The Volokh Conspiracy
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No Qualified Immunity for School District Police Officer Who Seized Home-Schooled 14-Year-Old from Home
The child, and her 12-year-old brother, were left under the supervision of a neighbor by the mother, who left town for six days for a foreign job interview.
From McMurry v. Weaver, decided Friday by the Fifth Circuit (Judge Carolyn Dineen King, joined by Judge Jim Ho and Irma Carrillo Ramirez):
In October 2018, Plaintiff-Appellee Megan McMurry resided in a gated apartment complex in Midland, Texas with her daughter, Plaintiff-Appellee J.M., (then age fourteen) and son C.M. (then age twelve). J.M. took classes virtually from home, C.M. attended Abell Junior High School (Abell), part of the Midland Independent School District (MISD), and Ms. McMurry taught at Abell. Ms. McMurry's husband and the children's father, Plaintiff-Appellee Seth Adam McMurry, was deployed to the Middle East with the National Guard. To explore a job opportunity that would allow the family to move closer to Mr. McMurry, Ms. McMurry planned a trip to Kuwait from Thursday, October 25 to Tuesday, October 30.
Before leaving, Ms. McMurry arranged for a neighbor, Vanessa Vallejos, to check in on J.M. and C.M., and for coworkers to take C.M. to school. J.M. often babysat Ms. Vallejos's son, and Ms. McMurry had arranged for Ms. Vallejos to watch J.M. and C.M. while she was out of town in the past.
On the morning of October 26, 2018, Defendant-Appellant Alexandra Weaver, a police officer with MISD, received a text from a counselor who was supposed to take C.M. to school that day. Weaver already knew that Ms. McMurry was out of the country because Ms. McMurry had emailed all Abell campus employees including Weaver a few days earlier. Upon receiving the text, she became concerned that J.M. and C.M. were without adult supervision, and informed her supervisor, Officer Kevin Brunner, of her concerns.
Weaver and Brunner then proceeded to meet with three of Ms. McMurry's coworkers and learned that (1) Ms. McMurry was traveling for a job interview; (2) C.M. was at school; (3) a neighbor, whose son J.M. often babysat, was checking on the children daily; and (4) J.M. was homeschooled. Weaver and Brunner then went to the McMurrys' apartment to conduct a welfare check on J.M.
Weaver and Brunner arrived at the apartment at around 10 a.m. that morning. J.M. answered the door and confirmed that her mother was overseas, and a neighbor was checking on her and C.M. J.M. also told the officers that the neighbor had last checked on her that morning and offered to share the neighbor's phone number for the officers to call. Brunner then instructed J.M. to "go get some warm clothes on … then come visit with me outside." Brunner asked if Weaver could accompany her into the apartment while she did so. J.M. responded "Mm-hmm," then burst into tears and said "I'm scared."
Inside the apartment, Weaver told J.M. not to contact her mother. While J.M. changed clothes in her room, Weaver "looked around the living room and kitchen, peeking into the pantry and opening the refrigerator and freezer doors." The pantry was "stocked with food." "Weaver's body camera footage reveals no signs of a dangerous or abusive environment or any other exigent circumstances." Nor does the footage reveal anything "that sounds or looks like" J.M. giving Weaver consent to search the apartment. The interaction lasted about five minutes.
Weaver and Brunner then questioned J.M. in the apartment complex's conference room. "J.M. asked to call her father but was not allowed to do so." After about fifteen minutes, Weaver and Brunner drove to Abell, with J.M. in the backseat of their police car. Brunner instructed J.M. not to respond to her father's attempts to contact her and "recommended" she not contact Ms. Vallejos. Brunner also called CPS to tell them he was taking the children to Abell around this time.
At the school, Brunner placed J.M. in a private office. When Ms. Vallejos and her husband arrived, they told Brunner they were checking on C.M. and J.M. and had last seen the children the night before. Ms. Vallejos was then permitted to see J.M. and the two FaceTimed Mr. McMurry. By that afternoon, CPS had concluded that the situation did not meet the criteria for abuse and neglect and sent the children home with Ms. Vallejos and her husband.
Afterward, Brunner continued criminally investigating Ms. McMurry, and ultimately filed two probable cause affidavits to arrest and charge Ms. McMurry with abandoning or endangering her children. In January 2020, a jury acquitted Ms. McMurry of all charges.
The McMurrys and J.M. sued Weaver, and the court allowed the case to go forward, holding that Weaver wasn't entitled to qualified immunity:
Weaver first challenges the district court's denial of qualified immunity on the Fourth Amendment unreasonable search claim…. Here, the parties do not dispute that Weaver searched the refrigerator without a court order or consent. {The district court found that J.M. consented to Weaver entering the apartment and dismissed the unreasonable search claim to the extent it relied on Weaver's entry. That ruling is not challenged on appeal.} To comply with the Fourth Amendment, the search must be justified by exigent circumstances. But Weaver does not argue that there were exigent circumstances, and the district court found that there were none. Instead, Weaver relies on a "special needs" or "community caretaking" exception to the warrant requirement. Neither applies here.
A warrant may not be required where there is a "special need" that is "divorced from the State's general interest in law enforcement," such as a principal's search of a student's purse for drugs in school. Similarly, different standards may apply when the police perform "community caretaking functions" that are "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Child welfare investigations are not sufficiently divorced from general law enforcement, or the violation of a criminal statute, to support the application of either exception….
To the extent Weaver intended to argue the search was justified by exigent circumstances, the summary judgment evidence does not establish that J.M. faced any "immediate danger." Moreover, it is difficult to see how viewing a refrigerator's contents could guard against any immediate danger, especially given Weaver could see food in the pantry….
Weaver next challenges the district court's denial of qualified immunity on J.M.'s Fourth Amendment unreasonable seizure claim. "[T]he Fourth Amendment … applies to the seizure of children from their homes." The same standard governs: "[T]he government may not seize a child from his or her parents absent a court order, parental consent, or exigent circumstances." "Exigent circumstances in this context means that, based on the totality of the circumstances, there is reasonable cause to believe that the child is in imminent danger … if [s]he remains in h[er] home." … Again, Weaver does not argue there were exigent circumstances, and a jury could find that Weaver did not have reasonable cause to believe that fourteen-year-old J.M. faced any "immediate danger" at home alone in a gated apartment complex in the middle of the day.
The Due Process Clause of the Fourteenth Amendment "does not just provide parents with substantive protection from interference with their liberty interest in the care, custody, and management of their children." "It also requires that the state follow certain procedures before encroaching on those parental rights." A parent's procedural due process claim premised on the seizure of her child is governed by the same standard that governs the child's underlying Fourth Amendment claim for unreasonable seizure. "The rule is this: A child cannot be removed 'without a court order or exigent circumstances.'" … [T]he McMurrys have established a constitutional violation sufficient to survive summary judgment for the same reasons [as for the Fourth Amendment unreasonable seizure claim]: J.M. was seized without a court order or exigent circumstances.
Judge Ho concurred, adding this:
During oral argument, defense counsel put forth a remarkable legal theory that should alarm anyone who believes in the privacy of the home—as well as the basic right of every parent to raise their own children:
There's … another area where the law isn't clearly established. And that is: Was she taken from an apartment or was she taken from her school?
The reason I say that is because she was attending virtual school at the time … she was in class, so to speak, doing her work on her computer.
There's no case law whatsoever that establishes that an apartment stays an apartment when you're going to school. We have a whole new area of law that's going to emerge because we have homeschooling…. We don't have any cases whatsoever….
There was no clearly established law to violate….Because it's not clear that a home is a home… when it's being used at the time for virtual school.
This is obviously wrong as a matter of rudimentary constitutional principle. The Fourth Amendment expressly assures every one of us—including families who homeschool—that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." … To justify intrusions on this bedrock liberty based on the educational choices parents make for their children does not evade the constitutional objection—it exacerbates it….
So I'm grateful that the majority denies qualified immunity—and does so by summarily dismissing counsel's defense theory. After all, it's precisely because counsel's theory is so obviously wrong that the McMurrys shouldn't have to identify specific governing precedent to avoid qualified immunity. The Supreme Court has repeatedly denied qualified immunity where it found the constitutional violation so "obvious" that it didn't require the plaintiff to identify factually indistinguishable case law….
Judge Ho goes on to criticize some of the Fifth Circuit's qualified immunity precedents, and argues for a narrower version of qualified immunity more broadly; more on that here.
