                                                                              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                            NOT FOR PUBLICATION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.




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