                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 00-3223
                                  ___________

Margaret Vaughn; and                       *
Kevin Vaughn Sr.,                          *
                                           *
       Plaintiffs-Appellees,               *
                                           *
       v.                                  *
                                           *
Sutton Ruoff, individually and in her      * Appeal from the United States
official capacity,                         * District Court for the
                                           * Western District of Missouri.
       Defendant-Appellant,                *
                                           *
Sandra Utz, individually and in her        *
official capacity; and Patricia Marceau, *
individually and in her official capacity, *
                                           *
       Defendants.                         *
                                     ___________

                           Submitted: April 13, 2001
                             Filed: June 22, 2001
                                 ___________

Before BOWMAN and FAGG, Circuit Judges, and VIETOR,1 District Judge.
                           ___________




      1
      The Honorable Harold D. Vietor, United States Senior District Judge for the
Southern District of Iowa, sitting by designation.
VIETOR, Senior District Judge.

       Defendant-appellant Sutton Ruoff and defendants Sandra Utz and Patricia
Marceau are social service workers for the Clinton County Division of Family Services
in Missouri. Plaintiffs-appellees Margaret and Kevin Vaughn Sr. brought suit against
them for violations of several provisions of the United States and Missouri
Constitutions based on the claim that defendants compelled Margaret, by coercive
means, to submit to tubal ligation sterilization. The district court2 granted defendants'
motion for summary judgment on all claims except the federal and state due process
claims against Ruoff. Ruoff appeals, arguing that the district court erred in denying her
qualified immunity on the due process claims. We affirm.

                             STANDARD OF REVIEW

       Qualified immunity protects public officials when "their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would
have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This court reviews de
novo the denial of a motion for summary judgment based on qualified immunity. Lyles
v. City of Barling, 181 F.3d 914, 917 (8th Cir. 1999). Review, however, is limited to
issues of law, and we will not review the merits of the case or the sufficiency of the
evidence. Id. at 916-17. A public official may argue "'that [her] actions were objectively
reasonable in light of [her] knowledge at the time of the incident,'" id. at 917 (quoting
Mueller v. Tinkham, 162 F.3d 999, 1002 (8th Cir. 1998)), but we will affirm a denial
of qualified immunity "if there exists a genuine issue of material fact concerning the
[defendant's] knowledge or if the moving party is not entitled to judgment as a matter
of law." Id.



      2
      The Honorable Scott O. Wright, United States Senior District Judge for the
Western District of Missouri.

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                                        FACTS

        The summary judgment record discloses the following facts, which are either
undisputed or viewed in a light most favorable to the Vaughns. Margaret and Kevin Sr.
are married and have children. Margaret has been diagnosed as mildly retarded. On
August 19, 1993, Margaret gave birth to the couple's first child, a daughter named Leta.
Leta was born with various health problems that required ongoing medical care. On
October 27, 1993, the Missouri Division of Family Services ("MDFS") took custody
of Leta, finding that the Vaughns failed to maintain a sanitary home and could not
demonstrate an ability to rear her properly.

       After Leta's birth, Ruoff, the social service worker assigned to the Vaughns' case,
counseled Margaret on birth control options. Margaret agreed to be and was injected
with Depo Provera, a prescription medication contraceptive delivered intravenously.
Margaret, however, became pregnant again. On August 19, 1994, Margaret gave birth
to the couple's second child, a son named Kevin Jr. On August 26, 1994, MDFS took
custody of Kevin Jr., finding unsanitary home conditions and an inability on the part of
the Vaughns to rear him properly.

        While Margaret was pregnant with Kevin Jr., Ruoff broached the subject of
sterilization with the Vaughns. The same day as, but after, Kevin Jr.’s birth, and while
Margaret was still in the hospital, Ruoff told Margaret that if she got her "tubes tied,
that [she] would have [her] kids back in two to three weeks." Ruoff also told both
Margaret and Kevin Sr. that "if [he] or [Margaret] would get sterilized, [their] chances
of getting the kids back would be really great." Margaret then agreed to a tubal ligation,
and Ruoff scheduled the procedure for October 3, 1994. In September, 1994, Ruoff
confirmed the October tubal ligation and arranged to drive Margaret to the hospital.
Ruoff later arranged for Margaret to stay at Heartland House Bed & Breakfast the night
before the procedure and instructed Kevin Sr. that he could not stay with Margaret that
night. On October 3, 1994, Ruoff drove Margaret to the St. Joseph Women's Health

                                           -3-
Clinic where the tubal ligation was performed. On December 28, 1994, MDFS
informed the Vaughns that it would recommend termination of their parental rights to
both Leta and Kevin Jr.

             LEGAL ANALYSIS AND APPLICATION TO FACTS

        Ruoff argues that she is entitled to qualified immunity on the Vaughns' due
process claims. Qualified immunity analysis initially asks the following two questions:
(1) was there a deprivation of a constitutional right, and, if so, (2) was the right clearly
established at the time of the deprivation? County of Sacramento v. Lewis, 523 U.S.
833, 841 n.5 (1998). If either question is answered in the negative, the public official
is entitled to qualified immunity. If both questions are answered in the affirmative, a
public official can avoid a denial of qualified immunity only if she meets her burden of
establishing undisputed and material predicate facts which demonstrate that her actions
were reasonable under the circumstances. Pace v. City of Des Moines, 201 F.3d 1050,
1056 (8th Cir. 2000). If the material predicate facts are undisputed, the reasonableness
inquiry is a question of law. Id. If there is a genuine dispute over material predicate
facts, a public official cannot obtain summary judgment. Id.

        We begin by determining whether Margaret possessed a protected liberty interest
under the Fourteenth Amendment. U.S. Const. amend. XIV, § 1 (“[N]or shall any State
deprive any person of life, liberty, or property, without due process of law . . . .”). It
is clear that she did because a personal decision relating to procreation or contraception
is a protected liberty interest. Carey v. Population Servs. Int'l, 431 U.S. 678, 685
(1977). All persons, including the mentally handicapped, possess this liberty interest.
See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 447 (1985).

       The next issue is whether Ruoff’s conduct violated Margaret’s due process
rights. We hold that it did. Before the State may deprive an individual of a protected
liberty interest, the Due Process Clause requires the State to provide certain procedural

                                            -4-
protections. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 570 n.7
(1972) (“‘[I]t is fundamental that except in emergency situations . . . due process
requires that when a State seeks to terminate [a protected] interest . . ., it must afford
“notice and opportunity for hearing appropriate to the nature of the case” before the
termination becomes effective.’”) (alteration in original) (quoting Bell v. Burson, 402
U.S. 535, 542 (1971)).

       Ruoff disputes that she deprived Margaret of her protected liberty interest. Ruoff
concedes that compelled sterilization implicates due process concerns, but she contends
that inducing or coercing a person to submit to sterilization does not. We need not
resolve the inducement issue because viewing the facts in a light most favorable to the
Vaughns, we conclude that the evidence could support a finding that Ruoff coerced
Margaret into submitting to sterilization. A jury could reasonably find that Ruoff’s
comments about getting the two children back implied that the children would not be
returned to the Vaughns if they did not agree to sterilization. A jury could properly
conclude from such a finding that Margaret’s sterilization decision was not voluntary
but rather was coerced, and this, we hold, implicates due process concerns. See
Colorado v. Connelly, 479 U.S. 157, 522 (1986) (“We hold that coercive police
activity is a necessary predicate to the finding that a confession is not "voluntary"
within the meaning of the Due Process Clause of the Fourteenth Amendment.”).

        It is undisputed that Margaret was not given any procedural protections before
the sterilization occurred.3 Ruoff argues that even without procedural protections, the
sterilization was justified. It is true that involuntary sterilization is not always
unconstitutional if it is a narrowly tailored means to achieve a compelling government
interest. See Buck v. Bell, 274 U.S 200, 207-08 (rejecting due process and equal
protection challenges to compelled sterilization of mentally handicapped woman). It is


      3
      Because no procedural protections were given, we need not decide what
minimum procedures are required by the Due Process Clause.

                                           -5-
also true that the mentally handicapped, depending on their circumstances, may be
subjected to various degrees of government intrusion that would be unjustified if
directed at other segments of society. See Cleburne, 473 U.S. at 442-47; Buck, 274
U.S. at 207-08. It does not follow, however, that the State can dispense with procedural
protections, coerce an individual into sterilization, and then after the fact argue that it
was justified. If it did, it would invite conduct, like that alleged in this case, that is ripe
for abuse and error. See Buck, 274 U.S. at 206 (noting that Virginia’s sterilization law
required the state to comply with its “ very careful provisions by which the act protects
the patients from possible abuse”). Even assuming Missouri had a compelling interest
in preventing further births by Margaret, such a compelling interest does not justify
dispensing with procedural protections. Sterilization results in the irreversible loss of
one of a person’s most fundamental rights, a loss that must be preceded by procedural
protections.4 Ruoff’s conduct violated Margaret’s Due Process Clause right to be free
from coerced sterilization without appropriate procedures.

       The last issue is whether the unconstitutionality of Ruoff’s alleged conduct was
clearly established at the time it occurred. We hold that it was. To be clearly
established, the right's contours "must be sufficiently clear that a reasonable official
would understand that what [s]he is doing violates that right." Anderson v. Creighton,
483 U.S. 635, 640 (1987). There is no requirement that "the very action in question has
previously been held unlawful," id.; see Tlamka v. Serrell, 244 F.3d 628, 634-35 (8th
Cir. 2001), but rather, "in the light of pre-existing law the unlawfulness must be
apparent." Anderson, 483 U.S. at 640. We subscribe to a broad view of the concept of
clearly established law, and we look to all available decisional law, including decisions
from other courts, federal and state, when there is no binding precedent in this circuit.
Tlamka, 244 F.3d at 634 (quoting Buckley v. Rogerson, 133 F.3d 1125, 1129 (8th Cir.
1998)). Even in the complete absence of any decisions involving similar facts, a right


       4
       We express no opinion on what, if any, emergency situations would justify
dispensing with pre-sterilization procedural protections. See Roth, 408 U.S. at 570 n.7.

                                             -6-
can be clearly established if a reasonable public official would have known her conduct
was unconstitutional. See id. 634-35; see also Anderson v. Romero, 72 F.3d 518, 526-
27 (7th Cir. 1995) ("A constitutional violation that is so patent that no violator had even
attempted to obtain an appellate ruling on it can be regarded as clearly established even
in the absence of precedent.").

       We have not found any cases with facts similar to those in this case. This does
not, however, carry the day for Ruoff. Numerous pre-1994 cases show that minimum
procedures regularly precede state compelled sterilizations, and some clearly establish
that pre-sterilization procedures are constitutionally required. See Skinner v. Oklahoma
ex rel. Williamson, 316 U.S. 535 (1942) (Oklahoma); Buck, 274 U.S. 200 (Virginia);
N.C. Ass’n for Retarded Children v. North Carolina, 420 F. Supp. 451, 455-56
(M.D.N.C. 1976) (striking down as unconstitutional a state law provision that required
a mental institution director to institute sterilization proceedings if requested by the
mentally handicapped person’s next of kin or legal guardian); Relf v. Mathews, 403 F.
Supp. 1235 (D.D.C. 1975); Wade v. Bethesda Hosp., 337 F. Supp. 671, 674 (S.D.
Ohio 1971) (denying judicial immunity to probate judge who ordered sterilization of
mentally handicapped woman without statutory authorization); Hudson v. Hudson, 373
So. 2d 310 (Ala. 1979); In the Matter of C.D.M., 627 P.2d 607 (Alaska 1981); Mildred
G. v. Valerie N., 707 P.2d 760 (Cal. 1985); In the Matter of A.W., 637 P.2d 366 (Colo.
1981) (en banc); Motes v. Hall County Dep’t of Family & Children Servs., 306 S.E.2d
260, 262 (Ga. 1983) (“We therefore conclude that the seriousness of an individual's
interest at stake in a state initiated sterilization proceeding is such that due process
requires ‘clear and convincing evidence’ to authorize the sterilization of an
individual.”); In the Matter of P.S., 452 N.E.2d 969 (Ind. 1983); In the Matter of the
Guardianship of Matejski, 419 N.W.2d 576 (Iowa 1988) (en banc); Holmes v. Powers,
439 S.W.2d 579 (Ky. Ct. App. 1968); In re Debra B., 495 A.2d 781, 783 (Me. 1985)
(“In the exercise of that right [of reproductive autonomy], ‘the interests of the parents
of a retarded person cannot be presumed to be identical to those of the child.’ Thus a
judicial determination is necessary to ensure that the child's personal right is

                                           -7-
protected.”) (quoting In the Matter of Guardianship of Hayes, 608 P.2d 635, 640
(Wash. 1980) (en banc)); Wentzel v. Montgomery Gen. Hosp., Inc., 447 A.2d 1244
(Md. 1982); In the Matter of Moe, 432 N.E.2d 712 (Mass. 1982); Smith v. Command,
204 N.W.2d 140 (Mich. 1925); In the Matter of the Welfare of Hillstrom, 363 N.W.2d
871, 876 (Minn. Ct. App. 1985) (“The fundamental right involved must be safeguarded
to assure that sterilization is not a subterfuge for convenience and relief from the
responsibility of supervision.”); In the Interest of M.K.R., 515 S.W.2d 467 (Mo. 1974)
(en banc); State v. Cavitt, 157 N.W.2d 171 (Neb. 1968); In re Penny N., 414 A.2d 541
(N.H. 1980); In the Matter of Grady, 426 A.2d 467 (N.J. 1981); In re Sterilization of
Moore, 221 S.E.2d 307 (N.C. 1976); Triplett v. Bd. of Soc. Protection, 528 P.2d 563
(Or. Ct. App. 1974); In the Matter of Terwilliger, 450 A.2d 1376 (Pa. Super. Ct.
1982); Brode v. Brode, 298 S.E.2d 443 (S.C. 1982); Frazier v. Levi, 440 S.W.2d 393
(Tex. Civ. App. 1969); In re Marcia R., 383 A.2d 630 (Vt. 1978); In the Matter of
Guardianship of Hayes, 608 P.2d 635 (Wash. 1980) (en banc); Eberhardy v. Circuit
Court for Wood County, 307 N.W.2d 881 (Wis. 1981). Furthermore, any reasonable
social worker—indeed, any reasonable person, social worker or not—would have
known that a sterilization is compelled, not voluntary, if it is consented to under the
coercive threat of losing one’s children, and hence unconstitutional.

     The district court did not err in denying qualified immunity to Ruoff on the
Vaughns’ due process claims. We affirm.



A true copy.

  ATTEST:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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