Federal civil rights cases - Color of Law violations

Procedures for this branch of Government

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Marina
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Federal civil rights cases - Color of Law violations

Postby Marina » Sat Jul 28, 2007 7:04 am

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See links on this forum under federal civil rights law

http://forum.fightcps.com/viewtopic.php?t=5597

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Postby Marina » Sun Sep 09, 2007 7:20 pm

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http://www.ca11.uscourts.gov/unpub/ops/200514989.pdf

July 28, 2006

To prove a defendant violated 18 U.S.C. § 242 by acting “under color of law” to deprive another of “any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States,” the government must establish beyond a reasonable doubt that

(1) the defendant’s conduct deprived the victim of rights secured or protected by the Constitution or federal law;

(2) the defendant acted willfully; and

(3) the defendant acted under color of law.
United States v. Lanier, 117 S. Ct. 1219, 1224 (1997).

The Supreme Court has held the term “color of law” is to be given the same meaning in the context of

criminal prosecutions under 18 U.S.C. § 242 and

civil suits under 42 U.S.C. § 1983. Monroe v. Pape, 81 S. Ct. 473, 482-84 (1961),

overruled on other grounds, Monell v. Dep’t of Soc. Servs. for New York, 98 S. Ct. 2018, 2022 (1978).

Determining whether a defendant acted under color of law
involves an assessment of the totality of the circumstances.
Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303-04 (11th Cir. 2001).

Color of law means “pretense of law,” and it does not necessarily mean under authority of law.
United States v. Jones, 207 F.2d 785, 786-87 (5th Cir. 1953).

A state official may act under color of law even when engaging in an illegal activity.

“Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken under color of state law.”
Williams v. United States, 71 S. Ct. 576, 578 (1951)

Further, it is not significant to the color of law analysis that the defendant’s misuse of power “was motivated solely for personal reasons of pecuniary gain.”

Brown v. Miller, 631 F.2d 408, 411 (5th Cir. 1980) (color of law analysis under 42 U.S.C. § 1983).

"[T]he lack of outward indicia suggestive of state authority–such as being on duty, wearing a uniform, or driving a patrol car–are not alone determinative of whether a police officer is acting under color of state law."
Revene v. Charles County Comm’rs, 882 F.2d 870, 872 (4th Cir. 1989).

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Postby Marina » Sun Sep 09, 2007 7:28 pm

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Attorney website with information

http://mckimmey.home.att.net/falsearrest.html

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Postby Marina » Sun Sep 09, 2007 7:30 pm

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http://www.fbi.gov/hq/cid/civilrights/color.htm

FBI Color of Law Civil Rights violations



http://www.usdoj.gov/usao/eousa/foia_re ... r00042.htm

FBI Standards for Investigation

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Postby Marina » Sun Sep 09, 2007 7:36 pm

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http://www.ca3.uscourts.gov/civiljuryin ... hapter%204).pdf

Instructions for Civil Rights Claims Under Section 1983

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Postby Marina » Sun Sep 09, 2007 7:48 pm


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Postby Marina » Sun Sep 09, 2007 8:31 pm

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EVA C. TEMPLE case

http://www.ca2.uscourts.gov:8080/isysna ... cr_opn.pdf

page 13
Willful” repeatedly has been defined in the criminal context as intentional, purposeful, and voluntary, as distinguished from accidental or negligent. See Black’s Law Dictionary 1630 (8th ed. 2004).
Evil intent or bad purpose are not implicit in this definition.

Oppression” includes the “unjust or cruel exercise of authority or power.”
Merriam-Webster’s Third New 14 International Dictionary, Unabridged 1584 (1993).

In criminal law, it is “[a]n abuse of office committed by a public official.”
OXFORD ENGLISH DICTIONARY ONLINE,
http://dictionary.oed.com/entrance.dtl (search for “oppression”) (definition from the June 2004 Draft Revision to the 1989 Second Edition) (last visited February 27, 2006).

For a definition of the phrase “under color of law,” we turn to the cases interpreting
18 U.S.C. § 242 and 42 U.S.C. 19 § 1983,
the criminal and civil statutes prohibiting the deprivation under color of law of rights protected by the Constitution and laws of the United States.

[t]he Supreme Court has broadly interpreted the color of law requirement, concluding that “[m]isuse of power, possessed by virtue of [federal] law and made possible only because the wrongdoer is clothed with the authority of [federal] law,
is action taken ‘under color of [federal] law.’”
United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).

Color of law and pretense of law are synonymous, and acts of officers engaged in “personal pursuits” are not included.
See Screws v. United States, 325 U.S. 91, 111 11 (1945).

Although no “bright line” separates actions taken under color of law from personal pursuits,
Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994),
the “relevant question” in determining whether an action was taken under color of law “is not whether the [action] was part of the defendant’s official duties but, rather, whether the [action] was ‘made possible only because the wrongdoer is clothed with the authority of [federal] law,’”
Walsh, 194 F.3d at 51 16 (quoting Classic, 313 U.S. at 326).

One who abuses a position given to him or her by the government is said to act under color of law.
West v. Atkins, 487 U.S. 42, 49–50 (1988).

Such is the case, for example, “where a police officer, albeit off-duty, nonetheless invokes the real or apparent power of the police department.”
Pitchell, 13 F.3d at 548.

...

In Hughes, the plaintiff claimed that “he was assaulted, battered, and subjected to intentional emotional distress under color of state law because he was accosted by county employees.”

page 15
...in United States v. Giordano, 442 F.3d 30 (2d Cir. 2006),
a case involving sexual abuse of minors by a mayor, we held that the mayor acted under color of law by “actively and deliberately us[ing] his apparent authority as mayor to ensure that the victims did not resist or report the ongoing abuse.”

page 16
They knew only that she was an employee of the IRS. To them, she
was authorized to speak as a representative of her agency. Her oppressive conduct was indeed made possible by her perceived ability to invoke the real or apparent authority of her department.


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Postby Marina » Sun Sep 09, 2007 8:53 pm

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http://www.usdoj.gov/usao/ct/Documents/ ... 031394.pdf

UNITED STATES OF AMERICA v. PHILIP A. GIORDANO

Philip A. Giordano, a three-term Mayor of Waterbury,
was convicted by a jury of numerous federal crimes arising
from his repeated sexual abuse of two young girls, ages
eight and ten. This case arose out of a public corruption
investigation, in which the Government obtained court
authorization to wiretap the defendant’s phones. During
the course of the wiretap, federal agents intercepted calls
in which the defendant arranged for a Waterbury prostitute
and drug addict, Guitana Jones, to bring her niece and
daughter to various locations, including the Mayor’s
Office, so that the defendant could sexually abuse them.

page 104

C. Discussion

1. There Was Sufficient Evidence
That the Defendant Acted “Under
Color of Law” When He Sexually
Abused the Two Minor Girls

There was ample evidence for the jury to conclude
that the defendant’s abuse of his minor victims was “made
possible only because [defendant was] clothed with the
authority of state law.” Classic, 313 U.S. at 326...

page 108
2. The District Court Properly
Concluded that the Child Victims
Had a Constitutional Right To Be
Free from Sexual Abuse

page 158
Color of law.
The defendant objects on sufficiency grounds to the six-level adjustment for being a public official or acting under color of law...

page 159
Abuse of position of trust.

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Postby Marina » Sat Mar 28, 2009 7:04 pm

http://www.scotusblog.com/wp/oral-argum ... orne-08-6/

Oral Argument Recap: District Attorney’s Office v. Osborne (08-6)

Wednesday, March 4th, 2009 3:58 pm | Eliza Presson | Print This Post
Email this • Share on Facebook • Share on LinkedIn • Digg This!

Erica Goldberg discusses Monday’s argument in Osborne.

Because so much is at stake in the case of District Attorney’s Office v. Osborne, including whether criminal defendants have a post-conviction right to access DNA evidence and whether they can sue under 42 U.S.C. § 1983 to vindicate that right, the March 2 oral argument was a battle over how to frame the relevant issues. Argument revealed a political schism among the Court, but even the conservative Justices were troubled by the prospect of restricting prisoners’ access to DNA evidence. Conversely, even the liberal Justices searched for a way to avoid constitutionalizing this issue, and hoped that Alaska would simply offer Osborne the remedy he deserves. Osborne’s fate may rest in Justice Kennedy, whose decision in turn may depend on the liberals’ ability to narrowly define a constitutional right.

Kenneth Rosenstein, the Assistant Attorney General of Alaska, began by arguing that § 1983 is an improper procedural device for asserting a post-conviction constitutional right to access DNA evidence. Rosenstein contended that, because Osborne is seeking to invalidate his conviction, he must file a habeas petition to obtain that evidence.

Justice Souter led the questioning with an assault on this logic. He posited that § 1983 is appropriate because Osborne does not know if the new DNA tests will invalidate his conviction; he simply wants access to the DNA to determine that issue. Then, if the DNA testing is exculpatory, Osborne can file a habeas petition to be released from prison.

Justice Scalia rescued Rosenstein from this line of questioning by exposing a problematic inconsistency in Osborne’s position: If Osborne is entitled to use § 1983 because he cannot yet assert his innocence, that weakens his constitutional claim that he has a right to DNA evidence after conviction. According to Scalia, Osborne could make a stronger claim if he asserted that DNA testing would prove his innocence, but this type of claim might render § 1983 inappropriate as a mechanism for accessing the evidence.

The other Justices then joined the fray until Justice Breyer clearly stated that, procedural issues aside, in his view this case is about whether the state must give Osborne the DNA evidence. This issue especially troubled the liberal Justices, who could not understand why Alaska would deprive Osborne of evidence that has the potential to conclusively prove guilt or innocence. As Justice Breyer asked, “Now, why don’t you want to give it to him?”

Deputy Solicitor General Neal Katyal, arguing on behalf of the United States as amicus curiae in support of Alaska, addressed Justice Breyer’s question by arguing that the Ninth Circuit’s extension of Brady rights to the post-conviction context would nullify states’ efforts to legislate in this area. Katyal then recounted all of the evidence indicating Osborne’s guilt, prompting Justice Kennedy to ask whether a constitutional right could be narrowed to cases in which the DNA evidence is highly likely to lead to exoneration.

The Court then grappled with creating a narrowly defined constitutional right during the questioning of Osborne’s attorney, Peter Neufeld. Perhaps Osborne should be required to swear to his innocence under penalty of perjury to access the evidence. (Osborne had confessed his guilt to the parole review board in an attempt to secure an early parole.) Or, perhaps a post-conviction right to access DNA evidence should exist only if it is clear that a defendant’s attorney was not trying to, as Justice Alito put it, “game the system.” (Osborne’s trial attorney made a tactical decision to forego the DNA testing that was available at the time of trial.) The Justices also sought ways out of this thorny issue, and hoped that perhaps Osborne could use Alaska’s habeas procedures instead.

Throughout argument, the Justices’ myriad hypotheticals displayed a grave appreciation for the vast implications of their ruling. To deny Osborne his DNA evidence would allow a state to arbitrarily deprive a prisoner of valuable scientific evidence, and deprive the justice system of important truth-determining tools. But to allow Osborne his DNA evidence would compromise the finality of all convictions involving scientific evidence, and might create perverse incentives for defense lawyers to manipulate the system.

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Postby Marina » Sat Mar 28, 2009 7:11 pm

Summary of the above case:

http://scotuswiki.com/index.php?title=D ... v._Osborne

Contents [hide]
1 Briefs and Documents
2 Argument Preview
2.1 Background
2.2 The Decision Below
2.3 Petitions for Certiorari
2.4 Merits Briefs
3 Oral Argument Recap
4 Opinion Analysis
5 Links and further information

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Issue: Whether a defendant may access a state’s biological evidence following a conviction under 42 U.S.C. 1983 or the Due Process Clause of the Fourteenth Amendment.
...

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Postby Marina » Thu Oct 15, 2009 5:48 pm

http://extras.mnginteractive.com/live/m ... _alize.pdf

Alize J. Vick v. El Paso County, Colorado

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Postby Marina » Sun Dec 27, 2009 11:25 am

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http://www.ca6.uscourts.gov/opinions.pd ... 24p-06.pdf


David Smith,
Plaintiffs-Appellants,
v.
JUDY WILLIAMS-ASH, Hamilton County Job &
Family Services,
Defendant-Appellee.
Last edited by Marina on Fri Feb 12, 2010 6:54 pm, edited 1 time in total.

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Postby Marina » Fri Jan 01, 2010 11:35 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=746

CALIFORNIA: Burke v. County of Alameda
11.20.2009 | Child Protection

In an issue of first impression, the United States Court of Appeals for the Ninth Circuit affirmed the district court’s grant of summary judgment in favor of defendant police officer in relation to plaintiff parents’ § 1983 claims that the police officer violated their constitutional right to familial association by placing their child, B.F., in protective custody without first obtaining a protective custody warrant, but reversed the grant of summary judgment in favor of defendant County of Alameda in relation to plaintiff father’s § 1983 claim that the county violated the same rights by failing to train its officers on the need for such warrants. The court noted that it had previously held that a police officer may take a child into temporary custody without first obtaining a warrant if the officer has reasonable cause to believe that the child is in imminent danger of abuse. Here, the court found that the police officer’s reliance on B.F.’s statement that her step-father had sexually abused her and she was afraid that he would physically abuse her if she returned home provided him with reasonable cause to believe that she was in imminent danger. The court then stated that once there is reasonable cause to believe that the child is in danger, the scope of intrusion must be justified by the threat posed. The court found that removal from the mother’s custody justified even though she was not the abuser because she denied the abuse and failed to protect B.F., and therefore, her due process rights had not been violated. In relation to plaintiff father’s claim, the court found that removal was not justified because, even though he did not reside with B.F., he had joint legal custody and was therefore entitled to notice before B.F. was placed in protective custody. Finally, the court found that although plaintiff father’s due process rights were violated the grant of summary judgment in regards to the police officer was proper because the police officer was entitled to governmental immunity, but the grant of summary judgment was not proper as to the county because it is not entitled to governmental immunity.

Cite: No. 08-15658; 2009 U.S. App. LEXIS 24715 (9th Cir. November 10, 2009)

Link to Full Opinion

http://www.ca9.uscourts.gov/datastore/o ... -15658.pdf

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Postby Marina » Tue Jan 05, 2010 10:08 am

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http://adoptionchildwelfarelaw.org/case ... php?id=750

NEVADA: Garcia v. Clark County
11.20.2009 | Child Protection


sufficient facts

duty to protect vs. deliberate indifference

acted unreasonably

negligence vs. genuine issue of material... appropriate steps to ensure that the child received the care she needed

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Postby Marina » Wed Jan 06, 2010 6:43 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=523

PENNSYLVANIA: Bryan v. Erie County Office of Children & Youth
05.28.2009 | Child Protection / Foster Care

The United States District Court for the Western District of Pennsylvania denied defendant’s motion to dismiss a § 1983 claim and a claim for intentional infliction of emotional distress, finding that plaintiffs had stated a cause upon which relief could be granted. Plaintiffs, former foster parents, alleged that defendants, Erie County Office of Children & Youth and other state actors, violated plaintiffs’ substantive due rights and intentionally inflicted emotional distress on them by placing a foster child with a known sexual abuse history in plaintiffs’ home and failing to tell plaintiffs of the child’s problems. The foster child later sexually abused plaintiffs’ biological child. The court found that plaintiffs adequately stated a cause of action, both under § 1983 and in relation to the second claim of intentional infliction of emotional distress. The court noted that both parties could pursue their positions through discovery and that a motion for summary judgment would have been more appropriate than a motion to dismiss.

Cite: No. 03-259 Erie; 2009 U.S. Dist. LEXIS 40591 (W.D. PA May 14, 2009)
Opinion not available for free online viewing

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Postby Marina » Wed Jan 06, 2010 8:08 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=395

MICHIGAN: Toliver v. Lutheran Social Services
02.12.2009 | Child Protection / Foster Care

The United States District Court for the Eastern District of Michigan, Southern District, granted defendants’ (Lutheran Social Services, Michigan DHS, Wayne County Department of Community Health and employees) motion for summary judgment on plaintiffs’ § 1983 claims that defendants violated her and her six children’s constitutional rights to familial association. The district court found that no case law exists recognizing a federally protected right to visitation or services while children are in state custody and thus concluded that plaintiffs failed to allege a constitutional violation or a cognizable § 1983 action.

Cite: No. 07-14179; 2009 U.S. Dist. LEXIS 5795 (U.S. Dist. Ct. January 27, 2009)
Web Link: Full opinion not available for free online viewing

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Postby Marina » Wed Jan 06, 2010 8:23 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=382



Cases

« Back to Cases List

PENNSYLVANIA: Conn v. Bull, et al
01.29.2009 | Child Protection / Foster Care

The U.S. Court of Appeals for the Third Circuit affirmed the order of the U.S. District Court for the Middle District of Pennsylvania granting summary judgment to appellees, a foster parent and youth services' caseworkers and supervisors, holding that despite conflicting testimony and factual discrepancies, mere negligence of the appellees did not rise to the level of a substantive due process violation. The court opined that “there was no evidence that the supervisors were aware, or should have been aware, that their training of caseworkers, certification of the foster parent, methods of inspecting the home and licensing the foster parent, or establishment of youth services' policies would have been inadequate to protect the child's safety.” The court also held that the standard of proof was “deliberate indifference” and that there was no evidence of such in this case, and that the record was devoid of a causal connection between any failure to train caseworkers and the child's death.

Cite: No 07-3455; 2009 U.S. App. LEXIS 1082 (U.S. Ct. App. January 21. 2009)




http://www.ca3.uscourts.gov/opinarch/073455np.pdf

page 8
In order to “establish liability on a failure to train claim
under § 1983, plaintiffs ‘must identify a failure to provide specific training that has a
causal nexus with their injuries and must demonstrate that the absence of that specific
training can reasonably be said to reflect a deliberate indifference to whether the alleged
constitutional deprivations occurred.’” Gilles v. Davis, 427 F.3d 197, 207 n.7 (3d Cir.
2005) (citation omitted). There was no evidence of deliberate indifference here, and the
record is devoid of a causal connection between any failure to train Gladfelter and T.J.’s
tragic death. Respondeat superior liability alone is not sufficient.


page 10
As we have said, mere negligence does not rise to the
level of a substantive due process violation.


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Postby Marina » Thu Jan 07, 2010 7:54 am

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http://adoptionchildwelfarelaw.org/case ... php?id=384

OKLAHOMA: D.G. v. Henry
01.29.2009 | Child Protection / Foster Care



The United States District Court for the Northern District of Oklahoma granted the Motion to Dismiss for lack of subject matter jurisdiction of defendants (the governor of Oklahoma and other state officials) in regards to two of the plaintiffs’ (a class of Oklahoma foster children) causes of action. The court held that the plaintiffs’ third cause of action, a § 1983 claim arising from Oklahoma’s alleged violation of the Adoption Assistance and Child Welfare Act of 1980 (AACWA), must be dismissed because AACWA did not create a private right of action but rather imposed requirements on Oklahoma’s State Plans that are enforced by the federal government through funding. Further, the court held, the plaintiffs’ fifth cause of action, a third party beneficiary claim, must be dismissed because it was “another aspect of the implied right of action” and failed under the same rationale as the third claim.

Cite: No. 08-CV-074-GKF-FHM, 2009 U.S. Dist. LEXIS 3822 (N.D.Okla. Jan. 19, 2009)
Opinion not available for free online viewing.

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Marina
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Postby Marina » Thu Jan 07, 2010 7:36 pm

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http://adoptionchildwelfarelaw.org/case ... php?id=337

FLORIDA: H.A.L. v. Foltz
01.07.2009 | Child Protection / Foster Care

The United States Court of Appeals for the Eleventh District affirmed the district court’s denial of appellant Florida Department of Children and Families employees’ motion to dismiss appellee foster children’s 42 U.S.C. § 1983 claim on qualified immunity grounds. The court held that, based on the alleged facts, DCF employees knowingly subjected the children to a substantial risk of serious harm and exhibited deliberate indifference to a known risk of sexual abuse by placing them in a foster home with another sexually aggressive child without a safety plan for their protection; therefore, qualified immunity was not an available defense.

Cite: No. 07-15791, 2008 U.S. App. LEXIS 25046 (11th Cir. December 15, 2008)
Viewing the Full Opinion Requires a Free LexisOne Subscription.

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Postby Marina » Sun Jan 31, 2010 9:40 pm

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http://www.ca9.uscourts.gov/datastore/o ... -35333.pdf

GREENE v. CAMRETA

III. CONCLUSION
In sum, we hold that Camreta and Alford are entitled to
qualified immunity with respect to S.G.’s Fourth Amendment
claims and affirm the district court’s grant of summary judgment
on that basis. With respect to the Greenes’ Fourteenth
Amendment claims regarding the removal order, we conclude
that there is a genuine issue of material fact as to whether
Camreta secured the order by misrepresenting his conversa-
tions with Sarah. We therefore reverse the district court’s
grant of summary judgment on that claim. Finally, we hold
that Camreta’s decision to exclude Sarah from her daughters’
medical examinations at the KIDS Center violated the
Greenes’ clearly established familial rights under the Fourteenth
Amendment. We therefore reverse the district court’s
grant of summary judgment on that claim as well.

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