facts of the case, as “immunity protects all but the plainly incompetent or those

who knowingly violate the law.” White, 137 S. Ct. at 551–52 (internal quotation

marks and citation omitted).

Even assuming that Defendants violated a constitutional right by removing

H.R., that right was not clearly established in June of 2010. At the time, our case

law described “a well-elaborated constitutional right [of parents and children] to

live together without governmental interference.” Burke v. Cty. of Alameda, 586

F.3d 725, 731 (9th Cir. 2009) (quoting Wallis v. Spencer, 202 F.3d 1126, 1136 (9th

Cir. 2000)). But our case law did not give “fair and clear warning” about the

application of this general right to the circumstances facing Defendants. White,

137 S. Ct. at 552 (internal quotation marks and citation omitted); see, e.g., Rogers

v. Cty. of San Joaquin, 487 F.3d 1288, 1295 (9th Cir. 2007) (addressing removal

based on concerns about “bottle rot, the children’s malnourishment, and the

disorderly conditions in the home”); Wallis, 202 F.3d at 1138–40 (addressing an

“extraordinary” case in which removal was based on a psychiatric patient’s claim

3 that a satanic ritual sacrifice was imminent); see also Kirkpatrick, 843 F.3d at 793

(noting that “none of the cases from this court explain when removing an infant

from a parent’s custody at a hospital to prevent neglect, without a warrant, crosses

the line of reasonableness and violates the Fourth Amendment”).

Decisions from other jurisdictions supported the removal of H.R. because of

Defendants’ reasonable belief that his sibling R.R. had been abused. See Cornejo

v. Bell, 592 F.3d 121, 129 (2d Cir. 2010) (decided January 4, 2010); Taylor v.

Evans, 72 F. Supp. 2d 298, 309 (S.D.N.Y. 1999). These cases may not be directly

on point, given differences among the circuits about the standard for removing a

child. See Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404,

428 (5th Cir. 2008) (discussing these differences, and noting that the “Ninth and

Tenth Circuits have adopted the strictest standards for removal of a child”).

However, they undermine any claim that it was clearly established that Defendants

could not constitutionally remove H.R., which was Plaintiffs’ burden to prove. See

Kennedy v. City of Ridgefield, 439 F.3d 1055, 1065 (9th Cir. 2006).

REVERSED.

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