Rachel Scanlon v. County of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RACHEL SCANLON; STEVEN No. 21-55999
SAWYER, individually and as
Guardian Ad Litem for K.X. and G.X.; D.C. No.
K. X., a minor; G. X., a minor, 2:18-cv-07759-
CBM-AS
Plaintiffs-Appellants,

v. OPINION

COUNTY OF LOS ANGELES;
LOURDES OLARTE; MARISOL
GONZALEZ; ANGELA
HASHIZUME,

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted June 15, 2023
Pasadena, California

Filed February 2, 2024
2 SCANLON V. COUNTY OF LOS ANGELES

Before: Jay S. Bybee and Morgan Christen, Circuit Judges,
and Eric N. Vitaliano, * District Judge.

Opinion by Judge Bybee

SUMMARY **

Social Worker Immunity

The panel affirmed in part and reversed in part the
district court’s judgment in favor of the Department of Child
and Family Services of the County of Los Angeles and
individual social workers in a 42 U.S.C. § 1983 action
arising when social workers removed minor children K.X.
and G.X. from their parents’ custody following an
anonymous report that the parents were using medical
marijuana therapy to treat K.X.’s severe autism.
The panel reversed the district court’s summary
judgment for defendants on the parents’ judicial deception
claims. The panel concluded that defendants’ application
filed in support of the warrant of removal contained
misrepresentations and omissions of fact and that a
reasonable trier of fact could find the misrepresentations
material. Defendants were not entitled to qualified

*
The Honorable Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, 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.
 SCANLON V. COUNTY OF LOS ANGELES 3

immunity because the right to be free from judicial deception
was clearly established.
The panel affirmed the district court’s judgment on the
pleadings for defendants on the parents’ Fourth Amendment
claim concerning social worker Lourdes Olarte’s interview
of G.X. at her school. Lourdes was entitled to qualified
immunity because she lacked fair notice that her conduct
was unlawful.
The panel reversed the district court summary judgment
for defendants on the parents’ claim for intentional infliction
of emotional distress, which the district court dismissed for
the same reason as the judicial deception claim. Because the
panel reversed the district court’s holding on judicial
deception claim, it also reversed the district court’s holding
on the emotional distress claim.
The panel reversed the district court’s summary
judgment for defendants on the parents’ Monell claim
because there was evidence in the record from which a jury
could find that defendants maintain a practice of omitting
exculpatory information from petitions for removal in a
manner tantamount to an official “policy of inaction.”
Finally, the panel held that the district court did not abuse
its discretion by re-reading its jury instructions, rather than
providing additional instructions, in response to a jury
question.
4 SCANLON V. COUNTY OF LOS ANGELES

COUNSEL

Joseph S. Klapach (argued), Klapach & Klapach PC,
Sherman Oaks, California, for Plaintiffs-Appellants.
Avi Burkwitz (argued) and Gil Burkwitz, Peterson Bradford
Burkwitz LLP, California, for Defendants-Appellees.

OPINION

BYBEE, Circuit Judge:

Plaintiffs Rachel Scanlon and Steven Sawyer (together,
the “Parents”) have two young children, one of whom has
severe autism. After consultation with medical
professionals, the Parents received a recommendation for
their autistic daughter to begin medical marijuana therapy.
Following an anonymous report, social workers from the
Department of Child and Family Services of the County of
Los Angeles (“DCFS” or the “Department”) investigated the
report, obtained a judicial order authorizing them to remove
both children, and placed them in foster care. Alleging
numerous deficiencies in DCFS’s investigative and removal
processes, the Parents, on their own and as guardians ad
litem for their minor children, brought suit against DCFS and
individual social workers under 42 U.S.C. § 1983.
The district court granted summary judgment for the
defendants on the majority of the Parents’ claims. Scanlon
v. County of Los Angeles, No. 18-CV-7759, 2021 WL
2420164 (C.D. Cal. May 21, 2021); Scanlon v. County of Los
Angeles, 495 F. Supp. 3d 894 (C.D. Cal. 2020). The
remaining claims went to trial, where a jury returned a
verdict for the defendants. The Parents have appealed the
 SCANLON V. COUNTY OF LOS ANGELES 5

district court’s summary judgment rulings and bring one
claim of trial error. We affirm in part and reverse in part.
I. FACTS AND PROCEEDINGS
A. Facts
The facts of this case are lengthy and sharply contested.
The Parents have two minor children who, in the interest of
anonymity, were referred to throughout the proceedings
below as K.X. and G.X. At the time of the events in
question, K.X. was nine years old; G.X. was five. 1 K.X. was
diagnosed with autism when she was two-and-a-half years
old. Because of her special needs, K.X. has received
behavioral treatment at home, school, and in outpatient
centers.
Around age five, K.X. began showing signs of
aggression, such as hitting, scratching, biting, and kicking
others. By age seven, these behaviors had turned on herself:
K.X. would often bang her head against the wall and bite
herself. These episodes grew worse and more frequent with
time. By 2017, when K.X. was nine, she would suffer
multiple bouts of aggression and self-harm every hour.
Because of her violent behavior, K.X. struggled to
participate in class, her private school canceled her after-
school activities, and she was eventually asked to leave.
The Parents engaged professionals to help K.X. cope
with her behavioral issues. Scanlon initially met with K.X.’s
pediatrician, Dr. Elaine Gutierrez. Upon learning of K.X.’s
aggression, Dr. Gutierrez prescribed Vayarin, a medication
used to treat Attention-Deficit/Hyperactivity Disorder

1
To the extent that this opinion reveals sealed information, the court
unseals that information for purposes of this disposition only.
6 SCANLON V. COUNTY OF LOS ANGELES

(“ADHD”). Dr. Gutierrez also referred K.X. to a
psychiatrist, but K.X. was unable to take the psychiatrist’s
written, spoken, and typed tests, and the referral proved
ineffective. Scanlon asked Dr. Gutierrez about trying other
ADHD medications, but Dr. Gutierrez advised against them.
In the course of her conversations with Dr. Gutierrez,
Scanlon inquired about medical marijuana as a possible
treatment for K.X. Dr. Gutierrez replied that she did not
have any experience with this approach. In February or
March 2017, Scanlon attempted to schedule an appointment
with Dr. Bonni Goldstein, a leading expert on pediatric
medical marijuana who had treated more than a thousand
autistic and epileptic children. At that time, Dr. Goldstein
had a year-long waiting list, which meant she would not be
able to offer any immediate solutions to K.X.’s behavioral
problems.
In the meantime, Scanlon got in touch with CannaKids,
an organization that provides guidance on medical cannabis
for patients of all ages, to learn more about possible
marijuana treatments. CannaKids referred Scanlon to
Dr. Peter Mendelsohn, a board-certified anesthesiologist and
pain management specialist in Los Angeles, who had some
experience treating autistic children with medical marijuana.
On July 28, 2017, Scanlon consulted Dr. Mendelsohn.
He gave K.X. a physical evaluation and concluded that she
was a good candidate for treatment. Dr. Mendelsohn gave a
recommendation for K.X. to begin using medical marijuana,
which was valid for one month and required a follow-up visit
to obtain any additional recommendations. Dr. Mendelsohn
advised patients like K.X. to start marijuana treatment at the
lowest possible dose and to watch for side effects. He
 SCANLON V. COUNTY OF LOS ANGELES 7

observed that CannaKids shared this philosophy. He did not
recommend or prescribe any particular dosage.
After obtaining Dr. Mendelsohn’s recommendation,
Scanlon ordered THC 2 oil from CannaKids. For dosing, she
worked with Janie Maedler, a dosing specialist at
CannaKids. Maedler, who lived outside California and was
not a licensed medical provider, was the mother of an autistic
child and had advised other parents with autistic children.
Maedler recommended giving K.X. 0.2 milliliters of THC
oil for a week and then noting her response. According to
Scanlon, the difference in K.X.’s behavior “was like night
and day.” Her tantrums and aggression decreased, and she
was more compliant and better behaved in school. After a
week, Maedler suggested that Scanlon slightly increase the
dosage to see if the improvements in K.X.’s behavior would
continue. Scanlon did so and thought that K.X.’s progress
was “even better.”
On August 28, 2017, K.X. had a follow-up phone call
with Dr. Mendelsohn. He recommended that she continue
the regimen and issued a second recommendation for
medical marijuana, which was valid until the following July.
K.X.’s new treatment did not go unnoticed at school.
Alida Turner, K.X.’s teacher, knew from conversations with
Scanlon that K.X. was on a new medication, although she
did not initially know she was taking medical marijuana.
Turner thought K.X. was better behaved and “more

2
“THC” stands for tetrahydrocannabinol, a compound contained in
cannabis. It is distinguished from cannabidiol (“CBD”), another
cannabis compound, which does not generally produce the psychoactive
effects of THC. See Substance Abuse & Mental Health Servs. Admin.,
Pub. No. PEP22-06-04-003, SAMHSA Advisory: Cannabidiol
(CBD)—Potential Harms, Side Effects, and Unknowns 1 (2023).
8 SCANLON V. COUNTY OF LOS ANGELES

talkative, compliant, . . . . [and] calm.” During this period,
Turner texted with Scanlon and told her, “[I]t’s working. I
can see. I can work with her better.” She reported to Scanlon
that the new medicine was “doing good” and that when K.X.
was not taking the medicine, she was “more aggressive.” At
some point, Turner learned that K.X.’s new medication was
marijuana-based.
In September, the DCFS child welfare hotline received
two separate anonymous referrals. These reported that K.X.
had arrived at school lethargic, with glazed eyes, and
apparently under the influence of marijuana. On
September 15, social worker Lourdes Olarte was assigned to
investigate the referrals. That same day, Olarte went to
K.X.’s school and spoke with Turner. Many details of this
visit are disputed. Olarte reported that Turner told her that
“school staff”—never identified—had smelled marijuana on
K.X., although Turner herself had not. Olarte further
claimed Turner told her that K.X. “appeared to be under the
influence, . . . . giggly one moment and overly calm the
next”; that K.X.’s eyes were “droopy,” and she showed
“delayed response”; that K.X. was more “mellow” and “s[at]
out during recess”; and that K.X. was “so affected by [her]
medication” that she had trouble keeping her balance and
was “unable to write her name or keep her pencil straight.”
Turner contradicted these observations in her deposition.
She claimed that she never observed K.X. behaving in an
intoxicated manner and that, if she had, she would have
called someone to report it. Turner also testified that,
although she told Olarte that K.X. was “mellow” and “giggly
one moment and overly calm the next,” she never claimed
that K.X. was “under the influence,” stumbling, that her eyes
were “droopy,” or that she was unable to write her name or
keep her pencil straight.
 SCANLON V. COUNTY OF LOS ANGELES 9

Later that same day, Olarte spoke to Scanlon at home.
The parties also disagree about what happened during this
encounter. Scanlon claims that Olarte told her there had
been a report of K.X. “having some difficulty with [her]
balance and . . . [that] someone had smelled something on
her breath.” Olarte asked directly about K.X.’s medications,
so Scanlon assumed that Olarte had learned of K.X.’s
medical marijuana treatment from her school. She recalls
showing Olarte the THC bottle and letting her handle it and
read the label. Scanlon says that she told Olarte that K.X.
was receiving medical marijuana therapy under the
supervision of Dr. Mendelsohn, a trained physician; that she
offered to send her a copy of Dr. Mendelsohn’s
recommendation via email; and that she told Olarte about
CannaKids and said Olarte could contact Maedler through
the organization’s website. Scanlon also asserts that when
Olarte expressed concerns about THC storage and safety, the
Parents purchased a lockbox that same day or the very next.
Three days after Olarte’s initial house visit, Scanlon sent her
a message in which she provided the email address of the
CEO of CannaKids and indicated that someone there would
be willing to speak with her.
Olarte paints a very different picture of her meeting with
Scanlon. She contends that Scanlon was uncooperative and
refused to divulge information about the doctor supervising
K.X.’s treatment, the dosage of the THC oil, or K.X.’s sister,
G.X., whose details were pertinent “to verify that all the
people on the referral [we]re accounted for.” Olarte also
claims that Scanlon would not let her handle the THC bottle
and instead simply “flashed it . . . and put it away.” Despite
their different recollections of this September 15 meeting,
the parties agree that Scanlon did not provide specific dosage
information at that time and that Olarte told Scanlon that the
10 SCANLON V. COUNTY OF LOS ANGELES

household needed a lockbox to store the THC. They also
agree that Scanlon sent Olarte Dr. Mendelsohn’s written
recommendation for K.X.’s treatment as well as contact
information for K.X.’s pediatrician, Dr. Gutierrez.
From Scanlon’s home, Olarte went directly to G.X.’s
school. Olarte pulled G.X. out of class and met with her
alone in an administrative office. She reported that G.X.
looked “healthy and well cared for.” Nevertheless, Olarte
asked her several questions about K.X.’s medicine,
including if she had access to it. G.X. replied that the
medicine was on a “high shelf,” that only her sister took the
medicine, and that she was not allowed to touch it. Still,
“[s]he giggled” and admitted having handled the THC bottle
while climbing on the counter to get snacks.
Three days later, on September 18, Olarte reached out to
Dr. Gutierrez. Dr. Gutierrez was unaware that K.X. was
taking medical marijuana but, while unfamiliar with its use
for autism, had “heard . . . [of] children with epilepsy . . .
being treated with cannabis oil.” Olarte tried contacting
Dr. Mendelsohn and CannaKids but was unsuccessful.
Ultimately, she referred the case to her supervisor, Marisol
Gonzalez.
At DCFS’s request, the Parents met with Olarte and
another social worker, Marisha Harris, at the DCFS office
on September 19. As with their prior encounters, the parties
similarly disagree about what happened at this meeting.
Sawyer claims that Harris opened the meeting by telling
them they were “great parents” but that DCFS would have
to remove their kids. According to the Parents, Harris and
Olarte urged them to sign a bevy of documents, including a
medical consent form. When the Parents refused to do so
without their attorney—who was not present per DCFS
 SCANLON V. COUNTY OF LOS ANGELES 11

policy—the social workers took back the papers without
giving the Parents a chance to read them. At that point, the
Parents say, Harris told Olarte that DCFS “should just go for
removal” of the two girls, and Olarte agreed. According to
Scanlon, DCFS was intent on removing the children despite
her informing the social workers that she had satisfied
Olarte’s instruction by buying a lockbox and although the
social workers never asked the Parents to discontinue
medical marijuana during the meeting. Following this
baffling encounter, Sawyer asked for a supervisor, and
Gonzalez joined the meeting.
The defendants’ memory of their meeting with the
Parents begins with the social workers asking for additional
information about K.X.’s treatment and the degree to which
a pediatrician was involved. They claim that DCFS
expressed a desire “to work with the[] [Parents] in assuring
[K.X.] [wa]s getting the proper treatment” but that Sawyer
rejected this suggestion as an attempt to force them into
doing what DCFS “tell[s] [them] to do.” Once the social
workers “explained . . . the court process,” Sawyer evidently
lost his temper and yelled that DCFS was scheming to
remove the children. Fearing that further discussion would
get them nowhere, the social workers informed the Parents
that, because they were not forthcoming about K.X.’s
treatment, DCFS had no choice but to take the girls. On
September 26, 2017, Olarte prepared a Statement of Cause
to apply for a “protective custody warrant” to detain both
children. Despite Olarte’s own observations that the
children appeared to be healthy, the warrant application
alleges “probable cause to believe” that K.X. and G.X. are
“person[s] described by Welfare and Institutions Code
§ 300,” that “[t]he child(ren)’s physical environment poses a
threat to the[ir] health or safety,” and that “there are no
12 SCANLON V. COUNTY OF LOS ANGELES

reasonable means by which the[y] . . . can be protected
without temporary removal from the physical custody of the
parents.” 3
In support of its claim of “general neglect” by the
Parents, the Statement rests entirely on “evidence[] . . . that
mother and father are treating child, minor [K.X.]’s autism
with cannabis oil and have not consulted with a medical
professional or a professional who deals with autism.” The
evidence of neglect includes purported observations by
K.X.’s teacher that “[K.X] appeared to be under the
influence” and that “school staff . . . smelled the scent of
marijuana on [her].” The Statement claims that Scanlon was
“‘experimenting’ with the dosage” of marijuana she gave to
her daughter, leading K.X.’s teacher to find her “unable to

3
California Welfare and Institutions Code § 300 sets forth the
circumstances under which “[a] child . . . comes within . . . the
jurisdiction of the juvenile court [and] may [be] adjudge[d] . . . to be a
dependent child of the court.” Id. The grounds for filing a petition with
the juvenile court include that “[t]he child has suffered, or there is a
substantial risk that the child will suffer,” either “serious physical harm
inflicted nonaccidentally . . . by the child’s parent or guardian,” id.
§ 300(a), or “serious physical harm or illness, as a result of . . . [t]he
failure or inability of the child’s parent or guardian to adequately
supervise or protect the child,” id. § 300(b)(1).
Section 340 provides the grounds for a court to issue a “protective
custody warrant . . . without filing a petition under Section 300.” To do
so, the court must find “probable cause to support all of the following”:
(1) The child is a person described in Section 300.
(2) There is a substantial danger to the safety or to the
physical or emotional health of the child.
(3) There are no reasonable means to protect the
child’s safety or physical health without removal.
Id. § 340(b); see also id. § 306(a)(2) (providing the grounds for taking a
child into protective custody without a warrant).
 SCANLON V. COUNTY OF LOS ANGELES 13

write her name or keep her pencil straight.” It further
references Scanlon’s “limited cooperation” with DCFS and
asserts that she had failed to be forthcoming about K.X.’s
treatment. Although the Statement concludes by noting that
the Parents “have not consulted with a medical professional
or a professional who deals with autism,” it earlier refers to
their consultations with pain specialist Dr. Mendelsohn and
K.X.’s regular pediatrician, Dr. Gutierrez, as well as the
Parents’ pending appointment with a pediatrician
specializing in treating autism with cannabis, Dr. Goldstein.
Olarte vouched for the above under penalty of perjury.
On September 27, 2017, a warrant directing the removal
of K.X. and G.X. was approved by the Superior Court. The
following day, DCFS personnel picked up K.X. and G.X.
and sent them to separate foster homes—neither of which
“w[as] experienced in dealing with children with autism”—
where they spent the next five days. After the children’s
removal, Olarte tried to reach Dr. Goldstein but was
unsuccessful.
The Dependency Court held a hearing on the girls’ case
on October 3, 2017. Dr. Goldstein attended the hearing and
agreed to be involved in K.X.’s treatment going forward.
That same day, the Dependency Court released K.X. and
G.X. back to their Parents. On December 7, 2017, the
Dependency Court dismissed DCFS’s petition with
prejudice, in the “Interest of Justice.”
B. Proceedings Below
In September 2018, the Parents (for themselves and on
behalf of their minor children) sued DCFS, Olarte,
Gonzalez, Harris, a third social worker (Angela Hashizume),
and ten Doe defendants under 42 U.S.C. § 1983. Defendants
filed a motion to dismiss, which the district court granted
14 SCANLON V. COUNTY OF LOS ANGELES

with leave to amend. The Parents then filed their first
amended complaint, alleging six causes of action: (1) First,
Fourth, and Fourteenth Amendment violations in connection
with Olarte’s September 15 interview of G.X. at school;
(2) Fourth and Fourteenth Amendment violations for
procuring the children’s removal by a fraudulent or
misleading warrant; (3) a violation of the Fourteenth
Amendment right to be free from judicial deception;
(4) Fourth and Fourteenth Amendment violations for
medical examinations of the children; (5) a Monell claim 4
against DCFS; and (6) a claim for intentional infliction of
emotional distress (“IIED”) against the individual social
workers.
Defendants answered the Parents’ amended complaint
and moved for judgment on the pleadings as to the first,
fourth, and fifth claims identified above. In October 2020,
the district court granted defendants’ motion as to the first
and fourth 5 claims and denied it as to the fifth claim, except
insofar as the Monell claim stemmed from Olarte’s
schoolhouse interview of G.X. (the basis for the first claim).
Scanlon, 495 F. Supp. 3d at 904. Relying on Capp v. County
of San Diego, 940 F.3d 1046 (9th Cir. 2019), the court
concluded that a social worker’s interview of a child without
parental consent was not a clearly established constitutional
violation and so the defendants were entitled to qualified
immunity. Scanlon, 495 F. Supp. 3d at 898–99.

4
See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 662–63 (1978)
(holding that “local government[s] . . . are ‘persons’” for purposes of
42 U.S.C. § 1983).
5
The Parents “neither oppose[d] nor address[ed]” defendants’ motion as
to the fourth claim (concerning medical examinations of the children);
hence, the court granted the motion as to that claim.
 SCANLON V. COUNTY OF LOS ANGELES 15

Defendants moved for summary judgment, this time on
plaintiffs’ remaining claims. Scanlon, 2021 WL 2420164.
In May 2021, the district court granted summary judgment
for defendants as to the fraudulent warrant, judicial
deception, and IIED claims (plaintiffs’ second, third, and
sixth claims, respectively), to the extent those claims were
directed to the removal of K.X., and granted summary
judgment for defendants as to the entirety of the Monell
claim (plaintiffs’ fifth claim). The court concluded that the
alleged misrepresentations included in the removal
warrant—namely those pertaining to the degree of medical
involvement in K.X.’s treatment and her reported
intoxication—“[we]re not material to [the Superior Court’s]
finding that there was probable cause to remove the minors
from [P]arents’ custody.” It also found no triable issue as to
the Monell claim, since DCFS maintained a general policy
of “honesty and integrity in report[ing]” and review with
respect to warrants. As for the IIED claim, the court held
that this failed for the same reason as the judicial deception
claim—specifically, defendants’ satisfactory showing that
“the warrant package did not contain material
misrepresentations.” The court, however, denied summary
judgment as to the portions of plaintiffs’ second, third, and
sixth claims concerning G.X., finding a triable issue of fact
regarding whether the Parents had communicated their
purchase of a lockbox to DCFS and whether the absence of
a lockbox was material to G.X.’s detention.
The court proceeded with trial on the remaining claims.
Based on the nature of these claims, the key issue at trial was
the Parents’ purchase of a lockbox. The Parents each
testified that they bought a lockbox after their initial
September 15 meeting with Olarte. They likewise insisted
that they told Olarte about their purchase at the subsequent
16 SCANLON V. COUNTY OF LOS ANGELES

September 19 meeting and that she indicated the lockbox
was no longer an issue at that time. However, beyond their
own sworn testimony, the Parents did not produce any
evidence to prove that they ever bought a lockbox. Contrary
to the Parents’ contentions, Olarte denied ever being
informed about the lockbox, as did Harris and Gonzalez.
At closing argument, counsel for the defendants asserted
that the Parents had failed, more likely than not, to
communicate their purchase of a lockbox to DCFS, since the
record disclosed no email, text, receipt, or proof of purchase.
During deliberations, this line of argument prompted a juror
to pose the following question to the judge:

How come the receipt of the box is not
brought up during the trial and why it’s only
now in the rebuttal? If it is not, why deal with
the receipt where, in fact, that dad said he has
purchased the box during the meeting
September 19, 2017? Verbal is enough as
long as it is documented. Correct me if I am
wrong.

After receiving this note (“Juror Note No. 4”), the court
met with counsel outside the presence of the jury and
proposed to respond by re-reading instructions 1, 3, 5, 8, and
24. These focused on the jury’s mandate to decide the case
“solely on the evidence before [it].” Counsel for the Parents
agreed with this approach, while counsel for the defendants
suggested adding an additional instruction to clarify that
closing arguments may highlight the absence of evidence
from the record. This proposal elicited an objection from the
Parents’ counsel, who feared the instruction would imply
that the Parents had an affirmative duty to produce
 SCANLON V. COUNTY OF LOS ANGELES 17

documentary evidence. The court called back the jury and
had the juror who submitted the question read it aloud. In
response, the court indicated that it could not say “why [the
receipt issue] did not come up earlier.” It then re-read the
instructions, as previously proposed to counsel.
Outside the presence of the jury, defendants’ counsel
asked to submit additional briefing on the propriety of an
instruction about the absence of documentary evidence. The
Parents’ counsel objected to this request and voiced renewed
concern over the juror’s question as to the sufficiency of oral
evidence standing alone. The Parents’ counsel observed that
the ultimate issue—whether testimony about the purchase of
a lockbox was enough without a physical receipt—had not
been addressed by the court. The court’s instruction to
decide the case solely on the evidence may thus have caused
additional confusion. The court replied that, in its view, the
problem was that none of the parties had directed evidence—
testimonial or documentary—to the question of a receipt for
purchase of the lockbox. The Parents’ counsel asked the
court to instruct the jury that it could credit testimony that
the Parents had bought a lockbox, even without specific
testimony concerning a receipt. The court refused to give
this instruction. The jury returned a unanimous verdict in
favor of the defendants, and the court entered final judgment
on September 8, 2021.
The Parents now appeal the district court’s judgment on
the pleadings as to their Fourth Amendment claim
concerning Olarte’s interview of G.X.; its grant of summary
judgment on their judicial deception, Monell, and IIED
claims; and its refusal to provide an additional instruction in
response to the juror’s question.
18 SCANLON V. COUNTY OF LOS ANGELES

II. JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction under 28 U.S.C.
§ 1331, and we have jurisdiction under 28 U.S.C. § 1291.
We review an order granting judgment on the pleadings de
novo. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.
2009). Judgment on the pleadings is proper “when there is
no issue of material fact in dispute, and the moving party is
entitled to judgment as a matter of law.” Id. In our review,
we must “accept all factual allegations in the complaint as
true and construe them in the light most favorable to the non-
moving party.” Id. (citing Turner v. Cook, 362 F.3d 1219,
1225 (9th Cir. 2004)).
We similarly review a district court’s order granting
summary judgment de novo. Our review must “determine
if, viewing the evidence and drawing all inferences in the
light most favorable to the non-moving party, ‘any genuine
issues of material fact remain and whether the district court
correctly applied the relevant substantive law.’” Nieves
Martinez v. United States, 997 F.3d 867, 875 (9th Cir. 2021)
(quoting Bravo v. City of Santa Maria, 665 F.3d 1076, 1083
(9th Cir. 2011)). Where summary judgment was granted on
the basis of qualified immunity, “[o]ur jurisdiction is limited
to questions of law, and does not extend to qualified
immunity claims involving disputed issues of material fact.
Where disputed facts exist, we assume that the version of the
material facts asserted by . . . the non-moving party[] is
correct.” Costanich v. Dep’t of Soc. & Health Servs.,
627 F.3d 1101, 1107 (9th Cir. 2010) (quoting KRL v. Est. of
Moore, 512 F.3d 1184, 1188–89 (9th Cir. 2008)).
A district court’s response to a juror’s question, when
countered by a timely objection, is reviewed for abuse of
discretion. Arizona v. Johnson, 351 F.3d 988, 993 (9th Cir.
 SCANLON V. COUNTY OF LOS ANGELES 19

2003). If counsel fails to object, we review for plain error.
Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794, 797
(9th Cir. 2017).
III. DISCUSSION
The Parents have raised five issues on appeal: first,
whether the district court erred in granting summary
judgment on their claim that the individual defendants filed
a materially misleading Statement of Cause in connection
with the application to remove K.X. and G.X., in violation
of the Fourth and Fourteenth Amendments; second, whether
the district court erred in granting judgment on the pleadings
as to their Fourth and Fourteenth Amendment claims
regarding Olarte’s interview of G.X.; third, whether the
district court erred in granting summary judgment on their
IIED claim; fourth, whether the district court erred in
granting summary judgment for DCFS on their Monell
claim; and fifth, whether the district court erred when it
reread its jury instructions in response to a juror question.
We affirm the judgment with respect to the second and fifth
issues. We reverse as to the first, third, and fourth issues.
A. The District Court Erred in Granting Summary
Judgment for Defendants on Plaintiffs’ Judicial
Deception Claim
The Parents argue that DCFS social workers violated
their right to familial association under the Due Process
Clause of the Fourteenth Amendment, as well as the Fourth
Amendment rights of K.X. and G.X., by providing false or
misleading information to the dependency court that
authorized the children’s removal. The district court
reviewed “[t]he alleged misrepresentations, omissions, and
false statements” in the Statement of Cause submitted with
the application and concluded that they “[we]re not material
20 SCANLON V. COUNTY OF LOS ANGELES

to finding that there was probable cause to remove the
minors from [P]arents’ custody.” Scanlon, 2021 WL
2420164, at *5. We disagree.
1. Constitutional and Statutory Standards for Removing
Children from Their Parents
The Fourteenth Amendment provides that no state shall
“deprive any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV, § 1. Among “the
oldest of the fundamental liberty interests recognized by [the
Supreme] Court” is “the fundamental right of parents to
make decisions concerning the care, custody, and control of
their children.” Troxel v. Granville, 530 U.S. 57, 65–66
(2000) (plurality opinion). Although the Supreme Court has
largely grounded this right in the Due Process Clause, we
have also found it to be protected by the First and Fourth
Amendments, made applicable to the states by the
Fourteenth Amendment. Keates v. Koile, 883 F.3d 1228,
1235 (9th Cir. 2018) (observing that “[the] right [to familial
association] is entirely judge-made” and that the “courts
[have not] been entirely clear regarding [its] source,” relying
“variously . . . on the Fourteenth, First, and Fourth
Amendments”). This right has both substantive and
procedural components, thus placing a high burden of proof
on the state and guaranteeing parents “fundamentally fair
procedures” before the “state interven[es] into ongoing
family affairs.” Santosky v. Kramer, 455 U.S. 745, 753–54
(1982). K.X. and G.X. likewise have a Fourth Amendment
right to be free from “unreasonable . . . seizures,” U.S. Const.
amend. IV, which was implicated when they were taken into
state custody. Despite the differing constitutional sources of
the right to familial association, we have held that “the same
legal standard applies in evaluating [both] Fourth and
Fourteenth Amendment claims for the removal of the
 SCANLON V. COUNTY OF LOS ANGELES 21

children.” Keates, 883 F.3d at 1236 (quoting Wallis v.
Spencer, 202 F.3d 1126, 1137 n.8 (9th Cir. 2000)). We have

woven these constitutional threads into a
discrete constitutional right in cases where
state officials remove children from parents
without consent or due process. . . . [T]he
rights of parents and children to familial
association under the Fourteenth, First, and
Fourth Amendments are violated if a state
official removes children from their parents
without their consent, and without a court
order, unless information at the time of the
seizure, after reasonable investigation,
establishes reasonable cause to believe that
the child is in imminent danger of serious
bodily injury, and the scope, degree, and
duration of the intrusion are reasonably
necessary to avert the specific injury at issue.

Id. at 1236–38.
Our cases have addressed the constitutional standards for
seizing a child without a warrant. See, e.g., id. at 1235–38;
Kirkpatrick v. County of Washoe, 843 F.3d 784, 790–91 (9th
Cir. 2016) (en banc); Rogers v. County of San Joaquin, 487
F.3d 1288, 1294–96 (9th Cir. 2007); Mabe v. San
Bernardino County, 237 F.3d 1101, 1106–09 (9th Cir.
2001); Wallis, 202 F.3d at 1140–41. K.X. and G.X.,
however, were seized pursuant to a warrant. See Cal. Welf.
& Inst. Code § 340(a) (setting out the standards for issuing a
protective custody warrant); In re Jerry R., 313 Cal. Rptr. 3d
422, 443 (Ct. App. 2023) (“[Section 340(a)] authorizes the
issuance of a warrant where the danger is substantial but falls
22 SCANLON V. COUNTY OF LOS ANGELES

short of the exigency justifying warrantless removal.”); In re
Robert F., 307 Cal. Rptr. 3d 228, 232 (Ct. App. 2023)
(“[S]ection 340 requires neither imminent danger nor the
threat of physical harm for the court to issue a warrant.”).
After the children were seized, DCFS filed a dependency
petition, which resulted in a judicial hearing and the return
of the children. See Cal. Welf. & Inst. Code § 300(b)(1)
(setting out the standards for declaring a child a dependent
of the juvenile court).
We have never examined whether California’s statutory
standards for obtaining a warrant prior to a full dependency
hearing satisfy the procedural and substantive requirements
of the U.S. Constitution. See Sigal v. County of Los Angeles,
No. 18-56085, 2021 WL 4061120, at *1 (9th Cir. Sept. 7,
2021) (unpublished) (assuming, without deciding, “that
probable cause exists to remove a child when the child faces
a ‘substantial risk of harm’” (citing Cal. Welf. & Inst. Code
§ 300(b)(1))); Olvera v. County of Sacramento, 932 F. Supp.
2d 1123, 1150 (E.D. Cal. 2013) (holding that “[t]he issuance
of the warrant to place [plaintiffs’ child] in protective
custody must . . . have been supported by probable cause that
the circumstances in the [plaintiffs’] home endangered [the
child]’s health or welfare” (citing Cal. Welf. & Inst. Code
§ 340(a))). But the Parents do not challenge the
constitutionality of California’s standards for removal.
Rather, they dispute whether the warrant was obtained
through judicial deception. We will address that claim and
leave to another day the constitutional sufficiency of
California’s scheme. See Marks v. Hudson, 933 F.3d 481,
487 (5th Cir. 2019) (noting potential constitutional
challenges to the Texas child removal statute but concluding
that, “[w]hatever questions might be raised by this statutory
language, the parties here argue the case solely on the basis
 SCANLON V. COUNTY OF LOS ANGELES 23

of whether an affidavit without fabrications or omissions
would have supported probable cause”).
2. Judicial Deception and DCFS’s Application for
Removal
We have recognized a cause of action under 42 U.S.C.
§ 1983 for violations of the Fourth and Fourteenth
Amendments where a warrant or other authorization to seize
a child was obtained through judicial deception. Indeed,
“[o]ur caselaw clearly establishes that, as part of the right to
familial association, parents and children have a ‘right to be
free from judicial deception’ in child custody proceedings
and removal orders.” David v. Kaulukukui, 38 F.4th 792,
800 (9th Cir. 2022) (quoting Greene v. Camreta, 588 F.3d
1011, 1034 (9th Cir. 2009), vacated in part and remanded in
part, 563 U.S. 692 (2011)). “Judicial deception” consists of
either “deliberate omission or affirmative
misrepresentation.” Id. at 801 n.3. A statement can also be
misleading if, although technically true, it has been so
wrenched from its context that the judicial officer will not
comprehend how it fits into the larger puzzle. For example,
a statement uttered jokingly or sarcastically will be
understood by those present one way but, when reproduced
on the written page and read out of context, the statement
may be understood to mean the opposite of what was said.
In such a case, “the officer [has] omitted facts required to
prevent technically true statements in the affidavit from
being misleading.” Ewing v. City of Stockton, 588 F.3d
1218, 1224 (9th Cir. 2009). Even otherwise true
observations made misleading by the omission of facts that
are not themselves material may result in an affidavit that,
considered as a whole, is materially misleading. “[B]y
reporting less than the total story, an affiant can manipulate
the inferences a magistrate will draw . . . . [and] denude the
24 SCANLON V. COUNTY OF LOS ANGELES

probable cause requirement of all real meaning.” Liston v.
County of Riverside, 120 F.3d 965, 973 (9th Cir. 1997)
(internal quotation marks and citations omitted).
“To state a violation of the constitutional right to familial
association through judicial deception, a plaintiff must allege
‘(1) a misrepresentation or omission (2) made deliberately
or with a reckless disregard for the truth, that was
(3) material to the judicial decision.’” David, 38 F.4th at 801
(quoting Benavidez v. County of San Diego, 993 F.3d 1134,
1147 (9th Cir. 2021)). “A misrepresentation or omission is
‘material’ if a court ‘would have declined to issue the order
had [the defendant] been truthful.’” Id. (alteration in
original) (quoting Greene, 588 F.3d at 1035). “Because the
[Parents] appeal from a grant of summary judgment, they
need only make a ‘substantial showing’ of the [state actors’]
deliberate or reckless false statements and omissions.”
Chism v. Washington, 661 F.3d 380, 387 (9th Cir. 2011)
(quoting Liston, 120 F.3d at 973). “‘Clear proof of
deliberat[ion] or reckless[ness] is not required’ at the
summary judgment stage.” Id. at 387–88 (alterations in
original) (quoting United States v. Stanert, 762 F.2d 775,
781 (9th Cir.), amended by 769 F.2d 1410 (9th Cir. 1985)).
“If a plaintiff satisfies these requirements, ‘the matter should
go to trial.’” Butler v. Elle, 281 F.3d 1014, 1024 (9th Cir.
2002) (quoting Liston, 120 F.3d at 972–75).
The question before us is whether the Department’s
Statement of Cause contains material omissions or
misrepresentations such that a reasonable magistrate,
informed of the true facts, would not have issued a protective
custody warrant for the seizure of K.X. and G.X. We
conclude that the Statement contained misrepresentations
and omissions of fact and so remand to the district court.
 SCANLON V. COUNTY OF LOS ANGELES 25

In September 2017, DCFS filed an Application and
Statement of Cause in support of a warrant to remove K.X.
and G.X. from their parents. Through a series of check-the-
box statements, the Department advised that there was
“probable cause to believe that continuance in the home of
the parent(s) . . . [wa]s contrary to the child(ren)’s welfare”
because “[t]he child(ren)’s physical environment pose[d] a
threat to the[ir] . . . health or safety and there [we]re no
reasonable means by which the child(ren) c[ould] be
protected without temporary removal.” 6 The Application
was accompanied by Olarte’s lengthy Statement of Cause.
The Statement made two critical points: First, the Parents
were treating K.X. with cannabis oil without medical
supervision, and second, the treatment adversely affected
K.X.’s behavior at school. The Parents have alleged that this
Statement contained false statements, statements taken so far
out of context as to be misleading, and omissions of
important facts. The Parents further allege that these
inaccurate, incomplete, and omitted facts, taken together,

6
We note that this language from the form misstates California law. The
form requires DCFS to certify only that there is “a threat to the
child(ren)’s health or safety.” By contrast, the statute states that a
juvenile dependency petition requires proof of “a substantial risk that the
child will suffer[] serious physical harm.” Cal. Welf. & Inst. Code
§ 300(b)(1) (emphasis added). A petition for a protective custody
warrant—one to be issued in advance of a juvenile dependency
hearing—likewise requires probable cause to believe that the juvenile
dependency criteria are met and, further, that “[t]here is substantial
danger to the safety or to the physical or emotional health of the child”
and that such danger cannot “reasonabl[y]” be prevented “without
removal.” Id. § 340(b)(2)-(3) (emphasis added). The Findings and
Orders form signed by the Superior Court judge contains similar
misstatements of California law.
26 SCANLON V. COUNTY OF LOS ANGELES

were material and made either deliberately or with a reckless
disregard for the truth. 7
a. The Statement of Cause’s claim that K.X. was
not being treated by a medical professional or an
autism specialist
The Parents’ principal contention is that Olarte’s
Statement of Cause included at least one statement about
their treatment of K.X. with cannabis oil that Olarte knew to
be false. In her conclusion, Olarte summed up her evidence
as follows:

Based upon my 12 years of experience as a
social worker investigating over 2,500 child
abuse referrals, this social worker believes
that the conduct of mother Rachel Scanlon
and father Steven Sawyer, which includes,
but is not limited to general neglect as
evidenced by the fact that mother and father
are treating child, minor [K.X.’s] autism with
cannabis oil and have not consulted with a
medical professional or a professional who
deals with autism, endangers the physical and
emotion well-being of the child such that the

7
The Parents further allege that Olarte misrepresented her conversations
with them and portrayed them in a false light in her Statement of Cause.
Because we hold that the misrepresentations with respect to K.X.’s
medical care and her behavior at school are sufficient to require reversal,
we decline to address the Parents’ allegations concerning how they were
depicted in the Statement. They may renew these arguments on remand.
 SCANLON V. COUNTY OF LOS ANGELES 27

children are at risk of suffering emotional or
physical harm.

(emphasis added). 8
We need not detain ourselves long to hold that this
statement constituted a misrepresentation which a
reasonable trier of fact could find was recklessly or
deliberately made. See David, 38 F.4th at 801. Indeed, it
contradicts Olarte’s own account of her investigation.
Elsewhere in her lengthy Statement, Olarte reports that
Scanlon told her in her first interview that “what is important
is that the oil was prescribed by a doctor.” As we have
discussed, that recommendation came from Dr. Peter
Mendelsohn, a board-certified anesthesiologist and pain
specialist. Olarte’s narrative recites that “[Scanlon]
forwarded a Physician’s Statement & Recommendation via
email” to Olarte and that “Olarte attempted to reach
Dr. Peter Mendelsohn . . . but the call only rang and there
[wa]s no answer.” Although her investigation was
inconclusive, Olarte expressed no doubts concerning the
veracity of the Parents’ claim that they had consulted with
Dr. Mendelsohn and obtained a recommendation from him
to treat K.X. with medical cannabis. Her affirmative
statement that the Parents “ha[d] not consulted with a
medical professional” was false, could be found material and

8
As with the DCFS forms, we note that Olarte’s statement misstates
what DCFS had to prove under California law. While the Statement
concludes merely that “the children are at risk of suffering emotional or
physical harm,” even a petition for juvenile dependency—which would
have entitled the Parents to a hearing before their children were
removed—requires proof of “a substantial risk that the child will suffer[]
serious physical harm.” Cal. Welf. & Inst. Code § 300(b)(1) (emphasis
added).
28 SCANLON V. COUNTY OF LOS ANGELES

deliberate or reckless by a reasonable jury, and is itself
sufficient to reverse the district court’s holding as to the
Parents’ judicial deception claim.
Olarte’s conclusion was misleading in yet another way:
She contended that the Parents “ha[d] not consulted
with . . . a professional who deals with autism.” This was
contradicted elsewhere in Olarte’s statement. She earlier
noted having spoken with Dr. Gutierrez, K.X.’s treating
pediatrician, who knew K.X. had been diagnosed with
autism in 2010. Dr. Gutierrez prescribed Vayarin, an
Omega-3 fatty acid, “to . . . address [K.X.’s] symptoms and
balance [her] behaviors,” and she had referred K.X. to a
psychologist. When Olarte asked about treating K.X. with
medical marijuana, “Dr. Gutierrez said that treatment ha[d]
not been discussed with her. She said she herself [wa]s not
very familiar with the treatment but heard, in some cases,
children with epilepsy are being treated with cannabis oil.
Dr. Gutierrez ha[d] not heard about autism being also treated
with cannabis oil.” Elsewhere, Olarte noted that Scanlon
told her in the second interview that she was “giving [K.X.]
the Vayarin [Dr. Gutierrez] prescribed to her.”
Further belying both of Olarte’s statements (regarding
the lack of involvement of either a medical professional or
one experienced with autism), the Statement of Cause
reflects that the Parents told Olarte that “[K.X.] [wa]s
already scheduled to meet with a pediatric[ian] specializing
on [sic] cannabis oil”—that was Dr. Goldstein—but that she
was on a year-long waiting list. All in all, the details in
Olarte’s report confirm that the Parents had consulted with
at least two doctors—one, a pediatrician who worked with
them on K.X.’s autism, and the other, a board-certified
anesthesiologist and pain management specialist who
recommended cannabis oil to treat her autism—and were on
 SCANLON V. COUNTY OF LOS ANGELES 29

an extended waiting list to see a third doctor who was known
for treating autistic children with cannabis oil. That simply
cannot be squared with Olarte’s recommendation that K.X.
and G.X. be removed because the Parents “ha[d] not
consulted with a medical professional or a professional who
deals with autism.”
A reasonable trier of fact could find that these
misrepresentations were “material to the judicial decision.”
David, 38 F.4th at 801 (internal quotation marks and citation
omitted). In her Statement of Cause, Olarte characterized
K.X. as being “under the influence.” Similarly, the
Statement relates that, in one of her meetings with the
Parents, Olarte told them that K.X.’s “symptoms [we]re
th[ose] of someone under the influence of drugs.” When
Sawyer replied that “[K.X.’s] side effects [we]re no different
than the side effects of prescribed medication,” Olarte
“explained that prescribed medication is FDA approved and
always monitored by a doctor” and suggested that K.X.’s
treatment should be monitored by her pediatrician, Dr.
Guitierrez.
This exchange emphasizes the materiality of the Parents’
consultation with Dr. Mendelsohn. If the Parents in fact
obtained medical oversight for K.X.’s treatment, it would
mean that DCFS’s basis for removing the children—“the
fact that [the Parents] . . . [we]re treating . . . [K.X.’s] autism
with cannabis oil”—was entirely legal under California law,
a fact DCFS failed to mention. In the Compassionate Use
Act of 1996, California declared that “seriously ill
Californians have the right to obtain and use marijuana for
medical purposes where that medical use is deemed
appropriate and has been recommended by a physician who
has determined that the person’s health would benefit from
the use of marijuana.” Cal. Health & Safety Code
30 SCANLON V. COUNTY OF LOS ANGELES

§ 11362.5(b)(1)(A) (emphasis added). A “serious medical
condition” that may warrant treatment with medical
marijuana includes “[a]ny . . . chronic or persistent medical
symptom that either . . . [s]ubstantially limits the ability of
the person to conduct one or more major life activities as
defined in the federal Americans with Disabilities Act of
1990 [(“ADA”)] . . . [or] [i]f not alleviated, may cause
serious harm to the patient’s safety or physical or mental
health.” Id. § 11362.7(h)(12). 9 Significantly, nothing in the
Compassionate Use Act restricts the use of medical
marijuana to adults. See generally Off. of the Att’y Gen.,
Cal. Dep’t of Just., Guidelines for the Security and Non-
Diversion of Cannabis Grown for Medical Use 1, 9 (2019),
https://oag.ca.gov/system/files/attachments/press-
docs/MEDICINAL%20CANNABIS%20Guidelines.pdf
(defining “[a] qualified patient” as “a person whose
physician has recommended the use of cannabis to treat a
serious illness,” without setting a threshold age to qualify).
Indeed, certain provisions contemplate that minors may be
treated consistent with the Act. See Cal. Health & Safety
Code § 11362.7(e) (“A primary caregiver shall be at least 18
years of age, unless the primary caregiver is the parent of a
minor child who is a qualified patient . . . .” (emphasis
added)); id. § 11362.755(d) (referring to “the legal guardian
of a qualified patient under the age of 18”).
Since California has legalized medical marijuana
(including for children) when recommended by a doctor, a
reasonable magistrate could not have ordered the children

9
We have long recognized that autism is a condition within the scope of
the ADA. See, e.g., Paul G. ex rel. Steve G. v. Monterey Peninsula
Unified Sch. Dist., 933 F.3d 1096, 1098 (9th Cir. 2019); Christopher S.
ex rel. Rita S. v. Stanislaus Cnty. Off. of Educ., 384 F.3d 1205, 1207,
1214 (9th Cir. 2004).
 SCANLON V. COUNTY OF LOS ANGELES 31

removed merely because K.X. was receiving medical
marijuana. Here, medical supervision separates lawful
parental behavior from actionable concerns on the part of
DCFS. A reasonable jury could therefore find Olarte’s
assertions that the Parents had not obtained supervision to be
material. In sum, we find the Parents have stated a
cognizable claim for judicial deception on this basis.
b. The Statement of Cause’s attribution to K.X.’s
teacher of claims concerning K.X.’s behavior
The Parents also claim that Olarte mischaracterized and
misattributed statements made by Alida Turner, who had
been K.X.’s teacher for two years, which contributed to a
materially misleading Statement of Cause. Olarte’s
description of her conversation with Turner was critical to
DCFS’s warrant application because it was the principal
evidence that K.X. was in “substantial risk . . . [of] serious
physical harm” from her cannabis oil treatments. Cal. Welf.
& Inst. Code § 300(a). As we noted in the previous
subsection, DCFS characterized K.X. as presenting “under
the influence” at school. The bare fact of K.X. being “under
the influence” of medical marijuana, administered on the
recommendation of a doctor as authorized by the
Compassionate Use Act, would not likely have been enough
for a reasonable magistrate to discern a legally sufficient
risk. The point of any regimen of prescribed or
recommended medical substances—from Acetaminophen to
Zoloft—is to come “under the influence.” Whether the
treatment has placed the patient at “substantial risk . . . [of]
serious physical harm” is an entirely different question. The
details of the “influence” of K.X.’s cannabis treatment
mattered, and Turner’s testimony was the cornerstone of the
Statement of Cause.
32 SCANLON V. COUNTY OF LOS ANGELES

Here is the relevant paragraph in its entirety:

On 09/15/17, CSW Olarte responded to
Cabrillo Elementary. CSW met with
[K.X.]’s teacher, Alida Turner, who said
school staff reportedly smelled the scent of
marijuana on [K.X.]. She herself did not
smell it as [K.X.] had already consumed
some orange juice when she approached her
and was only able to pick up the scent of
orange juice. She did, however, notice
[K.X.] appeared to be under the influence.
[K.X.] was giggly one moment and overly
calm the next. [K.X.] stumbled around and
at times and [sic] was close to falling over.
[K.X.] had to be assisted, almost carried, due
to her state. [K.X.]’s eyes were “droopy” and
she displayed a delayed response. She added
that the prior school year, [K.X.] had
difficulty with her behavior, however, her
behavior worsened during the summer. She
described [K.X.] as becoming aggressive and
self-harming. [K.X.] would throw tantrums
and hit her head. She said, this year, [K.X.]
seems mellow and sits out during recess. The
previous year, [K.X.] would get on the
tricycle and run around the yard but this year
[K.X.] stares into space. [K.X.] also seems to
be so affected by medication and she is
unable to write her name or keep her pencil
straight. She denied having any concerns the
previous year. [K.X.] has good attendance
 SCANLON V. COUNTY OF LOS ANGELES 33

and always presents as well cared for and
well groomed.

When Turner was asked in her deposition whether she told
Olarte these things, she denied saying them. For example,
Turner testified that she never said K.X. “appeared to be
under the influence,” “had to be carried,” “had a delayed
response,” “stared into space,” was “so affected by
medication [that] she [wa]s unable to write her name or keep
her pencil straight,” or that her “eyes were droopy.” 10
Beyond denying that she made these statements to
Olarte, Turner testified that she would not have said such
things because they were untrue. She had never seen K.X.
behave in a way that suggested she was intoxicated. To the
contrary, Turner claimed that, thanks to the new regimen,
K.X. was “more talkative, compliant, let’s say well-behaved.
She was calm.” This was in contrast to the prior year, when
K.X. would “hit herself,” “hurt[] the assistants,” “bang[] her
head on the floor . . . [and] the walls,” “scratch others[,] and
cry . . . and scream a lot.” Turner testified that she was in
frequent contact with Scanlon, who asked for feedback on
the medication, and that she had told Scanlon, “[I]t’s
working. I can see. I can work with [K.X.] better.” It is
difficult to see how someone who testified to these facts
would, at the same time, tell Olarte that K.X. was left semi-
catatonic owing to her use of cannabis oil. Accordingly,
there are substantial differences between what Olarte

10
Some of the statements Olarte attributes to Turner appear to have been
pulled from the referrals called into DCFS concerning K.X., which came
from an unnamed aide at the school. Turner denied ever hearing any of
these statements from an aide or conveying such statements to Olarte.
So far as we can tell, Olarte never actually spoke with anyone at the
school other than Turner.
34 SCANLON V. COUNTY OF LOS ANGELES

reported about her conversation with Turner and what
Turner said she told Olarte.
There are also genuine factual disputes concerning
whether Olarte properly characterized the statements that
Turner asserted she did make during their conversation.
When Turner testified that K.X. mellowed out once she
started taking the medicine, intending to convey that her
behavior had improved from its violent baseline, Olarte
reported that the girl was “under the influence.” When
Turner said K.X. was giggly, but that her giggles did not
increase when she started taking medical marijuana, Olarte
reported that K.X. was emotionally labile: “giggly one
moment and overly calm the next.” And when Turner and
Olarte together observed K.X. on the playground during
Olarte’s schoolhouse visit, they likewise came away with
very different recollections. Olarte’s Statement said that,
“[t]he previous year, [K.X.] would get on [a] tricycle and run
around the yard”—but this year, she did nothing but “stare[]
into space.” Turner, meanwhile, recalled telling Olarte
about K.X.’s tantrums the prior year and noted that “that
moment . . . was a good time to observe [K.X.] because she
was playing. She liked the tricycle, and she was riding it.”
“[V]iewing the evidence . . . in the light most favorable
to the [Parents],” Turner’s testimony strongly supports the
Parents’ claim that Olarte mischaracterized Turner’s
comments, placing them in a false light. Nieves Martinez,
997 F.3d at 875. A reasonable trier of fact could find that
Turner’s testimony casts doubt on whether Turner actually
said the negative comments Olarte attributed to her in her
Statement. To the extent the primary fact witness in Olarte’s
Statement of Cause (other than Olarte herself) did not report
any negative behavioral effects from K.X.’s treatment, a
reasonable trier of fact could find such misrepresentations
 SCANLON V. COUNTY OF LOS ANGELES 35

were material to the issuance of a warrant to remove the
children.
* * *
To recapitulate, Olarte’s Statement is inconsistent with
the evidence in the record in numerous respects. We find
that Olarte’s statements regarding the Parents’ failure to
obtain medical supervision were misrepresentations and that
the statements she attributed to Alida Turner could likewise
be found by a reasonable jury to be misrepresentations.
Either set of statements could reasonably be held material to
the magistrate’s issuance of a warrant to detain the children.
As we noted above, under California law, a child
becomes a “dependent” within the jurisdiction of the
juvenile court only if “there is a substantial risk that the child
will suffer[] serious physical harm or illness” resulting from
“parental neglect.” Cal. Welf. & Inst. Code § 300(a).
California law further provides that a warrant to remove a
child prior to a hearing cannot issue absent a showing of
probable cause to believe that “[t]here is a substantial danger
to the safety or to the physical or emotional health of the
child” and “[t]here are no reasonable means to protect the
child’s safety or physical health without removal.” Id.
§ 340(b)(2), (3). The Fourteenth Amendment requires at
least such a showing. Keates, 883 F.3d at 1237–38; Olvera,
932 F. Supp. 2d at 1150–51. If the Parents were consulting
with a doctor on K.X.’s treatment—and if the effects of that
treatment on K.X.’s behavior were not the dour picture
painted by the Statement of Cause—a fully informed judicial
officer might well have concluded that either the California
or the federal standard was not met here.
Because there are triable issues of fact as to whether the
warrant application materially misrepresented information
36 SCANLON V. COUNTY OF LOS ANGELES

and “omitted facts required to prevent . . . the affidavit from
being misleading,” Liston, 120 F.3d at 973 (citation
omitted), leading to the removal of K.X. and G.X., we hold
that the district court erred in granting summary judgment to
defendants. We also observe that the defendants are not
entitled to qualified immunity. The right to be free from
judicial deception was clearly established prior to 2016 and
so before the events of this case. David, 38 F.4th at 801
(“[T]he right to be free from judicial deception in matters of
child custody ‘is beyond debate.’” (quoting Hardwick v.
County of Orange, 844 F.3d 1112, 1117 (9th Cir. 2017)));
see Benavidez, 993 F.3d at 1152; Greene, 588 F.3d at 1034–
35; Costanich, 627 F.3d at 1111–12. We therefore reverse
and remand for additional consideration of the judicial
deception claim.
B. The District Court Did Not Err in Granting Judgment on
the Pleadings as to Plaintiffs’ Fourth Amendment Claim
Concerning G.X.’s School Interview
The Fourth Amendment, made applicable to the states
through the Fourteenth Amendment, ensures an individual’s
right to be free from “unreasonable searches and seizures.”
U.S. Const. amend. IV. “A ‘seizure’ triggering the Fourth
Amendment’s protections occurs only when government
actors have, ‘by means of physical force or show of
authority, . . . in some way restrained the liberty of a
citizen.’” Capp, 940 F.3d at 1059 (alteration in original)
(quoting Graham v. Connor, 490 U.S. 386, 395 n.10
(1989)). In other words, “a seizure occurs if, ‘in view of all
of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.’”
Dees v. County of San Diego, 960 F.3d 1145, 1154 (9th Cir.
2020) (quoting Brendlin v. California, 551 U.S. 249, 255
(2007)). Because “children possess a Fourth Amendment
 SCANLON V. COUNTY OF LOS ANGELES 37

right to ‘be secure in their persons . . . against unreasonable
searches and seizures,’” Mann v. County of San Diego,
907 F.3d 1154, 1164 (9th Cir. 2018) (alteration in original)
(quoting U.S. Const. amend. IV), when considering what a
“reasonable person” might believe, we must take into
account that “children cannot be viewed simply as miniature
adults,” J.D.B. v. North Carolina, 564 U.S. 261, 274 (2011).
In evaluating the Fourth Amendment rights of the child (as
opposed to those of her parents), we must analyze the alleged
seizure from the perspective of a child the age of the
plaintiff, not that of the average adult; this is “a reality that
courts cannot simply ignore.” Id. at 277; see Kirkpatrick,
843 F.3d at 790–92 (considering the Fourth Amendment
rights of a newborn seized from her mother at the hospital).
Social worker investigations conducted prior to
removing a child from her parents fall within the ambit of
state action proscribed by the Fourth Amendment. In
Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999), we held
that a social worker’s warrantless entry into the home as part
of a child abuse investigation was a “well established”
Fourth Amendment violation. Id. at 813–14. Even if the
entry “was primarily to protect the children, not investigate
crime, . . . . warrants should be obtained if consent is
refused.” Id. at 817.
Temporary seizures of children at school for
investigatory purposes present a more nuanced instance of
this problem. The school is not the home and, when the
school has its own interests, the Supreme Court has sought
to “strike the balance between the schoolchild’s legitimate
expectations of privacy and the school’s equally legitimate
need to maintain an environment in which learning can take
place.” New Jersey v. T.L.O., 469 U.S. 325, 340 (1985); see
also Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S.
38 SCANLON V. COUNTY OF LOS ANGELES

364, 370–71 (2009). Here, we are not confronted with
questions around seeking a balance between the interests of
the child and those of her school but, rather, between the
interests of the child and those of the state in securing the
welfare of children at home. We have some history in this
area. Although in general “[t]he Fourth Amendment
protects a child’s right to be free from unreasonable seizure
by a social worker,” Dees, 960 F.3d at 1154 (citing
Kirkpatrick, 843 F.3d at 790–91), the details surrounding the
investigation have proven critical.
In Greene, 588 F.3d 1011, Nimrod Greene was arrested
on suspicion of sexually abusing his friends’ seven-year-old
son. The Oregon Department of Human Services also
learned that Nimrod may have abused one of his daughters,
nine-year-old S.G. Bob Camreta, a social worker, together
with a sheriff’s deputy, went to S.G.’s school, where they
interviewed her for two hours. The investigation was
inconclusive, and no charges were filed against Nimrod with
respect to S.G. S.G.’s mother subsequently brought a
Section 1983 action on S.G’s behalf against Camreta and the
deputy. We rejected Camreta’s claim that the balancing of
interests in which the Court engaged in T.L.O. provided the
appropriate standard. Greene, 588 F.3d at 1023–24. We
concluded that “‘[c]onstitutional claims based on searches or
seizures by public school officials relating to public school
students therefore call for an analysis . . . that is different
from that [for searches or seizures by caseworkers].’” Id. at
1024 (alterations in original) (quoting Tenenbaum v.
Williams, 193 F.3d 581, 607 (2d Cir. 1999)). Because of the
“presence of law enforcement objectives . . . ., ‘disentangling
[the goal of protecting a child’s welfare] from general law
enforcement purposes’ becomes particularly ‘difficult.’” Id.
at 1027 (second alteration in original) (quoting Roe v. Tex.
 SCANLON V. COUNTY OF LOS ANGELES 39

Dep’t of Protective & Regul. Servs., 299 F.3d 395, 406–07
(5th Cir. 2002)). We observed that, “[a]ny time a
government official suspects that a child has been abused,
investigation of that abuse for child protection purposes may
uncover evidence of a crime” and, even if the caseworker is
only conducting a welfare check, she is not precluded from
sharing the information she finds with law enforcement
officers. Id. at 1029. In the end, we held that, “[a]t least
where there is . . . direct involvement of law enforcement in
an in-school seizure and interrogation of a suspected child
abuse victim, . . . . the decision to seize and interrogate [the
child] in the absence of a warrant, a court order, exigent
circumstances, or parental consent [i]s unconstitutional.” Id.
at 1030 (footnotes omitted). Nonetheless, we concluded that
this right had not been clearly established at the time of
Camreta’s investigation and so granted qualified immunity
to him and the deputy. Id. at 1033.
The Supreme Court granted certiorari and vacated
Greene’s Fourth Amendment holding on mootness grounds.
However, it left intact the qualified immunity determination.
Camreta, 563 U.S. at 698, 714 n.11 (“We leave untouched
the Court of Appeals’ ruling on qualified immunity and its
corresponding dismissal of S.G.’s claim because S.G. chose
not to challenge that ruling.”). The only surviving portion of
our decision in Greene is that the Fourth Amendment “right
of minor children to be free from unconstitutional seizures
and interrogations by social workers [w]as not . . . clearly
established” as of August 2015. Capp, 940 F.3d at 1059; see
Greene, 588 F.3d at 1033.
40 SCANLON V. COUNTY OF LOS ANGELES

We have not gone so far since Greene. 11 In Dees, a
social worker interviewed a nine-year-old girl, L.G., in
connection with an investigation of sexual abuse. Although
ostensibly performing a welfare check, the social worker
believed a criminal investigation was ongoing. The
interview took place in an administrative office and “lasted
only five minutes.” Dees, 960 F.3d at 1154. There were
conflicting accounts as to whether the minor was upset by
the interview but no evidence that the social worker tried to
“coerce or otherwise intimidate” her. Id. at 1151, 1153–54.
L.G.’s mother sued on her behalf for violations of her Fourth
Amendment rights. A jury returned a verdict for the social
worker, but the district court subsequently granted plaintiffs’
renewed motion for judgment as a matter of law. Id. at
1150–51. We reversed, finding that the court had
“inappropriately weighed the facts.” Id. at 1154. To that
end, we identified three facts that distinguished Dees from
other cases: First, no law enforcement officer was present;
second, the interview was brief; and third, L.G. was nine,
suffered from cognitive difficulties, and may not have felt
free to end the conversation. Id. at 1154–55. From these
factors (which cut in different directions), we concluded that
L.G.’s circumstances were sufficiently different from our
prior cases that the district court had erred in finding that the
minor was unreasonably seized “as a matter of law.” Id. at

11
In Capp, we held that plaintiffs had failed to demonstrate a Fourth
Amendment violation stemming from social workers’ schoolhouse
interviews of two minors, then ages nine and eleven. 940 F.3d at 1059.
There, however, the record was unclear as to parental consent. Id.
Hence, we could not “conclude that [the minors] . . . were impermissibly
restrained,” absent additional information regarding “whether the
interviews were conducted without either parent’s permission . . ., the
length of the interviews, or the specific circumstances [thereof].” Id.
 SCANLON V. COUNTY OF LOS ANGELES 41

1155 (emphasis in original). Nevertheless, we observed that
it was

at least arguable whether a nine-year old girl
with cognitive disabilities, called into the
administrative office of her school by a
woman who she knew had the authority to
disrupt her family’s life, would feel
empowered to leave or could have consented
to the discussion.

Id. at 1156. We affirmed the district court’s alternative
holding to grant a new trial. Dees suggests that a different
set of facts could transform a social worker interview into a
Fourth Amendment seizure, but it does not firmly establish
that principle.
At least three circuits, the Sixth, Seventh, and Tenth,
have weighed in on this question, but we think that the
results are a mixed bag. The strongest case for G.X. is
Schulkers v. Kammer, 955 F.3d 520 (6th Cir. 2020). In that
case, social workers followed up on a report that a mother of
five children who had recently given birth tested positive for
opiates. Two social workers interviewed each of the older
children, ages 8, 9, 9, and 13, at their public schools. The
interviews lasted about thirty minutes, and the children were
asked pointed questions about their mother’s drug and
alcohol use. Id. at 530. The Sixth Circuit held that the social
workers were entitled to qualified immunity against the
Fourth Amendment claims, but it proceeded to resolve the
constitutional claim on the merits. The court concluded that,
“[a]t a minimum, a social worker must have reasonable
suspicion of child abuse before conducting an in-school
interview without a warrant or consent.” Id. at 538. That
42 SCANLON V. COUNTY OF LOS ANGELES

conclusion, however, appears to be dicta: The court
accepted as true that, at the time of the interviews, the social
workers knew that the drug test had been a false positive and
that they lacked “any plausible suspicion that the . . .
children were subjected to abuse or neglect.” Id. (emphasis
in original); see also Barber v. Miller, 809 F.3d 840, 845
(6th Cir. 2015) (holding the “Fourth Amendment right to
avoid warrantless, in-school interviews by social workers on
suspicion of child abuse not to have been clearly established
in January 2011” and declining to rule on the constitutional
merits of the claim).
The social worker’s awareness that her investigation was
baseless also distinguishes the Tenth Circuit’s decision in
Jones v. Hunt, 410 F.3d 1221 (10th Cir. 2005). There, a
social worker and a police officer interviewed a 16-year-old
for several hours, knowing that there was “no legitimate
basis . . . for detaining [the] child.” Id. at 1229; see id. at
1231 (“A social worker who lacks any legitimate
justification for seizing a child, but nonetheless seizes the
child and demands, in direct contravention of a court order,
that she enter the custody of her abusive father, would
clearly know that his conduct is unconstitutional.” (footnote
omitted)). Jones contrasts with an earlier decision of the
Tenth Circuit, in which a social worker interviewed a nine-
year-old who was suspected of having sexually assaulted a
five-year-old. Doe v. Bagan, 41 F.3d 571, 574 (10th Cir.
1994). The social worker in that case conducted the
interview alone at school over the course of about ten
minutes. The Tenth Circuit held that the social worker did
not violate the child’s Fourth Amendment rights: “[T]his
brief detention by a social services caseworker [wa]s not of
constitutional dimension. . . .[,] [since it] was a de minimis
interference with Doe’s liberty, insufficient at that stage to
 SCANLON V. COUNTY OF LOS ANGELES 43

trigger constitutional liberty concerns.” Id. at 575. In a
lengthy footnote, the court expanded on its analysis:

The seizure here was justified at its inception
because a victim of child abuse had identified
Doe as her abuser; a ten minute interview
with a social services caseworker was
reasonably related in scope to determining
Doe’s role in the incident. This seizure,
therefore, was reasonable as a matter of
law. . . . This was simply an interview by a
caseworker incident to an ongoing child
abuse investigation.

Id. at 574–75 n.3 (citation omitted).
In Doe v. Heck, 327 F.3d 492 (7th Cir. 2003), the
Seventh Circuit held that a twenty-minute interview of an
eleven-year-old conducted by a caseworker in the presence
of a uniformed police officer violated the boy’s Fourth
Amendment rights. What is unusual about Heck is that the
court held that the interview was “presumptively
unreasonable,” id. at 513, because the child was attending a
private school, which was the constitutional equivalent of an
interview in the home, id. at 512–13. The court thus held a
Wisconsin statute, which authorized social workers to
interview children at any location (other than the home) if
the agency thought the child “[wa]s in need of protection or
services,” unconstitutional as applied to private school
students. Id. at 502, 515–16. But it also granted the
defendants qualified immunity. Id. at 516–17; see also
Michael C. v. Gresbach, 526 F.3d 1008, 1018 (7th Cir.
2008) (holding that, in light of Heck, a social worker who
44 SCANLON V. COUNTY OF LOS ANGELES

interviewed minors at a private school was not entitled to
qualified immunity).
We cannot discern a clear rule from these decisions, and
the plain import of our own is that Olarte is entitled to
qualified immunity as to claims stemming from her
schoolhouse interview of G.X. “Qualified immunity
attaches when an official’s conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Kisela v. Hughes,
138 S. Ct. 1148, 1152 (2018) (quoting White v. Pauly,
580 U.S. 73, 78–79 (2017) (per curiam)). “Because the
focus is on whether the officer had fair notice that her
conduct was unlawful, reasonableness is judged against the
backdrop of the law at the time of the conduct.” Id. (quoting
Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per
curiam)). Our decisions are inconclusive. That conclusion
is only reinforced by our review of decisions from other
circuits. The only one with language broad enough to
constitute some warning to Olarte is the Sixth Circuit’s
decision in Schulkers—decided three years after the events
in this case.
In a case where we conclude that the defendant is entitled
to qualified immunity because the constitutional right was
not clearly established at the time of the events, we have the
discretion to reach the constitutional question to “promote[]
the development of constitutional precedent.” Pearson v.
Callahan, 555 U.S. 223, 236 (2009). As the Court has
observed, “if the policy of avoidance were always followed
in favor of ruling on qualified immunity whenever there was
no clearly settled constitutional rule of primary conduct,
standards of official conduct would tend to remain uncertain,
to the detriment both of officials and individuals.” County
of Sacramento v. Lewis, 523 U.S. 833, 840–41 n.5 (1998).
 SCANLON V. COUNTY OF LOS ANGELES 45

Nonetheless, this matter is left to our “sound discretion.”
Pearson, 555 U.S. at 242.
At oral argument, counsel for the Parents candidly urged
us to address the merits of the constitutional claim, even if
only to provide future guidance. Although we are
sympathetic, we decline the invitation to resolve the Fourth
Amendment contours of social worker interviews of children
at school. There are a number of factors that have to be
balanced in these cases. See Demuth v. County of Los
Angeles, 798 F.3d 837, 839 (9th Cir. 2015) (“[I]n the Fourth
Amendment context, . . . ‘the constitutional standard—
reasonableness—is always a very fact-specific inquiry.’”
(quoting C.B. v. City of Sonora, 769 F.3d 1005, 1026
(9th Cir. 2014) (en banc))). These include: the age of the
child; whether the child suffers from any cognitive or
emotional conditions; where the interview took place;
whether the parents knew in advance of the interview and
consented or objected to the interview; the nature of the
claim being investigated, including whether the claim may
result in criminal charges; whether the nature of the claim is
such that the child may be in physical danger; whether the
child is considered a possible victim, a perpetrator, or a
witness; the length of the interview; whether law
enforcement is present; whether the child is allowed to have
present a trusted adult, such as a teacher, counselor, or other
school administrator; whether the child felt coerced or
intimidated; and whether the child has the option of stopping
the interview. See Dees, 960 F.3d at 1149–50 (noting the
County of San Diego’s guidelines for social worker
interviews).
Some of the facts in this case are troubling, while others
point to the reasonableness of the interview. At the time of
Olarte’s schoolhouse interview of G.X., the latter was only
46 SCANLON V. COUNTY OF LOS ANGELES

five years old—roughly half the age of, and more
impressionable than, for example, even the nine-year-old in
Dees. See id. at 1154. Her Parents did not know that she
would be interviewed and may not have consented. Olarte
had no information that G.X. was in any immediate danger,
nor other grounds for believing that the Parents might have
violated any criminal law. But the investigation was still in
an early stage, and Olarte was properly concerned that G.X.
might have access to her sister’s medical marijuana. There
are also numerous questions about Olarte’s interview that
have not been briefed and that might be relevant to resolving
the Fourth Amendment question. The record suggests that
Olarte interviewed G.X. alone and for a very short time, but
it is not crystal clear on either point. We know little about
the circumstances under which G.X. was brought to the
interview and whether she knew that a teacher or other
trusted adult could be in the room with her or at least nearby.
Although Olarte’s interview of G.X. doubtlessly effected a
seizure, we would want additional facts before we concluded
that it represented an unreasonable one. Given the range of
views on this question, compare Schulkers, 955 F.3d at 538
(“[A] social worker must have reasonable suspicion of child
abuse before conducting an in-school interview without a
warrant or consent.”), with Bagan, 41 F.3d at 575 (holding
that a “brief detention by a social services caseworker” does
not violate the Fourth Amendment), we will not address the
Fourth Amendment question on this record. We therefore
affirm the district court’s grant of judgment on the pleadings
as to the schoolhouse interview of G.X.
C. The District Court Erred in Granting Summary
Judgment for Defendants on Plaintiffs’ IIED Claim
The Parents allege it was erroneous for the district court
to dismiss the IIED claim as “inextricably intertwined” with
 SCANLON V. COUNTY OF LOS ANGELES 47

their other claims. To succeed on an IIED claim under
California law, a plaintiff must establish “(1) that the
defendant’s conduct was outrageous, (2) that the defendant
intended to cause or recklessly disregarded the probability of
causing emotional distress, and (3) that the plaintiff’s severe
emotional suffering was (4) actually and proximately caused
by the defendant’s conduct.” Austin v. Terhune, 367 F.3d
1167, 1172 (9th Cir. 2004) (citation omitted). The district
court dismissed the Parents’ IIED claim for the same reason
as their judicial deception claim: It found that “[d]efendants
met their burden of showing that the warrant package did not
contain material misrepresentations” and, therefore, that
“the violation of the [P]arents’ and K.X.’s constitutional
rights based on removal of K.X. fail[ed].” Scanlon,
2021 WL 2420164, at *7. Because we have reversed on the
judicial deception claim, we must reverse that holding as
well.
On remand, the district court should consider evidence
beyond the judicial deception claim that might support a
finding of IIED. As evidence of outrageous state conduct,
the Parents’ complaint cites the “interview of G.X. at the
school,” “wrongful removal and continued detention of both
minor Plaintiffs,” “false statements and misrepresentations
to the juvenile court,” and “unlawful medical and/or mental
health examinations” of G.X. and K.X. Their IIED claim
also incorporates all prior paragraphs of the complaint,
which include additional facts from which a jury could find
IIED. For example, the Parents complain that the children
were placed in separate foster homes despite Scanlon’s
request that they be kept together. G.X. was placed in a
foster home even though Scanlon gave DCFS contact
information for a family that could take her temporarily.
DCFS also never arranged for the Parents to visit their
48 SCANLON V. COUNTY OF LOS ANGELES

children. This evidence may be relevant to the Parents’ IIED
claim.
We therefore reverse and remand the IIED claim for
additional consideration.
D. The District Court Erred in Granting Summary
Judgment for Defendants on Plaintiffs’ Monell Claim
The Parents contend that DCFS has “an unofficial policy
of encouraging its social workers to omit exculpatory
information from warrant applications and refusing to
adequately train them about their constitutional obligations.”
The Parents assert that this failure to train constitutes a
Monell violation. The defendants respond that the Parents’
Monell claim fails for lack of an underlying constitutional
violation.
We have held that “[p]arents and children have a well-
elaborated constitutional right to live together without
governmental interference.” Wallis, 202 F.3d at 1136–37
(collecting cases). In light of our disposition on the judicial
deception claim, the defendants’ position is not viable. But
the question remains whether the Parents can state a Monell
claim. The district court concluded they could not, crediting
a DCFS witness who said that the Department’s practice in
preparing removal applications is to include mitigating facts.
For the reasons we elaborate, this is not a sufficient basis to
deny the Parents’ Monell claim on summary judgment.
To sustain their Monell claim, the Parents must show that
the action that caused their constitutional injury was part of
an “official municipal policy of some nature.” Kirkpatrick,
843 F.3d at 793 (quoting Monell, 436 U.S. at 691). There
are four criteria: “(1) [The Parents] had a constitutional right
of which [they] were deprived; (2) the municipality had a
 SCANLON V. COUNTY OF LOS ANGELES 49

policy; (3) the policy amounts to deliberate indifference to
[their] constitutional right; and (4) ‘the policy is the moving
force behind the constitutional violation.’” Gordon v.
County of Orange, 6 F.4th 961, 973 (9th Cir. 2021) (quoting
Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir.
2011)). We have also observed three ways a plaintiff can
satisfy Monell’s policy requirement: The municipal
government acts pursuant to an express official policy, the
government maintains a longstanding practice or custom, or
the act was committed or ratified by an official with policy-
making authority. Id. at 973–74. Official nonfeasance can
constitute a Monell violation when the municipality in effect
“has a policy of inaction and such inaction amounts to a
failure to protect constitutional rights.” Mortimer v. Baca,
594 F.3d 714, 722 (9th Cir. 2010) (quoting Berry v. Baca,
379 F.3d 764, 767 (9th Cir. 2004)).
This is not our first occasion to consider Monell liability
as it pertains to a county’s child-removal policy. Unlike the
warrant-based seizure at issue here, in Kirkpatrick, social
workers took a newborn from the hospital without securing
a warrant. In evaluating the validity of this seizure, we
started from our “well-settled” position that “a child [can]not
be removed without prior judicial authorization absent
evidence that the child [i]s in imminent danger of serious
bodily injury.” Kirkpatrick, 843 F.3d at 792 (citing, inter
alia, Rogers, 487 F.3d at 1295, and Wallis, 202 F.3d at
1138). We concluded that the social workers there had time
to obtain a judicial warrant, although we granted them
qualified immunity. Turning to the Monell claim, we asked
whether we could “trace the social workers’ unconstitutional
removal to a systemic failure to train [social workers] to
obtain a warrant before seizing a child.” Id. at 793. We
found that there was evidence that the county had “no policy
50 SCANLON V. COUNTY OF LOS ANGELES

or procedures,” either “for obtaining warrants before
removing children from parental custody, or for training its
social workers to recognize that a warrant may be required.”
Id. at 796. We held that “the municipality’s ‘inadequacy
[was] so likely to result in the violation of constitutional
rights’ that a jury could reasonably find § 1983 liability
without needing a pattern of violations” from which to do so.
Id. at 796–97 (quoting City of Canton v. Harris, 489 U.S.
378, 390 (1989)). We therefore reversed the grant of
summary judgment for the county on plaintiffs’ Monell
claim.
Here, DCFS operated under a more formal policy than
the one at issue in Kirkpatrick, removing the children
pursuant to a warrant. The Application and Statement of
Cause that Olarte prepared to obtain the removal warrant
references our decision in Wallis “and its progeny” on its
opening page. A section captioned “Request for
Authorization for Removal” directs the preparing social
worker to indicate whether, in her “professional
opinion[,] . . . the child(ren) should be detained” pursuant to
“Welfare and Institutions Code § 300 pending a Welfare and
Institutions Code § 319 hearing because there is probable
cause to believe that continuance in the home of the parent(s)
. . . is contrary to the child(ren)’s welfare.” From there, the
social worker must identify the source of the purported harm
from among a series of options. Here, Olarte indicated that
“[t]he child(ren)’s physical environment poses a threat to the
child(ren)’s health or safety and there are no reasonable
means by which the child(ren) can be protected without
temporary removal from the physical custody of the parents
or guardians,” language that duplicates that of Welfare and
 SCANLON V. COUNTY OF LOS ANGELES 51

Institutions Code § 340(a). 12 Olarte checked another box
referring the court to her “attached declaration,” which
contained “additional information supporting the need for
protective custody.” More than merely referencing the
relevant standards, DCFS’s Application and Statement of
Cause thus requires social workers to vet the validity of a
proposed removal against the requirements of probable
cause and California state law.
Despite DCFS’s nominal compliance with federal and
state standards, there is evidence in the record from which a
jury could find that the Department’s policy governing the
preparation of warrant applications is insufficient in practice
to protect the constitutional rights of parents like these.
Specifically, there is evidence that DCFS maintains a
practice of omitting exculpatory information from petitions
for removal in a manner tantamount to an official “policy of
inaction.” Mortimer, 594 F.3d at 716 (citation omitted). To
be sure, some DCFS employees testified that supervisors
ensure statements of cause contain mitigating information by
reviewing and directing social workers to insert “relevant”
details where absent. But many employees reported never
receiving training on the constitutional requirement to
include such information. Indeed, several witnesses testified
that there was no requirement. Witness Fred Shook—a 24-
year DCFS veteran with policy-drafting responsibility—

12
As we previously noted, see supra note 6, the form does not accurately
state California’s statutory standards under either Cal. Welf. & Inst.
Code § 300 or § 340. Nevertheless, the Parents have argued only “that
the County had an unofficial policy, practice, and failure of training that
encouraged social workers to make false representations and omit
exculpatory information in warrants submitted to the juvenile court for
the removal of children.” Hence, we do not address how these
inaccuracies bear on the Parents’ Monell claim.
52 SCANLON V. COUNTY OF LOS ANGELES

testified that the Department has no written policy requiring
social workers to include mitigating facts in warrant
applications. And defendant Hashizume testified that the
general practice of DCFS social workers was to include only
information that would encourage the court to separate
parents from their children. When asked if she was “trained
by DCFS that the information that is included in a petition
should be exclusively limited to information that would
support the proposition that the court should take jurisdiction
over the minor child” (emphasis added), Hashizume replied,
“Yes.”
Drawing all inferences in the Parents’ favor, as we must
on a motion for summary judgment, a jury could conclude
that DCFS’s practices are inadequate to protect against
constitutional violations such as those now claimed. We
therefore remand the Monell claim to the district court for
additional consideration.
E. The District Court Did Not Abuse Its Discretion by
Repeating Jury Instructions to a Confused Juror
Finally, the Parents argue that the district court
committed instructional error in its response to a jury
question concerning whether to credit verbal testimony in
the absence of documentary evidence that the Parents had
purchased a lockbox for the cannabis oil. Properly
considered, this claim is not about the jury instructions per
se but about the court’s response to a juror note.
The parties dispute whether the Parents properly
objected to this issue in the proceedings below. We find that
they did. “An objection to a jury instruction ‘need not be
formal’ . . . .” Hunter v. County of Sacramento, 652 F.3d
1225, 1230 (9th Cir. 2011) (quoting Norwood v. Vance,
591 F.3d 1062, 1066 (9th Cir. 2010)). We have previously
 SCANLON V. COUNTY OF LOS ANGELES 53

found proper objections when counsel moved for a new trial,
Shorter v. Baca, 895 F.3d 1176, 1183 (9th Cir. 2018); sent a
letter to the court, Dunlap, 878 F.3d at 798; or proposed an
alternate instruction for the jury, Hunter, 652 F.3d at 1231.
Here, the Parents’ counsel properly objected to the
district court’s response to Juror Note No. 4. Counsel
disputed the defendants’ proposed supplemental instructions
and renewed his objection to the court’s response to the
juror’s question—re-reading instructions 1, 3, 5, 8, and 24—
after it did so. Counsel pointed out that the principal issue
suggested by Juror Note No. 4—potential confusion among
the jury over how to weigh oral versus documentary
evidence—may not have been clarified by the court’s
instruction (and indeed, that further confusion may have
resulted). To that end, counsel requested an additional
instruction that the jury may believe testimony about the
purchase of a lockbox even without testimony regarding a
receipt, which the court refused. These actions were
sufficient to preserve the objection for appeal. Counsel
having properly objected, we review for abuse of discretion,
rather than plain error. Compare Johnson, 351 F.3d at 993,
995 (reviewing for abuse of discretion—although defendant
“did not object to the [relevant] instruction”—the district
court’s decision to respond to a jury question “by simply
referring the jury to the instructions that had already been
given”), with C.B., 769 F.3d at 1016 (reviewing a district
court’s failure to give a requested jury instruction for plain
error absent a timely objection).
The general rule is the jury must decide the case on the
basis of the evidence before it. It “may not enlist the court
as its partner in the factfinding process,” so “the trial judge
must proceed circumspectly in responding to inquiries from
the jury.” Johnson, 351 F.3d at 994 (quoting United
54 SCANLON V. COUNTY OF LOS ANGELES

States v. Walker, 575 F.2d 209, 214 (9th Cir. 1978)).
However, so long as the court does not usurp the jury’s
responsibility, “[w]hen a jury makes explicit its
difficulties[,] a trial judge should clear them away with
concrete accuracy.” Crowley v. Epicept Corp., 883 F.3d
739, 750 (9th Cir. 2018) (quoting United States v. Anekwu,
695 F.3d 967, 986 (9th Cir. 2012)).
Our precedents suggest that there is a delicate balance to
be struck between giving the jury additional instructions and
directing it to the instructions that have already been given.
For example, in McDowell v. Calderon, 130 F.3d 833
(9th Cir. 1997), we concluded that repeating legally correct
jury instructions was insufficient to clarify a juror’s
confusion because “[t]here is no point in reiterating language
which has failed to enlighten the jury.” Id. at 838 (quoting
People v. McDowell, 763 P.2d 1269, 1287 (Cal. 1988)
(Broussard, J., concurring in part and dissenting in part)).
However, in Arizona v. Johnson, we determined that
addressing a juror’s question about the capacity to consent
while in custody by “referring the jury to the instructions
they had already been given” did not constitute an abuse of
discretion. 351 F.3d at 995. Similarly, in Crowley, the jury
asked whether the timing of a predicate event was relevant
to the plaintiffs’ “failure to do what [the] contract required.”
883 F.3d at 750. We concluded that the district court did not
commit reversible error when it responded to the jury’s
question by referring “back to the instructions already given
and the evidence presented at trial.” Id. at 751. Crowley
held that when “the court’s original instructions provide a
correct statement of the law and ‘generally address[] the
jury’s question,’ a district court acts ‘within its discretion by
simply referring the jury to the instructions they had already
 SCANLON V. COUNTY OF LOS ANGELES 55

been given.’” Id. at 750–51 (quoting Johnson, 351 F.3d at
995).
The facts of this case more closely mirror Johnson and
Crowley than McDowell. Here, the jury appears to have
been confused as to the sufficiency of verbal testimony
regarding a lockbox in the absence of documentary evidence
to that effect. However, while the parties disagree as to
whether the district court’s response adequately answered
the juror’s question, neither disputes that the proffered jury
instructions were legally correct. Counsel for the Parents
argued that the question showed that the jury was confused
about whether plaintiffs had the burden of proving the
existence of a receipt for the lockbox. But nothing in the
court’s response changed the burden of proof described in
the original jury instructions. In addition, the court’s
response admonished the jury that witness testimony—
including Sawyer’s testimony that he had purchased a
lockbox—was evidence that it could consider. Taken
together, these facts show “it is more probable than not” that
the jury’s verdict was not affected by the court’s response to
Juror Note No. 4. Dunlap, 878 F.3d at 798 (internal
quotation marks and citation omitted). We conclude that the
district court’s response did not constitute an abuse of
discretion.
IV. CONCLUSION
We affirm the district court’s ruling that plaintiffs’
Fourth Amendment claim regarding the schoolhouse
interview of G.X. is barred by qualified immunity. We also
affirm the district court’s response to Juror Note No. 4. We
reverse the judgment of the district court as to the judicial
deception, Monell, and IIED claims and remand for further
proceedings. Each side shall bear its own costs. Exxon
56 SCANLON V. COUNTY OF LOS ANGELES

Valdez v. Exxon Mobil, 568 F.3d 1077, 1081 (9th Cir. 2009).
The Parents’ motions to file a reply brief under seal and for
additional time in which to do so (Dkt. Nos. 64, 68–69) are
hereby granted.
AFFIRMED in part, REVERSED AND
REMANDED in part.