DA: Daytop Counselors Filed False Reports
North Country Gazette, 26 of July , 2011 at 4:09 pm
QUEENS—Three clinical counselors at Daytop Village in Far Rockaway, which provides substance abuse treatment to adults and teens, have been charged with insurance fraud, conspiracy and other crimes for allegedly filing false progress reports with the courts on behalf of a patient in exchange for his obtaining for them what they believed to be stolen merchandise.
Kasheen Bolden, 40, of Brooklyn, Claudette Fickling, 60, of Long Island, and Miguel Aviles, 46, of New Jersey, are variously charged with third degree insurance fraud, first-degree offering a false instrument for filing, first- and second-degree falsifying business records, third-degree criminal possession of stolen property, fifth-degree conspiracy, fourth-degree criminal facilitation, fifth-degree attempted criminal possession of stolen property and attempted petit larceny.
If convicted, the defendants each face up to seven years in prison.
Prosecutors said that the three defendants were employed as clinical counselors at Daytop Village’s Adult Intake and Assessment Unit, located at 316 Beach 65th St. in Far Rockaway, Queens. An individual who is sent to Daytop by any Criminal, County, Supreme or District Court in the State of New York initially goes to the Far Rockaway location for assessment and treatment by clinical counselors. Progress reports are then filed with the New York State Unified Court System.
According to the charges, between May 2010 and this month, Bolden, Fickling and Aviles provided unauthorized benefits to a patient – such as not having to stay at the facility, attend therapy sessions or take mandatory urine tests – and filed false progress reports with the court on his behalf in exchange for his obtaining for them what they believed to be stolen merchandise – such as laundry detergent, tools and computers.
Officials said the investigation was continuing. 7-26-11
Wednesday, July 27, 2011
Monday, July 18, 2011
Judges Need Pay REDUCTION Rather Than Pay RAISES
Commission to Set Raises for Judges in New York State Is Flooded With Suggestions
By WILLIAM GLABERSON, NY TIMES
What is the price of administering justice?
That may sound like an existential question. But for a state panel beginning its task of setting salaries for New York’s judges, the issue is less of soaring philosophical debate than of convoluted calculations.
Would $220,836 be the proper salary for a judge who now earns $136,700, as one argument filed with the commission suggested? What about $195,754?
The seven members of the commission indicated last week in their first meeting that they thought their summer math-immersion course would put an end to one of the longest-running arguments in Albany, where state judges, numbering more than 1,200, have been lodging complaints about their pay for years.
The panel, the Judicial Compensation Commission, was created last year after the Legislature had failed for 12 years to agree on a raise for judges. Its decision, due in August, is to have the force of law unless overturned by the Legislature and the governor.
William C. Thompson Jr., the panel’s chairman and a former New York City comptroller, told the commissioners that they should assume that their conclusion “on the level of compensation for judges is going to be the level of compensation.”
The commission will hold its first — and probably only — public hearing on Wednesday in Albany. As a result, its members, appointed by the governor, legislative leaders and the state’s chief judge, are being inundated with formulas and charts.
The suggestions include every manner of numerical calculation, with most using as a point of reference the current $136,700 salary of State Supreme Court justices, who handle a wide range of cases, including murder cases and malpractice trials, and whose pay would have risen 41 percent if they had received raises to keep pace with inflation, according to one filing.
Each interest group had its own math. The New York City Bar Association argued that given how expensive it is to live in New York City, Supreme Court justices would have to earn $212,000 to be paid in line with the salaries of other big-city judges across the country.
The New York County Lawyers’ Association did another calculation: a $60,000 raise “would increase the state budget by less than 55 one-thousandths of one percent.”
Not to be outdone, a coalition of 12 judges’ organizations put forth 50 facts justifying a big raise, including salaries in New York City’s Sanitation Department: 50 employees in the department earn more than almost all New York judges and nearly as much as the state’s chief judge, Jonathan Lippman.
Judge Lippman makes $156,000; an intermediate appeals judge makes $144,000; a criminal court judge makes $125,600. The commissioners said they would keep in place the comparative differences for the various levels of the courts.
One commission member, Mark S. Mulholland, a Long Island lawyer, said in an interview that there were numbers of formulas that people were using to make their cases.
But he insisted he was not overwhelmed by numbers as lawyers sometimes are. “I actually did well in math,” he said.
Officials at the state’s Office of Court Administration presented the commissioners with their own ways of looking at the numbers, including a comparison of New York’s judicial salaries with the salaries of judges in other states. New York came in dead last.
The court administrators suggested setting the salary for a State Supreme Court justice between $192,000 and $220,000, a range seemingly intended to give the commission ample leeway to grant a big raise. If, for example, the commission chose a salary less than $192,000, it could appear fiscally responsible even as it doled out raises of 30 percent or so.
For much of the past dozen years, the discussion of judicial salaries has not drawn much passion. But with the commission tackling the issue at a time of state budget problems, the idea of increasing any state salaries is not popular.
State Senator John J. Bonacic, a Republican who is chairman of the Judiciary Committee, said in an interview that a raise to $220,000 for judges “may not be consistent with the tough environment that’s going on right now.” He said that in some areas of the state “if a vacancy occurred, you would have lawyers lining up for Supreme Court at the current salary.”
In the media and on the Internet, the prospect of a big judicial raise is beginning to draw fiery comments. Judges deserve a raise, “but 62 percent in one shot?” The New York Post asked in an editorial last week after the court administration officials had filed their submission. “No way,” the paper commented.
David Bookstaver, the spokesman for the court system, said the proposal offered the commission a range of salary possibilities based on factors set forth in the law. As for the criticism, Mr. Bookstaver called it “a mischaracterization of our submission.”
During the panel’s meeting last week, three of the seven commissioners appeared ready to grant judges a large raise quickly, two did not suggest views and two said the size of any raise had to be limited by the state’s fiscal troubles. “How much can the state afford?” asked Bill Mulrow, who was appointed by Gov. Andrew M. Cuomo.
In the filings, the formulas and calculations are stitched together with arguments. So far, the most ardent — and the wordiest— is the one by the judicial associations, which runs 247 pages. “When someone finds out that you are a judge,” it said, “and you have not had a raise in over 12 years, most people say, ‘That’s crazy.’ ”
Wednesday, July 13, 2011
Plaintiffs Seek Removal of Judge Lewis Kaplan From Their Case
 |
| Judge Lewis A. Kaplan |
Mark Hamblett, NY Law Journal, 04-28-2011
Lawyers seeking to enforce an $18 billion environmental damages judgment against Chevron in Ecuador have asked Southern District Judge Lewis A. Kaplan to recuse himself.
In the latest salvo in what has become a worldwide legal and public relations battle, two attorneys allege that Judge Kaplan has expressed "prejudicial and untenable conclusions without a trial or an evidentiary hearing" and has "lost all semblance of impartiality" in the case.
Judge Kaplan in March issued a preliminary injunction blocking enforcement of the $18 billion judgment, finding merit in Chevron's claims that the judgment may have been procured through fraud.
The recusal motion was filed by New York attorney Julio C. Gomez and New Orleans attorney Carlos A. Zelaya, who represent two Ecuadorian plaintiffs who prevailed in Ecuador but were named by Chevron in a racketeering suit the oil company brought against attorney Steven Donziger (pictured below).
Mr. Donziger led the charge for plaintiffs in Ecuador in the so-called Lago Agrio litigation that climaxed on Feb. 14 when an Ecuadorian court ordered the $18 billion award for environmental contamination caused by Chevron's predecessor oil company in Ecuador, Texaco, from 1964 to 1992.
The award is now being appealed in Ecuador.
Chevron's racketeering suit, Chevron Corp. v. Donziger, 11-cv-691, filed by Randy Mastro of Gibson Dunn & Crutcher, alleges that Mr. Donziger conspired with others to corrupt the judicial system in Ecuador and win billions of dollars in damages from the company.
Mr. Donziger himself had filed an earlier motion asking Judge Kaplan to get off the case (NYLJ, March 3). In that motion, which the judge denied, Mr. Donzinger claimed Chevron manipulated the court's case assignment system to get before Judge Kaplan and that the suit should have been assigned instead to Judge Jed S. Rakoff, who nine years ago dismissed the initial action brought in the Southern District against Chevron on the basis of forum non conveniens. That ruling led the plaintiffs to bring suit in Ecuador.
Judge Kaplan become embroiled in the fight between the oil company and the Ecuadorian plaintiffs in 2010, when Chevron filed discovery motions under USC §1782, seeking to derail the expected damages award against it. Chevron sought to enforce subpoenas of Mr. Donziger and others to glean information it claimed would show the award was the result of fraud.
Judge Kaplan has since issued a series of rulings in Chevron's favor, first in the discovery litigation and then in the racketeering case.
On May 6, 2010, he ordered documentary filmmaker Joseph Berlinger to turn over outtakes of "Crude," a film about the litigation the judge said was solicited by Mr. Donziger (NYLJ, May 7, 2010). The judge then directed Mr. Donziger to turn over documents and e-mails, and appear for a deposition in two orders issued on Oct. 20 and Nov. 30, 2010.
After Chevron filed the racketeering case on Feb. 1, Judge Kaplan, on Feb. 8, less than one week before the $18 billion Lago Agrio award was announced, issued a temporary restraining order blocking enforcement of any award (NYLJ, Feb 9).
The judge cited a memo by Patton Boggs, one of the firms hired by the Ecuadorian plaintiffs to help enforce the judgment. He said the memo, code-named "Invictus," outlines a deliberate strategy to "cause as much disruption as possible" by launching simultaneous actions against Chevron in courts throughout the world and the use of maritime attachments to "coerce" a settlement.
Judge Kaplan said there was evidence that Ecuador does not provide impartial tribunals that comport with due process and the judgment may have been procured by fraud.
The judge followed the restraining order with a preliminary injunction on March 7, when he held that Chevron was likely to prevail at trial on its claim the judgment was neither recognizable nor enforceable.
Judge Kaplan went on to deny the Ecuadorian plaintiffs a stay of that ruling pending appeal. On April 22, Patton Boggs, along with Messrs. Gomez and Zelaya, filed papers with the U.S. Court of Appeals for the Second Circuit, asking for a stay of the preliminary injunction pending an expedited appeal.
Patton Boggs, led by James E. Tyrrell Jr., claims in Naranjo v. Chevron Corp., 11-1150-cv, that Judge Kaplan lacked the authority to issue the injunction, calling it "unprecedented preliminary relief of extraordinary scope."
Mr. Tyrrell also alleges that the injunction prevents the Ecuadorian plaintiffs from speaking with counsel about potential enforcement actions in other countries.
In a related skirmish before Judge Kaplan, Mr. Mastro filed a sanctions motion against Patton Boggs and two other law firms in January for purporting to represent 48 Lago Agrio plaintiffs without authorization. Mr. Mastro claims that Mr. Donziger confirmed at a recent deposition that the firms have not executed retainer agreements with the plaintiffs, a claim the plaintiffs' firms dispute.
In an April 7 letter to Judge Kaplan, Mr. Mastro states that Mr. Tyrrell has not appeared before the judge in the racketeering case, but has now appeared before the Second Circuit in a piece of "gamesmanship" to avoid both appearing before Judge Kaplan and being sanctioned.
Mr. Tyrrell said yesterday, "it is not appropriate for me to comment on why individual lawyers representing Lago Agrio plaintiffs appear in different actions."
Patton Boggs, Motley Rice and other firms are engaged in litigation in 20 different actions in 16 courts in the United States.
Judge's 'Jaded View'?
The latest recusal motion by Messrs. Gomez and Zelaya faulted Judge Kaplan for his "jaded view" of the Ecuadorian proceedings and a "profound disrespect for the Ecuadorian judicial system."
"The court accepted without question Chevron's description of the Lago Agrio litigation as an entrepreneurial scheme engineered by counsel 'to hit Chevron as hard as they can,'" the lawyers for the Ecuadorian clients state in their motion.
The attorneys claim the judge is prejudiced against their case and has "engaged in a pattern of inequitable and overly harsh treatment of defendants, more than sufficient to create the appearance of bias."
They quote the judge as saying during a hearing that he understood "that Chevron never did business in Ecuador…that Texaco was out of Ecuador for years before they acquired Texaco…and that Texaco has been out of Ecuador for 19 years and that whatever happened since 1992 has been on the watch of the Ecuadorian-owned oil company."
They also charge that the judge, "propelled by his conviction that the Ecuadorian plaintiffs are engaged in an elaborate hoax," went on to "invite Chevron to bring this action."
Mr. Mastro yesterday called the recusal motion "meritless."
"All Judge Kaplan has done is make rulings based on uncontroverted evidence and every time he's been affirmed by the Second Circuit, most recently with the appellate court going out of its way to praise his handling of these matters," Mr. Mastro said.
Mark Hamblett can be contacted at mhamblett@alm.com.
Office of Court Administration Wants a 41% Jump in Pay For Judges
Here is the 2011 compensation report that becomes law on August 29, 2011 if the state legislature does not oppose it:
2011 Commission on Judicial Compensation
Before you read the Law Jounal on this ugly current scam, read the postings of Elena Sassower on her blog
"Center For Judicial Accountability"
New York State Office of Court Administration Wants A 41% Pay Raise For Judges
NY Law Journal
LINK
Parentadvocates.org
LINK
A report submitted by Chief Administrative Judge Ann Pfau presented several scenarios to the state's Special Commission on Judicial Compensation for a salary of between $192,000 and $220,000 for Supreme Court justices, who now make $136,700. The top end would constitute a 41 percent raise. Urging the commission to shun "half measures," the Office of Court Administration said that the panel should recommend a raise that eliminates much of the current pay shortfall in one big step despite the state's fiscal condition.
Court administrators yesterday urged "an immediate and substantial" salary increase for 1,200 state judges who have not had a raise since January 1999.
A report submitted by Chief Administrative Judge Ann Pfau presented several scenarios to the state's Special Commission on Judicial Compensation for a salary of between $192,000 and $220,000 for Supreme Court justices, who now make $136,700. The top end would constitute a 41 percent raise.
Urging the commission to shun "half measures," the Office of Court Administration said that the panel should recommend a raise that eliminates much of the current pay shortfall in one big step despite the state's fiscal condition.
The seven-member commission, which held its first meeting yesterday, is scheduled to report its conclusions to the governor and Legislature by Aug. 29 for the fiscal year that begins April 1, 2012. Unless the Legislature acts to block its recommendations, they will automatically become law. (See the law establishing the pay commission.)
"I do think this is a thoughtful analysis of what has come before to help develop alternatives for the commission to consider," Judge Pfau said in an interview.
However, the comments of commission members seemed to suggest that the current economic climate could be a major sticking point in determining how much judges will receive.
One of Chief Judge Jonathan Lippman's two choices to the panel, Kathryn S. Wylde, CEO of the Partnership of New York City, questioned how much of a role the economy should play in the commission's choices.
"It is a brick in terms of the overall state budget," she said.
But William Thompson Jr., the former New York City comptroller who was picked by Governor Andrew M. Cuomo to chair the commission, responded that the panel "can't fully ignore the state's condition."
In fact, the economy is one of the factors the law creating the commission directs it to consider. Moreover, the panel begins its deliberations as Mr. Cuomo has been battling public employee unions for concessions over the past several months that could avoid layoffs. And the courts already have been forced by budget cuts to lay off several hundred workers.
Judge Pfau's report laid out several reasons why the state's fiscal condition should not block a major raise.
First, it notes that the state has repeatedly deferred a raise. Had it acted in a more timely fashion, there would be no need for a large adjustment now, the report argues.
Moreover, it says that every $10,000 statewide increase in judicial salaries constitutes an increase in the state budget of only 9/1,000ths of 1 percent.
Finally, it observes that the establishment of the commission marks the first real opportunity to consider salaries in a non-political manner, using rational, objective and predictable criteria.
Mr. Thompson indicated at yesterday's meeting that he would like to come to a final decision on compensation weeks ahead of a late-August deadline.
"I think the recommendations we make are going to be the levels of compensation," Mr. Thompson said.
The panel will hold a public hearing at 11 a.m. on July 20 in Albany where individuals will have three minutes and organizations seven minutes to present their views. The venue has not yet been announced.
Commission member Mark Mulholland of Ruskin Moscou Faltischek in Uniondale called information on the purchasing power of judicial salaries "a critical starting point," later adding it was necessary to consider the amount of money lost through inflation as salaries stayed the same.
Robert Fiske Jr., senior counsel at Davis Polk & Wardwell, said the submissions of both the OCA and the Coalition of New York State Judicial Associations, an alliance of 12 judicial associations that proposed a 41 percent raise, offered "a very thorough analysis of the relevant factors."
William Mulrow, senior managing director at Blackstone, said it would be important to consider how much of an increase the state could afford.
James Tallon Jr., president of the United Hospital Fund of New York and a former Democratic assemblyman, said the panel should look at the "totality" of the state's compensation of other public employees in leadership and executive positions.
Richard Cotton, executive vice president and general counsel of NBC-Universal, said he would like to hear the perspective of the business community, and to know the number of judges who have left the bench for the private sector due to lower pay.
In an interview, Mr. Thompson called commission members "an informed group of people interested in working hard and coming to a conclusion."
In addition to the commission members, about a dozen others attended the meeting, which was held at the midtown Manhattan offices of the Empire State Development Corporation. Bronx Acting Supreme Court Justice Lizbeth Gonzalez, the president of the Association of Judges of Hispanic Heritage, was among the attendees.
"It appears that the body respects who we are as judges and understands the gravity of our financial circumstances, given the fact we received no pay raise or cost of living increase for more than 12 years," she said.
Brooklyn Family Court Judge Daniel Turbow, another attendee, said after the meeting that he was "encouraged and impressed" by the proceedings.
Judge Turbow, who is the president of the New York City Family Court Judges Association, said the commission "has a clear understanding of the harm that's befallen the judiciary in many ways by reason of the failure to get a salary increase."
The coalition of judicial groups conceded that it would take a "brave" decision by the commission to advocate for its proposed increase. But the groups argued in a 247-page submission that New York's economy is getting somewhat better and that the Judiciary has endured enough sacrifices since its last raise.
The groups told the commission that Supreme Court justices have lost more than $345,000 in buying power to inflation since 1999.
Albany Family Court Judge Dennis Duggan was the chief author of the alliance's recommendations.
"We are looking at (the pay commission) as sort of our jury," he said. "We are presenting our case. The jury will have to make a decision and put aside extraneous things, such as politics. We are confident, based on the evidence, they will give us a significant raise."
Andrew Keshner and Joel Stashenko can be contacted at akeshner@alm.com and jstashenko@alm.com, respectively.
Commissioners
Special Commission on Judicial Compensation
William Thompson Jr., chair, chief administrative officer/senior managing director at Siebert Brandford Shank & Co. and chair of the Battery Park City Authority. From 2002 to 2009, he served as New York City comptroller.
Richard Cotton, executive vice president/general counsel of NBC-Universal and chair of the U.S. Chamber of Commerce Coalition against Counterfeiting and Piracy.
Robert Fiske Jr., senior counsel at Davis Polk & Wardwell.
Mark Mulholland, managing partner at Ruskin Moscou Faltischek.
William Mulrow, senior managing director at Blackstone and chair of Sterling Suffolk Racecourse LLC.
James Tallon Jr., president of the United Hospital Fund of New York and chair of The Commonwealth Fund as well as the Kaiser Commission on Medicaid and the Uninsured.
Kathryn S. Wylde, president/CEO of the nonprofit Partnership for New York City and deputy chair of the board of the Federal Reserve Bank of New York.
SOURCE: http://www.judicialcompensation.ny.gov/
Saturday, July 9, 2011
New York State Supreme Court, Manhattan, Goes Paperless
"E-Courts" is a very good idea if the only people who filed lawsuits were large lawfirms. Pro se litigants must opt-out, and no one is telling these people that this is the case. So, try to find papers in your case if you are a pro se. You will not see most, all, or some, because the case is e-filed.
Unfair.
Amid Stacks of Paper, ‘E-Court’ Is Finally in Session By WILLIAM GLABERSON, NY Times
So much paper. More than two million pieces in 80,000 new civil suits a year, with some 360,000 more files in the basement. Lawyers sometimes use hand-trucks to wheel in new stacks of documents.
“We’ve run out of space to put the paper,” said Edward M. Kvarantan, one of the court clerks, while at the next table another clerk sorted through the latest piles to arrive at the court, at 60 Centre Street, where big civil suits are handled. When the file cabinets filled up, Mr. Kvarantan said, “we began to put the files on top of the cabinets, but it didn’t look very good.”
The digital revolution has now, finally, and perhaps improbably, made it here to this courthouse, State Supreme Court in Manhattan, whose staircase is featured so often on television that some people would not be faulted for thinking it is a stage set for “Law & Order.”
The court is the setting for the first full “e-court” in the state and is part of efforts by more than a dozen court systems nationally to move toward a paperless future that has come slowly to state courts, where old habits die hard. (Federal courts, and much of the rest of the world, have been online for more than a decade.)
For the past year, New York State has for the first time been requiring lawyers in about 6,000 cases dealing with commercial disputes in the Manhattan courthouse to “e-file” their cases over the Internet. Clerks and judges then process the documents from the first gripe, through the spiteful arguments and on to the final rulings, all the while providing full public access — and all, at least theoretically, paperlessly.
Some courts in Westchester and Rockland Counties have followed Manhattan’s pilot project to require mandatory electronic filing over the last year. And last month the Legislature authorized a wide expansion of electronic courts to a broad array of civil cases and to courts in every borough and several upstate counties. New York is not yet handling criminal cases electronically.
All of which has made this old-style court something of a pioneer. “We have momentum to really eliminate the paper,” said Jeffrey Carucci, the first deputy chief clerk of the Manhattan court.
From his base in the Centre Street courthouse, Mr. Carucci, 49, coordinates the statewide program to expand the electronic court to other courthouses. The whole project could be complete, he said, in 20 years. Having e-courts statewide, court officials say, will mean half a billion fewer pieces of paper annually.
“It’s a tremendous cultural change,” Mr. Carucci said.
Mr. Carucci recalled that some lawyers seemed to require persuasion to believe that their computer could actually accomplish the act of filing a document at the courthouse that used to require a personal visit to a scratched counter. He said he explained patiently, “E-filing is not just putting it out into cyberspace; it was actually filing,” in court.
There are skeptics. Though the law does permit courts to require electronic filing in certain cases, it also provides that people can opt out for specified reasons, including that they do not know how to use a computer. In the 5,745 commercial cases in which electronic filing has been required for the last year, court officials say, only 30 people have filed the necessary opt-out form (paper that goes into yet another file).
A Manhattan lawyer, Louis P. Giordano, said his firm uses computers but decided to stick with paper in a recent case. He said he worried about whether the courts had “really gotten the kinks out.”
“Things occasionally get botched in state court,” Mr. Giordano said. “In state court I do not want to be that guinea pig.”
The other day the future could be glimpsed in 60 Centre Street’s Courtroom 130, a cavernous brownish room that looked as if it were a backdrop in an old Edward G. Robinson movie.
Courtroom 130 is the palace of paper. Every weekday morning, court is in session. But there is no judge. Instead, clerks call a list of cases and lawyers line up with their piles of documents. The purpose of the exercise is the collection, collation and preparation of paper from all participants to a case for the day when it will be needed by a judge.
But in the back, at a desk with computer screens, sits Michael P. D. Kenny, the court clerk of the future. Mr. Kenny handles the electronic cases, a task that is supposed to involve key strokes and e-mail rather than lines and piles.
It has worked somewhat, Mr. Kenny said, as he prepared his cases for the next day. But what was that he was working on? It looked suspiciously like piles of paper.
He sheepishly explained that some judges have specified that the electronic court is all well and good but that when it comes to their cases, they want the paper printed out.
“It’s taking them a little while,” he said as he straightened a pile. “This moving forward,” he added, “it’s like taking baby steps.”
But some judges say paperlessness has won them over even in cases in which it is not required.
In his robing room off another big courtroom where he handles contract disputes, personal injury claims and other civil cases, Justice Paul G. Feinman said there were many benefits to the electronic court. One benefit, he said, was that he has worked on cases in any number of places with Internet access, including his mother’s house, his living room and Fire Island without having to haul pounds of documents with him.
Among its many bells and whistles, the court’s computer program automatically notifies all lawyers to a case when a document is filed by any participant. One result, Justice Feinman said, is that the age-old practice of bickering among lawyers about whether they received a copy of this or that is becoming a thing of the past.
Justice Feinman has become something of an antipaper zealot. “Papers collect,” he said. “They get full of dust. They get coffee stains.” He noted with evident disgust that the judges received a memorandum not long ago advising that they should avoid keeping piles of paper on courthouse floors. Bedbugs, the memo asserted, do not confine themselves to beds.
Justice Feinman was warming to the topic as he extolled the benefits of the e-court. “I do have fewer paper cuts since we went into this,” he said.
Unfair.
 |
| New York State Supreme Court, NYC |
So much paper. More than two million pieces in 80,000 new civil suits a year, with some 360,000 more files in the basement. Lawyers sometimes use hand-trucks to wheel in new stacks of documents.
“We’ve run out of space to put the paper,” said Edward M. Kvarantan, one of the court clerks, while at the next table another clerk sorted through the latest piles to arrive at the court, at 60 Centre Street, where big civil suits are handled. When the file cabinets filled up, Mr. Kvarantan said, “we began to put the files on top of the cabinets, but it didn’t look very good.”
The digital revolution has now, finally, and perhaps improbably, made it here to this courthouse, State Supreme Court in Manhattan, whose staircase is featured so often on television that some people would not be faulted for thinking it is a stage set for “Law & Order.”
For the past year, New York State has for the first time been requiring lawyers in about 6,000 cases dealing with commercial disputes in the Manhattan courthouse to “e-file” their cases over the Internet. Clerks and judges then process the documents from the first gripe, through the spiteful arguments and on to the final rulings, all the while providing full public access — and all, at least theoretically, paperlessly.
Some courts in Westchester and Rockland Counties have followed Manhattan’s pilot project to require mandatory electronic filing over the last year. And last month the Legislature authorized a wide expansion of electronic courts to a broad array of civil cases and to courts in every borough and several upstate counties. New York is not yet handling criminal cases electronically.
All of which has made this old-style court something of a pioneer. “We have momentum to really eliminate the paper,” said Jeffrey Carucci, the first deputy chief clerk of the Manhattan court.
From his base in the Centre Street courthouse, Mr. Carucci, 49, coordinates the statewide program to expand the electronic court to other courthouses. The whole project could be complete, he said, in 20 years. Having e-courts statewide, court officials say, will mean half a billion fewer pieces of paper annually.
“It’s a tremendous cultural change,” Mr. Carucci said.
Mr. Carucci recalled that some lawyers seemed to require persuasion to believe that their computer could actually accomplish the act of filing a document at the courthouse that used to require a personal visit to a scratched counter. He said he explained patiently, “E-filing is not just putting it out into cyberspace; it was actually filing,” in court.
There are skeptics. Though the law does permit courts to require electronic filing in certain cases, it also provides that people can opt out for specified reasons, including that they do not know how to use a computer. In the 5,745 commercial cases in which electronic filing has been required for the last year, court officials say, only 30 people have filed the necessary opt-out form (paper that goes into yet another file).
A Manhattan lawyer, Louis P. Giordano, said his firm uses computers but decided to stick with paper in a recent case. He said he worried about whether the courts had “really gotten the kinks out.”
“Things occasionally get botched in state court,” Mr. Giordano said. “In state court I do not want to be that guinea pig.”
The other day the future could be glimpsed in 60 Centre Street’s Courtroom 130, a cavernous brownish room that looked as if it were a backdrop in an old Edward G. Robinson movie.
Courtroom 130 is the palace of paper. Every weekday morning, court is in session. But there is no judge. Instead, clerks call a list of cases and lawyers line up with their piles of documents. The purpose of the exercise is the collection, collation and preparation of paper from all participants to a case for the day when it will be needed by a judge.
But in the back, at a desk with computer screens, sits Michael P. D. Kenny, the court clerk of the future. Mr. Kenny handles the electronic cases, a task that is supposed to involve key strokes and e-mail rather than lines and piles.
It has worked somewhat, Mr. Kenny said, as he prepared his cases for the next day. But what was that he was working on? It looked suspiciously like piles of paper.
He sheepishly explained that some judges have specified that the electronic court is all well and good but that when it comes to their cases, they want the paper printed out.
“It’s taking them a little while,” he said as he straightened a pile. “This moving forward,” he added, “it’s like taking baby steps.”
But some judges say paperlessness has won them over even in cases in which it is not required.
In his robing room off another big courtroom where he handles contract disputes, personal injury claims and other civil cases, Justice Paul G. Feinman said there were many benefits to the electronic court. One benefit, he said, was that he has worked on cases in any number of places with Internet access, including his mother’s house, his living room and Fire Island without having to haul pounds of documents with him.
Among its many bells and whistles, the court’s computer program automatically notifies all lawyers to a case when a document is filed by any participant. One result, Justice Feinman said, is that the age-old practice of bickering among lawyers about whether they received a copy of this or that is becoming a thing of the past.
Justice Feinman has become something of an antipaper zealot. “Papers collect,” he said. “They get full of dust. They get coffee stains.” He noted with evident disgust that the judges received a memorandum not long ago advising that they should avoid keeping piles of paper on courthouse floors. Bedbugs, the memo asserted, do not confine themselves to beds.
Justice Feinman was warming to the topic as he extolled the benefits of the e-court. “I do have fewer paper cuts since we went into this,” he said.
School Construction Authority loses in Appellate Division, First Department
| Matter of Bronx Comm. for Toxic Free Schools v New York City School Constr. Auth. |
| 2011 NY Slip Op 05853 |
| Decided on July 7, 2011 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on July 7, 2011
Gonzalez, P.J., Tom, Andrias, Moskowitz, Freedman, JJ. 5055- 13800/07 5056
Gonzalez, P.J., Tom, Andrias, Moskowitz, Freedman, JJ. 5055- 13800/07 5056
[*1]In re Bronx Committee for Toxic Free Schools, et al., Petitioners-Respondents,
v
New York City School Construction Authority, et al., Respondents-Appellants.
v
New York City School Construction Authority, et al., Respondents-Appellants.
Michael A. Cardozo, Corporation Counsel, New York (Janet L.
Zaleon of counsel), for appellants.
Weil, Gotshal & Manges, LLP, New York (Christopher D.
Barraza and David R. Berz of counsel), for respondents.
Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered October 28, 2008, which, to the extent appealed from as limited by the briefs, granted the petition to direct respondent School Construction Authority (SCA) to prepare a supplemental environmental impact statement (EIS) pursuant to the State Environmental Quality Review Act (SEQRA) (ECL 8-0101 et seq.) with respect to long-term maintenance and monitoring of measures for the remediation of contaminated soil and groundwater at the Mott Haven School Campus site, unanimously affirmed, without costs. Order, same court and Justice, entered on or about November 18, 2009, which granted respondents' motion for renewal and reargument and adhered to the original determination, unanimously affirmed, without costs.
Respondents' contentions notwithstanding, the long-term monitoring measures, developed and implemented in their entirety after the final EIS was issued in October 2006, constituted "changes proposed for the project" (6 NYCRR 617.9[a][7][i][a]). Given, among other things, the Department of Environmental Conservation's July 2006 directive to SCA to develop a site management plan, which by definition under the applicable Brownfield Cleanup Program (see ECL tit 14) regulations includes a long-term monitoring plan (see 6 NYCRR 375-1.2[at]; 375-1.6[c][iv]), it is evident that information about long-term monitoring measures was of sufficient "importance and relevance" to warrant the preparation of a supplemental EIS (6 NYCRR § 617.9[a][7][ii][a]).
By failing to make any mention of the need for long-term monitoring in the initial EIS, SCA frustrated the purpose of SEQRA, which is to subject agency actions with environmental impact to public scrutiny (see Environmental Conservation Law § 8-0109; 6 NYCRR 617.1[c]). Indeed, there is no record evidence that SCA took the requisite "hard look" at the issue of long-term maintenance and monitoring of remediation measures until 2008, when it issued its final site management plan (see Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 [*2]NY3d 219, 231-232 [2007]). This constitutes a failure of the agency's obligations under SEQRA (see Matter of Pyramid Co. of Watertown v Planning Bd. of Town of Watertown, 24 AD3d 1312 [2005], lv dismissed 7 NY3d 803 [2006]; Matter of Penfield Panorama Area Community v Town of Penfield Planning Bd., 253 AD2d 342, 349 [1999]).
Nor does the fact that SCA was acting under the Brownfield Cleanup Program (BCP) shield the remediation measures from SEQRA scrutiny. BCP remediation measures that "commit the . . . agency to specific future uses or actions" are subject to SEQRA review (6 NYCRR 375-3.11[b][1][i]). The final site management plan provided that the Mott Haven School Campus site could be used for a school campus only, thus committing SCA to a specific site use. In any event, the BCP remediation measures applied only to the BCP area, whereas most of the site was not subject to the BCP and nonetheless was subject to SEQRA review.
Respondents contend that, because SCA was relying on BCP procedures, it could appropriately defer consideration of long-term monitoring measures until the completion of remediation. As noted, however, SCA's participation in the BCP did not exempt the project's environmental impacts from SEQRA scrutiny, and under SEQRA it was impermissible for SCA to omit a known remediation issue from the EIS with the idea of taking up that issue at a later date (see Penfield, 253 AD2d at 349).
We reject respondents' contention, raised in their motion for renewal and reargument, that SCA's development of the final site management plan (SMP), which entailed circulation of a draft for public comment, obviates any need for a supplemental EIS. The SMP is not a supplemental EIS, and respondents have not established that the development of the SMP followed the procedures for the preparation of a supplemental EIS. Since SEQRA procedures must be strictly complied with (see Matter of King v Saratoga County Bd. of Supervisors, 89 NY2d 341, 347 [1996]), SCA's issuance of the final SMP did not cure the deficiencies in the final EIS.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 7, 2011
CLERK
Saturday, July 2, 2011
Judicial Watch Asks Congress To Review Supreme Court Justice Elena Kagan's Role in Obamacare
Congress Urges Review of Kagan Obamacare Role in Response to JW Disclosures
Judicial Watch
LINK
Back in May I told you that JW had uncovered explosive documents from the Obama Department of Justice (DOJ) indicating Supreme Court Justice Elena Kagan was heavily involved in crafting a defense for Obamacare while she served as Solicitor General. The documents appear to contradict Kagan’s contention that she was merely an uninvolved bystander. Well, now Congress has joined the effort to get to the truth in the matter, calling for a full investigation.
According to today’s The Washington Times:
Forty-nine Republican members of Congress have asked the House Judiciary Committee to “promptly investigate” Supreme Court Justice Elena Kagan’s role in preparing a legal defense for President Obama’s health care law when she served as solicitor general.
In a letter to committee Chairman Lamar Smith, Texas Republican, and the panel’s ranking Democrat, John Conyers Jr. of Michigan, the lawmakers said that “contradictory to her 2010 confirmation testimony before the Senate Judiciary Committee,” recently released Justice Department documents show that Justice Kagan “actively participated with her Obama administration colleagues in formulating a defense” for the law.
Here’s a copy of the letter that was issued from the congressional office of Rep. John Fleming, who is also a physician, by the way. The letter states: “This revelation raises serious questions about Justice Kagan’s ability to exercise objectivity in any case relevant to [Obamacare] that comes before the U.S. Supreme Court.”
Of course, the “Justice Department documents” referenced in the Washington Times report and in a release issued by Rep. Fleming’s office announcing the letter were disclosed through Judicial Watch. We are very glad to have played a role in helping to focus congressional attention on this crucial issue.
How crucial?
In one of the new emails, Kagan’s Deputy Solicitor General urged her to attend a healthcare litigation meeting, calling the legal fight over Obamacare, “litigation of singular importance.”
(Judicial Watch’s lawsuit has been consolidated with a similar FOIA lawsuit that had been first filed against the DOJ by the Media Research Center. The lawsuits are now both before the U.S. District Court for the District of Columbia. The documents were first produced in the Media Research litigation.)
The U.S. Supreme Court will ultimately settle the issue regarding whether or not Obama’s socialist healthcare overhaul will be the law of the land. Everyone knows it. And if Elena Kagan is forced to recuse herself from hearing the case that will be one fewer dependably liberal vote on the Supreme Court for Obamacare.
Since I covered our document discovery in May, I won’t re-publish all of the document excerpts we discovered. For a complete review, please click here.
This action by 49 members of Congress is further testament to the importance of Judicial Watch’s work and is a prime example of your Judicial Watch’s leading watchdog role. When it comes to uncovering the truth and holding our Washington public officials (on the courts and in elected office) accountable to the rule of law, it often wouldn’t get done but for Judicial Watch.
Documents Raise Questions about Kagan’s Role in Obamacare Defense
If Obamacare reaches the U.S. Supreme Court, which it surely will, one key question may determine whether or not the president’s socialist healthcare takeover will remain the law of the land: Will Supreme Court Justice Elena Kagan recuse herself from the case?
Kagan has said she was not involved in Department of Justice (DOJ) preparations for legal challenges to Obamacare. Moreover, the Supreme Court justice did not recuse herself from the High Court decision in April 2011 not to “fast-track” for Supreme Court review Virginia’s lawsuit challenging Obamacare.
But documents obtained by Judicial Watch as result of a Freedom of Information Act (FOIA) lawsuit suggest that Kagan helped coordinate the Obama administration’s legal strategy to defend Obamacare.
(Judicial Watch’s lawsuit has been consolidated with a similar FOIA lawsuit that had been first filed against the DOJ by the Media Research Center. The lawsuits are now both before the U.S. District Court for the District of Columbia. The documents referenced in this release were first produced in the Media Research litigation.)
According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:
Subject: Re: Health Care Defense:
Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]
On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”
In another email exchange that took place on January 8, 2010, Katyal’s DOJ colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. “Could you figure out the right person or people for that?” Hauck asked. “Absolutely right on. Let’s crush them,” Katyal responded. “I’ll speak with Elena and designate someone.”
However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal’s position changed significantly as he began to suggest that Kagan had been “walled off” from Obamacare discussions.
For example, the documents included the following May 17, 2010, exchange between Kagan, Katyal and Tracy Schmaler, a DOJ spokesperson:
Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: “Has Elena been involved in any of that to the extent SG [Solicitor General’s] office was consulted?...
Katyal to Schmaler: “No she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit.”
Katyal (forwarded to Kagan): “This is what I told Tracy about Health Care.”
Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”
Included among the documents is a Vaughn index, a privilege log which describes records that are being withheld in whole or in part by the Justice Department. The index provides further evidence of Kagan’s involvement in Obamacare-related discussions.
For example, Kagan was included in an email chain (March 17–18, 2010) in which the following subject was discussed: “on what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” The subject of the email was “Health Care.” Another email chain on March 21, 2010, entitled “Health care litigation meeting,” references an “internal government meeting regarding the expected litigation.” Kagan is both author and recipient in the chain.
The index also references a series of email exchanges on May 17, 2010, between Kagan and Obama White House lawyers and staff regarding Kagan’s “draft answer” to potential questions about recusal during the Supreme Court confirmation process. The White House officials involved include: Susan Davies, Associate White House Counsel; Daniel Meltzer, then-Principal Deputy White House Counsel; Cynthia Hogan, Counsel to the Vice President; and Ronald Klain, then-Chief of Staff for Vice President Biden. The DOJ is refusing to produce this draft answer.
The Vaughn index also describes a March 24, 2010, email exchange between Associate Attorney General Beth Brinkmann and Michael Dreeben, Kagan’s Deputy Solicitor General, with the subject header, “Health Care Challenges:” “…I had a national conference call with the Civil Chiefs. A memo also went out the day before. I am forwarding right after this. Let’s discuss if you have more ideas about what to do.”
So let’s sum up. Kagan instructs her office “to be involved” in crafting the Obama administration’s defense of health care reform legislation, which is certainly consistent with her former responsibilities as Solicitor General. As documented in the emails and Vaughn index, she was constantly kept apprised of ongoing litigation strategy discussions. As recently as March 2010, Kagan’s top deputy urged her to attend a high level briefing on Obamacare litigation, without a hint that it might be inappropriate.
Then the president nominates Kagan to the Supreme Court in May 2010, and all of the sudden she knows nothing about the Obama administration’s legal strategy for defending Obamacare? Moreover, Kagan scolds a Justice Department spokesperson for not clearing all sound bites over the matter through her personally.
So what does the law say about these kinds of judicial conflicts of interest? What is the standard for recusal? As reported by CNS News:
In the questionnaire she filled out for the Senate Judiciary Committee during her confirmation process, Kagan said she would abide by the “letter and spirit” of 28 U.S.C. 455 in deciding whether she felt compelled to recuse herself as a Supreme Court Justice from any case that came before the High Court.
According to the law, a “justice … shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.” It further says any justice “shall also disqualify himself … [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.”
Any reasonable person would read these documents and come to this conclusion: Elena Kagan helped coordinate the Obama administration’s defense of Obamacare. And as long as the DOJ continues to withhold key documents, the American people won’t know for sure whether her involvement would warrant her recusal from any Obamacare litigation that comes before the High Court.
What Did Kagan Tell Her Deputy About Winning the Health-Care Case? DOJ Won’t Say
Tuesday, April 26, 2011
By Terence P. Jeffrey
LINK
(CNSNews.com) - To an ordinary American it might seem like an obvious question with an obvious answer.
When Solicitor General Elena Kagan--whose job was to defend the administration’s position in federal court cases--assigned her top deputy to handle the anticipated legal challenges to the health-care bill that President Barack Obama was pushing through Congress in 2010 did she indicate to that deputy that the administration should defeat those challenges?
Common sense might say: Of course.
But if the common sense answer were in fact the true answer, then the plain sense of the law governing recusals by Supreme Court justices would seem to require Kagan to recuse herself from judging the legal challenges to President Obama’s health-care law.
In the questionnaire she filled out for the Senate Judiciary Committee during her confirmation process, Kagan said she would abide by the “letter and spirit” of 28 U.S.C. 455 in determining whether she needed to recuse herself from any case as a Supreme Court justice.
This law says that any “justice … shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.” It further says any justice “shall also disqualify himself … [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.”
If Kagan indicated to the subordinate she assigned to handle the health care case that the administration should win it, might it not then be reasonable to question her “impartiality” when that case comes before her on the Supreme Court?
If Kagan discussed the “merits” of the health care case with the subordinate she assigned to it, would it not be in keeping with the “letter” of the law--not to mention with its spirit--for her to recuse herself?
But Kagan told the Senate Judiciary Committee, in writing, that she never was asked and never offered her views on the underlying legal or constitutional issues related to any proposed health care legislation--including the health-care reform law signed by President Obama--and that she never was asked nor offered her views on the underlying legal or constitutional issues related to potential litigation resulting from any proposed health care legislation.
The Justice Department will not respond to similar questions CNSNews.com has posed to Acting Solicitor General Neal Katyal--citing as its reason for not answering ongoing litigation over a CNSNews.com Freedom of Information Act (FOIA) request that seeks records relevant to whether Kagan ought to rescuse herself from the health-care case.
On Jan. 8, 2010, then-Solicitor General Kagan personally assigned Katyal, then the principal deputy solicitor general, to be the person in the Office of the Solicitor General (OSG) to handle the expected legal challenges to the health care bill. That same day Katyal had indicated in an email to DOJ colleague Brian Hauck—who worked in the associate attorney general’s office—that he hoped they would “crush” the legal challenges to the health-care bill.
Katyal also wrote Hauck that day that “Elena would definitely like OSG to be involved in this set of issues” regarding the expected health-care litigation and that Katyal would “bring in Elena as needed.”
Katyal has now signed legal briefs representing the Obama administration in the lawsuits brought against Obama’s health-care law by Florida and Virginia.
Among the questions CNSNews.com has put to Katyal that the Justice Department will not answer are:
--“Did you personally speak at any time that day [when Kagan assigned him to handle the expected legal challenges to the health-care bill] to Solicitor General Kagan about what the Justice Department viewed as the inevitable challenges to the health-care proposal or the department’s need to plan to defend against them?”
--“If you did speak to Solicitor General Kagan that day about the inevitable challenges to the health care proposal or the Justice Department’s need to start planning the administration’s defense against them, what did you say to her and what did she say to you?”
--“How did you know on that day that Solicitor General Kagan ‘definitely’ wanted her office involved in planning the administration’s treatment of the ‘set of issues’ involved in the inevitable challenges to the health-care proposal?”
--“Did you follow through on your statement in the email to Brian Hauck and ‘bring Elena in as needed’ in planning the administration’s treatment of the ‘set of issues’ involved the administration’s defense against the inevitable challenges to the health care proposals?”
--“Did you ever in any way communicate to Solicitor General Kagan, as you did to Brian Hauck in your Jan. 8, 2010 email, your desire to ‘crush’ or otherwise defeat the challenges to the health-care proposal? If so, how did Solicitor General Kagan respond?”
--“Did Solicitor General Kagan ever communicate to you a desire on her part for the administration to succeed in its defense against challenges to the health-care proposals?”
--“Did Solicitor General Kagan ever communicate to you a desire on her part for the administration to fail in its defense against challenges to the health-care proposals?”
--“Did you at any time communicate to your colleagues or subordinates in the Solicitor General’s office, or persons elsewhere in the administration, about what Solicitor General Kagan wanted them to do, or would like to see happen, in regard to legal challenges to the health-care proposals?”
The bases for these questions are facts revealed in a series of internal Justice Department emails the department released last month to CNSNews.com in partial response to the FOIA request CNSNews.com had filed in May 2010.
On Dec. 24, 2009, the Senate passed the health-care bill that President Obama later signed. A week later, the New York Times published an article reporting that Florida Attorney General Bill McCollum was considering a lawsuit to challenge the bill if it became law and that there were “nearly a dozen other states who have also threatened to sue over the mandate.”
On Jan. 8, 2010, Brian Hauck, senior counsel to Associate Attorney General Tom Perrelli, emailed Neal Katyal, principal deputy solicitor general, to tell him that Perrelli wanted “to put together a group to get thinking about how to defend against the inevitable challenges to the health care proposals that are pending.” On receiving that email, Katyal immediately emailed back to Hauck, saying: “Absolutely right on. Let’s crush them. I’ll speak to [Solicitor General] Elena [Kagan] and designate someone.”
Katyal, who was Kagan’s top subordinate, then forwarded Hauck’s email to Kagan and said, “I am happy to do this if you are ok with it.” He also offered his colleague Deputy Solicitor General Ed Kneedler as a possible candidate for handling the health-care issue, or the two of them together.
Kagan instantly assigned Katyal. “You should do it,” she said by return email.
 |
| Neal Katyal |
That email exchange took place at about 11:00 am on a workday. About two hours later, shortly after 1:00 pm, Katyal emailed again to Hauck in the associate attorney general’s office ostensibly to inform him of his boss, Elena Kagan’s, determinations.
“Brian,” Katyal wrote, “Elena would definitely like OSG to be involved in this set of issues. I will handle this myself, along with an Assistant from my office [name redacted] and will bring in Elena as needed.”
At this time, Kagan’s job as solicitor general was to represent the administration’s position in federal court. Her boss, President Barack Obama, had just seen his signature legislation, the health-care bill, squeak through the Senate. States were already threatening law suits to stop it. Kagan, according to the questionnaire she filled out for the Senate Judiciary Committee, would not be informed by the White House until March 5, 2010 that the president wanted to consider her for a possible Supreme Court vacancy.
On March 23, the day President Obama signed the health-care law, Florida and Virginia filed suit against it in federal court. Supreme Court Justice John Paul Stevens, whom Kagan would eventually replace, did not announce his retirement, or formally inform President Obama of it, until more than two weeks later on April 9, 2010. And Obama did not inform Kagan he wanted to nominate her to replace Stevens until May 9, 2010, publicly making the announcement of her nomination the next day.
On Jan. 8, when Kagan assigned her deputy Katyal to handle the expected lawsuits against the health-care bill, she was fully engaged as Obama’s full-time solicitor general--and she would not recuse herself from her duties as solicitor general for another four months. When Katyal emailed back to his colleague Hauck in the associate attorney general’s office that January day that “Elena would definitely like OSG to be involved in this set of issues,” and that he would be bringing “in Elena as needed,” there was no reason for Kagan not to be involved in the issue.
There also was no apparent reason on that day that Obama’s solicitor general and her top deputy--expecting lawsuits against the health-care bill--should not have felt free to discuss the legal and constitutional issues those lawsuits would raise.
But Kagan informed the Judiciary Committee that she never discussed these issues with anyone.
There should have been no apparent reason for Kagan not to expect—and want—the subordinate she assigned to handle the expected legal challenges to President Obama’s health-care bill to work aggressively to defeat those challenges.
But the law says Kagan cannot sit in judgment of a case on the Supreme Court if her “impartiality might be reasonably questioned”—or, if, as a government employee, she ever expressed her opinion on its “merits.”
In July 2010, during her confirmation process, Republican members of the Senate Judiciary Committee asked Kagan in a letter: “Have you ever been asked about your opinion regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”
They also asked: “Have you ever offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to any potential litigation from such legislation?”
Kagan’s answer to both questions was: “No.”
When CNSNews.com initially sent a series of questions to Acting Solicitor General Neal Katyal on March 25 asking him about his conversation and contacts with then-Solicitor General Kagan about the health-care issue, the Justice Department responded with a brief emailed statement.
“During her tenure, former Solicitor General Elena Kagan did not play any substantive role in litigation challenging healthcare reform legislation, and the documents that have been released reflect that,” said Tracy Schmaler, deputy director of the Justice Department’s Office of Public Affairs.
When CNSNews.com followed up with an email asking if that was “the totality” of what the Justice Department wanted to say in response to the questions submitted by CNSNews.com, Schmaler responded: “Yes—given the subject is matter of ongoing litigation.”
(See the full set of questions CNSNews.com sent to Katyal on March 25 here.)
On April 14, CNSNews.com sent a follow-up set of question to Katyal, with a carbon copy going to Schmaler. CNSNews.com asked Katyal if it was his view that he could not answer the questions CNSNews.com had sent him on March 25 “because of the litigation you are currently working on that involves the health-care legislation the U.S. Senate passed on Dec. 24, 2009?”
CNSNews.com then asked Katyal three additional questions based on two of the questions that the Judiciary Committee Republicans had asked Kagan—and to which she answered, “No.”
CNSNews.com asked: “At any time when Elena Kagan was solicitor general did you and she ever discuss, or did you ever witness her discuss with someone else, the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”
CNSNews.com asked: “Did she ever verbally express to you, or in your presence express to someone else, an opinion about whether the administration should win or lose any court challenge made against the health-care legislation that was passed by the Senate on Dec. 24, 2009 and later signed into law by President Obama?”
And CNSNews.com asked: “If the answer to question 2 or 3 is yes, could you please explain the nature and context of what then-Solicitor General Kagan said?”
(See the full set of questions CNSNews.com sent to Katyal on April 14 here.)
DOJ Deputy Public Affairs Director Schmaler responded to the questions emailed to her and Katyal on April 14. Rather than actually answer the questions, she referred CNSNews.com back to the statement DOJ had issued in response to CNSnews.com’s initial questions: “During her tenure, former Solicitor General Elena Kagan did not play any substantive role in litigation challenging healthcare reform legislation, and the small number of documents that were released reflect that.”
Schmaler also clarified that the Justice Department was not declining to answer CNSNews.com’s questions to Acting Solicitor General Katyal because of the health-care litigation itself, but because of the ongoing litigation—brought by the Media Research Center (CNSNews.com’s parent organization)—over the Justice Department’s compliance with CNSNews.com’s Freedom of Information Act request.
“[T]he litigation I was referencing [in response to previous set of questions sent by CNSNews.com]– it’s the ongoing FOIA litigation ….not the ACA litigation,” wrote Schmaler.
On Nov. 23, 2010, the MRC filed a complaint against the Justice Department in the U.S. District Court for the District of Columbia. The complaint asked the court to direct the Justice Department to comply with a FOIA request that CNSNews.com had initially submitted to the Office of the Solicitor General on May 25, 2010.
CNSNews.com’s FOIA request sought three categories of records. These included records of any meetings or communications Kagan might have participated in as solicitor general that involved President Obama’s health-care reform plan, records of any meetings or communications Kagan might have participated in in which legal challenges to the health-care legislation signed by President Obama were discussed, and records of any meetings or communications Kagan might have participated in in which there was discussion of whether Kagan ought to recuse herself from involvement in any particular case in her role as solicitor general due to the prospect that case might later come before her were she confirmed to a seat on a federal court.
The Justice Department initially asked the court to dismiss the MRC’s complaint. Then on March 15, the Justice Department released 66 pages of documents to CNSNews.com. These documents were primarily internal Justice Department emails. The MRC is seeking the release of additional records responsive to its FOIA request and the case is ongoing in the U.S. District Court for the District of Columbia
Sonny B. Southerland v City of New York Decided In Favor of Plaintiff On The Issue That ACS Worker Had No Qualified Immunity
Sonny B. Southerland v City of New York Decided In Favor of Plaintiff On The Issue That ACS Worker Had No Qualified Immunity
Parentadvocates.org
LINK
The plaintiffs—a father and his children—bring various claims under 42 U.S.C. §1983 asserting that Woo, a children's services caseworker employed by the defendant City of New York, entered their home unlawfully and effected an unconstitutional removal of the children into state custody. The district court concluded that Woo was entitled to qualified immunity with respect to all of the claims against him. We disagree. As to each claim that has been preserved for appeal: Vacate and remand.
Sonny B. Southerland, Sr., Individually and as Parent and Natural Guardian of Venus Southerland, Sonny B. Southerland, Jr., Nathaniel Southerland, Emmanuel Felix, Kiam Felix, and Elizabeth Felix, Plaintiffs-Appellants v. City of New York, Timothy Woo, John Does 1-9, Defendants-Appellees.*, 07-4449-cv (L)
U.S. Court of Appeals, Second Circuit
Government
New york law journal
06-14-2011
Cite as: Southerland v. City of New York, 07-4449-cv (L), NYLJ 1202497024019, at *1 (2d CIR, Decided June 10, 2011)
Before: Kearse, Sack, and Hall, C.J.
Decided: June 10, 2011
ADDITIONAL INDEX NUMBERS
07-4449-cv (L), 07-4450-cv (CON)
ATTORNEYS
Michael G. O'neill, New York, N.Y., For Plaintiffs-Appellants Venus S., Sonny B.S. Jr., Nathaniel S., Emmanuel F., Kiam F., And Elizabeth F.
Sonny B. Southerland, Brooklyn, N.Y., Plaintiff-Appellant, Pro Se.
Julian L. Kalkstein, City of New York (Michael A. Cardozo, Corporation Counsel; Larry A. Sonnenshein, of Counsel), New York, N.Y., For Defendants-Appellees.
Consolidated appeals from a summary judgment entered by the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge) in favor of, inter alios, the defendant Woo. The plaintiffs—a father and his children—bring various claims under 42 U.S.C. §1983 asserting that Woo, a children's services caseworker employed by the defendant City of New York, entered their home unlawfully and effected an unconstitutional removal of the children into state custody. The district court concluded that Woo was entitled to qualified immunity with respect to all of the claims against him. We disagree. As to each claim that has been preserved for appeal:
Vacated and remanded.
ROBERT D. SACK, C.J:
This lawsuit involves a man and a woman—the plaintiff Sonny B. Southerland Sr. ("Southerland") and non-party Diane Manning—two groups of children, and a caseworker's apparent confusion between the two groups. Plaintiff Ciara Manning is the daughter of Southerland and Diane Manning. Ciara was supposed to be living with Southerland at the time in question, but in fact had left to live with a friend.
In addition to Ciara, plaintiff Southerland fathered, by one or more women other than Diane Manning, six other children: the plaintiffs Venus Southerland, Sonny B. Southerland Jr., Nathaniel Southerland, Emmanuel Felix, Kiam Felix, and Elizabeth Felix (together, the "Southerland Children"). At the time of the principal events in question, the Southerland Children, unlike Ciara, were living with their father. Diane Manning also allegedly bore, by one or more men other than Southerland, six children other than Ciara: Eric Anderson, Richy Anderson, Felicia Anderson, Erica Anderson, Michael Manning, and Miracle Manning (together, the "Manning Children"). They lived with Diane and, like her, are not parties to this lawsuit.
In May 1997, the defendant Timothy Woo, a caseworker in the Brooklyn Field Office of the New York City Administration for Children's Services ("ACS"), was assigned to investigate a report by a school counselor about then-sixteen-year-old Ciara Manning. School staff had thought Ciara to be acting strangely at school.
After being unable, despite repeated attempts, to gain entry to the Southerland home to investigate the report, Woo sought and obtained from the Kings County Family Court an order authorizing entry into the apartment. Woo's application to obtain that order contained several misstatements of fact, which suggested Woo's possible confusion about which of the children resided with Southerland.
Under the authority of the Family Court's order, Woo then entered the Southerland apartment. Ciara was not there; some of Southerland's other children who lived with him were. Based on what Woo perceived to be the poor condition of the home and of the Southerland Children, and his other observations from the investigation undertaken to that date, Woo and his supervisor decided to carry out an immediate removal of the children into ACS custody.
Southerland and the Southerland Children brought this action based on Woo's entry into the apartment and removal of the children. They claim that Woo violated their Fourth Amendment1 rights to be free from unreasonable searches of their home, and that the manner in which the Southerland Children were removed violated their procedural due process rights under the Fourteenth Amendment. Southerland also claims that the removal of the Southerland Children from his home violated his substantive due process rights under the Fourteenth Amendment. Finally, the Southerland Children claim that their removal violated their Fourth Amendment rights to be free from unreasonable seizure.
The district court (Charles P. Sifton, Judge) concluded, inter alia, that Woo was entitled to qualified immunity with respect to all of the claims against him and granted summary judgment in his favor. We disagree with those conclusions and therefore vacate the district court's judgment as to those claims that have been pursued on appeal and remand the matter for further proceedings.
BACKGROUND
The relevant facts are rehearsed in detail in the district court's opinion. See Southerland v. City of N.Y., 521 F. Supp. 2d 218 (E.D.N.Y. 2007) ("Southerland II"). They are set forth here only insofar as we think it necessary for the reader to understand our resolution of these appeals. Where the facts are disputed, we construe the evidence in the light most favorable to the plaintiffs, who are the nonmoving parties. See, e.g., SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009). We also draw all reasonable factual inferences in the plaintiffs' favor. See, e.g., id.
The ACS Investigation
On May 29, 1997, a school guidance counselor reported to the New York State Central Registry Child Abuse Hotline that one of the school's students, Ciara Manning, the then-sixteen13 year-old daughter of Diane Manning and plaintiff Southerland, was "emotionally unstable." The counselor further reported:
Fa(ther) fails to follow through w(ith) mental health referrals. On 5/12/97 the ch(ild) swallowed a can of paint. F(ather) failed to take the ch[ild) for medical attention. Fa(ther) is unable to control or supervise the ch(ild). She may be staying out of the home in an improper environment.
Intake Report at 3, Office of Children and Family Services, Child Protective Services, May 29, 1997 ("Intake Report"), Ex. A to the Declaration of Janice Casey Silverberg (Dkt. No. 168) ("Silverberg Decl."), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). The Intake Report was transmitted to the Brooklyn Field Office of the ACS. There, Fritz Balan, a supervisor, assigned the case to defendant Timothy Woo, an ACS caseworker, for investigation. Woo, who was required by New York law to begin his investigation within 24 hours, did so that day.
He first examined the files of a case pending in that ACS office regarding Ciara's mother, Diane Manning. Material in those files disclosed that Ciara had several younger half-also indicated that Ciara lived with her father, Southerland, at a Brooklyn address, although the plaintiffs correctly note the absence of any evidence as to the source of that information and the time it was received. It is not clear from the record whether Woo was aware that the children referenced in Diane Manning's case file were not related to Southerland and that they did not live with him. See Southerland II, 521 F. Supp. 2d at 222, 224 & n.8.
Woo also contacted the school guidance counselor who had called the child-abuse hotline. According to Woo, the counselor told him that while at school, Ciara had swallowed non-toxic paint, expressed thoughts of suicide, and was generally behaving aggressively and "acting out." Declaration of Timothy Woo ¶10 (Dkt. No. 169) ("Woo Decl."), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). Woo's handwritten notes from the conversation indicate that the counselor told Woo that "father (i.e., Southerland) doesn't approve of the place where Ciara is staying." Notes of Timothy Woo at 1, Ex. A to the Declaration of Michael G. O'Neill (Dkt. No. 182) ("O'Neill Decl."), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Dec. 28, 2006). It is disputed whether the counselor also told Woo that Southerland had been unresponsive to the school's stated concerns about Ciara's behavior.
Later that day, Woo attempted to visit Southerland's apartment in Brooklyn where, for reasons that are not clear from the record, Woo thought Ciara was staying. When no one answered the door, Woo left a note containing his contact information.
The following day, May 30, Southerland telephoned Woo. During the course of their conversation, Southerland described Ciara as a runaway who would not obey him. Southerland suggested that he visit the ACS office to discuss the matter with Woo further. The plaintiffs dispute Woo's assertion that during the phone conversation, Southerland indicated that he would not permit Woo to visit Southerland's apartment. Southerland contends that, although he did question why Woo needed to visit the apartment since Ciara did not live there, Southerland nonetheless indicated that he would be willing to make an appointment for Woo to conduct a home visit if Woo insisted.
Southerland visited the ACS office and met with Woo later that day. According to Southerland's deposition testimony, he told Woo that Ciara had run away and that he had obtained several "Persons in Need of Supervision" ("PINS") warrants against her. Woo's case notes indicate that Woo asked Southerland why he had not sought medical attention for Ciara after the paint-swallowing incident. Southerland did not answer
the question. See Progress Notes of T. Woo at 1 ("Progress Notes"), Ex. B to O'Neill Decl.
Southerland told Woo and Balan, Woo's supervisor, that Ciara did not need psychiatric help, and that she "'was only acting the way she did to get attention.'" Southerland II, 521 F. Supp. 2d at 223 (quoting Woo Decl. ¶10); see also Declaration of Fritz Balan ¶7 (Dkt. No. 170) ("Balan Decl."), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). According to Woo, he explained to Southerland that various services were available through ACS to assist him and his children, including counseling and help with obtaining food, furniture, and clothing. Southerland declined. According to Southerland, however, no such assistance was ever offered.
When Woo said he would need to make a home visit, Southerland replied that it would be "no problem" as long as he was notified in advance. Southerland II, 521 F. Supp. 2d at 223; see also Deposition of Sonny B. Southerland at 207 ("Southerland Dep."), Ex. F to O'Neill Decl. Southerland asserts that Woo stated he would call him to arrange the visit, but that Woo never made such a call.
On June 2, 1997, Woo made a second attempt to examine the Southerland apartment. A woman whose identity was unknown to Woo answered the door. She said that Southerland was not at home. Woo left.
The following day, June 3, Woo again went to the apartment. He heard noises inside, but no one answered the door. Again, he left.
The next day, June 4, Woo went to the apartment for a fourth time. He waited in the hallway for several minutes. Southerland emerged accompanied by five school-aged children: Sonny Jr., Venus, Emmanuel, Nathaniel, and Kiam. Woo wrote down their names in his case notes. Southerland told Woo that he did not have time to talk because he was taking the children to school. Woo gave Southerland an ACS business card and told him that if he continued to be uncooperative, ACS would seek court action. Southerland II, 521 F. Supp. 2d at 223-24 & n.6; see also Progress Notes at 2.
The Removal of the Southerland Children
On June 6, 1997, at the direction of supervisor Balan, Woo applied to the Kings County Family Court for an order to enter the Southerland apartment pursuant to section 1034(2) of the New York Family Court Act. It is ACS policy to investigate not only the status of the child named in a report of suspected abuse or maltreatment of the type referred to in section 1034(2), but also that of any other children residing in the same home. Woo listed Ciara on the application. Instead of including the names of the children he had met leaving Southerland's home on June 4, however, he listed the other children of Ciara's mother Diane—the Manning Children: Eric Anderson, Richy Anderson, Felicia Anderson, Michael Manning, Miracle Manning, and Erica Anderson—whose names he apparently had obtained from the Diane Manning case files he had reviewed at ACS's Brooklyn Field Office.4 The Family Court issued an "Order Authorizing Entry" into the Southerland apartment the same day, June 6. See Southerland II, 521 F. Supp. 2d at 224.
Three days later, on the evening of June 9, 1997, pursuant to the Order Authorizing Entry, Woo and another caseworker entered the Southerland apartment with the assistance of officers from the New York City Police Department. Southerland and the Southerland Children were present inside the home. Woo Decl. ¶¶13-15, 19. The district court described what happened next, from Woo's perspective:
Woo determined that there were six children between the ages of three and nine residing in the apartment. He listed their names (correctly) as Venus, Sonny Jr., Nathaniel, Emmanuel, Kiam, and Elizabeth Felix. Soon after beginning his evaluation of the home, Woo called his supervisor (Balan) on his cell phone, described his observations, and answered his supervisor's questions. Woo reported that the four boys slept on the floor in one bedroom and the two girls slept on a cot in another bedroom. The children appeared as though they had not been bathed in days and their clothing was malodorous. In the refrigerator, Woo found only beer, a fruit drink, and English muffins. Woo did not examine the contents of the kitchen cupboards. The other caseworker observed that one child, Venus, was limping because of a foot injury. The child stated that she had stepped on a nail. The caseworker concluded that Southerland had not sought medical attention for her. Woo reported that the only light source in the bedroom area was from a blank television screen. Woo observed an electric lamp on the floor, without a shade, connected to an outlet in the living room by means of several extension cords along the floor. Woo reported that another room contained stacks of electronic equipment. Woo and his supervisor concluded that the children's safety was threatened, and Balan directed Woo to remove the children from the home.
Id. at 224-25 (footnotes omitted).5
As the district court also observed, the plaintiffs—relying primarily on later deposition testimony by Southerland—offer a starkly different description of the conditions in the Southerland home at the time. According to Southerland's testimony, the apartment did not lack proper bedding; the boys had a bunk bed in their room, although they preferred to sleep on yellow foam sleeping pads on the floor. Id. at 225 n.10. The children were not dirty; Southerland testified that he laundered the children's clothing about once a week and bathed the children daily. Id. at 225 n.11. There was food in the refrigerator, and it is also a reasonable inference from Southerland's testimony that there was food in the cupboards (which Woo did not examine), because Southerland testified that groceries for the household were purchased on a regular basis. Id. at 225 n.12. The household did not lack lighting; Southerland testified that he had a lamp plugged into a wall in each room. Id. at 225 n.14. Finally, although Southerland does not dispute that Venus had a foot injury, the plaintiffs stress Woo's concession that he did not personally observe the injury during his assessment of the home.6 Id. at 225 n.13.
In the early hours of June 10, 1997, at Balan's direction, Woo removed the Southerland Children from the Southerland home. Woo took them to the ACS pre-placement emergency shelter and arranged for emergency foster care. Id. at 226.
At some point—it is not clear exactly when—Woo interviewed Ciara Manning, whom he had found living at the home of her friend. Ciara told Woo that her father had sexually abused her and threatened to kill her if she told anyone about it—allegations she later recanted.7 The Southerland Children also complained of various kinds of abuse and mistreatment at the hands of Southerland and his companion, Vendetta Jones. These allegations concerning Ciara and the Southerland Children were included in a verified petition filed by ACS with the Family Court on June 13, 1997, and amended on June 27, 1997. The petitions commenced child-protective proceedings under Article 10 of the New York Family Court Act, §§1011 et seq., through which ACS sought to have the Southerland Children adjudicated as abused and neglected.
On July 1, 1998, more than a year after the children were removed from the Southerland home, the Kings County Family Court concluded after a five-day trial that Southerland had engaged in excessive corporal punishment of the Southerland Children and that he had abused and neglected them. The court also concluded that he had sexually abused his daughter Ciara. The court ordered that the Southerland Children remain in foster care, where they had resided since the June 1997 removal. The New York Appellate Division, Second Department, affirmed these orders, see In re Ciara M., 273 A.D.2d 312, 708 N.Y.S.2d 717 (2d Dep't 2000), and the New York Court of Appeals denied leave to appeal, see In re Ciara M., 95 N.Y.2d 767, 740 N.E.2d 653, 717 N.Y.S.2d 547 (2000).
In March 2004, nearly seven years after their removal from the Southerland home, Sonny Jr. and Venus were permitted to return to live with Southerland. Some seven months thereafter, Nathaniel and Emmanuel were discharged from the juvenile justice system by the Office of Children and Family Services and also returned to the Southerland home. As far as we can determine from the record, neither Kiam nor Elizabeth ever returned to live with Southerland.
However strongly the facts of mistreatment found by the Family Court at trial may indicate that Woo's perceptions about the dangers to the Southerland Children of their remaining with Southerland were correct, virtually none of this information was in Woo's possession when he effected the June 9, 1997, entry and removal, as the district court correctly observed. See Southerland II, 521 F. Supp. 2d at 226 n.19. These subsequently determined facts therefore do not bear upon our consideration of whether Woo's actions in effecting the removal were constitutional. See id.
Prior Federal Court Proceedings
In June 1999, some two years after the removal and while the Southerland Children remained in foster care, Southerland, on behalf of himself and his children, filed a pro se complaint in the United States District Court for the Eastern District of New York against more than forty defendants for the allegedly wrongful removal of the Southerland Children from his home. On February 1, 2000, the district court (Charles P. Sifton, Judge) granted the defendants' motion to dismiss on grounds that included failure to state a claim, failure to plead certain matters with particularity, lack of subject-matter jurisdiction, and Eleventh Amendment immunity. See Opinion & Order (Dkt. No. 43), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Feb. 2, 2000).
Southerland appealed. We affirmed in part, reversed in part, and remanded the action. We ruled, inter alia, that the district court had erred in dismissing Southerland's claims under 42 U.S.C. §1983 relating to the seizure and removal of the Southerland Children. See Southerland v. Giuliani, 4 F. App'x 33, 36 (2d Cir. 2001) (summary order) ("Southerland I"). We concluded that the pro se complaint stated valid claims for violations of both the substantive and procedural components of the Fourteenth Amendment's Due Process Clause. See id. at 36-37. We "emphasized that our holding was limited to the claims made directly by Sonny Southerland," noting that "although the children probably have similar claims, we have held that a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child." Id. at 37 (citation and internal quotation marks omitted). We therefore "left it to the district court upon remand to determine whether Southerland should be given a chance to hire a lawyer for his children or to seek to have one appointed for them." Id.
On remand, the district court appointed counsel to represent both Southerland and the Southerland Children.8 Southerland II, 521 F. Supp. 2d at 227. In November 2002, through counsel, Southerland and the Southerland Children jointly filed an amended complaint, id. at 221 & n.1, asserting nine claims under 42 U.S.C. §1983 against Woo and the City of New York, id. at 221 n.2.9
In the amended complaint, Southerland asserts four separate claims against Woo.10 First, Southerland alleges an unlawful-search claim, asserting that Woo's entry into his home "without privilege, cause or justification" violated the Fourth Amendment. Am. Compl. ¶¶40-41 (Dkt. No. 75), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002). Southerland asserts a second Fourth Amendment unlawful-search claim for Woo's remaining in his home even after discovering that the children listed on the Order Authorizing Entry were not there. Third, Southerland asserts a Fourteenth Amendment procedural due process claim for removal of the Southerland Children from his home without a court order and in the absence of an immediate threat of harm to their lives or health. Finally, Southerland alleges a substantive due process claim, also under the Fourteenth Amendment, for Woo's removal of the Southerland Children absent a reasonable basis for doing so.
The amended complaint also interposes various claims on behalf of the Southerland Children. First, the Children assert the same procedural due process claim under the Fourteenth Amendment as does Southerland. Second, they assert a substantive due process claim under the Fourteenth Amendment. The district court recharacterized the latter claim as arising under the Fourth Amendment's guarantee of protection against unlawful seizure.11 See Southerland II, 521 F. Supp. 2d at 230 n.24. Finally, the district court construed the amended complaint as asserting on behalf of the Children the same two Fourth Amendment unlawful-search claims as were asserted by Southerland.
Southerland and the Southerland Children also bring several claims against the City of New York. Southerland asserts that the City is liable under 42 U.S.C. §1983 for the removal of the Southerland Children insofar as that removal was conducted pursuant to two alleged official City policies: to remove children without a reasonable basis, and to remove children without a court order despite the absence of any immediate threat of harm to their lives or health. Southerland and the Southerland Children also allege that high-ranking policymakers within the City's police department knew or should have known that the City's failure to train police officers accompanying ACS employees on home visits and investigations would deprive New York City residents of their constitutional rights.12
On the defendants' motion for summary judgment, the district court concluded that Woo was entitled to qualified immunity as to all of the claims against him. With respect to the Fourth Amendment unlawful-search claims, the court concluded that the false and misleading statements made by Woo in his application for the Order Authorizing Entry did not strip him of qualified immunity because the plaintiffs could not show that these statements were necessary to the finding of probable cause to enter the home. Southerland II, 521 F. Supp. 2d at 230-31. The court decided that qualified immunity was warranted because "a corrected affidavit specifying all of the information known to Woo establishes an objective basis that would have supported a reasonable caseworker's belief that probable cause existed." Id. at 231 (brackets, citation, and internal quotation marks omitted).
With respect to the Southerland Children's Fourth Amendment unlawful-seizure claim, and the procedural due process claims brought by both sets of plaintiffs, the district court decided that qualified immunity shielded Woo from liability because his actions pre-dated the clear establishment of law in this context, which in its view did not occur until this Court's decision in Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), cert. denied, 529 U.S. 1098 (2000). See Southerland II, 521 F. Supp. 2d at 231-32.
Lastly, with regard to Southerland's substantive due process claim, the district court concluded that Woo was entitled to qualified immunity because "it was objectively reasonable for him to conclude that Southerland's substantive due process rights were not violated" when Woo removed the Southerland Children from the home, because "brief removals of children from their parents generally do not rise to the level of a substantive due process violation, at least where the purpose of the removal is to keep the child safe during investigation and court confirmation of the basis for removal." Id. at 32 (brackets and internal quotation marks omitted).
Notwithstanding the district court's conclusion that Woo was entitled to qualified immunity as to every claim asserted against him, the court proceeded to consider, in the alternative, the underlying merits of the plaintiffs' various claims. The court decided that even in the absence of immunity, Woo would be entitled to summary judgment with respect to the plaintiffs' Fourth Amendment unlawful-search claims and Southerland's substantive due process claim. Specifically, with respect to the Fourth Amendment unlawful-search claims, the district court decided that "no reasonable juror could infer that Woo knowingly and intentionally made false and misleading statements to the family court in order to receive an order authorizing his entry into the Southerland home." Id. at 233. With respect to Southerland's substantive due process claim, the court concluded that "no reasonable juror could find that the removal of the children from their home in order to verify that they had not been neglected or abused was so 'shocking, arbitrary, and egregious' that Southerland's substantive due process rights were violated." Id. at 234-35 (citation omitted).
The district court concluded that the City was also entitled to summary judgment on all of the claims against it. See Southerland II, 521 F. Supp. 2d at 235-39. The plaintiffs do not appeal from that portion of the judgment and therefore have abandoned their claims against the City. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995).
The district court determined, however, that without qualified immunity protection, summary judgment would not be appropriate on the merits of the procedural due process claims brought by both Southerland and the Southerland Children because, "although defendants argue that the 'totality of the circumstances' Woo encountered in the Southerland home required an ex parte removal, they fail to explain why there was not sufficient time for Woo to seek a court order removing the children." See Southerland II, 521 F. Supp. 2d at 235 n.31. Nor would summary judgment be appropriate on the merits of the Southerland Children's Fourth Amendment unlawful-seizure claim, the district court said, because the defendants could not explain "why the particular circumstances that Woo encountered in the Southerland home established that there was imminent danger to the children's life or limb requiring removal in the absence of a court order." Id. at 234 n.29.
Both Southerland and the Southerland Children now appeal from the dismissal of each of their claims against Woo, except for one Fourth Amendment claim brought by all plaintiffs. The plaintiffs have not appealed the district court's adverse ruling as to their claim that Woo violated the Fourth Amendment by remaining in their home even after determining that the children listed on the Order Authorizing Entry were not present. We vacate and remand with respect to each of the plaintiffs' claims that have been preserved for appeal.
DISCUSSION
I. Standard of Review
"We review a district court's grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving part[ies] and drawing all reasonable inferences in their favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005). "Summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911 (1998); see Fed. R. Civ. P. 56(a).
II. Qualified Immunity
Qualified immunity shields public officials from liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "In general, public officials are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights." Holcomb v. Lykens, 337 F.3d 217, 220 (2d Cir. 2003) (internal quotation marks omitted). An officer is also entitled to qualified immunity "if officers of reasonable competence could disagree on the legality of the action at issue in its particular factual context." Manganiello v. City of N.Y., 612 F.3d 149, 165 (2d Cir. 2010) (internal quotation marks omitted).
III. Overview of Constitutional Law in the Context of the State's Removal of Children from Their Home
As we observed in a decision post-dating the events at issue in these appeals, "parents…have a constitutionally protected liberty interest in the care, custody and management of their children." Tenenbaum, 193 F.3d at 593; see also Troxel v. Granville, 530 U.S. 57, 65-66 (2000) (collecting cases concerning the "fundamental right of parents to make decisions concerning the care, custody, and control of their children"). "Children have a parallel constitutionally protected liberty interest in not being dislocated from the emotional attachments that derive from the intimacy of daily family association." Kia P. v. McIntyre, 235 F.3d 749, 759 (2d Cir. 2000) (brackets and internal quotation marks omitted), cert. denied, 534 U.S. 820 (2001); see also Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) ("The right to the preservation of family integrity encompasses the reciprocal rights of both parent and children."). The state's removal of a child from his or her parent may give rise to a variety of cognizable constitutional claims.
First, both the parents and the children may have a cause of action for violation of the Fourteenth Amendment under a theory of denial of procedural due process. The Fourteenth Amendment imposes a requirement that except in emergency circumstances, judicial process must be accorded both parent and child before removal of the child from his or her parent's custody may be effected. See, e.g., Kia P., 235 F.3d at 759-60; Tenenbaum, 193 F.3d at 593-94; Duchesne, 566 F.2d at 825-26. Both Southerland and the Southerland Children have asserted such a procedural due process claim against Woo in this case.
Second, a parent may also bring suit under a theory of violation of his or her right to substantive due process. Southerland does so here. Parents have a "substantive right under the Due Process Clause to remain together with their children without the coercive interference of the awesome power of the state." Tenenbaum, 193 F.3d at 600 (internal quotation marks omitted); see also, e.g., Anthony v. City of N.Y., 339 F.3d 129, 142-43 (2d Cir. 2003); Kia P., 235 F.3d at 757-58. Such a claim can only be sustained if the removal of the child "would have been prohibited by the Constitution even had the parents been given all the procedural protections to which they were entitled." Tenenbaum, 193 F.3d at 600 (emphasis in original). In other words, while a procedural due process claim challenges the procedure by which a removal is effected, a substantive due process claim challenges the "fact of the removal" itself. Bruker v. City of N.Y., 92 F. Supp. 2d 257, 266-67 (S.D.N.Y. 2000).
For such claims brought by children, however, we have concluded that the Constitution provides an alternative, more specific source of protection.13 When a child is taken into state custody, his or her person is "seized" for Fourth Amendment purposes. The child may therefore assert a claim under the Fourth Amendment that the seizure of his or her person was unreasonable. See Tenenbaum, 193 F.3d at 602. Such a claim belongs only to the child, not to the parent, although a parent has standing to assert it on the child's behalf. Id. at 601 n.13. In accordance with our order in Southerland I, 4 F. App'x at 37 n.2, the district court determined that the Southerland Children's substantive due process claim should be construed instead as a Fourth Amendment unlawful-seizure claim. See Southerland II, 521 F. Supp. 2d at 230 n.24.
Finally, depending on the circumstances in which a removal occurs, other Fourth Amendment claims might also be viable. Here, Southerland and the Southerland Children asserted two Fourth Amendment claims for unlawful search: one claim relating to Woo's entry into the Southerland home, and one (now abandoned) claim relating to Woo's remaining in the home even after determining that the Manning Children were not present. Both claims were based on an allegation that Woo made false statements to the Family Court in order to obtain the Order Authorizing Entry, and therefore that there was no probable cause to carry out a search of the Southerland apartment.
IV. The Fourth Amendment Unlawful-Search Claims
The district court determined that summary judgment was warranted on the plaintiffs' Fourth Amendment unlawful-search claims on two separate grounds. First, the district court concluded that Woo was entitled to qualified immunity under the "corrected affidavit" doctrine. See Southerland II, 521 F. Supp. 2d at 230-31. Second, the district court decided that Woo was entitled to summary judgment on the merits because no reasonable juror could find that Woo had knowingly made false or misleading statements in seeking to obtain the Order Authorizing Entry. Id. at 233. We disagree with both conclusions.
A. The Corrected-Affidavit Doctrine
We begin with the plaintiffs' argument that the district court erred in its application of the corrected-affidavit doctrine, under which a defendant who makes erroneous statements of fact in a search-warrant affidavit is nonetheless entitled to qualified immunity unless the false statements in the affidavit were "necessary to the finding of probable cause." Martinez v. City of Schenectady, 115 F.3d 111, 115 (2d Cir. 1997) (internal quotation marks omitted). In order to determine whether false statements were "necessary to the finding of probable cause," the court must "put aside allegedly false material, supply any omitted information, and then determine whether the contents of the 'corrected affidavit' would have supported a finding of probable cause." Id. (citation and internal quotation marks omitted). In applying the corrected-affidavit doctrine, qualified immunity is warranted only if, after correcting for the false or misleading statements, the affidavit accompanying the warrant was sufficient "to support a reasonable officer's belief that probable cause existed." Id. (internal quotation marks omitted).
The district court, which "assumed for purposes of the qualified immunity defense that Woo made false and misleading statements" in applying for the Order Authorizing Entry, Southerland II, 521 F. Supp. 2d at 230, correctly noted that the plaintiffs "would still have to demonstrate that those statements were necessary to the finding of probable cause for qualified immunity not to attach to Woo's actions," id. at 230-31 (citation and internal quotation marks omitted). The court determined that Woo was entitled to qualified immunity based on its conclusion that a corrected affidavit, containing all of the information available to Woo at the time the affidavit was made, would have supported a finding of probable cause to enter the home. Id. at 231.
We disagree. Section 1034(2) of the New York State Family Court Act, which provides the evidentiary standard for a showing of probable cause sufficient for the issuance of an investigative order, governed Woo's application to obtain the Order Authorizing Entry. The district court, in its September 2007 decision, cited the statute as it had been amended in January 2007. See id. at 224 n.7. But the version that governed at the time of Woo's application was materially different. Under the version of the statute that applied at the time of Woo's actions, the affiant was required to demonstrate "probable cause to believe that an abused or neglected child may be found on premises," N.Y. Fam. Ct. Act §1034(2) (McKinney's 1997) (emphasis added), presumably meaning the "premises" identified in the application submitted to the Family Court.
The district court should have engaged in its corrected-affidavit analysis with reference to the earlier law. The children that Woo listed on his application for the Order Authorizing Entry—the Manning Children and Ciara—were children who did not reside "on premises" in the Southerland home. The district court concluded that "a properly made application would still list Ciara Manning on the application because Southerland is her father and was the parent legally responsible for her care, even if she had run away." Southerland II, 521 F. Supp. 2d at 231. That may be relevant to an inquiry under the statute as amended in 2007, but it is not relevant to the appropriate question under the applicable version of the law: whether there existed probable cause for Woo to believe that Ciara Manning could be found "on premises" at the Southerland home. In fact, she, like the Manning Children, was not "on premises." And Woo had reason to know that she was not—from the information in the initial Intake Report transmitted to Woo; from the guidance counselor's statement to Woo that Southerland did not approve of the place where Ciara was staying; and from Southerland's own statements during his May 30 telephone conversation with Woo that Ciara was a runaway and did not live at his home.14
The plaintiff children point out that there were other deficiencies in the district court's corrected-affidavit analysis that undermine the court's conclusion that the information known to Woo at the time he applied for the Order Authorizing Entry would have supported a finding of probable cause. For example, Woo's application stated that Ciara "tried to kill herself by swallowing non-toxic paint," and that Southerland "did not take Ciara to a medical doctor and refused to take Ciara for psychiatric evaluation." Application for Authorization to Enter Premises dated June 6, 1997, at 1 ("June 6 Application"), Ex. C to Silverberg Decl. The plaintiff children argue that the application omitted several relevant facts that, according to Southerland's version of events, were known to Woo at that time: that the paint-swallowing incident took place at school, not at home; that Southerland was willing to obtain treatment for his daughter, but had trouble doing so, precisely because she was not living in his home; and that Southerland had attempted to assert control over his daughter by applying for PINS warrants. Southerland Children's Br. at 30-31; see also id. at 28-36 (disputing additional assertions of fact, such as whether the swallowing of paint indeed was a suicide attempt). As the plaintiff children put it:
Woo's omission of the fact that the incident took place at school allowed the court to assume that the suicide attempt took place in Southerland's residence. The overall picture painted by Woo is that Southerland's daughter attempted to kill herself, that Southerland did nothing about it, and refused to let others do something about it as well. By omitting the fact that the daughter was not even living at the Southerland apartment, Woo gave the family court the impression that it was necessary to allow Woo to enter the apartment in order to render assistance to a suicidal teenager in the home of a parent who could not be bothered to help her and who prevented the efforts of ACS to provide help to her.
Id. at 31-32. The district court included much of this information in its recitation of facts, Southerland II, 521 F. Supp. 2d at 222-23 & nn.4 & 5, but it did not factor these considerations into its application of the corrected-affidavit doctrine.
We have observed that the materiality of a misrepresentation or omission in an application for a search warrant is a mixed question of law and fact.15 Velardi v. Walsh, 40 F.3d 569, 574 (2d Cir. 1994). "The legal component depends on whether the information is relevant to the probable cause determination under controlling substantive law." Id. "The weight that a neutral magistrate would likely have given such information," however, is a question for the factfinder. Id. In such circumstances, a court may grant summary judgment to a defendant based on qualified immunity only where "the evidence, viewed in the light most favorable to the plaintiffs, discloses no genuine dispute that a magistrate would have issued the
warrant on the basis of the corrected affidavits." Walczyk v. Rio, 496 F.3d 139, 158 (2d Cir. 2007) (emphasis, citation, and internal quotation marks omitted). We cannot conclude as a matter of law—although a trier of fact might so conclude after an evidentiary hearing—that the Family Court, in deciding whether there was "probable cause to believe that an abused or neglected child may have been found in the Southerland home," N.Y. Fam. Ct. Act §1034(2), would have issued the order had a corrected affidavit been presented to it.
. Knowing or Reckless Misstatements of Fact
The district court also concluded that even if the corrected-affidavit doctrine did not apply, summary judgment was appropriate because, on the merits, "no reasonable juror could infer that Woo knowingly and intentionally made false and misleading statements to the family court in order to receive an order authorizing his entry into the Southerland home." Southerland II, 521 F. Supp. 2d at 233. Based on that premise, the district court concluded that "the Order Authorizing Entry was issued with probable cause and Woo's entry into and search of Southerland's home did not violate plaintiffs' Fourth Amendment rights." Id.
We disagree. If the district court were correct that Woo did not knowingly make false and misleading statements, that would entitle Woo to qualified immunity, but would not necessarily render his underlying conduct lawful. When a person alleges a Fourth Amendment violation arising from a search executed by a state official, "the issuance of a search warrant…creates a presumption that it was objectively reasonable for the defendant to believe that the search was supported by probable cause" so as to render the defendant qualifiedly immune from liability. Martinez, 115 F.3d at 115. To defeat the presumption of reasonableness, a plaintiff must make "a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit and that the allegedly false statement was necessary to the finding of probable cause" for which the warrant was issued. Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (internal quotation marks omitted), cert. denied, 505 U.S. 1221 (1992).
We need not consider further whether the district court erred by confusing the qualified immunity and merits analyses, however, because we also do not agree with the district court's premise that no reasonable juror could find that Woo did not knowingly or recklessly make false statements. We think that several disputed facts, taken together and viewed in the light most favorable to the plaintiffs, would permit—though not require—a reasonable factfinder to find otherwise.
First, substantial evidence, viewed in the light most favorable to the plaintiffs, suggests that Woo had reason to know that Ciara was not residing at the Southerland home when he applied for the Order Authorizing Entry. For example, the May 29 Intake Report informed ACS that Ciara "may be staying out of the home in an improper enviro[n]ment." Intake Report at 3. And Southerland told Woo on May 30 that Ciara was a runaway and that he had taken out PINS warrants against her. Southerland II, 521 F. Supp. 2d at 223. A reasonable juror could find that Woo's application to the Family Court on June 6 was knowingly or recklessly misleading in stating: "I have reasonable cause to believe that the above named children including Ciara may be found at the above premises the Southerland home." June 6 Application at 1.
Second, evidence in the record, again viewed in the light most favorable to the plaintiffs, would permit a reasonable juror to conclude that Woo had knowingly or recklessly misrepresented the nature of the paint-swallowing incident in his application. About one week before June 6, Woo learned from a school counselor that Ciara had "swallowed non-toxic paint at school" and had been "acting out and expressing thoughts of suicide." Woo Decl. ¶6. Although the counselor informed Woo that Southerland had failed to seek medical treatment for Ciara, see id., Southerland later explained to Woo that the reason he had not taken Ciara for treatment was that she did not reside with Southerland and did not listen to him, id. ¶8. Yet Woo's application represented to the Family Court that Ciara "tried to kill herself by swallowing non-toxic paint" and that Southerland "did not take her to a medical doctor and refused to take her for psychiatric evaluation." June 6 Application at 1. A reasonable trier of fact might find the foregoing statements to
be materially misleading insofar as they characterize Ciara's paint-swallowing as a suicide attempt; fail to note that the incident occurred at school rather than in Southerland's home; and omit the fact that Ciara may have been living outside the home and free from Southerland's control.
Finally, the district court overlooked the parties' dispute concerning Woo's knowledge about which children resided in the Southerland apartment. The district court stated that Woo "had reason to believe that the Manning children would be found in the Southerland apartment because of a separate investigation of the Manning children and his personal observation that there were other children in the Southerland home who had not yet been positively identified." Southerland II, 521 F. Supp. 2d at 233. But, as the district court opinion elsewhere observes, on June 4, 1997—two days before he applied for the Order Authorizing Entry—Woo met the Southerland Children emerging from the Southerland apartment and wrote down their names. See id. at 223-24 & n.6. We think that there is a triable issue of fact as to whether Woo in fact believed, as he wrote in his application to the Family Court, that it was the Manning Children and not the Southerland Children who were in the Southerland home, or whether he recklessly confused or knowingly conflated the two.
Although these alleged misrepresentations may turn out to be no more than accidental misstatements made in haste, the plaintiffs have nonetheless made a "substantial preliminary showing" that Woo knowingly or recklessly made false statements in his application for the Order Authorizing Entry. Golino, 950 F.2d at 870 (internal quotation marks omitted). This showing rebuts the presumption of reasonableness that would otherwise apply to shield Woo with qualified immunity at the summary judgment stage.
In sum, because we conclude that genuine issues of material fact exist, both as to whether Woo knowingly or recklessly made false statements in his affidavit to the Family Court and as to whether such false statements were necessary to the court's finding of probable cause, we vacate the district court's grant of summary judgment on the plaintiffs' Fourth Amendment unlawful-search claims.
Once again, we note that a trier of fact might, after review of the evidence, conclude that the errors in the June 6 Application were either accidental or immaterial. We vacate the grant of summary judgment because we cannot reach that conclusion ourselves on the current record as a matter of law.
V. The Plaintiffs' Procedural Due Process Claims
Southerland and the Southerland Children each assert a procedural due process claim against Woo. The district court held that Woo was entitled to qualified immunity on these claims. We disagree.
A. Procedural Due Process in the Child-Removal Context
"'As a general rule…before parents may be deprived of the care, custody, or management of their children without their consent, due process—ordinarily a court proceeding resulting in an order permitting removal—must be accorded to them.'" Nicholson v. Scoppetta, 344 F.3d 154, 171 (2d Cir. 2003) (quoting Tenenbaum, 193 F.3d at 593). "However, 'in emergency circumstances, a child may be taken into custody by a responsible State official without court authorization or parental consent.'" Id. (quoting Tenenbaum, 193 F.3d at 594). "'If the danger to the child is not so imminent that there is reasonably sufficient time to seek prior judicial authorization, ex parte or otherwise, for the child's removal, then the circumstances are not emergent.'" Id. (quoting Tenenbaum, 193 F.3d at 594).
To prevail, "the government must offer 'objectively reasonable' evidence that harm is imminent." Id. Although we have not exhaustively set forth the types of factual circumstances that constitute imminent danger justifying emergency removal as a matter of federal constitutional law, we have concluded that these circumstances include "the peril of sexual abuse," id., the "risk that children will be 'left bereft of care and supervision,'" id. (quoting Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991)), and "immediate threats to the safety of the child," Hurlman, 927 F.2d at 80 (internal quotation marks omitted); see also N.Y. Fam. Ct. Act §1024(a) (defining emergency circumstances, for the purposes of state law, as "circumstances" wherein a child's remaining in the parent's care and custody "presents an imminent danger to the child's life or health").
B. Analysis
The district court correctly concluded that summary judgment was not appropriate on the underlying merits of the plaintiffs' procedural due process claims because Woo did not demonstrate, as a matter of law, that he did not have time to obtain a court order authorizing the removal of the Southerland Children before taking that act. See Southerland II, 521 F. Supp. 2d at 235 n.31 (citing Nicholson, 344 F.3d at 171). The court nonetheless granted summary judgment on qualified immunity grounds, concluding that "the law concerning procedural due process rights in the context of child removals was not clearly defined at the time of the events in question." Id. at 232.
But in Hurlman, we recognized that officials may remove a child from the custody of the parent without consent or a prior court order only in "emergency" circumstances. Emergency circumstances mean circumstances in which the child is immediately threatened with harm, for example, where there exists an immediate threat to the safety of the child, or where the child is left bereft of care and supervision, or where there is evidence of serious ongoing abuse and the officials have reason to fear imminent recurrence.
Hurlman, 927 F.2d at 80 (citations and internal quotation marks omitted); see also Robison v. Via, 821 F.2d 913, 921-22 (2d Cir. 1987) (describing the "'emergency' circumstances" exception and collecting cases).16 It thus was clearly established at the time of the Southerland Children's removal that state officials could not remove a child from the custody of a parent without either consent or a prior court order unless "'emergency' circumstances" existed. Hurlman, 927 F.2d at 80; see also Cecere v. City of N.Y., 967 F.2d 826, 829-30 (2d Cir. 1992) (setting forth "clearly established" procedural due process principles); see also Velez v. Reynolds, 325 F. Supp. 2d 293, 314-15 (S.D.N.Y. 2004) (explaining the principles).
In concluding that the law of procedural due process was not clearly established in the child-removal context in 1997, the district court in the case at bar relied primarily on our decision in Tenenbaum. There we held as a matter of first impression that "where there is reasonable time consistent with the safety of the child to obtain a judicial order, the 'emergency' removal of a child is unwarranted." Tenenbaum, 193 F.3d at 596. Because this principle was not clearly established in 1990—the year the underlying conduct at issue in Tenenbaum took place—we affirmed the district court's decision in that case that the defendants were entitled to qualified immunity. We also made clear, however, that even in 1990, "it was established as a general matter…that 'except where emergency circumstances exist' a parent can 'not be deprived' of the custody of his or her child 'without due process, generally in the form of a predeprivation hearing.'" Id. at 596 (quoting Hurlman, 927 F.2d at 79).
In the present case, the plaintiffs assert "not solely that defendants had sufficient time to obtain a court order, but that the circumstances in which Woo found the children did not warrant their removal at all, whether evaluated by pre—or post—Tenenbaum standards." Southerland Children's Br. at 39.17 We understand the plaintiffs' contention to be that "emergency circumstances" warranting removal simply did not exist.
The district court did not decide as a matter of law that emergency circumstances existed in the Southerland home. To the contrary, the district court concluded that "viewing the facts in the light most favorable to plaintiffs, a reasonable juror could determine that the circumstances Woo encountered did not demonstrate an imminent danger to the children's life or limb." Southerland II, 521 F. Supp. 2d at 234 n.29. The court further decided that "a reasonable juror could find that there was sufficient time to acquire a court order prior to the removal." Id. at 235 n.31. In light of those determinations, with which we agree, and our assessment that the relevant law was clearly established in 1997, we cannot conclude as a matter of law that "it was objectively reasonable for Woo to believe that his acts did not violate those clearly established rights." Holcomb, 337 F.3d at 220. Qualified immunity therefore is not available to Woo on the plaintiffs' procedural due process claims at the summary judgment stage. Because summary judgment also cannot be granted to the defendants on the underlying merits of these claims,18 we vacate the grant of summary judgment to Woo as to the procedural due process claims.
VI. Southerland's Substantive Due Process Claim
Southerland asserts a substantive due process claim against Woo under the Fourteenth Amendment. The district court held not only that qualified immunity attached to Woo's actions, but also that summary judgment would be warranted on the merits even in the absence of qualified immunity. We disagree with both conclusions.
A. Substantive Due Process in the Child-Removal Context
Substantive due process guards a person's rights "against the government's 'exercise of power without any reasonable justification in the service of a legitimate governmental objective.'" Tenenbaum, 193 F.3d at 600 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). "To establish a violation of substantive due process rights, a plaintiff must demonstrate that the state action was 'so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'" Okin v. Vill. of Cornwall-on-Hudson Police Dep't, 577 F.3d 415, 431 (2d Cir. 2009) (quoting Lewis, 523 U.S. at 847 n.8). The interference with the plaintiff's protected right must be "'so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even were it accompanied by full procedural protection.'" Anthony, 339 F.3d at 143 (quoting Tenenbaum, 193 F.3d at 600); see also Lewis, 523 U.S. at 840 (doctrine of substantive due process "bars certain government actions regardless of the fairness of the procedures used to implement them" (internal quotation marks omitted)). Thus, in the child-removal context, we ask whether "the removal…would have been prohibited by the Constitution even had the plaintiffs been given all the procedural protections to which they were entitled." Tenenbaum, 193 F.3d at 600 (emphasis omitted).
We have long recognized that parents have a "constitutionally protected liberty interest in the care, custody and management of their children," id. at 593, and that the deprivation of this interest is actionable under a theory of substantive due process, see id. at 600 (recognizing a "substantive right under the Due Process Clause 'to remain together without the coercive interference of the awesome power of the state'" (quoting Duchesne, 566 F.2d at 825)). We have also observed, however, that "although parents enjoy a constitutionally protected interest in their family integrity, this interest is counterbalanced by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves." Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 104 (2d Cir. 1999) (internal quotation marks omitted), cert. denied, 528 U.S. 1155 (2000).
We have explained that, in part because the law contemplates a careful balancing of interests, a parent's substantive constitutional rights are not infringed if a caseworker, in effecting a removal of a child from the parent's home, has a reasonable basis for thinking that a child is abused or neglected. See id. "This Circuit has adopted a standard governing case workers which reflects the recognized need for unusual deference in the abuse investigation context. An investigation passes constitutional muster provided simply that case workers have a 'reasonable basis' for their findings of abuse." Id.; see also id. at 108 (concluding that the "reasonable basis test" requires that caseworkers' decisions to substantiate an allegation of child abuse "be consistent with some significant portion of the evidence before them"). We have applied this "reasonable basis" standard from time to time in recent years. See, e.g., Nicholson, 344 F.3d at 174; Phifer v. City of N.Y., 289 F.3d 49, 60 (2d Cir. 2002); Kia P., 235 F.3d at 758-59.
We have also recognized that substantive due process claims in the child-removal context have a temporal dimension. Because state interference with a plaintiff's liberty interest must be severe before it rises to the level of a substantive constitutional violation, see, e.g., Anthony, 339 F.3d at 143, "brief removals of a child from a parent's home generally do not rise to the level of a substantive due process violation, at least where the purpose of the removal is to keep the child safe during investigation and court confirmation of the basis for removal," Nicholson, 344 F.3d at 172 (citing Tenenbaum, 193 F.3d at 600-01 & n.12); see also Cecere, 967 F.2d at 830 (ruling that plaintiff's due process claim failed because a "brief" four-day removal, executed "in the face of a reasonably perceived emergency," did not violate due process); Joyner ex rel. Lowry v. Dumpson, 712 F.2d 770, 779 (2d Cir. 1983) (no substantive violation where temporary transfer of custody to foster-care system did not "result in parents' wholesale relinquishment of their right to rear their children").
B. Analysis
The district court, in deciding that qualified immunity protection prevailed, concluded that it was objectively reasonable for Woo to think that Southerland's substantive due process rights were not being violated because "brief removals of children from their parents generally do not rise to the level of a substantive due process violation," Southerland II, 521 F. Supp. 2d at 232 (brackets and internal quotation marks omitted), and because the Southerland Children "were removed in the context of a child protective investigation in which removal would be subject to court confirmation," id.; see also id. at 234 (suggesting that "a family court judge confirmed the removal" at a "timely post-deprivation hearing").
We agree in principle. The removal of a child from his or her parent does not violate the parent's substantive due process rights if a post-removal judicial proceeding is promptly held to confirm that there exists a reasonable basis for the removal. The period of time in which the child and parent are separated at the sole instruction of the defendant is, in such a case, not severe enough to constitute a substantive due process violation by the defendant. See Nicholson, 344 F.3d at 172; Tenenbaum, 193 F.3d at 600-01. If it were clear in the record that the removal of the Southerland Children was confirmed by a prompt and adequate judicial confirmation proceeding, we would agree with the district court that summary judgment would be appropriate on that basis.
But the record is not sufficiently clear for us to determine whether such a post-removal judicial proceeding occurred, and if so, the nature of it. The district court stated that the Southerland Children were removed and held in ACS custody "pending a timely post-deprivation hearing where a family court judge confirmed the removal." Southerland II, 521 F. Supp. 2d at 234. And the court had previously observed that the Southerland Children "remained in custody without a court order until the morning of June 12, 1997"—about forty-eight hours—"at which time Woo obtained a court order confirming the removal." Southerland v. City of N.Y., No. 99-cv-3329, 2006 WL 2224432, at *1, 2006 U.S. Dist. LEXIS 53582, at *4 (E.D.N.Y. Aug. 2, 2006). Although the parties do not appear to dispute that a post-removal judicial confirmation proceeding was held, nor do they dispute that this proceeding took place within several days after removal, they provide no further detail upon which we can assess the nature of the proceeding in terms of its timeliness and adequacy.19
We are also unable to determine from the present record on what factual basis the Family Court decided that the continued removal of the Southerland Children was warranted. We do not know, for example, whether its decision to confirm the removal was based solely on written submissions by Woo to the same effect and containing the same errors as Woo's application for the Order Authorizing Entry.
Apparently relying on the understanding that the Family Court had promptly confirmed the Southerland Children's removal, the district court concluded that no reasonable trier of fact could find that the removal of the Children was "so 'shocking, arbitrary, and egregious' that Southerland's substantive due process rights were violated." Southerland II, 521 F. Supp. 2d at 235 (citation omitted). For much the same reason that we conclude that material questions of fact preclude summary judgment on the merits of the plaintiffs' procedural due process claims, however, we conclude that summary judgment was inappropriate on the merits of Southerland's substantive due process claim.
A plaintiff's substantive due process claim fails if "there is an objectively reasonable basis for believing that parental custody constitutes a threat to the child's health or safety." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996). Although this "reasonable basis" standard appears to impose a lesser burden on a defendant than the "emergency circumstances" standard applicable to procedural due process claims, summary judgment is nevertheless not appropriate unless "there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." D'Amico, 132 F.3d at 149.
The facts concerning the nature of Southerland's behavior during Woo's investigation and the conditions in the Southerland apartment at the time that Woo effected the removal remain hotly contested by the parties. For example, while Woo contends that the apartment lacked enough food, lighting, and bedding; that the Children were malodorous; and that various safety hazards were present, Southerland has tendered admissible evidence (albeit largely in the form of his own testimony) that each of those factual assertions is false. If the trier of fact were to credit Southerland's account, we cannot say that it would be unreasonable for it to then conclude that a reasonable caseworker in Woo's position lacked an "objectively reasonable basis" for removing the Children, Gottlieb, 84 F.3d at 518, and thus that Woo's actions were "shocking, arbitrary, and egregious," Anthony, 339 F.3d at 143 (internal quotation marks omitted). Moreover, in the absence of record evidence as to the substance of the post-removal judicial confirmation proceeding, we cannot conclude that the fact that the Family Court confirmed the removal of the Southerland Children suffices to show that Woo's conduct had an objectively reasonable basis. Cf. Southerland II, 521 F. Supp. 2d at 234-35.
Finally, we consider whether Woo is nonetheless entitled to summary judgment on the basis of qualified immunity. As noted, qualified immunity is available to defendants "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818; see also Cornejo v. Bell, 592 F.3d 121, 128 (2d Cir.), cert. denied, 131 S. Ct. 158 (2010). When a defendant official invokes qualified immunity as a basis for summary judgment, a court must consider not only whether evidence in the record suggests a violation of a statutory or constitutional right, but also "whether that right was clearly established at the time of the alleged violation." Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). Thus, if it could be shown that, at the time of the events in question, Woo lacked a legal basis upon which he could conclude that his actions would violate Southerland's substantive due process rights, Woo would be entitled to qualified immunity.
The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer [in the position of the defendant] that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). In answering that question, we consider: "(1) whether the right was defined with reasonable specificity; (2) whether Supreme Court or court of appeals case law supports the existence of the right in question, and (3) whether under preexisting law a reasonable defendant would have understood that his or her acts were unlawful." Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010). "The task of framing the right at issue with some precision is critical in determining whether that particular right was clearly established at the time of the defendants' alleged violation." Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010); see also Wilson v. Layne, 526 U.S. 603, 609 (1999). Although the matter of whether a right at issue is clearly established is a question of law, Higazy v. Templeton, 505 F.3d 161, 170 (2d Cir. 2007), that question is "tied to the specific facts and context of the case," Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir. 2007).
In 1997, when Woo effected the removal, it was well established as a general matter that parents possess a substantive right under the Due Process Clause of the Fourteenth Amendment to exercise care, custody, and control over their children. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982); Gottlieb, 84 F.3d at 518; Joyner ex rel. Lowry, 712 F.2d at 777. It was also the law, however, that where "parental custody constitutes a threat to the child's health or safety, government officials may remove a child from his or her parents' custody at least pending investigation." Gottlieb, 84 F.3d at 518; see also Stanley v. Illinois, 405 U.S. 645, 649-53 (1972); Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997).
We therefore determined prior to 1997 that where the state has an "objectively reasonable basis" for removing a child from his or her parent, the parent's substantive constitutional rights are not infringed. Gottlieb, 84 F.3d at 518; see generally id. at 520; van Emrik v. Chemung County Dep't of Soc. Servs., 911 F.2d 863, 866 (2d Cir. 1990). We also repeatedly assured potential defendants that qualified immunity would be available to "protect state officials in choosing between difficult alternatives, provided that there is an objectively reasonable basis for their decision, whichever way they make it." van Emrik, 911 F.2d at 866; see also Defore v. Premore, 86 F.3d 48, 50 (2d Cir. 1996) (per curiam) (qualified immunity exists to "insure that publicly employed caseworkers have adequate latitude to exercise their professional judgment in matters of child welfare").
In 1999, two years after the events in question here, we summarized the state of the law in Wilkinson: "Although parents enjoy a constitutionally protected interest in their family integrity, this interest is counterbalanced by the 'compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves.'" Wilkinson, 182 F.3d at 104 (quoting Manzano v. S.D. Dep't of Soc. Servs., 60 F.3d 505, 510 (8th Cir. 1995) (internal quotation marks omitted)). We observed that "the difficulty of balancing the weighty interests apparent in the child abuse context…has prompted courts to impose few concrete restrictions on case workers, in exercising their discretion, short of certain obvious extremes." Id. We described those "extremes" as including circumstances where a caseworker "ignores overwhelming exculpatory information" or "manufactures false evidence." Id. We concluded in dicta that our decisions to that date had left the defendants at bar "with little or no indication that their alleged misconduct, as near as it was to the constitutional borderline, would have even implicated serious constitutional concerns." Id. at 107; see also Patel v. Searles, 305 F.3d 130, 139 (2d Cir. 2002), cert. denied, 538 U.S. 907 (2003). Our discussion in Wilkinson would seem to suggest that perhaps there was a lack of clearly established law available to guide Woo's conduct.
We nonetheless cannot conclude as a matter of law that, in 1997, Woo lacked sufficient legal guidance by which to discern the lawfulness of his actions. Assuming, as we must at the summary judgment stage, that the factual circumstances are as Southerland, not Woo, describes them, and resolving all credibility questions and drawing all reasonable inferences in Southerland's favor, we are not able to say that Woo would then have lacked a legal basis for understanding that removing the children from their home would be unlawful. Indeed, the district court here was also of the view that "Southerland's substantive due process rights were clearly established at the time of the removal of the children." Southerland II, 521 F. Supp. 2d at 232.
We therefore cannot conclude on this record that the principles of law applicable to the facts as we must view them on appeal from a grant of summary judgment were not clearly established in 1997. Woo is thus not entitled at this stage to qualified immunity on Southerland's substantive due process claim, although, again, once the relevant disputes of material fact are resolved, the district court might eventually conclude that Woo is entitled to such immunity.
VII. The Southerland Children's Fourth Amendment Unlawful-Seizure Claim
Finally, the Southerland Children assert a claim for violation of their own substantive due process rights, which the district court recharacterized as a claim of unlawful seizure under the Fourth Amendment. See Southerland II, 521 F. Supp. 2d at 227 n.22, 230 n.24. The district court concluded that Woo was entitled to qualified immunity because "prior to the Court of Appeals' decision in Tenenbaum in 1999, there was no clear application of Fourth Amendment standards in the child removal context." Id. at 231. Although we agree with the district court's observation that this Circuit had not yet applied Fourth Amendment unlawful-seizure principles in the child-removal context by 1997, we think that the district court erred by conducting its inquiry solely by reference to the Fourth Amendment.
Our decision in Tenenbaum effected a change in the legal framework applicable to a child's claim for substantive constitutional violations arising out of the child's removal from his or her parent's home. There, the plaintiffs contended that "[their daughter's] temporary removal for the purpose of subjecting her to a medical examination violated their and [the daughter's] substantive due-process rights." Tenenbaum, 193 F.3d at 599. Relying on Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion of Rehnquist, C.J.), we observed that where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.
Tenenbaum, 193 F.3d at 599 (brackets and internal quotation marks omitted). We said that "'substantive due process analysis is…inappropriate…if the claim is covered by the Fourth Amendment.'" Id. at 600 (quoting Lewis, 523 U.S. at 843) (second brackets in original; other internal quotation marks omitted). We then concluded that the daughter's "removal and her examination constituted a seizure and search, respectively, under the Fourth Amendment," id., and that her claim "therefore 'must be analyzed under the standard appropriate to [the Fourth Amendment], not under the rubric of substantive due process.'"20
Id. (quoting United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)).
The fact that Tenenbaum changed the legal "rubric" applicable to the Southerland Children's constitutional claims, however, is not determinative of whether their rights were clearly established in 1997. It would be inappropriate, we think, to afford Woo qualified immunity on the Southerland Children's claims solely because, two years after the events in question, we shifted the constitutional framework for evaluating those claims from the Fourteenth to the Fourth Amendment.
We reached a similar conclusion in Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir.), cert. denied, 552 U.S. 818 (2007). There we made clear that the constitutional "right to be free from prolonged detention caused by law enforcement officials' mishandling or suppression of exculpatory evidence," id. at 211, was a species of the right to be free from unlawful seizure under the Fourth Amendment, not a substantive due process right under the Fourteenth Amendment, see id. at 208-09. In then proceeding to undertake a qualified immunity inquiry, we cautioned that our "clarification [of the law was] of no consequence to the question of whether the right was clearly established [at the time of the relevant events], because the proper inquiry is whether the right itself—rather than its source—is clearly established." Id. at 212 (collecting cases; emphasis in original). Here, as in Russo, in inquiring whether there was clearly established law to govern the Southerland Children's claims in 1997, we look not only to authorities interpreting the Fourth Amendment, but to all decisions concerning the same substantive right.
At the time of the events in question in this case, a child's claim for violation of his or her right to "preservation of family integrity," Duchesne, 566 F.2d at 825, would likely have been understood to arise under the substantive due process guarantee of the Fourteenth Amendment. This right had been recognized in our case law by 1997, see Joyner ex rel. Lowry, 712 F.2d at 777-78; Rivera v. Marcus, 696 F.2d 1016, 1026 (2d Cir. 1982); Leonhard v. United States, 633 F.2d 599, 618 (2d Cir. 1980) (collecting cases); Duchesne, 566 F.2d at 825, although it had been less frequently litigated than the corresponding substantive parental right.
As with the corresponding parental right, however, the law in 1997 also recognized the countervailing principle that the state may remove children from the custody of their parents without violating the children's constitutional rights where there is a reasonable basis for concluding that the children are abused or neglected. See, e.g., Rivera, 696 F.2d at 1017.
For much the same reason that we determined that Woo is not entitled to qualified immunity as a matter of law on the current record as to Southerland's substantive due process claim, resolving all disputed facts in the plaintiffs' favor for these purposes, we conclude that a reasonable caseworker in Woo's position would not have lacked a sufficient legal basis for knowing that his conduct under those circumstances would infringe upon the substantive constitutional rights of the Southerland Children. As with the other claims addressed in these appeals, though, the district court may yet conclude on remand and after further development of the facts that Woo is entitled to qualified immunity in this context.
Finally, we note that the district court concluded that, in the absence of qualified immunity protection, Woo would not be entitled to summary judgment on the merits of the Southerland Children's Fourth Amendment unlawful-seizure claim. See Southerland II, 521 F. Supp. 2d at 234 n.29. We have no reason to disturb that ruling on appeal.
CONCLUSION
For the foregoing reasons, we vacate the district court's grant of summary judgment on each of the plaintiffs' claims that have been preserved for appeal: (1) Southerland's and the Southerland Children's claims for Fourth Amendment violations arising out of the allegedly unlawful search of the Southerland home; (2) Southerland's and the Southerland Children's claims for violations of procedural due process under the Fourteenth Amendment; (3) Southerland's claim for violation of substantive due process under the Fourteenth Amendment; and (4) the Southerland Children's claim for unlawful seizure under the Fourth Amendment. We remand for further proceedings.
*. The Clerk of Court is directed to amend the official caption in accordance with the foregoing.
1. We refer throughout this opinion to asserted Fourth Amendment rights of the plaintiffs. Inasmuch as the defendants are state and not federal actors, of course, whatever rights the plaintiffs have are "under the Fourth Amendment, as applied to the States under the Fourteenth Amendments" Due Process Clause. Kia P. v. McIntyre, 235 F.3d 749, 761 (2d Cir. 2000); see Mapp v. Ohio, 367 U.S. 643, 655 (1961).
2. Judge Sifton passed away while these appeals were pending.
3. Southerland later testified that the school contacted him with a medical referral after the paint-swallowing incident, and that he had tried to get Ciara to go to the appointment that was scheduled for her, but that she refused to go.
4. Woo listed the Manning Children's names at the top of the application, along with Southerland's name and the address of the Southerland apartment. The body of the application states in its entirety:
I, Timothy Woo, Caseworker for ACS, am a person conducting a child protective investigation pursuant to the Social Services Law. I have reasonable cause to believe that the above named children may be found at the above premises. I have reason to believe that the children are abused or neglected children. The reasons and the sources of information are as follows:
That on May 12, 1997, Sierra Manning, age 16 tried to kill herself by swallowing non-toxic paint. Mr. Sutherland did not take Sierra to a medical doctor and refused to take Sierra for psychiatric evaluation.
Mr. Sutherland has refused to allow the Administration for Children's Services into his home to speak to the above named children.
WHEREFORE, the applicant moves for an order authorizing the Administration for Children's Services accompanied by police to enter the premises to determine whether the above named children are present and to proceed thereafter with its child protective investigation.
Application for Authorization to Enter Premises dated June 6, 1997, Ex. C to Silverberg Decl.
5.The district court summarized Woo's and Balan's stated reasons for removing the Children as including: the seriousness of the initial allegation in the Intake Report—that Ciara had attempted suicide; that Southerland had failed to seek medical assistance for Ciara or for Venus; that he had resisted allowing ACS to visit his home; that he had refused to accept ACS services or assistance; that the home lacked food and adequate light; that the use of multiple extension cords for the electronic equipment was dangerous; and that the children were dirty. This combination of factors, according to Woo and Balan, "established in their minds that Southerland could not parent the children responsibly." Southerland II, 521 F. Supp. 2d at 225.
6. After the Southerland Children's removal, Woo brought Venus "to a hospital based on the instructions of a nurse at the agency that first examined the children. At the hospital, the wound was dressed and the child received a tetanus shot." Southerland II, 521 F. Supp. 2d at 225 n.13.
7. On March 14, 2007, Southerland made a pro se submission to the district court requesting that the court take judicial notice of a number of documents, including a declaration by Ciara Manning that had been sworn on April 20, 2002. In that declaration, Ciara stated that Southerland had never molested or abused her in any way and that the statements she made previously to Woo and to the Family Court to that effect were false. See Pro Se Submission of Sonny B. Southerland at 26-27 (Dkt. No. 192), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Mar. 14, 2007). 13
8. Michael G. O'Neill was appointed as counsel for both Southerland and the Southerland Children. In April 2004, Southerland resumed proceeding pro se before the district court, while Mr. O'Neill continued to represent the Southerland Children (including Venus and Sonny Jr., even after they were no longer minors). In April 2004, the district court also appointed a guardian ad litem to represent the Southerland Children's interests. Southerland II, 521 F. Supp. 2d at 221 n.1. In the instant appeals, Southerland represents himself pro se, while Mr. O'Neill continues to represent the Southerland Children.
9. The amended complaint did not name as defendants or assert any claims against any of the other thirty-nine defendants that had been named by Southerland in his original pro se complaint. Additionally, although Ciara was identified as a plaintiff in the original complaint, she was dropped from the suit when the amended complaint was filed.
10. The amended complaint also joins nine John Doe defendants, including all persons who "supervis[ed], monitored and assisted Woo in his actions with respect to the Southerland Children." Am. Compl. ¶39 (Dkt. No. 75), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002). The complaint asserts that "said Does are individually liable to Southerland for the deprivation of his constitutional rights and the constitutional rights of the Southerland Children as alleged herein." Id.
In their briefing on appeal, the plaintiffs do not address these John Doe defendants. We conclude that the plaintiffs have abandoned their claims against the John Does. We note that even if the plaintiffs now sought to amend their complaint to identify the John Doe defendants, the claims against the newly named defendants would be time-barred. See Tapia-Ortiz v. Doe, 171 F.3d 150, 151-52 (2d Cir. 1999) (per curiam); Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 468-70 (2d Cir. 1995), modified, 74 F.3d 1366 (2d Cir. 1996).
11. In so doing, the district court relied upon our statement, when the case was previously on appeal, that "the children's claims for unreasonable seizure would proceed under the Fourth Amendment rather than the substantive component of the Due Process Clause." Southerland I, 4 F. App'x at 37 n.2 (citing Kia P. v. McIntyre, 235 F.3d 749, 757-58 (2d Cir. 2000)).
12. The district court later permitted the Southerland Children to assert their failure-to-train claim against the City not only with respect to the police, but also with respect to ACS. See Southerland II, 521 F. Supp. 2d at 235 n.34.
13. "Where another provision of the Constitution provides an explicit textual source of constitutional protection, a court must assess a plaintiff's claims under that explicit provision and not the more generalized notion of substantive due process." Kia P., 235 F.3d at 757-58 (quoting Conn v. Gabbert, 526 U.S. 286, 293 (1999)) (brackets and internal quotation marks omitted).
14. The defendants also argue, with respect to the probable cause determination, that irrespective of the requirements of New York Family Court Act §1034(2), Woo was required to visit the Southerland home under a provision of the New York Social Services Law that requires that, within twenty-four hours of receipt of a "report of suspected child abuse or maltreatment" as provided for under New York Social Services Law §424(1), ACS must undertake an investigation that includes "an evaluation of the environment of the child named in the report and any other children in the same home," id. §424(6)(a). However, considering that Woo had reason to know that Ciara, the child identified in the report, was not living at the Southerland home—and, indeed, reason to know that none of the children named in his application to the Family Court were living there—his reliance on this provision of the Social Services Law fails. If Ciara was not living "on premises" at the Southerland home, Woo was not entitled to enter the home to evaluate this "environment," nor to evaluate the other children living there.
15. In child-abuse investigations, a Family Court order is equivalent to a search warrant for Fourth Amendment purposes. See Nicholson v. Scoppetta, 344 F.3d 154, 176 (2d Cir. 2003); Tenenbaum, 193 F.3d at 602.
16. We disagree with the defendants' assertion that Hurlman and Robison are not controlling here because the state officers in those cases were unlawfully on the premises, whereas Woo had a court order (albeit a disputed one) to enter the Southerland 16 We disagree with the defendants' assertion that Hurlman and Robison are not controlling here because the state officers in those cases were unlawfully on the premises, whereas Woo had a court order (albeit a disputed one) to enter the Southerland
17. In Tenenbaum, a removal was carried out because the child had reported—albeit under questionable circumstances—that her father had sexually abused her. See Tenenbaum, 193 F.3d at 594. There was no doubt at the time that the possibility of sexual abuse was, as it always is, a serious concern. At issue was whether there was nonetheless time under the circumstances to secure a court order prior to effecting the removal without risking imminent danger to the child. See id. at 608 (Jacobs, J., dissenting) (describing majority opinion as holding that, while there was "exigency," there was still no "emergency," because there was time to obtain a court order). Tenenbaum represented a novel application of procedural due process law because of the majority's holding that regardless of the seriousness of the allegations, it was still necessary to obtain a court order if time permitted. Here, by contrast, we understand the plaintiffs to assert that the circumstances presented did not necessitate an inquiry into whether there was time to obtain a court order, because the conditions in the Southerland home were not grave enough to trigger that inquiry.
18. The district court correctly noted that there are material factual disputes concerning whether emergency circumstances existed warranting the immediate removal of the Southerland Children from their home. See Southerland II, 521 F. Supp. 2d at 234 n.29 & 235 n.31. But even where emergency circumstances warranting removal exist, "'the constitutional requirements of notice and opportunity to be heard are not eliminated but merely postponed.'" Kia P., 235 F.3d at 760 (quoting Duchesne, 566 F.2d at 826). Therefore, a plaintiff may have a viable claim for violation of procedural due process even where emergency circumstances existed at the time of removal, if the plaintiff does not receive a timely and adequate postdeprivation hearing. See id. at 760-61. In this case, as will be explained below, important factual questions remain concerning the post-removal judicial confirmation proceedings, if any, that took place in the days after the Southerland Children's removal from their home.
19. See Southerland Children's Br. at 23 ("The children were held by the defendants without court order from June 9 until June 13, 1997. ACS filed a petition in the Family Court on June 13, 1997, and apparently some kind of proceeding was held on that day, although there is no evidence of it in the record."); Appellees' Br. at 19 ("Plaintiff Southerland's children, the Court found, were removed from the home and held in ACS custody pending a timely post-deprivation hearing where a family court judge confirmed the removal."). The parties have failed to brief the issue despite our prior instruction that Southerland "be given an opportunity to prove…that the subsequent family court proceedings were insufficiently prompt to pass constitutional muster." Southerland I, 4 F. App'x at 36.
20. We reaffirmed this approach in Kia P., 235 F.3d at 757-58, where we also construed a child's claimed violation of substantive due process as instead arising under the Fourth Amendment. In Southerland I, we relied on Kia P. in stating that "[t]he [Southerland] children's claims for unreasonable seizure would proceed under the Fourth Amendment rather than the substantive component of the Due Process Clause." Southerland I, 4 F. App'x at 37 n.2..
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The plaintiffs—a father and his children—bring various claims under 42 U.S.C. §1983 asserting that Woo, a children's services caseworker employed by the defendant City of New York, entered their home unlawfully and effected an unconstitutional removal of the children into state custody. The district court concluded that Woo was entitled to qualified immunity with respect to all of the claims against him. We disagree. As to each claim that has been preserved for appeal: Vacate and remand.
Sonny B. Southerland, Sr., Individually and as Parent and Natural Guardian of Venus Southerland, Sonny B. Southerland, Jr., Nathaniel Southerland, Emmanuel Felix, Kiam Felix, and Elizabeth Felix, Plaintiffs-Appellants v. City of New York, Timothy Woo, John Does 1-9, Defendants-Appellees.*, 07-4449-cv (L)
U.S. Court of Appeals, Second Circuit
Government
New york law journal
06-14-2011
Cite as: Southerland v. City of New York, 07-4449-cv (L), NYLJ 1202497024019, at *1 (2d CIR, Decided June 10, 2011)
Before: Kearse, Sack, and Hall, C.J.
Decided: June 10, 2011
ADDITIONAL INDEX NUMBERS
07-4449-cv (L), 07-4450-cv (CON)
ATTORNEYS
Michael G. O'neill, New York, N.Y., For Plaintiffs-Appellants Venus S., Sonny B.S. Jr., Nathaniel S., Emmanuel F., Kiam F., And Elizabeth F.
Sonny B. Southerland, Brooklyn, N.Y., Plaintiff-Appellant, Pro Se.
Julian L. Kalkstein, City of New York (Michael A. Cardozo, Corporation Counsel; Larry A. Sonnenshein, of Counsel), New York, N.Y., For Defendants-Appellees.
Consolidated appeals from a summary judgment entered by the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge) in favor of, inter alios, the defendant Woo. The plaintiffs—a father and his children—bring various claims under 42 U.S.C. §1983 asserting that Woo, a children's services caseworker employed by the defendant City of New York, entered their home unlawfully and effected an unconstitutional removal of the children into state custody. The district court concluded that Woo was entitled to qualified immunity with respect to all of the claims against him. We disagree. As to each claim that has been preserved for appeal:
Vacated and remanded.
ROBERT D. SACK, C.J:
This lawsuit involves a man and a woman—the plaintiff Sonny B. Southerland Sr. ("Southerland") and non-party Diane Manning—two groups of children, and a caseworker's apparent confusion between the two groups. Plaintiff Ciara Manning is the daughter of Southerland and Diane Manning. Ciara was supposed to be living with Southerland at the time in question, but in fact had left to live with a friend.
In addition to Ciara, plaintiff Southerland fathered, by one or more women other than Diane Manning, six other children: the plaintiffs Venus Southerland, Sonny B. Southerland Jr., Nathaniel Southerland, Emmanuel Felix, Kiam Felix, and Elizabeth Felix (together, the "Southerland Children"). At the time of the principal events in question, the Southerland Children, unlike Ciara, were living with their father. Diane Manning also allegedly bore, by one or more men other than Southerland, six children other than Ciara: Eric Anderson, Richy Anderson, Felicia Anderson, Erica Anderson, Michael Manning, and Miracle Manning (together, the "Manning Children"). They lived with Diane and, like her, are not parties to this lawsuit.
In May 1997, the defendant Timothy Woo, a caseworker in the Brooklyn Field Office of the New York City Administration for Children's Services ("ACS"), was assigned to investigate a report by a school counselor about then-sixteen-year-old Ciara Manning. School staff had thought Ciara to be acting strangely at school.
After being unable, despite repeated attempts, to gain entry to the Southerland home to investigate the report, Woo sought and obtained from the Kings County Family Court an order authorizing entry into the apartment. Woo's application to obtain that order contained several misstatements of fact, which suggested Woo's possible confusion about which of the children resided with Southerland.
Under the authority of the Family Court's order, Woo then entered the Southerland apartment. Ciara was not there; some of Southerland's other children who lived with him were. Based on what Woo perceived to be the poor condition of the home and of the Southerland Children, and his other observations from the investigation undertaken to that date, Woo and his supervisor decided to carry out an immediate removal of the children into ACS custody.
Southerland and the Southerland Children brought this action based on Woo's entry into the apartment and removal of the children. They claim that Woo violated their Fourth Amendment1 rights to be free from unreasonable searches of their home, and that the manner in which the Southerland Children were removed violated their procedural due process rights under the Fourteenth Amendment. Southerland also claims that the removal of the Southerland Children from his home violated his substantive due process rights under the Fourteenth Amendment. Finally, the Southerland Children claim that their removal violated their Fourth Amendment rights to be free from unreasonable seizure.
The district court (Charles P. Sifton, Judge) concluded, inter alia, that Woo was entitled to qualified immunity with respect to all of the claims against him and granted summary judgment in his favor. We disagree with those conclusions and therefore vacate the district court's judgment as to those claims that have been pursued on appeal and remand the matter for further proceedings.
BACKGROUND
The relevant facts are rehearsed in detail in the district court's opinion. See Southerland v. City of N.Y., 521 F. Supp. 2d 218 (E.D.N.Y. 2007) ("Southerland II"). They are set forth here only insofar as we think it necessary for the reader to understand our resolution of these appeals. Where the facts are disputed, we construe the evidence in the light most favorable to the plaintiffs, who are the nonmoving parties. See, e.g., SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009). We also draw all reasonable factual inferences in the plaintiffs' favor. See, e.g., id.
The ACS Investigation
On May 29, 1997, a school guidance counselor reported to the New York State Central Registry Child Abuse Hotline that one of the school's students, Ciara Manning, the then-sixteen13 year-old daughter of Diane Manning and plaintiff Southerland, was "emotionally unstable." The counselor further reported:
Fa(ther) fails to follow through w(ith) mental health referrals. On 5/12/97 the ch(ild) swallowed a can of paint. F(ather) failed to take the ch[ild) for medical attention. Fa(ther) is unable to control or supervise the ch(ild). She may be staying out of the home in an improper environment.
Intake Report at 3, Office of Children and Family Services, Child Protective Services, May 29, 1997 ("Intake Report"), Ex. A to the Declaration of Janice Casey Silverberg (Dkt. No. 168) ("Silverberg Decl."), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). The Intake Report was transmitted to the Brooklyn Field Office of the ACS. There, Fritz Balan, a supervisor, assigned the case to defendant Timothy Woo, an ACS caseworker, for investigation. Woo, who was required by New York law to begin his investigation within 24 hours, did so that day.
He first examined the files of a case pending in that ACS office regarding Ciara's mother, Diane Manning. Material in those files disclosed that Ciara had several younger half-also indicated that Ciara lived with her father, Southerland, at a Brooklyn address, although the plaintiffs correctly note the absence of any evidence as to the source of that information and the time it was received. It is not clear from the record whether Woo was aware that the children referenced in Diane Manning's case file were not related to Southerland and that they did not live with him. See Southerland II, 521 F. Supp. 2d at 222, 224 & n.8.
Woo also contacted the school guidance counselor who had called the child-abuse hotline. According to Woo, the counselor told him that while at school, Ciara had swallowed non-toxic paint, expressed thoughts of suicide, and was generally behaving aggressively and "acting out." Declaration of Timothy Woo ¶10 (Dkt. No. 169) ("Woo Decl."), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). Woo's handwritten notes from the conversation indicate that the counselor told Woo that "father (i.e., Southerland) doesn't approve of the place where Ciara is staying." Notes of Timothy Woo at 1, Ex. A to the Declaration of Michael G. O'Neill (Dkt. No. 182) ("O'Neill Decl."), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Dec. 28, 2006). It is disputed whether the counselor also told Woo that Southerland had been unresponsive to the school's stated concerns about Ciara's behavior.
Later that day, Woo attempted to visit Southerland's apartment in Brooklyn where, for reasons that are not clear from the record, Woo thought Ciara was staying. When no one answered the door, Woo left a note containing his contact information.
The following day, May 30, Southerland telephoned Woo. During the course of their conversation, Southerland described Ciara as a runaway who would not obey him. Southerland suggested that he visit the ACS office to discuss the matter with Woo further. The plaintiffs dispute Woo's assertion that during the phone conversation, Southerland indicated that he would not permit Woo to visit Southerland's apartment. Southerland contends that, although he did question why Woo needed to visit the apartment since Ciara did not live there, Southerland nonetheless indicated that he would be willing to make an appointment for Woo to conduct a home visit if Woo insisted.
Southerland visited the ACS office and met with Woo later that day. According to Southerland's deposition testimony, he told Woo that Ciara had run away and that he had obtained several "Persons in Need of Supervision" ("PINS") warrants against her. Woo's case notes indicate that Woo asked Southerland why he had not sought medical attention for Ciara after the paint-swallowing incident. Southerland did not answer
the question. See Progress Notes of T. Woo at 1 ("Progress Notes"), Ex. B to O'Neill Decl.
Southerland told Woo and Balan, Woo's supervisor, that Ciara did not need psychiatric help, and that she "'was only acting the way she did to get attention.'" Southerland II, 521 F. Supp. 2d at 223 (quoting Woo Decl. ¶10); see also Declaration of Fritz Balan ¶7 (Dkt. No. 170) ("Balan Decl."), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). According to Woo, he explained to Southerland that various services were available through ACS to assist him and his children, including counseling and help with obtaining food, furniture, and clothing. Southerland declined. According to Southerland, however, no such assistance was ever offered.
When Woo said he would need to make a home visit, Southerland replied that it would be "no problem" as long as he was notified in advance. Southerland II, 521 F. Supp. 2d at 223; see also Deposition of Sonny B. Southerland at 207 ("Southerland Dep."), Ex. F to O'Neill Decl. Southerland asserts that Woo stated he would call him to arrange the visit, but that Woo never made such a call.
On June 2, 1997, Woo made a second attempt to examine the Southerland apartment. A woman whose identity was unknown to Woo answered the door. She said that Southerland was not at home. Woo left.
The following day, June 3, Woo again went to the apartment. He heard noises inside, but no one answered the door. Again, he left.
The next day, June 4, Woo went to the apartment for a fourth time. He waited in the hallway for several minutes. Southerland emerged accompanied by five school-aged children: Sonny Jr., Venus, Emmanuel, Nathaniel, and Kiam. Woo wrote down their names in his case notes. Southerland told Woo that he did not have time to talk because he was taking the children to school. Woo gave Southerland an ACS business card and told him that if he continued to be uncooperative, ACS would seek court action. Southerland II, 521 F. Supp. 2d at 223-24 & n.6; see also Progress Notes at 2.
The Removal of the Southerland Children
On June 6, 1997, at the direction of supervisor Balan, Woo applied to the Kings County Family Court for an order to enter the Southerland apartment pursuant to section 1034(2) of the New York Family Court Act. It is ACS policy to investigate not only the status of the child named in a report of suspected abuse or maltreatment of the type referred to in section 1034(2), but also that of any other children residing in the same home. Woo listed Ciara on the application. Instead of including the names of the children he had met leaving Southerland's home on June 4, however, he listed the other children of Ciara's mother Diane—the Manning Children: Eric Anderson, Richy Anderson, Felicia Anderson, Michael Manning, Miracle Manning, and Erica Anderson—whose names he apparently had obtained from the Diane Manning case files he had reviewed at ACS's Brooklyn Field Office.4 The Family Court issued an "Order Authorizing Entry" into the Southerland apartment the same day, June 6. See Southerland II, 521 F. Supp. 2d at 224.
Three days later, on the evening of June 9, 1997, pursuant to the Order Authorizing Entry, Woo and another caseworker entered the Southerland apartment with the assistance of officers from the New York City Police Department. Southerland and the Southerland Children were present inside the home. Woo Decl. ¶¶13-15, 19. The district court described what happened next, from Woo's perspective:
Woo determined that there were six children between the ages of three and nine residing in the apartment. He listed their names (correctly) as Venus, Sonny Jr., Nathaniel, Emmanuel, Kiam, and Elizabeth Felix. Soon after beginning his evaluation of the home, Woo called his supervisor (Balan) on his cell phone, described his observations, and answered his supervisor's questions. Woo reported that the four boys slept on the floor in one bedroom and the two girls slept on a cot in another bedroom. The children appeared as though they had not been bathed in days and their clothing was malodorous. In the refrigerator, Woo found only beer, a fruit drink, and English muffins. Woo did not examine the contents of the kitchen cupboards. The other caseworker observed that one child, Venus, was limping because of a foot injury. The child stated that she had stepped on a nail. The caseworker concluded that Southerland had not sought medical attention for her. Woo reported that the only light source in the bedroom area was from a blank television screen. Woo observed an electric lamp on the floor, without a shade, connected to an outlet in the living room by means of several extension cords along the floor. Woo reported that another room contained stacks of electronic equipment. Woo and his supervisor concluded that the children's safety was threatened, and Balan directed Woo to remove the children from the home.
Id. at 224-25 (footnotes omitted).5
As the district court also observed, the plaintiffs—relying primarily on later deposition testimony by Southerland—offer a starkly different description of the conditions in the Southerland home at the time. According to Southerland's testimony, the apartment did not lack proper bedding; the boys had a bunk bed in their room, although they preferred to sleep on yellow foam sleeping pads on the floor. Id. at 225 n.10. The children were not dirty; Southerland testified that he laundered the children's clothing about once a week and bathed the children daily. Id. at 225 n.11. There was food in the refrigerator, and it is also a reasonable inference from Southerland's testimony that there was food in the cupboards (which Woo did not examine), because Southerland testified that groceries for the household were purchased on a regular basis. Id. at 225 n.12. The household did not lack lighting; Southerland testified that he had a lamp plugged into a wall in each room. Id. at 225 n.14. Finally, although Southerland does not dispute that Venus had a foot injury, the plaintiffs stress Woo's concession that he did not personally observe the injury during his assessment of the home.6 Id. at 225 n.13.
In the early hours of June 10, 1997, at Balan's direction, Woo removed the Southerland Children from the Southerland home. Woo took them to the ACS pre-placement emergency shelter and arranged for emergency foster care. Id. at 226.
At some point—it is not clear exactly when—Woo interviewed Ciara Manning, whom he had found living at the home of her friend. Ciara told Woo that her father had sexually abused her and threatened to kill her if she told anyone about it—allegations she later recanted.7 The Southerland Children also complained of various kinds of abuse and mistreatment at the hands of Southerland and his companion, Vendetta Jones. These allegations concerning Ciara and the Southerland Children were included in a verified petition filed by ACS with the Family Court on June 13, 1997, and amended on June 27, 1997. The petitions commenced child-protective proceedings under Article 10 of the New York Family Court Act, §§1011 et seq., through which ACS sought to have the Southerland Children adjudicated as abused and neglected.
On July 1, 1998, more than a year after the children were removed from the Southerland home, the Kings County Family Court concluded after a five-day trial that Southerland had engaged in excessive corporal punishment of the Southerland Children and that he had abused and neglected them. The court also concluded that he had sexually abused his daughter Ciara. The court ordered that the Southerland Children remain in foster care, where they had resided since the June 1997 removal. The New York Appellate Division, Second Department, affirmed these orders, see In re Ciara M., 273 A.D.2d 312, 708 N.Y.S.2d 717 (2d Dep't 2000), and the New York Court of Appeals denied leave to appeal, see In re Ciara M., 95 N.Y.2d 767, 740 N.E.2d 653, 717 N.Y.S.2d 547 (2000).
In March 2004, nearly seven years after their removal from the Southerland home, Sonny Jr. and Venus were permitted to return to live with Southerland. Some seven months thereafter, Nathaniel and Emmanuel were discharged from the juvenile justice system by the Office of Children and Family Services and also returned to the Southerland home. As far as we can determine from the record, neither Kiam nor Elizabeth ever returned to live with Southerland.
However strongly the facts of mistreatment found by the Family Court at trial may indicate that Woo's perceptions about the dangers to the Southerland Children of their remaining with Southerland were correct, virtually none of this information was in Woo's possession when he effected the June 9, 1997, entry and removal, as the district court correctly observed. See Southerland II, 521 F. Supp. 2d at 226 n.19. These subsequently determined facts therefore do not bear upon our consideration of whether Woo's actions in effecting the removal were constitutional. See id.
Prior Federal Court Proceedings
In June 1999, some two years after the removal and while the Southerland Children remained in foster care, Southerland, on behalf of himself and his children, filed a pro se complaint in the United States District Court for the Eastern District of New York against more than forty defendants for the allegedly wrongful removal of the Southerland Children from his home. On February 1, 2000, the district court (Charles P. Sifton, Judge) granted the defendants' motion to dismiss on grounds that included failure to state a claim, failure to plead certain matters with particularity, lack of subject-matter jurisdiction, and Eleventh Amendment immunity. See Opinion & Order (Dkt. No. 43), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Feb. 2, 2000).
Southerland appealed. We affirmed in part, reversed in part, and remanded the action. We ruled, inter alia, that the district court had erred in dismissing Southerland's claims under 42 U.S.C. §1983 relating to the seizure and removal of the Southerland Children. See Southerland v. Giuliani, 4 F. App'x 33, 36 (2d Cir. 2001) (summary order) ("Southerland I"). We concluded that the pro se complaint stated valid claims for violations of both the substantive and procedural components of the Fourteenth Amendment's Due Process Clause. See id. at 36-37. We "emphasized that our holding was limited to the claims made directly by Sonny Southerland," noting that "although the children probably have similar claims, we have held that a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child." Id. at 37 (citation and internal quotation marks omitted). We therefore "left it to the district court upon remand to determine whether Southerland should be given a chance to hire a lawyer for his children or to seek to have one appointed for them." Id.
On remand, the district court appointed counsel to represent both Southerland and the Southerland Children.8 Southerland II, 521 F. Supp. 2d at 227. In November 2002, through counsel, Southerland and the Southerland Children jointly filed an amended complaint, id. at 221 & n.1, asserting nine claims under 42 U.S.C. §1983 against Woo and the City of New York, id. at 221 n.2.9
In the amended complaint, Southerland asserts four separate claims against Woo.10 First, Southerland alleges an unlawful-search claim, asserting that Woo's entry into his home "without privilege, cause or justification" violated the Fourth Amendment. Am. Compl. ¶¶40-41 (Dkt. No. 75), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002). Southerland asserts a second Fourth Amendment unlawful-search claim for Woo's remaining in his home even after discovering that the children listed on the Order Authorizing Entry were not there. Third, Southerland asserts a Fourteenth Amendment procedural due process claim for removal of the Southerland Children from his home without a court order and in the absence of an immediate threat of harm to their lives or health. Finally, Southerland alleges a substantive due process claim, also under the Fourteenth Amendment, for Woo's removal of the Southerland Children absent a reasonable basis for doing so.
The amended complaint also interposes various claims on behalf of the Southerland Children. First, the Children assert the same procedural due process claim under the Fourteenth Amendment as does Southerland. Second, they assert a substantive due process claim under the Fourteenth Amendment. The district court recharacterized the latter claim as arising under the Fourth Amendment's guarantee of protection against unlawful seizure.11 See Southerland II, 521 F. Supp. 2d at 230 n.24. Finally, the district court construed the amended complaint as asserting on behalf of the Children the same two Fourth Amendment unlawful-search claims as were asserted by Southerland.
Southerland and the Southerland Children also bring several claims against the City of New York. Southerland asserts that the City is liable under 42 U.S.C. §1983 for the removal of the Southerland Children insofar as that removal was conducted pursuant to two alleged official City policies: to remove children without a reasonable basis, and to remove children without a court order despite the absence of any immediate threat of harm to their lives or health. Southerland and the Southerland Children also allege that high-ranking policymakers within the City's police department knew or should have known that the City's failure to train police officers accompanying ACS employees on home visits and investigations would deprive New York City residents of their constitutional rights.12
On the defendants' motion for summary judgment, the district court concluded that Woo was entitled to qualified immunity as to all of the claims against him. With respect to the Fourth Amendment unlawful-search claims, the court concluded that the false and misleading statements made by Woo in his application for the Order Authorizing Entry did not strip him of qualified immunity because the plaintiffs could not show that these statements were necessary to the finding of probable cause to enter the home. Southerland II, 521 F. Supp. 2d at 230-31. The court decided that qualified immunity was warranted because "a corrected affidavit specifying all of the information known to Woo establishes an objective basis that would have supported a reasonable caseworker's belief that probable cause existed." Id. at 231 (brackets, citation, and internal quotation marks omitted).
With respect to the Southerland Children's Fourth Amendment unlawful-seizure claim, and the procedural due process claims brought by both sets of plaintiffs, the district court decided that qualified immunity shielded Woo from liability because his actions pre-dated the clear establishment of law in this context, which in its view did not occur until this Court's decision in Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), cert. denied, 529 U.S. 1098 (2000). See Southerland II, 521 F. Supp. 2d at 231-32.
Lastly, with regard to Southerland's substantive due process claim, the district court concluded that Woo was entitled to qualified immunity because "it was objectively reasonable for him to conclude that Southerland's substantive due process rights were not violated" when Woo removed the Southerland Children from the home, because "brief removals of children from their parents generally do not rise to the level of a substantive due process violation, at least where the purpose of the removal is to keep the child safe during investigation and court confirmation of the basis for removal." Id. at 32 (brackets and internal quotation marks omitted).
Notwithstanding the district court's conclusion that Woo was entitled to qualified immunity as to every claim asserted against him, the court proceeded to consider, in the alternative, the underlying merits of the plaintiffs' various claims. The court decided that even in the absence of immunity, Woo would be entitled to summary judgment with respect to the plaintiffs' Fourth Amendment unlawful-search claims and Southerland's substantive due process claim. Specifically, with respect to the Fourth Amendment unlawful-search claims, the district court decided that "no reasonable juror could infer that Woo knowingly and intentionally made false and misleading statements to the family court in order to receive an order authorizing his entry into the Southerland home." Id. at 233. With respect to Southerland's substantive due process claim, the court concluded that "no reasonable juror could find that the removal of the children from their home in order to verify that they had not been neglected or abused was so 'shocking, arbitrary, and egregious' that Southerland's substantive due process rights were violated." Id. at 234-35 (citation omitted).
The district court concluded that the City was also entitled to summary judgment on all of the claims against it. See Southerland II, 521 F. Supp. 2d at 235-39. The plaintiffs do not appeal from that portion of the judgment and therefore have abandoned their claims against the City. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995).
The district court determined, however, that without qualified immunity protection, summary judgment would not be appropriate on the merits of the procedural due process claims brought by both Southerland and the Southerland Children because, "although defendants argue that the 'totality of the circumstances' Woo encountered in the Southerland home required an ex parte removal, they fail to explain why there was not sufficient time for Woo to seek a court order removing the children." See Southerland II, 521 F. Supp. 2d at 235 n.31. Nor would summary judgment be appropriate on the merits of the Southerland Children's Fourth Amendment unlawful-seizure claim, the district court said, because the defendants could not explain "why the particular circumstances that Woo encountered in the Southerland home established that there was imminent danger to the children's life or limb requiring removal in the absence of a court order." Id. at 234 n.29.
Both Southerland and the Southerland Children now appeal from the dismissal of each of their claims against Woo, except for one Fourth Amendment claim brought by all plaintiffs. The plaintiffs have not appealed the district court's adverse ruling as to their claim that Woo violated the Fourth Amendment by remaining in their home even after determining that the children listed on the Order Authorizing Entry were not present. We vacate and remand with respect to each of the plaintiffs' claims that have been preserved for appeal.
DISCUSSION
I. Standard of Review
"We review a district court's grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving part[ies] and drawing all reasonable inferences in their favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005). "Summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911 (1998); see Fed. R. Civ. P. 56(a).
II. Qualified Immunity
Qualified immunity shields public officials from liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "In general, public officials are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights." Holcomb v. Lykens, 337 F.3d 217, 220 (2d Cir. 2003) (internal quotation marks omitted). An officer is also entitled to qualified immunity "if officers of reasonable competence could disagree on the legality of the action at issue in its particular factual context." Manganiello v. City of N.Y., 612 F.3d 149, 165 (2d Cir. 2010) (internal quotation marks omitted).
III. Overview of Constitutional Law in the Context of the State's Removal of Children from Their Home
As we observed in a decision post-dating the events at issue in these appeals, "parents…have a constitutionally protected liberty interest in the care, custody and management of their children." Tenenbaum, 193 F.3d at 593; see also Troxel v. Granville, 530 U.S. 57, 65-66 (2000) (collecting cases concerning the "fundamental right of parents to make decisions concerning the care, custody, and control of their children"). "Children have a parallel constitutionally protected liberty interest in not being dislocated from the emotional attachments that derive from the intimacy of daily family association." Kia P. v. McIntyre, 235 F.3d 749, 759 (2d Cir. 2000) (brackets and internal quotation marks omitted), cert. denied, 534 U.S. 820 (2001); see also Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) ("The right to the preservation of family integrity encompasses the reciprocal rights of both parent and children."). The state's removal of a child from his or her parent may give rise to a variety of cognizable constitutional claims.
First, both the parents and the children may have a cause of action for violation of the Fourteenth Amendment under a theory of denial of procedural due process. The Fourteenth Amendment imposes a requirement that except in emergency circumstances, judicial process must be accorded both parent and child before removal of the child from his or her parent's custody may be effected. See, e.g., Kia P., 235 F.3d at 759-60; Tenenbaum, 193 F.3d at 593-94; Duchesne, 566 F.2d at 825-26. Both Southerland and the Southerland Children have asserted such a procedural due process claim against Woo in this case.
Second, a parent may also bring suit under a theory of violation of his or her right to substantive due process. Southerland does so here. Parents have a "substantive right under the Due Process Clause to remain together with their children without the coercive interference of the awesome power of the state." Tenenbaum, 193 F.3d at 600 (internal quotation marks omitted); see also, e.g., Anthony v. City of N.Y., 339 F.3d 129, 142-43 (2d Cir. 2003); Kia P., 235 F.3d at 757-58. Such a claim can only be sustained if the removal of the child "would have been prohibited by the Constitution even had the parents been given all the procedural protections to which they were entitled." Tenenbaum, 193 F.3d at 600 (emphasis in original). In other words, while a procedural due process claim challenges the procedure by which a removal is effected, a substantive due process claim challenges the "fact of the removal" itself. Bruker v. City of N.Y., 92 F. Supp. 2d 257, 266-67 (S.D.N.Y. 2000).
For such claims brought by children, however, we have concluded that the Constitution provides an alternative, more specific source of protection.13 When a child is taken into state custody, his or her person is "seized" for Fourth Amendment purposes. The child may therefore assert a claim under the Fourth Amendment that the seizure of his or her person was unreasonable. See Tenenbaum, 193 F.3d at 602. Such a claim belongs only to the child, not to the parent, although a parent has standing to assert it on the child's behalf. Id. at 601 n.13. In accordance with our order in Southerland I, 4 F. App'x at 37 n.2, the district court determined that the Southerland Children's substantive due process claim should be construed instead as a Fourth Amendment unlawful-seizure claim. See Southerland II, 521 F. Supp. 2d at 230 n.24.
Finally, depending on the circumstances in which a removal occurs, other Fourth Amendment claims might also be viable. Here, Southerland and the Southerland Children asserted two Fourth Amendment claims for unlawful search: one claim relating to Woo's entry into the Southerland home, and one (now abandoned) claim relating to Woo's remaining in the home even after determining that the Manning Children were not present. Both claims were based on an allegation that Woo made false statements to the Family Court in order to obtain the Order Authorizing Entry, and therefore that there was no probable cause to carry out a search of the Southerland apartment.
IV. The Fourth Amendment Unlawful-Search Claims
The district court determined that summary judgment was warranted on the plaintiffs' Fourth Amendment unlawful-search claims on two separate grounds. First, the district court concluded that Woo was entitled to qualified immunity under the "corrected affidavit" doctrine. See Southerland II, 521 F. Supp. 2d at 230-31. Second, the district court decided that Woo was entitled to summary judgment on the merits because no reasonable juror could find that Woo had knowingly made false or misleading statements in seeking to obtain the Order Authorizing Entry. Id. at 233. We disagree with both conclusions.
A. The Corrected-Affidavit Doctrine
We begin with the plaintiffs' argument that the district court erred in its application of the corrected-affidavit doctrine, under which a defendant who makes erroneous statements of fact in a search-warrant affidavit is nonetheless entitled to qualified immunity unless the false statements in the affidavit were "necessary to the finding of probable cause." Martinez v. City of Schenectady, 115 F.3d 111, 115 (2d Cir. 1997) (internal quotation marks omitted). In order to determine whether false statements were "necessary to the finding of probable cause," the court must "put aside allegedly false material, supply any omitted information, and then determine whether the contents of the 'corrected affidavit' would have supported a finding of probable cause." Id. (citation and internal quotation marks omitted). In applying the corrected-affidavit doctrine, qualified immunity is warranted only if, after correcting for the false or misleading statements, the affidavit accompanying the warrant was sufficient "to support a reasonable officer's belief that probable cause existed." Id. (internal quotation marks omitted).
The district court, which "assumed for purposes of the qualified immunity defense that Woo made false and misleading statements" in applying for the Order Authorizing Entry, Southerland II, 521 F. Supp. 2d at 230, correctly noted that the plaintiffs "would still have to demonstrate that those statements were necessary to the finding of probable cause for qualified immunity not to attach to Woo's actions," id. at 230-31 (citation and internal quotation marks omitted). The court determined that Woo was entitled to qualified immunity based on its conclusion that a corrected affidavit, containing all of the information available to Woo at the time the affidavit was made, would have supported a finding of probable cause to enter the home. Id. at 231.
We disagree. Section 1034(2) of the New York State Family Court Act, which provides the evidentiary standard for a showing of probable cause sufficient for the issuance of an investigative order, governed Woo's application to obtain the Order Authorizing Entry. The district court, in its September 2007 decision, cited the statute as it had been amended in January 2007. See id. at 224 n.7. But the version that governed at the time of Woo's application was materially different. Under the version of the statute that applied at the time of Woo's actions, the affiant was required to demonstrate "probable cause to believe that an abused or neglected child may be found on premises," N.Y. Fam. Ct. Act §1034(2) (McKinney's 1997) (emphasis added), presumably meaning the "premises" identified in the application submitted to the Family Court.
The district court should have engaged in its corrected-affidavit analysis with reference to the earlier law. The children that Woo listed on his application for the Order Authorizing Entry—the Manning Children and Ciara—were children who did not reside "on premises" in the Southerland home. The district court concluded that "a properly made application would still list Ciara Manning on the application because Southerland is her father and was the parent legally responsible for her care, even if she had run away." Southerland II, 521 F. Supp. 2d at 231. That may be relevant to an inquiry under the statute as amended in 2007, but it is not relevant to the appropriate question under the applicable version of the law: whether there existed probable cause for Woo to believe that Ciara Manning could be found "on premises" at the Southerland home. In fact, she, like the Manning Children, was not "on premises." And Woo had reason to know that she was not—from the information in the initial Intake Report transmitted to Woo; from the guidance counselor's statement to Woo that Southerland did not approve of the place where Ciara was staying; and from Southerland's own statements during his May 30 telephone conversation with Woo that Ciara was a runaway and did not live at his home.14
The plaintiff children point out that there were other deficiencies in the district court's corrected-affidavit analysis that undermine the court's conclusion that the information known to Woo at the time he applied for the Order Authorizing Entry would have supported a finding of probable cause. For example, Woo's application stated that Ciara "tried to kill herself by swallowing non-toxic paint," and that Southerland "did not take Ciara to a medical doctor and refused to take Ciara for psychiatric evaluation." Application for Authorization to Enter Premises dated June 6, 1997, at 1 ("June 6 Application"), Ex. C to Silverberg Decl. The plaintiff children argue that the application omitted several relevant facts that, according to Southerland's version of events, were known to Woo at that time: that the paint-swallowing incident took place at school, not at home; that Southerland was willing to obtain treatment for his daughter, but had trouble doing so, precisely because she was not living in his home; and that Southerland had attempted to assert control over his daughter by applying for PINS warrants. Southerland Children's Br. at 30-31; see also id. at 28-36 (disputing additional assertions of fact, such as whether the swallowing of paint indeed was a suicide attempt). As the plaintiff children put it:
Woo's omission of the fact that the incident took place at school allowed the court to assume that the suicide attempt took place in Southerland's residence. The overall picture painted by Woo is that Southerland's daughter attempted to kill herself, that Southerland did nothing about it, and refused to let others do something about it as well. By omitting the fact that the daughter was not even living at the Southerland apartment, Woo gave the family court the impression that it was necessary to allow Woo to enter the apartment in order to render assistance to a suicidal teenager in the home of a parent who could not be bothered to help her and who prevented the efforts of ACS to provide help to her.
Id. at 31-32. The district court included much of this information in its recitation of facts, Southerland II, 521 F. Supp. 2d at 222-23 & nn.4 & 5, but it did not factor these considerations into its application of the corrected-affidavit doctrine.
We have observed that the materiality of a misrepresentation or omission in an application for a search warrant is a mixed question of law and fact.15 Velardi v. Walsh, 40 F.3d 569, 574 (2d Cir. 1994). "The legal component depends on whether the information is relevant to the probable cause determination under controlling substantive law." Id. "The weight that a neutral magistrate would likely have given such information," however, is a question for the factfinder. Id. In such circumstances, a court may grant summary judgment to a defendant based on qualified immunity only where "the evidence, viewed in the light most favorable to the plaintiffs, discloses no genuine dispute that a magistrate would have issued the
warrant on the basis of the corrected affidavits." Walczyk v. Rio, 496 F.3d 139, 158 (2d Cir. 2007) (emphasis, citation, and internal quotation marks omitted). We cannot conclude as a matter of law—although a trier of fact might so conclude after an evidentiary hearing—that the Family Court, in deciding whether there was "probable cause to believe that an abused or neglected child may have been found in the Southerland home," N.Y. Fam. Ct. Act §1034(2), would have issued the order had a corrected affidavit been presented to it.
. Knowing or Reckless Misstatements of Fact
The district court also concluded that even if the corrected-affidavit doctrine did not apply, summary judgment was appropriate because, on the merits, "no reasonable juror could infer that Woo knowingly and intentionally made false and misleading statements to the family court in order to receive an order authorizing his entry into the Southerland home." Southerland II, 521 F. Supp. 2d at 233. Based on that premise, the district court concluded that "the Order Authorizing Entry was issued with probable cause and Woo's entry into and search of Southerland's home did not violate plaintiffs' Fourth Amendment rights." Id.
We disagree. If the district court were correct that Woo did not knowingly make false and misleading statements, that would entitle Woo to qualified immunity, but would not necessarily render his underlying conduct lawful. When a person alleges a Fourth Amendment violation arising from a search executed by a state official, "the issuance of a search warrant…creates a presumption that it was objectively reasonable for the defendant to believe that the search was supported by probable cause" so as to render the defendant qualifiedly immune from liability. Martinez, 115 F.3d at 115. To defeat the presumption of reasonableness, a plaintiff must make "a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit and that the allegedly false statement was necessary to the finding of probable cause" for which the warrant was issued. Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (internal quotation marks omitted), cert. denied, 505 U.S. 1221 (1992).
We need not consider further whether the district court erred by confusing the qualified immunity and merits analyses, however, because we also do not agree with the district court's premise that no reasonable juror could find that Woo did not knowingly or recklessly make false statements. We think that several disputed facts, taken together and viewed in the light most favorable to the plaintiffs, would permit—though not require—a reasonable factfinder to find otherwise.
First, substantial evidence, viewed in the light most favorable to the plaintiffs, suggests that Woo had reason to know that Ciara was not residing at the Southerland home when he applied for the Order Authorizing Entry. For example, the May 29 Intake Report informed ACS that Ciara "may be staying out of the home in an improper enviro[n]ment." Intake Report at 3. And Southerland told Woo on May 30 that Ciara was a runaway and that he had taken out PINS warrants against her. Southerland II, 521 F. Supp. 2d at 223. A reasonable juror could find that Woo's application to the Family Court on June 6 was knowingly or recklessly misleading in stating: "I have reasonable cause to believe that the above named children including Ciara may be found at the above premises the Southerland home." June 6 Application at 1.
Second, evidence in the record, again viewed in the light most favorable to the plaintiffs, would permit a reasonable juror to conclude that Woo had knowingly or recklessly misrepresented the nature of the paint-swallowing incident in his application. About one week before June 6, Woo learned from a school counselor that Ciara had "swallowed non-toxic paint at school" and had been "acting out and expressing thoughts of suicide." Woo Decl. ¶6. Although the counselor informed Woo that Southerland had failed to seek medical treatment for Ciara, see id., Southerland later explained to Woo that the reason he had not taken Ciara for treatment was that she did not reside with Southerland and did not listen to him, id. ¶8. Yet Woo's application represented to the Family Court that Ciara "tried to kill herself by swallowing non-toxic paint" and that Southerland "did not take her to a medical doctor and refused to take her for psychiatric evaluation." June 6 Application at 1. A reasonable trier of fact might find the foregoing statements to
be materially misleading insofar as they characterize Ciara's paint-swallowing as a suicide attempt; fail to note that the incident occurred at school rather than in Southerland's home; and omit the fact that Ciara may have been living outside the home and free from Southerland's control.
Finally, the district court overlooked the parties' dispute concerning Woo's knowledge about which children resided in the Southerland apartment. The district court stated that Woo "had reason to believe that the Manning children would be found in the Southerland apartment because of a separate investigation of the Manning children and his personal observation that there were other children in the Southerland home who had not yet been positively identified." Southerland II, 521 F. Supp. 2d at 233. But, as the district court opinion elsewhere observes, on June 4, 1997—two days before he applied for the Order Authorizing Entry—Woo met the Southerland Children emerging from the Southerland apartment and wrote down their names. See id. at 223-24 & n.6. We think that there is a triable issue of fact as to whether Woo in fact believed, as he wrote in his application to the Family Court, that it was the Manning Children and not the Southerland Children who were in the Southerland home, or whether he recklessly confused or knowingly conflated the two.
Although these alleged misrepresentations may turn out to be no more than accidental misstatements made in haste, the plaintiffs have nonetheless made a "substantial preliminary showing" that Woo knowingly or recklessly made false statements in his application for the Order Authorizing Entry. Golino, 950 F.2d at 870 (internal quotation marks omitted). This showing rebuts the presumption of reasonableness that would otherwise apply to shield Woo with qualified immunity at the summary judgment stage.
In sum, because we conclude that genuine issues of material fact exist, both as to whether Woo knowingly or recklessly made false statements in his affidavit to the Family Court and as to whether such false statements were necessary to the court's finding of probable cause, we vacate the district court's grant of summary judgment on the plaintiffs' Fourth Amendment unlawful-search claims.
Once again, we note that a trier of fact might, after review of the evidence, conclude that the errors in the June 6 Application were either accidental or immaterial. We vacate the grant of summary judgment because we cannot reach that conclusion ourselves on the current record as a matter of law.
V. The Plaintiffs' Procedural Due Process Claims
Southerland and the Southerland Children each assert a procedural due process claim against Woo. The district court held that Woo was entitled to qualified immunity on these claims. We disagree.
A. Procedural Due Process in the Child-Removal Context
"'As a general rule…before parents may be deprived of the care, custody, or management of their children without their consent, due process—ordinarily a court proceeding resulting in an order permitting removal—must be accorded to them.'" Nicholson v. Scoppetta, 344 F.3d 154, 171 (2d Cir. 2003) (quoting Tenenbaum, 193 F.3d at 593). "However, 'in emergency circumstances, a child may be taken into custody by a responsible State official without court authorization or parental consent.'" Id. (quoting Tenenbaum, 193 F.3d at 594). "'If the danger to the child is not so imminent that there is reasonably sufficient time to seek prior judicial authorization, ex parte or otherwise, for the child's removal, then the circumstances are not emergent.'" Id. (quoting Tenenbaum, 193 F.3d at 594).
To prevail, "the government must offer 'objectively reasonable' evidence that harm is imminent." Id. Although we have not exhaustively set forth the types of factual circumstances that constitute imminent danger justifying emergency removal as a matter of federal constitutional law, we have concluded that these circumstances include "the peril of sexual abuse," id., the "risk that children will be 'left bereft of care and supervision,'" id. (quoting Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991)), and "immediate threats to the safety of the child," Hurlman, 927 F.2d at 80 (internal quotation marks omitted); see also N.Y. Fam. Ct. Act §1024(a) (defining emergency circumstances, for the purposes of state law, as "circumstances" wherein a child's remaining in the parent's care and custody "presents an imminent danger to the child's life or health").
B. Analysis
The district court correctly concluded that summary judgment was not appropriate on the underlying merits of the plaintiffs' procedural due process claims because Woo did not demonstrate, as a matter of law, that he did not have time to obtain a court order authorizing the removal of the Southerland Children before taking that act. See Southerland II, 521 F. Supp. 2d at 235 n.31 (citing Nicholson, 344 F.3d at 171). The court nonetheless granted summary judgment on qualified immunity grounds, concluding that "the law concerning procedural due process rights in the context of child removals was not clearly defined at the time of the events in question." Id. at 232.
But in Hurlman, we recognized that officials may remove a child from the custody of the parent without consent or a prior court order only in "emergency" circumstances. Emergency circumstances mean circumstances in which the child is immediately threatened with harm, for example, where there exists an immediate threat to the safety of the child, or where the child is left bereft of care and supervision, or where there is evidence of serious ongoing abuse and the officials have reason to fear imminent recurrence.
Hurlman, 927 F.2d at 80 (citations and internal quotation marks omitted); see also Robison v. Via, 821 F.2d 913, 921-22 (2d Cir. 1987) (describing the "'emergency' circumstances" exception and collecting cases).16 It thus was clearly established at the time of the Southerland Children's removal that state officials could not remove a child from the custody of a parent without either consent or a prior court order unless "'emergency' circumstances" existed. Hurlman, 927 F.2d at 80; see also Cecere v. City of N.Y., 967 F.2d 826, 829-30 (2d Cir. 1992) (setting forth "clearly established" procedural due process principles); see also Velez v. Reynolds, 325 F. Supp. 2d 293, 314-15 (S.D.N.Y. 2004) (explaining the principles).
In concluding that the law of procedural due process was not clearly established in the child-removal context in 1997, the district court in the case at bar relied primarily on our decision in Tenenbaum. There we held as a matter of first impression that "where there is reasonable time consistent with the safety of the child to obtain a judicial order, the 'emergency' removal of a child is unwarranted." Tenenbaum, 193 F.3d at 596. Because this principle was not clearly established in 1990—the year the underlying conduct at issue in Tenenbaum took place—we affirmed the district court's decision in that case that the defendants were entitled to qualified immunity. We also made clear, however, that even in 1990, "it was established as a general matter…that 'except where emergency circumstances exist' a parent can 'not be deprived' of the custody of his or her child 'without due process, generally in the form of a predeprivation hearing.'" Id. at 596 (quoting Hurlman, 927 F.2d at 79).
In the present case, the plaintiffs assert "not solely that defendants had sufficient time to obtain a court order, but that the circumstances in which Woo found the children did not warrant their removal at all, whether evaluated by pre—or post—Tenenbaum standards." Southerland Children's Br. at 39.17 We understand the plaintiffs' contention to be that "emergency circumstances" warranting removal simply did not exist.
The district court did not decide as a matter of law that emergency circumstances existed in the Southerland home. To the contrary, the district court concluded that "viewing the facts in the light most favorable to plaintiffs, a reasonable juror could determine that the circumstances Woo encountered did not demonstrate an imminent danger to the children's life or limb." Southerland II, 521 F. Supp. 2d at 234 n.29. The court further decided that "a reasonable juror could find that there was sufficient time to acquire a court order prior to the removal." Id. at 235 n.31. In light of those determinations, with which we agree, and our assessment that the relevant law was clearly established in 1997, we cannot conclude as a matter of law that "it was objectively reasonable for Woo to believe that his acts did not violate those clearly established rights." Holcomb, 337 F.3d at 220. Qualified immunity therefore is not available to Woo on the plaintiffs' procedural due process claims at the summary judgment stage. Because summary judgment also cannot be granted to the defendants on the underlying merits of these claims,18 we vacate the grant of summary judgment to Woo as to the procedural due process claims.
VI. Southerland's Substantive Due Process Claim
Southerland asserts a substantive due process claim against Woo under the Fourteenth Amendment. The district court held not only that qualified immunity attached to Woo's actions, but also that summary judgment would be warranted on the merits even in the absence of qualified immunity. We disagree with both conclusions.
A. Substantive Due Process in the Child-Removal Context
Substantive due process guards a person's rights "against the government's 'exercise of power without any reasonable justification in the service of a legitimate governmental objective.'" Tenenbaum, 193 F.3d at 600 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). "To establish a violation of substantive due process rights, a plaintiff must demonstrate that the state action was 'so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'" Okin v. Vill. of Cornwall-on-Hudson Police Dep't, 577 F.3d 415, 431 (2d Cir. 2009) (quoting Lewis, 523 U.S. at 847 n.8). The interference with the plaintiff's protected right must be "'so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even were it accompanied by full procedural protection.'" Anthony, 339 F.3d at 143 (quoting Tenenbaum, 193 F.3d at 600); see also Lewis, 523 U.S. at 840 (doctrine of substantive due process "bars certain government actions regardless of the fairness of the procedures used to implement them" (internal quotation marks omitted)). Thus, in the child-removal context, we ask whether "the removal…would have been prohibited by the Constitution even had the plaintiffs been given all the procedural protections to which they were entitled." Tenenbaum, 193 F.3d at 600 (emphasis omitted).
We have long recognized that parents have a "constitutionally protected liberty interest in the care, custody and management of their children," id. at 593, and that the deprivation of this interest is actionable under a theory of substantive due process, see id. at 600 (recognizing a "substantive right under the Due Process Clause 'to remain together without the coercive interference of the awesome power of the state'" (quoting Duchesne, 566 F.2d at 825)). We have also observed, however, that "although parents enjoy a constitutionally protected interest in their family integrity, this interest is counterbalanced by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves." Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 104 (2d Cir. 1999) (internal quotation marks omitted), cert. denied, 528 U.S. 1155 (2000).
We have explained that, in part because the law contemplates a careful balancing of interests, a parent's substantive constitutional rights are not infringed if a caseworker, in effecting a removal of a child from the parent's home, has a reasonable basis for thinking that a child is abused or neglected. See id. "This Circuit has adopted a standard governing case workers which reflects the recognized need for unusual deference in the abuse investigation context. An investigation passes constitutional muster provided simply that case workers have a 'reasonable basis' for their findings of abuse." Id.; see also id. at 108 (concluding that the "reasonable basis test" requires that caseworkers' decisions to substantiate an allegation of child abuse "be consistent with some significant portion of the evidence before them"). We have applied this "reasonable basis" standard from time to time in recent years. See, e.g., Nicholson, 344 F.3d at 174; Phifer v. City of N.Y., 289 F.3d 49, 60 (2d Cir. 2002); Kia P., 235 F.3d at 758-59.
We have also recognized that substantive due process claims in the child-removal context have a temporal dimension. Because state interference with a plaintiff's liberty interest must be severe before it rises to the level of a substantive constitutional violation, see, e.g., Anthony, 339 F.3d at 143, "brief removals of a child from a parent's home generally do not rise to the level of a substantive due process violation, at least where the purpose of the removal is to keep the child safe during investigation and court confirmation of the basis for removal," Nicholson, 344 F.3d at 172 (citing Tenenbaum, 193 F.3d at 600-01 & n.12); see also Cecere, 967 F.2d at 830 (ruling that plaintiff's due process claim failed because a "brief" four-day removal, executed "in the face of a reasonably perceived emergency," did not violate due process); Joyner ex rel. Lowry v. Dumpson, 712 F.2d 770, 779 (2d Cir. 1983) (no substantive violation where temporary transfer of custody to foster-care system did not "result in parents' wholesale relinquishment of their right to rear their children").
B. Analysis
The district court, in deciding that qualified immunity protection prevailed, concluded that it was objectively reasonable for Woo to think that Southerland's substantive due process rights were not being violated because "brief removals of children from their parents generally do not rise to the level of a substantive due process violation," Southerland II, 521 F. Supp. 2d at 232 (brackets and internal quotation marks omitted), and because the Southerland Children "were removed in the context of a child protective investigation in which removal would be subject to court confirmation," id.; see also id. at 234 (suggesting that "a family court judge confirmed the removal" at a "timely post-deprivation hearing").
We agree in principle. The removal of a child from his or her parent does not violate the parent's substantive due process rights if a post-removal judicial proceeding is promptly held to confirm that there exists a reasonable basis for the removal. The period of time in which the child and parent are separated at the sole instruction of the defendant is, in such a case, not severe enough to constitute a substantive due process violation by the defendant. See Nicholson, 344 F.3d at 172; Tenenbaum, 193 F.3d at 600-01. If it were clear in the record that the removal of the Southerland Children was confirmed by a prompt and adequate judicial confirmation proceeding, we would agree with the district court that summary judgment would be appropriate on that basis.
But the record is not sufficiently clear for us to determine whether such a post-removal judicial proceeding occurred, and if so, the nature of it. The district court stated that the Southerland Children were removed and held in ACS custody "pending a timely post-deprivation hearing where a family court judge confirmed the removal." Southerland II, 521 F. Supp. 2d at 234. And the court had previously observed that the Southerland Children "remained in custody without a court order until the morning of June 12, 1997"—about forty-eight hours—"at which time Woo obtained a court order confirming the removal." Southerland v. City of N.Y., No. 99-cv-3329, 2006 WL 2224432, at *1, 2006 U.S. Dist. LEXIS 53582, at *4 (E.D.N.Y. Aug. 2, 2006). Although the parties do not appear to dispute that a post-removal judicial confirmation proceeding was held, nor do they dispute that this proceeding took place within several days after removal, they provide no further detail upon which we can assess the nature of the proceeding in terms of its timeliness and adequacy.19
We are also unable to determine from the present record on what factual basis the Family Court decided that the continued removal of the Southerland Children was warranted. We do not know, for example, whether its decision to confirm the removal was based solely on written submissions by Woo to the same effect and containing the same errors as Woo's application for the Order Authorizing Entry.
Apparently relying on the understanding that the Family Court had promptly confirmed the Southerland Children's removal, the district court concluded that no reasonable trier of fact could find that the removal of the Children was "so 'shocking, arbitrary, and egregious' that Southerland's substantive due process rights were violated." Southerland II, 521 F. Supp. 2d at 235 (citation omitted). For much the same reason that we conclude that material questions of fact preclude summary judgment on the merits of the plaintiffs' procedural due process claims, however, we conclude that summary judgment was inappropriate on the merits of Southerland's substantive due process claim.
A plaintiff's substantive due process claim fails if "there is an objectively reasonable basis for believing that parental custody constitutes a threat to the child's health or safety." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996). Although this "reasonable basis" standard appears to impose a lesser burden on a defendant than the "emergency circumstances" standard applicable to procedural due process claims, summary judgment is nevertheless not appropriate unless "there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." D'Amico, 132 F.3d at 149.
The facts concerning the nature of Southerland's behavior during Woo's investigation and the conditions in the Southerland apartment at the time that Woo effected the removal remain hotly contested by the parties. For example, while Woo contends that the apartment lacked enough food, lighting, and bedding; that the Children were malodorous; and that various safety hazards were present, Southerland has tendered admissible evidence (albeit largely in the form of his own testimony) that each of those factual assertions is false. If the trier of fact were to credit Southerland's account, we cannot say that it would be unreasonable for it to then conclude that a reasonable caseworker in Woo's position lacked an "objectively reasonable basis" for removing the Children, Gottlieb, 84 F.3d at 518, and thus that Woo's actions were "shocking, arbitrary, and egregious," Anthony, 339 F.3d at 143 (internal quotation marks omitted). Moreover, in the absence of record evidence as to the substance of the post-removal judicial confirmation proceeding, we cannot conclude that the fact that the Family Court confirmed the removal of the Southerland Children suffices to show that Woo's conduct had an objectively reasonable basis. Cf. Southerland II, 521 F. Supp. 2d at 234-35.
Finally, we consider whether Woo is nonetheless entitled to summary judgment on the basis of qualified immunity. As noted, qualified immunity is available to defendants "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818; see also Cornejo v. Bell, 592 F.3d 121, 128 (2d Cir.), cert. denied, 131 S. Ct. 158 (2010). When a defendant official invokes qualified immunity as a basis for summary judgment, a court must consider not only whether evidence in the record suggests a violation of a statutory or constitutional right, but also "whether that right was clearly established at the time of the alleged violation." Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). Thus, if it could be shown that, at the time of the events in question, Woo lacked a legal basis upon which he could conclude that his actions would violate Southerland's substantive due process rights, Woo would be entitled to qualified immunity.
The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer [in the position of the defendant] that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). In answering that question, we consider: "(1) whether the right was defined with reasonable specificity; (2) whether Supreme Court or court of appeals case law supports the existence of the right in question, and (3) whether under preexisting law a reasonable defendant would have understood that his or her acts were unlawful." Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010). "The task of framing the right at issue with some precision is critical in determining whether that particular right was clearly established at the time of the defendants' alleged violation." Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010); see also Wilson v. Layne, 526 U.S. 603, 609 (1999). Although the matter of whether a right at issue is clearly established is a question of law, Higazy v. Templeton, 505 F.3d 161, 170 (2d Cir. 2007), that question is "tied to the specific facts and context of the case," Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir. 2007).
In 1997, when Woo effected the removal, it was well established as a general matter that parents possess a substantive right under the Due Process Clause of the Fourteenth Amendment to exercise care, custody, and control over their children. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982); Gottlieb, 84 F.3d at 518; Joyner ex rel. Lowry, 712 F.2d at 777. It was also the law, however, that where "parental custody constitutes a threat to the child's health or safety, government officials may remove a child from his or her parents' custody at least pending investigation." Gottlieb, 84 F.3d at 518; see also Stanley v. Illinois, 405 U.S. 645, 649-53 (1972); Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997).
We therefore determined prior to 1997 that where the state has an "objectively reasonable basis" for removing a child from his or her parent, the parent's substantive constitutional rights are not infringed. Gottlieb, 84 F.3d at 518; see generally id. at 520; van Emrik v. Chemung County Dep't of Soc. Servs., 911 F.2d 863, 866 (2d Cir. 1990). We also repeatedly assured potential defendants that qualified immunity would be available to "protect state officials in choosing between difficult alternatives, provided that there is an objectively reasonable basis for their decision, whichever way they make it." van Emrik, 911 F.2d at 866; see also Defore v. Premore, 86 F.3d 48, 50 (2d Cir. 1996) (per curiam) (qualified immunity exists to "insure that publicly employed caseworkers have adequate latitude to exercise their professional judgment in matters of child welfare").
In 1999, two years after the events in question here, we summarized the state of the law in Wilkinson: "Although parents enjoy a constitutionally protected interest in their family integrity, this interest is counterbalanced by the 'compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves.'" Wilkinson, 182 F.3d at 104 (quoting Manzano v. S.D. Dep't of Soc. Servs., 60 F.3d 505, 510 (8th Cir. 1995) (internal quotation marks omitted)). We observed that "the difficulty of balancing the weighty interests apparent in the child abuse context…has prompted courts to impose few concrete restrictions on case workers, in exercising their discretion, short of certain obvious extremes." Id. We described those "extremes" as including circumstances where a caseworker "ignores overwhelming exculpatory information" or "manufactures false evidence." Id. We concluded in dicta that our decisions to that date had left the defendants at bar "with little or no indication that their alleged misconduct, as near as it was to the constitutional borderline, would have even implicated serious constitutional concerns." Id. at 107; see also Patel v. Searles, 305 F.3d 130, 139 (2d Cir. 2002), cert. denied, 538 U.S. 907 (2003). Our discussion in Wilkinson would seem to suggest that perhaps there was a lack of clearly established law available to guide Woo's conduct.
We nonetheless cannot conclude as a matter of law that, in 1997, Woo lacked sufficient legal guidance by which to discern the lawfulness of his actions. Assuming, as we must at the summary judgment stage, that the factual circumstances are as Southerland, not Woo, describes them, and resolving all credibility questions and drawing all reasonable inferences in Southerland's favor, we are not able to say that Woo would then have lacked a legal basis for understanding that removing the children from their home would be unlawful. Indeed, the district court here was also of the view that "Southerland's substantive due process rights were clearly established at the time of the removal of the children." Southerland II, 521 F. Supp. 2d at 232.
We therefore cannot conclude on this record that the principles of law applicable to the facts as we must view them on appeal from a grant of summary judgment were not clearly established in 1997. Woo is thus not entitled at this stage to qualified immunity on Southerland's substantive due process claim, although, again, once the relevant disputes of material fact are resolved, the district court might eventually conclude that Woo is entitled to such immunity.
VII. The Southerland Children's Fourth Amendment Unlawful-Seizure Claim
Finally, the Southerland Children assert a claim for violation of their own substantive due process rights, which the district court recharacterized as a claim of unlawful seizure under the Fourth Amendment. See Southerland II, 521 F. Supp. 2d at 227 n.22, 230 n.24. The district court concluded that Woo was entitled to qualified immunity because "prior to the Court of Appeals' decision in Tenenbaum in 1999, there was no clear application of Fourth Amendment standards in the child removal context." Id. at 231. Although we agree with the district court's observation that this Circuit had not yet applied Fourth Amendment unlawful-seizure principles in the child-removal context by 1997, we think that the district court erred by conducting its inquiry solely by reference to the Fourth Amendment.
Our decision in Tenenbaum effected a change in the legal framework applicable to a child's claim for substantive constitutional violations arising out of the child's removal from his or her parent's home. There, the plaintiffs contended that "[their daughter's] temporary removal for the purpose of subjecting her to a medical examination violated their and [the daughter's] substantive due-process rights." Tenenbaum, 193 F.3d at 599. Relying on Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion of Rehnquist, C.J.), we observed that where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.
Tenenbaum, 193 F.3d at 599 (brackets and internal quotation marks omitted). We said that "'substantive due process analysis is…inappropriate…if the claim is covered by the Fourth Amendment.'" Id. at 600 (quoting Lewis, 523 U.S. at 843) (second brackets in original; other internal quotation marks omitted). We then concluded that the daughter's "removal and her examination constituted a seizure and search, respectively, under the Fourth Amendment," id., and that her claim "therefore 'must be analyzed under the standard appropriate to [the Fourth Amendment], not under the rubric of substantive due process.'"20
Id. (quoting United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)).
The fact that Tenenbaum changed the legal "rubric" applicable to the Southerland Children's constitutional claims, however, is not determinative of whether their rights were clearly established in 1997. It would be inappropriate, we think, to afford Woo qualified immunity on the Southerland Children's claims solely because, two years after the events in question, we shifted the constitutional framework for evaluating those claims from the Fourteenth to the Fourth Amendment.
We reached a similar conclusion in Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir.), cert. denied, 552 U.S. 818 (2007). There we made clear that the constitutional "right to be free from prolonged detention caused by law enforcement officials' mishandling or suppression of exculpatory evidence," id. at 211, was a species of the right to be free from unlawful seizure under the Fourth Amendment, not a substantive due process right under the Fourteenth Amendment, see id. at 208-09. In then proceeding to undertake a qualified immunity inquiry, we cautioned that our "clarification [of the law was] of no consequence to the question of whether the right was clearly established [at the time of the relevant events], because the proper inquiry is whether the right itself—rather than its source—is clearly established." Id. at 212 (collecting cases; emphasis in original). Here, as in Russo, in inquiring whether there was clearly established law to govern the Southerland Children's claims in 1997, we look not only to authorities interpreting the Fourth Amendment, but to all decisions concerning the same substantive right.
At the time of the events in question in this case, a child's claim for violation of his or her right to "preservation of family integrity," Duchesne, 566 F.2d at 825, would likely have been understood to arise under the substantive due process guarantee of the Fourteenth Amendment. This right had been recognized in our case law by 1997, see Joyner ex rel. Lowry, 712 F.2d at 777-78; Rivera v. Marcus, 696 F.2d 1016, 1026 (2d Cir. 1982); Leonhard v. United States, 633 F.2d 599, 618 (2d Cir. 1980) (collecting cases); Duchesne, 566 F.2d at 825, although it had been less frequently litigated than the corresponding substantive parental right.
As with the corresponding parental right, however, the law in 1997 also recognized the countervailing principle that the state may remove children from the custody of their parents without violating the children's constitutional rights where there is a reasonable basis for concluding that the children are abused or neglected. See, e.g., Rivera, 696 F.2d at 1017.
For much the same reason that we determined that Woo is not entitled to qualified immunity as a matter of law on the current record as to Southerland's substantive due process claim, resolving all disputed facts in the plaintiffs' favor for these purposes, we conclude that a reasonable caseworker in Woo's position would not have lacked a sufficient legal basis for knowing that his conduct under those circumstances would infringe upon the substantive constitutional rights of the Southerland Children. As with the other claims addressed in these appeals, though, the district court may yet conclude on remand and after further development of the facts that Woo is entitled to qualified immunity in this context.
Finally, we note that the district court concluded that, in the absence of qualified immunity protection, Woo would not be entitled to summary judgment on the merits of the Southerland Children's Fourth Amendment unlawful-seizure claim. See Southerland II, 521 F. Supp. 2d at 234 n.29. We have no reason to disturb that ruling on appeal.
CONCLUSION
For the foregoing reasons, we vacate the district court's grant of summary judgment on each of the plaintiffs' claims that have been preserved for appeal: (1) Southerland's and the Southerland Children's claims for Fourth Amendment violations arising out of the allegedly unlawful search of the Southerland home; (2) Southerland's and the Southerland Children's claims for violations of procedural due process under the Fourteenth Amendment; (3) Southerland's claim for violation of substantive due process under the Fourteenth Amendment; and (4) the Southerland Children's claim for unlawful seizure under the Fourth Amendment. We remand for further proceedings.
*. The Clerk of Court is directed to amend the official caption in accordance with the foregoing.
1. We refer throughout this opinion to asserted Fourth Amendment rights of the plaintiffs. Inasmuch as the defendants are state and not federal actors, of course, whatever rights the plaintiffs have are "under the Fourth Amendment, as applied to the States under the Fourteenth Amendments" Due Process Clause. Kia P. v. McIntyre, 235 F.3d 749, 761 (2d Cir. 2000); see Mapp v. Ohio, 367 U.S. 643, 655 (1961).
2. Judge Sifton passed away while these appeals were pending.
3. Southerland later testified that the school contacted him with a medical referral after the paint-swallowing incident, and that he had tried to get Ciara to go to the appointment that was scheduled for her, but that she refused to go.
4. Woo listed the Manning Children's names at the top of the application, along with Southerland's name and the address of the Southerland apartment. The body of the application states in its entirety:
I, Timothy Woo, Caseworker for ACS, am a person conducting a child protective investigation pursuant to the Social Services Law. I have reasonable cause to believe that the above named children may be found at the above premises. I have reason to believe that the children are abused or neglected children. The reasons and the sources of information are as follows:
That on May 12, 1997, Sierra Manning, age 16 tried to kill herself by swallowing non-toxic paint. Mr. Sutherland did not take Sierra to a medical doctor and refused to take Sierra for psychiatric evaluation.
Mr. Sutherland has refused to allow the Administration for Children's Services into his home to speak to the above named children.
WHEREFORE, the applicant moves for an order authorizing the Administration for Children's Services accompanied by police to enter the premises to determine whether the above named children are present and to proceed thereafter with its child protective investigation.
Application for Authorization to Enter Premises dated June 6, 1997, Ex. C to Silverberg Decl.
5.The district court summarized Woo's and Balan's stated reasons for removing the Children as including: the seriousness of the initial allegation in the Intake Report—that Ciara had attempted suicide; that Southerland had failed to seek medical assistance for Ciara or for Venus; that he had resisted allowing ACS to visit his home; that he had refused to accept ACS services or assistance; that the home lacked food and adequate light; that the use of multiple extension cords for the electronic equipment was dangerous; and that the children were dirty. This combination of factors, according to Woo and Balan, "established in their minds that Southerland could not parent the children responsibly." Southerland II, 521 F. Supp. 2d at 225.
6. After the Southerland Children's removal, Woo brought Venus "to a hospital based on the instructions of a nurse at the agency that first examined the children. At the hospital, the wound was dressed and the child received a tetanus shot." Southerland II, 521 F. Supp. 2d at 225 n.13.
7. On March 14, 2007, Southerland made a pro se submission to the district court requesting that the court take judicial notice of a number of documents, including a declaration by Ciara Manning that had been sworn on April 20, 2002. In that declaration, Ciara stated that Southerland had never molested or abused her in any way and that the statements she made previously to Woo and to the Family Court to that effect were false. See Pro Se Submission of Sonny B. Southerland at 26-27 (Dkt. No. 192), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Mar. 14, 2007). 13
8. Michael G. O'Neill was appointed as counsel for both Southerland and the Southerland Children. In April 2004, Southerland resumed proceeding pro se before the district court, while Mr. O'Neill continued to represent the Southerland Children (including Venus and Sonny Jr., even after they were no longer minors). In April 2004, the district court also appointed a guardian ad litem to represent the Southerland Children's interests. Southerland II, 521 F. Supp. 2d at 221 n.1. In the instant appeals, Southerland represents himself pro se, while Mr. O'Neill continues to represent the Southerland Children.
9. The amended complaint did not name as defendants or assert any claims against any of the other thirty-nine defendants that had been named by Southerland in his original pro se complaint. Additionally, although Ciara was identified as a plaintiff in the original complaint, she was dropped from the suit when the amended complaint was filed.
10. The amended complaint also joins nine John Doe defendants, including all persons who "supervis[ed], monitored and assisted Woo in his actions with respect to the Southerland Children." Am. Compl. ¶39 (Dkt. No. 75), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002). The complaint asserts that "said Does are individually liable to Southerland for the deprivation of his constitutional rights and the constitutional rights of the Southerland Children as alleged herein." Id.
In their briefing on appeal, the plaintiffs do not address these John Doe defendants. We conclude that the plaintiffs have abandoned their claims against the John Does. We note that even if the plaintiffs now sought to amend their complaint to identify the John Doe defendants, the claims against the newly named defendants would be time-barred. See Tapia-Ortiz v. Doe, 171 F.3d 150, 151-52 (2d Cir. 1999) (per curiam); Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 468-70 (2d Cir. 1995), modified, 74 F.3d 1366 (2d Cir. 1996).
11. In so doing, the district court relied upon our statement, when the case was previously on appeal, that "the children's claims for unreasonable seizure would proceed under the Fourth Amendment rather than the substantive component of the Due Process Clause." Southerland I, 4 F. App'x at 37 n.2 (citing Kia P. v. McIntyre, 235 F.3d 749, 757-58 (2d Cir. 2000)).
12. The district court later permitted the Southerland Children to assert their failure-to-train claim against the City not only with respect to the police, but also with respect to ACS. See Southerland II, 521 F. Supp. 2d at 235 n.34.
13. "Where another provision of the Constitution provides an explicit textual source of constitutional protection, a court must assess a plaintiff's claims under that explicit provision and not the more generalized notion of substantive due process." Kia P., 235 F.3d at 757-58 (quoting Conn v. Gabbert, 526 U.S. 286, 293 (1999)) (brackets and internal quotation marks omitted).
14. The defendants also argue, with respect to the probable cause determination, that irrespective of the requirements of New York Family Court Act §1034(2), Woo was required to visit the Southerland home under a provision of the New York Social Services Law that requires that, within twenty-four hours of receipt of a "report of suspected child abuse or maltreatment" as provided for under New York Social Services Law §424(1), ACS must undertake an investigation that includes "an evaluation of the environment of the child named in the report and any other children in the same home," id. §424(6)(a). However, considering that Woo had reason to know that Ciara, the child identified in the report, was not living at the Southerland home—and, indeed, reason to know that none of the children named in his application to the Family Court were living there—his reliance on this provision of the Social Services Law fails. If Ciara was not living "on premises" at the Southerland home, Woo was not entitled to enter the home to evaluate this "environment," nor to evaluate the other children living there.
15. In child-abuse investigations, a Family Court order is equivalent to a search warrant for Fourth Amendment purposes. See Nicholson v. Scoppetta, 344 F.3d 154, 176 (2d Cir. 2003); Tenenbaum, 193 F.3d at 602.
16. We disagree with the defendants' assertion that Hurlman and Robison are not controlling here because the state officers in those cases were unlawfully on the premises, whereas Woo had a court order (albeit a disputed one) to enter the Southerland 16 We disagree with the defendants' assertion that Hurlman and Robison are not controlling here because the state officers in those cases were unlawfully on the premises, whereas Woo had a court order (albeit a disputed one) to enter the Southerland
17. In Tenenbaum, a removal was carried out because the child had reported—albeit under questionable circumstances—that her father had sexually abused her. See Tenenbaum, 193 F.3d at 594. There was no doubt at the time that the possibility of sexual abuse was, as it always is, a serious concern. At issue was whether there was nonetheless time under the circumstances to secure a court order prior to effecting the removal without risking imminent danger to the child. See id. at 608 (Jacobs, J., dissenting) (describing majority opinion as holding that, while there was "exigency," there was still no "emergency," because there was time to obtain a court order). Tenenbaum represented a novel application of procedural due process law because of the majority's holding that regardless of the seriousness of the allegations, it was still necessary to obtain a court order if time permitted. Here, by contrast, we understand the plaintiffs to assert that the circumstances presented did not necessitate an inquiry into whether there was time to obtain a court order, because the conditions in the Southerland home were not grave enough to trigger that inquiry.
18. The district court correctly noted that there are material factual disputes concerning whether emergency circumstances existed warranting the immediate removal of the Southerland Children from their home. See Southerland II, 521 F. Supp. 2d at 234 n.29 & 235 n.31. But even where emergency circumstances warranting removal exist, "'the constitutional requirements of notice and opportunity to be heard are not eliminated but merely postponed.'" Kia P., 235 F.3d at 760 (quoting Duchesne, 566 F.2d at 826). Therefore, a plaintiff may have a viable claim for violation of procedural due process even where emergency circumstances existed at the time of removal, if the plaintiff does not receive a timely and adequate postdeprivation hearing. See id. at 760-61. In this case, as will be explained below, important factual questions remain concerning the post-removal judicial confirmation proceedings, if any, that took place in the days after the Southerland Children's removal from their home.
19. See Southerland Children's Br. at 23 ("The children were held by the defendants without court order from June 9 until June 13, 1997. ACS filed a petition in the Family Court on June 13, 1997, and apparently some kind of proceeding was held on that day, although there is no evidence of it in the record."); Appellees' Br. at 19 ("Plaintiff Southerland's children, the Court found, were removed from the home and held in ACS custody pending a timely post-deprivation hearing where a family court judge confirmed the removal."). The parties have failed to brief the issue despite our prior instruction that Southerland "be given an opportunity to prove…that the subsequent family court proceedings were insufficiently prompt to pass constitutional muster." Southerland I, 4 F. App'x at 36.
20. We reaffirmed this approach in Kia P., 235 F.3d at 757-58, where we also construed a child's claimed violation of substantive due process as instead arising under the Fourth Amendment. In Southerland I, we relied on Kia P. in stating that "[t]he [Southerland] children's claims for unreasonable seizure would proceed under the Fourth Amendment rather than the substantive component of the Due Process Clause." Southerland I, 4 F. App'x at 37 n.2..
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