Burke v. County of Alameda

• Decision Date: 10 November 2009
• Docket Number: No. 08-15658.,08-15658.
• Citation: 586 F.3d 725
• Parties: David BURKE; Melissa Burke; Clifton Farina, Plaintiffs-Appellants, v. COUNTY OF ALAMEDA; Mark Foster, individually and as an employee of the County of Alameda; Kurt Von Savoye, individually and as an employee of Alameda County, aka Lou Von Savoye; Anthony Bartholomew, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

586 F.3d 725

David BURKE; Melissa Burke; Clifton Farina, Plaintiffs-Appellants, v. COUNTY OF ALAMEDA; Mark Foster, individually and as an employee of the County of Alameda; Kurt Von Savoye, individually and as an employee of Alameda County, aka Lou Von Savoye; Anthony Bartholomew, Defendants-Appellees.

No. 08-15658.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 16, 2009.

Filed November 10, 2009.

Robert R. Powell, Law Offices of Robert R. Powell, San Jose, CA, for plaintiffs-appellants Melissa Burke, David Burke, and Clifton Farina.

Catherine Wheeler, Andrada & Associates, PC, Oakland, CA, for defendants-appellees Mark Foster, Anthony Bartholomew, and the County of Alameda.

Appeal from the United States District Court for the Northern District of California, Saundra B. Armstrong, District Judge, Presiding. D.C. No. 06-CV-04533-SBA.

Before: D.W. NELSON, W. FLETCHER and RICHARD A. PAEZ, Circuit Judges.

D.W. NELSON, Senior Circuit Judge:

This case involves the conflict between the right of families to be free of arbitrary governmental interference and the legitimate role of the state in protecting children from abuse.

In 2005, B.F., the fourteen-year old daughter of Melissa Burke and Clifton Farina, ran away from home. One week after she returned, Mark Foster, an Alameda County police officer, met with B.F. to discuss formally the circumstances surrounding her runaway. During the interview, B.F. reported that David Burke, her stepfather, had physically and sexually abused her. Although Foster had no warrant and made no attempt to contact Farina, B.F.'s biological father, he took B.F. into protective custody because he believed that B.F. was in imminent danger of serious bodily injury.

Melissa¹ and Farina brought suit against Foster and the County of Alameda under 42 U.S.C. § 1983, alleging, inter alia, that (1) Foster interfered with their constitutional right of familial association by removing B.F. without a protective custody warrant, and (2) the County caused their injury by failing to train its officers on the need to procure such warrants.

Melissa and Farina appeal the district court's grant of summary judgment in favor of Foster and the County.² We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm as to Foster, and vacate the judgment as to the County.

I. FACTUAL AND PROCEDURAL BACKGROUND

B.F. is the fourteen-year old daughter of Melissa Burke and Clifton Farina. Melissa and Farina are divorced and David Burke is B.F.'s stepfather. Although Melissa and Farina shared joint legal custody of B.F., B.F. lived with the Burkes. Farina, however, called B.F. and saw her frequently.

On June 21, 2005, B.F. ran away from home with Ricardo Maciel, a nineteen-year old male. The Burkes immediately reported her as a runaway to the Alameda County Sheriff's Office ("ACSO"). At some point during the ensuing investigation, the ACSO investigating officers heard "something about Mr. Burke having sexually molested his daughter."³

On July 3, 2005, approximately two weeks later, B.F. returned home of her own volition. The following week, Officer Mark Foster called the Burkes to schedule an interview with B.F. to discuss the circumstances surrounding the runaway. The Burkes scheduled the appointment for July 12, 2005 at the police station. B.F. was interviewed by a woman, Omparo Azuna, and Foster viewed the interview by monitor in another room.

During the first thirty-five minutes of the interview, Azuna talked to B.F. about the circumstances surrounding the runaway. B.F. stated that she left home because her stepfather was unduly strict. When Azuna asked B.F. more specifically about David, approximately halfway through the interview, B.F. disclosed that when she returned home on July 3, David immediately questioned her about Maciel. B.F. said that when she refused to disclose any information, David struck her fifteen times on the face with an open hand. After Melissa arrived, David again struck B.F. on the face and thighs. Melissa asked David to stop, but later commented that B.F. "deserved" the beating. The slaps left red marks.

B.F. further reported that David told her not to tell the police about the blows because "it would cause problems." He also told her that if she did not disclose Maciel's address to the officers, he was going to "beat [her] ass." B.F. stated that David had once "beaten up" her stepsister when she was fourteen and that her stepbrother had contemplated "pressing charges" against David.

B.F. stated that since the day of her return, David had not struck her. When asked if she felt safe, she replied in the affirmative, although she repeatedly expressed anxiety about whether her family would know what was discussed in the interview. B.F. stated that it would "be worse for her" when she arrived home because her parents would view the report as an attempt to blame them for her runaway. She believed that her stepfather would "go off" when she returned.

B.F. went on to report that David made inappropriate comments to her regarding her sexual partners and breasts and frequently called her "big titty mama." B.F. further stated that David pinched her on the buttocks on several occasions and repeatedly grabbed her breasts when he hugged her. The touching began in May 2004 and occurred every couple of days. The last time David had grabbed one of her breasts was approximately one week before she ran away from home. B.F. told her mother about the inappropriate conduct. Although her mother told David to stop, the touching continued.

When asked about Farina, her biological father, B.F. stated that he did not abuse her, but that she felt unwelcome in his home because her stepmother did not want her there.

Forty-five minutes into the interview, Foster was informed that David was acting "impatiently" and wanted to go to work. Foster refused to stop the interview but told David that he would give B.F. a ride home. Thirty minutes later, Melissa called and asked that Foster bring B.F. home. Foster again refused. Eventually, Melissa drove to the station to bring B.F. — who is diabetic — a shot of insulin.

Upon Melissa's arrival, Foster asked her to speak with him, and she agreed. During the interview, Melissa confirmed the beating and acknowledged that David engaged in "titty twisters" with B.F. Melissa characterized the "titty twisters" as a playful imitation of wrestling but admitted that the conduct was inappropriate. She confirmed that she had asked them both to stop. She blamed both B.F. and David, but stated that B.F. "started it." Melissa denied any other sexual contact and accused B.F. of lying.

After interviewing Melissa, Foster did a follow-up interview with B.F., who confirmed the "titty twisters," but distinguished them from the breast grabbing. The "titty twisters" had only occurred four or five times and were different in kind— when he squeezed her breast he placed his entire hand on her breast and held it there for several seconds. When told that her mother denied the abuse, B.F. stated that she knew her mother would "take David's side."

Following the interviews Foster immediately advised the Burkes that he was removing B.F. from their home and placing B.F. in protective custody. He did not seek a protective custody warrant before doing so. He also did not discuss with Melissa alternatives to removal nor did he contact Farina or suggest taking B.F. to Farina's home. Farina found out about the removal two days later.

On July 25, 2006, David, Melissa, and Farina filed suit in the Northern District of California under 42 U.S.C. § 1983, claiming, inter alia, that removing B.F. without a warrant interfered with their constitutional right of familial association. They also included a claim against the County for failure to train its officers on the need to procure protective custody warrants. In late 2007, the parties filed cross-motions for summary judgment. The court granted summary judgment to the defendants and denied plaintiffs' motion. This timely appeal ensued.⁴

II. STANDARD OF REVIEW

"We review the grant or denial of summary judgment de novo." Leever v. Carson City, 360 F.3d 1014, 1017 (9th Cir.2004). "Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Id.

III. DISCUSSION

A. 42 U.S.C. § 1983 CLAIM AGAINST MARK FOSTER

"42 U.S.C. § 1983 provides a remedy to individuals whose constitutional rights have been violated by persons acting under color of state law." Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir.1992). Where the defense of qualified immunity is at issue, as here, we apply a two-part inquiry to § 1983 claims. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); see also Pearson v. Callahan, 555 U.S. ___, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (concluding that "while the sequence set forth . . . [in Saucier] is often appropriate, it should no longer be regarded as mandatory"). First, we ask whether the defendants' actions violated the Constitution. Saucier, 533 U.S. at 200, 121 S.Ct. 2151. If there was a violation, we ask whether the right violated was clearly established. Id.

"Parents and children have a well-elaborated constitutional right to live together without governmental interference." Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir.2000). "That right is an essential liberty interest protected by the Fourteenth Amendment's guarantee that parents and children will not be separated by the state without due process of law except in an emergency." Id. Accordingly,

[o]fficials may remove a child from the custody of its parent without prior judicial authorization only if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily...