                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            MAR 23 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


TREVOR REYNOLDS; HEATHER                         No. 16-56565
REYNOLDS; H. R., a minor; R. R., a
minor,                                           D.C. No. 3:11-cv-01256-JAH-AGS

              Plaintiffs-Appellees,
                                                 MEMORANDUM*
 v.

MAYA BRYSON; CHERYL
BERGLUND,

              Defendants-Appellants,

 and

COUNTY OF SAN DIEGO; SAN DIEGO
COUNTY HEALTH AND HUMAN
SERVICES AGENCY; POLINSKY
CHILDRENS CENTER; SHARI
MEDEIROS; LAURA ZETMEIR;
KRISTIE CAMPELL; DOES, 1-50,

              Defendants.


                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                        Argued and Submitted March 8, 2018
                               Pasadena, California

Before: GRABER, W. FLETCHER, and OWENS, Circuit Judges.

      Defendants Maya Bryson and Cheryl Berglund appeal the partial denial of

their motion for summary judgment based on qualified immunity. We have

jurisdiction under 28 U.S.C. § 1291. See Jeffers v. Gomez, 267 F.3d 895, 903 (9th

Cir. 2001) (per curiam). We reverse the partial denial, holding that Defendants are

entitled to qualified immunity for the removal of H.R.

      Defendants are entitled to qualified immunity if, “resolving all disputes of

fact and credibility in favor of the party asserting the injury,” (1) the facts adduced

show that Defendants’ conduct did not violate a constitutional right, or (2) the right

was not clearly established at the time of the violation. Demaree v. Pederson, 880

F.3d 1066, 1074 (9th Cir. 2018) (per curiam) (citation omitted) (describing the

two-pronged test of Saucier v. Katz, 533 U.S. 194 (2001)). We may begin our

analysis with either prong. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

      Here, we begin with the second prong. “Qualified immunity attaches when

an official’s conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” White v. Pauly, 137 S.

Ct. 548, 551 (2017) (per curiam) (internal quotation marks omitted). For a right to


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be clearly established, “existing precedent must have placed the statutory or

constitutional question beyond debate.” Kirkpatrick v. Cty. of Washoe, 843 F.3d

784, 792 (9th Cir. 2016) (en banc) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011)). To meet this standard, existing precedent must be “particularized” to the

facts of the case, as “immunity protects all but the plainly incompetent or those

who knowingly violate the law.” White, 137 S. Ct. at 551–52 (internal quotation

marks and citation omitted).

      Even assuming that Defendants violated a constitutional right by removing

H.R., that right was not clearly established in June of 2010. At the time, our case

law described “a well-elaborated constitutional right [of parents and children] to

live together without governmental interference.” Burke v. Cty. of Alameda, 586

F.3d 725, 731 (9th Cir. 2009) (quoting Wallis v. Spencer, 202 F.3d 1126, 1136 (9th

Cir. 2000)). But our case law did not give “fair and clear warning” about the

application of this general right to the circumstances facing Defendants. White,

137 S. Ct. at 552 (internal quotation marks and citation omitted); see, e.g., Rogers

v. Cty. of San Joaquin, 487 F.3d 1288, 1295 (9th Cir. 2007) (addressing removal

based on concerns about “bottle rot, the children’s malnourishment, and the

disorderly conditions in the home”); Wallis, 202 F.3d at 1138–40 (addressing an

“extraordinary” case in which removal was based on a psychiatric patient’s claim


                                          3
that a satanic ritual sacrifice was imminent); see also Kirkpatrick, 843 F.3d at 793

(noting that “none of the cases from this court explain when removing an infant

from a parent’s custody at a hospital to prevent neglect, without a warrant, crosses

the line of reasonableness and violates the Fourth Amendment”).

      Decisions from other jurisdictions supported the removal of H.R. because of

Defendants’ reasonable belief that his sibling R.R. had been abused. See Cornejo

v. Bell, 592 F.3d 121, 129 (2d Cir. 2010) (decided January 4, 2010); Taylor v.

Evans, 72 F. Supp. 2d 298, 309 (S.D.N.Y. 1999). These cases may not be directly

on point, given differences among the circuits about the standard for removing a

child. See Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404,

428 (5th Cir. 2008) (discussing these differences, and noting that the “Ninth and

Tenth Circuits have adopted the strictest standards for removal of a child”).

However, they undermine any claim that it was clearly established that Defendants

could not constitutionally remove H.R., which was Plaintiffs’ burden to prove. See

Kennedy v. City of Ridgefield, 439 F.3d 1055, 1065 (9th Cir. 2006).

      REVERSED.




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