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

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


May 22, 2012

SONNY B. SOUTHERLAND, SR., INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF VENUS SOUTHERLAND, SONNY B. SOUTHERLAND, JR., NATHANIEL SOUTHERLAND, EMMANUEL FELIX, KIAM FELIX, AND ELIZABETH FELIX, PLAINTIFFS-APPELLANTS,
v.
CITY OF NEW YORK, TIMOTHY WOO, JOHN DOES 1-9, DEFENDANTS-APPELLEES. MICHAEL G. O'NEILL, NEW YORK, N.Y., FOR PLAINTIFFS-APPELLANTS
v.
S., SONNY B.S. JR., NATHANIEL S., EMMANUEL F., KIAM F., AND ELIZABETH F. SONNY B. SOUTHERLAND, BROOKLYN, N.Y., PLAINTIFF- APPELLANT, PRO SE. JULIAN L. KALKSTEIN, CITY OF NEW YORK (MICHAEL A. CARDOZO, CORPORATION COUNSEL; LARRY A. SONNENSHEIN, OF COUNSEL), NEW YORK, N.Y., FOR DEFENDANTS-APPELLEES.

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

ORDER

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.

16 FOR THE COURT: 17 CATHERINE O'HAGAN WOLFE, CLERK

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 an entry into a criminal target's 18 home to execute a warrant for his arrest requires a reasonable belief that the suspect "is 19 within," Payton v. New York, 445 U.S. 573, 603 (1980); see United States v. Lauter, 57 F.3d 20 212, 214 (2d Cir. 1995), an entry into premises to locate a neglected or abused child requires 21 a probability only that the child "may be found" on those premises.

1 In identifying the places where a neglected or abused child "may be found," this court 2 should clarify that there is always probable cause to think that a child may be found at her 3 legal residence, i.e., the residence of her custodial parent, at least absent conclusive evidence 4 to the contrary. Indeed, it is the first place that any "reasonable and prudent" person would 5 look for a child. Illinois v. Gates, 462 U.S. at 231.

6 The addition of the omitted information to Woo's affidavit warrants no different 7 conclusion. School reports that Ciara Manning might be staying some place other than her 8 legal residence referenced, at most, a possibility, which is not enough to defeat the 9 probability that the child nevertheless "may be found" at her residence. Cf. United States v. 10 Fama, 758 F.2d 834, 838 (2d Cir. 1985) (holding that possible "innocent explanation" for 11 facts alleged "does not negate probable cause" to infer criminality from those facts). As for 12 Southerland's characterization of his daughter as a runaway, the law does not require that 13 such a statement be credited. See generally Robison v. Via, 821 F.2d 913, 922 (2d Cir. 1987) 14 (stating that officials need not defer action merely because parent protests innocence or 15 promises future protection if evidence indicates parent's past unwillingness or inability to 16 assure child's safety and well-being). Any different conclusion would yield the perverse 17 result of an abusive parent having only to deny a child's presence on the premises to preclude 18 a caseworker from obtaining or executing a warrant to investigate reports of abuse. Precisely 19 to avoid the risk that any such argument could be derived from the panel opinion, the court 20 needs to clarify en banc that there is always probable cause to think that an at-risk child "may 21 be found" at the residence of her custodial parent absent conclusive evidence that she is in 1 fact somewhere else.*fn3

2 With that understanding of the law, a corrected affidavit in this case "discloses no 3 genuine dispute" as to the existence of probable cause to enter the Southerland home to look 4 for the identified neglected child, Ciara Manning. Walczyk v. Rio, 496 F.3d at 158 5 (emphasis in original). In any event, because five judges of this court hold that view of the 6 law, the panel can hardly maintain that no "officer[] of reasonable competence" could have 7 reached the same conclusion. Malley v. Briggs, 475 U.S. at 341; Walczyk v. Rio, 496 F.3d 8 at 154 (collecting cases). Thus, Woo is plainly entitled to qualified immunity from plaintiffs' 9 Fourth Amendment illegal entry claims.*fn4

1 3. Removal of the Southerland Children: Due Process and Unreasonable Seizure Claims

2 The panel concludes that at the time of the challenged removal, it was clearly 3 established under both the Due Process Clause and the Fourth Amendment that, absent 4 exigent circumstances, Woo could not remove the Southerland children from their father's 5 home without a court removal order. See Southerland v. City of N.Y., 2012 WL 1662981, 6 at *18. To the extent the right at stake is procedural due process, the panel references dual 7 underlying liberty interests, one, by parents, "'in the care, custody and management of their 8 children,'" id. at *10 (quoting Tenenbaum v. Williams, 193 F.3d at 593); and the other, by 9 children, "'in not being dislocated from the emotional attachments that derive from the 10 intimacy of daily family association,'" id. (quoting Kia P. v. McIntyre, 667 F.3d at 759).

11 The problem with the panel's due process analysis, as I noted at the outset of this 12 opinion, is that it derives entirely from cases in which the challenged intrusion into family 1 Ciara Manning's step-siblings residing with her mother rather than the names of her step- 2 siblings residing with Southerland, see Southerland v. City of N.Y., 2012 WL 1662981, at 3 *13--is immaterial to that essential fact. Further, those children shared the same custodial 4 residence as Ciara, a child who had expressed thoughts of suicide, swallowed a can of paint 5 at school, and purportedly run away from home. This is sufficient to permit a reasonable 6 caseworker to think that something was amiss in the Southerland home that could affect any 7 child living there. Add to these facts the custodial father's "fail[ure] to follow through w[ith] 8 mental health referrals" for the suicidal child, id. at *2 (quoting Child Protective Services 9 intake report), and his apparent ignorance as to that child's whereabouts, and the probability 10 increases that what is amiss is indicative of parental neglect (if not yet abuse) that would 11 extend to any child in the father's care. In such circumstances, even if Southerland had not 12 expressly "refused" Woo entry into the home, id. at *4 n.5, Southerland's purported inability 13 to identify a convenient time for a home visit would reasonably be viewed as stalling, 14 reinforcing the probability that other children who were neglected--or worse--would be 15 found in his home. I do not pursue the point further, however, because my main concern 16 with the panel decision pertains to its determination that a corrected affidavit failed to state 17 probable cause to believe that Ciara Manning "may be found" in the Southerland home.

1 liberty was based on suspicions of abuse or neglect that were eventually shown to be 2 unfounded, see Kia P. v. McIntyre, 235 F.3d at 71; Tenenbaum v. Williams, 193 F.3d at 587; 3 Hurlman v. Rice, 927 F.2d at 76, or at least were never confirmed in a state judicial 4 proceeding, see Duchesne v. Sugarman, 566 F.2d at 823. In each of these cases, parents and 5 children who had maintained a recognizable family bond were allowed to sue for intrusions 6 that allegedly violated their procedural due process rights. The panel cites to no case, 7 however, in which an adjudicated abusive parent, or the children he abused, have been 8 permitted to pursue claims that officials who stopped the abuse did so in violation of 9 procedural due process.*fn5 Nor does the panel explain why the cited precedent should apply 10 equally in such circumstances. In fact, it should not.

11 When, as here, a state court adjudicates a parent to have been so abusive of his 12 children as to deny him further custody, it effectively finds that the parent, by his abuse, has 13 himself severed the familial bond that was the source of any liberty interest for which he and 14 his children might claim procedural due process rights. Thus, it is not the Family Court's 15 abuse determination that extinguished any liberty interest these plaintiffs may once have 16 derived from a common family bond but, rather, Southerland's actual abuse that did so. For 1 this reason, I would conclude that an adjudicated abusive parent, such as Southerland, cannot 2 sue the caseworker who rescued children from further abuse on either substantive or 3 procedural due process grounds. To hold otherwise would imply that an abusive parent, or 4 abused children, have a liberty interest in continued abuse.*fn6 5 The conclusion here urged would foreclose due process removal claims against child 6 welfare workers in only a small category of cases: those in which a parent has been 7 adjudicated so abusive or neglectful as to be denied custody. The conclusion finds an 8 analogy in our precedent holding that criminal defendants, once convicted, will not be heard 9 to challenge whether their arrest was supported by probable cause to believe they had 10 committed the crime of conviction. See Cameron v. Fogarty, 806 F.2d at 388-89. A number 11 of our sister circuits have similarly ruled, citing favorably to Cameron. See Howard v. 12 Dickerson, 34 F.3d 978, 981 n.2 (10th Cir. 1994); Hoffman v. Moss, 929 F.2d 692 (Table), 13 1991 WL 41503, at *1 (4th Cir. 1991) (unpublished opinion); Malady v. Crunk, 902 F.2d 10, 14 11 (8th Cir. 1990); Walker v. Schaeffer, 854 F.2d 138, 143 (6th Cir. 1988); see also King v. 15 Goldsmith, 897 F.2d 885, 886 (7th Cir. 1990) (assuming, without deciding, that Cameron 16 was correctly decided). But see Rose v. Bartle, 871 F.2d 331, 351 (3d Cir. 1989) (noting, in 17 dictum, doubts as to "policy determinations underlying Cameron"); Brumfield v. Jones, 849 18 F.2d 152, 155 n.4 (5th Cir. 1988) (noting, without resolving, possible tension between 19 Cameron and Brown v. Edwards, 721 F.2d 1442, 1447-48 & n.8 (5th Cir. 1984)).

1 Cameron itself derived from City of Newport v. Fact Concerts, Inc., 453 U.S. 247 2 (1981), in which the Supreme Court recognized that Congress, in enacting § 1983, 3 "expressed no intention to do away with the immunities afforded state officials at common 4 law." Id. at 258; see Filarsky v. Delia, 132 S. Ct. at 1661-62. The common law--with 5 common sense--had long recognized that once guilt is proved, "the injury" to a defendant's 6 personal liberty "caused solely by prematurity of arrest is, of itself, insubstantial," and 7 therefore not legally cognizable. Cameron v. Fogarty, 806 F.2d at 388. 8 Common law had no occasion to apply this principle to child removal proceedings, 9 a legal innovation arising largely in the nineteenth century. See Naomi Cahn, Perfect 10 Substitutes or the Real Thing?, 52 Duke L.J. 1077, 1090-91 (2003) (dating state removal of 11 abused and neglected children in the United States to late nineteenth century); Developments 12 in the Law: The Constitution and the Family, 93 Harv. L. Rev. 1156, 1221-22 (1980) 13 (recognizing that by early nineteenth century, some English chancery courts exercised parens 14 patriae power to remove children from custody of abusive or neglectful parents).

15 Nevertheless, Cameron's reasoning and the common law defense of conviction apply with 16 equal force to child custody determinations. Once a parent is found guilty of abuse and 17 neglect serious enough to warrant a court denial of custody, any "injury caused solely by 18 prematurity of [the removal of his children] is, of itself, insubstantial." Cameron v. Fogarty, 19 806 F.2d at 388.*fn7

1 Indeed, the injury of premature removal to an abusive parent may be less substantial 2 than the injury of premature arrest to a convicted felon. While a felon's interest in his own 3 liberty is exclusive to himself, a parent's liberty interest in a family relationship is shared 4 with his children and based on an expectation of parental care, not abuse. Thus, an 5 adjudicated abusive parent's claimed liberty interest in continuing an abusive relationship 6 with his children is certainly de minimis, if not non-existent. The same conclusion obtains 7 with respect to abused children claiming any liberty interest in remaining in what has been 8 adjudicated to have been an abusive relationship.

9 This ground for affirming the district court's grant of summary judgment on plaintiffs' 10 due process claim would extend Cameron, a matter that merits careful consideration. But it 11 would be far worse to conclude, as the panel does without any consideration of Cameron's 12 reasoning, that adjudicated abusive parents and the children they abused can maintain 13 constitutional claims against child welfare workers for prematurely stopping the abuse.

14 Although defendants themselves did not raise a Cameron-based objection to suit, a court may 15 affirm summary judgment for any reason supported in the record. See Lee v. Kemna, 534 16 U.S. 362, 391 (2002) ("[I]t is well settled that an appellate tribunal may affirm a trial court's 17 judgment on any ground supported by the record."); 10 Ellicott Square Court Corp. v. 1 rule appears not to be available in New York child removal proceedings, see In re Diane P., 2 110 A.D.2d 354, 356, 494 N.Y.S.2d 881, 883 (2d Dep't 1985), it was also not available in 3 proceedings at common law, see United States v. Blue, 384 U.S. 251, 255 (1966) (noting that 4 "general common-law practice [wa]s to admit evidence despite its illegal origins"). If the 5 deterrent effect of the exclusionary rule in criminal proceedings did not inform the 6 development of the common law defense of conviction, it would surely be irrelevant to child 7 custody proceedings.

1 Mountain Valley Indem. Co., 634 F.3d 112, 125 (2d Cir. 2011). Such an affirmance is 2 particularly warranted where the challenged judgment is based on qualified immunity, the 3 very purpose of which is to "permit the defeat of insubstantial claims without resort to trial." 4 Harlow v. Fitzgerald, 457 U.S. at 813; accord Jenkins v. City of N.Y., 478 F.3d 76, 87 n.9 5 (2d Cir. 2007).

6 No different conclusion should obtain because the Southerland children also cast their 7 removal as an unreasonable seizure under the Fourth Amendment. The panel assumes that 8 the children could persuade a reasonable jury that it was constitutionally unreasonable for 9 Woo to remove them from the Southerland home without a court order in the absence of 10 evidence that they were in imminent danger of harm on those premises. See Southerland v. 11 City of N.Y., 2012 WL 1662981, at *28.*fn8 But once the Family Court, after a full trial, 12 determined that the children were at risk of such harm in their father's custody, thereby 13 precluding their return, any Fourth Amendment injury "caused solely by prematurity of [the 14 removal] is, of itself, insubstantial" and, therefore, should not be recognized at law. Cameron 15 v. Fogarty, 806 F.2d at 388. In short, once a home environment is adjudicated to have been 16 abusive, no responsible society would accept as objectively reasonable children's claims that 17 they had a cognizable constitutional right not to be prematurely removed from the premises. 18 Cf. California v. Greenwood, 486 U.S. 35, 39 (1988) (collecting cases recognizing that 1 Fourth Amendment protects only subjective expectations of privacy that "society accepts as 2 objectively reasonable").

3 Even if plaintiffs could state a cognizable constitutional claim under either the Fourth 4 or Fourteenth Amendment with respect to the children's removal--which they cannot--the 5 qualified immunity question would not be whether a reasonable jury could conclude that the 6 children were not at imminent risk of harm but, rather, whether a reasonable caseworker in 7 Woo's position could have concluded that they were. See Messerschmidt v. Millender, 132 8 S. Ct. at 1246; Malley v. Briggs, 475 U.S. at 341; Walczyk v. Rio, 496 F.3d at 154 (requiring 9 assessment of qualified immunity in "particular factual context" rather than in abstract).

10 Even setting aside the considerable evidence of neglect that Woo says he confronted upon 11 entering the Southerland home and that Southerland disputes, see Southerland v. City of 12 N.Y., 2012 WL 1662981, at *4, some caseworkers of reasonable competence could conclude 13 from the otherwise undisputed evidence that one or more of the Southerland children were 14 at risk of imminent harm in their father's custody.

15 As already noted, before entering Southerland's home, caseworkers knew from school 16 counselors that one of Southerland's children, Ciara, had expressed thoughts of suicide and 17 engaged in self-destructive behavior. Whatever the source of Ciara's troubles, Southerland 18 had not secured care for her and was, in fact, dismissive of her need for care. See id. at 9.

19 To the extent Southerland sought to excuse his neglect by claiming that Ciara had left home, 20 this cannot alter the fact that caseworkers were looking for an at-risk child who was in 21 Southerland's legal custody. That the custodial parent purported not to know the 1 whereabouts of such a child would heighten, not minimize, a reasonable caseworker's 2 concern as to Southerland's ability to care for children in his custody. That concern would 3 be magnified, moreover, when, upon entry into the Southerland home, caseworkers found 4 a child on the premises, nine-year-old Venus Southerland, with an untreated puncture wound 5 to her foot from stepping on a nail, and saw no sign that Southerland planned to secure the 6 treatment necessary to protect the child against tetanus. See Ex. D to Silverberg Decl. at 6, 7 ECF No. 168-7. In these circumstances, and in the absence of clearly established law to the 8 contrary, reasonable caseworkers could certainly have viewed Venus as facing imminent 9 serious harm if she was not removed from the premises and promptly afforded medical care. 10 See Messerschmidt v. Millender, 132 S. Ct. at 1245; Malley v. Briggs, 475 U.S. at 341.

11 Thus, Woo is at a minimum entitled to qualified immunity for removing Venus from 12 Southerland's home.

13 As for Woo's removal of the other Southerland children, this court appears never to 14 have ruled as to whether the risk of imminent harm required to effect a warrantless removal 15 is child-specific. We have provided no guidance to a caseworker who discovers one injured, 16 malnourished, or severely beaten child in need of immediate care as to whether (1) he can 17 effect a warrantless removal of all children found in the same household, or (2) he can 18 remove only the one child and must leave other children behind. Tenenbaum might be 19 understood to instruct caseworkers not to attempt to make such decisions if there is time to 20 seek judicial authorization. See Tenenbaum v. Williams, 193 F.3d at 596. But Tenenbaum 21 was not decided at the time of the removal at issue and, even now, it does not tell 1 caseworkers who do not have time to secure judicial authorization what removal decisions 2 will be lawful and unlawful with respect to the removal of a number of children when a risk 3 of imminent harm has been identified as to one.

4 Thus, in June 1997, when Woo removed the Southerland children from their father's 5 home, it was possible for "officers of reasonable competence" to "disagree" as to whether 6 the discovery that Venus Southerland was at risk of serious imminent harm unless removed 7 for prompt medical treatment sufficed to support the warrantless removal of all children in 8 Southerland's home. Malley v. Briggs, 475 U.S. at 341; see Walcyzk v. Rio, 496 F.3d at 9 154. In the face of such possible reasonable disagreement--that is, in the absence of a 10 clearly established statutory or constitutional rule of which a reasonable caseworker would 11 have been aware, see Harlow v. Fitzgerald, 457 U.S. at 818--Woo is entitled to qualified 12 immunity even from cognizable claims.

13 This is, however, a secondary point. For the reasons stated, the court should conclude 14 that plaintiffs state no cognizable due process or Fourth Amendment claims in connection 15 with the challenged removal. By analogy to Cameron v. Fogarty, 806 F.2d at 388-89, the 16 court should rule that an adjudicated abusive father and the children he abused cannot seek 17 damages from a child welfare worker for prematurely removing the children from the abusive 18 home.

20 By refusing to convene en banc, a majority of this court, no less than the panel itself, 21 tells a child welfare worker that he may have to pay money damages to an adjudicated 1 abusive father for rescuing children from his abusive custody. Further, the court tells the 2 worker that he may also have to pay damages to the abused children he rescued on some 3 theory that the caseworker did not yet appreciate that the circumstances were 4 exigent--though, in fact, they were. Such possible judgments are exactly what the doctrine 5 of qualified immunity is intended to protect against.

6 Rather than allow this case to go forward, this court should clarify two principles of 7 law: (1) there is always probable cause to look for an at-risk child in the home of his or her 8 custodial parent, at least absent conclusive evidence to the contrary; and (2) once a parent has 9 been adjudicated to have so abused and neglected his children as to be denied custody, 10 neither the adjudicated abusive parent nor the children he abused can sue the caseworker who 11 effected the initial removal for money damages based on due process or Fourth Amendment 12 claims that the removal was premature. With these principles clarified, there is no question 13 that the defendant caseworker, Timothy Woo, is entitled to summary judgment on the ground 14 of qualified immunity. Accordingly, I respectfully disagree with the panel decision to 15 reverse the award of summary judgment in this case, and I dissent from the court's decision 16 not to review that reversal en banc.

1 DENNIS JACOBS, Chief Judge, with whom Judge CABRANES, Judge 2 RAGGI, Judge WESLEY, and Judge LIVINGSTON join, dissenting 3 from the denial of rehearing in banc:

4 I concur entirely in Judge Raggi's dissenting opinion.

5 I dissent separately to make some additional points.

7 I

8 Under Section 1983, personal liability may not be 9 imposed on a government actor unless [1] his conduct 10 violated "clearly established constitutional rights" and [2] 11 it would have been unreasonable for him to have believed 12 otherwise. Holcomb v. Lykens, 337 F.3d 217, 220 (2d Cir. 13 2003) (quoting Weyant v. Okst, 101 F.3d 845, 857 (2d Cir. 14 1996)). Liability is precluded if government actors "of 15 reasonable competence could disagree on the legality of the 16 action at issue in its particular factual context." 17 Manganiello v. City of N.Y., 612 F.3d 149, 165 (2d Cir. 18 2010) (internal quotation mark omitted). "When properly 19 applied, [qualified immunity] protects all but the plainly 20 incompetent or those who knowingly violate the law." 21 Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (internal 22 quotation marks omitted).

1 It is easy to demonstrate that the panel opinion has 2 jumped the rails. Not only could other reasonably competent 3 child welfare workers conclude (as Mr. Woo did) that the 4 Southerland household constituted an "emergency," but Mr. 5 Woo's supervisor reached that very conclusion in this very 6 instance. See Southerland v. City of N.Y., Nos. 07-4449-cv 7 (L), 07-4450-cv (CON), 2012 WL 1662981, at *4 (2d Cir. May 8 14, 2012) (recounting that Mr. Woo applied for an order to 9 enter the Southerland apartment "at the direction of [his] 10 supervisor" and that, based on Mr. Woo's observations inside 11 the apartment, "[Mr.] Woo and his supervisor concluded that 12 the children's safety was threatened, and [Mr. Woo's 13 supervisor] directed [Mr.] Woo to remove the children from 14 the home"); see also Messerschmidt v. Millender, 132 S. Ct. 15 1235, 1250 (2012) (that an officer obtained the approval of 16 a superior before applying for a warrant "is certainly 17 pertinent in assessing whether [he] could have held a 18 reasonable belief that the warrant was supported by probable 19 cause"). And the Family Court would not have taken the 20 children from Southerland unless a hearing confirmed Mr. 21 Woo's professional judgment that the conditions created by 22 Southerland were unsafe for children. See In re Ciara M., 1 708 N.Y.S.2d 717, 719 (App. Div. 2d Dep't) (affirming the 2 Family Court's finding that Southerland sexually and 3 physically abused his children), leave to appeal denied, 95 4 N.Y.2d 767 (2000). These circumstances should have disposed 5 of this case years ago on a basis that would require no 6 opinion.

8 II

9 The State of New York deemed Southerland unfit to keep 10 custody of his children by reason of his neglect, beatings 11 and sexual abuse. Yet, in a way that seems unaccountable, 12 the panel opinion allows him to seek damages for loss of 13 consortium against the child welfare worker who temporarily 14 removed the children from his home. And it allows the 15 abused children to sue their rescuer for allegedly effecting 16 the rescue prematurely. Our legal system cannot afford such 17 a result. In my view, Mr. Woo conducted himself as a 18 reasonable and conscientious child services worker.

19 Fourth Amendment. The panel concludes that Mr. Woo is 20 not entitled even to qualified immunity on the plaintiffs' 21 Fourth Amendment unlawful search claims, on the ground that 22 errors and omissions in his affidavit for an Order 1 Authorizing Entry to Southerland's apartment would, if 2 corrected, have defeated probable cause. The panel finds 3 fault with Mr. Woo's affidavit because: [1] information is 4 omitted suggesting that Ciara (a daughter who drank a can of 5 paint and later complained of molestation by her father) 6 might not be found at Southerland's apartment because she 7 was said to have run away; [2] Ciara's swallowing of a can 8 of paint was characterized as a suicide attempt; [3] no 9 mention is made that Ciara swallowed the paint at school 10 (rather than in Southerland's apartment); and [4] the 11 children listed were the six children living with 12 Southerland's former "common-law wife," Diane Manning, not 13 the six children living with Southerland. See Southerland, 14 2012 WL 1662981, at *13-14, *16.

15 I find it uncontroversial (to say the least) that a 16 child welfare worker has probable cause to believe that a 17 child may be found on the premises of the residence of her 18 custodial parent. Moreover, Southerland himself would be 19 the ultimate source for any report that Ciara had "run 20 away." Even if Mr. Woo believed Southerland's report that 21 Ciara had run away, he still would have had cause to believe 22 that she might be found in Southerland's apartment--she 1 could have returned home, or been returned, or her father 2 may have lied, and she might have been there all along 3 enduring his sexual abuse. Mr. Woo cannot be faulted for 4 starting his investigation of child abuse at the child's 5 legal residence. And one must hope that child abusers do 6 not learn that probable cause for a warrant can be defeated 7 by a parent's assurance that his abused child is no longer 8 residing at home.

9 As to the affidavit's characterization of Ciara's paint 10 swallowing, it seems obvious that this was a suicide 11 attempt, or at least an ideation of suicide that required 12 prompt intervention. That is how it was understood by the 13 guidance counselor who reported the incident. See id. at 14 *3. It makes no difference whether the incident took place 15 at school or at Southerland's apartment; either way, 16 Southerland's failure to seek medical attention for his 17 daughter bespeaks neglect.

18 The panel criticizes Mr. Woo for listing the wrong 19 children's names on the application, as if this were an 20 obvious and decisive blunder. Given that there are at least 21 thirteen children and five adults in this decidedly 22 improvised family structure, such an error cannot render the 1 affidavit fatally defective. Regardless of the children's 2 names, Mr. Woo's application accurately conveyed the basis 3 for his reasonable belief that probable cause existed to 4 think that children in Southerland's apartment were being 5 neglected--as in fact they were. Because there is no 6 "genuine dispute that a magistrate would have issued the 7 warrant on the basis of the corrected affidavit[]," Mr. Woo 8 was entitled to judgment as a matter of law. Walczyk v. 9 Rio, 496 F.3d 139, 158 (2d Cir. 2007) (internal quotation 10 mark omitted).

11 Even if the supposed errors in Mr. Woo's affidavit were 12 essential to the finding of probable cause--and they plainly 13 were not--there is no basis for thinking that any of the 14 errors were made out of malice or recklessness, as opposed 15 to justified haste. Mr. Woo is entitled to qualified 16 immunity on that basis alone. See Golino v. City of New 17 Haven, 950 F.2d 864, 870-71 (2d Cir. 1991) (to sustain a 18 Section 1983 claim based on errors in a warrant affidavit, a 19 plaintiff must show "that the affiant knowingly and 20 intentionally, or with reckless disregard for the truth, 21 made a false statement in his affidavit and that the 22 allegedly false statement was necessary to the finding of 1 probable cause" (internal quotation mark omitted)).

2 Plaintiffs never alleged malice, and there is no such record 3 evidence.*fn1 Absent some such evidence, there can be no 4 genuine issue of material fact necessitating a trial on 5 plaintiffs' claims of unlawful search.

6 Due Process and Seizure. As to the claims of 7 procedural due process and Fourth Amendment unlawful 8 seizure, the panel holds that, at the time the children were 9 removed, it was clearly established law that officials could 10 not remove a child from the custody of a parent (without 11 consent or a prior court order) absent emergency 12 circumstances. Southerland, 2012 WL 1662981, at *18; see 13 also Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991).

14 But Mr. Woo as well as his supervisor (who ordered the 15 removal) concluded that an emergency existed. Based on Mr. 16 Woo's observations and what he knew, he reasonably perceived 17 a pattern of neglect and abuse. The panel assumes (though I 18 do not) that a reasonable jury would conclude that Mr. Woo-- 1 who was found in Family Court to have truthfully reported 2 Southerland's sexual and corporal abuse--is lying about 3 perceived evidence of neglect, whereas Southerland--who was 4 found to have lied in Family Court when he denied the abuse- 5 -is telling the truth about maintaining a home for the 6 children that was tidy, safe, and stocked with nourishing 7 food. But in any event, a pattern of neglect was manifested 8 by facts that cannot be disputed: Southerland's reported 9 failure to seek medical attention for Ciara after her 10 suicide attempt, or for Venus, whom caseworkers found 11 limping from a foot injury she incurred after stepping on an 12 exposed nail. As the opinion concedes, this Circuit has 13 never "set forth exhaustively the types of factual 14 circumstances that constitute imminent danger justifying 15 emergency removal." Southerland, 2012 WL 1662981, at *17. 16 That seems to me to be a wise forbearance. But here, where 17 no medical treatment was sought notwithstanding that the 18 Southerland children were at risk for suicide and lockjaw, 19 it was not objectively unreasonable for Mr. Woo to believe 20 that the children were "bereft of adequate care or 21 supervision" and that their removal was therefore justified. 22 Robison v. Via, 821 F.2d 913, 922 (2d Cir. 1987). The 1 panel's contrary decision undermines our precedent, which 2 has "emphasize[d] . . . the importance of the availability 3 of qualified immunity where child welfare workers are 4 seeking to protect children from abuse." Tenenbaum v. 5 Williams, 193 F.3d 581, 605 (2d Cir. 1999); see also id. 6 ("If caseworkers of reasonable competence could disagree on 7 the legality of a defendant's actions their behavior is 8 protected." (internal quotation marks and brackets 9 omitted)).

III

12 Nothing can account for such an opinion and result 13 except the panel's tacit assumption that Mr. Woo is merely a 14 nominal defendant, that the City of New York will take on 15 his defense and indemnify him for any judgment, and that 16 litigation like this is not really a claim against the 17 individual but is in effect an instrument for developing 18 ever more ramified constitutional principles and for 19 policing governmental compliance with these constitutional 20 developments. This is an almost-complete misconception of 21 Section 1983 claims against individuals. 22 An individual defendant has at stake his savings, his 1 pension, the equity in his home, the kids' college fund: 2 This should tell us something about the threshold of 3 liability. Properly applied, Section 1983 punishes 4 intentional and egregious violations of constitutional 5 rights while respecting the discretion of government actors, 6 and tolerating their good faith errors and misjudgments. 7 See Defore v. Premore, 86 F.3d 48, 50 (2d Cir. 1996) (per 8 curiam) (discussing the "importance of the defense of 9 qualified immunity to insure that publicly employed 10 caseworkers have adequate latitude to exercise their 11 professional judgment in matters of child welfare").

12 The drift of the law that has carried this case along 13 has been to ignore the standard appropriate to liability of 14 individuals, and to assume that a Section 1983 action is in 15 effect a suit not against the individual defendant but 16 against the government subdivision that employs him. This 17 buried assumption inheres in other cases; but this case 18 raises it to the surface. There are several things wrong 19 with that approach.

20 ! Municipalities are not liable under Section 1983 21 for the actions of their employees based on respondeat 22 superior; municipalities are liable only if the violation of 1 individual rights results from the "government's policy or 2 custom." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691- 3 94 (1978). The idea that the municipality or other state 4 subdivision is the real defendant in a case against the 5 individual is thus an end-run around Monell.

6 ! We have come to treat municipal indemnification 7 like insurance, and in that way discount the harshness of a 8 potential damages award against the individual government 9 worker. Of course, juries are not permitted to consider the 10 availability of insurance in assessing fault. See, e.g., 11 Fed. R. Evid. 411; Salm v. Moses, 13 N.Y.3d 816, 817 (2009) 12 (memorandum). One reason is the risk that jurors would 13 disregard controlling principles in order to compensate 14 plaintiffs without valid claims and over-compensate those 15 whose claims are valid. See Loughlin v. Brassil, 79 N.E. 16 854, 857 (N.Y. 1907) (observing that "in the case of an 17 individual defendant it might make it much easier to find an 18 adverse verdict if the jury understood that an insurance 19 company would be compelled to pay the verdict").

20 Universally, juries are insulated from the temptation to 21 distort the law in that way; it would be healthy if we 22 recognized the comparable risk that municipal 11 1 indemnification poses to judicial consideration of Section 2 1983 claims.

3 ! The premise--that a suit against an individual 4 government employee is in substance a suit against his 5 employer--is also wrong. In the City of New York (and 6 doubtless in some other political subdivisions of this 7 Circuit), the government supplies defense counsel and pays 8 the judgment--except in the egregious cases to which alone 9 Section 1983 should apply. But this Circuit includes scores 10 of counties and hundreds of towns and municipalities; and 11 there are thousands of political subdivisions in the nation. 12 Not all of them will indemnify their employees for Section 13 1983 judgments; many cannot even afford to furnish a 14 defense; some can barely keep the school open. Counterparts 15 to Mr. Woo, who are employed elsewhere, face ruin and 16 bankruptcy in Section 1983 cases.

17 ! There is a big gap between the egregious conduct 18 that supports Section 1983 liability and merely imperfect or 19 negligent conduct. Some would fill that gap by an 20 assumption, contrary to fact, that government workers are 21 all constitutional law professors, or at least lawyers--or 22 that they would be improved if they were. Such persons fail 1 to understand that child welfare workers, teachers, prison 2 guards, probation officers, and police learn and practice 3 the skills of their own demanding professions, and do not in 4 the usual course absorb lengthy opinions of this Court, not 5 all of which are illuminating.

6 ! The panel's opinion and the assumptions that 7 animate it have effects that reach beyond Mr. Woo and the 8 City of New York as his employer: There is a substantial 9 and direct impact on public safety. The imposition of 10 personal liability, particularly in jurisdictions where the 11 judgment is not indemnified or insured, creates an incentive 12 for child welfare workers (and other government employees 13 charged with protecting the public) not to act. When the 14 panel opinion in this case is considered together with 15 DeShaney v. Winnebago County Department of Social Services, 16 489 U.S. 189 (1989), holding that state officials have no 17 constitutional duty to protect children against domestic 18 abuse, a perverse incentive is created. A child welfare 19 worker is shielded from liability when she recklessly fails 20 to protect abused children, but she is exposed to personal 21 liability when she acts in good faith to protect them. 22 Faced with these choices, a rational child welfare worker 1 will err on the side of caution every time--and children who 2 otherwise would have been rescued from dangerous and abusive 3 situations will live in peril.

5 IV

6 We should appreciate that conscientious child welfare 7 workers must promptly make anguished decisions. As judges, 8 we can weigh the legal issues presented and draft at 9 leisure, assisted by a journal of law clerks. Mr. Woo had 10 none of these advantages; and he acted as (one hopes) any 11 dutiful child welfare worker in his position would have 12 done. Not only was Mr. Woo not so "plainly incompetent" as 13 to forfeit the protections of qualified immunity, al-Kidd, 14 131 S. Ct. at 2085 (quoting Malley v. Briggs, 475 U.S. 335, 15 341 (1986)), his judgment that Southerland was abusing or 16 neglecting his children was spot on, and was vindicated by 17 the Family Court's findings of sexual and physical abuse.

18 The panel would send Mr. Woo to a jury for an 19 assessment of his liability and the damages he should pay.

20 I would shake his hand.


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