Demaree v Pederson, No 14-16207 (9th Cir., January 23, 2018) (Per Curiam)
NO QUALIFIED IMMUNITY FOR SOCIAL WORKERS WHO REMOVE CHILDREN FROM HOME WITHOUT WARRANT WHERE THERE IS NO IMMINENT HARM TO CHILDREN AT THE TIME TO JUSTIFY THE REMOVAL
Child Protective Services removed plaintiffs' children from their home without a warrant while investigating a Wal-Mart employee's report to the police concerning family photos left to be developed showing child nudity. Plaintiffs sued the social workers alleging violation of their constitutional right to family unity and companionship under 42 U.S.C. § 1983; 4th & 14th Amends. U.S. Const. The U.S. District Court granted the defendants motion for summary judgment on the basis of qualified immunity. The Ninth Circuit Court of Appeals affirmed the district court's denial of plaintiffs' motion to seal the summary judgment order but reversed and remanded the granting of summary judgment.
The Ninth Circuit held that the social workers were not entitled to qualified immunity. Viewing the facts in the light most favorable to the plaintiffs, the social workers did not have reasonable cause to believe the children were at risk of serious bodily harm or molestation when they removed the children from their home without judicial authorization. At most, the children might be at risk for being photographed naked again. The panel further held that plaintiffs' constitutional right was clearly established at the time the children were taken. The children were legally and rightfully in the custody and home of their natural parents.
The court held that specific judicial precedent clearly gave notice to the social workers that children could not be removed from their homes without a court order or warrant absent cogent, fact-focused reasonable cause to believe the children would be imminently subject to physical injury or physical sexual abuse.