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LAUREN WALLIS, by and through
her Guardian Ad Litem, REBECCA
LYNN WALLIS, Guardian Ad Litem;
JESSIE WALLIS, by and through his
Guardian Ad Litem, WILLIAM
LAWRENCE WALLIS, Guardian Ad
Litem; REBECCA LYNN WALLIS;
WILLIAM LAWRENCE WALLIS,
Plaintiffs-Appellants, No. 97-55579
v. D.C. No.
CV-93-00135-MLH
MARY SPENCER, M.D.; CANDACE
YOUNG, PH.D.; RACHEL STECKS; ORDER AND
CITY OF SAN DIEGO; CITY OF AMENDED
ESCONDIDO; CHILD PROTECTIVE OPINION
SERVICES, A DIVISION OF THE SAN
DIEGO COUNTY DEPARTMENT OF
SOCIAL SERVICES; WELLS GARDNER;
CATHY MCLENNON; CANELA
CAVEDA; SUSAN GOULIAN; GRACE
GOODALL; and DOES 1 through
300, Inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted
November 6, 1998--Pasadena, California
Filed September 14, 1999
Amended February 7, 2000
Before: Myron Bright,* Stephen Reinhardt, and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Reinhardt;
Dissent by Judge Rymer
1970 in which her father predicted the killing of a child "on
the third full moon after two blue moons." One of Rachel's
multiple personalities told Young that her father's prediction
referred to Jessie's murder on the fall equinox, supposedly a
satanic "high holiday." In 1991, the fall equinox fell on Sep-
tember 23, one day before Jessie's third birthday.
As a marriage and family counselor, Young was required
by California law to report child abuse. Young called Sue
Plante at CPS and recounted Rachel's tale. Plante called a
child abuse hotline. The ensuing referral repeated Rachel's
story, noting that she was currently hospitalized for psychiat-
ric reasons, and manifested multiple personality and
"decompensation" during cult holidays. In addition, the refer-
ral stated that according to Rachel, Becky might be unaware
of Bill's cult activity.
Plante's supervisor told her to call the Escondido Police
Department (EPD). EPD assigned the case to Officer Brian
Knodel. Plante told Knodel of Young's referral, including
Young's statement that Rachel's father owned Witch Way, a
boat docked in San Diego. The next day, Knodel told Plant
that he could not locate the Wallises at the address Rachel
provided because it was over a year old--likely due to the
estrangement caused by Rachel's earlier false report to CPS--
and that he did not try to contact them at work because he did
not want to alert them to CPS's intervention activities.
In a recommendation to a CPS caseworker, Plante asserted
that taking the Wallis children into protective custody was the
only possible course of action. CPS social worker Karen
Cabico got the assignment of deciding whether the children
should be picked up and placed in foster care pending an
investigation. While trying to locate the Wallis home on Sep-
tember 20, Cabico conferred with Knodel and Plante; Plante
told her that a district attorney had told her that they had
"enough to pick up the kids."
Knodel concluded his involvement in the matter on Sep-
tember 20 by recommending to his superiors that the case be
submitted for investigation or follow-up by Plante. EPD
assigned the case to juvenile detectives Diana Pitcher and
Ralph Claytor. According to Pitcher, all her conversations
with Plante and Cabico involved the supposed ritual murder
of Jessie. Young reiterated Rachel's disclosures to Pitcher,
who purportedly believed them because Young possessed
"expertise" in the subject of ritual abuse.
According to Pitcher and Claytor, Plante and Cabico told
them that there was a "pickup order." Claytor also asserted
that his involvement in the matter was limited to enforcement
of the order. Pitcher's supervisor later stated that he believed
that CPS had a juvenile court order to pick up the children,
and that EPD would do so in the normal course of its activi-
ties. No pickup order ever existed, and at that point, CPS had
not yet made a decision to seek protective custody of the chil-
dren.
When Becky left work on September 22, three EPD vehi-
cles followed her. When she noticed that she was being fol-
lowed, Becky became frightened and drove around in a panic.
When the police pulled her over and said that they needed to
"check" her children, she took them to her home and con-
sented to their entry.
At the Wallis home, the children were asleep and appar-
ently well cared for. The officers noted nothing suspicious.
When Pitcher interviewed Lauren, the child denied that any-
one had abused her or touched inappropriately. Pitcher told
the Wallises that she was taking custody of the children.
Pitcher later said that she did so, and did not interview Becky
or Bill, because of the nonexistent pickup order and com-
pleted CPS investigation. The officers also told the Wallises
that there was a court order to pick up the children. Pitcher
and Claytor took the children to Hillcrest Receiving Home, a
county shelter.
Without a court order or notice to the Wallises, Pitcher had
the children submit to an evidentiary physical examination at
a local hospital. The medical procedures performed by appel-
lee Dr. Mary Spencer included body cavity examinations and
photographs. Spencer reported to appellee Wells Gardner,
CPS's court intervention worker, that the examinations had
revealed evidence of sexual molestation of both children.
According to Spencer, Dr. Susan Horowitz concurred.
Gardner filed a petition in juvenile court alleging that Bill
was going to sacrifice Jessie to Satan, and that both children
had been sexually abused. The juvenile court referee rejected
the allegation of occult sacrifice as a basis for retaining cus-
tody of the children, but concluded that Spencer's report was
sufficient for that purpose.
Two months later, Horowitz informed Gardner that Spen-
cer's statement in her report that Horowitz supported the find-
ing of sexual abuse was false. According to Horowitz, her full
review of the CPS file showed that there had not been any
abuse of the children, and that there were normal physiologi-
cal explanations for what Spencer had concluded were symp-
toms of sexual molestation. Gardner immediately released the
children to their grandmother and moved to dismiss the juve-
nile court case. Lauren and Jessie were returned to their par-
ents on December 6, 1991. After that date, no one ever
contended that either child had been sexually abused, that
there was any evidence to support that charge, or that Bill had
planned to murder Jessie.
The Wallises sued Spencer, Young, Stecks, CPS, Gardner,
and appellees County of San Diego and City of San Diego
under 42 U.S.C. S 1983 for violations of their constitutional
rights. CPS, the County and other defendants settled with the
Wallises.
Pitcher gave conflicting versions of her conversation with
Young. In deposition, she said that she believed Rachel's tale
because the "expertise" of Young and a doctor with whom she
had not spoken; in the affidavit, she claimed that she relied on
Young's expressed fear for the safety of the children.
On a defense motion for summary judgment, Pitcher, Clay-
tor, and Pitcher's supervisor testified that there was a practice
of enforcing "orders" to take protective custody of children
without seeing the order.
The district court granted summary judgment for the
remaining defendants. The court of appeals reversed as to the
City, holding that the action was not barred by the juvenile
court referee's decision.
On remand, the district court again granted summary judg-
ment for the City, concluding that none of the Wallises' con-
stitutional rights had been violated because EPD had
reasonable cause to remove the children with or without a
court order. The court added that even if the Wallises' rights
were violated, they failed to show that EPD had a policy that
caused the violations. In addition, the court determined that
the City was immune from any state-law remedy because the
police acted reasonably in removing the children from their
home and subjecting them to the investigatory body-cavity
examinations. Although no officers had been sued in their
individual capacities, the court went on to rule that the offi-
cers were entitled to absolute and qualified immunity, and that
their immunity was transferable to the City. The Wallises
appealed.
[1] A municipality can be sued for constitutional depriva-
tions visited pursuant to governmental custom. To avoid sum-
mary judgment, a plaintiff need show only that there is a
question of fact regarding whether there is a custom or policy
that caused a constitutional deprivation. The Wallises were
entitled to prevail if they introduced sufficient evidence to
show that there was an issue of material fact as to whether
their constitutional rights were violated, and the violations
were caused by police department custom or practice.
[2] Parents and children have a constitutional right to live
together without governmental interference. That right is an
essential liberty interest protected by the Fourteenth Amend-
ment's guarantee that parents and children will not be sepa-
rated by the state without due process of law except in an
emergency. The Wallises produced more than enough evi-
dence to create a genuine issue of material fact as to whether
removal of the children from their parents' custody was viola-
tive of their constitutional rights.
[3] No court authorized anyone to remove Lauren and Jes-
sie from their home. [4] The City did not seriously challenge
the contention that the officers took custody of Lauren and
Jessie because they mistakenly believed that there was an out-
standing court order. Nor did the City argue that either a mis-
taken belief that a court order exists, or reliance on an
erroneous statement to that effect from a social worker, satis-
fies the requirement for a court order, or provides reasonable
cause for the seizure of the children.
[5] Officials may remove a child from the custody of its
parents without prior judicial authorization only if the infor-
mation they possess provides reasonable cause to believe that
the child is in imminent danger of serious bodily injury, and
that the scope of the intrusion is reasonably necessary to avert
that injury. The existence of reasonable cause and the related
questions are all questions of fact to be determined by the
jury. Summary judgment in favor of the defendants is
improper unless, viewing the evidence in the light most favor-
able to the plaintiffs, it is clear that no reasonable jury could
conclude that the plaintiffs' constitutional rights were vio-
lated.
[6] Summary judgment was improper in this case if a mate-
rial question of fact existed regarding whether there was rea-
sonable cause to believe that the Wallis children faced an
immediate threat of serious physical harm or death, or the
actions taken by the officers exceeded the permissible scope
of the action necessary to protect them from that threat. There
were disputes of material fact with respect to both questions.
[7] The state may not remove children from their parents'
custody without a court order unless there is specific, articul-
able evidence that provides reasonable cause to believe that a
child is in imminent danger of abuse. Moreover, police cannot
seize children suspected of being abused or neglected unless
reasonable avenues of investigation are first pursued, particu-
larly when it is not clear that a crime has or will be commit-
ted. Whether a reasonable avenue of investigation exists
depends in part on the time element and the nature of the alle-
gations.
[8] At the time Lauren and Jessie were removed, the police
had received a report from a mental health worker that an
institutionalized mental patient, who had an extensive history
of delusional disorders and multiple personalities, had told a
story of anticipated ritual murder by Jessie's father--a story
that would appear to an objective observer clearly to be
founded in mental illness. The juvenile court referee who
heard the dependency petition rejected those charges as a
basis for removing Lauren and Jessie from their parents' cus-
tody.
[9] Under the circumstances, a reasonable jury could have
concluded that the information possessed by the officers was
insufficient to give rise to reasonable cause, or that the offi-
cers' conduct in failing to investigate the mental patient's
bizarre tale before acting was not reasonable. Given the
uncertainty regarding the information possessed by the offi-
cers at the time they removed the children, the contradictions
in Pitcher's testimony and sworn statements, the absence of
any significant investigation into the allegations, and the
extraordinary nature of the allegations, it could not be said as
a matter of law that reasonable cause existed, or that the offi-
cers acted reasonably.
[10] Even if state action to protect Jessie from future
satanic sacrifice by his father were reasonable, triable issues
of fact would have existed regarding whether the scope and
degree of the state interference was justified by the alleged
exigency. Merely because some intrusion on a child's pro-
tected privacy and security interests may be reasonable does
not mean that any intrusion is.
[11] The police had no information that Jessie's father's
plot extended beyond the equinox; the imminent danger to
Jessie was to occur only on September 23, 1991, a day after
the children's seizure. There was a genuine issue of material
fact as to whether the emergency continued for more that the
day or two following the time of the seizure. [12] Further-
more, the police had no information that implicated the
mother in any abuse. A genuine issue of fact existed as to
whether removal of the children from their mother's custody,
and their placement in an institution for an indefinite period,
was sufficiently strictly circumscribed by the exigency that
justified the City's intrusion.
[13] It was for the district court on remand to determine
whether any City policy could be held to have caused any vio-
lation of the Wallises' rights after the date of the juvenile
court hearing. With respect to the period between the removal
and the hearing, only one alleged violation merited separate
consideration--the subjecting of Lauren and Jessie to inva-
sive medical examinations at the behest of the police.
[14] The right to family association includes the right of
parents to make important medical decisions for their chil-
dren, and of the children to have those decisions made by
their parents rather than the state. Barring a reasonable con-
cern that material evidence might dissipate, or that urgent
medical problems exist requiring immediate attention, the
state is required to notify parents and to obtain judicial
approval before children are subjected to investigatory physi-
cal examinations.
[15] Parents have a right to be with their children while
they are receiving medical attention (or to be nearby if there
is a valid reason for excluding them). Children have a corre-
sponding right to the love, comfort, and reassurance of their
parents while they are undergoing medical procedures, partic-
ularly those that are invasive or upsetting.
[16] The Wallises adduced testimony that there was a prac-
tice of enforcing "orders" to take protective custody of chil-
dren without ever seeing the order. This was sufficient to raise
a genuine issue of material fact regarding the existence of a
custom or practice of taking children from their homes based
on telephone calls from CPS without adequate safeguards to
ensure that the removal was legal.
[17] The Wallises presented evidence from which it could
be inferred that the EPD customarily took children that it
placed at Hillcrest for invasive investigatory examinations
without obtaining a court order, and without notifying their
parents. A reasonable inference could be drawn that it was a
standard operating procedure. [18] The Wallises also pro-
duced sufficient evidence to create a question of fact as to
whether these customs and practices had a direct causal link
to the deprivation of the Wallises' constitutional rights.
[19] The district court incorrectly held that even if the City
had policies that caused the deprivations, it was not liable
because any immunities possessed by the officers were trans-
ferred to the City. There are no personal immunities available
vicariously to municipal actors under S 1983. Immunity under
S 1983 is governed by federal law; state law cannot provide
immunity from suit for federal civil rights violations.
[20] Under Cal. Gov. Code S 820.2, [21] a public employee
cannot be held liable for injury resulting from his act or omis-
sion, where the act or omission was the result of the exercise
of discretion vested in him, whether or not such discretion
was abused. However, S 820.2 does not extend to non-
discretionary actions, such as battery and false imprisonment.
[22] As to the removal of the children, many of the relevant
facts were in dispute, including the question of whether the
police took Lauren and Jessie into custody pursuant to a
request from CPS, the agency in which the discretion to make
such decisions was vested. Summary judgment would not be
proper on the basis of so unclear and undeveloped a record.
With respect to the examinations, summary judgment on
S 820.2 immunity grounds was equally inappropriate. The
Wallises contended that Pitcher was carrying out a mandatory
City policy that did not involve the exercise of any discretion.
Judge Rymer dissented, observing that no triable issue of
fact existed regarding a City policy on physical examinations
of children who were taken into custody on the basis of
alleged sexual abuse.
_________________________________________________________________
COUNSEL
Paul Leehey, Fallbrook, California, and Donnie Cox, Carls-
bad, California, for the plaintiffs-appellants.
Jeffrey Epp, City Attorney, and Mark Waggoner, Assistant
City Attorney, Escondido, California, for the defendant-
appellee.
_________________________________________________________________
ORDER
The majority amends the majority opinion, slip opinion
filed September 14, 1999, as follows:
1. Insert the following footnote at the end of the
last sentence of the paragraph following head-
note 14, Slip Op. p. 11501:
On rehearing, the City and County of San Diego
as amicus curiae argue that these requirements
conflict with a state law regarding the medical
examinations of children in protective custody.
This law, California Welfare and Institutions
Code S 324.5, was not enacted until 1998, some
seven years after the Wallis children were sub-
jected to the invasive vaginal and anal examina-
tions. Thus, we have no occasion to consider
whether or to what extent that law is affected by
our decision here. We observe, however, that
there is no apparent conflict between the
requirements of this opinion and the statute in
question. See, e.g., Tenenbaum v. Williams, 907
F.Supp. 606 (E.D.N.Y. 1995) (on denial of
rehearing, holding that a New York statute
allowing local officials to give consent for medi-
cal services for a child in protective custody did
not affect the court's conclusion that due process
required that the Commissioner of Social Ser-
vices obtain judicial authorization for a purely
investigatory examination issued after notice
and an opportunity to be heard had been fur-
nished to the parents), aff'd in part and vacated
in part, 193 F.3d 581, 604 (2d Cir. 1999) ("it
cannot be said that the requirement of obtaining
the equivalent of a warrant where practicable
imposes intolerable burdens on the government
officer or the courts, would prevent such an offi-
cer from taking necessary action, or tend to ren-
der such action ineffective").
2. Renumber the subsequent footnotes accordingly.
_________________________________________________________________
OPINION
REINHARDT, Circuit Judge:
This case involves a conflict between the legitimate role of
the state in protecting children from abusive parents, and the
rights of children and parents to be free from arbitrary and
undue governmental interference. Such conflicts occur with
increasing frequency these days. The problem of child abuse
is a critical one, with deep personal and social costs. For too
long, intra-familial sexual abuse was considered to be a
"private" matter. Today, the law is changing. As we develop
a greater awareness of the extent and severity of this difficult
and painful problem, society has finally begun to treat intra-
familial child abuse as a serious criminal offense.
Because the swing of every pendulum brings with it poten-
tial adverse consequences, it is important to emphasize that in
the area of child abuse, as with the investigation and prosecu-
tion of all crimes, the state is constrained by the substantive
and procedural guarantees of the Constitution. The fact that
the suspected crime may be heinous -- whether it involves
children or adults -- does not provide cause for the state to
ignore the rights of the accused or any other parties. Other-
wise, serious injustices may result. In cases of alleged child
abuse, governmental failure to abide by constitutional con-
straints may have deleterious long-term consequences for the
child and, indeed, for the entire family. Ill-considered and
improper governmental action may create significant injury
where no problem of any kind previously existed.
Here, the plaintiffs -- two young children and their parents
-- have sued the City of Escondido, among others, for viola-
tions of their constitutional rights. Escondido police officers,
evidently acting on the basis of a non-existent court order,
seized the children, aged two and five, placed them in a
county-run institution, and several days later, without obtain-
ing judicial authorization and without notifying their parents,
took them to a hospital for the performance of highly intrusive
anal and vaginal physical examinations. The children were
not returned to their parents for approximately two and one-
half months. All of this occurred after a mental patient who
had a long history of delusional disorders and was confined
to a mental institution told her therapist a fantastic tale of
Satanic witchcraft within her family and an impending child
sacrifice. The district court initially granted the City's motion
for summary judgment on the erroneous theory that the action
was collaterally estopped by a preliminary ruling of the juve-
nile court referee, and we reversed. Subsequently, the district
court again granted the City summary judgment, this time on
the merits. Again, we reverse.
BACKGROUND
In September, 1991, Bill and Becky Wallis lived in San
Diego with their five-year-old daughter Lauren and their two-
year-old son, Jessie. At that time, Bill had worked at the
Lucky Supermarket in San Marcos for over ten years; Becky
had worked for a similar period of time at Lucky's in the
nearby community of Escondido.1 Although Bill and Becky
Wallis maintained relationships with their parents, the family
had had no contact with Becky's sister, Rachel Stecks, for the
previous 18 months. Rachel, who suffers from a long history
of psychiatric problems, including severe dissociative and
multiple personality disorders, had made a false report to the
San Diego County Child Protective Services ("CPS") in April
of 1990, alleging that Bill was sexually abusing Lauren. CPS
had investigated the report and found that there was no credi-
ble evidence to support the allegations and no action was
taken against the Wallises. Bill and Becky remained angry at
Rachel, however, and terminated their relationship with her.
The following year, Rachel was hospitalized in a psychiat-
ric facility because she was suicidal and was afraid that she
would be murdered. She reported to her therapist in the hospi-
tal, Candace Young, that Bill Wallis was planning to sacrifice
his young son Jessie to Satan at the "Fall Equinox ritual," and
that Bill had told her that Jessie's ritual murder would be cov-
ered up by staging a car accident in which his body would be
burned. Rachel also told Young that both her parents were in
a satanic cult, and that Bill Wallis was also in the cult, but that
Becky was not, and indeed "might not know" about her hus-
band's and parents' cult membership. Rachel recounted her
recently recovered memory "of being with her father in the
woods, with him wearing a cult robe reciting hypnotically `On
the third full moon after two blue moons a child will be
killed.' " Rachel believed that this incident occurred in 1970,
some 20 years before Jessie's birth. One of Rachel's "alter"
multiple personalities told Young that the incantation referred
to Jessie and meant that he would be sacrificed to Satan on the
"Fall Equinox," supposedly one of the Satanic "High
Holidays."2 In 1991, the Fall Equinox evidently fell upon Sep-
tember 23, one day before Jessie's third birthday.
Young, a marriage and family counselor, was at the time a
mandated reporter of child abuse under California law.
Rachel's tale (and that of her alters) apparently caused Young
some concern; in any event, she telephoned Sue Plante at CPS
on September 17, 1991. Plante told Young that she needed
more information before she could refer the matter to the
child abuse investigation unit. After two days, Young sent
Plante a letter. Plante then phoned the child abuse hotline, on
September 19, 1991. The referral filled out by the hotline
worker -- by now a third-hand account of a story told by an
institutionalized mental patient -- indicates that Rachel
reported to her therapist that Bill Wallis was going to sacrifice
Jessie to Satan on September 23, 1991. The referral also says
that Rachel was currently hospitalized for psychiatric reasons,
and that she has "multiple personality and decompensates dur-
ing cult holidays." In addition, the referral clearly states that,
according to the mental patient, Becky "may not know of hus-
band's cult activity," and noted where Bill and Becky worked.
Plante also called her supervisor, who advised her to con-
tact the Escondido Police Department, which she did. The
Police Department, in turn, assigned the case to Officer Brian
Knodel. Plante told Knodel the contents of the referral from
Young, including the fact that Rachel wasn't sure that her sis-
ter Becky knew about the cult, and also that Young had told
her that Rachel's father owned a boat docked in San Diego
called "Witch Way." The next day, Knodel reported to Plante
that he could not locate the family at the address provided by
Rachel because it was over a year old -- likely due to the fact
that Bill and Becky had cut off contact with Rachel after her
earlier false report to CPS -- and that he did not attempt to
find them at their jobs "because he did not want to alert them
to the possibility that we were trying to find the child to
intervene."
Plante wrote up her recommendations for the CPS case-
worker who would be assigned to the matter, stating that she
felt "we have no choice but to take the children into protective
custody until an investigation can be done." Plante later testi-
fied, however, that she had no recollection of telling anyone
at the Escondido Police Department or at CPS that the chil-
dren should be picked up. On September 20, 1991, CPS
assigned Karen Cabico to be the "emergency response social
worker." In that capacity, she was the case-worker charged
with deciding whether the circumstances warranted removing
the Wallis children from their home and placing them in fos-
ter care. Cabico's notes from September 20 show that she
communicated with both Knodel and Plante during the effort
to locate the family's home. At some point that day, Plante
told Cabico that a district attorney named Jane Via told Plante
that "we have enough to pick up the kids."
Also on September 20, Knodel wrapped up his involvement
in the matter by recommending to his superiors at the Police
Department that "this case be submitted to investigations or
be followed up by CPS case worker Sue Plante." The Police
Department assigned the case to juvenile detectives Diana
Pitcher and Ralph Claytor, who continued to search for the
family. Cabico testified that she never told Pitcher or anyone
else at the Police Department that it was authorized to pick up
Lauren or Jessie, but that she did not know whether anyone
else at CPS told the police to do so. Pitcher testified that she
had no discussion with anyone from CPS about any allega-
tions of sexual abuse concerning either Wallis child, and that
all of her conversations with Plante and Cabico involved the
supposed "ritual murder" of Jessie. Pitcher also contacted
Young, who reiterated the tale told to her by her institutional-
ized patient. Pitcher later said that "in her mind" she believed
Rachel's story because Young had some "expertise " in the
area of ritualistic abuse.3
Pitcher and Claytor both contend that CPS workers Plante
and Cabico told them -- though neither officer can recall the
precise facts or circumstances -- that "there was a pickup
order." Pitcher testified at her deposition that she did not
believe she was responsible for investigating the case, but
"was really looking at just picking up the children on the
order." She testified that she "knew" that there was a court
order though she never saw one and repeated that she was not
conducting an investigation but only enforcing the supposed
order.4 Claytor also testified that he was involved in investi-
gating the location of the children in order to enforce the CPS
pickup order, but that he was not involved in any investiga-
tion of abuse. Pitcher's supervisor, Ken Burkett, also testified
that he believed that there was a juvenile court order to pick
up the children that had previously been obtained by CPS, and
that the Police Department picked them up as it would
"normally" do in that circumstance. It is undisputed that no
order ever existed and that CPS had not yet even reached a
decision about whether to seek protective custody of the chil-
dren when the police picked them up.
During discovery, Pitcher, Claytor, and Burkett all testified
that, at the time the Wallis children were seized, the Police
Department had in effect a practice of taking "at face value"
telephonic representations from CPS that there was a court
order to remove children from their parents' custody. Claytor
testified that "it was not unusual for CPS workers to call and
ask for our units to respond to a particular scene, and tell them
that `we have a petition that's been filed,' or kids have already
been made a ward of the court in response to a petition. That
happened fairly often." Burkett, the supervisor, testified that
the Police Department did nothing to verify that a pickup
order existed because
there's been a longstanding agreement between law
enforcement agencies, that if I tell you I have a
search warrant, up until recent times, you would be
taken at face value that you did, in fact, have a
search warrant. Same way as when I call down to
verify that there is a warrant in the system for some-
one and make the arrest, I don't physically see it.
Unlike arrest warrants, however, court orders to seize children
were not at that time part of any computerized database and
there was no established procedure for verifying such orders,
by xerox, fax, computer, or otherwise. Indeed, Pitcher testi-
fied that in September of 1991 the Department had a settled
practice of not confirming CPS representations that there was
a court order to pick up children. Pitcher was identified by the
Police Department as the person most knowledgeable about
the Department's practices regarding taking protective cus-
tody of minors, and she was deposed as such.
On September 21 and 22, the police continued to look for
the family in order to enforce the purported court order, but
still did not go to either parent's place of work. An officer
finally went to the Lucky's in Escondido on the afternoon of
September 22 and discovered that Becky did in fact work
there and that she was scheduled to work that evening. The
manager of the Lucky's did not have a current home address
for Becky. At some point that day, the police also discovered
that a boat called "Witch's Way" was berthed at a harbor in
the city of Oceanside. They made no inquiry, however, as to
the name of the person or persons who owned or used the
boat. The officers decided to have a "stake out " in the parking
lot of the Escondido Lucky's grocery store. When Becky got
off work late that night, three unmarked police cars followed
her. Becky later said that she had become frightened when she
realized that she was being followed, and even went to the
Escondido police station in an effort to get help; however, she
was afraid to get out of her car, and drove around in a panic
for two hours. At that point, the police realized that their
"surveillance had been compromised," and pulled her over in
the parking lot of a 7-11 store. There, according to Detective
Supervisor Burkett, the officers identified themselves, told her
that they needed to "check on" the children, and said that if
she took them to her house, they would be able to "sit down
and talk about it." Burkett testified, however, that when the
officers made these statements to Becky, they did not want
only to "check on" the children or talk with the Wallises but
they intended to pick up the children based on their belief that
there was a court order to do so. In response to the officers'
representations, Becky took the officers to the family's home
and agreed to their entry.
When Becky arrived at her house, accompanied by the
police, at around midnight, her children were asleep. The chil-
dren appeared well-cared for, and Detective Claytor acknowl-
edged that there was no sign of anything suspicious.
Nevertheless, Pitcher decided to "interview" Lauren. She
required Bill and Becky to awaken Lauren so that she could
question her. According to Pitcher, the sleepy five year old
was "evasive," but told her that they had to move from the
apartment in which they had previously lived because of
"spiders on the walls." Although Pitcher acknowledged that
she had no information from any source that Lauren had ever
been sexually abused, she asked her whether "anybody had
ever given her bad touches or abused her." Lauren denied that
anyone had.
Pitcher then told the parents that their children were being
taken away from them. She testified that she took custody of
Lauren and Jessie "because of the order . . .[b]ecause of the
investigation that had already taken place in CPS. " She stated
that she "did not know the specifics of how they[CPS] laid
the groundwork to get the kids removed." Pitcher did not
interview Becky or Bill because "we had an order and so I
wasn't that concerned with it." According to Detective Bur-
kett, who was also present at the time, the police probably
told Bill and Becky that there was a court order requiring the
police to pick up the children. At 1:00 a.m. on September 22,
1991, Detectives Pitcher and Claytor took Lauren and Jessie
to the Hillcrest Receiving Home, a county institution. The
children were not allowed to see their parents and cried for
them constantly. Lauren and Jessie were not returned to their
parents for two and one-half months.
Three days after the children were removed from their
home, Detective Pitcher picked them up from the county insti-
tution and took them to Palomar Hospital, where she ordered,
on behalf of the Escondido Police Department, an evidentiary
physical examination of both children. No court order was
obtained prior to this examination, which was performed in
order to determine whether either child had been sexually
abused. Nor were the parents notified in advance that the
examinations would be conducted. They were not given any
opportunity to object to the intrusive examinations, to suggest
conditions under which they might take place, or to be present
when they occurred. Pitcher testified that she took the chil-
dren for the examinations "as the officer who had placed the
children in protective custody, or at the request of Child Pro-
tective Services, or both." CPS insists that the exams were
conducted at the City's behest, and the medical report form
reflects that the Escondido Police Department was the
"requesting agency."
The medical procedures, conducted by Dr. Mary Spencer,
included internal body cavity examinations of the children,
vaginal and anal. Dr. Spencer also took photographs of both
the inside and outside of Lauren's vagina and rectum and Jes-
sie's rectum. These examinations were conducted on Jessie's
third birthday. A social worker who observed the examina-
tions reported, not surprisingly, that Lauren was very upset by
the procedures and asked for her parents. Following the exam-
inations, Dr. Spencer reported to Wells Gardner, CPS's "court
intervention worker" that the results disclosed medical evi-
dence that both children had been molested, and that Dr.
Susan Horowitz, a specialist from Children's Hospital's Sex-
ual Abuse Unit concurred with her findings. On September
25, 1991, Gardner filed a petition in Juvenile Court alleging
that Bill was going to sacrifice Jessie to Satan and that both
children had been sexually abused. The Juvenile Court referee
specifically rejected the allegations regarding occult sacrifice
as a basis for retaining custody of the children, but determined
that Dr. Spencer's report provided sufficient evidence of sex-
ual abuse to keep them in county custody. Bill and Becky
were granted only one supervised visit per week.
Two months went by. Then, on November 25, Dr. Horo-
witz sent Gardner a letter that changed the lives of the Wallis
family. It informed CPS that Dr. Spencer's statement in her
report that Dr. Horowitz supported the finding of sexual abuse
was false. In fact, Dr. Horowitz wrote, as of the time of Dr.
Spencer's report, she (Dr. Horowitz) had not had access to the
records of Dr. Spencer's examination, had not performed a
full review, and had not offered any conclusion. Dr. Horo-
witz's letter further stated that she now had reviewed the full
file and, based on all the evidence, she did not agree with Dr.
Spencer's conclusion that the children had been abused. To
the contrary, Dr. Horowitz concluded that there was no evi-
dence of abuse and that there were alternative, normal physio-
logical explanations for what Dr. Spencer had observed. Dr.
Horowitz's explanations were based on Lauren's history of
vaginal irritation and infection, as documented in her medical
records, as well as other information contained in those
records. Gardner, to his credit, immediately released the chil-
dren to their maternal grandmother, and moved swiftly to dis-
miss the case in Juvenile Court. On December 6, 1991,
Lauren and Jessie were returned by court order to the custody
of their parents. No one now contends that either child was
ever sexually or physically abused, that there was ever any
evidence of any abuse by their parents, or that Bill Wallis had
ever had any intention of sacrificing Jessie to Satan.
PROCEDURAL HISTORY
All four members of the Wallis family joined in an action
alleging the violation of their federal constitutional rights to
be free from unreasonable, arbitrary, and undue intrusions on
their privacy, person, and home, as well as setting forth vari-
ous state law claims. CPS, the County, and several other
defendants settled with the Wallises; the district court then
granted summary judgment to the remaining defendants. The
Wallises appealed the district court's ruling. In an unpub-
lished disposition, we reversed as to the City of Escondido,
holding that the Wallises' action was not precluded by the
juvenile court referee's decision to retain the children in tem-
porary custody on the basis of Dr. Spencer's false report of
sexual abuse. We remanded the matter for further proceed-
ings.
The district court granted the City's second motion for
summary judgment on the theory that none of the Wallises'
constitutional rights were violated because the Police Depart-
ment had reasonable cause to remove the children from their
parents' custody with or without a court order, and that the
officers had, therefore, acted reasonably. The court then said
that even if the Wallises' rights were violated, they had not
offered any facts or evidence proving that the Police Depart-
ment had a policy that caused the violation. The district judge
also concluded that the City was immune from any state law
remedy because the police officers were "reasonable" both in
removing the children from their parents' custody and in sub-
jecting them to the investigatory body cavity examinations.
Then, despite the fact that the Wallis family did not sue any
officers in their individual capacities, the district court went
on to conclude that even if the Wallises' constitutional rights
had been violated, the officers were entitled to both absolute
and qualified immunity, and that this personal immunity was
transferrable to the City itself: "[C]onsequently the city [is]
entitled to qualified immunity for their actions in regards to
all S 1983 actions alleged by plaintiff." The Wallises
appealed.
ANALYSIS
I. Constitutional Claims
[1] The Wallises allege that the City of Escondido, through
the actions of its Police Department, violated the family's
constitutional rights by the unlawful removal of Lauren and
Jessie from their home in the middle of the night and by the
subsequent unlawful detention of the children, including the
invasive vaginal and anal examinations. A municipality like
the City can be sued for "constitutional deprivations visited
pursuant to governmental custom." Monell v. New York City
Dept. of Social Servs.,
436 U.S. 658, 690
(1978). In order to
avoid summary judgment, a plaintiff need only show that
there is a question of fact regarding whether there is a city
custom or policy that caused a constitutional deprivation.
Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994); Jackson
v. Gates, 975 F.2d 648 (9th Cir. 1992) (city may be liable
when its policy is the moving force behind constitutional vio-
lation). The Wallises are entitled to prevail on this appeal,
therefore, if they introduced sufficient evidence to show that
there is an issue of material fact as to whether (1) their consti-
tutional rights were violated; and (2) the violations were
caused by a Police Department custom or practice. 5
A. The Alleged Violations
[2] The Wallises argue that the seizure and removal of the
children from their parents' custody in the middle of the night
pursuant to a non-existent court order violated their rights
under the Constitution. Parents and children have a well-
elaborated constitutional right to live together without govern-
mental interference. Santosky v. Kramer,
455 U.S. 745
, 753
(1982); Stanley v. Illinois,
405 U.S. 645
(1972); Pierce v.
Soc'y of Sisters,
268 U.S. 510, 534
-35 (1925); Meyer v.
Nebraska,
262 U.S. 390
(1923). That right is an essential lib-
erty interest protected by the Fourteenth Amendment's guar-
antee that parents and children will not be separated by the
state without due process of law except in an emergency.
Stanley,
405 U.S. at 651
; Campbell v. Burt , 141 F.3d 927 (9th
Cir. 1998); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir.
1996); Caldwell v. LeFaver, 928 F.2d 331, 333 (9th Cir.
1991); Baker v. Racansky, 887 F.2d 183, 186 (9th Cir. 1988);
accord, J.B., 127 F.3d at 927; Croft , 103 F.3d at 1125;
Hurlman v. Rice, 927 F.2d74, 79 (2d Cir. 1991); Duchesne v.
Sugarman, 556 F.2d 817, 824 (2d Cir. 1977). The Wallises
have produced more than enough evidence to create a genuine
issue of material fact as to whether the removal of the chil-
dren from their parents' custody was violative of their consti-
tutional rights.
1. The Non-Existent "Pick-Up" Order
[3] It is now beyond dispute that no court authorized any-
one to remove Lauren and Jessie from their home on Septem-
ber 21, 1991. The Wallises contend that the City's police
officers removed the children on the basis of a non-existent
court order, and have produced substantial evidence that this
is what actually happened. Detectives Pitcher, Claytor, and
Burkett all testified that they were told by someone at CPS
that there was a "pick-up" order and that their task was to
locate the family and enforce the order. Detective Pitcher tes-
tified in her deposition that she told Bill and Becky Wallis
that she was taking their small children away in the middle of
the night "because of the order . . . because of the investiga-
tion that had already taken place in CPS." Detective Burkett
confirmed that the officers probably told Bill and Becky that
there was an order requiring the removal of the children.
Indeed, the only evidence that could be construed as offering
any other reason for the "pick-up" is Detective Pitcher's sub-
sequent statements that appear to contradict her earlier
testimony.6
The testimony of CPS workers regarding what they told the
police is somewhat different. Sue Plante testified that she
could not recall telling the officers that there was a court order
to remove the children; her contemporaneous notes indicate,
however, that it is possible that she did advise the police to
pick them up. Karen Cabico, the official case-worker, flatly
denied conveying any such information to the police; her
notes report, however, a phone call from Plante informing her
that a district attorney had stated that there was enough evi-
dence to "pick up the kids."
[4] The City does not seriously challenge the contention
that the officers took custody of Lauren and Jessie because
they mistakenly believed that there was an outstanding court
order. Nor on this appeal do they separately argue that either
a mistaken belief that a court order exists, or reliance on an
erroneous statement to that effect from a social service agency
worker, satisfies the requirement for a court order or provides
reasonable cause, in itself, for the seizure of the children.7
Instead, confronted with the fact that there was no court order
to remove the children from their parents' control, the City
contends that the removals were nonetheless lawful, essen-
tially because the facts of which the police were aware regard-
ing the impending Satanic sacrifice of Jessie provided
"reasonable cause" to seize the children. 8
2. Reasonable Cause and Imminent Danger
[5] Officials may remove a child from the custody of its
parent without prior judicial authorization only if the informa-
tion they possess at the time of the seizure is such as provides
reasonable cause to believe that the child is in imminent dan-
ger of serious bodily injury and that the scope of the intrusion
is reasonably necessary to avert that specific injury. Good,
891 F.2d at 1093 (citing Mincey v. Arizona,
437 U.S. 385
, 393
(1978)); see also Campbell, 141 F.3d at 927; Franz v. Lytle,
997 F.2d 784 (10th Cir. 1993); Hurlman v. Rice , 927 F.2d 74,
80 (2d Cir. 1991) (collecting cases). The existence of reason-
able cause, and the related questions, are all questions of fact
to be determined by the jury. McKenzie v. Lamb , 738 F.2d
1005, 1008 (9th Cir. 1984) (per Kennedy, J.); Smiddy v.
Varney, 665 F.2d 261, 265 (9th Cir. 1981) (per Sneed, J.)
Summary judgment in favor of the defendants is improper
unless, viewing the evidence in the light most favorable to the
plaintiffs, it is clear that no reasonable jury could conclude
that the plaintiffs' constitutional rights were violated.
[6] Thus, summary judgment was improper here if a mate-
rial question of fact exists regarding whether (1) there was
reasonable cause to believe, on the basis of the information in
the possession of the Escondido police officers, that the Wal-
lis children faced an immediate threat of serious physical
injury or death; or (2) the actions taken by the officers --
removing the children from their mother and placing them in
an institution -- exceeded the permissible scope of the action
necessary to protect them from that immediate threat. We
conclude that there are material disputes of fact with respect
to both questions.
[7] First, the state may not remove children from their par-
ents' custody without a court order unless there is specific,
articulable evidence that provides reasonable cause to believe
that a child is in imminent danger of abuse. Croft v. West-
moreland County Children and Youth Servs., 103 F.3d 1123,
1125; Ram v. Rubin, 118 F.3d 1306, 1311 (9th Cir. 1997)
("An indictment or serious allegations of abuse which are
investigated and corroborated usually gives rise to a reason-
able inference of imminent danger."); Good , 891 F.2d 1087,
1093 (3d Cir. 1989) (citing Mincey v. Arizona ,
437 U.S. 385
,
393 (1978)); see also Campbell, 141 F.3d at 927; Franz, 997
F.2d 784; Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991)
(collecting cases). Moreover, the police cannot seize children
suspected of being abused or neglected unless reasonable ave-
nues of investigation are first pursued, particularly where it is
not clear that a crime has been -- or will be -- committed.
See Sevigny v. Dicksey, 846 F.2d 953, 957 (4th Cir. 1988)
(holding that child abuse investigator has duty to investigate
information that would have clarified matters prior to separat-
ing children from their parents); BeVier v. Hucal, 806 F.2d
123, 128 (7th Cir. 1986) (officer has duty to "make a thor-
ough investigation and exercise reasonable judgment before
invoking the awesome power of arrest and detention").
Whether a reasonable avenue of investigation exists, however,
depends in part upon the time element and the nature of the
allegations.
[8] At the time Lauren and Jessie were removed, the police
department had received a report from a mental health worker
that an institutionalized mental patient, who had an extensive
history of severe delusional disorders and multiple personali-
ties, had told a story of anticipated ritual murder by Jessie's
father -- a story that would appear to an objective observer
clearly to be founded in mental illness. In fact, Detective
Claytor later testified that the allegations "sounded a little
bizarre" to him, and that he had expressed that opinion to
Detective Pitcher at the time. Applying a reasonable cause
standard, the juvenile court judge who subsequently heard the
dependency petition in this case explicitly rejected those
charges as a basis for removing Lauren and Jessie from their
parents' custody. Detective Pitcher, however, stated that "in
her mind" she believed the story because it was conveyed to
her by Young, an "expert."
The only other facts on which the City relies to demonstrate
that the officers had reasonable cause to believe that there was
an imminent threat to the children's welfare at the very most
help the City establish that a genuine issue of material fact
exists and that summary judgment should not be awarded to
the Wallises. See McKenzie, 738 F.2d at 1008. Those "facts,"
taken together with Rachel's tale as reported by Young, do
not by any means justify the conclusion that a reasonable jury
would be required to find that the officers had reasonable
cause for taking the children into custody. The additional
"facts" are as follows: First, the City claims that the officers
confirmed that Rachel's and Becky's father, David Stecks,
owned a boat named "Witch Way." In fact, the police did not
confirm any such thing; according to Detective Claytor, who
was the officer searching for the boat, he learned only that a
boat with a similar name (Witch's Way) was docked in
Oceanside. He did not, however, confirm that the boat was
owned, or used, by David Stecks, or by any member of
Becky's family. Moreover, the police never conducted any
investigation whatsoever into how the boat acquired its name,
or whether Stecks had anything to do with naming it. Next,
the City relies on the fact that the Wallises had moved from
the address Rachel supplied, which the City characterizes as
"disappearing from where they were supposed to be." An
equally valid inference is that the Wallises' change of address
demonstrates the unreliability of Rachel's tip, because impor-
tant information Rachel provided proved false, and because
Rachel lacked knowledge regarding important family matters.
Third, Detective Pitcher testified that she accorded signifi-
cance to five-year-old Lauren's statement about spiders and
her "elusive" behavior on being awakened at 1:00 a.m. The
Wallises are entitled to the inference that Lauren was drowsy
and had nothing adverse to report. In any event, when asked
by Pitcher if anyone had ever given her "bad touches," Lauren
denied that anyone ever had, which is hardly "elusive."9
Finally, we note that the tip itself stated that Becky Wallis
was probably unaware that Bill was contemplating harming
Jessie and was not part of the "plot" to kill her son.10 Never-
theless, the City acknowledges that its officers did not inter-
view Becky because they mistakenly thought they were
enforcing a court order. More important, for this reason, the
officers also did not undertake any significant investigation
into the underlying charge, specifically, the allegation that
Jessie would be sacrificed.
[9] Under the circumstances, a jury could reasonably con-
clude that the information possessed by the officers was insuf-
ficient to give rise to reasonable cause or that the officers'
conduct in failing to investigate the mental patient's bizarre
tale before acting was not reasonable. While ordinarily a close
relative's tip that a child is about to be killed might provide
reasonable cause to believe that an emergency exists and jus-
tify a seizure of the child without prior judicial authorization,
the facts in this case are far from ordinary. They are, indeed,
extraordinary in every sense of the word, including the fact
that the close relative had a long history of psychiatric disor-
ders, was confined to a mental institution, and told a tale that
was wholly incredible. In any event, given the factual uncer-
tainty regarding the information actually possessed by the
officers at the time they removed the children, the contradic-
tions in Detective Pitcher's testimony and sworn statements,
the absence of any significant investigation into the allega-
tions, and the extraordinary nature of the allegations, it cannot
be said as a matter of law that reasonable cause existed, or
that the officers acted reasonably. Viewing the evidence in the
record in the light most favorable to the Wallises, we con-
clude that a reasonable jury could find that the officers did not
have reasonable cause to remove the children without a court
order.
3. Permissible Scope of the Removal
[10] Even if state action to protect Jessie against future
Satanic sacrifice by his father were reasonable under the cir-
cumstances, triable issues of fact would exist regarding
whether the scope and degree of the state interference was
justified by the alleged exigency. Bell,
441 U.S. at 559
;
Barlow, 943 F.2d at 1138 ("Police officers can proceed with-
out a warrant if they reasonably believe they are confronted
with an emergency that threatens life or limb, but the [intru-
sion] must be strictly circumscribed by the exigencies which
justify its initiation."); Franz, 997 F.2d at 791 (intrusion must
be "reasonably necessary to alleviate the threat"); Good, 891
F.2d at 1093 (under "very limited exception" to warrant rule,
intrusion must be reasonably necessary to alleviate the threat
of immediate harm); Hebein, 37 F. Supp.2d at 1043 (holding
that danger must justify the degree of interference imposed).
Merely because some intrusion on a child's protected privacy
and security interests may be reasonable does not mean that
any intrusion is.
[11] Here, the City asserts that the exigency motivating the
officers' decision to remove the children without a court order
was the belief that Bill Wallis would sacrifice Jessie to Satan
on the "Fall Equinox," which was to occur on September 23,
1991. The City argues in its brief that part of its "reasonable"
belief in the credibility of this threat was the information that
the "Equinox" is one of the "high holidays " for devil worship-
ers, "when cultists perform human sacrifices and . . . believe
that they derive energy from abusing children on that day."
(emphasis added). By the City's own admission, then, the
police had no information that Jessie's father's plot extended
beyond the Equinox; the imminent danger to Jessie was to
occur specifically and only on September 23, 1991, a day
after the children's seizure. Thus, there is a genuine issue of
material fact as to whether the emergency continued to exist
for more than the brief day or two following the time of the
children's seizure.
[12] Furthermore, as previously noted, the police had no
information whatsoever that implicated the children's mother
in any past or future abuse. There is no evidence that the chil-
dren could not have been taken with their mother to a shelter,
or placed under some other form of protective custody with
her until after the Equinox, or even until some later date. A
genuine issue of material fact exists therefore as to whether
the removal of the children from their mother's custody, and
their placement in a county institution for an indefinite period,
was sufficiently "strictly circumscribed by the exigency that
justified" the City's intrusion into the children's lives. Good,
891 F.2d at 1093. Such questions are also to be decided by a
jury. McKenzie, 738 F.2d at 1008.
4. Subsequent Conduct
[13] The Wallises contend that the violation of their rights
occasioned by the City's removal of the children continued
for the more than two month period during which the children
were detained. During that time, the children were held in
Hillcrest Receiving Home, and moved through at least three
different "confidential" foster homes. Their parents were not
permitted to know their whereabouts and were only allowed
one hour of supervised visitation per week. There is evidence
in the record that the children were traumatized by the separa-
tion and cried constantly for their parents. The Wallises con-
tended below that the City was liable for all the damages that
flowed from this entire ordeal because the City's policy was
the legal cause of the separation. The City, in response, con-
tended that it could not be held liable for any detention of the
children after their removal was approved by the juvenile
court. We leave it to the district court on remand to determine
whether any City policy could be held to have caused any vio-
lation of the Wallises' rights after the date of the juvenile
court hearing. With respect to the four-day period between the
removal and the court hearing, only one alleged violation of
the Wallises' rights merits separate consideration -- the sub-
jecting of Lauren and Jessie to invasive vaginal and anal med-
ical examinations at the behest of the Escondido police
department.
[14] The right to family association includes the right of
parents to make important medical decisions for their chil-
dren, and of children to have those decisions made by their
parents rather than the state. See Parham v. J.R., 442 U.S.
584, 602 (1979) (holding that it is in the interest of both par-
ents and children that parents have ultimate authority to make
medical decisions for their children unless "neutral fact
finder" determines, through due process hearing, that parent
is not acting in child's best interests); see also Calabretta v.
Floyd, _______ F.3d _______ (9th Cir. 1999) (holding that "[t]he gov-
ernment's interest in the welfare of children embraces not
only protecting children from physical abuse, but also protect-
ing children's interest in the privacy and dignity of their
homes and in the lawfully exercised authority of their
parents."). We agree with the Second Circuit which held, in
van Emrick v. Chemung County Dept. of Social Servs. , that
the "Constitution assures parents that, in the absence of paren-
tal consent, [physical examinations] of their child may not be
undertaken for investigative purposes at the behest of state
officials unless a judicial officer has determined, upon notice
to the parents, and an opportunity to be heard, that grounds
for such an examination exist and that the administration of
the procedure is reasonable under all the circumstances."11
911 F.2d 863, 867 (2d Cir. 1990). Barring a reasonable con-
cern that material physical evidence might dissipate, see
Schmerber,
384 U.S. at 770
, or that some urgent medical
problem exists requiring immediate attention, the state is
required to notify parents and to obtain judicial approval
before children are subjected to investigatory physical
examinations.12
[15] Moreover, parents have a right arising from the liberty
interest in family association to be with their children while
they are receiving medical attention (or to be in a waiting
room or other nearby area if there is a valid reason for exclud-
ing them while all or a part of the medical procedure is being
conducted). Likewise, children have a corresponding right to
the love, comfort, and reassurance of their parents while they
are undergoing medical procedures, including examinations
-- particularly those, such as here, that are invasive or
upsetting.13 The interest in family association is particularly
compelling at such times, in part because of the possibility
that a need to make medical decisions will arise, and in part
because of the family's right to be together during such diffi-
cult and often traumatic events.14
5. Conclusion
In light of the above, we conclude that there are genuine
issues of fact as to whether the Wallises' constitutional rights
were violated when the Escondido police officers took the
children into custody, placed them in a county institution, and
subjected them to invasive medical procedures. We must still
consider, however, whether the City is entitled to summary
judgment on the ground that the police officers did not engage
in the conduct at issue pursuant to any municipal policy, cus-
tom, or practice.
B. Municipal Policy, Custom, or Practice
[16] Next, we must consider whether a material question of
fact exists regarding whether the constitutional deprivations
(which for purposes of summary judgment we must assume
occurred) were caused by a "practice or custom which consti-
tutes . . . standard operating procedure." Trevino v. Gates, 99
F.3d 911, 918 (9th Cir. 1996). The Wallises adduced testi-
mony from Pitcher, Burkett, and Claytor that there was a
practice -- a "longstanding agreement," in Burkett's words
-- of enforcing "orders" to take protective custody of children
without ever seeing the order. This is sufficient to raise a gen-
uine issue of material fact regarding the existence of a custom
or practice of taking children from their homes based on tele-
phone calls from CPS without adequate safeguards to ensure
that the removal is legal.
[17] Furthermore, the Wallises presented evidence from
which it may reasonably be inferred that the Escondido Police
Department customarily took children that it placed at Hill-
crest Receiving Home for invasive investigatory examinations
at Palomar Hospital without obtaining a court order and with-
out notifying their parents. Detective Pitcher, who ordered the
investigatory examinations, acknowledged that she may have
done so in fulfillment of her function as the juvenile detective
who removed the children from their parents' custody, and
that there was a contract between Palomar and the Escondido
Police Department for the performance of such investigatory
examinations. A reasonable inference may be drawn from this
evidence that it was "standard operating procedure" to obtain
those examinations without seeking judicial authorization or
notifying the parents; indeed, given the absence of any indi-
vidualized suspicion of sexual abuse, it is difficult to imagine,
on the basis of the record before us, why else the Wallis chil-
dren would have been subjected to the invasive examinations.
[18] The Wallises also produced sufficient evidence to
create a question of fact for the jury as to whether these cus-
toms and practices had a "direct causal link" to the depriva-
tions of the Wallises' constitutional rights detailed above. City
of Canton v. Harris,
489 U.S. 378, 385
(1989); Chew v.
Gates, 27 F.3d 1432, 1444, 1456 (9th Cir. 1994) (holding that
city may properly be held liable where policy is moving force
behind constitutional violation); Jackson v. Gates, 975 F.2d
648, 654 (9th Cir. 1992) (holding that city's policy need not
be unconstitutional per se, but need only cause a constitu-
tional violation). A reasonable jury could readily conclude,
viewing the evidence presently in the record in the light most
favorable to the Wallises, that the moving force behind the
removal of the children from the parents' custody was the pol-
icy of accepting telephonic representations from CPS without
any procedure for checking on the accuracy or validity of the
supposed orders. See McMurray v. Sheahan, 927 F. Supp.
1082, 1090 (N.D. Ill. 1996) (holding county liable for false
arrests when it has no system to check validity of warrants on
computer system). That would be true whether a CPS
employee had erroneously told the police that a pick-up order
existed or whether the police mistakenly believed that a CPS
employee had made such a statement. Similarly, a reasonable
jury could conclude that the investigatory vaginal and anal
examinations were performed on the children pursuant to a
Police Department custom and practice of instigating body
cavity examinations without first notifying the parents and
without seeking prior court authorization whenever its offi-
cers place children in protective custody.15
[19] The district court incorrectly held that even if the City
did have policies that caused the deprivations, it was not lia-
ble because any absolute and qualified immunities possessed
by the individual officers were somehow transferred to the
city itself. There are, however, no personal immunities avail-
able vicariously or otherwise to municipal actors under
S 1983. Leatherman v. Tarrant County Narcotics Unit, 507
U.S. 163, 166 (1993). It appears that the district court also
applied state statutory immunities for child abuse investiga-
tions to the federal constitutional claims and concluded that
the City is immune from a S 1983 action under a state immu-
nity statute. Again, the district court erred. Immunity under
S 1983 is governed by federal law; state law cannot provide
immunity from suit for federal civil rights violations.
Martinez v. California,
444 U.S. 277, 284
(1980); Good v.
Dauphin County Social Serv., 981 F.2d 1087, 1090-91 (3d
Cir. 1989) (holding that state law providing immunity from
suit for child abuse investigators has no application to suits
under S 1983). In sum, the City of Escondido has the benefit
of neither federal nor state immunity from liability under
S 1983 for the alleged violations of the Wallises' constitu-
tional rights.
Appellants' evidence regarding municipal custom and prac-
tice is sufficient to permit them to survive summary judgment
on the Monell issue. Accordingly, we reverse the district
court's grant of summary judgment to the City of Escondido
with respect to the Wallises' S 1983 claims.
II. State Law Claims
In addition to their constitutional claims, the Wallises sued
the City for abduction, assault, battery, and intentional inflic-
tion of emotional distress. The district court granted summary
judgment to the City on those claims also, holding that the
police had "reasonable cause" to remove the children and to
subject them to vaginal and anal examinations, and thus vio-
lated no state laws. As discussed above, on the basis of the
record before us, whether there was reasonable cause for the
removal of Lauren and Jessie from their home is a question
of fact for the jury; so, too, as we have fully explained, the
City is not entitled to summary judgment regarding the physi-
cal examinations.
[20] The officers contend that under Cal. Govt. Code
S 820.2, they -- and under state law, by extension, the City
-- are immune from liability on the state law tort claims.16
The district court concluded that the police had reasonable
cause to seize the children and subject them to the invasive
medical examinations, it did not reach the question of immu-
nity. Given the conclusions we have reached, however, it is
necessary for us to do so.17
[21] Under S 820.2, a public employee cannot be held lia-
ble for any injury resulting from "his act or omission where
the act or omission was the result of the exercise of discretion
vested in him, whether or not such discretion be abused." The
City correctly asserts that S 820.2 applies to county social
workers engaged in investigating allegations of child abuse,
and extends to other public employees whom those social
workers "reasonably enlist to assist in the investigation."
Newton v. County of Napa, 266 Cal. Rptr. 682, 687 (Cal. App.
1990); Alicia T. v. County of Los Angeles, 271 Cal. Rptr. 513,
519-20 (Cal. App. 1990) (holding that social workers' immu-
nity is designed to protect "the continuing exercise of . . . dis-
cretion in favor of the protection of minor children"). This
immunity provides complete protection for the decision to
investigate, to make an "in-person response," and for actions
necessary to make a meaningful investigation. It does not
extend, however, to non-discretionary actions or to at least
some intentional torts committed in the course of making the
investigation, such as battery and false imprisonment.
Newton, 266 Cal. Rptr. at 687-88.18
[22] As to the removal of the children, many of the relevant
facts are in dispute, including the question whether the police
officers took Lauren and Jessie into custody pursuant to a
request from CPS, the agency in which the discretion to make
such decisions was vested. Summary judgment would not be
proper on the basis of so unclear and undeveloped a record.
With respect to the vaginal and anal examinations, summary
judgment on S 820.2 immunity grounds is equally inappropri-
ate. The Wallises contend that Detective Pitcher was simply
carrying out a mandatory municipal policy that did not
involve the exercise of any discretion. Should they prevail on
their theory, S 820.2 would be inapplicable to that part of their
claims.
CONCLUSION
Genuine issues of material fact exist as to whether the City
of Escondido is liable, under Monell, for violating the Wal-
lises' constitutional rights with respect to the removal of the
children from their home and the City's subsequent conduct,
including the invasive body cavity examinations. In addition,
genuine issues of material fact exist regarding the City's
assertion of immunity under Cal. Govt. Code S 820.2 with
respect to the state causes of action. Given the numerous fac-
tual disputes in this case, we conclude that summary judgment
was improper, and that the Wallises are entitled to pursue
both their federal and state law claims.
REVERSED and REMANDED for further proceedings
consistent with this opinion.
RYMER, Circuit Judge, dissenting:
Whether the summary judgment should be reversed on the
only ground urged by the Wallises -- that there is a triable
issue of fact on whether the City had a policy to pick up chil-
dren without verifying the existence of a court order and with-
out reasonable cause -- is a close question. There is a good
argument that, as the district court held, the officers had accu-
mulated reasonable cause in the course of investigating
Rachel's allegations, thereby making the nonexistence of the
court order immaterial. However, because it is a close ques-
tion, sending this issue back for trial is within the ballpark.
But holding that there is a triable issue of fact on a policy
with respect to the medical examinations that was never
alleged, never argued, and as to which no evidence was ever
adduced as to the City -- the only party left in the case -- is
not in the ballpark.
For sure there is evidence in the record about the examina-
tions because Dr. Spencer, CPS, and San Diego County were
defendants. However, the Wallises settled their claims against
CPS and the County, and Dr. Spencer was dismissed from the
case on immunity grounds. The City is the only party to this
appeal. Until the majority got its bat on this case, there was
no question at all about liability on the part of the City for the
medical examinations.
I therefore dissent. The possibility of a City policy with
respect to medical examinations of children was invented
here; the discussion with respect to it is dicta, as it clearly is
not necessary to the decision to reverse; and we have no busi-
ness inventing an issue and a constitutional right or two to
resolve it.
_______________________________________________________________
FOOTNOTES
*The Honorable Myron Bright, Senior Circuit Judge of the United
States Court of Appeals for the Eighth Circuit, sitting by designation.
1 The record is not entirely clear as to the ownership of the stores at
which they worked during this period, but that fact is of no import.
2 In a subsequent letter to CPS, Young stated with respect to the infor-
mation that Jessie would be sacrificed by his father: "A child alter of
Rachel's named _______ relayed this information to me, however it is not
clear which alter actually received this information from her own and Jes-
sie's father. Unfortuneately, (sic) the alters wish to remain anonymous out
of fear of punishment for disclosure." The blank space above refers to the
alter personality that requested the therapist preserve his or her anonymity.
The therapist complied with that request.
3 As this litigation has progressed over the years, Pitcher's statements
about her telephone conversation with Young have grown more elaborate.
Thus, at Pitcher's first deposition in May 1994, she stated that she subjec-
tively thought that the report might be credible based solely on the fact
that Young and another doctor, to whom Pitcher never spoke, specialized
in ritual abuse. Pitcher did not, in that deposition, testify that Young ever
told her that this report was credible or that the Wallis children were in
any immediate danger. However, when three years later Pitcher submitted
an affidavit in support of the defendant's motion for summary judgment,
she reported a different version of her conversation with Young -- one in
which Young told her that "in her professional opinion Rachel Stecks's
report was . . . true and . . . that she had a real fear for the safety of the
Wallis children." The two divergent accounts of this telephone conversa-
tion, as offered by Pitcher, in themselves create a question of fact and ofcredibility that can only be resolved by the jury. Moreover, even if Pitch-
er's most recent account is accurate, whether this conversation supplied
sufficient objective facts and information to justify the seizure is a ques-
tion of fact for the jury. See McKenzie v. Lamb , 738 F.2d 1005, 1008 (9th
Cir. 1984) (holding that the existence of probable cause in a S 1983 case
is a jury question).
4 Once again, Pitcher's testimony has changed as time has passed. In a
subsequent deposition and declaration Pitcher offered a different version
of these events, insisting that she had conducted an investigation, and had
picked up the children after concluding that she had probable cause for
such action. Even then, however, she made it clear that at the time she
acted she was relying at least in substantial part on a statement from CPS
that a pick-up order existed.
5 "The Wallises" refers to all four plaintiffs, except where the context
reflects otherwise.
6 See supra note 4.
7 Although we do not consider here the legal consequences of relying on
a non-existent order, see note 10, infra , we note that a number of factual
issues exist as to what, if anything, the officers were told about a pick-up
order for Lauren and Jessie. Such questions are best resolved at trial.
8 The claims of the parents in this regard should properly be assessed
under the Fourteenth Amendment standard for interference with the right
to family association. Campbell v. Burt, 141 F.3d 927 (9th Cir. 1998);
Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1991). Because only the chil-
dren were subjected to a seizure, their claims should properly be assessed
under the Fourth Amendment. Donald v. Polk County, 836 F.2d 376 (7th
Cir. 1988); but see J.B. v. Washington County , 127 F.3d 919, 928 (10th
Cir. 1997) (noting that there may be circumstances in which a parent has
standing to bring a Fourth Amendment claim for the seizure of a minor
child). As the same legal standard applies in evaluating Fourth and Four-
teenth Amendment claims for the removal of children, we analyze the
Wallises' claims together.
9 The City also cites, as a contributing factor in the reasonable cause cal-
culus, the "fact" that the officers were told by CPS workers about the
"pick-up" order. There are two problems with this suggestion. First, what,
if anything, CPS told the officers is a disputed question of material fact.
Second, there is a substantial legal question as to whether a mistaken
belief as to the existence of a warrant or court order, even when based on
an erroneous report from another law enforcement officer, can in itself
constitute a contributing factor. In the recent case of Rogers v. Powell, 120
F.3d 446, 453 (3d Cir. 1997), the Third Circuit appears to have answered
this question in the negative. In Rogers, a state trooper mistakenly
believed, based on a conversation with a probation officer, that there was
a warrant for Rogers's arrest. That trooper then told two fellow officers
that there was an arrest warrant, and all three arrested Rogers on that basis.
The Third Circuit concluded that all three officers violated the plaintiff's
Fourth Amendment rights. The court went on to say, however, that the
second two officers were entitled to qualified immunity, because it was
objectively reasonable for them to believe that they were authorized to
rely on the clear and unambiguous statements of a fellow officer.
10 The tip also stated that Bill supposedly told Rachel that Becky would
get over the loss of Jessie, saying "She's not going to miss him. Besides,
we've got Lauren. It's not like we don't have our hands full with her.
She'll forget about him after a while." This part of the tip suggests that
there was never any reasonable cause to remove Lauren even if there were
reason to remove Jessie. There were no allegations that anyone planned to
harm Lauren or that anyone had ever previously harmed Lauren.
11 In our recent decision in Calabretta, we quoted with approval the fol-
lowing language: "It does not require a constitutional scholar to conclude
that a nude search of a thirteen-year-old child is an invasion of constitu-
tional rights of some magnitude. More than that: it is a violation of any
known principle of human dignity." Calabretta , _______ F.3d at _______ (quoting
Good v. Dauphin County Social Services, 891 F.2d at 1093 (in turn quot-
ing Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir. 1980)).
12 On rehearing, the City and County of San Diego as amicus curiae
argue that these requirements conflict with a state law regarding the medi-cal examinations of children in protective custody. This law, California
Welfare and Institutions Code S 324.5, was not enacted until 1998, some
seven years after the Wallis children were subjected to the invasive vagi-
nal and anal examinations. Thus, we have no occasion to consider whether
or to what extent that law is affected by our decision here. We observe,
however, that there is no apparent conflict between the requirements of
this opinion and the statute in question. See , e.g., Tenenbaum v. Williams,
907 F.Supp. 606 (E.D.N.Y. 1995) (on denial of rehearing, holding that a
New York statute allowing local officials to give consent for medical ser-
vices for a child in protective custody did not affect the court's conclusion
that due process required that the Commissioner of Social Services obtain
judicial authorization for a purely investigatory examination issued after
notice and an opportunity to be heard had been furnished to the parents),
aff'd in part and vacated in part, 193 F.3d 581, 604 (2d Cir. 1999) ("it
cannot be said that the requirement of obtaining the equivalent of a war-
rant where practicable imposes intolerable burdens on the government
officer or the courts, would prevent such an officer from taking necessary
action, or tend to render such action ineffective").
13 See R. Lazebnik et al., Preparing Sexually Abused Girls for Genital
Evaluation, 13 ISSUES IN COMPREHENSIVE PEDIATRIC NURSING 155 (1990)
(concluding that vaginal examinations are highly traumatic to little girls,
particularly when their mothers are absent). A social worker who observed
five year old Lauren's vaginal and anal examination reported that Lauren
was upset and "under stress" during the examination and asked for her
parents. Later, Lauren appeared for an interview with this same social
worker clutching a security blanket and a stuffed animal and tearfully
asked whether her parents wanted her back or were trying to "get rid of
her."14 We note that the claims of each family member must be assessed sep-
arately. Here, nothing in the record before us suggests that Becky Wallis
was anything other than a fit and loving mother. As the Third Circuit
recently held, a state has no interest whatever in protecting children from
parents unless it has some reasonable evidence that the parent is unfit and
the child is in imminent danger. Croft, 103 F.3d at 1125. The government
may not, consistent with the Constitution, interpose itself between a fit
parent and her children simply because of the conduct -- real or imagined
-- of the other parent.
15 While we determine in the text that there is a genuine issue of material
fact as to the existence of a municipal custom or practice of subjecting
children, taken into custody due to suspected abuse or neglect, to investi-
gatory anal and vaginal examinations without prior judicial authorization
and parental notification, we do not intend to imply that it is necessary for
the Wallises to establish the existence of a second and independent munic-
ipal policy in order to receive damages for the injuries attributable to the
medical examinations of the Wallis children. Rather, we leave it to the dis-
trict judge and the jury to determine what additional consequences, if any,
may flow from the establishment of a separate and additional constitu-
tional violation founded on a separate and independent municipal policy.
16 Under state law, the City may be liable for damages inflicted by its
employees under the doctrine of respondeat superior. Cal. Govt. Code
S 815.2(a). Accordingly, any state law immunity from state law tort claimsthat is possessed by the employee run to the benefit of the governmental
entity. Cal Govt. Code S 815.2(b). By contrast, municipal entities are not
subject to respondeat superior liability for federal civil rights claims. See
Monell,
436 U.S. at 690
.
17 The City suggests on appeal that it may be entitled to prosecutorial
immunity under Cal. Govt. Code S 821.6, as well. We reject this claim for
two reasons. First, the City raised this issue for the first time in its reply
brief; it was not properly preserved below, and we need not consider it
here. Second, the City repeatedly asserts that it had nothing whatever to
do with the prosecution of the juvenile dependency proceeding, which it
claims was the responsibility of CPS, a county agency. Given this dis-
claimer, the City is not entitled to claim the state-law prosecutorial or
quasi-prosecutorial immunity which may be available to social workers in
child abuse cases.
18 We do not decide here which, if any, of the tort claims asserted by the
Wallises are not subject to the provisions of S 820.2, preferring to leave
that question initially to the district court.
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