Roska Ex Rel. Roska v. Peterson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 29 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

CONNIE ROSKA, on behalf of minor
children Rusty and Jessica Roska, and
Maria Stewart; JAMES ROSKA, on
behalf of minor children Rusty and
Jessica Roska, and Maria Stewart;
RUSTY ROSKA,

Plaintiffs - Appellants,

v. No. 01-4057

CRAIG T. PETERSON; MELINDA
SNEDDON; SHIRLEY MORRISON;
COLLEEN LASATER; DAN
CHOATE; DARLA RAMPTON,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D. Ct. No. 1:99-CV-112-B)

Steven C. Russell, Affordable Legal Advocates, P.C., Salt Lake City, Utah,
appearing for Appellants.

Nancy L. Kemp, Assistant Attorney General (Mark L. Shurtleff, Utah Attorney
General, with her on the brief), Office of the Attorney General, Salt Lake City,
Utah, appearing for the Appellees.

Before TACHA, Chief Circuit Judge, BALDOCK, and LUCERO, Circuit
Judges.
TACHA, Chief Circuit Judge.

These matters are before the court on appellees’ petition for rehearing with

suggestion for rehearing en banc. We granted appellees’ petition for rehearing in

an order dated October 31, 2002. Pursuant to that order, the court’s opinion of

September 5, 2002, is withdrawn and replaced by this revised published opinion.

OPINION

Plaintiffs brought this suit under 42 U.S.C. § 1983, alleging various rights

deprivations under the Fourth and Fourteenth Amendments. The district court

found that defendants were entitled to qualified immunity and dismissed the suit.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM in part,

REVERSE in part, and REMAND for further proceedings.

I. Background

On May 20, 1999, Connie Roska dropped off her 12-year-old son, Rusty

Roska, at school. He was wearing a parka even though it was 70 degrees outside.

Patricia Maynor, a school nurse, noticed that Rusty looked ill, was sweating, and

had a pallid complexion. Mrs. Roska apparently stated that Rusty was suffering

from kidney failure. The school nurse called Rusty’s rehabilitation physician, Dr.

Judith Gooch, who allegedly informed the nurse that Rusty did not have kidney

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failure. 1

On May 26, 1999, employees for the Davis County School District met with

Melinda Sneddon, a caseworker for Utah’s Division of Child and Family Services

(DCFS). The school district employees expressed concern for Rusty’s health and

provided several documents to DCFS. These documents included records

showing that in April 1998, Mrs. Roska told a teacher that Rusty had a hole in his

esophagus. In addition, the school nurse informed Sneddon that Mrs. Roska had

told her that Rusty had parasites in his intestines. Further, school officials

reported that Rusty’s healthy appendix had been removed at Mrs. Roska’s

insistence. Finally, school officials reported that Rusty looked worse every day

and expressed concern that Rusty might die unless DCFS intervened. Further

investigation indicated that Mrs. Roska had allegedly claimed that Rusty suffered

from a disease that is only suffered by 10 or 100 people in the world.

Sneddon assigned Shirley Morrison, another caseworker, to investigate.

Morrison suspected that Mrs. Roska suffered from Munchausen Syndrome by

Proxy (“MSBP”), a disorder where an individual, usually a mother, inflicts

physical harm upon his or her children in order to gain the sympathy and attention

of medical personnel. E. Selene Steelman, Note, A Question of Revenge:

Munchausen Syndrome by Proxy and a Proposed Diminished Capacity Defense

1
Dr. Gooch denies having this conversation.

-3-
for Homicidal Mothers , 8 Cardozo Women’s L.J. 261, 262-63 (2002). 2

Morrison’s investigation revealed that one of Rusty’s psychologists and a doctor

at Primary Children’s Hospital had suspected MSBP but were unable to

substantiate a diagnosis. Although Morrison later admitted that Rusty was not in

imminent danger of death, 3
the decision was made to remove Rusty from the

2
Munchausen Syndrome by Proxy was first diagnosed in 1977. It is a
variation of Munchausen Syndrome, a disorder named after Karl Fredrich von
Munchausen, a German nobleman with a penchant for telling lies about his
adventures in life. Melissa A. Prentice, Note, Prosecuting Mothers Who Maim
and Kill: The Profile of Munchausen Syndrome by Proxy Litigation in the Late
1990s, 28 Am. J. Crim. L. 373, 376 (2001); see also The Adventures of Baron von
Munchausen (Columbia Pictures 1988). While patients with traditional
Munchausen Syndrome induce or exaggerate their own illnesses in order to gain
the attention of medical professionals, MSBP patients cause such illness in others.
Id. MSBP patients are usually mothers in their twenties. The “proxy” is usually a
child, often a pre-verbal infant or toddler. Id. MSBP patients often “smother
their child; inject him with insulin; feed him poison, ipecac, or laxatives; cause
dehydration; overmedicate; induce fevers, diarrhea, vomiting, or seizures; or
contaminate blood, urine, or feces samples.” Id. There have been an estimated
200 to 1000 cases diagnosed since doctors first isolated the syndrome. Id. at 377.
3
During Morrison’s deposition, the following colloquy occurred:

Q: Did you think on that day [the 27th] that if you didn’t remove
him, he would die within a few days?

A [Morrison]: No.

Q: Did you think that if you didn’t remove him, he would die
within a week?

A: No.

Q: A month?
(continued...)

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Roskas’ home.

On May 28, 1999, Morrison and Sneddon met with an Assistant Attorney

General of Utah, Craig Peterson, who advised them that the facts supported

removing Rusty from the home. Morrison and Sneddon, accompanied by a police

officer, allegedly entered the Roska residence, without a warrant and without

knocking, and proceeded to remove Rusty. Before leaving, they were admonished

over the phone by Doctor Gooch that removal could destroy “this family

emotionally and Rusty may never recover.” Sneddon consulted with her

supervisor, Colleen Lasater, and then proceeded with the removal. Plaintiffs

contend that, while in the home, Sneddon pushed Rusty’s sisters, Maria Stewart

and Jessica Roska, as they attempted to comfort Rusty, and abused others in the

home, both physically and verbally. DCFS placed Rusty in a foster home, where

he allegedly was not given proper medication for his chronic pain.

At an initial shelter hearing on June 3, 1999, the juvenile court ruled that

Rusty should remain in protective custody. After additional evidence was

produced the next day, the court ordered that Rusty be returned to the Roskas’

(...continued)
3

A: I have no way to know that.

Q: You are pretty sure it wouldn’t be a few days?

A: Pretty sure.

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care. The court also ordered the Roskas to permit substantial intervention by

DCFS in Rusty’s treatment.

On October 6, 1999, plaintiffs commenced this action under 42 U.S.C. §

1983. The plaintiffs are Rusty Roska, Connie and James Roska (Rusty’s parents),

and Maria Stewart and Jessica Roska (Rusty’s sisters). The defendants are Craig

Peterson, Assistant Attorney General for the State of Utah; Melinda Sneddon, a

social worker with DCFS; Shirley Morrison, a social worker with DCFS; Colleen

Lasater, Sneddon’s and Morrison’s supervisor; and Dan Choate and Darla

Rampton, DCFS placement workers who placed Rusty in a foster home. The first,

third, fourth, and fifth causes of action are directed against Peterson, Sneddon,

and Morrison and allege three Fourth Amendment violations 4
and a Fourteenth

Amendment violation. 5
The second cause of action alleges that defendants

Sneddon and Morrison used unreasonable force in violation of the Fourth

Amendment. The sixth and seventh claims allege that all defendants violated

Rusty’s Fourteenth Amendment substantive due process right to be safe from

harm while held by the state (Count 6) and Mr. and Mrs. Roska’s Fourteenth

Amendment rights to direct their children’s medical care (Count 7). Finally,

4
Plaintiffs allege that their Fourth Amendment rights were violated when
defendants unreasonably searched the plaintiffs’ home (Count 1), unreasonably
seized Rusty (Count 2), and abused and kidnapped Rusty (Count 4).

Plaintiffs allege that defendants violated their Fifth and Fourteenth
5

Amendment rights to maintain a family relationship (Count 5).

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plaintiffs’ eighth cause of action is against defendant Morrison for alleged

malicious prosecution and abuse of process. The district court granted defendants

summary judgment on grounds of qualified immunity. We now affirm in part,

reverse in part, and remand for further proceedings.

II. Discussion

A. Standard of Review

We review de novo a district court’s ruling on qualified immunity. Farmer

v. Perrill , 288 F.3d 1254, 1259 (10th Cir. 2002). Qualified immunity is “an

entitlement not to stand trial or face the other burdens of litigation.” Mitchell v.

Forsyth , 472 U.S. 511, 526 (1985). The privilege is “an immunity from suit

rather than a mere defense to liability; and like an absolute immunity, it is

effectively lost if a case is erroneously permitted to go to trial.” Id. To determine

whether a plaintiff can overcome the qualified immunity defense, “first we

determine whether the plaintiff has asserted a violation of a constitutional or

statutory right, and then we decide whether that right was clearly established such

that a reasonable person in the defendant’s position would have known that [his]

conduct violated that right.” Garramone v. Romo , 94 F.3d 1446, 1449 (10th Cir.

1996) (citation omitted). Order is important; we must decide first whether the

plaintiff has alleged a constitutional violation, and only then do we proceed to

determine whether the law was clearly established. Saucier v. Katz , 533 U.S.

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194, 200 (2001).

B. Violation of a Constitutional Right 6

In conducting our qualified immunity analysis, we must first consider

“whether plaintiff’s allegations, if true, establish a constitutional violation.”

Hope v. Pelzer , 536 U.S. 730, 122 S.Ct. 2508, 2513 (2002) (citation omitted). We

consider each of the plaintiffs’ allegations in turn.

1. Fourth Amendment Claims (Counts 1, 2, 3, 4, and 8)

The Fourth Amendment, applied to the states through the Fourteenth

Amendment’s Due Process Clause, provides that “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated.” U.S. C ONST . amend IV. Plaintiffs advance

five theories upon which a Fourth Amendment violation might be found. We

address each in turn.

a. The Warrantless Entry (Count 1) 7

It is well-established that a warrantless search is presumptively

6
Although plaintiffs challenge the constitutionality of the defendants’
conduct, plaintiffs do not challenge the state statutes to the extent the statutes
authorized the conduct in question.
7
In the district court, plaintiffs also alleged that defendants failed to knock
prior to entering the Roskas’ home. The plaintiffs did not, however, advance this
argument in their initial brief on appeal. Accordingly, defendants did not have an
opportunity to respond and the argument is not properly before us. The district
court on remand, however, may reconsider this aspect of plaintiffs’ Fourth
Amendment claim, in light of our discussion, infra.

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unreasonable under the Fourth Amendment and therefore invalid unless it falls

within a specific exception to the warrant requirement. United States v. Zubia-

Melendez , 263 F.3d 1155, 1162 (10th Cir. 2001). In this case, it is undisputed

that defendants failed to obtain a warrant before entering and searching the

Roskas’ residence. Thus, defendants’ actions were presumptively unreasonable

under the Fourth Amendment unless an exception to the warrant requirement

applies. Id. Defendants point to two possible exceptions to the warrant

requirement. We consider each in turn.

(1) Exigent circumstances

First, the defendants point to the “exigent circumstances” exception to the

warrant requirement. Exigent circumstances exist when:

(1) the law enforcement officers . . . have reasonable grounds to
believe that there is immediate need to protect their lives or others or
their property or that of others, (2) the search [is not] motivated by
an intent to arrest and seize evidence, and (3) there [is] some
reasonable basis, approaching probable cause, to associate an
emergency with the area or place to be searched .

United States v. Anderson , 981 F.2d 1560, 1567 (10th Cir. 1992) (alterations in

original). The government bears the burden of proving exigency. United States

v. Wicks , 995 F.2d 964, 970 (10th Cir. 1993). The government’s burden is

“particularly heavy where the police seek to enter a suspect’s home.” Anderson ,

981 F.2d at 1567 (quoting United States v. Maez , 872 F.2d 1444, 1452 (10th Cir.

1989)). In evaluating whether exigent circumstances existed, we examine the

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circumstances “as they would have appeared to prudent, cautious, and trained

officers.” United States v. Anderson , 154 F.3d 1225, 1233 (10th Cir. 1998). This

exception is narrow, and must be “jealously and carefully drawn.” Id.

After examining the record, we conclude that it contains no evidence that

could lead a reasonable state actor to conclude that there were exigent

circumstances. Although defendants at times assert that a delay to obtain a

warrant might have cost Rusty his life, the evidence shows otherwise. Defendants

were aware that various doctors had suspected that Rusty was a victim of MSBP

for quite some time, and the record indicates that there was nothing particularly

unusual about Rusty’s condition at the time he was removed. Rusty’s attending

physician stated on the phone that it would be a mistake to remove him from the

home. Because no evidence indicates that Rusty was in immediate threat of death

or severe physical harm – indeed, the evidence points to the opposite conclusion –

we do not find sufficient exigent circumstances to relieve the state actors here of

the burden of obtaining a warrant. See Coolidge v. New Hampshire , 403 U.S.

443, 470-71 (1971) (“But where the discovery is anticipated, where the police

know in advance the location of the evidence and intend to seize it . . . [t]he

requirement of a warrant to seize imposes no inconvenience whatever, or at least

none which is constitutionally cognizable in a legal system that regards

warrantless searches as ‘per se unreasonable’ in the absence of ‘exigent

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circumstances.’”).

(2) The “special needs” doctrine 8

Within the last thirty years, courts have increasingly recognized certain

narrow circumstances that justify searches and seizures without reference to the

Fourth Amendment’s warrant clause or probable cause requirement. These are

situations in which the requirement of a warrant based upon probable cause is ill-

suited to achieving certain “special needs” of government, such as enforcing

school discipline, New Jersey v. T.L.O. , 469 U.S. 325, 333-40 (1985), allowing

administrative searches of the business premises of “closely-regulated industries,”

New York v. Burger , 482 U.S. 691, 700 (1987), and taking inventory of seized

items for “caretaking” purposes, Cady v. Dombrowski , 413 U.S. 433, 447-48

(1973).

In all “special needs” cases, the nature of the need addressed makes

particularized suspicion impossible or otherwise renders the warrant requirement

impractical. For example, in Griffin v. Wisconsin , the Court noted that requiring

a warrant before a search of a probationer’s home would “interfere to an

8
Defendants do not make this argument directly. Rather, the defendants
argue that “clearly established” law did not rule out the applicability of the
“special needs” doctrine to the facts of this case. Consideration of this argument
requires us to answer two questions: (1) whether the “special needs” doctrine
applies on the facts of this case; and (2) whether “clearly established” law
provided the reasonable state actor “fair warning” of the inapplicability of the
“special needs” doctrine to the facts of this case.

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appreciable degree with the probation system,” and would “reduce the deterrent

effect that the possibility of expeditious searches would otherwise create.” 483

U.S. 868, 876 (1987) (citation omitted). Similarly, the Burger Court noted that

“surprise is crucial if the regulatory scheme aimed at remedying this major social

problem is to function at all.” 482 U.S. at 710; see also Skinner v. Railway Labor

Executives’ Ass’n , 489 U.S. 602, 619 (recognizing that the special need

articulated must “‘make the warrant and probable-cause requirement

impracticable’” before waiving those requirements). If a special need renders the

warrant requirement impracticable, we then balance the nature of the privacy

interest upon which the search intrudes and the degree of intrusion occasioned by

the search against “the nature and immediacy of the governmental concern at

issue . . . and the efficacy of this means for meeting it.” Vernonia Sch. Dist. 47J

v. Acton , 515 U.S. 646, 660 (1995).

We find no special need that renders the warrant requirement impracticable

when social workers enter a home to remove a child, absent exigent

circumstances. First, we note that individualized suspicion is at the heart of a

removal of a child from a home, distinguishing the instant case from the various

drug testing cases that have been addressed by the Court. Second, unlike the

situation in Burger (and assuming that exigent circumstances are not present),

there is no need for surprise or sudden action that renders obtaining a warrant

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counterproductive. Nor is this situation similar to the position of the probationer

in Griffin – the Roskas were not in the criminal justice system, there was no

deterrent function being served by the threat of a sudden, warrantless search, and

there was no immediate need for a quick response. 9
Simply put, unless the child

is in imminent danger, there is no reason that it is impracticable to obtain a

warrant before social workers remove a child from the home. Defendants took

the time to seek the advice of an Assistant Utah Attorney General before

proceeding with the removal; surely they could have taken the time to incur the

minimal inconvenience involved in obtaining a warrant. Burger , 482 U.S. at 727

(Brennan, J., dissenting).

It is true that the state has a strong interest in protecting children, and that

this interest should be taken into account in evaluating the reasonableness of the

search and seizure challenged by plaintiffs. However, what is reasonable under

the Fourth Amendment “depends on the context within which a search takes

place.” T.L.O., 469 U.S. at 337. The action challenged in this case involved not

9
This statement is not meant to foreclose the possibility that a special need
justifying an abrupt, warrantless search of a home might be present when a family
is already in the DCFS system or when a child has been placed in a foster home.
These are situations where routine, random inspections might be needed in order
to assure the safety of the child’s conditions. But that is simply not the situation
here, where the social workers entered the Roskas’ house not to inspect Rusty, but
to remove him. Indeed, the record reveals that even though the social workers
found that Rusty looked much healthier than they expected, they nonetheless
proceeded with the removal.

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only a warrantless search, but also the removal of a child from his parents. In

such a case, the interest of the government in protecting the child must be

balanced against the interest of the parents in keeping the family together. “Even

when blood relationships are strained, parents retain a vital interest in preventing

the irretrievable destruction of their family life.” Santosky v. Kramer, 455 U.S.

745, 753 (1982). Measured against this parental interest, the state’s interest in

protecting children does not excuse social workers from the warrant requirement

of the Fourth Amendment.

b. Unreasonable Use of Force (Count 2)

Plaintiffs claim that Sneddon and Morrison violated Jessica Roska’s and

Maria Stewart’s Fourth Amendment rights to be free of unreasonable use of force

by pushing them against a wall. Before addressing an unreasonable use of force

claim, we must examine the context in which the claim arises. Austin v.

Hamilton , 945 F.2d 1155, 1158 (10th Cir. 1991) (“We must first place the

objectionable events in this case somewhere along the custodial continuum

running through initial arrest or seizure, post-arrest but pre-charge or pre-hearing

custody, pretrial detention, and post-conviction incarceration; and then determine

what constitutional protection controls at which particular juncture.”), overruled

on other grounds , Johnson v. Jones , 515 U.S. 304 (1995); see also Metcalf v.

Long , 615 F. Supp. 1108, 1118-20 (D. Del. 1985) (noting that post-conviction

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claims for excessive force are brought under the Eighth Amendment).

Claims that state actors used excessive force – deadly or not – in the course

of a seizure are analyzed under the Fourth Amendment’s reasonableness standard.

Graham v. Connor , 490 U.S. 386, 395 (1989). Plaintiffs must show both that a

“seizure” occurred and that the seizure was “unreasonable.” Brower v. County of

Inyo, 489 U.S. 593, 599 (1989). A person is seized within the meaning of the

Fourth Amendment when “a reasonable person would believe that he or she is not

‘free to leave.’” Florida v. Bostick , 501 U.S. 429, 435 (1991). Here, nothing

indicates that Jessica Roska or Maria Stewart did not feel free to leave. Quite the

contrary, Sneddon’s alleged statement to “get the f**k out” indicates that they

were encouraged to leave. Hence, we cannot say they were seized within the

meaning of the Fourth Amendment.

A determination that plaintiffs were not seized within the meaning of the

Fourth Amendment does not end the inquiry, however. Substantive due process

analysis is appropriate in cases that involve excessive force where a specific

constitutional provision – such as the Fourth or Eighth Amendment – does not

apply. County of Sacramento v. Lewis , 523 U.S. 833, 843 (1998) (“‘ Graham

simply requires that if a constitutional claim is covered by a specific

constitutional provision, such as the Fourth or Eighth Amendment, the claim must

be analyzed under the standard appropriate to that specific provision, not under

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the rubric of substantive due process.’ Substantive due process analysis is

therefore inappropriate in this case only if respondents’ claim is ‘covered by’ the

Fourth Amendment.”) (quoting United States v. Lanier , 520 U.S. 259, 272, n.7

(1997)). We therefore analyze plaintiffs’ claim under the Fourteenth Amendment

Due Process Clause.

The Fourteenth Amendment protects citizens against state actions that

deprive them of life, liberty, or property without due process of law. U.S. C ONST .

amend. XIV. We examine three factors in determining whether force was

excessive within the meaning of the Fourteenth Amendment: (1) the relationship

between the amount of force used and the need presented; (2) the extent of the

injury inflicted; and (3) the motives of the state actor. Hannula v. City of

Lakewood , 907 F.2d 129, 131-32 (10th Cir. 1990). Force inspired by malice or by

“unwise, excessive zeal amounting to an abuse of official power that shocks the

conscience . . . may be redressed under [the Fourteenth Amendment].” Hewitt v.

City of Truth or Consequences , 758 F.2d 1375, 1379 (10th Cir.1985). While we

express some doubt as to the need to push or swear at adolescent girls, use of

such force to move children who might be interfering with the removal of a child

from the home is not so disproportionate as to rise to the level of a liberty

violation within the meaning of the Due Process Clause. Additionally, no serious

physical injury was inflicted, and “we have never upheld an excessive force claim

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without some evidence of physical injury” outside of the context of a Fourth

Amendment violation. Bella , 24 F.3d at 1257. Finally, nothing in the record

indicates that the defendants were motivated by malice or other improper

motive. 10 In sum, the facts alleged here fall short of the type of force that has

been found to rise to the level of a due process violation. Compare

Gutierrez-Rodriguez v. Cartagena , 882 F.2d 553 (1st Cir.1989) (upholding a due

process claim where four plain clothes police officers were conducting

“preventive rounds” in search of drug traffickers and, with guns drawn,

approached a young couple sitting in a car and, when the driver hastily started the

engine and drove away, began shooting without warning and struck the driver in

the back with one bullet, damaging his spinal cord and rendering him a

paraplegic), with Bella , 24 F.3d 1251 (finding no due process violation where

police officers allegedly shot at and struck plaintiff’s helicopter while plaintiff

unwillingly assisted in the escape of three inmates). The district court was

correct in dismissing this count.

c. Warrantless Seizure of Rusty (Count 3)

Defendants clearly seized Rusty within the meaning of the Fourth

10
We acknowledge that plaintiffs have alleged malicious prosecution and
claim that defendants’ seizure of Rusty had improper motivations. Nothing,
however, indicates that the relevant plaintiffs were pushed by Sneddon as the
result of a malicious motive.

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Amendment, and defendants did so without a warrant and without exigent

circumstances. Plaintiffs have therefore sufficiently alleged a violation of

Rusty’s Fourth Amendment right to be free from unreasonable seizures.

d. Fourth Amendment Right to be Protected Against Child

Abuse and Kidnapping (Count 4)

Plaintiffs assert that defendants violated Rusty’s Fourth Amendment right

to be protected against child abuse and kidnapping. We find no authority that

suggests the existence of such a constitutional right, and we analyze this claim

along with plaintiffs’ more traditional due process and unreasonable seizure

claims. To the extent that plaintiffs sought to assert a distinct Fourth Amendment

violation for child abuse and kidnapping, the district court properly dismissed

Count 4.

e. Malicious Prosecution and Abuse of Process (Count 8)

Plaintiffs claim that defendant Morrison is liable for malicious prosecution

and abuse of process. In this circuit, state law provides the starting point for a

constitutional claim of malicious prosecution and abuse of process. Erikson v.

Pawnee County Bd. of County Comm’rs , 263 F.3d 1151, 1154, 1155 n.5 (10th

Cir. 2001). In Utah, malicious prosecution occurs when “(1) defendants initiated

or procured the initiation of criminal proceedings against an innocent plaintiff;

(2) defendants did not have probable cause to initiate the prosecution; (3)

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defendants initiated the proceedings primarily for a purpose other than that of

bringing an offender to justice; and (4) the proceedings terminated in favor of the

accused.” Hodges v. Gibson Prods. Co. , 811 P.2d 151, 156 (Utah 1991). Here,

Morrison did not initiate or procure the initiation of criminal proceedings.

Therefore, there is no Fourth Amendment claim for malicious prosecution. 11

Under Utah law, abuse of process claims require that legal proceedings be

instituted “without probable cause, for the purpose of harassment or annoyance;

and it is usually said to require malice.” Baird v. Intermountain Sch. Fed. Credit

Union , 555 P.2d 877, 878 (Utah 1976). Utah law has also defined the tort as

using judicial resources “to accomplish some improper purpose, such as

compelling its victim to do something which he would not otherwise be legally

obliged to do.” Crease v. Pleasant Grove City , 519 P.2d 888, 890 (Utah 1974). If

the criminal process is used for its intended purpose, “the mere fact that it has

some other collateral effect” does not render the action an abuse of process. Id.

11
Utah recognizes a similar tort for civil proceedings, called wrongful use
of civil proceedings. Gilbert v. Ince, 981 P.2d 841, 845 (Utah 1999). Although
no Utah case is on point, most jurisdictions include quasi-criminal proceedings in
the latter tort. W. Page Keeton, et al., Prosser & Keeton on Torts 890 (5th ed.
1984). However, plaintiffs have not pled wrongful use of civil proceedings, and
they do not argue it in their briefs. Neither an opposing party nor this court is
under any obligation to craft legal theories for a plaintiff. See Abdelsamed v.
United States, 2002 WL 462027, at *1 (10th Cir. 2000); see also Fed. R. Civ. Pro.
8(a) (requiring a short and plain statement of the grounds for relief). We
therefore do not address a potential claim for wrongful use of civil proceedings.

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Even actions motivated purely by spite will not support a claim if process is

ultimately used only to accomplish the result for which it was created. Prosser &

Keeton at 897.

Morrison stated in her deposition that she did not believe Rusty’s death was

imminent and that she commenced the removal in part to create a type of

controlled experiment to facilitate a diagnosis of MSBP. However, no inference

of an improper, ulterior purpose can be drawn from these statements. Rather,

these statements are wholly consistent with a concern for Rusty’s health and an

attempt to diagnose MSBP, even if Rusty’s imminent death was not expected.

Because there is no evidence from which an inference can be drawn that Morrison

used the judicial process to accomplish some improper purpose, we find that

plaintiffs have not sufficiently alleged an abuse of process violation.

2. Fourteenth Amendment Claims

The Fourteenth Amendment Due Process Clause provides that no state shall

“deprive any person of life, liberty, or property without due process of law.” U.S.

C ONST . amend XIV, § 1. Plaintiffs advance three theories in asserting a

deprivation of their liberty interests without due process of law.

a. Right to Maintain a Family Relationship (Count 5)

Plaintiffs contend that they were deprived of their liberty interest in their

family relationship without due process of law when Rusty was removed without

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notice or a hearing. Based on the pleadings and depositions, plaintiffs have

sufficiently alleged a deprivation of a constitutional right.

In Santosky v. Kramer , the Supreme Court made clear that termination of

parental rights impinges upon a liberty interest of which a citizen may not be

deprived without due process of law. 455 U.S. 745, 753-54 (1982). Santosky

dealt only with the proper standard of review and arose within the context of a

permanent termination of parental rights. This circuit has applied Santosky ’s

holding, however, to the temporary seizures of children and has held that notice

and a hearing are required before a child is removed “‘except for extraordinary

situations where some valid governmental interest is at stake that justifies

postponing the hearing until after the event.’” Spielman v. Hildebrand , 873 F.2d

1377, 1385 (10th Cir. 1989) (quoting Smith v. Org. of Foster Families for Equal.

& Reform , 431 U.S. 816, 848 (1977)). “Valid governmental interests” include

“emergency circumstances which pose an immediate threat to the safety of a

child.” Hollingsworth v. Hill , 110 F.3d 733, 739 (10th Cir. 1997). As the Second

Circuit has noted, the “mere possibility” of danger is not enough to justify a

removal without appropriate process. Tenenbaum v. Williams , 193 F.3d 581, 594

(2d Cir. 1999).

As we discussed above, plaintiffs have pled sufficient facts to demonstrate

that emergency circumstances did not exist to justify Rusty’s immediate removal

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from the home without notice or a hearing. Defendants did not even attempt to

obtain an ex parte order. We therefore find that plaintiffs have sufficiently

alleged a violation of their Fourteenth Amendment procedural due process rights.

b. Right to be Safe From Harm While Being Held by the

State (Count 6)

Plaintiffs claim that Rusty was deprived of his liberty interest in being safe

from harm when the state placed him in a foster home that was unprepared to

meet his needs and when he was given the wrong dose of methadone in the foster

home.

States must ensure “reasonable care and safety” to persons within their

custody. Youngberg v. Romeo , 457 U.S. 307, 324 (1982). This includes children

in foster care. Yvonne L. v. N.M. Dep’t of Human Servs. , 959 F.2d 883, 892

(10th Cir. 1992). There are two circumstances in which the state may be liable

for failing to ensure the safety of children in its care. First, the state may be

liable when a state actor shows “deliberate indifference to serious medical needs”

of a child who is in state custody. Garcia v. Salt Lake County , 768 F.2d 303, 307

(10th Cir. 1985). Second, a state may be liable when state actors “place children

in a foster home or institution that they know or suspect to be dangerous to the

children,” if harm actually occurs. Id. at 893.

There are no allegations here that state actors showed deliberate

-22-
indifference to Rusty’s health problems. 12
Plaintiffs allege only that defendants

knew that the foster home in which Rusty was placed was not equipped to care for

him. In support of this assertion, plaintiffs offer deposition testimony that the

foster mother could not care for Rusty, that defendants had had a similar problem

with children once before, and that Morrison was aware that Rusty was suffering

and did nothing. However, a more thorough examination of the record reveals

that the foster parents simply indicated that they would not be able to care for

Rusty on a long-term basis, and that a child in a similar situation had been placed

in a nursing home. 13
The district court was correct in dismissing the claim.

c. Right to Direct Children’s Medical Care (Count 7)

Plaintiffs allege that the removal of Rusty and his placement in state care

violated Connie and James Roska’s rights to direct their son’s medical care. In

12
Plaintiffs do not name the foster parents as defendants, nor do they allege
that any named defendant was involved in determining the methadone levels that
Rusty received. Plaintiffs’ allegations that defendants ignored Dr. Gooch’s
recommendation that Rusty remain with his family as part of his rehabilitation do
not rise to the level of deliberate indifference.
13
Plaintiffs alleged in their initial pleadings that Morrison was aware that
Rusty was suffering in foster care. This could potentially qualify as “deliberate
indifference.” However, plaintiffs do not mention this in their briefs on appeal,
and they direct us to no citation in the record in support of this contention.
Without a specific reference, “we will not search the record in an effort to
determine whether there exists dormant evidence which might require submission
of the case to a jury.” Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1546 (10th
Cir. 1995) (citing United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)
(“Judges are not like pigs, hunting for truffles buried in briefs.”)).

-23-
support of this contention, plaintiffs direct us to one case: In re J.P. , 648 P.2d

1364 (Utah 1982). That case addressed a permanent termination of parental

rights. Id. at 1366 n.1. Plaintiffs point us to no authority or argument supporting

an extension of such a right to a temporary deprivation such as that suffered by

the Roskas. We also note that the Utah case cited by plaintiffs does not refer to a

Fourteenth Amendment right of parents to direct their child’s medical care.

Rather, it simply notes that Utah law includes such a right among those that a

state may terminate upon an adequate showing of parental abuse or neglect.

Plaintiffs’ briefing gives us no substantive argument as to what the scope of

such a right might be or how other interests should be balanced against such a

right. Perhaps most important, nothing in the record indicates that the state

sought to alter Rusty’s medical program, other than an alleged inadvertent change

in his methadone dosage. Given the paucity of the plaintiffs’ arguments and

evidence on this point, we cannot find that plaintiffs have made an adequate

showing of a deprivation of a constitutional right to direct Rusty’s medical care. 14

14
We express no opinion on whether such a right might exist within the
context of general familial rights. Cf. Santosky v. Kramer, 455 U.S. 745, 758-59
(1982) (“[A] natural parent’s desire for and right to the companionship, care,
custody, and management of his or her children is an interest far more precious
than any property right.”) (internal quotation marks omitted); Meyer v. Nebraska,
262 U.S. 390, 400-03 (1923) (holding that the Due Process Clause confers a right
to direct a child’s education). We simply state that plaintiffs have made neither
an adequate argument nor a factual showing to support such a right on this record.

-24-
 3. Conclusion

Having decided that the plaintiffs have adequately alleged that they

suffered constitutional violations when the social workers entered their house

without a warrant (Count 1), when they seized Rusty without a warrant (Count 3),

and when they removed him without notice and a hearing (Count 5), we now

consider whether the law was clearly established at the time the alleged violations

occurred.

C. Whether the Rights Were Clearly Established Such that a Reasonable

Person Would Understand that Her Conduct Violated the Law.

“Despite their participation in this constitutionally impermissible conduct,

the [defendants] may nevertheless be shielded from liability for civil damages if

their actions did not violate ‘clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Hope , 122 S.Ct. at 2515

(quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)). Concerning the

“clearly established law” requirement, the contours of the right must be

sufficiently clear such that an objectively reasonable officer would understand

that what she is doing violates that right. Anderson v. Creighton , 483 U.S. 635,

639-40 (1987). “If the law was clearly established, the immunity defense

ordinarily should fail, since a reasonably competent public official should know

the law governing his conduct.” Harlow , 457 U.S. at 818-19 (emphasis added).

-25-
 “Nevertheless, if the official pleading the defense claims extraordinary

circumstances and can prove that he neither knew nor should have known of the

relevant legal standard, the defense should be sustained.” Id. at 819. In other

words, a civil rights defendant is “entitled to ‘fair warning ’ that his conduct

deprived his victim of a constitutional right.” Hope , 122 S.Ct. at 2515 (emphasis

added). 15

Thus, the touchstone of our inquiry is whether the “‘officers [were] on

notice [that] their conduct [was] unlawful.’” Id. (quoting Saucier , 533 U.S. at

206). Although the best indicium of “fair notice” is whether the law was clearly

established at the time of the constitutional violation, Harlow makes clear that

other factors may be relevant in determining the “objective reasonableness” of the

state actor’s conduct. 457 U.S. at 819.

1. Whether the law was “clearly established.”

The law is clearly established when a Supreme Court or Tenth Circuit

decision is on point, or if the clearly established weight of authority from other

courts shows that the right must be as plaintiff maintains. Farmer v. Perrill , 288

15
The Supreme Court has noted the analogue in criminal law: the void-for-
vagueness doctrine. “[T]he qualified immunity test is simply the adaptation of the
fair warning standard to give officials (and, ultimately, governments) the same
protection from civil liability and its consequences that individuals have
traditionally possessed in the face of vague criminal statutes.” Hope, 122 S.Ct. at
2515 n.10.

-26-
F.3d 1254, 1259 (10th Cir. 2002). “Although earlier cases involving

‘fundamentally similar’ facts can provide especially strong support for a

conclusion that the law is clearly established, they are not necessary to such a

finding.” Hope , 122 S.Ct. at 2516. 16

a. Plaintiffs’ Fourth Amendment claims (Counts 1 and 3)

Our jurisprudence has long recognized that a person’s privacy interest is at

its highest in a person’s home. “In terms that apply equally to seizures of

property and to seizures of persons, the Fourth Amendment has drawn a firm line

at the entrance to the house. Absent exigent circumstances, that threshold may

not reasonably be crossed without a warrant.” Payton v. New York , 445 U.S. 573,

590 (1980); see also United States v. U.S. District Court , 407 U.S. 297, 313

(1972) (“[P]hysical entry into the home is the chief evil against which the . . .

Fourth Amendment is directed . . . .”). Searches conducted without a warrant are

per se unreasonable under the Fourth Amendment – subject only to a few

“specifically established and well-delineated exceptions.” Katz v. United States ,

389 U.S. 347, 357 (1967) (footnotes omitted) . This insistence upon interposing a

“neutral and detached magistrate” between the state and the citizenry, subject to

16
As we have previously recognized, a requirement of a case directly on
point would quickly transform the qualified immunity standard into an absolute
immunity standard in the vast majority of cases. Yvonne L. v. N.M. Dep’t of
Human Servs. , 959 F.2d 883, 892 (10th Cir. 1992).

-27-
only a few exceptions justified by “exceptional circumstances,” Johnson v. United

States , 333 U.S. 10, 13-14 (1948), has become a “cardinal principle” of Fourth

Amendment jurisprudence, Mincey v. Arizona , 437 U.S. 385, 390 (1978). 17

Further, the only situation in which the Supreme Court has extended the “special

needs” doctrine to an individual’s home occurred in Griffin , where the defendant

was a probationer. See 483 U.S. 868 (1989); cf. Camara v. Municipal Court , 387

U.S. 523, 540 (1967) (holding that a warrant was needed to perform an

administrative search upon private property). Consistent with these principles, in

Franz v. Lytle , we held that police officers could not enter a house to investigate

potential child abuse without a warrant. 997 F.2d 784, 791-92 (10th Cir. 1993);

cf. Calabretta v. Floyd , 189 F.3d 808, 817 (9 th Cir. 1999) (denying qualified

immunity on similar facts); Good v. Dauphin County Social Servs. , 891 F.2d

1087, 1094 (3d Cir. 1989) (same).

On the other hand, we have made certain statements, albeit in dicta , that

could be construed as drawing distinctions between (1) child-abuse investigations

and other types of investigations and (2) social workers and law-enforcement

17
At least two cases involving the entry of social workers or police officers
into a home to inspect or remove a child have upheld the warrant requirement.
Good v. Dauphin County Soc. Servs. , 891 F.2d 1087, 1093-94 (3d Cir. 1989);
Calabretta v. Floyd , 189 F.3d 808, 813 (9th Cir. 1999) (decided after May 1999).

-28-
officers. 18
For example, in Snell v. Tunnell , in the context of a warrantless search

of a house during a child-abuse investigation, we stated: “[W]e do not have

occasion to decide whether a search of a private home without a warrant or

probable cause violates the fourth amendment. Courts have reached differing

results concerning the difficult issue of the scope of the fourth amendment

protection in the context of a child abuse investigation.” 19
920 F.2d 673, 697

(10th Cir. 1990) (citations omitted). Further, in Franz , we suggested that the

Fourth Amendment’s strictures might apply differently to social workers:

[A] social worker’s principal focus is the welfare of the child. While
a criminal prosecution may emanate from the social worker’s
activity, that prospect is not a part of the social worker’s cachet.
This distinction of focus justifies a more liberal view of the amount
of probable cause that would support an administrative search.

997 F.2d at 791. 20
Taken together, Franz and Snell injected a degree of

18
This latter distinction, of course, runs contrary to the general principle
under which we focus on the function being performed by the state actor, rather
than her particular job title, in conducting our immunity analysis.

Subsequently, in Franz , we upheld the warrant requirement, although the
19

defendant was a police officer rather than a social worker. 997 F.2d at 791-92
(holding that police officers could not enter a house to investigate potential child
abuse without a warrant).
20
Other statements in Franz alluded to the possibility of the special needs
doctrine applying in the context of child-abuse investigations. See, e.g., Franz,
997 F.2d at 789 (“[Social workers] [might] be hindered in their investigations of
alleged child abuse by a warrant or probable cause requirement.”); id. at 791
(“‘[S]pecial governmental needs, beyond the normal need for law enforcement . . .
[could] provide[] the reasonableness component for the caseworker’s conduct.’”)
(continued...)

-29-
uncertainty into an otherwise staple rule of Fourth Amendment jurisprudence:

absent exigent circumstances, the state may not enter an individual’s home

without a warrant. 21
Payton , 445 U.S. at 590. In other words, in light of these

cases, “the constitutional question [regarding the warrant requirement] presented

by this case is by no means open and shut.” 22
Wilson v. Layne , 526 U.S. 603, 615

(1999).

Nevertheless, we cannot say that, in light of these cases, a reasonable state

actor could conclude that the Fourth Amendment allowed a warrantless home

entry and seizure of a child absent something approaching probable cause 23
to

20
(...continued)
(citation omitted).
21
In Snell, we noted that the circuits are split on the scope of a social
worker’s power to act without a warrant. 920 F.2d at 697. Our broad language
notwithstanding, the circuits are split over the power of a social worker to inspect
a child without a warrant, not over the power to enter a home without a warrant –
thus implicating the strong constitutional right against unreasonable intrusions
into the home – and remove a child without a warrant – thus implicating the
parental right to keep the family together.
22
Significantly, in Hidahl v. Gilpin County Department of Social Services,
we granted qualified immunity to social workers who removed a child from a
home without a warrant, without considering the constitutionality of the conduct
in question. 938 F.2d 1150, 1153 (10th Cir. 1991).
23
Lest this statement be taken out of context, based on our earlier
discussion in section II(B)(1), supra, henceforth, the law is now clearly
established that, absent probable cause and a warrant or exigent circumstances,
social workers may not enter an individual’s home for the purpose of taking a
child into protective custody.

-30-
believe that: (1) the child’s health or safety was at risk, 24
and (2) this risk was

due to the child’s presence in the home . In this case, however, the district court

specifically concluded that:

[A]n objective, reasonable state social worker could have reasonably
believed, based on the information the DCFS defendants possessed at
the time of removal, that there was substantial cause to believe that
there was a substantial danger to Rusty’s health or safety and that
Rusty’s health or safety could not be protected without removing him
from his parents’ custody.

Dist. Ct. Order at 20 (emphasis added). The district court went on to conclude

that “there was substantial cause to believe that Rusty’s presence in his own home

was the reason for his particularly troubling and persistent condition of being

restrained to a wheelchair and having to be fed through an intravenous tube even

though he was not physically handicapped.” Dist. Ct. Order at 21 (emphasis

added). The record in this case supports the district court’s findings. 25

Accordingly, based on these findings, we hold that defendants’ warrantless entry

24
We recognize that immediate risk to safety would give rise to “exigent
circumstances.” Anderson, 981 F.2d at 1567 (exigent circumstances not present
unless there is an “immediate need to protect [the officer’s lives or [the lives of]
others”). In this case, however, as we discussed supra, even though the
defendants reasonably concluded that Rusty’s health was at risk, the risk was not
immediate. Accordingly, the exigent circumstances exception to the warrant
requirement under the Fourth Amendment is inapplicable.
25
We realize that the district court made these findings in the context of
determining whether defendants complied with Utah Code Ann. § 78-3a-301.
Nevertheless, section 78-3a-301’s “substantial cause” requirement is sufficiently
similar to the standard articulated herein for the district court’s findings to
support our conclusion.

-31-
and seizure did not violate clearly established law under the Fourth Amendment

as it stood on May 28, 1999.

b. Plaintiffs’ Fourteenth Amendment claim (Count 5)

In Malik v. Arapahoe County Dep’t of Soc. Servs. , we held “that it [is]

clearly established law that, except in extraordinary circumstances, a parent has a

liberty interest in familial association and privacy that cannot be violated without

adequate pre-deprivation procedures.” 191 F.3d 1306, 1315 (10th Cir. 1999)

(citations omitted). 26
In this case, defendants afforded the Roskas no process

prior to removing Rusty. Defendants did not even attempt to obtain an ex parte

order. Further, defendants point to no extraordinary circumstances that would

justify the complete absence of pre-deprivation procedural safeguards. Although

“emergency circumstances which pose an immediate threat to the safety of a

child” might justify the absence of pre-deprivation procedures, Hollingsworth ,

110 F.3d at 739, in this case, Rusty’s health and safety were not in immediate

danger. Thus, regarding plaintiffs’ claim under the Fourteenth Amendment,

clearly established law plainly put defendants on notice that their conduct violated

the Constitution.

c. Summary

Significantly, one of the defendants in Malik was a social worker. See
26

191 F.3d at 1310.

-32-
 Based on the foregoing, we conclude that defendants’ warrantless entry and

seizure did not violate clearly established law under the Fourth Amendment as it

stood on May 28, 1999; thus, defendants are entitled to qualified immunity on

plaintiffs’ claim alleging warrantless entry and seizure. On the other hand,

defendants’ conduct did violate clearly established law under the Fourteenth

Amendment as of May 29, 1999. Accordingly, we proceed to consider the

objective legal reasonableness of defendants’ conduct in light of clearly

established law under the Fourteenth Amendment.

2. Whether a reasonable state actor would have understood the

conduct in question to be violative of the Constitution.

The next step in the analysis is to consider the “‘ objective legal

reasonableness ’ of the [state actor’s] action[s], assessed in light of the legal rules

that were ‘clearly established’ at the time it was taken.” Anderson , 483 U.S. at

639 (emphasis added) (citations omitted). Once the district court determines that

the right at issue was “clearly established,” it becomes defendant’s burden to

prove that her conduct was nonetheless objectively reasonable. Cannon v. City &

County of Denver , 998 F.2d 867, 874 (10th Cir. 1993).

In considering the “reasonable state actor,” we must keep in mind that

qualified immunity precludes the imposition of liability for “all but the plainly

incompetent or those who knowingly violate the law.” Malley v. Briggs , 475 U.S.

-33-
335, 341 (1986) (emphasis added). Where “officers of reasonable competence

could disagree on th[e] issue, immunity should be recognized.” Id. at 341.

At the same time, where the right is clearly established, a defendant should

only “rarely” be able to succeed with a qualified immunity defense. 27
V-1 Oil Co.

v. Wyoming Department of Environmental Quality , 902 F.2d 1482, 1488 (10th

Cir. 1990). “The circumstances must be such that the defendant was so

‘prevented’ from knowing that his actions were unconstitutional that he should

not be imputed with knowledge of a clearly established right.” Cannon , 998 F.2d

at 874 ( citation and footnote omitted).

The objective legal reasonableness of the officer’s actions is a legal

question. Sharrar v. Felsing , 128 F.3d 810, 828 (3d Cir. 1997). But where the

“historical facts material to [that] issue are in dispute [there] . . . [is] an issue for

the jury.” 28
Id.

27
As we noted in Cannon v. City & County of Denver , “officials are
[generally] held to have constructive knowledge of established law.” 998 F.2d
867, 874 n.6 (10th Cir. 1993) (citation omitted).
28
As the Fifth Circuit has noted:

It must be recognized that even though [Hunter v. Bryant, 502 U.S.
224 (1991)] diminished the jury’s role in qualified immunity cases, it
did not entirely abolish it. Rule 56 still has vitality in qualified
immunity cases if the underlying historical facts in dispute . . . are
material to the resolution of the questions whether the defendants
acted in an objectively reasonable manner in view of the existing law
and facts available to them.
(continued...)

-34-
 a. Reliance on a statute

In considering the “objective legal reasonableness” of the state officer’s

actions, one relevant factor is whether the defendant relied on a state statute,

regulation, or official policy that explicitly sanctioned the conduct in question. 29

See Wilson , 526 U.S. at 617; Lederman v. United States , 291 F.3d 36, 47 (D.C.

Cir. 2002); Grossman v. City of Portland , 33 F.3d 1200, 1209-10 & n.20 (9th Cir.

28
(...continued)

Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993) (citation
omitted).
29
As the Ninth Circuit noted, when Chief Justice Warren first articulated
this principle, it was in the context of the subjective test that preceded Harlow.
Grossman, 33 F.3d at 1209 (citing Pierson v. Ray, 386 U.S. 547 (1967)). The
court, however, went on to note the principle’s continuing viability:

Even though the Supreme Court subsequently replaced the subjective
“good-faith” qualified immunity standard applied in Pierson with an
objective “reasonableness” inquiry, courts have continued to adhere
to the central principle enunciated in that case: where a police
officer has probable cause to arrest someone under a statute that a
reasonable officer could believe is constitutional, the officer will be
immune from liability even if the statute is later held to be
unconstitutional.

Id. (citations and footnotes omitted). Later in its opinion, the court further
elaborated on the rationale for this principle: “[W]hen a city council has duly
enacted an ordinance, police officers on the street are ordinarily entitled to rely on
the assumption that the council members have considered the views of legal
counsel and concluded that the ordinance is a valid and constitutional exercise of
authority.” Id.

-35-
1994) (citing cases); Malachowski v. City of Keene , 787 F.2d 704, 713-14 (1st

Cir. 1986); see generally 1B M ARTIN A. S CHWARTZ & J OHN E. K IRKLIN , S ECTION

1983 L ITIGATION : C LAIMS AND D EFENSES § 9.19 (1997 & Supp. 2003). Of course,

an officer’s reliance on an authorizing statute does not render the conduct per se

reasonable. 30
Cf. Malley , 475 U.S. at 345-46 (fact that officer applied for a

warrant based on facts he believed to be true does not render conduct per se

“objectively reasonable”). Rather, “the existence of a statute or ordinance

authorizing particular conduct is a factor which militates in favor of the

conclusion that a reasonable official would find that conduct constitutional.”

Grossman , 33 F.3d at 1209.

In this case, the district court concluded that defendants were entitled to

qualified immunity, based on defendants’ reliance on Utah Code Ann. § 78-3a-

301. We disagree. Section 78-3a-301 does not authorize removal absent pre-

deprivation procedures. Thus, reliance on section 78-3a-301 alone could not

render the defendants’ conduct objectively reasonable, insofar as the statute did

not authorize the unconstitutional conduct in question.

The defendants, however, in their petition for rehearing, urge us to consider

30
For example, “[w]here a statute authorizes official conduct which is
patently violative of fundamental constitutional principles, an officer who
enforces that statute is not entitled to qualified immunity.” Grossman , 33 F.3d at
1209.

-36-
the effect of Utah Code Ann. §§ 62A-4a-202.1 and 62A-4a-202.2 on the qualified

immunity analysis in this case. Section 62A-4a-202.2 provides only for post -

deprivation measures in child removals made pursuant to section 62A-4a-202.1.

Defendants contend that they were acting pursuant to §§ 62A-4a-202.1 and 62A-

4a-202.2 when they committed the constitutional violations in question.

We decline petitioners’ invitation for two reasons. First, the district court

did not rely on either provision in finding qualified immunity; thus, the more

prudent course is to allow the district court to consider the effect of the two

statutes in the first instance. Cf. S.E.C. v. Cochran , 214 F.3d 1261, 1269 (10th

Cir. 2000). Second, in light of the nature of the inquiry, it would be impossible to

consider the question on the record before us.

On this latter point, we make the following observations. First, the

presence of a statute is not relevant to the question of whether the law is “clearly

established.” Cf. V-1 Oil , 902 F.2d at 1488 n.5 (recognizing that we should not

“refer to legal advice the defendant received when we decide whether or not the

governing law was clearly established”). Rather, a state officer’s reliance on a

statute is one factor to consider in determining whether the officer’s actions were

objectively reasonable, Wilson , 526 U.S. at 617, keeping in mind that the

overarching inquiry is one of “fair notice,” Hope , 122 S.Ct. at 2515.

Second, in considering the relevance of a statute under a qualified-

-37-
immunity analysis, the appropriate inquiry is not whether a reasonable state

officer could have concluded that the statute authorized the unconstitutional

conduct in question. Rather, a court must consider whether reliance on the statute

rendered the officer’s conduct “objectively reasonable,” considering such factors

as: (1) the degree of specificity with which the statute authorized the conduct in

question; (2) whether the officer in fact complied with the statute; 31
(3) whether

the statute has fallen into desuetude; 32 and (4) whether the officer could have

reasonably concluded that the statute was constitutional. 33

Based on the above, we reverse the district court’s conclusion, insofar as it

31
In this case, removal pursuant to section 62A-4a-202.1 required that three
conditions be met: (1) the services caseworker must have “substantial cause to
believe that any of the factors described in Section 78-3a-301 exist”; (2) there are
no other “services reasonably available . . . which, if provided to the minor’s
parent or to the minor, would eliminate the need to remove the minor from the
custody of his parent”; and (3) the services caseworker must be accompanied by a
peace officer, unless one is not reasonably available. Utah Code Ann. § 62A-4a-
202.1. We leave it to the district court on remand to consider whether defendants
in fact relied on Utah Code §§ 62A-4a-202.1 and 202.2 (as opposed to section 78-
3a-301), and whether defendants complied with the statutory provisions
(recognizing that the district court’s findings under section 78-3a-301 likely
address this question, at least in part).
32
The Ninth Circuit in Grossman highlighted this consideration: “We do
not deal here with an ordinance which has fallen into desuetude. An officer
enforcing such an enactment is not necessarily entitled to rely on the assumption
that it continues to be consistent with the current state of constitutional law.” 33
F.3d at 1209 n.19.
33
As we noted earlier, where a statute authorizes conduct that is “patently
violative of fundamental constitutional principles,” reliance on the statute does
not immunize the officer’s conduct. See Grossman , 33 F.3d at 1209.

-38-
relied solely on Utah Code Ann. § 78-3a-301. On remand, the district court may

consider the effect of Utah Code Ann. §§ 62A-4a-202.1 and 62A-4a-202.2 on

defendants’ claimed entitlement to qualified immunity, in accordance with the

preceding.

b. Advice of counsel

In V-1 Oil , we held that “reliance on the advice of counsel in certain

circumstances [can] rise[] to the level of extraordinary circumstances” sufficient

to justify a grant of qualified immunity. 902 F.2d at 1488. “Whether reliance

upon legal advice ‘bars our imputation to [the defendant] of constructive

knowledge concerning the laws allegedly violated by his conduct’ depends upon

the circumstances of each case.” Id. at 1489 (citation omitted). Relevant factors

include: (1) how unequivocal and specific the advice was; (2) how complete the

information provided to the attorney giving the advice was; (3) the prominence

and competence of the attorney; and (4) the time between the dispersal of the

advice and the action taken. Id.

In V1-Oil , we granted the state officer qualified immunity, concluding that

the officer’s reliance on advice of counsel “prevented [him] . . . from knowing the

relevant legal standard,” even though the relevant Fourth Amendment principle

was “clearly established.” Id. at 1488-89. Specifically, we stated:

We hold that a reasonable officer in [defendant’s] position – that is,
an officer who conducts a warrantless search on the same day he was

-39-
 advised by fully informed, high-ranking government attorneys that a
particular statute, which had not yet been tested in any court,
lawfully authorized that particular search – should not be expected to
have known that the search was unconstitutional.

Id. at 1489.

In this case, the district court alternatively concluded that the defendants

were entitled to qualified immunity based on their reliance on advice of counsel.

For the reasons set forth below, we reverse and remand.

First, the district court again based its decision on Utah Code § 78-3a-

301, 34 which, as discussed supra , does not authorize removal without pre-

deprivation procedures. 35
Second, based on the record before us, we cannot

determine whether the district court was correct in concluding that Petersen’s

advice related specifically to the conduct in question: 36
removing Rusty from his

home without any pre-deprivation procedures. Finally, although the district court

concluded that the advice “was specifically tailored to the facts giving rise to this

34
According to the district court’s opinion, “[Defendant] Peterson, an
assistant Utah attorney general representing DCFS in the child protection
division, . . . advised [Morrison and Sneddon] that it would be lawful to remove
Rusty based on the information they possessed[,]. . . bas[ing] his opinion on Utah
Code Ann. § 78-3a-301.” Dist. Ct. Order at 3.
35
Although defendants now claim that Peterson’s advice was also based on
Utah Code §§ 62A-4a-202.1 and 62A-4a-202.2 , again, we think it best to allow
the district court to consider this question in the first instance.
36
See Dist. Ct. Order at 26 .

-40-
controversy,” 37
neither the district court opinion nor the record indicate the

specific facts upon which Defendant Peterson relied in approving removal.

III. Conclusion

In summary, we hold that plaintiffs have adequately alleged that defendants

violated their constitutional rights under the Fourteenth Amendment when, in the

absence of extraordinary circumstances, they entered the Roskas’ house and

removed Rusty from his parents’ custody and care without notice and a hearing

(Count 5). We hold that the district court was correct in granting defendants’

motion for summary judgment on the remainder of the plaintiffs’ claims.

On remand the district court should first determine which defendants are

still properly joined in the matter before proceeding further. The district court

must then determine whether the defendants are entitled to qualified immunity on

Count 5.

We conclude by noting, as we did in Franz , that “[w]e must further

underscore the defendant’s motive to protect the child . . . does not vitiate

plaintiffs’ [constitutional] rights. That motive, however, may enter the calculus

of the damages, if any, that his actions justify.” 997 F.2d at 793.

This case is AFFIRMED in part, REVERSED in part, and REMANDED for

further proceedings consistent with this opinion.

37
See Dist. Ct. Order at 26 .

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