John Loudermilk v. Joseph M. Arpaio

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN LOUDERMILK; TIFFANY
LOUDERMILK, individually and as
parents and next friends of Brittany Renee
Nash, Dakota James Loudermilk, Kristin
Grace Loudermilk, Faith Rose
Loudermilk, and Montana Vaughn
Loudermilk, minor children,
Plaintiffs - Appellants,
v.
JOSEPH M. ARPAIO; UNKNOWN
PARTIES; MICHAEL DANNER;
RICHARD GAGNON; JOSHUA RAY;
JOSEPH SOUSA,
Defendants,
And
JULIE RHODES, individually and in her
official capacity as Assistant Attorney
General for the State of Arizona;
RHONDA CASH, individually and in
official capacity as a social worker with
the Arizona Department of Economic
Security, Administration for Children,
No. 12-17259
D.C. No. 2:06-cv-00636-ROS
MEMORANDUM*
FILED
FEB 04 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Youth, Families, Child Protective
Services; JENNA CRAMER, individually
and in official capacity as a social worker
with the Arizona Department of Economic
Security, Administration for Children and
Families, Child Protective Services,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Argued and Submitted December 12, 2014
San Francisco California
Before: O’SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges.
John and Tiffany Loudermilk, et al., appeal from the district court’s grant of
summary judgment in favor of Julie Rhodes, Rhonda Cash, and Jenna Cramer
(“officials”). The Loudermilks claim that the officials (1) violated their Fourth
Amendment right to be free from an unreasonable search of their home, and (2)
violated their Fourteenth Amendment right to family integrity.
I
The district court did not err in finding that Cash and Cramer were entitled
to qualified immunity regarding the unreasonable search claim. Assuming there
was a constitutional violation in this case, the Loudermilks have the burden of
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showing that the right at issue was clearly established. See Alston v. Read, 663
F.3d 1094, 1098 (9th Cir. 2011). It is clearly established that voluntary consent to
a search vitiates concerns as to the search’s unconstitutionality, see Schneckloth v.
Bustamonte, 412 U.S. 218, 219, 227 (1973), with voluntariness to be assessed by
examining the totality of the circumstances. See United States v. Patayan Soriano,
361 F.3d 494, 501 (9th Cir. 2004). Our case law does not clearly establish that
consent to a limited search is involuntary when given after the consenting party has
had the opportunity to consult with an attorney. Cf. United States v. Wellins, 654
F.2d 550, 555–56 (9th Cir. 1981) (holding that a defendant’s consultation with his
attorney was a “crucial factor” in determining that the defendant validly consented
to a search of his hotel suite).
II
The district court properly determined that the officials were entitled to
qualified immunity on the family integrity claim as well. The Loudermilks fail to
cite any controlling authority clearly establishing that the mere threat to remove
children from their parents’ home violates the family’s Fourteenth Amendment
right to family integrity. See Alston, 663 F.3d at 1098 (“[The Plaintiff] bears the
burden of showing that the right at issue was clearly established.”).
AFFIRMED.
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