Brittain v. Hansen

• Decision Date: 22 June 2006
• Docket Number: No. 03-57012.,03-57012.
• Citation: 451 F.3d 982
• Parties: Elaine BRITTAIN, Plaintiff-Appellee, v. William HANSEN; Rebecca Scott; County of San Bernardino, Defendants, and Brian Campbell, # C0191, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 982

451 F.3d 982

Elaine BRITTAIN, Plaintiff-Appellee, v. William HANSEN; Rebecca Scott; County of San Bernardino, Defendants, and Brian Campbell, # C0191, Defendant-Appellant.

No. 03-57012.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 15, 2005.

Filed June 22, 2006.

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Dennis E. Wagner, Deputy County Counsel, San Bernardino, CA, for defendant-appellant Brian Campbell.

George G. Romain, Haney, Buchanan & Patterson, L.L.P., Los Angeles, CA, for plaintiff-appellee Elaine Brittain.

Appeal from the United States District Court for the Central District of California; Virginia A. Phillips, District Judge, Presiding. D.C. No. CV-01-00595-VAP.

Before WALLACE, SILVERMAN, and CALLAHAN, Circuit Judges.

Opinion by Judge Wallace; Concurrence by Judge Silverman

WALLACE, Senior Circuit Judge.

Appellant Police Officer Brian Campbell takes this interlocutory appeal from the district court's denial of his summary judgment motion based upon qualified immunity. We have jurisdiction pursuant to 28 U.S.C. § 1292. We reverse.

I.

This appeal arises out of a child custody dispute between Elaine Brittain and William Hansen, the unmarried parents of Matthew Brittain (Matthew). Brittain and Hansen had previously litigated custody of Matthew in the San Bernardino Superior Court. The adjudication resulted in a custody order awarding Hansen sole legal custody of Matthew, who was thirteen years old at the time of the events in dispute. Although Hansen was the sole legal guardian, the superior court awarded visitation rights to Brittain.

The custody order included a visitation schedule which governed in the event that Brittain and Hansen were unable to agree on one of their own. Brittain and Hansen rarely agreed on a schedule. Two paragraphs of that order are central to this appeal:

11. The last week during each period the minor is off track from school, or if minor is not in a year-round program, for three non-consecutive weeks during summer vacation. Mother is to notify Father prior to May 15 of each year of the three weeks during summer vacation she intends to have the minor. If the parties cannot agree on the specific three weeks, Mother shall have the minor the last full week of each of the months of June, July, and August.

12. Father shall have the right to a three or four week vacation each year in which he may remove the minor from the state of California and during which time the Mother's visitation shall be suspended. Father will give Mother a one month written notice of the dates he intends to take his vacation.

On July 20, 2000, Hansen gave Brittain notice that he would be taking Matthew for vacation from August 21 to September 3, 2000. When Hansen delivered the note, he told Brittain that no replacement week would be provided.

On August 20, Hansen arrived at Brittain's house to pick up Matthew. Matthew went outside and told his father that he would not be going with him because it was Brittain's week for visitation. Brittain called the police. It was not unusual for law enforcement to be called to mediate this custody dispute; Matthew estimated that it had occurred around forty times. By the time Deputy Sheriff Dorough arrived, Hansen had left. Brittain showed him the custody order. Dorough indicated that he believed Brittain's interpretation of the visitation order was correct.

Hansen returned the following day to Brittain's residence with his sister, Rebecca Scott. Shortly thereafter, approximately 2:30 p.m., Officer Campbell arrived at Brittain's residence. Hansen handed Campbell a copy of the child custody order and a copy of Hansen's note informing Brittain of his intention to take Matthew on vacation. Campbell reviewed the documents and discussed the dispute with Hansen.

Campbell then telephoned Brittain and asked her and Matthew to come out of the residence. Brittain came out into the front yard and opened a gate to admit Campbell onto the property. Campbell and Brittain then discussed the custody dispute and order. Brittain acknowledged receiving Hansen's July 20 note and never disputed the validity of the custody order. Campbell stated that he believed paragraph 12 controlled and therefore Hansen was entitled to custody for the disputed week.

At this point, Brittain unsuccessfully attempted to call her lawyers. Brittain then called the Highland Police Department and asked to speak to the watch commander. After speaking with Brittain, the watch commander asked to speak with Campbell. At some point during this call, Campbell switched on his recorder. Brittain stated that Campbell became irate because she had called his supervisor and thereafter spoke to her in alternately a "hostile and condescending tone" or "aggressive and condescending tone."

After speaking with the watch commander, Campbell and Brittain resumed their discussion over the custody dispute. Campbell expressed his opinion that "You can't stop at line 25. You have to go on and read 26, [beginning of paragraph 12] the rest of it." After additional argument, Brittain asked Campbell for more time to try to contact her lawyers again. Campbell refused and said that he was "deciding it right now." Campbell said that he was "going to take Matthew" and that "[h]e's going with [Hansen]." He then ordered Brittain to bring Matthew out of the house. Brittain also stated, and Campbell denies, that Campbell threatened her with arrest if she did not comply. After stating that she would sue Campbell and that "I can play any game I want with my son," Brittain agreed to bring Matthew outside the house.

The transfer of Matthew to Hansen was then apparently accomplished without further incident. Campbell stated that Matthew never indicated that he did not wish to go with Hansen. Matthew stated he was not sure if he told Campbell that he did not wish to go with Hansen.

Campbell estimated that he had previously handled between five and ten custody disputes during his fifteen years as an officer. In those previous instances, Campbell did not order an objecting parent to transfer a child.

Campbell testified that he had never met Hansen, Scott or Brittain previously. However, Brittain has pointed to evidence that allegedly supports the inference that there was a conspiracy between Campbell, Hansen, and Scott to deprive Brittain of her visitation rights. In an April 4, 2000 incident, law enforcement officers were called to mediate a similar dispute and sided with Brittain. Matthew testified that Scott said that "next time [we're] going to get [our] cop." Matthew also testified that, at some point, his aunt "did meet a cop at a bar," although Matthew did not know to which officer Scott was referring. Matthew also believed that Campbell may have called Hansen and Scott by their first names. Matthew stated that Scott and Hansen were "laughing and smirking" at times during the dispute. Lastly, Matthew testified that Campbell appeared to know that Hansen intended to go to Oceanside for the vacation.

Brittain also argues that a tape recording from Campbell's belt recorder of parts of the August 20 incident shows a conspiracy among Campbell, Hansen and Scott and evidence tampering. Brittain points out that the tape was not turned on until about five minutes into the incident and that the tape was turned off and on twice during the dispute. Based on this evidence, the district court found that there was a material issue of fact as to whether there was a conspiracy among Campbell, Hansen and Scott.

II.

Although we ordinarily review only final judgments, officers are permitted to take an interlocutory appeal of a district court's denial of qualified immunity. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 737, 163 L.Ed.2d 570 (2005). This is because qualified immunity is "immunity from suit rather than mere defense to liability . . . [and] is effectively lost if a case is erroneously permitted to go to trial." Mitchell, 472 U.S. at 526, 105 S.Ct. 2806 (emphasis omitted). We do not resolve factual disputes on interlocutory review, see Johnson v. Jones, 515 U.S. 304, 313-17, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), but "[w]here disputed facts exist, however, we can determine whether the denial of qualified immunity was appropriate by assuming that the version of the material facts asserted by the non-moving party is correct." KRL v. Moore, 384 F.3d 1105, 1110 (9th Cir.2004), quoting Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir.2001) (as amended). We review a district court's denial of summary judgment based on qualified immunity de novo. Genzler, 410 F.3d at 636.

Qualified immunity shields government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct 2727, 73 L.Ed.2d 396 (1982) (citations omitted); see also Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law"). Consideration of qualified immunity in a Section 1983 claim raises two questions. Menotti v. City of Seattle, 409 F.3d 1113, 1152 (9th Cir.2005). Under the approach set out by Saucier v. Katz, we first must ask "whether a constitutional right would have been violated on the facts alleged." 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id. at 201, 121 S.Ct. 2151.

If a constitutional violation is established, we consider "whether that right was `clearly established' such that `it would be clear to a reasonable officer that...