Mouna Kandy Suboh, Individually, As Administratix of the Estate of Ishaq Suboh v. District Attorney's Office of the Suffolk District, Michael N. Murphy, Carl Borgioli

* Of the Northern District of California, sitting by
designation.
United States Court of Appeals
For the First Circuit
____________________
Nos. 01-2272, 01-2524
MOUNA KANDY SUBOH, INDIVIDUALLY, AS ADMINISTRATIX OF THE ESTATE
OF ISHAQ SUBOH, AND AS NEXT FRIEND OF HER MINOR DAUGHTER SOFIA
KANDY,
Plaintiff, Appellee,
v.
DISTRICT ATTORNEY'S OFFICE OF THE SUFFOLK DISTRICT, MICHAEL N.
MURPHY, CARL BORGIOLI,
Defendants, Appellants,
CITY OF REVERE, MASSACHUSETTS; ROBERT J. HAAS JR.; JAMES RUSSO;
STEVEN PISANO; JOHN MCRAE; STEVEN WALLACE; THEODORE MICHALSKI;
JULIEANN MAVAROSA; ANTONIO ARCOS; JOHN M. AZZARI; RICHARD
BACHOUR; RALPH C. MARTIN II; INDIVIDUALLY AND IN THEIR OFFICIAL
CAPACITIES,
Defendants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
____________________
Before
Selya and Lynch, Circuit Judges,
and Schwarzer,* Senior District Judge.
____________________
Linda A. Wagner, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on the brief for appellants
District Attorney's Office and Michael N. Murphy.

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Michael J. Akerson with whom Austin M. Joyce and Edward P.
Reardon, P.C. were on the brief for appellant Carl Borgioli.
Harvey A. Schwartz with whom Kimberly H. Scheckner, Rodgers,
Powers & Schwartz, James R. Knudsen, and Wittenberg & Associates
were on the brief for appellee.
____________________
August 1, 2002
____________________

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LYNCH, Circuit Judge. This appeal presents issues of
qualified immunity for public officers, beneath which lie
significant issues about parents' rights under the United States
Constitution. The case history is one of international intrigue
and of local law enforcement officers attempting to respond to the
requirements of both criminal law and family law. Of the two
defendants before us on appeal, we hold that one, Assistant
District Attorney Michael Murphy, is entitled to qualified
immunity. The other, Revere Police Officer Carl Borgioli, is not
so entitled at the summary judgment stage. Consequently, we
reverse the district court's denial of summary judgment on this
issue as to Murphy and affirm the denial as to Borgioli.
I.
We give the general background and then focus on what was
known to the two defendants. We describe the facts in favor of the
nonmoving party on summary judgment.
This case arises out of a complicated family dispute,
involving three generations and three continents. The end result,
according to the plaintiff, is that she has been deprived of
custody of her young daughter due to the actions of the defendants.
The plaintiff, Mouna Kandy Suboh, is a native of Morocco
and is now a resident of Massachusetts. In 1991, while still
living with her parents in Morocco, she became pregnant out of
wedlock. Suboh then fled to Holland to avoid what she says was her
father's rage at her pregnancy. A daughter, Sofia, was born in
Holland on April 9, 1992. Shortly thereafter, Suboh's mother

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traveled to Holland and convinced her to return to Morocco with the
baby. Suboh's parents, the Kandys, then raised Sofia as if she
were their own child. At some point, Suboh says, the Kandys
obtained a fake birth certificate purporting to certify that Sofia
was their biological child. At no point did they ever legally
adopt Sofia; according to the plaintiff, Moroccan law does not
allow such adoptions and Morocco officially recognizes Suboh as
Sofia's mother. Suboh claims that her father is physically abusive
and controlling, and that she agreed to her parents pretending to
be Sofia's parents only because she feared her parents would not
let her see Sofia at all if she did not agree.
In 1995, Suboh met an American citizen, Ishaq Suboh, and
moved to Massachusetts to marry him. She says that the Kandys had
promised to send Sofia to live with her in the United States, but
reneged on that promise once she had left Morocco. Suboh says she
returned to Morocco four times, attempting to obtain custody. She
also filed a case in the Moroccan court system, but she says that
the case was never adjudicated, due to her father's power and
influence in Morocco. She eventually dropped the legal case so
that her father would allow her to see Sofia again.
In April 1998, the Kandys came to Massachusetts in order
for Suboh's father to receive medical treatment. They brought
Sofia with them and stayed with Suboh and her husband at their
apartment in Revere. On May 26, 1998, Suboh and her husband
quarreled with the Kandys about whether Sofia would be returning to
Morocco with the Kandys or staying with Suboh in Massachusetts.

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Following that fight, Suboh's husband called the Boston city
councillor's office to explain the situation. An official there
advised the pair to keep Sofia with them. Suboh and her husband
then packed up their things, took Sofia, and went to the city
councillor's office. They took with them Sofia's Dutch birth
certificate, Moroccan birth identification records showing that
Suboh was Sofia's mother, a document from the Dutch hospital where
Sofia was born, papers from Suboh's Moroccan attorney, and copies
of the Kandys' forged documentation. An official at the city
councillor's office told them she would contact an attorney for
them, and advised them to stay away from the Kandys and keep Sofia
with them in the meantime. Suboh and her husband also went to the
Immigration and Naturalization Service office to try to obtain
residency papers for Sofia, but were unable to do so because they
did not have her passport. Later that day, they checked into a
hotel. The following day, after Suboh's husband spoke with Mr.
Kandy, the two checked into another hotel.
Mustapha Kandy, Suboh's father, called the Revere police
and reported that one of his daughters (Suboh) had kidnapped his
other daughter (Sofia). The Kandys told the Revere police that
Suboh and Sofia were sisters and that they, the Kandys, were
Sofia's parents. The Kandys showed the police a birth certificate
in French and Arabic indicating that Sofia was their daughter.
This birth certificate was translated by a Revere police officer.
In the early morning of May 28, Officer Borgioli became
involved with the case. He reviewed the information that his

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colleagues had obtained on the previous day. He went to the Revere
apartment to interview the Kandys. The Kandys also showed him
Sofia's passport and a document that turned out to be the forged
birth certificate. While at the apartment, Borgioli also spoke
with the officer who had translated the Kandys' documents.
Borgioli also spoke with the Kandy's niece, who was visiting at the
time. Borgioli stated in an affidavit that the niece told him that
the Kandys had raised Sofia from a very young age.
Borgioli testified at his deposition that Mrs. Kandy told
either him or one of the FBI agents that Suboh was Sofia's
biological mother and that the Kandys had adopted Sofia. In his
police report, Borgioli did not include anything about this
supposed adoption, or the fact that the Kandys allegedly told him
that Suboh was Sofia's biological mother. His affidavit confirms
that he learned that Suboh was the biological mother from Suboh
herself, when he interviewed her on the following day at the police
station. Borgioli testified that he was under the impression,
based on something that an Arabic-speaking FBI agent told him, that
the Kandys' documents were adoption papers. But he also testified
that he did not recall that either the Kandys or anyone else had
ever used the word adoption. And this belief was also inconsistent
with the document itself, which refers to Mrs. Kandy as the mother
and says nothing about adoption.
Mr. Kandy told Borgioli that their son-in-law, Ishaq
Suboh, had come to the apartment at some point earlier that day or
on the previous day. Mr. Kandy said that, at that time, Ishaq had

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stolen a Rolex watch from him and asked for money, which he gave
him. Mr. Kandy said that Ishaq then asked for more money and said
he would call back later to arrange for a time for them to meet.
Borgioli stated that Mr. Kandy believed that Suboh and her husband
were holding Sofia for ransom money. There is nothing in the
record, however, about Ishaq Suboh requesting ransom for the return
of Sofia and nothing indicating that Mouna Suboh knew of such
requests, if any were made.
Officer Borgioli called the District Attorney's office
from the apartment. Borgioli spoke with Assistant District
Attorney Murphy, telling him that the case involved a kidnapping
for ransom and asking him questions about setting up a tap on the
apartment's telephone. Murphy did not remember whether Borgioli
told him that the Kandys were the biological parents of Sofia, or
her custodians, but he says that Borgioli led him to believe that
the Kandys had legal custody of Sofia.
While Borgioli was obtaining information from the Kandys,
a fellow Revere police officer, who was with him at the Revere
apartment, obtained information that Ishaq Suboh had attempted to
charge airline tickets to his credit card, which was at its limit.
At this point, the FBI was called in to assist with the case.
At some point during the day, Ishaq Suboh called from a
number that the police later learned was the Boston City Council.
He refused to speak with Mr. Kandy, but spoke with Mrs. Kandy and
arranged to meet her at a nearby donut shop. Borgioli says that he
understood the purpose of the meeting was to arrange the

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circumstances for Sofia's return. A special agent from the FBI
listened in on the phone conversation. The meeting never took
place.
The following day, two Revere police officers (not
including Borgioli) located Suboh in a hotel in Malden. Suboh told
the police at that time that Sofia was her daughter and attempted
to give them official, certified documentation showing that she was
Sofia's birth mother. The police declined to accept the documents
at that time.
The police then took Suboh and Sofia to the Revere police
station to be interviewed. Borgioli conducted the interview.
Suboh told Borgioli that she was Sofia's mother and that the
Kandys' documents were false. She says she told him about the
fight with her parents regarding whether Sofia would return to
Morocco. She says she also told him that she had legal custody of
Sofia. She again showed all her documentation from the Netherlands
and Morocco. She also repeatedly requested that Borgioli call the
Moroccan embassy or the Netherlands embassy to verify her
documentation. The police took Suboh's documents and photocopied
them, although they made no effort to have them translated or to
confirm them with the relevant embassies. Suboh also told Borgioli
that her parents' visa was about to expire, and they had tickets to
return to Morocco with Sofia. She says she asked the police to
keep Sofia in state custody. Suboh says that the police repeatedly
asked her about the stolen watch and her husband's alleged demand
for money, and that she responded, "Which watch, what money, I

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don't know what you're talking about." She says they were only
concerned about the money and the watch, and her movements over the
previous two days, and not about her claims to be Sofia's mother.
Borgioli testified that Suboh told him she had given up
custody of Sofia to the Kandys, or that the Kandys had adopted
Sofia without Suboh's consent and that she was trying to "regain"
custody. This is contrary to Suboh's testimony, as is Borgioli's
statement that Suboh never told him not to release Sofia to the
Kandys, or expressed fear that the Kandys would take Sofia to
Morocco. Borgioli did admit that Suboh said she had never given
her permission for an adoption. He also testified that Suboh had
suggested that the Kandys' documents were forged, but said that "it
was just speculation on her part" and he thought she was just
trying to avoid being arrested. He also recalled her telling him
about the difficulties she had trying to regain custody under the
Moroccan system. He said that he made no effort to investigate
whether Suboh's claims about the various custody documents were
true, because he had no reason, other than Suboh's word, to believe
her. The same was, of course, true for the Kandys' word.
During the interview, Borgioli again called Assistant
District Attorney Murphy. Both Borgioli and Murphy agree that, at
this point, Borgioli told Murphy that Suboh was Sofia's biological
mother. He asked Murphy, in a case where Suboh was the biological
mother but not the legal guardian, whether he should charge her
with straight kidnapping, kidnapping by a relative, or kidnapping

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1 There does not appear to have been any discovery from the
FBI agents about what they told Suboh or Borgioli.
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by a parent. He also either asked if he could release Sofia to the
Kandys, or stated that he was going to release Sofia to them.
Murphy replied that he would have to call back. When he called
back a few minutes later, Murphy told Borgioli that Suboh should be
charged with kidnapping by a relative. Murphy may have also said
"okay" in response to Borgioli's statement or question about
releasing Sofia to the Kandys, but Murphy did not recall having
said that. There is no evidence in the record that Murphy was
given any additional information about the case, such as the fact
that Suboh had documentation beyond what the Kandys had presented
or the fact that Suboh alleged that the Kandys' documents were
forged. There is no evidence that Murphy was told that legal
custody of the child was disputed. There is also no evidence that
Murphy knew, or had reason to believe, that the Kandys' visa was
expiring or that they planned to take Sofia back to Morocco
immediately.
Suboh says that Borgioli told her that Sofia would be
temporarily placed in state custody. Suboh says that an FBI agent
who was present also told her that Sofia would be placed with the
state Department of Social Services (DSS), and the police would
keep her passport. She says the agent instructed Borgioli to "keep
the passport and the daughter at the DSS."1 Borgioli says that he
never considered involving the DSS.

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The police charged Suboh with kidnapping by a relative
and transported her to court. Suboh asked if Sofia could come with
her, and Borgioli told her that Sofia could not come to court, but
that Suboh would see Sofia when she came out of court.
Despite these representations to Suboh and the statement
by the FBI agent instructing Borgioli to place the child with DSS,
Borgioli then released Sofia to the Kandys. Borgioli did not ask
the Kandys not to leave the country, nor did he make any efforts to
make sure that they would not leave the country with Sofia. He
admits that he never told Suboh that he was going to release Sofia
to the Kandys and admits that it is fair to say that the decision
to release Sofia to the Kandys was his decision.
Immediately after Sofia was returned to them, the Kandys
returned to Morocco with the child. The charges against Suboh and
her husband were later dismissed. Suboh has not been able to
regain physical custody of her daughter since that time.
II.
On March 6, 2000, Suboh, the estate of her now-deceased
husband, and Sofia (acting through Suboh, her next friend) brought
suit in the federal district court of Massachusetts against
Borgioli, Murphy, the District Attorney's office, the City of
Revere, and various other individuals associated with the case. The
case alleged deprivation of the rights of Suboh, her husband, and
Sofia, as secured by the Constitution and the laws of the United
States, and liability under the Massachusetts Torts Claims Act,
Mass. Gen. Laws. ch. 258, § 2 (2000), the Massachusetts Civil

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2 The motion to dismiss also encompassed other claims
against Murphy and the District Attorney's office. The district
court dismissed some claims, and denied the motion as to other
claims. Suboh v. City of Revere, 141 F. Supp. 2d 124, 124, 145 (D.
Mass. 2001). These other claims are not at issue in this appeal.
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Rights Act, id. ch. 12 § 11I, and various state law tort claims.
For purposes of this appeal, we analyze all of the claims as
Suboh's claims.
On August 1, 2000, Murphy filed a motion to dismiss the
§ 1983 claims brought against him in his individual capacity,
asserting immunity and other defenses.2 Suboh v. City of Revere,
141 F. Supp. 2d 124, 127 (D. Mass. 2001). On March 30, 2001, the
district court denied the motion to dismiss, holding that Murphy
was not entitled to either absolute prosecutorial immunity or
qualified immunity. Id. at 136-45. As for Murphy's claim of
absolute prosecutorial immunity, the district court reasoned that
because "the deprivation of which [the plaintiffs] complain is
wholly unrelated to any prosecutorial functions," there was no
prosecutorial immunity. Id. at 137. The district court then
concluded that Murphy was not protected by qualified immunity
because Suboh's claim "lies at the core" of a clearly established
right to familial integrity, id. at 140, and that, as the case was
presented by Suboh, "a reasonable person in Murphy's position would
have known that his release of Sofia into the Kandys' custody
violated that right," id. at 142. As a second ground, it reasoned
that Murphy's conduct violated a clearly established "substantive
due process right of a parent and her child not to have a child in

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3 The district court initially denied Borgioli's motion to
stay the trial, ruling that it was untimely because the legal
conclusion from which Borgioli sought to appeal was articulated in
its March 30, 2001, ruling, from which Borgioli took no appeal.
Borgioli petitioned this court, which issued an order clarifying
that Borgioli's motion was timely. Following that order, the
district court immediately granted the requested stay.
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state custody turned over to someone whom the state knows, or
should know, to be dangerous." Id.
Murphy originally appealed from the district court's
decision, but then voluntarily withdrew his appeal without
prejudice, after filing a motion for summary judgment with the
district court. On September 25, 2001, the district court denied
Murphy's motion for summary judgment. The court agreed that it was
undisputed that "the whole case was presented to Mr. Murphy [by
Borgioli] in a sense favorable to the grandparents." Nonetheless,
it found that there was a material fact in dispute as to whether
Borgioli asked Murphy for legal advice regarding whether to release
Sofia to the Kandys.
On August 17, 2001, Borgioli filed a motion for summary
judgment. On September 5, 2001, the district court granted
Borgioli's motion with respect to Suboh's Fourth Amendment claims,
but left Suboh's Fourteenth Amendment claims standing and denied
Borgioli's qualified immunity defense for the reasons articulated
in its March 30, 2001, decision regarding Murphy's qualified
immunity defense.
The court stayed the trial pending Murphy's and
Borgioli's appeals.3

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III.
This court has jurisdiction to consider interlocutory
appeals from the denial of a defendant's motion to dismiss or for
summary judgment on a qualified immunity defense. Behrens v.
Pelletier, 516 U.S. 299, 305-07 (1996); Duriex-Gauthier v. Lopez-
Nieves, 274 F.3d 4, 6 (1st Cir. 2001). Denials of summary judgment
on qualified immunity grounds are reviewed "to the extent that the
qualified immunity defense turns upon a 'purely legal' question"
and any disputed facts are not material to the issue of immunity.
Fletcher v. Town of Clinton, 196 F.3d 41, 45 (1st Cir. 1999)
(citations and internal quotation marks omitted). Our standard of
review in such cases is de novo. Id. at 48.
We use a three-part test to determine whether an official
is entitled to qualified immunity, Hatch v. Dep't of Children,
Youth & Their Families, 274 F.3d 12, 20 (1st Cir. 2001), following
the guidance provided by the Supreme Court, see Wilson v. Layne,
526 U.S. 603, 609 (1999); County of Sacramento v. Lewis, 523 U.S.
833, 841 n.5 (1998); Siegert v. Gilley, 500 U.S. 226, 232 (1991).
The threshold inquiry is whether the plaintiff's allegations, if
true, establish a constitutional violation. Hope v. Pelzer, 122 S.
Ct. 2508, 2513 (2002); Saucier v. Katz, 533 U.S. 194, 201 (2001);
Siegert, 500 U.S. at 232. The second question is whether the right
was clearly established at the time of the alleged violation. That
inquiry is necessary because officers should be on notice that
their conduct is unlawful before they are subject to suit. Hope,
122 S. Ct. at 2516-18; Anderson v. Creighton, 483 U.S. 635, 638-40

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(1987). The third is whether a reasonable officer, similarly
situated, would understand that the challenged conduct violated
that established right. Swain v. Spinney, 117 F.3d 1, 9 (1st Cir.
1997). The question of whether a right is clearly established is
an issue of law for the court to decide. Elder v. Holloway, 510
U.S. 510, 516 (1994). The reasonableness inquiry is also a legal
determination, although it may entail preliminary factual
determinations if there are disputed material facts (which should
be left for a jury). Swain, 117 F.3d at 10.
Borgioli argues that none of the three criteria are met.
Murphy makes the more restrained argument that the second two
criteria are not met. The arguments merge to the extent that they
both assert that there is no clear definition of what the district
court called a "right to familial integrity." Suboh, 141 F. Supp.
2d at 139.
A. Identification of a Constitutional Right
The district court based its ruling on an abstract right
to "familial integrity" inherent in the substantive component of
the Due Process Clause of the Fourteenth Amendment. Id. In doing
so, the district court relied on a series of Supreme Court cases
ranging from Meyer v. Nebraska, 262 U.S. 390 (1923), to Troxel v.
Granville, 530 U.S. 57 (2000). These cases cover a range of
issues, from constraints on a state's power to mandate compulsory
public education, Meyer, 262 U.S. 390, to constraints on a state’s
ability to mandate grandparent visitation rights, Troxel, 530 U.S.
57.

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There is a danger in the use of broad abstract terms such
as "familial integrity". The Supreme Court has warned against
using generalized definitions of constitutional rights in the
qualified immunity setting. Anderson, 483 U.S. at 639. This
court, in Frazier v. Bailey, 957 F.2d 920, 929-30 (1st Cir. 1992),
held that it is not sufficient for a plaintiff to allege an
abstract due process liberty interest in family relationships. The
qualified immunity defense requires that the "familial integrity"
right asserted be stated with particularity. Id.; see also Hatch,
274 F.3d at 20.
Putting aside notions of generalized "familial
integrity," there are, more pertinently, much more narrow interests
that are at stake here. To begin, "[t]he interest of parents in
the care, custody, and control of their children is among the most
venerable of the liberty interests embedded in the Constitution."
Hatch, 274 F.3d at 20; see also Croft v. Westmoreland County
Children & Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997)
(recognizing "the constitutionally protected liberty interests that
parents have in the custody, care and management of their
children"); Jordan v. Jackson, 15 F.3d 333, 342 (4th Cir. 1994)
("The state's removal of a child from his parents indisputably
constitutes an interference with a liberty interest of the parents
and thus triggers the procedural protections of the Fourteenth
Amendment."); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391
(4th Cir. 1990) ("[The plaintiff] clearly does have a protectible
liberty interest in the care and custody of his children."); Hooks

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4 The district court's holding regarding the "substantive
due process right of a parent and her child not to have a child in
state custody turned over to someone whom the state knows, or
should know, to be dangerous" was in error. Suboh, 141 F. Supp. 2d
at 142. There is no evidence in the record to establish that the
defendants had any reason to think that the Kandys posed a danger
to Sofia.
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v. Hooks, 771 F.2d 935, 941 (6th Cir. 1985) ("It is well-settled
that parents have a liberty interest in the custody of their
children.") The child has a similar liberty interest in being in
the care and custody of her parents. See Brokaw v. Mercer County,
235 F.3d 1000, 1018-19 (7th Cir. 2000); Wooley v. City of Baton
Rouge, 211 F.3d 913, 923 (5th Cir. 2000); Duchesne v. Sugarman, 566
F.2d 817, 825 (2d Cir. 1977); Opinion of the Justices to the
Senate, 427 Mass. 1201, 691 N.E.2d 911, 915 (1998).
This liberty interest is protected both by the
substantive component of the Due Process Clause, which constrains
governmental interference with certain fundamental rights and
liberty interests, and by the procedural component of the Due
Process Clause, which guarantees "fair process." Washington v.
Glucksberg, 521 U.S. 702, 720 (1997). In this case, we focus our
analysis primarily on the procedural aspect, which is most directly
implicated by the facts presented here.4 What is at issue here is
the right of a parent to procedural due process protections before
a governmental official resolves the disputed issue of custody of
a child, when there are known competing claims to custody.
Due process claims more commonly arise in situations
where state agency officials remove a child from the custodial
parents, usually where there is some suspicion of child abuse or

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neglect. In Santosky v. Kramer, 455 U.S. 745 (1982), the Supreme
Court held that before a state may sever the parent's rights in
their child, due process requires that the state support its
allegations of abuse or neglect by at least clear and convincing
evidence, id. at 768-71. In cases where the safety of the child
is at risk, there are competing liberty interests, and so the
parents' rights are not absolute. Based on this principle, we have
frequently upheld immunity for state actors who investigate child
abuse allegations and take emergency action to protect a child.
See Hatch, 274 F.3d 12, 20-22, 24-25; DaCosta v. Chabot, 59 F.3d
279 (1st Cir. 1995); Frazier, 957 F.2d at 920, 931.
Generally speaking, the question of what process is due
involves a weighing of the different interests of the child, the
parents, and the state. Hatch, 274 F.3d at 20; see also Weller,
901 F.2d at 395-96 (considering interests and facts in case to
determine what process was due); Opinion of the Justices, 691
N.E.2d at 915; Care & Prot. of Robert, 408 Mass. 52, 556 N.E.2d
993, 996-97 (1990). Due process protects a parent's rights even
when a state temporarily removes a child before obtaining a court
order, as the state may place a child in temporary custody only
when it has evidence giving rise to a suspicion that the child has
been abused or is in imminent danger. Hatch, 274 F.3d at 20; see
also Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000); Croft,
103 F.3d at 1125. Moreover, due process requires that some sort of
process be provided promptly after an emergency removal. "'[I]n
those "extra-ordinary situations" where deprivation of a protected

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interest is permitted without prior process, the constitutional
requirements of notice and an opportunity to be heard are not
eliminated, but merely postponed.'" Weller, 901 F.2d at 393
(quoting Hooks, 771 F.2d at 942 (quoting Duchesne, 566 F.2d at
826)); see also Brokaw, 235 F.3d at 1021; Campbell v. Burt, 141
F.3d 927, 929 (9th Cir. 1998); Jordan, 15 F.3d at 343. Both the
right to predeprivation process and the right to postdeprivation
process are at issue in this case.
Suboh's claim is that Officer Borgioli, enabled by
Assistant District Attorney Murphy, effectively decided the custody
dispute by turning the child over to the Kandys while knowing the
Kandys were about to leave the country with the child; thus, he
effectively deprived Suboh of her parental right to the care and
custody of her child without providing her with due process
procedures. In so doing, Borgioli ignored due process procedures
established by state law to deal with situations such as this one.
These include procedures for the state to take custody of a child
whose guardian is unavailable, Mass. Gen. Laws ch. 119, § 23(C)
(2000), procedures for the state to take temporary custody of
children needing care and protection, id. ch. 119, § 24 (2000),
procedures for determining custody of children born out of wedlock,
id. ch. 209C, § 10 (2000), and procedures for enforcing foreign
custody judgments within Massachusetts, id. ch. 209B, § 12 (2000).
Yet Borgioli short-circuited all of these procedures by deciding
the issue on his own.

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Generally, "there is a presumption that fit parents act
in the best interests of their children." Troxel, 530 U.S. at 68.
Here, there was no suspicion of child abuse or reason to suspect
that the child would be in imminent peril, and thus no reason to
sever Suboh's parental rights prior to the state's resolution of
the custody dispute through its normal procedures. See Hatch, 274
F.3d at 20. One of Suboh's rights as a mother was the right to
choose a proxy custodian for Sofia following her arrest. See In re
Dep't of Pub. Welfare, 383 Mass. 573, 421 N.E.2d 28, 34 (1981)
(noting, in case of incarcerated mother, that mother's "presumptive
right to custody of the child includ[es] the right to choose a
caretaker proxy"). Borgioli's actions deprived her of this right.
Moreover, there was evidence both that Suboh told
Borgioli that the Kandys were planning on leaving the jurisdiction
with Sofia within days and that Borgioli knew the Kandys' visa was
about to expire and that they had return tickets to Morocco.
Borgioli therefore had reason to know that Suboh would never
receive any postdeprivation hearing. See Weller, 901 F.2d at 396
("[I]t is alleged that in addition to depriving [the parent] of
custody without a hearing, defendants arranged for [the child] to
be taken out of the jurisdiction . . . thereby reducing the
possibility of a post-deprivation hearing."); Hooks, 771 F.2d at
942 ("Here the children were turned over . . . allegedly with the
knowledge that they would immediately be taken . . . out of the
jurisdiction . . ., effectively eliminating the opportunity for
plaintiff to receive a post-deprivation hearing.").

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We think it plain that Suboh alleges a violation of a
constitutional right.
B. Clearly established at the time
Both defendants say there was sufficient ambiguity as to
the scope of "familial integrity" rights when they acted in 1998
that they are entitled to immunity because the right was not
clearly established at the time. This court has held that, at
least as of 1992, "the dimensions of this right [to familial
integrity] have yet to be clearly established." Frazier, 957 F.2d
at 931. Articulating the right as one of "familial integrity"
casts too broad a net. The inquiry into whether a right is clearly
established "must be undertaken in light of the specific context of
the case, not as a broad general proposition." Saucier, 533 U.S.
at 201; see also Wilson, 526 U.S. at 615. The constitutional right
at issue here is the right to procedural and substantive due
process before the state takes a child away from his or her parent.
One tried and true way of determining whether this right
was clearly established at the time the defendants acted, is to ask
whether existing case law gave the defendants fair warning that
their conduct violated the plaintiff's constitutional rights.
Hope, 122 S. Ct. at 2522. This inquiry encompasses not only
Supreme Court precedent, but all available case law. Hatch, 274
F.3d at 23.
A parent's liberty interest in the care and custody of
her child was established long before the facts of this case arose.

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The Supreme Court has noted that "[t]he liberty interest . . . of
parents in the care, custody, and control of their children . . .
is perhaps the oldest of the fundamental liberty interests
recognized by this Court." Troxel, 530 U.S. at 65. Applying this
substantive due process right in Troxel, four members of the Court
found it unconstitutional for a state to fail to give weight to a
custodial parent’s interests in determining the care of her
children when adjudicating a grandparent’s contested petition for
visitation because the presumption is that a fit parent will act in
their child's best interests. Troxel, 530 U.S. at 70-73 (plurality
opinion).
The long-standing acknowledgment of a substantive due
process interest in familial integrity, e.g., Meyer, 262 U.S. 390,
formed the backdrop for the Supreme Court's 1972 opinion in Stanley
v. Illinois, 405 U.S. 645 (1972), in which the Court held that
procedural due process demanded that a parent be given "a hearing
on his fitness as a parent before his children were taken from
him," id. at 649. This principle was further developed by the
Court in Santosky, in which the Court held that procedural due
process required that a person's parental rights not be terminated
unless the state's allegations of unfitness were supported by
"clear and convincing evidence." 455 U.S. at 769. The
Massachusetts Supreme Judicial Court has long recognized parents'
rights to procedural due process in cases in which the state
intervenes in the care and custody of their children, citing often
to the Stanley and Santosky decisions. See, e.g., Opinion of the

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-23-
Justices, 691 N.E.2d at 913; Adoption of Eugene, 415 Mass. 431, 614
N.E.2d 645, 647 (1993); Dep't of Pub. Welfare v. J.K.B., 379 Mass.
1, 393 N.E.2d 406, 407-08 (1979).
We have no doubt that there is a clearly established
constitutional right at stake, although we have found no case
exactly on all fours with the facts of this case. The difference
in contexts in which the right is discussed in the case law does
not mean such a right does not exist. See Hope, 122 S. Ct. at
2515-16 (rejecting requirement that facts of previous cases be
"materially similar" to instant case as an overly "rigid gloss" on
qualified immunity determinations). "[O]fficials can still be on
notice that their conduct violates established law even in novel
factual circumstances. . . . [T]he salient question . . . is
whether the state of the law [at the time of the action] gave [the
defendants] fair warning that their alleged treatment of [the
plaintiff] was unconstitutional." Id. at 2516.
As the district court stated, "[i]t is clearly
established that a parent cannot be deprived of custody of a child
absent notice and a hearing unless there are exigent circumstances
of abuse or neglect." Suboh, 141 F. Supp. 2d at 143 (citing
Stanley, 405 U.S. at 650-57). Even when there are such exigent
circumstances, there must be an adequate post-deprivation hearing
within a reasonable time. The cases discussing this right are not
new and existed long before the events in this case. E.g., Hooks,
771 F.2d at 942; Duchesne, 566 F.2d at 826-28.

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Our precedent in Hatch settles the matter. Hatch
involved the standard (reasonable suspicion of imminent danger) by
which a state actor would be justified in temporarily taking a
child from her parent pending a hearing. 274 F.3d at 23-24.
Hatch, decided in 2001, found the right clearly established by the
time of the events in question there, which occurred in 2000. Our
case concerns events in May 1998. Nonetheless, Hatch relied on
cases dating from the early and mid 1990s that established due
process protections for even temporary removals of children pending
a due process hearing. Id. at 20, 23.
Moreover, long before the events at issue in this case,
many of our sister circuits had articulated a constitutional right
to procedural due process when the state transfers custody from a
custodial parent. See, e.g., Weller, 901 F.2d at 393, 398 (finding
that complete denial of a hearing following emergency transfer of
custody violated due process); see also Wooley, 211 F.3d at 917,
924 (finding that mother's and child's due process rights not to
have state deprive mother of custody absent court order or
emergency circumstances were clearly established in 1995). In
particular, the 1985 Hooks case bears marked factual similarities
to this case. 771 F.2d 935. In Hooks, the noncustodial father,
who resided out of state, informed the local police of an
outstanding warrant against the custodial mother. Id. at 939. The
mother attempted to make interim care arrangements for her
children, but the police refused to allow her to do so. Id. at
940. She was released on her own recognizance within a few hours

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-25-
of arrest, but, in the meantime, the police had turned the children
over to her ex-husband, who had immediately left the state with
them. Id. at 939. The court held that a transfer of custody that
"effectively eliminat[ed] the opportunity for . . . a post-
deprivation hearing" violated the mother's due process rights. Id.
at 942.
It follows from Santosky and Stanley, reinforced by the
cases cited in Hatch and those from our sister circuits, that it
was clearly established in 1998 that a state official could not
effectively resolve a disputed custody issue between a parent and
another without following any due process procedures at all.
Defendants had fair warning of the existence of these rights.
Hope, 122 S. Ct. at 2516.
C. The Understanding of An Objectively Reasonable Officer
The inquiry under the third prong of the qualified
immunity analysis is whether an objectively reasonable officer in
the defendant’s position would have understood his action to
violate the plaintiff’s rights. See Saucier, 533 U.S. at 205 ("If
the officer's mistake as to what the law requires is reasonable
. . . the officer is entitled to the immunity defense."); Swain,
117 F.3d at 9-10. The analysis differs as to Murphy and to
Borgioli.
1. Murphy
Unlike Borgioli, Murphy was not given facts indicating
that there was any dispute over the custody of the child. Indeed,
Murphy’s only information on this point, from Borgioli, was that

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the Kandys were the child’s lawful custodians. These facts alone
would seem to mandate that Murphy be given qualified immunity. It
is not material that Borgioli's and Murphy's memories diverged over
whether there was any discussion of whether to release the child to
the Kandys.
Suboh makes two arguments in response. First, Suboh says
Murphy had no legal authority to release the child. Second, Suboh
says that Murphy was negligent in not determining whether there was
a custody dispute between Suboh and the Kandys. Neither argument
has merit.
First, the claim as to which immunity is sought is a
federal constitutional claim, brought under § 1983, not a state law
claim about an individual exceeding his authority. The
constitutional claim does not turn on the scope of the authority of
the Assistant District Attorney. Whether or not he had authority,
he simply did not know there was a custody dispute.
Suboh's second argument assumes that there was some fact
that should have put Murphy on inquiry notice that there was a
custody dispute. The facts alleged here concerning Murphy's
involvement in the matter would not put a reasonable prosecutor on
such notice.
The district court denied immunity to Murphy on the basis
that Murphy may have given Borgioli legal advice about whether he
could turn custody of the child over to the Kandys. The record is
clear that Murphy did not know that there was a custody dispute
and, indeed, implicitly was told custody was not in dispute. Given

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-27-
these facts, we cannot say it was unreasonable for Murphy to acede
to Borgioli's suggestion that the child be returned to individuals
that Murphy was told were her legal guardians. The district
court’s conclusion cannot stand. Accordingly, we reverse the
district court; Murphy is entitled to qualified immunity on the
§ 1983 claim.
2. Borgioli
Borgioli, in contrast, knew that there was a custody
dispute from his interrogation of Suboh and knew that Suboh had
documents that she said supported her claim to custody. Suboh had
shown him a birth certificate that showed her as the birth parent,
as well as various other documents that supported her claims.
Suboh had also told him that the documentation shown by the Kandys
was forged and that the Kandys had lied to him. He knew that the
Kandys had given the police inconsistent information about who the
birth mother was.
Borgioli argues that it was factually reasonable for him
to release the child to the Kandys even if a clearly established
right was involved. In essence he makes three arguments. First,
he argues that the facts as he knew them indicated that the Kandys
were Sofia’s custodians. Second, he argues that he had probable
cause to arrest Suboh and her husband for kidnapping and that was
enough to justify his release of the child. Third, Borgioli argues
that ADA Murphy agreed to releasing the child to the Kandys, and
that immunizes him. We take each argument in turn.

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We, like the district court, think that no reasonable
officer could have concluded on the facts before him that the
Kandys had undisputed custody of the child, despite Suboh's claims,
and so no process of any sort was due before the child could be
released to the Kandys. Suboh repeatedly told him that she was the
biological mother of Sofia, which directly conflicted with the
information provided by the Kandys, who at times said they were the
biological parents and had provided a birth certificate indicating
that they were the biological parents. Suboh also provided
documentation that was obviously different from the documentation
provided by the Kandys and which she said supported her claim of
custody. Suboh told him that the Kandys' custodial documents were
forged. No objectively reasonable officer could immediately
conclude that the Kandys' documents were valid and Suboh's
documents were forged, or that there was no custody dispute.
Borgioli also failed to pursue reasonable avenues of
investigation to determine whether Suboh's claims were true, such
as having her documents translated from Dutch, French, and Arabic,
or calling the embassies, as Suboh requested. See Wallis, 202 F.3d
at 1138 (police should pursue "reasonable avenues of
investigation," within circumstances of case, before removing
children from parents' custody). It is also relevant that the
Kandys' documentation, even if valid, did not give the police
authority to effect a transfer of custody, see Mass. Gen. Laws ch.
209B, § 12 (setting forth rules for filing and enforcing custody
judgments of foreign states in Massachusetts); Wooley, 211 F.3d at

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926 (it was not objectively reasonable for police officer to rely
on court custody order to transfer custody when state law required
a civil warrant).
We also reject Borgioli's argument that the probable
cause determination as to the kidnapping charges entitles a
reasonable officer to make a conclusive determination of a disputed
custody matter. The threshold for probable cause in a criminal
case is low, as Borgioli certainly must know. "[P]robable cause
exists when 'the facts and circumstances within [the police
officer’s] knowledge and of which they had reasonably trustworthy
information were sufficient to warrant a prudent [person] in
believing that the [defendant] had committed or was committing an
offense.'" Rivera v. Murphy, 979 F.2d 259, 263 (1st Cir. 1992)
(quoting United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.
1987) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)) (internal
quotation marks omitted). That there is probable cause that a
crime has been committed is not a determination on the merits that
a crime was committed: an arrest is not a conviction. Indeed, in
order to prove kidnapping by a relative, as Borgioli must have
known, the state would have had to show that Suboh did not have
custody of the child. Mass. Gen. Laws ch. 265, § 26A (2000). As
a matter of law, mere probable cause for arrest on kidnapping
charges of a person claiming custody is not a sufficient basis on
which to determine a custody dispute, nor is an arresting police
officer the correct person to be making such a determination.
Compare Rivera, 979 F.2d at 263 (articulating standard for probable

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-30-
cause), with Santosky, 455 U.S. 745 (articulating standard for
permanent deprivation of parental rights). While a temporary
emergency transfer of custody may issue on the basis of "reasonable
cause" to believe that a child is in danger of abuse or neglect,
see Care & Prot. of Robert, 556 N.E.2d at 995-96, that is a far cry
from a police officer making a custody decision that is effectively
nonreversible on the basis of probable cause for arrest for
kidnapping by a relative. The probable cause argument works
against Borgioli, not for him. A reasonable officer could not view
cause for arrest as the extent of the process due before usurping
the parent's right to the care and custody of her child.
Borgioli’s reliance on Murphy does not help him.
Although Borgioli had facts before him that there was a keenly
disputed custody issue, he refrained from telling Murphy about that
dispute. A reasonable officer would not rely on a district
attorney's assent, when he knew the district attorney had not been
given the material information. Cf. Rodriques v. Furtado, 950 F.2d
805, 812 (1st Cir. 1991) (there is no qualified immunity if police
officer was "constitutionally negligent" and knew that facts
submitted in search warrant affidavit were insufficient to
establish probable cause).
On the facts alleged by Suboh, Borgioli's actions were
not on the "hazy border" between acceptable and unacceptable
behavior. Saucier, 533 U.S. at 206 (quoting Priester v. City of
Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000)) (internal
quotation marks omitted). Whatever the exact contours of the right

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-31-
to due process in the context of child removals in other
circumstances, see, e.g., Frazier, 957 F.2d at 931, this case
falls well within the area of clarity. Borgioli cannot prevail on
qualified immunity at the summary judgment stage.
IV.
Pendent Jurisdiction
Defendants ask us to take jurisdiction over their appeals
from the denial of qualified immunity on the Massachusetts Civil
Rights Act claim against Borgioli, the denial of immunity on the
Massachusetts Torts Claims Act claims against the District
Attorney's office, and the denial of summary judgment on state tort
claims against Murphy. Generally, interlocutory review of a
decision denying qualified immunity under § 1983 "does not in and
of itself confer jurisdiction over other contested issues in the
case." Roque-Rodriguez v. Lema Moya, 926 F.2d 103, 105 & n.2 (1st
Cir. 1991). In order for the court to exercise pendent
jurisdiction, the party seeking jurisdiction must show that the
issues are "inextricably intertwined with [the district] court’s
decision to deny the individual defendants' qualified immunity
motions, or that review of the [decision for which pendent
jurisdiction is sought] was necessary to ensure meaningful review
of the [qualified immunity decision]." Swint v. Chambers County
Comm’n, 514 U.S. 35, 51 (1995); see also Fletcher v. Town of
Clinton, 196 F.3d 41, 55-56 (1st Cir. 1999). We have thoroughly
reviewed the qualified immunity decision of the trial court without
any need to touch on the pendent claims. Consequently, there is no

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pendent appellate jurisdiction here. That said, however, we fully
expect that the district court, either sua sponte or upon timely
request, will reevaluate its earlier rulings in light of this
opinion.
Conclusion
The denial of summary judgment as to Murphy is reversed
and the claim against him under § 1983 is ordered dismissed on
qualified immunity grounds. The denial of summary judgment as to
Borgioli's claim of qualified immunity is affirmed. No costs are
awarded. So ordered.

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