                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-1274
                                  ___________

Kenneth Harold Swipies,                *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the Northern
                                       * District of Iowa.
Frank Kofka,                           *
                                       *
            Appellant.                 *
                                  ___________

                         Submitted: October 17, 2003

                              Filed: November 3, 2003
                                   ___________

Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Woodbury County Deputy Sheriff Frank Kofka appeals the district court’s1
denial of his motion for summary judgment asserting qualified immunity in Kenneth
Swipies’s civil rights action. We affirm.

      In July 2000, Mr. Swipies was having a two-week court ordered visitation with
his twelve-year-old daughter, Kendra. Deputy Kofka drove past James Stark’s


      1
      The Honorable Donald E. O’Brien, United States District Judge for the
Northern District of Iowa.
residence and observed Kendra, Mr. Swipies’s wife Tina, and Mr. Stark sitting on the
front porch. Deputy Kofka became concerned for Kendra’s safety because he knew
that Mr. Stark was then charged with sexually abusing a fourteen-year-old female,
and he believed that Mrs. Swipies had serious mental and substance-abuse problems
which rendered her unable to provide adequate supervision. After discussing the
situation with the Woodbury County Attorney’s Office, Deputy Kofka returned to
Mr. Stark’s residence, but no one was there. Deputy Kofka then went to the home of
Mr. Swipies, who was present with his wife and daughter. The officer removed
Kendra and returned her to her mother’s custody.

       Mr. Swipies filed this 42 U.S.C. § 1983 lawsuit claiming constitutional and
statutory violations. Deputy Kofka moved for summary judgment on the basis of
qualified immunity, arguing that the emergency removal was necessary because
Kendra was in imminent danger of being abused. Determining that the emergency
removal was not objectively reasonable, the district court denied Deputy Kofka’s
motion.

       An officer is entitled to qualified immunity unless his conduct violated clearly
established statutory or constitutional rights of which a reasonable person would
have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). We review the
denial of a summary judgment motion claiming qualified immunity only to the extent
the denial turns on an issue of law. See Behrens v. Pelletier, 516 U.S. 299, 306
(1996); Wilson v. Lawrence County, 260 F.3d 946, 951 (8th Cir. 2001) (appeals court
has jurisdiction to review only whether plaintiff stated valid constitutional claim and
whether claim was clearly established at time of alleged violation); Gregoire v. Class,
236 F.3d 413, 416-17 (8th Cir. 2000) (de novo standard of review). The sequence of
our analysis is to ask first whether, taken in the light most favorable to the plaintiff,
the facts alleged show the officer’s conduct violated a constitutional right; and
second, whether, in the specific context of the case, the right was clearly established.
See Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (excessive-force case). The
dispositive inquiry in deciding “whether a right is clearly established is whether it

                                           -2-
would be clear to a reasonable officer that his conduct was unlawful in the situation
he confronted.” Id. at 202. We have previously noted that in section 1983 actions
involving interference with the right to familial integrity, “it is nearly impossible to
separate the constitutional violation analysis from the clearly established analysis.”
See Manzano v. South Dakota Dep’t of Soc. Servs., 60 F.3d 505, 511 (8th Cir. 1995);
see also Saucier, 533 U.S. at 201 (in “determining whether a constitutional right was
violated on the premises alleged, a court might find it necessary to set forth principles
which will become the basis for a holding that a right is clearly established”).

       Parents have a liberty interest in the care, custody, and management of their
children. See Manzano, 60 F.3d at 509. This interest can be limited by the state’s
compelling interest in protecting a child: “the parental liberty interest in keeping the
family unit intact is not a clearly established right in the context of reasonable
suspicion that parents may be abusing children.” See Myers v. Morris, 810 F.2d
1437, 1462 (8th Cir.), cert. denied, 484 U.S. 828 (1987). “[W]hen a state official
pursuing a child abuse investigation takes an action which would otherwise
unconstitutionally disrupt familial integrity, he or she is entitled to qualified
immunity, if such action is properly founded upon a reasonable suspicion of child
abuse.” Manzano, 60 F.3d at 510-11. Viewing the facts here in the light most
favorable to Mr. Swipies, and noting the inconsistencies among Deputy Kofka’s
statements in the summary judgment record, we conclude that Mr. Swipies retained
the right not to be separated from his child in the face of Deputy Kofka’s suspicion
that Mr. Stark might abuse Kendra. We further conclude that it would have been
clear to a reasonable officer that removing Kendra in those circumstances would
violate Mr. Swipies’s parental liberty interest. Thus, the district court properly denied
summary judgment. See Gregoire, 236 F.3d at 416-17 (denial of summary judgment
should be upheld if “there is a genuine dispute concerning predicate facts material to
the qualified immunity issue”).

      Accordingly, we affirm. We also deny Mr. Swipies’s pending motion to strike
and for sanctions.

                                           -3-
WOLLMAN, Circuit Judge, dissenting.
                  ______________________________




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