FILED

NOT FOR PUBLICATION

JUN 12 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OBEIDALLA BIRAIR, husband and No. 19-16068 father of minor children; INTISAR BIRAIR, wife and mother of minor D.C. No. 2:15-cv-01807-DJH children on behalf of Mo.B.; A.B.; Hy.B.; Mu.B.; Ha.B.,

MEMORANDUM*

Plaintiffs-Appellants,

v.

JASON FLAM, in his individual capacity,

Defendant-Appellee,

and

EDMOND KOLYCHECK, in his individual capacity; SARAH KRAMER, in her individual capacity; CANDIDA CARRION, in her individual capacity; AMANDA TORRES, in her individual capacity; SYBIL PADMORE, in her individual capacity; DOES, 1-100,

Defendants.

Appeal from the United States District Court

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. for the District of Arizona Diane J. Humetewa, District Judge, Presiding

Argued and Submitted June 8, 2020 San Francisco, California

Before: SCHROEDER and BRESS, Circuit Judges, and McSHANE,** District Judge.

Plaintiff-Appellants Obeidalla and Intisar Birair (Appellants) appeal the

district court’s grant of summary judgment in favor of Mesa, Arizona police officer

Jason Flam in their 42 U.S.C. § 1983 action challenging Flam’s participation in the

warrantless removal of Appellants’ children by the Arizona Department of Child

Services (DCS). Appellants’ actions against the employees of DCS have been

resolved after a district court ruling in favor of Appellants, but the district court

ruled that Flam was entitled to qualified immunity. We affirm.

The facts are not disputed and Flam’s actions were recorded on video. Flam

responded to a DCS request for assistance and remained outside the home at all

times. He did not participate in the decision to remove the children from the home,

nor did he take part in the removal of the children by DCS. Flam’s self-described

role was to maintain the safety of all those involved, and he was not in a position to

second guess the removal decision. Our decision in Sjurset v. Button, 810 F.3d

** The Honorable Michael J. McShane, United States District Judge for the District of Oregon, sitting by designation. 2 609 (9th Cir. 2015), is instructive on this point. There, we held that officers are

entitled to rely on a child welfare agency employee’s removal decision. Id. at 620.

This case is materially different from the situation in Wallis v. Spencer, 202

F.3d 1129 (9th Cir. 2000), upon which Appellants rely. There, the police did take

part in both the decision to remove the children and the actual removal. Id at

1132–33. We therefore conclude there was no violation of Appellants’ rights

under the Fourth and Fourteenth Amendment in connection with the removal of

their children.

Appellants also contend that Flam used excessive force in dealing with Mr.

Obeidalla Birair. Having been summoned to the scene because Appellants “were

being confrontational,” Mr. Birair disobeyed Flam’s orders and threatened

disruption by going inside the home. Flam pointed a taser at Mr. Birair and

ordered him to the ground, and another Mesa police officer handcuffed Mr. Birair

for the duration of the removal. Flam’s actions were objectively reasonable under

the circumstances to ensure the children’s safety and that of the DCS officers. See

Miller v. Clark Cty., 340 F.3d 959, 964 (9th Cir. 2003).

AFFIRMED.

3