Kipps v. Caillier

• Decision Date: 25 February 2000
• Docket Number: No. 98-30978,98-30978
• Citation: 205 F.3d 203
• Parties: (5th Cir. 2000) REXFORD KIPPS, CAROL KIPPS AND KYLE KIPPS, Plaintiffs-Appellants, v. JAMES CAILLIER, RAY AUTHEMENT, NELSON J. SCHEXNAYDER, JR. AND NELSON STOKLEY, Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

Page 203

205 F.3d 203 (5th Cir. 2000)

REXFORD KIPPS, CAROL KIPPS AND KYLE KIPPS, Plaintiffs-Appellants, v. JAMES CAILLIER, RAY AUTHEMENT, NELSON J. SCHEXNAYDER, JR. AND NELSON STOKLEY, Defendants-Appellees.

No. 98-30978

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

February 25, 2000

REVISED, MARCH 1, 2000

Appeal from the United States District Court for the Western District of Louisiana

ORDER DENYING REHEARING EN BANC

Before WIENER, DeMOSS and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Plaintiffs petition the Court for a en banc rehearing of our panel opinion at 197 F.3d 765 (5th Cir. 1999). Because we find that plaintiffs raise no arguments that were not adequately considered in the panel opinion, their petition for rehearing en banc is denied.

An issue was raised with respect to the panel majority's qualified immunity analysis. Specifically, whether a court could assume arguendo the first prong of the analysis--the existence of a constitutionally protected right.¹ Fifth Circuit case law appears to require a court to first answer whether an existing constitutional right has been asserted by a party. See, e.g., Evans v. Ball, 168 F.3d 856, 860 (5th Cir. 1999) ("We may not pretermit that first prong but must decide whether Evans has alleged any constitutional violation before we may move to the inquiries under the second prong.") (citing Quives v. Campbell, 934 F.2d 668, 670 (5th Cir. 1991)). Without resolving the question of whether Supreme Court and Fifth Circuit precedent require rigid application of Evans to all qualified immunity situations, we have little trouble finding that a constitutional interest in familial association does, in fact, exist and was clearly established at the time Kipps was fired.

Existence of a Liberty Interest in Familial Association

According to Supreme Court precedent, the Constitution accords special protection to two different types of association, "intimate association" and "expressive association." See Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984); see also Louisiana Debating and Literary Assoc. v. City of New Orleans, 42 F.3d 1483, 1493-94 (5th Cir. 1995). In Roberts, the Court noted that the right to intimate association, the freedom to choose "to enter into and maintain certain intimate human relationships," is a "fundamental element of personal liberty." 468 U.S. at 617-18. At the foundation of this right to intimate association are family relationships:

Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty.

Roberts, 468 U.S. at 619-20 (emphasis added); see also McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th Cir. 1994) ("At a minimum, the right of intimate association encompasses the personal relationships that attend the creation and sustenance of a family.") (emphasis added). Supreme Court precedent with respect to intimate association can be synthesized as a continuum with "family relationships" at one end, receiving the most protection, and arms length relationships, like a business acquaintance, at the other end, "remote from the concerns giving rise to this constitutional protection." Roberts, 468 U.S. at 620.

Defendants assert that in order to have an actionable claim based on familial association there must be a permanent and involuntary separation between parent and child. In other words, before a party can bring a cognizable claim based on interference with familial association, that relationship at issue must be totally destroyed. Notwithstanding the questionable validity of this position, defendants' argument misunderstands the nature of plaintiffs' alleged constitutional injury. Kipps claims that he was fired because of his actual association with his son. ² See (Complaint 16). This is separate and distinct from a claim of state interference with that association.

The importance of the family has been discussed in numerous cases. See, e.g., Lehr v. Robertson, 463 U.S. 248, 258 (1983) ("[T]he relationship of love and duty in a recognized family unit is an interest in liberty entitled to constitutional protection."); Stanley v. Illinois, 405 U.S. 645, 651 (1972) ("It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children 'come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.'") (quoting Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J., concurring)); see also Tyson v. New York City Hous. Auth., 369 F. Supp. 513, 520 (S.D.N.Y. 1974) (holding that public housing tenants had a cause of action under the right of association when they were threatened with eviction because of acts committed by their adult children who did not live with them).

Although it is clear that "family relationships" are subject to constitutional protection, ³ the definitional boundaries that limit the types of associations that constitute "family relationships" are blurred. The case subjudice, however, does not deal with an association on the fringe of the definition for "family relationships." Indeed, the parent-child relationship lies at the heart of protected familial associations. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ("It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."); Morris v. Dearborne, 181 F.3d 657, 671 (5th Cir. 1999) ("The constitutional right to family integrity was well established in 1992."). Our recognition of Kipps's constitutional right ⁴ to familial association with his son (i.e, his right to preserve the integrity of that family relationship) does not take us to the limits that may be imposed on constitutionally protected family relationships.

Kipps's association with his son deserves at least the same protection as association with members of a union, see Boddie v. City of Columbus, 989 F.2d 745, 750 (5th Cir. 1993)("We conclude that Chief Gale should reasonably have known that firing Boddie for his association with union firemen violated clearly established law."). Plaintiffs' claim that Kipps was terminated because his son chose to play football for LSU alleges the impingement of a cognizable constitutionally protected interest.

Objective Reasonableness of Defendants

Although we find that Kipps had a clearly established, constitutionally protected right to familial association with his son, we continue to hold that the defendants' actions were, under the unique facts of this case, objectively reasonable.⁵ See Kipps, 197 F.3d at 768-70. Therefore, defendants are entitled to qualified immunity for their actions.

Conclusion

Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. No member of the panel nor judge in regular active service of the court having requested that the court be polled on Rehearing En Banc, see FED. R. APP. P. 35; 5TH CIR. R. 35, the Petition for Rehearing En Banc is DENIED.

Judge Wiener and Judge Parker concur in the entirety of this order. Judge DeMoss concurs specially.

DeMOSS, Circuit Judge, concurring in the denial of rehearing only:

On December 6, 1999, when the majority filed its original opinion in this case, it acknowledged that:

Whether a constitutional liberty interest is implicated by the facts of this case is highly questionable.

Kipps v. Caillier, 197 F.3d 765, 769 n. 4 (5th Cir. 1999). Now, less than 90 days later and without citation to any relevant intervening decision, the majority jumps to the following conclusion:

We have little trouble finding that a constitutional interest in familial association does, in fact, exist and was clearly established at the time Kipps was fired.

Majority Opinion, at 204. This 180 turnabout permits the majority to at least superficially comply with our precedent requiring that it first address the first prong of the qualified immunity analysis, by finding that the Kippses' alleged a violation of a clearly established constitutional right, but then in the end, return to the actual holding of the original opinion that:

The defendants are entitled to qualified immunity because their conduct was objectively reasonable.

There are several serious problems with the majority's analysis of the first prong of the qualified immunity inquiry in this case. First, the majority spills a lot of ink driving home the importance of the family. I wholeheartedly agree that family relationships are important. I even agree that the United States Constitution affords parents certain protections from unreasonable state interference in decisions regarding the care, custody, training, and education of their children. I do not agree, however, that the Constitution may be invoked to remedy every stupid, irrational, or unreasonable decision taken by a state official, regardless of whether there is actually any tangible interference in the family/parental relationship. The majority apparently disagrees, stating that:

Kipps was fired because of his actual association with his son. This is separate and distinct from a claim of state interference with that association.

I can...