           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2     Cherrington, et al. v. Skeeter, et al.      No. 01-3637
        ELECTRONIC CITATION: 2003 FED App. 0342P (6th Cir.)
                    File Name: 03a0342p.06                                                     _________________
                                                                                                    COUNSEL
UNITED STATES COURT OF APPEALS
                                                                           ARGUED: Jeffery M. Blosser, KEVIN O’BRIEN &
                  FOR THE SIXTH CIRCUIT                                    ASSOCIATES, Columbus, Ohio, for Appellants. Brian M.
                    _________________                                      Zets, SCHOTTENSTEIN, ZOX & DUNN, Columbus, Ohio,
                                                                           for Appellees. ON BRIEF: Jeffery M. Blosser, KEVIN
 MARY CHERRINGTON and               X                                      O’BRIEN & ASSOCIATES, Columbus, Ohio, for
 DAIJA KING, a minor, by and         -                                     Appellants. Brian M. Zets, Philip K. Hartmann, Stephen
                                     -                                     Jesse Smith, SCHOTTENSTEIN, ZOX & DUNN, Columbus,
 through her mother and next                                               Ohio, for Appellees.
                                     -  No. 01-3637
 friend, Mary Cherrington,           -
           Plaintiffs-Appellants, >                                          ROSEN, D. J., delivered the opinion of the court, in which
                                     ,                                     GILMAN, J., joined. MOORE, J., concurred in the result
                                     -                                     only.
             v.                      -
                                     -                                                         _________________
 ANDRE SKEETER, JOHN                 -
 KINNEY, and CITY OF                 -                                                             OPINION
                                     -                                                         _________________
 CIRCLEVILLE, OHIO ,
                                     -
          Defendants-Appellees. -                                            ROSEN, District Judge. Plaintiffs/Appellants Mary
                                    N                                      Cherrington and her daughter, Daija King, appeal the District
        Appeal from the United States District Court                       Court’s decision to grant summary judgment in favor of
       for the Southern District of Ohio at Columbus.                      Defendants/Appellees Andre Skeeter, Jon Kinney, and the
      No. 99-00462—George C. Smith, District Judge.                        City of Circleville, Ohio in this action brought under 42
                                                                           U.S.C. § 1983. For the reasons stated below, we affirm in
                     Argued: August 7, 2002                                part and reverse in part the rulings of the District Court, and
                                                                           remand this case for further proceedings.
            Decided and Filed: September 24, 2003                              I. FACTUAL AND PROCEDURAL BACKGROUND
    Before: MOORE and GILM AN, Circuit Judges;                                In the summer of 1996, the Defendant/Appellee City of
              ROSEN, District Judge.*                                      Circleville, Ohio commenced an undercover law enforcement
                                                                           investigation in response to concerns of increased illegal drug
                                                                           trafficking activities within the City. Because of insufficient
                                                                           resources and a concern that the City’s traditional police force
    *                                                                      could not conduct an anonymous undercover operation amidst
     The Honorable Gerald E. Rosen, United States District Judge for the
Eastern District of Michigan, sitting by designation.                      Circleville’s small population, the City sought outside

                                   1
No. 01-3637            Cherrington, et al. v. Skeeter, et al.          3    4       Cherrington, et al. v. Skeeter, et al.         No. 01-3637

assistance in its investigation.               Specifically,                   Accordingly, on the evening of Friday, August 29, 1997,
Defendant/Appellee Police Chief Jon Kinney contacted a                      Skeeter arranged for a mutual acquaintance, Leslie Jones, to
private security firm, which in turn referred Chief Kinney to               go to Cherrington’s residence and ask her to purchase $100
Defendant/Appellee Andre Skeeter, a private investigator.                   worth of cocaine. Cherrington agreed, left her home to make
Based on this referral, Chief Kinney met with Skeeter,                      the purchase, and returned about a half an hour later. A short
reviewed his credentials, conducted a background check, and                 time later, Cherrington’s friend, Scott Smallwood, arrived at
then decided to hire him.                                                   her house and began smoking crack in the kitchen. Skeeter
                                                                            then arrived at Cherrington’s home, accompanied by another
  Skeeter was sworn in as a police officer on September 3,                  law enforcement agent. Upon witnessing Smallwood
1996, and began his undercover investigation under the direct               smoking crack and learning that Cherrington had made the
supervision of Investigator Kevin Clark. Skeeter spoke with                 requested cocaine purchase, Skeeter placed both Cherrington
Clark on a regular basis, and submitted periodic reports on the             and Smallwood under arrest. This arrest apparently occurred
progress of his investigation. Skeeter also met from time to                at around 2:30 a.m. on Saturday, August 30, 1997.
time with Chief Kinney. Throughout his investigation,
Skeeter was not told to target any particular individuals, but                Cherrington was told to pack a bag, and Skeeter then drove
rather was directed to go out into the Circleville community,               her and her two-year-old daughter, Plaintiff/Appellant Daija
befriend people, and determine who to target for further                    King, to a Travel Lodge motel at the outskirts of Circleville.
investigation. Through these efforts, Skeeter came into                     At around 3:15 a.m., Cherrington signed a form indicating
contact with Plaintiff/Appellant Mary Cherrington. The two                  that she had been advised of her Miranda rights by Inspector
became friends, periodically smoking marijuana or snorting                  Clark, and that she had agreed to waive these rights and
cocaine together.1                                                          voluntarily speak to the police. Cherrington remained at the
                                                                            motel with her daughter for the next 24 hours, during which
   After nearly a year of this investigation, Chief Kinney,                 time she cooperated with the authorities by arranging a drug
Investigator Clark, Skeeter, and the county prosecutor decided              purchase. Cherrington testified at her deposition that she
to conclude the matter by arresting selected individuals and                requested permission to contact someone to pick up Daija, but
seeking their cooperation in additional drug purchases. Chief               that this request was refused, leading her to surreptitiously
Kinney further determined, in consultation with the county                  call a friend to come and get her daughter. Before this friend
prosecutor, that these individuals should be taken to a motel               could arrive, however, Cherrington and Daija were taken from
rather than the Circleville police department or the county                 the motel and placed in a police car.
jail, in order to avoid tipping off potential targets of this “buy-
bust” operation. Skeeter chose Cherrington as one of the                      On Sunday, August 31, 1997 at 3:37 a.m., about 24 hours
individuals to arrest, believing that she might be willing to               after her arrest, Cherrington was taken to the Circleville
cooperate with the authorities.                                             police department for processing and placed in a cell. Her
                                                                            daughter Daija was released to a friend. Over 48 hours later,
                                                                            at around 8:30 a.m. on Tuesday, September 2, 1997,2


    1                                                                           2
      Skeeter testified at his deposition that he did not actually ingest        The local courts were closed on Monday, September 1, 1997 for the
these drugs, but merely pretended to do so.                                 Labor D ay holid ay.
No. 01-3637             Cherrington, et al. v. Skeeter, et al.              5    6    Cherrington, et al. v. Skeeter, et al.      No. 01-3637

Cherrington was arraigned on drug trafficking charges. She                       confer qualified immunity upon the individual Defendants,
subsequently pled guilty to two counts of trafficking in                         we review this question of law de novo. See Gardenhire v.
cocaine.                                                                         Schubert, 205 F.3d 303, 310 (6th Cir. 2000).
  Based on these incidents, Plaintiffs/Appellants Mary                           B. The Individual Defendants Are Protected by
Cherrington and Daija King brought this § 1983 suit on                              Qualified Immunity Against the § 1983 Claims
May 13, 1999, alleging that Defendants/Appellees Skeeter,                           Asserted by Daija King.
Kinney, and the City of Circleville violated their rights under
the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments                        Among the grounds advanced in Defendants’ summary
to the U.S. Constitution.3 By Opinion and Order dated                            judgment motion in the court below, the individual
May 11, 2001, the District Court granted Defendants’ motion                      Defendants, Andre Skeeter and Chief Kinney, argued that
for summary judgment, denied Plaintiffs’ motion for                              they were shielded from liability under 42 U.S.C. § 1983 by
summary judgment, and ordered that Plaintiffs’ claims be                         the doctrine of qualified immunity. In addressing the § 1983
dismissed. Through their present appeal, Plaintiffs challenge                    claims asserted by Plaintiff Daija King, the District Court did
only certain aspects of the lower court’s decision: (i) the                      not explicitly conduct a qualified immunity analysis, but
dismissal of Daija King’s claims; (ii) the grant of qualified                    instead found more generally that the individual Defendants
immunity to the individual Defendants on Mary                                    did not act “objectively unreasonabl[y] under the
Cherrington’s Fourth Amendment claim of an unlawfully                            circumstances” in electing to keep mother and daughter
prolonged detention without arraignment; and (iii) the                           together during the arrest and initial detention of Plaintiff
determination that Plaintiffs failed to identify a basis for                     Mary Cherrington. (District Court Op. at 6, J.A. at 715.)
municipal liability against the Defendant City of Circleville.                   Upon assessing Defendants’ conduct under the standards of
We affirm the first of these rulings, but reverse and remand                     qualified immunity, we reach the same conclusion.
on the remaining two points.
                                                                                    The Supreme Court has instructed that a qualified
                            II. ANALYSIS                                         immunity inquiry generally entails two discrete analytical
                                                                                 steps. As a threshold matter, we must ask whether the record,
A. The Standards Governing This Appeal                                           viewed most favorably to the plaintiff, establishes that “the
                                                                                 officer’s conduct violated a constitutional right.” Saucier v.
  This case is on appeal from the District Court’s grant of                      Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001); see
summary judgment to Defendants. Accordingly, we review                           also Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). “If
this District Court ruling de novo. See Holloway v. Brush,                       no constitutional right would have been violated were the
220 F.3d 767, 772 (6th Cir. 2000). Likewise, to the extent                       allegations established, there is no necessity for further
that this appeal challenges the District Court’s decision to                     inquiries concerning qualified immunity.” Saucier, 533 U.S.
                                                                                 at 201, 121 S. Ct. at 2156. “On the other hand, if a violation
                                                                                 could be made out on a favorable view of the parties’
    3                                                                            submissions, the next, sequential step is to ask whether the
      It is not clear whether Plaintiffs also meant to assert state-law claims
in their complaint. In any event, upon determining that Plaintiffs’ federal      right was clearly established.” 533 U.S. at 201, 121 S. Ct. at
claims were su bjec t to dismissal, the District Court declined to exercise      2156; see also Burchett, 310 F.3d at 942.
its supp lemental jurisd iction over any remaining state-law claims, and
Plaintiffs do no t challenge this asp ect of the lower court’s ruling.
No. 01-3637         Cherrington, et al. v. Skeeter, et al.      7   8      Cherrington, et al. v. Skeeter, et al.      No. 01-3637

   To this point, the parties have made little effort to identify       that it renders him unable to care for himself, and at the
the constitutional rights of Daija King that might have been            same time fails to provide for his basic human needs —
implicated by Defendants’ conduct. Indeed, the record on                e.g., food, clothing, shelter, medical care, and reasonable
appeal fails to indicate that the parties even addressed Daija          safety — it transgresses the substantive limits on state
King’s claims in their submissions to the District Court.               action set by the Eighth Amendment and the Due Process
Plaintiffs’ appellate brief offers only slightly more guidance,         Clause. The affirmative duty to protect arises not from
summarily asserting that Daija was “falsely arrested and                the State’s knowledge of the individual’s predicament or
illegally detained.” (Plaintiffs/Appellants Br. at 12.) This            from its expression of intent to help him, but from the
suggests that Daija’s § 1983 claims rest upon the Fourth                limitation which it has imposed on his freedom to act on
Amendment prohibition against unreasonable seizures. And,               his own behalf. In the substantive due process analysis,
to be sure, the Supreme Court has recognized that “whenever             it is the State’s affirmative act of restraining the
a police officer accosts an individual and restrains his                individual’s freedom to act on his own behalf — through
freedom to walk away, he has ‘seized’ that person.” Terry v.            incarceration, institutionalization, or other similar
Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877 (1968); see also             restraint of personal liberty — which is the “deprivation
Burchett, 310 F.3d at 942. Under this definition, Daija King            of liberty” triggering the protections of the Due Process
was “seized” when Defendants insisted that she remain with              Clause . . . .
her mother as the latter was arrested and detained in a motel
room. Daija was not free to remain at home or to walk away          DeShaney, 489 U.S. at 199-200, 109 S. Ct. at 1005-06
from the motel — to the contrary, the record suggests that          (citations and footnote omitted). These principles seemingly
Defendants actively opposed any effort to release Daija from        are implicated here, where Defendants restrained Daija’s
their custody into the care of a third party.                       freedom to act on her own behalf or to secure the assistance
                                                                    of a substitute caregiver in providing for her basic needs.
  Yet, other cases tend to place a different constitutional
gloss upon Daija King’s claims in this case. In Davis v.              In the end, however, the outcome is the same whether we
Brady, 143 F.3d 1021, 1024-26 (6th Cir. 1998), for example,         analyze Daija King’s allegations under Fourth Amendment or
we held that a Fourteenth Amendment substantive due                 substantive due process standards. Under the Fourth
process violation can occur when the State takes an individual      Amendment, Daija’s seizure must not have been
into its custody and then fails to adequately ensure her safety     “unreasonable,” with the proper measure of unreasonableness
and well-being. In so ruling, we relied in part on the decision     depending upon the type of seizure. Thus, if Daija was
in DeShaney v. Winnebago County Dep’t of Social Services,           arrested, as Plaintiffs argue, Defendants’ action must have
489 U.S. 189, 109 S. Ct. 998 (1989), in which the Supreme           been supported by probable cause. See Dunaway v. New
Court explained:                                                    York, 442 U.S. 200, 207-08, 99 S. Ct. 2248, 2253-54 (1979).
                                                                    No one seriously contends that Defendants had probable
  [W]hen the State takes a person into custody and holds            cause to arrest Daija.
  him there against his will, the Constitution imposes upon
  it a corresponding duty to assume some responsibility for           Yet, not all seizures are tantamount to arrests sustainable
  his safety and well-being. The rationale for this principle       only upon probable cause. See Michigan v. Summers, 452
  is simple enough: when the State by the affirmative               U.S. 692, 696-97, 101 S. Ct. 2587, 2590-91 (1981);
  exercise of its power so restrains an individual’s liberty        Dunaway, 442 U.S. at 208-10, 99 S. Ct. at 2254-55. In cases
No. 01-3637         Cherrington, et al. v. Skeeter, et al.     9    10   Cherrington, et al. v. Skeeter, et al.      No. 01-3637

of suspected child abuse or neglect, for example, the courts        2593 (footnote omitted); see also Terry, 392 U.S. at 19, 88
have held that a caseworker may remove a child from her             S. Ct. at 1878-79 (describing the “central inquiry under the
home upon a reasonable belief that the child is in imminent         Fourth Amendment” as “the reasonableness in all the
danger of harm. See, e.g., Doe v. Texas Dep’t of Protective &       circumstances of the particular governmental invasion of a
Regulatory Services, 299 F.3d 395, 407 (5th Cir. 2002);             citizen’s personal security”).
Brokaw v. Mercer County, 235 F.3d 1000, 1010-11 (7th Cir.
2000). As another example, the police have the limited                At least one other court has employed this same
authority to briefly detain those on the scene, even wholly         “reasonableness” inquiry under facts similar to those
innocent bystanders, as they execute a search or arrest             presented here. In Matheny v. Boatright, 970 F. Supp. 1039,
warrant. See Summers, 452 U.S. at 705, 101 S. Ct. at 2595;          1041 (S.D. Ga. 1997), the defendant police officers brought
Burchett, 310 F.3d at 942-43; see also United States v. Enslin,     the plaintiff children along as their mother, Angela Matheny,
327 F.3d 788, 797 n.32 (9th Cir. 2003) (finding that Summers        was arrested on drug charges, taken to a detention facility,
applies in the context of arrest as well as search warrants).       interrogated, and booked. Matheny alleged that she had
                                                                    sought permission to contact her children’s aunt and
   Unfortunately, the present case does not fit neatly within       grandmother to come and take care of the children, but that
any of these recognized analytical frameworks. Plainly, Daija       she was not allowed to make such arrangements until nearly
King was not held on suspicion of any criminal activity. Nor,       an hour after she arrived at the detention facility. The Court
in contrast to the child abuse and neglect cases, did               analyzed these circumstances under Fourth Amendment
Defendants seize Daija out of a belief that she faced an            standards, as well as on other grounds, and found that the
imminent danger of harm in her home. Neither can it be said         defendant officers had acted reasonably:
that Daija was detained in order to “facilitate[] the orderly
completion of” Mary Cherrington’s arrest and “minimize[]                Matheny does not contend that Defendants had any
the risk of harm to officers and others” as they carried out this     physical contact with the children. Nor does she claim
arrest. Burchett, 310 F.3d at 943. Rather, Daija King was             that the children suffered any physical injury inflicted by
taken along with her mother because the arresting officers            Defendants.      Matheny also does not claim that
deemed it inappropriate to leave the two-year-old child alone         Defendants directed any harsh or abusive language at the
at home, and because they either failed to identify or declined       children. In light of the circumstances surrounding
to pursue other options for ensuring Daija’s safety and well-         Matheny’s arrest, namely that her three minor children
being following her mother’s arrest.                                  were present without any other adult present to care for
                                                                      them, Defendants’ actions were reasonable. The facts
   Lacking any direct guidance on the legal inquiry that might        suggest that rather than putting the children at risk,
govern such a situation, the District Court assessed                  Defendants undertook to care for the children until
Defendants’ conduct under a general standard of                       suitable arrangements could be made for their care.
reasonableness. (See District Court Op. at 5-6, J.A. at 715-
16.) This approach comports with the Supreme Court’s
general instruction that, in cases involving seizures short of a
traditional arrest, the courts should be guided by “the ultimate
standard of reasonableness embodied in the Fourth
Amendment.” Summers, 452 U.S. at 699-700, 101 S. Ct. at
No. 01-3637              Cherrington, et al. v. Skeeter, et al.            11     12       Cherrington, et al. v. Skeeter, et al.               No. 01-3637

Matheny, 970 F. Supp. at 1046.4                                                   preserving the secrecy of their ongoing undercover operation.
                                                                                  On the other hand, Mary Cherrington testified that the
   We agree with the District Courts here and in Matheny that                     Defendant officers used Daija as a tool to secure her
Fourth Amendment claims of the sort asserted by Daija King                        cooperation. This testimony, if believed and found to rest
in this case are most appropriately measured against a general                    upon more than Cherrington’s own speculation,5 would tend
standard of reasonableness. Upon performing this inquiry,                         to cast doubt on the reasonableness of Daija’s detention.
moreover, we are inclined to agree with the District Court that
the conduct of the individual Defendants was reasonable,
although we are somewhat hesitant to reach this conclusion as
                                                                                       5
a matter of law. On one hand, Daija was just two years old at                           Although P laintiffs contend in the ir brief on appeal that Defendant
the time, and the officers obviously had to make some sort of                     Skeeter confirmed this questionable m otive at his deposition, this is not
arrangement for her care as they placed her mother under                          an accurate characterization of the record. Skeeter testified that
                                                                                  Cherrington was “allo wed . . . to keep Daija” immediately following her
arrest; the child plainly could not have been left alone and                      arrest while she decided whether to cooperate with the authorities, and
unsupervised at home. The options, then, were either to keep                      that “[a]ll I was doing” at that point was “transporting [Cherrington and
Daija with her mother or to arrange for Daija to be placed                        Daija] to the people who were making the decisions” regarding
with a relative, family friend, or a state social service agency                  Cherrington’s possible cooperation. (Skeeter Dep. at 90, J.A. at 154.) He
— and, given the late hour of Mary Cherrington’s arrest, the                      further testified that, prior to the night of Cherrington’s arrest, he had
                                                                                  spoken to Chief Kinney regarding what to do with Daija, and that he had
latter might well have proved difficult. So long as Mary                          expressed a concern during that conversation that it might “jeopardize[]
Cherrington remained in a hotel room rather than a detention                      the whole investigation, not just getting the cover blown b ut officer sa fety
facility, and generally remained available to care for Daija’s                    as well,” if Daija were taken to a social services agency or placed in the
needs, we cannot say that one course of action was manifestly                     care of a friend or relative. (Id. at 90-91, J.A. at 154-55.) Skeeter
preferable to the other. In addition, Defendants note that their                  reasoned that such an outside party “would have to know or want to know
                                                                                  what was going on,” and that “Circ leville is a close community” in which
chosen course served the law enforcement objective of                             news of the underco ver investigation would quickly spread. (Id. at 91,
                                                                                  J.A. at 1 55.)

    4
                                                                                       Indeed, even C herrington’s own testimony on this po int is less than
      To similar effect, the District Court cited the decision in Caplan v.       definitive. She testified that while she was still in her apartment
Roseman, 667 F. Supp. 549 (N.D. Ohio 1987), in which a divorced father            imme diately following her arrest, Skeeter threatened that she would “lose
complained that his and his son’s constitutional rights were violated when        my child . . . [and] lose my home” if she did not cooperate with the
the defendant police officers prevented him from taking his child on an           authorities. (Cherrington Dep. at 73, J.A. at 269.) Cherrington further
out-of-state vacation. T he office rs had been told that this out-of-state trip   stated that Skeeter repeated this threat after they arrived at the hotel. (Id.
would violate a court-ordered visitation schedule, and the legal d ocuments       at 94, J.A. at 29 0.) She then testified that she agreed to coop erate beca use
produced by the father failed to persuade them otherwise. In holding that         “[t]hey had my child, and I didn’t want to lose her.” (Id. at 106, J.A. at
the defendant officers were entitled to qualified im munity, the Court            302 .) Thus, while Cherrington might well have drawn a connection in her
reasoned that “police officers in domestic relations situations must make         own mind betwe en D aija’s presence at the hotel and her decision to
spontaneous decisions based on incomplete, and sometimes inaccurate,              coo perate with the authorities, nothing she was told expressly forged this
information,” and found that “[a]ll § 198 3 req uires in these matters is for     link, and the individual Defendants did not acknowledge this motive at
police officers to act reasonably and to do the best job possible under           their depositions. Rathe r, from all that appears in the record , and fro m all
difficult circumstances.” Caplan, 667 F. Supp. at 554. Caplan’s analysis,         that Cherrington states she was to ld at the time, Skeeter might have
however, does not rest upon grounds of Fourth Amendme nt                          employed the very same threats even if Daija had not been kept with her
reasonab leness, but rather upon the “objective reasonableness” standard          mother, but instead had b een p laced with an agency or taken to the home
incorporated within the qualified immunity doctrine.                              of a friend or relative.
No. 01-3637         Cherrington, et al. v. Skeeter, et al.   13    14   Cherrington, et al. v. Skeeter, et al.      No. 01-3637

   Yet, it ultimately is unnecessary for us to decide whether        We reach precisely the same conclusion upon evaluating
the individual Defendants did or did not heed the Fourth           Daija King’s claims under substantive due process standards.
Amendment command of reasonableness in their conduct               Here, we have somewhat more case law to guide us; several
toward Daija King, because they are entitled to qualified          cases, including at least one in this Circuit, have considered
immunity in any event. As noted, the second prong of the           the substantive due process implications of a police officer’s
qualified immunity inquiry turns upon whether the defendant        decision about what to do with children whose parent or
has violated “clearly established constitutional rights of which   custodian has been placed under arrest. See, e.g., Walton v.
a reasonable person would have known.” Burchett, 310 F. 3d         City of Southfield, 995 F.2d 1331, 1336-39 (6th Cir. 1993);
at 942 (internal quotations and citations omitted). We have        Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1354-
explained:                                                         55 (7th Cir. 1985); White v. Rochford, 592 F.2d 381, 383-86
                                                                   (7th Cir. 1979); Matheny, 970 F. Supp. at 1043-45. Upon
  For a right to be clearly established, [t]he contours of the     reviewing these cases, we conclude that the allegations and
  right must be sufficiently clear that a reasonable official      evidence in this case are insufficient to establish either a
  would understand that what he is doing violates that             substantive due process violation or a violation of a clearly
  right. Although it need not be the case that the very            established constitutional right.
  action in question has been previously held unlawful, . . .
  in the light of pre-existing law, the unlawfulness must be         In Walton, for example, plaintiff Barbara Walton was
  apparent.                                                        driving a car in which her fifteen-year-old daughter and two-
                                                                   year-old granddaughter were passengers. The defendant
Burchett, 310 F.3d at 942 (internal quotations and citations       police officers stopped and approached the car to investigate
omitted).                                                          why the two-year-old was not riding in a proper child-
                                                                   restraint seat. Upon determining that Walton was driving
  As is evident from our foregoing discussion, the pre-            with a suspended license, the officers placed her under arrest.
existing law is silent on the lawfulness of keeping a young        When she asked that the children be placed in protective
child with her mother while the latter is placed under arrest      custody, the officers responded that they could not do so, but
and held in custody at a location other than a traditional         suggested that the children could call someone to pick them
detention facility. If the Defendant officers had scoured the      up. The officers then waited while the children entered a
case law at the time (or even to this day), they could not have    nearby office building to make a phone call, but did not
located a decision indicating that Daija King’s Fourth             remain on the scene to confirm that they had secured a ride
Amendment rights might be violated if she were taken with          home. In fact, nearly six hours passed before someone finally
her mother to a hotel for about a 24-hour period while Mary        arrived to pick up the children.
Cherrington cooperated with the authorities by attempting to
arrange drug purchases. Rather, the most closely analogous           We held that the defendant officers were entitled to
case, Matheny, leads to the opposite conclusion. Under these       qualified immunity on the children’s substantive due process
circumstances, the individual Defendants are entitled to           claims. We began by noting that the Sixth Circuit had not yet
qualified immunity, because the law did not (and still does        addressed the issue of passenger abandonment by state or
not) “clearly proscribe[]” the actions they took. Mitchell v.      local law enforcement officials, but that other Circuits had
Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806, 2816 (1985).          done so, reaching somewhat different conclusions. In
                                                                   addition, while cases such as White, supra, had recognized a
No. 01-3637              Cherrington, et al. v. Skeeter, et al.            15     16   Cherrington, et al. v. Skeeter, et al.       No. 01-3637

due process protection against police abandonment of                              mother as she was placed under arrest, and being held in a
passengers upon arresting the driver of a vehicle, we found                       hotel room for a 24-hour period, surrounded by police
that White was distinguishable as involving abandonment “in                       officers, as her mother cooperated with the authorities by
a more dangerous situation.” Walton, 995 F.2d at 1338-39.6                        attempting a drug purchase — was not ideal. Yet, given the
Accordingly, despite “an exercise of very poor judgment on                        early-morning hour of Mary Cherrington’s arrest, it is not
the part of the defendant police officers,” we held that “the                     clear that there were any available and preferable alternatives
‘contours of the [due process] right,’ if there is such a right,                  to the course chosen by Defendants. Further, there is no
were not sufficiently clear so that a reasonable officer would                    evidence that Daija suffered any harm during this period of
have known that leaving the children in the parking lot                           detention; at worst, Mary Cherrington’s deposition testimony
violated that right.” Walton, 995 F.2d at 1333, 1339.                             indicates that she and her daughter were fed only once during
                                                                                  their 24-hour stay at the hotel. The most that can be said,
   Because Walton did not decide whether such a substantive                       perhaps, is that the Defendant officers might have been better
due process right exists, it did not reach the issue of the                       advised to attempt to arrange for Daija to be picked up by a
standard by which to judge alleged violations of such a right.                    relative or friend, and that they might have sacrificed a degree
We addressed this question in Davis, supra, however, holding                      of Daija’s comfort and emotional well-being in an effort to
that “where the plaintiff suffered injury as a result of being                    preserve the secrecy of their still-ongoing undercover
placed in the state’s custody, it has consistently and                            operation. This, in our view, is not tantamount to gross
uncontroversially been the rule that a constitutional claim                       negligence or a reckless disregard for Daija’s safety.
arises when the injury occurred as a result of the state’s
deliberate indifference to the risk of such an injury.” Davis,                       In any event, as with our Fourth Amendment analysis, we
143 F.3d at 1026; see also Bukowski v. City of Akron, 326                         conclude that the individual Defendants are entitled to
F.3d 702, 710 (6th Cir. 2003) (applying a deliberate                              qualified immunity on the “clearly established” prong of our
indifference standard to a substantive due process claim).                        substantive due process inquiry. Again, we note the utter
Similarly, the other above-cited child abandonment cases                          absence of any case finding a substantive due process
consider whether the conduct of the defendant police officers                     violation based upon a police officer’s decision to retain
amounted to “gross negligence” or a “reckless disregard” for                      custody over a child while her parent or custodian is placed
the safety of the children. See Moore, 754 F.2d at 1355;                          under arrest. To the contrary, the case law suggests that the
White, 592 F.2d at 385.                                                           Defendant officers would more likely have run afoul of
                                                                                  substantive due process concerns if they had left Daija King
   Under this standard, we do not believe that the record in                      at home or otherwise placed her in a situation which failed to
this case can be viewed as establishing a violation of Daija                      adequately ensure her safety and well-being. Because the pre-
King’s substantive due process rights. Admittedly, the                            existing law would not have alerted the individual Defendants
situation into which she was placed — being taken with her                        that their conduct might violate Daija King’s substantive due
                                                                                  process rights, they are entitled to qualified immunity. More
                                                                                  generally, in light of our similar conclusion under a Fourth
    6
      In particular, the children in Wh ite were abandoned by the side of         Amendment analysis, we affirm the District Court’s dismissal
the road in cold weather. “Under exposure of the cold, the children               of Daija King’s § 1983 claims against the individual
finally realized that they had no alternative but to leave the car, cross eight   Defendants on the ground of qualified immunity.
lanes of traffic and wander on the freeway at night in searc h of a
telephone.” Wh ite, 592 F.2d at 382.
No. 01-3637            Cherrington, et al. v. Skeeter, et al.            17   18   Cherrington, et al. v. Skeeter, et al.     No. 01-3637

C. Under the Present Record, the Individual Defendants                        Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661
   Are Not Entitled to Qualified Immunity on Mary                             (1991), provides the basis for her present Fourth Amendment
   Cherrington’s Claim that She Was Denied a Prompt                           claim. The Court previously had recognized in Gerstein v.
   Judicial Determination of Probable Cause.                                  Pugh, 420 U.S. 103, 114, 95 S. Ct. 854 (1975), that “the
                                                                              Fourth Amendment requires a judicial determination of
   Of the various § 1983 claims asserted by Mary Cherrington                  probable cause as a prerequisite to extended restraint of
in the court below, the only one she is pursuing on appeal,                   liberty following arrest.” In County of Riverside, the Court
against the individual Defendants at least,7 is her claim that                considered just how soon such a determination must be made,
she was not provided with a sufficiently prompt judicial                      and concluded that “judicial determinations of probable cause
determination of probable cause following her warrantless                     within 48 hours of arrest will, as a general matter, comply
arrest. In the lower court, and again on appeal, Plaintiff                    with the promptness requirement of Gerstein.” County of
Cherrington has cited Ohio Rule of Criminal Procedure                         Riverside, 500 U.S. at 56, 111 S. Ct. at 1670. While a delay
4(E)(2) as the source of this claimed right to a prompt                       of over 48 hours is not per se unlawful, the Government bears
probable cause hearing. 8 The District Court rejected this                    the burden in such cases to “demonstrate the existence of a
claim, reasoning that a violation of a state rule of criminal                 bona fide emergency or other extraordinary circumstance”
procedure cannot sustain a federal § 1983 claim. Be that as                   that led to the delayed probable cause determination. County
it may, and fully acknowledging Plaintiffs’ rather inarticulate               of Riverside, 500 U.S. at 57, 111 S. Ct. at 1670.
presentation on this point, we readily conclude that Mary
Cherrington has stated a viable Fourth Amendment claim as                       In this case, Mary Cherrington was arrested without a
a result of the delay in affording her a probable cause hearing.              warrant in the early morning hours of Saturday, August 30,
We further find that the present record fails to establish as a               1997, but she was not brought before a magistrate for a
matter of law that the individual Defendants are entitled to                  probable cause determination until about 8:30 a.m. on
qualified immunity on this claim.                                             Tuesday, September 2, 1997. This delay of over 72 hours
                                                                              significantly exceeded the general 48-hour rule announced in
  Though Plaintiff Cherrington has mentioned this ruling                      County of Riverside. Absent some “bona fide emergency or
only in passing, the Supreme Court’s decision in County of                    other extraordinary circumstance,” then, this delay violated
                                                                              Cherrington’s Fourth Amendment right to a prompt judicial
                                                                              determination of probable cause.
    7
     Plaintiffs’ claims against the Defendant City of Circleville are
addressed below.                                                                Neither of Defendants’ two proposed “extraordinary
    8
                                                                              circumstances” take this case outside the usual 48-hour rule.
      At the time of Cherringto n’s arrest, this Ohio rule p rovid ed in      First, Defendants note that their undercover investigation
relevant part:                                                                continued after Cherrington’s arrest, and that she agreed to
         W here a person is arrested without a warrant the arresting
                                                                              cooperate in this ongoing operation by attempting to arrange
    officer shall . . . bring the arrested p erson without unnecessary        a drug purchase. Defendants reason that this undercover
    delay before a court having jurisdiction of the offense, and shall        effort would have been jeopardized if Cherrington had been
    file or cause to be filed a complaint describing the offense for          brought before a magistrate. Yet, this undercover operation
    which the person was arrested.                                            surely had concluded by Sunday, August 31, 1997 at 3:37
Ohio Crim. R. 4(E)(2) (199 7).
                                                                              a.m., when Cherrington was taken from the Travel Lodge
No. 01-3637            Cherrington, et al. v. Skeeter, et al.       19     20   Cherrington, et al. v. Skeeter, et al.       No. 01-3637

motel and placed in jail. Even so, Cherrington was made to                 determination of probable cause within 48 hours of her arrest.
wait more than 48 hours from this point before a magistrate                Her claim also survives scrutiny under the second, “clearly
found probable cause to arrest her.          Cherrington’s                 established” prong of the qualified immunity inquiry, because
participation in the ongoing investigation, then, did not                  County of Riverside itself, a decision which predated
prevent Defendants from complying with County of                           Cherrington’s arrest by several years, would have alerted a
Riverside’s 48-hour rule.9                                                 reasonable official to (i) the existence of Cherrington’s Fourth
                                                                           Amendment right to a judicial determination of probable
   Next, Defendants point to the intervening weekend and                   cause within 48 hours, and (ii) the unavailability of any
Labor Day holiday between Mary Cherrington’s arrest and                    “intervening weekend or holiday” exception to this 48-hour
the magistrate’s probable cause determination. County of                   rule. Under the present record, therefore, the individual
Riverside itself, however, expressly cautions that intervening             Defendants are not entitled to qualified immunity on Plaintiff
weekends and holidays do not qualify as “extraordinary                     Cherrington’s Fourth Amendment claim of an excessive delay
circumstances” that permit relief from the 48-hour                         in the magistrate’s determination of probable cause for her
requirement. See County of Riverside, 500 U.S. at 57-58, 111               arrest.
S. Ct. at 1670-71. Accordingly, this Court recently held that
a municipality’s “part-time court” scheme, under which                       Nonetheless, we hasten to add that the liability of the
“court was never held on weekends or holidays,” would “very                individual Defendants is not a foregone conclusion upon
likely run afoul of the forty-eight hour time limit established            remand. Because the District Court determined at the
in Riverside” in cases of warrantless arrests on Friday                    threshold that there had been no constitutional violation, it
evenings or Saturday mornings. Alkire v. Irving, 330 F.3d                  had no occasion to consider whether the two individual
802, 815 (6th Cir. 2003).                                                  Defendants actually named in the complaint, Andre Skeeter
                                                                           and Chief Kinney, could be held liable for such a violation.
  In sum, the undisputed record establishes a violation of City            Likewise, the parties have not addressed this issue in their
of Riverside’s 48-hour rule, and Defendants have failed to                 briefs on appeal, and the record does not disclose all of the
identify any emergency or other extraordinary circumstance                 pertinent details of the specific roles played by Defendants
that might take this case outside of the general rule. It                  Skeeter and Kinney in Mary Cherrington’s detention and
follows that Plaintiff Cherrington can withstand the first                 eventual appearance before a magistrate. Consequently, we
prong of the qualified immunity inquiry by virtue of the                   are limited to offering only a few general observations that
violation of her Fourth Amendment right to a judicial                      the District Court might wish to consider in any subsequent
                                                                           proceedings.

    9                                                                         It is axiomatic, of course, that § 1983 prohibits actions
      W e recognize that an individual’s agreement to cooperate with the   “under color of state law” which deprive an individual of a
authorities might well be a relevant factor in determining whether a
delayed probable cause determination violates the Fourth Am endment.
                                                                           right secured by the U.S. Constitution or a federal statute.
Under the facts of this case, however, we need not decide whether the      See, e.g., Cassady v. Tackett, 938 F.2d 693, 695 (6th Cir.
period of Mary Cherrington’s cooperation should be charged against or      1991). “Thus, before a defendant may be held liable under
exempted from the 48-hour lim it, or whether her voluntary participation   section 1983, that defendant must first possess power by
in an ongoing undercover operation constituted an “extraordinary           virtue of state law, then misuse that power in a way that
circumstance” which would permit a more lengthy delay in securing a
judicial determination of probable cause.
                                                                           violates federal constitutional rights.” Christian v. Belcher,
No. 01-3637         Cherrington, et al. v. Skeeter, et al.   21   22   Cherrington, et al. v. Skeeter, et al.       No. 01-3637

888 F.2d 410, 414 (6th Cir. 1989). In the present context, this   City of Pontiac, 41 F.3d 1061, 1066 (6th Cir. 1994)
means that we must look to state law to determine who is          (addressing the proximate cause element of a § 1983 claim).
responsible for ensuring that a judicial determination of         This matter must be determined upon remand to the District
probable cause is made within 48 hours after an arrest.           Court.
   Under Ohio law, where an arrest is made without a warrant,     D. Under the Present Record, the Defendant City Is Not
it generally falls to the “arresting officer” to “bring the          Entitled to Summary Judgment on Plaintiff
arrested person without unnecessary delay before a court             Cherrington’s County of Riverside Claim.
having jurisdiction of the offense.” Ohio Crim. R. 4(E)(2).
In this case, the record establishes that Defendant Skeeter was      As their final issue on appeal, Plaintiffs challenge the
one of the arresting officers, and there is some evidence of      District Court’s award of summary judgment to the Defendant
Defendant Kinney’s involvement in the decisions to arrest         City of Circleville on their § 1983 claims. Although this
Mary Cherrington and initially take her to a motel rather than    sweeping challenge largely fails to withstand scrutiny, we
the Circleville police station. The record is almost entirely     find that this grant of summary judgment must be reversed in
silent, however, as to the roles played by these Defendants or    one limited respect — namely, as it relates to Plaintiff
other law enforcement officials in the roughly two-and-a-half-    Cherrington’s claim of undue delay in the judicial
day period that Cherrington remained in jail without being        determination of probable cause to arrest her. With this lone
brought before a magistrate.                                      exception, we affirm the District Court’s rulings as to the
                                                                  Defendant City.
  Under this record, it is possible that either or both of the
named Defendants had a duty under Ohio law to see that               A municipality cannot be held vicariously liable under
Cherrington was promptly brought before a magistrate for a        § 1983 for the acts of its employees or agents. See Monell v.
determination of probable cause to arrest her, and that either    Department of Soc. Servs. of City of New York, 436 U.S. 658,
or both failed to take the necessary steps to discharge this      694, 98 S. Ct. 2018, 2037-38 (1978); Gregory v. Shelby
obligation. It is equally possible, however, that one or both     County, 220 F.3d 433, 441 (6th Cir. 2000). Rather, municipal
of these Defendants took some steps to ensure that there was      liability attaches only where a constitutional violation results
a prompt judicial determination of probable cause, but that,      from the “execution of a government’s policy or custom.”
through no fault of their own, this did not occur. In other       Gregory, 220 F.3d at 441. Beyond having to identify
words, we lack the information necessary to resolve the issue     “conduct properly attributable to the municipality” itself, a
of causation — namely, whether the delay in Mary                  plaintiff
Cherrington’s probable cause determination was attributable
to the actions (or inaction) of one or both of the named            must also demonstrate that, through its deliberate
Defendants. See, e.g., Luck v. Rovenstine, 168 F.3d 323, 327        conduct, the municipality was the “moving force” behind
(7th Cir. 1999) (addressing this question of causation in the       the injury alleged. That is, a plaintiff must show that the
specific context of a claimed violation of County of                municipal action was taken with the requisite degree of
Riverside’s 48-hour rule); Hallstrom v. City of Garden City,        culpability and must demonstrate a direct causal link
991 F.2d 1473, 1478-79, 1481-82 (9th Cir. 1993) (same);             between the municipal action and the deprivation of
Strepka v. Miller, No. 00-1294, 2001 WL 1475058, at *3              federal rights.
(10th Cir. Nov. 21, 2001) (same). See generally Gazette v.
No. 01-3637          Cherrington, et al. v. Skeeter, et al.    23    24   Cherrington, et al. v. Skeeter, et al.       No. 01-3637

Board of County Comm’rs of Bryan County v. Brown, 520                City’s potential liability to the two alleged violations
U.S. 397, 404, 117 S. Ct. 1382, 1388 (1997); see also City of        expressly raised on appeal — namely, the allegedly unlawful
Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203           detention of Daija King incident to her mother’s arrest, and
(1989) (“[O]ur first inquiry in any case alleging municipal          the violation of Mary Cherrington’s right to a prompt judicial
liability under § 1983 is the question whether there is a direct     determination of probable cause.
causal link between a municipal policy or custom and the
alleged constitutional deprivation.”).                                  As to Daija King’s constitutional claims, we readily
                                                                     conclude that the evidence is insufficient as a matter of law to
   On appeal, Plaintiffs contend that the requisite municipal        forge the requisite causal connection between her allegedly
policy or custom can be found in the Defendant City’s alleged        unlawful detention and any inadequacy in the training of the
failure to properly train its officers, and particularly             Defendant City’s police officers. To be actionable, a
Defendant Skeeter. The Supreme Court has held that “the              municipality’s training must be inadequate to the tasks that its
inadequacy of police training may serve as the basis for             officers must perform, this inadequacy must be the product of
§ 1983 liability,” but “only where the failure to train amounts      deliberate indifference, and this inadequacy must have been
to deliberate indifference to the rights of persons with whom        closely related to or have actually caused the plaintiff’s
the police come into contact.” City of Canton, 489 U.S. at           injury. See Russo v. City of Cincinnati, 953 F.2d 1036, 1046
388, 109 S. Ct. at 1204 (footnote omitted). “Only where a            (6th Cir. 1992). We have read City of Canton as recognizing
municipality’s failure to train its employees in a relevant          at least two situations in which inadequate training could be
respect evidences a ‘deliberate indifference’ to the rights of its   found to be the result of deliberate indifference. “One is
inhabitants can such a shortcoming be properly thought of as         failure to provide adequate training in light of foreseeable
a city ‘policy or custom’ that is actionable under § 1983.”          consequences that could result from the lack of instruction,”
489 U.S. at 389, 109 S. Ct. at 1205.                                 as would be the case, for example, if a municipality failed to
                                                                     instruct its officers in the use of deadly force. Brown v.
   In an effort to establish their “failure to train” theory,        Shaner, 172 F.3d 927, 931 (6th Cir. 1999). “A second type
Plaintiffs cite evidence tending to indicate that Defendant          of situation justifying a conclusion of deliberate indifference
Skeeter received little or no instruction or guidance regarding      is where the city fails to act in response to repeated
Circleville police department policies and procedures. Be that       complaints of constitutional violations by its officers.”
as it may, however, Plaintiffs notably fail to specify exactly       Brown, 172 F.3d at 931.
which constitutional injuries might have resulted from this
lack of training, nor have they pointed to evidence in the             The detention of Daija King incident to her mother’s arrest
record that might tend to establish a direct causal link             does not remotely fit into either of these established
between Skeeter’s allegedly deficient training and a particular      categories of actionable failures to train. Given the dearth of
constitutional injury suffered by either Daija King or Mary          case law addressing the issue, it cannot be said that police
Cherrington. We decline Plaintiffs’ invitation to engage in a        officers routinely confront the question of what to do with
generalized, open-ended inquiry whether a lack of proper             children upon arresting their parent or guardian. Thus, the
training could have been the “moving force” behind some              Defendant City cannot be deemed deliberately indifferent to
constitutional violation that might be gleaned from the record
before us. Rather, absent any specific guidance from
Plaintiffs on this point, we limit our consideration of the
No. 01-3637             Cherrington, et al. v. Skeeter, et al.            25     26    Cherrington, et al. v. Skeeter, et al.            No. 01-3637

an obvious need for officer training in this area.10 Likewise,                   those who come in contact with the Circleville police. Russo,
Plaintiffs have failed to identify any similar incidents or prior                953 F.2d at 1046 (internal quotations and citations omitted).
complaints that might have alerted the Defendant City to the
need to cover this topic in its officer training. Absent some                       Nonetheless, this still leaves the question whether this
form of notice that its officers might confront such a situation,                inadequate training was “closely related to” or “actually
the Defendant City cannot be held liable under a “failure to                     caused” a violation of Mary Cherrington’s Fourth
train” theory for any alleged deprivation of Daija King’s                        Amendment right to a prompt judicial determination of
constitutional rights. See Sargi v. Kent City Bd. of Educ., 70                   probable cause. Russo, 953 F.2d at 1046 (internal quotation
F.3d 907, 912 (6th Cir. 1995) (citing lack of notice as a basis                  marks and citations omitted). As noted earlier, we are
for rejecting a claim of inadequate training).                                   severely handicapped in our effort to determine the root cause
                                                                                 of this violation or the principal players involved, because the
   Matters are somewhat different with regard to Mary                            record is nearly silent as to what occurred or who was present
Cherrington’s claim of an unduly delayed judicial                                during Cherrington’s detention at the Circleville police
determination of probable cause for her arrest. It surely is                     station. For all we can tell, then, Defendant Skeeter was fully
foreseeable that the Defendant City’s police officers will                       aware of the need for a prompt probable cause determination,
occasionally make warrantless arrests, and thus will require                     yet was assured by other officers at the station that they would
instruction on the need to ensure that individuals arrested                      discharge this duty. Alternatively, given Defendants’ appeal
without a warrant are brought before a magistrate within 48                      to the intervening weekend and Labor Day holiday between
hours for a probable cause determination. Moreover,                              Cherrington’s arrest and her appearance before a magistrate,
Plaintiffs have pointed to Defendant Skeeter’s testimony that                    it is possible that the Defendant City failed to provide the
he generally did not receive any instruction regarding any                       necessary resources to ensure that individuals arrested without
Circleville police department policies or procedures. (See                       a warrant in the early part of a weekend need not wait until
Skeeter Dep. at 49-50, J.A. at 114-15.) Under this record, a                     the following Monday (or Tuesday) for a probable cause
trier of fact could conclude that the Defendant City’s training                  hearing. In this event, the City’s liability would rest directly
of Skeeter was “inadequate to the tasks that officers must                       upon an unconstitutional policy rather than inadequate
perform,” and that this inadequacy reflected the City’s                          training — even the most extensive training program could
“deliberate indifference” to the Fourth Amendment rights of                      not overcome the brute fact that a magistrate was not
                                                                                 available on weekends and holidays.11
                                                                                    In light of this evidentiary gap on a material issue, we
    10
                                                                                 cannot say as a matter of law that the Defendant City is not
        Indeed, in the event that a municipality found it appropriate to offer   liable for the deprivation of Plaintiff Cherrington’s Fourth
training on this subject, it would be difficult to glean any general rule        Amendment right to a prompt judicial determination of
from the existing precedents — it might be better to place the child with
a social service agency in one case, with a relative in another, or to keep
the child with her parent in still another. Even in the specific case now
before us, we have hesitated to conclude that one course of action would              11
have been co nstitutionally prefera ble to the othe rs. Give n the limited              Our discussion on this subject is not meant to exhaust all of the
utility of such nebulous “training,” a municipality could hardly be said to      possible factual scenarios that m ight have led to the delayed p robable
be deliberately indifferent to the needs of its citizens if it chose to forgo    cause determinatio n in this case. W e merely mean to emphasize that the
this instruction.                                                                record tells us nothing about what actually occurred.
No. 01-3637         Cherrington, et al. v. Skeeter, et al.   27

probable cause. Just as we have remanded the matter of the
individual Defendants’ liability under this theory, we invite
the parties to address the City’s liability on remand to the
District Court. Admittedly, to this point, Plaintiffs have done
very little to meet their burden of establishing a factual basis
for holding any of the Defendants liable for this Fourth
Amendment violation. Yet, because the first round of District
Court proceedings focused largely on the wrong issue —
namely, the legal significance of Ohio Rule of Criminal
Procedure 4(E)(2) to Plaintiff Cherrington’s federal
constitutional claim, rather than the Supreme Court’s ruling
in County of Riverside — we believe it appropriate to afford
Plaintiffs a limited opportunity to develop a factual record
supporting the imposition of liability on one or more of the
Defendants, whether individual or municipal, for violating
County of Riverside’s 48-hour rule. At the same time,
Defendants can attempt to identify an “extraordinary
circumstance” that might exempt them from the operation of
this rule.
                    III. CONCLUSION
  For the reasons set forth above, we REVERSE the rulings
of the court below on Plaintiff Mary Cherrington’s Fourth
Amendment claim of undue delay in the judicial
determination of probable cause for her arrest, AFFIRM as to
the remaining issues raised on appeal, and REMAND for
further proceedings consistent with this decision.
