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

 1                        UNITED STATES COURT OF APPEALS
 2                            FOR THE SECOND CIRCUIT

 3                               August Term, 2008

 4   (Argued:    April 21, 2009                  Decided:    June 10, 2011
 5                       As Amended: February 2, 2012)

 6               Docket Nos. 07-4449-cv (L), 07-4450-cv (CON)

 7                   -------------------------------------

 8   SONNY B. SOUTHERLAND, SR., individually and as parent and natural
 9        guardian of VENUS SOUTHERLAND, SONNY B. SOUTHERLAND, JR.,
10    NATHANIEL SOUTHERLAND, EMMANUEL FELIX, KIAM FELIX, and ELIZABETH
11                                  FELIX,

12                            Plaintiffs-Appellants,


13                                     - v -

14               CITY OF NEW YORK, TIMOTHY WOO, JOHN DOES 1-9,

15                             Defendants-Appellees.*

16                   -------------------------------------

17   Before:     KEARSE, SACK, and HALL, Circuit Judges.
18
19               Consolidated appeals from a summary judgment entered by

20   the United States District Court for the Eastern District of New

21   York (Charles P. Sifton, Judge) in favor of, inter alios, the

22   defendant Timothy Woo.      The plaintiffs -- a father and his

23   children -- bring various claims under 42 U.S.C. § 1983 asserting

24   that Woo, a children's services caseworker employed by the

25   defendant City of New York, entered their home unlawfully and

26   effected an unconstitutional removal of the children into state



           *
            The Clerk of Court is directed to amend the official
     caption in accordance with the foregoing.
 1   custody.   The district court concluded that Woo was entitled to

 2   qualified immunity with respect to all of the claims against him.

 3   The grant of summary judgment is affirmed with respect to the

 4   father's substantive due process claim, but vacated and remanded

 5   with respect to the father's and children's Fourth Amendment

 6   unlawful-search and Fourteenth Amendment procedural due process

 7   claims, and the children's Fourth Amendment unlawful-seizure

 8   claim.

 9              As amended, affirmed in part; vacated and remanded in

10   part.

11
12                             MICHAEL G. O'NEILL, New York, N.Y., for
13                             Plaintiffs-Appellants Venus S., Sonny
14                             B.S. Jr., Nathaniel S., Emmanuel F.,
15                             Kiam F., and Elizabeth F.
16
17                             SONNY B. SOUTHERLAND, Brooklyn, N.Y.,
18                             Plaintiff-Appellant, pro se.

19                             JULIAN L. KALKSTEIN, City of New York
20                             (Michael A. Cardozo, Corporation
21                             Counsel; Larry A. Sonnenshein, of
22                             counsel), New York, N.Y., for
23                             Defendants-Appellees.
24

25   SACK, Circuit Judge:

26              This lawsuit involves a man and a woman -- the

27   plaintiff Sonny B. Southerland Sr. ("Southerland") and non-party

28   Diane Manning -- two groups of children, and a caseworker's

29   apparent confusion between the two groups.   Plaintiff Ciara

30   Manning is the daughter of Southerland and Diane Manning.   Ciara


                                      2
 1   was supposed to be living with Southerland at the time in

 2   question, but in fact had left to live with a friend, and had not

 3   resided in Southerland's home for at least a year.

 4             In addition to Ciara, plaintiff Southerland fathered,

 5   by one or more women other than Diane Manning, six other

 6   children: the plaintiffs Venus Southerland, Sonny B. Southerland

 7   Jr., Nathaniel Southerland, Emmanuel Felix, Kiam Felix, and

 8   Elizabeth Felix (together, the "Southerland Children").    At the

 9   time of the principal events in question, the Southerland

10   Children, unlike Ciara, were living with their father.

11             Diane Manning also allegedly bore, by one or more men

12   other than Southerland, six children other than Ciara: Eric

13   Anderson, Richy Anderson, Felicia Anderson, Erica Anderson,

14   Michael Manning, and Miracle Manning (together, the "Manning

15   Children").   They lived with Diane and, like her, are not parties

16   to this lawsuit.

17             In May 1997, the defendant Timothy Woo, a caseworker in

18   the Brooklyn Field Office of the New York City Administration for

19   Children's Services ("ACS"), was assigned to investigate a report

20   by a school counselor about then-sixteen-year-old Ciara Manning.

21   School staff had thought Ciara to be acting strangely.

22             After being unable, despite repeated attempts, to gain

23   entry to the Southerland home to investigate the report, Woo

24   sought and obtained from the Kings County Family Court an order


                                      3
 1   authorizing entry into the apartment.    Woo's application to

 2   obtain that order contained several misstatements of fact, which

 3   suggested Woo's possible confusion about which of the children

 4   resided with Southerland.

 5                Under the authority of the Family Court's order, Woo

 6   then entered the Southerland apartment.    Ciara was not there;

 7   some of Southerland's other children who lived with him, the

 8   Southerland Children, were.     Based on what Woo perceived to be

 9   the poor condition of the home and of the Southerland Children,

10   and based upon his other observations from the investigation

11   undertaken to that date, Woo and his supervisor decided to carry

12   out an immediate removal of the children into ACS custody.

13                Southerland and the Southerland Children brought this

14   action based on Woo's entry into the apartment and removal of the

15   children.    They claim that Woo violated their Fourth Amendment1

16   rights to be free from unreasonable searches of their home, and

17   that the manner in which the Southerland Children were removed

18   violated their procedural due process rights under the Fourteenth

19   Amendment.    Southerland also claims that the removal of the

20   Southerland Children from his home violated his substantive due


          1
            We refer throughout this opinion to asserted Fourth
     Amendment rights of the plaintiffs. Inasmuch as the defendants
     are state and not federal actors, of course, whatever rights the
     plaintiffs have are "under the Fourth Amendment, as applied to
     the States under the Fourteenth Amendment['s]" Due Process
     Clause. Kia P. v. McIntyre, 235 F.3d 749, 761 (2d Cir. 2000);
     see Mapp v. Ohio, 367 U.S. 643, 655 (1961).

                                        4
 1   process rights under the Fourteenth Amendment.    Finally, the

 2   Southerland Children claim that their removal violated their

 3   Fourth Amendment rights to be free from unreasonable seizure.

 4               The district court (Charles P. Sifton, Judge)2

 5   concluded, inter alia, that Woo was entitled to qualified

 6   immunity with respect to all of the claims against him and

 7   granted summary judgment in his favor.    We agree with respect to

 8   Southerland's substantive due process claim.    We disagree,

 9   however, as to Southerland's and the Southerland Children's

10   Fourth Amendment unlawful-search claims, Southerland's and the

11   Southerland Children's procedural due process claims, and the

12   Southerland Children's Fourth Amendment unlawful-seizure claim.

13   To that extent, we vacate the district court's judgment and

14   remand for further proceedings.

15                                BACKGROUND

16               The relevant facts are rehearsed in detail in the

17   district court's opinion.    See Southerland v. City of N.Y., 521

18   F. Supp. 2d 218 (E.D.N.Y. 2007) ("Southerland II").    They are set

19   forth here only insofar as we think it necessary for the reader

20   to understand our resolution of these appeals.    Where the facts

21   are disputed, we construe the evidence in the light most

22   favorable to the plaintiffs, who are the nonmoving parties.      See,

23   e.g., SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d


          2
              Judge Sifton passed away while these appeals were pending.

                                       5
 1   Cir. 2009).   We also draw all reasonable factual inferences in

 2   the plaintiffs' favor.    See, e.g., id.

 3             The ACS Investigation

 4             On May 29, 1997, a school guidance counselor reported

 5   to the New York State Central Registry Child Abuse Hotline that

 6   one of the school's students, Ciara Manning, the then-sixteen-

 7   year-old daughter of Diane Manning and plaintiff Southerland, was

 8   "emotionally unstable."   The counselor further reported:

 9             Fa[ther] fails to follow through w[ith]
10             mental health referrals. On 5/12/97 the
11             ch[ild] swallowed a can of paint. F[ather]
12             failed to take the ch[ild] for medical
13             attention. Fa[ther] is unable to control or
14             supervise the ch[ild]. She may be staying
15             out of the home in an i[m]proper
16             enviro[n]ment.

17   Intake Report at 3, Office of Children and Family Services, Child

18   Protective Services, May 29, 1997 ("Intake Report"), Ex. A to the

19   Declaration of Janice Casey Silverberg (Dkt. No. 168)

20   ("Silverberg Decl."), Southerland v. City of N.Y., No. 99-cv-3329

21   (E.D.N.Y. Sept. 18, 2006).   The Intake Report was transmitted to

22   the Brooklyn Field Office of the ACS.      There, Fritz Balan, a

23   supervisor, assigned the case to defendant Timothy Woo, an ACS

24   caseworker, for investigation.    Woo, who was required by New York

25   law to begin his investigation within 24 hours, did so that day.

26             He first examined the files of a case pending in that

27   ACS office regarding Ciara's mother, Diane Manning.     Material in

28   those files disclosed that Ciara had several younger half-

                                       6
 1   siblings: the Manning Children.   According to Woo, this material

 2   also indicated that Ciara was reported to be living with her

 3   father, Southerland, at a Brooklyn address, although plaintiffs

 4   correctly note the absence of any further evidence as to the

 5   source of that information or the time it was received.    It is

 6   not clear from the record whether Woo was aware that the children

 7   referenced in Diane Manning's case file were not related to

 8   Southerland and that they did not live with him.   See Southerland

 9   II, 521 F. Supp. 2d at 222, 224 & n.8.

10             Woo also contacted the school guidance counselor who

11   had called the child-abuse hotline.   According to Woo, the

12   counselor told him that while at school, Ciara had swallowed non-

13   toxic paint, expressed thoughts of suicide, and was generally

14   behaving aggressively and "acting out."   Declaration of Timothy

15   Woo ¶ 6 (Dkt. No. 169) ("Woo Decl."), Southerland v. City of

16   N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006).    Woo's

17   handwritten notes from the conversation indicate that the

18   counselor told Woo that Ciara was having "problems trying to get

19   [her] fa[ther's] attention" and that her "father doesn't approve

20   of the place [where she] is staying."    Notes of Timothy Woo at 1

21   ("Counselor Phone Call Notes"), Ex. A to the Declaration of

22   Michael G. O'Neill (Dkt. No. 182) ("O'Neill Decl."), Southerland

23   v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Dec. 29, 2006).     It is

24   disputed whether the counselor also told Woo that Southerland had


                                       7
 1   been unresponsive to the school's stated concerns about Ciara's

 2   behavior.

 3               Later the same day, May 29, 1997, Woo attempted to

 4   visit Southerland's apartment in Brooklyn.    Woo testified that he

 5   thought Ciara was residing at that apartment because an open case

 6   file on Ciara's mother indicated that Ciara lived with her

 7   father.    Woo Decl. ¶¶ 5,7.   However, as discussed above, Woo's

 8   conversation with the counselor earlier in the day suggested that

 9   Ciara was not living with her father.    When no one answered the

10   door at Southerland's home, Woo left a note containing his

11   contact information.

12               The following day, May 30, Southerland telephoned Woo.

13   During the course of their conversation, Southerland described

14   Ciara as a runaway who would not obey him.    Southerland suggested

15   that he visit the ACS office to discuss the matter with Woo

16   further.    The plaintiffs dispute Woo's assertion that during the

17   phone conversation, Southerland indicated that he would not

18   permit Woo to visit Southerland's apartment.    Southerland

19   contends that, although he did question why Woo needed to visit

20   the apartment since Ciara did not live there, Southerland

21   nonetheless indicated that he would be willing to make an

22   appointment for Woo to conduct a home visit if Woo insisted.

23               Southerland visited the ACS office and met with Woo

24   later that day.   According to Southerland's deposition testimony,


                                        8
 1   he told Woo that Ciara had run away and that he had obtained

 2   several "Persons in Need of Supervision" ("PINS") warrants

 3   against her.3    Woo's case notes indicate that Woo asked

 4   Southerland why he had not sought medical attention for Ciara

 5   after the paint-swallowing incident.    Southerland did not answer

 6   the question.4    See Progress Notes of T. Woo at 1 ("Progress

 7   Notes"), Ex. B to O'Neill Decl.

 8              Southerland told Woo that Ciara did not need

 9   psychiatric help, and that she "was only acting the way she did

10   to get attention."    Woo Decl. ¶ 10; see also Declaration of Fritz

11   Balan ¶ 7 (Dkt. No. 170) ("Balan Decl."), Southerland v. City of

12   N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006).    According to

13   Woo, Woo explained to Southerland that various services were

14   available through ACS to assist him and his children, including

15   counseling and help with obtaining food, furniture, and clothing.

16   Woo said Southerland declined.    According to Southerland's

17   deposition testimony, however, no such assistance was ever

18   offered.


          3
             Under New York law, a parent may initiate a proceeding to
     adjudicate a child as a "person in need of supervision" when that
     parent alleges that he or she cannot control the child and needs
     the state's assistance. Such proceedings are governed by Article
     7 of the New York Family Court Act. See N.Y. Fam. Ct. Act § 711
     et seq.
          4
             Southerland later testified that the school contacted him
     with a medical referral after the paint-swallowing incident, and
     that he had tried to get Ciara to go to the appointment that was
     scheduled for her, but that she refused to go.

                                       9
 1                When Woo said he would need to make a home visit,

 2   Southerland replied that it would be "no problem" as long as he

 3   was notified in advance.    Southerland II, 521 F. Supp. 2d at 223;

 4   see also Deposition of Sonny B. Southerland at 207 ("Southerland

 5   Dep."), Ex. F to O'Neill Decl.    Southerland asserts that Woo

 6   stated he would call him to arrange the visit, but that Woo never

 7   made such a call.

 8                On June 2, 1997, Woo made a second attempt to examine

 9   the Southerland apartment.    A woman whose identity was unknown to

10   Woo answered the door.    She said that Southerland was not at

11   home.   Woo left.

12                The following day, June 3, Woo again went to the

13   apartment.    He heard noises inside, but no one answered the door.

14   Again, he left.

15                The next day, June 4, Woo went to the apartment for a

16   fourth time.    He waited in the hallway for several minutes.

17   Southerland emerged accompanied by five school-aged children:

18   Sonny Jr., Venus, Emmanuel, Nathaniel, and Kiam.    Woo wrote down

19   their names in his case notes.    Southerland told Woo that he did

20   not have time to talk because he was taking the children to

21   school.   Woo gave Southerland an ACS business card and told him

22   that if he continued to be uncooperative, ACS would seek court

23   action.   See Southerland II, 521 F. Supp. 2d at 223-24 & n.6; see

24   also Progress Notes at 2.


                                       10
 1             The Removal of the Southerland Children

 2             On June 6, 1997, at the direction of supervisor Balan,

 3   Woo applied to the Kings County Family Court for an order to

 4   enter the Southerland apartment pursuant to section 1034(2) of

 5   the New York Family Court Act.    It is ACS policy to investigate

 6   not only the status of the child named in a report of suspected

 7   abuse or neglect of the type referred to in section 1034(2), but

 8   also to ascertain the condition of any other children residing in

 9   the same home.   Woo listed Ciara on the application.   Instead of

10   including the names of the children he had met leaving

11   Southerland's home on June 4, however, he listed the other

12   children of Ciara's mother Diane -- the Manning Children: Eric

13   Anderson, Richy Anderson, Felicia Anderson, Michael Manning,

14   Miracle Manning, and Erica Anderson -- whose names he apparently

15   had obtained from the Diane Manning case files he had reviewed at

16   ACS's Brooklyn Field Office.5    The Family Court issued an "Order


          5
             Woo listed the names and dates of birth of Ciara and the
     Manning Children at the top of the application, along with
     Southerland's name and the address of the Southerland apartment.
     The body of the application states in its entirety:

          I, Timothy Woo, Caseworker for ACS, am a person
          conducting a child protective investigation pursuant to
          the Social Services Law. I have reasonable cause to
          believe that the above named children may be found at
          the above premises. I have reason to believe that the
          children are abused or neglected children. The reasons
          and the sources of information are as follows:

          That on May 12, 1997, Sierra [sic] Manning, age 16
          tried to kill herself by swallowing non-toxic paint.

                                      11
 1   Authorizing Entry" into the Southerland apartment the same day,

 2   June 6.   See Southerland II, 521 F. Supp. 2d at 224.

 3                Three days later, on the evening of June 9, 1997,

 4   pursuant to the Order Authorizing Entry, Woo and at least one

 5   other caseworker entered the Southerland apartment with the

 6   assistance of officers from the New York City Police Department.

 7   Southerland and the Southerland Children were inside the

 8   apartment.     Woo Decl. ¶¶ 13-15, 19.   The district court described

 9   what happened next, from Woo's perspective:

10                Woo determined that there were six children
11                between the ages of three and nine residing
12                in the apartment. He listed their names
13                [correctly] as Venus, Sonny Jr., Nathaniel,
14                Emmanuel, Kiam, and Elizabeth Felix. Soon
15                after beginning his evaluation of the home,
16                Woo called his supervisor [Balan] on his cell
17                phone, described his observations, and
18                answered his supervisor's questions. Woo
19                reported that the four boys slept on the
20                floor in one bedroom and the two girls slept
21                on a cot in another bedroom. The children


          Mr. Sutherland [sic] did not take Sierra [sic] to a
          medical doctor and refused to take Sierra [sic] for
          psychiatric evaluation.

          Mr. Sutherland [sic] has refused to allow the
          Administration for Children's Services into his home to
          speak to the above named children.

          WHEREFORE, the applicant moves for an order authorizing
          the Administration for Children's Services accompanied
          by police to enter the premises to determine whether
          the above named children are present and to proceed
          thereafter with its child protective investigation.

     Application for Authorization to Enter Premises dated June 6,
     1997, Ex. C to Silverberg Decl.

                                       12
 1             appeared as though they had not been bathed
 2             in days and their clothing was malodorous.
 3             In the refrigerator, Woo found only beer, a
 4             fruit drink, and English muffins. Woo did
 5             not examine the contents of the kitchen
 6             cupboards. The other caseworker observed
 7             that one child, Venus, was limping because of
 8             a foot injury. The child stated that she had
 9             stepped on a nail. The caseworker concluded
10             that Southerland had not sought medical
11             attention for her. Woo reported that the
12             only light source in the bedroom area was
13             from a blank television screen. Woo observed
14             an electric lamp on the floor, without a
15             shade, connected to an outlet in the living
16             room by means of several extension cords
17             along the floor. Woo reported that another
18             room contained stacks of electronic
19             equipment. Woo and his supervisor concluded
20             that the children's safety was threatened,
21             and Balan directed Woo to remove the children
22             from the home.

23   Southerland II, 521 F. Supp. 2d at 224-25 (footnotes omitted).6

24             As the district court also observed, the plaintiffs --

25   relying primarily on later deposition testimony by Southerland --

26   offer a starkly different description of the conditions in the

27   Southerland home at the time.   According to Southerland's

28   testimony, the apartment did not lack proper bedding; the boys


          6
            The district court summarized Woo's and Balan's stated
     reasons for removing the Southerland Children as including: that
     Ciara had attempted suicide; that Southerland had failed to seek
     medical assistance for Ciara or for Venus; that he had resisted
     allowing ACS to visit his home; that he had refused to accept ACS
     services or assistance; that the home lacked food and adequate
     light; that the use of multiple extension cords for the
     electronic equipment was dangerous; and that the children were
     dirty. This combination of factors, according to Woo and Balan,
     "established in [their] minds that Southerland could not parent
     the children responsibly." Southerland II, 521 F. Supp. 2d at
     225.

                                     13
 1   had a bunk bed in their room, although they preferred to sleep on

 2   yellow foam sleeping pads on the floor.      Id. at 225 n.10.     The

 3   children were not dirty; Southerland testified that he laundered

 4   the children's clothing about once a week and bathed the children

 5   daily.      Id. at 225 n.11.   There was food in the refrigerator, and

 6   it is also a reasonable inference from Southerland's testimony

 7   that there was food in the cupboards (which Woo did not examine),

 8   because Southerland testified that groceries for the household

 9   were purchased on a regular basis.       Id. at 225 n.12.   The

10   household did not lack adequate lighting; Southerland testified

11   that he had a lamp plugged into a wall in each room, id. at 225

12   n.14, and that there were no extension cords running from room to

13   room.       Finally, although Southerland does not dispute that Venus

14   had a foot injury, the plaintiffs stress Woo's concession that he

15   did not personally observe the injury during his assessment of

16   the home.7      Id. at 225 n.13.

17                  In the early morning hours of June 10, 1997, at Balan's

18   direction, Woo removed the Southerland Children from the

19   Southerland home.      Woo took them to the ACS pre-placement

20   emergency shelter and arranged for emergency foster care.         Id. at

21   226.


             7
            After the Southerland Children's removal, Woo brought
     Venus "to a hospital based on the instructions of a nurse at the
     agency that first examined the children. At the hospital, the
     wound was dressed and the child received a tetanus shot."
     Southerland II, 521 F. Supp. 2d at 225 n.13.

                                         14
 1             At some point -- it is not clear from the record

 2   exactly when -- Woo interviewed Ciara Manning, whom he had found

 3   living at the home of her friend.    Ciara told Woo that her father

 4   had sexually abused her and threatened to kill her if she told

 5   anyone about the abuse -- allegations she later recanted.8   The

 6   Southerland Children also complained of various kinds of abuse

 7   and mistreatment at the hands of Southerland and his companion,

 8   Vendetta Jones.   The allegations concerning the sexual abuse of

 9   Ciara were included in a verified petition filed by ACS with the

10   Family Court on June 13, 1997, and that petition was amended on

11   June 27, 1997, to add allegations concerning corporal punishment

12   of the Southerland Children.   The petitions commenced child-

13   protective proceedings under Article 10 of the New York Family

14   Court Act, §§ 1011 et seq., through which ACS sought to have the

15   Southerland Children adjudicated as abused, neglected, or both.

16             On July 1, 1998, more than a year after the children

17   were removed from the Southerland home, the Kings County Family

18   Court concluded following a five-day fact-finding hearing that



          8
            On March 14, 2007, Southerland made a pro se submission to
     the district court requesting that the court take judicial notice
     of a number of documents, including a declaration by Ciara
     Manning that had been sworn on April 20, 2002. In that
     declaration, Ciara stated that Southerland had never molested or
     abused her in any way and that the statements she made previously
     to Woo and to the Family Court to that effect were false. See
     Pro Se Submission of Sonny B. Southerland at 26-27 (Dkt. No.
     192), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Mar.
     14, 2007).

                                     15
 1   Southerland had engaged in excessive corporal punishment of the

 2   Southerland Children and that he had abused and neglected them.

 3   The court also concluded that he had sexually abused his daughter

 4   Ciara.    The court ordered that the Southerland Children remain in

 5   foster care, where they had resided since the June 1997 removal.

 6   The New York Appellate Division, Second Department, affirmed

 7   these orders, In re Ciara M., 273 A.D.2d 312, 708 N.Y.S.2d 717

 8   (2d Dep't 2000), and the New York Court of Appeals denied leave

 9   to appeal, 95 N.Y.2d 767, 740 N.E.2d 653, 717 N.Y.S.2d 547

10   (2000).

11               In March 2004, nearly seven years after their removal

12   from the Southerland home, Sonny Jr. and Venus were permitted to

13   return to live with Southerland.      Some seven months thereafter,

14   Nathaniel and Emmanuel were discharged from the juvenile justice

15   system by the Office of Children and Family Services and also

16   returned to the Southerland home.     There is nothing in the record

17   to suggest that Kiam or Elizabeth ever returned to live with

18   Southerland.

19               However strongly the facts of mistreatment found by the

20   Family Court at trial in July 1998 may support Woo's perceptions

21   about the dangers to the Southerland Children of their remaining

22   with Southerland, virtually none of this information was in Woo's

23   possession when he effected the June 9, 1997, entry and removal,

24   as the district court correctly observed.     See Southerland II,


                                      16
 1   521 F. Supp. 2d at 226 n.19.   Although Woo mentions in his

 2   briefing that the Family Court eventually determined that Ciara

 3   and the Southerland Children had been abused and neglected, he

 4   does not dispute the plaintiffs' assertion that these

 5   subsequently determined facts should not bear upon our

 6   consideration of whether Woo's actions in effecting the removal

 7   were constitutional.   We therefore need not consider the

 8   relevance, if any, of these subsequent events on the plaintiffs'

 9   ability to recover on their constitutional claims.9

10             Prior Federal Court Proceedings

11             In June 1999, some two years after the removal and

12   while the Southerland Children remained in foster care,

13   Southerland, on behalf of himself and his children, filed a pro

14   se complaint in the United States District Court for the Eastern



          9
            It appears to be an unresolved question of law in this
     Circuit whether a plaintiff parent is permitted to recover
     damages on a theory of substantive due process against a
     caseworker under circumstances where, although the initial
     removal lacked a reasonable basis, the child is nonetheless
     ultimately found to have been abused or neglected by the parent
     following a family-court fact-finding hearing. Under such
     circumstances, it is an open question whether a defendant
     caseworker's conduct in removing the child -- even where the
     caseworker initially lacked a reasonable basis for doing so --
     can be said to be "'so egregious, so outrageous, that it may
     fairly be said to shock the contemporary conscience,'" Okin v.
     Vill. of Cornwall-on-Hudson Police Dep't, 577 F.3d 415, 431 (2d
     Cir. 2009) (quoting County of Sacramento v. Lewis, 523 U.S. 833,
     847 n.8 (1998)). However, because Woo has not made this argument
     in this case, and because we ultimately affirm the dismissal of
     Southerland's substantive due process claim on other grounds, we
     need not consider this question at this time.

                                     17
 1   District of New York against more than forty defendants for the

 2   allegedly wrongful removal of the Southerland Children from his

 3   home.   On February 1, 2000, the district court (Charles P.

 4   Sifton, Judge) granted the defendants' motion to dismiss on

 5   grounds that included failure to state a claim, failure to plead

 6   certain matters with particularity, lack of subject-matter

 7   jurisdiction, and Eleventh Amendment immunity.    See Opinion &

 8   Order (Dkt. No. 43), Southerland v. City of N.Y., No. 99-cv-3329

 9   (E.D.N.Y. Feb. 2, 2000), Ex. G to Silverberg Decl.

10              Southerland appealed.    We affirmed in part, reversed in

11   part, and remanded.   We ruled, inter alia, that the district

12   court had erred in dismissing Southerland's claims under 42

13   U.S.C. § 1983 relating to the seizure and removal of the

14   Southerland Children.   See Southerland v. Giuliani, 4 F. App'x

15   33, 36 (2d Cir. 2001) (summary order) ("Southerland I").      We

16   concluded that the pro se complaint stated valid claims for

17   violations of both the substantive and procedural components of

18   the Fourteenth Amendment's Due Process Clause.    See id. at 36-37.

19   We "emphasize[d] that our holding [wa]s limited to the claims

20   made directly by Sonny Southerland," noting that "[a]lthough the

21   children probably have similar claims, we have held that a non-

22   attorney parent must be represented by counsel in bringing an

23   action on behalf of his or her child."    Id. at 37 (citation,

24   footnote, and internal quotation marks omitted).    We therefore


                                        18
 1   "le[ft] it to the district court upon remand to determine whether

 2   Southerland should be given a chance to hire a lawyer for his

 3   children or to seek to have one appointed for them."   Id.

 4             On remand, the district court appointed counsel to

 5   represent both Southerland and the Southerland Children.10

 6   Southerland II, 521 F. Supp. 2d at 227.   In November 2002,

 7   through counsel, Southerland and the Southerland Children jointly

 8   filed an amended complaint, id. at 221 & n.1, asserting nine

 9   claims under 42 U.S.C. § 1983 against Woo and the City of New

10   York, id. at 221 n.2.11

11             In the amended complaint, Southerland asserts four

12   separate claims against Woo.12   First, he brings an unlawful-


          10
            Michael G. O'Neill was appointed as counsel for both
     Southerland and the Southerland Children. In April 2004,
     Southerland resumed proceeding pro se before the district court,
     while Mr. O'Neill continued to represent the Southerland Children
     (including Venus and Sonny Jr., even after they were no longer
     minors). In April 2004, the district court also appointed a
     guardian ad litem to represent the Southerland Children's
     interests. See Southerland II, 521 F. Supp. 2d at 221 n.1. In
     the instant appeals, Southerland represents himself pro se, while
     Mr. O'Neill continues to represent the Southerland Children.
          11
             The amended complaint did not name as defendants or
     assert any claims against any of the other thirty-nine defendants
     that had been named by Southerland in his original pro se
     complaint. Additionally, although Ciara was identified as a
     plaintiff in the original complaint, she was dropped from the
     suit when the amended complaint was filed.
          12
            The amended complaint also joins nine John Doe
     defendants, including several persons who "supervis[ed],
     monitor[ed] and assist[ed] Woo in his actions with respect to the
     [Southerland] Children." Am. Compl. ¶ 39 (Dkt. No. 75),
     Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Nov. 22,

                                      19
 1   search claim, asserting that Woo's entry into his home "without

 2   privilege, cause or justification" violated the Fourth Amendment.

 3   Am. Compl. ¶¶ 40-41 (Dkt. No. 75), Southerland v. City of N.Y.,

 4   No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002).   Southerland brings a

 5   second Fourth Amendment unlawful-search claim for Woo's remaining

 6   in his home even after discovering that the children listed on

 7   the Order Authorizing Entry were not there.   Third, Southerland

 8   asserts a Fourteenth Amendment procedural due process claim for

 9   removal of the Southerland Children from his home without a court

10   order and in the absence of an immediate threat of harm to their

11   lives or health.   Finally, Southerland asserts a substantive due

12   process claim, also under the Fourteenth Amendment, for Woo's

13   removal of the Southerland Children absent a reasonable basis for

14   doing so.

15               The amended complaint also interposes various claims on

16   behalf of the Southerland Children.   First, the Children assert




     2002). The complaint asserts that "said Does are individually
     liable to [Southerland] for the deprivation of his constitutional
     rights and the constitutional rights of the [Southerland]
     Children as alleged herein." Id.
          In their briefing on appeal, the plaintiffs do not address
     these John Doe defendants. We conclude that the plaintiffs have
     abandoned their claims against the John Does. We note that even
     if the plaintiffs now sought to amend their complaint to identify
     the John Doe defendants, the claims against the newly named
     defendants would be time-barred. See Tapia-Ortiz v. Doe, 171
     F.3d 150, 151-52 (2d Cir. 1999) (per curiam); Barrow v.
     Wethersfield Police Dep't, 66 F.3d 466, 468-70 (2d Cir. 1995),
     modified, 74 F.3d 1366 (2d Cir. 1996).

                                      20
 1   the same procedural due process claim under the Fourteenth

 2   Amendment as does Southerland.       Second, they bring a substantive

 3   due process claim under the Fourteenth Amendment on the theory

 4   that they were removed from their home without reasonable basis.

 5   The district court recharacterized the latter claim as arising

 6   under the Fourth Amendment's guarantee of protection against

 7   unlawful seizure.13       See Southerland II, 521 F. Supp. 2d at 230

 8   n.24.        Finally, the district court construed the amended

 9   complaint as asserting on behalf of the Children the same two

10   Fourth Amendment unlawful-search claims as were asserted by

11   Southerland, see id. at 233-34 & n. 28, a decision that Woo has

12   not challenged on appeal.

13                   Southerland and the Southerland Children also bring

14   several claims against the City of New York.        Southerland asserts

15   that the City is liable under 42 U.S.C. § 1983 for the removal of

16   the Southerland Children insofar as that removal was conducted

17   pursuant to two alleged official City policies: to remove

18   children without a reasonable basis, and to remove children

19   without a court order despite the absence of any immediate threat

20   of harm to their lives or health.         Southerland and the



             13
            In so doing, the district court relied upon our
     statement, when the case was previously on appeal, that "[t]he
     children's claims for unreasonable seizure would proceed under
     the Fourth Amendment rather than the substantive component of the
     Due Process Clause." Southerland I, 4 F. App'x at 37 n.2 (citing
     Kia P. v. McIntyre, 235 F.3d 749, 757-58 (2d Cir. 2000)).

                                          21
 1   Southerland Children also allege that high-ranking policymakers

 2   within the City's police department knew or should have known

 3   that the City's failure to train police officers accompanying ACS

 4   employees on home visits and investigations would deprive New

 5   York City residents of their constitutional rights.14

 6               On the defendants' motion for summary judgment, the

 7   district court concluded that Woo was entitled to qualified

 8   immunity as to all of the claims against him.   With respect to

 9   the Fourth Amendment unlawful-search claims, the court concluded

10   that the false and misleading statements made by Woo in his

11   application for the Order Authorizing Entry did not strip him of

12   qualified immunity because the plaintiffs could not show that

13   these statements were necessary to the finding of probable cause

14   to enter the home.   Southerland II, 521 F. Supp. 2d at 230-31.

15   The court decided that qualified immunity was warranted because

16   "a corrected affidavit specifying all of the information known to

17   Woo establishes an objective basis that would have supported a

18   reasonable caseworker's belief that probable cause existed."      Id.

19   at 231 (brackets, citation, and internal quotation marks

20   omitted).




          14
            The district court later permitted the Southerland
     Children to assert their failure-to-train claim against the City
     not only with respect to the police, but also with respect to
     ACS. See Southerland II, 521 F. Supp. 2d at 235 n.34.

                                      22
 1             With respect to the Southerland Children's Fourth

 2   Amendment unlawful-seizure claim, and the procedural due process

 3   claims brought by both sets of plaintiffs, the district court

 4   decided that qualified immunity shielded Woo from liability

 5   because his actions pre-dated the clear establishment of law in

 6   this context, which in its view did not occur until this Court's

 7   decision in Tenenbaum v. Williams, 193 F.3d 581, 596-97 (2d Cir.

 8   1999), cert. denied, 529 U.S. 1098 (2000).   See Southerland II,

 9   521 F. Supp. 2d at 231-32.

10             Lastly, with regard to Southerland's substantive due

11   process claim, the district court concluded that Woo was entitled

12   to qualified immunity because "it was objectively reasonable for

13   [him] to conclude that Southerland's substantive due process

14   rights were not violated" when Woo removed the Southerland

15   Children from the home, because "[b]rief removals of children

16   from their parents generally do not rise to the level of a

17   substantive due process violation, at least where the purpose of

18   the removal is to keep the child safe during investigation and

19   court confirmation of the basis for removal."   Id. at 232

20   (brackets and internal quotation marks omitted).

21             Notwithstanding the district court's conclusion that

22   Woo was entitled to qualified immunity as to every claim asserted

23   against him, the court proceeded to consider, in the alternative,

24   the underlying merits of the plaintiffs' various claims.     The


                                    23
 1   court decided that even in the absence of immunity, Woo would be

 2   entitled to summary judgment with respect to the plaintiffs'

 3   Fourth Amendment unlawful-search claims and Southerland's

 4   substantive due process claim.    Specifically, with respect to the

 5   Fourth Amendment unlawful-search claims, the district court

 6   decided that "no reasonable juror could infer that Woo knowingly

 7   and intentionally made false and misleading statements to the

 8   family court in order to receive an order authorizing his entry

 9   into the Southerland home."    Id. at 233.   With respect to

10   Southerland's substantive due process claim, the court concluded

11   that "no reasonable juror could find that the removal of the

12   children from their home in order to verify that they had not

13   been neglected or abused was so 'shocking, arbitrary, and

14   egregious' that Southerland's substantive due process rights were

15   violated."    Id. at 234-35 (citation omitted).

16                The district court concluded that the City was also

17   entitled to summary judgment on all of the claims against it.

18   See Southerland II, 521 F. Supp. 2d at 235-39.     The plaintiffs do

19   not appeal from that portion of the judgment and therefore have

20   abandoned their claims against the City.     See LoSacco v. City of

21   Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995).

22                The district court determined, however, that without

23   qualified immunity protection, summary judgment would not be

24   appropriate on the merits of the procedural due process claims


                                       24
 1   brought by both Southerland and the Southerland Children because,

 2   "[a]lthough defendants argue that the 'totality of the

 3   circumstances' Woo encountered in the Southerland home required

 4   an ex parte removal, they fail to explain why there was not

 5   sufficient time for Woo to seek a court order removing the

 6   children."    See Southerland II, 521 F. Supp. 2d at 235 n.31.    Nor

 7   would summary judgment be appropriate on the merits of the

 8   Southerland Children's Fourth Amendment unlawful-seizure claim,

 9   the district court said, because the defendants could not explain

10   "why the particular circumstances that Woo encountered in the

11   Southerland home established that there was imminent danger to

12   the children's life or limb requiring removal in the absence of a

13   court order."    Id. at 234 n.29.

14                Both Southerland and the Southerland Children now

15   appeal from the dismissal of each of their claims against Woo,

16   with the exception of one of their Fourth Amendment claims.      The

17   plaintiffs have not appealed the district court's adverse ruling

18   as to their claim that Woo violated the Fourth Amendment by

19   remaining in their home even after determining that the children

20   listed on the Order Authorizing Entry were not present.

21                We affirm with respect to the dismissal of

22   Southerland's substantive due process claim.    We vacate and

23   remand with respect to Southerland's and the Southerland

24   Children's Fourth Amendment unlawful-search claims; Southerland's


                                         25
 1   and the Southerland Children's procedural due process claims; and

 2   the Southerland Children's unlawful-seizure claim.

 3                                 DISCUSSION

 4             I.    Standard of Review

 5             "We review a district court's grant of summary judgment

 6   de novo, construing the evidence in the light most favorable to

 7   the non-moving part[ies] and drawing all reasonable inferences in

 8   [their] favor."    Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113

 9   (2d Cir. 2005).    "[S]ummary judgment is appropriate where there

10   exists no genuine issue of material fact and, based on the

11   undisputed facts, the moving party is entitled to judgment as a

12   matter of law."    D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d

13   Cir.), cert. denied, 524 U.S. 911 (1998); see Fed. R. Civ. P.

14   56(a).

15             II.     Principles of Qualified Immunity

16             Qualified immunity shields public officials "from

17   liability for civil damages insofar as their conduct does not

18   violate clearly established statutory or constitutional rights of

19   which a reasonable person would have known."     Harlow v.

20   Fitzgerald, 457 U.S. 800, 818 (1982).      "In general, public

21   officials are entitled to qualified immunity if (1) their conduct

22   does not violate clearly established constitutional rights, or

23   (2) it was objectively reasonable for them to believe their acts

24   did not violate those rights."    Holcomb v. Lykens, 337 F.3d 217,


                                       26
 1   220 (2d Cir. 2003) (internal quotation marks omitted).    A right

 2   is "'clearly established'" when "[t]he contours of the right . .

 3   . [are] sufficiently clear that a reasonable official would

 4   understand that what he is doing violates that right."    Anderson

 5   v. Creighton, 483 U.S. 635, 640 (1987).    Qualified immunity is an

 6   "affirmative defense," Gomez v. Toledo, 446 U.S. 635, 636, 639-41

 7   (1980), and "it is incumbent upon the defendant to plead[] and

 8   adequately develop" that defense, Zellner v. Summerlin, 494 F.3d

 9   344, 368 (2d Cir. 2007) (internal quotation marks omitted).

10               In this Circuit, "[e]ven where the law is 'clearly

11   established' and the scope of an official's permissible conduct

12   is 'clearly defined,' the qualified immunity defense also

13   protects an official if it was 'objectively reasonable' for him

14   at the time of the challenged action to believe his acts were

15   lawful."    Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d

16   Cir. 2010) (some internal quotation marks omitted); accord

17   Walczyk v. Rio, 496 F.3d 139, 154 n.16 (2d Cir. 2007).    In other

18   words, a caseworker is also entitled to qualified immunity "if

19   'officers of reasonable competence could disagree' on the

20   legality of the action at issue in its particular factual

21   context."   Manganiello v. City of N.Y., 612 F.3d 149, 165 (2d

22   Cir. 2010) (quoting Walczyk, 496 F.3d at 154); see also

23   Tenenbaum, 193 F.3d at 605 (applying same principle to "child

24   welfare workers").   But see Taravella, 599 F.3d at 136-41


                                      27
 1   (Straub, J., dissenting) (stating that this prong of the

 2   qualified-immunity analysis "has no basis in Supreme Court

 3   precedent and has served to confuse the case law in this area");

 4   Okin, 577 F.3d at 433 n.11 ("[O]nce a court has found that the

 5   law was clearly established at the time of the challenged conduct

 6   and for the particular context in which it occurred, it is no

 7   defense for a police officer who violated this clearly

 8   established law to respond that he held an objectively reasonable

 9   belief that his conduct was lawful."); Walczyk, 496 F.3d at 165-

10   71 (Sotomayor, J., concurring) ("[W]hether a right is clearly

11   established is the same question as whether a reasonable officer

12   would have known that the conduct in question was unlawful.")

13   (emphasis in original).

14             III.     Overview of Constitutional Principles Relating to
15                      the State's Removal of Children from Their Homes

16             As we observed in a decision post-dating the events at

17   issue in these appeals, "[p]arents . . . have a constitutionally

18   protected liberty interest in the care, custody and management of

19   their children."    Tenenbaum, 193 F.3d at 593; see also Troxel v.

20   Granville, 530 U.S. 57, 65-66 (2000) (collecting cases concerning

21   the "fundamental right of parents to make decisions concerning

22   the care, custody, and control of their children").    "[C]hildren

23   have a parallel constitutionally protected liberty interest in

24   not being dislocated from the emotional attachments that derive

25   from the intimacy of daily family association."    Kia P. v.

                                       28
 1   McIntyre, 235 F.3d 749, 759 (2d Cir. 2000) (brackets and internal

 2   quotation marks omitted), cert. denied, 534 U.S. 820 (2001); see

 3   also Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977)

 4   ("Th[e] right to the preservation of family integrity encompasses

 5   the reciprocal rights of both parent and children.").   The

 6   state's removal of a child from his or her parent may therefore

 7   give rise to a variety of cognizable constitutional claims.

 8             First, both the parents and the children may have a

 9   cause of action for violation of the Fourteenth Amendment under a

10   theory of denial of procedural due process.   The Fourteenth

11   Amendment imposes a requirement that except in emergency

12   circumstances, judicial process must be accorded both parent and

13   child before removal of the child from his or her parent's

14   custody may be effected.    See, e.g., Kia P., 235 F.3d at 759-60;

15   Tenenbaum, 193 F.3d at 593-94; Duchesne, 566 F.2d at 825-26.

16   Both Southerland and the Southerland Children have asserted such

17   a procedural due process claim against Woo in this case.

18             Second, a parent may also bring suit under a theory of

19   violation of his or her right to substantive due process.

20   Southerland does so here.   Parents have a "substantive right

21   under the Due Process Clause to remain together [with their

22   children] without the coercive interference of the awesome power

23   of the state."   Tenenbaum, 193 F.3d at 600 (internal quotation

24   marks omitted); see also, e.g., Anthony v. City of N.Y., 339 F.3d


                                      29
 1   129, 142-43 (2d Cir. 2003); Kia P., 235 F.3d at 757-58.     Such a

 2   claim can only be sustained if the removal of the child "would

 3   have been prohibited by the Constitution even had the [parents]

 4   been given all the procedural protections to which they were

 5   entitled."    Tenenbaum, 193 F.3d at 600 (emphasis deleted).     In

 6   other words, while a procedural due process claim challenges the

 7   procedure by which a removal is effected, a substantive due

 8   process claim challenges the "fact of [the] removal" itself.

 9   Bruker v. City of N.Y., 92 F. Supp. 2d 257, 266-67 (S.D.N.Y.

10   2000).

11                "Where another provision of the Constitution provides

12   an explicit textual source of constitutional protection, a court

13   must assess a plaintiff's claims under that explicit provision

14   and not the more generalized notion of substantive due process."

15   Kia P., 235 F.3d at 757-58 (quoting Conn v. Gabbert, 526 U.S.

16   286, 293 (1999)) (brackets and internal quotation marks omitted).

17   For child removal claims brought by the child, we have concluded

18   that the Constitution provides an alternative, more specific

19   source of protection than substantive due process.    When a child

20   is taken into state custody, his or her person is "seized" for

21   Fourth Amendment purposes.    The child may therefore assert a

22   claim under the Fourth Amendment that the seizure of his or her

23   person was "unreasonable."    U.S. Const. amend. IV; see Tenenbaum,

24   193 F.3d at 602.


                                       30
 1                A Fourth Amendment child-seizure claim belongs only to

 2   the child, not to the parent, although a parent has standing to

 3   assert it on the child's behalf.        Tenenbaum, 193 F.3d at 601

 4   n.13.   In accordance with our order in Southerland I, 4 F. App'x

 5   at 37 n.2, the district court therefore determined that the

 6   Southerland Children's substantive due process claim should be

 7   construed instead as a Fourth Amendment unlawful-seizure claim.

 8   See Southerland II, 521 F. Supp. 2d at 230 n.24.

 9                Finally, depending on the circumstances in which a

10   removal occurs, other Fourth Amendment claims might also be

11   viable.   Here, Southerland and the Southerland Children asserted

12   two Fourth Amendment claims for unlawful search: one claim

13   relating to Woo's entry into the Southerland home, and one (now

14   abandoned) relating to Woo's remaining in the home even after

15   determining that the Manning Children were not present.       Both

16   claims were based on an allegation that Woo made false statements

17   to the Family Court in order to obtain the Order Authorizing

18   Entry, and therefore that there was no valid judicial

19   authorization for him to carry out a search of the Southerland

20   apartment.    We begin our analysis with the unabandoned search

21   claim based on Woo's allegedly unlawful entry.

22                IV.   The Fourth Amendment Unlawful-Search Claims

23                The district court determined that summary judgment was

24   warranted on the plaintiffs' Fourth Amendment unlawful-search


                                        31
 1   claims on two separate grounds.    First, the district court

 2   concluded that Woo was entitled to qualified immunity under the

 3   "corrected affidavit" doctrine.    See Southerland II, 521

 4   F. Supp. 2d at 230-31.   Second, the district court decided that

 5   Woo was entitled to summary judgment on the merits because no

 6   reasonable juror could find that Woo had knowingly made false or

 7   misleading statements in seeking to obtain the Order Authorizing

 8   Entry.   Id. at 233.   We disagree with both conclusions.

 9   A.   The Corrected-Affidavit Doctrine

10               The plaintiffs argue that the district court erred in

11   its application of the corrected-affidavit doctrine, under which

12   a defendant who makes erroneous statements of fact in a search-

13   warrant affidavit is nonetheless entitled to qualified immunity

14   unless the false statements in the affidavit were "necessary to

15   the finding of probable cause."    Martinez v. City of Schenectady,

16   115 F.3d 111, 115 (2d Cir. 1997) (internal quotation marks

17   omitted).   In order to determine whether false statements were

18   "necessary to the finding of probable cause," the court must "put

19   aside allegedly false material, supply any omitted information,

20   and then determine whether the contents of the 'corrected

21   affidavit' would have supported [the] finding . . . ."      Id.

22   (citation and internal quotation marks omitted).   In applying the

23   corrected-affidavit doctrine, qualified immunity is warranted

24   only if, after correcting for the false or misleading statements,


                                       32
 1   the affidavit accompanying the warrant was sufficient "to support

 2   a reasonable officer's belief that probable cause existed."    Id.

 3   (internal quotation marks omitted).

 4             We have observed that the materiality of a

 5   misrepresentation or omission in an application for a search

 6   warrant is a mixed question of law and fact.15    Velardi v. Walsh,

 7   40 F.3d 569, 574 (2d Cir. 1994).     "The legal component depends on

 8   whether the information is relevant to the probable cause

 9   determination under controlling substantive law."    Id.   "[T]he

10   weight that a neutral magistrate would likely have given such

11   information," however, is a question for the factfinder.    Id.

12   In such circumstances, a court may grant summary judgment to a

13   defendant based on qualified immunity only if "the evidence,

14   viewed in the light most favorable to the plaintiffs, discloses

15   no genuine dispute that a magistrate would have issued the

16   warrant on the basis of the corrected affidavits."    Walczyk, 496

17   F.3d at 158 (emphasis and internal quotation marks omitted).

18   Here, we cannot conclude as a matter of law -- although a trier

19   of fact might conclude after an evidentiary hearing or the

20   district court might conclude as a matter of law in light of

21   additional evidence -- that the Family Court, in deciding whether



          15
            In child-abuse investigations, a Family Court order is
     equivalent to a search warrant for Fourth Amendment purposes.
     See Nicholson v. Scoppetta, 344 F.3d 154, 176 (2d Cir. 2003);
     Tenenbaum, 193 F.3d at 602.

                                     33
 1   there was "probable cause to believe that an abused or neglected

 2   child may [have] be[en] found [in the Southerland home]," N.Y.

 3   Fam. Ct. Act § 1034(2), would have issued the order had a

 4   corrected affidavit been presented to it.

 5              The district court, which "[a]ssum[ed] for purposes of

 6   the qualified immunity defense that Woo made false and misleading

 7   statements" in applying for the Order Authorizing Entry,

 8   Southerland II, 521 F. Supp. 2d at 230, correctly noted that the

 9   plaintiffs "would still have to demonstrate that those statements

10   were necessary to the finding of probable cause for qualified

11   immunity not to attach to Woo's actions," id. at 230-31 (citation

12   and internal quotation marks omitted).      The court determined that

13   Woo was entitled to qualified immunity based on its conclusion

14   that a corrected affidavit, containing all of the information

15   available to Woo at the time the affidavit was made, would have

16   supported a finding of probable cause to enter the home under the

17   applicable substantive law.   Id. at 231.

18              We disagree.   Section 1034(2) of the New York State

19   Family Court Act, which provides the evidentiary standard for a

20   showing sufficient for the issuance of an investigative order,

21   governed Woo's application to obtain the Order Authorizing Entry.

22   The district court, in its September 2007 decision, cited the

23   statute as it had been amended in January 2007.     See id. at 224

24   n.7.   But under the version of the statute that governed at the


                                      34
 1   time of Woo's application, unlike the version of the statute in

 2   effect in 2007, the affiant was required to demonstrate "probable

 3   cause to believe that an abused or neglected child may be found

 4   on premises," N.Y. Fam. Ct. Act § 1034(2) (McKinney 1997)

 5   (emphasis added), presumably meaning the "premises" identified in

 6   the application submitted to the Family Court.16

 7             The district court should have engaged in its

 8   corrected-affidavit analysis with reference to the law applicable

 9   at the time of the events in question.   The children that Woo

10   listed on his application for the Order Authorizing Entry -- the

11   Manning Children and Ciara -- were children who did not reside

12   "on premises" in the Southerland home.

13             The district court concluded that "a properly made

14   application would still list Ciara Manning on the application

15   because Southerland is her father and was the parent legally

16   responsible for her care, even if she had run away."   Southerland

17   II, 521 F. Supp. 2d at 231.   That may be relevant to an inquiry

18   under the statute as amended in 2007, but it is not relevant to

19   the appropriate question under the applicable version of the law

20   at the time of the entry: whether there existed probable cause


          16
            The defendants do not argue that a corrected affidavit
     would have supported a finding of probable cause under the Fourth
     Amendment even if it would not have met the evidentiary standard
     set out in section 1034(2) of the applicable New York statute.
     We therefore do not consider whether Woo would have had
     constitutionally adequate cause to enter the apartment
     notwithstanding the absence of a valid warrant or its equivalent.

                                     35
 1   for Woo to believe that Ciara Manning could be found "on

 2   premises" at the Southerland home.   In fact, she, like the

 3   Manning Children, was not "on premises."    And Woo had reason to

 4   know that she was not -- from the information in the initial

 5   Intake Report transmitted to Woo; from the guidance counselor's

 6   statement to Woo that Southerland did not approve of the place

 7   where Ciara was staying; and from Southerland's own statements

 8   during his May 30 telephone conversation with Woo that Ciara was

 9   a runaway and did not live at his home.17

10             The plaintiff children point out that there were other

11   deficiencies in the district court's corrected-affidavit analysis

12   that undermine the court's conclusion that the information known

13   to Woo at the time he applied for the Order Authorizing Entry



          17
            The defendants also argue, with respect to the probable
     cause determination, that irrespective of the requirements of New
     York Family Court Act § 1034(2), Woo was required to visit the
     Southerland home under a provision of the New York Social
     Services Law that requires that, within twenty-four hours of
     receipt of a "report[] of suspected child abuse or maltreatment"
     as provided for under New York Social Services Law § 424(1), ACS
     must undertake an investigation that includes "an evaluation of
     the environment of the child named in the report and any other
     children in the same home," id. § 424(6)(a). However,
     considering that Woo had reason to know that Ciara, the child
     identified in the report, was not living at the Southerland home
     -- and, indeed, reason to know that none of the children named in
     his application to the Family Court were living there -- his
     reliance on this provision of the Social Services Law fails. If
     Ciara was not living "on premises" at the Southerland home, Woo
     was not entitled to enter the home to evaluate this
     "environment," nor to evaluate the other children living there,
     for he had not received any information suggesting that any child
     other than Ciara might be at risk.

                                     36
 1   would have supported a finding of probable cause.    For example,

 2   Woo's application stated that Ciara "tried to kill herself by

 3   swallowing non-toxic paint," and that Southerland "did not take

 4   [Ciara] to a medical doctor and refused to take [Ciara] for

 5   psychiatric evaluation."   Application for Authorization to Enter

 6   Premises dated June 6, 1997, at 1 ("June 6 Application"), Ex. C

 7   to Silverberg Decl.   But the plaintiff children argue that the

 8   application omitted several relevant facts that, according to

 9   Southerland's version of events, were known to Woo at that time:

10   that the paint-swallowing incident took place at school, not at

11   home; that Southerland was willing to obtain treatment for his

12   daughter, but had trouble doing so, precisely because she was not

13   living in his home; and that Southerland had attempted to assert

14   control over his daughter by applying for PINS warrants.

15   Southerland Children's Br. at 30-31; see also id. at 28-36

16   (disputing additional assertions of fact, such as whether the

17   swallowing of paint indeed was a suicide attempt).   As the

18   plaintiff children put it:

19             Woo's omission of the fact that the incident
20             took place at school allowed the court to
21             assume that this suicide attempt took place
22             in Southerland's residence. The overall
23             picture painted by Woo is that Southerland's
24             daughter attempted to kill herself, that
25             Southerland did nothing about it, and refused
26             to let others do something about it as well.
27             By omitting the fact that the daughter was
28             not even living at the Southerland apartment,
29             Woo gave the family court the impression that
30             it was necessary to allow Woo to enter the

                                     37
 1               apartment in order to render assistance to a
 2               suicidal teenager in the home of a parent who
 3               could not be bothered to help her and who
 4               prevented the efforts of ACS to provide help
 5               to her.

 6   Id. at 31-32.    The district court included much of this

 7   information in its recitation of facts, Southerland II, 521 F.

 8   Supp. 2d at 222-23 & nn.4 & 5, but it did not factor these

 9   considerations into its application of the corrected-affidavit

10   doctrine.

11               For these reasons, application of the corrected-

12   affidavit doctrine does not as a matter of law preclude liability

13   in this case.

14   B.   Knowing or Reckless Misstatements of Fact

15               The district court also concluded that even if the

16   corrected-affidavit doctrine did not apply, summary judgment was

17   appropriate because, on the merits, "no reasonable juror could

18   infer that Woo knowingly and intentionally made false and

19   misleading statements to the family court in order to receive an

20   order authorizing his entry into the Southerland home."

21   Southerland II, 521 F. Supp. 2d at 233.    Based on that premise,

22   the district court concluded that "the [O]rder [Authorizing

23   Entry] was issued with probable cause and Woo's entry into and

24   search of Southerland's home did not violate plaintiffs' Fourth

25   Amendment rights."   Id.




                                      38
 1              We disagree.    If the district court were correct that

 2   Woo did not knowingly make false and misleading statements, that

 3   would entitle Woo to qualified immunity, but would not

 4   necessarily render his underlying conduct lawful -- the issue the

 5   court was addressing.     When a person alleges a Fourth Amendment

 6   violation arising from a search executed by a state official,

 7   "the issuance of a search warrant . . . creates a presumption

 8   that it was objectively reasonable for the [defendant] to believe

 9   that the search was supported by probable cause" so as to render

10   the defendant qualifiedly immune from liability.    Martinez, 115

11   F.3d at 115.   To defeat the presumption of reasonableness, a

12   plaintiff must make "a substantial preliminary showing that the

13   affiant knowingly and intentionally, or with reckless disregard

14   for the truth, made a false statement in his affidavit and that

15   the allegedly false statement was necessary to the finding of

16   probable cause" for which the warrant was issued.    Golino v. City

17   of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (internal

18   quotation marks omitted), cert. denied, 505 U.S. 1221 (1992).

19              We need not consider further whether the district court

20   erred by confusing the qualified immunity and merits analyses,

21   however, because we also do not agree with the district court's

22   conclusion that no reasonable juror could find that Woo did not

23   knowingly or recklessly make false statements -- the immunity

24   inquiry.   We think that several disputed facts, taken together


                                       39
 1   and viewed in the light most favorable to the plaintiffs, would

 2   permit a reasonable factfinder to find otherwise.

 3                First, there is substantial evidence, viewed in the

 4   light most favorable to the plaintiffs, that Woo knew or had

 5   reason to know that Ciara was not residing at the Southerland

 6   home when he applied for the Order Authorizing Entry.    On appeal,

 7   Woo appears to assert that he was justified in searching for

 8   Ciara at the Southerland home because, according to ACS's Diane

 9   Manning case files, "Ciara was reported to be living with her

10   father, Sonny B. Southerland, Sr. at his address at 10 Amboy St.

11   Brooklyn."    Woo Decl. ¶ 5.   Although the plaintiffs deny that the

12   substance of this report was accurate, they do not effectively

13   dispute that the information was contained in ACS's records,18

14   nor do they dispute that Southerland's home was, in fact, Ciara's

15   legal residence.    To the contrary, they affirmatively allege in

16   their complaint that Southerland was the parent with "physical

17   and legal custody" at the relevant time.    Am Compl. ¶¶ 9-10.

18                If Woo had no further knowledge or reliable information

19   about Ciara's whereabouts, we think -- having regard to the

20   "factual and practical considerations of everyday life," Gates,

21   462 U.S. at 231 (internal quotation marks omitted) -- that Woo


          18
            The plaintiffs also do not explicitly argue that this
     information had become "stale." See generally Walczyk, 496 F.3d
     at 162 (enumerating Fourth Amendment standards for staleness);
     United States v. Ortiz, 143 F.3d 728, 732-33 (2d Cir. 1998)
     (same), cert. denied, 525 U.S. 910 (1998).

                                       40
 1   might well have had probable cause to believe that Ciara was to

 2   be found at Southerland's apartment -- her custodial parent's

 3   home.   Cf. Manganiello, 612 F.3d at 161 (probable cause may exist

 4   even where an officer "relied on mistaken information, so long as

 5   it was reasonable for him to rely on it").   Nor, we think, was

 6   the fact that both Southerland and the school counselor informed

 7   Woo that Ciara did not live with Southerland alone sufficient to

 8   establish that Woo believed otherwise.   Cf. Robison v. Via, 821

 9   F.2d 913, 922 (2d Cir. 1987) ("[T]he officials need not defer

10   action [on a child-abuse report] merely on account of a parent's

11   protestations of innocence or promises of future

12   protection . . . .").

13              But there is more.   At his deposition, Woo appeared to

14   concede that he did know with some certainty -- if not by the

15   time of applying for the Order Authorizing Entry on June 6, then

16   by the time of executing that Order on June 9 -- that Ciara did

17   not reside with Southerland and would not be found at his home.

18   When asked by plaintiffs' counsel why he had persisted in seeking

19   to enter the Southerland apartment once he knew that Ciara

20   Manning was not staying there, Woo -- plainly accepting the

21   factual premise of the question -- explained that he had sought

22   to enter in order to, among other things, "contact [Southerland]

23   to find out about [Ciara's] whereabouts," Deposition of Timothy

24   Woo at 17 ("Woo Dep."), Ex. D to O'Neill Decl.; to "a[ss]ess the


                                      41
 1   safety of the children's home environment," id.; to look for

 2   "[t]he Manning children," id. at 18-19; and to investigate the

 3   well-being of the children who Woo knew were residing with

 4   Southerland, id. at 20-22.   In his declaration tendered in

 5   support of the defendants' summary-judgment motion, moreover, Woo

 6   did not identify when it was that he found Ciara living in the

 7   home of her friend, but instead stated only that his interview of

 8   Ciara occurred "[d]uring the course of the investigation" when he

 9   went to the home.   Woo Decl. ¶ 23.   His statements thus strongly

10   support the notion that Woo was well aware that, wherever Ciara

11   was, it was unlikely to be in the Southerland Apartment.19

12             Second, evidence in the record, again viewed in the

13   light most favorable to the plaintiffs, would permit a reasonable

14   juror to conclude that Woo knowingly or recklessly misrepresented

15   the nature of the paint-swallowing incident in his application.

16   About one week before June 6, Woo learned from a school counselor

17   that Ciara had "swallowed non-toxic paint at school" and had been

18   "acting out and expressing thoughts of suicide."   Woo Decl. ¶ 6.

19   Although the counselor informed Woo that Southerland had failed

20   to seek mental health treatment for Ciara, see id., before Woo

21   made his application to Family Court, Southerland had explained



          19
             Indeed, Woo does not explicitly challenge the
     plaintiffs' repeated assertion that before the events of June 9,
     1997, Woo knew for a fact that Ciara was not staying in
     Southerland's apartment.

                                     42
 1   to Woo that the reason he had not taken Ciara for treatment was

 2   that she did not reside with Southerland and did not listen to

 3   him, id. ¶ 8.   Yet Woo's application represented to the Family

 4   Court that Ciara "tried to kill herself by swallowing non-toxic

 5   paint" and that Southerland "did not take [her] to a medical

 6   doctor and refused to take [her] for psychiatric evaluation."

 7   June 6 Application at 1.   A reasonable trier of fact might find

 8   those statements to be materially misleading insofar as they

 9   characterize Ciara's paint-swallowing as a suicide attempt; fail

10   to note that the incident occurred at school rather than in

11   Southerland's home; and omit the fact that Ciara may have been

12   living outside the home and free from Southerland's control.

13             Finally, the district court overlooked the parties'

14   dispute concerning Woo's knowledge about which children resided

15   in the Southerland apartment.   The district court stated that Woo

16   "had reason to believe that the Manning children would be found

17   in the Southerland apartment because of a separate investigation

18   of the Manning children and his personal observation that there

19   were other children in the Southerland home who had not yet been

20   positively identified."    Southerland II, 521 F. Supp. 2d at 233.

21   But, as the district court opinion elsewhere observes, on June 4,

22   1997 -- two days before he applied for the Order Authorizing

23   Entry -- Woo met the Southerland Children, not the Manning

24   Children, emerging from the Southerland apartment and wrote down


                                      43
 1   their names.   See id. at 223-24 & n.6.   We think that there is a

 2   triable issue of fact as to whether Woo in fact believed, as he

 3   wrote in his application to the Family Court, that it was the

 4   Manning Children who were in the Southerland home, or whether he

 5   recklessly confused or knowingly conflated the two groups of

 6   children.

 7               Although these alleged misrepresentations may turn out

 8   to be no more than accidental misstatements made in haste, the

 9   plaintiffs have nonetheless made a "substantial preliminary

10   showing" that Woo knowingly or recklessly made false statements

11   in his application for the Order Authorizing Entry.   Golino, 950

12   F.2d at 870 (internal quotation marks omitted).   This showing

13   rebuts the presumption of reasonableness that would otherwise, at

14   the summary judgment stage, entitle Woo to qualified immunity, a

15   defense on which he has the burden of proof.

16               In sum, because we conclude that genuine issues of

17   material fact exist, both as to whether Woo knowingly or

18   recklessly made false statements in his affidavit to the Family

19   Court and as to whether such false statements were necessary to

20   the court's finding of probable cause, we vacate the district

21   court's grant of summary judgment on the plaintiffs' Fourth

22   Amendment unlawful-search claims.

23               Once again, we note that a trier of fact might, after

24   review of the record (whether or not augmented by additional


                                      44
 1   evidence), conclude that the errors in the June 6 Application

 2   were either accidental or immaterial.   We vacate the grant of

 3   summary judgment because, on the current record, we cannot reach

 4   that conclusion ourselves as a matter of law.

 5             V.   The Plaintiffs' Procedural Due Process Claims

 6             Southerland and the Southerland Children each assert a

 7   procedural due process claim against Woo.   The district court

 8   held that Woo was entitled to qualified immunity on these claims.

 9   We disagree.

10   A.   Procedural Due Process in the Child-Removal Context

11             "'As a general rule . . . before parents may be

12   deprived of the care, custody, or management of their children

13   without their consent, due process -- ordinarily a court

14   proceeding resulting in an order permitting removal -- must be

15   accorded to them.'"   Nicholson, 344 F.3d at 171 (quoting

16   Tenenbaum, 193 F.3d at 593).   "However, 'in emergency

17   circumstances, a child may be taken into custody by a responsible

18   State official without court authorization or parental consent.'"

19   Id. (quoting Tenenbaum, 193 F.3d at 594).   "'If the danger to the

20   child is not so imminent that there is reasonably sufficient time

21   to seek prior judicial authorization, ex parte or otherwise, for

22   the child's removal, then the circumstances are not emergent.'"

23   Id. (quoting Tenenbaum, 193 F.3d at 594).

24             To show that emergency circumstances existed, "[t]he


                                     45
 1   government must offer 'objectively reasonable' evidence that harm

 2   [was] imminent."   Id.   Although this Court has not attempted to

 3   set forth exhaustively the types of factual circumstances that

 4   constitute imminent danger justifying emergency removal as a

 5   matter of federal constitutional law, we have concluded that

 6   these circumstances include "the peril of sexual abuse," id., the

 7   "risk that children will be 'left bereft of care and

 8   supervision,'" id. (quoting Hurlman v. Rice, 927 F.2d 74, 80 (2d

 9   Cir. 1991)), and "immediate threat[s] to the safety of the

10   child," Hurlman, 927 F.2d at 80 (internal quotation marks

11   omitted); see also N.Y. Fam. Ct. Act § 1024(a) (defining

12   emergency circumstances, for the purposes of state law, as

13   "circumstance[s]" wherein a child's remaining in the parent's

14   care and custody "presents an imminent danger to the child's life

15   or health").

16   B.   Analysis

17             The district court correctly concluded that summary

18   judgment was not appropriate on the underlying merits of the

19   plaintiffs' procedural due process claims because Woo did not

20   demonstrate, as a matter of law, that he did not have time to

21   obtain a court order authorizing the removal of the Southerland

22   Children before taking that act.      See Southerland II, 521 F.

23   Supp. 2d at 235 n.31 (citing Nicholson, 344 F.3d at 171).     The

24   court nonetheless granted summary judgment on qualified immunity


                                      46
 1   grounds, concluding that "the law concerning procedural due

 2   process rights in the context of child removals was not clearly

 3   defined at the time of the events in question."   Id. at 232.

 4              However, the district court overstated the extent to

 5   which the relevant standards were undeveloped at the time of the

 6   removal.   In Hurlman, some six years before the events here in

 7   issue, we recognized that

 8              officials may remove a child from the custody
 9              of the parent without consent or a prior
10              court order only in "emergency"
11              circumstances. Emergency circumstances mean
12              circumstances in which the child is
13              immediately threatened with harm, for
14              example, where there exists an immediate
15              threat to the safety of the child, or where
16              the child is left bereft of care and
17              supervision, or where there is evidence of
18              serious ongoing abuse and the officials have
19              reason to fear imminent recurrence.

20   Hurlman, 927 F.2d at 80 (citations and internal quotation marks

21   omitted); see also Robison, 821 F.2d at 921-22 (describing the

22   "'emergency' circumstances" exception and collecting cases).20

23   It thus was clearly established at the time of the Southerland

24   Children's removal that state officials could not remove a child



          20
             We disagree with the defendants' assertion that Hurlman
     and Robison are not controlling here because the state officers
     in those cases were unlawfully on the premises, whereas Woo had a
     court order (albeit a disputed one) to enter the Southerland
     home. Woo's removal of the Southerland Children was without
     prior judicial authorization. Although Woo did have a court
     order to enter the home, he did not have an order to remove the
     Southerland Children from it. See Southerland II, 521 F. Supp.
     2d at 224, 226, 235 n.31.

                                     47
 1   from the custody of a parent without either consent or a prior

 2   court order unless "'emergency' circumstances" existed.      Hurlman,

 3   927 F.2d at 80; see also Cecere v. City of N.Y., 967 F.2d 826,

 4   829-30 (2d Cir. 1992) (setting forth the "clearly established"

 5   procedural due process principles that apply in this context);

 6   Velez v. Reynolds, 325 F. Supp. 2d 293, 314-15 (S.D.N.Y. 2004)

 7   (explaining those principles).

 8             In concluding that the law of procedural due process

 9   was not clearly established in the child-removal context by 1997,

10   the district court in this case relied primarily on our decision

11   in Tenenbaum.   There, two years after the events here in issue,

12   we held as a matter of first impression that "where there is

13   reasonable time consistent with the safety of the child to obtain

14   a judicial order, the 'emergency' removal of a child is

15   unwarranted."   Tenenbaum, 193 F.3d at 596.   Because this

16   principle was not clearly established in 1990 -- the year the

17   underlying conduct at issue in Tenenbaum took place -- we

18   affirmed the district court's decision in that case that the

19   defendants were entitled to qualified immunity.   We also made

20   clear, however, that even in 1990, "it was established as a

21   general matter . . . that 'except where emergency circumstances

22   exist' a parent can 'not be deprived' of the custody of his or

23   her child 'without due process, generally in the form of a

24   predeprivation hearing.'"   Id. at 596 (quoting Hurlman, 927 F.2d

25   at 79).

                                      48
 1                In the present case, however, the plaintiffs assert

 2   "not solely that defendants had sufficient time to obtain a court

 3   order, but that the circumstances in which Woo found the children

 4   did not warrant their removal at all, whether evaluated by pre-

 5   or post-Tenenbaum standards."     Southerland Children's Br. at

 6   39.21    We understand the plaintiffs' contention to be that

 7   "emergency circumstances" warranting removal simply did not exist

 8   because the conditions in the Southerland home were

 9   insufficiently dangerous.

10                The district court did not decide as a matter of law

11   that emergency circumstances existed in the Southerland home.       To

12   the contrary, the district court concluded that "[v]iewing the

13   facts in the light most favorable to plaintiffs, a reasonable

14   juror could determine that the circumstances Woo encountered did


             21
             In Tenenbaum, a removal was carried out because the
     child had reported -- albeit under questionable circumstances --
     that her father had sexually abused her. See Tenenbaum, 193 F.3d
     at 590, 594. There was no doubt at the time that the possibility
     of sexual abuse was, as it always is, a serious concern. At
     issue was whether there was nonetheless time under the
     circumstances to secure a court order prior to effecting the
     removal without risking imminent danger to the child. See id. at
     608 (Jacobs, J., concurring in part and dissenting in part)
     (describing majority opinion as holding that, while there was
     "exigency," there was still no "emergency," because there was
     time to obtain a court order). Tenenbaum represented a novel
     application of procedural due process law because of the
     majority's holding that, regardless of the seriousness of the
     allegations, it was still necessary to obtain a court order if
     time permitted. Here, by contrast, we understand the plaintiffs
     to assert that the circumstances presented did not necessitate an
     inquiry into whether there was time to obtain a court order,
     because the conditions in the Southerland home were not grave
     enough to trigger that inquiry.

                                       49
 1   not demonstrate an imminent danger to the children's life or

 2   limb."    Southerland II, 521 F. Supp. 2d at 234 n.29.   The court

 3   further decided that "a reasonable juror could find that there

 4   was sufficient time to acquire a court order prior to the

 5   removal."   Id. at 235 n.31.   In light of those determinations,

 6   with which we agree, and our assessment that the relevant law was

 7   clearly established by 1997, we cannot conclude as a matter of

 8   law that "it was objectively reasonable for [Woo] to believe

 9   [that his] acts did not violate those [clearly established]

10   rights."    Holcomb, 337 F.3d at 220.   Qualified immunity therefore

11   is not available to Woo on the plaintiffs' procedural due process

12   claims at the summary judgment stage.    Because summary judgment

13   also cannot be granted to the defendants on the underlying merits

14   of these claims,22 we vacate the grant of summary judgment to Woo

15   as to the procedural due process claims.



          22
             The district court correctly noted that there are
     material factual disputes concerning whether emergency
     circumstances existed warranting the immediate removal of the
     Southerland Children from their home. See Southerland II, 521 F.
     Supp. 2d at 234 n.29 & 235 n.31. But even where emergency
     circumstances warranting removal exist, "'the constitutional
     requirements of notice and opportunity to be heard are not
     eliminated but merely postponed.'" Kia P., 235 F.3d at 760
     (quoting Duchesne, 566 F.2d at 826). Therefore, a plaintiff may
     have a viable claim for violation of procedural due process even
     where emergency circumstances existed at the time of removal, if
     the plaintiff does not receive a timely and adequate post-
     deprivation hearing. See id. at 760-61. In this case, as will
     be explained below, important factual questions remain concerning
     the post-removal judicial confirmation proceedings, if any, that
     took place in the days after the Southerland Children's removal
     from their home.

                                      50
 1              VI.   Southerland's Substantive Due Process Claim

 2              Southerland asserts a substantive due process claim

 3   against Woo under the Fourteenth Amendment.    The district court

 4   held not only that qualified immunity attached to Woo's actions,

 5   but also that summary judgment would be warranted on the merits

 6   even in the absence of qualified immunity.    We agree that Woo is

 7   entitled to summary judgment on the merits, and we therefore

 8   affirm this portion of the district court's judgment.

 9   A.   Substantive Due Process in the Child-Removal Context

10              Substantive due process rights safeguard persons

11   "against the government's 'exercise of power without any

12   reasonable justification in the service of a legitimate

13   governmental objective.'"    Tenenbaum, 193 F.3d at 600 (quoting

14   County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)).      "To

15   establish a violation of substantive due process rights, a

16   plaintiff must demonstrate that the state action was 'so

17   egregious, so outrageous, that it may fairly be said to shock the

18   contemporary conscience.'"   Okin, 577 F.3d at 431 (quoting Lewis,

19   523 U.S. at 847 n.8).   The interference with the plaintiff's

20   protected right must be "'so shocking, arbitrary, and egregious

21   that the Due Process Clause would not countenance it even were it

22   accompanied by full procedural protection.'"   Anthony, 339 F.3d

23   at 143 (quoting Tenenbaum, 193 F.3d at 600); see also Lewis, 523

24   U.S. at 840 (doctrine of substantive due process "bar[s] certain

25   government actions regardless of the fairness of the procedures

                                      51
 1   used to implement them" (internal quotation marks omitted)).

 2   Thus, in the child-removal context, we ask whether "the

 3   removal . . . would have been prohibited by the Constitution even

 4   had the [plaintiffs] been given all the procedural protections to

 5   which they were entitled."   Tenenbaum, 193 F.3d at 600 (emphasis

 6   omitted).

 7               We have long recognized that parents have a

 8   "constitutionally protected liberty interest in the care, custody

 9   and management of their children," id. at 593, and that the

10   deprivation of this interest is actionable on a substantive due

11   process theory, see id. at 600 (recognizing a "substantive right

12   under the Due Process Clause 'to remain together without the

13   coercive interference of the awesome power of the state'"

14   (quoting Duchesne, 566 F.2d at 825)).    We have also observed,

15   however, that "[a]lthough parents enjoy a constitutionally

16   protected interest in their family integrity, this interest is

17   counterbalanced by the compelling governmental interest in the

18   protection of minor children, particularly in circumstances where

19   the protection is considered necessary as against the parents

20   themselves."   Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d

21   89, 104 (2d Cir. 1999) (internal quotation marks omitted), cert.

22   denied, 528 U.S. 1155 (2000).

23               We have explained that, in part because the law

24   contemplates a careful balancing of interests, a parent's

25   substantive constitutional rights are not infringed if a

                                      52
 1   caseworker, in effecting a removal of a child from the parent's

 2   home, has a reasonable basis for thinking that a child is abused

 3   or neglected.   See id.; Gottlieb, 84 F.3d at 518.   "This Circuit

 4   has adopted a standard governing case workers which reflects the

 5   recognized need for unusual deference in the abuse investigation

 6   context.   An investigation passes constitutional muster provided

 7   simply that case workers have a 'reasonable basis' for their

 8   findings of abuse."   Wilkinson, 182 F.3d at 104; see also id. at

 9   108 (concluding that the "reasonable basis test" requires that

10   caseworkers' decisions to substantiate an allegation of child

11   abuse "be consistent with some significant portion of the

12   evidence before them").   We have applied this "reasonable basis"

13   standard from time to time in recent years.   See, e.g.,

14   Nicholson, 344 F.3d at 174; Phifer v. City of N.Y., 289 F.3d 49,

15   60 (2d Cir. 2002); Kia P., 235 F.3d at 758-59.

16              We have also recognized that state interference with a

17   plaintiff's liberty interest must be severe before it rises to

18   the level of a substantive constitutional violation.   See, e.g.,

19   Anthony, 339 F.3d at 143.   "The temporary separation of [a child]

20   from her parents" does not constitute an "interference [that is]

21   severe enough to constitute a violation of [the parents']

22   substantive due-process rights," Tenenbaum, 193 F.3d at 601; see

23   also, e.g., Kia P., 235 F.3d at 759; Cecere, 967 F.2d at 830

24   (ruling that plaintiff's generalized due-process claim failed

25   because a "brief" four-day removal, executed "in the face of a

                                     53
 1   reasonably perceived emergency," did not violate due process);

 2   Joyner ex rel. Lowry v. Dumpson, 712 F.2d 770, 779 (2d Cir. 1983)

 3   (concluding that there was no substantive due process violation

 4   where temporary transfer of custody to foster-care system did not

 5   "result in parents' wholesale relinquishment of their right to

 6   rear their children").   In Tenenbaum, we observed that in other

 7   contexts, our court and the Supreme Court had held that even very

 8   brief seizures or detentions could violate the Fourth Amendment

 9   rights of criminal suspects. See Tenenbaum, 193 F.3d at 601

10   (citing Davis v. Mississippi, 394 U.S. 721 (1969), which held

11   that police detention, even for a brief period of time, violated

12   the Fourth Amendment where there was no probable cause to arrest,

13   and United States v. Langer, 958 F.2d 522, 524 (2d Cir. 1992),

14   which held that police detention even for ten to fifteen minutes

15   was "constitutionally significant" for purposes of 18 U.S.C. §

16   242).   We reasoned, however, that "[i]t does not follow from the

17   principle that brief seizures of people may be unreasonable and

18   therefore violate the Fourth Amendment that brief removals of

19   children from their parents to protect them from abuse are

20   without any reasonable justification in the service of a

21   legitimate governmental objective under the Due Process Clause."

22   Tenenbaum, 193 F.3d at 601 (internal quotation marks and citation

23   omitted).

24               Thus, "brief removals [of a child from a parent's home]

25   generally do not rise to the level of a substantive due process

                                      54
 1   violation, at least where the purpose of the removal is to keep

 2   the child safe during investigation and court confirmation of the

 3   basis for removal."   Nicholson, 344 F.3d at 172 (citing

 4   Tenenbaum, 193 F.3d at 600–01 & n.12).   And once such "court

 5   confirmation of the basis for removal" is obtained, id., any

 6   liability for the continuation of the allegedly wrongful

 7   separation of parent and child can no longer be attributed to the

 8   officer who removed the child.   Cf., e.g., E.D. ex rel. V.D. v.

 9   Tuffarelli, 692 F. Supp. 2d 347, 354, 368 (S.D.N.Y. 2010)

10   (applying brief-removal doctrine, and granting summary judgment

11   in favor of defendants, where family court confirmed the basis

12   for ACS's temporary removal of children three days after removal

13   occurred), aff'd, 408 F. App'x 448 (2d Cir. 2011).

14   B.   Analysis

15              The district court, in deciding that Woo enjoyed

16   qualified-immunity protection as to these charges, observed that

17   the Southerland Children "were removed in the context of a child

18   protective investigation [in which] removal would be subject to

19   court confirmation," Southerland II, 521 F. Supp. 2d at 232, and

20   that "a timely post-deprivation hearing [was held] where a family

21   court judge confirmed the removal," id. at 234.   The court

22   therefore concluded that it was objectively reasonable for Woo to

23   think that Southerland's rights were not being violated because

24   "[b]rief removals of children from their parents generally do not

25   rise to the level of a substantive due process violation."    Id.

                                      55
 1   at 232 (brackets and internal quotation marks omitted).

 2              We agree with the district court that the removal of

 3   children from their parent for the purpose of keeping the

 4   children safe does not violate the parent's substantive due

 5   process rights if a post-removal judicial proceeding is promptly

 6   held to confirm that there exists a reasonable basis for the

 7   removal.   The period of time in which the child and parent are

 8   separated solely at the instance of the defendant is, in such a

 9   case, not sufficient to amount to a substantive due process

10   violation by the defendant caseworker.   See Nicholson, 344 F.3d

11   at 172; Kia P., 235 F.3d at 759; Tenenbaum, 193 F.3d at 600-01.

12   This is not a matter of the defendant's qualified immunity:

13   Where the "brief-removal doctrine" applies, a plaintiff does not

14   have a cause of action for a substantive due process violation in

15   the first place.   See, e.g., Kia P., 235 F.3d at 759 (applying

16   brief-removal doctrine and concluding that plaintiff's "rights to

17   substantive due process were not abridged").

18              The viability of such a substantive due process cause

19   of action on the facts of this case is not an easy judgment to

20   make because the record is not entirely clear as to whether such

21   a post-removal judicial proceeding occurred, and if so, the

22   nature of it.   In a previous opinion, the district court

23   explained that the Southerland Children "remained in custody

24   without a court order until the morning of June 12, 1997, at

25   which time Woo obtained a court order confirming the removal."

                                     56
 1   Southerland v. City of N.Y., No. 99-cv-3329, 2006 WL 2224432, at

 2   *1, 2006 U.S. Dist. LEXIS 53582, at *4 (E.D.N.Y. Aug. 2, 2006)

 3   (emphasis added).    But Woo declared that "[t]he Family Court

 4   affirmed the removal of the Southerland/Felix children . . . on

 5   June 13, 1997," Woo Decl. ¶ 24, and Balan stated that "[t]he

 6   removal was affirmed by Family Court on June 14, 1997," Balan

 7   Decl. ¶ 18.    It is also unclear whether Southerland was present

 8   at that hearing, whenever it was, or on what factual basis the

 9   Family Court decided that the continued removal of the

10   Southerland Children was warranted.23

11                We nonetheless conclude that summary judgment was

12   warranted.    Southerland and the Southerland Children dispute

13   neither that a post-removal judicial confirmation proceeding was

14   held nor that it took place within four days after removal.      See

15   Southerland Children's Br. at 23; Pro Se Pl.'s Opp'n to Defs.'

16   Mot. for Summ. J. ¶¶ 36-37, Pro Se Submission of Sonny B.

17   Southerland at 7 (Dkt. No. 192), Southerland v. City of N.Y., No.

18   99-cv-3329 (E.D.N.Y. Mar. 14, 2007).    Therefore, based on this

19   concession, only the (at most) four days of removal prior to the

20   court hearing are attributable to Woo.    Tuffarelli, 692 F. Supp.

21   2d at 354, 368.    In light of this concession, the question

22   becomes:   Was the four-day period a "shocking, arbitrary, and


          23
            These problems persist despite our prior instruction that
     Southerland "be given an opportunity to prove . . . that the
     subsequent family court proceedings were insufficiently prompt to
     pass constitutional muster." Southerland I, 4 F. App'x at 36.

                                       57
 1   egregious" amount of time for Southerland to have been separated

 2   from his children at Woo's instruction, i.e., without an

 3   intervening judicial confirmation of the basis for removal.

 4   Anthony, 339 F.3d at 143 (internal quotation marks omitted).

 5               We conclude, on the basis of previous consideration of

 6   similar circumstances by courts in this Circuit and our own

 7   judgment, that the four-day separation under these circumstances

 8   was not so long as to constitute a denial of substantive due

 9   process to Southerland.   See Kia P., 235 F.3d at 759 ("day or

10   two" removal to review a child's case did not violate substantive

11   due process); Tuffarelli, 692 F. Supp. 2d at 368 (no substantive

12   due process violation where children were removed on a Friday

13   evening, and judicial proceedings commenced in a timely manner on

14   the following Monday); Green ex rel. T.C. v. Mattingly, 07-cv-

15   1790(ENV)(CLP), 2010 WL 3824119, at *10, 2010 U.S. Dist. LEXIS

16   99864, at *34-35 (E.D.N.Y. Sept. 23, 2010) (four-day removal of

17   child during ACS investigation did not violate substantive due

18   process).

19               Although the Southerland Children continued to be

20   separated from Southerland even after the post-removal

21   confirmation proceeding, in light of the presumption of

22   regularity that we attribute to state judicial proceedings, see,

23   e.g., Honeycutt v. Ward, 612 F.2d 36, 41 (2d Cir. 1979), and in

24   light of Southerland's failure to proffer any evidence tending to

25   rebut that presumption, we cannot conclude that the continued

                                      58
 1   separation of Southerland from his children following the

 2   judicial confirmation proceeding is fairly attributable to Woo.

 3   We therefore conclude that Southerland's substantive due process

 4   claim fails on its merits.24   Accordingly, we affirm the grant of

 5   summary judgment to Woo on that basis as to this claim.

 6             VII.   The Southerland Children's Fourth Amendment
 7                    Unlawful-Seizure Claim

 8             Finally, the Southerland Children assert a claim for

 9   violation of their Fourth Amendment right to be free from

10   unreasonable seizure.

11   A.   Evolution of the Southerland Children's Theory of Liability

12             The Southerland Children originally characterized this

13   constitutional claim as arising under the Due Process Clause of

14   the Fourteenth Amendment.   Specifically, they alleged that "Woo

15   lacked a reasonable basis for removing the [Southerland] Children

16   from plaintiff's home without a court order," and that "[i]n so

17   doing, Woo deprived the [Southerland] Children of their

18   substantive due process liberty interests in being in the care

19   and custody of their father and natural guardian, guaranteed to

20   them by the [F]ourteenth [A]mendment."   Am. Compl. ¶ 51.   They

21   relied upon the Fourteenth Amendment notwithstanding our

22   observation in Southerland I that "[t]he children's claims for


          24
            As noted above, supra at 16 & n.9, because we affirm on
     that basis, we need not consider whether Southerland's
     substantive due process claim would be defeated on the alternate
     ground that Ciara and the Southerland Children were adjudged to
     be abused and neglected by the Family Court in July 1998.

                                      59
 1   unreasonable seizure would proceed under the Fourth Amendment [as

 2   applied to the states by the Fourteenth] rather than the

 3   substantive component of the Due Process Clause."    Southerland I,

 4   4 F. App'x at 37 n.2 (citing Kia P., 235 F.3d at 757-58).

 5                By the time of the summary judgment proceedings after

 6   remand, the Southerland Children appeared to recognize that their

 7   claim did indeed arise under the Fourth Amendment.    See

 8   Southerland Children's Mem. of Law in Opp'n to Mot. for Summ. J.

 9   at 16-20 ("Children's Dist. Ct. Br.") (Dkt. No. 184), Southerland

10   v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Dec. 29, 2006) (arguing

11   the Southerland Children's substantive due process claim as

12   though it arose under the Fourth Amendment).    And in its opinion

13   resolving the summary judgment motion, the district court

14   correctly noted that the Southerland Children's substantive due

15   process constitutional claim was governed by the Fourth

16   Amendment.    See Southerland II, 521 F. Supp. 2d at 230 n.24

17   (citing Southerland I, 4 F. App'x at 37 n.2).

18                The Southerland Children also narrowed their theory of

19   liability as to the legal substance of that claim.    Originally,

20   they pled that the removal was unconstitutional both because it

21   lacked a "reasonable basis," Am. Compl. ¶ 51, and because the

22   removal had the effect of separating them from Southerland,

23   thereby depriving them of their "liberty interests in being in

24   the care and custody of their father," id.     In effect, the

25   Southerland Children thus pled both that their warrantless

                                       60
1   seizure was unreasonable because it was not supported by an

2   exception to the Fourth Amendment warrant requirement (no

3   "reasonable basis"), and that the seizure was unreasonable

4   insofar as it burdened the Southerland Children's substantive due

5   process right to "be[] in the care and custody of their

6   father."25



         25
           A Fourth Amendment unlawful-seizure claim differs from a
    Fourth Amendment unlawful-search claim. It is not yet clear from
    the case law of our Circuit what kinds of Fourth Amendment
    unlawful-seizure claims might be asserted by a child who is
    removed from his or her home. From reviewing our past decisions
    and those of other circuits, however, we can identify at least
    three possibilities.

           First, a child might assert that the act of seizure itself
    lacked a lawful basis, such as consent, probable cause, or
    exigent circumstances. See, e.g., Southerland II, 521 F. Supp.
    2d at 234 n.29 (evaluating Southerland Children's Fourth
    Amendment unlawful-seizure claim in those terms).

           Second, a child might assert that the seizure was carried
    out in an unreasonable manner, such as through the use of
    excessive force or through a sudden, surprise raid. See, e.g.,
    Brokaw v. Mercer County, 235 F.3d 1000, 1011-12 (7th Cir. 2000)
    (upholding manner-of-seizure claim brought by child removed from
    his home where officers "acted like kidnappers").

           Third, a child might assert that the seizure endured for
    an unreasonable length, and thereby burdened the child's interest
    in being in the care and custody of his or her parents. See,
    e.g., Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 474
    (7th Cir. 2011) (recognizing and upholding seized child's claim
    for "continued withholding" under the Fourth Amendment); see also
    Albright v. Oliver, 510 U.S. 266, 276-81 (1994) (Ginsburg, J.,
    concurring) (endorsing "continuing seizure" doctrine in the law-
    enforcement context); Fontana v. Haskin, 262 F.3d 871, 878-80 &
    nn.4-5 (9th Cir. 2001) (discussing "continuing seizure" doctrine
    and collecting cases).




                                   61
 1             In their submission opposing the defendants' summary

 2   judgment motion, however, the Southerland Children appeared to

 3   have abandoned the theory that the seizure unreasonably burdened

 4   their due process right to their father's care and custody.    In

 5   other words, they no longer challenged the reasonableness of the

 6   effect or duration of their removal as a violation of their

 7   rights to substantive due process.    Instead, they argued only

 8   that the removal was unconstitutional as an unlawful seizure

 9   because the act of removal itself was unsupported by sufficient

10   legal justification:   Woo could not demonstrate the existence of

11   either parental consent or exigent circumstances that would

12   justify the act of removal absent prior judicial authorization.

13   See generally Children's Dist. Ct. Br. at 16-20.

14   B.   District Court's Analysis

15             The district court properly analyzed this claim solely

16   by reference to the theory set forth in the Southerland

17   Children's summary-judgment briefing -- i.e., that their Fourth

18   Amendment rights had been violated because there were no "exigent

19   circumstances" justifying their removal without a court order.

20   See Southerland II, 521 F. Supp. 2d at 234 n.29.    In light of the

21   Southerland Children's abandonment of any of the other alleged

22   theories of liability, especially under principles of substantive

23   due process, the district court correctly framed the claim in

24   this manner.

                                      62
 1                As with the procedural due process claim, see supra

 2   Part V.A., the court concluded that at the time of the alleged

 3   seizure, "there was no clear application of Fourth Amendment

 4   standards in the child removal context."     Southerland II, 521 F.

 5   Supp. 2d at 231.    The court pointed, in particular, to Tenenbaum,

 6   193 F.3d at 605, our decision that viewed Fourteenth Amendment

 7   due process claims as properly Fourth Amendment unlawful-seizure

 8   claims of the sort asserted here, but that had not issued until

 9   after the seizure in this case. See Southerland II, 521 F. Supp.

10   2d at 231.    Based on the absence of clear law at the time of the

11   Southerland Children's removal, the court held, as a matter of

12   law, that Woo was protected from this claim by qualified

13   immunity.    Id. at 231.

14                In addition to the immunity question, and despite

15   finding in Woo's favor on it, the district court nonetheless

16   addressed the merits of the Southerland Children's Fourth

17   Amendment unlawful-seizure claim.      It concluded in a footnote

18   that, "[i]n the absence of Woo's qualified immunity defense,"

19   summary judgment would not be warranted on this claim on its

20   underlying merits because "a reasonable juror could determine

21   that the circumstances Woo encountered did not demonstrate an

22   imminent danger to the children's life or limb."26     Id. at 234


          26
            In employing this "imminent danger" standard, the
     district court appears to have relied on section 1024(a) of the
     New York Family Court Act. See Southerland II, 521 F. Supp. 2d
     at 234 n.29. That statute provides that a child-protective

                                       63
 1   n.29.



 2   C. Appeal

 3                On appeal, the Southerland Children appear to persist

 4   in their view that their Fourth Amendment unlawful-seizure claim

 5   is addressed solely to the issue of whether there was a legal

 6   basis for the act of removal.    See Southerland Children's Br. at

 7   24, 36-41; Woo Br. at 36-37; Southerland Children's Reply Br. at

 8   6-8.    We review the argument in those terms, treating as

 9   abandoned any argument the Southerland Children might have made

10   that the removal was unreasonable because it had an unlawful

11   effect or was of unlawful duration, and was therefore a violation

12   of their substantive due process rights.    See City of N.Y. v.

13   Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011).

14   1.      Standard for Evaluating Unlawful-Seizure Claims in the
15           Child-Removal Context

16                By way of footnote, the district court decided that Woo

17   was entitled to summary judgment with respect to the claim that

18   the removal was unlawful.    In doing so, the court assumed that a


     worker may effect an ex parte removal of a child only where the
     worker has "reasonable cause to believe that the child is in such
     circumstance or condition that his or her continuing in . . . the
     care and custody of the parent . . . presents an imminent danger
     to the child's life or health" and where "there is not time
     enough to apply for a[] [court] order." N.Y. Fam. Ct. Act
     § 1024(a). Our assessment of the lawfulness of the removal of
     the Southerland Children from their home, however, is controlled
     by federal, not state, standards. See, e.g., United States v.
     Chirino, 483 F.3d 141, 149 (2d Cir. 2007).

                                       64
 1   seizure of a child without a court order is constitutionally

 2   justified under the Fourth Amendment only if there are "exigent

 3   circumstances."   See Southerland II, 521 F. Supp. 2d at 234 n.29.

 4   This Court, however, has yet to articulate definitively the legal

 5   standard that applies to a Fourth Amendment unlawful-seizure

 6   claim brought by a child alleging that his or her removal without

 7   parental consent or prior judicial authorization was not

 8   supported by sufficient cause.

 9              In Tenenbaum, we considered this question, apparently

10   for the first time.   See 193 F.3d at 603-05.   We described, in

11   dicta, three possible "modes of determining whether a seizure was

12   'reasonable' under the Fourth Amendment . . . in cases where the

13   state seizes a child in order to prevent abuse or neglect."     Kia

14   P., 235 F.3d at 762 (citing and discussing Tenenbaum, 193 F.3d at

15   603-05).

16              As one mode, we referred to the "exigent circumstances"

17   exception to the warrant requirement that is well-established in

18   the law-enforcement context.   See Tenenbaum, 193 F.3d at 604

19   (noting that "it is core Fourth Amendment doctrine that a seizure

20   without consent or a warrant is a 'reasonable' seizure if it is

21   justified by 'exigent circumstances'"); see generally United

22   States v. Klump, 536 F.3d 113, 117-19 (2d Cir. 2008) (describing

23   and applying the "exigent circumstances" exception in

24   law-enforcement context), cert. denied, 129 S. Ct. 664 (2008);


                                      65
 1   United States v. MacDonald, 916 F.2d 766, 769-70 (2d Cir. 1990)

 2   (en banc) (elaborating standards).     We concluded that such an

 3   exception would be viable in the child-removal context too.

 4   Tenenbaum, 193 F.3d at 604-05.    We suggested that that exception

 5   would apply when "a child is subject to the danger of abuse if

 6   not removed . . . before court authorization can reasonably be

 7   obtained." Id. at 605.

 8                As another mode, we said that a seizure conducted in

 9   accordance with the ordinary probable-cause standard -- the

10   standard that applies in the law-enforcement context -- might

11   also suffice.    Under such a rule, a caseworker could lawfully

12   remove a child from his or her home without parental consent or

13   prior judicial authorization if the caseworker knew "facts and

14   circumstances that were sufficient to warrant a person of

15   reasonable caution in the belief that" a child was abused or

16   neglected.    Id. at 602-03 (internal quotation marks omitted).

17                Alternatively, we noted that under some circumstances

18   an even lesser, "special needs," standard might apply, in which

19   case only "reasonable cause" would be necessary to render lawful

20   a warrantless seizure.    See id. at 603-04.   That would reflect

21   the principle that "there are some agencies outside the realm of

22   criminal law enforcement where government officials have 'special

23   needs beyond the normal need for law enforcement [that] make the

24   warrant and probable-cause requirement impracticable.'"    Id. at


                                       66
 1   603 (quoting O'Connor v. Ortega, 480 U.S. 709, 720 (1987)

 2   (plurality opinion)) (alterations in Tenenbaum).     We observed,

 3   however, that case law in our sister circuits suggested that the

 4   "emergency removal of a child by caseworkers is not such a

 5   'special needs' situation."    Id. at 603-04 (collecting cases).

 6                We did not decide in Tenenbaum which of those three

 7   standards should apply as the constitutional floor in

 8   child-removal cases -- i.e., the standard below which an officer

 9   could not go without violating the Fourth Amendment.    Id. at 605;

10   see also Kia P., 235 F.3d at 762-63 (reserving same question).

11   But we did conclude that, at least "where information possessed

12   by a state officer would warrant a person of reasonable caution

13   in the belief that a child is subject to the danger of abuse if

14   not removed from school before court authorization can reasonably

15   be obtained, the 'exigent circumstances' doctrine . . . permits

16   removal of the child without a warrant equivalent and without

17   parental consent."    Tenenbaum, 193 F.3d at 605 (citing Hurlman,

18   927 F.2d at 80); see also Phifer, 289 F.3d at 60-61 (recognizing

19   and applying this holding in the context of a Rooker-Feldman

20   analysis).    And, subsequent to Tenenbaum, we have assumed that

21   the standard to be applied to such claims cannot be any less than

22   probable cause.    See Nicholson, 344 F.3d at 173 ("We have not

23   addressed . . . the question whether[,] in the context of the

24   seizure of a child by a state protective agency[,] the Fourth


                                       67
 1   Amendment might impose any additional restrictions above and

 2   beyond those that apply to ordinary arrests." (emphasis added)).

 3                 Again here, we need not adopt a standard.   We observe

 4   first, as we did in Tenenbaum, that this case does not present

 5   circumstances in which the "special needs" test applies, if ever

 6   it does in the child-removal context.      Tenenbaum, 193 F.3d at

 7   603.27      In this case "the requirement of obtaining the equivalent

 8   of a warrant where practicable [would not] impose[] intolerable

 9   burdens on the government officer or the courts, [and] would

10   [not] prevent such an officer from taking necessary action, or

11   tend to render such action ineffective," Tenenbaum, 193 F.3d at

12   604.

13                 The elimination of a possible "special needs" approach

14   leaves either the probable-cause or exigent-circumstances

15   standard applicable to the merits of whether Woo's behavior

16   violated the Children's constitutional rights.28      But we need not


            27
            Case law from our sister circuits, subsequent to
     Tenenbaum, concludes that the "special needs" test is never
     applicable in this context. See, e.g., Siliven v. Ind. Dep't of
     Child Servs., 635 F.3d 921, 926-28 (7th Cir. 2011); Riehm v.
     Engelking, 538 F.3d 952, 965 (8th Cir. 2008); Gates v. Texas
     Dep't of Protective & Regulatory Servs., 537 F.3d 404, 427-29
     (5th Cir. 2008).
            28
            Our sister circuits apply somewhat divergent standards in
     determining whether a seizure of a child without judicial
     authorization or parental consent violates the Fourth Amendment.
     See, e.g., See Siliven, 635 F.3d at 926-28 (probable cause or
     exigent circumstances sufficient); Riehm, 538 F.3d at 965 (same);
     Gates, 537 F.3d at 427-29 (exigent circumstances required);
     Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000) (same).

                                         68
 1   decide between them -- at least not yet.   As explained below,

 2   regardless of which standard applies, Woo cannot establish as a

 3   matter of law on the current record that he would be entitled to

 4   qualified immunity or that no reasonable jury could find in favor

 5   of the Children on the merits of their Fourth Amendment seizure

 6   claim.

 7   2.   Qualified Immunity

 8             The district court decided that Woo was entitled to

 9   qualified immunity because "prior to the Court of Appeals'

10   decision in Tenenbaum [in 1999], there was no clear application

11   of Fourth Amendment standards in the child removal context."

12   Southerland II, 521 F. Supp. 2d at 231.    Although we agree with

13   the district court's observation that this Circuit had not yet

14   applied Fourth Amendment unlawful-seizure principles in the

15   child-removal context by 1997, we think that the district court

16   erred by conducting its inquiry solely by reference to the

17   label -- "unlawful seizure" -- attached to the claim at issue.

18             Our decision in Tenenbaum did indeed effect a change in

19   the constitutional nomenclature governing a child's claim for

20   alleged substantive constitutional violations arising out of his

21   or her removal from a parental home.   There, the plaintiffs

22   contended that "[their daughter's] temporary removal [from

23   school] for the purpose of subjecting her to a medical

24   examination violated their and [their daughter's] substantive


                                    69
 1   due-process rights."    Tenenbaum, 193 F.3d at 599.   We noted that

 2   the Supreme Court observed in Albright v. Oliver, 510 U.S. at

 3   273, that

 4                where a particular Amendment provides an
 5                explicit textual source of constitutional
 6                protection against a particular sort of
 7                government behavior, that Amendment, not the
 8                more generalized notion of substantive due
 9                process, must be the guide for analyzing
10                these claims.

11   Tenenbaum, 193 F.3d at 599 (brackets and internal quotation marks

12   omitted).    We said that "'[s]ubstantive due process analysis

13   is . . . inappropriate . . . if [the] claim is covered by the

14   Fourth Amendment.'"    Id. at 600 (quoting Lewis, 523 U.S. at 843)

15   (second brackets in original; other internal quotation marks

16   omitted).    We then concluded that the daughter's "removal and her

17   examination constituted a seizure and search, respectively, under

18   the Fourth Amendment," id., and that her claim "therefore 'must

19   be analyzed under the standard appropriate to [the Fourth

20   Amendment], not under the rubric of substantive due process.'"

21   Id. (quoting United States v. Lanier, 520 U.S. 259, 272 n.7

22   (1997)).29



          29
            We have since reaffirmed that "the Fourth Amendment
     applies in the context of the seizure of a child by a government-
     agency official during a civil child-abuse or maltreatment
     investigation." Kia P., 235 F.3d at 762. We relied on Kia P. in
     turn in Southerland I in advising that "[t]he [Southerland]
     children's claims for unreasonable seizure would proceed under
     the Fourth Amendment rather than the substantive component of the
     Due Process Clause." Southerland I, 4 F. App'x at 37 n.2.

                                       70
 1              The fact that Tenenbaum changed the legal "rubric"

 2   applicable to the Southerland Children's constitutional claim --

 3   from substantive due process to illegal seizure -- however, is

 4   not alone determinative of whether the constitutional rights

 5   implicated in the Children's seizure were clearly established

 6   prior to the time of the seizure.    It would be inappropriate, we

 7   think, to afford Woo qualified immunity on the Southerland

 8   Children's claim solely because, two years after the events in

 9   question, we shifted the constitutional label for evaluating that

10   claim from the Fourteenth to the Fourth Amendment.   But cf.

11   Tenenbaum, 193 F.3d at 605 (resting grant of qualified immunity

12   on basis that there "was no 'clearly established' law under the

13   Fourth Amendment" in 1990 concerning standards for removing a

14   child from her school).   What matters is whether an objectively

15   reasonable caseworker in Woo's position would have known that

16   removing a child from his or her home without parental consent,

17   circumstances warranting the removal, or court order would

18   violate a constitutional right -- not whether the caseworker

19   would have known which constitutional provisions would be

20   violated if the caseworker proceeded to act in a particular way.

21              We reached a similar conclusion in Russo v. City of

22   Bridgeport, 479 F.3d 196 (2d Cir.), cert. denied, 552 U.S. 818

23   (2007).   There we made clear that the constitutional "right to be

24   free from prolonged detention caused by law enforcement


                                     71
 1   officials' mishandling or suppression of exculpatory evidence,"

 2   id. at 211, was a species of the right to be free from unlawful

 3   seizure under the Fourth Amendment, not a substantive due process

 4   right under the Fourteenth Amendment, see id. at 208-09.     In then

 5   proceeding to undertake a qualified-immunity inquiry, we

 6   cautioned that our "clarification [of the law was] of no

 7   consequence to the question of whether the right was clearly

 8   established [at the time of the relevant events], because the

 9   proper inquiry is whether the right itself -- rather than its

10   source -- is clearly established."   Id. at 212 (collecting cases;

11   emphases in original).

12             Here, as in Russo, in inquiring whether there was

13   clearly established law to govern the Southerland Children's

14   claim in 1997, we look not only to authorities interpreting the

15   Fourth Amendment, but to all decisions concerning the same

16   substantive right -- the right of a child not to be seized from

17   his or her home without parental consent, prior judicial

18   authorization, or the existence of special circumstances.

19             Although the standard for determining whether the

20   circumstances justify seizure of a child without judicial

21   authorization or parental consent under the Fourth Amendment was

22   not established by 1997 and, as we have pointed out, remains

23   unsettled to this day, the Children's right not to be taken from

24   the care of their parent without court order, parental consent,


                                    72
 1   or emergency circumstances was firmly established, albeit under a

 2   procedural due process framework.      See Hurlman, 927 F.2d at 80.

 3   Regardless of whether probable cause or exigent circumstances

 4   must be established to justify a warrantless seizure for Fourth

 5   Amendment purposes, the existence of emergency circumstances

 6   sufficient to justify removal of the Southerland Children in a

 7   manner comporting with their due process rights would also

 8   certainly suffice to justify their removal in a manner comporting

 9   with their Fourth Amendment rights barring unreasonable

10   seizure.30    To that extent, at the time of the events in this

11   case, the Southerland Children's Fourth Amendment rights against

12   unreasonable seizure were clearly established.

13                In light of this determination, the next question the

14   Court must address is whether "it was objectively reasonable for

15   [Woo] to believe [that his] acts did not violate th[e Childrens'

16   clearly established] right[]," Holcomb, 337 F.3d at 220, not to

17   be taken from the care of their parent without court order,

18   parental consent, or emergency circumstances.     Once again, for

19   the purposes of the qualified immunity analysis, the legal origin

20   of the right is not determinative.     If Woo has established that

21   he was objectively reasonable in believing that he did not

22   violate the Children's right to be free from unwarranted seizure


          30
             See supra, note 21 (discussing the distinction between
     an exigent circumstances and an emergency circumstances
     standard).

                                       73
 1   without exigent circumstances, court order, or parental consent,

 2   then he is protected against their Fourth Amendment seizure

 3   claim, no matter the standard used to determine liability on this

 4   claim on the merits.    For the same reasons as in our procedural

 5   due process analysis -- that we cannot conclude as a matter of

 6   law on the current record that it would have been objectively

 7   reasonable for Woo to believe that his actions did not violate

 8   the Children's constitutional right not to be removed from their
 9   home barring exigent circumstances – we cannot conclude as a

10   matter of law that Woo must prevail on the "objectively

11   reasonable" inquiry as to the violation of the children's Fourth

12   Amendment illegal seizure claims.     See supra, Part V.   Thus,

13   qualified immunity is unavailable to Woo at this stage on the

14   current record.
15   3.   The Merits of the Fourth Amendment Unlawful Seizure Claim

16             Because we conclude here that Woo is not entitled to

17   qualified immunity as a matter of law, at least on this record,

18   the remaining question is whether Woo is entitled to summary

19   judgment on the merits.   The district court assumed that a

20   seizure of a child without a court order or parental consent is

21   constitutionally justified under the Fourth Amendment only if

22   there are "exigent circumstances."     See Southerland II, 521 F.

23   Supp. 2d at 234 n.29.   It concluded that, taking the evidence in

24   the light most favorable to the Southerland Children, "a

25   reasonable juror could determine that the circumstances Woo

                                      74
 1   encountered did not demonstrate an imminent danger to the

 2   children's life or limb."   Id.

 3             As our discussion here makes clear, however, this may

 4   not be the standard that should apply in deciding the merits of

 5   the Children's Fourth Amendment seizure claim.   The district

 6   court should reconsider the merits-question –- on an expanded

 7   record if the court deems that appropriate –- cognizant of the

 8   uncertainty in the legal landscape.    The district court may need

 9   to decide, in the first instance, what standard should apply, but

10   it may not.   For example, if the court determines that under

11   either standard the Southerland children can establish that the

12   circumstances in the home did not justify the seizure as a matter

13   of law, then it need not decide whether the probable cause or

14   exigent circumstances standard is applicable.

15             VIII.   Further Development of the Record

16             As should be clear by now, nothing in this opinion

17   should be read to foreclose the district court from exercising

18   its sound discretion as to the nature and scope of any further

19   pretrial proceedings on remand.    Cf. Huminski v. Corsones, 386

20   F.3d 116, 152 (2d Cir. 2004) (district court free to consider

21   whether granting additional discovery would be appropriate before

22   deciding a renewed motion for summary judgment on remand).    The

23   district court may, although it need not, permit additional

24   discovery, a renewed motion for summary judgment, or both.    And


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 1   it follows that, should this case proceed to trial, nothing in

 2   this opinion should be construed as preventing the district court

 3   from entertaining a properly supported motion for judgment as a

 4   matter of law by the defendants.

 5                                 CONCLUSION

 6                For the foregoing reasons, we affirm the grant of

 7   summary judgment as to Southerland's claim for infringement of

 8   his substantive due process rights under the Fourteenth

 9   Amendment.    We vacate the district court's grant of summary

10   judgment as to Southerland's and the Southerland Children's

11   claims for Fourth Amendment violations arising out of the

12   allegedly unlawful search of the Southerland home; as to

13   Southerland's and the Southerland Children's claims for

14   violations of procedural due process under the Fourteenth

15   Amendment; and as to the Southerland Children's claim for

16   unlawful seizure under the Fourth Amendment and remand to the

17   district court for further proceedings.

18                Each party shall bear his, her or its own costs on

19   appeal.




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