MLK said: "Injustice Anywhere is a Threat to Justice Everywhere"

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Monday, June 27, 2011

Judges Gone Wild: One Judge Allegedly Choked Another Judge

Ann Bradley Accuses Fellow Wisconsin Supreme Court Justice David Prosser Of Choking Her
The Huffington Post  -  June 26, 2011

MADISON, Wis. -- A Wisconsin Supreme Court justice has accused another justice of choking her during an argument in her office earlier this month – a charge her colleague denied.  Supreme Court Justice Ann Walsh Bradley told the Milwaukee Journal Sentinel that Justice David Prosser put her in a chokehold during the dispute. She contacted the newspaper late Saturday after Prosser denied rumors about the altercation.  "The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger in a chokehold," Bradley told the newspaper.  Prosser said in a statement the allegations "will be proven false" once a "proper review of the matter and the facts surrounding it are made clear."  Wisconsin Public Radio and the Wisconsin Center for Investigative Journalism, quoting anonymous sources, reported Saturday that the argument occurred before the Supreme Court's decision earlier this month upholding Republican Gov. Scott Walker's bill eliminating most of public employees' collective bargaining rights.  The argument allegedly took place in front of several members of the court. Messages that The Associated Press left with several justices and Capitol Police Chief Charles Tubbs were not returned.  A divided Wisconsin Supreme Court, in a 4-3 decision that included a blistering dissent, ruled that Dane County Circuit Judge Maryann Sumi overstepped her authority when she declared the polarizing union law void.  The fight over passage of Walker's collective bargaining bill came in the weeks leading up to a hotly contested state Supreme Court election, which conservative incumbent Prosser eventually won after challenger JoAnne Kloppenburg conceded defeat in late May. Supporters of Walker largely backed Prosser in hopes he would uphold the union rights bill in a legal challenge.

The First Priority Is Always The Lawyers' Bank Accounts

Divorce lawyers have reason to celebrate New York's legalization of gay marriage, too
The New York Daily News by Lukas I. Alpert  -  June 27, 2011

Same-sex couples aren't the only ones rejoicing over New York's legalization of gay marriage - divorce lawyers are also breaking out the champagne.  More marriages will ultimately mean more divorces - and in the short-term more prenuptial contracts to draw up, experts say. "We are certainly going to see a significant increase in business over the next decade," said Manhattan attorney Alton Abramowitz, who is also vice president of the American Academy of Matrimonial Lawyers.  While he says a spike in divorce cases isn't likely to emerge for at least five years, a surge of couples seeking prenups is certain to come knocking on lawyers' doors.  "We will probably see a big increase in business right away with prenups," he said. "A lot of gay and lesbian couples have waited a long time and are older and have therefore accumulated greater levels of wealth."  The final passage late Friday of a bill legalizing same-sex marriage in New York is expected to be a boon for many industries that serve brides and grooms.  But while florists, cake-makers and wedding dress stores cater to visions of happily ever after, divorce attorneys are preparing for the dark side of marriage to emerge down the road.  "The real impact for us will come over the next decade," Abramowitz said. "Probably not over the first five years but after that. Marriages tend to begin experiencing stress after five to seven years."  He said divorce lawyers in states that have already legalized gay marriage have yet to see a spate of splits simply because the change has happened too recently.  As the city clerk's office prepares for a big influx of couples eager to wed, Abramowitz says many will be paying a visit to their lawyers' offices first.  Overall, he says the market for prenuptial agreements has grown dramatically in New York. "This has been a growth area with hetero couples for many of the same reasons," he said. "There has been huge wealth accumulated in New York due to Wall Street, and people are getting married later in life so they've had more time to earn."  lalpert@nydailynews.com

Monday, June 20, 2011

Corruption Has Destroyed Checks and Balances, Oversight Now Irrelevant

Death of the Duopoly
The Wall Street Journal by Nick Gillespie and Matt Welch - June 18, 2011
Being binary is bad for business, so when will politics cure its bipolar disorder? Nick Gillespie and Matt Welch on the lessons Washington should learn from the real world.

DUOPOLY- (noun) - a situation in which two suppliers dominate the market for a commodity or service

Democrats and Republicans are at risk of becoming irrelevant, says Reason.com's Nick Gillespie, as more voters identify as Independents or with other groups like the Tea Party. He talks with WSJDN's Kelsey Hubbard about the shortcomings of the longstanding duopoly in American politics.  Nothing in American life today seems as archaic, ubiquitous and immovable as the Republican and Democratic parties.  The two 19th-century political groupings divide up the spoils of a combined $6.4 trillion that is extracted each year from taxpayers at the federal, state, county and municipal levels. Though rhetorically and theoretically at odds with one another, the two parties have managed to create a mostly unbroken set of policies and governance structures that benefit well-connected groups at the expense of the individual.  Americans have watched, with a growing sense of alarm and alienation, as first a Republican administration and then its Democratic successor have flouted public opinion by bailing out banks, nationalizing the auto industry, expanding war in Central Asia, throwing yet more good money after bad to keep housing prices artificially high, and prosecuting a drug war that no one outside the federal government pretends is comprehensible, let alone winnable. It is easy to look upon this well-worn rut of political affairs and despair.

Journal Community

And Americans are, in increasing numbers. Perhaps the most important long-term trend in U.S. politics is the four-decade leak in market share by the country's two dominant parties. In 1970, the Harris Poll asked Americans, "Regardless of how you may vote, what do you usually consider yourself—a Republican, a Democrat, an independent or some other party?"  Fully 49% of respondents chose Democrat, and 31% called themselves Republicans. Those figures are now 35% for Democrats and 28% for Republicans. While the numbers have fluctuated over the years, the only real growth market in politics is voters who decline affiliation, with independents increasing from 20% of respondents to 28%.  These findings are consistent with other surveys. In January, Gallup reported that the Democrats were near their lowest point in 22 years (31%), while the GOP remained stuck below the one-third mark at 29%. The affiliation with the highest marks? Independent, at 38% and growing. In a survey released in May, the Pew Research Center found that the percentage of independents rose from 29% in 2000 to 37% in 2011.  It is generally taken for granted that the Democrats and Republicans will always be around. But that may just be the influence of what cognitive scientists call "existence bias"—the pervasive idea that the status quo is stable and ongoing. What if the same factors that have given our incumbent parties an advantage also threaten to hasten their demise?  Economists have a particular fondness for studying what Democrats and Republicans have become: the longest-lived duopoly in American history. The Nobel Prize-winning economist John Forbes Nash (the subject of the book and movie "A Beautiful Mind") was all about duopolies. He showed that two powerful competitors frequently end up locked in a stable, mutually beneficial dance of tit-for-tat—they collude, in short, to carve up a captive market. Economists have paid less attention to the chief vulnerability of duopolies: How collusion against the interests of customers produces an inevitable revolt, sweeping one or both dominant players into the dustbin of history.

In a widely circulated 2009 paper surveying the economic literature on the topic, the late Larry F. Darby presented a list of classic duopolies, including such familiar pairings as MCI and AT&T, and Macy's and Gimbels. Tellingly, several of the players no longer existed: MCI (then known as WorldCom) became history's largest bankruptcy in 2003; Gimbels was the country's dominant department store chain in the 1930s but went out of business in 1987.  There is nothing inherently stable about two organizations dominating a particular market in the hurly-burly of modern American life. In fact, there are many reasons to suspect that such arrangements are unstable—particularly when technology allows captive consumers to flee. It is worth taking a closer look at one case on Mr. Darby's list: Kodak and Fujifilm. For much of the 20th century, Kodak was synonymous with color photography. Memories captured on film were "Kodak moments," and the Dow Jones Industrial Average listed the company for more than seven decades. At one point it enjoyed an amazing 96% share of the U.S. market for film. Such was its dominance that the federal government sued Kodak for antitrust violations not once but twice, producing out-of-court settlements in 1921 and 1954. Fujifilm began competing with Kodak globally in the 1970s and seriously in the U.S. after the 1984 Olympics. Though always the junior partner on Kodak's home turf, the conglomerate held its own enough that the duopoly soon attracted academic studies. Their underlying assumption was that the duopoly would be stable for the foreseeable future. But the studies were wrong. The share price of Eastman Kodak tumbled from $60 in 2000 to below the $4 mark by 2011.  What happened? Like many duopolies, Kodak and Fujifilm treated their customers like captives, forcing them to pay for pictures they didn't want and steering them toward ever-pricier analog products. This worked as long as consumers had nowhere else to turn. But digital technology, as we know, changed all that, giving customers not just a Kodak/Fuji-free workaround, but the power to make, delete, alter and otherwise control their own creative product. Or consider the American craft-beer revolution, which people who went to college in the 1980s or before can testify is almost impossible to believe. As in politics, a duopoly—Anheuser-Busch InBev and MillerCoors—soaks up the vast majority (around 80%) of market share. But now the legacy giants are steadily leaking market share and buzz, while upstart craft-beer makers are cashing in on the only sector of the industry showing consistent growth.  Netscape or Internet Explorer, Crest or Colgate, stuffing or potatoes: When given real choice, especially the choice to go elsewhere, consumers will drop even the most beloved of brands for options that enhance their experience and increase their autonomy. We have all witnessed and participated in this revolutionary transfer of loyalty away from those who tell us what we should buy or think and toward those who give us tools to think and act for ourselves. No corner of the economy, of cultural life, or even of our personal lives hasn't felt the gale-force winds of this change.

Except government.

Think of any customer experience that has made you wince or kick the cat. What jumps to mind? Waiting in multiple lines at the Department of Motor Vehicles. Observing the bureaucratic sloth and lowest-common-denominator performance of public schools, especially in big cities. Getting ritually humiliated going through airport security. Trying desperately to understand your doctor bills. Navigating the permit process at city hall.  Whatever examples you come up with, chances are good that the culprit is either a direct government monopoly (as in the providers of K–12 education) or a heavily regulated industry or utility where the government is the largest player (as in health care). Unlike government, Kodak doesn't have a guaranteed revenue stream. If consumers abandon its products, sales will be zero, and the company will disappear. The history of private-sector market dominance is filled with such seemingly sudden disappearing acts: Big-box music retailers and bookstores were supposed to bestride the land like colossi at the turn of our new century, but Virgin megastores have all but disappeared, and Borders has just gone bankrupt.

A more efficient system is on the doorstep of our most stubborn, foot-dragging sector: government.
There is a positive correlation between an organization's former dominance and its present-day inability to cope with change. As the technology business consultant Nilofer Merchant has aptly put it, "The Web turns old industries on their head. Industries that have had monopolies or highly profitable duopolies are the ones most likely to be completely gutted when a more powerful, more efficient system comes along."  Fortunately, a more efficient system is finally on the doorstep of America's most stubborn, foot-dragging, reactionary sector—government at the local, state and especially federal levels—and its officially authorized, customer-hating agents, the Democrats and Republicans.  As the number of independents rises, voters who are free from party affiliations are more inclined to view political claims with due skepticism. By refusing to confer legitimacy on the two accepted forms of political organization and discourse, they hint strongly that another form is gathering to take their place.  Something potentially revolutionary is afoot in our politics. The Bush-Obama era of bailout economics and perennially deferred pain has produced a political backlash. When blue-state California was allowed in May 2009 to pass judgment on a multipart budget-fix referendum that had received nearly unanimous support from the state's politicians and interest groups, the measures lost by an average of 30 percentage points, despite opponents having been vastly outspent. Eight months later, unknown Republican Scott Brown won Teddy Kennedy's old Senate seat in overwhelmingly Democratic Massachusetts. Congressmen mostly canceled their traditional August town hall meetings in 2010 after getting too many earfuls in 2009.

For the first time in recent memory, participants in the political process, many of them newly engaged, are openly imagining and pushing for a world other than the one they currently live in. Voters are seizing control over the means of production, meeting up with strange new subgroups, and having a blast in the process. The future—even the present—belongs not to the central re-election committee but to the decentralized single-issue swarm. Wherever both parties have colluded in erecting a roadblock to the desires of American voters, there are citizen groups creating angry and effective coalitions to confront the status quo.  The decentralized and effectively leaderless Tea Party is the most potent example of this permanent non-governing minority. The movement has focused like a laser beam on what all but a few Washington politicians won't dare to touch: actually cutting spending and debt. Whether the group will be able to maintain its emphasis on stanching the nation's flow of red ink while avoiding divisive social issues is an open question. But there's no denying that the Tea Party's biggest impact has come by backing challengers to entrenched Republican candidates.  A similar phenomenon is visible in rising opposition to the drug war. Last fall, people from the far right, the far left and everywhere in between banded together in California to push an outright marijuana-legalization law. The initiative, derided as crazy by California's political class, pulled an impressive 46.5% of the vote.  And in the school-choice movement, politicians such as New Jersey's Republican Gov. Chris Christie and Newark's Democratic Mayor Corey Booker may agree on nothing else but ending the public school monopoly on K-12 education.  Such new configurations do not mean that the Democrats and Republicans will disappear anytime soon. Unlike Kodak and Fujifilm, they have a guaranteed revenue stream, and they get to write their own rules for survival. But the demonstrated ability of disgruntled voters to create whole new ways of doing things has made our political duopolists less secure and complacent.  At a time when governments at every level have run out of money, the smart politicians will figure out how to unbundle policy options and speed up the sort of innovation that has made most areas of our lives better than they were 40 years ago.  And the dumb politicians? They'll go the way of Kodak. —Adapted from "The Declaration of Independents: How Libertarian Politics Can Fix What's Wrong with America" by Nick Gillespie and Matt Welch, to be published by PublicAffairs on June 28. 

Sunday, June 19, 2011

Lawyers and Accountants Once Put Integrity First

Lawyers and Accountants Once Put Integrity First
The New York Times  -  OP-ED  -   by Mark W. Everson  -  June 18, 2011

Indianapolis-  NEARLY a year after President Obama signed into law a huge overhaul of financial regulations, little on Wall Street seems to have changed. Regulators appear to be dragging their feet on finalizing the tough new rules that the law, known as Dodd-Frank, authorized them to write. The Consumer Financial Protection Bureau has yet to get off the ground. State attorneys general are still pressing mortgage servicers for a financial settlement over the widespread fraud and abuse in lending practices. It will take decades to fully untangle the causes of the 2008 financial crisis, but as our economy fitfully heals, it would be prudent to ask whether lawyers and accountants offer the same protection against corporate misconduct that they once did. Three or four decades ago, investors and regulators could rely on these professionals to provide a check on corporate risk-taking. But over time, attorneys and auditors came to see their practices not as independent firms that strengthen the integrity of capitalism, but as businesses measured chiefly by the earnings of their partners.

When my father finished Harvard Law School in 1948, he went to work at one of the best law firms in New York. It was an era in which top-end legal work for the nation’s biggest companies was handled by a limited number of firms that drew their entering lawyers from a handful of schools. But that didn’t mean instant prosperity for the new attorney. Earning $3,600 a year, my dad shared a two-bedroom apartment in Greenwich Village with three classmates. At the time a United States District Court judge was paid a salary of $15,000. Today, a judge’s salary has gone up slightly more than tenfold, a bit more than the increase in inflation. A new lawyer at the firm where my father worked, however, is pulling down well over 40 times what my dad first earned. I also began my career in New York, in 1976, as an auditor with one of what was then the Big Eight (now the Big Four accounting firms). Salaries were increasing, but top-tier accounting and law firms were still operating pretty much as they always had. To be sure, you lived well. But moving up the ladder, you didn’t expect to get rich. Wealth was reserved for business owners (and generally for corporate executives), talented investors and investment bankers who risked their own capital. One’s stature derived from the respect accorded an independent professional. The mission of the junior accountant or lawyer was clear to all: help clients adhere to professional standards and follow the law. Beyond that, do your best to differentiate your firm based on superior service. Necessarily, the actions of outside professionals were guided by a cautious orientation. I remember one partner advising a bunch of young auditors examining the financial statements of several of the biggest companies in the world, “If you try hard enough, you can always make the numbers add up.” His point was clear: technical compliance alone was not sufficient. Substance mattered.

Recent decades have seen a new model take root: a business plan tied to partner earnings. Obviously, to pay employees more and to increase partner pay to its present, staggering levels, billings needed to grow. Perhaps today’s approach to fee generation by leading law firms was best stated in a recent Wall Street Journal article about partners billing over $1,000 per hour. Said one such lawyer, “The underlying principle is if you can get it, get it.” Imagine a doctor saying that, for attribution, about an organ transplant.  Understandably, corporate clients are reluctant to pay through the nose for advice on how to color safely within the lines. Whereas concern for a company’s reputation on the part of its executives historically served to reinforce the conservative influence of the outside professionals, it is well documented that attitudes have shifted within corporations themselves. One need look no further than General Electric’s no-longer-obscure tax department to see how traditional law and accounting functions have morphed into profit centers. Lawyers and accountants who were once the proud pillars of our financial system have become the happy architects of its circumvention. Nowhere is this more the case than in the world of tax law. Companies (and wealthy individuals) pay handsomely for tax professionals not just to find the lines, but to push them ever outward. During my tenure at the Internal Revenue Service, the low point came when we discovered that a senior tax partner at KPMG (one of the Big Four, which by virtue of their prominence set standards for the others) had advocated — in writing — to leaders of the company’s tax practice that KPMG make a “business/strategic decision” to ignore a particular set of I.R.S. disclosure rules. The reasoning was that the I.R.S. was unlikely to discover the underlying transactions, and that even if we did, any penalties assessed could be absorbed as a cost of doing business.  Just what role outside professional firms played in the genesis of the financial crisis has not been adequately explored. Perhaps it never will be. But at a minimum, we know that the widespread documentation problems associated with bank foreclosures demonstrate that in too many instances, attorneys and accountants abandoned their duties to assure integrity. Further, it seems unlikely that professionals will, of their own initiative, return anytime soon to their traditional posts as vigilant sentries guaranteeing the financial system’s integrity.

WHAT should be done? For starters, Congress should take a hard look at the doctrine of attorney-client privilege as it applies to corporations. Communications pertaining to patents, or threatened or actual litigation, should remain protected. But communications about, say, commercial transactions and financing and even government-mandated filings and disclosures might not. Simply stated, lawyers will be less likely to stretch the acceptable to earn a high fee or secure repeat business if their counsel is subject to more outside scrutiny.  This would no doubt change the way regulators and prosecutors examine the roles of outside lawyers and law firms when investigating significant corporate failures — a good thing, in my view.  To open this can of worms would touch off howls of outrage from the American Bar Association and others. Nevertheless, such a debate would be healthy, especially when policy makers are struggling to find the proper distinction between the rights and protections afforded companies versus those granted to individuals, notably in the political process.  A second idea is for corporations to reassess their compensation practices for financial and legal executives. Just as some large businesses are moving to separate the position of board chairman from that of chief executive in order to provide for stronger governance, companies might also consider development of a new pay scheme for their financial and legal personnel. This would mean paying handsome, multiyear fixed salaries to the chief financial officer, the general counsel and their top deputies — but without offering the opportunity for equity participation. Such an approach would sharply limit the temptation to inflate shareholder value at the expense of business substance.  Big businesses have always sought to gain competitive advantage over others and certainly to minimize taxes, as have any number of taxpayers. Fair enough. But we have seen that globalization, business complexity and an unworkable tax code have obscured the understanding of risk. Politicians are reviewing our system of corporate taxation — none too soon if our nation is to prosper as it has in the past. We should look at all the moving parts in our financial system — starting with the outside professionals — not just Wall Street and Washington. Mark W. Everson, the commissioner of the Indiana Department of Workforce Development, was the commissioner of the I.R.S. from 2003 to 2007.

Lawless Retaliation Alive and Well for Ignoring Double Standards

Staten Island Conservatives endorse Democrat Michael Ryan to run vs. GOP D.A. Donovan this fall
The Staten Island Advance by Tom Wrobleski  -  June 17, 2011  -  www.silive.com


STATEN ISLAND, N.Y. -- In a stunning upset that is being chalked up to Conservative Borough President James Molinaro's long feud with GOP District Attorney Daniel Donovan, Staten Island Conservatives last night endorsed Democrat Michael Ryan to run against Donovan this fall. The outcome sparked a scalding new rupture, this one between Molinaro and former GOP Borough President Guy Molinari, Donovan's campaign chairman, who said the new rift "is never going to be healed." "I've been disappointed in Molinaro before, but this is the last straw," Molinari said of his friend and political ally of 40 years. "To keep this vendetta going is ridiculous." Molinaro was Molinari's Borough Hall deputy and congressional chief of staff. "I'm not taking it anymore," said Molinari. "I haven't been comfortable with him for a number of years."  Molinaro, who did not attend the convention, could not be reached for comment. The secret-ballot vote, which went 30-23 in Ryan's favor with six abstentions, left Conservatives in stunned silence at their county convention in The Road House, Sunnyside. "Clearly, it's political," said Conservative chairman Carmine Ragucci, who said he was surprised by the outcome. In a stunning move, Molinaro's Conservatives snub Donovan in favor of Democrat Michael Ryan. Molinari charges that the Ryan selection was steeped in Molinaro's long-running feud with the D.A.  Conservatives were so stunned that they counted the paper ballots three times before announcing the result. Ragucci said it was hard to fathom that the party was endorsing "a liberal Democrat." Ryan, who lost to Donovan four years ago, favors gay marriage, abortion rights and other issues that are anathema to Conservatives. "For our party, it doesn't look good," Ragucci said.

SHOW OF SUPPORT

"A lot of these people know Jim Molinaro," said one committee member. "Some are his friends and family members. They did this to show they support Jim." The committee also includes top members of Molinaro's Borough Hall staff as well as his longtime companion, Joan Cusack. Molinaro had said in recent weeks that he would not lobby behind the scenes to secure the endorsement for Ryan, but members of the Donovan camp remained wary. "He laid low," one said last night. "This is so unnecessary." Donovan had been endorsed by the borough party in both his prior races for district attorney. He declined to comment last night, but has previously said he is confident he can win without the Conservative line. Donovan, who was first elected in 2003, also could gather petition signatures to launch an opportunity-to-ballot effort to snag the endorsement, an arduous process that is rarely successful. While Molinaro has prided himself on being politically pragmatic in backing Democrats in the past, including U.S. Sen. Charles Schumer, Gov. Andrew Cuomo and former Rep. Michael McMahon, the Ryan endorsement is seen as grounded in personal animosity. An off-Island Conservative said, "The county committee is controlled by Jimmy Molinaro. Staten Island Conservatives are more and more an adjunct of the Democratic Party." State Conservative chairman Michael Long, whose party backed Donovan in his 2010 bid for state attorney general, could not be reached for comment.

FALLING OUT

Donovan was Molinaro's deputy borough president, but the two fell out after Donovan in 2007 called for a special prosecutor in a case involving Molinaro's grandson. The case, which occurred amidst Donovan's first re-election bid, resulted in the younger Molinaro's being sentenced to jail time, sparking Molinaro's enmity. The two no longer speak, and Molinaro that year urged Conservatives in a full-page ad in the Advance and in a personal letter to vote for Ryan, even though Donovan was the Conservative candidate.  Donovan won that election with 68 percent of the vote. Molinari said it was wrong of Molinaro to expect Donovan to breach the ethics of his office in the case.  Donovan was Molinari's Borough Hall chief of staff. "Is Molinaro going to put his ethics alongside Dan Donovan's?" he said. "I'd like to see the people vote on that." Molinari said that Molinaro was in office "because of me." "If this is how he wants to go out, that's his problem," said Molinari. "We'll see you in the street." After interviewing both candidates earlier this week, the borough party's executive committee last night backed Donovan over Ryan by 8-4, with three abstentions. But the result was far different on the convention floor, despite a speech in Donovan's favor from Daniel Master Sr., a founder of the state Conservative Party and one of the organization's most revered figures. "I'm shocked by the vote," Master Sr. said afterward. When asked if he thought the feud was behind the endorsement, he said, "I don't know. But if that's what it solely came down to, I'm sad." Master's son, Daniel Jr., also a Conservative, is Donovan's chief assistant district attorney. In nominating Donovan, Master Sr. said, "Why abandon Dan Donovan, a true conservative?"

"This should be a shoo-in," he said. He called Ryan "a liberal Democrat defense attorney" who is "not qualified" to be district attorney. "He is certainly not a conservative," said Master Sr. Realtor Fran Reali also spoke in Donovan's favor. Realtor George Wonica Jr. nominated Ryan from the floor, saying Ryan had "worked very well with the community" and was "a well respected attorney."  Arriving at The Road House after the vote, Ryan said he was "honored and humbled" by the endorsement. "This is not about one party, but about what's best for Staten Island," he told the Advance. "The Conservative Party recognizes that I'm the best person moving forward to lead the office." The Conservative line is a boost to Ryan's candidacy and also deprives Donovan of a spot where Democrats, notoriously reluctant to vote on the GOP line, can vote for him. Ragucci said he still believes that rank-and-file Conservatives will vote for Donovan. There are 4,395 registered Conservatives in the county, according to the state Board of Elections.  Incoming Republican chairman Robert Scamardella said Republicans will "double down on their efforts to get an extraordinary prosecutor re-elected." The borough Independence and Working Families parties have not yet made an endorsement in the race.   blog.silive.com/politics/

Saturday, June 18, 2011

More Antics From So-Called 'Ethics' Panels

Ethics panel drops pursuit of almost $200K in fines
The Palm Beach Post by John Kennedy  -  June 17, 2011

The Florida Commission on Ethics walked away Friday from almost $200,000 in fines owed by dozens of public officials — acknowledging the scofflaws had outlasted a four-year statutory limit on the penalties. The decision is the first of several free passes likely to be issued by the commission in coming months. The penalties dropped Friday covered only officials who began accumulating fines 10 years ago for failing to file state-required financial disclosure reports.  But more than $300,000 is owed by almost 300 former public officials for fines building between 2001 and 2006. The commission is likely to drop their pursuit of those from later years, but Commission vice-chair Robert Sniffen said Friday’s move sends a bad message, especially to those who seek to comply with disclosure laws. “What really kills me on this is that we have folks who come here from around the state, present their case and plead for clemency if they’ve made a mistake,” Sniffen said. “Those are the people I feel the worst for. The diligent, who take their medicine, pay their fines and move on. “Then there’s those who flaunt the limitations of the commission. It’s shameful that you don’t respect the authority of this commission enough to pay the debt you are incurring,” he concluded. The 168 officials absolved Friday by the commission typically served on municipal boards, pension committees and other public organizations that make up the low-minor leagues of state politics. Those from Palm Beach County included Allison Harty, a former Delray Beach city clerk whose $1,500 fine dates to 2001; Christopher Decker, who served on the Lantana Firefighters Board of Trustees in 2001, also owes $1,500, according to ethics panel records. Decker and Harty couldn’t be reached this week. Indeed, the commission has dropped penalties after those on the list apparently for years avoided two collection agencies the state has used to pursue debtors. The commission was told that sometimes, fines are paidby former officials seeking to clear the debt off a credit report. But commission staff conceded it wasn’t certain the unpaid penalties prove much of an obstacle for those who don’t pay.  Commission records show the nine-member panel collected $74,333 in 2010 from public officials penalized for not submitting financial disclosure forms. The compliance rate for those required to file reports also has reached 99 percent, up from 92 percent a decade earlier, the commission said. Still, Friday’s write-off comes after the state’s financial disclosure laws have moved into sharper focus. Senate President Mike Haridopolos, R-Merritt Island, was admonished this spring by the Senate for failing to fully disclose his financial holdings over a five-year span, including a $400,000 Lake County home he and his wife own and consulting work which paid him $120,000 between 2004 and 2008. Haridopolos now is seeking the Republican nomination for U.S. Senate, challenging Democrat Bill Nelson. Tampa Sen. Jim Norman, a Republican, needed an appeals court ruling last fall to be reinstated after a lower court disqualified him as a candidate for filing a flawed financial disclosure form. Norman failed to disclose a $500,000 house listed in his wife’s name. A federal grand jury subpoenaed employment records last month of a Norman legislative aide and longtime associate. A statewide grand jury last December issued a 127-page report condemning Florida’s reputation for public corruption and calling for criminalizing several acts currently only punishable by civil penalties under the state’s ethics code. The Legislature, however, didn’t act on the panel’s recommendations this spring.  www.postonpolitics.com

Friday, June 17, 2011

Delivering a Lawyer Within 15 Minutes (Soda Extra)

Delivering a Lawyer Within 15 Minutes (Soda Extra)
The New York Times by John Schwartz  -  June 16, 2011

The wheels of justice tend to be slow, but arrests can happen with lightning speed — and what happens next can be crucial. In searches, seizure and interrogation, things can go badly wrong. At that moment, a lawyer might help keep things from getting out of hand, asserting Miranda rights against interrogation or starting the bail process. But getting that lawyer is no easy thing, said Chris Miles, who co-founded a company, LawyerUp, to get lawyers on the case within 15 minutes. “If I want a pizza, I can get a pizza in 15 minutes,” he says. “I can get a plumber in the middle of the night. Why can’t I get a lawyer?” He co-founded the company in February, and started full operations this month in Massachusetts, Connecticut and Rhode Island, having built a roster of criminal lawyers who do not mind getting late-night calls. The service’s personal plan, aimed at young people, costs $4.95 a month. Those who do not have a subscription can pay a flat fee of $100 for the first call, which the company calls its “pay-in-a-pinch plan.” For all clients, an operator checks contact information and processes the lawyer’s initial fee of $250 on a credit card for the first hour of service. Perhaps inevitably, there is an app for that, already available on Android phones and under development for the iPhone. It is basically a panic button, speed-dialing the service. Lawyers do not pay to sign on to the roster, or for the client calls. Legal ethics rules frown on arrangements in which lawyers split fees with nonlawyers, and especially when lawyers pay people to round up clients — a practice known as using runners. A Connecticut lawyer who signed on, Patrick Tomasiewicz, said that when he got the call from the company, his main question was whether he would need to pay LawyerUp. The company satisfied him that its structure avoided runner issues. The legal profession tends to be wary of innovation, he noted, adding that he had found the LawyerUp process to be far less questionable than many forms of legal advertising he sees on billboards and late-night television. “I don’t have my name on a cab,” he said. No one has called him yet, Mr. Tomasiewicz said. “It may pan out for us. It may not.” Ralph J. Monaco, the president of the Connecticut Bar Association, seemed a bit ruffled in an interview when asked about the company, calling the name “so tasteless.” He said he fretted that it might create a relationship that an unscrupulous lawyer could use to gouge the new client. Does that mean lawyers like Mr. Tomasiewicz should worry about getting involved? “I don’t think so,” Mr. Monaco said. “I would want to see how it’s put into action.” Mr. Miles, who is not a lawyer, argued that it was the current system, not his company, that was open to abuse. “There has got to be something more fair than a pay phone and a phone book in a police station somewhere,” he said. The lawyers, he noted, had been vetted before being added to the list, and “I’d hire any one of these attorneys to represent me or my family.” So far, Mr. Miles said, 700 people have signed up and only a handful have made the call. And no, they do not want to talk about it.

Thursday, June 16, 2011

Appeals Court Rejects Allegation Of 'Political Discrimination'

Court Rejects Allegation Of 'Political Discrimination'
The New York Law Journal by Daniel Wise  -  June 16, 2011

A unanimous appeals panel in Brooklyn has dismissed, as a matter of law, a "political discrimination" suit by a Nassau County woman who was laid off by the county in 1992 as it was attempting to deal with a $115 million deficit. In 2009, a jury concluded that Roberta Miller, a supervisor in the Nassau County Department of Senior Citizen Affairs had been laid off in "bad faith" because she was a Democrat and the county executive, Thomas Gulotta, was a Republican.  Justice Ute Wolff Lally (See Profile) set aside the liability verdict after finding that Ms. Miller had failed to provide statistical evidence that on a countywide basis the Gulotta administration had laid off a disproportionate number of Democrats and ordered a re-trial. Both sides appealed Justice Lally's order in Miller v. Nassau County Civil Service Commission, 28936/92: Ms. Miller opposing the re-trial order and the county defendants cross-moving to dismiss because Ms. Miller had failed to establish bad faith as a matter of law. A unanimous panel of the Appellate Division, Second Department, which heard argument on May 6, last week agreed with the Nassau defendants that a jury could only have found that Ms. Miller had been "singled out for layoff due to her political affiliation" through "speculation" rather than "logical inferences drawn from the evidence." Ms. Miller's lawyer, Louis D. Stober of Garden City, said that Ms. Miller will seek leave to take the case to the Court of Appeals. The panel consisted of Justices Willaim F. Mastro, John M. Leventhal, Cheryl E. Chambers and Jeffrey A. Cohen.

New York Attorney Disbarred After Federal Conviction

Panel Disbars Attorney For Federal Conviction
The New York Law Journal by Brendan Pierson  -  June 16, 2011

A panel of the Appellate Division, First Department on Monday disbarred attorney Robert S. Brown, who pleaded guilty in November 2009 to obstruction of justice in connection with his participation in a securities fraud. Mr. Brown admitted that he concealed information about a "pump and dump" scheme run by an unnamed California investment firm and that he helped the firm's CEO and the CEO of a Chinese company fraudulently transfer about $25 million through shell companies he helped set up (NYLJ, Nov. 6, 2009). The court determined that the federal charge against him was the equivalent of the New York felony of scheme to defraud in the first degree, mandating his disbarment.  Mr. Brown's activities took place between January 2004 and January 2008, while he was a name partner with New York's Reitler Brown & Rosenblatt, now Reitler Kailas & Rosenblatt, according to a criminal information filed in October 2009 in U.S. District Court for the District of Columbia in United States v. Brown, 09-cr-00267. Mr. Brown left the firm to join New World Merchant Partners in July 2009. As part of his plea agreement, Mr. Brown agreed to forfeit $275,000 he admitted to earning through his illegal activities. He has not yet been sentenced and faces 10 to 16 months in prison and a fine of up to $30,000. According to the First Department panel's opinion, Mr. Brown, who was admitted in 1990, did not oppose his disbarment and said he hoped "one day" to be eligible to apply to the New York bar again. The panel consisted of Justices Luis A. Gonzalez, James M. Catterson, Rosalyn H. Richter, Sheila Abdus-Salaam and Nelson S. Roman. Matter of Brown, M-549, appears on page 6 of the print edition of today's Law Journal.

Wednesday, June 15, 2011

Justice Goes Global

Justice Goes Global
The New York Times by Thomas L. Friedman

You probably missed the recent special issue of China Newsweek, so let me bring you up to date. Who do you think was on the cover — named the “most influential foreign figure” of the year in China? Barack Obama? No. Bill Gates? No. Warren Buffett? No. O.K., I’ll give you a hint: He’s a rock star in Asia, and people in China, Japan and South Korea scalp tickets to hear him. Give up?  It was Michael J. Sandel, the Harvard University political philosopher. This news will not come as a surprise to Harvard students, some 15,000 of whom have taken Sandel’s legendary “Justice” class. What makes the class so compelling is the way Sandel uses real-life examples to illustrate the philosophies of the likes of Aristotle, Immanuel Kant and John Stuart Mill. Sandel, 58, will start by tossing out a question, like, “Is it fair that David Letterman makes 700 times more than a schoolteacher?” or “Are we morally responsible for righting the wrongs of our grandparents’ generation?” Students offer competing answers, challenge one another across the hall, debate with the philosophers — and learn the art of reasoned moral argument along the way. Besides being educational, the classes make great theater — so much so that Harvard and WGBH (Boston’s PBS station) filmed them and created a public television series that aired across the country in 2009. The series, now freely available online (at www.JusticeHarvard.org), has begun to stir interest in surprising new places.

Last year, Japan’s NHK TV broadcast a translated version of the PBS series, which sparked a philosophy craze in Japan and prompted the University of Tokyo to create a course based on Sandel’s. In China, volunteer translators subtitled the lectures and uploaded them to Chinese Web sites, where they have attracted millions of viewers. Sandel’s recent book — “Justice: What’s the Right Thing to Do?” — has sold more than a million copies in East Asia alone. This is a book about moral philosophy, folks!  Here’s The Japan Times describing Sandel’s 2010 visit: “Few philosophers are compared to rock stars or TV celebrities, but that’s the kind of popularity Michael Sandel enjoys in Japan.” At a recent lecture in Tokyo, “long lines had formed outside almost an hour before the start of the evening event. Tickets, which were free and assigned by lottery in advance, were in such demand that one was reportedly offered for sale on the Web for $500.” Sandel began the lecture by asking: “Is ticket scalping fair or unfair?” But what is most intriguing is the reception that Sandel (a close friend) received in China. He just completed a book tour and lectures at Tsinghua and Fudan universities, where students began staking out seats hours in advance. This semester, Tsinghua started a course called “Critical Thinking and Moral Reasoning,” modeled on Sandel’s. His class visit was covered on the national evening news.  Sandel’s popularity in Asia reflects the intersection of three trends. One is the growth of online education, where students anywhere now can gain access to the best professors from everywhere. Another is the craving in Asia for a more creative, discussion-based style of teaching in order to produce more creative, innovative students. And the last is the hunger of young people to engage in moral reasoning and debates, rather than having their education confined to the dry technical aspects of economics, business or engineering.  At Tsinghua and Fudan, Sandel challenged students with a series of cases about justice and markets: Is it fair to raise the price of snow shovels after a snowstorm? What about auctioning university admissions to the highest bidder? “Free-market sentiment ran surprisingly high,” Sandel said, “but some students argued that unfettered markets create inequality and social discord.”  Sandel’s way of teaching about justice “is both refreshing and relevant in the context of China,” Dean Qian Yingyi of Tsinghua’s School of Economics and Management, explained in an e-mail. Refreshing because of the style and relevant because “the philosophic thinking among the Chinese is mostly instrumentalist and materialistic,” partly because of “the contemporary obsession on economic development in China.”  Tsinghua’s decision to offer a version of Sandel’s course, added Qian, “is part of a great experiment of undergraduate education reform currently under way at our school. ... This is not just one class; it is the beginning of an era.” Sandel is touching something deep in both Boston and Beijing. “Students everywhere are hungry for discussion of the big ethical questions we confront in our everyday lives,” Sandel argues. “In recent years, seemingly technical economic questions have crowded out questions of justice and the common good. I think there is a growing sense, in many societies, that G.D.P. and market values do not by themselves produce happiness, or a good society. My dream is to create a video-linked global classroom, connecting students across cultures and national boundaries — to think through these hard moral questions together, to see what we can learn from one another.”

Chaos Continues in New York Court System

Judge Vacates TRO Against OCA Over Clerks' Uncompensated Hours
The New York Law Journal by Daniel Wise  -  June 15, 2011

A judge in Manhattan yesterday dissolved her temporary order requiring the Office of Court Administration to pay clerks assigned to weekend arraignment shifts an additional four hours of pay per week. Acting Justice Barbara Jaffe also denied the request of the New York State Clerks' Association, which has 1,600 members in New York City, for a preliminary injunction prohibiting OCA from re-structuring the hours of clerks assigned to weekend shifts in a manner that requires four hours of uncompensated meal time per week. Justice Jaffe, who issued the temporary restraining order last week, denied the motion on the grounds that the clerks would be paid if they prevailed. About 25 court clerks, including three of the union's officers, packed into Justice Jaffe's tiny courtroom for the half-hour argument yesterday. The group took the judge's adverse ruling without any show of emotion and filed silently out of the courtroom to meet with the union's lawyer, Anthony J. Costantini, in an empty room down the corridor. After the meeting, Mr. Costantini said in an interview that the clerks were "extremely disappointed" but that no decision would be made regarding an appeal until after the judge issued a written ruling. OCA Deputy Counsel General Lee A. Alderstein argued that an injunction was unwarranted because if the union prevailed, its members would receive compensation for their unpaid hours. He also argued that equities tip in OCA's favor because the redesigned schedules of clerks working weekend shifts was part of an overall effort to curtail overtime as OCA struggles to cope with a $170 million budget shortfall. When Mr. Alderstein during the hearing mentioned the four hours of uncompensated meal time, Justice Jaffe expressed skepticism about the union's position, noting that having uncompensated meals would be "just like the rest of us." Last Saturday OCA reduced the hours for handling arraignments over the weekend. To accommodate reduced hours, OCA compressed the work schedules of night shift clerks to four days from five. As of last Thursday, night clerks started working three eight-hour shifts and one 11-hour shift, which had to be covered on a Saturday or a Sunday. OCA also required that the night shift clerks take a one-hour uncompensated meal break on each of their four shifts. Mr. Costantini challenged Mr. Alderstein's assertions that if the union prevailed on its grievance the clerks would receive back pay, saying the OCA had made less than an ironclad commitment on that point. The grievance process could take as long as a year, he said, and to require clerks to work the uncompensated hours with no guarantee that they would be compensated if they win is "not a proper way to treat public employees." Mr. Alderstein countered that Judge Lawrence Marks, OCA's administrative director, said that the clerks would be paid if they won their grievance. But when challenged directly by Mr. Costantini on that point, Mr. Alderstein said the state was not waiving any legal arguments. Until last weekend, arraignment parts were open for 16 hours on both Saturday and Sunday. With the exception of Staten Island, those shifts have now been reduced by 6 1/2 hours. Shifts in second arraignment parts in Manhattan and Brooklyn have been curtailed even more sharply, by 10 hours. In Staten Island the weekend arraignment part has been reduced by one hour, from four to three hours. Under state law, defendants must be brought before a state judge to be arraigned within 24 hours after being investigated. Judge Marks said in an interview that the number of defendants awaiting arraignment more than 24 hours on Tuesday "was consistent with a typical Tuesday."  Daniel Wise can be reached at dwise@alm.com.

Tuesday, June 14, 2011

Due Process Protection May Be Returning to 2nd Circuit

Caseworker Denied Immunity for Removing Child From Home
The New York Law Journal -  June 14, 2011

Southerland v. City of New York, 07-4449-cv (L)
Before: Kearse, Sack, and Hall, C.J.
07-4449-cv (L)  -  06-14-2011  -   Cite as: Southerland v. City of New York, 07-4449-cv (L), NYLJ 1202497024019, at *1 (2d CIR, Decided June 10, 2011)  Before: Kearse, Sack, and Hall, C.J.  -  Decided: June 10, 2011  -  ADDITIONAL INDEX NUMBERS: 07-4449-cv (L), 07-4450-cv (CON)

ATTORNEYS  -  Michael G. O'Neill, New York, N.Y., For Plaintiffs-Appellants Venus S., Sonny B.S. Jr., Nathaniel S., Emmanuel F., Kiam F., And Elizabeth F.  -  Sonny B. Southerland, Brooklyn, N.Y., Plaintiff-Appellant, Pro Se.  -   Julian L. Kalkstein, City of New York (Michael A. Cardozo, Corporation Counsel; Larry A. Sonnenshein, of Counsel), New York, N.Y., For Defendants-Appellees.

Consolidated appeals from a summary judgment entered by the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge) in favor of, inter alios, the defendant Woo. The plaintiffs—a father and his children—bring various claims under 42 U.S.C. §1983 asserting that Woo, a children's services caseworker employed by the defendant City of New York, entered their home unlawfully and effected an unconstitutional removal of the children into state custody. The district court concluded that Woo was entitled to qualified immunity with respect to all of the claims against him. We disagree. As to each claim that has been preserved for appeal:


Vacated and remanded.   ROBERT D. SACK, C.J:

This lawsuit involves a man and a woman—the plaintiff Sonny B. Southerland Sr. ("Southerland") and non-party Diane Manning—two groups of children, and a caseworker's apparent confusion between the two groups. Plaintiff Ciara Manning is the daughter of Southerland and Diane Manning. Ciara was supposed to be living with Southerland at the time in question, but in fact had left to live with a friend. In addition to Ciara, plaintiff Southerland fathered, by one or more women other than Diane Manning, six other children: the plaintiffs Venus Southerland, Sonny B. Southerland Jr., Nathaniel Southerland, Emmanuel Felix, Kiam Felix, and Elizabeth Felix (together, the "Southerland Children"). At the time of the principal events in question, the Southerland Children, unlike Ciara, were living with their father.  Diane Manning also allegedly bore, by one or more men other than Southerland, six children other than Ciara: Eric Anderson, Richy Anderson, Felicia Anderson, Erica Anderson, Michael Manning, and Miracle Manning (together, the "Manning Children"). They lived with Diane and, like her, are not parties to this lawsuit. In May 1997, the defendant Timothy Woo, a caseworker in the Brooklyn Field Office of the New York City Administration for Children's Services ("ACS"), was assigned to investigate a report by a school counselor about then-sixteen-year-old Ciara Manning. School staff had thought Ciara to be acting strangely at school. After being unable, despite repeated attempts, to gain entry to the Southerland home to investigate the report, Woo sought and obtained from the Kings County Family Court an order authorizing entry into the apartment. Woo's application to obtain that order contained several misstatements of fact, which suggested Woo's possible confusion about which of the children resided with Southerland. Under the authority of the Family Court's order, Woo then entered the Southerland apartment. Ciara was not there; some of Southerland's other children who lived with him were. Based on what Woo perceived to be the poor condition of the home and of the Southerland Children, and his other observations from the investigation undertaken to that date, Woo and his supervisor decided to carry out an immediate removal of the children into ACS custody.  Southerland and the Southerland Children brought this action based on Woo's entry into the apartment and removal of the children. They claim that Woo violated their Fourth Amendment 1 rights to be free from unreasonable searches of their home, and that the manner in which the Southerland Children were removed violated their procedural due process rights under the Fourteenth Amendment. Southerland also claims that the removal of the Southerland Children from his home violated his substantive due process rights under the Fourteenth Amendment. Finally, the Southerland Children claim that their removal violated their Fourth Amendment rights to be free from unreasonable seizure.  The district court (Charles P. Sifton, Judge) 2 concluded, inter alia, that Woo was entitled to qualified immunity with respect to all of the claims against him and granted summary judgment in his favor. We disagree with those conclusions and therefore vacate the district court's judgment as to those claims that have been pursued on appeal and remand the matter for further proceedings.

BACKGROUND


The relevant facts are rehearsed in detail in the district court's opinion. See Southerland v. City of N.Y., 521 F. Supp. 2d 218 (E.D.N.Y. 2007) ("Southerland II"). They are set forth here only insofar as we think it necessary for the reader to understand our resolution of these appeals. Where the facts are disputed, we construe the evidence in the light most favorable to the plaintiffs, who are the nonmoving parties. See, e.g., SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009). We also draw all reasonable factual inferences in the plaintiffs' favor. See, e.g., id.

The ACS Investigation

On May 29, 1997, a school guidance counselor reported to the New York State Central Registry Child Abuse Hotline that one of the school's students, Ciara Manning, the then-sixteen13 year-old daughter of Diane Manning and plaintiff Southerland, was "emotionally unstable." The counselor further reported:

Fa[ther] fails to follow through w[ith] mental health referrals. On 5/12/97 the ch[ild] swallowed a can of paint. F[ather] failed to take the ch[ild] for medical attention. Fa[ther] is unable to control or supervise the ch[ild]. She may be staying out of the home in an i[m]proper enviro[n]ment.  Intake Report at 3, Office of Children and Family Services, Child Protective Services, May 29, 1997 ("Intake Report"), Ex. A to the Declaration of Janice Casey Silverberg (Dkt. No. 168) ("Silverberg Decl."), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). The Intake Report was transmitted to the Brooklyn Field Office of the ACS. There, Fritz Balan, a supervisor, assigned the case to defendant Timothy Woo, an ACS caseworker, for investigation. Woo, who was required by New York law to begin his investigation within 24 hours, did so that day. He first examined the files of a case pending in that ACS office regarding Ciara's mother, Diane Manning. Material in those files disclosed that Ciara had several younger half-also indicated that Ciara lived with her father, Southerland, at a Brooklyn address, although the plaintiffs correctly note the absence of any evidence as to the source of that information and the time it was received. It is not clear from the record whether Woo was aware that the children referenced in Diane Manning's case file were not related to Southerland and that they did not live with him. See Southerland II, 521 F. Supp. 2d at 222, 224 & n.8.

Woo also contacted the school guidance counselor who had called the child-abuse hotline. According to Woo, the counselor told him that while at school, Ciara had swallowed non-toxic paint, expressed thoughts of suicide, and was generally behaving aggressively and "acting out." Declaration of Timothy Woo ¶10 (Dkt. No. 169) ("Woo Decl."), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). Woo's handwritten notes from the conversation indicate that the counselor told Woo that "father [i.e., Southerland] doesn't approve of the place [where Ciara] is staying." Notes of Timothy Woo at 1, Ex. A to the Declaration of Michael G. O'Neill (Dkt. No. 182) ("O'Neill Decl."), Southerland v. City of N.Y., No. 99- cv-3329 (E.D.N.Y. Dec. 28, 2006). It is disputed whether the counselor also told Woo that Southerland had been unresponsive to the school's stated concerns about Ciara's behavior. Later that day, Woo attempted to visit Southerland's apartment in Brooklyn where, for reasons that are not clear from the record, Woo thought Ciara was staying. When no one answered the door, Woo left a note containing his contact information. The following day, May 30, Southerland telephoned Woo. During the course of their conversation, Southerland described Ciara as a runaway who would not obey him. Southerland suggested that he visit the ACS office to discuss the matter with Woo further. The plaintiffs dispute Woo's assertion that during the phone conversation, Southerland indicated that he would not permit Woo to visit Southerland's apartment. Southerland contends that, although he did question why Woo needed to visit the apartment since Ciara did not live there, Southerland nonetheless indicated that he would be willing to make an appointment for Woo to conduct a home visit if Woo insisted. Southerland visited the ACS office and met with Woo later that day. According to Southerland's deposition testimony, he told Woo that Ciara had run away and that he had obtained several "Persons in Need of Supervision" ("PINS") warrants against her. Woo's case notes indicate that Woo asked Southerland why he had not sought medical attention for Ciara after the paint-swallowing incident. Southerland did not answer the question.3 See Progress Notes of T. Woo at 1 ("Progress Notes"), Ex. B to O'Neill Decl. Southerland told Woo and Balan, Woo's supervisor, that Ciara did not need psychiatric help, and that she "'was only acting the way she did to get attention.'" Southerland II, 521 F. Supp. 2d at 223 (quoting Woo Decl. ¶10); see also Declaration of Fritz Balan ¶7 (Dkt. No. 170) ("Balan Decl."), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Sept. 18, 2006). According to Woo, he explained to Southerland that various services were available through ACS to assist him and his children, including counseling and help with obtaining food, furniture, and clothing. Southerland declined.  According to Southerland, however, no such assistance was ever offered. When Woo said he would need to make a home visit, Southerland replied that it would be "no problem" as long as he was notified in advance. Southerland II, 521 F. Supp. 2d at 223; see also Deposition of Sonny B. Southerland at 207 ("Southerland Dep."), Ex. F to O'Neill Decl. Southerland asserts that Woo stated he would call him to arrange the visit, but that Woo never made such a call. On June 2, 1997, Woo made a second attempt to examine the Southerland apartment. A woman whose identity was unknown to Woo answered the door. She said that Southerland was not at home. Woo left. The following day, June 3, Woo again went to the apartment. He heard noises inside, but no one answered the door. Again, he left. The next day, June 4, Woo went to the apartment for a fourth time. He waited in the hallway for several minutes. Southerland emerged accompanied by five school-aged children: Sonny Jr., Venus, Emmanuel, Nathaniel, and Kiam. Woo wrote down their names in his case notes. Southerland told Woo that he did not have time to talk because he was taking the children to school. Woo gave Southerland an ACS business card and told him that if he continued to be uncooperative, ACS would seek court action. Southerland II, 521 F. Supp. 2d at 223-24 & n.6; see also Progress Notes at 2.

The Removal of the Southerland Children

On June 6, 1997, at the direction of supervisor Balan, Woo applied to the Kings County Family Court for an order to enter the Southerland apartment pursuant to section 1034(2) of the New York Family Court Act. It is ACS policy to investigate not only the status of the child named in a report of suspected abuse or maltreatment of the type referred to in section 1034(2), but also that of any other children residing in the same home. Woo listed Ciara on the application. Instead of including the names of the children he had met leaving Southerland's home on June 4, however, he listed the other children of Ciara's mother Diane—the Manning Children: Eric Anderson, Richy Anderson, Felicia Anderson, Michael Manning, Miracle Manning, and Erica Anderson—whose names he apparently had obtained from the Diane Manning case files he had reviewed at ACS's Brooklyn Field Office. The Family Court issued an "Order Authorizing Entry" into the Southerland apartment the same day, June 6. See Southerland II, 521 F. Supp. 2d at 224. Three days later, on the evening of June 9, 1997, pursuant to the Order Authorizing Entry, Woo and another caseworker entered the Southerland apartment with the assistance of officers from the New York City Police Department. Southerland and the Southerland Children were present inside the home. Woo Decl. ¶¶13-15, 19. The district court described what happened next, from Woo's perspective:

Woo determined that there were six children between the ages of three and nine residing in the apartment. He listed their names [correctly] as Venus, Sonny Jr., Nathaniel, Emmanuel, Kiam, and Elizabeth Felix. Soon after beginning his evaluation of the home, Woo called his supervisor [Balan] on his cell phone, described his observations, and answered his supervisor's questions. Woo reported that the four boys slept on the floor in one bedroom and the two girls slept on a cot in another bedroom. The children appeared as though they had not been bathed in days and their clothing was malodorous. In the refrigerator, Woo found only beer, a fruit drink, and English muffins. Woo did not examine the contents of the kitchen cupboards. The other caseworker observed that one child, Venus, was limping because of a foot injury. The child stated that she had stepped on a nail. The caseworker concluded that Southerland had not sought medical attention for her. Woo reported that the only light source in the bedroom area was from a blank television screen. Woo observed an electric lamp on the floor, without a shade, connected to an outlet in the living room by means of several extension cords along the floor. Woo reported that another room contained stacks of electronic equipment. Woo and his supervisor concluded that the children's safety was threatened, and Balan directed Woo to remove the children from the home.  Id. at 224-25 (footnotes omitted).5

As the district court also observed, the plaintiffs—relying primarily on later deposition testimony by Southerland—offer a starkly different description of the conditions in the Southerland home at the time. According to Southerland's testimony, the apartment did not lack proper bedding; the boys had a bunk bed in their room, although they preferred to sleep on yellow foam sleeping pads on the floor. Id. at 225 n.10. The children were not dirty; Southerland testified that he laundered the children's clothing about once a week and bathed the children daily. Id. at 225 n.11. There was food in the refrigerator, and it is also a reasonable inference from Southerland's testimony that there was food in the cupboards (which Woo did not examine), because Southerland testified that groceries for the household were purchased on a regular basis. Id. at 225 n.12. The household did not lack lighting; Southerland testified that he had a lamp plugged into a wall in each room. Id. at 225 n.14. Finally, although Southerland does not dispute that Venus had a foot injury, the plaintiffs stress Woo's concession that he did not personally observe the injury during his assessment of the home.6 Id. at 225 n.13.

In the early hours of June 10, 1997, at Balan's direction, Woo removed the Southerland Children from the Southerland home. Woo took them to the ACS pre-placement emergency shelter and arranged for emergency foster care. Id. at 226. At some point—it is not clear exactly when—Woo interviewed Ciara Manning, whom he had found living at the home of her friend. Ciara told Woo that her father had sexually abused her and threatened to kill her if she told anyone about it—allegations she later recanted. 7 The Southerland Children also complained of various kinds of abuse and mistreatment at the hands of Southerland and his companion, Vendetta Jones. These allegations concerning Ciara and the Southerland Children were included in a verified petition filed by ACS with the Family Court on June 13, 1997, and amended on June 27, 1997. The petitions commenced child-protective proceedings under Article 10 of the New York Family Court Act, §§1011 et seq., through which ACS sought to have the Southerland Children adjudicated as abused and neglected. On July 1, 1998, more than a year after the children were removed from the Southerland home, the Kings County Family Court concluded after a five-day trial that Southerland had engaged in excessive corporal punishment of the Southerland Children and that he had abused and neglected them. The court also concluded that he had sexually abused his daughter Ciara. The court ordered that the Southerland Children remain in foster care, where they had resided since the June 1997 removal. The New York Appellate Division, Second Department, affirmed these orders, see In re Ciara M., 273 A.D.2d 312, 708 N.Y.S.2d 717 (2d Dep't 2000), and the New York Court of Appeals denied leave to appeal, see In re Ciara M., 95 N.Y.2d 767, 740 N.E.2d 653, 717 N.Y.S.2d 547 (2000). In March 2004, nearly seven years after their removal from the Southerland home, Sonny Jr. and Venus were permitted to return to live with Southerland. Some seven months thereafter, Nathaniel and Emmanuel were discharged from the juvenile justice system by the Office of Children and Family Services and also returned to the Southerland home. As far as we can determine from the record, neither Kiam nor Elizabeth ever returned to live with Southerland.

However strongly the facts of mistreatment found by the Family Court at trial may indicate that Woo's perceptions about the dangers to the Southerland Children of their remaining with Southerland were correct, virtually none of this information was in Woo's possession when he effected the June 9, 1997, entry and removal, as the district court correctly observed. See Southerland II, 521 F. Supp. 2d at 226 n.19. These subsequently determined facts therefore do not bear upon our consideration of whether Woo's actions in effecting the removal were constitutional. See id.

Prior Federal Court Proceedings

In June 1999, some two years after the removal and while the Southerland Children remained in foster care, Southerland, on behalf of himself and his children, filed a pro se complaint in the United States District Court for the Eastern District of New York against more than forty defendants for the allegedly wrongful removal of the Southerland Children from his home. On February 1, 2000, the district court (Charles P. Sifton, Judge) granted the defendants' motion to dismiss on grounds that included failure to state a claim, failure to plead certain matters with particularity, lack of subject-matter jurisdiction, and Eleventh Amendment immunity. See Opinion & Order (Dkt. No. 43), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Feb. 2, 2000). Southerland appealed. We affirmed in part, reversed in part, and remanded the action. We ruled, inter alia, that the district court had erred in dismissing Southerland's claims under 42 U.S.C. §1983 relating to the seizure and removal of the Southerland Children. See Southerland v. Giuliani, 4 F. App'x 33, 36 (2d Cir. 2001) (summary order) ("Southerland I"). We concluded that the pro se complaint stated valid claims for violations of both the substantive and procedural components of the Fourteenth Amendment's Due Process Clause. See id. at 36-37. We "emphasize[d] that our holding [wa]s limited to the claims made directly by Sonny Southerland," noting that "[a]lthough the children probably have similar claims, we have held that a non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child." Id. at 37 (citation and internal quotation marks omitted). We therefore "le[ft] it to the district court upon remand to determine whether Southerland should be given a chance to hire a lawyer for his children or to seek to have one appointed for them." Id. On remand, the district court appointed counsel to represent both Southerland and the Southerland Children.8 Southerland II, 521 F. Supp. 2d at 227. In November 2002, through counsel, Southerland and the Southerland Children jointly filed an amended complaint, id. at 221 & n.1, asserting nine claims under 42 U.S.C. §1983 against Woo and the City of New York, id. at 221 n.2.9

In the amended complaint, Southerland asserts four separate claims against Woo.10 First, Southerland alleges an unlawful-search claim, asserting that Woo's entry into his home "without privilege, cause or justification" violated the Fourth Amendment. Am. Compl. ¶¶40-41 (Dkt. No. 75), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002). Southerland asserts a second Fourth Amendment unlawful-search claim for Woo's remaining in his home even after discovering that the children listed on the Order Authorizing Entry were not there. Third, Southerland asserts a Fourteenth Amendment procedural due process claim for removal of the Southerland Children from his home without a court order and in the absence of an immediate threat of harm to their lives or health. Finally, Southerland alleges a substantive due process claim, also under the Fourteenth Amendment, for Woo's removal of the Southerland Children absent a reasonable basis for doing so. The amended complaint also interposes various claims on behalf of the Southerland Children. First, the Children assert the same procedural due process claim under the Fourteenth Amendment as does Southerland. Second, they assert a substantive due process claim under the Fourteenth Amendment. The district court recharacterized the latter claim as arising under the Fourth Amendment's guarantee of protection against unlawful seizure. 11 See Southerland II, 521 F. Supp. 2d at 230 n.24. Finally, the district court construed the amended complaint as asserting on behalf of the Children the same two Fourth Amendment unlawful-search claims as were asserted by Southerland. Southerland and the Southerland Children also bring several claims against the City of New York. Southerland asserts that the City is liable under 42 U.S.C. §1983 for the removal of the Southerland Children insofar as that removal was conducted pursuant to two alleged official City policies: to remove children without a reasonable basis, and to remove children without a court order despite the absence of any immediate threat of harm to their lives or health. Southerland and the Southerland Children also allege that high-ranking policymakers within the City's police department knew or should have known that the City's failure to train police officers accompanying ACS employees on home visits and investigations would deprive New York City residents of their constitutional rights.12
On the defendants' motion for summary judgment, the district court concluded that Woo was entitled to qualified immunity as to all of the claims against him. With respect to the Fourth Amendment unlawful-search claims, the court concluded that the false and misleading statements made by Woo in his application for the Order Authorizing Entry did not strip him of qualified immunity because the plaintiffs could not show that these statements were necessary to the finding of probable cause to enter the home. Southerland II, 521 F. Supp. 2d at 230-31. The court decided that qualified immunity was warranted because "a corrected affidavit specifying all of the information known to Woo establishes an objective basis that would have supported a reasonable caseworker's belief that probable cause existed." Id. at 231 (brackets, citation, and internal quotation marks omitted). With respect to the Southerland Children's Fourth Amendment unlawful-seizure claim, and the procedural due process claims brought by both sets of plaintiffs, the district court decided that qualified immunity shielded Woo from liability because his actions pre-dated the clear establishment of law in this context, which in its view did not occur until this Court's decision in Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), cert. denied, 529 U.S. 1098 (2000). See Southerland II, 521 F. Supp. 2d at 231-32. Lastly, with regard to Southerland's substantive due process claim, the district court concluded that Woo was entitled to qualified immunity because "it was objectively reasonable for [him] to conclude that Southerland's substantive due process rights were not violated" when Woo removed the Southerland Children from the home, because "[b]rief removals of children from their parents generally do not rise to the level of a substantive due process violation, at least where the purpose of the removal is to keep the child safe during investigation and court confirmation of the basis for removal." Id. at 32 (brackets and internal quotation marks omitted).

Notwithstanding the district court's conclusion that Woo was entitled to qualified immunity as to every claim asserted against him, the court proceeded to consider, in the alternative, the underlying merits of the plaintiffs' various claims. The court decided that even in the absence of immunity, Woo would be entitled to summary judgment with respect to the plaintiffs' Fourth Amendment unlawful-search claims and Southerland's substantive due process claim. Specifically, with respect to the Fourth Amendment unlawful-search claims, the district court decided that "no reasonable juror could infer that Woo knowingly and intentionally made false and misleading statements to the family court in order to receive an order authorizing his entry into the Southerland home." Id. at 233. With respect to Southerland's substantive due process claim, the court concluded that "no reasonable juror could find that the removal of the children from their home in order to verify that they had not been neglected or abused was so 'shocking, arbitrary, and egregious' that Southerland's substantive due process rights were violated." Id. at 234-35 (citation omitted). The district court concluded that the City was also entitled to summary judgment on all of the claims against it. See Southerland II, 521 F. Supp. 2d at 235-39. The plaintiffs do not appeal from that portion of the judgment and therefore have abandoned their claims against the City. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). The district court determined, however, that without qualified immunity protection, summary judgment would not be appropriate on the merits of the procedural due process claims brought by both Southerland and the Southerland Children because, "[a]lthough defendants argue that the 'totality of the circumstances' Woo encountered in the Southerland home required an ex parte removal, they fail to explain why there was not sufficient time for Woo to seek a court order removing the children." See Southerland II, 521 F. Supp. 2d at 235 n.31. Nor would summary judgment be appropriate on the merits of the Southerland Children's Fourth Amendment unlawful-seizure claim, the district court said, because the defendants could not explain "why the particular circumstances that Woo encountered in the Southerland home established that there was imminent danger to the children's life or limb requiring removal in the absence of a court order." Id. at 234 n.29. Both Southerland and the Southerland Children now appeal from the dismissal of each of their claims against Woo, except for one Fourth Amendment claim brought by all plaintiffs. The plaintiffs have not appealed the district court's adverse ruling as to their claim that Woo violated the Fourth Amendment by remaining in their home even after determining that the children listed on the Order Authorizing Entry were not present. We vacate and remand with respect to each of the plaintiffs' claims that have been preserved for appeal.

DISCUSSION  -  I. Standard of Review

"We review a district court's grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving part[ies] and drawing all reasonable inferences in [their] favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005). "[S]ummary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911 (1998); see Fed. R. Civ. P. 56(a).

II. Qualified Immunity - Qualified immunity shields public officials from liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "In general, public officials are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights." Holcomb v. Lykens, 337 F.3d 217, 220 (2d Cir. 2003) (internal quotation marks omitted). An officer is also entitled to qualified immunity "if officers of reasonable competence could disagree on the legality of the action at issue in its particular factual context." Manganiello v. City of N.Y., 612 F.3d 149, 165 (2d Cir. 2010) (internal quotation marks omitted).

III. Overview of Constitutional Law in the Context of the State's Removal of Children from Their Home - As we observed in a decision post-dating the events at issue in these appeals, "[p]arents…have a constitutionally protected liberty interest in the care, custody and management of their children." Tenenbaum, 193 F.3d at 593; see also Troxel v. Granville, 530 U.S. 57, 65-66 (2000) (collecting cases concerning the "fundamental right of parents to make decisions concerning the care, custody, and control of their children"). "[C]hildren have a parallel constitutionally protected liberty interest in not being dislocated from the emotional attachments that derive from the intimacy of daily family association." Kia P. v. McIntyre, 235 F.3d 749, 759 (2d Cir. 2000) (brackets and internal quotation marks omitted), cert. denied, 534 U.S. 820 (2001); see also Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) ("Th[e] right to the preservation of family integrity encompasses the reciprocal rights of both parent and children."). The state's removal of a child from his or her parent may give rise to a variety of cognizable constitutional claims. First, both the parents and the children may have a cause of action for violation of the Fourteenth Amendment under a theory of denial of procedural due process. The Fourteenth Amendment imposes a requirement that except in emergency circumstances, judicial process must be accorded both parent and child before removal of the child from his or her parent's custody may be effected. See, e.g., Kia P., 235 F.3d at 759-60; Tenenbaum, 193 F.3d at 593-94; Duchesne, 566 F.2d at 825-26. Both Southerland and the Southerland Children have asserted such a procedural due process claim against Woo in this case. Second, a parent may also bring suit under a theory of violation of his or her right to substantive due process. Southerland does so here. Parents have a "substantive right under the Due Process Clause to remain together [with their children] without the coercive interference of the awesome power of the state." Tenenbaum, 193 F.3d at 600 (internal quotation marks omitted); see also, e.g., Anthony v. City of N.Y., 339 F.3d 129, 142-43 (2d Cir. 2003); Kia P., 235 F.3d at 757-58. Such a claim can only be sustained if the removal of the child "would have been prohibited by the Constitution even had the [parents] been given all the procedural protections to which they were entitled."  Tenenbaum, 193 F.3d at 600 (emphasis in original). In other words, while a procedural due process claim challenges the procedure by which a removal is effected, a substantive due process claim challenges the "fact of [the] removal" itself. Bruker v. City of N.Y., 92 F. Supp. 2d 257, 266-67 (S.D.N.Y. 2000). For such claims brought by children, however, we have concluded that the Constitution provides an alternative, more specific source of protection.13 When a child is taken into state custody, his or her person is "seized" for Fourth Amendment purposes. The child may therefore assert a claim under the Fourth Amendment that the seizure of his or her person was unreasonable. See Tenenbaum, 193 F.3d at 602. Such a claim belongs only to the child, not to the parent, although a parent has standing to assert it on the child's behalf. Id. at 601 n.13. In accordance with our order in Southerland I, 4 F. App'x at 37 n.2, the district court determined that the Southerland Children's substantive due process claim should be construed instead as a Fourth Amendment unlawful-seizure claim. See Southerland II, 521 F. Supp. 2d at 230 n.24. Finally, depending on the circumstances in which a removal occurs, other Fourth Amendment claims might also be viable. Here, Southerland and the Southerland Children asserted two Fourth Amendment claims for unlawful search: one claim relating to Woo's entry into the Southerland home, and one (now abandoned) claim relating to Woo's remaining in the home even after determining that the Manning Children were not present. Both claims were based on an allegation that Woo made false statements to the Family Court in order to obtain the Order Authorizing Entry, and therefore that there was no probable cause to carry out a search of the Southerland apartment.

IV. The Fourth Amendment Unlawful-Search Claims - The district court determined that summary judgment was warranted on the plaintiffs' Fourth Amendment unlawful-search claims on two separate grounds. First, the district court concluded that Woo was entitled to qualified immunity under the "corrected affidavit" doctrine. See Southerland II, 521 F. Supp. 2d at 230-31. Second, the district court decided that Woo was entitled to summary judgment on the merits because no reasonable juror could find that Woo had knowingly made false or misleading statements in seeking to obtain the Order Authorizing Entry. Id. at 233. We disagree with both conclusions.

A. The Corrected-Affidavit Doctrine - We begin with the plaintiffs' argument that the district court erred in its application of the corrected-affidavit doctrine, under which a defendant who makes erroneous statements of fact in a search-warrant affidavit is nonetheless entitled to qualified immunity unless the false statements in the affidavit were "necessary to the finding of probable cause." Martinez v. City of Schenectady, 115 F.3d 111, 115 (2d Cir. 1997) (internal quotation marks omitted). In order to determine whether false statements were "necessary to the finding of probable cause," the court must "put aside allegedly false material, supply any omitted information, and then determine whether the contents of the 'corrected affidavit' would have supported a finding of probable cause." Id. (citation and internal quotation marks omitted). In applying the corrected-affidavit doctrine, qualified immunity is warranted only if, after correcting for the false or misleading statements, the affidavit accompanying the warrant was sufficient "to support a reasonable officer's belief that probable cause existed." Id. (internal quotation marks omitted). The district court, which "assum[ed] for purposes of the qualified immunity defense that Woo made false and misleading statements" in applying for the Order Authorizing Entry, Southerland II, 521 F. Supp. 2d at 230, correctly noted that the plaintiffs "would still have to demonstrate that those statements were necessary to the finding of probable cause for qualified immunity not to attach to Woo's actions," id. at 230-31 (citation and internal quotation marks omitted). The court determined that Woo was entitled to qualified immunity based on its conclusion that a corrected affidavit, containing all of the information available to Woo at the time the affidavit was made, would have supported a finding of probable cause to enter the home. Id. at 231.

We disagree. Section 1034(2) of the New York State Family Court Act, which provides the evidentiary standard for a showing of probable cause sufficient for the issuance of an investigative order, governed Woo's application to obtain the Order Authorizing Entry. The district court, in its September 2007 decision, cited the statute as it had been amended in January 2007. See id. at 224 n.7. But the version that governed at the time of Woo's application was materially different. Under the version of the statute that applied at the time of Woo's actions, the affiant was required to demonstrate "probable cause to believe that an abused or neglected child may be found on premises," N.Y. Fam. Ct. Act §1034(2) (McKinney's 1997) (emphasis added), presumably meaning the "premises" identified in the application submitted to the Family Court. The district court should have engaged in its corrected-affidavit analysis with reference to the earlier law. The children that Woo listed on his application for the Order Authorizing Entry—the Manning Children and Ciara—were children who did not reside "on premises" in the Southerland home. The district court concluded that "a properly made application would still list Ciara Manning on the application because Southerland is her father and was the parent legally responsible for her care, even if she had run away." Southerland II, 521 F. Supp. 2d at 231. That may be relevant to an inquiry under the statute as amended in 2007, but it is not relevant to the appropriate question under the applicable version of the law: whether there existed probable cause for Woo to believe that Ciara Manning could be found "on premises" at the Southerland home. In fact, she, like the Manning Children, was not "on premises." And Woo had reason to know that she was not—from the information in the initial Intake Report transmitted to Woo; from the guidance counselor's statement to Woo that Southerland did not approve of the place where Ciara was staying; and from Southerland's own statements during his May 30 telephone conversation with Woo that Ciara was a runaway and did not live at his home.14 The plaintiff children point out that there were other deficiencies in the district court's corrected-affidavit analysis that undermine the court's conclusion that the information known to Woo at the time he applied for the Order Authorizing Entry would have supported a finding of probable cause. For example, Woo's application stated that Ciara "tried to kill herself by swallowing non-toxic paint," and that Southerland "did not take [Ciara] to a medical doctor and refused to take [Ciara] for psychiatric evaluation." Application for Authorization to Enter Premises dated June 6, 1997, at 1 ("June 6 Application"), Ex. C to Silverberg Decl. The plaintiff children argue that the application omitted several relevant facts that, according to Southerland's version of events, were known to Woo at that time: that the paint-swallowing incident took place at school, not at home; that Southerland was willing to obtain treatment for his daughter, but had trouble doing so, precisely because she was not living in his home; and that Southerland had attempted to assert control over his daughter by applying for PINS warrants. Southerland Children's Br. at 30-31; see also id. at 28-36 (disputing additional assertions of fact, such as whether the swallowing of paint indeed was a suicide attempt). As the plaintiff children put it: Woo's omission of the fact that the incident took place at school allowed the court to assume that the suicide attempt took place in Southerland's residence. The overall picture painted by Woo is that Southerland's daughter attempted to kill herself, that Southerland did nothing about it, and refused to let others do something about it as well. By omitting the fact that the daughter was not even living at the Southerland apartment, Woo gave the family court the impression that it was necessary to allow Woo to enter the apartment in order to render assistance to a suicidal teenager in the home of a parent who could not be bothered to help her and who prevented the efforts of ACS to provide help to her. Id. at 31-32. The district court included much of this information in its recitation of facts, Southerland II, 521 F. Supp. 2d at 222-23 &  nn.4 & 5, but it did not factor these considerations into its application of the corrected-affidavit doctrine. We have observed that the materiality of a misrepresentation or omission in an application for a search warrant is a mixed question of law and fact.15 Velardi v. Walsh, 40 F.3d 569, 574 (2d Cir. 1994). "The legal component depends on whether the information is relevant to the probable cause determination under controlling substantive law." Id. "[T]he weight that a neutral magistrate would likely have given such information," however, is a question for the factfinder. Id. In such circumstances, a court may grant summary judgment to a defendant based on qualified immunity only where "the evidence, viewed in the light most favorable to the plaintiffs, discloses no genuine dispute that a magistrate would have issued the warrant on the basis of the corrected affidavits." Walczyk v. Rio, 496 F.3d 139, 158 (2d Cir. 2007) (emphasis, citation, and internal quotation marks omitted). We cannot conclude as a matter of law—although a trier of fact might so conclude after an evidentiary hearing—that the Family Court, in deciding whether there was "probable cause to believe that an abused or neglected child may [have] be[en] found [in the Southerland home]," N.Y. Fam. Ct. Act §1034(2), would have issued the order had a corrected affidavit been presented to it.

B. Knowing or Reckless Misstatements of Fact -  The district court also concluded that even if the corrected-affidavit doctrine did not apply, summary judgment was appropriate because, on the merits, "no reasonable juror could infer that Woo knowingly and intentionally made false and misleading statements to the family court in order to receive an order authorizing his entry into the Southerland home." Southerland II, 521 F. Supp. 2d at 233. Based on that premise, the district court concluded that "the [O]rder [Authorizing Entry] was issued with probable cause and Woo's entry into and search of Southerland's home did not violate plaintiffs' Fourth Amendment rights." Id.  We disagree. If the district court were correct that Woo did not knowingly make false and misleading statements, that would entitle Woo to qualified immunity, but would not necessarily render his underlying conduct lawful. When a person alleges a Fourth Amendment violation arising from a search executed by a state official, "the issuance of a search warrant…creates a presumption that it was objectively reasonable for the [defendant] to believe that the search was supported by probable cause" so as to render the defendant qualifiedly immune from liability. Martinez, 115 F.3d at 115. To defeat the presumption of reasonableness, a plaintiff must make "a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit and that the allegedly false statement was necessary to the finding of probable cause" for which the warrant was issued. Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (internal quotation marks omitted), cert. denied, 505 U.S. 1221 (1992). We need not consider further whether the district court erred by confusing the qualified immunity and merits analyses, however, because we also do not agree with the district court's premise that no reasonable juror could find that Woo did not knowingly or recklessly make false statements. We think that several disputed facts, taken together and viewed in the light most favorable to the plaintiffs, would permit—though not require—a reasonable factfinder to find otherwise.

First, substantial evidence, viewed in the light most favorable to the plaintiffs, suggests that Woo had reason to know that Ciara was not residing at the Southerland home when he applied for the Order Authorizing Entry. For example, the May 29 Intake Report informed ACS that Ciara "may be staying out of the home in an i[m]proper enviro[n]ment." Intake Report at 3. And Southerland told Woo on May 30 that Ciara was a runaway and that he had taken out PINS warrants against her. Southerland II, 521 F. Supp. 2d at 223. A reasonable juror could find that Woo's application to the Family Court on June 6 was knowingly or recklessly misleading in stating: "I have reasonable cause to believe that the above named children [including Ciara] may be found at the above premises [the Southerland home]." June 6 Application at 1. Second, evidence in the record, again viewed in the light most favorable to the plaintiffs, would permit a reasonable juror to conclude that Woo had knowingly or recklessly misrepresented the nature of the paint-swallowing incident in his application. About one week before June 6, Woo learned from a school counselor that Ciara had "swallowed non-toxic paint at school" and had been "acting out and expressing thoughts of suicide." Woo Decl. ¶6. Although the counselor informed Woo that Southerland had failed to seek medical treatment for Ciara, see id., Southerland later explained to Woo that the reason he had not taken Ciara for treatment was that she did not reside with Southerland and did not listen to him, id. ¶8. Yet Woo's application represented to the Family Court that Ciara "tried to kill herself by swallowing non-toxic paint" and that Southerland "did not take [her] to a medical doctor and refused to take [her] for psychiatric evaluation." June 6 Application at 1. A reasonable trier of fact might find the foregoing statements to be materially misleading insofar as they characterize Ciara's paint-swallowing as a suicide attempt; fail to note that the incident occurred at school rather than in Southerland's home; and omit the fact that Ciara may have been living outside the home and free from Southerland's control. Finally, the district court overlooked the parties' dispute concerning Woo's knowledge about which children resided in the Southerland apartment. The district court stated that Woo "had reason to believe that the Manning children would be found in the Southerland apartment because of a separate investigation of the Manning children and his personal observation that there were other children in the Southerland home who had not yet been positively identified." Southerland II, 521 F. Supp. 2d at 233. But, as the district court opinion elsewhere observes, on June 4, 1997—two days before he applied for the Order Authorizing Entry—Woo met the Southerland Children emerging from the Southerland apartment and wrote down their names. See id. at 223-24 & n.6. We think that there is a triable issue of fact as to whether Woo in fact believed, as he wrote in his application to the Family Court, that it was the Manning Children and not the Southerland Children who were in the Southerland home, or whether he recklessly confused or knowingly conflated the two.

Although these alleged misrepresentations may turn out to be no more than accidental misstatements made in haste, the plaintiffs have nonetheless made a "substantial preliminary showing" that Woo knowingly or recklessly made false statements in his application for the Order Authorizing Entry. Golino, 950 F.2d at 870 (internal quotation marks omitted). This showing rebuts the presumption of reasonableness that would otherwise apply to shield Woo with qualified immunity at the summary judgment stage. In sum, because we conclude that genuine issues of material fact exist, both as to whether Woo knowingly or recklessly made false statements in his affidavit to the Family Court and as to whether such false statements were necessary to the court's finding of probable cause, we vacate the district court's grant of summary judgment on the plaintiffs' Fourth Amendment unlawful-search claims. Once again, we note that a trier of fact might, after review of the evidence, conclude that the errors in the June 6 Application were either accidental or immaterial. We vacate the grant of summary judgment because we cannot reach that conclusion ourselves on the current record as a matter of law.

V. The Plaintiffs' Procedural Due Process Claims -  Southerland and the Southerland Children each assert a procedural due process claim against Woo. The district court held that Woo was entitled to qualified immunity on these claims. We disagree.

A. Procedural Due Process in the Child-Removal Context -  "'As a general rule…before parents may be deprived of the care, custody, or management of their children without their consent, due process—ordinarily a court proceeding resulting in an order permitting removal—must be accorded to them.'" Nicholson v. Scoppetta, 344 F.3d 154, 171 (2d Cir. 2003) (quoting Tenenbaum, 193 F.3d at 593). "However, 'in emergency circumstances, a child may be taken into custody by a responsible State official without court authorization or parental consent.'" Id. (quoting Tenenbaum, 193 F.3d at 594). "'If the danger to the child is not so imminent that there is reasonably sufficient time to seek prior judicial authorization, ex parte or otherwise, for the child's removal, then the circumstances are not emergent.'" Id. (quoting Tenenbaum, 193 F.3d at 594). To prevail, "[t]he government must offer 'objectively reasonable' evidence that harm is imminent." Id. Although we have not exhaustively set forth the types of factual circumstances that constitute imminent danger justifying emergency removal as a matter of federal constitutional law, we have concluded that these circumstances include "the peril of sexual abuse," id., the "risk that children will be 'left bereft of care and supervision,'" id. (quoting Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991)), and "immediate threat[s] to the safety of the child," Hurlman, 927 F.2d at 80 (internal quotation marks omitted); see also N.Y. Fam. Ct. Act §1024(a) (defining emergency circumstances, for the purposes of state law, as "circumstance[s]" wherein a child's remaining in the parent's care and custody "presents an imminent danger to the child's life or health").

B. Analysis -  The district court correctly concluded that summary judgment was not appropriate on the underlying merits of the plaintiffs' procedural due process claims because Woo did not demonstrate, as a matter of law, that he did not have time to obtain a court order authorizing the removal of the Southerland Children before taking that act. See Southerland II, 521 F. Supp. 2d at 235 n.31 (citing Nicholson, 344 F.3d at 171). The court nonetheless granted summary judgment on qualified immunity grounds, concluding that "the law concerning procedural due process rights in the context of child removals was not clearly defined at the time of the events in question." Id. at 232. But in Hurlman, we recognized that officials may remove a child from the custody of the parent without consent or a prior court order only in "emergency" circumstances. Emergency circumstances mean circumstances in which the child is immediately threatened with harm, for example, where there exists an immediate threat to the safety of the child, or where the child is left bereft of care and supervision, or where there is evidence of serious ongoing abuse and the officials have reason to fear imminent recurrence. Hurlman, 927 F.2d at 80 (citations and internal quotation marks omitted); see also Robison v. Via, 821 F.2d 913, 921-22 (2d Cir. 1987) (describing the "'emergency' circumstances" exception and collecting cases).16 It thus was clearly established at the time of the Southerland Children's removal that state officials could not remove a child from the custody of a parent without either consent or a prior court order unless "'emergency' circumstances" existed. Hurlman, 927 F.2d at 80; see also Cecere v. City of N.Y., 967 F.2d 826, 829-30 (2d Cir. 1992) (setting forth "clearly established" procedural due process principles); see also Velez v. Reynolds, 325 F. Supp. 2d 293, 314-15 (S.D.N.Y. 2004) (explaining the principles). In concluding that the law of procedural due process was not clearly established in the child-removal context in 1997, the district court in the case at bar relied primarily on our decision in Tenenbaum. There we held as a matter of first impression that "where there is reasonable time consistent with the safety of the child to obtain a judicial order, the 'emergency' removal of a child is unwarranted." Tenenbaum, 193 F.3d at 596. Because this principle was not clearly established in 1990—the year the underlying conduct at issue in Tenenbaum took place—we affirmed the district court's decision in that case that the defendants were entitled to qualified immunity. We also made clear, however, that even in 1990, "it was established as a general matter…that 'except where emergency circumstances exist' a parent can 'not be deprived' of the custody of his or her child 'without due process, generally in the form of a predeprivation hearing.'" Id. at 596 (quoting Hurlman, 927 F.2d at 79). In the present case, the plaintiffs assert "not solely that defendants had sufficient time to obtain a court order, but that the circumstances in which Woo found the children did not warrant their removal at all, whether evaluated by pre—or post—Tenenbaum standards." Southerland Children's Br. at 39.17 We understand the plaintiffs' contention to be that "emergency circumstances" warranting removal simply did not exist. The district court did not decide as a matter of law that emergency circumstances existed in the Southerland home. To the contrary, the district court concluded that "[v]iewing the facts in the light most favorable to plaintiffs, a reasonable juror could determine that the circumstances Woo encountered did not demonstrate an imminent danger to the children's life or limb." Southerland II, 521 F. Supp. 2d at 234 n.29. The court further decided that "a reasonable juror could find that there was sufficient time to acquire a court order prior to the removal." Id. at 235 n.31. In light of those determinations, with which we agree, and our assessment that the relevant law was clearly established in 1997, we cannot conclude as a matter of law that "it was objectively reasonable for [Woo] to believe [that his] acts did not violate those [clearly established] rights." Holcomb, 337 F.3d at 220. Qualified immunity therefore is not available to Woo on the plaintiffs' procedural due process claims at the summary judgment stage. Because summary judgment also cannot be granted to the defendants on the underlying merits of these claims,18 we vacate the grant of summary judgment to Woo as to the procedural due process claims.

VI. Southerland's Substantive Due Process Claim

Southerland asserts a substantive due process claim against Woo under the Fourteenth Amendment. The district court held not only that qualified immunity attached to Woo's actions, but also that summary judgment would be warranted on the merits even in the absence of qualified immunity. We disagree with both conclusions.

A. Substantive Due Process in the Child-Removal Context -  Substantive due process guards a person's rights "against the government's 'exercise of power without any reasonable justification in the service of a legitimate governmental objective.'" Tenenbaum, 193 F.3d at 600 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). "To establish a violation of substantive due process rights, a plaintiff must demonstrate that the state action was 'so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'" Okin v. Vill. of Cornwall-on-Hudson Police Dep't, 577 F.3d 415, 431 (2d Cir. 2009) (quoting Lewis, 523 U.S. at 847 n.8). The interference with the plaintiff's protected right must be "'so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even were it accompanied by full procedural protection.'" Anthony, 339 F.3d at 143 (quoting Tenenbaum, 193 F.3d at 600); see also Lewis, 523 U.S. at 840 (doctrine of substantive due process "bar[s] certain government actions regardless of the fairness of the procedures used to implement them" (internal quotation marks omitted)). Thus, in the child-removal context, we ask whether "the removal…would have been prohibited by the Constitution even had the [plaintiffs] been given all the procedural protections to which they were entitled." Tenenbaum, 193 F.3d at 600 (emphasis omitted). We have long recognized that parents have a "constitutionally protected liberty interest in the care, custody and management of their children," id. at 593, and that the deprivation of this interest is actionable under a theory of substantive due process, see id. at 600 (recognizing a "substantive right under the Due Process Clause 'to remain together without the coercive interference of the awesome power of the state'" (quoting Duchesne, 566 F.2d at 825)). We have also observed, however, that "[a]lthough parents enjoy a constitutionally protected interest in their family integrity, this interest is counterbalanced by the compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves." Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 104 (2d Cir. 1999) (internal quotation marks omitted), cert. denied, 528 U.S. 1155 (2000). We have explained that, in part because the law contemplates a careful balancing of interests, a parent's substantive constitutional rights are not infringed if a caseworker, in effecting a removal of a child from the parent's home, has a reasonable basis for thinking that a child is abused or neglected. See id. "This Circuit has adopted a standard governing case workers which reflects the recognized need for unusual deference in the abuse investigation context. An investigation passes constitutional muster provided simply that case workers have a 'reasonable basis' for their findings of abuse." Id.; see also id. at 108 (concluding that the "reasonable basis test" requires that caseworkers' decisions to substantiate an allegation of child abuse "be consistent with some significant portion of the evidence before them"). We have applied this "reasonable basis" standard from time to time in recent years. See, e.g., Nicholson, 344 F.3d at 174; Phifer v. City of N.Y., 289 F.3d 49, 60 (2d Cir. 2002); Kia P., 235 F.3d at 758-59. We have also recognized that substantive due process claims in the child-removal context have a temporal dimension. Because state interference with a plaintiff's liberty interest must be severe before it rises to the level of a substantive constitutional violation, see, e.g., Anthony, 339 F.3d at 143, "brief removals [of a child from a parent's home] generally do not rise to the level of a substantive due process violation, at least where the purpose of the removal is to keep the child safe during investigation and court confirmation of the basis for removal," Nicholson, 344 F.3d at 172 (citing Tenenbaum, 193 F.3d at 600-01 & n.12); see also Cecere, 967 F.2d at 830 (ruling that plaintiff's due process claim failed because a "brief" four-day removal, executed "in the face of a reasonably perceived emergency," did not violate due process); Joyner ex rel. Lowry v. Dumpson, 712 F.2d 770, 779 (2d Cir. 1983) (no substantive violation where temporary transfer of custody to foster-care system did not "result in parents' wholesale relinquishment of their right to rear their children").

B. Analysis -  The district court, in deciding that qualified immunity protection prevailed, concluded that it was objectively reasonable for Woo to think that Southerland's substantive due process rights were not being violated because "[b]rief removals of children from their parents generally do not rise to the level of a substantive due process violation," Southerland II, 521 F. Supp. 2d at 232 (brackets and internal quotation marks omitted), and because the Southerland Children "were removed in the context of a child protective investigation [in which] removal would be subject to court confirmation," id.; see also id. at 234 (suggesting that "a family court judge confirmed the removal" at a "timely post-deprivation hearing"). We agree in principle. The removal of a child from his or her parent does not violate the parent's substantive due process rights if a post-removal judicial proceeding is promptly held to confirm that there exists a reasonable basis for the removal. The period of time in which the child and parent are separated at the sole instruction of the defendant is, in such a case, not severe enough to constitute a substantive due process violation by the defendant. See Nicholson, 344 F.3d at 172; Tenenbaum, 193 F.3d at 600-01. If it were clear in the record that the removal of the Southerland Children was confirmed by a prompt and adequate judicial confirmation proceeding, we would agree with the district court that summary judgment would be appropriate on that basis. But the record is not sufficiently clear for us to determine whether such a post-removal judicial proceeding occurred, and if so, the nature of it. The district court stated that the Southerland Children were removed and held in ACS custody "pending a timely post-deprivation hearing where a family court judge confirmed the removal." Southerland II, 521 F. Supp. 2d at 234. And the court had previously observed that the Southerland Children "remained in custody without a court order until the morning of June 12, 1997"—about forty-eight hours—"at which time Woo obtained a court order confirming the removal." Southerland v. City of N.Y., No. 99-cv-3329, 2006 WL 2224432, at *1, 2006 U.S. Dist. LEXIS 53582, at *4 (E.D.N.Y. Aug. 2, 2006). Although the parties do not appear to dispute that a post-removal judicial confirmation proceeding was held, nor do they dispute that this proceeding took place within several days after removal, they provide no further detail upon which we can assess the nature of the proceeding in terms of its timeliness and adequacy.19

We are also unable to determine from the present record on what factual basis the Family Court decided that the continued removal of the Southerland Children was warranted. We do not know, for example, whether its decision to confirm the removal was based solely on written submissions by Woo to the same effect and containing the same errors as Woo's application for the Order Authorizing Entry. Apparently relying on the understanding that the Family Court had promptly confirmed the Southerland Children's removal, the district court concluded that no reasonable trier of fact could find that the removal of the Children was "so 'shocking, arbitrary, and egregious' that Southerland's substantive due process rights were violated." Southerland II, 521 F. Supp. 2d at 235 (citation omitted). For much the same reason that we conclude that material questions of fact preclude summary judgment on the merits of the plaintiffs' procedural due process claims, however, we conclude that summary judgment was inappropriate on the merits of Southerland's substantive due process claim. A plaintiff's substantive due process claim fails if "there is an objectively reasonable basis for believing that parental custody constitutes a threat to the child's health or safety." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996). Although this "reasonable basis" standard appears to impose a lesser burden on a defendant than the "emergency circumstances" standard applicable to procedural due process claims, summary judgment is nevertheless not appropriate unless "there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." D'Amico, 132 F.3d at 149. The facts concerning the nature of Southerland's behavior during Woo's investigation and the conditions in the Southerland apartment at the time that Woo effected the removal remain hotly contested by the parties. For example, while Woo contends that the apartment lacked enough food, lighting, and bedding; that the Children were malodorous; and that various safety hazards were present, Southerland has tendered admissible evidence (albeit largely in the form of his own testimony) that each of those factual assertions is false. If the trier of fact were to credit Southerland's account, we cannot say that it would be unreasonable for it to then conclude that a reasonable caseworker in Woo's position lacked an "objectively reasonable basis" for removing the Children, Gottlieb, 84 F.3d at 518, and thus that Woo's actions were "shocking, arbitrary, and egregious," Anthony, 339 F.3d at 143 (internal quotation marks omitted). Moreover, in the absence of record evidence as to the substance of the post-removal judicial confirmation proceeding, we cannot conclude that the fact that the Family Court confirmed the removal of the Southerland Children suffices to show that Woo's conduct had an objectively reasonable basis. Cf. Southerland II, 521 F. Supp. 2d at 234-35.

Finally, we consider whether Woo is nonetheless entitled to summary judgment on the basis of qualified immunity. As noted, qualified immunity is available to defendants "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818; see also Cornejo v. Bell, 592 F.3d 121, 128 (2d Cir.), cert. denied, 131 S. Ct. 158 (2010). When a defendant official invokes qualified immunity as a basis for summary judgment, a court must consider not only whether evidence in the record suggests a violation of a statutory or constitutional right, but also "whether that right was clearly established at the time of the alleged violation." Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). Thus, if it could be shown that, at the time of the events in question, Woo lacked a legal basis upon which he could conclude that his actions would violate Southerland's substantive due process rights, Woo would be entitled to qualified immunity. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer [in the position of the defendant] that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). In answering that question, we consider: "(1) whether the right was defined with reasonable specificity; (2) whether Supreme Court or court of appeals case law supports the existence of the right in question, and (3) whether under preexisting law a reasonable defendant would have understood that his or her acts were unlawful." Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010). "The task of framing the right at issue with some precision is critical in determining whether that particular right was clearly established at the time of the defendants' alleged violation." Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010); see also Wilson v. Layne, 526 U.S. 603, 609 (1999). Although the matter of whether a right at issue is clearly established is a question of law, Higazy v. Templeton, 505 F.3d 161, 170 (2d Cir. 2007), that question is "tied to the specific facts and context of the case," Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir. 2007). In 1997, when Woo effected the removal, it was well established as a general matter that parents possess a substantive right under the Due Process Clause of the Fourteenth Amendment to exercise care, custody, and control over their children. See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982); Gottlieb, 84 F.3d at 518; Joyner ex rel. Lowry, 712 F.2d at 777. It was also the law, however, that where "parental custody constitutes a threat to the child's health or safety, government officials may remove a child from his or her parents' custody at least pending investigation." Gottlieb, 84 F.3d at 518; see also Stanley v. Illinois, 405 U.S. 645, 649-53 (1972); Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123, 1125 (3d Cir. 1997). We therefore determined prior to 1997 that where the state has an "objectively reasonable basis" for removing a child from his or her parent, the parent's substantive constitutional rights are not infringed. Gottlieb, 84 F.3d at 518; see generally id. at 520; van Emrik v. Chemung County Dep't of Soc. Servs., 911 F.2d 863, 866 (2d Cir. 1990). We also repeatedly assured potential defendants that qualified immunity would be available to "protect state officials in choosing between [difficult] alternatives, provided that there is an objectively reasonable basis for their decision, whichever way they make it." van Emrik, 911 F.2d at 866; see also Defore v. Premore, 86 F.3d 48, 50 (2d Cir. 1996) (per curiam) (qualified immunity exists to "insure that publicly employed caseworkers have adequate latitude to exercise their professional judgment in matters of child welfare"). In 1999, two years after the events in question here, we summarized the state of the law in Wilkinson: "Although parents enjoy a constitutionally protected interest in their family integrity, this interest is counterbalanced by the 'compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves.'" Wilkinson, 182 F.3d at 104 (quoting Manzano v. S.D. Dep't of Soc. Servs., 60 F.3d 505, 510 (8th Cir. 1995) (internal quotation marks omitted)). We observed that "[t]he difficulty of balancing the weighty interests apparent in the [child] abuse context…has prompted courts to impose few concrete restrictions on case workers, in exercising their discretion, short of [certain] obvious extremes." Id. We described those "extremes" as including circumstances where a caseworker "ignor[es] overwhelming exculpatory information" or "manufactur[es] false evidence." Id. We concluded in dicta that our decisions to that date had left the defendants at bar "with little or no indication that their alleged misconduct, as near as it was to the constitutional borderline, would have even implicated serious constitutional concerns." Id. at 107; see also Patel v. Searles, 305 F.3d 130, 139 (2d Cir. 2002), cert. denied, 538 U.S. 907 (2003). Our discussion in Wilkinson would seem to suggest that perhaps there was a lack of clearly established law available to guide Woo's conduct. We nonetheless cannot conclude as a matter of law that, in 1997, Woo lacked sufficient legal guidance by which to discern the lawfulness of his actions. Assuming, as we must at the summary judgment stage, that the factual circumstances are as Southerland, not Woo, describes them, and resolving all credibility questions and drawing all reasonable inferences in Southerland's favor, we are not able to say that Woo would then have lacked a legal basis for understanding that removing the children from their home would be unlawful. Indeed, the district court here was also of the view that "Southerland's substantive due process rights were clearly established at the time of the removal of the children." Southerland II, 521 F. Supp. 2d at 232. We therefore cannot conclude on this record that the principles of law applicable to the facts as we must view them on appeal from a grant of summary judgment were not clearly established in 1997. Woo is thus not entitled at this stage to qualified immunity on Southerland's substantive due process claim, although, again, once the relevant disputes of material fact are resolved, the district court might eventually conclude that Woo is entitled to such immunity.

VII. The Southerland Children's Fourth Amendment Unlawful-Seizure Claim -  Finally, the Southerland Children assert a claim for violation of their own substantive due process rights, which the district court recharacterized as a claim of unlawful seizure under the Fourth Amendment. See Southerland II, 521 F. Supp. 2d at 227 n.22, 230 n.24. The district court concluded that Woo was entitled to qualified immunity because "prior to the Court of Appeals' decision in Tenenbaum [in 1999], there was no clear application of Fourth Amendment standards in the child removal context." Id. at 231. Although we agree with the district court's observation that this Circuit had not yet applied Fourth Amendment unlawful-seizure principles in the child-removal context by 1997, we think that the district court erred by conducting its inquiry solely by reference to the Fourth Amendment. Our decision in Tenenbaum effected a change in the legal framework applicable to a child's claim for substantive constitutional violations arising out of the child's removal from his or her parent's home. There, the plaintiffs contended that "[their daughter's] temporary removal for the purpose of subjecting her to a medical examination violated their and [the daughter's] substantive due-process rights." Tenenbaum, 193 F.3d at 599. Relying on Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion of Rehnquist, C.J.), we observed thatvwhere a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims. Tenenbaum, 193 F.3d at 599 (brackets and internal quotation marks omitted). We said that "'[s]ubstantive due process analysis is…inappropriate…if [the] claim is covered by the Fourth Amendment.'" Id. at 600 (quoting Lewis, 523 U.S. at 843) (second brackets in original; other internal quotation marks omitted). We then concluded that the daughter's "removal and her examination constituted a seizure and search, respectively, under the Fourth Amendment," id., and that her claim "therefore 'must be analyzed under the standard appropriate to [the Fourth Amendment], not under the rubric of substantive due process.'"20 Id. (quoting United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)). The fact that Tenenbaum changed the legal "rubric" applicable to the Southerland Children's constitutional claims, however, is not determinative of whether their rights were clearly established in 1997. It would be inappropriate, we think, to afford Woo qualified immunity on the Southerland Children's claims solely because, two years after the events in question, we shifted the constitutional framework for evaluating those claims from the Fourteenth to the Fourth Amendment.

We reached a similar conclusion in Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir.), cert. denied, 552 U.S. 818 (2007). There we made clear that the constitutional "right to be free from prolonged detention caused by law enforcement officials' mishandling or suppression of exculpatory evidence," id. at 211, was a species of the right to be free from unlawful seizure under the Fourth Amendment, not a substantive due process right under the Fourteenth Amendment, see id. at 208-09. In then proceeding to undertake a qualified immunity inquiry, we cautioned that our "clarification [of the law was] of no consequence to the question of whether the right was clearly established [at the time of the relevant events], because the proper inquiry is whether the right itself—rather than its source—is clearly established." Id. at 212 (collecting cases; emphasis in original). Here, as in Russo, in inquiring whether there was clearly established law to govern the Southerland Children's claims in 1997, we look not only to authorities interpreting the Fourth Amendment, but to all decisions concerning the same substantive right. At the time of the events in question in this case, a child's claim for violation of his or her right to "preservation of family integrity," Duchesne, 566 F.2d at 825, would likely have been understood to arise under the substantive due process guarantee of the Fourteenth Amendment. This right had been recognized in our case law by 1997, see Joyner ex rel. Lowry, 712 F.2d at 777-78; Rivera v. Marcus, 696 F.2d 1016, 1026 (2d Cir. 1982); Leonhard v. United States, 633 F.2d 599, 618 (2d Cir. 1980) (collecting cases); Duchesne, 566 F.2d at 825, although it had been less frequently litigated than the corresponding substantive parental right. As with the corresponding parental right, however, the law in 1997 also recognized the countervailing principle that the state may remove children from the custody of their parents without violating the children's constitutional rights where there is a reasonable basis for concluding that the children are abused or neglected. See, e.g., Rivera, 696 F.2d at 1017.

For much the same reason that we determined that Woo is not entitled to qualified immunity as a matter of law on the current record as to Southerland's substantive due process claim, resolving all disputed facts in the plaintiffs' favor for these purposes, we conclude that a reasonable caseworker in Woo's position would not have lacked a sufficient legal basis for knowing that his conduct under those circumstances would infringe upon the substantive constitutional rights of the Southerland Children. As with the other claims addressed in these appeals, though, the district court may yet conclude on remand and after further development of the facts that Woo is entitled to qualified immunity in this context.
Finally, we note that the district court concluded that, in the absence of qualified immunity protection, Woo would not be entitled to summary judgment on the merits of the Southerland Children's Fourth Amendment unlawful-seizure claim. See Southerland II, 521 F. Supp. 2d at 234 n.29. We have no reason to disturb that ruling on appeal.

CONCLUSION -  For the foregoing reasons, we vacate the district court's grant of summary judgment on each of the plaintiffs' claims that have been preserved for appeal: (1) Southerland's and the Southerland Children's claims for Fourth Amendment violations arising out of the allegedly unlawful search of the Southerland home; (2) Southerland's and the Southerland Children's claims for violations of procedural due process under the Fourteenth Amendment; (3) Southerland's claim for violation of substantive due process under the Fourteenth Amendment; and (4) the Southerland Children's claim for unlawful seizure under the Fourth Amendment. We remand for further proceedings. *. The Clerk of Court is directed to amend the official caption in accordance with the foregoing.

--------------------Footnotes:


1. We refer throughout this opinion to asserted Fourth Amendment rights of the plaintiffs. Inasmuch as the defendants are state and not federal actors, of course, whatever rights the plaintiffs have are "under the Fourth Amendment, as applied to the States under the Fourteenth Amendment['s]" Due Process Clause. Kia P. v. McIntyre, 235 F.3d 749, 761 (2d Cir. 2000); see Mapp v. Ohio, 367 U.S. 643, 655 (1961).
2. Judge Sifton passed away while these appeals were pending.
3. Southerland later testified that the school contacted him with a medical referral after the paint-swallowing incident, and that he had tried to get Ciara to go to the appointment that was scheduled for her, but that she refused to go.
4. Woo listed the Manning Children's names at the top of the application, along with Southerland's name and the address of the Southerland apartment. The body of the application states in its entirety: I, Timothy Woo, Caseworker for ACS, am a person conducting a child protective investigation pursuant to the Social Services Law. I have reasonable cause to believe that the above named children may be found at the above premises. I have reason to believe that the children are abused or neglected children. The reasons and the sources of information are as follows:  That on May 12, 1997, Sierra [sic] Manning, age 16 tried to kill herself by swallowing non-toxic paint. Mr. Sutherland [sic] did not take Sierra [sic] to a medical doctor and refused to take Sierra [sic] for psychiatric evaluation. Mr. Sutherland [sic] has refused to allow the Administration for Children's Services into his home to speak to the above named children. WHEREFORE, the applicant moves for an order authorizing the Administration for Children's Services accompanied by police to enter the premises to determine whether the above named children are present and to proceed thereafter with its child protective investigation.  Application for Authorization to Enter Premises dated June 6, 1997, Ex. C to Silverberg Decl.
5.The district court summarized Woo's and Balan's stated reasons for removing the Children as including: the seriousness of the initial allegation in the Intake Report—that Ciara had attempted suicide; that Southerland had failed to seek medical assistance for Ciara or for Venus; that he had resisted allowing ACS to visit his home; that he had refused to accept ACS services or assistance; that the home lacked food and adequate light; that the use of multiple extension cords for the electronic equipment was dangerous; and that the children were dirty. This combination of factors, according to Woo and Balan, "established in [their] minds that Southerland could not parent the children responsibly." Southerland II, 521 F. Supp. 2d at 225.
6. After the Southerland Children's removal, Woo brought Venus "to a hospital based on the instructions of a nurse at the agency that first examined the children. At the hospital, the wound was dressed and the child received a tetanus shot." Southerland II, 521 F. Supp. 2d at 225 n.13.
7. On March 14, 2007, Southerland made a pro se submission to the district court requesting that the court take judicial notice of a number of documents, including a declaration by Ciara Manning that had been sworn on April 20, 2002. In that declaration, Ciara stated that Southerland had never molested or abused her in any way and that the statements she made previously to Woo and to the Family Court to that effect were false. See Pro Se Submission of Sonny B. Southerland at 26-27 (Dkt. No. 192), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Mar. 14, 2007). 13
8. Michael G. O'Neill was appointed as counsel for both Southerland and the Southerland Children. In April 2004, Southerland resumed proceeding pro se before the district court, while Mr. O'Neill continued to represent the Southerland Children (including Venus and Sonny Jr., even after they were no longer minors). In April 2004, the district court also appointed a guardian ad litem to represent the Southerland Children's interests. Southerland II, 521 F. Supp. 2d at 221 n.1. In the instant appeals, Southerland represents himself pro se, while Mr. O'Neill continues to represent the Southerland Children.
9. The amended complaint did not name as defendants or assert any claims against any of the other thirty-nine defendants that had been named by Southerland in his original pro se complaint. Additionally, although Ciara was identified as a plaintiff in the original complaint, she was dropped from the suit when the amended complaint was filed.
10. The amended complaint also joins nine John Doe defendants, including all persons who "supervis[ed], monitor[ed] and assist[ed] Woo in his actions with respect to the [Southerland] Children." Am. Compl. ¶39 (Dkt. No. 75), Southerland v. City of N.Y., No. 99-cv-3329 (E.D.N.Y. Nov. 22, 2002). The complaint asserts that "said Does are individually liable to [Southerland] for the deprivation of his constitutional rights and the constitutional rights of the [Southerland] Children as alleged herein." Id. In their briefing on appeal, the plaintiffs do not address these John Doe defendants. We conclude that the plaintiffs have abandoned their claims against the John Does. We note that even if the plaintiffs now sought to amend their complaint to identify the John Doe defendants, the claims against the newly named defendants would be time-barred. See Tapia-Ortiz v. Doe, 171 F.3d 150, 151-52 (2d Cir. 1999) (per curiam); Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 468-70 (2d Cir. 1995), modified, 74 F.3d 1366 (2d Cir. 1996).
11. In so doing, the district court relied upon our statement, when the case was previously on appeal, that "[t]he children's claims for unreasonable seizure would proceed under the Fourth Amendment rather than the substantive component of the Due Process Clause." Southerland I, 4 F. App'x at 37 n.2 (citing Kia P. v. McIntyre, 235 F.3d 749, 757-58 (2d Cir. 2000)).
12. The district court later permitted the Southerland Children to assert their failure-to-train claim against the City not only with respect to the police, but also with respect to ACS. See Southerland II, 521 F. Supp. 2d at 235 n.34.
13. "Where another provision of the Constitution provides an explicit textual source of constitutional protection, a court must assess a plaintiff's claims under that explicit provision and not the more generalized notion of substantive due process." Kia P., 235 F.3d at 757-58 (quoting Conn v. Gabbert, 526 U.S. 286, 293 (1999)) (brackets and internal quotation marks omitted).
14. The defendants also argue, with respect to the probable cause determination, that irrespective of the requirements of New York Family Court Act §1034(2), Woo was required to visit the Southerland home under a provision of the New York Social Services Law that requires that, within twenty-four hours of receipt of a "report[] of suspected child abuse or maltreatment" as provided for under New York Social Services Law §424(1), ACS must undertake an investigation that includes "an evaluation of the environment of the child named in the report and any other children in the same home," id. §424(6)(a). However, considering that Woo had reason to know that Ciara, the child identified in the report, was not living at the Southerland home—and, indeed, reason to know that none of the children named in his application to the Family Court were living there—his reliance on this provision of the Social Services Law fails. If Ciara was not living "on premises" at the Southerland home, Woo was not entitled to enter the home to evaluate this "environment," nor to evaluate the other children living there.
15. In child-abuse investigations, a Family Court order is equivalent to a search warrant for Fourth Amendment purposes. See Nicholson v. Scoppetta, 344 F.3d 154, 176 (2d Cir. 2003); Tenenbaum, 193 F.3d at 602.
16. We disagree with the defendants' assertion that Hurlman and Robison are not controlling here because the state officers in those cases were unlawfully on the premises, whereas Woo had a court order (albeit a disputed one) to enter the Southerland 16 We disagree with the defendants' assertion that Hurlman and Robison are not controlling here because the state officers in those cases were unlawfully on the premises, whereas Woo had a court order (albeit a disputed one) to enter the Southerland
17. In Tenenbaum, a removal was carried out because the child had reported—albeit under questionable circumstances—that her father had sexually abused her. See Tenenbaum, 193 F.3d at 594. There was no doubt at the time that the possibility of sexual abuse was, as it always is, a serious concern. At issue was whether there was nonetheless time under the circumstances to secure a court order prior to effecting the removal without risking imminent danger to the child. See id. at 608 (Jacobs, J., dissenting) (describing majority opinion as holding that, while there was "exigency," there was still no "emergency," because there was time to obtain a court order). Tenenbaum represented a novel application of procedural due process law because of the majority's holding that regardless of the seriousness of the allegations, it was still necessary to obtain a court order if time permitted. Here, by contrast, we understand the plaintiffs to assert that the circumstances presented did not necessitate an inquiry into whether there was time to obtain a court order, because the conditions in the Southerland home were not grave enough to trigger that inquiry.
18. The district court correctly noted that there are material factual disputes concerning whether emergency circumstances existed warranting the immediate removal of the Southerland Children from their home. See Southerland II, 521 F. Supp. 2d at 234 n.29 & 235 n.31. But even where emergency circumstances warranting removal exist, "'the constitutional requirements of notice and opportunity to be heard are not eliminated but merely postponed.'" Kia P., 235 F.3d at 760 (quoting Duchesne, 566 F.2d at 826). Therefore, a plaintiff may have a viable claim for violation of procedural due process even where emergency circumstances existed at the time of removal, if the plaintiff does not receive a timely and adequate postdeprivation hearing. See id. at 760-61. In this case, as will be explained below, important factual questions remain concerning the post-removal judicial confirmation proceedings, if any, that took place in the days after the Southerland Children's removal from their home.
19. See Southerland Children's Br. at 23 ("The children were held by the defendants without court order from June 9 until June 13, 1997. ACS filed a petition in the Family Court on June 13, 1997, and apparently some kind of proceeding was held on that day, although there is no evidence of it in the record."); Appellees' Br. at 19 ("Plaintiff Southerland's children, the Court found, were removed from the home and held in ACS custody pending a timely post-deprivation hearing where a family court judge confirmed the removal."). The parties have failed to brief the issue despite our prior instruction that Southerland "be given an opportunity to prove…that the subsequent family court proceedings were insufficiently prompt to pass constitutional muster." Southerland I, 4 F. App'x at 36.
20. We reaffirmed this approach in Kia P., 235 F.3d at 757-58, where we also construed a child's claimed violation of substantive due process as instead arising under the Fourth Amendment. In Southerland I, we relied on Kia P. in stating that "[t]he [Southerland] children's claims for unreasonable seizure would proceed under the Fourth Amendment rather than the substantive component of the Due Process Clause." Southerland I, 4 F. App'x at 37 n.2..

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See Video of Senator John L. Sampson's 1st Hearing on Court 'Ethics' Corruption

The first hearing, held in Albany on June 8, 2009 hearing is on two videos:


               Video of 1st Hearing on Court 'Ethics' Corruption
               The June 8, 2009 hearing is on two videos:
         
               CLICK HERE TO SEE Part 1
               CLICK HERE TO SEE Part 2