                     UNITED STATES COURT OF APPEALS
Filed 12/6/96
                            FOR THE TENTH CIRCUIT



    PATRICIA LOPKOFF, VINCENT C.
    TODD,

               Plaintiffs-Appellees,
                                                       No. 95-1454
    v.                                              (D.C. No. 95-D-879)
                                                         (D. Colo.)
    GREGG SLATER, PATRICK
    WILSON, MARY SUTTON, STEVE
    EVANS,

               Defendants-Appellants,

         and

    CITY OF LAKEWOOD,

               Defendant.




                            ORDER AND JUDGMENT *



Before BALDOCK and BRISCOE, Circuit Judges, and LUNGSTRUM, ** District
Judge.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
       Honorable John W. Lungstrum, District Judge, United States District Court
for the District of Kansas, sitting by designation.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Defendants-appellants, officers with the City of Lakewood police

department, appeal the district court’s order denying their motion for summary

judgment based on the defense of qualified immunity. Plaintiffs claim that

defendants violated their rights secured by the First and Fourth Amendments

when they entered plaintiff Lopkoff’s apartment on two occasions. Defendants

contend that they are entitled to qualified immunity because they entered

Lopkoff’s apartment only to ensure that her children were safe, and did not charge

her with any crime.


                                         I.

      Plaintiffs’ claims are based on two incidents occurring in 1993 in which

defendants entered Lopkoff’s apartment pursuant to complaints that she was not

caring for her children properly. The undisputed facts establish that on April 21,

1993, defendant Slater and another officer arrived at Lopkoff’s apartment in

response to a telephone report from her sister that she was intoxicated and unable


                                         -2-
to care for her three-year-old son. The child opened the apartment door, thus

permitting the officers to see into the apartment and observe that it was cluttered

with clothing, boxes, papers and bags. Lopkoff met the officers just inside the

door and replied “O.K.” to the officers’ advisement that they were there to

investigate the welfare of her son. Lopkoff, who is hearing impaired, then

requested permission to call an interpreter and her attorney. Slater informed her

that she could do so, to which Lopkoff replied, “no.” Slater smelled alcohol on

Lopkoff’s breath. Slater followed Lopkoff around her apartment, for reasons of

officer safety. At some point another officer arrived and took photographs of the

inside of Lopkoff’s apartment. The officers also searched the inside of Lopkoff’s

refrigerator. During the search, Lopkoff’s attorney, plaintiff Todd, arrived. He

informed defendants of his opinion that the search of Lopkoff’s apartment was

improper absent a search warrant. Defendants dispute Todd’s statement that the

officers informed him that they were investigating the scene of a child abuse

crime.

         The next incident occurred on May 11, 1993, pursuant to a telephone call to

the police by Lopkoff’s sister or daughter alleging that Lopkoff was abusing her

children. When defendants Slater and Wilson arrived at the apartment building,

Lopkoff’s daughter was in the parking lot. She stated that her mother had been

drinking, and had hit her on the shoulder and forearm. Slater and Wilson then


                                          -3-
went to Lopkoff’s apartment where she was meeting with Todd. Lopkoff

instructed Todd not to let the officers into her apartment. Todd informed the

officers that they could not talk with Lopkoff until an interpreter arrived. The

officers then left, but returned shortly, stating that they could wait no longer to

speak with Lopkoff. Lopkoff’s brother was present, and the children were with

him outside the apartment. At some point defendants Sutton and Evans came on

the scene. According to Todd, he was threatened with arrest if he did not step

aside to permit the officers to enter the apartment to pursue their criminal

investigation. Defendants’ version is that Todd was informed that if he did not

stop interfering with their efforts to speak with Lopkoff, he would be charged

with interference. Thereafter, defendants Slater, Wilson, Sutton and Evans

entered Lopkoff’s apartment, at which point Lopkoff left the apartment. The

officers then left, closing and locking the front door. Plaintiffs were locked out

for three hours until a professional locksmith unlocked the door.


                                          II.

      We first examine our jurisdiction to consider this appeal. We requested

briefs from the parties to address the recent decision of Johnson v. Jones, 115

S. Ct. 2151 (1995), holding that interlocutory jurisdiction does not lie to review a

denial of qualified immunity when the denial is based on the existence of a

genuine issue of material fact. 115 S. Ct. at 2156, 2159. “Johnson reaffirmed

                                          -4-
that summary-judgment determinations are appealable when they resolve a dispute

concerning an ‘abstract issu[e] of law’ relating to qualified immunity, typically,

the issue whether the federal right allegedly infringed was ‘clearly established.’”

Behrens v. Pelletier, 116 S. Ct. 834, 842 (1996)(citations omitted). Accordingly,

we have jurisdiction to review the district court’s determinations regarding

whether the law was clearly established. Mick v. Brewer, 76 F.3d 1127, 1133

(10th Cir. 1996). “We lack jurisdiction, however, to the extent that [defendants]

seek interlocutory review of the district court’s ruling that genuine disputes of

fact precluded summary judgment based on qualified immunity.” Id.

Accordingly, to the extent that defendants claim that Lopkoff consented to the

first search, 1 we are without jurisdiction to review the district court’s conclusion

that material disputed facts exist regarding whether Lopkoff consented.

      Further, we do not have the benefit of defendants’ affidavits because they

were not included in appellants’ appendix. See Rios v. Bigler, 67 F.3d 1543,

1553 (10th Cir. 1995)(appellant has responsibility to provide proper record on

appeal). Therefore, we do not address the claim that the evidence establishes that

defendants Sutton and Evans remained outside Lopkoff’s apartment.


1
       Defendants suggest in their jurisdictional brief that they relied on consent
or exigent circumstances as authority for their entry into Lopkoff’s apartment. In
their opening brief, defendants do not argue that consent or exigent circumstances
provided justification to enter the apartment. They do, however, claim in their
reply brief that they could have believed they had consent.

                                          -5-
      Plaintiff Todd’s claims are not before us in this appeal. The district court

granted defendants’ motion for summary judgment on Todd’s First Amendment

claim, and held that Todd’s Fourth Amendment claim was not presented for its

determination. Todd did not file a cross appeal. See Snell v. Tunnell, 920 F.2d

673, 676 (10th Cir. 1990). We therefore address Lopkoff’s claims that her Fourth

Amendment rights were violated, as those rights are enforced against the States

through the Fourteenth Amendment.


                                        III.

      A government official is entitled to qualified immunity from civil damages

for performing discretionary functions when his “conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We review de

novo the district court’s qualified immunity holding at the summary judgment

stage. Mick, 76 F.3d at 1134-35.

      Defendants raised the defense of qualified immunity, thus placing on

plaintiffs the “heavy burden” to demonstrate that defendants violated clearly

established law. Hannula v. City of Lakewood, 907 F.2d 129, 130-31 (10th Cir.

1990). To meet this burden, plaintiffs must “demonstrate a substantial

correspondence between the conduct in question and prior law allegedly

establishing that the defendant’s actions were clearly prohibited. The ‘contours

                                         -6-
of the right must be sufficiently clear that a reasonable official would understand

that what he is doing violates that right.’” Id. at 131 (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)(further citation omitted)). The official’s

specific actions need not have been previously held unlawful, but the plaintiff

must demonstrate that the unlawfulness of the conduct in question is apparent in

light of preexisting law. Anderson, 483 U.S. at 640. If the plaintiffs satisfy this

burden, the defendants must show “that no material issues of fact remain as to

whether the defendant[s’] actions were objectively reasonable in light of the law

and the information the defendant[s] possessed at the time of [their] actions.”

Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th Cir. 1991)(citations omitted).


                                         IV.

      “The boundary for [defendants’] conduct establishing the ‘contours of the

right’ involved is the Fourth Amendment, which proscribes unreasonable

searches.” Franz v. Lytle, 997 F.2d 784, 787 (10th Cir. 1993). “[O]ne governing

principle, justified by history and by current experience, has consistently been

followed: except in certain carefully defined classes of cases, a search of private

property without proper consent is ‘unreasonable’ unless is has been authorized

by a valid search warrant.” Camara v. Municipal Court, 387 U.S. 523, 528-29

(1967). The privacy of the dwelling has consistently been protected over the

years. Wyman v. James, 400 U.S. 309, 316 (1971).

                                         -7-
      Defendants do not dispute that the law was clearly established that a

warrantless search of a private residence is per se unreasonable under the Fourth

Amendment unless one of “a few specifically established and well-delineated

exceptions” applies. Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971).

Rather, they claim that “a reasonable officer could have believed [defendants’]

warrantless search[es] to be lawful, in light of clearly established law and the

information the searching officers possessed.” Anderson, 483 U.S. at 641.

Defendants maintain that because they had “received specific information

questioning the safety of children,” e.g., appellants’ opening brief at 1, they acted

in an objectively reasonable manner when they entered Lopkoff’s private

residence.

      Defendants argue that their subjective intent is relevant to the inquiry.

Appellants’ opening brief at 13. It is not relevant. Anderson, 483 U.S. at 641.

Defendants emphasize that Lopkoff was never charged with a criminal offense as

a result of their investigation. “It is surely anomalous to say that the individual

and [her] private property are fully protected by the Fourth Amendment only

when the individual is suspected of criminal behavior.” Camara, 387 U.S. at 530

(footnote omitted).

      We are not persuaded by defendants’ argument that the case law permitting

police officers to safeguard persons in custody serves to establish that police


                                          -8-
officers may disregard the warrant requirement where child welfare is concerned,

absent exigent circumstances. We do not discount the importance of children’s

safety, but we reject defendants’ unwarranted attempt to invoke it to justify their

actions under the circumstances presented here.

      Defendants assume, without supporting case authority, that it has been

established that social workers are authorized to make warrantless entries into

private residences. Generally, the actions of social workers, as well as those of

police officers, are evaluated under a traditional Fourth Amendment analysis,

even in cases involving child abuse and neglect. See Parkhurst v. Trapp, 77 F.3d

707, 711 (3d Cir. 1996)(qualified immunity denied to police officers for

warrantless search of residence to locate missing child where no showing of

imminent danger); Lenz v. Winburn, 51 F.3d 1540, 1551-52 (11th Cir.

1995)(qualified immunity granted to social worker for entry into private residence

as objectively reasonable under the circumstances); Snell, 920 F.2d at 691, 700

(child welfare workers not entitled to absolute immunity in cases involving claims

of child abuse; qualified immunity not available to child welfare workers who

gained entry into residence based on known false allegations); Good v. Dauphin

County Social Servs., 891 F.2d 1087, 1095 (3d Cir. 1989)(qualified immunity

denied to social worker and police officer for forced entry into residence for strip

search of child where no emergency existed); Darryl H. v. Coler, 801 F.2d 893,


                                         -9-
908 (7th Cir. 1986)(social workers entitled to qualified immunity because they

acted pursuant to departmental guidelines and could not have been expected to

know that following the guidelines violated clearly established constitutional

rights); White ex rel. White v. Pierce County, 797 F.2d 812, 816 (9th Cir.

1986)(qualified immunity granted to police officers for entry into private

residence in child abuse investigation where exigent circumstances were present);

see also Wildauer v. Frederick County, 993 F.2d 369, 373 (4th Cir.

1993)(“Individuals who investigate child abuse or neglect enjoy at least qualified

immunity;” entry into private residence was consensual, and state’s interest in

medical examination of foster children “outweighed any attenuated privacy

interest of [plaintiff].”).

       To the extent defendants rely on Wyman v. James for the proposition that a

social worker does not need a search warrant to enter a private residence, that

reliance is misplaced. Wyman involved a challenge to the requirement that a

social worker conduct a home visit as a prerequisite to the receipt of welfare

benefits. The Court delineated eleven factors supporting the conclusion that a

home visit was not an unreasonable requirement. 400 U.S. at 318-24. The Court

emphasized that the plaintiff had the choice to refuse the home visit and thus

forfeit the benefits, id. at 324, a choice not available to Lopkoff.




                                          -10-
      Defendants argue that Tenth Circuit authority was confusing or

contradictory, citing Franz, 997 F.2d 784, and Snell, 920 F.2d 673. They

maintain that those cases demonstrate the confusion about whether defendants

should have known that they were not authorized to enter and search Lopkoff’s

apartment. Defendants have misapprehended the facts and holding of Franz. In

both cases, this court concluded that the respective police officers did not act in

an objectively reasonable manner and were not entitled to qualified immunity.

Franz, 997 F.2d at 793, Snell, 920 F.2d at 700. Neither case addressed the precise

issue raised here, however.

      Viewing the evidence in the light most favorable to plaintiffs, see Mick, 76

F.3d at 1134-35, we conclude that no reasonable officer would consider the

searches lawful. There was no evidence that the three-year-old boy was neglected

at the first visit, the children were not present in the apartment during the second

visit, and defendants identified no circumstances to justify a search based on

officer safety, see United States v. Tisdale, 921 F.2d 1095, 1097 (10th Cir.

1990)(protective sweep of home by officer executing arrest warrant justified by

defendant’s history of firearm violations, possibility that defendant was armed,

sight of defendant fleeing out window and sound of two gunshots). Moreover,

defendants do not claim exigent circumstances existed. A reasonable police

officer trained in the law of search and seizure would not have believed that a


                                         -11-
warrantless entry into Lopkoff’s private residence under these circumstances was

lawful. Cf. Franz, 997 F.2d at 793 (“[P]olice officers, functioning as police

officers, must conduct themselves by the constitutional norms that embrace their

training.”). Accordingly, we affirm the district court’s conclusion that defendants

were not entitled to qualified immunity from Lopkoff’s Fourth Amendment

claims.

      AFFIRMED.



                                                    Entered for the Court



                                                    Mary Beck Briscoe
                                                    Circuit Judge




                                        -12-
