NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 19 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

IMELDA HARTLEY, on behalf of her six No. 23-15932 minor children, E.G., P.I.O., J.L.O., K.S.O., J.P.O., J.V.O.; ANDREA J. GARCIA, D.C. No. 2:21-cv-01098-SMB

Plaintiffs-Appellees,

MEMORANDUM*

v.

TIFFANY HUGHES; JENNIFER

GARLAND,

Defendants-Appellants.

Appeal from the United States District Court for the District of Arizona Susan M. Brnovich, District Judge, Presiding

Argued and Submitted June 6, 2024 Pasadena, California

Before: CLIFTON and COLLINS, Circuit Judges, and RODRIGUEZ,** District Judge.

Imelda Hartley brought this action under 42 U.S.C. § 1983 claiming that

Defendants Tiffany Hughes and Jennifer Garland violated her familial rights by

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Xavier Rodriguez, United States District Judge for the Western District of Texas, sitting by designation. removing her children from her home without a warrant. Defendants appeal the

district court’s order granting partial summary judgment to Hartley and denying

Defendants’ claim to qualified immunity.

We review the denial of qualified immunity de novo. Hines v. Youseff, 914

F.3d 1218, 1227 (9th Cir. 2019). We have jurisdiction under 28 U.S.C. § 1291,1

and we reverse.

Government officials are “entitled to qualified immunity under § 1983

unless (1) they violated a federal statutory or constitutional right, and (2) the

unlawfulness of their conduct was ‘clearly established at the time.’” District of

Columbia v. Wesby, 583 U.S. 48, 62–63 (2018) (quoting Reichle v. Howards, 566

U.S. 658, 664 (2012)). Defendants contest only the second prong on appeal,

arguing that they are entitled to qualified immunity because the relevant law was

not clearly established at the time of the incident in 2014.

“To be clearly established, a right must be sufficiently clear ‘that every

reasonable official would have understood that what he is doing violates that

right.’” Reichle, 566 U.S. at 664 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741

1 Hartley asserts that because the district court’s order identified genuine disputes of material fact, we lack jurisdiction to hear this interlocutory appeal. While we may not review the finding that factual disputes exist, we nonetheless have jurisdiction to consider the purely legal question of “whether the defendant would be entitled to qualified immunity as a matter of law, assuming all factual disputes are resolved, and all reasonable inferences are drawn, in plaintiff’s favor.” Ballou v. McElvain, 29 F.4th 413, 421 (9th Cir. 2022) (internal quotation marks omitted).

2 23-15932 (2011)) (brackets and internal quotation marks omitted). While qualified immunity

does not require “a case on all fours,” Hines, 914 F.3d at 1230, “existing precedent

must have placed the statutory or constitutional question beyond debate,” Ashcroft,

563 U.S. at 741. This “demanding standard protects ‘all but the plainly

incompetent or those who knowingly violate the law.’” Wesby, 583 U.S. at 63

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

The Supreme Court has “repeatedly told courts not to define clearly

established law at too high a level of generality.” City of Tahlequah v. Bond, 595

U.S. 9, 12 (2021); see Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (“[The

qualified immunity] inquiry must be undertaken in light of the specific context of

the case, not as a broad general proposition.” (internal quotation marks omitted)).

Our inquiry, then, boils down to whether it was beyond debate in 2014 that

Defendants’ warrantless removal of Hartley’s children under the specific

circumstances before them was unlawful.

Under our Fourteenth Amendment precedents, “parents will not be separated

from their children without due process of law except in emergencies.” Mabe v.

San Bernadino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir.

2001). An official conducting a warrantless removal “must have reasonable cause

to believe that the child is likely to experience serious bodily harm in the time that

would be required to obtain a warrant.” Rogers v. County of San Joaquin, 487 F.3d

3 23-15932 1288, 1294 (9th Cir. 2007); see Mabe, 237 F.3d at 1108 (“[I]mminent danger of

future harm is required to show exigency.”).

Hartley relies chiefly on Rogers. In Rogers, a social worker removed the

plaintiff family’s children without a warrant after observing their poor state of

health, such as “bottle rot” and “malnutrition,” 487 F.3d at 1292–93, and

unsanitary conditions at the home, including “feces” and “rat droppings,” id. at

1293. We refused to grant qualified immunity because none of these facts

“indicate[d] any imminent risk of serious bodily harm.” Id. at 1295. Hartley

contends that Defendants’ decision to remove her children based on the

household’s squalid state is no different.

Two key facts distinguish our case from Rogers, however, such that Rogers

could not have given fair warning about the unlawfulness of Defendants’ conduct.

First, unlike in Rogers, there was the danger posed by Juan Ortiz, the allegedly

abusive father of some of the children. Not only had Ortiz previously been reported

to the police by Hartley for throwing a shoe at one of his daughters, but the

Department of Child Safety had also recently received a report that Ortiz had

molested another daughter for ten years. The unserved order of protection against

Ortiz provided “specific, articulable evidence,” Wallis v. Spencer, 202 F.3d 1126,

1138 (9th Cir. 2000), that he could return to the home anytime, as was indeed the

case during the summer of 2014.

4 23-15932 It is true that Defendants had known about allegations of Ortiz’s sexually

abusive conduct for about two months when they removed the children, and that

“an official’s prior willingness to leave the children in their home militates against

a finding of exigency.” Rogers, 487 F.3d at 1295; see Mabe, 237 F.3d at 1108

(reasoning that social worker’s choice to leave child at home following allegations

of molestation undermined reasonable belief about exigency). In this instance,

however, Defendants gained new information shortly before removing the

children. “Defendants did not learn that the order of protection was unserved until

the police told them,” as Hartley concedes. Hughes was also alerted for the first

time to the possibility of Hartley covering for Ortiz when she heard Hartley

coaching the children to lie about Ortiz’s visits. We cannot conclude that every

reasonable official faced with these new facts would have determined that the

children faced no imminent danger of harm.

Second, Defendants could not be sure of obtaining a warrant “within hours,”

as was the case in Rogers. 487 F.3d at 1295. Central to our holding in Rogers was

the fact that none of the deplorable conditions at the children’s home could cause

harm within the few hours it would have taken to obtain a warrant. See id. at 1295–

1296; see also Mabe, 237 F.3d at 1108 (“[I]t is difficult to understand how the

further delay of a few hours necessary to obtain the warrant would have put [the

child] in imminent danger of serious physical injury.”). In this case, Arizona law at

5 23-15932 the time of the events required filing a dependency petition before obtaining a

warrant. A.R.S. § 8-821 (2014) (revised 2015). The record shows that it

subsequently took five days for the state Attorney General to prepare and file the

petition, and another two days for the court to approve it. Defendants could have

reasonably believed that Ortiz might return to the home on any one of those days

and harm the children. The parties dispute, with neither side providing evidence,

whether a dependency petition could have been filed faster. Within this confined

record, it was not “plainly incompetent” for Defendants to deem the window for

obtaining a warrant long enough to pose serious risk to the children.

We reverse and remand for the entry of judgment in favor of Defendants and

for any further proceedings consistent with this decision.

REVERSED AND REMANDED.

6 23-15932