In Sampson v. County of Los Angeles, published September 9, 2020, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part the dismissal on a Motion to Dismiss of a 42 U.S.C. section 1983 lawsuit against a social worker and his superiors. The plaintiff alleged that the defendant social worker sexually harassed her while she sought legal guardianship of her niece. When she complained about the alleged harassment to the social worker's superiors, the social worker and superiors allegedly retaliated against her by failing to assist her in obtaining foster funding, falsely representing that the child's father had unlimited visitation rights (leading to the child's abduction), and pursuing court action to take the child away from the plaintiff. The plaintiff alleged claims for retaliation in violation of the First Amendment for falsely accusing the plaintiff of abuse and neglect and seeking to remove the child from her custody, and violation of the Equal Protection Clause of the Fourteenth Amendment for the social worker's conduct. The district court dismissed the claims based on the second prong of qualified immunity: The law did not clearly establish the rights asserted.
Two judges held that the district court erred in granting qualified immunity on the First Amendment retaliation claim. They held that earlier Ninth Circuit case law clearly established in 2015, when the incidents allegedly took place, that the First Amendment prohibits public officials from threatening to remove a child from an individual's custody to chill protected speech out of retaliatory animus for such speech. That the past case law involved biological parents, rather than a legal guardian, did not matter; case law established that the threat of losing custody would ordinarily chill the free expression of biological parents and legal guardians alike. Because the district court did not address the first prong of qualified immunity--whether the plaintiff plausibly alleged a First Amendment retaliation claim--the court remanded the issue.
A different two-judge majority affirmed the holding that the law did not clearly establish that the sexual harassment violated the Equal Protection Clause. The right under the Equal Protection Clause to be free from sexual harassment by public officials in the workplace and school contexts is clearly established by prior 9th Circuit case law. But the 9th Circuit had never held that the Clause protects private individuals who suffer sexual harassment at the hands of public officials providing them with social services. The court made it "abundantly clear," however, that, moving forward, state public officials violate equal protection when the sexually harass the people they serve.
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