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Sjurset v. Button

United States Court of Appeals, Ninth Circuit

December 4, 2015

STEPHEN SJURSET, personally and as next friend for N.S. and T.B., Plaintiff-Appellee,
v.
CHARLES BUTTON, Stayton City Police Department, in his individual and official capacity; MICHAEL MEEKS, Stayton City Police Department, in his individual and official capacity; SCOTT MUMEY, Stayton City Police Department, in his individual and official capacity, Defendants-Appellants, and MARY ANNE MILLER, in her individual capacity; DYAN BRADLEY, in her individual capacity; CITY OF STAYTON, a municipal entity, Defendants

Argued and Submitted, Portland, Oregon October 14, 2015.

Page 610

[Copyrighted Material Omitted]

Page 611

Appeal from the United States District Court for the District of Oregon. D.C. No. 6:12-cv-00282-AA. Ann L. Aiken, Chief District Judge, Presiding.

SUMMARY[**]

Civil Rights

The panel reversed the district court's order on summary judgment denying qualified immunity to police officers, and remanded in an action brought pursuant to 42 U.S.C. § 1983 in which plaintiff alleged that the officers took custody of his children without reasonable cause or a court order, in violation of plaintiff's Fourteenth Amendment right to familial association and the children's Fourth Amendment right to be free from unreasonable seizure.

The panel first rejected plaintiff's contention that pursuant to Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), disputed factual issues precluded it from hearing the officers' appeal from the district court's order. The panel held that Johnson was inapplicable because this appeal was based on undisputed facts as they related to a purely abstract issue of law--that is, whether the officers violated clearly established law when they acted in reliance on the determination made by Department of Human Services officials that the children were in imminent danger.

The panel held that the officers were not incompetent in believing that they were legally authorized to act in reliance on the Department of Human Services' determination that the children were in imminent danger. The panel further held that even if the officers were mistaken in their belief that they could remove the children at the direction of the Department of Human Services without court authorization, their actions were objectively reasonable under the circumstances. Accordingly, the panel held that the officers were entitled to qualified immunity and remanded the case to the district court for entry of judgment in their favor.

Edward S. McGlone III, Lake Oswego, Oregon, for Defendants-Appellants.

Mikel Ross Miller, Bend, Oregon, for Plaintiff-Appellee.

Before: Ferdinand F. Fernandez, Ronald Lee Gilman,[*] and Carlos T. Bea, Circuit Judges. Opinion by Judge Gilman.

OPINION

Page 612

GILMAN, Senior Circuit Judge:

In February 2010, three police officers from the Stayton City Police Department (the Stayton officers), acting at the direction of officials from the Oregon Department of Human Services (DHS), entered the home of Stephen Sjurset and assisted in removing his two young children from the residence without a court order. Sjurset subsequently filed an action on behalf of himself and his children against the Stayton officers, four DHS officials, and the City of Stayton pursuant to 42 U.S.C. § 1983. He alleged that DHS and the Stayton officers took custody of his children without reasonable cause to believe that the children were in imminent danger of serious bodily injury, thus violating his Fourteenth Amendment right to familial association and the children's Fourth Amendment right to be free from unreasonable seizure.

At the summary-judgment stage of the case, the district court dismissed Sjurset's claims against the City of Stayton and the two DHS officials who were not involved in the decision to remove the children. It rejected claims by the Stayton officers and the two remaining DHS officials that they were entitled to qualified immunity. Only the Stayton officers appeal. For the reasons set forth below, we REVERSE the decision of the district court with regard to the Stayton officers and REMAND the case to the district court for entry of judgment in their favor.

I. BACKGROUND

A. Factual background

On February 18, 2010, officials at DHS received a phone call from a medical doctor's office reporting that Jessica Borchers--the significant other of Stephen Sjurset--had tested positive that day for methamphetamine, amphetamines, and marijuana. Borchers, who was pregnant at the time, lived in Stayton, Oregon with Sjurset and her two- and five-year-old children, N.S. and T.B. Sjurset is N.S.'s father and T.B.'s legal guardian.

The incident was not the first of its kind. In 2007, Borchers also tested positive for using methamphetamine while pregnant with her second child, N.S. As a result of that prior incident, both Borchers and Sjurset were convicted of endangering the welfare of a minor under Or. Rev. Stat. § 163.575. T.B. was placed in temporary foster care until Borchers successfully completed a drug-treatment program.

Acting on the newly registered complaint, DHS immediately initiated an investigation. DHS case worker Caryn Moller-Mata attempted to meet with Borchers and Sjurset to verify the health and safety of the two children. She first contacted

Page 613

Borchers on Friday, February 19, 2010. Borchers said that she was out of town and that Sjurset was taking care of the children. Moller-Mata then made several attempts to contact Sjurset, but received no response. At the end of the day, when she was unable to locate or meet with either parent, Moller-Mata called the Stayton City Police Department and requested that it dispatch officers to Sjurset's house over the weekend to conduct an in-person welfare check on N.S. and T.B.

At approximately 9:00 p.m. on Saturday, February 20, officers Button, Meeks, and Mumey arrived outside Sjurset's house. Officer Button requested to speak with Borchers and to see the children, but Sjurset refused to let the officers inside the house without a warrant. When Borchers appeared at the door, however, she said that the officers could view the children through the front window.

Unsure of what to do next, the Stayton officers contacted DHS for further guidance. DHS dispatched an on-duty social worker, Mary Anne Miller, to the scene. On the way to Sjurset's house, Miller phoned Moller-Mata and the two discussed Sjurset's and Borchers's prior child-endangerment convictions and their refusals to cooperate with the ongoing DHS investigation. Importantly, because these events transpired on a Saturday evening, DHS officials could not obtain a court order authorizing the children's removal until the following Monday morning, which was at least 36 hours away. Miller then contacted her supervisor, Dyan Bradley, to evaluate the situation. They discussed Borchers's recent positive drug test, Sjurset's and Borchers's refusal to cooperate, their prior convictions, and the risk of leaving the children in the care of the couple for another 36 hours. In light of these concerns, Miller and Bradley made an on-the-spot decision to take the children into protective custody without a court order.

All the parties are in agreement that the Stayton officers did not participate in the decision by Miller and Bradley to take protective custody of the children. The parties further agree that Miller and Bradley made the protective-custody determination prior to the Stayton officers' entry into the house. Finally, the record indicates that the Stayton officers did not make their own independent judgments as to whether there was probable cause to enter the home and remove the children without a warrant.

In accordance with DHS's determination, the Stayton officers entered the house alongside Miller and removed N.S. and T.B. The district court's opinion notes that DHS " concede[d] that there was no visual evidence of drug use in the area of the house that the officials occupied while the children were removed." No other part of the house was searched. N.S. and T.B. were placed into temporary foster care and, following a " shelter hearing" two days later, DHS obtained custody.

B. Procedural background

Sjurset brought an action on behalf of himself and his children against the City of Stayton, the DHS officials, and the Stayton officers under 42 U.S.C. ยง 1983, alleging that the parties had (1) violated his Fourteenth Amendment right to familial association and (2) violated the children's Fourth Amendment right to be free from unreasonable seizure by removing the children in the absence of a court order or evidence of imminent danger of serious bodily harm. He also alleged that DHS officials Moller-Mata and Maria ...


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