Janette Dunkle v. Jennifer Dale, et al.

This Court has deliberately left open whether a U.S Supreme Court decision (as opposed to a Circuit Court decision) is required to “clearly establish” a constitutional right when refusing qualified immunity to a state official. Reichle v. Howards, 566 U.S. 658, 664- 666 (2012). But in guiding lower courts as to whether a right is “clearly established,” this Court has used language that allows both a narrow, case specific test and a broad, fair warning test.s (shown infra). As a result, lower court decisions have varied widely in their approach. (shown infra). Below, the Ninth Circuit held it was bound by the narrow approach taken in Kirkpatrick v. County of Washoe, 843 F.3d 784 (9th Cir. 2016). Kirkpatrick conflicts with the approach taken in other Circuits, as well as with other Ninth Circuit cases. (shown infra) Kirkpatrick also laments that “[n]o Supreme Court precedent defines when a warrant is required to seize a child. . . .” Kirkpatrick, 843 F.3d at 793. The issue before this Court is whether the Ninth Circuit erred in applying the narrow approach from Kirkpatrick; and, if it did so err, whether any Circuit level opinions (which state plainly that an emergency is required to justify a warrantless child seizure) are sufficient to “clearly establish” such law—or whether a decision of this Court is necessary to “clearly establish” such law.1 1 Petitioner reserves for later argument that the termination proceeding was tainted by Dale’s false testimony and that