In Scanlon v. County, published February 2, 2024, the 9th Circuit Court of Appeals affirmed in part and reversed in part judgment against the defendant county and individual social workers in a suit under 42 U.S.C. section 1983. The plaintiff parents had two children. One of them, age 9, was autistic, with violent behaviors. The plaintiff mother asked the child's pediatrician about using medical marijuana as a possible treatment. He stated he had no experience with that approach. She attempted to schedule an appointment with a doctor who was expert on pediatric medical marijuana, but the doctor had a year-long waiting list. She consulted with an anesthesiologist who had some experience treating autistic children with medical marijuana. He gave a one-month recommendation to the child to start using medical marijuana. He advise starting the child at the lowest possible dose and watch for side effects. He did not recommend or prescribe any particular dosage. The mother ordered THC oil and worked with a "dosing specialist" who was not a licensed medical provider. The anesthesiologist recommended to the mother she continue the regiment, and gave a second recommendation. The defendant county's child welfare agency received two anonymous referrals reporting that the child had arrived at school with glazed eyes, and apparently under the influence of marijuana. The assigned social worker spoke with the child's teacher. The social worker reported that the teacher told her that the child was showing signs of being under the influence and smelled of marijuana. The teacher contradicted those observations in her deposition testimony. The social worker then spoke with the mother. The mother testified that she was cooperative, told the worker about the physician's recommendation, and allowed the social worker to handle the THC oil bottle. The social worker contended that the mother was uncooperative, refused to reveal information about the physician or the dosage, and would not let her have the bottle. They agreed that the mother did not provide the specific dosage, and that the social worker told the mother the household needed a lockbox for the THC. They also agreed that the mother sent the social worker the anesthesiologist's written recommendation and contact information for the child's pediatrician. The social worker then pulled the younger child out of class and met with her alone. The younger child stated that she was not allowed to touch the medicine, but admitted having handled the bottle. The social worker contacted the pediatrician, who was unaware the child was taking medical medical marijuana. After a meeting between social workers and the parents, the events of which were disputed, the social worker prepared a Statement of Cause for a protective custody warrant to detain both children. The statement alleged general neglect, based on evidence that the parents were treating the child's autism with cannabis oil, and purportedly had not consulted with a medical professional or a professional who deals with autism; that the mother was experimenting with dosage; that the teacher gave information about negative effects of marijuana on the child. The statement referred to the consultations with the anesthesiologist and the pediatrician, and a pending appointment with a pediatrician specializing in treating autism with cannabis. The court approved a warrant directing the removal of the children. The children were removed and spent five days in foster homes. The pediatrician who specialized in treating autism with medical marijuana attended a hearing on the children's case, at which the court dismissed the removal petition. The parents and children sued, alleging violation of multiple constitutional rights. The district court dismissed some of the claims, and granted summary judgment on others. A trial was held on the remaining claim, which centered on the parents' claim they had bought a lockbox. The jury ruled in favor of the defendants.
The 9th Circuit reversed the district court's grant of summary judgment on the violation of the parents' 14th Amendment right to familial association, and the children's 4th Amendment rights, by judicial deception--providing false or misleading information to the court that authorized the removal. Judicial deception consists of either deliberate omission or affirmative misrepresentation. A statement can also be
misleading if, although technically true, it has been so wrenched from its context that the judicial officer will not comprehend how it fits into the larger puzzle. The 9th Circuit remanded the claim to the district court, concluding the statement contained misrepresentations and omissions of fact regarding the parents' alleged treatment of the child with cannabis oil without medical supervision, and that the treatments adversely affected the child's behavior at school. A reasonable trier of fact could find the misrepresentations material to the judicial decision. Since California has legalized medical marijuana for children, a reasonable magistrate could not have ordered the children removed merely because the child was receiving medical marijuana. The teacher denied making the statements attributed to her in the statement of cause, and that the statements were untrue. Viewing the evidence in the light most favorable to the plaintiffs, the teacher's testimony supports the parents' claim that the social worker mischaracterized the teacher's comments. There were triable issues of fact on whether the warrant application materially misrepresented information and omitted facts required to prevent the application from being misleading. The court further ruled that the defendants were not entitled entitled to qualified immunity, because the right to be free from judiclal deception in matters of child custody was clearly established at the time of the events. The 9th Circuit affirmed judgment on the pleadings as to the plaintiffs' 4th Amendment claim as to the younger child's school interview. The law did not clearly establish that the schoolhouse interview violated the 4th Amendment. The 9th Circuit reversed the summary judgment on the plaintiffs' Intentional Infliction of Emotional Distress claim, because it reversed summary judgment on the judicial deception claim. it also reversed summary judgment on the plaintiffs' Monell claim, because there was evidence from which a jury could find the welfare department's policy governing preparation of warrant applications were insufficient in practice. The appellate court remanded the claim for additional consideration. Finally, the court upheld the decision at the trial, finding that the district court did not err by repeating jury instructions to a confused juror.