Demaree v. Pederson

• Decision Date: 23 January 2018
• Docket Number: No. 14-16207,14-16207
• Citation: 887 F.3d 870
• Parties: Lisa DEMAREE, Wife; Anthony ("A.J.") Demaree, husband; on behalf of themselves and as the natural guardians and guardians ad litem for their three minor children, T.D., J.D., and L.D., Plaintiffs-Appellants, v. Laura PEDERSON; Amy Van Ness, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

887 F.3d 870

Lisa DEMAREE, Wife; Anthony ("A.J.") Demaree, husband; on behalf of themselves and as the natural guardians and guardians ad litem for their three minor children, T.D., J.D., and L.D., Plaintiffs-Appellants,

v.Laura PEDERSON; Amy Van Ness, Defendants-Appellees.

No. 14-16207

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 6, 2016 San Francisco, California

Filed January 23, 2018

Amended April 6, 2018

Richard R. Treon (argued), Treon & Aguirre PLLC, Phoenix, Arizona, for Plaintiffs-Appellants.

Michael G. Gaughan (argued), Assistant Attorney General; Dominic E. Draye, Solicitor General; Mark Brnovich, United States Attorney; United States Attorney's Office, Phoenix, Arizona; for Defendants-Appellees.

Before: Marsha S. Berzon, and N. Randy Smith, Circuit Judges, and Jack Zouhary,^** District Judge.

Separate Opinion by Judge N.R. Smith ;

Concurrence by Judge Berzon ;

Partial Concurrence and Partial Dissent by Judge Zouhary

ORDER

The separate opinion by Judge N.R. Smith filed on January 23, 2018, and reported at 880 F.3d 1066, is hereby amended. The superseding separate opinion will be filed concurrently with this order.

A majority of the panel has voted to deny the petition for rehearing en banc. Judge Zouhary suggested that the petition for rehearing en banc be granted.

The full court has been advised of the suggestion for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing en banc is DENIED .

No petitions for panel rehearing or further petitions for rehearing en banc will be entertained.

PER CURIAM:¹

As this court has stated repeatedly, families have a "well-elaborated constitutional right to live together without governmental interference." Wallis v. Spencer , 202 F.3d 1126, 1136 (9th Cir. 2000) ; accord Kirkpatrick v. Cty. of Washoe , 843 F.3d 784, 789 (9th Cir. 2016) (en banc); Burke v. Cty. of Alameda , 586 F.3d 725, 731 (9th Cir. 2009) ; Rogers v. Cty. of San Joaquin , 487 F.3d 1288, 1294 (9th Cir. 2007) ; Mabe v. San Bernardino Cty. , 237 F.3d 1101, 1107 (9th Cir. 2001) ; Ram v. Rubin , 118 F.3d 1306, 1310 (9th Cir. 1997). We consider here Lisa and Anthony ("A.J.") Demaree's contention that social workers Laura Pederson and Amy Van Ness violated their constitutional rights to family unity and companionship, and their small children's as well, by removing the children from home without a warrant or court order.

I. BACKGROUND

A.J. Demaree dropped off some family photos to be printed at a Wal-Mart in Arizona on Friday, August 29, 2008. While developing the pictures, an employee noticed that several pictures portrayed nude children. Wal-Mart called the police. Detective John Krause came and collected the pictures. On Saturday, he photocopied the ones that concerned the Wal-Mart employee and went to the Demarees' home.

Once there, he and his partner separately interviewed parents Lisa and A.J. Demaree. Both parents looked at the pictures, identified their daughters—five-year-old T.D., four-year-old J.D., and one-and-a-half-year-old L.D.—and said the pictures had been taken "in the last couple of months" by one or both parents. When asked what he would do with one photo, which portrayed his three children lying down on a towel nude, focusing on their exposed buttocks but with some genitalia showing, he responded, "I'm not going to do anything with that one. That's not going in a photo album; that's just one we have." Krause said, "Obviously you're not going to share it with somebody, I would hope," to which A.J. responded, "No, absolutely not!" Krause then asked why he would take the photo in the first place, and A.J. responded, "So when we look back on em years later, look at their cute little butts."

None of the photographs portrayed children engaged in sexual activity. None portrayed the children's genitalia frontally.

After the interviews, the detectives took T.D., J.D., and L.D. to forensic and medical exams to investigate possible sexual abuse. The physical exams came back normal for all three children. After the interviews were finished, Krause's partner dropped the children back off with their parents. Krause wrote in his report, "[a]pparently after the forensic interviews and medical exams were completed, [Child Protective Services] declined to remove the children from the parent's custody, and had directed [his partner] to return the girls to Lisa and A.J."²

While the exams were in progress, the police department requested and received a warrant to search the Demarees' home. Executing the warrant, the department seized all the evidence that might be relevant to a child pornography investigation: computers, printers, photographs, cell phones, undeveloped film, floppy discs, DVDs, CDs, VHS tapes, and cameras.

As the home search was nearing its end, and after the children had been returned to their parents, Child Protective Services ("CPS") investigating officer Laura Pederson called one of the police officers to discuss the case. After the conversation, she decided to drive over to the house. There, Pederson discussed with Krause the evidence seized, the content of the pictures, and Krause's expectation that felony child sexual exploitation charges would be brought against both parents.

After reviewing the evidence Krause showed her, Pederson decided to take the children into emergency temporary custody, without obtaining a court order or a warrant. She later said, "I was relying on the fact that ... at the time there was a pending criminal investigation with both parents named as suspects. I was relying on information that Krause obtained during the investigation ... his opinion of the criminal acts that were committed, my viewing of the pictures and the fact that the—all of this suggested these children were at risk of further exploitation." She discussed her recommendation with her supervisor, Amy Van Ness, who agreed.

Pederson gave the parents a "Temporary Custody Notice." In that notice, in the space provided for investigators to "[c]heck the circumstances (imminent risk factor ) that most clearly describes the reason temporary custody was necessary," Pederson checked "[o]ther," and wrote, "mother & father have taken sexually explicit pictures of all three children." She did not check the box for situations where "[t]he child's caregiver has engaged in sexual conduct with a child, or has allowed the child to participate in sexual activity with others." On the next page, in the space provided for investigators to inform parents of the "complaint or allegation concerning [their] family [that] is currently under investigation," she wrote, "Sexual Abuse—child pornography/exploitation."

Pederson then drove T.D. and J.D. to one foster home and L.D. to another. Two days later, Pederson brought the children to their grandparents' home, where all three stayed for about a month, after which they were returned to their parents. The juvenile court never adjudicated the children abused or neglected, and neither A.J. nor Lisa were arrested or charged with any crime.

A.J. and Lisa later filed the instant action on behalf of themselves and their children, alleging violations of various constitutional rights. The district court dismissed the claims against all defendants except Krause, Pederson, and Van Ness. The Demarees later settled their claims against Krause.

As relevant here, the district court granted summary judgment in favor of Pederson and Van Ness based on qualified immunity. It ordered the parties to propose appropriate redactions to the summary judgment order, which was temporarily filed under seal on April 23, 2014. On May 21, the Demarees requested leave to file under seal a motion to alter or amend the judgment under Federal Civil Rule 59. Six days later, the district court denied the motion for leave to file under seal, and also denied the Demarees' request to seal the summary judgment order in its entirety. The Demarees filed this appeal on June 23.

II. DISCUSSION

A. Timeliness of the Appeal

Before we address the merits, we consider whether this appeal is timely. Three court rules are pertinent to our inquiry here: First, Federal Rule of Appellate Procedure 4(a)(4)(A) tolls the deadline to file a notice of appeal upon the timely filing of certain motions, including a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59, such that the time to appeal—here, 30 days—runs "from the entry of the order disposing of the last such remaining motion." Second, Federal Rule of Civil Procedure 5(d)(2) provides that "[a] paper is filed by delivering it ... to the clerk." And third, Arizona Local Rule 5.6(c) requires a document meant to be filed under seal first to "be lodged with the Court in electronic form" using the electronic filing system.

The Demarees accordingly "lodged" a copy of their Rule 59 motion and requested leave to file it under seal. The district court denied the request. But its order, although in form a denial of the request to file the motion under seal, did not refer to or discuss any of the factors relevant to filing documents under seal. Cf. Foltz v. State Farm Mut. Auto. Ins. Co. , 331 F.3d 1122, 1135 (9th Cir. 2003). Instead, the order addressed only the merits of the Rule 59 motion, denying the request to file under seal because the underlying motion was "unnecessary" and "a repeat of arguments previously made, at great length, in Plaintiffs' filings." The Demarees filed their Notice of Appeal twenty-seven days after the issuance of the order denying leave to file their Rule 59 motion under seal, and fifty-five days after the summary judgment order. Pederson and Van Ness contend that the Demarees' appeal was not timely because the Rule 59 motion was never actually filed and therefore could not toll the deadline for appeal under Rule 4(a)(4).

(i) Jurisdiction versus mandatory claim-processing

The parties describe the timeliness issue as jurisdictional. Under a recent...