N. E. L., et al. v. Douglas County, Colorado, et al.

Qualified immunity, to many observers, has transmogrified into absolute immunity. Lawyers from across the ideological spectrum joined in remarkable amici curiae briefs1 articulating problems with the same element of qualified immunity as is central to this case, namely, the “clearly established right” requirement. Magnifying the importance of the question here is the fact that government employees from two states engaged in a cross-border agreement to circumvent Colorado statutes which were specifically designed to prevent summary child snatchings. Agreements like the one here are an outrageous government encroachment upon procedural due process and warrant requirements, and upon the traditional parameters of Full Faith and Credit, the right to travel, and the Privileges and Immunities Clause. The agreement here is not unheard of,2 but precedent “directly on point” will be unlikely in any given circuit. The primary question, therefore, at the Rule 12(b)(6) stage of the case, is whether Petitioners’ summary removal from one state (Colorado) to another (Kansas) violated clearly established rights to procedural due process, a warrant or a valid court order (rights which were also codified in Colorado’s Uniform 1 See amici briefs in this Court’s Milling case, No. 17-8654. 2 See, e.g., Arkansas Dep’t of Human Serv v. Cox, 82 S.W.3d 806, 811, n. 1 (Ark. 2002) (not involving 42 U.S.C. § 1983).