FILED

NOT FOR PUBLICATION

DEC 19 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS MENDOZA, individual, and as No. 17-35790 guardian of L.M., his minor child, D.C. No. 3:16-cv-05677-RJB Plaintiff-Appellant,

v. MEMORANDUM*

CITY OF VANCOUVER, a Municipality; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding

Argued and Submitted December 3, 2018 Seattle, Washington

Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.

Carlos Mendoza appeals the district court’s grant of summary judgment in

favor of defendant Sergeant Barbara Kipp on the basis of qualified immunity.

Mendoza brought suit under 42 U.S.C. § 1983 alleging Kipp had deprived him of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. his Fourteenth Amendment right to familial association when she took his one-

year-old son from his custody without a warrant. We have jurisdiction under 28

U.S.C. § 1291 and we affirm.

We review de novo a district court’s decision to grant summary judgment on

the basis of qualified immunity. Prison Legal News v. Lehman, 397 F.3d 692, 698

(9th Cir. 2005). “The doctrine of qualified immunity protects government officials

from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Demaree v. Pederson, 887 F.3d 870, 878 (9th Cir. 2018) (quoting

Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Under the two-pronged qualified

immunity test at the summary judgment stage, we ask 1) whether the facts, viewed

in the light most favorable to the plaintiff, show that the officer violated a

constitutional right, and 2) whether that right was “clearly established” at the time

of the alleged violation. See id. We may begin our analysis with either prong.

Pearson, 555 U.S. at 236.

Under the Fourteenth Amendment, officials who take a child into custody

without a warrant 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 1288, 1294 (9th Cir. 2007).

2 However, the contours of this right are clearly established under a particular set of

circumstances only if it is “beyond debate that the confluence of factors” facing an

officer “would not support a finding of exigency.” Kirkpatrick v. County of

Washoe, 843 F.3d 784, 793 (9th Cir. 2016).

Here, it was not “beyond debate that the confluence of factors” facing

Sargent Kipp on the evening of December 10, 2014 “would not support a finding

of exigency.” See id. The district court therefore correctly granted summary

judgment to Sergeant Kipp on the basis of qualified immunity. Because the second

prong of the qualified immunity test is determinative in this case, we express no

views on whether a violation of Mendoza’s constitutional rights occurred.

AFFIRMED.

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