Jamie Kirkpatrick v. County of Washoe

Opinion by Judge BYBEE; Partial Dissent by Judge KOZINSKI.

OPINION

“Government officials are required to obtain prior judicial authorization before intruding on a parent’s custody of her child unless they possess information at the time of the seizure that establishes ‘reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.’ ” Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101 , 1106 (9th Cir.2001) (quoting Wallis v. Spencer, 202 F.3d 1126 , 1136 (9th Cir.1999)). The Washoe County Department of Social Services (WCDSS) took B.W. into protective custody when she was two-days old and placed her with a foster parent without obtaining prior judicial authorization. B.W.’s biological father, Jamie Kirkpatrick, filed this 42 U.S.C. § 1983 action against the County and three of its social workers, alleging violations of the Fourth and Fourteenth Amendments. The district court granted summary judgment in favor of all of the defendants. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo the district court’s order granting summary…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMIE KIRKPATRICK, individually, No. 12-15080 and as the natural father and legal guardian of B.W., a minor, D.C. No. Plaintiff-Appellant, 3:09-cv-00600-

ECR-VPC

v.

COUNTY OF WASHOE; AMY OPINION

REYNOLDS, WCDSS social worker; ELLEN WILCOX, WCDSS social worker; LINDA KENNEDY, WCDSS social worker, Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Edward C. Reed, Jr., Senior District Judge, Presiding

Argued and Submitted January 28, 2014—University of Nevada, Las Vegas

Filed July 10, 2015

Before: Stephen Reinhardt, Alex Kozinski, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee; Partial Dissent by Judge Kozinski SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the district court’s summary judgment in favor of defendants and remanded in a 42 U.S.C. § 1983 action against the County of Washoe and three social workers alleging violations of the Fourth and Fourteenth Amendment when defendants took plaintiff’s biological daughter, B.W., into protective custody…

dissenting in part:

This term the Supreme Court once again summarily reversed a lower court for failing to appreciate that a state official is protected by qualified immunity unless “every reasonable official [in the defendant’s situation] would have understood that what he is doing violates” a constitutional right. Taylor v. Barkes, — U.S. -, 135 S.Ct. 2042, 2044 , 192 L.Ed.2d 78 (2015) (internal quotation marks omitted). The Court has stressed time and again that, “[w]hen properly applied, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731 , 131 S.Ct. 2074, 2085 , 179 L.Ed.2d 1149 (2011)). The majority ignores that clear admonition, and imposes personal liability on two child protective service workers whose actions were anything but malicious or incompetent.

Under the majority’s holding, Ellen Wilcox and Linda Kennedy are exposed to liability because they removed a vulnerable baby, B.W., from the care of her mother, Rachel. Rachel was a drug addict who had taken methamphetamine so recently that it was found in her daughter’s blood at the time of the child’s birth. Rachel…