F OR P UBLICATION



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

J A M I E K I R

K P A T R I C K , individually
, and as the natural father and leg a l
g uardian of B .W

. , a minor,

Plaintiff-Appellant
,

v

.

C O U N T Y O F W A S H O E ; A M Y R E Y N O L D S , W CDSS social worker; E L L E N W I L C O X , W CDSS social worker; L I

N D A K E N N E D Y , W CDSS social worker, Defendants-Appellees

. N o. 12-15080

D.C. No. 3:09-cv-00600- ECR-VPC

OPI NI ON

A ppeal from the United States District Court for the District of Nevada Edward C. Reed, J r ., Senior District J udg e, Presiding

Arg ued and Submitted J a nuary 28, 2014—University

of Nevada, L as Veg as

F iled J uly 10, 2015

B efore: Stephen Reinhardt, AlexKoz inski, and J ay S. B y bee, Circuit J udg es.

Opinion by

J udg e B y b e e; Partial Dissent by

J udg e Koz inskiK I R K P A T R I C K V

. C O U

N T Y O F W A S H O E 2

SUMMARY *

Civil Rights

The panel a ffirmed in part and r e v e r sed in part the district c ourt’s summary judg ment in favor of d efendants a nd remanded in a 42 U.S.C. § 1983 action ag ainst the County o f W a s hoe and three social workers alleg ing violations of t h e F ourth and F ourteenth Am e n dment w hen defendants took plaintiff’s biolog ical daug h ter, B .W

. , into protective c ustody when s h e w a s two day s o ld a n d placed her with a foster parent without obtaining prior judicial authoriz ation.

The panel affirmed the district court’s summary judg ment in favor of all o f the defendants on the Fo u r t ee n th Amendment claim alleg ed by plaintiff on h is own behalf. The pan e l h e l d that plaintiff did not have a constitutionally
recog niz ed liberty interest in his relationship with B .W

. when she was taken into custody because his paternity

was n ot y et established.

The panel reversed the district court’s summary judg ment in favor of two soc i a l workers and W a shoe County on the claim that they violated B .W .’s F ourth Amendment r i gh t to be free from unreasonable seiz ures. The p anel concluded that the district court erred in deciding that the complaint did not provide adequate notice that B

. W

. asserted a F ourth Amendment claim on her o wn behalf. The panel f urther

c o n c l uded that the social workers seiz ed B .W

. without obtaining a warrant under circumstances where a reasonable

* T h is su m m ary co n stitu

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

co u rt staf

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

th e read er.K I R K P A T R I C K V

. C O U

N T Y O F W A S H O E 3

j u ror mig ht find that a r easonable social worker c ould no t have d etermined that the child was in immine n t d a n g e r o f serious b o d i l y injury

. The panel determined that the social workers were not entitl e d t o q ualified immunity on B .W

. ’s F ourth Amendment claim.

The panel held th a t t h e evidence presented at least an inference of an unconstitutional, unofficial custom in Washoe County of taking custody of chi l d r en under non-ex ig ent circumstances, without obtaining prior judicial authoriz ation. The County therefore was not entitled to summary judg ment. The panel r emanded for further proceeding s on the F ourth Amendment claim filed on behalf o f B .W

. ag ainst these three defendants.

The panel affirmed the d istrict court’s summary judg ment in favor of social worker Amy Rey n olds wi t h r espect to all claims because the plaintiffs h ad not a l l eg ed any facts
sug g esting that she was involved with t h e decision to take custody of B .W

. Dissenting in part, J udg e Koz inski stated that the majority ig nored the Supreme Court’s clear admonition that qualified immunity protects all b ut the plai n l y incompetent or those who knowing ly violate the law. J u dg e Koz inski stated that the majority imposed personal liabil i ty on two child protective service workers whos e a ctions were any thing but malicious or incompetent.K I R K P A T R I C K V

. C O U

N T Y O F W A S H O E 4

COUNSEL

David J

. B eauvais (arg

u ed), Oakland, California; W illiam R. Kendall, Reno, Nevada; J effrey F riedman, Reno, Nevada, for Plaintiffs-Appellants.

B rian M. B r own (arg

ued) and Kevin A

. Pick, Thorndal, Armstrong
, Delk, B alkenbush & Eising er, Reno Nevada, for Defen dants-Appellees Amy Rey nolds, Ellen W ilcox
, a

nd L inda Kennedy

.

Herbert B

. K aplan (arg u ed), Deputy District Attorney ; Richard G ammick, District Attorney
, Reno, Nevada, for Defendant-Appellee W ashoe County

.

OP INION

B YB EE, Circuit J udg e:

“Government officials are required to obtain prior judicial authoriz ation before intruding on a pare n t ’ s custody of her child unless they possess information at the time of the seiz ure that establishes ‘reasonable c a use to believe that the child is in imminent dang er o f serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury .’” Mabe v. S an Bernar d i n o Cnty., Dep’t of Pub. Soc. Servs.
, 237 F .3d 1101, 1 106 (9th Cir. 2 001) (quoting W

allis v. Spencer
, 202 F .3d 1126, 1136 (9th Cir. 1999)). The W ashoe County Department of Social Services (W CDSS) took B .W

. into protective c ustody when she was two-day s old and p laced her w i t h a foster parent without obtaining prior judicial authoriz a tion. B .W .’s biolog ical father, J amie Kirkpatrick, filed this 42 U.S.C. § 1983 actionK I R K P A T R I C K V

. C O U

N T Y O F W A S H O E 5

ag ainst the Count y a n d three of its social workers, alleg ing violations of the F ourth and F o urteenth Amen d m e n ts. The district c ourt g ranted summary judg ment in favor of all of the defendants. W e have jurisdiction under 28 U.S.C. § 1291. W e review de novo the district cou r t ’ s order g ranting
summary judg ment. Oswalt v. Resolute Indus., Inc.
, 642 F .3d 856, 859 (9th Cir. 2011).

W e affirm in part and reverse in part the distric t c o u r t ’s grant of summary judg ment and remand for fur t h e r proceeding s.

I

A. The County Takes Custody of B.W

.

On J uly 15, 2008, Rachel W h itworth g ave b i r t h to her daug hter B .W

. at a h ospital in Reno, Ne v a d a

. Whitworth

a d m i t ted that she used methamphetamine throug hout her
preg n ancy , including as recently as two d a y s earlier. B

. W. tested positive for methamphetamine at birth. W h e n W h itworth informed hospital staff that her two other children

were in the custody o f the W CDSS, the hospital c ont a c t e d Chondra I thurralde, the W CDSS social w orker manag ing the
open case.

The nex t day
, I thurralde visited the hospital with WCDSS social worker Ellen W ilcox

. I thurralde notified the h o spital that W hitworth was an active methamphe tamine user w ho lacked stable housing and the supplies n ecessary to c are for

an infant and that the D epartment planned to terminate her parental rig hts vis-à-vis her two other children. W ilcox interviewed W hitworth, who ag ain a ckn o w ledg ed that she

was a methamphetamine user who did not have the means toK I R K P A T R I C K V

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N T Y O F W A S H O E 6

provide for B .W

. I n lig ht of t h i s information, W ilcox requested that the h ospital place a “ h old” on B .W

. to prevent her from being discharg ed. The hospital ty pically honors the Department’s hold request as a courtesy , but it is not a court order. The hold did not prevent W hitworth from interacting

w i t h B .W

. while they were in the hospital tog ether. The h ospital’s notes state that B

. W

. remained in the ro o m w i t h W h itwo r t h, who failed to feed the infant on schedule a nd keep her dry

. Meanwhile, W ilcox conferred wit h her

s u p e rvisor L inda Kennedy
, who authoriz ed W ilcox to t a k e custody of B .W

. when the hospital released th e i n fant. W ilcox informed W hitworth that she h a d placed a hold on the child a nd that a protective c ustody hearing would be scheduled.

On J uly 17, 2008, the hospi t a l d ischarg ed two-day -old B. W

. into the custody of the W CDSS. The Departm e n t arrang ed for B .W

. to stay with the f o s t e r parent who was caring for W hitworth’s other children. The W CDSS h ad not requested judicial authoriz ation before taking custody o f B .W

.

The family division of Nevada’s Second J udicial District Court held a protective custody he a r i n g the nex t day
, with W h i t worth p articipating by phone from the hospital. The
court d etermined that B .W

. should remain in protective custody d u e t o W hitworth’s ong o ing drug use, her lack o f stable housing a n d employ ment, her inability to provide for
t h e child, and the f

act that W h itworth’s other children we r e already in foster care.K I R K P A T R I C K V

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N T Y O F W A S H O E 7

B

. Kirkpatrick’s Involvement

J amie Kirkpatrick, B .W .’s biolog ical father, was present

a t the hospital when W hitworth g ave birth to B .W

. W h i l e W h itworth was preg nant, she n otified Kirkpatrick that h e mig ht b e the father, thoug h she also told him that there were other potential c a

n d i d a t e s

. Kirkpatrick spoke with Whitworth

a c ouple of times d

uring h e r p r e g nancy , but he did not participate in providing any ty pe of prenatal ca r e

. He

a c k n owledg ed that he did not know whether he was B

. W

. ’s biolog ical father at the time of her birth.

Kirkpatrick first learned o f the D e partment’s involvement

soon a fter it took custody of the child on J uly 17, 2008. He left his contact infor mation with W hitworth so that the Department could schedule a p aternity test to determine whether he w as B .W .’s biolog ical f ather. Kirkpatrick did not attend the protective custody hearing the nex t day
, but the
court ordered a paternity test at his request. The test revealed that Kirkpatrick is indeed B

. W .’s biolog ical father.

On J uly 28, 2008, the W CDSS f i l e d a p etition alleg ing that B .W

. was a child in ne e d o f protection. The court h eld hearing s on Au gu s t 25, 2008, and September 15, 2008. N e i t h er W hitworth nor Kirkpatrick a ttended despite being served with notice. Kirkpatrick v i s ited B .W

. twice before J anuary 2009, when h e a ttended a six -month permanency hearing a

nd ex pressed interes t in reunify ing with his daug hter. He returned to Reno—where B .W . lived with her foster family

—and beg an visiting his child more frequently

.

I n October 2009, Kirkpatrick initiated this § 1983 action
ag ainst W ashoe County
, Amy Rey nolds, E l len Wilcox
, a

nd L inda K ennedy

. F o llowing d iscovery
, the parties filed cross-K I R K P A T R I C K V

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N T Y O F W A S H O E 8

motions for summary judg ment. The distri c t co urt denied Kirkpat r i c k ’s motion for summary judg ment and g ranted
summary judg ment in favor o f W a shoe County and the three individual defendants. Kirkpatrick timely appealed.

I I

The state’s decision to take custody o f a child implicates the constitutional r ig hts of the parent and the child u nder the F ourteenth and F ourth Amendme n ts, respectively

. “Parents and c hildren have a well-elaborated constitutional rig ht to live tog ether without go vernmental interference. That rig ht is an essential l iberty interest protected by the F ourteenth Amendment’s g uarantee that parents and children will not be separated b y the state without due process of law ex cept in an emerg ency .” W

allis
, 202 F .3d at 11 3 6 (internal citations omitted). “The claims of the parents in this reg ard should properly b e a ssessed under the F ourteenth A mendment standard for interference with the rig ht to family association.” Id. at 1137 n.8. B ut “[ b] ecause only the ch i l d ren [ a] re

s u bjected to a seiz ure, their claims should properly b e assessed under the F o urth Amendment.” Id. Parents cannot assert that the seiz ure of their child violated their own F ourth A m e n d m ent rig hts. M

abe
, 237 F

. 3d a t 1111 (“[ The paren t ] has no standing t o c l a i m a v iolation o f [ the child’s] F ourth Amendment rig hts.”).

W e evaluate the claims of chi l d re n who are taken into
state custody under the F ourth Amendment rig ht t o b e f r ee from unreasonable seiz ures r ather than the F our t e e nth Amendment r ig ht to familial association “[ b] ecause [when] the F ourth Amendment provides an ex plicit tex tual source o f constitutional protection ag ainst this sort of phy si cally intrusi v e g o vernmental conduct, that Amendment, not theK I R K P A T R I C K V

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N T Y O F W A S H O E 9

more g eneraliz ed notion of ‘substantive due process,’ must be the g uide.” Graham v

. Connor
, 490 U.S. 386, 3 9 5 ( 1 989);

see also Southerland v. City of New Y ork
, 680 F

. 3d 127, 143 ( 2d Cir. 2011) ( “F or child removal claims broug ht b y t h e

c h ild, we have concluded that the Constitution provid e s a n alternative, more specif i c source of protection than substantive due process. W hen a child is taken int o s t a t e custody
, his or her person is ‘seiz ed’ for F ourth A mendment
purposes. Th e c h ild may therefore assert a claim under the F ourth Amendment that the seiz ure of his or her person was ‘unreasonable.’”); Hernandez e x rel. Hernandez v. Foster
, 657 F .3d 463, 474 (7th Cir. 2 011) (“[ S] ubstantive due process may not be called upon w hen a specific constitutional provision ( h ere, the F ourth Amendment) protects the rig ht alleg ed l y i nfring ed upon.

. . . [ T he child’s] claim a rising from his initial removal is properly analy z ed under the F ourth Amendment because it is premised o n h is seiz ure and does
not coincide with sufficiently separate conduct involving his

r e l a tionship w ith h is parents.” (first alteration in orig inal) (internal quotation marks and citations omitted)).

I I I

A. Kirkpatrick’s Fourteenth Amendment Claim

W e first consider whether the district cou r t c o r rectly
g ranted the defendants’ motion for summary judg me n t on Kirkpatrick’s claim that the County and its ag ents violated his F ourteenth Amendment rig ht not to be separated from B

. W. without due process under non-ex ig ent circumstanc e s. See Mabe
, 2 3 7 F .3d at 1 106; W allis
, 202 F .3d at 1136. W e affirm the district court’s summary judg ment in f avor of all of the defendants on Kirkpatrick’s claim because the facts alleg ed, construed in the lig ht most favo r a b l e to Kirkpatrick, d o notK I R K P A T R I C K V

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N T Y O F W A S H O E 10

show that the def

e n d ants violated his constitutional rig hts. See S au c i er v. Katz
, 533 U.S. 194, 2 01 (2001) (“I f no constitutional rig ht would have been violat e d were the

a lleg ations established, there is no necessity f or fur t h e r inquiries.”).

Kirkpatrick did n o t h ave a constitutionally recog niz ed liberty interest in his relationship with B .W

. when she was taken into cu s t o d y o n J uly 17, 2008, because he was not y et

a “parent” to B .W . At the time, no one was confident about whether Kirkpat ri ck w a s B. W

. ’ s b i o l o gi c al f ather. Kirkpatrick acknowledg e d that he “did not know” whether he

was the father and that there were “possibly ot her candidates.” Rac hel Whitworth had informed Kirkpatrick that B .W

. mig ht be his child, but that there was “a possibility it could b e someone else’s as w ell.” The test that eventually established Kirkpat

rick’s paternity was not administered until four day s after B .W . was taken into custody

.

W e h ave recog niz e d that the constitutional i n t erest in a biolog ical parent’s relationship with hi s child p ersists even when that relationship is, as a practical matter, quite attenuated. See Burke v. Cnty. of Alameda
, 586 F .3d 725, 733 (9th Cir. 2009) (holding that a biolog ical father had a liberty interest in his relationship w ith his daug hter even thoug h the child’s mother had sol e p hy sical custody of the c hild); Brittain v

. H

ansen , 451 F

. 3d 982, 992 (9th Cir. 2 006) (holding that “non-custodial par ents with court-ordered visitation rig hts h ave a liberty interest in the companionship,
care, custody
, and manag ement of their c hi ldren”). B ut Kirkpatrick did not take a ny steps to confirm that h e was B .W .’s biolog ical father before the W CDSS took custody o f B .W
., such as requesting a paternity test before she was born

or during her two day s in the hospital, o r attempting toK I R K P A T R I C K V

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N T Y O F W A S H O E 11

ex e c ute a v olunta

r y acknowledg ment of paternity declaration. See Nev. Rev. Stat. § 126.053 (providing that a voluntary acknowledg ment of paternity d eclaration is “deemed to have the same effect as a judg ment o r order of a court d etermining the ex istence of the relationship of parent and c hild if the declaration is sig ned

. . . by the mother and father of the child”). Of course Kirkpatrick w as not oblig at e d t o attempt to confirm h is paternity
, but he cannot claim the constitutional entitlements that have been allocated to biolog ical parents when h e did n o t s e e k to establish that he was B .W

. ’s father.

On these f

acts, we conclude that Kirkpatrick lacked a cog niz able liberty interest in hi s relationship with B

. W. B ecause Kirkpatrick ca n n o t prove a violation of his constitutional rig h ts, the district court p ro p erly g ranted
summary judg ment in favor of all o f t h e defendants on the claim asserted by

Kirkpatrick on his own behalf.

B

. B.W .’s Fourth Amendment Claim

W e nex t consider whether the defendants violated B .W

. ’s F ourth Amendment rig ht to be free from unreasonable seiz ures when she was taken into custody by the W CDSS.

1. Adequate notice

The district court g ranted summary judg ment in favor of the d efen d ants because it concluded that the operative complaint—which is sty led the second amended complaint— does not assert a cause of action o n behalf of B .W

. The court noted that the complaint repeatedly refers to the “Plaintiff” in the sing ular, including in the caption. Only once, the district
court o bserved, does the com p laint alleg e that “[ B .W .’s]K I R K P A T R I C K V

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N T Y O F W A S H O E 12

constitutional rig ht to be with her parents was violated.” The
court reasoned that the complaint fails to articulate a claim on behalf of B .W

. because “[ r] ead i n t h e contex t of the entire complaint, this o ne sen t e n c e does not provide notice that B .W

. is a plaintiff to t h i s c ase or that [ Kirkpatrick] is asserting a cause of ac t i o n on her behalf.” F urthermore, the complaint’s sole reference to the F ourth Amendment is located in a par ag raph asserting that the defendants “acted under color of state law to dep r ive Plaintiff

. . . o f constitutionally protected rig hts, including

. . . the rig ht to be free from unreasonable sear c h e s and seiz ures.” The district
court inferred that the sing ular “Plaintiff” refers to Kirkpatrick, not B .W

. , and, under these circumstances, a parent cannot claim reli e f o n the g rounds that the state violated his own F ourt h Amendment rig hts by seiz ing his child. See Mabe , 237 F .3d at 1111.

The district court did not appear to dis a gr ee with the premise that a parent is authoriz ed to a ssert causes of action belong ing to his minor child on behalf of the child

. See F ed. R. Civ. P. 1 7(c)(2) (“A minor or an incompetent person w ho does not h ave a duly appointed repre s e n t a tive may sue by a

nex t friend o r by a g u ardian ad litem.”); Fe d

. R

. Civ. P. 17(b)(3) (“Capacity to sue or be sued is d etermined

. . . by the law of the individual’s domicile.”); Nev. Rev. Stat. § 12.080 (“[ T] he father or the m o ther, without preference to either,
may maintain an action for the injury of a minor child w ho has not be e n e m a

n cipated, if the injury is caused by the
wrong ful act or neg lect o f an o t h e r .”). I nstead, the court determined that the complaint simply faile d t o “provide notice to the Defendants or the Court that B .W

. is a l s o a plaintiff in this case, or that Plain t i f f i s a sserting a cause o f action on her behalf.” W e respectfully disag ree w it h t he district court’s reading of the complaint.K I R K P A T R I C K V

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N T Y O F W A S H O E 13

The operative c omplai n t recites that “[ B .W .’s] constitutional rig ht to be with h er parents was violated. This also resulted in the v iolation o f Plaintiff’s constitutional rig ht
to b e w i t h h is daug hter.” These sentences indicate that the complaint alleg es claims on behalf of both B

. W

. a nd Kirkpatrick. A pleadi n g n e e d not repeat the same assertion

more than once to provide n o t ice. W e understand that the defendants o r the c ourt mig ht h a v e b e e n confused to encounter this pair of claims g iven that the rest o f the complaint r efers to a sing ular “ Plaintiff.” B ut defendants can resolve such a mbig uities b y filing a Rule 12(e) motion f or a

more definite statement. See Swierkiewicz v. S o r e ma N.A.
, 534 U .S. 506, 514 (2002) (“I f a ple ad i n g f a i ls to specify the alleg ations in a manner that provides suffic i e nt notice, a defendant can move for a more definite statement under Rule 12(e) before responding .”); see also Crawford-El v. Britton
, 523 U.S. 574, 598 (1998) (encoura gi n g district courts to “g rant the defendant’s motion for a more defi n i t e statement under Rule 12(e)” where, as here, disco v e r y in an action
ag ainst a public official would undermi n e “ t he substance o f the qualified immunity defense”). The district c ourt may also

sua sponte request a more de f i nite statement f

rom the plaintiffs, even if the defendants f i n d the complaint comprehensible. S

e e A nders o n v

. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll.
, 7 7 F .3d 3 64, 367 n.5 (11th Cir. 1 996) (“[ T ] h e court, acting sua sponte , should have struck the plaintiff’s complaint, and the defendants’ a nswer , a nd in s t ructed plaintiff’s counsel to f ile a more definite statement.”).

The district court c o r rectly observed that the complaint

never ex pressly states that B.W

. asserts t h a t t he defendants

v i o l a ted her F ourth A mendment rig ht to be f ree from unreasonable seiz ures. W hen evaluating a complaint, we askK I R K P A T R I C K V

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N T Y O F W A S H O E 14

whether the pleading g ives the d efend a n t fair notice of the claim and includes su f

f i c ient “factual matter” to state a plausible g round for r elief. See Bell A tl. C o rp. v. Twombly
, 5 5 0 U .S. 544, 5 55–56, 561–62 (2007). To be c lear, t h e que stion here is not whether the complaint “ contain[ s] sufficient factual matter, accepted a s true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal
, 556 U .S. 662, 678 ( 2009) ( quoting Twombly
, 550 U.S. at 570). Rather, the question is whether the complaint g ave “notice of the claim such that the opposing party may d efend himself or herself effectively .” Starr v. Baca
, 652 F

. 3d 1202, 1212 (9th Cir. 2011). 1 “ [ U] nder the F ed e r a l Rules of Civil Procedure, a complaint need not p i n p l aintiff’s claim for relief to a precise leg al theory

. Rule 8(a)(2 ) o f t he F ederal Rules of Civil Procedure g enerally requires only a plausible ‘s h o r t and plain’ statement of the p laintiff’s claim, not an

ex p osition of h is leg al arg ument.” Skinner v. S witzer
, 131 S. Ct. 1289, 1296 (2011); see also Fontana v. H askin
, 262 F .3d 871, 8 7 7 ( 9th Cir. 2001) ( “Specific leg al theories need not be pleaded so long as sufficient factual averments show that the claimant may

be entitled to some relief.”). T he complaint is therefore not inadequate merely beca u s e t he assertion that

1 A lth o u g h th is case is n o t ab o u t p lead in g stan d ard s p er se, in o rd er to

rev iew th e district co u rt’ s su m m a r y j u d g m en t o rd er w e m u st d ecid e

w h eth er t h e co m p lain t g a v e th e d ef

en d an ts n otice o f th e claim s ag ain st th em , as i f w e w ere rev iew in g an o rd er g ran t in g a m o tio n to d ism iss. W e h av e an aly zed w

h eth er a co m

p lain t p ro v id es ad eq u ate n o tice th ro u g h th e len s of Ru l e 8 (a)(2 ) e v e n w h en th e qu estio n arises at th e su m m ary

j u d g m en t stag e. S

ee Pickern v. Pier 1 Imp o rts ( U.S .)

, In c. , 4 5 7 F.3 d 9 6 3
, 9 6 8 (9 th C i r. 2 0 0 6 ) (ev alu atin g “ w h eth er [th e] p lain tif

f ’ s co m p lain t

co m plied w ith t

h e n o tice plead in g re q u i r em en ts o f Fed

. R. Civ

. P

. 8 ”

w h ere th e d istrict co u rt g ran ted su m m ary j u d g m en t on th e b asis t h a t th e

co m plain t f ailed t o g i v e th e d ef

en d an t “ ad eq u ate n o t ice” o f p articu lar claim s).K I R K P A T R I C K V

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N T Y O F W A S H O E 15

“[ B .W

. ’s] constitutional rig ht to be with h er parents was violated” is not coupled with a r e f erence of the F ourth Amendment. The complaint recites the relev a n t leg al standard by stating that the defendants took B

. W

. i nto

cus t o dy without a warrant w hen they “had no reasonable

cause to b e lieve that [ B .W .] was likely to ex p erience serious bodily harm in the time that w ould be required to o b t ain a warrant.”

W e need not speculate about whether the complai n t provided notice of the F ourth Amendment claim sufficient to allow the defendants to d efend ag ainst it be c a u se the defendants themselves construed the complaint a s asserting

a F ourth Amendment claim o n behalf o f B.W

. I n their motion
to dismiss, the d efendants stated that “ [ w] h i l e the Second Amended Complaint indicates the Pla i ntiff as ‘J amie Kirkpat r i c k
, individually and as the natural father and leg al
g uardian of [ B .W .] , a minor’, it is believed that the action is intended in p ursuit of only causes of action on behalf o f the minor child.” I n their motion f or summary judg ment, the individual defendan t s correctly pointed out that “Mr. Kirkpatrick can only a ssert a violat i o n of [ B .W

. ’s] F ourth Amendme n t r ig hts, as a representative, on behalf of his daug hter.” T he individual defendants then devoted sev e n pag es to a rg uing that they were entitled to summary judg ment

on the “ Plaintiffs’ r epresentative F ourth Amendment claim.” W e cannot ag ree with the district court’s assessment that “the operative c o m plaint

. . . does n ot provide notice to the Defendants or the Court that B .W

. is also a p l a i n tiff in this case” when the entire litig ation proceeded in accordance with the defendants’ acknowledg ment that B .W

. is a plaintiff a nd that Kirkpatrick is asserting a F ourth Amendment cl a i m on B .W .’s behalf.K I R K P A T R I C K V

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N T Y O F W A S H O E 16

W e by no means r equire d efendants to adopt overly broad reading s o f ambig uous or incoherent complain t s o u t of an abundance of caution. The defendants could have moved to dismiss the F ourth Amendment c laim on the basis th a t the complaint purports to assert the claim on b eh a lf o f Kirkpatrick rather than assuming that it stated a facially valid claim on behalf o f B .W

. Or, as we have already noted, either the defendants or the court could h ave insisted on a more definite statement at the p leading st a ge. I f the plaintiffs continued t o a s sert a f

acially invalid claim after amending their complaint in response to a motion to dismiss or a motion for a more definite st atement pointing out the defect in the plead i n g , then the district court could have taken the complaint at its word and dismissed the claim with prejudice. B ut that is not what happened in this case. I nstead, the court raised the issue sua sponte for the first time a t the summary

judg ment stag e, even thoug h the d efendants actually understood the claim, repeatedly addressed it on the m e r its, and could have clarified it earlier in the litig ation.

W e conclude that the district court erred in deciding that th e c o m plaint did not provide adequate notice that B

. W. asserted a F ourth Amendment claim on her own behalf. The defendants a r e n o t entitled to summary judg ment on this basis.

2. Qualified immunity

Having determined that the o perative complaint a sserts a violation o f B

. W .’s F ourth Amendment rig ht to be free from unreasonable seiz ures, w e n ex t a d d r e s s w h e t h e r t he individual defendants are entitled to qualified immunity on B .W

. ’s claim. See United States ex rel. Ali v. Daniel, Mann, Johnson & Mendenhall
, 355 F .3d 1140, 1144 (9th Cir. 2004) (“W eK I R K P A T R I C K V

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N T Y O F W A S H O E 17

may affirm a g rant of s u mmary judg ment o n any g r ound supported by the record, even if not relied upon by the district court.”). “Qualified immunity shields federal and state officials from money damag es unless a plaintiff pleads facts showing (1) that the official viol a t e d a statutory o r constitutional rig ht, and (2) that the rig ht was ‘clearly established’ at the time of the challeng ed conduct.” Ashcroft v. al-Kidd , 131 S. Ct. 2074, 2080 (2011).

a. Constitutional rig ht

“Government officials are required to obtain prior judicial

a u t h o riz ation before intruding o n a parent’s custody of her child unless they possess information at the time of the seiz ure that establishes ‘reasonable c a use to believe that the child is in imminent dang er of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury .’” Mabe
, 237 F .3d at 1106 (q u oting W allis
, 202 F .3d at 1138). There are thus two way s for a g overnment official to take custody o f a child without tra nsg ressing the Constitution. F irst, he can obtain prior judicial authoriz ation. Or, second, he can take custody of the c hild without a warrant if he “possess[ es] informat i o n a t the time of the seiz ure that establishes r easonable c a use to believe that the child is in imminent dang er of serio u s b odily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury .” Id. (internal quotation marks and citation omitted).

The d efendants did not atte m p t to obtain judicial authoriz ation before taking custody o f B .W

. Ellen W ilcox

— who v isited B .W

. at the hospital and took her into the D epartment’s custody

—stated that neither she nor any o n e else f rom t h e W CDSS requested a warrant. L inda Kennedy —who authoriz ed the decision to take custody o fK I R K P A T R I C K V

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N T Y O F W A S H O E 18

B .W

. in h e r role as W ilcox ’s supervisor—ag r eed that she would not h ave requested a warrant under these circumstances.

The decision to take custod y of B .W

. was therefore permissible o nly if th e defendants “possess[ ed] information
at the time o f the seiz ure that establishes reasonable c ause to believe that the child is in imminent dang er of serious bodily injury .” Id

. (internal quotation marks and citation omitted). “The e x istence of reasonable cause, a nd the related questions,

ar e a l l questions of fact to be determined by the jury

. Summary j u d gm ent in favor o f the defendants is improper unless, v iewing the evidence in the lig ht most favorable to the plaintiffs, it is clear that no reasonable jur y could conclude that the plaintiffs’ constitutional rig hts were violated.” W allis , 202 F .3d at 1138 (internal citations omitted).

I t is undi s p u ted that B .W

. remained in the hospital between the social w orkers’ first v isit on J uly 16, 20 0 8
, and her discharg e into the Department’s cus t o d y the nex t day

. Kennedy acknowled ged that the WCDSS considered the maternity floor o f the hospital a “s af e e n v ironment.” She noted that a mother in Rachel’s position mig h t unex pectedly abscond with h er ch i l d
, b u t she also stated that the hospital “g enerally cooperates” with the Department’s request that it hold the child.

I m portantly
, “social workers[ ] who remove a c hild from its home with o u t a warrant must have reasonable cause to believe that the c hild is likely to ex p er i ence serious bodily harm in the time that would be required to obtain a warrant

. ” Rogers v. Cnty. of

San Joaquin
, 487 F .3d 1288, 1294 (9th Cir. 2007) (emphasis added); s e e a lso Doe v. Lebbos
, 348 F .3d 820, 826 n.9 (9th Cir. 2003), o verruled on other grounds byK I R K P A T R I C K V

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N T Y O F W A S H O E 19

Beltran v. S

anta Cla ra Cnty.
, 514 F .3d 906, 909 (9th Cir. 2008) (en banc)); W

allis
, 2 02 F .3d at 1137 n.8 (ex plaining that the claims of children who are taken into c ustody without

a warrant under non-ex ig ent circumstances “should properly be assessed u n d e r the F ourth Amendment” because “the children w er e subjected to a seiz ure”). I n Rogers
, we concluded that a social worker did not have reasonable cause to believe that the children at issue were in imminent d a ng er of serious b odily injury

even thoug h they

showed sy

mptoms of neg lect and would h ave r emained in an unsanitary home while the social worker obt a i n e d a warrant. I d. at 1295–96. Here, B .W . would have very likely remained in the hospital, under c onstant medica l s upervision, while the defendants requested a warrant because the h ospital was not planning on releasing B .W

. to h e r m o ther or any one other than the W CDSS. Viewing the facts in the lig ht most favorable to the plainti ff
, we think a r easonable juror could find that W ilcox and Kennedy could not have r easonabl y believed that B

. W. would “likely ex perience serious bodily harm” during the time it would have taken to obtain a w arrant. F or reasons we have discussed, the defendants’ actions impli c a te B .W

. ’s F ourth Amendment rig ht to be free from unreasonable seiz ures.

Our analy sis is unaffected b y the fact that B .W

. was only
two day s o ld and had y e t t o l eave the hospital when the W CDSS took custody of her. The F ourth A mendment
pr o t e c t s the “rig ht of the people to be secure

. . . ag ainst unreasonable

. . . seiz ures.” I t does not make ex ceptions based on ag e, mobility
, o r the capacity to unders t a n d t h e state’s actions. The minor plaintiffs in W allis were two y ears old and five y ears old when they were taken into cu s t o d y

. W allis , 202 F .3d at 1131. A two-y ear old child—like a twoday old infant—is under the near-constant control of adultsK I R K P A T R I C K V

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N T Y O F W A S H O E 20

and probably cannot meaning fully comprehend the notion o f being “seiz e d” by the state. Yet we held that the children in W allis w ere “subj e c t ed to a seiz ure” and analy z ed their claims under the F ourth Amendment. Id. at 1137 n.8.

Other c ourts have applied the same F ourth A mendment analy sis to newborn children like B .W

. I n Kia P. v. McIntyre
, 235 F .3d 749 (2d Cir. 2000), a hospital h eld an infant f or the first ten d a

y s of her life because it believed that the child’s mother use d h a r mful drug s while preg nant. Id. at 751. The
court held that “there is no doubt t h a t [ t h e child’s] retention by the H ospital was a ‘seiz u re’ w i t h i n the meaning of the F ourth Amendment.” I

d

. a t 7 62. I t recited the familiar standard that “[ a] ‘ seiz ure’ o c c u r s where, ‘in view of all o f the c ircumstances surroundi n g the incident, a reasonable
person would have believed that h e was not f ree to l e a v e. ’” Id. (quoting United States v. Mendenhall
, 446 U.S. 544, 554 (1980) (plurality o p inion)). The cou r t acknowledg e d that

“ t h e usual phrasing o f the seiz ure test is difficult to apply ” under these circumstances because an in f a n t “ is unlikely to have had a ‘belief’ as to whether or n ot she w as free to leave.” Id. at 762. B ut the court nevertheless concluded that the chi l d w as seiz ed b ecause h er mother “was told in no uncertain terms that she could n ot take [ the child] home” a nd “[ i] t was cl ea r t o [ the mother]
, if not to [ the child]
, that [ the

c h ild] was not free to leave.” I d. I n other w ords, a child’s ability to subjectively u nderstand that she has been “seiz e d” is n o t a prerequisite to the application of the F ourth Amendment. As the Supreme Court ex plained, “ Mendenhall establishes that the test for ex istence o f a ‘show of authority ’ is an objective one: not whether the c itiz en perceived that he was being ordered to restrict his movement, but whether the

o fficer’s words and actions would have convey ed that t o a

r easonable person.” California v. Hodari D.
, 499 U.S. 6 2 1
,K I R K P A T R I C K V

. C O U

N T Y O F W A S H O E 21

628 ( 1991). Here, th e W CDSS phy sically removed B

. W. from the hos p i t a l a

nd placed h er with a foster family rather than permitting her to l e ave with her mother. Phy sically

re s training a person and directing her movement is a prototy pical ex ample of a “seiz ure” that implicates the F ourth Amendment. Id. at 626 (“ T he w ord ‘seiz ure’ readily bears the meaning of a lay ing on of hands or application of phy sical force to restrain movement.”). 2

W i l c o x a nd Kennedy seiz ed B .W

. without obtaining a warrant under circumstances w here a reasonable juror mig ht find that a reasonable social work e r c o uld not have determined that the child was in imminent dang er of serious bodily injury

. W e therefore conclude that the plaintiffs have

s a tisfied the first prong of the qualified immunity in q u i r y because, “[ t] aken in the lig ht most favora b l e t o the party asserting the injur y , [ ] the facts alleg e d show the officer’s conduct violated a constitutional rig ht[ .] ” Saucier
, 533 U.S. at 201.

b. Clearly

established

W e nex t address whether the constitutional r ig ht at issue

“ w a s ‘clearly established’ at the time of the challenge d conduct.” al-Kidd
, 131 S. Ct. at 2 0 80. “A Government official’s conduct violates c learly established law when, a t the time of t h e c halleng ed conduct, ‘[ t] he contours of [a] rig ht [ are] sufficiently clear’ that every ‘reasonable official would h a v e u nderstood that what he is doing violates that rig ht

. ’ ”

2 B ecau s e th e W CDSS ev en t u ally seized B .W

. b y tak in g p h y sical

cu sto d y o f h er an d p lacin g h er w ith a f o ster f am ily
, w e n eed n o t co n s id er

w h eth er B .W

. w as “ seize d ” d u rin g th e p erio d w h en sh e rem ain ed in th e h o sp ital su

b j ect to th e Dep artm en t’ s h o ld req u est.K I R K P A T R I C K V

. C O U

N T Y O F W A S H O E 22

Id. at 2 0 83 (alterations in orig inal) (quoting Anderson v

. Creighton
, 4 83 U.S. 6 35, 640 (1987)). “ W e do not require a

case directly on point, but ex isting precedent m u s t have
p laced the statutory or constitutional question b e y o n d debate.” I

d.

Our inquiry beg ins and ends with o ur decision in R o gers

. Not o nly is Rogers almost “directly on point,” but it also plainly holds that the constitutional rig ht at issue in this case is “clearly established.” O ur o pinion in Rogers ex plained that “[ t] he law was clearly established at the time of the events in [ Rogers ] that a ch i l d c ould not be removed from the home without prio r judicial authoriz ation absent evidence o f ‘imminent dang er of serious b odily injury an d [ unless] the
scope o f t h e i ntrusion is reasonably necessary to avert that specific injury

. ’” Rogers
, 487 F

. 3d at 1 297 (third alternation in orig inal) (quoting Mabe
, 237 F .3d at 1106). The conduct reviewed in Rogers occurred in 2001, and w e issued our opinion in 2007. The WCDSS did not take custody of B

. W. until 2008. The alleg ed v iolation o f B .W .’s F ourth Amendment rig hts thus occurred after t h e relevant constitutional rule was clearly established and after we

ex p ressly held that the rig ht is clearly established. 3

3 On ce w e h av e issu ed an op in i o n o n p o i n t—h ere, Ro g ers —w e m ean b u sin ess, an d all o f

f icials m u st ab id e b y th at in stru ctio n

. J u d g e Ko zin sk i
arg u es th at “

Ro g ers alo n e can n o t h av e p laced every reaso n ab le o f f icial on

n o tice th at tak in g B .W

. in to cu sto d y w as u n co n stitu tio n al.” D issen t at 4 0

. W e d isag ree. W h ere a s in g le case “ ‘ h as clear ap plicab ility ’ t o a

su b seq u en t set o f f

acts,” th at case alo n e i s su f f ic i e n t to p u t law

en f o rcem en t o f

f icials o n n otice. Fea th ers v. Aey
, 3 1 9 F.3 d 84 3
, 8 50 (6 th Cir. 2 0 0 3 ) (q u o tin g Ho

p e v. Pelzer
, 5 3 6 U.S. 7 3 0
, 7 4 2 (2 0 0 2 )) (“ Ho p e sp ecif ically states th at a rig h t is clearly estab lish ed

. . . w h en t h e ‘ p rem ise’

o f on e case ‘ h as clear ap p lic a b ility ’ to a s u bseq u en t set o f f

acts.”); cf. Ro ja s v. An d

erso n , 7 2 7 F.3 d 1 0 0 0
, 1 0 04 (1 0 th C ir. 2 0 1 3) (h o ld in g th at aK I R K P A T R I C K V

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N T Y O F W A S H O E 23

The case before us is not disting uishable from R ogers

. I t is true that Rogers —like Mabe an d W a l lis —refers to a qualified p rohibition on removing children “from the home” whereas, here, the W CD S S t o o k custody of B .W

. while she

was in the hospital. Se e Rogers
, 487 F .3d at 1294; Mabe
, 2 3 7 F. 3 d at 1107; W

allis
, 202 F .3d at 1136. B ut we d o n o t think that any reasonable social worker would read Rogers o r its predecessors to stan d f o r the proposition that the constitutiona l l i mitations on the seiz ure of children a pply only when the children are at home. See Anderson
, 483 U.S.
at 640 (“The contours of the r ig ht must be suffic i en t ly clear that a reasonable o fficial would understand that w hat he is doing violates t h a t r ig ht. This is not to say that an o fficial action is p rotected by qualified i m m u nity unless the very action in q uestion has p reviously been held unlawful
, but it is
to say that in t h e lig h t of pre-ex isting law the unlawfulness
must be apparent.” (emphasis adde d) (internal citation omitted)). The fact that B .W

. was in the hos pital a rg u ably should have made it more apparent to a r easonable social worker that she was not “ likely to ex perie n c e serious bodily harm in the time that would be required to obtain a w arrant.” Rogers
, 487 F .3d a t 1294. I n Rogers
, we concluded that “there was no indication of imminen t dang er” to the seiz ed children even thoug h they w ould h ave remained in an “unsanitary

” h ome w ith alleg edly neg lectful parents while the social w orker obtaine d a w arrant. Id. at 1295. Here, B

. W. almost c ertainly would have remained in the hospital, where there is likely l e s s “imminent risk of serious bodily harm” than in the conditions endured by the children in Rogers

.

rig h t w as n ot clearly estab li s h ed w h ere th e p lain tif

f f ailed to p ro v id e “ a sin g le case citatio n

to su p p o rt” th at n o tio n ).K I R K P A T R I C K V

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N T Y O F W A S H O E 24

W e a lso note that B .W

. w a s a two-day old infant when she w as taken into custody by th e W C D S S, whereas the children in Rogers were three-y e ar s o ld and five-y e ars old. Id. at 1291. Ag e is often c r u ci a l i n d etermining w hether a social worker could have r e asonably b elieved that the child

was in imminent dang er of serious bodily injury because a two-day old infant l i k e B .W

. is far more vulnerable than an older c h i l d. B ut n o r easonable social worker could read Rogers a n d i t s predecessors to sug g est that it is alway s reasonable to conclude that an infant is in imminent dang er o f serious bodily injury

. Althoug h in f a nts are uniquely susceptible to serious injury

, the maternity ward of a hospital is an especially safe place, partic u l a r l y where, as here, the hospital has been instru c ted not to discharg e the infant without notify ing the social workers.

The d efendants contend that they could h ave reasonably believed that N evada law authoriz e d the W CDSS to take custody of B .W

. without obtaining a warrant. They cite Nev. Rev. Stat. § 432B .390(1)(a), which provides tha t s o cial workers “[ m] ay place a child in prote c t i v e custody without the consent of the person respons i b l e for the child’s w elfare if the [social worker] has rea s o n a ble c ause to believe that immediate action is necessary to p rotect the child from injury

, abuse o r negl e ct.” There is no indication that the state-law standard differs meaning fully from the constitutional rule that social w o r k e rs may take custody o f a child without prior judicial authoriz a tion if there is “ r easonable cause to believe that the child is in imminent d ang er of serious bodily injury

. ” W allis
, 2 0 2 F. 3 d at 1138. Nev. Rev. Stat. § 432B .390(1)(a) does not authoriz e social workers to take custody of children under non-ex ig ent circumstances. I t say s nothing a t all about when, if ever, a social wo r k e r m a y take custody of a child when he d o e s not have “reasonable cause to believe thatK I R K P A T R I C K V

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N T Y O F W A S H O E 25

immediate action is necessary to p rotect the child from injury

, a b u s e or neg lect.” We are not confronted with a situati o n where a n applicable state statute is in tension with the federal constitutional rig ht on which the plaintiffs rely

. See Dittman

v. California
, 191 F .3d 102 0
, 1027 (9th Cir. 1 999) (ex plaining that “it was reasonable f or [ the defenda nt] to believe that [ a state statute] was constitutional and to e nforce its mandates” when “there was no c lear case law in e ither the fe d e ral courts or the state courts o f California establishing that” the p ractice authoriz ed by the s tate statute was unconstitutional); Grossman v. City of Portland
, 33 F .3d 1200, 1209 (9th Cir. 1994) (“[ W ] h e r e a police o fficer has probable cause to arrest someone under a statute that a reasonable officer could believe is constitutional, the officer will be immune from liability even if the statute is later h eld to be unconstitutional.”). 4

N ex t , the defendants arg ue that they are entitled to qualified immunity because they were no t informed of the need to obtain a warrant before taking c u s t o d y of a child under non-ex ig ent circumstances. Kennedy —who w as a supervisor—stated that when the W CDSS took B. W

. i nto custody in J uly 2008 she d id n o t u n d erstand the distinction between removi n g a child with a warrant and doing so

4 T h e plain tif

f s d o n o t ch allen g e th e co n stitu tio n ality o f Nev

. Rev

. Stat. § 4 32 B.3 9 0 (1 )(a). W e ex press n o v iew o n w h eth er th e p h rase “ reaso n ab le

cau se to b eliev e th at i m m e d i a t e actio n is n ecessary to p ro tect th e ch ild f ro m in j u ry , ab u s e o r n eg lect” in th e s t ate statu te is b ro ad er th an th e p h r a s e “ reaso n ab le cau se to b eliev e t h at th e ch ild is in im

m in en t d an g e r

o f serio u s b o dily i n

j u ry ” i n ou r cases. Ev en assu m in g a rg u en d

o th at th ere

m ig h t b e a case w

h ere a so cial w o rk er w o u l d co n sid er th e w arran tless

s e i z u re o f a ch ild j u stif

i ed u n d er th e state stan d ard b u t n o t u n d e r t h e f ed eral stan d ard
, w e d o n o t th i n k th at an y reaso n ab le so cial w o rk er co u ld h av e co n clu d ed th at eith er stan d ard w as satisf ied in th is case.K I R K P A T R I C K V

. C O U

N T Y O F W A S H O E 26

without a warrant. She ex plained that it was not her “ g eneral practice” to obtain a warrant unless there w e r e “special circumstances” such as a “suspe c t e d kidnapping or something like that.” W ilcox said that, as of J uly 2008, she had n ot been trained in h ow to obtain a warrant. She was aware that other social workers received w a r r a n ts before taking custody o f children under certain c ircumstances, but she d i d n o t recall
any specific instances where the practice had occu r r e d a nd had never obtained a warrant he r s elf. The defendants’
arg ument is u n av a i ling because “[ i] f the law was clearly established, the immunity defense or d i n a r i l y should fail, since

a reasonably competent public official should k now the law governing his conduct. ” Harlow v. Fitzgerald
, 457 U.S. 800, 819–20 (1982) (emphasis added); see also Groh v. Ramirez
, 540 U.S. 551, 563–64 (2004); Crawford-El
, 523 U.S. at 591. “[ W ] hether a

n official protected by qualif ied immunity may b e held personally liable for an alleg e d ly unlawful offic i al action g enerally turns on the ‘objective leg al reasonableness’ of the a cti o n [
, ] a ssessed in lig ht of the leg al r ules that were ‘clearly e stablished’ at the time it wa s t aken.” Anderson
, 483 U.S. at 639 ( internal citations o mitted) (quoting Harlow
, 457 U.S. at 818–19). The reasonableness of the defendants’ conduct must therefore b e assessed i n lig ht of the clearly established law that social workers must ob t a in a warrant before taking custody of a ch i l d under non-ex ig ent circumstances, and not in lig h t of their own subjective beliefs about the law. See Sorrels v. McKee
, 2 90 F .3d 965, 970 (9th Cir. 2002) (“The relevant inquiry under this second p rong [ o f the qualified

- immunity analy sis] is wholly objective; an official’s subjective belief as to the lawfulness of his conduct is irrelevant.” (citing Anderson , 483 U.S. at 641)).

W e conclude that W ilcox and Kennedy are not entitled to qualified immunity on B .W .’s F ourth Amendment claim, a ndK I R K P A T R I C K V

. C O U

N T Y O F W A S H O E 27

reverse the district court’s summary j udg ment. 5 W e think that a reasonable juror mig ht find t h a t a reasonable social worker c ould not have determined that B .W

. w o u l d be in im m i n e n t dang er o f serious bodily injury in the time that it

w o uld have taken to obtain a warrant. B ecause a g enu i n e dispute of material fact ex ists, we r emand this issue for trial. See Mabe , 237 F .3d at 1108–09, 1112.

3. Municipal liability

The f inal issue before us is whethe r W ashoe County is entitled to summary judg ment. “ [ A] municipality cannot be held liable solely because it employ s a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on

a respondeat superior t h eory .” Monell v. Dep’t o f Soc. Servs.
, 436 U.S. 658, 691 (1978). B ut “local g overnments

. . . m a y be sued for constitutional d e p rivations visited pursu a n t to g overnmental ‘custom’ even thoug h such a custom has not received f

o r m al a p proval throug h the body ’s official decisionmaking channels.” I d

. a t 690–91; P r ice v. Sery
, 513 F .3d 962, 966 (9th Cir. 2 008) (noting that a plaintiff can establish municipal liability b y showing that “the constitutional tort was the r esult of a long standing practice o r custom which constitutes the standard operating procedure o f the local g overnment entity ” (inter nal quotation marks omitted)). 6

5 A lth o u g h w e rev erse th e s u m m ary j u d g m en t in f

av o r o f W i lco x an d Ken n ed y , w e af

f i r m t h e d istrict co u rt’ s su m m ary j u d g m en t in f

av o r of A m y Rey n o ld s b ecau se th e p lain tif

f s h av e n o t alleg ed an y f

acts su g g estin g th at sh e w as in v olv ed w ith th e d ecisio n

to tak e cu sto d y

o f B .W

.

6 B ecau se th e d istrict co u rt dism issed Kirk p atrick ’ s claim s an d d id n o t th in k th at th e co m

p lain t i n c l u d ed B .W

. as a p lain tif f
, th e d istrict co u rt ad d ressed
, b u t d id n o t f

u lly an aly ze, th e M

o n e l l claim

. It n ev erth elessK I R K P A T R I C K V

. C O U

N T Y O F W A S H O E 28

The County represents that it does not h ave a policy o f removing children from their parents absent a f inding o f imminent dang er, but there is e vidence in the r ecord that contradicts the County ’ s claim. That is, record evidence
sug g ests that the County had an unofficial, unconstitutional
custom of taking custody o f children under non-ex ig ent circumstances without obtaining prior judicial authoriz ation. As a r e s u l t , this c ase implicates the so-called “direct path to municipal liability .” Gibson v. Cnty. of W a sho e , Nev.
, 290 F .3d 1175, 1185 (9th Cir. 2002).

Neither Ellen W ilcox nor L inda Kennedy was familiar with the process for obtaining a warrant before taking c ustody of a c hild. Wilcox
, the social worker in ch a r g e o f B .W

. ’s
case, stated that she never received training on how to obtain

a warrant while she was em p l o y ed b y W ashoe County from 2007 throug h 2009, a

n d in those t wo y ears, she had never actually obtained a warrant. Under q u e s t ioning
, W ilcox admitted that a h y

pothetical child in B.W .’s circumstances was not in imminent dang er:

Q: B u t a child is not g oing to be returned to his father for four day s. I s that imminent dang er?

A: No.

B ut she testifi e d t h a t she w ould likely remove such a child
any way , and without a warrant:

ex p ressed co n cern w ith W ash o e Co u n ty ’ s p ractices. T h e Mo nell q u estio n

w as b rief ed b y b o th p arties an d d iscu s sed at o ral arg u m en t. T h e reco rd is

su f f icien tly d ev elo p ed f

o r u s t o d eterm in e w

h eth er th e C o u n ty w as en titled
to su m m ary j u dg m en t.K I R K P A T R I C K V

. C O U

N T Y O F W A S H O E 29

Q: So what do y ou do for that child when the mother insists on returning him to a dang erous situation and the father insists on g etting him in that dang erous situation, n o questions asked, y ou have already determined a nd
every body ag r ees it’s a dang e r ?

A: Then we remove the child.

Q: You don’t g et a warrant?

A: No.

Q: The child y ou admitted is not in imminent dang er.

A: No. W e don’t g et a warrant.

Q: B ut wou l d y ou r emove the child e ven thou g h t he danger may be three or four days
away ?

A: Yes.

W ilcox later attributed h e r answer to W a shoe County ’s unofficial custom or protocol:

Q: L e t me ask y ou an o b v i o u s question. I f the c hild wasn’t in dang er in the hospital and

was there for several day s, why didn’t y ou seek a warrant before y ou removed the child fr o m mom? I s it because y ou didn’t know
y ou had to? You weren’t trained on that?K I R K P A T R I C K V

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N T Y O F W A S H O E 30

A: I t wasn’t the protocol of W ashoe County

. No one told me to g et a warrant and they didn’t train me how to g o ab o ut g etting a warrant.

Q: O r did they even tell y ou y ou cou l d g et a warrant?

A: No. They

didn’t.

Kennedy —who supervised between f ive and seven social workers, including Wilcox at the time—confirmed that it was “not in our g eneral p r ac tice” to obtain a warrant before removing a child:

Q: So y our best recollection is that as of J uly of ’08, W asho e County Child Protective Services did not obtain court warrants prior to the removal of a child in any circumstances?

A : I wouldn’t say in no circumstances. Bu t not in our g eneral practice. No.

There could be—we h ad asked for
warrants sometimes when there was lik e a suspec t e d kidnapping or something like that where we had some prior knowledg e, let’s
say

.

B u t g enerally speaking
, we did n ot. I don’t recall ever ge tting a warrant to g o out

w i t h o ne of my investig ators to g o out a nd pick up a c h i l d unless it was a special circumstance.K I R K P A T R I C K V

. C O U

N T Y O F W A S H O E 31

She elaborated that in cases like B .W .’s, s h e m ig h t have obtained a warrant “in a rare instance,” b ut she did n ot recall ever doing

so:

Q: Y ou mentioned that y ou h a v e a recollection of o btain i n g

— o f s e e k i n g w a

r r a n t s in situations like kidnapping s a n d thing s like that.

. . . .

W h at I ’m more interested in is the case where y ou’ve g otten a complaint or a report o f

some sort o f c hild n eg lect that trig g ers an investig ation which leads to determining that a child needs to be removed.

Okay ? Tha t ’s the case I ’m more interested in.

Under those k ind o f circumstances, do y ou have any knowledg e o f e ver obtaining a warrant to r emove a child under those ty pe o f
g eneral circumstances?

A: I do not recollect doing that. No.

Q: So it would be safe to say that in y our

career with W ashoe County Child P r o tective Services y ou’re not aware o f ever obtaining a warrant to remove a child from a parent?

A: I don’t recollect ever doing t h a t. However, that is not t o s a y that it could haveK I R K P A T R I C K V

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N T Y O F W A S H O E 32

occurred in a rare instance that I ’ m not just recalling

. I t was n ot a g eneral p ractice ever to g et a warrant.

W h ile discussing the pro c e s s of removing a child from its parent without a w arrant , K e n nedy noted that “W ashoe County has all kinds o f p o licies and procedures for
every thing ,” and that the “policy [ ] was to never g et w arrants” when removing

children:

Q: You stated when a baby o r a child is kidnapped that w ould be a situation where
y ou would g et a warrant.

A: Generally speaking , y es.

That happens very rarely

.
Q: A warra n t to r emove the child from the kidnapper o r a warrant to arre s t the kidnapper?

A: A warrant to remove the child.

W e have nothing to do arresting people.

Q: So if it’s a kidnapper y ou g et a warrant to remove it but if it’s a parent y ou don’t?

A: T hat’s our policy
, was n ever to g et warrants when we remove children when I worked as a supervisor.K I R K P A T R I C K V

. C O U

N T Y O F W A S H O E 33

Q: T h e r e was a policy to not g et warrants o r there was no policy ?

A: There was no policy related to warrants.

L ike W ilcox
, Kennedy understood that the “leg al criteria” for warrantless removal s m a

n d a t e d t h e ex istence of an “imminent risk to the well being o f that child.” However, K e n n e d y ’s definition of “imminent risk” was haz y , at best.

I mportantly
, Kennedy had “ n o r ecollection” of B .W

. ’s
case, and she did not k

now what facts were use d t o j u stify B .W .’s removal. B ut speaking in the abstract and u sing her knowledge a s a supervisor, she said that u nder these circumstances a child could be removed without a warrant:

Q: B a sed upon y our review of [ B .W .’s case]

can y ou tell me all of the facts that were relied
upon to remove— t o make the decision to remove [ B .W .] ?

A: I can tell y ou I don’t k now what facts Amy [ Rey nolds] used in this reg ard.

B u t I can tell y ou tha t a s f ar as a supervisor the fact that the child tested positive for methamphetamine, that the mother admitted to recent methamphetamine
use, that she admitted that she’s unemploy ed, she d oes not h a v e stable housing and then after she said she used methamphetamine during her entire preg nancy , w hich means we also h a ve a drug baby here, that drug babies

are g enerally more difficult to parent becauseK I R K P A T R I C K V

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N T Y O F W A S H O E 34

they g et ag it a t e d
, they c r y a lot, so we have a

mom who is not necessarily stable and she has

a difficult c hild, she lives with friends f rom place to place
, s he has a CPS history
, which apparently

we also had other children of hers in care, all of that would have been researched prior to removing that child to see if we h ad prior h istory on her, w h a t i t was and the fact that sh e never followed throug h for h er other children to try t o ge t them back, never followed throug h on a n y s ervices, when y ou look at that whole p icture, then that would be why y ou would have removed that child.

L ike W ilcox
, Kenne d y s a i d n o warrant was necessary to

remove B .W
., even thoug h Kennedy a lso admitted that B

. W. was not in any

immediate dang er:

Q: I n y our opinion, is the maternity floor o f Renown Reg ional Medical Center considered

a sa f e e nvironment by W ashoe County Child Protective Services?

A: Yes. I t is.

Q: And the c h i l d
, [ B .W .]
, was not in any dang er at Renown, was she?

A: No.

B e cause there were nurses g enerally present.

. . . .K I R K P A T R I C K V

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N T Y O F W A S H O E 35

Q: The baby would be in imminent dang er if Rachel checked out of the hospital with t h e baby ? I s that basically

what y ou’re say

ing ?

A: We would consider that imminent d ang er. Yes.

Q: What was the imminent dang er to the baby while in the hospital?

A: I don’t know that the child was in imminent dang er there.

. . . .
Q: W ould [ there] be [ a

n imminent risk to the child] if mom took the child from the hospital?

A: Yes.

Q: B ut in the hospi t al it w asn’t imminent risk?

A: Rig ht.

W h ile, as J udg e K oz inski no t es, Dissent at 4 0, the only

e v i dence o f an unofficial custom comes from t w o depositions, both W ilcox a nd Kennedy traced their actions in B .W .’s case to the “g eneral practice” and “protocol” in W a shoe County

. W ilcox started working at W CDSS in J u ne of 2007, a y ear before she handled B .W .’s case. Kennedy

w orked as a social worker for twenty -two y ears in va r i o u s offices before retiring ; she testified that she spen t s e v e n o fK I R K P A T R I C K V

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N T Y O F W A S H O E 36

those y ears working i n the Child Protective Services department at W CDSS. B ased on their ex perience w orking
at W CDSS, both W ilc o x a n d Kennedy should have known the constitutional standard f or removing a child: Government officials must obtain a w arrant before removing a child unless they have “reasonable c a u s e t o b e lieve that the child is in imminent dang er of serious bodily harm and that the scope o f the intrusion is r easonably n ecessary to a vert that specific injury .” Mabe
, 237 F .3d at 1106 (quoting W allis
, 202 F .3d at 1138). B u t neither d id. I nstead, both understood that the “g eneral practice” and “protoc o l ” i n W ashoe County was to

remove children without obtaining warrants. W ilcox admitted that B .W

. was not in imminent dang er at t h e hospital, but she d i d n ot first obtain a warrant before removing B .W . because “[ i] t wasn’t the protocol of W ashoe County

. ” Kennedy could not even remember B .W .’s specific
case, but she relied o n her knowl e d g e as a WCDSS supervisor to confirm that no warrant wa s necessary to

remove B .W

. because “[ i] t was not a g eneral practice e ver to g et a warrant.” 7

B ecause the evidence presented here creates at least an inference of an unconstitutional, u nofficial custom in Washoe County
, the C o u n ty is not entitled to summary judg ment. Althoug h the plaintiffs failed to compile any evidence of any other constitutional v iolations—that is, specific instances where W ashoe County social workers took custody o f

7 W h eth er th e u n o f

f icial Co u n ty p o licy w as n o t to g et w arran ts o r w a s silen t o n g ettin g w arran ts, eith er p o l icy w o u ld b e u n co n stitu tio n al b ecau s e g o v ern m en t em

p l o y ees are au t o m atically req u ired to g et w arran ts u n less th e ch ild is in “ im

m in en t d an g er o f serio u s bo d ily h arm ” an d a sp e ed y

rem o v al “ is reaso n ab ly n ecessary to av ert th at s p ecif ic in j u ry .” Ma b e , 2 3 7 F.3 d at 1 1 0 6 (q u o tin g W

a llis , 2 02 F.3 d at 1 1 3 8 ).K I R K P A T R I C K V

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N T Y O F W A S H O E 37

children without o btaining a warrant when th e y were constitutionally r equired to d o so—we think there is minimal evidence sufficient to controvert the County ’s Monell defense
at this stag e of the proceed i n gs

. The record is relatively
spa r se (with depositions from only two W CDSS workers), and Wilcox ’ s and Kennedy ’s testimonies of the imminent dang er standard are u n c l e ar, but “ambig uity in favor of the defendant is not sufficient” to “dispose o f a case on summary judg ment.” Sery
, 513 F .3d at 972 (“I f a reasonab l e person could side with the plaintiff’s interpretation of events , t he issue must s u rv ive for trial.”). A triable issue ex ists a s to whether the root o f the unconstitutional behavior ex hibited in B .W .’s case lies in the unoffici a l operating procedure o f W a shoe County or in the e r r a n t acts of individual social workers, and this question should g o to a jury

.

I V

W e affirm the district court’s summary judg ment in favor of all of the defendants on the claim a lle ged by Kirkpatrick

on his own behalf. W e reverse the d i s t r ict court’s summary judg ment in f

avor of Ellen W i l cox , L inda K ennedy
, a nd W a shoe County on the c laim that they violated B .W .’s F ourth Amendment rig ht to be free from unreasonable seiz ures. 8 W e remand to the district c o u r t for further proceeding s on the F ourth A mendment claim filed on behalf o f B. W

. ag ainst these three d efendants. W e affirm the district court’s
summary judg ment in f

a v or of Amy Rey

nolds with respect to all claims because the plaintiffs have not alleg e d any fa c t s

8 B ecau se w e rev erse th e d istrict co u rt’ s g ran t o f su m m ary j u d g m en t in f av o r o f W ash o e Co u n ty , w e d e ny a s m o o t K irk p atrick ’ s m o t io n f

or j u d icial n o tice o f

th e “ p ap ers an d p l ead in g s o n f ile in th e case o f Ga rver v. Co un ty o

f W ash o e , Nin th

Circu it d o ck et n u m

b er 1 1

- 1 8 0 1 5 .”K I R K P A T R I C K V

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N T Y O F W A S H O E 38

s u gg esting that she was involved with the d ecision to tak e custody of B. W

. E a ch party shall b ear its own costs on appeal.

AF F IRMED in part, and REVERSED in part.

KOZ I NSKI , Circuit J udg e, dissenting in part:

This term the Supreme Court on c e a gain summarily

r e v ersed a lower court f

or f ailing to a

p preciate that a s t a t e official is p rotected by qualified immunity unl ess “every reasonable official [ in the d efendant’s situation] would have understood that what he is doing violates” a constitutional rig ht. Taylor v. Barkes
, No. 14-939, 2015 W L 2464055, at *2 (U.S. J une 1, 2015) (internal quotation marks omitted). The Court has stressed time a nd ag ain that, “[ w ] hen pro p e r ly

a p p l ied, q

ualified immunity protects all but the plain l y i ncompetent or those who knowing ly violate the law.” I d

. (quoting Ashcroft v. al-Kidd
, 131 S. Ct. 2074, 2085 (2011)). The majority ig no r e s that c lear admonition, and imposes personal liability on two child protective service workers whose actions were any

thing but malicious or incompetent.

Under the majority ’s holding
, E llen W ilcox and L inda Kennedy are ex posed to liability because t h ey r emoved a vulnerable baby , B

. W ., from the care of her mother, Rachel. Rachel was a drug addict wh o had taken methamphetamine

so recently that it was found in her daug hter’s blood at the time of the c hild’s b i r t h

. Rachel previously had two other children r emoved f

rom her custody because of her manifest inability to care f

or them. She a lso had no fix ed address, a nd therefore no w ay of being found, h a d she left the hospital.K I R K P A T R I C K V

. C O U

N T Y O F W A S H O E 39

Had Rachel absconded with B

. W
., the baby ’ s life could w ell have been in peril.

The majority doesn’t a p p ear to dispute this conclusion; nonetheless it finds there was no “imminent dang er of serious bodily harm” to B .W

. Rogers v. Cnty. of Sa n Joaquin
, 487 F .3d 1288, 1295 (9th Cir. 2007). The majority r e asons that B .W

. “would have very likely remained in the hospital

. . . while the defendants requested a warrant” d u e to the informal “ hold” the W ashoe County Depa r t m e nt of Social Services placed on her. O p. a t 19. B ut, “very likely ” is c old comfort when the life o f a newborn baby is a t stake. I n any

e v e n t , this crucial inference is entirely speculative. The majority f

a i l s to hold plaintiffs to their burden o f “identify [ ing ] affirmative evidence from which a jury could find” a violat ion of clearly established law. Crawford-El v. Britton , 523 U.S. 574, 600 (1998) (emphasis added).

There simply is n o e vidence in the re c o r d that the informal “hold” would have prevented Rache l f r o m leaving the hospital a

nd taking B .W

. with her. I t is undisputed that the “ hold” didn’t constitute a forma l restriction on their movement—indeed, if it d id, then the “hold” itself w o uld have b een a seiz ure. B e cause the h o spital didn’t h a ve the lawful authority t o r e s t rain Rachel or B .W
., it was at least possible that mother and d aug hter could have l ef t while a warrant a pplication was pending

. Reasonable minds mig ht disag ree as to the precise quantum of risk faced by B .W

. , but, under the c ircumstances, it was hardly malicious or “plainly incompetent” of W ilcox and Kennedy to temporarily take B .W

. o ut of h arm’s way

. al-Kidd
, 1 31 S. Ct. a t 2085 (internal quotation marks omitted).K I R K P A T R I C K V

. C O U

N T Y O F W A S H O E 40

W e ’ve been cautioned n u m erous times to undertake our qualified immunity analy sis “in lig ht of the specific c ontex t of the c ase, n ot as a broad g eneral proposition.” Brosseau v. Haugen
, 543 U.S. 194, 1 9 8 ( 2004) (per curiam) (internal quotation marks omitted). A test like Rogers that is “cast at

a hig h level of g enerality” constitutes clearly established law only “in a n obvious c ase.” Id. at 1 9 9. At the time B .W

. was taken into custody
, we h a d n ever applied Rogers in the
contex t of an especially vulnerable child, like a baby , or in a situation where social w orkers have no means of l o c a t ing a child once it leaves their imm e d i a te supervision. Rogers alone cannot have placed e very reasonable official on notice that taking B

. W

. into custody was unconstitutional. I worry that future babies will p ay w ith their lives because soci al workers hesitate to take them into custody based on to d a y ’s decision.

Nor am I convinced that the county should be liable under Monell

. The few remarks Wilcox and Kennedy made during their depositions, standing alone, don’t support an inference that there is a practice o f constitution a l v iolations “so persistent and widespread as to practically have the force o f law.” Connick v. Thompson
, 131 S. Ct. 1350, 1359 (2011). There is nothing el s e

. I therefore respectfully dissent from Parts I I I .B .2 and I I I .B .3 of the majority opinion.