 Fourth Amendment unlawful-search claims and Southerland's 3 substantive due process claim. Specifically, with respect to the 4 Fourth Amendment unlawful-search claims, the district court 5 decided that "no reasonable juror could infer that Woo knowingly 6 and intentionally made false and misleading statements to the 7 family court in order to receive an order authorizing his entry 8 into the Southerland home." Id. at 233. With respect to 9 Southerland's substantive due process claim, the court concluded 10 that "no reasonable juror could find that the removal of the 11 children from their home in order to verify that they had not 12 been neglected or abused was so 'shocking, arbitrary, and 13 egregious' that Southerland's substantive due process rights were 14 violated." Id. at 234-35 (citation omitted). 15 The district court concluded that the City was also 16 entitled to summary judgment on all of the claims against it. 17
SeeSoutherland II , 521 F. Supp. 2d at 235-39. The plaintiffs do 18 not appeal from that portion of the judgment and therefore have 19 abandoned their claims against the City. SeeLoSacco v. City of 20 Middletown , 71 F.3d 88, 92-93 (2d Cir. 1995). 21 The district court determined, however, that without 22 qualified immunity protection, summary judgment would not be 23 appropriate on the merits of the procedural due process claims 2425 brought by both Southerland and the Southerland Children because, 1 "[a]lthough defendants argue that the 'totality of the 2 circumstances' Woo encountered in the Southerland home required 3 an ex parte removal, they fail to explain why there was not 4 sufficient time for Woo to seek a court order removing the 5 children." SeeSoutherland II , 521 F. Supp. 2d at 235 n.31. Nor 6 would summary judgment be appropriate on the merits of the 7 Southerland Children's Fourth Amendment unlawful-seizure claim, 8 the district court said, because the defendants could not explain 9 "why the particular circumstances that Woo encountered in the 10 Southerland home established that there was imminent danger to 11 the children's life or limb requiring removal in the absence of a 12 court order." Id. at 234 n.29. 13 Both Southerland and the Southerland Children now 14 appeal from the dismissal of each of their claims against Woo, 15 with the exception of one of their Fourth Amendment claims. The 16 plaintiffs have not appealed the district court's adverse ruling 17 as to their claim that Woo violated the Fourth Amendment by 18 remaining in their home even after determining that the children 19 listed on the Order Authorizing Entry were not present. 20 We affirm with respect to the dismissal of 21 Southerland's substantive due process claim. We vacate and 22 remand with respect to Southerland's and the Southerland 23 Children's Fourth Amendment unlawful-search claims; Southerland's 2426 and the Southerland Children's procedural due process claims; and 1 the Southerland Children's unlawful-seizure claim. 2
DISCUSSION 3 I. Standard of Review 4 "We review a district court's grant of summary judgment 5 de novo , construing the evidence in the light most favorable to 6 the non-moving part[ies] and drawing all reasonable inferences in 7 [their] favor." Allianz Ins. Co. v. Lerner , 416 F.3d 109, 113 8 (2d Cir. 2005). "[S]ummary judgment is appropriate where there 9 exists no genuine issue of material fact and, based on the 10 undisputed facts, the moving party is entitled to judgment as a 11 matter of law." D'Amico v. City of N.Y. , 132 F.3d 145, 149 (2d 12 Cir.), cert. denied , 524 U.S. 911 (1998); seeFed. R. Civ. P. 13 56(a). 14 II. Principles of Qualified Immunity 15 Qualified immunity shields public officials "from 16 liability for civil damages insofar as their conduct does not 17 violate clearly established statutory or constitutional rights of 18 which a reasonable person would have known." Harlow v. 19 Fitzgerald , 457 U.S. 800, 818 (1982). "In general, public 20 officials are entitled to qualified immunity if (1) their conduct 21 does not violate clearly established constitutional rights, or 22 (2) it was objectively reasonable for them to believe their acts 23 did not violate those rights." Holcomb v. Lykens , 337 F.3d 217, 2427 220 (2d Cir. 2003) (internal quotation marks omitted). A right 1 is "'clearly established'" when "[t]he contours of the right . . 2 . [are] sufficiently clear that a reasonable official would 3 understand that what he is doing violates that right." Anderson 4 v. Creighton , 483 U.S. 635, 640 (1987). Qualified immunity is an 5 "affirmative defense," Gomez v. Toledo , 446 U.S. 635, 636, 639-41 6 (1980), and "it is incumbent upon the defendant to plead[] and 7 adequately develop" that defense, Zellner v. Summerlin , 494 F.3d 8 344, 368 (2d Cir. 2007) (internal quotation marks omitted). 9 In this Circuit, "[e]ven where the law is 'clearly 10 established' and the scope of an official's permissible conduct 11 is 'clearly defined,' the qualified immunity defense also 12 protects an official if it was 'objectively reasonable' for him 13 at the time of the challenged action to believe his acts were 14 lawful." Taravella v. Town of Wolcott , 599 F.3d 129, 134 (2d 15 Cir. 2010) (some internal quotation marks omitted); accord 16 Walczyk v. Rio , 496 F.3d 139, 154 n.16 (2d Cir. 2007). In other 17 words, a caseworker is also entitled to qualified immunity "if 18 'officers of reasonable competence could disagree' on the 19 legality of the action at issue in its particular factual 20 context." Manganiello v. City of N.Y. , 612 F.3d 149, 165 (2d 21 Cir. 2010) (quoting Walczyk , 496 F.3d at 154); see also 22 Tenenbaum, 193 F.3d at 605 (applying same principle to "child 23 welfare workers"). But seeTaravella , 599 F.3d at 136-41 2428 (Straub, J. , dissenting) (stating that this prong of the 1 qualified-immunity analysis "has no basis in Supreme Court 2 precedent and has served to confuse the case law in this area"); 3 Okin , 577 F.3d at 433 n.11 ("[O]nce a court has found that the 4 law was clearly established at the time of the challenged conduct 5 and for the particular context in which it occurred, it is no 6 defense for a police officer who violated this clearly 7 established law to respond that he held an objectively reasonable 8 belief that his conduct was lawful."); Walczyk , 496 F.3d at 165- 9 71 (Sotomayor, J. , concurring) ("[W]hether a right is clearly 10 established is the same questionas whether a reasonable officer 11 would have known that the conduct in question was unlawful.") 12 (emphasis in original). 13 III. Overview of Constitutional Principles Relating to 14 the State's Removal of Children from Their Homes 15 As we observed in a decision post-dating the events at 16 issue in these appeals, "[p]arents . . . have a constitutionally 17 protected liberty interest in the care, custody and management of 18 their children." Tenenbaum, 193 F.3d at 593; see alsoTroxel v. 19 Granville , 530 U.S. 57, 65-66 (2000) (collecting cases concerning 20 the "fundamental right of parents to make decisions concerning 21 the care, custody, and control of their children"). "[C]hildren 22 have a parallel constitutionally protected liberty interest in 23 not being dislocated from the emotional attachments that derive 24 from the intimacy of daily family association." Kia P. v. 2529 McIntyre , 235 F.3d 749, 759 (2d Cir. 2000) (brackets and internal 1 quotation marks omitted), cert. denied , 534 U.S. 820 (2001); see 2 alsoDuchesne v. Sugarman , 566 F.2d 817, 825 (2d Cir. 1977) 3 ("Th[e] right to the preservation of family integrity encompasses 4 the reciprocal rights of both parent and children."). The 5 state's removal of a child from his or her parent may therefore 6 give rise to a variety of cognizable constitutional claims. 7 First, both the parents and the children may have a 8 cause of action for violation of the Fourteenth Amendment under a 9 theory of denial of procedural due process. The Fourteenth 10 Amendment imposes a requirement that except in emergency 11 circumstances, judicial process must be accorded both parent and 12 child before removal of the child from his or her parent's 13 custody may be effected. See, e.g. , Kia P. , 235 F.3d at 759-60; 14 Tenenbaum, 193 F.3d at 593-94; Duchesne , 566 F.2d at 825-26. 15 Both Southerland and the Southerland Children have asserted such 16 a procedural due process claim against Woo in this case. 17 Second, a parent may also bring suit under a theory of 18 violation of his or her right to substantive due process. 19 Southerland does so here. Parents have a "substantive right 20 under the Due Process Clause to remain together [with their 21 children] without the coercive interference of the awesome power 22 of the state." Tenenbaum, 193 F.3d at 600 (internal quotation 23 marks omitted); see also, e.g. , Anthony v. City of N.Y. , 339 F.3d 2430 129, 142-43 (2d Cir. 2003); Kia P. , 235 F.3d at 757-58. Such a 1 claim can only be sustained if the removal of the child "would 2 have been prohibited by the Constitution even had the [parents] 3 been given all the procedural protections to which they were 4 entitled." Tenenbaum, 193 F.3d at 600 (emphasis deleted). In 5 other words, while a procedural due process claim challenges the 6 procedure by which a removal is effected, a substantive due 7 process claim challenges the "fact of [the] removal" itself. 8 Bruker v. City of N.Y. , 92 F. Supp. 2d 257, 266-67 (S.D.N.Y. 9 2000). 10 "Where another provision of the Constitution provides 11 an explicit textual source of constitutional protection, a court 12 must assess a plaintiff's claims under that explicit provision 13 and not the more generalized notion of substantive due process." 14 Kia P. , 235 F.3d at 757-58 (quoting Conn v. Gabbert , 526 U.S. 15 286, 293 (1999)) (brackets and internal quotation marks omitted). 16 For child removal claims brought by the child, we have concluded 17 that the Constitution provides an alternative, more specific 18 source of protection than substantive due process. When a child 19 is taken into state custody, his or her person is "seized" for 20 Fourth Amendment purposes. The child may therefore assert a 21 claim under the Fourth Amendment that the seizure of his or her 22 person was "unreasonable." U.S. Const. amend. IV; seeTenenbaum, 23 193 F.3d at 602. 2431 A Fourth Amendment child-seizure claim belongs only to 1 the child, not to the parent, although a parent has standing to 2 assert it on the child's behalf. Tenenbaum, 193 F.3d at 601 3 n.13. In accordance with our order in Southerland I , 4 F. App'x 4 at 37 n.2 , the district court therefore determined that the 5 Southerland Children's substantive due process claim should be 6 construed instead as a Fourth Amendment unlawful-seizure claim. 7
SeeSoutherland II , 521 F. Supp. 2d at 230 n.24. 8 Finally, depending on the circumstances in which a 9 removal occurs, other Fourth Amendment claims might also be 10 viable. Here, Southerland and the Southerland Children asserted 11 two Fourth Amendment claims for unlawful search : one claim 12 relating to Woo's entry into the Southerland home, and one (now 13 abandoned) relating to Woo's remaining in the home even after 14 determining that the Manning Children were not present. Both 15 claims were based on an allegation that Woo made false statements 16 to the Family Court in order to obtain the Order Authorizing 17 Entry, and therefore that there was no valid judicial 18 authorization for him to carry out a search of the Southerland 19 apartment. We begin our analysis with the unabandoned search 20 claim based on Woo's allegedly unlawful entry. 21 IV. The Fourth Amendment Unlawful-Search Claims 22 The district court determined that summary judgment was 23 warranted on the plaintiffs' Fourth Amendment unlawful-search 2432 claims on two separate grounds. First, the district court 1 concluded that Woo was entitled to qualified immunity under the 2 "corrected affidavit" doctrine. SeeSoutherland II , 521 3 F. Supp. 2d at 230-31. Second, the district court decided that 4 Woo was entitled to summary judgment on the merits because no 5 reasonable juror could find that Woo had knowingly made false or 6 misleading statements in seeking to obtain the Order Authorizing 7 Entry. Id. at 233. We disagree with both conclusions. 8

A.The Corrected-Affidavit Doctrine 9 The plaintiffs argue that the district court erred in 10 its application of the corrected-affidavit doctrine, under which 11 a defendant who makes erroneous statements of fact in a search12 warrant affidavit is nonetheless entitled to qualified immunity 13 unless the false statements in the affidavit were "necessary to 14 the finding of probable cause." Martinez v. City of Schenectady , 15 115 F.3d 111, 115 (2d Cir. 1997) (internal quotation marks 16 omitted). In order to determine whether false statements were 17 "necessary to the finding of probable cause," the court must "put 18 aside allegedly false material, supply any omitted information, 19 and then determine whether the contents of the 'corrected 20 affidavit' would have supported [the] finding . . . ." Id. 21 (citation and internal quotation marks omitted). In applying the 22 corrected-affidavit doctrine, qualified immunity is warranted 23 only if, after correcting for the false or misleading statements, 2415In child-abuse investigations, a Family Court order is equivalent to a search warrant for Fourth Amendment purposes. SeeNicholson v. Scoppetta , 344 F.3d 154, 176 (2d Cir. 2003); Tenenbaum, 193 F.3d at 602.
33 the affidavit accompanying the warrant was sufficient "to support 1 a reasonable officer's belief that probable cause existed." Id. 2 (internal quotation marks omitted). 3 We have observed that the materiality of a 4 misrepresentation or omission in an application for a search 5 warrant is a mixed question of law and fact. 15Velardi v. Walsh , 6 40 F.3d 569, 574 (2d Cir. 1994). "The legal component depends on 7 whether the information is relevant to the probable cause 8 determination under controlling substantive law." Id. "[T]he 9 weight that a neutral magistrate would likely have given such 10 information," however, is a question for the factfinder. Id. 11 In such circumstances, a court may grant summary judgment to a 12 defendant based on qualified immunity only if "the evidence, 13 viewed in the light most favorable to the plaintiffs, discloses 14 no genuine dispute that a magistrate would have issued the 15 warrant on the basis of the corrected affidavits." Walczyk , 496 16 F.3d at 158 (emphasis and internal quotation marks omitted). 17 Here, we cannot conclude as a matter of law -- although a trier 18 of fact might conclude after an evidentiary hearing or the 19 district court might conclude as a matter of law in light of 20 additional evidence -- that the Family Court, in deciding whether 2134 there was "probable cause to believe that an abused or neglected 1 child may [have] be[en] found [in the Southerland home]," N.Y. 2 Fam. Ct. Act § 1034(2), would have issued the order had a 3 corrected affidavit been presented to it. 4 The district court, which "[a]ssum[ed] for purposes of 5 the qualified immunity defense that Woo made false and misleading 6 statements" in applying for the Order Authorizing Entry, 7 Southerland II , 521 F. Supp. 2d at 230, correctly noted that the 8 plaintiffs "would still have to demonstrate that those statements 9 were necessary to the finding of probable cause for qualified 10 immunity not to attach to Woo's actions," id. at 230-31 (citation 11 and internal quotation marks omitted). The court determined that 12 Woo was entitled to qualified immunity based on its conclusion 13 that a corrected affidavit, containing all of the information 14 available to Woo at the time the affidavit was made, would have 15 supported a finding of probable cause to enter the home under the 16 applicable substantive law. Id. at 231. 17 We disagree. Section 1034(2) of the New York State 18 Family Court Act, which provides the evidentiary standard for a 19 showing sufficient for the issuance of an investigative order, 20 governed Woo's application to obtain the Order Authorizing Entry. 21 The district court, in its September 2007 decision, cited the 22 statute as it had been amended in January 2007. Seeid. at 224 23 n.7. But under the version of the statute that governed at the 2416The defendants do not argue that a corrected affidavit would have supported a finding of probable cause under the Fourth Amendment even if it would not have met the evidentiary standard set out in section 1034(2) of the applicable New York statute. We therefore do not consider whether Woo would have had constitutionally adequate cause to enter the apartment notwithstanding the absence of a valid warrant or its equivalent.
35 time of Woo's application, unlike the version of the statute in 1 effect in 2007, the affiant was required to demonstrate "probable 2 cause to believe that an abused or neglected child may be found 3 on premises ," N.Y. Fam. Ct. Act § 1034(2) (McKinney 1997) 4 (emphasis added), presumably meaning the "premises" identified in 5 the application submitted to the Family Court. 16 6 The district court should have engaged in its 7 corrected-affidavit analysis with reference to the law applicable 8 at the time of the events in question. The children that Woo 9 listed on his application for the Order Authorizing Entry -- the 10 Manning Children and Ciara -- were children who did notreside 11 "on premises" in the Southerland home. 12 The district court concluded that "a properly made 13 application would stilllist Ciara Manning on the application 14 because Southerland is her father and was the parent legally 15 responsible for her care, even if she had run away." Southerland 16

II , 521 F. Supp. 2d at 231. That may be relevant to an inquiry 17 under the statute as amended in 2007, but it is not relevant to 18 the appropriate question under the applicable version of the law 19 at the time of the entry: whether there existed probable cause 2017The defendants also argue, with respect to the probable cause determination, that irrespective of therequirements of New York Family Court Act § 1034(2), Woo was required to visit the Southerland home under a provision of the New York Social Services Law that requires that, within twenty-four hours of receipt of a "report[] of suspected child abuse or maltreatment" as provided for under New York Social Services Law § 424(1), ACS must undertake an investigation that includes "an evaluation of the environment of the child named in the report and any other children in the same home," id. § 424(6)(a). However, considering that Woo had reason to know that Ciara, the child identified in the report, was not living at the Southerland home -- and, indeed, reason to know that none of the children named in his application to the Family Court were living there -- his reliance on this provision of the Social Services Law fails. If Ciara was not living "on premises" at the Southerland home, Woo was not entitled to enter the home to evaluate this "environment," nor to evaluate the other children living there, for he had not received any information suggesting that any child other than Ciara might be at risk.
36 for Woo to believe that Ciara Manning could be found "on 1 premises" at the Southerland home. In fact, she, like the 2 Manning Children, was not "on premises." And Woo had reason to 3 know that she was not -- from the information in the initial 4 Intake Report transmitted to Woo; from the guidance counselor's 5 statement to Woo that Southerland did not approve of the place 6 where Ciara was staying; and from Southerland's own statements 7 during his May 30 telephone conversation with Woo that Ciara was 8 a runaway and did not live at his home. 17 9 The plaintiff children point out that there were other 10 deficiencies in the district court's corrected-affidavit analysis 11 that undermine the court's conclusion that the information known 12 to Woo at the time he applied for the Order Authorizing Entry 1337 would have supported a finding of probable cause. For example, 1 Woo's application stated that Ciara "tried to kill herself by 2 swallowing non-toxic paint," and that Southerland "did not take 3 [Ciara] to a medical doctor and refused to take [Ciara] for 4 psychiatric evaluation." Application for Authorization to Enter 5 Premises dated June 6, 1997, at 1 ("June 6 Application"), Ex. C 6 to Silverberg Decl. But the plaintiff children argue that the 7 application omitted several relevant facts that, according to 8 Southerland's version of events, were known to Woo at that time: 9 that the paint-swallowing incident took place at school, not at 10 home; that Southerland was willing to obtain treatment for his 11 daughter, but had trouble doing so, precisely because she was not 12 living in his home; and that Southerland had attempted to assert 13 control over his daughter by applying for PINS warrants. 14 Southerland Children's Br. at 30-31; see alsoid. at 28-36 15 (disputing additional assertions of fact, such as whether the 16 swallowing of paint indeed was a suicide attempt). As the 17 plaintiff children put it: 18 Woo's omission of the fact that the incident 19 took place at school allowed the court to 20 assume that this suicide attempt took place 21 in Southerland's residence. The overall 22 picture painted by Woo is that Southerland's 23 daughter attempted to kill herself, that 24 Southerland did nothing about it, and refused 25 to let others do something about it as well. 26 By omitting the fact that the daughter was 27 not even living at the Southerland apartment, 28 Woo gave the family court the impression that 29 it was necessary to allow Woo to enter the 3038 apartment in order to render assistance to a 1 suicidal teenager in the home of a parent who 2 could not be bothered to help her and who 3 prevented the efforts of ACS to provide help 4 to her. 5 Id. at 31-32. The district court included much of this 6 information in its recitation of facts, Southerland II , 521 F. 7 Supp. 2d at 222-23 & nn.4 & 5, but it did not factor these 8 considerations into its application of the corrected-affidavit 9 doctrine. 10 For these reasons, application of the corrected11 affidavit doctrine does not as a matter of law preclude liability 12 in this case. 13

B. Knowing or Reckless Misstatements of Fact 14 The district court also concluded that even if the 15 corrected-affidavit doctrine did not apply, summary judgment was 16 appropriate because, on the merits, "no reasonable juror could 17 infer that Woo knowingly and intentionally made false and 18 misleading statements to the family court in order to receive an 19 order authorizing his entry into the Southerland home." 20 Southerland II , 521 F. Supp. 2d at 233. Based on that premise, 21 the district court concluded that "the [O]rder [Authorizing 22 Entry] was issued with probable cause and Woo's entry into and 23 search of Southerland's home did not violate plaintiffs' Fourth 24 Amendment rights." Id. 2539 We disagree. If the district court were correct that 1 Woo did not knowingly make false and misleading statements, that 2 would entitle Woo to qualified immunity, but would not 3 necessarily render his underlying conduct lawful -- the issue the 4 court was addressing. When a person alleges a Fourth Amendment 5 violation arising from a search executed by a state official, 6 "the issuance of a search warrant . . . creates a presumption 7 that it was objectively reasonable for the [defendant] to believe 8 that the search was supported by probable cause" so as to render 9 the defendant qualifiedly immune from liability. Martinez , 115 10 F.3d at 115. To defeat the presumption of reasonableness, a 11 plaintiff must make "a substantial preliminary showing that the 12 affiant knowingly and intentionally, or with reckless disregard 13 for the truth, made a false statement in his affidavit and that 14 the allegedly false statement was necessary to the finding of 15 probable cause" for which the warrant was issued. Golino v. City 16 of New Haven , 950 F.2d 864, 870 (2d Cir. 1991) (internal 17 quotation marks omitted), cert. denied , 505 U.S. 1221 (1992). 18 We need not consider further whether the district court 19 erred by confusing the qualified immunity and merits analyses, 20 however, because we also do not agree with the district court's 21 conclusion that no reasonable juror could find that Woo did not 22 knowingly or recklessly make false statements -- the immunity 23 inquiry. We think that several disputed facts, taken together 2418The plaintiffs also do not explicitly argue that this information had become "stale." See generallyWalczyk , 496 F.3d at 162 (enumerating Fourth Amendment standards for staleness); United States v. Ortiz , 143 F.3d 728, 732-33 (2d Cir. 1998) (same), cert. denied , 525 U.S. 910 (1998).
40 and viewed in the light most favorable to the plaintiffs, would 1 permit a reasonable factfinder to find otherwise. 2 First, there is substantial evidence, viewed in the 3 light most favorable to the plaintiffs, that Woo knew or had 4 reason to know that Ciara was not residing at the Southerland 5 home when he applied for the Order Authorizing Entry. On appeal, 6 Woo appears to assert that he was justified in searching for 7 Ciara at the Southerland home because, according to ACS's Diane 8 Manning case files, "Ciara was reported to be living with her 9 father, Sonny B. Southerland, Sr. at his address at 10 Amboy St. 10 Brooklyn." Woo Decl. ¶ 5. Although the plaintiffs deny that the 11 substance of this report was accurate, they do not effectively 12 dispute that the information was contained in ACS's records, 18 13 nor do they dispute that Southerland's home was, in fact, Ciara's 14 legal residence. To the contrary, they affirmatively allege in 15 their complaint that Southerland was the parent with "physical 16 and legal custody" at the relevant time. Am Compl. ¶¶ 9-10. 17 If Woo had no further knowledge or reliable information 18 about Ciara's whereabouts, we think -- having regard to the 19 "factual and practical considerations of everyday life," Gates , 20 462 U.S. at 231 (internal quotation marks omitted) -- that Woo 2141 might well have had probable cause to believe that Ciara was to 1 be found at Southerland's apartment -- her custodial parent's 2 home. Cf. Manganiello , 612 F.3d at 161 (probable cause may exist 3 even where an officer "relied on mistaken information, so long as 4 it was reasonable for him to rely on it"). Nor, we think, was 5 the fact that both Southerland and the school counselor informed 6 Woo that Ciara did not live with Southerland alone sufficient to 7 establish that Woo believed otherwise. Cf. Robison v. Via , 821 8 F.2d 913, 922 (2d Cir. 1987) ("[T]he officials need not defer 9 action [on a child-abuse report] merely on account of a parent's 10 protestations of innocence or promises of future 11 protection . . . ."). 12 But there is more. At his deposition, Woo appeared to 13 concede that he did knowwith some certainty -- if not by the 14 time of applying for the Order Authorizing Entry on June 6, then 15 by the time of executing that Order on June 9 -- that Ciara did 16 not reside with Southerland and would not be found at his home. 17 When asked by plaintiffs' counsel why he had persisted in seeking 18 to enter the Southerland apartment once he knew that Ciara 19 Manning was not staying there, Woo -- plainly accepting the 20 factual premise of the question -- explained that he had sought 21 to enter in order to, among other things, "contact [Southerland] 22 to find out about [Ciara's] whereabouts," Deposition of Timothy 23 Woo at 17 ("Woo Dep."), Ex. D to O'Neill Decl.; to "a[ss]ess the 2419 Indeed, Woo does not explicitly challenge the plaintiffs' repeated assertion that before the events of June 9, 1997, Woo knew for a fact that Ciara was not staying in Southerland's apartment. 42 safety of the children's home environment," id. ; to look for 1 "[t]he Manning children," id. at 18-19; and to investigate the 2 well-being of the children who Woo knew were residing with 3 Southerland, id. at 20-22. In his declaration tendered in 4 support of the defendants' summary-judgment motion, moreover, Woo 5 did not identify when it was that he found Ciara living in the 6 home of her friend, but instead stated only that his interview of 7 Ciara occurred "[d]uring the course of the investigation" when he 8 went to the home. Woo Decl. ¶ 23. His statements thus strongly 9 support the notion that Woo was well aware that, wherever Ciara 10 was, it was unlikely to be in the Southerland Apartment. 19 11 Second, evidence in the record, again viewed in the 12 light most favorable to the plaintiffs, would permit a reasonable 13 juror to conclude that Woo knowingly or recklessly misrepresented 14 the nature of the paint-swallowing incident in his application. 15 About one week before June 6, Woo learned from a school counselor 16 that Ciara had "swallowed non-toxic paint at school" and had been 17 "acting out and expressing thoughts of suicide." Woo Decl. ¶ 6. 18 Although the counselor informed Woo that Southerland had failed 19 to seek mental health treatment for Ciara, seeid. , before Woo 20 made his application to Family Court, Southerland had explained 2143 to Woo that the reason he had not taken Ciara for treatment was 1 that she did not reside with Southerland and did not listen to 2 him, id. ¶ 8. Yet Woo's application represented to the Family 3 Court that Ciara "tried to kill herself by swallowing non-toxic 4 paint" and that Southerland "did not take [her] to a medical 5 doctor and refused to take [her] for psychiatric evaluation." 6 June 6 Application at 1. A reasonable trier of fact might find 7 those statements to be materially misleading insofar as they 8 characterize Ciara's paint-swallowing as a suicide attempt; fail 9 to note that the incident occurred at school rather than in 10 Southerland's home; and omit the fact that Ciara may have been 11 living outside the home and free from Southerland's control. 12 Finally, the district court overlooked the parties' 13 dispute concerning Woo's knowledge about which children resided 14 in the Southerland apartment. The district court stated that Woo 15 "had reason to believe that the Manning children would be found 16 in the Southerland apartment because of a separate investigation 17 of the Manning children and his personal observation that there 18 were other children in the Southerland home who had not yet been 19 positively identified." Southerland II , 521 F. Supp. 2d at 233. 20 But, as the district court opinion elsewhere observes, on June 4, 21 1997 -- two days before he applied for the Order Authorizing 22 Entry -- Woo met the Southerland Children, not the Manning 23 Children, emerging from the Southerland apartment and wrote down 2444 their names. Seeid. at 223-24 & n.6. We think that there is a 1 triable issue of fact as to whether Woo in fact believed, as he 2 wrote in his application to the Family Court, that it was the 3 Manning Children who were in the Southerland home, or whether he 4 recklessly confused or knowingly conflated the two groups of 5 children. 6 Although these alleged misrepresentations may turn out 7 to be no more than accidental misstatements made in haste, the 8 plaintiffs have nonetheless made a "substantial preliminary 9 showing" that Woo knowingly or recklessly made false statements 10 in his application for the Order Authorizing Entry. Golino , 950 11 F.2d at 870 (internal quotation marks omitted). This showing 12 rebuts the presumption of reasonableness that would otherwise, at 13 the summary judgment stage, entitle Woo to qualified immunity, a 14 defense on which he has the burden of proof. 15 In sum, because we conclude that genuine issues of 16 material fact exist, both as to whether Woo knowingly or 17 recklessly made false statements in his affidavit to the Family 18 Court and as to whether such false statements were necessary to 19 the court's finding of probable cause, we vacate the district 20 court's grant of summary judgment on the plaintiffs' Fourth 21 Amendment unlawful-search claims. 22 Once again, we note that a trier of fact might, after 23 review of the record (whether or not augmented by additional 2445 evidence), conclude that the errors in the June 6 Application 1 were either accidental or immaterial. We vacate the grant of 2 summary judgment because, on the current record, we cannot reach 3 that conclusion ourselves as a matter of law. 4 V. The Plaintiffs' Procedural Due Process Claims 5 Southerland and the Southerland Children each assert a 6 procedural due process claim against Woo. The district court 7 held that Woo was entitled to qualified immunity on these claims. 8 We disagree. 9

A. Procedural Due Process in the Child-Removal Context 10 "'As a general rule . . . before parents may be 11 deprived of the care, custody, or management of their children 12 without their consent, due process -- ordinarily a court 13 proceeding resulting in an order permitting removal -- must be 14 accorded to them.'" Nicholson , 344 F.3d at 171 (quoting 15 Tenenbaum, 193 F.3d at 593). "However, 'in emergency 16 circumstances, a child may be taken into custody by a responsible 17 State official without court authorization or parental consent.'" 18 Id. (quoting Tenenbaum, 193 F.3d at 594). "'If the danger to the 19 child is not so imminent that there is reasonably sufficient time 20 to seek prior judicial authorization, ex parteor otherwise, for 21 the child's removal, then the circumstances are not emergent.'" 22 Id. (quoting Tenenbaum, 193 F.3d at 594). 2346 To show that emergency circumstances existed, "[t]he 1 government must offer 'objectively reasonable' evidence that harm 2 [was] imminent." Id. Although this Court has not attempted to 3 set forth exhaustively the types of factual circumstances that 4 constitute imminent danger justifying emergency removal as a 5 matter of federal constitutional law, we have concluded that 6 these circumstances include "the peril of sexual abuse," id. , the 7 "risk that children will be 'left bereft of care and 8 supervision,'" id. (quoting Hurlman v. Rice , 927 F.2d 74, 80 (2d 9 Cir. 1991)), and "immediate threat[s] to the safety of the 10 child," Hurlman , 927 F.2d at 80 (internal quotation marks 11 omitted); see alsoN.Y. Fam. Ct. Act § 1024(a) (defining 12 emergency circumstances, for the purposes of state law, as 13 "circumstance[s]" wherein a child's remaining in the parent's 14 care and custody "presents an imminent danger to the child's life 15 or health"). 16

B. Analysis 17 The district court correctly concluded that summary 18 judgment was not appropriate on the underlying merits of the 19 plaintiffs' procedural due process claims because Woo did not 20 demonstrate, as a matter of law, that he did not have time to 21 obtain a court order authorizing the removal of the Southerland 22 Children before taking that act. SeeSoutherland II , 521 F. 23 Supp. 2d at 235 n.31 (citing Nicholson , 344 F.3d at 171). The 2420We disagree with the defendants' assertion that Hurlman and Robisonare not controlling here because the state officers in those cases were unlawfully on the premises, whereas Woo had a court order (albeit a disputed one) to enter the Southerland home. Woo's removal of the Southerland Children was without prior judicial authorization. Although Woo did have a court order to enter the home, he did not have an order to remove the Southerland Children from it. SeeSoutherland II , 521 F. Supp. 2d at 224, 226, 235 n.31.
47 court nonetheless granted summary judgment on qualified immunity 1 grounds, concluding that "the law concerning procedural due 2 process rights in the context of child removals was not clearly 3 defined at the time of the events in question." Id. at 232. 4 However, the district court overstated the extent to 5 which the relevant standards were undeveloped at the time of the 6 removal. In Hurlman , some six years before the events here in 7 issue, we recognized that 8 officials may remove a child from the custody 9 of the parent without consent or a prior 10 court order only in "emergency" 11 circumstances. Emergency circumstances mean 12 circumstances in which the child is 13 immediately threatened with harm, for 14 example, where there exists an immediate 15 threat to the safety of the child, or where 16 the child is left bereft of care and 17 supervision, or where there is evidence of 18 serious ongoing abuse and the officials have 19 reason to fear imminent recurrence. 20 Hurlman , 927 F.2d at 80 (citations and internal quotation marks 21 omitted); see alsoRobison , 821 F.2d at 921-22 (describing the 22 "'emergency' circumstances" exception and collecting cases). 20 23 It thus was clearly established at the time of the Southerland 2448 Children's removal that state officials could not remove a child 1 from the custody of a parent without either consent or a prior 2 court order unless "'emergency' circumstances" existed. Hurlman , 3 927 F.2d at 80; see alsoCecere v. City of N.Y. , 967 F.2d 826, 4 829-30 (2d Cir. 1992) (setting forth the "clearly established" 5 procedural due process principles that apply in this context); 6 Velez v. Reynolds , 325 F. Supp. 2d 293, 314-15 (S.D.N.Y. 2004) 7 (explaining those principles). 8 In concluding that the law of procedural due process 9 was not clearly established in the child-removal context by 1997, 10 the district court in this case relied primarily on our decision 11 in Tenenbaum . There, two years after the events here in issue, 12 we held as a matter of first impression that "where there is 13 reasonable time consistent with the safety of the child to obtain 14 a judicial order, the 'emergency' removal of a child is 15 unwarranted." Tenenbaum, 193 F.3d at 596. Because this 16 principle was not clearly established in 1990 -- the year the 17 underlying conduct at issue in Tenenbaumtook place -- we 18 affirmed the district court's decision in that case that the 19 defendants were entitled to qualified immunity. We also made 20 clear, however, that even in 1990, "it was established as a 21 general matter . . . that 'except where emergency circumstances 22 exist' a parent can 'not be deprived' of the custody of his or 23 her child 'without due process, generally in the form of a 2421In Tenenbaum, a removal was carried out because the child had reported -- albeit under questionable circumstances -- that her father had sexually abused her. SeeTenenbaum, 193 F.3d at 590, 594. There was no doubt at the time that the possibility of sexual abuse was, as it always is, a serious concern. At issue was whether there was nonetheless time under the circumstances to secure a court order prior to effecting the removal without risking imminent danger to the child. Seeid. at 608 (Jacobs, J. , concurring in part and dissenting in part) (describing majority opinion as holding that, while there was "exigency," there was still no "emergency," because there was time to obtain a court order). Tenenbaumrepresented a novel application of procedural due process law because of the majority's holding that, regardless of the seriousness of the allegations, it was still necessary to obtain a court order if time permitted. Here, by contrast, we understand the plaintiffs to assert that the circumstances presented did not necessitate an inquiry into whether there was time to obtain a court order, because the conditions in the Southerland home were not grave enough to trigger that inquiry.
49 predeprivation hearing.'" Id. at 596 (quoting Hurlman , 927 F.2d 1 at 79). 2 In the present case, however, the plaintiffs assert 3 "not solely that defendants had sufficient time to obtain a court 4 order, but that the circumstances in which Woo found the children 5 did not warrant their removal at all, whether evaluated by pre6 or post-Tenenbaumstandards." Southerland Children's Br. at 7 39. 21We understand the plaintiffs' contention to be that 8 "emergency circumstances" warranting removal simply did not exist 9 because the conditions in the Southerland home were 10 insufficiently dangerous. 11 The district court did not decide as a matter of law 12 that emergency circumstances existed in the Southerland home. To 1322The district court correctly noted that there are material factual disputes concerning whether emergency circumstances existed warranting the immediate removal of the Southerland Children from their home. SeeSoutherland II , 521 F. Supp. 2d at 234 n.29 & 235 n.31. But even where emergency circumstances warranting removal exist, "'the constitutional requirements of notice and opportunity to be heard are not eliminated but merely postponed.'" Kia P. , 235 F.3d at 760 (quoting Duchesne , 566 F.2d at 826). Therefore, a plaintiff may have a viable claim for violation of procedural due process even where emergency circumstances existed at the time of removal, ifthe plaintiff does not receive a timely and adequate postdeprivation hearing. See id. at 760-61. In this case, as will
50 the contrary, the district court concluded that "[v]iewing the 1 facts in the light most favorable to plaintiffs, a reasonable 2 juror could determine that the circumstances Woo encountered did 3 not demonstrate an imminent danger to the children's life or 4 limb." Southerland II , 521 F. Supp. 2d at 234 n.29. The court 5 further decided that "a reasonable juror could find that there 6 was sufficient time to acquire a court order prior to the 7 removal." Id. at 235 n.31. In light of those determinations, 8 with which we agree, and our assessment that the relevant law was 9 clearly established by 1997, we cannot conclude as a matter of 10 law that "it was objectively reasonable for [Woo] to believe 11 [that his] acts did not violate those [clearly established] 12 rights." Holcomb , 337 F.3d at 220. Qualified immunity therefore 13 is not available to Woo on the plaintiffs' procedural due process 14 claims at the summary judgment stage. Because summary judgment 15 also cannot be granted to the defendants on the underlying merits 16 of these claims, 22we vacate the grant of summary judgment to Woo 17be explained below, important factual questions remain concerning the post-removal judicial confirmation proceedings, if any, that took place in the days after the Southerland Children's removal from their home.
51 as to the procedural due process claims. 1 VI. Southerland's Substantive Due Process Claim 2 Southerland asserts a substantive due process claim 3 against Woo under the Fourteenth Amendment. The district court 4 held not only that qualified immunity attached to Woo's actions, 5 but also that summary judgment would be warranted on the merits 6 even in the absence of qualified immunity. We agree that Woo is 7 entitled to summary judgment on the merits, and we therefore 8 affirm this portion of the district court's judgment. 9

A.Substantive Due Process in the Child-Removal Context 10 Substantive due process rights safeguard persons 11 "against the government's 'exercise of power without any 12 reasonable justification in the service of a legitimate 13 governmental objective.'" Tenenbaum, 193 F.3d at 600 (quoting 14 County of Sacramento v. Lewis , 523 U.S. 833, 846 (1998)). "To 15 establish a violation of substantive due process rights, a 16 plaintiff must demonstrate that the state action was 'so 17 egregious, so outrageous, that it may fairly be said to shock the 18 contemporary conscience.'" Okin , 577 F.3d at 431 (quoting Lewis , 19 523 U.S. at 847 n.8). The interference with the plaintiff's 20 protected right must be "'so shocking, arbitrary, and egregious 2152 that the Due Process Clause would not countenance it even were it 1 accompanied by full procedural protection.'" Anthony , 339 F.3d 2 at 143 (quoting Tenenbaum, 193 F.3d at 600); see alsoLewis , 523 3 U.S. at 840 (doctrine of substantive due process "bar[s] certain 4 government actions regardless of the fairness of the procedures 5 used to implement them" (internal quotation marks omitted)). 6 Thus, in the child-removal context, we ask whether "the 7 removal . . . would have been prohibited by the Constitution even 8 had the [plaintiffs] been given all the procedural protections to 9 which they were entitled." Tenenbaum, 193 F.3d at 600 (emphasis 10 omitted). 11 We have long recognized that parents have a 12 "constitutionally protected liberty interest in the care, custody 13 and management of their children," id. at 593, and that the 14 deprivation of this interest is actionable on a substantive due 15 process theory, seeid. at 600 (recognizing a "substantive right 16 under the Due Process Clause 'to remain together without the 17 coercive interference of the awesome power of the state'" 18 (quoting Duchesne , 566 F.2d at 825)). We have also observed, 19 however, that "[a]lthough parents enjoy a constitutionally 20 protected interest in their family integrity, this interest is 21 counterbalanced by the compelling governmental interest in the 22 protection of minor children, particularly in circumstances where 23 the protection is considered necessary as against the parents 2453 themselves." Wilkinson ex rel. Wilkinson v. Russell , 182 F.3d 1 89, 104 (2d Cir. 1999) (internal quotation marks omitted), cert. 2 denied , 528 U.S. 1155 (2000). 3 We have explained that, in part because the law 4 contemplates a careful balancing of interests, a parent's 5 substantive constitutional rights are not infringed if a 6 caseworker, in effecting a removal of a child from the parent's 7 home, has a reasonable basis for thinking that a child is abused 8 or neglected. Seeid. ; Gottlieb , 84 F.3d at 518. "This Circuit 9 has adopted a standard governing case workers which reflects the 10 recognized need for unusual deference in the abuse investigation 11 context. An investigation passes constitutional muster provided 12 simply that case workers have a 'reasonable basis' for their 13 findings of abuse." Wilkinson , 182 F.3d at 104; see alsoid. at 14 108 (concluding that the "reasonable basis test" requires that 15 caseworkers' decisions to substantiate an allegation of child 16 abuse "be consistent with some significant portion of the 17 evidence before them"). We have applied this "reasonable basis" 18 standard from time to time in recent years. See, e.g. , 19 Nicholson , 344 F.3d at 174; Phifer v. City of N.Y. , 289 F.3d 49, 20 60 (2d Cir. 2002); Kia P. , 235 F.3d at 758-59. 21 We have also recognized that state interference with a 22 plaintiff's liberty interest must be severe before it rises to 23 the level of a substantive constitutional violation. See, e.g. , 2454 Anthony, 339 F.3d at 143. "The temporary separation of [a child] 1 from her parents" does not constitute an "interference [that is] 2 severe enough to constitute a violation of [the parents'] 3 substantive due-process rights," Tenenbaum, 193 F.3d at 601; see 4 also, e.g. , Kia P. , 235 F.3d at 759; Cecere , 967 F.2d at 830 5 (ruling that plaintiff's generalized due-process claim failed 6 because a "brief" four-day removal, executed "in the face of a 7 reasonably perceived emergency," did not violate due process); 8 Joyner ex rel. Lowry v. Dumpson , 712 F.2d 770, 779 (2d Cir. 1983) 9 (concluding that there was no substantive due process violation 10 where temporary transfer of custody to foster-care system did not 11 "result in parents' wholesale relinquishment of their right to 12 rear their children"). In Tenenbaum, we observed that in other 13 contexts, our court and the Supreme Court had held that even very 14 brief seizures or detentions could violate the Fourth Amendment 15 rights of criminal suspects. SeeTenenbaum, 193 F.3d at 601 16 (citing Davis v. Mississippi , 394 U.S. 721 (1969), which held 17 that police detention, even for a brief period of time, violated 18 the Fourth Amendment where there was no probable cause to arrest, 19 and United States v. Langer , 958 F.2d 522, 524 (2d Cir. 1992), 20 which held that police detention even for ten to fifteen minutes 21 was "constitutionally significant" for purposes of 18 U.S.C. § 22 242). We reasoned, however, that "[i]t does not follow from the 23 principle that brief seizures of people may be unreasonable and 2455 therefore violate the Fourth Amendment that brief removals of 1 children from their parents to protect them from abuse are 2 without any reasonable justification in the service of a 3 legitimate governmental objective under the Due Process Clause." 4 Tenenbaum, 193 F.3d at 601 (internal quotation marks and citation 5 omitted). 6 Thus, "brief removals [of a child from a parent's home] 7 generally do not rise to the level of a substantive due process 8 violation, at least where the purpose of the removal is to keep 9 the child safe during investigation and court confirmation of the 10 basis for removal." Nicholson , 344 F.3d at 172 (citing 11 Tenenbaum, 193 F.3d at 600–01 & n.12). And once such "court 12 confirmation of the basis for removal" is obtained, id. , any 13 liability for the continuation of the allegedly wrongful 14 separation of parent and child can no longer be attributed to the 15 officer who removed the child. Cf., e.g. , E.D. ex rel. V.D. v. 16 Tuffarelli , 692 F. Supp. 2d 347, 354, 368 (S.D.N.Y. 2010) 17 (applying brief-removal doctrine, and granting summary judgment 18 in favor of defendants, where family court confirmed the basis 19 for ACS's temporary removal of children three days after removal 20 occurred), aff'd , 408 F. App'x 448 (2d Cir. 2011). 21

B.Analysis 22 The district court, in deciding that Woo enjoyed 23 qualified-immunity protection as to these charges, observed that 2456 the Southerland Children "were removed in the context of a child 1 protective investigation [in which] removal would be subject to 2 court confirmation," Southerland II , 521 F. Supp. 2d at 232, and 3 that "a timely post-deprivation hearing [was held] where a family 4 court judge confirmed the removal," id. at 234. The court 5 therefore concluded that it was objectively reasonable for Woo to 6 think that Southerland's rights were not being violated because 7 "[b]rief removals of children from their parents generally do not 8 rise to the level of a substantive due process violation." Id. 9 at 232 (brackets and internal quotation marks omitted). 10 We agree with the district court that the removal of 11 children from their parent for the purpose of keeping the 12 children safe does not violate the parent's substantive due 13 process rights if a post-removal judicial proceeding is promptly 14 held to confirm that there exists a reasonable basis for the 15 removal. The period of time in which the child and parent are 16 separated solely at the instance of the defendant is, in such a 17 case, not sufficient to amount to a substantive due process 18 violation by the defendant caseworker. SeeNicholson , 344 F.3d 19 at 172; Kia P. , 235 F.3d at 759; Tenenbaum, 193 F.3d at 600-01. 20 This is not a matter of the defendant's qualified immunity: 21 Where the "brief-removal doctrine" applies, a plaintiff does not 22 have a cause of action for a substantive due process violation in 23 the first place. See, e.g. , Kia P. , 235 F.3d at 759 (applying 2423These problems persist despite our prior instruction that Southerland "be given an opportunity to prove . . . that the subsequent family court proceedings were insufficiently prompt to pass constitutional muster." Southerland I , 4 F. App'x at 36.
57 brief-removal doctrine and concluding that plaintiff's "rights to 1 substantive due process were not abridged"). 2 The viability of such a substantive due process cause 3 of action on the facts of this case is not an easy judgment to 4 make because the record is not entirely clear as to whether such 5 a post-removal judicial proceeding occurred, and if so, the 6 nature of it. In a previous opinion, the district court 7 explained that the Southerland Children "remained in custody 8 without a court order until the morning of June 12 , 1997, at 9 which time Woo obtained a court order confirming the removal." 10 Southerland v. City of N.Y. , No. 99-cv-3329, 2006 WL 2224432, at 11 *1, 2006 U.S. Dist. LEXIS 53582, at *4 (E.D.N.Y. Aug. 2, 2006) 12 (emphasis added). But Woo declared that "[t]he Family Court 13 affirmed the removal of the Southerland/Felix children . . . on 14 June 13 , 1997," Woo Decl. ¶ 24, and Balan stated that "[t]he 15 removal was affirmed by Family Court on June 14 , 1997," Balan 16 Decl. ¶ 18. It is also unclear whether Southerland was present 17 at that hearing, whenever it was, or on what factual basis the 18 Family Court decided that the continued removal of the 19 Southerland Children was warranted. 23 2058 We nonetheless conclude that summary judgment was 1 warranted. Southerland and the Southerland Children dispute 2 neither that a post-removal judicial confirmation proceeding was 3 held nor that it took place within four days after removal. See 4 Southerland Children's Br. at 23; Pro SePl.'s Opp'n to Defs.' 5 Mot. for Summ. J. ¶¶ 36-37, Pro SeSubmission of Sonny B. 6 Southerland at 7 (Dkt. No. 192), Southerland v. City of N.Y. , No. 7 99-cv-3329 (E.D.N.Y. Mar. 14, 2007). Therefore, based on this 8 concession, only the (at most) four days of removal prior to the 9 court hearing are attributable to Woo. Tuffarelli , 692 F. Supp. 10 2d at 354, 368. In light of this concession, the question 11 becomes: Was the four-day period a "shocking, arbitrary, and 12 egregious" amount of time for Southerland to have been separated 13 from his children at Woo's instruction, i.e., without an 14 intervening judicial confirmation of the basis for removal. 15 Anthony, 339 F.3d at 143 (internal quotation marks omitted). 16 We conclude, on the basis of previous consideration of 17 similar circumstances by courts in this Circuit and our own 18 judgment, that the four-day separation under these circumstances 19 was not so long as to constitute a denial of substantive due 20 process to Southerland. SeeKia P. , 235 F.3d at 759 ("day or 21 two" removal to review a child's case did not violate substantive 22 due process); Tuffarelli , 692 F. Supp. 2d at 368 (no substantive 23 due process violation where children were removed on a Friday 2424As noted above, supraat 16 & n.9, because we affirm on that basis, we need not consider whether Southerland's substantive due process claim would be defeated on the alternate ground that Ciara and the Southerland Children were adjudged to be abused and neglected by the Family Court in July 1998.
59 evening, and judicial proceedings commenced in a timely manner on 1 the following Monday); Green ex rel. T.C. v. Mattingly , 07-cv2 1790(ENV)(CLP), 2010 WL 3824119, at *10, 2010 U.S. Dist. LEXIS 3 99864, at *34-35 (E.D.N.Y. Sept. 23, 2010) (four-day removal of 4 child during ACS investigation did not violate substantive due 5 process). 6 Although the Southerland Children continued to be 7 separated from Southerland even after the post-removal 8 confirmation proceeding, in light of the presumption of 9 regularity that we attribute to state judicial proceedings, see, 10

e.g. , Honeycutt v. Ward , 612 F.2d 36, 41 (2d Cir. 1979), and in 11 light of Southerland's failure to proffer any evidence tending to 12 rebut that presumption, we cannot conclude that the continued 13 separation of Southerland from his children following the 14 judicial confirmation proceeding is fairly attributable to Woo. 15 We therefore conclude that Southerland's substantive due process 16 claim fails on its merits. 24Accordingly, we affirm the grant of 17 summary judgment to Woo on that basis as to this claim. 1860 VII. The Southerland Children's Fourth Amendment 1 Unlawful-Seizure Claim 2 Finally, the Southerland Children assert a claim for 3 violation of their Fourth Amendment right to be free from 4 unreasonable seizure. 5

A. Evolution of the Southerland Children's Theory of Liability 6 The Southerland Children originally characterized this 7 constitutional claim as arising under the Due Process Clause of 8 the Fourteenth Amendment. Specifically, they alleged that "Woo 9 lacked a reasonable basis for removing the [Southerland] Children 10 from plaintiff's home without a court order," and that "[i]n so 11 doing, Woo deprived the [Southerland] Children of their 12 substantive due process liberty interests in being in the care 13 and custody of their father and natural guardian, guaranteed to 14 them by the [F]ourteenth [A]mendment." Am. Compl. ¶ 51. They 15 relied upon the Fourteenth Amendment notwithstanding our 16 observation in Southerland Ithat "[t]he children's claims for 17 unreasonable seizure would proceed under the Fourth Amendment [as 18 applied to the states by the Fourteenth] rather than the 19 substantive component of the Due Process Clause." Southerland I , 20 4 F. App'x at 37 n.2 (citing Kia P. , 235 F.3d at 757-58). 21 By the time of the summary judgment proceedings after 22 remand, the Southerland Children appeared to recognize that their 23 claim did indeed arise under the Fourth Amendment. See 24 Southerland Children's Mem. of Law in Opp'n to Mot. for Summ. J. 2561 at 16-20 ("Children's Dist. Ct. Br.") (Dkt. No. 184), Southerland 1 v. City of N.Y. , No. 99-cv-3329 (E.D.N.Y. Dec. 29, 2006) (arguing 2 the Southerland Children's substantive due process claim as 3 though it arose under the Fourth Amendment). And in its opinion 4 resolving the summary judgment motion, the district court 5 correctly noted that the Southerland Children's substantive due 6 process constitutional claim was governed by the Fourth 7 Amendment. SeeSoutherland II , 521 F. Supp. 2d at 230 n.24 8 (citing Southerland I , 4 F. App'x at 37 n.2). 9 The Southerland Children also narrowed their theory of 10 liability as to the legal substance of that claim. Originally, 11 they pled that the removal was unconstitutional both because it 12 lacked a "reasonable basis," Am. Compl. ¶ 51, and because the 13 removal had the effect of separating them from Southerland, 14 thereby depriving them of their "liberty interests in being in 15 the care and custody of their father," id. In effect, the 16 Southerland Children thus pled boththat their warrantless 17 seizure was unreasonable because it was not supported by an 18 exception to the Fourth Amendment warrant requirement (no 19 "reasonable basis"), andthat the seizure was unreasonable 20 insofar as it burdened the Southerland Children's substantive due 21 process right to "be[] in the care and custody of their 2225A Fourth Amendment unlawful-seizure claim differs from a Fourth Amendment unlawful-search claim. It is not yet clear from the case law of our Circuit what kinds of Fourth Amendment unlawful-seizure claims might be asserted by a child who is removed from his or her home. From reviewing our past decisions and those of other circuits, however, we can identify at least three possibilities. First, a child might assert that the act of seizure itself lacked a lawful basis, such as consent, probable cause, or exigent circumstances. See, e.g. , Southerland II , 521 F. Supp. 2d at 234 n.29 (evaluating Southerland Children's Fourth Amendment unlawful-seizure claim in those terms). Second, a child might assert that the seizure was carried out in an unreasonable manner, such as through the use of excessive force or through a sudden, surprise raid. See, e.g. , Brokaw v. Mercer County, 235 F.3d 1000, 1011-12 (7th Cir. 2000) (upholding manner-of-seizure claim brought by child removed from his home where officers "acted like kidnappers"). Third, a child might assert that the seizure endured for an unreasonable length, and thereby burdened the child's interest in being in the care and custody of his or her parents. See, e.g. , Hernandez ex rel. Hernandez v. Foster , 657 F.3d 463, 474 (7th Cir. 2011) (recognizing and upholding seized child's claim for "continued withholding" under the Fourth Amendment); see also Albright v. Oliver , 510 U.S. 266, 276-81 (1994) (Ginsburg, J. ,concurring) (endorsing "continuing seizure" doctrine in the lawenforcement context); Fontana v. Haskin , 262 F.3d 871, 878-80 & nn.4-5 (9th Cir. 2001) (discussing "continuing seizure" doctrine and collecting cases).

62 father." 25 1 In their submission opposing the defendants' summary 2 judgment motion, however, the Southerland Children appeared to 3 have abandoned the theory that the seizure unreasonably burdened 4 their due process right to their father's care and custody. In 5 other words, they no longer challenged the reasonableness of the 663 effect or duration of their removal as a violation of their 1 rights to substantive due process. Instead, they argued only 2 that the removal was unconstitutional as an unlawful seizure 3 because the act of removal itself was unsupported by sufficient 4 legal justification: Woo could not demonstrate the existence of 5 either parental consent or exigent circumstances that would 6 justify the act of removal absent prior judicial authorization. 7 See generallyChildren's Dist. Ct. Br. at 16-20. 8

B. District Court's Analysis 9 The district court properly analyzed this claim solely 10 by reference to the theory set forth in the Southerland 11 Children's summary-judgment briefing -- i.e., that their Fourth 12 Amendment rights had been violated because there were no "exigent 13 circumstances" justifying their removal without a court order. 14
SeeSoutherland II , 521 F. Supp. 2d at 234 n.29. In light of the 15 Southerland Children's abandonment of any of the other alleged 16 theories of liability, especially under principles of substantive 17 due process, the district court correctly framed the claim in 18 this manner. 19 As with the procedural due process claim, seesupra 20 Part V.A., the court concluded that at the time of the alleged 21 seizure, "there was no clear application of Fourth Amendment 22 standards in the child removal context." Southerland II , 521 F. 23 Supp. 2d at 231. The court pointed, in particular, to Tenenbaum, 2426 In employing this "imminent danger" standard, the district court appears to have relied on section 1024(a) of the New York Family Court Act. SeeSoutherland II , 521 F. Supp. 2d at 234 n.29. That statute provides that a child-protective worker may effect an ex parteremoval of a child only where the worker has "reasonable cause to believe that the child is in such circumstance or condition that his or her continuing in . . . the care and custody of the parent . . . presents an imminent danger to the child's life or health" and where "there is not time enough to apply for a[] [court] order." N.Y. Fam. Ct. Act § 1024(a).Our assessment of the lawfulness of the removal of the Southerland Children from their home, however, is controlled by federal, not state, standards. See, e.g. , United States v. Chirino , 483 F.3d 141, 149 (2d Cir. 2007).
64 193 F.3d at 605, our decision that viewed Fourteenth Amendment 1 due process claims as properly Fourth Amendment unlawful-seizure 2 claims of the sort asserted here, but that had not issued until 3 after the seizure in this case. SeeSoutherland II , 521 F. Supp. 4 2d at 231. Based on the absence of clear law at the time of the 5 Southerland Children's removal, the court held, as a matter of 6 law, that Woo was protected from this claim by qualified 7 immunity. Id. at 231. 8 In addition to the immunity question, and despite 9 finding in Woo's favor on it, the district court nonetheless 10 addressed the merits of the Southerland Children's Fourth 11 Amendment unlawful-seizure claim. It concluded in a footnote 12 that, "[i]n the absence of Woo's qualified immunity defense," 13 summary judgment would not be warranted on this claim on its 14 underlying merits because "a reasonable juror could determine 15 that the circumstances Woo encountered did not demonstrate an 16 imminent danger to the children's life or limb." 26Id. at 234 17 n.29. 1865 C.Appeal 1 On appeal, the Southerland Children appear to persist 2 in their view that their Fourth Amendment unlawful-seizure claim 3 is addressed solely to the issue of whether there was a legal 4 basis for the act of removal. SeeSoutherland Children's Br. at 5 24, 36-41; Woo Br. at 36-37; Southerland Children's Reply Br. at 6 6-8. We review the argument in those terms, treating as 7 abandoned any argument the Southerland Children might have made 8 that the removal was unreasonable because it had an unlawful 9 effect or was of unlawful duration, and was therefore a violation 10 of their substantive due process rights. SeeCity of N.Y. v. 11 Mickalis Pawn Shop, LLC , 645 F.3d 114, 137 (2d Cir. 2011). 12 1. Standard for Evaluating Unlawful-Seizure Claims in the 13 Child-Removal Context 14 By way of footnote, the district court decided that Woo 15 was entitled to summary judgment with respect to the claim that 16 the removal was unlawful. In doing so, the court assumed that a 17 seizure of a child without a court order is constitutionally 18 justified under the Fourth Amendment only if there are "exigent 19 circumstances." SeeSoutherland II , 521 F. Supp. 2d at 234 n.29. 20 This Court, however, has yet to articulate definitively the legal 21 standard that applies to a Fourth Amendment unlawful-seizure 22 claim brought by a child alleging that his or her removal without 23 parental consent or prior judicial authorization was not 24 supported by sufficient cause. 2566 In Tenenbaum, we considered this question, apparently 1 for the first time. See193 F.3d at 603-05. We described, in 2 dicta , three possible "modes of determining whether a seizure was 3 'reasonable' under the Fourth Amendment . . . in cases where the 4 state seizes a child in order to prevent abuse or neglect." Kia 5

P. , 235 F.3d at 762 (citing and discussing Tenenbaum, 193 F.3d at 6 603-05). 7 As one mode, we referred to the "exigent circumstances" 8 exception to the warrant requirement that is well-established in 9 the law-enforcement context. SeeTenenbaum, 193 F.3d at 604 10 (noting that "it is core Fourth Amendment doctrine that a seizure 11 without consent or a warrant is a 'reasonable' seizure if it is 12 justified by 'exigent circumstances'"); seegenerallyUnited 13 States v. Klump , 536 F.3d 113, 117-19 (2d Cir. 2008) (describing 14 and applying the "exigent circumstances" exception in 15 law-enforcement context), cert. denied , 129 S. Ct. 664 (2008); 16 United States v. MacDonald , 916 F.2d 766, 769-70 (2d Cir. 1990) 17 (en banc) (elaborating standards). We concluded that such an 18 exception would be viable in the child-removal context too. 19 Tenenbaum, 193 F.3d at 604-05. We suggested that that exception 20 would apply when "a child is subject to the danger of abuse if 21 not removed . . . before court authorization can reasonably be 22 obtained." Id. at 605. 23
2467 As another mode, we said that a seizure conducted in 1 accordance with the ordinary probable-cause standard -- the 2 standard that applies in the law-enforcement context -- might 3 also suffice. Under such a rule, a caseworker could lawfully 4 remove a child from his or her home without parental consent or 5 prior judicial authorization if the caseworker knew "facts and 6 circumstances that were sufficient to warrant a person of 7 reasonable caution in the belief that" a child was abused or 8 neglected. Id. at 602-03 (internal quotation marks omitted). 9 Alternatively, we noted that under some circumstances 10 an even lesser, "special needs," standard might apply, in which 11 case only "reasonable cause" would be necessary to render lawful 12 a warrantless seizure. Seeid. at 603-04. That would reflect 13 the principle that "there are some agencies outside the realm of 14 criminal law enforcement where government officials have 'special 15 needs beyond the normal need for law enforcement [that] make the 16 warrant and probable-cause requirement impracticable.'" Id. at 17 603 (quoting O'Connor v. Ortega , 480 U.S. 709, 720 (1987) 18 (plurality opinion)) (alterations in Tenenbaum). We observed, 19 however, that case law in our sister circuits suggested that the 20 "emergency removal of a child by caseworkers is not such a 21 'special needs' situation." Id. at 603-04 (collecting cases). 22 We did not decide in Tenenbaumwhich of those three 23 standards should apply as the constitutional floor in 2468 child-removal cases -- i.e., the standard below which an officer 1 could not go without violating the Fourth Amendment. Id. at 605; 2

seealsoKia P. , 235 F.3d at 762-63 (reserving same question). 3 But we did conclude that, at least "where information possessed 4 by a state officer would warrant a person of reasonable caution 5 in the belief that a child is subject to the danger of abuse if 6 not removed from school before court authorization can reasonably 7 be obtained, the 'exigent circumstances' doctrine . . . permits 8 removal of the child without a warrant equivalent and without 9 parental consent." Tenenbaum, 193 F.3d at 605 (citing Hurlman , 10 927 F.2d at 80); seealsoPhifer , 289 F.3d at 60-61 (recognizing 11 and applying this holding in the context of a Rooker-Feldman 12 analysis). And, subsequent to Tenenbaum, we have assumed that 13 the standard to be applied to such claims cannot be any less than 14 probable cause. SeeNicholson , 344 F.3d at 173 ("We have not 15 addressed . . . the question whether[,] in the context of the 16 seizure of a child by a state protective agency[,] the Fourth 17 Amendment might impose any additional restrictions above and 18 beyondthose that apply to ordinary arrests." (emphasis added)). 19 Again here, we need not adopt a standard. We observe 20 first, as we did in Tenenbaum, that this case does not present 21 circumstances in which the "special needs" test applies, if ever 22 it does in the child-removal context. Tenenbaum, 193 F.3d at 2327Case law from our sister circuits, subsequent to Tenenbaum, concludes that the "special needs" test is never applicable in this context. See, e.g. , Siliven v. Ind. Dep't of Child Servs. , 635 F.3d 921, 926-28 (7th Cir. 2011); Riehm v. Engelking , 538 F.3d 952, 965 (8th Cir. 2008); Gates v. Texas Dep't of Protective & Regulatory Servs. , 537 F.3d 404, 427-29 (5th Cir. 2008).

28Our sister circuits apply somewhat divergent standards in determining whether a seizure of a child without judicial authorization or parental consent violates the Fourth Amendment. See, e.g. , SeeSiliven , 635 F.3d at 926-28 (probable cause or exigent circumstances sufficient); Riehm, 538 F.3d at 965 (same); Gates , 537 F.3d at 427-29 (exigent circumstances required); Wallis v. Spencer , 202 F.3d 1126, 1136 (9th Cir. 2000) (same).
69 603. 27In this case "the requirement of obtaining the equivalent 1 of a warrant where practicable [would not] impose[] intolerable 2 burdens on the government officer or the courts, [and] would 3 [not] prevent such an officer from taking necessary action, or 4 tend to render such action ineffective," Tenenbaum, 193 F.3d at 5 604. 6 The elimination of a possible "special needs" approach 7 leaves either the probable-cause or exigent-circumstances 8 standard applicable to the merits of whether Woo's behavior 9 violated the Children's constitutional rights. 28But we need not 10 decide between them -- at least not yet. As explained below, 11 regardless of which standard applies, Woo cannot establish as a 12 matter of law on the current record that he would be entitled to 13 qualified immunity or that no reasonable jury could find in favor 14 of the Children on the merits of their Fourth Amendment seizure 15 claim. 1670 2. Qualified Immunity 1 The district court decided that Woo was entitled to 2 qualified immunity because "prior to the Court of Appeals' 3 decision in Tenenbaum[in 1999], there was no clear application 4 of Fourth Amendment standards in the child removal context." 5 Southerland II , 521 F. Supp. 2d at 231. Although we agree with 6 the district court's observation that this Circuit had not yet 7 applied Fourth Amendment unlawful-seizure principles in the 8 child-removal context by 1997, we think that the district court 9 erred by conducting its inquiry solely by reference to the 10 label -- "unlawful seizure" -- attached to the claim at issue. 11 Our decision in Tenenbaumdid indeed effect a change in 12 the constitutional nomenclature governing a child's claim for 13 alleged substantive constitutional violations arising out of his 14 or her removal from a parental home. There, the plaintiffs 15 contended that "[their daughter's] temporary removal [from 16 school] for the purpose of subjecting her to a medical 17 examination violated their and [their daughter's] substantive 18 due-process rights." Tenenbaum, 193 F.3d at 599. We noted that 19 the Supreme Court observed in Albright v. Oliver , 510 U.S. at 20 273, that 21 where a particular Amendment provides an 22 explicit textual source of constitutional 23 protection against a particular sort of 24 government behavior, that Amendment, not the 25 more generalized notion of substantive due 26 process, must be the guide for analyzing 27 these claims. 2829We have since reaffirmed that "the Fourth Amendmentapplies in the context of the seizure of a child by a governmentagency official during a civil child-abuse or maltreatment investigation." Kia P. , 235 F.3d at 762. We relied on Kia P. in turn in Southerland Iin advising that "[t]he [Southerland] children's claims for unreasonable seizure would proceed under the Fourth Amendment rather than the substantive component of the Due Process Clause." Southerland I , 4 F. App'x at 37 n.2.
71 Tenenbaum, 193 F.3d at 599 (brackets and internal quotation marks 1 omitted). We said that "'[s]ubstantive due process analysis 2 is . . . inappropriate . . . if [the] claim is covered by the 3 Fourth Amendment.'" Id. at 600 (quoting Lewis , 523 U.S. at 843) 4 (second brackets in original; other internal quotation marks 5 omitted). We then concluded that the daughter's "removal and her 6 examination constituted a seizure and search, respectively, under 7 the Fourth Amendment," id. , and that her claim "therefore 'must 8 be analyzed under the standard appropriate to [the Fourth 9 Amendment], not under the rubric of substantive due process.'" 10 Id. (quoting United States v. Lanier , 520 U.S. 259, 272 n.7 11 (1997)). 29 12 The fact that Tenenbaumchanged the legal "rubric" 13 applicable to the Southerland Children's constitutional claim -- 14 from substantive due process to illegal seizure -- however, is 15 not alone determinative of whether the constitutional rights 16 implicated in the Children's seizure were clearly established 17 prior to the time of the seizure. It would be inappropriate, we 18 think, to afford Woo qualified immunity on the Southerland 19 Children's claim solely because, two years after the events in 2072 question, we shifted the constitutional labelfor evaluating that 1 claim from the Fourteenth to the Fourth Amendment. But cf. 2 Tenenbaum, 193 F.3d at 605 (resting grant of qualified immunity 3 on basis that there "was no 'clearly established' law under the 4 Fourth Amendment" in 1990 concerning standards for removing a 5 child from her school). What matters is whether an objectively 6 reasonable caseworker in Woo's position would have known that 7 removing a child from his or her home without parental consent, 8 circumstances warranting the removal, or court order would 9 violate a constitutional right -- not whether the caseworker 10 would have known which constitutional provisions would be 11 violated if the caseworker proceeded to act in a particular way. 12 We reached a similar conclusion in Russo v. City of 13 Bridgeport , 479 F.3d 196 (2d Cir.), cert. denied , 552 U.S. 818 14 (2007). There we made clear that the constitutional "right to be 15 free from prolonged detention caused by law enforcement 16 officials' mishandling or suppression of exculpatory evidence," 17 id. at 211, was a species of the right to be free from unlawful 18 seizure under the Fourth Amendment, not a substantive due process 19 right under the Fourteenth Amendment, seeid. at 208-09. In then 20 proceeding to undertake a qualified-immunity inquiry, we 21 cautioned that our "clarification [of the law was] of no 22 consequence to the question of whether the right was clearly 23 established [at the time of the relevant events], because the 24 proper inquiry is whether the rightitself -- rather than its 2573 source-- is clearly established." Id. at 212 (collecting cases; 1 emphases in original). 2 Here, as in Russo , in inquiring whether there was 3 clearly established law to govern the Southerland Children's 4 claim in 1997, we look not only to authorities interpreting the 5 Fourth Amendment, but to all decisions concerning the same 6 substantive right -- the right of a child not to be seized from 7 his or her home without parental consent, prior judicial 8 authorization, or the existence of special circumstances. 9 Although the standard for determining whether the 10 circumstances justify seizure of a child without judicial 11 authorization or parental consent under the Fourth Amendment was 12 not established by 1997 and, as we have pointed out, remains 13 unsettled to this day, the Children's right not to be taken from 14 the care of their parent without court order, parental consent, 15 or emergency circumstances was firmly established, albeit under a 16 procedural due process framework. SeeHurlman , 927 F.2d at 80. 17 Regardless of whether probable cause or exigent circumstances 18 must be established to justify a warrantless seizure for Fourth 19 Amendment purposes, the existence of emergency circumstances 20 sufficient to justify removal of the Southerland Children in a 21 manner comporting with their due process rights would also 22 certainly suffice to justify their removal in a manner comporting 23 with their Fourth Amendment rights barring unreasonable 2430Seesupra , note 21 (discussing the distinction between an exigent circumstances and an emergency circumstances standard).
74 seizure. 30To that extent, at the time of the events in this 1 case, the Southerland Children's Fourth Amendment rights against 2 unreasonable seizure were clearly established. 3 In light of this determination, the next question the 4 Court must address is whether "it was objectively reasonable for 5 [Woo] to believe [that his] acts did not violate th[e Childrens' 6 clearly established] right[]," Holcomb , 337 F.3d at 220, not to 7 be taken from the care of their parent without court order, 8 parental consent, or emergency circumstances. Once again, for 9 the purposes of the qualified immunity analysis, the legal origin 10 of the right is not determinative. If Woo has established that 11 he was objectively reasonable in believing that he did not 12 violate the Children's right to be free from unwarranted seizure 13 without exigent circumstances, court order, or parental consent, 14 then he is protected against their Fourth Amendment seizure 15 claim, no matter the standard used to determine liability on this 16 claim on the merits. For the same reasons as in our procedural 17 due process analysis -- that we cannot conclude as a matter of 18 law on the current record that it would have been objectively 19 reasonable for Woo to believe that his actions did not violate 20 the Children's constitutional right not to be removed from their 21 home barring exigent circumstances – we cannot conclude as a 22 matter of law that Woo must prevail on the "objectively 2375 reasonable" inquiry as to the violation of the children's Fourth 1 Amendment illegal seizure claims. Seesupra, Part V. Thus, 2 qualified immunity is unavailable to Woo at this stage on the 3 current record. 4 3. The Merits of the Fourth Amendment Unlawful Seizure Claim 5 Because we conclude here that Woo is not entitled to 6 qualified immunity as a matter of law, at least on this record, 7 the remaining question is whether Woo is entitled to summary 8 judgment on the merits. The district court assumed that a 9 seizure of a child without a court order or parental consent is 10 constitutionally justified under the Fourth Amendment only if 11 there are "exigent circumstances." SeeSoutherland II , 521 F. 12 Supp. 2d at 234 n.29. It concluded that, taking the evidence in 13 the light most favorable to the Southerland Children, "a 14 reasonable juror could determine that the circumstances Woo 15 encountered did not demonstrate an imminent danger to the 16 children's life or limb." Id. 17 As our discussion here makes clear, however, this may 18 not be the standard that should apply in deciding the merits of 19 the Children's Fourth Amendment seizure claim. The district 20 court should reconsider the merits-question –- on an expanded 21 record if the court deems that appropriate –- cognizant of the 22 uncertainty in the legal landscape. The district court may need 23 to decide, in the first instance, what standard should apply, but 24 it may not. For example, if the court determines that under 2531On remand, with respect to both the conduct and determination of any further pretrial proceedings and a subsequent trial, if any, nothing in this opinion is intended to limit the district court's discretion to consider or admit into evidence (1) the outcome of the Family Court proceedings addressing and disposing of the claims of child abuse involving Southerland, or (2) testimony, documents, or physical evidence from those proceedings to the extent the outcome of those proceedings or other such evidence may bear on, inter alia , background, witness credibility, scope or amount of damages, Woo's professional judgment, or such other issues, as the district court may determine. We leave to the district court's
76 either standard the Southerland children can establish that the 1 circumstances in the home did not justify the seizure as a matter 2 of law, then it need not decide whether the probable cause or 3 exigent circumstances standard is applicable. 4 VIII. Further Development of the Record 5 As should be clear by now, nothing in this opinion 6 should be read to foreclose the district court from exercising 7 its sound discretion as to the nature and scope of any further 8 pretrial proceedings on remand. Cf. Huminski v. Corsones , 386 9 F.3d 116, 152 (2d Cir. 2004) (district court free to consider 10 whether granting additional discovery would be appropriate before 11 deciding a renewed motion for summary judgment on remand). The 12 district court may, although it need not, permit additional 13 discovery, a renewed motion for summary judgment, or both. And 14 it follows that, should this case proceed to trial, nothing in 15 this opinion should be construed as preventing the district court 16 from entertaining a properly supported motion for judgment as a 17 matter of law by the defendants. 31 18determination in the first instance the admissibility of any such evidence for any particular purpose.
77 **CONCLUSION** 1 For the foregoing reasons, we affirm the grant of 2 summary judgment as to Southerland's claim for infringement of 3 his substantive due process rights under the Fourteenth 4 Amendment. We vacate the district court's grant of summary 5 judgment as to Southerland's and the Southerland Children's 6 claims for Fourth Amendment violations arising out of the 7 allegedly unlawful search of the Southerland home; as to 8 Southerland's and the Southerland Children's claims for 9 violations of procedural due process under the Fourteenth 10 Amendment; and as to the Southerland Children's claim for 11 unlawful seizure under the Fourth Amendment and remand to the 12 district court for further proceedings. 13 Each party shall bear his, her or its own costs on 14 appeal. 15