[00:00:12] Speaker 00:
picture this.

[00:00:13] Speaker 00:
You're Miss Hughes.

[00:00:15] Speaker 00:
You're at the Hartley doorstep for an unplanned check of the kids' safety, and you're in the middle of utter chaos.

[00:00:22] Speaker 00:
Hartley has lied to you about the kids being present.

[00:00:26] Speaker 00:
She's slammed the door in your face.

[00:00:27] Speaker 00:
She's preventing you from talking to the kids independently.

[00:00:31] Speaker 00:
She's screaming at the kids through the door, telling them to lie about Ortiz, Juan Ortiz accessing the house.

[00:00:38] Speaker 00:
You know that Ortiz is a domestic abuser who last

[00:00:51] Speaker 00:
pill bottle, a burning smell, you've called the cops to help you.

[00:00:56] Speaker 01:
On the non-emergency line.

[00:00:58] Speaker 01:
I mean, if it was such an emergency, why is she not calling 911?

[00:01:01] Speaker 00:
Well, there wasn't a crime in progress, but there was an emergency.

[00:01:05] Speaker 00:
And so she made the decision to call the cops to get the help to even see if the kids were safe at all.

[00:01:12] Speaker 00:
The cops come because you don't know who's in the house.

[00:01:15] Speaker 00:
They come, they tell you that Ortiz has an unserved order of protection.

[00:01:20] Speaker 00:
that on now on top of the fact that you hear that Ortiz has been accessing the house because Hartley has told the kids to lie about that and along with Hartley screaming at you telling you to leave telling the kids not not to tell you about Ortiz and things are so chaotic that the cops feel the need to bust the door down to find out

[00:02:23] Speaker 01:
That would be a different case.

[00:02:51] Speaker 01:
Arizona by the legislature's, you know, lassitude or creating this odd obstacle can sort of leverage constitutional violations.

[00:03:02] Speaker 01:
That doesn't seem like a good set of incentives.

[00:03:05] Speaker 00:
Well, that's, I mean, that's not the law anymore.

[00:03:07] Speaker 00:
The law was changed in Arizona after this case.

[00:03:10] Speaker 01:
We're warning them for having, you know, potentially a constitutionally dubious system.

[00:03:16] Speaker 01:
If it creates, if having this law creates

[00:03:42] Speaker 00:
situation right then right now knowing that there's no warrant possibility in the next couple of hours at all and they're standing there in this chaotic situation they take out the Rogers case they read it and in the middle of that they're trying to read they're not doing this but imagine if they had read the Rogers case would it tell them beyond debate that if you remove the kids from this scene

[00:04:12] Speaker 00:
violation of the law.

[00:04:15] Speaker 00:
Rogers doesn't tell them that.

[00:04:17] Speaker 00:
It doesn't guide them about a known domestic abuser accessing the home.

[00:04:22] Speaker 00:
It doesn't guide them what to do when no warrant is available.

[00:04:26] Speaker 00:
It doesn't guide them when they're only now facing these horrible, stressful, tense, chaotic, neglectful conditions because the prior planned visits that she had seen in

[00:04:42] Speaker 00:
This is not that type of a case.

[00:04:45] Speaker 00:
Rogers didn't guide these social workers about any of this.

[00:04:50] Speaker 00:
It didn't put the question beyond debate.

[00:04:53] Speaker 00:
And that's exactly why the district court aired.

[00:05:19] Speaker 00:
In Lee, a motion for pickup was filed with the dependency petition.

[00:05:28] Speaker 00:
In none of the Arizona cases was a motion for pickup filed on the day of the incident at the time when they're standing in all of these chaotic conditions.

[00:05:38] Speaker 00:
And in fact, in Lee, the removal was not made until after the dependency petition was filed, and after the motion for pickup, it was about a week later.

[00:05:52] Speaker 00:
There, we're asking, in the Rogers case, they're saying if you can pick up the kids within a, or have a warrant within a number of hours, and there's only, the only incidents that you're facing

[00:06:35] Speaker 00:
considering the fact that Ortiz is a known domestic abuser, Hartley is screaming to the kids through the door, don't tell them that he's coming around, so they know he's coming around, they know he's a domestic abuser, and now they know that there's an unserved order of protection, which means that Hartley isn't protecting the kids from this serious risk.

[00:07:00] Speaker 00:
Can you imagine what would happen, they're there at 11 o'clock,

[00:07:04] Speaker 00:
They leave the kids because they're not sure what to do.

[00:07:08] Speaker 00:
Ortiz comes by at 2 or 5 or 9 p.m.

[00:07:12] Speaker 00:
or the next day or this weekend, and he abuses or, you know, assaults one of the kids.

[00:07:18] Speaker 00:
They're damned if they do and damned if they don't.

[00:07:21] Speaker 00:
Rogers did not put this issue... Who's responsible for serving that order?

[00:07:28] Speaker 00:
I'm not sure who's responsible for serving that order, but the important point is that

[00:07:33] Speaker 00:
Ms.

[00:07:34] Speaker 00:
Hughes, when she was on, at the time, on the threshold of this doorstep, she didn't know that Ms.

[00:07:44] Speaker 00:
Hartley was confused about who to serve.

[00:07:47] Speaker 00:
All she knows is that it wasn't served and that he's coming around and that he's a known domestic abuser.

[00:08:11] Speaker 00:
violating the law when she removes the kids for their safety.

[00:08:17] Speaker 01:
How is this different?

[00:08:26] Speaker 00:
We don't in Rogers we don't have the domestic abuser.

[00:08:40] Speaker 00:
a warrant within a couple hours.

[00:08:42] Speaker 00:
We don't have any of that.

[00:09:08] Speaker 00:
Well, I'm not sure, respectfully, I'm not sure the district court has so much better knowledge than a juvenile court would have.

[00:09:16] Speaker 00:
They're completely different things.

[00:09:19] Speaker 00:
And all that the district court cited was the Lee case.

[00:09:23] Speaker 00:
And in Lee, and frankly, all of the Arizona cases, there never was a motion for pickup before a dependency petition was filed.

[00:09:33] Speaker 00:
There was never a motion for pickup on the same day.

[00:09:39] Speaker 00:
evidence and there's no law that that says these case workers standing on the doorstep of this chaos could wait just a couple hours and get a warrant.

[00:09:51] Speaker 00:
They couldn't.

[00:09:52] Speaker 01:
Well, that's, I hear it, I certainly read your brave hear the argument today and yet I watch courts respond rapidly in lots of contexts and it's just hard for me to

[00:10:15] Speaker 01:
to what is a dramatic, true emergency.

[00:10:20] Speaker 00:
And... Well, remember, back in 2014, you know, you had to file a dependency petition to get an order.

[00:10:29] Speaker 00:
And you can't... These social workers aren't going to run to the courthouse and file a dependency petition.

[00:10:36] Speaker 00:
They've got to get with their team.

[00:10:37] Speaker 00:
They have to make the decision, along with the family, to file an actual dependency.

[00:10:43] Speaker 00:
Then they have to get the attorney general

[00:10:45] Speaker 00:
to do the paperwork.

[00:10:47] Speaker 01:
The truth to the facts is something dramatic and in this case they catch the mother with a knife to the throat of a child.

[00:10:55] Speaker 01:
You're telling me the same thing is that they're not going to do anything because they can't get the paperwork done in less than a week?

[00:11:01] Speaker 00:
No, what I'm telling you is they're going to remove the children and they're going to sure get qualified immunity for it.

[00:11:07] Speaker 00:
They're going to remove the children just like these case workers did in this case.

[00:11:16] Speaker 00:
If you have no other questions, I will save the rest of my argument for rebuttal.

[00:11:21] Speaker ?:
All right.

[00:11:21] Speaker 00:
Thank you.

[00:11:21] Speaker 00:
Thank you, Counsel.

[00:11:23] Speaker 01:
And we'll hear now from Mr. Vinn.

[00:11:27] Speaker 01:
Did I pronounce that correctly?

[00:11:28] Speaker 01:
You did, Your Honor.

[00:11:30] Speaker 01:
Can we have police support?

[00:11:31] Speaker 01:
Good morning.

[00:11:32] Speaker 01:
I'm Martin Vinn.

[00:11:32] Speaker 01:
This is my partner, Donna McDaniel.

[00:11:35] Speaker 01:
We heard this is the defendant's version of this.

[00:11:39] Speaker 01:
This is a chaotic situation.

[00:11:41] Speaker 01:
But a chaotic situation is not what the standard is in a Ninth Circuit.

[00:11:45] Speaker 01:
What we have to show

[00:11:48] Speaker 01:
a significant injury.

[00:11:50] Speaker 01:
We don't have that.

[00:11:51] Speaker 01:
We never did.

[00:12:44] Speaker 01:
and pit bulls running around, it's not.

[00:12:46] Speaker 01:
That's not an issue here.

[00:13:50] Speaker 01:
I say questions about the wisdom and confidence and constitutionality of the substance of Arizona law, but the question remains is can you point us to a statute or rule

[00:14:23] Speaker 01:
They didn't have that.

[00:14:25] Speaker 01:
In Arizona, the child protective statutes didn't have any provision like that in them.

[00:14:31] Speaker 01:
In 2017, they put that in.

[00:14:33] Speaker 01:
However, they have hundreds of lawyers at the Attorney General's office, a significant number, do the DCS cases.

[00:14:40] Speaker 01:
Certainly, they could have gotten hold of one and said, we have an issue.

[00:14:55] Speaker 01:
actual emergency simply going to your lawyers and asking to go to court does not seem out of the realm of possibilities.

[00:15:04] Speaker 01:
They just didn't even consider that.

[00:15:06] Speaker 01:
This wasn't where they sat back and said, well, it's going to be four hours or four days or four months.

[00:15:11] Speaker 01:
Let's take the kids.

[00:15:13] Speaker 01:
The reality is,

[00:15:22] Speaker 01:
only for misuse misuse calls for supervisor calls the police tells the police she's there to take three kids which leads from our perspective the inference that yes they made the decision to take the

[00:15:53] Speaker 01:
they don't even when in deposition misuse was asked what was the serious risk of imminent harm and her answer to that was

[00:16:23] Speaker 01:
to get the protective order.

[00:16:25] Speaker 01:
She got that.

[00:16:27] Speaker 01:
But there was a reason for that.

[00:16:29] Speaker 01:
I don't have the order.

[00:16:30] Speaker 01:
I haven't seen it.

[00:16:30] Speaker 01:
I don't know what it was.

[00:16:32] Speaker 01:
She in her deposition testimony, she testified he'd never struck her.

[00:16:36] Speaker 01:
He had thrown a shoe.

[00:16:37] Speaker 01:
And I don't know if it's to get the children or her or whatever, but that's what her testimony was.

[00:16:41] Speaker 01:
He hadn't struck her.

[00:16:58] Speaker 01:
even the children who weren't even home then, she was concerned that those children would be at risk of bodily harm if they came back from the dirty conditions, presence of urine and dog feces on the floor and lice in excess to an open prescription bottle.

[00:17:16] Speaker 01:
That's it.

[00:17:17] Speaker 01:
That's not the serious physical danger that we're looking for.

[00:17:21] Speaker 01:
She does not talk about

[00:17:26] Speaker 01:
So I'm not sure how much debate or room for debate there is about the conditions.

[00:17:33] Speaker 01:
I mean, they got the order.

[00:17:36] Speaker 01:
And so as I hear your complaint, it's that they got it, what, six or seven days?

[00:17:54] Speaker 01:
misrepresentations in the petition, but set that aside.

[00:17:59] Speaker 01:
She couldn't contest it, or she was going to contest this petition, but from her perspective, when you're offered, do you want to go to trial?

[00:18:06] Speaker 01:
Do you want to get your kids back?

[00:18:08] Speaker 01:
Getting your kids back and admitting whatever you have to admit is the easy way to go, and that's what she did.

[00:18:13] Speaker 01:
Again, this is 10 years ago, but that's what happened.

[00:18:16] Speaker 01:
What I'm getting to is that the court, the state court, did issue the order

[00:18:30] Speaker 01:
How would things have been any different?

[00:18:32] Speaker 01:
I don't think they would have gotten it.

[00:18:34] Speaker 01:
Well, they got it a week later, why wouldn't they have gotten it the day of the event?

[00:18:38] Speaker 01:
Different standard than this.

[00:18:40] Speaker 01:
And also, when you're looking at these cases here, we've got, again, the emergency removal is the problem.

[00:18:46] Speaker 01:
Had they gone through and gotten their order like they did a week later, and they did this before,

[00:18:57] Speaker 01:
And the kids stay with mom, and the department comes in and makes sure everything is fine.

[00:19:01] Speaker 01:
That's what could have happened.

[00:19:03] Speaker 01:
But they'd already removed the children, taken them away from their mother, and they didn't come back for months and months.

[00:19:09] Speaker 01:
Yeah, I understand.

[00:19:10] Speaker 01:
They got a judge to grant their order within a week.

[00:19:15] Speaker 01:
And you're telling us the problem is that they didn't go in on the same day, but I can't see how the judge that granted the order a week later wouldn't have benefited anything more likely to do it if it was

[00:19:30] Speaker 01:
as to what the actual is.

[00:20:03] Speaker 01:
I don't understand that because the same judge decided at the time to sign off on what had happened.

[00:20:14] Speaker 01:
So it's hard for me to speculate that, well, maybe the judge would have decided on something.

[00:20:19] Speaker 01:
Fair enough.

[00:20:20] Speaker 01:
Fair enough.

[00:20:21] Speaker 01:
And so, again, what's the difference?

[00:20:24] Speaker 01:
The difference is maybe

[00:20:49] Speaker 01:
doesn't happen very quickly.

[00:20:50] Speaker 01:
Your kids are gone and that's it.

[00:20:53] Speaker 01:
Had she been able to have some notice come into court maybe, but it didn't work that way in Arizona.

[00:20:59] Speaker 01:
So the difference also is the way the kids are taken.

[00:21:22] Speaker 01:
The real issue with that was only this.

[00:21:25] Speaker 01:
Were there any circumstances allowing this part was removal?

[00:21:33] Speaker 01:
And that was key to our motion.

[00:21:35] Speaker 01:
It's also key to qualified immunity.

[00:21:38] Speaker 01:
So in the summary judgment ruling, the court wrote we were granted summary judgment, but only on qualified immunity.

[00:21:46] Speaker 01:
But then in the clarification wrote, the judge considered it

[00:21:55] Speaker 01:
like most favorite plaintiff and the defendant didn't pass muster in trying to get qualified immunity.

[00:22:01] Speaker 01:
So if this goes back down, we go to trial.

[00:22:05] Speaker 01:
And I don't know how to score those two rulings.

[00:22:07] Speaker 01:
I think that's the jurisdictional question.

[00:22:09] Speaker 01:
And what I raised was I'm not quite seeing how logically we can have why this shouldn't be back.

[00:22:17] Speaker 01:
It should have come up here in the first place and not have been a factual dispute.

[00:22:31] Speaker 01:
qualified immunity.

[00:22:32] Speaker 01:
I can't square the two.

[00:22:33] Speaker 01:
I think we go back, we litigate the thing.

[00:22:36] Speaker 01:
I don't think its liability is found.

[00:22:38] Speaker 01:
I just don't, I mean, I don't think that's what the ruling is.

[00:22:41] Speaker 01:
I think that not a qualified immunity means we go back.

[00:22:47] Speaker 01:
I also want to bring out

[00:22:59] Speaker 01:
that Peterson, the Ninth Circuit, reviewed in Peterson related to the three cases, the May, the Wallace, and Rogers, and did a complete discussion and review of what the status of the law was in 08, well before our case in 14.

[00:23:17] Speaker 01:
And I think that it draws a distinction, the court drew a distinction between qualified immunity between two kinds of cases, the kind

[00:23:30] Speaker 01:
when we talk about, for example, an unreasonable search and seizure of the bylaws of the Fourth Amendment, that's a different qualified immunity analysis than when we get to something like this and the court said that we have very specific line of cases culminating in Rogers and Mabe, which identified in a

[00:24:02] Speaker 01:
sexual abuse.

[00:24:04] Speaker 01:
And the following quote is, prior to the events in question, we have repeatedly held that a family's rights were violated.

[00:24:12] Speaker 01:
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 take or remove a child from his or her home on the basis of a situation

[00:24:35] Speaker 01:
would a reasonable caseworker have believed that these children were going to suffer a physical injury, a serious physical injury, imminently.

[00:24:46] Speaker 01:
And there's really nothing in the record to suggest that the district court got it right.

[00:24:49] Speaker 01:
There is no serious physical injury here.

[00:24:51] Speaker 01:
The kids were dirty.

[00:24:52] Speaker 01:
She hadn't even seen the other four that were out and about in the neighborhood.

[00:24:56] Speaker 01:
So I think that's, I think that we get to the point where the district court was correct and should be affirmed.

[00:25:09] Speaker 01:
for your time.

[00:25:10] Speaker 01:
Thank you very much, Council.

[00:25:12] Speaker 00:
All right, and we will hear from Ms.

[00:25:16] Speaker 00:
Kilbride.

[00:25:17] Speaker 00:
Thank you, Your Honor.

[00:25:18] Speaker 00:
Just a couple of points.

[00:25:22] Speaker 00:
Council says that Ms.

[00:25:23] Speaker 00:
Hartley was in the House and that there were no issues before.

[00:25:26] Speaker 00:
That's because there were planned

[00:25:29] Speaker 00:
This was an unplanned visit.

[00:25:32] Speaker 00:
He says that there are hundreds of lawyers at the AG's office and that why couldn't we just file something immediately?

[00:25:40] Speaker 00:
Well, A, there's no evidence of that in the record.

[00:25:43] Speaker 00:
I mean, of course, I guess you could take judicial notice of that, but that doesn't mean you can get a warrant, a court order, within hours of the incident.

[00:25:52] Speaker 00:
can call up the AG's office and say, hey, can you guys do up a petition?

[00:25:57] Speaker 00:
This was on a Thursday afternoon.

[00:25:59] Speaker 00:
Maybe they could do up a petition and get it filed on Friday, even if without a team meeting.

[00:26:06] Speaker 00:
But you're not going to get a court order within hours.

[00:26:10] Speaker 00:
Ms.

[00:26:11] Speaker 00:
Hughes did not tell the cops she was there to take the kids as she testified.

[00:26:15] Speaker 00:
And this is ER 129 and 130.

[00:26:30] Speaker 00:
The method of removal is not an issue here.

[00:26:32] Speaker 00:
Notice to Ms.

[00:26:33] Speaker 00:
Hartley is not an issue here.

[00:26:35] Speaker 00:
None of that is an issue here.

[00:26:36] Speaker 00:
She was given a TCN right then and there.

[00:26:39] Speaker 00:
She wouldn't take it.

[00:26:41] Speaker 00:
The cops made her take it.

[00:26:43] Speaker 00:
And the issue here is not the same as the merits on the Fourth Amendment.

[00:26:47] Speaker 00:
I'm sure Your Honors know this.

[00:26:49] Speaker 00:
It's whether Rogers gave these caseworkers on the doorstep of this chaotic situation

[00:26:57] Speaker 00:
guidance beyond dispute that if they remove the kids, then and there they would be either utterly incompetent or a knowing violation of the law, and it didn't give them that notice.

[00:27:09] Speaker 00:
The law in this case was not clearly established.

[00:27:12] Speaker 00:
They made a tough judgment call.

[00:27:15] Speaker 00:
Rogers didn't

[00:27:57] Speaker ?:
United States Court of Appeals for the Ninth Circuit will now depart for this court.