Stein v. Depke

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Justin Stein, et al., No. CV-20-00102-TUC-JCH 10 Plaintiffs, ORDER 11 v. 12 Alyssa Depke, et al., 13 Defendants. — 14 — 15 In this case, as relevant to the remaining claims, Defendant DCS agents Depke and 16 Fregoso removed Plaintiffs Justin and Jacqueline ("Jackie") Stein's son C.S. Defendants 17 relied on the Steins' consent to removal, which the Steins alleged was never secured. The 18 Steins charged Defendants with one count of unconstitutional removal and one count of 19 judicial deception. The Court denied summary judgment for Defendants because: [u]nder the Steins' versions of the facts, which the Court must accept at this — 20 — stage, [Defendants] violated clearly established law by failing to secure 21 parental consent to removal. The Steins' evidence could convince a jury that [Defendants] did not explain basic aspects of removal and told the Steins — 22 — "there is no turning back" when the Steins withdrew their consent. The Steins' 23 evidence could also convince a jury that [Defendants] told the Juvenile Court the Steins did not want their son back shortly after the Steins said they did — 24 — want him back. 25 Doc. 112 at 1. 26 Defendants moved for reconsideration on the unconstitutional removal claim, Doc. 27 119, and appealed. See Doc. 124. The Steins responded to the Motion for Reconsideration, 28 Doc. 123, and this is the Court's resolution of the matter. 1 The Court will deny Defendants' Motion for Reconsideration except in a few minor 2 ways. The bottom line here is that consent and coercion are mutually exclusive. Defendants 3 moved for summary judgment based primarily on consent, and the Steins resisted summary 4 judgment based primarily on coercion. Looking to the totality of the circumstances, and 5 drawing all inferences for the Steins, the Court found that a jury could infer coercion such 6 that any apparent consent was invalid under clearly established law. Defendants' Motion 7 mostly fails to address this dynamic and is unpersuasive to the extent it does. The Ninth 8 Circuit or a jury may decide differently, but that is not this Court's province. 9 I. Legal Standard 10 Local Rule of Civil Procedure 7.2(g)(1) provides: 11 The Court will ordinarily deny a motion for reconsideration of an Order absent a showing of manifest error or a showing of new facts or legal — 12 — authority that could not have been brought to its attention earlier with 13 reasonable diligence. Any such motion shall point out with specificity the matters that the movant believes were overlooked or misapprehended by the — 14 — Court, any new matters being brought to the Court's attention for the first 15 time and the reasons they were not presented earlier, and any specific modifications being sought in the Court's Order. — 16 — Manifest error is "error that is plain and indisputable, and that amounts to a complete — 17 — disregard of the controlling law or the credible evidence in the record." Estrada v. Bashas' — 18 — Inc., No. CV-02-00591-PHX-RCB, 2014 WL 1319189 , at *1 (D. Ariz. Apr. 1, 2014) — 19 — (citing Black's Law Dictionary 622 (9th ed. 2009)). — 20 — Rule 59(e) of the Federal Rules of Civil Procedure also provides that a party may — 21 — file a "motion to alter or amend a judgment" within "28 days after the entry of the — 22 — judgment." A Rule 59(e) motion is an "extraordinary remedy, to be used sparingly in the — 23 — interests of finality and conservation of judicial resources." Kaufmann v. Kijakazi, 32 F.4th 24 843, 850 (9th Cir. 2022) (citation and internal quotation marks omitted). District courts — 25 — have "considerable discretion" in deciding Rule 59(e) motions and may grant them if — 26 — "presented with newly discovered evidence, [the court] committed clear error, or if there is — 27 — an intervening change in the controlling law." Id. (citations and internal quotation marks — 28 — omitted). 1 Motions for reconsideration are not an opportunity for a party "to get a second bite 2 at the apple," Van Derheydt v. Cnty. of Placer, 32 F. App'x 221, 223 (9th Cir. 2002), and 3 should be granted only in rare circumstances. Defenders of Wildlife v. Browner, 909 F. 4 Supp. 1342, 1351 (D. Ariz. 1995). They should not ask a court "to rethink what the court 5 had already thought through – rightly or wrongly." Defenders of Wildlife, 909 F. Supp. at 6 1351 (citation omitted)). A motion for reconsideration "may not be used to raise arguments 7 or present evidence for the first time when they could reasonably have been raised earlier 8 in the litigation." Kona Enters., Inc. v. Est. of Bishop, 229 F.3d 877 , 890 (9th Cir. 2000). 9 A motion for reconsideration also may not repeat any argument previously made in support 10 of or in opposition to a motion. Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., — 11 — 215 F.R.D. 581, 586 (D. Ariz. 2003). Mere disagreement with a previous order is an 12 insufficient basis for reconsideration. See Leong v. Hilton Hotels Corp., 689 F. Supp. 1572 , 13 1573 (D. Haw. 1988). 14 II. Analysis 15 The Court denied summary judgment on the unconstitutional removal claim 16 primarily because (1) consent is based on the totality of the circumstances, (2) the Court 17 must draw all inferences for the nonmovant, and (3) considering those rules, the coercive 18 aspects of the Steins' account rendered their consent involuntary under clearly established 19 law. See Doc. 112 at 22–23, 28. Defendants challenge the Court's judgment as to 20 (A) Fregoso, (B) Justin, (C) the timing of Jackie's statements, (D) whether Depke's beliefs 21 were reasonable, and (E) whether the law was clearly established. The parties are familiar 22 with the facts, so the Court does not repeat them except as necessary. 23 A. The Court will deny the motion for reconsideration as to Fregoso because Defendants identify only a superficial mistake in the Court's reasoning. — 24 — The Court denied summary judgment for Fregoso because (1) Defendants "did not — 25 — assert [Fregoso's absence from the Steins' home] as a basis for their motion for summary — 26 — judgment" and (2) even if they had, "Fregoso's physical absence … is not dispositive." — 27 — Doc. 112 at 21–22. Defendants' challenges to the first basis for the Court's Order are — 28 — unpersuasive because the Court correctly held them to their obligations at summary 1 judgment. Defendants' challenge to the second basis for the Court's Order identifies a 2 superficial mistake but does not change the result. 3 Challenging the first basis for the Court's Order, Defendants argue that "[i]n a 4 § 1983 claim, plaintiffs must present evidence in their Opposition showing … that each 5 Defendant was an 'integral participant.'" Doc. 119 at 3 (citing Boyd v. Benton Cnty., 374 6 F.3d 773, 780 (9th Cir. 2004); Monteilh v. Cnty. Of Los Angeles, 820 F. Supp. 2d 1081 , 7 1090 (C.D. Cal. 2011)) (emphasis in original). Defendants argue that "both Depke and 8 Fregoso moved for summary judgment [based on the Steins' consent]" and so the summary9 judgment burden shifted to the Steins to "demonstrate that Depke and Fregoso were each 10 an integral participant in the allegedly unconstitutional actions." Doc. 119 at 3. 11 Defendants are mistaken. Simply moving for summary judgment is not sufficient to 12 carry the movant's initial burden of production. The movant must present the basis for its 13 motion. Celotex Corp. v. Catrett, 477 U.S. 317 , 322–23 (1986); see also LRCiv. 7.2(b). 14 Defendants did not present Fregoso's absence from the Stein's house as a basis for summary 15 judgment. See generally Doc. 89. In fact, Defendants specifically asserted that the Steins 16 signed a Temporary Custody Notice ("TCN") "in the presence of Depke and Fregoso." 17 Doc. 89 at 9. Under those circumstances, the Steins were not obligated to produce any 18 evidence establishing Fregoso's presence in their house. Cf. Nissan Fire & Marine Ins. Co. 19 v. Fritz Co., 210 F.3d 1099 , 1102–03 (9th Cir. 2000). Defendants' cases do not hold to the 20 contrary. See Boyd, 374 F.3d at 780 (no discussion of burden shifting at summary 21 judgment); Monteilh, 820 F. Supp. 2d at 1089–90 (same). 22 Seeking a different way to avoid the first basis for the Court's Order as to Fregoso, 23 Defendants urge the Court to "invoke Rule 56(f) rather than commit manifest injustice by 24 summarily denying a Reply argument." Doc. 119 at 4–5. Rule 56(f) of the Federal Rules 25 of Civil Procedure provides: 26 After giving notice and a reasonable time to respond, the court may: (1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not — 27 — raised by a party; or (3) consider summary judgment on its own after 28 identifying for the parties material facts that may not be genuinely in dispute. 1 As Defendants identify, "'manifest injustice'" occurs when a court order "(1) causes 'clear 2 and certain prejudice to the moving party' and (2) 'is fundamentally unfair in light of 3 governing law.'" Doc. 119 at 4 (citing Leidos, Inc. v. Hellenic Republic, 881 F.3d 213 , 217 4 (D.C. Cir. 2018). But refusing to credit an argument raised for the first time in a reply is 5 not fundamentally unfair. Cf. Leidos, 881 F.3d at 217 ("[M]anifest injustice 'does not exist 6 where … a party could have easily avoided the outcome, …. [but rather where a decision] 7 would 'upset settled expectations[.]'"). As just discussed, the moving party has an initial 8 burden to present the basis for its summary judgment motion. Celotex Corp. v. Catrett, 477 9 U.S. 317 , 322–23 (1986); see also LRCiv. 7.2(b). Having failed to carry that burden with 10 respect to Fregoso's presence in the Steins' house, the Steins were not obligated to produce 11 any evidence supporting their allegations. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., 12 Inc., 210 F.3d 1099 , 1102–03 (9th Cir. 2000). Enforcing Defendants' obligation is therefore 13 a correct application of governing law, not a manifestly unjust disregard of it. And even if 14 the Court reopened the issue and acted under Rule 56(f), the Court would still ultimately 15 deny summary judgment for Fregoso again for the reasons stated as a second basis for the 16 Court's ruling. 17 Defendants next challenge the Court's second basis for ruling: that Fregoso's 18 absence from the Steins' home was not dispositive. Defendants assert the Court manifestly 19 erred by relying on a previous order and the Court's own speculation. Doc. 119 at 2–3. In 20 its summary judgment Order, the Court wrote: 21 The Court previously found that the Steins stated a claim for unconstitutional removal against both Depke and Fregoso. Doc. 34 at 12–14. Both Depke and — 22 — Fregoso were implicated by, for example, allegations that Depke and Fregoso 23 were together during the events that called parental consent into question. See id. at 13 (citing Doc. 25 at 16 ¶ 44) (Depke "later returned with DCS — 24 — Supervisor Fregoso to initiate removal proceedings"). 25 Doc. 112 at 21. Defendants argue that the Court's reasoning was erroneous because "the 26 Steins never made those allegations in the Complaint and never produced evidence that 27 [Defendants] were together during the removal." Doc. 119 at 2 (citing Doc. 25 ¶¶ 44–45). 28 Defendants further argue the Court improperly speculated about Fregoso's involvement. 1 Id. at 3. 2 Defendants are partly correct about the Court's characterization of the Complaint, 3 but Defendants were not prejudiced. The Complaint did not allege that Depke and Fregoso 4 were together "during the events that called parental consent into question." Instead, the 5 events that called parental consent into question, alleged in Doc. 25 ¶ 44, happened before 6 "Depke then left the house, and returned with … Fregoso." Doc. 25 ¶ 45. The Court's 7 characterization was mistaken to the extent it suggested the Complaint alleged Fregoso was 8 inside the Steins' house. But Defendants go too far by claiming the Complaint did not allege 9 Depke and Fregoso were together "during the removal." The Complaint alleges "Depke … 10 left … and returned with … Fregoso" before C.S. "was … removed by both Defendants." 11 Doc. 25 at ¶ 45. That means Depke and Fregoso were allegedly together during the removal 12 if not the events surrounding parental consent. 13 Defendants thus identify a superficial mistake, not manifest error. The Court was 14 considering whether a jury could infer Fregoso's liability even if she was not inside the 15 Steins' house during the removal—not merely if Fregoso was not inside "during the events 16 that called parental consent into question." The Court listed several inferences a jury could 17 draw from the Steins' evidence, concluding: 18 The fact that Fregoso was never inside the Stein's home does not mean that Fregoso did not (1) direct Depke to act as she did, (2) set in motion a series — 19 — of events that would cause Depke to act as she did, or (3) know what Depke 20 was about to do or had done and failed to stop or correct her. 21 Id. Each of those inferences applies whether Fregoso was present "during the events that 22 called parental consent into question" or "during the removal." The Court's "speculation," 23 Doc. 119 at 3, was its effort to articulate inferences a jury could draw for the nonmovant. 24 Defendants cite no law prohibiting the Court from doing that and identify no substantive 25 error in the inferences the Court considered. Cf. Boyd, 374 F.3d at 780 (officers who stood 26 outside during a search, and an officer who stood back during use of a flash-bang, were 27 integral participants); Monteilh, 820 F. Supp. 2d at 1089–90 (officers who had no reason 28 to know a child was being removed without a court order were not integral participants). 1 For those reasons, the Court will deny the motion for reconsideration as to Fregoso. 2 B. The Court will deny the motion for reconsideration as to Justin except to the extent the Court reasoned that Jackie could withhold Justin's consent for him. — 3 — The Court denied summary judgment as to Justin because (1) "a jury could infer — 4 — that Jackie was speaking for both Steins throughout her encounter with Depke, such that — 5 — Justin's consent was withheld to the same extent as Jackie's, and never secured for the same — 6 — reasons as Jackie's," and (2) "Justin's consent was never secured in any event because it — 7 — was not voluntarily or intelligently given, or at least its scope was exceeded." Doc. 112 at — 8 — 20. Defendants challenge the first reason and part of the second. See Doc. 119 at 5–9. The — 9 — Court agrees it was a mistake to suggest Jackie could withhold Justin's consent for him but — 10 — disagrees with Defendants in all other respects. — 11 — (1) Whether Jackie could withhold Justin's consent by speaking for him — 12 — Defendants first challenge the inference that Jackie spoke for Justin. Doc. 119 at 5– — 13 — 6. As above, Defendants cite no law prohibiting the Court from considering inferences in — 14 — the nonmovants favor. Ample precedent requires the Court to do so. But Defendants — 15 — persuasively argue that even if the inference were warranted, it could not support the — 16 — conclusion that Jackie withdrew Justin's consent for him. The Court itself noted that — 17 — "federal law only creates a cause of action for that occupant whose consent is withheld." — 18 — Doc. 112 at 20 (citing Smith v. City of Santa Clara, 876 F.3d 987, 990 (9th Cir. 2017)). — 19 — Upon reconsideration, and without endorsing Defendant's arguments entirely, the Court — 20 — agrees that Jackie could not withhold Justin's consent for him. To the extent the Court's — 21 — Order reasoned otherwise, it was manifest error. — 22 — (2) Whether the scope of Justin's consent was exceeded — 23 — Defendants next challenge part of the Court's second reason for denying summary — 24 — judgment as to Justin: that the scope of the Steins' consent was exceeded. See Doc. 119 at — 25 — 7–8. Defendants first assert the Steins never argued that C.S.'s removal exceeded the scope — 26 — of their consent. Id. at 7. The Court disagrees. The Steins argued in the alternative that they — 27 — wanted C.S. removed only to receive services, that consent must be "specific," and that — 28 — consent depends on the totality of the circumstances. Doc. 95 at 3, 5. Those arguments put 1 Defendants on fair notice that the scope of the Steins' consent was at issue. 2 Defendants also assert that "no reasonable jury could believe that the Steins intended 3 to consent to removal of [C.S.] only for the purposes of securing services." Doc. 119 at 7. 4 Defendants essentially seek to relitigate something the Court has already considered and 5 decided. See, e.g., Doc. 112 at 12 (crediting the Steins' "straightforward and consistent" 6 story that they sought services for C.S. and asked for him back when they learned he had 7 received those services); id. at 16 ("Seen in context, the Steins' consent was specific to the 8 services they believed DCS was offering through temporary removal."). 9 Even if Defendants' arguments were a proper basis for reconsideration, they are 10 unpersuasive. Defendants argue that "Depke explicitly and repeatedly told [the Steins] that 11 [DCS] could not provide [the] services [the Steins were requesting]." Doc. 119 at 7 (citing 12 Doc. 96 at 10–11 ¶ 13). Defendants also argue that "the Steins made judicial admissions to 13 that effect." Id. at 7–8 (citing Doc. 25 ¶ 44 and numerous judicial admission cases). But a 14 jury could believe from the Steins' evidence that Depke said DCS could not provide the 15 services the Steins were requesting unless they consented to removal. Doc. 96 at 17 ¶ 12– 16 14. A jury could also infer that Depke knew from her conversation with Jablonsky that 17 Jablonsky had "led [the Steins] to believe that having Depke take their son was the only 18 way for him to receive the help he needed." Doc. 96 at 17 ¶ 14; Doc. 112 at 16 (making a 19 substantially similar point about drawing inferences based on Depke's conversation with 20 Jablonsky). And even if allegations in a complaint were binding judicial admissions, see 21 infra § II.B.(3) (disagreeing on that point), consenting to removal only to the extent it could 22 provide C.S. with services is not inconsistent with the Complaint's allegations that "the 23 only way [Depke] would take [C.S.] was if the parents admitted they were neglecting [C.S.] 24 and [DCS would take custody of him]." Doc. 25 ¶ 44. 25 (3) Whether Justin's consent was "intelligent" 26 Defendants next challenge a different part of the Court's second reason for denying 27 summary judgment as to Justin: that the Steins' consent was not "intelligent." See Doc. 119 28 at 8–9. Defendants assert that the Court improperly held Defendants to a 6th Amendment 1 "intelligent" standard despite the 4th Amendment context of this case. Doc. 119 at 8 (citing 2 Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973)). Defendants made this argument 3 already. Doc. 106 at 7–8; Hr'g Tr. at 26:10–14. Even if it were a proper basis for 4 reconsideration, the Court acknowledged the very difference Defendants urge. Doc. 112 5 at 15 (citing Bustamonte). But as the Court pointed out, "Fourth Amendment 'specific' and 6 'intelligent' consent requires more than a signature. The totality of the circumstances 7 surrounding that signature matter." Id. Defendants object to some of the Court's examples 8 of basic information the Steins lacked. See Doc. 119 at 9. Even if Defendants were correct, 9 their argument misses the point. Looking at the totality of the circumstances, and drawing 10 all inferences for the nonmovant, a jury could conclude that the Steins did not have enough 11 information to consent specifically and intelligently under a 4th Amendment standard. By 12 focusing narrowly, Defendants fail to grapple with the larger issue and the Court's 13 obligations at summary judgment. 14 Finally, Defendants unpersuasively argue that "the undisputed facts show that 15 Depke did inform the Steins of many of the consequences of consenting to removal." Doc. 16 119 at 9. First, the Court declines Defendants' invitation to revisit the totality of the 17 circumstances. Second, Defendants' individual points are unpersuasive. Defendants' 18 "judicial admissions" argument is flawed because the authorities they cite do not say that 19 an allegation in a complaint is a judicial admission. See Am. Title Ins. Co. v. Lacelaw Corp., — 20 — 861 F.2d 224, 226 (9th Cir. 1988) ("judicial admissions … dispens[e] wholly with the need 21 for proof of the fact [admitted]"); Hakopian v. Mukasey, 551 F.3d 843, 846 (9th Cir. 2008) 22 ("Hakopian's subsequent responsive admission of the government's allegation constituted 23 a judicial admission") (emphasis added); Christian Legal Soc. Chapter of the Univ. of Cal. 24 Hastings Coll. of the L. v. Martinez, 561 U.S. 661 , 675 (2010) (stipulations are judicial 25 admissions); Lopez v. Catalina Channel Express, Inc., 974 F.3d 1030 , 1033 n. 1 (9th Cir. 26 2020) ("Catalina admitted in its answer that it was a place of public accommodation, and 27 this admission is binding.") (emphasis added); Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, — 28 — 568 U.S. 455 , 470 n.6 (2013) ("Amgen conceded in its answer that the market for its 1 securities is 'efficient' …. [and] remains bound by that concession.") (emphasis added). 2 Defendants' argument that Jackie knew "temporary DCS custody might become 3 permanent" ignores the Court's obligation to draw all inferences for the nonmovant. And 4 Defendants' argument that they are not liable for the TCN's shortcomings ignores that 5 consent is based on the totality of the circumstances. 6 For those reasons, the Court will grant the motion for reconsideration as to Justin to 7 the extent the Court's Order reasoned that Jackie could withhold Justin's consent for him. 8 The Court will deny the motion as to Justin in all other respects. A trial is still needed to 9 determine whether Justin's consent was valid. 10 C. The Court will deny the motion for reconsideration as to the timing of Jackie's statements because it already found the timing was immaterial. — 11 — The Court reasoned that the timing of Jackie's statement was disputed because — 12 — (1) Defendants' arguments to the contrary were unpersuasive, (2) the Court must draw all — 13 — inferences for the nonmovant, and (3) the timing "is ultimately immaterial to the Court's — 14 — disposition[.]" Doc. 112 at 9 n.4. Defendants assert the Court should have examined — 15 — whether it was substantially justified or harmless to consider "Jackie Stein's late-breaking — 16 — story that she told Depke that she 'didn't want to do this anymore' and 'get out of her house' — 17 — after signing the consent form contrary to her interrogatory responses and the — 18 — Complaint[.]" Doc. 119 at 9–11. The Court disagrees. — 19 — Defendants could have raised these arguments previously and did in fact raise — 20 — similar arguments. See Doc. 106 at 3. They are not a proper basis for reconsideration. — 21 — Defendants also conspicuously ignore the Court's reasoning that the timing of Jackie's — 22 — statement was immaterial because Depke said "there [is] no turning back" after Jackie — 23 — withdrew her consent either way. See Doc. 112 at 1 (explaining the significance of Depke's — 24 — statement without reference to the timing), 15 (same), 16 (same), 25 (same), 26 (same), 27 — 25 — (same), 28 (same). As the Court observed, — 26 — Whether Depke's remark came before or after Jackie signed the TCN is 27 immaterial. Jackie was free to withdraw consent before signing or after. 28 Depke was mistaken to tell Jackie she could not. 1 Id. at 26. 2 For those reasons, the Court will deny the motion for reconsideration as to the timing 3 of Jackie's statements. 4 D. The Court will deny the motion for reconsideration as to Depke's beliefs regarding probable cause and consent but will also clarify its Order slightly. — 5 — The Court reasoned that Depke's belief she had probable cause was unreasonable in — 6 — part because (1) implying an argument in a motion for summary judgment "is not sufficient — 7 — to carry the initial burden," (2) Depke's statements were "ominously vague and not clearly — 8 — an explanation she would seek a court-authorized removal," and (3) the information Depke — 9 — gathered was disputed and susceptible to competing interpretations. Doc. 112 at 17–19. — 10 — The Court reasoned that Depke's belief she had consent was unreasonable "at least from — 11 — the time Depke said 'there [is] no turning back.'" Id. at 25. Defendants first assert the Court — 12 — erroneously relied on an absence of exigent circumstances to find Depke did not have — 13 — probable cause to remove C.S. Id. at 11–13. Defendants next assert the Court disregarded — 14 — or misinterpreted law that gave Depke reason to believe she had valid consent. Id. at 13– — 15 — 14. The Court is not persuaded but takes the opportunity to clarify some of its reasoning. — 16 — As to probable cause, Defendants could have raised these arguments previously and — 17 — did in fact raise similar arguments. See Doc. 89 at 12–13 (implying the Steins' consented — 18 — to avoid being in "a worse pickle"); Doc. 106 at 6–7 (explicitly arguing Depke could "easily — 19 — have … ask[ed] a court to find probable cause"). As above, the Court is well within its — 20 — discretion to deny an argument raised for the first time in a reply. The Court also considered — 21 — the merits in the alternative. Defendants address only some of the Court's examples of — 22 — competing evidence and inferences, not its observation that Depke's statements were — 23 — ominously vague. However, the Court will take the opportunity to clarify part of its Order. — 24 — The Court appreciated the distinction between probable cause and exigent circumstances, — 25 — see, e.g., Doc. 112 at 4 n.1, but could have made its reasoning more apparent. The Court — 26 — clarifies as follows: — 27 — DCS removed C.S. on October 9, 2019. Doc. 96 at 19 ¶ 27. At the time, the relevant — 28 — Arizona statute provided: 1 A. A child shall be taken into temporary custody only pursuant to one of the following: — 2 — 1. An order of the superior court. 3 2. Subsection D of this section ["exigent circumstances"]. 3. The consent of the child's parent or guardian. — 4 — …. 5 D. A child may be taken into temporary custody without a court order by a peace officer, a child welfare investigator or a child safety worker if — 6 — temporary custody is clearly necessary to protect the child because exigent 7 circumstances exist. …. — 8 — K. For the purposes of this section, "exigent circumstances" means there is 9 probable cause to believe that the child is likely to suffer serious harm in the time it would take to obtain a court order for removal and either of the 10 following is true: 11 1. There is no less intrusive alternative to taking temporary custody of the child that would reasonably and sufficiently protect the child's health or 12 safety. 13 2. Probable cause exists to believe that the child is a victim of sexual abuse or abuse involving serious physical injury that can be diagnosed only 14 by a physician who is licensed pursuant to title 32, chapter 13 or 17 or a health care provider who is licensed pursuant to title 32 and who has — 15 — specific training in evaluations of child abuse. — 16 — Ariz. Rev. Stat. Ann. § 8-821 . To summarize: "exigent circumstances means" (1) "probable — 17 — cause to believe the child is likely to suffer serious harm in the time it would take to obtain — 18 — a court order" plus (2) "no less intrusive alternative to taking temporary custody." Given — 19 — that statutory context, the Court understood Defendants' concession that there were no — 20 — exigent circumstances, Hr'g Tr. at 3:18–19, and Depke's statement that there were "no — 21 — apparent exigent circumstances," Doc. 91-1 at 246–47, as conceding that DCS did not have — 22 — probable cause. Defendants challenge that understanding. They say they were conceding — 23 — exigent circumstances under A.R.S. § 8-821(A)(2), not probable cause to get a court order — 24 — under A.R.S. § 8-821(A)(1). See Doc. 119 at 11–14. — 25 — Defendants' arguments are unpersuasive. Defendants first argue that probable cause — 26 — "is not a high bar," Doc. 119 at 12 (citing Kaley v. United States, 571 U.S. 320, 338 (2014)), — 27 — and requires only "'some credible evidence.'" Id. (citing Joseph V. v. McKay, No. 1 CA28 CV 17-0052, 2018 WL 4208988 , at *3 (Ariz. Ct. App. Sept. 4, 2018)). But drawing all 1 inferences for the Steins, Depke did not have credible evidence that C.S. was at risk of 2 neglect. All she had was evidence showing "the Steins were exhausted and expressing 3 themselves dramatically to convey the urgency of their need, not that they intended to 4 abandon C.S." Doc. 112 at 18. Defendants do not explain, for example, how the Court 5 could find the Steins were keeping C.S. unattended in his room while still drawing all 6 inferences for the nonmovant. Depke's investigation did include reviewing an email that 7 expressed concerns that "[C.S.] was placed in a room upstairs and the door was shut with 8 no supervision." Doc. 90 ¶ 12 (citing Doc. 91-1 at 243). But that same email also 9 acknowledged that "my supervisor … said there was nothing I could prove to elevate this 10 to DCS …. [and the whole team] stated maybe next time I could ask to see if [C.S.] had 11 the ability to let himself out[.]" Doc. 91-1 at 243. Drawing all inferences for the Steins, not 12 Depke, a reasonable official would not believe that the email was credible evidence of a 13 risk of neglect. That is just one example of what the Court meant when it said that 14 Depke's investigation is subject to "competing interpretations." Doc. 112 at 18. 15 Defendants are correct Depke could not account for evidence of which she was unaware. 16 Doc. 119 at 13. The Court was mistaken to consider any sources to the extent they were 17 beyond the reach of drawing inferences for the nonmovant. See Doc. 112 at 19:2–6. But 18 the evidence of which Depke was aware, drawing all inferences for the Steins, did not 19 amount to probable cause. Even if it had, the Court repeats that Depke's statements were 20 "ominously vague, not clearly an explanation that Depke would seek a court authorized 21 removal if consent was [withheld]." Doc. 112 at 18 (cleaned up) (citation omitted). 22 As to Jackie's consent, Defendants argue that they "reminded this Court of 23 controlling Ninth Circuit law, cited in their Reply, that …. the Court … appears to have 24 overlooked[.]" Doc. 119 at 13 (citing Loudermilk v. Danner, 449 F. App'x 693, 695 (9th 25 Cir. 2011)). Defendants made this argument already, Doc. 106 at 3, Doc. 111 at 4–5, and 26 the Court did not overlook it. It cannot form the basis for reconsideration. Even if it could, 27 Loudermilk is not precedential, see 449 F. App'x at 693 (citing Ninth Circuit Rule 36-3), 28 and easily distinguished. In Loudermilk, officials with evidence of exposed wiring in an 1 unfinished house explained to parents that the officials had probable cause for a court order 2 and would seek a court order unless the parents consented to removal. 449 F. App'x at 695 . 3 Here, by contrast, 4 Depke told Jackie not signing "would look bad," and "there was no turning back and [the Steins] might not get [C.S.] back." Doc. 96 at 18 ¶¶ 24, 26. — 5 — That is hardly the same as offering parents suspected of abuse or neglect an 6 option short of removal. Depke's statements were ominously vague, not clearly an "expla[nation] that [Depke would] seek a court authorized removal — 7 — if consent [was] denied." 8 Doc. 112 at 18. In Loudermilk, the court reasoned that "a reasonable police officer would 9 not have known that consent was involuntary when the police officers withdrew their initial 10 threat to enter the Loudermilk's home without a warrant." 449 F. App'x at 695 (citing 11 United States v. Patayan Soriano, 361 F.3d 494, 502 (9th Cir. 2004) (an unabated threat 12 renders consent involuntary)). Here, 13 The Steins were in a vulnerable subjective state—"desperate" and 14 "tearful[]"—following C.S.'s attack on Justin. Depke told Jackie she could not write in "signing under duress," and that it would "look bad" for the Steins 15 if Jackie refused to sign. After Jackie said she "didn't want to do this anymore" and asked Depke to leave, Depke refused and said "she was taking — 16 — [C.S.] no matter what, [a]nd there was no turning back." These facts fit within 17 three of the five [Ninth Circuit] factors: (1) they are evidence of coercive tactics, (2) they are evidence that at least Jackie did not know she could refuse — 18 — to consent, and (3) they are evidence of Depke telling the Steins that 19 withholding consent was futile in a threatening manner. These facts are also evidence of an unabated threat. — 20 — Doc. 112 at 15 (applying, among others, United States v. Patayan Soriano, 361 F.3d 494 , — 21 — 502 (9th Cir. 2004)). Thus, and as with probable cause, even if Depke had not just made — 22 — vague threats and had "explain[ed] that taking temporary custody of [C.S.] under Arizona — 23 — law was a 'viable option,'" Loudermilk, 449 F. App'x at 695 , that explanation would be — 24 — "baseless" under a summary judgment standard for drawing inferences. Cf. id. — 25 — Defendants next argue that the Court misapprehended two other cases they cited. — 26 — Doc. 119 at 14 (citing Smith v. Williams-Ash, 520 F.3d 596, 598 (6th Cir. 2008); Dupuy v. — 27 — Samuels, 465 F.3d 757, 761 (7th Cir. 2006)). Both involved "safety plans," which are: — 28 — restrictions short of removal … imposed pending completion of the state's 1 investigation into abuse or neglect. [They] might require that one of the parents leave the house where the child is living, or that he keep out of the — 2 — child's presence unless a designated family member is present as well, or that 3 the child be sent to live with other family members. 4 Dupuy v. Samuels, 465 F.3d 757, 760 (7th Cir. 2006); accord Smith, 520 F.3d at 598 5 (adopting Dupuy's reasoning). In Smith, 6 The safety plan informed the Smiths, "[Y]our decision to sign this safety plan is voluntary," and read: — 7 — 1. This safety plan is a specific agreement to help ensure your child(ren)'s 8 safety. 2. The custody of your child(ren) does not change under this safety plan. — 9 — 3. Children's Services is here to help you protect your child(ren) when you 10 may not be able to do it on your own. 4. If you cannot or will not be able to continue following the plan, 11 Children's Services may have to take other action(s) to keep your 12 child(ren) safe. 5. The safety plan will end when you are able to protect your child(ren) 13 without help from Children's Services. 6. This safety plan may be changed if new or different services are — 14 — necessary. 15 7. You must contact your caseworker immediately if you decide that you cannot or will not be able to continue following the plan. — 16 — 520 F.3d at 598 . Similarly, under Arizona law: — 17 — [DCS] may accept a voluntary placement agreement [("VPA")] only if the — 18 — department can provide necessary services that are likely to remedy the 19 circumstances that bring the child into care within the ninety day period and one of the following applies: — 20 — 1. The department plans to return the child to the parent, guardian or 21 custodian who signed the child into voluntary placement. 2. While the child is in voluntary placement, the parent, guardian or 22 custodian arranges a safe alternative placement for the child after the 23 voluntary placement. A.R.S. § 8-806(D). VPAs require written informed consent and are terminable "on receipt — 24 — of written revocation of consent by the parent, guardian or custodian." A.R.S. § 8-806(E). — 25 — Further, a VPA may not result in criminal culpability to the parent: — 26 — The fact of voluntary placement does not constitute abandonment, abuse or — 27 — dependency as defined in this article and may not be used in a judicial 28 proceeding as an admission of criminal wrongdoing by that parent, guardian 1 or custodian. 2 A.R.S. § 8-806(G). In its Order, the Court explained that it used the term "VPA" "because 3 it is standard in Arizona, see A.R.S. § 8-806(D)," even though "other jurisdictions use 4 'Voluntary Safety Plan' or 'Voluntary Separation Agreement.'" Doc. 112 at 8 n.3. When 5 discussing Dupuy, the Court first referred to it as involving "safety plans," Doc. 112 at 17, 6 then later as involving a "VPA." Doc. 112 at 19, 28 (together with Smith). Defendants 7 object to the latter characterization, arguing: 8 Smith and Dupuy discuss safety plans – which are not VPAs. A VPA is a statutory construction that allows the state, under limited circumstances, to — 9 — take legal custody of a non-neglected, non-abused child so that it can receive 10 services. Smith and Dupuy did not deal with VPAs. They discussed "safety plans," in which the parents consented to the state taking legal custody of the — 11 — children as an alternative to Court-ordered removal. …. That is exactly what 12 happened here. 13 Doc. 119 at 14. 14 Defendants are correct that Smith and Dupuy do not involve VPAs, but their 15 argument again misses the forest for the trees. The Court's reasoning applies whether the 16 Steins' options included a "safety plan" or a "VPA." The two are similar. VPAs may involve 17 state custody, Doc. 119 at 14:6, but safety plans to do not. See Dupuy, 465 F.3d at 760 18 (safety plans involve "curtailments of parental rights … less extreme than removing the 19 child from parental custody altogether"); Smith, 520 F.3d at 598 ("[T]he custody of your 20 child(ren) does not change under this safety plan."). Modified with Defendants' distinction, 21 the Court's reasoning applies without much difference: 22 [T]he facts surrounding at least Jackie's consent and motivation are substantially disputed. For example, the parties do not agree whether their 23 discussion of a family member taking C.S. for a few days, Doc. 96 at 16 ¶ 24 10, was a discussion of a [safety plan] like the one in Dupuy. Doc. 106 at 6 (citing Doc. 90 ¶ 14 (no mention of [safety plan]s); see also Doc. 96 at 17 ¶ 25 11 ("Depke never informed the Steins that DCS would have to take temporary custody of their son if the Steins were unable to make other — 26 — arrangements"); Doc. 96-7 ¶ 5 ("Depke never brought up the option of a 27 Voluntary Placement Agreement with us."). 28 Doc. 112 at 19. Similarly, 1 [Defendants'] cases are not binding on this Court and are not helpful to them in any event. …. [I]n Smith and Dupuy, the parents chose a [safety plan] to — 2 — avoid removal. Doc. 89 at 14 (citing Smith, 520 F.3d at 600 ; Dupuy, 465 F.3d 3 at 761). That is different from this case, where the Steins would have "immediately" accepted a VPA and did not understand what removal meant. — 4 — Doc. 112 at 28. Given that the Steins would have "immediately" accepted a VPA, and even — 5 — if a "safety plan" is less restrictive than a VPA because it does not involve state custody, — 6 — the Steins are also entitled to the inference that they would have "immediately" accepted a — 7 — less restrictive "safety plan" but were not told about them. Given the robust disclosure — 8 — apparently involved, see Smith, 520 F.3d at 598 , the Court finds it hard to believe that — 9 — Depke meant to inform the Steins of safety plans—any more than VPAs—merely by asking — 10 — whether C.S. could stay with a family member. A jury may feel differently and side with — 11 — Depke, but that is not for the Court to decide at summary judgment. — 12 — For those reasons, the Court will deny the motion for reconsideration as to whether — 13 — Depke could reasonably believe she had probable cause or had secured Jackie's consent. — 14 — E. The Court will deny the motion for reconsideration as to qualified immunity — 15 — because it already thought through the issue and remains unpersuaded. 16 The Court denied qualified immunity based on the "coercive aspects of the Steins' 17 account." Doc. 112 at 22. Defendants assert the Court manifestly erred because no cases 18 decided under similar circumstances notified Defendants that their conduct was 19 unconstitutional. See Doc. 119 at 14–15. First, Defendants argue they could not have 20 known removal based on a single parent's consent was insufficient, citing a district court 21 order issued after oral argument on the motion for summary judgment. Id. at 15–16 (citing 22 MacDonald v. Or. Health & Sci. Univ., 2023 WL 5529959 (D. Or., Aug. 28, 2023). Second, 23 Defendants disagree with the Court's analysis of two cases. Id. at 16–18 (citing LaDuke v. 24 Nelson, 762 F.2d 1318 (9th Cir. 1985), amended, 796 F.2d 309 (9th Cir. 1986), and United 25 States v. Shaibu, 920 F.2d 1423 (9th Cir. 1990)). 26 Defendants could have raised these arguments previously and did in fact raise 27 similar arguments. See Doc. 89 at 15 (arguing a reasonable official would not have known 28 that consent was ineffective under Arizona law); Doc. 106 at 8 (distinguishing LaDuke and 1 Shaibu). The district court order Defendants cite is not a "change in controlling law," and 2 the Court finds it unpersuasive in any event. Cf. MacDonald, 2023 WL 5529959 at *9–10 3 (declining to apply cases asserting rights and facts different from First Amendment law 4 applied to "a hospital enforcing a state-wide vaccine mandate in the face of a global 5 pandemic"). Here, by contrast, the Court applied Fourth Amendment law governing 6 warrantless searches and seizures to a warrantless seizure. 7 Defendants argue (again) that the Steins' Fourth Amendment cases are too different 8 to notify Defendants that their actions were unlawful. See Doc. 119 at 14–18. But the 9 admonition they emphasize—that the Court may not define a right too generally—does not 10 help them here. The question was whether clearly established law puts the issue beyond 11 debate. The law clearly illustrates that consent cannot be coerced. The law also illustrates 12 clearly enough what "consent" and "coercion" mean. Looking to those cases the Steins' 13 provided, Defendants could have appreciated that the circumstances they faced were 14 coercive. True, they "had no guns and no flashing lights." Doc. 119 at 17. But a few 15 common-sense observations could have clued them in. For example, 16 DCS … [is] commonly—and in this case specifically, see Doc. 91-1 at 33— associated with taking children away from their parents[,] [Doc. 112 at 26], — 17 — [and t]he Steins were in a vulnerable subjective state—"desperate" and 18 "tearful[]"—following C.S.'s attack on Justin. Depke told Jackie she could not write in "signing under duress," and that it would "look bad" for the Steins — 19 — if Jackie refused to sign. After Jackie said she "didn't want to do this 20 anymore" and asked Depke to leave, Depke refused and said "she was taking [C.S.] no matter what, [a]nd there was no turning back." — 21 — Doc. 112 at 15. Similarly, "a reasonable DCS official would have no confidence that one — 22 — parent's consent was a sufficiently good reason to remove a child when the other parent — 23 — stood there saying 'I don't want to do this anymore' and 'get out of my house.'" Doc. 112 at — 24 — 27. The fact that Arizona law might permit consent with one parent does not matter. First, — 25 — the Arizona law says only that consent of "the child's parent or guardian" is required for — 26 — temporary custody by consent. A.R.S. § 8-821 (emphasis added). The use of the definite — 27 — article could mean that consent is required from anyone who is "the" parent, whether one — 28 — or two. Defendants cited no cases to the contrary. The statute could also mean "the child's || parent” as opposed to "the child's parents." Defendants cited no authority for that proposition, either. In any event, the plain language is ambiguous. Defendant's previous 3 || point that requiring consent from both parents would not be "sensible," Doc. 89 at 12 n. 4, 4|| is also unpersuasive. That approach seems more sensible than permitting removal from one 5 || parent with consent from the other, especially when both are present. Second, and finally, || Defendants are expected to appreciate that federal law governs constitutional rights. They || are also expected to appreciate that removing children implicates constitutional rights. So 8 || ambiguous state law could not and cannot help them. 9 For those reasons, the Court will deny the motion for reconsideration as to qualified || immunity. 11} I. Order 12 Accordingly, 13 IT IS ORDERED GRANTING IN PART Defendants’ Motion (Doc. 119) to the || extent the Court previously reasoned that Jackie could withhold Justin's consent for him. 15 IT IS FURTHER ORDERED DENYING IN PART Defendant's Motion || (Doc. 119) in all other respects. 17 IT IS FURTHER ORDERED AFFIRMING trial, which is scheduled to begin on |) April 22, 2024. 19 Dated this Ist day of November, 2023. — 20 — 21 f 4) . | HK Aa— 3 / / John C. Hinderaker _/United States District Judge — 24 — — 25 — — 26 — — 27 — — 28 — -19-