Hershel Rosenbaum, et al v. Washoe County, et al
Filing
FILED OPINION (RONALD M. GOULD, MILAN D. SMITH, JR. and NANCY GERTNER) For the foregoing reasons, the district court s decision granting summary judgment to the defendants is reversed on the unlawful arrest claim and affirmed on the right to family integrity claim. The case is remanded to the district court for proceedings consistent with this opinion. Each party to bear his or her own costs. Judge: NG Authoring. FILED AND ENTERED JUDGMENT. [7865209]
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERSHEL OSCAR ROSENBAUM; C. R.;
J. R.,
Plaintiffs-Appellants,
v.
WASHOE COUNTY; DENNIS BALAAM,
in his official capacity; MICHAEL
HALEY, in his official capacity;
JAMES FORBUS, in his individual
capacity,
Defendants-Appellees.
No. 10-15637
D.C. No.
3:08-cv-00418-ECRRAM
OPINION
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding
Argued and Submitted
May 11, 2011—San Francisco, California
Filed August 22, 2011
Before: Ronald M. Gould and Milan D. Smith, Jr.,
Circuit Judges, and Nancy Gertner, District Judge.*
Opinion by Judge Gertner
*The Honorable Nancy Gertner, U.S. District Judge for the District of
Massachusetts, sitting by designation.
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COUNSEL
Robert R. Hager and Treva J. Hearne, Hager & Hearne, Reno,
Nevada, for the appellants.
David Creekman, Herbert Kaplan, Washoe County District
Attorney’s Office, Reno, Nevada, for the appellees.
OPINION
GERTNER, District Judge:
Hershel Oscar Rosenbaum (“Rosenbaum”) and his children
appeal the district court’s order granting the defendants’
motion for summary judgment on the grounds of qualified
immunity.
Rosenbaum was arrested as he stood outside a fair selling
promotional tickets that he had received for free from a radio
station. He was wearing a t-shirt with the logo of the station;
his children, ages eight and four, were standing beside him.
He was arrested for abuse, neglect or endangerment of a child,
and obtaining money under false pretenses. Officers walked
his children across the street to the car where their mother was
waiting. On the way, they told the children that what their
father did “was wrong,” that “you know what your father did
was wrong,” and that he was going to jail for what he had
done. Rosenbaum spent eight hours in jail and was released
on bail. He had in fact not violated any statute. There is no
scalping law in Nevada; no other charge applied to his conduct. The charges against him were ultimately dropped.
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Rosenbaum and his children brought a § 1983 suit against
Washoe County, County Sheriff Dennis Balaam, County Deputy Sheriff Lieutenant James Forbus (“Forbus “), and Undersheriff Michael Haley, for damages resulting from the
unlawful arrest. They claimed a violation of two constitutional rights: (1) the right to be free from unlawful arrest
under the Fourth and Fourteenth Amendment, and (2) the substantive and procedural due process right to family integrity
under the Fourteenth Amendment. They also brought state
claims for libel, assault, battery, negligent and intentional
infliction of emotional distress, false arrest, and false imprisonment.
The County defendants moved for summary judgment on
the grounds of qualified immunity, and the district court
granted the motion. The district court held that while the
arresting officer, Forbus, did not have probable cause to arrest
Rosenbaum, he was entitled to qualified immunity because a
criminal statute, “collecting for benefit without authority,”
Nev. Rev. Stat. § 205.415, which was offered by the defendants to justify the arrest, was ambiguous.
Significantly, the statute on which the district court relied
in finding qualified immunity was unknown to Forbus at the
time of the arrest. It has no published authority or legislative
history. While there is a factual dispute about when the
County defendants found this statute, it is clear that it was
found at some point after the arrest and even after Rosenbaum
was released. The Rosenbaums allege that it was the district
attorney who found it after this section 1983 case was
brought, almost two years after the arrest. The County defendants claim that it was Officer Forbus who found the statute.
A Westlaw search of Nevada law found not a single reference
to this statute other than in this case.
The district court further held that while the officer’s comments to the children were offensive, they did not rise to the
level of a constitutional violation.
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For the reasons that follow, we reverse the district court’s
ruling on qualified immunity for the unlawful arrest and
affirm the district court’s ruling on the right to integrity of the
family.
BACKGROUND
Rosenbaum received free promotional tickets for the
Nevada State Fair from the Reno radio station KOZZ. On
August 26, 2006, Rosenbaum stood across the street from the
entrance to the fair with his children and sold the tickets for
the discounted price of $5 per ticket. He was wearing a t-shirt
with the KOZZ logo at the time.
Deputy Sheriff Forbus responded to a complaint by fair
personnel that an individual was attempting to sell free promotional tickets. He spoke with KOZZ, the radio station that
distributed the free tickets and sponsored the event, and was
told that no one had been authorized to sell tickets for a profit.
He then spoke with three witnesses who had bought tickets
from Rosenbaum. He called for back up and approached
Rosenbaum. Rosenbaum first denied and then admitted to
selling the tickets. Forbus placed him under arrest.
Rosenbaum’s two children were escorted to their mother,
who was in a parked vehicle a short distance away. Forbus—
and perhaps other officers—told them that what their father
had done “was wrong,” that “you know what your father did
was wrong,” and that their father was going to jail for what
he had done.
Rosenbaum was booked on felony charges for abuse,
neglect, or endangerment of a child and for obtaining money
by false pretenses, as well as on a misdemeanor charge for
obtaining money under false pretenses. He was released on
bail the following day. The Washoe County District Attorney’s Office would later charge Rosenbaum only with one
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felony count of obtaining money by false pretenses and then
drop the charge.
This lawsuit was filed on August 1, 2008. The Rosenbaums’ complaint asserts nine causes of action: (1) False
Arrest, Unlawful Detention, False Imprisonment and Malicious Prosecution Pursuant to the Fourteenth Amendment and
42 U.S.C. § 1983; (2) Violation of Substantive and Procedural
Due Process Right to Familial Integrity, and of Liberty Interest to Rear Children Without Unreasonable Government
Interference; (3) Libel (based on a August 26, 2006, press
release requesting information about Rosenbaum and the sale
of the tickets); (4) Libel (based on a August 31, 2006 press
release); (5) Assault; (5) Battery; (6) Intentional Infliction of
Emotional Distress; (7) Negligent Infliction of Emotional Distress; (8) False Arrest; and (9) False Imprisonment. They seek
damages in an amount in excess of $10,000 on each of these
causes of action.
The County defendants moved for summary judgment on
July 10, 2009. The district court granted summary judgment
on the grounds of qualified immunity in an unpublished decision on February 25, 2010. Rosenbaum v. Washoe County,
No. 08-418, 2010 WL 745451 (D. Nev. Feb. 25, 2010). Having dismissed the federal claims, the district court declined to
exercise jurisdiction over the pendent state claims. Id. at *8.
The Rosenbaums appealed to this court on March 23, 2010.
STANDARD OF REVIEW
This court reviews a district court’s ruling on summary
judgment on the grounds of qualified immunity de novo.
McSherry v. City of Long Beach, 584 F.3d 1129, 1134 (9th
Cir. 2009), cert. denied, 131 S. Ct. 79 (2010). Summary judgment will be granted—or affirmed—where “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
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party is entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (internal quotation
marks and citation omitted); Fed. R. Civ. P. 56. In making
this determination, we will consider all of the facts in the light
most favorable to Rosenbaum. See Scott v. Harris, 550 U.S.
372, 378 (2007).
DISCUSSION
[1] The court applies a two-prong analysis to determine
whether officials are entitled to qualified immunity: (1)
whether the facts alleged show that the officer violated a constitutional right; and (2) if so, whether that right was clearly
established at the time of the event. See Ashcroft v. al-Kidd,
131 S. Ct. 2074, 2080 (2011). These two questions may be
considered in either order. Pearson v. Callahan, 555 U.S.
223, 236 (2009). The linchpin of qualified immunity is the
reasonableness of the official’s conduct. Anderson v. Creighton, 483 U.S. 635, 638-39 (1987) (“[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.” (emphasis added) (internal quotation marks and
citations omitted)).
In this case, the Rosenbaums allege that the officials violated two constitutional rights: the right to be free from
unlawful arrest and the substantive due process right to family
integrity. We will consider each in turn, addressing first
whether the right was violated and then whether the law was
clearly established such that the official would have been on
notice that his conduct was unlawful.
I.
Unlawful Arrest
[2] It is well established that “an arrest without probable
cause violates the Fourth Amendment and gives rise to a
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claim for damages under § 1983.” Borunda v. Richmond, 885
F.2d 1384, 1391 (9th Cir. 1988). An officer who makes an
arrest without probable cause, however, may still be entitled
to qualified immunity if he reasonably believed there to have
been probable cause. See Ramirez v. City of Buena Park, 560
F.3d 1012, 1024 (9th Cir. 2009).
In the context of an unlawful arrest, then, the two prongs
of the qualified immunity analysis can be summarized as: (1)
whether there was probable cause for the arrest; and (2)
whether it is reasonably arguable that there was probable
cause for arrest—that is, whether reasonable officers could
disagree as to the legality of the arrest such that the arresting
officer is entitled to qualified immunity. Jenkins v. City of
New York, 478 F.3d 76, 87 (2d Cir. 2007) (noting that an officer will not be entitled to qualified immunity “if officers of
reasonable competence would have to agree that the information possessed by the officer at the time of arrest did not add
up to probable cause”).1 We will consider each question in
turn.
A.
Probable Cause
[3] An officer has probable cause to make a warrantless
arrest when the facts and circumstances within his knowledge
are sufficient for a reasonably prudent person to believe that
the suspect has committed a crime. Crowe v. County of San
Diego, 608 F.3d 406, 432 (9th Cir. 2010), cert. denied, 131
S. Ct. 905, 907 (2011). The analysis involves both facts and
1
To be sure, the application of the qualified immunity doctrine varies
with the nature of the right. Some constitutional rights are stated in relatively specific rules. Some, like the Fourth Amendment’s prohibition
against unreasonable searches and seizures, are not. Allowance for reasonable error is already built into the underlying constitutional standard in the
first instance—before a qualified immunity analysis. As such, as one
scholar described it, qualified immunity is cast in terms of whether there
was “reasonably unreasonable” behavior. See John C. Jeffries, What’s
Wrong with Qualified Immunity, 62 Fla. L. Rev. 851, 860 (2010).
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law. The facts are those that were known to the officer at the
time of the arrest. The law is the criminal statute to which
those facts apply.
[4] This case raises the question of which criminal statute
should be considered in the probable cause analysis. The district court cited Devenpeck for the proposition that there will
be probable cause so long as the facts known to the officer
give rise to probable cause “for any criminal offense.” Rosenbaum, 2010 WL 745451, at *3 (emphasis added) (citing
Devenpeck v. Alford, 543 U.S. 146, 153-55 (2004)). The district court then analyzed probable cause under three criminal
statutes, including one that was found after the defendant was
released (and perhaps after this suit was brought), and with
which neither Rosenbaum, nor apparently anyone in the statute’s history, was ever charged. Rosenbaum, 2010 WL
745451, at *4-5. The district court ultimately found no probable cause. Id. at *5.
While we do not agree with the district court that the
Nevada criminal statute “collecting for benefit without
authority” should be considered in evaluating probable cause
in this case, we do agree that the facts do not support probable
cause for any crime—even under that statute. We first address
Devenpeck and then turn to each of the offenses offered by
the defendants to justify the arrest.
1.
Limits of Devenpeck
[5] Devenpeck permits retrospective analysis of probable
cause. 543 U.S. 153. The Court held that the crime for which
there was probable cause need not be the one that the officer
stated at the time of the arrest. Id. at 154-55. Indeed, according to Devenpeck, the offense on which the post hoc analysis
is based need not even be closely related to the crime stated
by the officer at the time of the arrest or charging. Id. at
153-55. It is perfectly permissible for an officer or district
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attorney to later determine the appropriate statute under which
to charge a defendant.
This case, however, raises a question that Devenpeck did
not address: While a retrospective analysis of probable cause
is appropriate, can an arrest without a warrant be justified
after the fact with any statute—even one that is so remote and
obscure as to not be within any reasonable officer’s arsenal of
criminal offenses? The district court did not ask or address
this question.
The concern in Devenpeck was that the constitutionality of
an arrest should not depend on the experience of the arresting
officer. “The rule that the offense establishing probable cause
must be ‘closely related’ to, and based on the same conduct
as, the offense identified by the arresting officer at the time
of arrest,” the Court explained, would render the constitutionality of arrests subject to the experience of the arresting officer. Id. at 153-54. “An arrest made by a knowledgeable,
veteran officer would be valid, whereas an arrest made by a
rookie in precisely the same circumstances would not.” Id. at
154. But here it is likely that no reasonable officer, no matter
how experienced, would have known of § 205.415, “collecting for benefit without authority.” There is no evidence that
anyone has ever been charged with this crime in Nevada.
Indeed, even in this case, once the officials had discovered the
crime, Rosenbaum was never charged or prosecuted with it.
[6] It cannot be that probable cause for a warrantless arrest
exists so long as the facts may arguably give rise to probable
cause under any criminal statute on the books—even if the
crime is buried deep in a dust-covered tomb and never
charged or prosecuted. If it were so, officers could arrest without a warrant under virtually any set of facts and later search
the legal archives for a statute that might arguably justify it.
Such an approach would be inconsistent with the Fourth
Amendment’s fundamental requirement that searches be cabined by the requirement of reasonableness.
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[7] To be clear, our holding is narrow: while the crime for
which there is probable cause need not be related to the crime
for which an individual is arrested without a warrant, the
crime must be reasonably within the arsenal of crimes that
officers enforce in the state.2
2.
No probable cause for any offense
In any event, in this case, the district court held—and we
agree—that the facts known to Forbus did not give rise to
probable cause for any offense, even the offense of “collecting for benefit without authority.” When Forbus arrested
Rosenbaum, he knew the following facts: Forbus had received
a complaint by State Fair personnel that an individual was
attempting to sell free promotional tickets to the fair. He had
spoken with KOZZ, the radio station that distributed the free
tickets and sponsored the event, and was told that no one had
been authorized to sell the tickets for a profit. Forbus saw
Rosenbaum standing with his children, wearing a t-shirt with
the KOZZ logo. Forbus spoke with three witnesses who confirmed that they had purchased tickets for $5 each. When he
approached and spoke with Rosenbaum, Rosenbaum first
denied but then admitted to having sold tickets.
2
We do not imply that no one may be arrested for “collecting for benefit
without authority” under any circumstances. Indeed, this case may well
have surfaced the offense for future officers. The linchpin of the analysis
is reasonableness: if one would have to delve into the depths of the library,
after the fact, to find a statute that may possibly apply to the facts, then
an officer is not entitled to make the arrest without a warrant.
Such a requirement poses no burden on public safety. It arises in the rarest of circumstances, when little known, or unenforced offenses are used
to justify an arrest post hoc. For example, in Michigan, it is a misdemeanor offense to blaspheme the name of God. Mich. Comp. Laws § 750.102.
That this offense still exists on the books does not mean that an officer can
arrest a man who has otherwise committed no crime and then claim that
there was probable cause because he thought he heard the suspect say,
“Oh, God.”
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[8] The County defendants acknowledged that there was
no probable cause for abuse, neglect or endangerment of a
child. They proposed that there was probable cause for two
offenses: “obtaining money by false pretenses” in violation of
Nev. Rev. Stat. § 205.380 (2005) (now codified at Nev. Stat.
§ 205.380 (2011)); and “collecting for benefit without authority” in violation of § 205.415 (2005) (now codified at Nev.
Stat. § 205.415 (2011)).
a.
Obtaining money by false pretenses
[9] Section 205.380, obtaining money by false pretenses,
provides:
A person who knowingly and designedly by any
false pretense obtains from any other person . . .
money . . . with the intent to cheat or defraud the
other person, is a cheat, and, unless otherwise prescribed by law, shall be punished[.]
The elements of this crime are: the intent to defraud, a false
representation, reliance on that representation, and that the
victim is defrauded. Barron v. State, 783 P.2d 444, 449 (Nev.
1989). In this case, however, there was no evidence to suggest
that Rosenbaum intended to defraud his customers or that he
was misrepresenting himself. He was openly selling promotional tickets, that he had received for free, for a price of $5.
His customers received exactly what they paid for; they were
not victims of fraud. This is not a case, for example, where
someone was selling counterfeit or fake tickets. The district
court held, supported by the record, that these facts do not
give rise to probable cause for obtaining money under false
pretenses.
b.
Collecting for benefit without authority
Section 205.415, “collecting for benefit without authority,”
provides:
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A person who sells one or more tickets to any ball,
benefit or entertainment, or asks or receives any subscription or promise thereof, for the benefit or pretended benefit of any person, association or order,
without being authorized thereto by the person, association or order for whose benefit or pretended benefit it is done, shall be punished[.]
The County defendants argue that Rosenbaum appeared to be
holding himself out as a representative of KOZZ because he
was wearing their t-shirt. He appeared, they argue, to be selling tickets for the benefit of KOZZ. And because he was
unauthorized to do so, he appeared to be violating this statute.
This interpretation assumes that the statute makes it a crime
to sell tickets for the pretended benefit of another.
[10] The district court, however, interpreted the statute differently. The district court reasoned—and we agree—that the
purpose of the offense is to protect charities from fraud.
Rosenbaum, 2010 WL 745451, at *5. The district court noted
that there is no published authority, state or federal, that construes the provision, nor is there any legislative history that
clarifies its terms. Id. As such, the district court was obliged
to predict how the Nevada Supreme Court would have interpreted the statute. Id. The district court emphasized the provision’s title, “Collecting for benefit without authority,” and
found that a common-sense reading suggests that the provision makes it a crime to sell tickets to a charity event (ball,
concert, or entertainment) without authorization. Id. The
phrase “for the benefit or pretended benefit of any person”
modifies “any ball, benefit or entertainment” instead of modifying the word “tickets.” In other words, it is a crime to sell
tickets without authorization to an event that benefits another
rather than to sell tickets without authorization for the benefit
of another. Id. As such, the facts known to Forbus at the time
of the arrest did not give rise to probable cause for “collecting
for benefit without authority” because the fair was not a charity event. Id.
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[11] We agree with the district court and conclude that
there was no probable cause to arrest Rosenbaum, and his
constitutional right to be free from unlawful arrest was violated.
B.
Reasonable Belief of Probable Cause
[12] Even if the arrest was made without a warrant and
without probable cause, however, the officer may still be
immune from suit if it was objectively reasonable for him to
believe that he had probable cause. Ramirez, 560 F.3d at
1024. The linchpin of the qualified immunity analysis is the
reasonableness of the officer’s conduct in the particular case
at hand. Anderson, 483 U.S. at 638. The law acknowledges
that an otherwise competent officer will sometimes make an
unreasonable decision or make an unreasonable mistake as to
law or fact. In those instances, the officer will appropriately
be liable under § 1983. See Liberal v. Estrada, 632 F.3d 1064,
1078 (9th Cir. 2011) (denying qualified immunity because the
officer’s mistake of fact was unreasonable).
Framing the reasonableness question somewhat differently,
the question in determining whether qualified immunity
applies is whether all officers would agree that there was no
probable cause in this instance. See Ashcroft, 131 S. Ct. at
2083 (holding that an official is not entitled to qualified
immunity where “every reasonable official” would have
understood that he was violating a clearly established right
(emphasis added) (internal quotation marks and citation omitted)).3
3
The Court uses the language “all reasonable officers” or “every reasonable officer” to explain that it must be clear that the conduct is unlawful;
qualified immunity will attach whenever reasonable officers could disagree about whether the facts in the particular case give rise to probable
cause. The law does not imply, however, that police officers are the ultimate arbiters of constitutional questions. The lawfulness of their conduct
does not turn on whether all, or most, officers think that the law is clearly
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[13] In this case, Forbus does not allege that he made any
mistake of fact that would have led to probable cause. Nor
does he allege that he misunderstood the law at the time of the
arrest. Rather, the district court granted qualified immunity to
Forbus on the grounds that a later-discovered statute, that
could arguably apply to the facts of this case, is ambiguous.
Rosenbaum, 2010 WL 745451, at *6.
To be sure, the law must be clearly established such that it
would “be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Saucier v. Katz, 533
U.S. 194, 202 (2001), overruled on other grounds by Pearson,
555 U.S. 223; see also Ramirez, 560 F.3d at 1024. The purpose of qualified immunity is to ensure that officers are given
fair notice of the law that they are required to uphold. Anderson, 483 U.S. at 640.
The lack of clarity of a law of which no reasonable officer
would have known, however, is irrelevant to this analysis.
This is not a case where courts disagree about the contours of
a constitutional right or where officers may be confused about
what is required of them under various circumstances. Here,
the law that the district court chose to analyze is one that has
apparently never been enforced—even in this particular case.
Qualified immunity for an unlawful arrest should not arise
because some enterprising official after the fact searched the
bowels of a library to find a little known or entirely unknown
old statute that may apply to the facts.4 Such a holding would
established. For example, if the Supreme Court has issued an opinion condemning racial profiling, but 90 percent of the police in a given geographic area think racial profiling is just fine, an officer would not be
entitled to qualified immunity simply because his fellow officers disagree
with a clear Supreme Court ruling.
4
We view the facts in the light most favorable to Rosenbaum for purposes of determining qualified immunity at summary judgment. If there
exists a genuine dispute as to the material fact of whether a reasonably
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defy the principle of reasonableness upon which qualified
immunity is based. See id. at 638.
[14] Here, considering the facts in the light most favorable
to Rosenbaum, all reasonably competent officers would have
agreed that he was not committing a crime. There is no scalping law in Nevada; it is simply not a crime to sell tickets to
a fair—even when the tickets were received for free. His tshirt did not suggest fraud, nor were the ticket buyers duped
by the sale.
[15] The district court’s grant of summary judgment on the
grounds of qualified immunity for an unlawful arrest is
reversed.
II.
Substantive Due Process Right to Family Integrity
Next, Rosenbaum and his children argue that Forbus violated their substantive due process right to family integrity
when he handcuffed Rosenbaum in front of his children,
escorted the children to their mother, asked them whether
Rosenbaum had been selling tickets and whether they knew
what he was doing was wrong, and told them that it “was
wrong” and that he was going to jail for it. The question is
whether these facts—taken in the light most favorable to the
Rosenbaums—rise to the level of a constitutional violation.
[16] The substantive due process right to family integrity
or to familial association is well established. A parent has a
competent Nevada officer would have been aware of § 205.415
(“collecting for benefit without authority”), the dispute should be presented to and resolved by the fact-finder at trial. The district court may
then decide qualified immunity based on the judicially determined facts.
See Norse v. City of Santa Cruz, 629 F.3d 966, 978 (9th Cir. 2010) (en
banc) (“[T]he district court may entertain a post-trial motion for judgment
as a matter of law on the issue of qualified immunity after the facts are
resolved at trial.”).
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“fundamental liberty interest” in companionship with his or
her child. Kelson v. City of Springfield, 767 F.2d 651, 654-55
(9th Cir. 1985). A state may not interfere with this liberty
interest, and indeed the violation of the right to family integrity is subject to remedy under § 1983. Id. To amount to a violation of substantive due process, however, the harmful
conduct must “shock[ ] the conscience” or “offend the community’s sense of fair play and decency.” Rochin v. California, 342 U.S. 165, 172-73 (1952); see also Pittsley v. Warish,
927 F.2d 3 (1st Cir. 1991) (abrogated on other grounds). For
example, we have held that a plaintiff stated a claim under
§ 1983 for a violation of the right to family integrity where
her mentally disabled son was mistaken for another person,
falsely arrested, caused to be extradited to New York from
California, and imprisoned; the police department misinformed her of his whereabouts on several occasions until he
was finally released two years later. Lee v. City of Los Angeles, 250 F.3d 668, 685-86 (9th Cir. 2001). In Kelson, we held
that parents had stated a cause of action for a violation of their
right to companionship and society of a child where their
teenage son had committed suicide at school. Kelson, 767
F.2d at 653-55.
[17] The facts of the case before us do not come close to
rising to the level of conduct that “shocks the conscience.”
Unlike Lee or Kelson, Rosenbaum was not separated from his
children for any extended period of time; rather, the children
were walked across the street to their mother who was waiting
in their car. It is true that Forbus’s—and perhaps other
officers’—words to the children were inappropriate and even
offensive. The children’s father had not in fact done anything
“wrong” and Forbus likely exacerbated an already traumatic
experience for this four year old and eight year old. And yet
we do not hold that the inappropriate conduct amounts to a
constitutional violation.
We do not imply that verbal abuse—and even verbal abuse
to children in the midst of an arrest—would never rise to the
Case: 10-15637
11398
08/22/2011
ID: 7865209
DktEntry: 25-1
Page: 17 of 17
ROSENBAUM v. WASHOE COUNTY
level of a constitutional violation. Rather, in this instance, the
officers’ conduct does not “shock the conscience.”
Because we conclude that the Rosenbaums’ right to family
integrity was not violated, we need not reach the question of
whether Forbus is entitled to qualified immunity for the violation of the right to family integrity.
CONCLUSION
For the foregoing reasons, the district court’s decision
granting summary judgment to the defendants is reversed on
the unlawful arrest claim and affirmed on the right to family
integrity claim. The case is remanded to the district court for
proceedings consistent with this opinion. Each party to bear
his or her own costs.
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