                         In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 05-3587
JAMES BOYD,
                                        Plaintiff-Appellee,
                            v.

MICKEY OWEN and LESLIE FOOTT,
                                  Defendants-Appellants.
                       ____________
          Appeal from the United States District Court
               for the Southern District of Illinois.
    No. 04-cv-00025-GPM—G. Patrick Murphy, Chief Judge.
                       ____________
 ARGUED SEPTEMBER 14, 2006—DECIDED MARCH 22, 2007
                   ____________


  Before CUDAHY, MANION, and ROVNER, Circuit Judges.
  ROVNER, Circuit Judge. James Boyd filed an action
in the district court alleging that the Department of
Children and Family Services (DCFS) child welfare inves-
tigator Leslie Foott and her supervisor Mickey Owen
violated his rights to due process in their investigation of
a claim of child abuse and their finding that the claim
against him for physical abuse of a child was “indicated.”
Foott and Owen filed a motion for summary judgment,
arguing that they were entitled to qualified immunity
on the claim. The district court denied that motion, and
they appeal that denial to this court.
2                                              No. 05-3587

   We generally lack jurisdiction to review denials of
summary judgment, but under the collateral order doc-
trine, a denial of summary judgment on the issue of
qualified immunity is immediately appealable to the
extent that it presents questions of law rather than fact.
Via v. LaGrand, 469 F.3d 618, 622 (7th Cir. 2006). There-
fore, Boyd may not appeal the district court’s denial of
summary judgment on qualified immunity insofar as that
order determines whether the record sets forth a genuine
issue of material fact. Id.; Johnson v. Jones, 515 U.S. 304,
313 (1995). Such a denial is appealable, however, to
resolve disputes concerning an abstract issue of law, such
as whether the federal right allegedly infringed was
clearly established. Via, 469 F.3d at 623; Johnson, 515
U.S. at 318; Behrens v. Pelletier, 516 U.S. 299, 313 (1996).
We therefore do not review whether the district correctly
determined that genuine issues of fact existed. Instead,
accepting the district court’s determinations as to the
factual issues, and taking the facts as characterized by
the district court in the light most favorable to the plain-
tiff, we determine whether the defendants were none-
theless entitled to qualified immunity as a matter of law.
Via, 469 F.3d at 623.
  On December 30, 2002, DCFS received a hotline report
that James Boyd, a police officer with the City of Washing-
ton Park, had physically abused the five-year-old daughter
of Angela Hampt, a woman with whom he was acquainted.
Mary Free, who worked for a crisis center, had received a
call from Danny Knight, which alleged that Boyd had
caused bruises to the buttocks of Sarah, the daughter of
Angela Hampt, and that Boyd also had held a knife to
Hampt’s throat and that Hampt was afraid of Boyd. Free
then conveyed those allegations to DCFS. Knight was a
friend of Hampt who lived nearby and had been one of
Sarah’s babysitters.
No. 05-3587                                               3

  Foott was a DCFS child welfare investigator who
investigated the allegation, and Owen supervised and
participated in the investigation. Upon receiving such
an allegation of abuse, DCFS investigators conduct an
initial investigation to determine whether credible evi-
dence of child neglect or abuse exists. Credible evidence
is established where the available facts, viewed in light
of the surrounding circumstances, would cause a reason-
able person to believe that a child was abused or neglected.
Dupuy v. Samuels, 397 F.3d 493, 497 (7th Cir. 2005). If
credible evidence of such abuse is found to support the
allegation, DCFS designates the report as “indicated.” Id.
  On January 2, 2003, in the early afternoon, Owen and
Foott proceeded to Hampt’s apartment to investigate.
When there was no response at the apartment, they
went to Knight’s house down the street and talked with
him. They then called the Granite City police who accom-
panied them to Hampt’s apartment. At this time, Hampt
answered the door. Hampt allowed Owen and Foott to
examine Sarah and they observed the bruises. Hampt
asked Sarah how she got the bruises, and Sarah responded
“James.” Hampt denied that (James) Boyd caused it, and
suggested a number of other names of possible perpetra-
tors. At that time, Owen decided to take Sarah into
protective custody. On the ride to the field office, Foott
asked Sarah in the car who caused the bruises, and she
again identified Boyd. During that car ride, Foott and
Owen decided that they would “indicate” Boyd for the
bruising of Sarah’s buttocks. Foott contacted Free again,
and Free stated that Boyd was potentially dangerous,
violent and psychotic. Later on January 2nd, Foott also
interviewed another of Sarah’s babysitters, but although
the report of that conversation mentions bruising ob-
served on Sarah, it does not identify who caused it. There
is some dispute as to when Boyd was contacted, but
we assume for this appeal that Foott did not speak with
4                                               No. 05-3587

Boyd until February 2003, after he had been indicated
for abuse.
  In August 2003, Boyd was hired by the Maryville Police
Department in a part-time position, with the possibility
of being considered for a full-time position in the future.
As part of the hiring process, he agreed to a background
check. The Maryville Chief of Police later called Boyd into
his office and asked him who Angela Hampt was. The
Chief indicated that he had learned that Boyd had
been indicated for physical abuse, and had been investi-
gated for allegations of sexual abuse (which were subse-
quently determined to be unfounded.) The Chief further
stated that he did not want an officer with a pending or
indicated report working for his department. Given the
choice of resigning or being terminated, Boyd chose the
former. Boyd subsequently filed this lawsuit alleging
that the violation of his due process rights by the defen-
dants resulted in the indicated finding, and the loss of his
ability to pursue his chosen occupation of law enforcement.
   Owen and Foott sought summary judgment on the
ground that they were protected from suit by the doctrine
of qualified immunity. Under that doctrine, they are
shielded from suit unless Boyd can demonstrate (1) the
violation of a constitutional right that is (2) clearly estab-
lished at the time of the alleged violation, so that a
reasonable public official would have known that his or
her conduct was unlawful. Green v. Butler, 420 F.3d 689,
700 (7th Cir. 2005); Sonnleitner v. York, 304 F.3d 704, 716
(7th Cir. 2002). In the district court, Boyd argued that they
violated his constitutional right to due process of law by
issuing an indicated finding under the credible evidence
standard, which did not include an adequate investiga-
tion or consideration of mitigating evidence. Boyd argued
that the constitutional violation was clearly established
by this court’s decision in Dupuy v. Samuels, 397 F.3d 493
(7th Cir. 2005).
No. 05-3587                                                5

  The district court appears to have conflated the two
prongs of the qualified immunity test. The court held that
Boyd possessed a protected liberty interest in his employ-
ment as a police officer. The court then recognized that
our decision in Dupuy could not clearly establish any due
process violation because it was issued after the events
at issue in the case. The court nevertheless held that
Foott and Owen violated Boyd’s clearly established
constitutional right to due process because “DCFS’ own
rules and regulations imposed a duty to identify other
possible explanations for the abuse,” and Owen and Foott
failed to do so. Dist. Ct. Order at 5.
  The district court properly held that our Dupuy deci-
sion could not demonstrate a clearly established right
because it did not exist when these events occurred, but its
alternative reasoning is erroneous. The Supreme Court
has made clear the requirement of due process is not
defined by state rules and regulations, but is an independ-
ent determination. Cleveland Bd. Of Educ. v. Loudermill,
470 U.S. 532, 541 (1985); see also Lyon v. Dept. of Children
& Family Services, 807 N.E.2d 423, 434 (Ill. 2004). Accord-
ingly, the district court erred in determining that the
failure to comply with DCFS regulations demonstrated
a violation of a clearly established constitutional right.
  As we will see, Boyd provides nothing further to demon-
strate that the right was clearly established. We cannot
jump to that issue, however, because the Supreme Court
has made clear that we must first consider whether
there was a violation of a constitutional right before we
can consider whether that right was clearly established at
the time of the violation. Saucier v. Katz, 533 U.S. 194, 201
(2001). Or, more precisely in the context of this summary
judgment denial, we must first determine whether, in
light of the facts as set forth by the district court, Boyd
has alleged sufficient facts for a reasonable jury to find
6                                               No. 05-3587

that the failure of the defendants to consider exculpatory
evidence violated his right to due process.
   Boyd argues that he possessed a liberty interest in his
employment as a police officer, and that the indicated
finding deprived him of that interest without due process.
Owen and Foott argue on appeal that Boyd does not in
fact possess a liberty interest that was implicated by the
indicated finding, and therefore that the Due Process
Clause does not apply. “ ‘It is well-settled that an individ-
ual has no cognizable liberty interest in his reputation.’ ”
Dupuy, 397 F.3d at 503, quoting Doyle v. Camelot Care
Ctrs., Inc., 305 F.3d 603, 617 (7th Cir. 2002). However,
“ ‘when a state actor casts doubt on an individual’s “good
name, reputation, honor or integrity” in such a manner
that it becomes “virtually impossible for the [individual]
to find new employment in his chosen field,” the govern-
ment has infringed upon that individual’s liberty inter-
est to pursue the occupation of his choice.’ ” Id. In Dupuy,
we recognized that an indicated finding effectively bars
child care workers from future employment in the child
care industry, thus implicating a liberty interest. Id. at
503. Owen and Foott argue on appeal that no similar
situation is presented here, because there is no state
statute requiring potential law enforcement employers to
check the child abuse registry, as there is with child care
employers. Moreover, Owen and Foott assert that there
was no disclosure of the indicated finding that resulted
in the loss of employment. The facts underlying these
arguments are murky and undeveloped at best, perhaps
because it appears that they were never raised to the
district court. In the district court, Owen and Foott argued
in a cursory sentence or two that there was no property
interest in employment that was implicated by the indi-
cated finding, and argued in a later section that a verbal
comment made about Boyd did not implicate any liberty
interest. They did not, however, argue that the indicated
No. 05-3587                                                 7

finding did not implicate any liberty interest. Even when
that issue was developed extensively in Boyd’s brief, the
defendants failed to file any response to it. As such, we
need not consider it here, and will assume for purposes
of this case only, that a liberty interest is implicated.
Skywalker Communications of Indiana, Inc. v. Skywalker
Communications, Inc., 333 F.3d 829, 831 (7th Cir. 2003);
Pond v. Michelin North America, Inc., 183 F.3d 592, 597
(7th Cir. 1999) (“Arguments not raised in the district court
are waived on appeal, . . . as are arguments raised in a
conclusory or underdeveloped manner . . . .” [citations
omitted]).
  The next question, then, is whether the procedures used
in investigating the charge and issuing the indicated
finding were constitutionally sufficient. Due process is
a flexible concept, and the procedures that are constitu-
tionally required are dependent upon the particular
situation, and are determined through application of the
Mathews test. Mathews v. Eldridge, 424 U.S. 319, 335
(1976); Sonnleitner, 304 F.3d at 712-13. The Mathews
test requires that we balance:
    [f]irst, the private interest that will be affected by the
    official action; second, the risk of an erroneous depri-
    vation of such interest through the procedures used
    and the probable value, if any, of additional or substi-
    tute procedural safeguards; and finally, the Govern-
    ment’s interest, including the function involved and
    the fiscal and administrative burdens that the addi-
    tional or substitute procedural requirement would
    entail.
Mathews, id.
   We note initially that Boyd misapplies this test. After
first noting that the private interest in employment is
a substantial one, Boyd turns to the second prong. Rather
than considering the procedures actually followed by the
8                                              No. 05-3587

investigators here, as the Mathews test instructs, Boyd
focuses exclusively on the DCFS procedures that the
investigators should have followed. Because the procedures
set forth by the DCFS regulations would have satisfied
Boyd’s due process concerns, Boyd concludes that there
is no risk of erroneous deprivation of his interest under
the procedures set forth by Illinois regulations. That
misconstrues the test. The issue is whether the proce-
dures actually followed presented an unreasonable risk
of an erroneous deprivation of the private interest, in
light of the government’s interest and the probable value
of additional safeguards. The focus is not on whether
the defendants would have complied with due process
had they adhered more faithfully to the state regulations,
but whether their actual conduct in this case was constit-
utionally deficient.
  We do not consider this issue on a blank slate, as this
court has considered the Mathews factors in the context
of the DCFS procedures for indicating abuse. Specifically,
this court in Dupuy discussed at length the credible
evidence standard, under which such an indicated find-
ing is made. Dupuy, 397 F.3d 493. As we noted in dis-
cussing the district court’s decision in Dupuy, the credible
evidence standard must be met in order for DCFS to
determine that a report of alleged abuse is “indicated.”
That credible evidence standard is established where the
available facts, viewed in light of the surrounding circum-
stances, would cause a reasonable person to believe that
a child was abused or neglected. Dupuy, 397 F.3d at 497.
As interpreted by DCFS employees, however, the credible
evidence standard resulted in consideration only of
inculpatory evidence. Id. at 504. “Any” credible evidence
was sufficient to cause them to indicate a finding, without
any consideration of exculpatory evidence. Id. We agreed
with the district court in Dupuy that due process re-
quired that equal consideration be given to both
No. 05-3587                                              9

inculpatory and exculpatory evidence in determining
whether credible evidence of abuse or neglect existed. Id.
at 504-06.
  That is the essence of the complaint in this case as
well. Boyd argues that the investigation was poorly
developed and that exculpatory evidence either was not
obtained or was ignored. That deficiency underlies all of
his complaints in this case. In Dupuy, we were presented
with a scenario in which an indicated finding would
result in the immediate termination of employment, be-
cause the employee was in the child care profession. Id. at
497, 499, 503. Accordingly, the private interest at stake
was even more substantial than here, because indicated
findings are not automatically transmitted to law enforce-
ment employers as they are to child care employers. We
agreed with the district court that in that context, the
investigators determining whether credible evidence
existed to indicate abuse must consider equally exculpa-
tory and inculpatory evidence in order to comport with due
process. Id. at 504-06. Although not dispositive of this
case, because the interest at stake was potentially greater
in Dupuy, this decision provides strong support for a
determination that the procedures used in this case
were constitutionally inadequate. The indicated finding
had an impact on Boyd’s liberty interest in his employ-
ment by arguably leading to his termination in this case,
as there was some evidence in the record that an indicated
finding would operate as a bar to all law enforcement
employment (and, as explained above, any argument to
the contrary was not presented to the district court). Yet,
the investigators initially decided to indicate Boyd for
abuse the night they examined Sarah, and based that
indication almost entirely on her statement that Boyd
was responsible for the bruising. That is not to say that
the investigators could not have constitutionally reached
that conclusion. The initial hotline report had identified
10                                               No. 05-3587

Boyd as the perpetrator and identified the locale of the
bruising, and the physical evidence corroborated that
claim. Sarah then identified Boyd, which again was
consistent with the hotline report and with the subsequent
interview of Knight. But, the investigators did not attempt
to develop or consider alternate explanations. They
failed to consider past records documenting abuse of
Sarah by others, or her psychiatric condition, and failed to
provide Boyd with an opportunity to respond prior to the
indicated finding. That focus solely on inculpatory evi-
dence, to the exclusion of exculpatory evidence, fails to
comport with the requirements of due process, and accord-
ingly Boyd has demonstrated that the actions presented a
constitutional violation.
  That does not end the inquiry, however, because quali-
fied immunity nevertheless protects the defendants
unless the constitutional right that was violated was
clearly established. A plaintiff can establish that a right
was clearly established by
     presenting case law that “has both articulated the
     right at issue and applied it to a factual circumstance
     similar to the one at hand.”. . . [T]hese decisions must
     demonstrate that, at the time the defendants acted,
     it was certain that their conduct violated the law. . . .
     “This is not to say that an official action is protected
     by qualified immunity unless the very action in ques-
     tion has previously been held unlawful; but it is to
     say that in the light of pre-existing law the unlawful-
     ness must be apparent.”
Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 620 (7th
Cir. 2002) [citations omitted]. In the absence of precedent,
a right may be clearly established where the contours of
the right are sufficiently clear that reasonable persons
would have understood their conduct to be unconstitu-
tional, or where the constitutional violation is so patently
No. 05-3587                                               11

obvious that widespread compliance with the law has
prevented the court from reviewing it. Nanda v. Moss, 412
F.3d 836, 844 (7th Cir. 2005). In other words, qualified
immunity protects the defendants unless the unconstitu-
tionality of their actions was apparent, either because
a case on point or closely analogous establishes the
unconstitutionality of their actions, or because the con-
tours of the right are so established as to make the
unconstitutionality obvious.
   The plaintiff has the burden of establishing that the
constitutional right was clearly established. Nanda, 412
F.3d at 844; Sonnleitner, 304 F.3d at 716-17. Boyd has
entirely abdicated that burden, failing in both the dis-
trict court and this court to identify any case clearly
establishing that such conduct was unconstitutional, or
that any line of cases would put the defendants on notice
of such unconstitutionality. In the district court, Boyd
presented only this court’s Dupuy case, which we have
already noted was decided after the conduct at issue here
and therefore could not have possibly apprised them of
the unconstitutionality at the time. Nor would the district
court decision in Dupuy have been of any help, as Boyd
apparently recognizes because he does not rely on it, given
our court’s holding that district court decisions have no
weight as precedents and therefore cannot clearly estab-
lish a constitutional right. Anderson v. Romero, 72 F.3d
518, 525 (7th Cir. 1995).
  In this court, Boyd cites only to Jones v. Wilhelm, 425
F.3d 455 (7th Cir. 2005), which is irrelevant on many
levels. First, it was decided in 2005 and therefore could not
possibly have apprised the defendants of the unconstitu-
tionality of their actions in 2003. Moreover, it has noth-
ing to do with the actions at issue here, as it addressed
whether officers who mistakenly entered an apartment to
serve a search warrant intended for a different address
12                                              No. 05-3587

were protected by qualified immunity. Boyd makes no
attempt to explain how that Fourth Amendment challenge
to the execution of a warrant by officers could have
apprised the defendants that the failure to consider
exculpatory evidence in applying the credible evidence
standard would be unconstitutional. Boyd has failed to
provide any other case at all, even though this issue was
a central argument below and in this court. Perhaps that
is because Boyd cannot do so. Although some cases held
that the failure to consider exculpatory evidence in find-
ing credible evidence of abuse was unconstitutional
when coupled with a delay in providing a post-deprivation
adversarial hearing, there was no argument of such a
delay in this case. See, e.g., Doyle, 305 F.3d at 619 (process
of determining credible evidence on any plausible evi-
dence of abuse or neglect without weighing conflicting
evidence may be adequate in certain circumstances, but
violates due process where coupled with an unnecessary
and burdensome delay in obtaining a post-deprivation
hearing); Lyon, 807 N.E.2d at 435-36 (credible evidence
standard, which does not require fact finder to consider
contrary evidence, to indicate a report does not auto-
matically violate due process, but may violate due process
when the subject is not accorded a prompt appeal). We
need not speculate as to whether Boyd could have suc-
ceeded on this claim, however, for he presents neither
those cases or any other cases. He has failed to meet his
burden of demonstrating that the constitutional viola-
tion was clearly established, and the defendants are
entitled to qualified immunity. We REVERSE the order of
the district court and REMAND with directions to enter
summary judgment for the defendants on qualified im-
munity grounds.
No. 05-3587                                         13

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—3-22-07
