Stephen Sjurset v. Charles Button

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STEPHEN SJURSET, personally and as No. 13-35851
next friend for N.S. and T.B.,
Plaintiff-Appellee, D.C. No.
6:12-cv-00282-
v. AA

CHARLES BUTTON, Stayton City
Police Department, in his individual OPINION
and official capacity; MICHAEL
MEEKS, Stayton City Police
Department, in his individual and
official capacity; SCOTT MUMEY,
Stayton City Police Department, in
his individual and official capacity,
Defendants-Appellants,

and

MARY ANNE MILLER, in her
individual capacity; DYAN
BRADLEY, in her individual capacity;
CITY OF STAYTON, a municipal
entity,
Defendants.

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
2 SJURSET V. BUTTON

Argued and Submitted
October 14, 2015—Portland, Oregon

Filed December 4, 2015

Before: Ferdinand F. Fernandez, Ronald Lee Gilman,*
and Carlos T. Bea, Circuit Judges.

Opinion by Judge Gilman

SUMMARY**

Civil Rights

The panel reversed the district court’s order on summary
judgment denying qualified immunity to police officers, and
remanded in an action brought pursuant to 42 U.S.C. § 1983
in which plaintiff alleged that the officers took custody of his
children without reasonable cause or a court order, in
violation of plaintiff’s Fourteenth Amendment right to
familial association and the children’s Fourth Amendment
right to be free from unreasonable seizure.

The panel first rejected plaintiff’s contention that pursuant
to Johnson v. Jones, 515 U.S. 304 (1995), disputed factual
issues precluded it from hearing the officers’ appeal from the

*
The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 SJURSET V. BUTTON 3

district court’s order. The panel held that Johnson was
inapplicable because this appeal was based on undisputed
facts as they related to a purely abstract issue of law—that is,
whether the officers violated clearly established law when
they acted in reliance on the determination made by
Department of Human Services officials that the children
were in imminent danger.

The panel held that the officers were not incompetent in
believing that they were legally authorized to act in reliance
on the Department of Human Services’ determination that the
children were in imminent danger. The panel further held
that even if the officers were mistaken in their belief that they
could remove the children at the direction of the Department
of Human Services without court authorization, their actions
were objectively reasonable under the circumstances.
Accordingly, the panel held that the officers were entitled to
qualified immunity and remanded the case to the district court
for entry of judgment in their favor.

COUNSEL

Edward S. McGlone III, Lake Oswego, Oregon, for
Defendants-Appellants.

Mikel Ross Miller, Bend, Oregon, for Plaintiff-Appellee.
4 SJURSET V. BUTTON

OPINION

GILMAN, Senior Circuit Judge:

In February 2010, three police officers from the Stayton
City Police Department (the Stayton officers), acting at the
direction of officials from the Oregon Department of Human
Services (DHS), entered the home of Stephen Sjurset and
assisted in removing his two young children from the
residence without a court order. Sjurset subsequently filed an
action on behalf of himself and his children against the
Stayton officers, four DHS officials, and the City of Stayton
pursuant to 42 U.S.C. § 1983. He alleged that DHS and the
Stayton officers took custody of his children without
reasonable cause to believe that the children were in
imminent danger of serious bodily injury, thus violating his
Fourteenth Amendment right to familial association and the
children’s Fourth Amendment right to be free from
unreasonable seizure.

At the summary-judgment stage of the case, the district
court dismissed Sjurset’s claims against the City of Stayton
and the two DHS officials who were not involved in the
decision to remove the children. It rejected claims by the
Stayton officers and the two remaining DHS officials that
they were entitled to qualified immunity. Only the Stayton
officers appeal. For the reasons set forth below, we
REVERSE the decision of the district court with regard to
the Stayton officers and REMAND the case to the district
court for entry of judgment in their favor.
 SJURSET V. BUTTON 5

I. BACKGROUND

A. Factual background

On February 18, 2010, officials at DHS received a phone
call from a medical doctor’s office reporting that Jessica
Borchers—the significant other of Stephen Sjurset—had
tested positive that day for methamphetamine, amphetamines,
and marijuana. Borchers, who was pregnant at the time, lived
in Stayton, Oregon with Sjurset and her two- and five-year-
old children, N.S. and T.B. Sjurset is N.S.’s father and T.B.’s
legal guardian.

The incident was not the first of its kind. In 2007,
Borchers also tested positive for using methamphetamine
while pregnant with her second child, N.S. As a result of that
prior incident, both Borchers and Sjurset were convicted of
endangering the welfare of a minor under Or. Rev. Stat.
§ 163.575. T.B. was placed in temporary foster care until
Borchers successfully completed a drug-treatment program.

Acting on the newly registered complaint, DHS
immediately initiated an investigation. DHS case worker
Caryn Moller-Mata attempted to meet with Borchers and
Sjurset to verify the health and safety of the two children.
She first contacted Borchers on Friday, February 19, 2010.
Borchers said that she was out of town and that Sjurset was
taking care of the children. Moller-Mata then made several
attempts to contact Sjurset, but received no response. At the
end of the day, when she was unable to locate or meet with
either parent, Moller-Mata called the Stayton City Police
Department and requested that it dispatch officers to Sjurset’s
house over the weekend to conduct an in-person welfare
check on N.S. and T.B.
6 SJURSET V. BUTTON

At approximately 9:00 p.m. on Saturday, February 20,
officers Button, Meeks, and Mumey arrived outside Sjurset’s
house. Officer Button requested to speak with Borchers and
to see the children, but Sjurset refused to let the officers
inside the house without a warrant. When Borchers appeared
at the door, however, she said that the officers could view the
children through the front window.

Unsure of what to do next, the Stayton officers contacted
DHS for further guidance. DHS dispatched an on-duty social
worker, Mary Anne Miller, to the scene. On the way to
Sjurset’s house, Miller phoned Moller-Mata and the two
discussed Sjurset’s and Borchers’s prior child-endangerment
convictions and their refusals to cooperate with the ongoing
DHS investigation. Importantly, because these events
transpired on a Saturday evening, DHS officials could not
obtain a court order authorizing the children’s removal until
the following Monday morning, which was at least 36 hours
away. Miller then contacted her supervisor, Dyan Bradley, to
evaluate the situation. They discussed Borchers’s recent
positive drug test, Sjurset’s and Borchers’s refusal to
cooperate, their prior convictions, and the risk of leaving the
children in the care of the couple for another 36 hours. In
light of these concerns, Miller and Bradley made an on-the-
spot decision to take the children into protective custody
without a court order.

All the parties are in agreement that the Stayton officers
did not participate in the decision by Miller and Bradley to
take protective custody of the children. The parties further
agree that Miller and Bradley made the protective-custody
determination prior to the Stayton officers’ entry into the
house. Finally, the record indicates that the Stayton officers
did not make their own independent judgments as to whether
 SJURSET V. BUTTON 7

there was probable cause to enter the home and remove the
children without a warrant.

In accordance with DHS’s determination, the Stayton
officers entered the house alongside Miller and removed N.S.
and T.B. The district court’s opinion notes that DHS
“concede[d] that there was no visual evidence of drug use in
the area of the house that the officials occupied while the
children were removed.” No other part of the house was
searched. N.S. and T.B. were placed into temporary foster
care and, following a “shelter hearing” two days later, DHS
obtained custody.

B. Procedural background

Sjurset brought an action on behalf of himself and his
children against the City of Stayton, the DHS officials, and
the Stayton officers under 42 U.S.C. § 1983, alleging that the
parties had (1) violated his Fourteenth Amendment right to
familial association and (2) violated the children’s Fourth
Amendment right to be free from unreasonable seizure by
removing the children in the absence of a court order or
evidence of imminent danger of serious bodily harm. He also
alleged that DHS officials Moller-Mata and Maria Randall
had presented false information at the shelter hearing, in
violation of his substantive- and procedural-due-process
rights. Id.

All the defendants moved for summary judgment on
Sjurset’s § 1983 claims, arguing that their actions did not
violate Sjurset’s or his children’s constitutional rights. The
district court granted summary judgment in favor of both the
City of Stayton and the two DHS officials who testified at the
shelter hearing. But it denied qualified immunity to Miller,
8 SJURSET V. BUTTON

Bradley, and the Stayton officers. Relevant to this appeal, the
court rejected the Stayton officers’ argument for the
following reasons:

Once the Stayton Defendants entered the
home, they apparently saw no physical
evidence suggesting that the children were in
imminent danger. Further, no defendant
suggests that Borchers was in any way under
the influence of substances, or that there was
evidence of the existence of drug
paraphernalia. Although the Stayton
Defendants argue that they did not take action
until Miller arrived on the scene and
announced she had taken custody of the
children, the Court is not convinced that
reliance on Miller was reasonable as a matter
of law, give [sic] the apparent absence of
exigent circumstances or visible signs of
imminent danger to NS and TB. Thus,
plaintiffs have successfully raised a question
of fact as to whether the Stayton Defendants
violated [the plaintiffs’] clearly established
rights by removing the children from the
home, and summary judgment in favor of the
officers is therefore inappropriate.

The Stayton officers timely filed this appeal. They argue
that the district court erred in denying them qualified
immunity because (1) the officers violated no clearly
established right of the plaintiffs when they carried out
DHS’s instructions to enter the home and remove the
children; (2) police officers are entitled to act in good faith on
the instructions of other law-enforcement officers, including
 SJURSET V. BUTTON 9

child-welfare officials, even if the basis for those instructions
is mistaken or erroneous; and (3) the Stayton officers were
not incompetent in believing that they were legally authorized
to act in reliance on DHS’s determination.

II. ANALYSIS

A. Standard of review

“A grant of summary judgment is appropriate when ‘there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.’” Albino v. Baca,
747 F.3d 1162, 1168 (9th Cir. 2014) (en banc) (quoting Fed.
R. Civ. P. 56(a)), cert. denied sub nom. Scott v. Albino, 135
S. Ct. 403 (2014). In applying this standard, we “view[] the
evidence in the light most favorable to the nonmoving party.”
Burke v. Cnty. of Alameda, 586 F.3d 725, 730 (9th Cir. 2009).
“A district court’s decision denying summary judgment on
the ground of qualified immunity is reviewed de novo.”
Hopkins v. Bonvicino, 573 F.3d 752, 762 (9th Cir. 2009). We
thus review the evidence presented in the light most favorable
to Sjurset, the nonmoving party, to determine whether the
district court erred in denying qualified immunity to the
Stayton officers.

B. The law of qualified immunity

Qualified immunity “protects government officials from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Mueller v.
Auker (Mueller II), 700 F.3d 1180, 1185 (9th Cir. 2012)
(quoting Messerschmidt v. Millender, 132 S. Ct. 1235,
1244–45 (2012)) (internal quotation marks omitted). The
10 SJURSET V. BUTTON

doctrine “gives government officials breathing room to make
reasonable but mistaken judgments” and “protects ‘all but the
plainly incompetent or those who knowingly violate the
law.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). It
“makes allowance for some constitutional mistakes,” Mueller
II, 700 F.3d at 1185–86, such as “when an officer reasonably
believes that his or her conduct complies with the law,”
Pearson v. Callahan, 555 U.S. 223, 244 (2009).

A qualified-immunity analysis requires us to ascertain
(1) whether, “[t]aken in the light most favorable to the party
asserting the injury, . . . the facts alleged show the officer’s
conduct violated a constitutional right,” and (2) “whether the
law clearly established that the officer’s conduct was
unlawful in the circumstances of the case.” Saucier v. Katz,
533 U.S. 194, 201 (2001), overruled in part by Pearson,
555 U.S. 223 (holding that Saucier’s two-step sequence is not
mandatory).

In Pearson, the Supreme Court warned against beginning
with the first prong of the qualified-immunity analysis when
it would unnecessarily wade into “difficult questions” of
constitutional interpretation that “have no effect on the
outcome of the case.” 555 U.S. at 236–37; see also al-Kidd,
131 S. Ct. at 2080. The Court further emphasized that lower
courts have discretion to decide which of the two prongs to
“address[] first in light of the circumstances in the particular
case at hand.” Pearson, 555 U.S. at 236. “When qualified
immunity is asserted at the pleading stage,” for example, “the
answer to whether there was a violation may depend on a
kaleidoscope of facts not yet fully developed.” Id. at 238–39
(brackets and internal quotation marks omitted).
 SJURSET V. BUTTON 11

We therefore have discretion to apply the second prong of
the Saucier test at the outset in order to determine whether the
law governing the Stayton officers’ conduct was clearly
established. If indeed the Stayton officers did not violate
clearly established law, then we can determine that qualified
immunity is appropriate and may thus dispose of the case
without undertaking an analysis of whether a constitutional
violation occurred in the first instance.

In sum, we will heed the Supreme Court’s admonition
against prematurely attempting to define the particular
constitutional violation in question in this case. This is
especially appropriate here because the district court has
already determined that “a number of factual issues . . .
remain unresolved” regarding the circumstances under which
the DHS officials made their protective-custody decision.
Recognizing the “general rule of constitutional avoidance,”
id. at 241, we now turn to the second prong of the Saucier
test.

In determining whether a government official’s conduct
violates clearly established law, the test is whether, “at the
time of the challenged conduct, the contours of a right are
sufficiently clear that every reasonable official would have
understood that what he is doing violates that right. We do
not require a case directly on point, but existing precedent
must have placed the statutory or constitutional question
beyond debate.” Al-Kidd, 131 S. Ct. at 2083 (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (brackets,
citation, and internal quotation marks omitted). The Supreme
Court has “repeatedly told courts—and the Ninth Circuit in
particular—not to define clearly established law at a high
level of generality.” Id. at 2084 (citation omitted). “The
inquiry . . . must be undertaken in the light of the specific
12 SJURSET V. BUTTON

context of the case, not as a broad general proposition.”
Mueller II, 700 F.3d at 1185 (quoting Brosseau v. Haugen,
543 U.S. 194, 198 (2004)) (internal quotation marks omitted).

Nor does our analysis end there. “[E]ven if the violated
right was clearly established, [the Supreme Court] recognized
that it may be difficult for a police officer fully to appreciate
how the legal constraints apply to the specific situation he or
she faces. Under such a circumstance, if the officer’s mistake
as to what the law requires is reasonable, . . . the officer is
entitled to the immunity defense.” Blankenhorn v. City of
Orange, 485 F.3d 463, 471 (9th Cir. 2007) (alteration in
original) (quoting Motley v. Parks, 432 F.3d 1072, 1077 (9th
Cir. 2005) (en banc), overruled in part on other grounds by
United States v. King, 687 F.3d 1189 (9th Cir. 2012) (en
banc)) (brackets and internal quotation marks omitted).

C. Factual issues do not preclude us from hearing the
Stayton officers’ appeal

In denying summary judgment for the Stayton officers,
the district court concluded that there was sufficient evidence
to create a genuine dispute as to whether reasonable officers
could have believed that Sjurset’s children were in imminent
danger of serious bodily injury at the time of removal. Given
this conclusion, Sjurset contends that we should refrain from
deciding the reasonableness of the Stayton officers’ belief
that the children were in such imminent danger that their
removal was justified. He cites in support the case of
Johnson v. Jones, 515 U.S. 304 (1995), in which the Supreme
Court held that “a defendant, entitled to invoke a qualified
immunity defense, may not appeal a district court’s summary
judgment order insofar as that order determines whether or
 SJURSET V. BUTTON 13

not the pretrial record sets forth a ‘genuine’ issue of fact for
trial.” Id. at 319–20.

As we held in Ram v. Rubin,

we reiterate that we do not have jurisdiction to
determine the factual issue whether a
reasonable officer could have believed that,
based on the information known to [the
officer], seizing Ram’s children was lawful.
The district court denied [the officer]
summary judgment because the pretrial record
indicated that genuine issues of material fact
existed. This ends our inquiry with regard to
[the officer’s] appeal.

118 F.3d 1306, 1311 (9th Cir. 1997).

Sjurset thus makes a compelling argument that would
preclude our ability to consider the factual issues regarding
whether seizing Sjurset’s children was lawful. As applied to
the appeal before us, however, Sjurset’s argument is without
merit. To start with, the Supreme Court cabined the holding
of Johnson in a subsequent case. It clarified that even if
issues remain regarding the sufficiency of the evidence,
“summary judgment determinations are appealable when they
resolve a dispute concerning an abstract issue of law relating
to qualified immunity,” such as “whether the federal right
allegedly infringed was clearly established.” Behrens v.
Pelletier, 516 U.S. 299, 313 (1996) (quoting Johnson,
515 U.S. at 317) (brackets and internal quotation marks
omitted).
14 SJURSET V. BUTTON

We have held that the Behrens rule applies in cases
“where the appeal focuses on whether the defendants violated
a clearly established law given the undisputed facts.” Knox
v. Sw. Airlines, 124 F.3d 1103, 1107 (9th Cir. 1997). This is
particularly important in the qualified-immunity context
because “[i]mmunity ordinarily should be decided by the
court long before trial.” Hunter v. Bryant, 502 U.S. 224, 228
(1991).

Sjurset correctly points out that Johnson would preclude
us from determining the reasonableness of the DHS officials’
actions based on the facts that remain in dispute. But
Johnson is inapplicable here because this appeal is based on
undisputed facts as they relate to a purely “abstract issue of
law”—that is, whether the Stayton officers violated clearly
established law when they acted in reliance on the DHS
officials’ determination. The district court explicitly
acknowledged that the facts concerning the Stayton officers’
actions are not in dispute.

What the district court did find in dispute—namely, the
number of calls that Moller-Mata made to Sjurset and
Borchers on the day before the welfare check, the nature of
Borchers’s drug abuse, and whether viewing the children
through a window could reasonably give rise to a showing of
imminent danger—do not form the basis of the Stayton
officers’ appeal. These disputed facts might well apply to the
reasonableness of the DHS officials’ protective-custody
determination, but they do not apply to whether the Stayton
officers violated clearly established rights of the plaintiffs by
relying on the DHS officials’ protective-custody
determination.
 SJURSET V. BUTTON 15

In addition, the district court noted that the parties all
agreed that DHS, and not the Stayton officers, made the
decision to take protective custody of the children. There is
no dispute that the Stayton officers entered Sjurset’s
residence and assisted in the children’s removal in reliance on
that decision. Finally, no one disputes that, under Oregon
law, DHS has the statutory authority to take protective
custody “[w]hen [a] child’s condition or surroundings
reasonably appear to be such as to jeopardize the child’s
welfare.” Or. Rev. Stat. § 419B.150(1)(a). These undisputed
facts provide a sufficient basis to determine whether the
Stayton officers’ reliance on DHS’s determination violated
any clearly established right of the plaintiffs. An analysis
based on these facts is therefore appropriate. See Knox,
124 F.3d at 1106–07.

D. The Stayton officers did not violate clearly established
law

Under the framework set forth above, we now focus on
whether, on February 20, 2010, the law clearly established
that the Stayton officers could not act pursuant to DHS’s
protective-custody determination in entering Sjurset’s house
and removing the children without a court order. Sjurset
contends that his Fourteenth Amendment right to familial
association is clearly established, pointing to our holding in
Wallis v. Spencer that

[o]fficials may remove a child from the
custody of its parent without prior judicial
authorization only if the information they
possess at the time of the seizure is such as
provides reasonable cause to believe that the
child is in imminent danger of serious bodily
16 SJURSET V. BUTTON

injury and that the scope of the intrusion is
reasonably necessary to avert that specific
injury.

202 F.3d 1126, 1138 (9th Cir. 1999).

Furthermore, as to the Fourth Amendment claim, Sjurset
argues that the Stayton officers should have known that
clearly established law permits a warrantless entry into a
home only if an exception to the warrant requirement applies,
such as emergency, exigency, or consent. See Espinosa v.
City & Cnty. of San Francisco, 598 F.3d 528, 533 (9th Cir.
2010). Sjurset contends that, under the facts alleged, the
DHS officials could not have reasonably concluded that the
children were in imminent danger during the 36 hours that
would have passed before the courts reopened Monday
morning. By extension, he argues, the Stayton officers’
actions based on this determination violated his and his
children’s constitutional rights.

Sjurset points to our decision in Wallis to argue that
clearly established law prohibited the officers from removing
the children unless they were in imminent danger. See
202 F.3d at 1138. In Wallis we denied summary judgment to
the City of Escondido when its police officers entered a
family’s house at midnight, interviewed the family’s children,
and took custody of the children based on a purported
“pickup order” from the state’s child-welfare agency. Id. at
1132–34. In actuality, however, “no [protective-custody]
order ever existed and [the child-welfare agency] had not yet
even reached a decision about whether to seek protective
custody of the children.” Id. at 1133.
 SJURSET V. BUTTON 17

The police officers’ actions in Wallis are therefore readily
distinguishable from the case at hand in two important ways.
First, Wallis involved a factual dispute whether the child-
welfare-agency officials had actually issued an order to take
protective custody. Id. at 1133–35. Second, the police in
Wallis acted independently without verifying the existence of
the purported order. Id. They therefore acted not in reliance
on the child-welfare agency, but instead in the absence of the
agency’s direction.

In the present case, the exact opposite is true—the Stayton
officers acted not independently of, but pursuant to, the
protective-custody determination by DHS. The Stayton
officers traveled to Sjurset’s residence to conduct a welfare
check at the behest of DHS. When Sjurset denied their entry,
the Stayton officers did not take matters into their own hands
or make their own independent judgments, as the Wallis
officers had; instead, they called DHS for additional
guidance, and Miller was dispatched to the scene. Thus,
unlike the Wallis officers, the Stayton officers were careful
not to take any action that was not first authorized by DHS.
In addition, and unlike in Wallis, Miller and Bradley made
their protective-custody determination in the midst of the
ongoing welfare check, when the Stayton officers were
physically present, and the Stayton officers accompanied
Miller as she explained to Sjurset and Borchers the rationale
for the determination. The authenticity of the determination
was therefore readily verifiable.

In light of these obvious distinctions, Wallis falls short of
clearly establishing that reasonable officers in the Stayton
officers’ situation would have understood that they had a
constitutional responsibility to second-guess DHS’s
protective-custody determination. Such second-guessing
18 SJURSET V. BUTTON

would have required the officers either to disrupt or to refuse
to take part in the entry and removal of Sjurset’s children. To
be sure, if the Stayton officers had participated in the decision
to take protective custody of Sjurset’s children, then our
precedent in Wallis and similar cases would clearly establish
that the officers could not do so without a reasonable basis for
believing that the children were in imminent danger. See,
e.g., Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc.
Servs., 237 F.3d 1101, 1108–09 (9th Cir. 2001) (holding that
the imminent-danger exception applies to police officers and
social workers who make protective-custody decisions). But
here the police officers did not participate in such a decision;
they instead relied on DHS’s determination.

Sjurset further contends that the Stayton officers’ role as
“integral participants” in the entry and removal is enough to
trigger their liability for any violations of Sjurset’s
constitutional rights. To support this theory, Sjurset relies on
Boyd v. Benton County, 374 F.3d 773 (9th Cir. 2004). In
Boyd, we held that officers who provided backup during a
search in which one officer threw a lethal “flash-bang” device
into a dark room were “integral participant[s]” for the
purpose of the plaintiff’s excessive-force claim. Id. at 780.
We noted that the supporting officers did not physically
throw the device, but concluded that the plaintiff had
nevertheless satisfied the first prong of the Saucier test
because the officers “stood armed behind” the acting officer,
were “aware of the decision to use the flash-bang” device,
and “did not object to it.” Id.

But Sjurset’s reliance on Boyd is misplaced both factually
and legally. As a factual matter, the officers in Boyd acted as
a collective team and were carrying out a preplanned search
operation. Id. at 777. Before the search, the officers
 SJURSET V. BUTTON 19

“gathered for a briefing” and “discussed various
circumstances surrounding the operation.” Id. Only after this
collective discussion did the supervising sergeant make the
ultimate decision to use a flash-bang device. Id. In contrast,
no facts in this case suggest that the Stayton officers were
privy to any discussions, briefings, or collective decisions
made by DHS in its protective-custody determination.

Moreover, even after the sergeant in Boyd made his
decision, the officers collectively discussed “the manner of
deploying the flash-bang . . . , taking into account the fact that
several people might be sleeping in the apartment.” Id. Boyd
thus involved a collective decisionmaking process among the
officers, with the result that all of them could be considered
“integral participants” in the execution of the plan. Id. It
does not squarely address the case at hand, wherein an
entirely separate agency—DHS—made a protective-custody
determination over which the Stayton officers had no input.

And even if we were to assume that the Stayton officers
were “integral participants” in the execution of the protective-
custody determination, Boyd would not help Sjurset’s
argument. This is because in Boyd we ultimately concluded
that—despite the existence of a constitutional violation—the
officers were entitled to qualified immunity because no
clearly established law specifically precluded the use of a
flash-bang device in the context of a search. Id. at 784
(holding that “a reasonable officer faced with these facts, and
without guidance from the courts, was not on notice that the
use of a flash-bang was unconstitutional”). Boyd thus
supports the notion that even officers who are integral
participants in an unconstitutional search are immune from
liability if the unlawfulness of the conduct is not clearly
established.
20 SJURSET V. BUTTON

In sum, neither Wallis nor Boyd clearly establishes that
the Stayton officers violated Sjurset’s constitutional rights
when they acted in reliance on DHS’s protective-custody
determination. We must therefore look elsewhere to decide
whether the officers were on notice that their conduct violated
clearly established law. Neither statute nor precedent,
however, squarely addresses the circumstances of this
particular case.

First, under the existing regulatory framework, Oregon’s
child-protection statute gives DHS authority over
“investigation and enforcement of child protection services”
in the state. Or. Rev. Stat. § 409.185(1). The statute further
empowers DHS employees and peace officers alike to take
protective custody of a child “[w]hen the child’s condition or
surroundings reasonably appear to be such as to jeopardize
the child’s welfare.” Id. § 419B.150(1)(a). Once a
protective-custody determination is made, however, the
statute does not address whether assisting officials should
conduct their own independent inquiry as to the validity of
that determination. Nor does the statute direct officers to
refuse to carry out a protective-custody determination in the
absence of a court order. See id. chs. 409, 419B. Under
existing Oregon law, therefore, the Stayton officers were not
expected to verify the legality of DHS’s decision after it was
made.

Second, there is no “robust consensus of cases of
persuasive authority” that would put the officers on notice
that they could not enter Sjurset’s residence and remove the
children pursuant to the DHS protective-custody
determination, even if that determination was flawed. See al-
Kidd, 131 S. Ct. at 2084; see also United States v. Black,
482 F.3d 1035, 1040 (9th Cir. 2007) (holding that
 SJURSET V. BUTTON 21

“conscientious” police officers “[e]rring on the side of
caution” in conducting a welfare search without consent are
entitled to immunity).

One Ninth Circuit decision in particular would be difficult
to distinguish if we were to hold that the Stayton officers’
conduct violated clearly established law. In Mueller v. Auker
(Mueller I), a mother sued a police detective for taking
custody of her sick infant without a court order, “at the behest
of hospital doctors,” despite the mother’s objections.
576 F.3d 979, 982 (9th Cir. 2009). On a second appeal, we
held that the detective’s reliance on the doctors’ medical
judgment was objectively reasonable and thus granted him
qualified immunity. We noted that, “[e]ven were we to
assume with hindsight that the [medical] assessment was
wrong, to attribute such a professional error in judgment to
Detective Rogers would be manifestly inappropriate.”
Mueller II, 700 F.3d at 1188. We further held that two police
officers acting at the direction of the detective were entitled
to qualified immunity, noting that the officers “made no
decisions at all.” Id. at 1189.

In Mueller II we noted that the district court observed that
“[t]he phrase ‘imminent danger’ has not been given any
detailed definition, either by Wallis . . . or any other case, that
could have guided” the detective. Id. at 1188. We must
therefore be cautious not to “repeat the analytical mistake we
made in Brosseau, where we approached this issue [of clearly
established law] based upon general tests and abstract
constitutional propositions instead of focusing on the precise
factual scenario confronted by the officers.” Id.

Like the two officers in Mueller who “made no decisions
at all,” id. at 1189, the Stayton officers similarly made no
22 SJURSET V. BUTTON

independent decisions regarding protective custody and
merely assisted DHS in securing the children. We thus
decline to find that the Stayton officers were either plainly
incompetent or that they knowingly violated the law when
they relied on DHS’s determination that Sjurset’s children
were in imminent danger.

To hold otherwise would place the Stayton officers in a
Catch-22 situation: either challenge DHS’s determination,
which could potentially endanger the children’s safety and
put the officers at risk of liability or discipline if harm had
befallen the children, or carry out DHS’s instructions in the
absence of a court order at the risk of being sued for violating
the children’s and the parents’ constitutional rights. The
correct answer would not be obvious to a reasonable officer.
Thus, the “contours” of the Fourteenth and Fourth
Amendment rights at issue were not clearly established in this
context. Accordingly, for the purposes of qualified
immunity, those rights did not preclude the officers’ reliance
on DHS’s determination.

The district court, however, held that Sjurset had
“successfully raised a question of fact” as to whether the
Stayton officers had violated clearly established law. Our
analysis above explains why we respectfully disagree. But
even if we were to assume that the Stayton officers did
violate clearly established law in entering the home and
removing the children at the direction of the DHS officials,
we would nevertheless conclude that the Stayton officers
acted reasonably under the circumstances and would
therefore be entitled to qualified immunity. See Blankenhorn
v. City of Orange, 485 F.3d 463, 471 (9th Cir. 2007) (noting
that “even if the violated right was clearly established, . . . if
the officer’s mistake as to what the law requires is reasonable,
 SJURSET V. BUTTON 23

. . . the officer is entitled to the immunity defense”) (second
alteration in original) (quoting Motley, 432 F.3d at 1077)
(brackets and internal quotation marks omitted).

Part of the district court’s rationale in ruling to the
contrary was because the Stayton officers “did not rely on the
word of a fellow police officer, but rather that of a DHS
worker.” But this view is contrary to well-established
precedent, which holds that “[l]aw enforcement officers and
agencies are entitled to rely on one another to a certain
extent.” Guerra v. Sutton, 783 F.2d 1371, 1375 (9th Cir.
1986) (emphases added) (holding that, in the interagency
context where “[t]he system requires reasonable cooperation
and division of labor, . . . the INS may reasonably rely on the
statement of a responsible law enforcement officer”).

The district court’s refusal to extend this reliance
principle is also undercut by Mueller II, in which we held that
the detective’s reliance on the opinions of several doctors was
objectively reasonable under the circumstances. 700 F.3d at
1188 (noting that “[r]easonableness must be judged from the
perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight . . . .” (quoting Ryburn v.
Huff, 132 S. Ct. 987, 992 (2012)) (internal quotation marks
omitted)). This reliance principle is particularly applicable
here because the officers were acting at the direction of DHS,
the very agency with subject-matter expertise and authority
to make child-welfare determinations. See Or. Rev. Stat.
§§ 409.185(1), 419B.150(1)(a).

Sjurset correctly points out, however, that an officer
cannot blindly rely on the existence of a protective-custody
determination to avoid liability. Instead, Sjurset argues, the
Stayton officers had a “duty to inquire” into the specific facts
24 SJURSET V. BUTTON

surrounding DHS’s decision to take the children into
protective custody. Sjurset supports this argument with
precedent holding that officers “must make reasonable
inquiries to determine if there is a sufficient basis for the
entry and search.” Espinosa, 598 F.3d at 535; see also
Guerra, 783 F.2d at 1375 (“An INS agent who conducts a
search or makes an arrest without knowledge of the details of
the warrant under which he presumes to act violates clearly
established law.”).

But such a duty to make reasonable inquiries is
necessarily linked to the second prong of the Saucier test, i.e.,
whether the “conduct was unlawful in the circumstances of
the case.” Saucier v. Katz, 533 U.S. 194, 201 (2001). The
reasonableness of an officer’s conduct is thus context-
sensitive and dependent upon the details known to the officer
at the time of the search.

Focusing on the case at hand, Sjurset argues that “[t]here
were no facts known to the police officers that would have
allowed them to believe the children were in danger of
imminent harm,” and “[t]here was no evidence that N.S. and
T.B. were in imminent danger of being harmed within the 36
hours that the police claim it would have taken to obtain a
court order.” But the record shows otherwise. In addition to
the fact that DHS had already made a definitive protective-
custody determination, the Stayton officers were aware that
the children’s mother had tested positive for
methamphetamine and other drugs and had previously been
convicted of child endangerment based on an incident
involving similar conduct. They also witnessed first-hand
Sjurset’s and Borchers’s refusals to permit any official from
meeting with or speaking to the children, effectively
preventing the officers from verifying the children’s safety.
 SJURSET V. BUTTON 25

Finally, the Stayton officers knew that a warrant could not be
procured for at least 36 hours, which amplified the perceived
risk of jeopardizing the children’s safety in the intervening
period. The officers therefore were not acting blindly at the
instruction of DHS; they had knowledge of the key details
that informed DHS’s determination. See Guerra, 783 F.2d at
1375 (holding that the duty to inquire requires an official to
have “knowledge of the details of the warrant” on which he
relies). In light of these circumstances, and given the
potential harm of failing to act, their reliance on DHS’s
instruction was objectively reasonable.

Further supporting the objective reasonableness of the
Stayton officers’ conduct was the fact that they had no reason
to believe that DHS’s investigation was inadequate or
incompetently performed. See Motley v. Parks, 432 F.3d
1072, 1081 (9th Cir. 2005) (en banc) (“[A]bsent some
indication to a supervisor that an investigation was inadequate
or incompetent, supervisors are not obliged to undertake de
novo investigations or to cross examine subordinates . . . .”
(quoting Cecere v. City of N.Y., 967 F.2d 826, 829 (2d Cir.
1992)) (internal quotation marks omitted)). Instead, the
Stayton officers knew that DHS had initiated an investigation
based on a reliable tip from a doctor’s office, had made
several attempts to carry out its investigation, and had been
prevented from doing so by Sjurset and Borchers.

The Stayton officers were therefore not incompetent in
believing that they were legally authorized to act in reliance
on DHS’s determination. And even if the officers were
mistaken in their belief that they could remove the children at
the direction of DHS without court authorization, their
actions were objectively reasonable under the circumstances.
26 SJURSET V. BUTTON

Accordingly, the Stayton officers are entitled to qualified
immunity.

III. CONCLUSION

For all of the reasons set forth above, we REVERSE the
judgment of the district court with regard to the Stayton
officers and REMAND the case to the district court for entry
of judgment in their favor.