Southerland v. City of N.Y.

• Decision Date: 22 May 2012
• Docket Number: No. 07–4449–cv (L).,07–4449–cv (L).
• Citation: 681 F.3d 122
• Parties: Sonny B. SOUTHERLAND, Sr., individually and as parent and natural guardian of Venus Southerland, Sonny B. Southerland, Jr., Nathaniel Southerland, Emmanuel Felix, Kiam Felix, and Elizabeth Felix, Plaintiffs–Appellants, v. CITY OF NEW YORK, Timothy Woo, John Does 1–9, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

681 F.3d 122

Sonny B. SOUTHERLAND, Sr., individually and as parent and natural guardian of Venus Southerland, Sonny B. Southerland, Jr., Nathaniel Southerland, Emmanuel Felix, Kiam Felix, and Elizabeth Felix, Plaintiffs–Appellants,

v.CITY OF NEW YORK, Timothy Woo, John Does 1–9, Defendants–Appellees.

No. 07–4449–cv (L).

United States Court of Appeals, Second Circuit.

May 22, 2012.

Michael G. O'Neill, New York, N.Y., for Plaintiffs–Appellants, Venus S., Sonny B.S. Jr., Nathaniel S., Emmanuel F., Kiam F., and Elizabeth F.

Sonny B. Southerland, Brooklyn, N.Y., Plaintiff–Appellant, pro se.

Julian L. Kalkstein, City of New York (Michael A. Cardozo, Corporation Counsel; Larry A. Sonnenshein, of counsel), New York, N.Y., for Defendants–Appellees.

Judge RAGGI dissents in an opinion joined by Chief Judge JACOBS and Judges CABRANES, WESLEY, and LIVINGSTON.

Chief Judge JACOBS dissents in an opinion joined by Judges CABRANES, RAGGI, WESLEY, and LIVINGSTON.

ORDER

Following disposition of this appeal on February 2, 2012, and prior to the amended disposition on May 14, 2012, an active judge of the Court requested a poll on whether to rehear the case in banc. A poll having been conducted and there being no majority favoring in banc review, rehearing in banc is hereby DENIED.

REENA RAGGI, Circuit Judge, with whom Chief Judge JACOBS, Judge CABRANES, Judge WESLEY, and Judge LIVINGSTON join, dissenting from the denial of rehearing en banc:

In 1998, after a five-day trial in New York State Family Court, Sonny Southerland was found to have abused his seven children so severely—sexually and corporally—as to warrant denying him custody for seven years. This ruling and the findings supporting it have never been disturbed. See In re Ciara M., 273 A.D.2d 312, 314, 708 N.Y.S.2d 717, 719 (2d Dep't) (upholding abuse findings and affirming orders denying custody), leave to appeal denied,95 N.Y.2d 767, 717 N.Y.S.2d 547, 740 N.E.2d 653 (2000). A panel of this court concludes that Southerland can nevertheless invoke 42 U.S.C. § 1983 to demand money damages from Timothy Woo, the caseworker who rescued the Southerland children from their father's abuse. The panel further concludes that Southerland's abused children can also maintain such a damages action against their rescuer.

Essentially, plaintiffs complain that Woo—who had been assigned to investigate a report that Southerland's teenage daughter Ciara might be suicidal and that her father was indifferent to her need for care—entered the Southerland home pursuant to a warrant that was not supported by probable cause. SeeU.S. Const. amend. IV. They further contend that Woo removed Southerland's six other children from the home without evidence of exigency, thereby effecting an unreasonable seizure and a deprivation of plaintiffs' liberty interest in a continuing family relationship without due process. See id.amend. IV, XIV. With respect to the removal claim, plaintiffs do not contend—nor could they in light of the Family Court ruling—that Southerland did not, in fact, pose an exigent threat to his children's safety. They contend only that Woo was not yet aware that the threat was exigent.

By even plaintiffs' account, it did not take long for Woo to gain such awareness. Within four days of effecting the challenged removal, Woo learned and reported to the Family Court that “Southerland has been sexually abusing his daughter Ciara Manning (age 16) since she was eight years old. On numerous occasions over the past nine years respond[e]nt S[o]utherland has had sexual intercourse with Ciara and would threaten to kill Ciara if she told anyone.” Ex. D to Silverberg Decl. in Supp. of Summ. J. at 5, Southerland v. City of N.Y., No. 99–CV–3329 (E.D.N.Y. Sept. 18, 2006) (“Silverberg Decl.”), ECF No. 168–7. Further, before the month was out, Woo learned and reported to the Family Court that the six children removed from the Southerland home—then ages three to nine—had revealed that their father hit them “with broom sticks, exercise equipment and other objects causing welts and bruises,” and had punished the children for “tak[ing] food from the refrigerator without permission” by hitting them “with various objects.” Ex. E to Silverberg Decl. at 6, ECF No. 168–8. The state court's custody determination makes clear that the Southerland children would have continued to experience such abuse but for the challenged removal for which they and their abusive father now demand compensation from Woo.¹

The district court sensibly dismissed this action, awarding summary judgment in favor of Woo on the ground of qualified immunity. See Southerland v. City of N.Y., 521 F.Supp.2d 218, 231–32 (E.D.N.Y.2007) (Sifton, J.). In reversing that judgment, the panel concludes both that (1) the constitutional rights asserted here by Southerland and his abused children were clearly established in the circumstances confronting Woo at the time of his challenged actions, see Southerland v. City of N.Y., 680 F.3d 127, 149–52, 160–61 (2d Cir.2012); and (2) the record reveals disputed issues of fact that a reasonable jury could resolve in plaintiffs' favor, see id. at 143–49, 150–52, 161–62. I respectfully disagree with both conclusions for reasons that merit en banc review. These reasons can be briefly summarized as follows.

First, the panel concludes that Woo lacked probable cause to seek Ciara Manning, the reported neglected child, in Southerland's home because Woo had been told that she might have run away. See id. at 144–46. This misperceives the probable cause requirement, which neither demands certainty nor is defeated by possibilities. In the context of child welfare investigations, there is always probable cause to look for an at-risk child in the home of the custodial parent, at least absent conclusive evidence that the child is in fact somewhere else, which was not the case here. To the extent that five judges of this court hold that view of probable cause, it can hardly be said that no reasonable child welfare worker could have thought likewise. Thus, Woo is entitled to qualified immunity on plaintiffs' Fourth Amendment challenge to his entry into the Southerland home.

Second, in allowing an adjudicated abusive father and the children he abused to sue a caseworker for prematurely halting the abuse, the panel extends our due process precedent in a way that the court should reject en banc. The cases cited by the panel as recognizing a parent's right to sue for due process violations by child welfare authorities all involved circumstances in which suspicions of abuse or neglect eventually proved unfounded, see Kia P. v. McIntyre, 235 F.3d 749, 751 (2d Cir.2000); Tenenbaum v. Williams, 193 F.3d 581, 587 (2d Cir.1999); Hurlman v. Rice, 927 F.2d 74, 76 (2d Cir.1991), or no state judicial process was ever afforded to confirm such suspicions, see Duchesne v. Sugarman, 566 F.2d 817, 823 (2d Cir.1977). None involved due process claims by parents adjudicated to have abused their children, or by the children who were victims of such abuse. For the same reasons that the law does not permit a convicteddefendant to challenge the sufficiency of the evidence supporting his arrest, see Cameron v. Fogarty, 806 F.2d 380, 388–89 (2d Cir.1986), it should not permit an adjudicated abusive parent, or the children he abused, to sue a rescuing caseworker on a theory that the caseworker prematurely intervened. Recognizing a viable claim for money damages in such circumstances risks bringing the law into disrepute. Further, it endangers future abuse victims by unnecessarily deterring caseworkers from promptly intervening for fear of being liable in money damages, not only in cases where no parental abuse or neglect is established but also in cases where courts conclusively determine that it is.

Thus, the scope and parameter of the constitutional rights at issue in the context of state adjudications of parental abuse raise questions of exceptional importance warranting en banc review. SeeFed. R.App. P. 35(a)(2). Insofar as a majority of the active members of this court decline to undertake such review, I respectfully dissent from the denial of rehearing en banc.

* * *

1. Qualified Immunity

To allow government officials to perform discretionary duties without fear of undue interference or threat of potentially disabling liability, the law affords them qualified immunity from suits for money damages, provided that their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have been aware. See Harlow v. Fitzgerald, 457 U.S. 800, 806, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); accord Filarsky v. Delia, ––– U.S. ––––, 132 S.Ct. 1657, 1665, 182 L.Ed.2d 662 (2012) (recognizing qualified immunity doctrine to serve vital purpose of “[e]nsuring that those who serve the government do so with the decisiveness and the judgment required by the public good” (internal quotation marks omitted)). Such immunity has been recognized to provide a broad shield, protecting “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); accord Ashcroft v. al–Kidd, ––– U.S. ––––, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011).

A threshold question to any immunity claim is whether the facts, viewed in the light most favorable to the plaintiff, show that a statutory or constitutional right was violated. If that question can clearly be answered no, there is simply “no necessity for further inquiries concerning qualified immunity.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); accord Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir.2007) (collecting cases explaining that resolution of threshold question favorably to defendant “moots” further qualified immunity inquiry). If the answer is...