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Sonny B. Southerland, Sr v. City of New York

May 22, 2012


07-4449-cv (L), 07-4450-cv (CON) Southerland v. City of New York


1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 22nd day of May, two thousand twelve.

1 Following disposition of this appeal on February 2, 2 2012, and prior to the amended disposition on May 14, 2012, 3 an active judge of the Court requested a poll on whether to 4 rehear the case in banc. A poll having been conducted and 5 there being no majority favoring in banc review, rehearing 6 in banc is hereby DENIED.

8 Judge Raggi dissents in an opinion joined by Chief 9 Judge Jacobs and Judges Cabranes, Wesley, and Livingston.

11 Chief Judge Jacobs dissents in an opinion joined by 12 Judges Cabranes, Raggi, Wesley, and Livingston.


1 REENA RAGGI, Circuit Judge, with whom Chief Judge JACOBS, Judge CABRANES, Judge

2 WESLEY, and Judge LIVINGSTON join, dissenting from the denial of rehearing en banc: 4 In 1998, after a five-day trial in New York State Family Court, Sonny Southerland 5 was found to have abused his seven children so severely--sexually and corporally--as to 6 warrant denying him custody for seven years. This ruling and the findings supporting it have 7 never been disturbed. See In re Ciara M., 273 A.D.2d 312, 314, 708 N.Y.S.2d 717, 719 (2d 8 Dep't) (upholding abuse findings and affirming orders denying custody), leave to appeal 9 denied, 95 N.Y.2d 767, 717 N.Y.S.2d 547 (2000). A panel of this court concludes that 10 Southerland can nevertheless invoke 42 U.S.C. § 1983 to demand money damages from 11 Timothy Woo, the caseworker who rescued the Southerland children from their father's 12 abuse. The panel further concludes that Southerland's abused children can also maintain 13 such a damages action against their rescuer.

14 Essentially, plaintiffs complain that Woo--who had been assigned to investigate a 15 report that Southerland's teenage daughter Ciara might be suicidal and that her father was 16 indifferent to her need for care--entered the Southerland home pursuant to a warrant that was 17 not supported by probable cause. See U.S. Const. amend. IV. They further contend that 18 Woo removed Southerland's six other children from the home without evidence of exigency, 19 thereby effecting an unreasonable seizure and a deprivation of plaintiffs' liberty interest in 20 a continuing family relationship without due process. Id. amend. IV, XIV. With respect to 21 the removal claim, plaintiffs do not contend--nor could they in light of the Family Court 22 ruling--that Southerland did not, in fact, pose an exigent threat to his children's safety. They 23 contend only that Woo was not yet aware that the threat was exigent.

1 By even plaintiffs' account, it did not take long for Woo to gain such awareness. 2 Within four days of effecting the challenged removal, Woo learned and reported to the 3 Family Court that "Southerland has been sexually abusing his daughter Ciara Manning (age 4 16) since she was eight years old. On numerous occasions over the past nine years 5 respond[e]nt S[o]utherland has had sexual intercourse with Ciara and would threaten to kill 6 Ciara if she told anyone." Ex. D to Silverberg Decl. in Supp. of Summ. J. at 5, Southerland 7 v. City of N.Y., No. 99-CV-3329 (E.D.N.Y. Sept. 18, 2006) ("Silverberg Decl."), ECF No. 8 168-7. Further, before the month was out, Woo learned and reported to the Family Court that 9 the six children removed from the Southerland home--then ages three to nine--had revealed 10 that their father hit them "with broom sticks, exercise equipment and other objects causing 11 welts and bruises," and had punished the children for "tak[ing] food from the refrigerator 12 without permission" by hitting them "with various objects." Ex. E to Silverberg Decl. at 6, 13 ECF No. 168-8. The state court's custody determination makes clear that the Southerland 14 children would have continued to experience such abuse but for the challenged removal for 15 which they and their abusive father now demand compensation from Woo.*fn1

1 The district court sensibly dismissed this action, awarding summary judgment in favor 2 of Woo on the ground of qualified immunity. See Southerland v. City of N.Y., 521 F. Supp. 3 2d 218, 231-32 (E.D.N.Y. 2007) (Sifton, J.). In reversing that judgment, the panel concludes 4 both that (1) the constitutional rights asserted here by Southerland and his abused children 5 were clearly established in the circumstances confronting Woo at the time of his challenged 6 actions, see Southerland v. City of N.Y., --- F.3d ----, 2012 WL 1662981, at *18-19, *27 (2d 7 Cir. 2012); and (2) the record reveals disputed issues of fact that a reasonable jury could 8 resolve in plaintiffs' favor, see id. at *12-17, *19, *28. I respectfully disagree with both 9 conclusions for reasons that merit en banc review. These reasons can be briefly summarized 10 as follows.

11 First, the panel concludes that Woo lacked probable cause to seek Ciara Manning, the 12 reported neglected child, in Southerland's home because Woo had been told that she might 13 have run away. See id. at *13-14. This misperceives the probable cause requirement, which 14 neither demands certainty nor is defeated by possibilities. In the context of child welfare 15 investigations, there is always probable cause to look for an at-risk child in the home of the 16 custodial parent, at least absent conclusive evidence that the child is in fact somewhere else, 17 which was not the case here. To the extent that five judges of this court hold that view of 18 probable cause, it can hardly be said that no reasonable child welfare worker could have 19 thought likewise. Thus, Woo is entitled to qualified immunity on plaintiffs' Fourth 20 Amendment challenge to his entry into the Southerland home.

1 Second, in allowing an adjudicated abusive father and the children he abused to sue 2 a caseworker for prematurely halting the abuse, the panel extends our due process precedent 3 in a way that the court should reject en banc. The cases cited by the panel as recognizing a 4 parent's right to sue for due process violations by child welfare authorities all involved 5 circumstances in which suspicions of abuse or neglect eventually proved unfounded, see Kia 6 P. v. McIntyre, 235 F.3d 749, 751 (2d Cir. 2000); Tenenbaum v. Williams, 193 F.3d 581, 587 7 (2d Cir. 1999); Hurlman v. Rice, 927 F.2d 74, 76 (2d Cir. 1991), or no state judicial process 8 was ever afforded to confirm such suspicions, see Duchesne v. Sugarman, 566 F.2d 817, 823 9 (2d Cir. 1977). None involved due process claims by parents adjudicated to have abused 10 their children, or by the children who were victims of such abuse. For the same reasons that 11 the law does not permit a convicted defendant to challenge the sufficiency of the evidence 12 supporting his arrest, see Cameron v. Fogarty, 806 F.2d 380, 388-89 (2d Cir. 1986), it should 13 not permit an adjudicated abusive parent, or the children he abused, to sue a rescuing 14 caseworker on a theory that the caseworker prematurely intervened. Recognizing a viable 15 claim for money damages in such circumstances risks bringing the law into disrepute. 16 Further, it endangers future abuse victims by unnecessarily deterring caseworkers from 17 promptly intervening for fear of being liable in money damages, not only in cases where no 18 parental abuse or neglect is established but also in cases where courts conclusively determine 19 that it is.

20 Thus, the scope and parameter of the constitutional rights at issue in the context of 21 state adjudications of parental abuse raise questions of exceptional importance warranting 1 en banc review. See Fed. R. App. P. 35(a)(2). Insofar as a majority of the active members 2 of this court decline to undertake such review, I respectfully dissent from the denial of 3 rehearing en banc.

5 1. Qualified Immunity

7 To allow government officials to perform discretionary duties without fear of undue 8 interference or threat of potentially disabling liability, the law affords them qualified 9 immunity from suits for money damages, provided that their conduct does not violate clearly 10 established statutory or constitutional rights of which a reasonable person would have been 11 aware. See Harlow v. Fitzgerald, 457 U.S. 800, 806, 818 (1982); accord Filarsky v. Delia, 12 132 S. Ct. 1657, 1665 (2012) (recognizing qualified immunity doctrine to serve vital purpose 13 of "[e]nsuring that those who serve the government do so with the decisiveness and the 14 judgment required by the public good" (internal quotation marks omitted)). Such immunity 15 has been recognized to provide a broad shield, protecting "all but the plainly incompetent or 16 those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986); accord 17 Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011).

18 A threshold question to any immunity claim is whether the facts, viewed in the light 19 most favorable to the plaintiff, show that a statutory or constitutional right was violated. If 20 that question can clearly be answered no, there is simply "no necessity for further inquiries 21 concerning qualified immunity." Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in 22 part on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009); accord Walczyk v. Rio, 1 496 F.3d 139, 154 (2d Cir. 2007) (collecting cases explaining that resolution of threshold 2 question favorably to defendant "moots" further qualified immunity inquiry). If the answer 3 is yes, or at least not clearly no, see Pearson v. Callahan, 555 U.S. at 237, the pertinent 4 qualified immunity inquiry is whether the right was clearly established at the time of the 5 defendant's actions, see Ashcroft v. al-Kidd, 131 S. Ct. at 2080; Walczyk v. Rio, 496 F.3d 6 at 154. As the Supreme Court has emphasized, this second question is not answered by 7 reference to how courts or lawyers might have understood the state of the law. Rather, the 8 "relevant, dispositive inquiry in determining whether a right is clearly established is whether 9 it would be clear to a reasonable officer that his conduct was unlawful in the situation he 10 confronted." Saucier v. Katz, 533 U.S. at 202; see Messerschmidt v. Millender, 132 S. Ct. 11 1235, 1245 (2012). Thus, even if the right at issue "was clearly established in certain 12 respects," a state actor "is still entitled to qualified immunity if 'officers of reasonable 13 competence could disagree' on the legality of the action at issue in its particular factual 14 context." Walcyzk v. Rio, 496 F.3d at 154 (quoting Malley v. Briggs, 475 U.S. at 341).

15 Applying these principles to this case, the district court correctly awarded Woo 16 judgment on the ground of qualified immunity.

18 2. Entry into the Southerland Home: Probable Cause Claim 19 On June 9, 1997, having procured a court order under New York Family Court Act 20 § 1034(2) (McKinney 1997), Timothy Woo entered the Southerland home in order to 21 conduct an investigation mandated by New York Social Services Law § 424. The latter 1 statute requires child welfare authorities, upon receipt of a complaint of possible child abuse 2 or neglect, "to commence, within twenty-four hours, an appropriate investigation which shall 3 include an evaluation of the environment of the child named in the report and any other 4 children in the same home and a determination of the risk to such children if they continue 5 to remain in the existing home environment." N.Y. Soc. Serv. Law § 424(6)(a). Meanwhile, 6 New York Family Court Act § 1034(2) permits courts to authorize a home entry even without 7 parental consent upon finding "probable cause to believe that an abused or neglected child 8 may be found on premises." In procuring a § 1034(2) warrant to enter the Southerland home, 9 Woo submitted an affidavit stating that he believed that named children in the residence were 10 neglected or abused because (1) one child, sixteen-year-old Ciara Manning, had "tried to kill 11 herself by swallowing non-toxic paint," and her custodial father, Southerland, had not 12 obtained any treatment for her;*fn2 and (2) Southerland had refused to allow child welfare 13 workers into his home to speak to other named children on the premises. Southerland v. City 14 of N.Y., 2012 WL 1662981, at *4 n.5 (quoting Woo application in entirety).

1 The fact that Woo's challenged entry was pursuant to a court order gives rise to "a 2 presumption that it was objectively reasonable for [him] to believe" that the entry "was 3 supported by probable cause," thereby affording him qualified immunity from suit for a 4 purported violation of the Fourth Amendment. Martinez v. City of Schenectady, 115 F.3d 5 111, 115 (2d Cir. 1997); see Messerschmidt v. Millender, 132 S. Ct. at 1245 ("Where the 6 alleged Fourth Amendment violation involves a search or seizure pursuant to a warrant, the 7 fact that a neutral magistrate has issued a warrant is the clearest indication that the officers 8 acted in an objectively reasonable manner or, as we have sometimes put it, in objective good 9 faith." (internal quotation marks omitted)); Walczyk v. Rio, 496 F.3d at 155-56. To 10 overcome this presumption, plaintiffs were obliged to make "a substantial preliminary 11 showing" (1) that Woo "knowingly and intentionally, or with reckless disregard for the 12 truth," made false statements or material omissions to secure the entry order; and (2) that the 13 allegedly false statements or material omissions were "necessary to the finding of probable 14 cause." Franks v. Delaware, 438 U.S. 154, 155-56 (1978); accord Walcyzk v. Rio, 496 F.3d 15 at 155-56; see Martinez v. City of Schenectady, 115 F.3d at 115. 16 Toward that end, plaintiffs alleged that Woo's § 1034(2) application contained a 17 number of knowing or reckless misstatements and omissions that defeated probable cause.

18 In rejecting this claim, the district court relied on the corrected affidavit doctrine, which 19 affords qualified immunity if, when false material is set aside, or omitted information is 20 supplied, "the corrected affidavit would have supported a" reasonable officer's belief that 21 probable cause existed. Martinez v. City of Schenectady, 115 F.3d at 115 (internal quotation 1 marks omitted); accord Walczyk v. Rio, 496 F.3d at 158. Reversing, the panel reasons that 2 insofar as Woo's § 1034(2) application identified Ciara Manning as the neglected or abused 3 child to be sought in the Southerland home, the required probable cause to believe that she 4 would be found "on premises" was defeated if Woo's affidavit were corrected to include the 5 omitted facts that (1) school reports indicated that Ciara might be staying outside the 6 Southerland home, over the opposition of her father; and (2) Southerland had told Woo that 7 Ciara was a runaway not living at home. See Southerland v. City of N.Y., 2012 WL 8 1662981, at *13-14.

9 The conclusion that these corrections defeat probable cause to think that Ciara 10 Manning might be found in the Southerland home is wrong as a matter of law. While 11 probable cause requires more than "mere suspicion," Mallory v. United States, 354 U.S. 449, 12 454 (1957), it does not demand "hard certainties," Illinois v. Gates, 462 U.S. 213, 231 13 (1983). Indeed, probable cause does not even require that something be more likely so than 14 not so, the preponderance standard of proof. See id. at 235 (cautioning that "[f]inely-tuned 15 standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, 16 useful in formal trials, have no place" in probable cause determination). Rather, probable 17 cause is a "fluid concept," concerned simply with "probabilities." Id. at 232. In assessing 18 what is probable, a judicial officer must look to "'the factual and practical considerations of 19 everyday life on which reasonable and prudent men, not legal technicians, act.'" Id. at 231 20 (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)); accord Walczyk v. Rio, 496 21 F.3d at 156-57.

1 With these principles in mind, it is important to note exactly what New York Family 2 Court Act § 1034(2) requires be probable to authorize entry into a home, i.e., that "an abused 3 or neglected child may be found on premises." N.Y. Fam. Ct. Act § 1034(2) (emphasis 4 added). In short, it need not be probable that an abused or neglected child "will be found" 5 on the premises; it need only be probable that such a child "may be found" there. Among the 6 various probabilities required by law to justify searches or seizures serving different 7 purposes, § 1034(2)'s "may be found" requirement is not a particularly demanding one. See 8 United States v. Abu-Jihaad, 630 F.3d 102, 121-29 (2d Cir. 2010) (contrasting probable 9 cause requirements for criminal and national security surveillance and recognizing flexibility 10 of Constitution's warrant requirement, such that different probable cause standards may be 11 compatible with Fourth Amendment in light of different purposes and practical 12 considerations at issue). Indeed, plaintiffs do not dispute that a "may be found" requirement 13 is consistent with the purpose being pursued, which in the case of a § 1034(2) entry is not 14 prosecutorial but protective, i.e., promptly to locate and assist an at-risk child. See generally 15 Nicholson v. Scoppetta, 344 F.3d 154, 158 (2d Cir. 2003) ("Few matters are closer to the 16 core of a State's essential function than the protection of its children against those who 17 would, intentionally or not, do them harm."). Thus, while ...

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