The Clerk of Court is directed to amend the official caption in accordance with the… v. City of New York UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 August…

* The Clerk of Court is directed to amend the official
caption in accordance with the foregoing.
07-4449-cv (L)
Southerland v. City of New York
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2008 3
(Argued: April 21, 2009 Decided: June 10, 2011 4
As Amended: May 14, 2012) 5
Docket Nos. 07-4449-cv (L), 07-4450-cv (CON) 6
------------------------------------- 7
SONNY B. SOUTHERLAND, SR., individually and as parent and natural 8
guardian of VENUS SOUTHERLAND, SONNY B. SOUTHERLAND, JR., 9
NATHANIEL SOUTHERLAND, EMMANUEL FELIX, KIAM FELIX, and ELIZABETH 10
FELIX, 11
Plaintiffs-Appellants, 12
- v - 13
CITY OF NEW YORK, TIMOTHY WOO, JOHN DOES 1-9, 14
Defendants-Appellees.*
15
------------------------------------- 16
Before: KEARSE, SACK, and HALL, Circuit Judges. 17
18
Consolidated appeals from a summary judgment entered by 19
the United States District Court for the Eastern District of New 20
York (Charles P. Sifton, Judge) in favor of, inter alios, the 21
defendant Timothy Woo. The plaintiffs -- a father and his 22
children -- bring various claims under 42 U.S.C. § 1983 asserting 23
that Woo, a children's services caseworker employed by the 24
defendant City of New York, entered their home unlawfully and 25
effected an unconstitutional removal of the children into state 26

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2
custody. The district court concluded that Woo was entitled to 1
qualified immunity with respect to all of the claims against him. 2
The grant of summary judgment is affirmed with respect to the 3
father's substantive due process claim, but vacated and remanded 4
with respect to the father's and children's Fourth Amendment 5
unlawful-search and Fourteenth Amendment procedural due process 6
claims, and the children's Fourth Amendment unlawful-seizure 7
claim. 8
As amended, affirmed in part; vacated and remanded in 9
part. 10
11
MICHAEL G. O'NEILL, New York, N.Y., for 12
Plaintiffs-Appellants Venus S., Sonny 13
B.S. Jr., Nathaniel S., Emmanuel F., 14
Kiam F., and Elizabeth F. 15
16
SONNY B. SOUTHERLAND, Brooklyn, N.Y., 17
Plaintiff-Appellant, pro se. 18
JULIAN L. KALKSTEIN, City of New York 19
(Michael A. Cardozo, Corporation 20
Counsel; Larry A. Sonnenshein, of 21
counsel), New York, N.Y., for 22
Defendants-Appellees. 23
24
SACK, Circuit Judge: 25
This lawsuit involves a man and a woman -- the 26
plaintiff Sonny B. Southerland Sr. ("Southerland") and non-party 27
Diane Manning -- two groups of children, and a caseworker's 28
apparent confusion between the two groups. Plaintiff Ciara 29
Manning is the daughter of Southerland and Diane Manning. Ciara 30

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3
was supposed to be living with Southerland at the time in 1
question, but in fact had left to live with a friend, and had not 2
resided in Southerland's home for at least a year. 3
In addition to Ciara, plaintiff Southerland fathered, 4
by one or more women other than Diane Manning, six other 5
children: the plaintiffs Venus Southerland, Sonny B. Southerland 6
Jr., Nathaniel Southerland, Emmanuel Felix, Kiam Felix, and 7
Elizabeth Felix (together, the "Southerland Children"). At the 8
time of the principal events in question, the Southerland 9
Children, unlike Ciara, were living with their father. 10
Diane Manning also allegedly bore, by one or more men 11
other than Southerland, six children other than Ciara: Eric 12
Anderson, Richy Anderson, Felicia Anderson, Erica Anderson, 13
Michael Manning, and Miracle Manning (together, the "Manning 14
Children"). They lived with Diane and, like her, are not parties 15
to this lawsuit. 16
In May 1997, the defendant Timothy Woo, a caseworker in 17
the Brooklyn Field Office of the New York City Administration for 18
Children's Services ("ACS"), was assigned to investigate a report 19
by a school counselor about then-sixteen-year-old Ciara Manning. 20
School staff had thought Ciara to be acting strangely. 21
After being unable, despite repeated attempts, to gain 22
entry to the Southerland home to investigate the report, Woo 23
sought and obtained from the Kings County Family Court an order 24

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1 We refer throughout this opinion to asserted Fourth
Amendment rights of the plaintiffs. Inasmuch as the defendants
are state and not federal actors, of course, whatever rights the
plaintiffs have are "under the Fourth Amendment, as applied to
the States under the Fourteenth Amendment['s]" Due Process
Clause. Kia P. v. McIntyre, 235 F.3d 749, 761 (2d Cir. 2000);
see Mapp v. Ohio, 367 U.S. 643, 655 (1961).
4
authorizing entry into the apartment. Woo's application to 1
obtain that order contained several misstatements of fact, which 2
suggested Woo's possible confusion about which of the children 3
resided with Southerland. 4
Under the authority of the Family Court's order, Woo 5
then entered the Southerland apartment. Ciara was not there; 6
some of Southerland's other children who lived with him, the 7
Southerland Children, were. Based on what Woo perceived to be 8
the poor condition of the home and of the Southerland Children, 9
and based upon his other observations from the investigation 10
undertaken to that date, Woo and his supervisor decided to carry 11
out an immediate removal of the children into ACS custody. 12
Southerland and the Southerland Children brought this 13
action based on Woo's entry into the apartment and removal of the 14
children. They claim that Woo violated their Fourth Amendment 1
15
rights to be free from unreasonable searches of their home, and 16
that the manner in which the Southerland Children were removed 17
violated their procedural due process rights under the Fourteenth 18
Amendment. Southerland also claims that the removal of the 19
Southerland Children from his home violated his substantive due 20

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2 Judge Sifton passed away while these appeals were pending.
5
process rights under the Fourteenth Amendment. Finally, the 1
Southerland Children claim that their removal violated their 2
Fourth Amendment rights to be free from unreasonable seizure. 3
The district court (Charles P. Sifton, Judge)2
4
concluded, inter alia, that Woo was entitled to qualified 5
immunity with respect to all of the claims against him and 6
granted summary judgment in his favor. We agree with respect to 7
Southerland's substantive due process claim. We disagree, 8
however, as to Southerland's and the Southerland Children's 9
Fourth Amendment unlawful-search claims, Southerland's and the 10
Southerland Children's procedural due process claims, and the 11
Southerland Children's Fourth Amendment unlawful-seizure claim. 12
To that extent, we vacate the district court's judgment and 13
remand for further proceedings. 14
BACKGROUND 15
The relevant facts are rehearsed in detail in the 16
district court's opinion. See Southerland v. City of N.Y., 521 17
F. Supp. 2d 218 (E.D.N.Y. 2007) ("Southerland II"). They are set 18
forth here only insofar as we think it necessary for the reader 19
to understand our resolution of these appeals. Where the facts 20
are disputed, we construe the evidence in the light most 21
favorable to the plaintiffs, who are the nonmoving parties. See, 22
e.g., SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d 23

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6
Cir. 2009). We also draw all reasonable factual inferences in 1
the plaintiffs' favor. See, e.g., id. 2
The ACS Investigation 3
On May 29, 1997, a school guidance counselor reported 4
to the New York State Central Registry Child Abuse Hotline that 5
one of the school's students, Ciara Manning, the then-sixteen- 6
year-old daughter of Diane Manning and plaintiff Southerland, was 7
"emotionally unstable." The counselor further reported: 8
Fa[ther] fails to follow through w[ith] 9
mental health referrals. On 5/12/97 the 10
ch[ild] swallowed a can of paint. F[ather] 11
failed to take the ch[ild] for medical 12
attention. Fa[ther] is unable to control or 13
supervise the ch[ild]. She may be staying 14
out of the home in an i[m]proper 15
enviro[n]ment. 16
Intake Report at 3, Office of Children and Family Services, Child 17
Protective Services, May 29, 1997 ("Intake Report"), Ex. A to the 18
Declaration of Janice Casey Silverberg (Dkt. No. 168) 19
("Silverberg Decl."), Southerland v. City of N.Y., No. 99-cv-3329 20
(E.D.N.Y. Sept. 18, 2006). The Intake Report was transmitted to 21
the Brooklyn Field Office of the ACS. There, Fritz Balan, a 22
supervisor, assigned the case to defendant Timothy Woo, an ACS 23
caseworker, for investigation. Woo, who was required by New York 24
law to begin his investigation within 24 hours, did so that day. 25
He first examined the files of a case pending in that 26
ACS office regarding Ciara's mother, Diane Manning. Material in 27
those files disclosed that Ciara had several younger half- 28

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7
siblings: the Manning Children. According to Woo, this material 1
also indicated that Ciara was reported to be living with her 2
father, Southerland, at a Brooklyn address, although plaintiffs 3
correctly note the absence of any further evidence as to the 4
source of that information or the time it was received. It is 5
not clear from the record whether Woo was aware that the children 6
referenced in Diane Manning's case file were not related to 7
Southerland and that they did not live with him. See Southerland 8
II, 521 F. Supp. 2d at 222, 224 & n.8. 9
Woo also contacted the school guidance counselor who 10
had called the child-abuse hotline. According to Woo, the 11
counselor told him that while at school, Ciara had swallowed non- 12
toxic paint, expressed thoughts of suicide, and was generally 13
behaving aggressively and "acting out." Declaration of Timothy 14
Woo ¶ 6 (Dkt. No. 169) ("Woo Decl."), Southerland v. City of 15
N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). Woo's 16
handwritten notes from the conversation indicate that the 17
counselor told Woo that Ciara was having "problems trying to get 18
[her] fa[ther's] attention" and that her "father doesn't approve 19
of the place [where she] is staying." Notes of Timothy Woo at 1 20
("Counselor Phone Call Notes"), Ex. A to the Declaration of 21
Michael G. O'Neill (Dkt. No. 182) ("O'Neill Decl."), Southerland 22
v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Dec. 29, 2006). It is 23
disputed whether the counselor also told Woo that Southerland had 24

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8
been unresponsive to the school's stated concerns about Ciara's 1
behavior. 2
Later the same day, May 29, 1997, Woo attempted to 3
visit Southerland's apartment in Brooklyn. Woo testified that he 4
thought Ciara was residing at that apartment because an open case 5
file on Ciara's mother indicated that Ciara lived with her 6
father. Woo Decl. ¶¶ 5,7. However, as discussed above, Woo's 7
conversation with the counselor earlier in the day suggested that 8
Ciara was not living with her father. When no one answered the 9
door at Southerland's home, Woo left a note containing his 10
contact information. 11
The following day, May 30, Southerland telephoned Woo. 12
During the course of their conversation, Southerland described 13
Ciara as a runaway who would not obey him. Southerland suggested 14
that he visit the ACS office to discuss the matter with Woo 15
further. The plaintiffs dispute Woo's assertion that during the 16
phone conversation, Southerland indicated that he would not 17
permit Woo to visit Southerland's apartment. Southerland 18
contends that, although he did question why Woo needed to visit 19
the apartment since Ciara did not live there, Southerland 20
nonetheless indicated that he would be willing to make an 21
appointment for Woo to conduct a home visit if Woo insisted. 22
Southerland visited the ACS office and met with Woo 23
later that day. According to Southerland's deposition testimony, 24

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3 Under New York law, a parent may initiate a proceeding to
adjudicate a child as a "person in need of supervision" when that
parent alleges that he or she cannot control the child and needs
the state's assistance. Such proceedings are governed by Article
7 of the New York Family Court Act. See N.Y. Fam. Ct. Act § 711
et seq.
4 Southerland later testified that the school contacted him
with a medical referral after the paint-swallowing incident, and
that he had tried to get Ciara to go to the appointment that was
scheduled for her, but that she refused to go.
9
he told Woo that Ciara had run away and that he had obtained 1
several "Persons in Need of Supervision" ("PINS") warrants 2
against her. 3 Woo's case notes indicate that Woo asked 3
Southerland why he had not sought medical attention for Ciara 4
after the paint-swallowing incident. Southerland did not answer 5
the question. 4 See Progress Notes of T. Woo at 1 ("Progress 6
Notes"), Ex. B to O'Neill Decl. 7
Southerland told Woo that Ciara did not need 8
psychiatric help, and that she "was only acting the way she did 9
to get attention." Woo Decl. ¶ 10; see also Declaration of Fritz 10
Balan ¶ 7 (Dkt. No. 170) ("Balan Decl."), Southerland v. City of 11
N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). According to 12
Woo, Woo explained to Southerland that various services were 13
available through ACS to assist him and his children, including 14
counseling and help with obtaining food, furniture, and clothing. 15
Woo said Southerland declined. According to Southerland's 16
deposition testimony, however, no such assistance was ever 17
offered. 18

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10
When Woo said he would need to make a home visit, 1
Southerland replied that it would be "no problem" as long as he 2
was notified in advance. Southerland II, 521 F. Supp. 2d at 223; 3
see also Deposition of Sonny B. Southerland at 207 ("Southerland 4
Dep."), Ex. F to O'Neill Decl. Southerland asserts that Woo 5
stated he would call him to arrange the visit, but that Woo never 6
made such a call. 7
On June 2, 1997, Woo made a second attempt to examine 8
the Southerland apartment. A woman whose identity was unknown to 9
Woo answered the door. She said that Southerland was not at 10
home. Woo left. 11
The following day, June 3, Woo again went to the 12
apartment. He heard noises inside, but no one answered the door. 13
Again, he left. 14
The next day, June 4, Woo went to the apartment for a 15
fourth time. He waited in the hallway for several minutes. 16
Southerland emerged accompanied by five school-aged children: 17
Sonny Jr., Venus, Emmanuel, Nathaniel, and Kiam. Woo wrote down 18
their names in his case notes. Southerland told Woo that he did 19
not have time to talk because he was taking the children to 20
school. Woo gave Southerland an ACS business card and told him 21
that if he continued to be uncooperative, ACS would seek court 22
action. See Southerland II, 521 F. Supp. 2d at 223-24 & n.6; see 23
also Progress Notes at 2. 24

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5 Woo listed the names and dates of birth of Ciara and the
Manning Children at the top of the application, along with
Southerland's name and the address of the Southerland apartment.
The body of the application states in its entirety:
I, Timothy Woo, Caseworker for ACS, am a person
conducting a child protective investigation pursuant to
the Social Services Law. I have reasonable cause to
believe that the above named children may be found at
the above premises. I have reason to believe that the
children are abused or neglected children. The reasons
and the sources of information are as follows:
That on May 12, 1997, Sierra [sic] Manning, age 16
tried to kill herself by swallowing non-toxic paint.
11
The Removal of the Southerland Children 1
On June 6, 1997, at the direction of supervisor Balan, 2
Woo applied to the Kings County Family Court for an order to 3
enter the Southerland apartment pursuant to section 1034(2) of 4
the New York Family Court Act. It is ACS policy to investigate 5
not only the status of the child named in a report of suspected 6
abuse or neglect of the type referred to in section 1034(2), but 7
also to ascertain the condition of any other children residing in 8
the same home. Woo listed Ciara on the application. Instead of 9
including the names of the children he had met leaving 10
Southerland's home on June 4, however, he listed the other 11
children of Ciara's mother Diane -- the Manning Children: Eric 12
Anderson, Richy Anderson, Felicia Anderson, Michael Manning, 13
Miracle Manning, and Erica Anderson -- whose names he apparently 14
had obtained from the Diane Manning case files he had reviewed at 15
ACS's Brooklyn Field Office. 5 The Family Court issued an "Order 16

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Mr. Sutherland [sic] did not take Sierra [sic] to a
medical doctor and refused to take Sierra [sic] for
psychiatric evaluation.
Mr. Sutherland [sic] has refused to allow the
Administration for Children's Services into his home to
speak to the above named children.
WHEREFORE, the applicant moves for an order authorizing
the Administration for Children's Services accompanied
by police to enter the premises to determine whether
the above named children are present and to proceed
thereafter with its child protective investigation.
Application for Authorization to Enter Premises dated June 6,
1997, Ex. C to Silverberg Decl.
12
Authorizing Entry" into the Southerland apartment the same day, 1
June 6. See Southerland II, 521 F. Supp. 2d at 224. 2
Three days later, on the evening of June 9, 1997, 3
pursuant to the Order Authorizing Entry, Woo and at least one 4
other caseworker entered the Southerland apartment with the 5
assistance of officers from the New York City Police Department. 6
Southerland and the Southerland Children were inside the 7
apartment. Woo Decl. ¶¶ 13-15, 19. The district court described 8
what happened next, from Woo's perspective: 9
Woo determined that there were six children 10
between the ages of three and nine residing 11
in the apartment. He listed their names 12
[correctly] as Venus, Sonny Jr., Nathaniel, 13
Emmanuel, Kiam, and Elizabeth Felix. Soon 14
after beginning his evaluation of the home, 15
Woo called his supervisor [Balan] on his cell 16
phone, described his observations, and 17
answered his supervisor's questions. Woo 18
reported that the four boys slept on the 19
floor in one bedroom and the two girls slept 20
on a cot in another bedroom. The children 21

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6 The district court summarized Woo's and Balan's stated
reasons for removing the Southerland Children as including: that
Ciara had attempted suicide; that Southerland had failed to seek
medical assistance for Ciara or for Venus; that he had resisted
allowing ACS to visit his home; that he had refused to accept ACS
services or assistance; that the home lacked food and adequate
light; that the use of multiple extension cords for the
electronic equipment was dangerous; and that the children were
dirty. This combination of factors, according to Woo and Balan,
"established in [their] minds that Southerland could not parent
the children responsibly." Southerland II, 521 F. Supp. 2d at
225.
13
appeared as though they had not been bathed 1
in days and their clothing was malodorous. 2
In the refrigerator, Woo found only beer, a 3
fruit drink, and English muffins. Woo did 4
not examine the contents of the kitchen 5
cupboards. The other caseworker observed 6
that one child, Venus, was limping because of 7
a foot injury. The child stated that she had 8
stepped on a nail. The caseworker concluded 9
that Southerland had not sought medical 10
attention for her. Woo reported that the 11
only light source in the bedroom area was 12
from a blank television screen. Woo observed 13
an electric lamp on the floor, without a 14
shade, connected to an outlet in the living 15
room by means of several extension cords 16
along the floor. Woo reported that another 17
room contained stacks of electronic 18
equipment. Woo and his supervisor concluded 19
that the children's safety was threatened, 20
and Balan directed Woo to remove the children 21
from the home. 22
Southerland II, 521 F. Supp. 2d at 224-25 (footnotes omitted). 6
23
As the district court also observed, the plaintiffs -- 24
relying primarily on later deposition testimony by Southerland -- 25
offer a starkly different description of the conditions in the 26
Southerland home at the time. According to Southerland's 27
testimony, the apartment did not lack proper bedding; the boys 28

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7 After the Southerland Children's removal, Woo brought
Venus "to a hospital based on the instructions of a nurse at the
agency that first examined the children. At the hospital, the
wound was dressed and the child received a tetanus shot."
Southerland II, 521 F. Supp. 2d at 225 n.13.
14
had a bunk bed in their room, although they preferred to sleep on 1
yellow foam sleeping pads on the floor. Id. at 225 n.10. The 2
children were not dirty; Southerland testified that he laundered 3
the children's clothing about once a week and bathed the children 4
daily. Id. at 225 n.11. There was food in the refrigerator, and 5
it is also a reasonable inference from Southerland's testimony 6
that there was food in the cupboards (which Woo did not examine), 7
because Southerland testified that groceries for the household 8
were purchased on a regular basis. Id. at 225 n.12. The 9
household did not lack adequate lighting; Southerland testified 10
that he had a lamp plugged into a wall in each room, id. at 225 11
n.14, and that there were no extension cords running from room to 12
room. Finally, although Southerland does not dispute that Venus 13
had a foot injury, the plaintiffs stress Woo's concession that he 14
did not personally observe the injury during his assessment of 15
the home. 7 Id. at 225 n.13. 16
In the early morning hours of June 10, 1997, at Balan's 17
direction, Woo removed the Southerland Children from the 18
Southerland home. Woo took them to the ACS pre-placement 19
emergency shelter and arranged for emergency foster care. Id. at 20
226. 21

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8 On March 14, 2007, Southerland made a pro se submission to
the district court requesting that the court take judicial notice
of a number of documents, including a declaration by Ciara
Manning that had been sworn on April 20, 2002. In that
declaration, Ciara stated that Southerland had never molested or
abused her in any way and that the statements she made previously
to Woo and to the Family Court to that effect were false. See
Pro Se Submission of Sonny B. Southerland at 26-27 (Dkt. No.
192), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Mar.
14, 2007).
15
At some point -- it is not clear from the record 1
exactly when -- Woo interviewed Ciara Manning, whom he had found 2
living at the home of her friend. Ciara told Woo that her father 3
had sexually abused her and threatened to kill her if she told 4
anyone about the abuse -- allegations she later recanted. 8 The 5
Southerland Children also complained of various kinds of abuse 6
and mistreatment at the hands of Southerland and his companion, 7
Vendetta Jones. The allegations concerning the sexual abuse of 8
Ciara were included in a verified petition filed by ACS with the 9
Family Court on June 13, 1997, and that petition was amended on 10
June 27, 1997, to add allegations concerning corporal punishment 11
of the Southerland Children. The petitions commenced child- 12
protective proceedings under Article 10 of the New York Family 13
Court Act, §§ 1011 et seq., through which ACS sought to have the 14
Southerland Children adjudicated as abused, neglected, or both. 15
On July 1, 1998, more than a year after the children 16
were removed from the Southerland home, the Kings County Family 17
Court concluded following a five-day fact-finding hearing that 18

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16
Southerland had engaged in excessive corporal punishment of the 1
Southerland Children and that he had abused and neglected them. 2
The court also concluded that he had sexually abused his daughter 3
Ciara. The court ordered that the Southerland Children remain in 4
foster care, where they had resided since the June 1997 removal. 5
The New York Appellate Division, Second Department, affirmed 6
these orders, In re Ciara M., 273 A.D.2d 312, 708 N.Y.S.2d 717 7
(2d Dep't 2000), and the New York Court of Appeals denied leave 8
to appeal, 95 N.Y.2d 767, 740 N.E.2d 653, 717 N.Y.S.2d 547 9
(2000). 10
In March 2004, nearly seven years after their removal 11
from the Southerland home, Sonny Jr. and Venus were permitted to 12
return to live with Southerland. Some seven months thereafter, 13
Nathaniel and Emmanuel were discharged from the juvenile justice 14
system by the Office of Children and Family Services and also 15
returned to the Southerland home. There is nothing in the record 16
to suggest that Kiam or Elizabeth ever returned to live with 17
Southerland. 18
However strongly the facts of mistreatment found by the 19
Family Court at trial in July 1998 may support Woo's perceptions 20
about the dangers to the Southerland Children of their remaining 21
with Southerland, virtually none of this information was in Woo's 22
possession when he effected the June 9, 1997, entry and removal, 23
as the district court correctly observed. See Southerland II, 24

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9 It appears to be an unresolved question of law in this
Circuit whether a plaintiff parent is permitted to recover
damages on a theory of substantive due process against a
caseworker under circumstances where, although the initial
removal lacked a reasonable basis, the child is nonetheless
ultimately found to have been abused or neglected by the parent
following a family-court fact-finding hearing. Under such
circumstances, it is an open question whether a defendant
caseworker's conduct in removing the child -- even where the
caseworker initially lacked a reasonable basis for doing so --
can be said to be "'so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience,'" Okin v.
Vill. of Cornwall-on-Hudson Police Dep't, 577 F.3d 415, 431 (2d
Cir. 2009) (quoting County of Sacramento v. Lewis, 523 U.S. 833,
847 n.8 (1998)). However, because Woo has not made this argument
in this case, and because we ultimately affirm the dismissal of
Southerland's substantive due process claim on other grounds, we
need not consider this question at this time. See also note 31,
infra.
17
521 F. Supp. 2d at 226 n.19. Although Woo mentions in his 1
briefing that the Family Court eventually determined that Ciara 2
and the Southerland Children had been abused and neglected, he 3
does not dispute the plaintiffs' assertion that these 4
subsequently determined facts should not bear upon our 5
consideration of whether Woo's actions in effecting the removal 6
were constitutional. We therefore need not consider the 7
relevance, if any, of these subsequent events on the plaintiffs' 8
ability to recover on their constitutional claims. 9
9
Prior Federal Court Proceedings 10
In June 1999, some two years after the removal and 11
while the Southerland Children remained in foster care, 12
Southerland, on behalf of himself and his children, filed a pro 13
se complaint in the United States District Court for the Eastern 14

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18
District of New York against more than forty defendants for the 1
allegedly wrongful removal of the Southerland Children from his 2
home. On February 1, 2000, the district court (Charles P. 3
Sifton, Judge) granted the defendants' motion to dismiss on 4
grounds that included failure to state a claim, failure to plead 5
certain matters with particularity, lack of subject-matter 6
jurisdiction, and Eleventh Amendment immunity. See Opinion & 7
Order (Dkt. No. 43), Southerland v. City of N.Y., No. 99-cv-3329 8
(E.D.N.Y. Feb. 2, 2000), Ex. G to Silverberg Decl. 9
Southerland appealed. We affirmed in part, reversed in 10
part, and remanded. We ruled, inter alia, that the district 11
court had erred in dismissing Southerland's claims under 42 12
U.S.C. § 1983 relating to the seizure and removal of the 13
Southerland Children. See Southerland v. Giuliani, 4 F. App'x 14
33, 36 (2d Cir. 2001) (summary order) ("Southerland I"). We 15
concluded that the pro se complaint stated valid claims for 16
violations of both the substantive and procedural components of 17
the Fourteenth Amendment's Due Process Clause. See id. at 36-37. 18
We "emphasize[d] that our holding [wa]s limited to the claims 19
made directly by Sonny Southerland," noting that "[a]lthough the 20
children probably have similar claims, we have held that a non- 21
attorney parent must be represented by counsel in bringing an 22
action on behalf of his or her child." Id. at 37 (citation, 23
footnote, and internal quotation marks omitted). We therefore 24

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10 Michael G. O'Neill was appointed as counsel for both
Southerland and the Southerland Children. In April 2004,
Southerland resumed proceeding pro se before the district court,
while Mr. O'Neill continued to represent the Southerland Children
(including Venus and Sonny Jr., even after they were no longer
minors). In April 2004, the district court also appointed a
guardian ad litem to represent the Southerland Children's
interests. See Southerland II, 521 F. Supp. 2d at 221 n.1. In
the instant appeals, Southerland represents himself pro se, while
Mr. O'Neill continues to represent the Southerland Children.
11 The amended complaint did not name as defendants or
assert any claims against any of the other thirty-nine defendants
that had been named by Southerland in his original pro se
complaint. Additionally, although Ciara was identified as a
plaintiff in the original complaint, she was dropped from the
suit when the amended complaint was filed.
12 The amended complaint also joins nine John Doe
defendants, including several persons who "supervis[ed],
monitor[ed] and assist[ed] Woo in his actions with respect to the
[Southerland] Children." Am. Compl. ¶ 39 (Dkt. No. 75),
Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Nov. 22,
19
"le[ft] it to the district court upon remand to determine whether 1
Southerland should be given a chance to hire a lawyer for his 2
children or to seek to have one appointed for them." Id. 3
On remand, the district court appointed counsel to 4
represent both Southerland and the Southerland Children. 10
5
Southerland II, 521 F. Supp. 2d at 227. In November 2002, 6
through counsel, Southerland and the Southerland Children jointly 7
filed an amended complaint, id. at 221 & n.1, asserting nine 8
claims under 42 U.S.C. § 1983 against Woo and the City of New 9
York, id. at 221 n.2. 11
10
In the amended complaint, Southerland asserts four 11
separate claims against Woo. 12 First, he brings an unlawful- 12

-- 19 of 77 --

2002). The complaint asserts that "said Does are individually
liable to [Southerland] for the deprivation of his constitutional
rights and the constitutional rights of the [Southerland]
Children as alleged herein." Id.
In their briefing on appeal, the plaintiffs do not address
these John Doe defendants. We conclude that the plaintiffs have
abandoned their claims against the John Does. We note that even
if the plaintiffs now sought to amend their complaint to identify
the John Doe defendants, the claims against the newly named
defendants would be time-barred. See Tapia-Ortiz v. Doe, 171
F.3d 150, 151-52 (2d Cir. 1999) (per curiam); Barrow v.
Wethersfield Police Dep't, 66 F.3d 466, 468-70 (2d Cir. 1995),
modified, 74 F.3d 1366 (2d Cir. 1996).
20
search claim, asserting that Woo's entry into his home "without 1
privilege, cause or justification" violated the Fourth Amendment. 2
Am. Compl. ¶¶ 40-41 (Dkt. No. 75), Southerland v. City of N.Y., 3
No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002). Southerland brings a 4
second Fourth Amendment unlawful-search claim for Woo's remaining 5
in his home even after discovering that the children listed on 6
the Order Authorizing Entry were not there. Third, Southerland 7
asserts a Fourteenth Amendment procedural due process claim for 8
removal of the Southerland Children from his home without a court 9
order and in the absence of an immediate threat of harm to their 10
lives or health. Finally, Southerland asserts a substantive due 11
process claim, also under the Fourteenth Amendment, for Woo's 12
removal of the Southerland Children absent a reasonable basis for 13
doing so. 14
The amended complaint also interposes various claims on 15
behalf of the Southerland Children. First, the Children assert 16

-- 20 of 77 --

13 In so doing, the district court relied upon our
statement, when the case was previously on appeal, that "[t]he
children's claims for unreasonable seizure would proceed under
the Fourth Amendment rather than the substantive component of the
Due Process Clause." Southerland I, 4 F. App'x at 37 n.2 (citing
Kia P. v. McIntyre, 235 F.3d 749, 757-58 (2d Cir. 2000)).
21
the same procedural due process claim under the Fourteenth 1
Amendment as does Southerland. Second, they bring a substantive 2
due process claim under the Fourteenth Amendment on the theory 3
that they were removed from their home without reasonable basis. 4
The district court recharacterized the latter claim as arising 5
under the Fourth Amendment's guarantee of protection against 6
unlawful seizure. 13 See Southerland II, 521 F. Supp. 2d at 230 7
n.24. Finally, the district court construed the amended 8
complaint as asserting on behalf of the Children the same two 9
Fourth Amendment unlawful-search claims as were asserted by 10
Southerland, see id. at 233-34 & n. 28, a decision that Woo has 11
not challenged on appeal. 12
Southerland and the Southerland Children also bring 13
several claims against the City of New York. Southerland asserts 14
that the City is liable under 42 U.S.C. § 1983 for the removal of 15
the Southerland Children insofar as that removal was conducted 16
pursuant to two alleged official City policies: to remove 17
children without a reasonable basis, and to remove children 18
without a court order despite the absence of any immediate threat 19
of harm to their lives or health. Southerland and the 20

-- 21 of 77 --

14 The district court later permitted the Southerland
Children to assert their failure-to-train claim against the City
not only with respect to the police, but also with respect to
ACS. See Southerland II, 521 F. Supp. 2d at 235 n.34.
22
Southerland Children also allege that high-ranking policymakers 1
within the City's police department knew or should have known 2
that the City's failure to train police officers accompanying ACS 3
employees on home visits and investigations would deprive New 4
York City residents of their constitutional rights. 14
5
On the defendants' motion for summary judgment, the 6
district court concluded that Woo was entitled to qualified 7
immunity as to all of the claims against him. With respect to 8
the Fourth Amendment unlawful-search claims, the court concluded 9
that the false and misleading statements made by Woo in his 10
application for the Order Authorizing Entry did not strip him of 11
qualified immunity because the plaintiffs could not show that 12
these statements were necessary to the finding of probable cause 13
to enter the home. Southerland II, 521 F. Supp. 2d at 230-31. 14
The court decided that qualified immunity was warranted because 15
"a corrected affidavit specifying all of the information known to 16
Woo establishes an objective basis that would have supported a 17
reasonable caseworker's belief that probable cause existed." Id. 18
at 231 (brackets, citation, and internal quotation marks 19
omitted). 20

-- 22 of 77 --

23
With respect to the Southerland Children's Fourth 1
Amendment unlawful-seizure claim, and the procedural due process 2
claims brought by both sets of plaintiffs, the district court 3
decided that qualified immunity shielded Woo from liability 4
because his actions pre-dated the clear establishment of law in 5
this context, which in its view did not occur until this Court's 6
decision in Tenenbaum v. Williams, 193 F.3d 581, 596-97 (2d Cir. 7
1999), cert. denied, 529 U.S. 1098 (2000). See Southerland II, 8
521 F. Supp. 2d at 231-32. 9
Lastly, with regard to Southerland's substantive due 10
process claim, the district court concluded that Woo was entitled 11
to qualified immunity because "it was objectively reasonable for 12
[him] to conclude that Southerland's substantive due process 13
rights were not violated" when Woo removed the Southerland 14
Children from the home, because "[b]rief removals of children 15
from their parents generally do not rise to the level of a 16
substantive due process violation, at least where the purpose of 17
the removal is to keep the child safe during investigation and 18
court confirmation of the basis for removal." Id. at 232 19
(brackets and internal quotation marks omitted). 20
Notwithstanding the district court's conclusion that 21
Woo was entitled to qualified immunity as to every claim asserted 22
against him, the court proceeded to consider, in the alternative, 23
the underlying merits of the plaintiffs' various claims. The 24

-- 23 of 77 --

24
court decided that even in the absence of immunity, Woo would be 1
entitled to summary judgment with respect to the plaintiffs' 2
Fourth Amendment unlawful-search claims and Southerland's 3
substantive due process claim. Specifically, with respect to the 4
Fourth Amendment unlawful-search claims, the district court 5
decided that "no reasonable juror could infer that Woo knowingly 6
and intentionally made false and misleading statements to the 7
family court in order to receive an order authorizing his entry 8
into the Southerland home." Id. at 233. With respect to 9
Southerland's substantive due process claim, the court concluded 10
that "no reasonable juror could find that the removal of the 11
children from their home in order to verify that they had not 12
been neglected or abused was so 'shocking, arbitrary, and 13
egregious' that Southerland's substantive due process rights were 14
violated." Id. at 234-35 (citation omitted). 15
The district court concluded that the City was also 16
entitled to summary judgment on all of the claims against it. 17
See Southerland II, 521 F. Supp. 2d at 235-39. The plaintiffs do 18
not appeal from that portion of the judgment and therefore have 19
abandoned their claims against the City. See LoSacco v. City of 20
Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). 21
The district court determined, however, that without 22
qualified immunity protection, summary judgment would not be 23
appropriate on the merits of the procedural due process claims 24

-- 24 of 77 --

25
brought by both Southerland and the Southerland Children because, 1
"[a]lthough defendants argue that the 'totality of the 2
circumstances' Woo encountered in the Southerland home required 3
an ex parte removal, they fail to explain why there was not 4
sufficient time for Woo to seek a court order removing the 5
children." See Southerland II, 521 F. Supp. 2d at 235 n.31. Nor 6
would summary judgment be appropriate on the merits of the 7
Southerland Children's Fourth Amendment unlawful-seizure claim, 8
the district court said, because the defendants could not explain 9
"why the particular circumstances that Woo encountered in the 10
Southerland home established that there was imminent danger to 11
the children's life or limb requiring removal in the absence of a 12
court order." Id. at 234 n.29. 13
Both Southerland and the Southerland Children now 14
appeal from the dismissal of each of their claims against Woo, 15
with the exception of one of their Fourth Amendment claims. The 16
plaintiffs have not appealed the district court's adverse ruling 17
as to their claim that Woo violated the Fourth Amendment by 18
remaining in their home even after determining that the children 19
listed on the Order Authorizing Entry were not present. 20
We affirm with respect to the dismissal of 21
Southerland's substantive due process claim. We vacate and 22
remand with respect to Southerland's and the Southerland 23
Children's Fourth Amendment unlawful-search claims; Southerland's 24

-- 25 of 77 --

26
and the Southerland Children's procedural due process claims; and 1
the Southerland Children's unlawful-seizure claim. 2
DISCUSSION 3
I. Standard of Review 4
"We review a district court's grant of summary judgment 5
de novo, construing the evidence in the light most favorable to 6
the non-moving part[ies] and drawing all reasonable inferences in 7
[their] favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 8
(2d Cir. 2005). "[S]ummary judgment is appropriate where there 9
exists no genuine issue of material fact and, based on the 10
undisputed facts, the moving party is entitled to judgment as a 11
matter of law." D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d 12
Cir.), cert. denied, 524 U.S. 911 (1998); see Fed. R. Civ. P. 13
56(a). 14
II. Principles of Qualified Immunity 15
Qualified immunity shields public officials "from 16
liability for civil damages insofar as their conduct does not 17
violate clearly established statutory or constitutional rights of 18
which a reasonable person would have known." Harlow v. 19
Fitzgerald, 457 U.S. 800, 818 (1982). "In general, public 20
officials are entitled to qualified immunity if (1) their conduct 21
does not violate clearly established constitutional rights, or 22
(2) it was objectively reasonable for them to believe their acts 23
did not violate those rights." Holcomb v. Lykens, 337 F.3d 217, 24

-- 26 of 77 --

27
220 (2d Cir. 2003) (internal quotation marks omitted). A right 1
is "'clearly established'" when "[t]he contours of the right . . 2
. [are] sufficiently clear that a reasonable official would 3
understand that what he is doing violates that right." Anderson 4
v. Creighton, 483 U.S. 635, 640 (1987). Qualified immunity is an 5
"affirmative defense," Gomez v. Toledo, 446 U.S. 635, 636, 639-41 6
(1980), and "it is incumbent upon the defendant to plead[] and 7
adequately develop" that defense, Zellner v. Summerlin, 494 F.3d 8
344, 368 (2d Cir. 2007) (internal quotation marks omitted). 9
In this Circuit, "[e]ven where the law is 'clearly 10
established' and the scope of an official's permissible conduct 11
is 'clearly defined,' the qualified immunity defense also 12
protects an official if it was 'objectively reasonable' for him 13
at the time of the challenged action to believe his acts were 14
lawful." Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d 15
Cir. 2010) (some internal quotation marks omitted); accord 16
Walczyk v. Rio, 496 F.3d 139, 154 n.16 (2d Cir. 2007). In other 17
words, a caseworker is also entitled to qualified immunity "if 18
'officers of reasonable competence could disagree' on the 19
legality of the action at issue in its particular factual 20
context." Manganiello v. City of N.Y., 612 F.3d 149, 165 (2d 21
Cir. 2010) (quoting Walczyk, 496 F.3d at 154); see also 22
Tenenbaum, 193 F.3d at 605 (applying same principle to "child 23
welfare workers"). But see Taravella, 599 F.3d at 136-41 24

-- 27 of 77 --

28
(Straub, J., dissenting) (stating that this prong of the 1
qualified-immunity analysis "has no basis in Supreme Court 2
precedent and has served to confuse the case law in this area"); 3
Okin, 577 F.3d at 433 n.11 ("[O]nce a court has found that the 4
law was clearly established at the time of the challenged conduct 5
and for the particular context in which it occurred, it is no 6
defense for a police officer who violated this clearly 7
established law to respond that he held an objectively reasonable 8
belief that his conduct was lawful."); Walczyk, 496 F.3d at 165- 9
71 (Sotomayor, J., concurring) ("[W]hether a right is clearly 10
established is the same question as whether a reasonable officer 11
would have known that the conduct in question was unlawful.") 12
(emphasis in original). 13
III. Overview of Constitutional Principles Relating to 14
the State's Removal of Children from Their Homes 15
As we observed in a decision post-dating the events at 16
issue in these appeals, "[p]arents . . . have a constitutionally 17
protected liberty interest in the care, custody and management of 18
their children." Tenenbaum, 193 F.3d at 593; see also Troxel v. 19
Granville, 530 U.S. 57, 65-66 (2000) (collecting cases concerning 20
the "fundamental right of parents to make decisions concerning 21
the care, custody, and control of their children"). "[C]hildren 22
have a parallel constitutionally protected liberty interest in 23
not being dislocated from the emotional attachments that derive 24
from the intimacy of daily family association." Kia P. v. 25

-- 28 of 77 --

29
McIntyre, 235 F.3d 749, 759 (2d Cir. 2000) (brackets and internal 1
quotation marks omitted), cert. denied, 534 U.S. 820 (2001); see 2
also Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) 3
("Th[e] right to the preservation of family integrity encompasses 4
the reciprocal rights of both parent and children."). The 5
state's removal of a child from his or her parent may therefore 6
give rise to a variety of cognizable constitutional claims. 7
First, both the parents and the children may have a 8
cause of action for violation of the Fourteenth Amendment under a 9
theory of denial of procedural due process. The Fourteenth 10
Amendment imposes a requirement that except in emergency 11
circumstances, judicial process must be accorded both parent and 12
child before removal of the child from his or her parent's 13
custody may be effected. See, e.g., Kia P., 235 F.3d at 759-60; 14
Tenenbaum, 193 F.3d at 593-94; Duchesne, 566 F.2d at 825-26. 15
Both Southerland and the Southerland Children have asserted such 16
a procedural due process claim against Woo in this case. 17
Second, a parent may also bring suit under a theory of 18
violation of his or her right to substantive due process. 19
Southerland does so here. Parents have a "substantive right 20
under the Due Process Clause to remain together [with their 21
children] without the coercive interference of the awesome power 22
of the state." Tenenbaum, 193 F.3d at 600 (internal quotation 23
marks omitted); see also, e.g., Anthony v. City of N.Y., 339 F.3d 24

-- 29 of 77 --

30
129, 142-43 (2d Cir. 2003); Kia P., 235 F.3d at 757-58. Such a 1
claim can only be sustained if the removal of the child "would 2
have been prohibited by the Constitution even had the [parents] 3
been given all the procedural protections to which they were 4
entitled." Tenenbaum, 193 F.3d at 600 (emphasis deleted). In 5
other words, while a procedural due process claim challenges the 6
procedure by which a removal is effected, a substantive due 7
process claim challenges the "fact of [the] removal" itself. 8
Bruker v. City of N.Y., 92 F. Supp. 2d 257, 266-67 (S.D.N.Y. 9
2000). 10
"Where another provision of the Constitution provides 11
an explicit textual source of constitutional protection, a court 12
must assess a plaintiff's claims under that explicit provision 13
and not the more generalized notion of substantive due process." 14
Kia P., 235 F.3d at 757-58 (quoting Conn v. Gabbert, 526 U.S. 15
286, 293 (1999)) (brackets and internal quotation marks omitted). 16
For child removal claims brought by the child, we have concluded 17
that the Constitution provides an alternative, more specific 18
source of protection than substantive due process. When a child 19
is taken into state custody, his or her person is "seized" for 20
Fourth Amendment purposes. The child may therefore assert a 21
claim under the Fourth Amendment that the seizure of his or her 22
person was "unreasonable." U.S. Const. amend. IV; see Tenenbaum, 23
193 F.3d at 602. 24

-- 30 of 77 --

31
A Fourth Amendment child-seizure claim belongs only to 1
the child, not to the parent, although a parent has standing to 2
assert it on the child's behalf. Tenenbaum, 193 F.3d at 601 3
n.13. In accordance with our order in Southerland I, 4 F. App'x 4
at 37 n.2, the district court therefore determined that the 5
Southerland Children's substantive due process claim should be 6
construed instead as a Fourth Amendment unlawful-seizure claim. 7
See Southerland II, 521 F. Supp. 2d at 230 n.24. 8
Finally, depending on the circumstances in which a 9
removal occurs, other Fourth Amendment claims might also be 10
viable. Here, Southerland and the Southerland Children asserted 11
two Fourth Amendment claims for unlawful search: one claim 12
relating to Woo's entry into the Southerland home, and one (now 13
abandoned) relating to Woo's remaining in the home even after 14
determining that the Manning Children were not present. Both 15
claims were based on an allegation that Woo made false statements 16
to the Family Court in order to obtain the Order Authorizing 17
Entry, and therefore that there was no valid judicial 18
authorization for him to carry out a search of the Southerland 19
apartment. We begin our analysis with the unabandoned search 20
claim based on Woo's allegedly unlawful entry. 21
IV. The Fourth Amendment Unlawful-Search Claims 22
The district court determined that summary judgment was 23
warranted on the plaintiffs' Fourth Amendment unlawful-search 24

-- 31 of 77 --

32
claims on two separate grounds. First, the district court 1
concluded that Woo was entitled to qualified immunity under the 2
"corrected affidavit" doctrine. See Southerland II, 521 3
F. Supp. 2d at 230-31. Second, the district court decided that 4
Woo was entitled to summary judgment on the merits because no 5
reasonable juror could find that Woo had knowingly made false or 6
misleading statements in seeking to obtain the Order Authorizing 7
Entry. Id. at 233. We disagree with both conclusions. 8
A. The Corrected-Affidavit Doctrine 9
The plaintiffs argue that the district court erred in 10
its application of the corrected-affidavit doctrine, under which 11
a defendant who makes erroneous statements of fact in a search- 12
warrant affidavit is nonetheless entitled to qualified immunity 13
unless the false statements in the affidavit were "necessary to 14
the finding of probable cause." Martinez v. City of Schenectady, 15
115 F.3d 111, 115 (2d Cir. 1997) (internal quotation marks 16
omitted). In order to determine whether false statements were 17
"necessary to the finding of probable cause," the court must "put 18
aside allegedly false material, supply any omitted information, 19
and then determine whether the contents of the 'corrected 20
affidavit' would have supported [the] finding . . . ." Id. 21
(citation and internal quotation marks omitted). In applying the 22
corrected-affidavit doctrine, qualified immunity is warranted 23
only if, after correcting for the false or misleading statements, 24

-- 32 of 77 --

15 In child-abuse investigations, a Family Court order is
equivalent to a search warrant for Fourth Amendment purposes.
See Nicholson v. Scoppetta, 344 F.3d 154, 176 (2d Cir. 2003);
Tenenbaum, 193 F.3d at 602.
33
the affidavit accompanying the warrant was sufficient "to support 1
a reasonable officer's belief that probable cause existed." Id. 2
(internal quotation marks omitted). 3
We have observed that the materiality of a 4
misrepresentation or omission in an application for a search 5
warrant is a mixed question of law and fact. 15 Velardi v. Walsh, 6
40 F.3d 569, 574 (2d Cir. 1994). "The legal component depends on 7
whether the information is relevant to the probable cause 8
determination under controlling substantive law." Id. "[T]he 9
weight that a neutral magistrate would likely have given such 10
information," however, is a question for the factfinder. Id. 11
In such circumstances, a court may grant summary judgment to a 12
defendant based on qualified immunity only if "the evidence, 13
viewed in the light most favorable to the plaintiffs, discloses 14
no genuine dispute that a magistrate would have issued the 15
warrant on the basis of the corrected affidavits." Walczyk, 496 16
F.3d at 158 (emphasis and internal quotation marks omitted). 17
Here, we cannot conclude as a matter of law -- although a trier 18
of fact might conclude after an evidentiary hearing or the 19
district court might conclude as a matter of law in light of 20
additional evidence -- that the Family Court, in deciding whether 21

-- 33 of 77 --

34
there was "probable cause to believe that an abused or neglected 1
child may [have] be[en] found [in the Southerland home]," N.Y. 2
Fam. Ct. Act § 1034(2), would have issued the order had a 3
corrected affidavit been presented to it. 4
The district court, which "[a]ssum[ed] for purposes of 5
the qualified immunity defense that Woo made false and misleading 6
statements" in applying for the Order Authorizing Entry, 7
Southerland II, 521 F. Supp. 2d at 230, correctly noted that the 8
plaintiffs "would still have to demonstrate that those statements 9
were necessary to the finding of probable cause for qualified 10
immunity not to attach to Woo's actions," id. at 230-31 (citation 11
and internal quotation marks omitted). The court determined that 12
Woo was entitled to qualified immunity based on its conclusion 13
that a corrected affidavit, containing all of the information 14
available to Woo at the time the affidavit was made, would have 15
supported a finding of probable cause to enter the home under the 16
applicable substantive law. Id. at 231. 17
We disagree. Section 1034(2) of the New York State 18
Family Court Act, which provides the evidentiary standard for a 19
showing sufficient for the issuance of an investigative order, 20
governed Woo's application to obtain the Order Authorizing Entry. 21
The district court, in its September 2007 decision, cited the 22
statute as it had been amended in January 2007. See id. at 224 23
n.7. But under the version of the statute that governed at the 24

-- 34 of 77 --

16 The defendants do not argue that a corrected affidavit
would have supported a finding of probable cause under the Fourth
Amendment even if it would not have met the evidentiary standard
set out in section 1034(2) of the applicable New York statute.
We therefore do not consider whether Woo would have had
constitutionally adequate cause to enter the apartment
notwithstanding the absence of a valid warrant or its equivalent.
35
time of Woo's application, unlike the version of the statute in 1
effect in 2007, the affiant was required to demonstrate "probable 2
cause to believe that an abused or neglected child may be found 3
on premises," N.Y. Fam. Ct. Act § 1034(2) (McKinney 1997) 4
(emphasis added), presumably meaning the "premises" identified in 5
the application submitted to the Family Court. 16
6
The district court should have engaged in its 7
corrected-affidavit analysis with reference to the law applicable 8
at the time of the events in question. The children that Woo 9
listed on his application for the Order Authorizing Entry -- the 10
Manning Children and Ciara -- were children who did not reside 11
"on premises" in the Southerland home. 12
The district court concluded that "a properly made 13
application would still list Ciara Manning on the application 14
because Southerland is her father and was the parent legally 15
responsible for her care, even if she had run away." Southerland 16
II, 521 F. Supp. 2d at 231. That may be relevant to an inquiry 17
under the statute as amended in 2007, but it is not relevant to 18
the appropriate question under the applicable version of the law 19
at the time of the entry: whether there existed probable cause 20

-- 35 of 77 --

17 The defendants also argue, with respect to the probable
cause determination, that irrespective of the requirements of New
York Family Court Act § 1034(2), Woo was required to visit the
Southerland home under a provision of the New York Social
Services Law that requires that, within twenty-four hours of
receipt of a "report[] of suspected child abuse or maltreatment"
as provided for under New York Social Services Law § 424(1), ACS
must undertake an investigation that includes "an evaluation of
the environment of the child named in the report and any other
children in the same home," id. § 424(6)(a). However,
considering that Woo had reason to know that Ciara, the child
identified in the report, was not living at the Southerland home
-- and, indeed, reason to know that none of the children named in
his application to the Family Court were living there -- his
reliance on this provision of the Social Services Law fails. If
Ciara was not living "on premises" at the Southerland home, Woo
was not entitled to enter the home to evaluate this
"environment," nor to evaluate the other children living there,
for he had not received any information suggesting that any child
other than Ciara might be at risk.
36
for Woo to believe that Ciara Manning could be found "on 1
premises" at the Southerland home. In fact, she, like the 2
Manning Children, was not "on premises." And Woo had reason to 3
know that she was not -- from the information in the initial 4
Intake Report transmitted to Woo; from the guidance counselor's 5
statement to Woo that Southerland did not approve of the place 6
where Ciara was staying; and from Southerland's own statements 7
during his May 30 telephone conversation with Woo that Ciara was 8
a runaway and did not live at his home. 17
9
The plaintiff children point out that there were other 10
deficiencies in the district court's corrected-affidavit analysis 11
that undermine the court's conclusion that the information known 12
to Woo at the time he applied for the Order Authorizing Entry 13

-- 36 of 77 --

37
would have supported a finding of probable cause. For example, 1
Woo's application stated that Ciara "tried to kill herself by 2
swallowing non-toxic paint," and that Southerland "did not take 3
[Ciara] to a medical doctor and refused to take [Ciara] for 4
psychiatric evaluation." Application for Authorization to Enter 5
Premises dated June 6, 1997, at 1 ("June 6 Application"), Ex. C 6
to Silverberg Decl. But the plaintiff children argue that the 7
application omitted several relevant facts that, according to 8
Southerland's version of events, were known to Woo at that time: 9
that the paint-swallowing incident took place at school, not at 10
home; that Southerland was willing to obtain treatment for his 11
daughter, but had trouble doing so, precisely because she was not 12
living in his home; and that Southerland had attempted to assert 13
control over his daughter by applying for PINS warrants. 14
Southerland Children's Br. at 30-31; see also id. at 28-36 15
(disputing additional assertions of fact, such as whether the 16
swallowing of paint indeed was a suicide attempt). As the 17
plaintiff children put it: 18
Woo's omission of the fact that the incident 19
took place at school allowed the court to 20
assume that this suicide attempt took place 21
in Southerland's residence. The overall 22
picture painted by Woo is that Southerland's 23
daughter attempted to kill herself, that 24
Southerland did nothing about it, and refused 25
to let others do something about it as well. 26
By omitting the fact that the daughter was 27
not even living at the Southerland apartment, 28
Woo gave the family court the impression that 29
it was necessary to allow Woo to enter the 30

-- 37 of 77 --

38
apartment in order to render assistance to a 1
suicidal teenager in the home of a parent who 2
could not be bothered to help her and who 3
prevented the efforts of ACS to provide help 4
to her. 5
Id. at 31-32. The district court included much of this 6
information in its recitation of facts, Southerland II, 521 F. 7
Supp. 2d at 222-23 & nn.4 & 5, but it did not factor these 8
considerations into its application of the corrected-affidavit 9
doctrine. 10
For these reasons, application of the corrected- 11
affidavit doctrine does not as a matter of law preclude liability 12
in this case. 13
B. Knowing or Reckless Misstatements of Fact 14
The district court also concluded that even if the 15
corrected-affidavit doctrine did not apply, summary judgment was 16
appropriate because, on the merits, "no reasonable juror could 17
infer that Woo knowingly and intentionally made false and 18
misleading statements to the family court in order to receive an 19
order authorizing his entry into the Southerland home." 20
Southerland II, 521 F. Supp. 2d at 233. Based on that premise, 21
the district court concluded that "the [O]rder [Authorizing 22
Entry] was issued with probable cause and Woo's entry into and 23
search of Southerland's home did not violate plaintiffs' Fourth 24
Amendment rights." Id. 25

-- 38 of 77 --

39
We disagree. If the district court were correct that 1
Woo did not knowingly make false and misleading statements, that 2
would entitle Woo to qualified immunity, but would not 3
necessarily render his underlying conduct lawful -- the issue the 4
court was addressing. When a person alleges a Fourth Amendment 5
violation arising from a search executed by a state official, 6
"the issuance of a search warrant . . . creates a presumption 7
that it was objectively reasonable for the [defendant] to believe 8
that the search was supported by probable cause" so as to render 9
the defendant qualifiedly immune from liability. Martinez, 115 10
F.3d at 115. To defeat the presumption of reasonableness, a 11
plaintiff must make "a substantial preliminary showing that the 12
affiant knowingly and intentionally, or with reckless disregard 13
for the truth, made a false statement in his affidavit and that 14
the allegedly false statement was necessary to the finding of 15
probable cause" for which the warrant was issued. Golino v. City 16
of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (internal 17
quotation marks omitted), cert. denied, 505 U.S. 1221 (1992). 18
We need not consider further whether the district court 19
erred by confusing the qualified immunity and merits analyses, 20
however, because we also do not agree with the district court's 21
conclusion that no reasonable juror could find that Woo did not 22
knowingly or recklessly make false statements -- the immunity 23
inquiry. We think that several disputed facts, taken together 24

-- 39 of 77 --

18 The plaintiffs also do not explicitly argue that this
information had become "stale." See generally Walczyk, 496 F.3d
at 162 (enumerating Fourth Amendment standards for staleness);
United States v. Ortiz, 143 F.3d 728, 732-33 (2d Cir. 1998)
(same), cert. denied, 525 U.S. 910 (1998).
40
and viewed in the light most favorable to the plaintiffs, would 1
permit a reasonable factfinder to find otherwise. 2
First, there is substantial evidence, viewed in the 3
light most favorable to the plaintiffs, that Woo knew or had 4
reason to know that Ciara was not residing at the Southerland 5
home when he applied for the Order Authorizing Entry. On appeal, 6
Woo appears to assert that he was justified in searching for 7
Ciara at the Southerland home because, according to ACS's Diane 8
Manning case files, "Ciara was reported to be living with her 9
father, Sonny B. Southerland, Sr. at his address at 10 Amboy St. 10
Brooklyn." Woo Decl. ¶ 5. Although the plaintiffs deny that the 11
substance of this report was accurate, they do not effectively 12
dispute that the information was contained in ACS's records, 18
13
nor do they dispute that Southerland's home was, in fact, Ciara's 14
legal residence. To the contrary, they affirmatively allege in 15
their complaint that Southerland was the parent with "physical 16
and legal custody" at the relevant time. Am Compl. ¶¶ 9-10. 17
If Woo had no further knowledge or reliable information 18
about Ciara's whereabouts, we think -- having regard to the 19
"factual and practical considerations of everyday life," Gates, 20
462 U.S. at 231 (internal quotation marks omitted) -- that Woo 21

-- 40 of 77 --

41
might well have had probable cause to believe that Ciara was to 1
be found at Southerland's apartment -- her custodial parent's 2
home. Cf. Manganiello, 612 F.3d at 161 (probable cause may exist 3
even where an officer "relied on mistaken information, so long as 4
it was reasonable for him to rely on it"). Nor, we think, was 5
the fact that both Southerland and the school counselor informed 6
Woo that Ciara did not live with Southerland alone sufficient to 7
establish that Woo believed otherwise. Cf. Robison v. Via, 821 8
F.2d 913, 922 (2d Cir. 1987) ("[T]he officials need not defer 9
action [on a child-abuse report] merely on account of a parent's 10
protestations of innocence or promises of future 11
protection . . . ."). 12
But there is more. At his deposition, Woo appeared to 13
concede that he did know with some certainty -- if not by the 14
time of applying for the Order Authorizing Entry on June 6, then 15
by the time of executing that Order on June 9 -- that Ciara did 16
not reside with Southerland and would not be found at his home. 17
When asked by plaintiffs' counsel why he had persisted in seeking 18
to enter the Southerland apartment once he knew that Ciara 19
Manning was not staying there, Woo -- plainly accepting the 20
factual premise of the question -- explained that he had sought 21
to enter in order to, among other things, "contact [Southerland] 22
to find out about [Ciara's] whereabouts," Deposition of Timothy 23
Woo at 17 ("Woo Dep."), Ex. D to O'Neill Decl.; to "a[ss]ess the 24

-- 41 of 77 --

19 Indeed, Woo does not explicitly challenge the
plaintiffs' repeated assertion that before the events of June 9,
1997, Woo knew for a fact that Ciara was not staying in
Southerland's apartment.
42
safety of the children's home environment," id.; to look for 1
"[t]he Manning children," id. at 18-19; and to investigate the 2
well-being of the children who Woo knew were residing with 3
Southerland, id. at 20-22. In his declaration tendered in 4
support of the defendants' summary-judgment motion, moreover, Woo 5
did not identify when it was that he found Ciara living in the 6
home of her friend, but instead stated only that his interview of 7
Ciara occurred "[d]uring the course of the investigation" when he 8
went to the home. Woo Decl. ¶ 23. His statements thus strongly 9
support the notion that Woo was well aware that, wherever Ciara 10
was, it was unlikely to be in the Southerland Apartment. 19
11
Second, evidence in the record, again viewed in the 12
light most favorable to the plaintiffs, would permit a reasonable 13
juror to conclude that Woo knowingly or recklessly misrepresented 14
the nature of the paint-swallowing incident in his application. 15
About one week before June 6, Woo learned from a school counselor 16
that Ciara had "swallowed non-toxic paint at school" and had been 17
"acting out and expressing thoughts of suicide." Woo Decl. ¶ 6. 18
Although the counselor informed Woo that Southerland had failed 19
to seek mental health treatment for Ciara, see id., before Woo 20
made his application to Family Court, Southerland had explained 21

-- 42 of 77 --

43
to Woo that the reason he had not taken Ciara for treatment was 1
that she did not reside with Southerland and did not listen to 2
him, id. ¶ 8. Yet Woo's application represented to the Family 3
Court that Ciara "tried to kill herself by swallowing non-toxic 4
paint" and that Southerland "did not take [her] to a medical 5
doctor and refused to take [her] for psychiatric evaluation." 6
June 6 Application at 1. A reasonable trier of fact might find 7
those statements to be materially misleading insofar as they 8
characterize Ciara's paint-swallowing as a suicide attempt; fail 9
to note that the incident occurred at school rather than in 10
Southerland's home; and omit the fact that Ciara may have been 11
living outside the home and free from Southerland's control. 12
Finally, the district court overlooked the parties' 13
dispute concerning Woo's knowledge about which children resided 14
in the Southerland apartment. The district court stated that Woo 15
"had reason to believe that the Manning children would be found 16
in the Southerland apartment because of a separate investigation 17
of the Manning children and his personal observation that there 18
were other children in the Southerland home who had not yet been 19
positively identified." Southerland II, 521 F. Supp. 2d at 233. 20
But, as the district court opinion elsewhere observes, on June 4, 21
1997 -- two days before he applied for the Order Authorizing 22
Entry -- Woo met the Southerland Children, not the Manning 23
Children, emerging from the Southerland apartment and wrote down 24

-- 43 of 77 --

44
their names. See id. at 223-24 & n.6. We think that there is a 1
triable issue of fact as to whether Woo in fact believed, as he 2
wrote in his application to the Family Court, that it was the 3
Manning Children who were in the Southerland home, or whether he 4
recklessly confused or knowingly conflated the two groups of 5
children. 6
Although these alleged misrepresentations may turn out 7
to be no more than accidental misstatements made in haste, the 8
plaintiffs have nonetheless made a "substantial preliminary 9
showing" that Woo knowingly or recklessly made false statements 10
in his application for the Order Authorizing Entry. Golino, 950 11
F.2d at 870 (internal quotation marks omitted). This showing 12
rebuts the presumption of reasonableness that would otherwise, at 13
the summary judgment stage, entitle Woo to qualified immunity, a 14
defense on which he has the burden of proof. 15
In sum, because we conclude that genuine issues of 16
material fact exist, both as to whether Woo knowingly or 17
recklessly made false statements in his affidavit to the Family 18
Court and as to whether such false statements were necessary to 19
the court's finding of probable cause, we vacate the district 20
court's grant of summary judgment on the plaintiffs' Fourth 21
Amendment unlawful-search claims. 22
Once again, we note that a trier of fact might, after 23
review of the record (whether or not augmented by additional 24

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45
evidence), conclude that the errors in the June 6 Application 1
were either accidental or immaterial. We vacate the grant of 2
summary judgment because, on the current record, we cannot reach 3
that conclusion ourselves as a matter of law. 4
V. The Plaintiffs' Procedural Due Process Claims 5
Southerland and the Southerland Children each assert a 6
procedural due process claim against Woo. The district court 7
held that Woo was entitled to qualified immunity on these claims. 8
We disagree. 9
A. Procedural Due Process in the Child-Removal Context 10
"'As a general rule . . . before parents may be 11
deprived of the care, custody, or management of their children 12
without their consent, due process -- ordinarily a court 13
proceeding resulting in an order permitting removal -- must be 14
accorded to them.'" Nicholson, 344 F.3d at 171 (quoting 15
Tenenbaum, 193 F.3d at 593). "However, 'in emergency 16
circumstances, a child may be taken into custody by a responsible 17
State official without court authorization or parental consent.'" 18
Id. (quoting Tenenbaum, 193 F.3d at 594). "'If the danger to the 19
child is not so imminent that there is reasonably sufficient time 20
to seek prior judicial authorization, ex parte or otherwise, for 21
the child's removal, then the circumstances are not emergent.'" 22
Id. (quoting Tenenbaum, 193 F.3d at 594). 23

-- 45 of 77 --

46
To show that emergency circumstances existed, "[t]he 1
government must offer 'objectively reasonable' evidence that harm 2
[was] imminent." Id. Although this Court has not attempted to 3
set forth exhaustively the types of factual circumstances that 4
constitute imminent danger justifying emergency removal as a 5
matter of federal constitutional law, we have concluded that 6
these circumstances include "the peril of sexual abuse," id., the 7
"risk that children will be 'left bereft of care and 8
supervision,'" id. (quoting Hurlman v. Rice, 927 F.2d 74, 80 (2d 9
Cir. 1991)), and "immediate threat[s] to the safety of the 10
child," Hurlman, 927 F.2d at 80 (internal quotation marks 11
omitted); see also N.Y. Fam. Ct. Act § 1024(a) (defining 12
emergency circumstances, for the purposes of state law, as 13
"circumstance[s]" wherein a child's remaining in the parent's 14
care and custody "presents an imminent danger to the child's life 15
or health"). 16
B. Analysis 17
The district court correctly concluded that summary 18
judgment was not appropriate on the underlying merits of the 19
plaintiffs' procedural due process claims because Woo did not 20
demonstrate, as a matter of law, that he did not have time to 21
obtain a court order authorizing the removal of the Southerland 22
Children before taking that act. See Southerland II, 521 F. 23
Supp. 2d at 235 n.31 (citing Nicholson, 344 F.3d at 171). The 24

-- 46 of 77 --

20 We disagree with the defendants' assertion that Hurlman
and Robison are not controlling here because the state officers
in those cases were unlawfully on the premises, whereas Woo had a
court order (albeit a disputed one) to enter the Southerland
home. Woo's removal of the Southerland Children was without
prior judicial authorization. Although Woo did have a court
order to enter the home, he did not have an order to remove the
Southerland Children from it. See Southerland II, 521 F. Supp.
2d at 224, 226, 235 n.31.
47
court nonetheless granted summary judgment on qualified immunity 1
grounds, concluding that "the law concerning procedural due 2
process rights in the context of child removals was not clearly 3
defined at the time of the events in question." Id. at 232. 4
However, the district court overstated the extent to 5
which the relevant standards were undeveloped at the time of the 6
removal. In Hurlman, some six years before the events here in 7
issue, we recognized that 8
officials may remove a child from the custody 9
of the parent without consent or a prior 10
court order only in "emergency" 11
circumstances. Emergency circumstances mean 12
circumstances in which the child is 13
immediately threatened with harm, for 14
example, where there exists an immediate 15
threat to the safety of the child, or where 16
the child is left bereft of care and 17
supervision, or where there is evidence of 18
serious ongoing abuse and the officials have 19
reason to fear imminent recurrence. 20
Hurlman, 927 F.2d at 80 (citations and internal quotation marks 21
omitted); see also Robison, 821 F.2d at 921-22 (describing the 22
"'emergency' circumstances" exception and collecting cases). 20
23
It thus was clearly established at the time of the Southerland 24

-- 47 of 77 --

48
Children's removal that state officials could not remove a child 1
from the custody of a parent without either consent or a prior 2
court order unless "'emergency' circumstances" existed. Hurlman, 3
927 F.2d at 80; see also Cecere v. City of N.Y., 967 F.2d 826, 4
829-30 (2d Cir. 1992) (setting forth the "clearly established" 5
procedural due process principles that apply in this context); 6
Velez v. Reynolds, 325 F. Supp. 2d 293, 314-15 (S.D.N.Y. 2004) 7
(explaining those principles). 8
In concluding that the law of procedural due process 9
was not clearly established in the child-removal context by 1997, 10
the district court in this case relied primarily on our decision 11
in Tenenbaum. There, two years after the events here in issue, 12
we held as a matter of first impression that "where there is 13
reasonable time consistent with the safety of the child to obtain 14
a judicial order, the 'emergency' removal of a child is 15
unwarranted." Tenenbaum, 193 F.3d at 596. Because this 16
principle was not clearly established in 1990 -- the year the 17
underlying conduct at issue in Tenenbaum took place -- we 18
affirmed the district court's decision in that case that the 19
defendants were entitled to qualified immunity. We also made 20
clear, however, that even in 1990, "it was established as a 21
general matter . . . that 'except where emergency circumstances 22
exist' a parent can 'not be deprived' of the custody of his or 23
her child 'without due process, generally in the form of a 24

-- 48 of 77 --

21 In Tenenbaum, a removal was carried out because the
child had reported -- albeit under questionable circumstances --
that her father had sexually abused her. See Tenenbaum, 193 F.3d
at 590, 594. There was no doubt at the time that the possibility
of sexual abuse was, as it always is, a serious concern. At
issue was whether there was nonetheless time under the
circumstances to secure a court order prior to effecting the
removal without risking imminent danger to the child. See id. at
608 (Jacobs, J., concurring in part and dissenting in part)
(describing majority opinion as holding that, while there was
"exigency," there was still no "emergency," because there was
time to obtain a court order). Tenenbaum represented a novel
application of procedural due process law because of the
majority's holding that, regardless of the seriousness of the
allegations, it was still necessary to obtain a court order if
time permitted. Here, by contrast, we understand the plaintiffs
to assert that the circumstances presented did not necessitate an
inquiry into whether there was time to obtain a court order,
because the conditions in the Southerland home were not grave
enough to trigger that inquiry.
49
predeprivation hearing.'" Id. at 596 (quoting Hurlman, 927 F.2d 1
at 79). 2
In the present case, however, the plaintiffs assert 3
"not solely that defendants had sufficient time to obtain a court 4
order, but that the circumstances in which Woo found the children 5
did not warrant their removal at all, whether evaluated by pre- 6
or post-Tenenbaum standards." Southerland Children's Br. at 7
39. 21 We understand the plaintiffs' contention to be that 8
"emergency circumstances" warranting removal simply did not exist 9
because the conditions in the Southerland home were 10
insufficiently dangerous. 11
The district court did not decide as a matter of law 12
that emergency circumstances existed in the Southerland home. To 13

-- 49 of 77 --

22 The district court correctly noted that there are
material factual disputes concerning whether emergency
circumstances existed warranting the immediate removal of the
Southerland Children from their home. See Southerland II, 521 F.
Supp. 2d at 234 n.29 & 235 n.31. But even where emergency
circumstances warranting removal exist, "'the constitutional
requirements of notice and opportunity to be heard are not
eliminated but merely postponed.'" Kia P., 235 F.3d at 760
(quoting Duchesne, 566 F.2d at 826). Therefore, a plaintiff may
have a viable claim for violation of procedural due process even
where emergency circumstances existed at the time of removal, if
the plaintiff does not receive a timely and adequate post-
deprivation hearing. See id. at 760-61. In this case, as will
50
the contrary, the district court concluded that "[v]iewing the 1
facts in the light most favorable to plaintiffs, a reasonable 2
juror could determine that the circumstances Woo encountered did 3
not demonstrate an imminent danger to the children's life or 4
limb." Southerland II, 521 F. Supp. 2d at 234 n.29. The court 5
further decided that "a reasonable juror could find that there 6
was sufficient time to acquire a court order prior to the 7
removal." Id. at 235 n.31. In light of those determinations, 8
with which we agree, and our assessment that the relevant law was 9
clearly established by 1997, we cannot conclude as a matter of 10
law that "it was objectively reasonable for [Woo] to believe 11
[that his] acts did not violate those [clearly established] 12
rights." Holcomb, 337 F.3d at 220. Qualified immunity therefore 13
is not available to Woo on the plaintiffs' procedural due process 14
claims at the summary judgment stage. Because summary judgment 15
also cannot be granted to the defendants on the underlying merits 16
of these claims, 22 we vacate the grant of summary judgment to Woo 17

-- 50 of 77 --

be explained below, important factual questions remain concerning
the post-removal judicial confirmation proceedings, if any, that
took place in the days after the Southerland Children's removal
from their home.
51
as to the procedural due process claims. 1
VI. Southerland's Substantive Due Process Claim 2
Southerland asserts a substantive due process claim 3
against Woo under the Fourteenth Amendment. The district court 4
held not only that qualified immunity attached to Woo's actions, 5
but also that summary judgment would be warranted on the merits 6
even in the absence of qualified immunity. We agree that Woo is 7
entitled to summary judgment on the merits, and we therefore 8
affirm this portion of the district court's judgment. 9
A. Substantive Due Process in the Child-Removal Context 10
Substantive due process rights safeguard persons 11
"against the government's 'exercise of power without any 12
reasonable justification in the service of a legitimate 13
governmental objective.'" Tenenbaum, 193 F.3d at 600 (quoting 14
County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). "To 15
establish a violation of substantive due process rights, a 16
plaintiff must demonstrate that the state action was 'so 17
egregious, so outrageous, that it may fairly be said to shock the 18
contemporary conscience.'" Okin, 577 F.3d at 431 (quoting Lewis, 19
523 U.S. at 847 n.8). The interference with the plaintiff's 20
protected right must be "'so shocking, arbitrary, and egregious 21

-- 51 of 77 --

52
that the Due Process Clause would not countenance it even were it 1
accompanied by full procedural protection.'" Anthony, 339 F.3d 2
at 143 (quoting Tenenbaum, 193 F.3d at 600); see also Lewis, 523 3
U.S. at 840 (doctrine of substantive due process "bar[s] certain 4
government actions regardless of the fairness of the procedures 5
used to implement them" (internal quotation marks omitted)). 6
Thus, in the child-removal context, we ask whether "the 7
removal . . . would have been prohibited by the Constitution even 8
had the [plaintiffs] been given all the procedural protections to 9
which they were entitled." Tenenbaum, 193 F.3d at 600 (emphasis 10
omitted). 11
We have long recognized that parents have a 12
"constitutionally protected liberty interest in the care, custody 13
and management of their children," id. at 593, and that the 14
deprivation of this interest is actionable on a substantive due 15
process theory, see id. at 600 (recognizing a "substantive right 16
under the Due Process Clause 'to remain together without the 17
coercive interference of the awesome power of the state'" 18
(quoting Duchesne, 566 F.2d at 825)). We have also observed, 19
however, that "[a]lthough parents enjoy a constitutionally 20
protected interest in their family integrity, this interest is 21
counterbalanced by the compelling governmental interest in the 22
protection of minor children, particularly in circumstances where 23
the protection is considered necessary as against the parents 24

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53
themselves." Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 1
89, 104 (2d Cir. 1999) (internal quotation marks omitted), cert. 2
denied, 528 U.S. 1155 (2000). 3
We have explained that, in part because the law 4
contemplates a careful balancing of interests, a parent's 5
substantive constitutional rights are not infringed if a 6
caseworker, in effecting a removal of a child from the parent's 7
home, has a reasonable basis for thinking that a child is abused 8
or neglected. See id.; Gottlieb, 84 F.3d at 518. "This Circuit 9
has adopted a standard governing case workers which reflects the 10
recognized need for unusual deference in the abuse investigation 11
context. An investigation passes constitutional muster provided 12
simply that case workers have a 'reasonable basis' for their 13
findings of abuse." Wilkinson, 182 F.3d at 104; see also id. at 14
108 (concluding that the "reasonable basis test" requires that 15
caseworkers' decisions to substantiate an allegation of child 16
abuse "be consistent with some significant portion of the 17
evidence before them"). We have applied this "reasonable basis" 18
standard from time to time in recent years. See, e.g., 19
Nicholson, 344 F.3d at 174; Phifer v. City of N.Y., 289 F.3d 49, 20
60 (2d Cir. 2002); Kia P., 235 F.3d at 758-59. 21
We have also recognized that state interference with a 22
plaintiff's liberty interest must be severe before it rises to 23
the level of a substantive constitutional violation. See, e.g., 24

-- 53 of 77 --

54
Anthony, 339 F.3d at 143. "The temporary separation of [a child] 1
from her parents" does not constitute an "interference [that is] 2
severe enough to constitute a violation of [the parents'] 3
substantive due-process rights," Tenenbaum, 193 F.3d at 601; see 4
also, e.g., Kia P., 235 F.3d at 759; Cecere, 967 F.2d at 830 5
(ruling that plaintiff's generalized due-process claim failed 6
because a "brief" four-day removal, executed "in the face of a 7
reasonably perceived emergency," did not violate due process); 8
Joyner ex rel. Lowry v. Dumpson, 712 F.2d 770, 779 (2d Cir. 1983) 9
(concluding that there was no substantive due process violation 10
where temporary transfer of custody to foster-care system did not 11
"result in parents' wholesale relinquishment of their right to 12
rear their children"). In Tenenbaum, we observed that in other 13
contexts, our court and the Supreme Court had held that even very 14
brief seizures or detentions could violate the Fourth Amendment 15
rights of criminal suspects. See Tenenbaum, 193 F.3d at 601 16
(citing Davis v. Mississippi, 394 U.S. 721 (1969), which held 17
that police detention, even for a brief period of time, violated 18
the Fourth Amendment where there was no probable cause to arrest, 19
and United States v. Langer, 958 F.2d 522, 524 (2d Cir. 1992), 20
which held that police detention even for ten to fifteen minutes 21
was "constitutionally significant" for purposes of 18 U.S.C. § 22
242). We reasoned, however, that "[i]t does not follow from the 23
principle that brief seizures of people may be unreasonable and 24

-- 54 of 77 --

55
therefore violate the Fourth Amendment that brief removals of 1
children from their parents to protect them from abuse are 2
without any reasonable justification in the service of a 3
legitimate governmental objective under the Due Process Clause." 4
Tenenbaum, 193 F.3d at 601 (internal quotation marks and citation 5
omitted). 6
Thus, "brief removals [of a child from a parent's home] 7
generally do not rise to the level of a substantive due process 8
violation, at least where the purpose of the removal is to keep 9
the child safe during investigation and court confirmation of the 10
basis for removal." Nicholson, 344 F.3d at 172 (citing 11
Tenenbaum, 193 F.3d at 600–01 & n.12). And once such "court 12
confirmation of the basis for removal" is obtained, id., any 13
liability for the continuation of the allegedly wrongful 14
separation of parent and child can no longer be attributed to the 15
officer who removed the child. Cf., e.g., E.D. ex rel. V.D. v. 16
Tuffarelli, 692 F. Supp. 2d 347, 354, 368 (S.D.N.Y. 2010) 17
(applying brief-removal doctrine, and granting summary judgment 18
in favor of defendants, where family court confirmed the basis 19
for ACS's temporary removal of children three days after removal 20
occurred), aff'd, 408 F. App'x 448 (2d Cir. 2011). 21
B. Analysis 22
The district court, in deciding that Woo enjoyed 23
qualified-immunity protection as to these charges, observed that 24

-- 55 of 77 --

56
the Southerland Children "were removed in the context of a child 1
protective investigation [in which] removal would be subject to 2
court confirmation," Southerland II, 521 F. Supp. 2d at 232, and 3
that "a timely post-deprivation hearing [was held] where a family 4
court judge confirmed the removal," id. at 234. The court 5
therefore concluded that it was objectively reasonable for Woo to 6
think that Southerland's rights were not being violated because 7
"[b]rief removals of children from their parents generally do not 8
rise to the level of a substantive due process violation." Id. 9
at 232 (brackets and internal quotation marks omitted). 10
We agree with the district court that the removal of 11
children from their parent for the purpose of keeping the 12
children safe does not violate the parent's substantive due 13
process rights if a post-removal judicial proceeding is promptly 14
held to confirm that there exists a reasonable basis for the 15
removal. The period of time in which the child and parent are 16
separated solely at the instance of the defendant is, in such a 17
case, not sufficient to amount to a substantive due process 18
violation by the defendant caseworker. See Nicholson, 344 F.3d 19
at 172; Kia P., 235 F.3d at 759; Tenenbaum, 193 F.3d at 600-01. 20
This is not a matter of the defendant's qualified immunity: 21
Where the "brief-removal doctrine" applies, a plaintiff does not 22
have a cause of action for a substantive due process violation in 23
the first place. See, e.g., Kia P., 235 F.3d at 759 (applying 24

-- 56 of 77 --

23 These problems persist despite our prior instruction that
Southerland "be given an opportunity to prove . . . that the
subsequent family court proceedings were insufficiently prompt to
pass constitutional muster." Southerland I, 4 F. App'x at 36.
57
brief-removal doctrine and concluding that plaintiff's "rights to 1
substantive due process were not abridged"). 2
The viability of such a substantive due process cause 3
of action on the facts of this case is not an easy judgment to 4
make because the record is not entirely clear as to whether such 5
a post-removal judicial proceeding occurred, and if so, the 6
nature of it. In a previous opinion, the district court 7
explained that the Southerland Children "remained in custody 8
without a court order until the morning of June 12, 1997, at 9
which time Woo obtained a court order confirming the removal." 10
Southerland v. City of N.Y., No. 99-cv-3329, 2006 WL 2224432, at 11
*1, 2006 U.S. Dist. LEXIS 53582, at *4 (E.D.N.Y. Aug. 2, 2006) 12
(emphasis added). But Woo declared that "[t]he Family Court 13
affirmed the removal of the Southerland/Felix children . . . on 14
June 13, 1997," Woo Decl. ¶ 24, and Balan stated that "[t]he 15
removal was affirmed by Family Court on June 14, 1997," Balan 16
Decl. ¶ 18. It is also unclear whether Southerland was present 17
at that hearing, whenever it was, or on what factual basis the 18
Family Court decided that the continued removal of the 19
Southerland Children was warranted. 23
20

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58
We nonetheless conclude that summary judgment was 1
warranted. Southerland and the Southerland Children dispute 2
neither that a post-removal judicial confirmation proceeding was 3
held nor that it took place within four days after removal. See 4
Southerland Children's Br. at 23; Pro Se Pl.'s Opp'n to Defs.' 5
Mot. for Summ. J. ¶¶ 36-37, Pro Se Submission of Sonny B. 6
Southerland at 7 (Dkt. No. 192), Southerland v. City of N.Y., No. 7
99-cv-3329 (E.D.N.Y. Mar. 14, 2007). Therefore, based on this 8
concession, only the (at most) four days of removal prior to the 9
court hearing are attributable to Woo. Tuffarelli, 692 F. Supp. 10
2d at 354, 368. In light of this concession, the question 11
becomes: Was the four-day period a "shocking, arbitrary, and 12
egregious" amount of time for Southerland to have been separated 13
from his children at Woo's instruction, i.e., without an 14
intervening judicial confirmation of the basis for removal. 15
Anthony, 339 F.3d at 143 (internal quotation marks omitted). 16
We conclude, on the basis of previous consideration of 17
similar circumstances by courts in this Circuit and our own 18
judgment, that the four-day separation under these circumstances 19
was not so long as to constitute a denial of substantive due 20
process to Southerland. See Kia P., 235 F.3d at 759 ("day or 21
two" removal to review a child's case did not violate substantive 22
due process); Tuffarelli, 692 F. Supp. 2d at 368 (no substantive 23
due process violation where children were removed on a Friday 24

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24 As noted above, supra at 16 & n.9, because we affirm on
that basis, we need not consider whether Southerland's
substantive due process claim would be defeated on the alternate
ground that Ciara and the Southerland Children were adjudged to
be abused and neglected by the Family Court in July 1998.
59
evening, and judicial proceedings commenced in a timely manner on 1
the following Monday); Green ex rel. T.C. v. Mattingly, 07-cv- 2
1790(ENV)(CLP), 2010 WL 3824119, at *10, 2010 U.S. Dist. LEXIS 3
99864, at *34-35 (E.D.N.Y. Sept. 23, 2010) (four-day removal of 4
child during ACS investigation did not violate substantive due 5
process). 6
Although the Southerland Children continued to be 7
separated from Southerland even after the post-removal 8
confirmation proceeding, in light of the presumption of 9
regularity that we attribute to state judicial proceedings, see, 10
e.g., Honeycutt v. Ward, 612 F.2d 36, 41 (2d Cir. 1979), and in 11
light of Southerland's failure to proffer any evidence tending to 12
rebut that presumption, we cannot conclude that the continued 13
separation of Southerland from his children following the 14
judicial confirmation proceeding is fairly attributable to Woo. 15
We therefore conclude that Southerland's substantive due process 16
claim fails on its merits. 24 Accordingly, we affirm the grant of 17
summary judgment to Woo on that basis as to this claim. 18

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60
VII. The Southerland Children's Fourth Amendment 1
Unlawful-Seizure Claim 2
Finally, the Southerland Children assert a claim for 3
violation of their Fourth Amendment right to be free from 4
unreasonable seizure. 5
A. Evolution of the Southerland Children's Theory of Liability 6
The Southerland Children originally characterized this 7
constitutional claim as arising under the Due Process Clause of 8
the Fourteenth Amendment. Specifically, they alleged that "Woo 9
lacked a reasonable basis for removing the [Southerland] Children 10
from plaintiff's home without a court order," and that "[i]n so 11
doing, Woo deprived the [Southerland] Children of their 12
substantive due process liberty interests in being in the care 13
and custody of their father and natural guardian, guaranteed to 14
them by the [F]ourteenth [A]mendment." Am. Compl. ¶ 51. They 15
relied upon the Fourteenth Amendment notwithstanding our 16
observation in Southerland I that "[t]he children's claims for 17
unreasonable seizure would proceed under the Fourth Amendment [as 18
applied to the states by the Fourteenth] rather than the 19
substantive component of the Due Process Clause." Southerland I, 20
4 F. App'x at 37 n.2 (citing Kia P., 235 F.3d at 757-58). 21
By the time of the summary judgment proceedings after 22
remand, the Southerland Children appeared to recognize that their 23
claim did indeed arise under the Fourth Amendment. See 24
Southerland Children's Mem. of Law in Opp'n to Mot. for Summ. J. 25

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61
at 16-20 ("Children's Dist. Ct. Br.") (Dkt. No. 184), Southerland 1
v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Dec. 29, 2006) (arguing 2
the Southerland Children's substantive due process claim as 3
though it arose under the Fourth Amendment). And in its opinion 4
resolving the summary judgment motion, the district court 5
correctly noted that the Southerland Children's substantive due 6
process constitutional claim was governed by the Fourth 7
Amendment. See Southerland II, 521 F. Supp. 2d at 230 n.24 8
(citing Southerland I, 4 F. App'x at 37 n.2). 9
The Southerland Children also narrowed their theory of 10
liability as to the legal substance of that claim. Originally, 11
they pled that the removal was unconstitutional both because it 12
lacked a "reasonable basis," Am. Compl. ¶ 51, and because the 13
removal had the effect of separating them from Southerland, 14
thereby depriving them of their "liberty interests in being in 15
the care and custody of their father," id. In effect, the 16
Southerland Children thus pled both that their warrantless 17
seizure was unreasonable because it was not supported by an 18
exception to the Fourth Amendment warrant requirement (no 19
"reasonable basis"), and that the seizure was unreasonable 20
insofar as it burdened the Southerland Children's substantive due 21
process right to "be[] in the care and custody of their 22

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25 A Fourth Amendment unlawful-seizure claim differs from a
Fourth Amendment unlawful-search claim. It is not yet clear from
the case law of our Circuit what kinds of Fourth Amendment
unlawful-seizure claims might be asserted by a child who is
removed from his or her home. From reviewing our past decisions
and those of other circuits, however, we can identify at least
three possibilities.
First, a child might assert that the act of seizure itself
lacked a lawful basis, such as consent, probable cause, or
exigent circumstances. See, e.g., Southerland II, 521 F. Supp.
2d at 234 n.29 (evaluating Southerland Children's Fourth
Amendment unlawful-seizure claim in those terms).
Second, a child might assert that the seizure was carried
out in an unreasonable manner, such as through the use of
excessive force or through a sudden, surprise raid. See, e.g.,
Brokaw v. Mercer County, 235 F.3d 1000, 1011-12 (7th Cir. 2000)
(upholding manner-of-seizure claim brought by child removed from
his home where officers "acted like kidnappers").
Third, a child might assert that the seizure endured for
an unreasonable length, and thereby burdened the child's interest
in being in the care and custody of his or her parents. See,
e.g., Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 474
(7th Cir. 2011) (recognizing and upholding seized child's claim
for "continued withholding" under the Fourth Amendment); see also
Albright v. Oliver, 510 U.S. 266, 276-81 (1994) (Ginsburg, J.,
concurring) (endorsing "continuing seizure" doctrine in the law-
enforcement context); Fontana v. Haskin, 262 F.3d 871, 878-80 &
nn.4-5 (9th Cir. 2001) (discussing "continuing seizure" doctrine
and collecting cases).
62
father." 25
1
In their submission opposing the defendants' summary 2
judgment motion, however, the Southerland Children appeared to 3
have abandoned the theory that the seizure unreasonably burdened 4
their due process right to their father's care and custody. In 5
other words, they no longer challenged the reasonableness of the 6

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63
effect or duration of their removal as a violation of their 1
rights to substantive due process. Instead, they argued only 2
that the removal was unconstitutional as an unlawful seizure 3
because the act of removal itself was unsupported by sufficient 4
legal justification: Woo could not demonstrate the existence of 5
either parental consent or exigent circumstances that would 6
justify the act of removal absent prior judicial authorization. 7
See generally Children's Dist. Ct. Br. at 16-20. 8
B. District Court's Analysis 9
The district court properly analyzed this claim solely 10
by reference to the theory set forth in the Southerland 11
Children's summary-judgment briefing -- i.e., that their Fourth 12
Amendment rights had been violated because there were no "exigent 13
circumstances" justifying their removal without a court order. 14
See Southerland II, 521 F. Supp. 2d at 234 n.29. In light of the 15
Southerland Children's abandonment of any of the other alleged 16
theories of liability, especially under principles of substantive 17
due process, the district court correctly framed the claim in 18
this manner. 19
As with the procedural due process claim, see supra 20
Part V.A., the court concluded that at the time of the alleged 21
seizure, "there was no clear application of Fourth Amendment 22
standards in the child removal context." Southerland II, 521 F. 23
Supp. 2d at 231. The court pointed, in particular, to Tenenbaum, 24

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26 In employing this "imminent danger" standard, the
district court appears to have relied on section 1024(a) of the
New York Family Court Act. See Southerland II, 521 F. Supp. 2d
at 234 n.29. That statute provides that a child-protective
worker may effect an ex parte removal of a child only where the
worker has "reasonable cause to believe that the child is in such
circumstance or condition that his or her continuing in . . . the
care and custody of the parent . . . presents an imminent danger
to the child's life or health" and where "there is not time
enough to apply for a[] [court] order." N.Y. Fam. Ct. Act
§ 1024(a). Our assessment of the lawfulness of the removal of
the Southerland Children from their home, however, is controlled
by federal, not state, standards. See, e.g., United States v.
Chirino, 483 F.3d 141, 149 (2d Cir. 2007).
64
193 F.3d at 605, our decision that viewed Fourteenth Amendment 1
due process claims as properly Fourth Amendment unlawful-seizure 2
claims of the sort asserted here, but that had not issued until 3
after the seizure in this case. See Southerland II, 521 F. Supp. 4
2d at 231. Based on the absence of clear law at the time of the 5
Southerland Children's removal, the court held, as a matter of 6
law, that Woo was protected from this claim by qualified 7
immunity. Id. at 231. 8
In addition to the immunity question, and despite 9
finding in Woo's favor on it, the district court nonetheless 10
addressed the merits of the Southerland Children's Fourth 11
Amendment unlawful-seizure claim. It concluded in a footnote 12
that, "[i]n the absence of Woo's qualified immunity defense," 13
summary judgment would not be warranted on this claim on its 14
underlying merits because "a reasonable juror could determine 15
that the circumstances Woo encountered did not demonstrate an 16
imminent danger to the children's life or limb." 26 Id. at 234 17
n.29. 18

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65
C. Appeal 1
On appeal, the Southerland Children appear to persist 2
in their view that their Fourth Amendment unlawful-seizure claim 3
is addressed solely to the issue of whether there was a legal 4
basis for the act of removal. See Southerland Children's Br. at 5
24, 36-41; Woo Br. at 36-37; Southerland Children's Reply Br. at 6
6-8. We review the argument in those terms, treating as 7
abandoned any argument the Southerland Children might have made 8
that the removal was unreasonable because it had an unlawful 9
effect or was of unlawful duration, and was therefore a violation 10
of their substantive due process rights. See City of N.Y. v. 11
Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011). 12
1. Standard for Evaluating Unlawful-Seizure Claims in the 13
Child-Removal Context 14
By way of footnote, the district court decided that Woo 15
was entitled to summary judgment with respect to the claim that 16
the removal was unlawful. In doing so, the court assumed that a 17
seizure of a child without a court order is constitutionally 18
justified under the Fourth Amendment only if there are "exigent 19
circumstances." See Southerland II, 521 F. Supp. 2d at 234 n.29. 20
This Court, however, has yet to articulate definitively the legal 21
standard that applies to a Fourth Amendment unlawful-seizure 22
claim brought by a child alleging that his or her removal without 23
parental consent or prior judicial authorization was not 24
supported by sufficient cause. 25

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66
In Tenenbaum, we considered this question, apparently 1
for the first time. See 193 F.3d at 603-05. We described, in 2
dicta, three possible "modes of determining whether a seizure was 3
'reasonable' under the Fourth Amendment . . . in cases where the 4
state seizes a child in order to prevent abuse or neglect." Kia 5
P., 235 F.3d at 762 (citing and discussing Tenenbaum, 193 F.3d at 6
603-05). 7
As one mode, we referred to the "exigent circumstances" 8
exception to the warrant requirement that is well-established in 9
the law-enforcement context. See Tenenbaum, 193 F.3d at 604 10
(noting that "it is core Fourth Amendment doctrine that a seizure 11
without consent or a warrant is a 'reasonable' seizure if it is 12
justified by 'exigent circumstances'"); see generally United 13
States v. Klump, 536 F.3d 113, 117-19 (2d Cir. 2008) (describing 14
and applying the "exigent circumstances" exception in 15
law-enforcement context), cert. denied, 129 S. Ct. 664 (2008); 16
United States v. MacDonald, 916 F.2d 766, 769-70 (2d Cir. 1990) 17
(en banc) (elaborating standards). We concluded that such an 18
exception would be viable in the child-removal context too. 19
Tenenbaum, 193 F.3d at 604-05. We suggested that that exception 20
would apply when "a child is subject to the danger of abuse if 21
not removed . . . before court authorization can reasonably be 22
obtained." Id. at 605. 23
24

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67
As another mode, we said that a seizure conducted in 1
accordance with the ordinary probable-cause standard -- the 2
standard that applies in the law-enforcement context -- might 3
also suffice. Under such a rule, a caseworker could lawfully 4
remove a child from his or her home without parental consent or 5
prior judicial authorization if the caseworker knew "facts and 6
circumstances that were sufficient to warrant a person of 7
reasonable caution in the belief that" a child was abused or 8
neglected. Id. at 602-03 (internal quotation marks omitted). 9
Alternatively, we noted that under some circumstances 10
an even lesser, "special needs," standard might apply, in which 11
case only "reasonable cause" would be necessary to render lawful 12
a warrantless seizure. See id. at 603-04. That would reflect 13
the principle that "there are some agencies outside the realm of 14
criminal law enforcement where government officials have 'special 15
needs beyond the normal need for law enforcement [that] make the 16
warrant and probable-cause requirement impracticable.'" Id. at 17
603 (quoting O'Connor v. Ortega, 480 U.S. 709, 720 (1987) 18
(plurality opinion)) (alterations in Tenenbaum). We observed, 19
however, that case law in our sister circuits suggested that the 20
"emergency removal of a child by caseworkers is not such a 21
'special needs' situation." Id. at 603-04 (collecting cases). 22
We did not decide in Tenenbaum which of those three 23
standards should apply as the constitutional floor in 24

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68
child-removal cases -- i.e., the standard below which an officer 1
could not go without violating the Fourth Amendment. Id. at 605; 2
see also Kia P., 235 F.3d at 762-63 (reserving same question). 3
But we did conclude that, at least "where information possessed 4
by a state officer would warrant a person of reasonable caution 5
in the belief that a child is subject to the danger of abuse if 6
not removed from school before court authorization can reasonably 7
be obtained, the 'exigent circumstances' doctrine . . . permits 8
removal of the child without a warrant equivalent and without 9
parental consent." Tenenbaum, 193 F.3d at 605 (citing Hurlman, 10
927 F.2d at 80); see also Phifer, 289 F.3d at 60-61 (recognizing 11
and applying this holding in the context of a Rooker-Feldman 12
analysis). And, subsequent to Tenenbaum, we have assumed that 13
the standard to be applied to such claims cannot be any less than 14
probable cause. See Nicholson, 344 F.3d at 173 ("We have not 15
addressed . . . the question whether[,] in the context of the 16
seizure of a child by a state protective agency[,] the Fourth 17
Amendment might impose any additional restrictions above and 18
beyond those that apply to ordinary arrests." (emphasis added)). 19
Again here, we need not adopt a standard. We observe 20
first, as we did in Tenenbaum, that this case does not present 21
circumstances in which the "special needs" test applies, if ever 22
it does in the child-removal context. Tenenbaum, 193 F.3d at 23

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27 Case law from our sister circuits, subsequent to
Tenenbaum, concludes that the "special needs" test is never
applicable in this context. See, e.g., Siliven v. Ind. Dep't of
Child Servs., 635 F.3d 921, 926-28 (7th Cir. 2011); Riehm v.
Engelking, 538 F.3d 952, 965 (8th Cir. 2008); Gates v. Texas
Dep't of Protective & Regulatory Servs., 537 F.3d 404, 427-29
(5th Cir. 2008).
28 Our sister circuits apply somewhat divergent standards in
determining whether a seizure of a child without judicial
authorization or parental consent violates the Fourth Amendment.
See, e.g., See Siliven, 635 F.3d at 926-28 (probable cause or
exigent circumstances sufficient); Riehm, 538 F.3d at 965 (same);
Gates, 537 F.3d at 427-29 (exigent circumstances required);
Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000) (same).
69
603. 27 In this case "the requirement of obtaining the equivalent 1
of a warrant where practicable [would not] impose[] intolerable 2
burdens on the government officer or the courts, [and] would 3
[not] prevent such an officer from taking necessary action, or 4
tend to render such action ineffective," Tenenbaum, 193 F.3d at 5
604. 6
The elimination of a possible "special needs" approach 7
leaves either the probable-cause or exigent-circumstances 8
standard applicable to the merits of whether Woo's behavior 9
violated the Children's constitutional rights. 28 But we need not 10
decide between them -- at least not yet. As explained below, 11
regardless of which standard applies, Woo cannot establish as a 12
matter of law on the current record that he would be entitled to 13
qualified immunity or that no reasonable jury could find in favor 14
of the Children on the merits of their Fourth Amendment seizure 15
claim. 16

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70
2. Qualified Immunity 1
The district court decided that Woo was entitled to 2
qualified immunity because "prior to the Court of Appeals' 3
decision in Tenenbaum [in 1999], there was no clear application 4
of Fourth Amendment standards in the child removal context." 5
Southerland II, 521 F. Supp. 2d at 231. Although we agree with 6
the district court's observation that this Circuit had not yet 7
applied Fourth Amendment unlawful-seizure principles in the 8
child-removal context by 1997, we think that the district court 9
erred by conducting its inquiry solely by reference to the 10
label -- "unlawful seizure" -- attached to the claim at issue. 11
Our decision in Tenenbaum did indeed effect a change in 12
the constitutional nomenclature governing a child's claim for 13
alleged substantive constitutional violations arising out of his 14
or her removal from a parental home. There, the plaintiffs 15
contended that "[their daughter's] temporary removal [from 16
school] for the purpose of subjecting her to a medical 17
examination violated their and [their daughter's] substantive 18
due-process rights." Tenenbaum, 193 F.3d at 599. We noted that 19
the Supreme Court observed in Albright v. Oliver, 510 U.S. at 20
273, that 21
where a particular Amendment provides an 22
explicit textual source of constitutional 23
protection against a particular sort of 24
government behavior, that Amendment, not the 25
more generalized notion of substantive due 26
process, must be the guide for analyzing 27
these claims. 28

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29 We have since reaffirmed that "the Fourth Amendment
applies in the context of the seizure of a child by a government-
agency official during a civil child-abuse or maltreatment
investigation." Kia P., 235 F.3d at 762. We relied on Kia P. in
turn in Southerland I in advising that "[t]he [Southerland]
children's claims for unreasonable seizure would proceed under
the Fourth Amendment rather than the substantive component of the
Due Process Clause." Southerland I, 4 F. App'x at 37 n.2.
71
Tenenbaum, 193 F.3d at 599 (brackets and internal quotation marks 1
omitted). We said that "'[s]ubstantive due process analysis 2
is . . . inappropriate . . . if [the] claim is covered by the 3
Fourth Amendment.'" Id. at 600 (quoting Lewis, 523 U.S. at 843) 4
(second brackets in original; other internal quotation marks 5
omitted). We then concluded that the daughter's "removal and her 6
examination constituted a seizure and search, respectively, under 7
the Fourth Amendment," id., and that her claim "therefore 'must 8
be analyzed under the standard appropriate to [the Fourth 9
Amendment], not under the rubric of substantive due process.'" 10
Id. (quoting United States v. Lanier, 520 U.S. 259, 272 n.7 11
(1997)). 29
12
The fact that Tenenbaum changed the legal "rubric" 13
applicable to the Southerland Children's constitutional claim -- 14
from substantive due process to illegal seizure -- however, is 15
not alone determinative of whether the constitutional rights 16
implicated in the Children's seizure were clearly established 17
prior to the time of the seizure. It would be inappropriate, we 18
think, to afford Woo qualified immunity on the Southerland 19
Children's claim solely because, two years after the events in 20

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72
question, we shifted the constitutional label for evaluating that 1
claim from the Fourteenth to the Fourth Amendment. But cf. 2
Tenenbaum, 193 F.3d at 605 (resting grant of qualified immunity 3
on basis that there "was no 'clearly established' law under the 4
Fourth Amendment" in 1990 concerning standards for removing a 5
child from her school). What matters is whether an objectively 6
reasonable caseworker in Woo's position would have known that 7
removing a child from his or her home without parental consent, 8
circumstances warranting the removal, or court order would 9
violate a constitutional right -- not whether the caseworker 10
would have known which constitutional provisions would be 11
violated if the caseworker proceeded to act in a particular way. 12
We reached a similar conclusion in Russo v. City of 13
Bridgeport, 479 F.3d 196 (2d Cir.), cert. denied, 552 U.S. 818 14
(2007). There we made clear that the constitutional "right to be 15
free from prolonged detention caused by law enforcement 16
officials' mishandling or suppression of exculpatory evidence," 17
id. at 211, was a species of the right to be free from unlawful 18
seizure under the Fourth Amendment, not a substantive due process 19
right under the Fourteenth Amendment, see id. at 208-09. In then 20
proceeding to undertake a qualified-immunity inquiry, we 21
cautioned that our "clarification [of the law was] of no 22
consequence to the question of whether the right was clearly 23
established [at the time of the relevant events], because the 24
proper inquiry is whether the right itself -- rather than its 25

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73
source -- is clearly established." Id. at 212 (collecting cases; 1
emphases in original). 2
Here, as in Russo, in inquiring whether there was 3
clearly established law to govern the Southerland Children's 4
claim in 1997, we look not only to authorities interpreting the 5
Fourth Amendment, but to all decisions concerning the same 6
substantive right -- the right of a child not to be seized from 7
his or her home without parental consent, prior judicial 8
authorization, or the existence of special circumstances. 9
Although the standard for determining whether the 10
circumstances justify seizure of a child without judicial 11
authorization or parental consent under the Fourth Amendment was 12
not established by 1997 and, as we have pointed out, remains 13
unsettled to this day, the Children's right not to be taken from 14
the care of their parent without court order, parental consent, 15
or emergency circumstances was firmly established, albeit under a 16
procedural due process framework. See Hurlman, 927 F.2d at 80. 17
Regardless of whether probable cause or exigent circumstances 18
must be established to justify a warrantless seizure for Fourth 19
Amendment purposes, the existence of emergency circumstances 20
sufficient to justify removal of the Southerland Children in a 21
manner comporting with their due process rights would also 22
certainly suffice to justify their removal in a manner comporting 23
with their Fourth Amendment rights barring unreasonable 24

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30 See supra, note 21 (discussing the distinction between
an exigent circumstances and an emergency circumstances
standard).
74
seizure. 30 To that extent, at the time of the events in this 1
case, the Southerland Children's Fourth Amendment rights against 2
unreasonable seizure were clearly established. 3
In light of this determination, the next question the 4
Court must address is whether "it was objectively reasonable for 5
[Woo] to believe [that his] acts did not violate th[e Childrens' 6
clearly established] right[]," Holcomb, 337 F.3d at 220, not to 7
be taken from the care of their parent without court order, 8
parental consent, or emergency circumstances. Once again, for 9
the purposes of the qualified immunity analysis, the legal origin 10
of the right is not determinative. If Woo has established that 11
he was objectively reasonable in believing that he did not 12
violate the Children's right to be free from unwarranted seizure 13
without exigent circumstances, court order, or parental consent, 14
then he is protected against their Fourth Amendment seizure 15
claim, no matter the standard used to determine liability on this 16
claim on the merits. For the same reasons as in our procedural 17
due process analysis -- that we cannot conclude as a matter of 18
law on the current record that it would have been objectively 19
reasonable for Woo to believe that his actions did not violate 20
the Children's constitutional right not to be removed from their 21
home barring exigent circumstances – we cannot conclude as a 22
matter of law that Woo must prevail on the "objectively 23

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75
reasonable" inquiry as to the violation of the children's Fourth 1
Amendment illegal seizure claims. See supra, Part V. Thus, 2
qualified immunity is unavailable to Woo at this stage on the 3
current record. 4
3. The Merits of the Fourth Amendment Unlawful Seizure Claim 5
Because we conclude here that Woo is not entitled to 6
qualified immunity as a matter of law, at least on this record, 7
the remaining question is whether Woo is entitled to summary 8
judgment on the merits. The district court assumed that a 9
seizure of a child without a court order or parental consent is 10
constitutionally justified under the Fourth Amendment only if 11
there are "exigent circumstances." See Southerland II, 521 F. 12
Supp. 2d at 234 n.29. It concluded that, taking the evidence in 13
the light most favorable to the Southerland Children, "a 14
reasonable juror could determine that the circumstances Woo 15
encountered did not demonstrate an imminent danger to the 16
children's life or limb." Id. 17
As our discussion here makes clear, however, this may 18
not be the standard that should apply in deciding the merits of 19
the Children's Fourth Amendment seizure claim. The district 20
court should reconsider the merits-question –- on an expanded 21
record if the court deems that appropriate –- cognizant of the 22
uncertainty in the legal landscape. The district court may need 23
to decide, in the first instance, what standard should apply, but 24
it may not. For example, if the court determines that under 25

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31 On remand, with respect to both the conduct and
determination of any further pretrial proceedings and a
subsequent trial, if any, nothing in this opinion is intended to
limit the district court's discretion to consider or admit into
evidence (1) the outcome of the Family Court proceedings
addressing and disposing of the claims of child abuse involving
Southerland, or (2) testimony, documents, or physical evidence
from those proceedings to the extent the outcome of those
proceedings or other such evidence may bear on, inter alia,
background, witness credibility, scope or amount of damages,
Woo's professional judgment, or such other issues, as the
district court may determine. We leave to the district court's
76
either standard the Southerland children can establish that the 1
circumstances in the home did not justify the seizure as a matter 2
of law, then it need not decide whether the probable cause or 3
exigent circumstances standard is applicable. 4
VIII. Further Development of the Record 5
As should be clear by now, nothing in this opinion 6
should be read to foreclose the district court from exercising 7
its sound discretion as to the nature and scope of any further 8
pretrial proceedings on remand. Cf. Huminski v. Corsones, 386 9
F.3d 116, 152 (2d Cir. 2004) (district court free to consider 10
whether granting additional discovery would be appropriate before 11
deciding a renewed motion for summary judgment on remand). The 12
district court may, although it need not, permit additional 13
discovery, a renewed motion for summary judgment, or both. And 14
it follows that, should this case proceed to trial, nothing in 15
this opinion should be construed as preventing the district court 16
from entertaining a properly supported motion for judgment as a 17
matter of law by the defendants. 31
18

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determination in the first instance the admissibility of any such
evidence for any particular purpose.
77
CONCLUSION 1
For the foregoing reasons, we affirm the grant of 2
summary judgment as to Southerland's claim for infringement of 3
his substantive due process rights under the Fourteenth 4
Amendment. We vacate the district court's grant of summary 5
judgment as to Southerland's and the Southerland Children's 6
claims for Fourth Amendment violations arising out of the 7
allegedly unlawful search of the Southerland home; as to 8
Southerland's and the Southerland Children's claims for 9
violations of procedural due process under the Fourteenth 10
Amendment; and as to the Southerland Children's claim for 11
unlawful seizure under the Fourth Amendment and remand to the 12
district court for further proceedings. 13
Each party shall bear his, her or its own costs on 14
appeal. 15

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