                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                  UNITED STATES COURT OF APPEALS May 18, 2007

                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court



 ESTATE OF GREGORY LOUIS
 HERRING, by and through Susan
 Fort, Esq.,

          Plaintiff,

 GREGORY L. HERRIN G, JR.,
 SUM M ER HERRING, and GREGORY
 Q. HERRING, minor children, by and
 through their Guardian Ad Litem,
 Susan Fort, Esq.,
                                                         No. 06-1166
                                              (D.C. No. 04-CV-2429-PAC-BNB)
          Plaintiffs-Appellants,
                                                         (Colorado)
 v.

 CITY OF COLORADO SPRIN GS, a
 municipal entity; GARY DARR ESS,
 R ORY C AR RO LL, and B REN T
 AM BUEHL, individually and in their
 capacities as Colorado Springs police
 officers,

          Defendants-Appellees.




                          ORDER AND JUDGMENT *



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Before HA RTZ, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Three minor children of the late G regory Herring contend the district court

incorrectly rejected their claim for violation of their rights to familial association.

W e disagree and affirm.

      A neighbor of Gregory Herring summoned the police to his apartment

complex after witnessing M r. Herring banging violently on several apartment

doors. The neighbor also witnessed M r. Herring’s three children running from

their apartment screaming, and M r. Herring throwing a chair through his

apartment window. The Colorado Springs police arrived at the apartment, and a

lengthy physical altercation followed. M r. H erring tragically died as a result.

M r. Herring’s minor offspring asserted a claim against the city and individual

police officers, alleging deprivation of their constitutional right of familial

association.

      The district court granted defendants’ motion for summary judgment. The

court reasoned that plaintiffs failed to show “defendant officers intended to

interfere w ith the children’s relationship w ith M r. Herring at the time the officers

caused his death,” aplt. app., vol. II at 339, as required by Trujillo v. Bd. of

County Commr’s of Santa Fe, 768 F.2d 1186, 1190 (10th Cir. 1985). W e review

the district court's grant of summary judgment de novo. Graves v. Thom as, 450

F.3d 1215, 1217 (10th Cir. 2006).



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      On appeal, plaintiffs assert the right of familial association derives from the

Fourteenth Amendment and therefore does not require the demonstration of intent

on the part of the police officers. They contend the district court should have

applied a Fourteenth Amendment balancing test to determine if the familial

association claim was meritorious instead of mandating a demonstration of intent.

Although plaintiffs correctly assert that the familial right of association is

grounded in the Fourteenth Amendment concept of liberty, see Griffin v. Strong,

983 F.2d 1544, 1547 (10th Cir. 1993) (“The freedom of intimate association is a

substantive due process right, as is its subset, the familial right of association.”),

we nevertheless require that plaintiffs demonstrate intent on the part of

defendants.

      In Trujillo, 768 F.2d at 1190, we “conclude[d] that an allegation of intent

to interfere with a particular relationship protected by the freedom of intimate

association is required to state a claim under section 1983.” In Griffin, we cited

Trujillo for the principle that

      [n]ot every statement or act that results in an interference with the
      rights of intimate association is actionable. Rather, to rise to the
      level of a constitutional claim, the defendant must direct his or her
      statements or conduct at the intimate relationship with knowledge
      that the statements or conduct will adversely affect that relationship.

Griffin, 983 F.2d at 1548 (emphasis in original). Similarly, in J.B. v. Washington

County, 127 F.3d 919 (10th Cir. 1997), while recognizing the Fourteenth

Amendment as the constitutional wellspring of familial association rights, see id.

                                           -3-
at 927, we nonetheless continued to require a showing of direction or intent by

the person who allegedly interfered with the plaintiff’s right to familial

association. Id. at 927-28. As such, we concluded that because there was “no

evidence that the County officials intended or directed their conduct in this matter

at the familial relationship [of the plaintiffs] with knowledge that such conduct

would adversely affect the relationship as required by this court . . . the County

officials’ conduct did not impermissibly interfere with plaintiff’s right of familial

association.” Id. at 928 (brackets and quotation marks omitted). M ore recently,

in Christiansen v. City of Tulsa, 332 F.3d 1270, 1283 (10th Cir. 2003), we

rejected the constitutional claims of survivors for failing to demonstrate intent.

      Thus, although plaintiffs are correct that this Circuit acknowledges the

Fourteenth Amendment roots of their constitutional claim, our subsequent cases

clearly preserve direction and intent as a requirement for stating a cause of action

for the violation of the constitutional right to familial association. Plaintiffs have

not alleged, nor do they attempt to demonstrate, that the officers directed their

conduct at plaintiffs’ familial association with their father or intended to interfere

with it. Because they have not made the requisite showing, the district court

correctly granted summary judgment for defendants.




                                          -4-
Accordingly, we A FFIR M .


                             ENTERED FOR THE COURT


                             Stephanie K. Seymour
                             Circuit Judge




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