United States Court of Appeals,
Eleventh Circuit.
No. 95-6227.
Terry FOY, and Gloria Foy, individually, and as parents and next
friend of Theresa* Foy, Darron Foy, Tabitha Foy and Lasonya Foy,
minors; Booker Grantham, and Fannie Grantham, individually, and as
parents and next friend of Jamie Grantham, a minor, on behalf of
themselves and all others similarly situated, Plaintiffs-Appellees,
v.
Febru HOLSTON, Iola Williams, Charlotte Boatright, Lena Hardaway,
Gail Shelfer, Andrew P. Hornsby, Jr., individually and as agents,
servants, employees, supervisors and/or directors of the Department
of Human Resources, an agency of the State of Alabama, Defendants-
Appellants,
Department of Human Resources of the State of Alabama, an agency
of the State of Alabama, Defendants.
Sept. 17, 1996.
Appeal from the United States District Court for the Northern
District of Alabama. (No. CV-94-C-516-W), U.W. Clemon, Judge.
Before EDMONDSON and DUBINA, Circuit Judges, and FARRIS**, Senior
Circuit Judge.
EDMONDSON, Circuit Judge:
The issue in this interlocutory appeal is whether certain
Alabama officials are entitled to qualified immunity for their acts
involving the Holyland, a religious community. Because Plaintiffs
have failed to demonstrate that a defendant violated clearly
established federal law, we reverse and instruct the district court
to grant each individual defendant summary judgment based on
qualified immunity. We remand for further proceedings on claims
*
The docket sheet of the court lists Teresa as "Theresa."
In this opinion, we have used the correct spelling of her name.
**
Honorable Jerome Farris, Senior U.S. Circuit Judge for the
Ninth Circuit, sitting by designation.
which are not foreclosed by the granting of qualified immunity.
I. Facts1
The Foys and the Granthams are married couples with minor
children who belong to Christ Temple Church and live in "The
Holyland"—property in Sumter County, Alabama, which the Church
owns. When the Foy's daughter, Teresa, was 15 she became friends
with Angela Smith, an adult who lived and worked at the Holyland.
Teresa's school work and overall comportment deteriorated, and she
eventually ran away from home. After three days living outside the
Holyland at Angela's aunt's house, Teresa returned to her family.
Upon her return, Teresa was spanked with a belt by her father;
her arm was bruised when she dropped her hands to cover her rear.
About a week later, Teresa ran away again—this time accompanied by
another Holyland youth, Monica Sandifer. After spending the first
night away at a house close to the Holyland, the two went to
Angela's aunt's house. Angela told her aunt to send the girls to
an abandoned store. The Sumter County Department of Human
Resources ("DHR") received a tip that two teenagers who had run
1
The "facts" we recite are those found in our review (for
our authority to review the record, see note 3, infra ) of the
pleadings, depositions and affidavits. See Fed.R.Civ.P. 56(c).
The evidence is construed in the light most favorable to the
plaintiff, and we draw all reasonable inferences most favorably
to plaintiffs. Forbus v. Sears Roebuck & Co., 30 F.3d 1402, 1403
n. 1 (11th Cir.1994). Most of these "facts" are only the facts
for purposes of reviewing a summary judgment decision involving
the defense of qualified immunity. A trial (and the jury's
ability to make inferences which we may not) might show the
actual "facts" to be different from some facts we set out here.
See generally Rodgers v. Horsley, 39 F.3d 308, 309 (11th
Cir.1994) (making a similar observation).
away from the Holyland were at the store.2
DHR employees (and defendants below) Iola Williams and
Charlotte Boatright went to the store and picked up the two girls.
The girls said they had run away from the Holyland; Teresa, who
was crying, told Defendants that she had been hit by her father
with a belt—she also displayed the bruises on her arm. Monica
described being pinched on her breast by a Holyland staffer. The
girls alleged other children—naming specifically the Grantham
children—were also abused at the Holyland.
Teresa told Defendants that she did not want to see her
parents or return to the Holyland; she did not want to have her
parents contacted. Monica asked Defendants to call her mother who
lived in Mississippi. Williams told Teresa that her parents had to
be contacted because of the abuse allegations and to tell them that
their daughter was safe. Williams called the Holyland but was told
that the Foys were not in. Williams left her name and phone number
so that the Foys could call.
Teresa and Monica were taken by Williams to a medical doctor
for a physical exam. The doctor reported that Teresa told him that
she did not want to go back to the Holyland. In addition, Teresa
said she would kill herself if she had to go back. The doctor also
2
DHR has wide-ranging duties and responsibilities under
Alabama law where there are reports that a child's welfare is in
jeopardy. For example, DHR is charged with making thorough
investigations upon oral or written reports of child abuse.
Ala.Code § 26-14-7. ("Abuse" is defined as "harm or threatened
harm to a child's health or welfare." Ala.Code § 26-14-1.) And,
DHR is authorized to take a child into protective custody
initially without the consent of the child's parents if the
circumstances are such that continuing custody with the parents
presents an imminent danger to the child's life or health.
Ala.Code § 26-14-6.
said he observed the bruises on Teresa's arm and said that he
observed marks on Monica's breast.
Teresa was placed in foster care. About 10 days after Teresa
was picked up, a "72-hour hearing" was held before Judge Hardaway.
(Judge Hardaway had signed a "pick-up" order for Teresa the day
before.) Defendant Williams, herself, was notified of the 30 April
hearing on 29 April. She called the Holyland to notify Teresa's
parents. Teresa's mother attended the hearing with an appointed
lawyer. At the hearing, Teresa testified and also talked with
Judge Hardaway privately; she informed Judge Hardaway that she did
not wish to return to the Holyland and said she did not want to
have contact with her parents. Teresa's mother was not allowed to
talk to Teresa before or during the hearing. Just over a week
later, the Juvenile Court held another hearing; and the court gave
temporary custody of Teresa to DHR.
Monica was picked up by her mother; but Teresa remained in
foster care. While in foster care, Teresa was permitted telephone
contact with her mother. Defendants Boatright and Williams called
Teresa on the phone and also drove Teresa to counseling sessions.
In her later deposition, Teresa testified that Defendants Boatright
and Williams (as well as another DHR worker, Ms. Widemon) were
supportive and told her that things were going to be all right.
Initially, the Foys had little contact with their daughter; but
Teresa eventually decided that she wanted to see her mother, and
DHR employees set up meetings between the two. In August 1993,
Teresa returned to her parents.
Meanwhile, DHR, filed a June 1993 petition (called the
"Grantham case") in Juvenile Court seeking to investigate
allegations that 17 children living in the Holyland had been
abused. In October, a court ordered the children to be produced;
and DHR conducted videotaped interviews with the children. By
November 1993, the interviews were completed and soon thereafter
DHR moved to dismiss the Grantham case.
In December 1993, Defendant Hornsby, Commissioner of the
Department of Human Resources, conducted a multi-agency meeting
about the Holyland. State and County officials discussed the
Holyland's sewage system, a fire on the Holyland's grounds, the
application of child labor laws to the Holyland, and reports of
child abuse. The different agencies discussed their contacts with
and responsibilities for the Holyland. The agencies also prepared
memoranda about the concerns raised at the meeting. The record
does not show that this meeting spurred acts by state officials
directed against the Holyland or its residents.
Plaintiffs sued various state officials connected with DHR
under section 1983. Plaintiffs alleged that the state official
defendants were prejudiced against the Holyland and its residents
and had denied them the rights "of Freedom of Religion and the free
exercise of their religion and their right to freedom of
association and freedom of speech as guaranteed under the
Constitution of the United States." Plaintiffs also alleged equal
protection violations. Defendants moved for summary judgment based
on qualified immunity, but the district court denied this motion.
Defendants took this interlocutory appeal.3
II. Discussion
Claims for money damages against government officials in their
individual capacity involve substantial costs not only for the
individual official—who incidentally may be innocent—but for
society in general. "These social costs include the expenses of
litigation, the diversion of official energy from pressing public
issues, and the deterrence of able citizens from acceptance of
public office. Finally, there is the danger that fear of being
sued will "dampen the ardor of all but the most resolute, or the
most irresponsible [public officials], in the unflinching discharge
3
We have jurisdiction despite the absence of a final order.
This appeal—unlike Johnson v. Jones, --- U.S. ----, 115 S.Ct.
2151, 132 L.Ed.2d 238 (1995)—is not based solely on questions of
evidentiary sufficiency. Instead, the appellants raise the core
qualified immunity issue (which is a legal issue) of whether,
taking the facts in the light most favorable to the plaintiffs,
clearly established federal rights were violated. It is the
raising of this legal issue which permits us to review on
interlocutory appeal the order denying qualified immunity. See
Behrens v. Pelletier, --- U.S. ----, ----, 116 S.Ct. 834, 842,
133 L.Ed.2d 773 (1996) ("[S]ummary-judgment determinations are
appealable when they resolve a dispute concerning an abstract
issue of law relating to qualified immunity—typically, the issue
whether the federal right allegedly infringed was clearly
established.") (citations, internal quotation marks and brackets
omitted).
The district court denied Defendants' motion by
stamping the word "DENIED" on the motion and signing the
judge's name under the stamp. So, the district court made
no express findings of fact and did not discuss whether it
was clearly established that Defendants acted unlawfully.
The Supreme Court has explained that where core qualified
immunity issues are raised on appeal and where the district
court fails to make findings of fact, the appellate court
must undertake a review of the record to determine the facts
in the light most favorable to the nonmoving party.
Behrens, --- U.S. at ----, 116 S.Ct. at 842. On the right
of appellate courts to review the record in interlocutory
appeals of the denial of qualified immunity generally, see
Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir.1996).
of their duties.' " Harlow v. Fitzgerald, 457 U.S. 800, 814, 102
S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982) (citations omitted).
The qualified immunity defense is the public servant's (and
society's) strong shield against these dangerous costs. Qualified
immunity protects government officials performing discretionary
functions from civil trials (and the other burdens of litigation,
including discovery) and from liability if their conduct violates
no clearly established statutory or constitutional rights of which
a reasonable person would have known. Harlow, 457 U.S. at 817-19,
102 S.Ct. at 2738. According to the Supreme Court, the Harlow
standard "purged qualified immunity doctrine of its subjective
components," Mitchell v. Forsyth, 472 U.S. 511, 517, 105 S.Ct.
2806, 2810, 86 L.Ed.2d 411 (1985), and "rejected the inquiry into
state of mind in favor of a wholly objective standard," Davis v.
Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139
(1984). As the Supreme Court has written just this year, "Harlow
adopted this criterion of "objective legal reasonableness,' rather
than good faith, precisely in order to "permit the defeat of
insubstantial claims without resort to trial.' " Behrens v.
Pelletier, --- U.S. ----, ----, 116 S.Ct. 834, 838, 133 L.Ed.2d 773
(1996) (citations omitted). "Objective legal reasonableness is the
touchstone." Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1150
(11th Cir.1994) (en banc).
Once the qualified immunity defense is raised, plaintiffs
bear the burden of showing that the federal rights allegedly
violated were clearly established. See Barts v. Joyner, 865 F.2d
1187, 1190 (11th Cir.1989) (citing Mitchell, 472 U.S. at 526-28,
105 S.Ct. at 2816). This burden is not easily discharged: "That
qualified immunity protects government actors is the usual rule;
only in exceptional cases will government actors have no shield
against claims made against them in their individual capacities."
Lassiter, 28 F.3d at 1149. Plaintiffs cannot carry their burden of
proving the law to be clearly established by stating constitutional
rights in general terms. Dartland v. Metropolitan Dade County, 866
F.2d 1321, 1323 (11th Cir.1989). We conclude from our review of
Plaintiffs' pleadings, briefs, and the record that they have
asserted two kinds of constitutional claims which require
discussion: family privacy and discrimination on the basis of
religion.4
A. Discrimination
As we understand it, Plaintiffs say that placing (and
keeping) Teresa in foster care, interviewing the children in the
Grantham case, and holding the multi-departmental meeting of state
officials violated their constitutional rights because Defendants
acted as they did out of a hostility toward the religious teachings
of the Christ Temple Church. Because Plaintiffs argue that their
First Amendment and equal protection rights have been violated by
disparate treatment on the basis of religion, discriminatory
4
We also observe that Plaintiffs did not allege (or argue to
us) that Defendants' failure to follow state procedures resulted
in a violation of procedural due process. We point out that
Defendants cannot be said to have violated clearly established
federal law simply by failing (if there was a failure) to follow
provisions of the Alabama code or state regulations which govern
child custody matters. See Davis v. Scherer, 468 U.S. 183, 193-
95, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984) (officials "do
not lose their qualified immunity merely because their conduct
violates some [state] statutory or administrative provision").
purpose is something which Plaintiffs must prove to prevail.5 See
General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 390-
92, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982) (observing that
Equal Protection clause can be violated only by "purposeful
discrimination"); see also Church of Scientology v. City of
Clearwater, 2 F.3d 1514, 1525 (11th Cir.1993) ("Religious groups
and their members that are singled out for discriminatory
government treatment ... have standing to seek redress in federal
courts"); Jones v. White, 992 F.2d 1548, 1573 (11th Cir.1993) ("To
prevail on an equal protection claim that a facially neutral
statute is being applied unequally, purposeful discrimination must
be shown") (quotation marks omitted).
Defendants' first response to this charge is that the record
supports no finding of discriminatory intent. But, we accept that
Plaintiffs have presented a triable issue of fact on whether
Defendants were motivated by a hostility toward the religion at the
Holyland. In addition, we, for now, resolve this disputed issue by
making an assumption in Plaintiffs' favor. So, the question
becomes whether this assumption—that is, Defendants' acts were
motivated some by prejudice against Plaintiffs' religion—is a bar
5
But, many constitutional torts do not require the plaintiff
to prove that the defendant possessed discriminatory intent in
acting. For qualified immunity in such cases, no court doubts
that Harlow 's test of objective reasonableness applies: The
subjective intent of the government actor is unimportant to the
resolution of the qualified immunity issue. The sole question is
whether any reasonable official (regardless of subjective motive)
could have acted as the defendant acted without violating clearly
established law. For an example of such a constitutional tort,
see Part II.B. (discussing family privacy claim).
to immunity.6
Sometimes a plaintiff has avoided summary judgment based on
qualified immunity when an issue of fact existed about whether the
defendants acted with subjective discriminatory intent where
discriminatory intent was an element of the constitutional tort.
See, e.g., McMillian v. Johnson, 88 F.3d 1554 (11th Cir.1996);
Ratliff v. DeKalb County, 62 F.3d 338 (11th Cir.1995). Immunity
(at the summary judgment stage) was denied despite Harlow 's
admonition that qualified immunity requires not a subjective
inquiry, but an objective inquiry. Our former decisions, however,
must not be understood to rule out qualified immunity wherever
discriminatory intent appears in the summary judgment record even
if discriminatory intent is an element of the underlying
6
We, in the past, have held state officials to be entitled
to qualified immunity where a plaintiff alleged discriminatory
intent and the summary judgment record showed discriminatory
intent perhaps existed. See Beauregard v. Olson, 84 F.3d 1402
(11th Cir.1996) (court assumed defendant fired plaintiff because
of political affiliation); Bates v. Hunt, 3 F.3d 374 (11th
Cir.1993) (allegation—assumed to be true—of gender discrimination
on pay and record showed that employer was, in fact, motivated,
at least in part, by lawful consideration of work experience);
see also Zeigler v. Jackson, 716 F.2d 847, 850 (11th Cir.1983)
(individuals granted immunity on equal protection claim upon
which plaintiff prevailed where defendants believed state law
required them to act as they acted).
And, other courts have said that a state official is
entitled to immunity where he had an arguable basis for
thinking he was acting lawfully despite his treating the
plaintiff adversely based on the class of persons to which
plaintiff belongs or because the plaintiff had engaged in
certain conduct. See, e.g., Harrison & Burrowes Bridge v.
Cuomo, 981 F.2d 50, 61 (2d Cir.1992) (intentional
discrimination on basis of race not plainly unlawful);
Henry v. Metropolitan Sewer Dist., 922 F.2d 332 (6th
Cir.1990) (intentional discrimination on basis of union
membership not plainly unlawful); Wilson v. Schillinger,
761 F.2d 921 (3d Cir.1985) (intentional discrimination on
basis of religion not plainly unlawful).
constitutional tort.
Qualified immunity is too important a right of public servants
and too important a public policy to be nullified so easily. The
Supreme Court has not instructed us to drop qualified immunity
(with its test of objective reasonableness) from cases in which
discriminatory intent is an element of the underlying tort. Cf.
Anderson v. Creighton, 483 U.S. 635, 645-46, 107 S.Ct. 3034, 3042,
97 L.Ed.2d 523 (1987) ("Harlow clearly expressed the understanding
that the general principle of qualified immunity it established
would be applied "across the board.' "). So, whenever a public
officer is sued for money damages in his individual capacity for
violating federal law, the basic qualified immunity question looms
unchanged: Could a reasonable officer have believed that what the
defendant did might be lawful in the circumstances and in the light
of the clearly established law?
When public officials do their jobs, it is a good thing.
Qualified immunity is a real-world doctrine designed to allow local
officials to act (without always erring on the side of caution)
when action is required to discharge the duties of public office.
See Davis v. Scherer, 468 U.S. 183, 196, 104 S.Ct. 3012, 3020, 82
L.Ed.2d 139 (1984) ("[O]fficials should not always err on the side
of caution."). For many public servants, a failure to act can have
severe consequences for the citizenry. For example, if child
welfare officials fail to act, the death or serious permanent
injury of a child could be the result.
As we decide this case, we cannot forget the purpose of
qualified immunity. The qualified immunity defense functions to
prevent public officials from being intimidated—by the threat of
lawsuits which jeopardize the official and his family's welfare
personally—from doing their jobs. Qualified immunity can be a
muscular doctrine that impacts on the reality of the workaday world
as long as judges remember that the central idea is this pragmatic
one: officials can act without fear of harassing litigation only
when they can reasonably anticipate— before they act or do not
act—if their conduct will give rise to damage liability for them.
Davis, 468 U.S. at 195, 104 S.Ct. at 3019-20. If objective
observers cannot predict—at the time the official acts—whether the
act was lawful or not, and the answer must await full adjudication
in a district court years in the future, the official deserves
immunity from liability for civil damages. See Elder v. Holloway,
510 U.S. 510, 513-15, 114 S.Ct. 1019, 1022, 127 L.Ed.2d 344 (1994).
This lesson is at the heart of the rule of qualified immunity.
That state officials can act lawfully even when motivated by
a dislike or hostility to certain protected behavior by a citizen
is well established. See Mt. Healthy v. Doyle, 429 U.S. 274, 97
S.Ct. 568, 50 L.Ed.2d 471 (1979). That state officials can be
motivated, in part, by a dislike or hostility toward a certain
protected class to which a citizen belongs and still act lawfully
is likewise well established. See Vil. of Arlington Hts. v. Metro.
Housing Dev., 429 U.S. 252, 269-71, 97 S.Ct. 555, 566 n. 21, 50
L.Ed.2d 450 (1977). For example, state officials act lawfully
despite having discriminatory intent, where the record shows they
would have acted as they, in fact, did act even if they had lacked
discriminatory intent. Mt. Healthy, 429 U.S. at 286-87, 97 S.Ct.
at 576.
The Mt. Healthy doctrine is part of the law and, when the
concept is presented by a defendant's argument, must not be
7
overlooked in the qualified immunity analysis. Where
discriminatory intent is an element of the tort and the summary
judgment record seems to show that discriminatory intent might have
played a part in the state official's acts, the existence of the
Mt. Healthy doctrine complicates and, therefore, can cloud the
question of whether the official acted lawfully or unlawfully in
the circumstances. This cloud, in turn, raises the possibility
that even conduct which might ultimately be found to be unlawful
was objectively reasonable when it was done.
One trigger to the doctrine's application depends upon
whether the record establishes that the defendant, in fact, did
possess a substantial lawful motive for acting as he did act. At
least when an adequate lawful motive is present, that a
discriminatory motive might also exist does not sweep qualified
immunity from the field even at the summary judgment stage. Unless
it, as a legal matter, is plain under the specific facts and
circumstances of the case that the defendant's conduct—despite his
having adequate lawful reasons to support the act—was the result of
his unlawful motive, the defendant is entitled to immunity. Where
the facts assumed for summary judgment purposes in a case involving
qualified immunity show mixed motives (lawful and unlawful
7
We are not the only circuit to recognize that Mt.
Healthy-type concerns are important in interlocutory appeals from
the denial of qualified immunity. See, for example, Gehl Group
v. Koby, 63 F.3d 1528 (10th Cir.1995).
motivations) and pre-existing law does not dictate that the merits
of the case must be decided in plaintiff's favor, the defendant is
entitled to immunity.
Given the undisputed facts in this case, the Mt. Healthy idea
does obscure the answer for the question of whether Defendants
acted lawfully or unlawfully in the circumstances. 8 Applying the
usual summary judgment rules (Rule 56[c], [d] ), the record does
show Defendants had, in fact, cause to understand that Teresa was
possibly being mistreated. The record also shows Defendants were,
in fact, aware of information that would warrant investigation of
other children. These justifications for acting are lawful. See
Myers v. Morris, 810 F.2d 1437, 1462-63 (8th Cir.1987); Watterson
8
Mt. Healthy is not a case about qualified immunity. Mt.
Healthy teaches about causation when the merits of a claim are to
be decided. The concept it sets out is suggestive of a kind of
balancing between (that is, to estimate the relative importance
of) lawful causes and unlawful causes for an act. In this case,
we put Mt. Healthy in the qualified immunity context: We try to
take into account subjective intent and, at the same time, we try
to advance and give credit to the principles which the Supreme
Court has repeatedly said justify qualified immunity.
When the law contemplates some kind of balancing test
to determine the ultimate question of lawfulness or
unlawfulness of an act, qualified immunity almost always
applies to shield the public servant defendant: the lack of
bright lines associated with balancing tests prevents the
preexisting law, given the circumstances of a specific case,
from having been clearly established when the public servant
took the step that resulted in his later being a defendant
in a lawsuit. See generally Hansen v. Soldenwagner, 19 F.3d
573, 575 (11th Cir.1994).
The only question today before us is one of immunity.
A decision on qualified immunity is separate and distinct
from the merits of the case. We do not (and need not)
decide that Defendants could not possibly be liable if the
case were fully litigated to a conclusion on the merits,
that is, if immunity were no issue at all in the case. And
the case does involve some defendants and some claims for
relief to which qualified immunity does not apply.
v. Page, 987 F.2d 1, 8 (1st Cir.1993); see also Part II.B. No
jury could find that it would have been unlawful for a child
custody worker to do as Defendants did if the worker lacked
discriminatory intent. More important, no jury could find that
reasonable child custody workers would never have done the things
defendants did but for a discriminatory intent. In addition, the
record makes it clear that Defendants' acts were actually motivated
by lawful considerations without which they would not have acted.9
9
We know that matters of intent are often jury questions.
But, even at summary judgment, "where the defendant's
justification evidence completely overcomes any inference to be
drawn from the evidence submitted by the plaintiff the [ ] court
may properly acknowledge that fact...." Young v. General Foods
Corp., 840 F.2d 825, 830 (11th Cir.1988) (quoting Grigsby v.
Reynolds Metals Co., 821 F.2d 590, 597 (11th Cir.1987)).
Because the record does establish that Defendants'
acts, in fact, were motivated, in part at least, by lawful
justifications, this case is materially different than
McMillian. See 88 F.3d at 1564-65 (case in which district
court [taking all of the reasonable inferences in
plaintiff's favor] found, that is, assumed for the purpose
of qualified immunity determinations, no legitimate reason,
in fact, motivated defendants' acts). Given our
precedents—whether they are right or wrong, the question for
qualified immunity here cannot just be whether some
official, acting without discriminatory intent, could have
lawfully acted as Defendants acted. McMillian says that
where intent is an element of the constitutional tort, the
intent of the government official can be part of the
circumstances which we are forced to consider. (But for our
precedents allowing subjective intent to count in the
qualified immunity context, defendants in this case would
certainly be due immunity. See Millspaugh v. County Dept.
of Public Welfare, 937 F.2d 1172, 1173 (7th Cir.1991).)
Given Mt. Healthy's teachings (part of the
constitutional backdrop against which local officials decide
whether an act which they think necessary is also lawful),
we must consider the fact of lawful intent just as we
consider the fact of unlawful intent. Here the record, in
fact, shows substantial lawful intent, while not ruling out
some unlawful intent, too. Unlike McMillian and Ratliff
(which involved pointed district court fact findings—that we
did not review—about the intent of the defendants and in
So, unless it was already clearly established when Defendants
acted that no child custody worker could lawfully act—that is, do
what Defendants did—to protect children in the circumstances of
this case if the worker also acted, in part, out of hostility
toward the parent's religion, Defendants are entitled to immunity.
On the question of the legal consequences of the facts (proved in
favor of defendants and assumed in favor of plaintiffs) in this
case, Plaintiffs point us to no cases (and we have found none)
which would have clearly established as a matter of law that child
custody workers cannot act lawfully under these circumstances—even
when we accept that the circumstances do include substantial
prejudice by the officials against Plaintiffs on account of
Plaintiffs' religious beliefs.10
In the circumstances, no clear legal standard could firmly
which the Mt. Healthy doctrine was not discussed), we are
deciding the qualified immunity question based on
circumstances which include indisputable and sufficient
lawful motivations on the part of Defendants.
10
Protecting children is the job for which social workers
are paid. Never has the Supreme Court or this circuit or
Alabama's appellate courts held that a social worker cannot act
to protect children—when faced with circumstances that would
warrant a pure-hearted reasonable person to act—if the particular
social worker's motivations are, in fact, mixed, some lawful and
some not. We cannot say the preexisting law was so clearly
established, at the pertinent moment, that a social worker (who
had unlawful motivations) would have known—even when faced with
circumstances that would have justified a reasonable (and
pure-hearted) social worker to act—that he, because some of his
motivations were not right, had to turn away and not to act on
behalf of the children if he wished to avoid violating federal
law. And, as we understand it, unless the law was to that degree
clearly established (that is, so clearly established that the
pertinent, partially bad-hearted, social worker would be acting
lawfully only if he did not act in defense of the children—given
the particular social worker's subjective feelings), the Supreme
Court's teachings on qualified immunity say the social worker is
due immunity.
direct Defendants when the time to act or not to act was upon them.
Because, given the circumstances and the state of the law, a
reasonable child custody worker could have considered Defendants'
conduct arguably proper even if Defendants were motivated in
substantial part by unlawful motives, Defendants' conduct was
objectively reasonable for the purposes of qualified immunity.
Defendants are entitled to summary judgment based on qualified
immunity on this disparate treatment claim.
B. Family Liberty
Plaintiffs have alleged violations of their right to "freedom
of association," which we construe to include a claim that their
rights to preserve their family unit have been violated. See Lehr
v. Robertson, 463 U.S. 248, 258, 103 S.Ct. 2985, 2991-92, 77
L.Ed.2d 614 (1983) ("[t]he relationship of love and duty in a
recognized family unit is an interest in liberty entitled to
constitutional protection"). Plaintiffs also allege a free
exercise violation. Family-oriented liberty rights can involve the
right to raise children in accordance with certain religious
teachings. See Prince v. Massachusetts, 321 U.S. 158, 166, 64
S.Ct. 438, 442, 88 L.Ed. 645 (1944).
To prevail on a claim about family privacy, parents need to
prove that a state actor interfered with a protected liberty
interest without sufficient justification. This constitutional
tort requires no element of intent. For example, no showing need
be made that the state official acted out of a hostility toward the
family unit or toward protected religious behavior engaged in by
the family. Cf. Canas-Segovia v. INS, 902 F.2d 717, 723 n. 12 (9th
Cir.1990), vacated on other grounds, 502 U.S. 1086, 112 S.Ct. 1152,
117 L.Ed.2d 401 (1992) (observing that equal protection cases are
different from freedom of religion cases because equal protection
cases "require[ ] proof of discriminatory intent"). So, as we have
discussed in note 5, the qualified immunity question on this claim
is whether any reasonable officer (that is, one without hostility
toward Plaintiffs' religion or family) could have acted as these
Defendants acted without violating federal law.
Family relationships are an area of state concern, and the
state has a compelling interest in removing children who may be
abused. See Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.1987).
Likewise, "[t]he right to family integrity clearly does not include
a constitutional right to be free from child abuse investigations."
Watterson v. Page, 987 F.2d 1, 8 (1st Cir.1993). Violations of the
right to family association are determined by a balancing of
competing interests. Manzano v. South Dakota Dep't of Social
Servs., 60 F.3d 505 (8th Cir.1995). So, state officials who act to
investigate or to protect children where there are allegations of
abuse almost never act within the contours of "clearly established
law." See Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir.1992).
Thus, it is no surprise that state officials who investigate
allegations of child abuse and in so doing disrupt a family have
been entitled to qualified immunity. See, e.g., Thomason v. SCAN
Volunteer Services, 85 F.3d 1365 (8th Cir.1996); Manzano, 60 F.3d
at 511; Watterson, 987 F.2d at 8; Frazier, 957 F.2d at 931;
Myers, 810 F.2d at 1462; Backlund v. Barnhart, 778 F.2d 1386 (9th
Cir.1985) (foster parents claim free exercise right to use corporal
punishment).
Here, the record is undisputed that Teresa (1) alleged abuse
by her parents, (2) had bruises on her arm, (3) said she did not
wish to return to her parents, and (4) threatened suicide. Monica
also alleged abuse which was supported by the doctor's exam. And,
each girl alleged that they were not the only children abused by
Holyland adults. (We do not conclude the record proves child
abuse, in fact.) Under the circumstances, no clearly established
right to family privacy has been shown to have been violated by the
conduct of Defendants. This conclusion is so even if the
investigation and custody determination procedures were not
"textbook perfect." See Manzano, 60 F.3d at 513 (citing Watterson,
987 F.2d at 8). As such, the district court should have granted
the Defendant's motion for summary judgment on these claims (as
well as all others).
In sum, we reverse the order denying Defendants summary
judgment based on qualified immunity. We remand and instruct that
the district court grant each individual defendant summary judgment
from the claims which seek to hold an individual defendant
personally liable for money. The only issue in this appeal is the
issue of qualified immunity; so, we also remand for further
proceedings.
REVERSED and REMANDED.