* Of the Northern District of Ca lifornia, sitting by

designation. 

# Unite d States Court of Appeals

For the First C ircuit

____________________ Nos. 01-2272, 01-2524

MOUNA KANDY SUBOH, INDIVIDUALLY, AS ADMINISTRATIX OF THE ESTATE OF ISHAQ SUBOH, AND AS NEXT FRIEND OF HER MINOR DAUGHTER SOFIA KANDY, Plaintiff, Appellee,

v. DISTRICT ATTORNEY'S OFFICE OF THE SUFFOLK DISTRICT, MICHAEL N. MURPHY, CARL BORGIOLI, Defendants, Appellants, CITY OF REVERE, MASSACHUSETTS; ROBERT J. HAAS JR.; JAMES RUSSO; STEVEN PISANO; JOHN MCRAE; STEVEN WALLACE; THEODORE MICHALSKI; JULIEANN MAVAROSA; ANTONIO ARCOS; JOHN M. AZZARI; RICHARD BACHOUR; RALPH C. MARTIN II; INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, Defendants.

____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge ]

____________________

Before Selya and Lynch, Circuit Judges , and Schwarzer, * Senior District Judge .

____________________ Linda A. Wagner , Assistant Attorney General, with whom Thomas F. Reilly , Attorney Gen era l, was on the brief for appellants District Attorney's Office and Michael N. Murphy.Michael J. Akerson with whom Austin M. Joyce and Edward P.

Reardon, P.C. were on the brief for appellant Carl Borgioli. Harvey A. Schwartz with whom Kimberly H. Scheckner , Rodgers, Powers & S chwart z , James R. Knudsen , and Wittenberg & Associates were on the brief for appellee.

____________________ August 1, 2002

____________________-3- LYNCH, Circuit Judge . This appeal presents issues of qualifiedimmunity for public of fice rs, beneath which lie significant issues about parents' rights under the Uni ted States C onstitution. The case history is one of international in trigu e andof local law enforcement officers attempting to respond to the requir ements of both criminal law and family law. Of the tw o defendants before us on appeal, we hold that one, Assistant District Attorney Michael Murphy, is entitled to qualified immunity. The other, Revere Police Officer Carl Borgioli, is not

so entitled at the summary judgment stage. Consequent ly, we

reverse the district court's denial of su mmary judgment on this issue as to Murphy and affirm the denial as to Borgioli. I. We give the general background and then focus on what was known to the two defendants. We describe the facts in favor of the nonmoving party on summary judgment.

This case arises out of a complicated family dispute, involving three generations and three continents. The end result, according to the plaintiff, is that she has been deprived of custody of her young daughter due to the actions of the defendants.

The plaintiff, Mouna Kandy Suboh, is a native of Morocco andis now a resident of Massachu setts. In 1991, while still living with her parents in Morocco, she became pregnant out of wedlock. Suboh then fled to Holland to avoid what she says was her fat her's rage at her pregnancy. A daughter, Sofia, was born in Hollandon April 9, 1992. Shor tly th ereafter, Suboh's mother-4-

traveledto Holland and convinced her to return to Morocco with the baby. Suboh's parents, t he Kandys, then raised Sofia as if she

were their own child. At some point, Suboh says, the Kan dys obtaineda fake birth certificate purporting to certify that Sofia

was their biological child. At no point did they ever legally adopt Sofia; according to the plaintiff, Moroccan law does not allow such adoptions and Morocco officially recognizes Suboh as Sofia's mother. Suboh claims that her father is physically abusive and controlling, and that she agreed to her parents pretending to be Sofia's parents only because she feared her parents would not let her see Sofia at all if she did not agree.

In 1995, Suboh met an American citizen, Ishaq Suboh, and movedto Massachusetts to marry him. She says that the Kandys had promised to send Sofia to live with her in the United States, but renegedon that promise once she had left Morocco. Suboh says she returned to Morocco four times, attempting to obtain custody. She also filed a case in the Moroccan court system, but she says that the case was never adjudicated, due to her father's power and influence in Morocco. She eventually dropped the legal case so that her father would allow her to see Sofia again.

In April 1998, the Kandys came to Massachusetts in order for Suboh's father to receive medical treatment. They brought Sofia with them and stayed with Subo h and her husband at their apartment in Revere. On May 26, 1998, Suboh and her h usb and quarreledwith the Kandys about whether Sofia would be returning to Morocco with the Kandys or staying wi th Suboh in Massachusetts.-5-

Following that fig ht, Suboh's husband called the Boston city

co uncill or's office to explain the situation. An official there advisedthe pair to keep Sofia with them. Suboh and her husband then packed up their things, took Sofia, andwent to the city counci llor's office. They took with them Sofia's Dutch birth certificate, Moroccan birth identification records showing that Suboh was Sofia's mother, a document from the Dutch hospital where Sofia was born, papers from Suboh's Moroccan attorney, and copies of the Kandys' forged documentation. An official at the city councillor's office told th em she would contact an attorney for them, and advised them to stay away from the Kandys and keep Sofia with themin the meantime. Suboh and her husband also went to the Immigration and Naturalization Ser vice office to try to obtain residency papers for Sofia, but were unable to do so because they didnot have her passport. Later that day, they checked into a hotel. The following day, after Suboh's husband spoke with Mr. Kandy, the two checked into another hotel.

Mustapha Kandy, Suboh's father, called the Revere police andreported that one of his daughters (Suboh) had kidnapped his other daughter (Sofia). The Kandys told the Revere police that Suboh and Sofia were sisters and that they, the Kandys, were Sofia's parents. The Kandys showed the police a birth certificate in French and Arabic indicating that Sofia was their daughter. This birth certificate was translated by a Revere police officer.

In the early morning of May 28, Officer Borgioli became involvedwith the case. He reviewed the information that his-6-

colleagues had obtained on the previous day. He went to the Revere apartment to interview the Kandys. The Kandys also showed him Sofia's pa sspor t and a document that turned out to be the forged birth certificate. While at the apartment, Borgi oli also spoke with the officer who had tra nsla ted the Kandys' documents. Borgioli also spoke with the Kandy's niece, who was visiting at the time. Borgioli stated in an affidavit that the niece told him that the Kandys had raised Sofia from a very young age.

Borgioli testified at his deposition that Mrs. Kandy told either him or one of t he FBI agents that Suboh was Sofia's biological mother and that the Kandys had adopted Sofia. In his police report, Borgioli did not include anything about this supposed adoption, or the fact that the Kandys allegedly told him that Suboh was Sofia's biological mother. His affi davi t confirms that he learned that Suboh was the biological mother from Suboh herself, when he interviewed her on the following day at the police station. Borgioli testified that he was under the impression, basedon something that an Arabic-speaking FBI agent told him, that the Kandys' documents were adoption papers. But he also testified that he did not recall that either the Kandys or anyone else had

ever used the wordadoption. And this belief was also inconsistent with the document itself, which refers to Mrs. Kandy as the mother and says nothing about adoption.

Mr. Kandy toldBorg ioli that their son-in-law, Ishaq Suboh, had come to the apartment at some point earlier that day or

on the previous day. Mr. Kandy said that, at that time, Ishaq had-7-

stolen a Rolex watch from him and asked for money, which he gave him. Mr. Kandy said that Ishaq then asked for more money and said he would c all back later to arrange for a time for them to meet. Borgioli stated that Mr. Kandy believed that Suboh and her husband

were hold ing Sofia for ransom money. There is nothing in the record, however, about Ishaq Suboh requesting ransomfor the return of Sofia and nothing indicating that Mouna Suboh knew of such requests, if any were made.

Officer Borgioli called the District Attorney's office fromthe apartment. Borgioli spoke with Assistant District Attorney M urphy, telling him that the case involved a kidnapping for ransom and asking him questions about setting up a tap on the apartment's telephone. Mu rphy did not remember whether Borgioli told him that the Kandys were the biological parents of Sofia, or her custodians, but he says that Borgioli led him to believe that the Kandys had legal custody of Sofia.

While Borgioli was obtaining information from the Kandys,

a fellow Revere police o ffic er, who was with him at the Revere apartment, obtained information that Ishaq Suboh had attempted to charge airline tickets to his credit card, which was at its limit. At this point, the FBI was called in to assist with the case.

At some point during the day, Ishaq Suboh called from a number that the police later learned was the Boston City Council. He refused to speak with Mr. Kandy, but spoke with Mrs. Kandy and arrangedto meet her at a nearby donut shop. Borgioli says that he understoodthe purpose of the meeting was to arrange the-8-

circumstances for Sofia's return. A special agent from the FBI listenedin on the phone conversation. The meeting never took place. The following day, two R evere police officers (not including Borgioli) located Suboh in a hotel in Malden. Suboh told the police at that time that Sofia was her daughter and attempted to give themofficial, certified documentation showing that she was Sofia's birth mother. The police declined to accept the documents at that time.

The police then took Suboh and Sofia to the Revere police station to be interviewed. Borgioli conducted the interview. Suboh told Borgioli that she was Sofia's mother and that the Kandys' document s we re false. She says she told him about the fight with her parents regarding whether Sofia would return to Morocco. She says she also told him that she had legal custody of Sofia. She again showed all her documentation from the Netherlands andMorocco. She also repeatedly requested that Borgioli call the Moroccan embassy or the Netherlands embassy to verify her documentation. The police took Suboh's documents and photocopied them, although the y mad e no effort to have them translated or to confirmthem with the relevant embassies. Suboh also told Borgioli that her parents' visa was about to expire, and they had tickets to return to Morocco with Sofia. She says she asked the police to keep Sofia in state custody. Suboh says that the police repeatedly asked her about the stolen watch and her husband's alleged demand for money, and that she responded, "Which watch, what money, I-9-

don't know what you're tal king about." She says they were only concernedabout the money and the watch, andher movements over the previous two days, and not about her claims to be Sofia's mother.

Borgioli testified that Suboh told him she had given up custody of Sofia to the Kandys, or that the Ka ndys had adopted Sofia without Suboh's consent and that she was trying to "regain" custody. This is contrary to Suboh's testimony, as is Borgioli's statement that Suboh never told him not to re lease Sofi a to the Kandys, or expressed fear that the Kandys would take Sofia to Morocco. Borgioli d id ad mit that Suboh said she had never given her permission for an adoption. He also testified that Suboh had suggestedthat the Kandys' documents were forged, but said that "it

was just spe culation on her part" and he thought she was just trying to avoid being arrested. He also recalled her telling him about the difficulties she had trying to regain custody under the Moroccan system. He said that he made no effort to investi gate whether Suboh's claims about the various custody documents were true, because he had no reason, other than Suboh's word, to believe her. The same was, of course, true for the Kandys' word.

During the interview, Borgioli again called Assistant District Attorney Murphy. Both Borgioli and Murphy agree that, at this point, Borgioli told Murphy that Suboh was Sofia's biological mother. He asked Murphy, in a case where Suboh was the biological mother but not the legal guardian, whether he should charge her with straight kidnapping, kidnapping by a relative, or kidnapping1 There does not appear to have been any discovery from the

FBI agents about what they told Suboh or Borgioli. -10- by a parent. He also either asked if he could release Sofia to the Kandys, or stated t hat he was going to release Sofia to them. Murphy replied that he would have to call back. When he called back a few minutes later, Murphy told Borgioli that Suboh should be charged with kidnapping by a relative. Murphy may have also said "okay" in response to Borgioli's statement or question abo ut releasing Sofia to the Kandys, but Murphy did not recall having saidthat. There is no evidence in the record that Murphy was given any additional information about the case, such as the fact that Suboh had documentation beyond what the Kandys had presented

or the fact that Suboh alleged that the Kandys' documents were forged. There is no evidence that Murphy was told that le ga l custody of the child was disputed. There is also no evidence that Murphy kne w, or had reason to believe, that the Kandys' visa was expiring or that they planned to take Sofia back to Morocco immediately.

Suboh say s t hat Borgioli told her that Sofia would be temporarily placed in state custody. Suboh says that an FBI agent who was present also told her that Sofia would be placed with the state Depar tme nt of Social Services (DSS), and the police would keep her passport. She says the agent instructed Borgioli to "keep the passport and the daughter at the DSS." 1 Borgioli says that he never considered involving the DSS.-11- The police charged Suboh with ki dnap ping by a relative andtransported her to court. Suboh asked if Sofia could come with her, and Borgioli told her that Sofia could not come to court, but that Suboh would see Sofia when she came out of court.

Despite these representations to Suboh and the statement by the FBI agent instructing Borgioli to place the child with DSS, Borgioli then released Sofia to the Kandys. Borgioli did not ask the Kandys not to leave the country, nor did he make any efforts to make sure that they would not leave the country with Sofia. He admits that he never told Suboh that he was going to release Sofia to the Kandys and admits that it is fair to say that the decision to release Sofia to the Kandys was his decision.

Immediately after Sofia was returned to them, the Kandys returnedto Morocco with the child. The charges against Suboh and her husband were later dismissed. Suboh has not been abl e to regain physical custody of her daughter since that time. II. On March 6, 2000, Suboh, the estate of her now-deceased husband, and Sofia (acting through Suboh, her next friend) brought suit in the federal district court of Massachusetts against Borgioli, Murphy, the District Attorney's office, the City of Revere, and various other individuals associated with the case. The case alleged deprivation of the rights of Suboh, her husband, and Sofia, as secured by the C onsti tution and the laws of the United States, and liability under the Massachusetts Torts Claims Act, Mass. Gen. Laws. ch. 258, § 2 (2000), the Massachusetts Civil2 The motion to dismiss also encompassed other c la ims

ag ainst Murphy and the District Attorney's office. The dis tric t court dismissed some claims, and denied the motion as to other claims. Suboh v. City of Revere , 141 F. Supp. 2d 124, 124, 145 (D. Mass. 2001). These other claims are not at issue in this appeal.

-12- Rights Act, id. ch. 12 § 11I, and various state law tort claims.

For purposes o f t his appeal, we analyze all of the claims as Suboh's claims.

On August 1, 2000, Murphy filed a motion to dismiss the § 1983 claims brought against him in his indiv idual capacity, asserting immunity and other defenses. 2 Su boh v. City of Revere , 141 F. Supp. 2d 124, 127 (D. Mass. 2001). On March 30, 2001, the district court denied the motion to dismiss, holding that Murphy

was not entitled to either absolute prosecutorial immunity or qua lified im munity. Id. at 136-45. As for Murphy's claim of absolute prosecutorial immunity, the district court reasoned that because "the deprivation of which [the pla inti ffs] complain is wholly unrelated to any prosecutorial functions," there was no prosecutorial immunity. Id. at 137. The district court then concludedthat Murphy was not protected by qualified immunity because Suboh's claim "lies at the core" of a clearly established right to familial integrity, id. at 140, and that, as the case was presentedby Suboh, "a reasonable person in Murphy's position would have known that his release of Sofia into the Kandys' custody violatedthat right," id. at 142. As a second ground, it reasoned that Murphy's conduct violated a clearly established "substantive due process right of a parent and her child not to have a child in3 The district court initially denied Borgioli's motion to

stay the trial, ruling that it was untimely because the legal conclusion from which Borgioli sought to appeal was articulatedin its March 30, 2001, ruling, from which Borgioli took no appeal. Bor giol i petitioned this court, which issued an order clarifying that Borgioli's motion was t imely. Following that order, the district court immediately granted the requested stay. -13- state custody turned over to someone whom the state knows, or should know, to be dangerous." Id.

Murphy originally appealed from the district court's decision, but then voluntarily withdrew his appeal without prejudice, after filing a motion for summary judgment with the district court. On September 25, 2001, the district court denied Murphy's motion for summary judgment. The court agreed that it was undisputedthat "the whole case was presented to Mr. Murphy [by Borgioli] in a sense favorable to the grandparents." Nonetheless, it found that there was a material fact in dispute as to whether Borgioli asked Murphy for legal advice regarding whether to release Sofia to the Kandys.

On August 17, 2001, Borgioli filed a motion for summary judgment. On September 5, 2001, the district court granted Borgioli's motion with respect to Suboh's Fourth Amendment claims, but left Suboh's Fourteent h Am endment claims standing and denied Borgioli's qualified immunity defense for the reasons articulated in its March 30, 2001, decision re gard ing Murphy's qualified immunity defense.

The court stayed the trial pending Mur phy' s and Borgioli's appeals. 3-14- III. This court has jurisdiction to consider interlocutory appeals from the denial of a defendant's motion to dismiss or for summary judgment on a qualified immunity def ense. Behrens v. Pelletier , 516 U.S. 299, 305-07 (1996); Duriex-Gauthier v. LopezNieves , 274 F.3d 4, 6 (1st Cir. 2001). Denials of summary judgment

on qualified immunity grounds are reviewed "to the extent that the qualifiedimmunity defense turns upon a 'purely le gal' question" and any disputed facts are not material to the issue of immunity. Fletcher v. To wn of Clinton , 196 F.3d 41, 45 (1st Cir. 1999) (citations and internal quotation marks omitted). Our standard of review in such cases is de novo. Id. at 48.

We use a three-part test to determine whether an official is entitled to qualified immunity, Hatch v. Dep't of Children, Youth & Their Families , 274 F.3d 12, 20 (1st Cir. 2001), following the guidance provided by the Supreme Court, see Wilson v. Layne , 526 U.S. 603, 609 (1999); County of Sacramento v. Lewis , 523 U.S. 833, 841 n.5 (1998); Siegert v. Gilley , 500 U.S. 226, 232 (1991) . The thresh old inquiry is whether the plaintiff's allegations, if true, establish a constitutional violation. Hope v. Pelzer , 122 S. Ct. 2508, 2513 (2002); Saucier v. Katz , 533 U.S. 194, 201 (2001); Siegert , 500 U.S. at 232. The second question is whether the right

was clearly established at the time of the allegedviolation. That inquiry is necessary because officers should be on notice that their conduct is unlawful before they are subject to suit. Hope , 122 S. Ct. at 2516-18; Anderson v. Creighton , 483 U.S. 635, 638-40-15-

(1987). The third is whether a reasonable officer, si milarl y situated, would understan d that the challenged conduct violated that established right. Swain v. Spinney , 117 F.3d 1, 9 (1st Cir. 1997). The question of whether a right is clearly established is

an issue of law for the co urt to d ecide. Elder v. Holloway , 510 U.S. 510, 516 (1994). The reasonableness inquiry is also a legal determination, although it may entail preliminary factual determinations if there are disputed material facts (which should be left for a jury). Swain , 117 F.3d at 10.

Borgioli argues that none of the three criteria are met. Murphy makes the more restrained argument that the second two criteria are not met . The arguments merge to the extent that they both assert that there is no clear definition of what the district court called a "right to familial integrity." Suboh , 141 F. Supp. 2d at 139. A. Identification of a Constitutional Right

The district court based its ruling on an abstract right to "familial integrity" inherent in the su bsta ntive component of the Due Process Clause of the Fourteenth Amendment. Id. In doing so, the district court relied on a series of Supreme Court case s ranging from Meyer v. Nebraska , 262 U.S. 390 (1923), to Troxel v. Granville , 530 U.S. 57 (2000). These cases cover a ra nge of issues, from constraints on a state's power to mandate compulsory public education, Meyer , 262 U.S. 390, to constraints on a state’s ability to mandate grandparent visitation rights, Troxel , 530 U.S. 57.-16- There is a danger in the use of broad abstract terms such

as "familial integrity". The Supreme Court has warned against using generalized definitio ns of constitutional rights in the qualifiedimmunity setting. Anderson , 483 U.S. at 639. This court, in Frazier v. Bailey , 957 F.2d920, 929-30 (1st Cir. 1992), heldthat it is not sufficient f or a pla intiff to allege an abstract due process liberty interest in family relationships. The qualified immunity defense requires that the "familial integrity" right asserted be stated with particularity. Id. ; see also Hatch , 274 F.3d at 20.

Putting aside notions of generalized "familial integrity," there are, more pertinently, much more narrow interests that are at stake here. To begin, "[t]he interest of parents in the care, custody, and control of their children is among the most venerable of the liberty interests embedded in the Constitution." Hatch , 274 F.3d at 20; see also Croft v. Westmoreland County Children & Youth Servs. , 103 F.3d 1123, 1125 (3d Cir. 1997) (recognizing "the constitutionally protected liberty interests that parents have in the custody, car e and management of their children"); Jordan v. Jackson , 15 F.3d 333, 342 (4th Cir. 1994) ("The state's removal of a child from his parents indisputably constitutes an interference with a liberty interest of the parents andthus triggers the procedural pro tections of the Fourteenth Amendment."); Weller v. Dep't of Soc. Servs. , 901 F.2d 387, 391 (4th Cir. 1990) ("[The plaintiff] clearly does have a protectible liberty interest in the care and custody of his children."); Hooks4 The district court's holding regarding the "substantive

due process right of a parent and her child not to have a child in state custody turned over to someone whom the state knows, or shouldknow, to be dangerous" was in error. Suboh , 141 F. Supp. 2d at 142. There is no evidence in the record to establish that the defendants had any reason to think that the Kandys posed a danger to Sofia. -17- v. Hooks , 771 F.2d 935, 941 (6th Cir. 1985) ("It is well-s ettle d that parents have a liberty interest in the custody of their children.") The child has a similar liberty interest in being in the care and custody of her parents. See Brokaw v. Mercer County , 235 F. 3d 1000, 1018-19 (7th Cir. 2000); Wooley v. City of Bato n Rouge , 211 F.3d 913, 923 (5th Cir. 2000); Duchesne v. Sugarman , 566 F.2d817, 825 (2d Cir. 1977); Opinion of the Justices to the Senate , 427 Mass. 1201, 691 N.E.2d 911, 915 (1998).

This liberty interest i s protected both by the substantive component of the Due Process Clause, which constrains governmental interference with certain fundamental rights and libe rty interests, and by the procedural component of the Du e Process Clause, which guarantees "fair process." Washington v. Glucksberg , 521 U.S. 702, 720 (1997). In this case, we focus our analysis primarily on the procedural aspect, which is most directly implicatedby the facts presented here. 4 What is at issue here is the right of a parent to procedural due process protections before a governmental official resolves the disputed issue of custody of a child, when there are known competing claims to custody.

Due process claims more common ly ar ise in situations where state agency officials remove a child from the custodial parents, usually where there is some suspicion of child abuse or-18-

neglect. In Santosky v. Kramer , 455 U.S. 745 (1982), the Supreme Court held that before a state may sever the parent's rights in their child, due process requires that the state suppo rt its allegations of abuse or neglect by at least clear and convincing evidence, id. at 768-71. In cases where the safety of the child is at risk, there are competing liberty interests, and so the parents' rights are not absolute. Based on this principle, we have frequently upheld immunity for state actors who investigate child abuse allegations and take emergency ac tio n to protect a child. Se e Hat ch , 274 F.3d 12, 20-22, 24-25; DaCosta v. Chabot , 59 F.3d 279 (1st Cir. 1995); Frazier , 957 F.2d at 920, 931.

Generally speaking, the question of what process is due involves a weighing of the different interests of the child, the parents, and the state. Hatch , 274 F.3d at 20; see also Weller , 901 F.2d at 395-96 (considering interests and facts in case to dete rmine what process was due); Opinion of the Justices , 691 N.E.2dat 915; Care & Prot. of Robert , 408 Mass. 52, 556 N.E.2d 993, 996-97 (1990). Due process protects a parent's rights even when a state temporarily removes a child before obtaining a court order, as the state may place a ch ild in tem porary custody only when it has evidence giving rise to a suspicion that the child has been abused or is in imminent danger. Hatch , 274 F.3d at 20; see also Wallis v. Spencer , 202 F.3d 1126, 1138 (9th Cir. 2000); Croft , 103 F.3d at 1125. Moreover, due process requires that some sort of p rocess be provided promptly after an emergency removal. "'[I] n those "extra-ordinary situations" where deprivation of a protected-19-

interest is pe r mitted without prior process, the constitutional requirements of notice and an opportunity to be heard are not eliminated, but merely postponed.'" Weller , 901 F.2d at 393 (quoting Hooks , 771 F.2d at 942 (quoting Duchesne , 566 F.2d at 826)); see also Brokaw , 235 F.3d at 1021; Campbell v. Burt , 14 1 F.3d927, 929 (9th Cir. 1998); Jor dan , 15 F.3d at 343. Both the right to predeprivation process and the ri ght to postdeprivation process are at issue in this case.

Suboh's claim is that Of ficer Borgioli, enabled by Assistant District Attorney Murphy, effectively decided the custody dispute by turning the child over to the Kandys while knowing the Kandys we re about t o leave the country with the child; thus, he effectively deprived Suboh of her parental right to the care and custody of her child without providing her with due process procedures. In so doing, Borgioli ignored due process procedures establishedby state law to deal with situations such as this one. These include procedures for the state to take custody of a child whose guardian is unavailable, Mass. Gen. Laws ch. 119, § 23(C) ( 2000), procedures for the state to take temporary cust ody o f children needing care and protection, id. ch. 119, § 24 (2000), procedures for determining custody of children born out of wedlock, id. ch. 209C, § 10 (2000), and procedures for enforcing foreign custody judgments within Massachusetts, id. ch. 209B, § 12 (2000). Yet Borgioli short-circuited all of these procedur es b y deciding the issue on his own.-20- Generally, "there is a presumption that fit parents act in the best interests of their children." Troxel , 530 U.S. at 68. Here, ther e was no suspicion of child abuse or reason to suspect that the child would be in imminent peril, and thus no reason to

sever Suboh's parental rig hts pr ior to the state's resolution of the custody dispute through its normal procedures. See Hatch , 274 F.3dat 20. One of Suboh 's rights as a mother was the right to choose a proxy custodian for Sofia following her arrest. See In re Dep't of Pub. Welfare , 383 Mass. 573, 421 N.E.2d 28, 34 (1981) (noting, in case of incarcerated mother, that mother's "presumptive right to custody of the child includ[es] the right to choose a caretaker proxy"). Borgioli's actions deprived her of this right.

Mo reover, there was evidence both that Suboh tol d Borgioli that the Kandys were planning on leaving the jurisdiction with Sofia within days andthat Borgioli knew the Kandys' visa was about to expire and that they had return tickets to Morocco. Borgioli therefore had reason to k now that Suboh would never receive any postdeprivation hearing. See Weller , 901 F.2d at 396 ("[I]t is alleged that in addition to depriving [the parent] of custody without a hearing, defendants arranged for [the child] to be taken out of the jur isdictio n . . . thereby reducing the possibility of a post-deprivation hear ing."); Hooks , 771 F.2d at 942 ("Here the children were turned over . . . allegedly with the knowledge that they would immediately be taken . . . out of the jurisdiction . . ., effectively eliminating the opportunity for plaintiff to receive a post-deprivation hearing.").-21- We think it plain that Suboh alleges a violation of a constitutional right. B. Clearly established at the time

Both defendants say there was sufficient ambiguity as to the scope of "familial integrity" rights when they acted in 1998 that they are entitled to immunity because the right was not clearly established at the time. This court has held th at, at least as of 1992, "the dimensions of this right [to familial integrity] have yet to be clearly established." Frazier , 957 F.2d at 931. Articulating the right as one of "familial integrity" casts too broad a net. The inquiry into whether a right is clearly established"must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier , 533 U.S. at 201; see also Wilson , 526 U.S. at 615. The constitutional right at issue here is the right to procedural and substantive due process before the state takes a child away from his or her parent.

One triedand true way of determining whether this right

was clearly established at the time the defendants acted, is to ask whether existing case l aw gave the defendants fair warning that their conduct violated the plaintiff's constitutional rights. Hope , 122 S. Ct. at 2522. This inquiry encompasses no t o nly Supreme Court precedent, but all available case law. Hatch , 274 F.3d at 23.

Aparent's liberty interest in the care an d cust ody of her childwas established long before the facts of this case arose.-22-

The Supreme Court has noted that "[t]he liberty interest . . . of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty i nter ests recognizedby this Court." Troxel , 530 U.S. at 65. Applying this substantive due process right in Troxel , four members of the Court found it unconstitutional for a state to fail to give weight to a custodial parent’s interests in determining the care of her children when adjudicating a grandparent’s contested petition for visitation because the presumption is that a fit parent will act in their child's best interests. Troxel , 530 U.S. at 70-73 (plurality opinion). The long-standing acknowledgment of a substantive due process interest in familial integrity, e.g. , Meyer , 262 U.S. 390, formedthe backdrop for the Supreme Court's 1972 opinion in Stanley

v. Illinois , 405 U.S. 645 (1972), in which t he C ourt held that procedural due process demanded that a parent be given "a hearing

on his fit ness as a parent before his children were taken from him," id. at 649. This prin ciple was further developed by the Court in Santosky , in which the Court held that procedural due process required that a person's parental rights not be terminated unless the state's allegations of unfitness were supported by "clear and convincing evidence." 455 U.S. at 769. The Massachusetts Supreme Judicial Court has long recognized parents' rights to procedural due process in cases in which the state intervenes in the care and custody of their children, citing often to the Stanleyand Santosky decisions. See , e.g. , Opinion of the-23-

Justices , 691 N.E.2d at 913; Adoption of Eugene , 415 Mass. 431, 614 N.E.2d645, 647 (1993); Dep't of Pub. Welfare v. J.K.B. , 379 Mass. 1, 393 N.E.2d 406, 407-08 (1979).

We have no doubt that there is a clearly established consti tutional right at stake, although we have found no case exactly on all fours with the facts of this case. The difference in contexts in which the right is discussed in the case law does not mean such a righ t does not exist. See Hope , 122 S. Ct. at 2515-16 (rejecting req uire ment that facts of previous cases be "materially similar" to instant case as an overly "rigid gloss" on qualified immunity determinations). "[O]fficials can still be on notice that their conduc t violates established law even in novel factual circum sta nces. . . . [T]he salient question . . . is whether the state of the law [at the time of the action] gave [the defendants] fair warning that their alleged treatment of [the plaintiff] was unconstitutional." Id. at 2516.

As the distr i ct court stated, "[i]t is clearly establishedthat a parent cannot be deprived of custody of a child absent notice anda hearing unless there are exigent circumstances of abuse or neglect." Suboh , 141 F. Supp. 2d at 143 (citing Stanley , 405 U.S. at 650-57). Even when ther e are such exigent circumstances, there must be an adequate post-deprivation hearing within a reasonable time. The cases discussing this right are not

new and existed long before the events in this case. E.g. , Hooks , 771 F.2d at 942; Duchesne , 566 F.2d at 826-28.-24- Our precedent in Hatch settles the matter. Hatch involvedthe standard(reasonable suspicion of imminent danger) by which a state actor would be justified in temporarily taking a childfrom her pa rent pending a hearing. 274 F.3d at 23-24. Hatch , decided in 2001, found the right clearly established by the time of the events in question there, which occurred in 2000. Our

case concerns events in May 1998. Nonetheless, Hatch relied on

cases dating from the early and mid 1990s that established due process protections for even temporary removals of children pending a due process hearing. Id. at 20, 23.

Moreover, long before the events at issue in this case, many of our sister circuits had articulateda constitutional right to procedural due process when the state transfers custody from a custodial parent. See , e.g. , Weller , 901 F.2d at 393, 398 (finding that complete denial of a hearing following emergency transfer of custody violated due process); see also Wooley , 211 F.3d at 917, 924 (finding that mother's and child's due process rights not to have state deprive mother of custo dy abs ent court order or emergency circumstances were clearly e stab lished in 1995). In particular, the 1985 Hooks case bears marked factual similarities to this case. 771 F.2d 935. In Hooks , the noncustodial father, who resided out of state, informed the local police of an outstanding warrant against the custodial mother. Id. at 939. The mother attemptedto make interim care arrangements for her children, but the police r efu sed to allow her to do so. Id. at 940. She was released on her own recognizance within a few hours-25-

of arrest, but, in the meantime, the police hadturnedthe children

over to her ex-husband, who had immediately left the state with them. Id. at 939. The court held that a transfer of custody that "effectively eliminat[ed] the opportunity for . . . a postdeprivation hearing" violated the mother's due process rights. Id. at 942. It follows from Santosky and Stanley , reinforced by the

cases cited in Hatch and those from our sister cir cuits , that it

was clearly established in 1998 that a state official could not effectively resolve a disputed custody issue between a parent and another without following any due proc ess procedures at all. Defe ndants had fair warning of the existence of these righ ts . Hope , 122 S. Ct. at 2516. C. The Understanding of An Objectively Reasonable Officer

The inquiry under the th ird prong of the qualified immunity analysis is whether an objectively reasonable officer in the defendant’s position would hav e un derstood his action to violate the plaintiff’s rights. See Saucier , 533 U.S. at 205 ("If the officer's mistake as to what the law requires is reasonable

. . . the officer is en titled to the immunity defense."); Swain , 117 F.3d at 9-10. The analysis differs as to Murphy and to Borgioli. 1. Murphy Unlike Borgioli, Murphy was not given fact s in dicating that there was any dispute over the custody of the child. Indeed, Mu rphy’s only information on this point, from Borgioli, was that-26-

the Kandys were the child’s lawful custodians. These facts alone wouldseem to mandate that Murphy be given qualified immunity. It is not material that Borgioli's and Murphy's memories diverged over whether there was any discussion of whether to release the child to the Kandys.

Suboh makes two arguments in response. First, Suboh says Murphy had no legal authority to release the child. Second, Suboh says that Murphy was negligent in not determining whether there was a custody dispute between Suboh and the Kandys. Neither argument has merit. First, the claim as to which immunity is sought is a federal constitutional claim, brought under § 1983, not a state law claimabout an individual exceeding his authority. The constitutional claimdoes not turn on the scope of the authority of the Assistant District Attorney. Whether or not he had authority, he simply did not know there was a custody dispute.

Suboh's second argument assumes that there was some fact that should have put Mur phy on inquiry notice that there was a custody disput e. The facts alleged here concerning Murphy's involvement in the matter would not put a reasonable prosecutor on such notice.

The district court denied immunity to Murphy on the basis that Murphy may have given Borgioli legal advice about whether he couldturn custody of the child over to the Kandys. The record is clear that Murphy did not know that there was a custody dispute and, indeed, implicitly was toldcustody was not in dispute. Given-27-

these facts, we cannot say it was unreasonable for Murphy to acede to Borgioli's suggestion that the child be returnedto individuals that Murphy was told were her legal guardians. The district court’s conclusion cannot stand. Accordingly, we reverse the district court; Murphy is entitled to qualified immunity o n t he § 1983 claim. 2. Borgioli

Borgioli, in contrast, kne w that there was a custody dispute from his interrogation of Suboh and knew that Suboh had documents that she said supported her claim to custody. Suboh had shown hima birth certificate that showed her as the birth parent,

as w ell as various other documents that supported her clai ms . Suboh had also told him that the documentation shown by the Kandys was forged and that the Kandys had lied to him. He knew that the Kandys had given the police inconsistent information about who the birth mother was.

Borgioli argues that it was factually reasonable for him to rele ase the child to the Kandys even if a clearly established right was involved. In essence he makes three arguments. First, he argues that the facts as he knew them indicated that the Kandys

were Sofia’s custodians. Second, he argues that he had probable cause to arrest Suboh and her husband for kidnapping and that was enough to justify his release of the child. Third, Borgioli argues that ADA Murphy agreed to releasing the child to t he Ka ndys, and that immunizes him. We take each argument in turn.-28- We, like the district court, think that no reasonable officer could have concluded on the facts before him that the Kandys had undisputed custody of the child, despite Suboh's claims, andso no process of any sort was due before th e c hild could be releasedto the Kandys. Suboh repeatedly told him that she was the biological mother of Sofia, which directly con flicted with the information provided by the Kandys, who at times said they were the biological parents andhad provided a birth certificate indicating that they were the biological parents. Suboh also provided documentation that was obviously different from the documentation providedb y the Kandys and which she said supported her claim of custody. Suboh told him that the Kandys' custodial documents were forged. No ob jectiv ely reasonable officer could immediately conclude that the Kandys' documents were validand Suboh's documents were forged, or that there was no custody dispute.

Borgioli a lso f ailed to pursue reasonable avenues of investigation to determine whether Suboh's claims were true, such

as having her documents translated from Dutch, French, and Arabic,

or calling the embassies, as Suboh requested. See Wallis , 202 F.3d at 1138 (police should pursue "re asonable avenues of investigation," within circumstances of case, before removing children from parents' custody). It is also relevant that the K andys' documentation, even if valid, did not give the police authority to effect a transfer of custody, see Mass. Gen. Laws ch. 209B, § 12 (setting forth rules for filing and enforcing custody judgments of foreign states in Massachusetts); Wooley , 211 F.3d at-29-

926 (it was not objectively reasonable for police officer to rely

on court custody order to transfer custody when state law required a civil warrant).

We also reject Borgioli's argument that the probable

cause determination as to the kidnapping charges entitles a reasonable officer to make a conclusive determination of a disputed custody matter. The threshold for probable cause in a criminal

case is low, as Borgioli certainly must know. "[P]robable cause exists when 'the facts and circumstances within [the police officer’s] knowledge and of which they had reasonably trustworthy information were sufficient to war rant a prudent [person] in believing that the [defendant] had committed or was committing an offense.'" Rivera v . Murphy , 979 F.2d 259, 263 (1st Cir. 1992) (quoting United States v. Figueroa , 818 F.2d 1020, 1023 (1st Cir. 1987) (quoting Beck v. Ohio , 379 U.S. 89, 91 (1964)) (internal quotation marks omitted). That there is probable cause that a crime has been committed is not a determination on the merits that a crime was committed: an arrest is not a conviction. Indeed, in order to prove kidnapping by a relative, as Borgioli must have known, the state would have had to show that Suboh did not have custody of the child. Mass. Gen. Laws ch. 265, § 26A (2000). As

a matter of law, mere probable cause for arrest on kidnapping charges of a person claiming custody is not a sufficient basis on which to determine a custody dispute, nor is an arresting police officer the correct person to be ma king s uch a determination. Compare Rivera , 979 F.2d at 263 (articulating standard for probable-30-

cause), with Santosky , 455 U.S. 74 5 (a rticulating standard for permanent deprivation of parental rights). While a temporary emergency transfer of custody may issue on the basis of "reasonable cause" to believe that a child is in danger of abuse or neglect , see Care & Prot. of Robert , 556 N.E.2d at 995-96, that is a far cry froma police officer making a custody decision that is effectively nonreversible on the basis of probable cause for arrest for kidnapping by a relative. The pro bab le cause argument works against Borgioli, not for him. A reasonable officer could not view cause for arrest as the extent of the process due before usurping the parent's right to the care and custody of her child.

Borgioli’s reliance on Murphy does not help him. Although Borgioli had facts before him that there was a keenly disputedcustody issue, he refrainedfrom telling Murphy about that dispute. A reasonable officer would not rely on a district attorney's assent, when he knew the district attorney had not been given the material information. Cf. Rodriques v. Furtado , 950 F.2d 805, 812 (1st Cir. 1991) (there is no qualified immunity if police officer was "c onstit utionally negligent" and knew that facts submittedin search warrant affidavit were insufficient to establish probable cause).

On the facts alleged by Suboh, Borgioli's actions were not on the "hazy border" between a ccep table and unacceptable behavior. Saucier , 533 U.S. at 206 (quoting Pries ter v . City of Riviera Beach , 20 8 F.3d 919, 926 (11th Cir. 2000)) (internal quotation marks omitted). Whatever the exact contours of the right-31-

to due process in the context of child removals in other circumstances, see , e.g. , Frazier , 957 F.2d at 931, this case falls well within the area of clarity. Borgioli cannot prevail on qualified immunity at the summary judgment stage. IV. Pendent Jurisdiction

Defendants ask us to take jurisdiction over their appeals fromthe denial of qualified immunity on the Massa chuset ts Civil Rights Act claim against Borgioli, the denial of immunity on the Massachusetts Torts Claims Act claims against the District Attorney's office, and the denial of summary judgment on state tort claims against Murphy. Generally, interlocutory revie w of a decision denying qualified immunity under § 1983 "does not in and of itself confer jurisdiction over other contested issues in the case." Roque-Rodriguez v. Lema Moya , 926 F.2d 103, 105 & n.2 (1st Cir. 1991). In order for the court to exercise pendent jurisdiction, the party seeking jurisdiction must show that the is sues are "inextricably intertwined with [the district] court’s decision to deny the individual defend ants' qualified immunity motions, or that review of t he [de cision for which pendent jurisdiction is sought] was necessary to ensure meaningful review of the [qualified immunity decisio n]." Swint v. Chambers County Comm’n , 514 U.S. 35, 51 (1995); se e a lso Fletcher v. Town of Clinton , 196 F.3d 41, 55-56 (1st Cir. 1999). We h ave t horoughly reviewedthe qualifiedimmunity decision of the trial court without any need to touch on the pendent claims. Consequently, there is no-32-

pendent appellate jurisdiction here. That said, however, we fully expect that the district court, either sua sponte or upon timely request, will reevaluate it s earl ier rulings in light of this opinion. Conclusion The denial of summary judgment as to Murphy is reversed andthe claim against him under § 1983 is ordered dismis sed on qualified immunity grounds. The denial of summary judgment as to Borgioli's claim of qualified immunity is affirmed . No costs are awarded. So ordered.