Mueller v. Auker

• Decision Date: 25 October 2012
• Docket Number: No. 11–35351.,11–35351.
• Citation: 700 F.3d 1180
• Parties: Eric MUELLER; Corissa D. Mueller, husband and wife, individually and on behalf of Taige L. Mueller, a minor, and on behalf of themselves and those similarly situated, Plaintiffs–Appellants, v. April K. AUKER; Barbara Harmon; Janet A. Fletcher; Kimberly A. Osadchuk; Linda Rodenbaugh; Karl B. Kurtz; Ken Diebert, Defendants, and City of Boise; Dale Rogers; Ted Snyder; Tim Green; Richard K. Macdonald; Saint Luke's Regional Medical Center, Ltd., Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

700 F.3d 1180

2012 Daily Journal D.A.R. 14,831

Eric MUELLER; Corissa D. Mueller, husband and wife, individually and on behalf of Taige L. Mueller, a minor, and on behalf of themselves and those similarly situated, Plaintiffs–Appellants,

v. April K. AUKER; Barbara Harmon; Janet A. Fletcher; Kimberly A. Osadchuk; Linda Rodenbaugh; Karl B. Kurtz; Ken Diebert, Defendants,andCity of Boise; Dale Rogers; Ted Snyder; Tim Green; Richard K. Macdonald; Saint Luke's Regional Medical Center, Ltd., Defendants–Appellees.

No. 11–35351.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 24, 2012.

Filed Sept. 10, 2012.

Amended Oct. 25, 2012.

Michael E. Rosman, Center for Individual Rights, Washington, D.C., for the plaintiffs-appellants.

Kirtlan G. Naylor, Naylor & Hales, P.C., Keely Elizabeth Duke and Richard E. Hall, Duke Scanlan Hall PLLC, and W. Christopher Pooser, Stoel Rives LLP, Boise, ID, for the defendants-appellees.

James K. Dickinson, Ada County Prosecutor's Office, Boise, ID, for amicus curiae Ada County Prosecutor's Office.

Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, Chief District Judge, Presiding. D.C. No. 1:04–cv–00399–BLW.

Before: J. CLIFFORD WALLACE, STEPHEN S. TROTT, and N. RANDY SMITH, Circuit Judges.

ORDER

The Opinion filed September 10, 2012, is amended as follows: on slip opinion page 10863, line 6, replace the first full paragraph (Part IV B, Battery) beginning “We conclude that the district court....” with the following text:

The district court dismissed the Muellers' battery claim against Dr. Macdonald pursuant to Federal Rule of Civil Procedure 50(a). The record conclusively establishes that he did not treat Taige until he was given consent to do so by April Auker on behalf of the Idaho Department of Welfare. Mueller v. Auker, 576 F.3d at 984–86. At the time, the State had taken legal custody of the Muellers' daughter. Id.

Neal v. Neal, 125 Idaho 617, 622, 873 P.2d 871, 876 (1994), states that “[c]ivil battery consists of an intentional, unpermitted contact upon the person of another which is either unlawful, harmful or offensive.” Id. The Supreme Court of Idaho also held that “lack of consent is ... an essential element of battery,” and that “[c]onsent obtained by fraud or misrepresentation vitiates the consent and can render the offending party liable for a battery.” Id.

Auker's consent to treatment was valid unless obtained by fraud or misrepresentation. Although we ordinarily view the evidence on this issue in the light most favorable to the non-moving party, Torres v. City of Los Angeles, 548 F.3d 1197, 1205–06 (9th Cir.2008), the issue of possible fraud or misrepresentation on the part of Dr. Macdonald leading to April Auker's consent has now been resolved by dispositive events. As previously discussed in Part IV.A of this opinion, the issue of whether or not Dr. Macdonald knowingly made a false report to Detective Rogers of imminent danger to Taige in order to deprive the Muellers of their parental rights was litigated and did go to the jury. In a special verdict, the jury rejected the Muellers' theory. This finding of fact is fully supported by the record and conclusively determines between these parties in favor of Dr. Macdonald the factual issue of the validity of the State's consent to treat Taige upon which he relied. The jury's verdict is entitled to preclusive effect pursuant to the doctrine of collateral estoppel. Therefore, this issue is moot because it has become merely academic and thus no longer justiciable.

The panel has voted to deny the petition for panel rehearing. Judge Smith has voted to deny the petition for rehearing en banc and Judges Wallace and Trott so recommend.

The full court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on it. Fed. R.App. P. 35(b).

With this amendment, the petition for rehearing, and the petition for rehearing en banc are otherwise DENIED. No further petitions for rehearing will be accepted.

OPINION

TROTT, Circuit Judge:

Because the district court and the parties to this protracted lawsuit—as well as the judges of this panel hearing the issues for the second time—are well aware of its history, the trial record, and the proceedings in district court, we refer to them only as necessary to explain our decision. We have previously published an opinion on a related issue in Mueller v. Auker, 576 F.3d 979 (9th Cir.2009). That opinion exhaustively unfurls the facts giving rise to this case.

We have jurisdiction over this timely appeal pursuant to 28 U.S.C. §§ 1291 and 1294(1), and we affirm. We address each new issue in turn.

I

AQualified Immunity

We begin our discussion of whether Detective Dale Rogers and Officers Ted Snyder and Tim Green are entitled to qualified immunity for their actions involving the interruption of Corissa Mueller's parental rights with a review of that important principle as reiterated by the Supreme Court in recent cases.

“The doctrine of qualified immunity protects 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.’ ” Pearson v. Callahan, 555 U.S. 223, 231 [129 S.Ct. 808, 172 L.Ed.2d 565] (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 [102 S.Ct. 2727, 73 L.Ed.2d 396] (1982)). Qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Ashcroft v. al-Kidd, 563 U.S. ––––, –––– [131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149] (2011) (slip op., at 12) (quoting Malley v. Briggs, 475 U.S. 335, 341 [106 S.Ct. 1092, 89 L.Ed.2d 271] (1986)). “[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness' of the action, assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639 [107 S.Ct. 3034, 97 L.Ed.2d 523] (1987) (citation omitted).

Messerschmidt v. Millender, 565 U.S. ––––, 132 S.Ct. 1235, 1244–45, 182 L.Ed.2d 47 (2012). The inquiry called for by this doctrine “must be undertaken in the light of the specific context of the case, not as a broad general proposition.” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (internal quotation marks omitted)). Accordingly, “the result [of this inquiry] depends very much on the facts of each case.” Id. at 201, 125 S.Ct. 596. Finally, “[t]he contours of the right must be sufficiently clear [in a particularized sense] that a reasonable official would understand that what he is doing violates that right.” Id. at 199, 121 S.Ct. 2151 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (internal quotation marks omitted)).

In order to apply this doctrine correctly, which makes allowance for some constitutionalmistakes, it is useful to revisit its purpose:

Nor is it always fair, or sound policy, to demand official compliance with statute and regulation on pain of money damages. Such officials as police officers or prison wardens, to say nothing of higher level executives ... who enjoy only qualified immunity, routinely make close decisions in the exercise of the broad authority that necessarily is delegated to them. These officials are subject to a plethora of rules, “often so voluminous, ambiguous, and contradictory, and in such flux that officials can only comply with or enforce them selectively.” See P. Schuck, Suing Government 66 (1983). In these circumstances, officials should not err always on the side of caution. “[O]fficials with a broad range of duties and authority must often act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office.” Scheuer v. Rhodes, [416 U.S. 232, 246, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ].

Davis v. Scherer, 468 U.S. 183, 196, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) (second alteration in original). We review the district court's grant of summary judgment de novo. Burke v. Cnty. of Alameda, 586 F.3d 725, 730 (9th Cir.2009). “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. (internal quotation marks omitted).

With this framework in mind, we must decide whether, at the time of Detective Rogers's and Officers Snyder's and Green's actions, it was “clearly established” that they were violating (1) the Mueller's Fourteenth Amendment's liberty interest in the care, custody, and control of their infant daughter Taige, and (2) Corissa Mueller's Fourth Amendment right against unreasonable search and seizure. In other words, viewing the facts in the light most favorable to the Muellers, did the officers have an objectively reasonable basis for fearing that Taige was in imminent danger and for causing her parents to lose custody without a judicial hearing, and that “a reasonable officer could have come to such a conclusion.” Ryburn v. Huff, 565 U.S. ––––, 132 S.Ct. 987, 992, 181 L.Ed.2d 966 (2012) (per curiam).

BThe Constitutional Rights at Issue

There is no doubt that the Muellers have a liberty interest in the “care, custody, and control of their child[ ].” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Lehr v. Robertson, 463 U.S. 248, 256–57, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). It is also the case, however, that like all constitutional rights, these rights are not absolute. Under certain circumstances, these rights must bow to other countervailing interests and rights,...