Capp, et al. v. County of San Diego, et al., No. 18-55119 (9th Cir.) October 4,2019.


Jonathan Capp, going it alone in the judicial labyrinth, twice failed to persuade a trial court that he had been drawn into parental rights proceedings because he railed against the allegations made against him. The trial court twice dismissed his claim, first as insufficiently plead and again as barred by qualified immunity.

The Ninth Circuit has concluded that Capp in fact may assert a claim for violation of his First Amendment rights.  

During divorce proceedings, Capp became the object of San Diego Health and Human Services Agency inquiry. 

A county social worker contacted Capp to discuss his children and alleged substance abuse.  The children were interviewed without his consent.

Capp states that the social worker refused to answer his questions and terminated the interview.  Capp protested in writing to the social services agency. 

The San Diego family court dismissed a custody proceeding said to have been initiated by Capp’s wife at the social worker’s behest.  The family court denied the relief sought and chastised the agency.

A volley of correspondence and corrections ensued.  Capp was told allegations against him had been substantiated, then not, then told he was listed on a state registry concerning child abuse, then not.

Capp sued the social worker, social work supervisors, and the Health and Human Services Agency, claiming violations of his constitutional rights, in particular his right to be free from retaliation for exercising his First Amendment right to speak out against the proceedings initiated against him.

The Ninth Circuit reiterated the well established principle that speech protesting government action is constitutionally protection.  Retaliation for exercising that right is actionable. If an official act would inhibit an ordinary person from exercising First Amendment rights, the wrong may be reviewed in court. Thus, an injured person may succeed if it can be established that retaliation was a substantial or motivating factor in encouraging initiation of custody proceedings.  

Relief by means of a retaliation claim may be pursued even if it is recognized that the state and its social work are obliged to investigate claims of child abuse.  The presence of a legitimate motive will not, by itself, defeat the retaliation claim.

Where an individual can show that there was no substantiated concern for safety and that the individual was treated differently from others in similar circumstances, that evidence will permit an inference that retaliation prompted official action.

Even if Capp were able to show that retaliation for asserting his First Amendment rights to speak in protest of the child protective services agency’s actions, and that this was a motivating or substantial factor in encouraging Capp’s wife’s ex parte custody proceedings, the social workers would enjoy qualified immunity from suit unless they were found to have violated a clearly established constitutional right.

The Ninth Circuit recognized that a clearly established precedent recognized that the government cannot take action that would chill protected speech out of retaliatory animus for that speech.  Opinion, p. 22. Any government official would recognize that threatening legal sanctions or coercive action would violate the First Amendment and, as such, the social workers were not entitled to qualified immunity as a matter of law on appeal, although it could be explored further on remand.

The Ninth Circuit upheld dismissal of Fourth and Fourteenth Amendment claims as the question whether children are entitled to be free from unreasonable searches has not been clearly established and because, while the termination of parental rights could be seen as a violation of substantive due process rights, there is no right to be free from investigation.  As the Fourth Amendment claim failed, so too would the municipal liability claim, particularly where only a conclusory allegation was articulated.

JustLawful Observation:  The Ninth Circuit noted that its articulation of a potential claim in this case was quite close.  Nonetheless it would be unwise to read the decision as anything other than a cautionary tale for those charged with the administration of child protective services. 

Capp v. Cnty. of San Diego (9th Cir., 2019)

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