Lisa Demargee v. Laura Pederson; Amy Van Ness

As this court has stated repeatedly, families have a “wellelaborated

constitutional right to live together without

governmental interference.” Wallis v. Spencer, 202 F.3d

1126, 1136 (9th Cir. 2000); accord Kirkpatrick v. Cty. of

Washoe, 843 F.3d 784, 789 (9th Cir. 2016) (en banc); Burke

v. Cty. of Alameda, 586 F.3d 725, 731 (9th Cir. 2009); Rogers

v. Cty. of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007);

Mabe v. San Bernardino Cty., 237 F.3d 1101, 1107 (9th Cir.

2001); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997).

We consider here Lisa and Anthony (“A.J.”) Demaree’s

contention that social workers Laura Pederson and Amy Van

Ness violated their constitutional rights to family unity and

companionship, and their small children’s as well, by

removing the children from home without a warrant or court

order.

I. BACKGROUND

A.J. Demaree dropped off some family photos to be

printed at a Wal-Mart in Arizona on Friday, August 29, 2008.

While developing the pictures, an employee noticed that

several pictures portrayed nude children. Wal-Mart called the

police. Detective John Krause came and collected the

pictures. On Saturday, he photocopied the ones that

concerned the Wal-Mart employee and went to the Demarees’

home.

1

Judge Berzon concurs in the entirety of this opinion. Judge N.R.

Smith concurs in all but Part II(A)(ii) of this opinion. Judge Zouhary

concurs in all but Part II(B)(ii) of this opinion.

DEMAREE V. PEDERSON 7

Once there, he and his partner separately interviewed

parents Lisa and A.J. Demaree. Both parents looked at the

pictures, identified their daughters—five-year-old T.D., fouryear-old

J.D., and one-and-a-half-year-old L.D.—and said the

pictures had been taken “in the last couple of months” by one

or both parents. When asked what he would do with one

photo, which portrayed his three children lying down on a

towel nude, focusing on their exposed buttocks but with some

genitalia showing, he responded, “I’m not going to do

anything with that one. That’s not going in a photo album;

that’s just one we have.” Krause said, “Obviously you’re not

going to share it with somebody, I would hope,” to which

A.J. responded, “No, absolutely not!” Krause then asked why

he would take the photo in the first place, and A.J. responded,

“So when we look back on em years later, look at their cute

little butts.”

None of the photographs portrayed children engaged in

sexual activity. None portrayed the children’s genitalia

frontally.

After the interviews, the detectives took T.D., J.D., and

L.D. to forensic and medical exams to investigate possible

sexual abuse. The physical exams came back normal for all

three children. After the interviews were finished, Krause’s

partner dropped the children back off with their parents.

Krause wrote in his report, “[a]pparently after the forensic

interviews and medical exams were completed, [Child

Protective Services] declined to remove the children from the

parent’s custody, and had directed [his partner] to return the

girls to Lisa and A.J.”2

2 Pederson and Van Ness did not rely upon the forensic interviews

before or after they decided to remove the children.

8 DEMAREE V. PEDERSON

While the exams were in progress, the police department

requested and received a warrant to search the Demarees’

home. Executing the warrant, the department seized all the

evidence that might be relevant to a child pornography

investigation: computers, printers, photographs, cell phones,

undeveloped film, floppy discs, DVDs, CDs, VHS tapes, and

cameras.

As the home search was nearing its end, and after the

children had been returned to their parents, Child Protective

Services (“CPS”) investigating officer Laura Pederson called

one of the police officers to discuss the case. After the

conversation, she decided to drive over to the house. There,

Pederson discussed with Krause the evidence seized, the

content of the pictures, and Krause’s expectation that felony

child sexual exploitation charges would be brought against

both parents.

After reviewing the evidence Krause showed her,

Pederson decided to take the children into emergency

temporary custody, without obtaining a court order or a

warrant. She later said, “I was relying on the fact that . . . at

the time there was a pending criminal investigation with both

parents named as suspects. I was relying on information that

Krause obtained during the investigation . . . his opinion of

the criminal acts that were committed, my viewing of the

pictures and the fact that the—all of this suggested these

children were at risk of further exploitation.” She discussed

her recommendation with her supervisor, Amy Van Ness,

who agreed.

Pederson gave the parents a “Temporary Custody

Notice.” In that notice, in the space provided for

investigators to “[c]heck the circumstances (imminent risk

DEMAREE V. PEDERSON 9

factor) that most clearly describes the reason temporary

custody was necessary,” Pederson checked “[o]ther,” and

wrote, “mother & father have taken sexually explicit pictures

of all three children.” She did not check the box for

situations where “[t]he child’s caregiver has engaged in

sexual conduct with a child, or has allowed the child to

participate in sexual activity with others.” On the next page,

in the space provided for investigators to inform parents of

the “complaint or allegation concerning [their] family [that]

is currently under investigation,” she wrote, “Sexual

Abuse—child pornography/exploitation.”

Pederson then drove T.D. and J.D. to one foster home and

L.D. to another. Two days later, Pederson brought the

children to their grandparents’ home, where all three stayed

for about a month, after which they were returned to their

parents. The juvenile court never adjudicated the children

abused or neglected, and neither A.J. nor Lisa were arrested

or charged with any crime.

A.J. and Lisa later filed the instant action on behalf of

themselves and their children, alleging violations of various

constitutional rights. The district court dismissed the claims

against all defendants except Krause, Pederson, and Van

Ness. The Demarees later settled their claims against Krause.

As relevant here, the district court granted summary

judgment in favor of Pederson and Van Ness based on

qualified immunity. It ordered the parties to propose

appropriate redactions to the summaryjudgment order, which

was temporarily filed under seal on April 23, 2014. On May

21, the Demarees requested leave to file under seal a motion

to alter or amend the judgment under Federal Civil Rule 59.

Six days later, the district court denied the motion for leave

10 DEMAREE V. PEDERSON

to file under seal, and also denied the Demarees’ request to

seal the summary judgment order in its entirety. The

Demarees filed this appeal on June 23.

II. DISCUSSION

A. Timeliness of the Appeal

Before we address the merits, we consider whether this

appeal is timely. Three court rules are pertinent to our

inquiry here: First, Federal Rule of Appellate Procedure

4(a)(4)(A) tolls the deadline to file a notice of appeal upon

the timely filing of certain motions, including a motion to

alter or amend the judgment under Federal Rule of Civil

Procedure 59, such that the time to appeal—here,

30 days—runs “from the entry of the order disposing of the

last such remaining motion.” Second, Federal Rule of Civil

Procedure 5(d)(2) provides that “[a] paper is filed by

delivering it . . . to the clerk.” And third, Arizona Local Rule

5.6(c) requires a document meant to be filed under seal first

to “be lodged with the Court in electronic form” using the

electronic filing system.

The Demarees accordingly “lodged” a copy of their Rule

59 motion and requested leave to file it under seal. The

district court denied the request. But its order, although in

form a denial of the request to file the motion under seal, did

not refer to or discuss any of the factors relevant to filing

documents under seal. Cf. Foltz v. State Farm Mut. Auto. Ins.

Co., 331 F.3d 1122, 1135 (9th Cir. 2003). Instead, the order

addressed only the merits of the Rule 59 motion, denying the

request to file under seal because the underlying motion was

“unnecessary” and “a repeat of arguments previously made,

at great length, in Plaintiffs’ filings.” The Demarees filed

DEMAREE V. PEDERSON 11

their Notice of Appeal twenty-seven days after the issuance

of the order denying leave to file their Rule 59 motion under

seal, and fifty-five days after the summary judgment order.

Pederson and Van Ness contend that the Demarees’ appeal

was not timely because the Rule 59 motion was never

actually filed and therefore could not toll the deadline for

appeal under Rule 4(a)(4).

(i) Jurisdiction versus mandatory claim-processing

The parties describe the timeliness issue as jurisdictional.

Under a recent Supreme Court case, it is not.

“[A]n appeal filing deadline prescribed by statute will be

regarded as ‘jurisdictional’. . . . But a time limit prescribed

only in a court-made rule . . . is not jurisdictional; it is,

instead, a mandatory claim-processing rule. . . .” Hamer v.

Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 16–17

(2017). In other words, “[i]f a time prescription governing

the transfer of adjudicatory authority from one Article III

court to another appears in a statute, the limitation is

jurisdictional; otherwise, the time specification fits within the

claim-processing category.” Id. at 20 (internal citations and

footnote omitted).

Before Hamer, we held the timeliness rule at issue here

jurisdictional. See United States v. Comprehensive Drug

Testing, Inc., 513 F.3d 1085, 1100 (9th Cir. 2008), aff’d and

adopted en banc, United States v. Comprehensive Drug

Testing, Inc., 621 F.3d 1162, 1167 (9th Cir. 2010) (en banc).

Comprehensive Drug Testing recognized that “Fed. R. App.

P. 4(a)(4) does not contain language from 28 U.S.C. § 2107,”

12 DEMAREE V. PEDERSON

or any other relevant statute.3 But Comprehensive Drug

Testing regarded Bowles v. Russell, 551 U.S. 205, 214 (2007)

as indicating that all timeliness problems in notices of appeal

were jurisdictional, whether directly traceable to a statutory

requirement or not. Comprehensive Drug Testing, 513 F.3d

at 1100.

Hamer, 138 S. Ct. at 21, squarelyrejected Comprehensive

Drug Testing’s reading of Bowles in the context of another

provision of Fed. R. App. P. 4, Rule 4(a)(5)(C). That Rule

also established a “time prescription . . . absent from the U.S.

Code.” Id. Hamer noted that “[s]everal Courts of Appeal . . .

ha[d] tripped over [its]statement in Bowles that ‘the taking of

an appeal within the prescribed time is “mandatory and

jurisdictional,”’” even though that statement was “a

characterization left over from days when [the Supreme

Court] w[as] ‘less than meticulous’ in [its] use of the term

‘jurisdictional.’” Id. (internal citations and footnotes

omitted).

Comprehensive Drug Testing recognized the absence of

a statutory basis for Rule 4(a)(4) but—understandably, as

Hamer recognizes—tripped over the very language in Bowles

that Hamer disavows. Comprehensive Drug Testing’s

holding that all timeliness issues in notices of appeal are

jurisdictional, even where, as here, the Rule’s provision is not

statutorilymandated, is thus flatly irreconcilable with Hamer.

See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en

3

See also Obaydullah v. Obama, 688 F.3d 784, 788–91 (D.C. Cir.

2012) (describing the relationship between Fed. R. App. P. 4(a)(4) and

28 U.S.C. § 2107, and explaining that the tolling provision ofRule 4(a)(4)

has no statutory analog).

DEMAREE V. PEDERSON 13

banc). Under Hamer, Rule 4(a)(4) is not jurisdictional;

instead, Rule 4(a)(4) is a mandatory claim-processing rule.

The defendants challenged the timeliness of this appeal in

their brief before us, so we must address that question, even

though not jurisdictional. See, e.g., Amalgamated Transit

Union Local 1309 v. Laidlaw Transit Servs., Inc., 435 F.3d

1140, 1145 (9th Cir. 2006); Kwai Fun Wong v. Beebe,

732 F.3d 1030, 1035–36, 1047 (9th Cir. 2013) (en banc).

(ii) This appeal was timely

Turning to the particular application of Rule 4(a)(4)

before us: We recently addressed a similar issue in Escobedo

v. Applebees, a sex discrimination case. There, Escobedo

delivered her complaint to the clerk’s office sixty-nine days

after receiving her right-to-sue letter from the EEOC.

787 F.3d at 1227. She also filed an in forma pauperis

application, which was later denied, and she paid her filing

fee by the deadline imposed by the court, which fell 133 days

after she received the right-to-sue letter. Id. at 1230. The

defendant argued that the complaint was time-barred because

it was “filed” after the ninety-day statutory deadline, even

though it was originally submitted to the clerk within the time

limit.

The district court dismissed the lawsuit, and we reversed,

holding that “[a]s with other pleadings and papers, a

complaint is filed ‘by delivering it . . . to the clerk.’” Id. at

1232–33 (quoting Fed. R. Civ. P. 5(d)(2)). Though Escobedo

advanced “constructive filing” and equitable tolling theories,

we based our decision on other grounds. We noted that

“scant justification exists to invoke” the “legal fiction”

inherent in those theories because “[i]t is undisputed that the

14 DEMAREE V. PEDERSON

complaint was actually, physically delivered to the clerk

. . . .” Id. at 1231–32.

Similarly, in Ordonez v. Johnson, 254 F.3d 814, 816 (9th

Cir. 2001) (per curiam), we held that a pro se prisoner

complaint was timely filed when delivered to the clerk, even

though the clerk rejected the complaint for noncompliance

with a local rule requiring submission of a courtesy copy. We

reasoned that “elevat[ing] a local rule . . . to the status of a

jurisdictional requirement would conflict with the mandate of

Federal Rule of Civil Procedure 1 to provide a just and

speedy determination of everyaction.” Id. (internal quotation

marks and citations omitted).

Likewise, in Klemm v. Astrue, 543 F.3d 1139 (9th Cir.

2008), Klemm mailed his notice of appeal to the clerk’s

office, along with a post-dated check for the filing fee. The

clerk rejected the notice and instructed Klemm to file

electronically, as required by local rule. He did so, but his

electronic filing fell three days after the relevant deadline.

We held the notice of appeal “was deemed filed when it

‘arrived in the hands of the Clerk within the statutory

period.’” Id. at 1143 (quoting Loya v. Desert Sands Unified

Sch. Dist., 721 F.2d 279, 280 (9th Cir. 1983)). We reasoned

that “filing requirements dictated by local rules are not

jurisdictional. . . . Local rules govern local practice, but a

violation of local rules cannot divest this court of the

jurisdiction afforded to it by Congress.” Id. (citation

omitted).

In this case, the Demarees’ Rule 59 motion was “actually,

physically” delivered to the clerk when it was timely lodged

in conjunction with the request to file under seal. Escobedo,

787 F.3d at 1232. And the district court treated the motion as

DEMAREE V. PEDERSON 15

filed, as it ruled on the merits of the motion.4 Accordingly,

the time to file an appeal began running from May 27, 2014,

the date of the district court’s final order, and the Demarees

timely filed their Notice of Appeal, on June 23, 2014.

Judge N.R. Smith’s separate opinion cites to several cases

that distinguish between lodged and filed documents for

purposes of determining whether a document is included in

the record under Federal Rule of Appellate Procedure 10(a).

Separate Opn. of Smith, N.R., C.J., at 33–34 (citing

Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1127 n.5

(9th Cir. 2009); Barcamerica Int’l USA Trust. v. Tyfield

Imps., Inc., 289 F.3d 589, 594–95 (9th Cir. 2002); Levald v.

City of Palm Desert, 998 F.2d 680, 684 n.1 (9th Cir. 1993)).

Those cases are not relevant here, both because we are

addressing a question of timeliness concerning when a

pleading was filed, not determining the content of the

evidentiary record on appeal, and because the district court

resolved the motion on its merits, thereby treating it as if it

were filed.

We therefore hold that this appeal is timely.

B. Qualified Immunity

We next consider whether Pederson and Van Ness were

entitled to qualified immunity when they removed T.D., J.D.,

and L.D. from their home without judicial authorization.

4

We look to the substance and effect of an order, not solely its title.

See Delta Computer Corp. v. Samsung Semiconductor & Telecomm. Co.,

879 F.2d 662, 665 (9th Cir. 1989).

16 DEMAREE V. PEDERSON

Section 1983 provides a remedy for the violation of

constitutional rights by any person acting under color of state

law. 42 U.S.C. § 1983. But it does not provide a remedy for

all constitutional violations. “The doctrine of qualified

immunity protects government officials fromliability for civil

damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Pearson v. Callahan,

555 U.S. 223, 231 (2009) (internal quotation marks omitted).

We use a two-step test to evaluate claims of qualified

immunity, “under which summary judgment is improper if,

resolving all disputes of fact and credibility in favor of the

party asserting the injury, (1) the facts adduced show that the

officer’s conduct violated a constitutional right, and (2) that

right was ‘clearly established’ at the time of the violation.”

Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 788 (9th Cir.

2016) (en banc).

This section 1983 action concerns parents’ and children’s

“well-elaborated constitutional right to live together without

governmental interference.” Burke v. Cty. of Alameda,

586 F.3d 725, 731 (9th Cir. 2009) (internal quotation marks

and citation omitted). In particular, “[u]nder the Fourth

Amendment, government officials are ordinarily required to

obtain prior judicial authorization before removing a child

from the custody of her parent.” Kirkpatrick, 843 F.3d at

790.

There are narrow circumstances in which the government

may constitutionally remove children from their families

temporarily without judicial authorization. In an emergency,

government officials may take a child out of her home and

away from her parents without a court order “when officials

have reasonable cause to believe that the child is likely to

DEMAREE V. PEDERSON 17

experience serious bodily harm in the time that would be

required to obtain a warrant.” Kirkpatrick, 843 F.3d at 790

(original italics and internal quotation marks omitted). This

requirement “balance[s], on the one hand, the need to protect

children from abuse and neglect and, on the other, the

preservation of the essential privacy and liberty interests that

families are guaranteed under both the Fourth and Fourteenth

Amendments of our Constitution.” Rogers v. Cty. of San

Joaquin, 487 F.3d 1288, 1297 (9th Cir. 2007).

(i) Constitutional violations

The Demarees, on behalf of themselves and their children,

claim Pederson and Van Ness violated their clearly

established constitutional rights when Pederson removed the

children from the home without a court order and absent an

emergency.

5

We begin with the first step of our qualified immunity

inquiry—whether the social workers acted constitutionally

when they took the Demaree children from their parents

without court authorization. “Serious allegations of abuse

that have been investigated and corroborated usually give rise

to a ‘reasonable inference of imminent danger sufficient to

justify taking children into temporary custody’ if they might

again be beaten or molested during the time it would take to

get a warrant.” Rogers, 487 F.3d at 1294–95 (quoting Ram,

5 The Demarees contend, alternatively, that even if the removal itself

was proper, Pederson and Van Ness violated their and their children’s

constitutional rights by placing the children in non-relative foster care,

rather than directly placing them with their relatives. Because we agree

with the Demarees that the removal was improper, we do not consider this

alternative contention.

18 DEMAREE V. PEDERSON

118 F.3d at 1311). We therefore consider whether the

defendant social workers had reasonable cause to believe that

T.D., J.D., and L.D. were at imminent risk of serious bodily

injury or molestation. Wallis, 202 F.3d. at 1138.

Viewing the facts in the light most favorable to the

Demarees, the social workers did not have reasonable cause

to believe the children were at risk of serious bodily harm or

molestation. Pederson and Van Ness did not represent that

the Demaree children might “again be beaten or molested,”

Rogers, 487 F.3d at 1294, if left in their home—the children

were never beaten or molested in the first place. Instead, the

articulated concern was that the children could be subjected

to future criminal “sexual exploitation” because the parents

had “tak[en] sexually explicit pictures of all three children.”6

It is helpful to identify what this stated risk did not

include. The risk identified by the defendants did not include

taking photos of a nude child in an exploitative situation and

6

The defendants rely on the investigation into the parents’ potential

violation of Arizona’s criminal law concerning the sexual exploitation of

a minor. Under that law, “[a] person commits sexual exploitation of a

minor by knowingly: 1. Recording, filming, photographing, developing

or duplicating any visual depiction in which a minor is engaged in

exploitative exhibition or other sexual conduct. 2. Distributing,

transporting, exhibiting, receiving, selling, purchasing, electronically

transmitting, possessing or exchanging any visual depiction in which a

minor is engaged in exploitative exhibition or other sexual conduct.”

Ariz. Rev. Stats. § 13-3553(A). “Exploitative exhibition” is defined as

“the actual or simulated exhibition of the genitals or pubic or rectal areas

of any person for the purpose of sexual stimulation of the viewer.” Id.

§ 13-3551(5). Here, reviewing the facts in the light most favorable to the

plaintiffs, there was no evidence that the parents meant to use the

photographs for sexual stimulation of themselves or anyone else, much

less to take new photographs for that purpose.

DEMAREE V. PEDERSON 19

distributing them, because there was no allegation or

indication that A.J. and Lisa had distributed, or were likely in

the future to distribute, nude pictures of their children to

anyone.7 Nor did the identified risk include taking photos of

a nude child engaging in sexual conduct, because there was

no allegation A.J. and Lisa had ever taken, or were likely to

take, photos of their children engaging in sexual conduct.8

And the risk was not that the Demarees would see their own

children, ages five, four, and one-and-a-half, nude, including

their genitalia, as caring for children of those ages

necessitates doing so.

Most important, the articulated risk—taking sexually

explicit photos—did not include any risk of physical sexual

abuse. There was no allegation that A.J. and Lisa were likely

to put their children at risk of sexual assault or abuse; indeed,

after the children were professionally evaluated for signs of

sexual abuse, Detective Krause reported that “neither could

provide any information relevant to the investigation,” and

Detective Shearer stated that “[T.D.] and [J.D.] did not make

disclosures in the forensic interviews.” At the end of the

evaluations, Detective Krause reported that “[Child Protective

Services] declined to remove the children from the parent’s

7 Also, taking the children away would not prevent the parents from

distributing existing photographs were they so inclined—which there is no

indication that they were.

8

It would be inappropriate to attach the photographs to this opinion,

as doing so could further invade the children’s privacy interests in

anonymity. We note, however, insofar as Judge Zouhary’s dissent

suggests that the photographs portrayed the children in “provocative

poses,” see Dissenting Opn. of Zouhary, J., at 46, we see that portrayal of

the photographs as inaccurate. The term suggests frontal nudity or

sexually explicit poses, neither of which was represented.

20 DEMAREE V. PEDERSON

custody [sic], and . . . directed Detective Shearer to return the

girls to Lisa and A.J.”

Nor did Pederson act on fear of physical sexual abuse.

Before removing the children, Pederson filled out a

“Temporary Custody Notice,” which included a space

instructing investigators to “[c]heck the circumstances

(imminent risk factor) that most clearly describes the reason

temporary custody was necessary.” She did not check the

box for situations where “[t]he child’s caregiver has engaged

in sexual conduct with a child, or has allowed the child to

participate in sexual activity with others.” Instead, Pederson

checked “[o]ther,” and wrote, “mother & father have taken

sexually explicit pictures of all three children.”

Further, any cognizable risk could not have been

imminent in the sense our case law requires—that the

children “might again be beaten or molested during the time

it would take to get a warrant.” Rogers, 487 F.3d at 1294–95.

The defendants suggest that we should measure imminence

in this case in days and potentially weeks, noting that under

Arizona Revised Statute § 8-824(A), the earliest a court could

have conducted a full hearing would have been five to seven

days after a dependency petition was filed. But Arizona law

recognizes that juvenile courts can issue same-day “motions

for pickup.” See Ariz. Dep’t of Econ. Sec. v. Lee ex rel. Cty.

of Maricopa, 228 Ariz. 150, 151 (Ariz. Ct. App. 2011)

(noting that the department filed a dependency petition and,

“[o]n the same day, the juvenile court granted a motion for

pickup of the Child based on [the department’s] assertion that

the ‘child is at imminent risk of abuse and/or neglect due to

Mother’s substance abuse’”); see also Tyren T. v. Dep’t of

Child Safety, No. 1 CA-JC 16-0091, 2016 WL4474154, at *1

(Ariz. Ct. App. Aug. 25, 2016); Michael C. v. Ariz. Dep’t of

DEMAREE V. PEDERSON 21

Econ. Sec., No. 1 CA-JV 12-0005, 2012 WL 1964581, at *1

(Ariz. Ct. App. May 31, 2012); Magdaline L. v. Ariz. Dept. of

Econ. Sec., No. 1 CA-JV 08-0076, 2008 WL 5403657, at *1

(Ariz. Ct. App. Dec. 30, 2008).

Here, the parties agree that the juvenile court was not

open on Labor Day weekend, when the events in this case

occurred. We therefore consider imminence of harm in terms

of days rather than hours.9

This consideration is straightforward. The defendants did

not suggest that there was any possible harm of the requisite

sort to the children before the juvenile courts would reopen

after the holiday. Again, there was no evidence of sexual

assault or abuse; the defendants did not and do not rely on the

children’s forensic examination and interview as indicating

otherwise. Because the defendants did not identify any risk

of physical injury or molestation to the children, they did not

identify the requisite risk of imminent physical injury or

abuse.10

9 The plaintiffs do not argue that the absence of available judicial

officers over the weekend, and the consequent unavailability of a timely

judicial determination, constituted a due process violation in itself.

10 Even focusing—inappropriately—on whether there was evidence

that the Demarees would likely take more nude pictures of their children,

or distribute new or existing pictures, in the few days before the

government could get a court order, there was no such evidence. At the

time she removed the children, Pederson did not identify any imminent

future photography on her notice of temporary removal; rather, she noted

that “mother & father have taken sexually explicit pictures of all three

children” (emphasis added). It does not appear that Pederson reasonably

could have identified more photography as an imminent risk, because the

police had taken from the Demarees’ home all the cameras, cell phones,

computers, and printers found (in addition to potentially relevant

22 DEMAREE V. PEDERSON

In sum, viewing the record most favorably to the

Demarees, there was no suspected risk to the children of

serious bodily harm, including molestation, imminent or

otherwise. Therefore, viewing the record most favorably to

the Demarees, the defendants acted unconstitutionally in

taking the three children away from home without judicial

authorization.

(ii) Whether the constitutional right was clearly

established

We move to the second step of the qualified immunity

inquiry—whether the relevant judicial precedents at the time

of the incident clearly gave notice that what happened here

violated the Demaree family’s Fourth and Fourteenth

Amendment rights. We conclude that the applicable

precedents did provide that notice.

In 2007, the year before the events in this case took place,

Rogers held that a social worker violated a family’s clearly

established federal rights by removing children with no

warrant because of reports that a three-year-old and five-yearold

“were not toilet-trained, were locked in their rooms at

night and in a room at their parents’ business during the day,

were not receiving medical or dental care, that [one] had lost

his teeth due to bottle rot, that [the other] was still being fed

with a bottle, that their home was dirty and maggot-infested,

and that there were unsecured guns in the home.” Rogers,

487 F.3d at 1291. The social worker in that case “could have

photographs, undeveloped film, floppy disks, DVDs, CDs, and VHS

tapes), as they explained to Pederson before she removed the children.

And, again, there was no evidence that the parents had ever distributed or

had any intent to distribute the photos.

DEMAREE V. PEDERSON 23

obtained a warrant within hours,” and “[t]here [was] no

indication in the record that so short a delay could have

resulted in a significant worsening of the children’s physical

conditions or an increase in the prospects of long-term harm.”

Id. at 1295. One child’s “‘pain’ was not so serious that he

ceased to be ‘playful’ and ‘alert,’” the physical risk the

children faced from being locked in a room for the time it

would take to obtain a warrant was “very low,” and “the mess

in the Rogers living quarters . . . was a chronic, ongoing

problem.” Id.

Even in the face of this significant accumulation of

neglect and bodily harm, which all parties agreed had resulted

in bodily injury to the small children, we held that there was

no reasonable cause to believe an exigency supported the

children’s warrantless removal. Id. at 1296. We concluded

that their removal therefore violated their clearly established

rights. Id.

Here, there had been no actual or threatened physical

harm to or physical sexual abuse of the Demarees’ children

before they were taken from their home. So the likelihood

that they would suffer such abuse in the days it would take to

get a warrant was necessarily less than the likelihood of

future physical injury to the Rogers’ children in the hours it

would take to get a warrant.

Similarly, in Mabe v. San Bernardino Cty., 237 F.3d

1101, 1109 (9th Cir. 2001), viewing the facts in the light most

favorable to the plaintiff family, we held that a jury could

have found that a defendant social worker violated a mother’s

clearly established constitutional rights by removing her

teenage daughter from her home without a warrant. We were

unpersuaded that the sexual abuse allegations were exigent as

24 DEMAREE V. PEDERSON

a matter of law, even though the teenager’s stepfather

sexually abused her by “touch[ing] her breasts and crotch

area through her clothing at night in her bedroom . . . every

other night for . . . two or three months.” Id. at 1104–05. We

reasoned that, “[a]lthough the conduct by the stepfather was

clearly inappropriate, it did not involve violence or

penetration and the only time it had taken place was at night

when MD was in her bedroom. Assuming that [the worker]

could obtain a warrant the same day . . . , it is difficult to

understand how the further delay of a few hours necessary to

obtain the warrant would have put MD in imminent danger of

serious physical injury.” Id. at 1108 (internal footnote

omitted). That conclusion was further underscored by the

fact that the social worker “opted to leave MD in the

residence after interviewing MD and Mabe about the alleged

molestation.”11

Id.

Despite quite serious allegations of physical sexual

assault and bodily injury in Mabe, we were unwilling to hold

as a matter of law that there was reasonable cause to believe

there would be “imminent danger of future harm” within the

time it would take to get a warrant. Id. We held, instead, that

“a reasonable jury could conclude that [the mother’s]

constitutional rights were violated,” id. at 1109. We do the

same here.12

11 Similarly here, Child Protective Services initially returned the

children to their parents.

12 Cases applying Rogers and Mabe after the events giving rise to this

case, while not directly applicable to the clearly established law inquiry,

confirm our understanding of Rogers and Mabe. We have continued to be

careful to emphasize the need for a clear showing of both imminence and

specific, serious physical danger to the child. For example, in Burke v.

Cty. of Alameda, 586 F.3d 725, 731–32 (9th Cir. 2009), we held that,

DEMAREE V. PEDERSON 25

The defendants disagree with the above analysis. They

suggest that cases in the Ninth Circuit do not clearly establish

the constitutional requirements for warrantless removals of

children in the event of allegedly exploitative photos of nude

children because those cases deal with other forms of sexual

abuse and involve court orders available within a few hours

rather than a few days.

When evaluating qualified immunity claims, “[w]e do not

require a case directly on point, but existing precedent must

have placed the statutory or constitutional question beyond

debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). It is

“beyond debate,” id., that existing Ninth Circuit precedent

establishes that children can only be taken from home without

a warrant to protect them from imminent physical injury or

molestation in the period before a warrant could be obtained.

See Mabe, 237 F.3d at 1108–09. The clearly established case

law requires articulable, imminent, and serious physical

injury or physical abuse to children to justify removing them

from their parents’ home without a judicial order. There was

no such injury identified here.

Put another way, to say a child can be removed only if x

is likely to happen necessarily means she cannot be removed

if there is no indication that x is likely to happen. That there

is no case law concerning a situation in which y, but not x,

may be likely to happen does not make the rule setting the

under circumstances of that case, in which a stepfather’s sexual abuse and

physical violence could recur at any time according to the child’s report

of abuse, there was reasonable cause to believe that an imminent risk of

serious bodily injury justified a the child’s warrantless removal. We

reiterated that “[p]olice officers must have specific, articulable evidence

. . . that a child is in imminent danger of abuse.” Id. at 731 (internal

quotation marks omitted).

26 DEMAREE V. PEDERSON

standards for removal any less clear—the rule is that only a

reasonable fear of x, not y, can provide a constitutional basis

for exigent removal.

Here, the rule remains that there can be no removal

without a court order “absent evidence that the child was in

imminent danger of serious bodily injury.” Kirkpatrick,

843 F.3d at 792. The risk identified here simply does not

meet that standard, as it does not involve physical injury or

abuse.

Notably, unlike in Kirkpatrick, the issue here is not the

level of risk in a particular circumstance. See id. In that case,

a mother who had abused methamphetamine gave birth to a

child and, although both stayed in the hospital to recover,

several social workers assumed temporary custody of the

newborn without a warrant. Id. at 786–87. Because no case

had addressed the level of risk of physical harm at issue

where a potentially abusive mother is in the hospital but could

leave with the child, we held that the social workers were

entitled to qualified immunity. Id. at 793. Here, though, the

social workers never identified any risk of harm to the

children over the applicable period that comes within the

exigent circumstances standard articulated in Wallis and its

progeny.

Further, the case law was clear in 2008 that it does not

matter whether the warrant could be obtained in hours or

days. What matters is whether there is an identifiable risk of

serious harm or abuse during whatever the delay period is.

See Rogers, 487 F.3d at 1294–1295 (“Serious allegations of

abuse that have been investigated and corroborated usually

give rise to a reasonable inference of imminent danger

sufficient to justify taking children into temporary custody if

DEMAREE V. PEDERSON 27

they might again be beaten or molested during the time it

would take to get a warrant.” (emphasis added and internal

quotation marks omitted)); United States v. Echegoyen,

799 F.2d 1271, 1279 n.5 (9th Cir. 1986) (“Exigent

circumstances necessarily imply that there is insufficient time

to get a warrant.”); United States v. Good, 780 F.2d 773, 775

(9th Cir. 1986) (“Exigent circumstances alone . . . are

insufficient as the government must also show that a warrant

could not have been obtained in time.”).

We note that at least one other federal court of appeal has

dealt with facts similar to those before us. In Malik v.

Arapahoe Cty. Dep’t of Soc. Servs., 191 F.3d 1306, 1309

(10th Cir. 1999), the Tenth Circuit held that, viewing the facts

in the light most favorable to the Maliks, a police officer and

social worker could have violated Ms. Malik’s and her fouryear-old

daughter’s clearly established constitutional rights.

The defendants had removed the daughter on the authority of

a court order obtained through misrepresentation several

weeks after they had discovered a set of ten photographs

portraying the daughter partially clothed, “some with full

frontal genital exposure.” Id.13 The daughter’s uncle, an

artist, had taken the photos five months earlier, and the

mother had sent the photos to be processed; as here, the photo

processing center called the police. Id.

The Tenth Circuit held that the defendants were not

entitled to qualified immunity. Id. at 1315. That “conclusion

hinge[d] upon the district court’s finding that ‘[d]efendants

acknowledged [the daughter] was in no imminent danger at

the time they sought the order and the facts suggest[ed] [the

warrant] was secured only through distortion,

13 None of the photographs here at issue meets that description.

28 DEMAREE V. PEDERSON

misrepresentation and omission.’” Id. at 1315 n.5. In the

absence of imminent danger that the daughter would be the

subject of more photographs—even if the sexual exploitation

inherent in the existing ones would have justified

removal—the government could not remove the daughter

without a legitimate judicial order. Clearly established law,

said the Tenth Circuit, compelled that conclusion.

To recap: We do not here deal with a “general

proposition, for example, that an unreasonable search or

seizure violates the Fourth Amendment,” which “is of little

help in determining whether the violative nature of particular

conduct is clearly established.” al-Kidd, 563 U.S. at 742.

Instead, we have here a very specific line of cases,

culminating in Rogers and Mabe, which identified and

applied law clearly establishing that children may not be

removed from their homes without a court order or warrant

absent cogent, fact-focused reasonable cause to believe the

children would be imminently subject to physical injury or

physical sexual abuse. Rogers, the last in the series before

the events in this case, summarized that law and explained

why qualified immunity was inapplicable: “Prior to the

events in question, we had repeatedly held that a family’s

rights were violated if the children were removed absent an

imminent risk of serious bodily harm. A reasonable social

worker would need nothing more to understand that she may

not remove a child from [his or her] home on the basis of a

[situation] that does not present such a risk.” 487 F.3d at

1297. Mabe, Rogers, and their predecessors thus gave clear

notice of the law to social workers responsible for protecting

children from sexual abuse and families from unnecessary

intrusion.

DEMAREE V. PEDERSON 29

We accordingly reverse the district court’s grant of

qualified immunity to Pederson and Van Ness.

C. Motion to Seal

“[C]ourts of this country recognize a general right to

inspect and copy public records and documents, including

judicial records and documents.” Nixon v. Warner

Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnotes

omitted). We therefore “start with a strong presumption in

favor of access to court records.” Foltz, 331 F.3d at 1135.

“A party seeking to seal a judicial record . . . . must

‘articulate[] compelling reasons supported by specific factual

findings.’” Kamakana v. City & Cty. of Honolulu, 447 F.3d

1172, 1178 (9th Cir. 2006) (quoting Foltz, 331 F.3d at 1135).

“‘[C]ompelling reasons’ sufficient to outweigh the public’s

interest in disclosure” exist when court records might

“‘become a vehicle for improper purposes,’ such as the use of

records to gratify private spite, promote public scandal,

circulate libelous statements, or release trade secrets.” Id. at

1179 (quoting Nixon, 435 U.S. at 598). “The mere fact that

the production of records may lead to a litigant’s

embarrassment, incrimination, or exposure to further

litigation will not, without more, compel the court to seal its

records.” Id.

The Demarees’ arguments can be summarized as follows:

(1) sealing the summary judgment order is necessary “to

protect[ ] the privacy and innocence of children”; (2) Arizona

law provides that records related to CPS investigations are

confidential; and (3) the unsealed order could be used for

improper purposes, such as to provide “sexual[ ]

stimulat[ion].”

30 DEMAREE V. PEDERSON

None of these are compelling reasons for sealing the order

here. First, the district court properly protected the privacy of

the children by maintaining under seal any motions or

exhibits containing their full names or identifying

information. Second, Arizona law prohibits the Department

of Economic Security from releasing “files that contain

information related to investigations conducted by child

protective services.” Ariz. Rev. Stats. § 41-1959(A). It also

provides that “records of . . . dependency proceeding[s] shall

not be open to public inspection.” Ariz. Rev. Stat. § 8-

208(F). But the summary judgment order neither releases any

CPS files nor opens the records of any dependency

proceeding. In short, the district court did not violate Arizona

law by publishing the order.

Finally, the district court order employed clinical,

anatomically correct language to briefly describe the nudity

depicted in the photographs at issue. The unquantifiable odds

that an unsavoryindividual might find this language titillating

does not create a compelling reason for removing it from the

public record—especially since the Demarees did not file

their Complaint under seal, and in fact gave public interviews

in which they, themselves, described the photos and the

nudity depicted.

III. CONCLUSION

We affirm the district court order denying the Demarees’

motion to seal the summary judgment order. We reverse the

district court order granting summary judgment in favor of

DEMAREE V. PEDERSON 31

Pederson and Van Ness based on qualified immunity. We

remand for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

N.R. SMITH, Circuit Judge, joining the per curiam opinion,

except for Part II(A)(ii), and concurring in the judgment:

In my view, the court has neither jurisdiction nor

authority to hear this case.1 The Plaintiffs failed to file their

notice of appeal within thirty days of the judgment, thus we

have no jurisdiction or authority over this appeal. However,

because a majority of the panel believes we do, and I agree

with the per curiam opinion’s resolution of the merits, I join

all but Part II(A)(ii) of the per curiam opinion and concur in

the judgment.

In order to overcome this lack of jurisdiction and lack of

authority, the majority concludes that a “lodged” document

has “filed” status, allowing the Plaintiffs more time to file the

notice of appeal. There is no support for that position. We

have no authority to hear this case.

1

I agree with the Majority that Hamer v. Neighborhood Housing

Services of Chicago, 138 S. Ct. 13 (2017), clearly articulated the

difference between jurisdictional rules (those grounded in the United

States Code) and “mandatory claim-processing rules” which “must be

enforced,” but, nevertheless, may also be waived or forfeited, and that the

rule primarily at question in this case (Rule 4(a)(4) and the effect of the

tolling motions listed therein) is a “mandatory claim-processing rule” and

not a jurisdictional rule. Id. at 17.

32 DEMAREE V. PEDERSON

The district court entered summary judgment on April 23,

2014. From that date, the Demarees’ time to either file a

notice of appeal (30 days), Fed. R. App. P. 4(a)(1)(A), or a

Rule 59 motion (28 days), Fed. R. Civ. P. 59(e), began to run.

First, because a notice of appeal was not filed by May 23,

2014 (it was actually filed on June 23, 2014), this court does

not have jurisdiction. 28 U.S.C. § 2107(a). “[T]he taking of

an appeal within the prescribed time is ‘mandatory and

jurisdictional.’” Bowles v. Russell, 551 U.S. 205, 209 (2007)

(quoting Griggs v. Provident Consumer Discount Co.,

459 U.S. 56, 61 (1982) (per curiam)). There is no dispute the

Demarees did not file a timely notice of appeal.

Second, because the Rule 59 motion was not filed by May

21, 2014, there is no tolling of the time to file a notice of

appeal under Rule 4(a)(4)(A). Instead, the Demarees filed a

motion to seal on May 21, 2014 and lodged their Rule 59

motion the same day, allowing themselves the option not to

file it in the future. Beyond the exceptions contained in

Appellate Rule 4 (in this case the filing of a Rule 59 motion),

“[w]e do not have authority . . . to create additional

exceptions based on our own sense of what is equitable or

fair.” Melendres v. Maricopa Cty., 815 F.3d 645, 649 (9th

Cir. 2016). Our court is, quite simply, not “at liberty to

overlook a defect with the notice of appeal[,] no matter how

compelling an appellant’s argument may be.” Id. “If properly

invoked, mandatoryclaim-processing rules must be enforced,

but they may be waived or forfeited.” Hamer, 138 S. Ct. at 17

(emphasis added).

2 Therefore, neither the fact that it may be

2 There is no question the Defendants did not waive or forfeit this

argument: “The Demarees filed a timely Notice of Appeal (ER 19) as to

postjudgment orders (ER 1,3), but not as to the Judgment (ER 4).”

DEMAREE V. PEDERSON 33

a sympathetic situation, nor the fact that the district court

addressed the merits of a lodged motion, are exceptions we

can invoke to create authority to hear a case where there is

none. The notice of appeal was not filed on time because the

underlying Rule 59 motion was never actually filed with the

district court.

The majority errs in its effort to remedy the situation,

because there is a fundamental difference between a “filed”

document and a “lodged” document; a “lodged” document is

not before the court for consideration. “A document not

suitable for filing will normally be stamped ‘lodged’ and

placed in the court file but not included in the record on

appeal.” File, Black’s Law Dictionary (10th ed. 2014). As

such, authority over this appeal is precluded by operation of

law.

We have previously addressed whether “lodged” filings

are before the court and considered “filed” for purposes of

litigation. The short answer is no. InNicholson v. Hyannis Air

Serv., Inc., 580 F.3d 1116 (9th Cir. 2009), the plaintiff had

moved to file a sur-reply (which had a crucial employee

handbook as an exhibit) with the district court. Id. at 1127

n.5. The sur-reply was considered “lodged” while the district

court considered the motion to file the sur-reply. Id.

Ultimately the district court denied the motion to file the surreply

and, on appeal, we held that a merely “lodged”

document is not part of the record for appeal. Id.; see also

Barcamerica Int’l USA Trust v. Tyfield Importers, Inc.,

289 F.3d 589, 595 (9th Cir. 2002) (holding that while

arguments that lodged documents were before the court were

“interesting,” they were nonetheless meritless because a

lodged document was not filed); Levald, Inc. v. City of Palm

Desert, 998 F.2d 680, 684 n.1 (9th Cir. 1993) (holding an

34 DEMAREE V. PEDERSON

amended complaint was not part of the record on appeal

because it was “lodged with, but not accepted for filing by,

the district court”). These cases are on point and explicitly

resolve whether a “lodged” document is considered “filed.”3

The Demarees did not “file” the motion for reconsideration.

It was lodged while awaiting a ruling on the motion to file

under seal. After denial, the motion was considered to never

have been filed, and, thus, it did not toll the time to file a

notice of appeal per Appellate Rule 4(a)(4)(A).

The cases, cited by the Majority, also reflect this

understanding. Those cases each demonstrate that a plaintiff

(affirmatively seeking to actually publicly file a document) is

not barred from filing due to either technical difficulties or a

filing fee waiver request. In Klemm v. Astrue, 543 F.3d 1139

(9th Cir. 2008), and Ordonez v. Johnson, 254 F.3d 814 (9th

Cir. 2001), the plaintiffs sought to file the complaint or

administrative appeal, but were barred by technical rules

regarding how to file. Klemm, 543 F.3d at 1143 (“Thus, a

notice of appeal is filed when it is received by the clerk,

notwithstanding deficiencies in form that violate local rules.”

(emphasis added)); Ordonez, 254 F.3d at 816 (holding that

paper filing, instead of electronic filing per the local rule,

meant the complaint was “constructively filed”). Similarly,

the plaintiff in Escobedo v. Applebees, 787 F.3d 1226 (9th

3 The Majority mischaracterizes these cases, suggesting they are

inapplicable because the question before the panel is timeliness, not a

question of the evidentiary record on appeal. Indeed, by the same

reasoning, the Majority’s cases are inapplicable because they involve

complaints or administrative appeals, not Rule 59 motions. The proper

question is whether a given document was properly before the court or

not; i.e., whether it was “filed” or “lodged.” In this regard, Nicholson,

Barcamerica, and Levald are on point, because they answer whether a

“lodged” document is “filed”: the precise question before the panel.

DEMAREE V. PEDERSON 35

Cir. 2015), sought to actually file her complaint; the filing

barrier was her request to file without paying the filing fee.

Id. at 1231–33 (“No justification exists to alter the definition

of ‘filing’ simply because a complaint is submitted to the

clerk’s office along with an IFP application.”). Unlike this

case, the plaintiffs in Klemm, Ordonez, and Escobedo did not

“lodge” their complaints or motions while awaiting filing or

a ruling. Further, the plaintiffs in those cases each sought to

file their complaint as is, not under seal, or if the motion to

seal was denied, revised so as to protect the information they

initially sought to place under seal.

Here, the Demarees understood that the motion was not

actually before the court. The Arizona District Court’s local

rules (AZ LR) specifically require a movant seeking to file a

document under seal to file the motion to file under seal and

“[t]he document or documents that are the subject of any such

motion or stipulation must not be appended to the motion or

stipulation, and must be lodged with the Court separately.”

AZ LR 5.6(b) (emphasis added). The consequences of the

court denying a request to file under seal are explicit: “[i]f a

request to file under seal is denied in part or in full, the

lodged document will not be filed.” AZ LR 5.6(c) (emphasis

added). Further, if the court does deny a request to file under

seal, the party has five days to file the motion publicly. AZ

LR 5.6(e). There can be no question the Demarees knew their

document was not filed.

By seeking to file under seal, it is obvious that the

Demarees did not want the motion publicly filed. After the

District Court rejected the Plaintiffs’ motion, it was the

Plaintiffs’ decision to (1) file publicly; (2) revise and file

publicly; or (3) not file the motion. It was the Demarees’

decision and the local rule respects that right.

36 DEMAREE V. PEDERSON

To accord the Plaintiffs “an out,” the Majority argues it

has authority over this case by giving credence to the fact that

the district court comments on the merits of the lodged

motion in its denial of the Demarees’ motion to seal. In

response, the Majority, first, cites no actual legal authority for

this argument, because there is none. Second, although the

district court discusses the merits of the lodged motion, the

ultimate ruling is that the “Motions to Seal (Doc. 363 and

370) are DENIED.”4 Third, the Rule 59 motion was never

actually before the district court in order for it to consider the

motion. The local rule required that the lodged motion “must

not be appended to the motion [to seal].” AZ LR 5.6(b)

(emphasis added). Accordingly, the district court could only

consider the merits of only the motion to seal because that

was the only document before it. Indeed, the lodged

document, in essence, disappears if the motion to seal is

denied: “[i]f a request to file under seal is denied in part or in

full, the lodged document will not be filed.” AZ LR 5.6(e)

(emphasis added). Although, generally, “[a] paper is filed by

delivering it: (A) to the clerk,” Fed. R. Civ. P. 5(d)(2)(A), the

Demarees did not “deliver[]” the Rule 59 motion “to the

clerk” to file it. Id. By lodging the document, the Demarees

explicitly stated they wanted it to remain unfiled until the

4 Document 363 was a motion to file under seal to supplement the

record in support of their Rule 59 motion and Document 370 was the

motion to file the Rule 59 motion under seal.

Further, the Demarees have not appealed the district court’s denial of

their motions to seal arguing the district court abused its discretion by not

considering the merits of the sealing, but rather to deny the motion to seal

based on the merits of the lodged Rule 59 motion. This issue, thus, is

waived on appeal. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)

(“[O]n appeal, arguments not raised by a party in its opening brief are

deemed waived.”).

DEMAREE V. PEDERSON 37

district court granted the motion to seal. After the district

court denied their motion to seal, the Demarees had five days

to file their document publicly, which they did not do.5 AZ

LR 5.6(e). Thus, the document was never before the district

court to consider, much less somehow confer authority on this

court by considering the merits of a lodged motion.

Accordingly, this case is not properly before us for lack

of jurisdiction and timely filing of a tolling motion.

BERZON, Circuit Judge, concurring:

I concur in the per curiam opinion in full. I write

separately to emphasize why it is essential that the courts

scrupulously guard a child’s constitutional right to remain at

home absent a court order or true exigency.

Taking a child from his or her home, family, and

community constitutes a separate trauma, in and of itself.

Our cases so recognize, and so ordinarily permit that trauma

to occur only after a court determination that the alternative

is worse.

5

If the Demarees had filed their Rule 59 motion publicly within five

days after the district court entered its denial, they would have a much

stronger argument that their situation was akin to the plaintiffinEscobedo,

where the district court gave the plaintiff thirty days to pay her filing fee

after denying her motion to proceed without paying it. Escobedo, 787 F.3d

at 1228. Escobedo paid the filing fee within the deadline set by the district

court and, on appeal, this court held the filing was timely. Id. at 1233–34.

This, however, is not what the Demarees did.

38 DEMAREE V. PEDERSON

Nearly two decades ago, we described the purposes

underlying constitutional restrictions on removal of children

from their homes without any judicial supervision:

The problem of child abuse is a critical one,

with deep personal and social costs. For too

long, intra-familial sexual abuse was

considered to be a “private” matter. Today,

the law is changing. . . .

Because the swing of every pendulum brings

with it potential adverse consequences, it is

important to emphasize that in the area of

child abuse, as with the investigation and

prosecution of all crimes, the state is

constrained by the substantive and procedural

guarantees of the Constitution. The fact that

the suspected crime maybe heinous—whether

it involves children or adults—does not

provide cause for the state to ignore the rights

of the accused or any other parties.

Otherwise, serious injustices may result. In

cases of alleged child abuse, governmental

failure to abide by constitutional constraints

may have deleterious long-term consequences

for the child and, indeed, for the entire family.

Ill-considered and improper governmental

action may create significant injury where no

problem of any kind previously existed.

Wallis v. Spencer, 202 F.3d 1126, 1130–31 (9th Cir. 2000).

In other words, for children in neglect and abuse

proceedings, “entry into foster care br[ings] them the

DEMAREE V. PEDERSON 39

additional trauma of separation from their homes and often

their communities.” 42 U.S.C. § 5111(a)(2) (findings

supporting the federal Child Abuse Prevention and Treatment

Act). “The events of the day of placement constitute a crisis

for children because everything in their lives changes and the

children are overwhelmed with feelings of abandonment,

rejection, worthlessness, guilt, and helplessness.” Rosalind

D. Folman, “I Was Tooken”: How Children Experience

Removal from Their Parents Preliminary to Placement into

Foster Care, ADOPTION QUARTERLY, no. 2, 1998, at 7, 12

(evaluating the experiences of 90 children removed from their

homes as a result of abuse and neglect).

Research confirms that “unexpectedly being snatched by

the police or protective service workers traumatize[s] . . .

children.” Id. at 29; see also Amy J.L. Baker et al., Foster

Children’s Views of Their Birth Parents: A Review of the

Literature, 67 CHILDREN AND YOUTH SERVS. REV. 177,

180–81 (2016) (conducting a meta-analysis of 27 studies of

the experiences of children and youth in foster care, and

finding strong evidence that children remain attached to their

homes and families despite abuse). For small children

especially, being taken from a home and family by a stranger

is a profoundlyfrightening and destabilizing experience, even

if that home and family are flawed.

By assuring close judicial supervision of even temporary

governmental interference in the parent-child

relationship—absent reasonable cause to believe a true,

identifiable, serious exigency exists—our case law

implements the Fourth and Fourteenth Amendment’s

protection of vulnerable children and their parents. Because

our decision today reaffirms that critical principle, I concur.

40 DEMAREE V. PEDERSON

ZOUHARY, District Judge, concurring and dissenting in

part:

I concur in the per curiam Opinion regarding the

timeliness of the appeal and the district court denial of the

motion to seal the summary judgment opinion. But I

respectfully dissent from the majority view on the merits of

the case. I would affirm the district court order granting

summary judgment based on qualified immunity.

Constitutional Violations

A government official who removes a child from parental

custody without judicial authorization must have reasonable

cause to believe that the child is at risk of abuse during the

time necessary to obtain a court order. Rogers v. Cty. of San

Joaquin, 487 F.3d 1288, 1294–95 (9th Cir. 2007). Thus,

whether an emergency removal is permitted depends on both

the amount of time required to obtain a warrant and the nature

of the allegations.

In cases where children were not in immediate physical

danger and a warrant could be obtained “within hours,” this

Court concluded that the exigent circumstances requirement

was not met. See Rogers, 487 F.3d at 1295 (“There is no

indication in the record that so short a delay could have

resulted in a significant worsening of the children’s physical

conditions or an increase in the prospects of long-term

harm.”); Mabe v. San Bernardino Cty., 237 F.3d 1101, 1108

(9th Cir. 2001) (holding questions of fact remained on the

issues of exigent circumstances, given that the sexual abuse

last occurred more than a month before the removal, and a

warrant likely could have been obtained within “a few

hours”).

DEMAREE V. PEDERSON 41

In this case, Pederson presented evidence that obtaining

a court order would take her days, not hours. Assuming, as

the majority suggests, that Pederson could have obtained a

warrant on a pre-hearing motion for pickup—which neither

side argued before the district court—the earliest she could

have been heard was the Tuesday following the Labor Day

holiday. Against this time line, Pederson had to evaluate the

following information:

• A Walmart employee was concerned

when he discovered photos of naked

children on the Demarees’ memory stick,

and he notified the police;

• Krause reviewed the photos, interviewed

the parents, served a search warrant at the

Demarees’ residence, and seized various

cameras, computers, film, and other

photos;

• The children were interviewed and

medically examined. During the forensic

interview, one of the children reported

that their mother “tickle[d] around her

private.” The interviewer recommended

that the children have no contact with

their father pending completion of the

investigation;1

1

As both the majority and the district court note, Pederson and Van

Ness do not suggest they relied on the results of the forensic interview in

making the decision to remove the children. Nevertheless, the record

reflects that Pederson was aware of this information at the time.

42 DEMAREE V. PEDERSON

• The physical exams were all normal, but

the assessment noted that “[a] normal

genital exam does not preclude the

possibility of inappropriate sexual contact

[sic] the concern described in the history.

Many types of sexual abuse do not have

associated physical findings significant

enough to be found on medical exam;”

• Krause informed Pederson that at least

five of the photos met the statutory

definition of sexual exploitation of a

minor, and he planned to charge both

parents with five felony counts of sexual

exploitation of a minor;

• Pederson reviewed the edited black and

white copies of the photos and determined

that the children were nude, with their

genitals exposed to the camera, and some

of the images appeared posed.

Pederson later explained the significance of her belief that

the children (ages five, four, and 19 months) appeared to be

posed: “I would be very concerned if children were posing in

provocative manners without clothing on themselves. That

would concern me as to what they’ve observed in their . . .

home.”

At the time of the removal, then, Pederson knew that there

were “[s]erious allegations of abuse” against the Demarees,

which she investigated and corroborated by reviewing the

photos, speakingwith Shearer about the results of the forensic

interview and medical exams, and conferring with Krause

DEMAREE V. PEDERSON 43

about the potential criminal charges. Rogers, 487 F.3d at

1294. These circumstances “usually give rise to a ‘reasonable

inference of imminent danger sufficient to justify taking

children into temporary custody,’” if the children might be at

risk during the time required to obtain a removal order. Id.

The majority concludes, and I agree, that the only

“articulated” risk to the children is that the parents would take

more sexually explicit photos of them. This may not have

been the only “articulable” risk, in light of the forensic

interview report, but the record is clear that Pederson

summarily identified the “sexually explicit pictures” as the

basis for the emergency removal. She also provided the

parents with a notice informing them that they were under

i n v e st i g a t i o n f o r “ s e x u a l a b u s e — c h i l d

pornography/exploitation.” Nevertheless, viewing the facts

in the light most favorable to the Demarees, a jury could

conclude that the children faced no immediate danger of

abuse, and it was safe to leave them with their parents over

the holiday weekend. Accordingly, that same jury could find

that Pederson and Van Ness committed a constitutional

violation by removing the children under non-exigent

circumstances without a court order. I therefore concur in

this portion of the per curiam Opinion. But this is not the end

of the inquiry.

Clearly Established Law

The second prong of the qualified immunity analysis is

whether the right at issue was clearly established. In

determining whether a right is clearly established, “[w]e do

not require a case directly on point.” Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011). At the same time, the Supreme

Court has “repeatedly told courts—and the Ninth Circuit in

44 DEMAREE V. PEDERSON

particular—not to define clearly established law at a high

level of generality.” Id. at 742 (citation omitted). Neither the

parties nor the majority identify any circuit precedent that

addresses whether an emergency removal is justified under

circumstances like these, where the type of abuse alleged is

sexual exploitation, and it would take a social worker at least

several days to obtain a removal order.

I disagree with the majority’s view of Malik v. Arapahoe

County Department of Social Services, 191 F.3d 1306 (10th

Cir. 1999). In that case, the social worker had a court order

(albeit one based on “misrepresentation and omission”) to

remove the child, and the defendants conceded there was no

imminent danger of abuse. Id. at 1311–12. The court

therefore devoted little consideration to the question of

exigency, see id. at 1315 n.5:

Our conclusion that disputed facts as viewed

by the district court in the light most favorable

to plaintiffs-appellees support a conclusion

that defendants violated clearly established

law by no means restricts the authority of law

enforcement and child protective officers to

seek protective custody of a child when they

have legitimate concerns for the child’s

safety. Rather, our conclusion hinges upon

the district court’s finding that “[d]efendants

acknowledged Julie was in no imminent

danger at the time they sought the order and

the facts suggest it was secured only through

distortion, misrepresentation and omission.”

Further, in Malik, the photos at issue were five months

old, and the child’s uncle, who took the photos, lived out of

DEMAREE V. PEDERSON 45

state. Law enforcement officials had also been in contact

with the child’s mother and her attorney for about two weeks

before seeking a temporary custody order, which supports the

conclusion that they did not consider the case an emergency.

In contrast, in this case, both parents lived in the home

and were subjects of an ongoing criminal investigation. They

admitted to regularly taking nude photos of the children—in

fact, A.J. initially thought Krause wanted to question him

about additional photos that were not included in the set

obtained from Walmart.2 CPS then became involved less

than twenty-four hours after the photos were first discovered,

and Pederson, Van Ness, and Krause all agreed that

emergencyremoval was appropriate under the circumstances.

Despite the absence of authority directly on point, the

majority concludes that it was nevertheless “beyond debate”

in 2008 that an emergency removal is only justified to protect

a child from “imminent physical injury or molestation,” and

“[t]he risk identified here simply does not meet that standard,

as it does not involve physical injury or abuse.” Per curiam

Op. at 25–26. I respectfully disagree for two reasons.

First, framing the issue in this way overlooks another

well-established formulation of the standard, one which is

quoted earlier in the Opinion: “Serious allegations of abuse

that have been investigated and corroborated usually give rise

to a ‘reasonable inference of imminent danger sufficient to

justify taking children into temporary custody’ . . . .” Rogers,

2 The majority seems to suggest that there was no further risk of

exploitation because the police seized the Demarees’ photography

equipment. This fact is not determinative. Even in 2008, cameras could

be easily, legally, and inexpensively obtained from a variety of vendors.

46 DEMAREE V. PEDERSON

487 F.3d at 1294 (emphasis added) (quoting Ram v. Rubin,

118 F.3d 1306, 1311 (9th Cir. 1997)). In most cases, a

serious allegation of abuse may be synonymous with a risk of

physical injury. Yet I do not interpret the majority to suggest

that allegations of sexual exploitation or child pornography

are not “serious.”

Here, Pederson investigated and corroborated a serious

allegation of abuse. True, it did not necessarily involve

traditional physical injury. But the record reflects that the

nature of the concern—sexually explicit photos—is not

limited to snapping a picture. In other words, the potential

danger was not that the Demarees would take more naked

pictures of the girls; rather, the risk was that the parents were

sexually exploiting their children. As Pederson explained,

inherent in this allegation is the concern that there is more to

the situation than meets the eye—for example, that the

parents may have posed the children, or that the children may

have adopted provocative poses based on behavior observed

in the home. Without the benefit of clearer guidance defining

the “usual” case, a reasonable social worker could be unsure

how to proceed under these circumstances.

Second, the majority treats the nature of the risk and the

time required to obtain a warrant as entirely distinct

considerations. I do not consider them so easily separated.

Ninth Circuit authority in this area rightly focuses on whether

the threat to a child’s safety is sufficiently “imminent” to

justify immediate removal, without waiting for court

approval. See, e.g., Kirkpatrick v. Cty. of Washoe, 843 F.3d

784, 791 (9th Cir. 2016) (en banc) (“[T]he social workers

here lacked cause to forgo a warrant if they had adequate time

to pursue one through the ordinary judicial process without

risking [the child’s] well-being.”). This is because in the

DEMAREE V. PEDERSON 47

typical case, judicial review is available “within hours.” The

analysis therefore naturally focuses on whether the

allegations of abuse are both severe and urgent enough that it

is unacceptable to allow the child to remain in the home for

even a short period of time.

This case is unique: no judicial review was available for

at least several days. And this fact is both critical and,

perhaps, unlikely to be repeated. As the majority correctly

notes, certain allegations of abuse or neglect might lead a

reasonable social worker to feel comfortable leaving a child

in the custody of his parents for just a few hours. See, e.g.,

Rogers, 487 F.3d at 1291 (bottle rot and other chronic

neglect); Mabe, 237 F.3d at 1104–05 (sexual abuse only

taking place at night). But this Court has not had occasion to

consider whether those same allegations might be cause for

concern if the delay were extended to a few days. No one

wants to inflict unnecessary trauma on children, see

Concurring Op. of Berzon, J., at 38–39, but surely this worthy

consideration must be balanced by protecting their physical

well-being in those cases where it is actually threatened. All

involved in the child welfare system would be well served by

clear legal standards from this Court to assist social workers

in making these difficult decisions.

Pederson faced a tough judgment call on that Saturday

night: she could err on the side of caution and take the

children into temporary custody, or she could wait three days

until the courts reopened to seek a removal order. In August

2008, it was clearly established that a child could not be

removed from the home without a court order, absent

evidence that the child was in imminent danger of abuse. See

Kirkpatrick, 843 F.3d at 792 (citing cases). But it was not

“beyond debate that the confluence of factors set forth above

48 DEMAREE V. PEDERSON

would not support a finding of exigency.” Id. at 793. No

Ninth Circuit authority addresses whether removing a child

during an ongoing criminal investigation “crosse[s] the line

of reasonableness” when the courts are closed for several

days, and judicial review is simply not available. Id.

Without fair notice, I would hold that Pederson and Van

Ness are entitled to qualified immunity for removing the

children without a court order. I therefore respectfully

dissent from this portion of the per curiam Opinion.

Affirmed in part, reversed in part and remanded.