Parents and children possess a constitutionally protected liberty interest in companionship and society with each other. Smith v. City of Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (en banc). In Kelson v. City of Springfield, 767 F.2d 651 (9th Cir. 1985), the Ninth Circuit held that the state’s interference with such liberty interest without due process of law is cognizable under 42 U.S.C.  § 1983. Id. at 654 (holding that parents of 14-year-old who committed suicide in school had stated claim of deprivation of parental rights). The protected liberty interest is independently held by the parent or child—it is not a right to sue on behalf of the decedent or other injured child or parent. Id. at 653 n. 2. The Ninth Circuit later clarified that a parent’s right implicates both a custodial and a companionship interest, either of which, when interfered with by the state, gives rise to a cognizable Fourteenth Amendment due process claim. City of Fontana, 818 F.2d at 1419; see, e.g.Strandberg v. City of Helena, 791 F.2d 744, 748 n.1 (9th Cir. 1986) (recognizing that while parents of deceased 22-year-old son had no deprivation claim of the right to parent, they had claim for violation of their due process rights in companionship and society of their adult son). The Ninth Circuit has held that a parent’s liberty interest is neither binary nor automatic, but rather becomes judicially enforceable only when the parent “demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of [the] child.” Kirkpatrick v. Washoe County, 843 F.3d 784, 789 (9th Cir. 2016) (en banc). Similarly, children, including adult children, may assert a Fourteenth Amendment claim based on the deprivation of their liberty interest arising out of their relationship with their parent. Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 (9th Cir. 1998). However, siblings cannot bring claims under the Fourteenth Amendment for the deprivation of their liberty interest arising out of their relationship with their sibling. Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir. 1991), as amended on denial of reh’g (June 16, 1992).  In Dees v. Cty. of San Diego, 960 F.3d 1145, 1152 (9th Cir. 2020), the Ninth Circuit held that a Fourteenth Amendment claim based on a minor being separated from his or her parents requires a plaintiff to establish that an actual loss of custody occurred, rather than the mere threat of separation.

A claim of interference with the parent/child relationship may be brought as either a procedural due process claim or a substantive due process claim. Whether a claim is procedural or substantive depends on whether the state action was “for the purpose of furthering legitimate state interests.” City of Fontana, 818 F.2d at 1419. “When the state has a legitimate interest in interfering with a parent-child relationship, for example, where the best interests of the child arguably warrants termination of the parent’s custodial rights, the state may legitimately interfere so long as it provides ‘fundamentally fair procedures.’” Id. (quoting Santosky v. Kramer, 455 U.S. 745, 754 (1982)) (emphasis in original). Conversely, when the interference was “for the purposes of oppression,” the substantive due process analysis applies. Id. (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). Each type of claim is evaluated under a distinct standard.

Procedural due process claims typically arise when a state official removes a child from her parent’s care. For such claims, “[t]he Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies.” Rogers v. County of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007) (quoting Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir. 2001)). This right is violated if the removal is done without either a court order or “reasonable cause to believe that the child is in imminent danger of serious bodily injury.” Id. (quoting Mabe, 237 F.3d at 1106). Generally, this inquiry will be “equivalent” to an examination of the child’s Fourth Amendment rights. See Kirkpatrick v. County of Washoe, 843 F.3d 784, 789 (9th Cir. 2016) (en banc) (citing Wallis v. Spencer, 202 F.3d 1126, 1137 n.8 (9th Cir. 1999)). No instruction is provided for such a claim, but guidance may be found in the Ninth Circuit’s en banc decision in Kirkpatrick, 843 F.3d 784, and the cases cited there, which described a claim using this standard without explicitly identifying it as a procedural due process claim, as opposed to a substantive due process one. See also Demaree v. Pederson, 880 F.3d 1066 (9th Cir. 2018); Keates v. Koile, 883 F.3d 1228, 1237-38 (9th Cir. 2018) (“[O]ur case law clearly establishes that the rights of parents and children to familial association under the Fourteenth, First, and Fourth Amendments are violated if a state official removes children from their parents without their consent, and without a court order, unless information at the time of the seizure, after reasonable investigation, establishes reasonable cause to believe that the child is in imminent danger of serious bodily injury, and the scope, degree, and duration of the intrusion are reasonably necessary to avert the specific injury at issue.”).

Substantive due process claims typically involve egregious conduct or the use of excessive force. But official conduct only violates substantive due process when it “shocks the conscience.” Gantt v. City of Los Angeles, 717 F.3d 702, 707 (9th Cir. 2013) (citing Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010)). Under the overarching test of whether the official’s conduct “shocks the conscience” are two standards: the more demanding “purpose to harm” standard and the lesser “deliberate indifference” standard. Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) (applying purpose to harm standard when police officer killed suspect during quickly escalating investigation of suspicious vehicle). To determine which of the two standards govern, courts look at the context of the events leading to the deprivation. See id. The critical consideration is whether the circumstances are such that actual deliberation by the officer is practical. Hayes v. County of San Diego, 736 F.3d 1223, 1230 (9th Cir. 2013). “Where actual deliberation is practical, then an officer’s ‘deliberate indifference’ may suffice to shock the conscience. On the other hand, where a law enforcement officer makes a snap judgment because of an escalating situation, his conduct may only be found to shock the conscience if he acts with a purpose to harm unrelated to legitimate law enforcement objectives.” Wilkinson, 610 F.3d at 554 (citing Porter, 546 F.3d at 1137). See also Zion v. County of Orange, 874 F.3d 1072, 1076 (9th Cir. 2017) (holding jury could find that officer stomping head of suspect who no longer posed threat would “shock the conscience”).

Under the purpose to harm standard, “even precipitate recklessness fails to inch close enough to harmful purpose” to shock the conscience. County of Sacramento v. Lewis, 523 U.S. 833, 853 (1998) (finding no substantive due process violation when patrol car rammed and killed 16-year-old suspected offender following high-speed chase); compare A.D. v. Cal. Highway Patrol, 712 F.3d 446, 454 (9th Cir. 2013) (affirming jury finding that officer acted with purpose to harm by shooting twelve rounds at driver of stolen car), with Moreland, 159 F.3d at 373 (holding that officers, who accidentally shot and killed bystander while “responding to the extreme emergency of public gunfire,” did not act with purpose to harm); see also Nehad v. Browder, 929 F.3d 1125, 1140 (9th Cir. 2019) (concluding no purpose to harm despite unreasonable use of force because evidence showed no purpose for shooting other than self-defense). Because the purpose to harm standard is a subjective standard of culpability, to violate due process, an officer must act with “only an illegitimate purpose in mind,” such as bullying a suspect or getting even. Cal. Highway Patrol, 712 F.3d at 453.

Under the deliberate indifference standard, when “extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking.” Id. In Gantt, the Ninth Circuit approved the following definition of deliberate indifference:

Deliberate indifference is the conscious or reckless disregard of the consequences of one’s acts or omissions. It entails something more than negligence but is satisfied by something less than acts or omission for the very purpose of causing harm or with knowledge that harm will result.

717 F.3d at 708 (noting that if trial court had given only this portion of instruction, there would be no error).For cases applying this standard, see, for example, Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1081 (9th Cir. 2013) (holding there was triable issue of fact whether officers were deliberately indifferent by leaving mentally ill inmate unsupervised for three-hour period during which inmate committed suicide); Lolli v. County of Orange, 351 F.3d 410, 419-20 (9th Cir. 2003) (holding that reasonable jury could find deliberate indifference when officers denied medical attention to diabetic pretrial detainee); Lee v. City of Los Angeles, 250 F.3d 668, 684-86 (9th Cir. 2001) (holding plaintiff mother sufficiently pleaded deliberate indifference when son was falsely arrested and extradited to New York).

For a case that may blur the distinction between procedural and substantive due process, see Mann v. Cnty. of S. D., 907 F.3d 1154 (9th Cir. 2018) (holding that county violated parents’ Fourteenth Amendment substantive due process rights by performing medical examinations on parents’ children without notifying parents and without obtaining either parents’ consent or judicial authorization).


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