205 F.3d 203 (5th Cir. 2000), 98-30978, Kipps v Caillier

Docket Nº:98-30978
Citation:205 F.3d 203
Party Name:REXFORD KIPPS, CAROL KIPPS AND KYLE KIPPS, Plaintiffs-Appellants, v. JAMES CAILLIER, RAY AUTHEMENT, NELSON J. SCHEXNAYDER, JR. AND NELSON STOKLEY, Defendants-Appellees.
Case Date:February 25, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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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, Fifth Circuit

February 25, 2000

REVISED, MARCH 1, 2000

Page 204

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

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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...

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