No. 10-1364

IN THEUNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JAYMZ HERNANDEZ, by his parents and nextfriends Crystelle Hernandez and JoshuaHernandez; CRYSTELLE HERNANDEZ; andJOSHUA HERNANDEZ,

Plaintiffs-Appellants,

v.

LAKESHA FOSTER, DCFS Investigator, in herindividual capacity; PAMELA FOSTER-STITH,DCFS supervisor, in her individual capacity;and MICHAEL RUPPE, DCFS manager, in hisindividual capacity,

Defendants-Appellees.

))))))))))))))))

On Appeal from the UnitedStates District Court for theNorthern District of Illinois,Eastern Division

No. 09 C 2461

The HonorableSUZANNE B. CONLON,Judge Presiding.

BRIEF OF DEFENDANTS-APPELLEES

LISA MADIGAN Attorney General of Illinois

MICHAEL A. SCODRO Solicitor General

100 West Randolph Street 12th Floor

Chicago, Illinois 60601 (312) 814-3312

Attorneys for Defendants-Appellees.

MARY E. WELSHAssistant Attorney General100 West Randolph Street12th Floor Chicago, Illinois 60601(312) 814-2106

-i-

TABLE OF CONTENTS

PAGE(S)

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

The Decision to Take the Child Into Temporary Protective Custody . . . . . . . . . . . . 5

The Temporary Custody Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

The Safety Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

The Safety Plan Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

The Subsequent Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

The District Court Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

I. Plaintiffs’ Statement of Facts and Related Argument Should Be Strickenfor Non-Compliance With Circuit Rule 28(c) . . . . . . . . . . . . . . . . . . . . . . . . 19

II. Summary Judgment Against Plaintiffs Should Be Affirmed inIts Entirety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

A. Defendants Are Entitled to Summary Judgment Whenever the Admissible Evidence Create No Genuine, Material Factual Dispute and They Are Entitled to Judgment asa Matter of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

B. Plaintiffs’ Burden On Qualified Immunity Is A Heavy One . . . . . . . 21

C. Defendants Were Entitled to Judgment on Jaymz’s FourthAmendment Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

-ii-

1. Plaintiffs Failed to Show That a Reasonable Jury Could FindThat Any Defendant Violated Jaymz’s Fourth AmendmentRights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

2. Alternatively, Plaintiffs Failed to Show That Any Defendant IsNot Entitled to Qualified Immunity . . . . . . . . . . . . . . . . . . . . 28

D. Defendants Were Entitled to Judgment on the Substantive Due Process Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

1. Only Conduct that “Shocks the Conscience” Violates theGuarantee of Substantive Due Process . . . . . . . . . . . . . . . . . . 30

2. Plaintiffs Present No Evidence From Which a Reasonable JuryCould Find That Any Defendant “Shocked the Conscience” byTaking the Child Into Temporary Protective Custody . . . . . . 31

3. Plaintiffs Presented No Evidence From Which a ReasonableJury Could Find That Any Defendant “Shocked the Conscience”by Keeping Jaymz in Temporary Protective Custody for FewerThan 48 Hours Under the Circumstances Here . . . . . . . . . . . 33

4. Plaintiffs Failed to Present Evidence From Which a ReasonableJury Could Find That Foster “Shocked the Conscience” by“Coercing” The Parents’ Agreement to the Safety Plan . . . . . 38

E. Defendants Were Entitled to Judgment on Plaintiffs’ Procedural DueProcess Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

1. Procedural Unfairness Is Actionable Only If the ExistingProcedural Safeguards Shock the Universal Sense of Justice. .48

2. Plaintiffs Failed to Present Evidence from Which a ReasonableJury Could Find That Any Defendant Deprived Plaintiffs ofTheir Liberty Interest in Familial Relations Without the ProcessThat Was Due . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

3. Plaintiffs Failed to Present Evidence from Which a ReasonableJury Could Find That Any Defendant Deprived Them of TheirLiberty Interest in Familial Relations Without the Process ThatWas Due for the Safety Plan . . . . . . . . . . . . . . . . . . . . . . . . . . 50

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

-iii-

TABLE OF AUTHORITIES

Page(s)CASES

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

BeVier v. Hucal, 806 F.2d 123 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Boyd v. Owen, 481 F.3d 520 (7th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Brousseau v. Haugen, 543 U.S. 194 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 45

Casna v. City of Loves Park, 574 F.3d 420 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Chaklos v. Stevens, 560 F.3d 705 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Collins v. Seeman, 462 F.3d 757(7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

County of Riverside v. McLaughlin, 500 U.S. 44 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 36, 41

County of Sacramento v. Lewis, 523 U.S. 833 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30-31, 32, 48

Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123 (3d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Cygan v. Wis. Dep’t of Corr., 388 F.3d 1092 (7th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32

-iv-

Devenpeck v. Alford, 543 U.S. 146 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 44

Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Dupuy v. McEwen, 495 F.3d 807 (7th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Dupuy v. Samuels, 465 F.3d 757 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Evans v. Richardson, 2010 WL 1194272 (N.D. Ill. March 19, 2010) . . . . . . . . . . . . . . . . . . . . . . 45-46

Florida v. Bostick, 501 U.S. 429 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 51

Garcia v. City of Chicago, 24 F.3d 966 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 37-38

Gerstein v. Pugh, 420 U.S. 103 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33-34, 42

Graham v. Connor, 490 U.S. 386 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Gramenos v. Jewel Companies, Inc., 797 F.2d 432 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-28

Gunville v. Walker, 583 F.3d 979 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Hanson v. Dane County, Wis., 608 F.3d 335 (7th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Hoffman-Dombrowski v. Arlington Int’l Racecourse, Inc., 254 F.3d 644 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Hope v. Pelzer, 536 U.S. 730 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

-v-

Jackson v. Parker, ___ F.3d ___, 2010 WL 4909459 (7th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . 27

Jensen v. Foley, 295 F.3d 745 (7th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Khuans v. Sch. Dist. 110, 123 F.3d 1010 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 45

Lossman v. Pekarske, 707 F.2d 288 (7th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 49

Lynumn v. Illinois, 372 U.S. 528 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Malley v. Briggs, 475 U.S. 335 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Mathews v. Eldridge, 424 U.S. 319 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 50

Michael C. v. Gresbach, 526 F.3d 1008 (7th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Miller v. Amer. Family Mut. Ins. Co., 203 F.3d 997 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Miller v. City of Philadelphia, 174 F.3d 368 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Palka v. Shelton, 623 F.3d 447 (7th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 40

Pearson v. Callahan, 129 S. Ct. 808 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Prince v. Massachusetts, 321 U.S. 158 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Purtell v. Mason, 527 F.3d 615 (7th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 45

Rogers v. Richmond, 365 U.S. 534 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

-vi-

Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Saucier v. Katz, 533 U.S. 194 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Scott v. United States, 436 U.S. 128 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Shank v. William R. Hague, Inc., 192 F.3d 675 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Sivard v. Pulaski County, 959 F.2d 662 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Smith v. Williams-Ash, 520 F.3d 596 (6th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

SMS Demag Aktiengesellschaft v. Material Sciences Corp.,565 F.3d 365 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Sornberger v. City of Knoxville, Ill., 434 F.3d 1006 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43-44

Spano v. New York, 360 U.S. 315 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Terry v. Richardson, 346 F.3d 781 (7th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-41, 51-52

Tibbs v. City of Chicago, 469 F.3d 661 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Troxel v. Granville, 530 U.S. 57 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

United States v. Dabney, 498 F.3d 455 (7th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

United States v. Hope, 906 F.2d 254 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

United States v. Messino, 871 F.Supp. 1035 (N.D. 26Ill. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

-vii-

United States v. Miller,450 F.3d 270 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

United States v. Patayan Soriano, 361 F.3d 494 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Vaughn v. Ruoff, 253 F.3d 1124 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Wilkie v. Robbins, 551 U.S. 537 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40

Wilson v. Layne, 526 U.S. 603 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-29

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-52

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

7th Cir. R. 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-20

705 ILCS 405/2-9 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

“App” refers to Plaintiffs’ Short Appendix, and “SApp” refers to their1

Supplemental Appendix.

-1-

JURISDICTIONAL STATEMENT

Plaintiffs’ Jurisdictional Statement is not complete and correct.

Plaintiffs Crystelle and Joshua Hernandez (together, the Parents) brought

this action, individually and as the next friend of their son Jaymz, against Andrew

Polovin and Defendants Lakesha Foster, Pamela Foster-Stith, and Michael Ruppe,

employees of the Illinois Department of Children and Family Services, seeking

damages for alleged violations of Plaintiffs’ rights under the First and Fourteenth

Amendments to the United States Constitution. Doc. 1 (SApp21-37). The district1

court had jurisdiction over Plaintiffs’ federal claims pursuant to 28 U.S.C. § 1331.

The district court dismissed Jaymz’s Fourth Amendment claim against

Polovin for lack of personal involvement (Doc. 36 at 17 (SApp94), and the parties

later stipulated to the dismissal of all claims against Polovin (Doc. 74 (SApp175-

77)).

On January 19, 2010, summary judgment was entered against Plaintiffs

(Docs. 102 (App1-19), 101), and a Rule 58 judgment was entered the same day (Doc.

103 (App20)). Plaintiffs filed a notice of appeal on February 12, 2010. Doc. 106.

This Court therefore has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

-2-

ISSUES PRESENTED

Whether Defendants were entitled to summary judgment, on the merits or on

qualified immunity grounds, on Plaintiffs’ claims that

1. each Defendant violated Jaymz’s Fourth Amendment rights, and the

Parents’ substantive due process rights, by taking him into temporary protective

custody.

2. each Defendant violated Plaintiffs’ substantive due process rights by

holding Jaymz in temporary protective custody for fewer than 48 hours.

3. Foster violated the Parents’ substantive due process rights by coercing

their agreement to the safety plan.

4. each Defendant violated Plaintiffs’ procedural due process rights by not

providing a hearing before or after (a) Jaymz was taken into temporary protective

custody and (b) presentation of the safety plan.

-3-

STATEMENT OF THE CASE

Plaintiffs Crystelle and Joshua Hernandez (together, the Parents) brought

their 15-month-old son Jaymz to a hospital with a fractured arm. Based on another

unexplained bruise, inconsistencies between his injury and the Parents’ statements

that he could not climb, and conflicting statements about who was in the home at

the relevant time, a doctor and a nurse suspected abuse and called the Department

of Children and Family Services (the Department). Defendant Pamela Foster-Stith

interviewed the nurse and the doctor and assigned the investigation to Defendant

Lakesha Foster, who visited Plaintiffs’ home and saw Jaymz climbing. Foster-Stith

and Defendant Michael Ruppe, her supervisor, decided Jaymz should be taken into

temporary protective custody and stay Crystelle’s grandparents. The next day, two

other doctors who saw Jaymz did not suspect abuse, and the State’s Attorney

thought there were insufficient grounds to petition for wardship. Foster-Stith and

Ruppe decided to allow temporary custody to lapse, but before the 48-hour custody

period ended, Foster presented a safety plan to the Parents, which explicitly stated

it was voluntary and allowed them supervised contact with Jaymz, and said they

could not see him unless they signed it. They did, and the plan lasted eight days.

Plaintiffs brought this action, alleging that Defendants violated (1) Jaymz’s

Fourth Amendment rights, and the Parents’ substantive due process rights, by

taking and keeping him in temporary protective custody; (2) the Parents’

substantive due process rights, by coercing their agreement to the safety plan; and

(3) Plaintiffs’ procedural due process rights, by not providing hearings for protective

custody or the safety plan. The court entered summary judgment for Defendants.

On summary judgment, all genuine disputes of material fact are resolved,2

and all reasonable inferences from the evidence in the record are drawn, in thenonmovant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). ThisStatement of Facts therefore resolves all genuine disputes of material fact, anddraws all reasonable inferences, in Plaintiffs’ favor. As explained in Part I of theArgument, Plaintiffs’ Statement of Facts should be stricken.

-4-

STATEMENT OF FACTS

Factual Background2

On September 8, 2008, around 11:30 a.m., Plaintiffs Crystelle and Joshua

Hernandez (together, the Parents) brought their 15-month-old son, Plaintiff Jaymz

Hernandez, to Sherman Hospital, saying he had injured his right arm by falling out

of his crib. SApp702. Nurse Lisa Luebke (the Nurse) wrote in her report that

Crystelle said Jaymz “is not walking or climbing, but [she] doesn’t know how he fell

out of [his] crib,” which was in another room, with its siderails up and locked.

SApp705-06 (emphasis in original). The Parents also told Dr. Natalie Kostinsky

(the Doctor) that Jaymz was not walking or climbing. Doc. 82-10 at 7.

According to the medical notes, the Parents’ “[s]tory d[id]n’t sound correct,”

and around 12:30 p.m., the Nurse called the Department and reported the “story

inconsisten[cy].” SApp706. The Nurse and the Doctor suspected “there [wa]s a

possible endangering situation that happened” to Jaymz, and after the Doctor

reported her suspicions to the Department, it advised her to release him to the

Parents. SApp.377-81. The Doctor felt that Jaymz was not in “immediate danger”

and her “understanding [was] that it was not necessary” for her to take him into

temporary protective custody at that time, but the matter “need[ed] to be

investigated,” which the Department would do. SApp380-81. The Nurse told the

-5-

Hotline that the Parents claimed Jaymz, who they said was not yet walking or

climbing, “somehow fell out of his crib,” but their “story d[id] not fit [his] fracture,”

and he had old bruises, of unknown origin. SApp566. The Nurse also said his arm

was fractured. Id.

The Doctor diagnosed Jaymz as having suffered a torus fracture of both

bones, which is an “incomplete” fracture, also called “buckling” or a “greenstick”

fracture, that occurs in children because their bones are not developed. SApp381-

83. This injury is common among children and could be sustained by a fall of a few

feet onto a tile floor covered by a carpet. SApp383-84.

According to the medical notes, after the Parents were notified of the report

to the Department, Crystelle said “Oh, [Jaymz] can walk” but again denied he could

climb. SApp706.

The Decision to Take Jaymz Into Temporary Protective Custody

Defendant Pamela Foster-Stith, a Department supervisor, interviewed the

Nurse and the Doctor by telephone before 1:00 p.m., taking contemporaneous notes.

Doc. 82-5 at 16; SApp620-21; SApp327. The Nurse told her “that the story the

family gave didn’t match the injury,” Crystelle said no one witnessed the incident,

and Joshua originally said he had been at work when the incident occurred but

later said he was at home. SApp620. The Doctor told Foster-Stith that Crystelle

said the crib contained nothing that Jaymz, who had been alone, could have stepped

up on and the Parents said they were both at home but also that only Crystelle was

there. SApp621. The Doctor said two things caused her to suspect abuse: (1) a

child Jaymz’s age and size being able to climb up a railing and fall out of a crib; and

-6-

(2) the Parents’ inconsistency about who was at home. SApp621.

Foster-Stith drafted an action plan and, around 1:00 p.m., assigned

Defendant Lakesha Foster, a Department investigator, to the case. SApp334, 325,

336-37, 339; Doc. 82-5 at 18, 27. The plan stated that “[the Parents’] story do[es]

not fit [Jaymz’s] injury” and that he had older bruises from an unknown source.

SApp625. It also instructed Foster that this was an “[a]ction needed” case, which

meant that Jaymz needed to be seen immediately, and that she should see Jaymz at

home. Id.; Doc. 87-2 at 7-9. Among other things, it asked her to “[r]ule out

Protective custody and/or Safety Plan,” given the nature of his injury, and to “assess

for safety and risk.” SApp625; Doc. 82-5 at 34. At about 1:15 p.m., Foster-Stith met

with Defendant Michael Ruppe, the assistant regional administrator, to discuss the

matter, including the medical professionals’ suspicions of abuse and the

investigation’s next steps, including the need to rule out protective custody if the

circumstances permitted. SApp.337-38, 365, 628; Doc. 87-2 at 18; Doc. 82-5 at 38-

40. Foster-Stith talked again with the Nurse and the Doctor, and was informed

that Jaymz had a “buckle” fracture. SApp629; Doc. 82-5 at 42.

That afternoon, Foster visited Plaintiffs’ home, where Crystelle’s father and

step-mother also live. SApp271, 276, 631-34, 419. While Foster was there,

Crystelle’s step-mother arrived, said she was going to contact an attorney, and

began making telephone calls. Doc. 87-3 at 6.

Foster observed Jaymz walking and climbing, and she went to the basement

to see the crib, which had a pillow and other items in it; a throw rug was on the tile

floor next to the crib. SApp277, 270-72, 284, 631-34. Crystelle said that after

-7-

returning from the hospital, she lowered the crib mattress to the lowest position.

SApp401. Foster also completed a home safety checklist and screenings for

substance abuse domestic violence. SApp291-93, 693-97, 683-88, 678-82.

Around 4:30 p.m., Foster called Foster-Stith, who told her Jaymz could climb,

described the crib conditions, and said the Parents “really didn’t know what

happened and [said] that the child must have . . . climbed up and f[allen] out [of] the

crib.” Doc. 82-5 at 44-46, 73; SApp284. They discussed implementing a safety plan,

given Jaymz’s age, his injury, and the medical professionals’ belief that the Parents’

story was inconsistent with that injury, but the Parents refused to have Jaymz stay

elsewhere or have someone else stay in the home. SApp340-42; Doc. 82-5 at 48, 72.

According to Crystelle, although Foster said there was no need to go further, Foster-

Stith replied that she needed to treat the matter just like every other protective

custody case. Doc. 87-4 at 8-9; SApp400.

About 15 minutes later, Foster-Stith met with Ruppe and advised him that

the Parents had no explanation for Jaymz’s fracture or eye bruising and that they

were unwilling to agree to a safety plan. SApp344-45. Given the conflicting

information about Jaymz’s mobility and about who was home when his injury

occurred, the medical professionals’ concern that the injury was not consistent with

the Parents’ explanation, and the Parents’ refusal to agree to a safety plan, Ruppe

believed Jaymz would be unsafe absent temporary protective custody, so he agreed

with Foster-Stith that Jaymz should be taken into temporary protective custody.

SApp367; Doc. 87-2 at 17, 19-21; Doc. 85-2 at 54-56. At that time, such decisions

were made by an investigator’s supervisor, upon consulting with a manager or

-8-

administrator. Doc. 87-2 at 15-16; Doc. 82-5 at 55. Foster did not make the

decision. SApp285.

At 4:50 p.m., Foster-Stith called Foster and instructed her to take Jaymz into

protective custody and to ascertain if other family members, who had not been

present when the incident occurred, could take him. SApp346. She explained that

custody should be taken and someone else had to be found to keep Jaymz safe

during the investigation into what happened, because he had been injured in the

home and no one could tell a story consistent with his injury. SApp283.

Foster told Crystelle that Jaymz had to be taken into protective custody for

48 hours, during which Crystelle could not see him. SApp403. Crystelle did not

want him to go into foster care and asked if he could go to her grandparents, whom

Foster called and who agreed to keep him. SApp403-04. Foster explained to

Crystelle that protective custody would provide safety for Jaymz until the

investigation’s next step, and that there would be a court hearing if the State’s

Attorney filed a petition but, if not, protective custody would lapse and they would

be contacted. SApp 285-87. Foster also provided a notification of the investigation

and a brochure, adding that the Parents could have no contact with Jaymz while he

was out of the home. SApp287-88. The Notification explained the steps in the

investigation process. SApp731-38.

Foster again called Foster-Stith, who agreed to the placement (SApp403), and

obtained clearance for the placement (SApp635, 717). After first having Jaymz

examined by a physician for any medical restrictions on placement (SApp718),

Foster took him to Crystelle’s grandparents’ home, accompanied by Crystelle’s step-

-9-

mother, who stayed there for “[a] couple of days.” SApp274-76; Doc. 87-4 at 14, 18.

The Temporary Protective Custody Period

On the morning of September 9, Foster spoke to the Nurse, who reiterated

that Crystelle said Jaymz could not walk or climb, which was inconsistent with her

story that he fell out of the crib. SApp636. The Nurse also told her Crystelle said

there was no blanket or pillow in the crib, “which again does not match” her story

about his having fallen from his crib. SApp636.

The same morning, Jaymz was taken to an orthopedist, who determined that

he needed a cast on his arm for three weeks; pursuant to Foster’s arrangements, the

Parents accompanied Jaymz there. SApp406, 413, 711. The orthopedist told Foster

that the injury “did not look like any abuse or neglect” and was “consistent with the

history of child falling from a crib . . . .” SApp640.

After receiving a fax from the Department, Cary Police Detective Susan Ellis

talked to Foster, who said that although the orthopedist believed the fracture was

consistent with falling from a crib, Foster-Stith had requested that Jaymz be placed

with his great-grandparents until a skeletal exam could be performed. SApp539-42.

The Parents and Crystelle’s grandmother took Jaymz to a hospital emergency

room for the full skeletal exam. SApp407, 413-14, 641, 729. The results of this test,

which is performed on children under two years of age and can be used to detect

bone fractures, and of the examining physician’s exam were unremarkable and not

indicative of abuse. SApp714-16, 438-40, 446. The examining physician testified

later, however, that one “red flag” for abuse is “injuries that don’t correlate well

with the story that was given.” SApp446. Foster told Cary Detective Ellis

-10-

(SApp541), who requested Jaymz’s medical records, that the orthopedist and the

doctor who performed the skeletal exam thought that the fracture was consistent

with a fall (SApp428-29).

When Crystelle arrived back home that afternoon, three Cary police officers

(including Detective Ellis) were there; when they asked her what happened, she

said Jaymz fell out of the crib. SApp412-14. Crystelle’s father told the police that

Crystelle had placed him in the crib. SApp541.

Also that afternoon, McHenry County Assistant State’s Attorney Julia

Almeida, who was unaware that Jaymz had been taken into temporary protective

custody, told Foster that “there [wa]s not enough to file a petition” for adjudication

of wardship at that time, though Almeida agreed the investigation should be

completed. SApp460, 643-44. According to Almeida, whether to file a petition is

“an evolving decision as far as information coming in” during an investigation,

which “isn’t always in a nice clean fashion,” so when she says there is not sufficient

evidence to file a petition for adjudication of wardship, “the door isn’t shut . . . . ”

SApp469, 471; Doc. 87-7 at 5-6. Almeida also believes that “you don’t file a petition

after a Hot Line call is made” (SApp470), because sometimes false reports are made,

though it is possible to sustain custody when hotline information is confirmed by

additional information, such as medical records (Doc. 87-7 at 10-11). Foster-Stith e-

mailed Ruppe, telling him Almeida would come to the office that afternoon but,

according to Foster, thought there was insufficient evidence to file a petition for

wardship at that time. SApp296; Doc. 85-2 at 67-68; Doc. 82-12 at 1. Foster-Stith

later met with Foster and told her the State’s Attorney would not file a petition.

-11-

Doc. 82-5 at 63-64.

Foster telephoned Crystelle to tell her that there would be no court hearing

and that protective custody would lapse. SApp416-17, 185, 298-99. Foster asked

about having a safety plan while the investigation continued, and Crystelle was

willing to meet to discuss it. SApp298-99. When Crystelle asked if Jaymz could

come home, Foster responded that more investigation was needed and that

everything had to stay as it was because the 48-hour temporary protective custody

period had not yet ended. SApp417-18.

Citing the “conflicting medical evidence” about the cause of Jaymz’s injury,

Foster requested a second opinion from the Multidisciplinary Pediatric Education

and Evaluation Consortium (MPEEC) (SApp727), which is a Department-funded

consortium of pediatricians who specialize in child abuse and (among other things)

resolve conflicting medical opinions about abuse (SApp496). It was “standard

[Department] procedure” to send a “broken bone case” to a specialist. SApp304.

The Safety Plan

Early in the morning on September 10, Foster-Stith and Ruppe agreed to

allow temporary protective custody to lapse, given the State’s Attorney’s concerns

about filing a petition for wardship, the results of the skeletal survey, and the

willingness of family members to assist in caring for Jaymz. SApp351, 646.

Because additional information was needed to rule out abuse as the cause of

Jaymz’s injury, however, they wanted to have a safety plan, under which he would

remain with his great-grandparents and the Parents would have supervised contact

with him. Doc. 82-5 at 79-80, 82-83, 85.

-12-

Later that same morning, Foster went to Plaintiffs’ home and interviewed

Joshua, who said he had put Jaymz in the crib. SApp648.

Foster explained the terms of the safety plan to the Parents, noting that it

was voluntary. Doc. 87-3 at 10-13. Under the plan, Jaymz would remain with his

great-grandparents, where the Parents could have supervised contact with him, and

the plan would be renewed every five business days until it would terminate, based

on negative results from medical exams, including the skeletal exam and the

specialist’s review. Id.; SApp673-74. Foster also said that Jaymz could not come

home and that his great-grandmother had custody over him, but if they signed the

safety plan, they could stay with him; she also said they could not see him if they

did not sign it and that they had no parental rights. SApp420; Doc. 87-4 at 29; Doc.

87-3 at 8-9. Foster explained that not following the agreed safety plan could result

in protective custody for Jaymz. Doc. 87-3 at 13.

Asking no questions, the Parents signed the safety plan, which stated that

“we understand [the safety plan’s] contents and that it is voluntary and agree to

abide by the terms and conditions of the plan.” SApp674; Doc. 87-3 at 13. Crystelle

“didn’t really care” about going over the safety plan’s terms with Foster; she signed

it so that she could see Jaymz. Doc. 87-4 at 26, 29. Joshua never read the safety

plan; he signed it because his wife had already done so, and he “just went with it.”

SApp507-08. He believed that they did not have legal custody of Jaymz under the

safety plan because they could not be alone with him. SApp509.

Later that morning, Foster visited Jaymz, whose great-grandmother signed

the safety plan. SApp649, 674.

-13-

The Safety Plan Period

While the safety plan was in effect, Crystelle stayed at her grandmother’s

home, in Jaymz’s room, and Joshua stayed there except on the three days he

worked every week. Doc. 87-4 at 18, 31; Doc. 87-5 at 8.

On September 11, Foster spoke to the MPEEC doctor, who had seen only the

medical notes and who stated that Jaymz’s injury was “a rare fracture in abuse [but

he was] not saying it doesn’t happen in abuse”; he requested copies of the X-rays

and also suggested a CT scan at Cook County Hospital SApp653. Foster made

several attempts to obtain the orthopedist’s written report and the skeletal films.

SApp651, 652, 654, 659.

On September 16, Crystelle (accompanied by her grandmother and Jaymz)

met with an attorney and told him about Jaymz’s injury and the safety plan, saying

the Department “ma[de her] go through a bunch of hoops to try and get him back

. . . .” SApp528, 390-91. The attorney, who usually advises people in this situation

to “cooperate, cooperate, cooperate [because i]t usually speeds things along. . . .

Your job is to do what you are asked,” “likely” gave her this advice. SApp536-37.

He saw her for five or ten minutes and said he did not think he could do anything

but would make a call and try to move things along. SApp530, 391. He left a

message at the number she gave him, “rais[ing] hell,” asking why Jaymz had not

been released to Crystelle, and saying “call me as soon as you can or else.”

SApp528-30, 536.

On September 17, Foster and Foster-Stith discussed the case, noting that the

safety plan needed to be updated; Foster also said the Parents were “somewhat

-14-

resistant” and had hired an attorney. SApp308-09, 657; Doc. 82-5 at 89-90. Foster

left a message for the attorney, and when they spoke later that day, she told him

Jaymz’s X-rays had been sent to a forensic physician to determine if there was

evidence of prior breaks and a history of abuse. SApp533-34. The attorney

informed Crystelle that things were progressing. SApp535.

That evening, Foster visited Jaymz at Crystelle’s grandparents’ home.

SApp310, 658. The grandmother signed a second safety plan, with similar terms,

and the Parents signed it the next day. SApp675-76; Doc. 85-2 at 105.

Also on September 18, Foster-Stith, Foster, and Joe Becerra, a manager,

discussed whether to terminate the safety plan. SApp353-56, 321, 661; Doc. 85-2 at

96-99. Based on the three physicians’ view that Jaymz’s injury was consistent with

an accident, and noting the Parents’ attorney’s view that a safety plan was no

longer needed, they decided the safety plan could be terminated. SApp661, 312;

Doc. 85-2 at 100-01. That same day, Joshua signed a statement, agreeing to end it.

SApp677.

About a month after talking to the first attorney, Crystelle met with another

attorney, from the office of one of Plaintiffs’ current co-counsel. SApp392.

The Subsequent Investigation

Meanwhile, the investigation continued until all the medical records were

received. Doc. 85-2 at 104. On October 20, Foster conducted a final safety

assessment. SApp666-67. On November 3, she recommended that the abuse report

be “unfounded,” which meant that no credible evidence of abuse existed (325 ILCS

5/7.12, 5/3 (2008)), and Foster-Stith agreed; Becerra agreed on November 7.

-15-

SApp669, 671.

The District Court Proceedings

In April 2009, Plaintiffs filed a three-count, unsworn complaint against

Foster, Foster-Stith, Ruppe, and a fourth Department employee (Andrew Polovin),

alleging violations of their First and Fourteenth Amendment rights and seeking

compensatory and punitive damages. Doc. 1 (SApp21-35). They claimed that (1)

taking Jaymz into temporary protective custody violated his Fourth Amendment

rights and the Parents’ substantive due process rights; (2) holding Jaymz in

temporary protective custody for fewer than two days violated Plaintiffs’

substantive due process rights; (3) Foster violated the Parents’ substantive due

process rights by coercing their agreement to the safety plan; and (4) Defendants

violated Plaintiffs’ procedural due process rights by not providing a hearing for

taking Jaymz into temporary protective custody or for offering the safety plan. Id.

Defendants moved to dismiss the complaint for failure to state a claim or,

alternatively, on qualified immunity grounds. Docs. 22, 23 (SApp38-56). Plaintiffs

responded (Doc.30 (SApp57-71)), and Defendants replied (Doc. 34 (SApp72-77)).

The district court granted the motion in part, dismissing Jaymz’s Fourth

Amendment claim as to Polovin for lack of personal involvement, and it denied the

rest of the motion without prejudice, noting the complaint’s “insufficient factual

detail” on the merits and that ”there are simply not enough facts to determine

whether qualified immunity applies.” Doc. 36 (SApp78-95). The parties later

stipulated to the dismissal of all claims against Polovin. Doc. 74 (SApp175-77).

Defendants answer the complaint. Docs. 43, 45, 47 (SApp96-174).

-16-

Defendants moved for summary judgment. Docs. 75, 77 (SApp178-215), 82,

87. Plaintiffs responded, including a Statement of Additional Facts (Docs. 92, 93,

93-1, 93-2, 93-3 (SApp232-542)), and Defendants replied (Docs. 97, 99 (SApp543-

747)).

The district court granted Defendants’ motion and entered judgment against

Plaintiffs. Docs. 102 (App1-19), 101. The court rejected Jaymz’s Fourth

Amendment claim, on the ground that his seizure was reasonable based on the

information available to Defendants at the time, i.e., both the Doctor and the Nurse

found the Parents’ story of a fall from the crib inconsistent with their statements

that Jaymz could not walk or climb, the bruise over his eye was unexplained, and

there were inconsistencies in the Parents’ statements about who was home at the

relevant time. Doc. 102 at 10-11 (App10-11). Alternatively, Defendants were

entitled to qualified immunity because Plaintiffs failed to meet their burden of

showing that reasonable child welfare workers would agree that taking him into

protective custody was unconstitutional under these circumstances. Id. 11-12

(App11-12).

The district court also rejected Plaintiffs’ substantive due process claims. Id.

at 13-17 (App13-17). It found that (1) the Fourth Amendment, not the guarantee of

substantive due process, governed Jaymz’s initial removal; and (2) Plaintiffs failed

to meet their burden of showing that the Parents’ clearly established rights were

violated by placing him with his great-grandparents for fewer than 48 hours under

the circumstances known to Defendants at the time. Id. As for the Parents’

coercion claim, even if Foster told the Parents they could not see Jaymz if they did

-17-

not sign it, Plaintiffs failed to show that Foster’s statements could reasonably be

construed as coercion in the context of the safety plan’s express language about its

voluntary nature and the consequences of noncompliance, and, in any event, they

failed to show that Defendants were not entitled to qualified immunity. Id.

Similarly, the district court rejected Plaintiffs’ procedural due process claims.

Id. at 17-20 (App17-20). It found that (1) Plaintiffs failed to show that, under the

circumstances, a court order was required to take Jaymz into temporary protective

custody; (2) the safety plan itself informed the Parents of the available procedures if

they chose not to participate; (3) the Parents failed to show that Defendants had a

constitutional obligation to provide them with more options or information,

especially given the limited extent of the safety plan’s intrusion into their familial

rights; and (4) the Parents requested no hearing. Id.

A Rule 58 judgment was entered the same day. Doc. 103 (App20).

Plaintiffs filed a timely notice of appeal. Doc. 106.

-18-

SUMMARY OF ARGUMENT

Plaintiffs’ Statement of Facts and related sections in their Argument should

be stricken for their egregious non-compliance with Circuit Rule 28.

On the merits, the judgment should be affirmed in its entirety. Taking

Jaymz into temporary protective custody was eminently “reasonable” for Fourth

and Fourteenth Amendment purposes, given the facts Defendants knew: his age

and grave injury, two medical professionals’ suspicions of abuse, his unexplained

other bruising, the Parents’ inconsistent statements (and perhaps lies), and their

rejection of any safety plan. Plaintiffs have no separate substantive due process

claim for the under-48-hour custody period, but even if they did, neither the two

new, conflicting medical opinions nor the State’s Attorney’s decision not to file a

petition for wardship rendered continued custody “unreasonable.” The Parents’

substantive due process “coercion” claim also fails, for reasonable people would have

believed they were free to reject the safety plan under the circumstances, especially

its explicit wording about its voluntary nature and the lapse of protective custody

later that day. As for Plaintiffs’ procedural due process claims, Illinois law provided

all the process that was due, both for presenting the safety plan (even if agreement

had been coerced) and for taking Jaymz into temporary protective custody.

Alternatively, as to all these claims, Plaintiffs failed to demonstrate any

“clearly established” violation of the Fourth or Fourteenth Amendment. As this

Court has cautioned, the balance between a State’s compelling interest in protecting

children from abuse and family members’ liberty interest in familial relationships

usually “is nebulous at best,” so the law “rarely — if ever — [is] clearly established.”

-19-

ARGUMENT

I. Plaintiffs’ Statement of Facts and Related Argument Should BeStricken for Non-Compliance With Circuit Rule 28(c).

Circuit Rule 28(c) mandates that a Statement of Facts be a “fair summary

without argument or comment. No fact shall be stated in this part of the brief

unless it is supported by a reference to the page or pages of the record or the

appendix where that fact appears.” Plaintiffs’ Statement of Facts violates this rule.

Plaintiffs’ Statement of Facts is rife with argument and comment. See, e.g.,

AT Brf. at 6 (the Department “never secured any information in support of a claim

of abuse above or beyond” the hotline information), 8 “[t]he principal reported

reason for a concern of possible abuse . . . dissipated as soon as Foster saw Jaymz

for herself”), 13 (“quid pro quo”), 14 (“minimal further investigative steps”).

Moreover, Plaintiffs rarely refer to “where that fact appears” in the record

evidence. Instead, they cite the complaint (Doc. 1 (SApp21-37)) and Defendants’

answers (SApp78-174)) – all of which are unsworn and thus (like hearsay) cannot be

considered on summary judgment (Collins v. Seeman, 462 F.3d 757, 760 n.1 (7th

Cir. 2006)) – as well as their response to Defendants’ Rule 56.1 statement (Doc. 93

at 1-21 (SApp232-253), Plaintiffs’ own Rule 56.1 statement (id. at 22-28 (SApp253-

59)), Defendants’ response thereto (Doc. 99 at 1-9 (SApp555-63)), and even the

district court’s decision (Doc. 102 (App1-19)), rather than evidence. Sometimes

Plaintiffs cite an entire page of those statements (see, e.g., AT Brf. at 13 (citing

SApp258)), and still other times they cite nothing at all (see, e.g., id. at 6, 8, 10, 13).

Lastly, Plaintiffs’ Statement of Facts omits significant facts unfavorable to

-20-

them, so it is not a “fair summary.” For example, their quote from the safety plan

(AT Brf. at 13) omits its explicit language that agreement was “voluntary”

(SApp674). Among other omissions, they do not mention that the Parents had no

questions about the safety plan (Doc. 87-3 at 13), that Crystelle “didn’t really care”

about Foster’s explanation of its terms (Doc. 87-4 at 26), which included its

voluntariness, and that Joshua signed it without reading it (SApp507-08).

Accordingly, Plaintiffs’ Statement of Facts and related argument should be

stricken. See Casna v. City of Loves Park, 574 F.3d 420, 424 (7th Cir. 2009)

(striking “fact” section and all portions of argument that relied on unsupported

facts, and noting that to cite Rule 56.1 statements rather than evidence violates

Circuit Rule 28).

II. Summary Judgment Against Plaintiffs Should Be Affirmed in ItsEntirety.

A. Defendants Are Entitled to Summary Judgment Whenever theAdmissible Evidence Creates No Genuine, Material FactualDispute and They Are Entitled to Judgment as a Matter of Law.

Under the version of Rule 56 effective before December 1, 2010, summary

judgment was warranted when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Factual disputes are

“genuine” only if the evidence is sufficient for a reasonable jury to return a verdict

for the nonmovant. Gunville v. Walker, 583 F.3d 979, 987 (7th Cir. 2009).

Similarly, factual disputes are “material” only if they “‘might affect the outcome of

-21-

the suit under the governing law.’” Hoffman-Dombrowski v. Arlington Int’l

Racecourse, Inc., 254 F.3d 644, 650 (7th Cir. 2001) (quoting Liberty Lobby, 477 U.S.

at 248). And “the non-moving party is entitled to have only reasonable inferences

drawn in its favor.” SMS Demag Aktiengesellschaft v. Material Sciences Corp., 565

F.3d 365, 369 (7th Cir. 2009) (emphasis in original).

Summary judgment orders are reviewed de novo. Id. at 368. This Court may

affirm the judgment on any ground supported by the record, regardless of the

district court’s rationale. Cygan v. Wis. Dep’t of Corr., 388 F.3d 1092, 1098 (7th Cir.

2004).

B. Plaintiffs’ Burden On Qualified Immunity Is A Heavy One.

Even if Plaintiffs could show that genuine disputes about material facts bar

summary judgment on the merits (and they cannot), an official is entitled to

qualified immunity so long as there could be a reasonable, albeit mistaken, belief

about the legality of his conduct. Saucier v. Katz, 533 U.S. 194, 205-06 (2001).

Qualified immunity “applies regardless of whether the government official’s error is

a mistake of law, a mistake of fact, or a mistake based on mixed questions of law

and fact.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (internal quotation

marks omitted). The right asserted must have been “clearly established,” which

turns on the “objective legal reasonableness of the action” under contemporaneous

legal rules. Wilson v. Layne, 526 U.S. 603, 614 (1999) (internal quotation marks

omitted). A right is “clearly established” if the relevant right was sufficiently clear

in light of pre-existing law to have given “fair warning” that the conduct was

unconstitutional. Hope v. Pelzer, 536 U.S. 730, 739-40 (2002). To give “fair

-22-

warning,” the right must have been defined at the appropriate level of specificity

given the context, not as a broad general proposition. Brousseau v. Haugen, 543

U.S. 194, 198 (2004).

Thus, “preexisting law must dictate, that is, truly compel, the conclusion for

every like-situated, reasonable government agent that what [he] is doing violates

federal law in the circumstances.” Khuans v. Sch. Dist. 110, 123 F.3d 1010, 1019-

20 (7th Cir. 1997) (emphasis in original) (internal quotation marks and citations

omitted); Purtell v. Mason, 527 F.3d 615, 621 (7th Cir. 2008) (holding that if officers

of reasonable competence could disagree, immunity should be recognized). As the

Supreme Court has noted, “if officers of reasonable competence could disagree on

th[e issue of constitutionality], immunity should be recognized.” Malley v. Briggs,

475 U.S. 335, 341 (1986). Thus, when “fine line-drawing” is required due to “quirky

facts,” officials are entitled to qualified immunity. Chaklos v. Stevens, 560 F.3d

705, 708, 711 (7th Cir. 2009).

Application of these two sets of principles to the record here demonstrates

that judgment against Plaintiffs should be affirmed in its entirety, either on the

merits or on qualified immunity grounds.

C. Defendants Were Entitled to Judgment on Jaymz’s FourthAmendment Claim.

1. Plaintiffs Failed to Show That a Reasonable Jury CouldFind That Any Defendant Violated Jaymz’s FourthAmendment Rights.

The Fourth Amendment prohibits only “unreasonable” seizures (U.S. Const.

amend. IV), a standard that is not capable of precise definition or mechanical

-23-

application and thus depends on the facts and circumstances of each case (Graham

v. Connor, 490 U.S. 386, 396 (1989)). For example, taking a child into protective

custody based on allegations of abuse is “reasonable” if (among other grounds)

“probable cause” exists to believe the child would be subject to abuse absent

removal. Brokaw v. Mercer County, 235 F.3d 1000, 1010 (7th Cir. 2000). Brokaw

held that taking two children into protective custody was “unreasonable” due to the

“unique” circumstances there: with no investigation, they were grabbed from their

home at night, by two men who refused to identify themselves, “in order to destroy

the family, based simply on the family’s religious beliefs.” Id. at 1017.

Recently, this Court explained that “probable cause just means a good reason

to act . . .; it does not mean certainty, or even more likely than not, that a crime has

been committed or a medical emergency is ongoing.” Hanson v. Dane County, Wis.,

608 F.3d 335, 338 (7th Cir. 2010) (holding that unanswered callback to interrupted

911 call provided probable cause to enter home, despite other benign possibilities);

see also Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2639 (2009)

(stating that “[p]robable cause exists where the facts and circumstances within [an

officer’s] knowledge and of which [he] had reasonably trustworthy information [are]

sufficient in themselves to warrant a man of reasonable caution in the belief that an

offense has been or is being committed”) (internal quotation marks omitted,

alterations in original). Moreover, the Fourth Amendment contain no “least-

restrictive-alternative rule,” and a suspect’s obviously false statements, especially

coupled with lack of cooperation, support (rather than negate) the need for further

investigation. Hanson, 608 F.3d at 338.

-24-

Here, Foster-Stith and Ruppe made the decision to take Jaymz into

temporary protective custody, and they alone had the authority to do so. Doc. 87-2

at 15-16; Doc. 82-5 at 55. Plaintiffs offer no authority for the notion that Foster,

who lacked that authority (SApp285) may be held liable for merely executing that

decision.

Moreover, although Plaintiffs insist repeatedly that Defendants “never had

more than a Hotline call,” which alone was insufficient for taking temporary

protective custody of Jaymz (see, e.g., AT Brf. at 26, 28), that call’s information had

been augmented by facts learned from Foster’s visit to Plaintiffs’ home and Foster-

Stith’s multiple telephone interviews with the Nurse and the Doctor. This

information, from identified and reliable sources, included the following:

(1) Jaymz’s serious injury;

(2) the Nurse and the Doctor suspected abuse because (a) the Parents did notknow how the injury occurred, (b) their statements — Jaymz could not climb andthere was nothing in his crib to climb on — were inconsistent with his injury, and(c) they gave conflicting stories about who was at home at the relevant time;

(3) Jaymz had additional bruising the Parents could not explain;

(4) during her home visit, Foster discovered that the Parents had lied aboutJaymz’s ability to climb and the contents of his crib, whose mattress Crystelle had lowered; and

(5) the Parents refused to consider a safety plan.

This was “some definite and articulable evidence giving rise to a reasonable

suspicion that [he] ha[d] been abused” (Brokaw, 235 F.3d at 1019), so it provided

“good reason” to believe that Jaymz had been abused and thus to take him into

temporary protective custody to prevent further abuse. To take Jaymz into

-25-

temporary protective custody was “reasonable” under these circumstances.

Plaintiffs counter that three other facts the district court did not mention

that negated probable cause. They find significant that the Doctor herself did not

take temporary custody of Jaymz (AT Brf. at 25), yet they ignore that the

Department, which the Doctor understood would investigate her suspicions, advised

her to send him home (SApp377-81). Plaintiffs also stress that Foster-Stith learned

Jaymz’s injury was a “buckle” fracture (AT Brf. at 25; see SApp629), yet they point

to no evidence that she appreciated the meaning of this information, and the

evidence is to the contrary (Doc. 82-5 at 42). Plaintiffs’ third fact — Jaymz could

walk and climb, which Foster told Foster-Stith (AT Brf. at 25) — does not “refute

the doctor’s and nurse’s statements that Jaymz could neither walk nor talk” (id.).

Rather, it cuts against Plaintiffs, for these statement were made by the Parents,

and the Doctor and the Nurse merely relayed them. SApp705-06, 636. Moreover,

that Jaymz could walk and climb indicated that the Parents’ contrary statements to

the Doctor and the Nurse, which they do not deny making, were lies. This created

yet more cause for concern about abuse, not ”no cause,” as Plaintiffs argue (AT Brf.

at 26).

Significantly, moreover, Plaintiffs identify no evidence that Ruppe ever

learned Jaymz could climb. Likewise, their complaint that Foster-Stith

misrepresented a fact to Ruppe by telling him that the Parents had “no

explanation” for Jaymz’s injury (AT Brf. at 29 n.4; see SApp344-45) helps Ruppe. It

is uncontested that Crystelle told the Nurse she did not know how the injury

occurred (SApp705-06), which is little different from having “no explanation” for it.

-26-

Ruppe cannot be held liable for making his decision without knowing these facts.

Plaintiffs raise several other points, none of which has merit, for there is no

dispute about what facts were known to each Defendant at the relevant time. For

example, Plaintiffs point out that Foster and Foster-Stith subjectively believed

there was insufficient evidence to take protective custody of Jaymz before Foster’s

home visit and that Foster told Foster-Stith “everything looks fine.” AT Brf. at 25-

26. But Jaymz was taken into protective custody after, not before, Foster’s visit,

which revealed additional information (the Parents’ apparent lies and their refusal

to enter a safety plan). And in any event, Plaintiffs’ own authority held that

“probable cause” is an objective standard of reasonableness. Scott v. United States,

436 U.S. 128, 137-38 (1978). Thus, any subjective beliefs were irrelevant.

Plaintiffs’ authorities on this point are unhelpful. Scott merely observed that

motives may bear on credibility concerning the information available to an officer

(id. at 139 n.13), whereas Plaintiffs identify no dispute about which facts were

available to each Defendant when Jaymz was taken into temporary protective

custody. Similarly, United States v. Messino, 871 F.Supp. 1035, 1039 (N.D. Ill.

1995), a “plain view” case, observed that this Court “has noted with less than

enthusiasm the possibility of such a subjective inquiry,” reserving it for “close cases”

in which “‘[t]he officer’s subjective reasons, or ‘motive’, for stopping the defendant

are relevant, if at all, only in establishing what facts the officer actually had

knowledge of at the time of the arrest’” (quoting United States v. Hope, 906 F.2d

254, 258 (7th Cir. 1990) (emphasis in Messino)). Indeed, this Court recently held

that the subjective reason for an arrest does not matter, so long as probable cause

-27-

exists, even for an entirely unrelated reason. Jackson v. Parker, ___ F.3d ___, ___,

2010 WL 4909459, *5 (7th Cir. 2010); see also Devenpeck v. Alford, 543 U.S. 146,

153-56 (2004).

Lastly, Plaintiffs rely on BeVier v. Hucal, 806 F.2d 123 (7th Cir. 1986), for

the proposition that a telephone call to the Nurse and Doctor, telling them that

Jaymz could climb, “might have cleared up” the inconsistency. AT Brf. at 27-28. As

explained above, however, Jaymz’s ability to climb created additional concerns, for

it indicated the Parents had lied. And BeVier is easily distinguished anyway: the

arrest of parents whose sunburnt, filthy, and listless children were sitting in the

sun on a hot day without having questioned anyone but the babysitter, was

“unreasonable” because “[r]easonable avenues of investigation must be pursued

especially when, as here, it is unclear whether a crime [of intent] had even taken

place.” 806 F.2d at 128. BeVier does not stand for the proposition that officials are

obliged to make every effort to ferret out exculpatory evidence before taking a child

into temporary protective custody. In fact, according to one of Plaintiffs’ own

authorities, “once police officers have discovered sufficient facts to establish

probable cause, they have no constitutional obligation to conduct any further

investigation in the hopes of uncovering potentially exculpatory evidence.” Garcia

v. City of Chicago, 24 F.3d 966, 970 (7th Cir. 1994) (internal quotation marks

omitted). Even if an investigation could be more thorough, “there is a gap, often a

wide one, between the wise and the [constitutionally] compulsory.” Gramenos v.

Jewel Companies, Inc., 797 F.2d 432, 441-42 (7th Cir. 1986) (observing that

“‘probable cause’ is not always the same thing as ‘reasonable’ conduct by the

-28-

police”).

In sum, the district court correctly concluded that taking Jaymz into

temporary protective custody was “reasonable” under the facts any Defendant knew

late in the afternoon on September 8.

2. Alternatively, Plaintiffs Failed to Show That AnyDefendant Is Not Entitled to Qualified Immunity.

Even if taking Jaymz into protective custody was not “reasonable,”

Defendants were entitled to qualified immunity, as the district court concluded.

App11-12.

Plaintiffs rely on just three cases, stressing that the district court found them

sufficient to deny Defendants’ motion to dismiss. AT Brf. at 29-33 (citing SApp89-

90). But as the district court explained, “at the pleading stage, there [we]re simply

not enough facts to determine whether qualified immunity applie[d].” SApp90.

Discovery revealed additional facts that prevented these cases from providing “fair

warning,” with sufficient particularity, that any Defendant’s conduct was

“unreasonable.” Indeed, as Brokaw held, “because the balance between a child’s

liberty interest in familial relations and a state’s interest in protecting the child is

nebulous at best, social workers and other state actors who cause a child’s removal

are entitled to qualified immunity because the alleged constitutional violation will

rarely — if ever — be clearly established.” 235 F.3d at 1023.

Only one of Plaintiffs’ three authorities concerned a removal (Brokaw), and it

“is limited to the unique circumstances of th[at] case”: the plaintiff alleged he had

been removed from his home at night by unidentified officials simply to destroy his

-29-

family due to their religious beliefs. 235 F.3d at 1017. And Doe v. Heck, 327 F.3d

492, 509-515 (7th Cir. 2003), merely held that interviewing a private grammar

school student about allegations of spanking by school staff was a “seizure” that was

“unreasonable” because it was conducted over two months after the initial report,

the principal objected and parents were not notified, and it was based on an

assumption parents were aware of the school’s disciplinary policy. Similarly,

Michael C. v. Gresbach, 526 F.3d 1008, 1014-16 (7th Cir. 2008), held only that

visual observation of private school students, under their clothing, while

investigating allegations of abuse was a “search” and that it was “unreasonable” to

construe the principal’s consent to interview the children as consent to examine

their bodies. None of these three cases gave any warning that taking Jaymz into

temporary protective custody and placing him with Crystelle’s grandparents, where

her step-mother was allowed to stay with him, is “unreasonable” when (1) two

medical professionals who examined Jaymz suspected abuse because the Parents’

statements did not correspond to the injury; (2) the Parents give conflicting stories

about who was in the home; (3) they could not explain other, older bruising; (4) they

appeared to have lied to the medical professionals about Jaymz’s ability to climb

and the presence of objects in the crib; and (5) they rejected any safety plan.

Plainly, Plaintiffs failed to meet their burden of demonstrating that any

Defendant, especially Ruppe and Foster, violated a clearly established Fourth

Amendment right.

-30-

D. Defendants Were Entitled to Judgment on the Substantive DueProcess Claims.

The Parents argue that Defendants were not entitled to summary judgment

on their substantive due process claims that (1) Defendants took Jaymz into

protective custody without probable cause; (2) Defendants kept Jaymz in custody

after any probable cause “dissipated”; and (3) Foster coerced the Parents’ agreement

to the safety plan. AT Brf. at 33-44. Alternatively, they contend, no Defendant is

entitled to qualified immunity on these claims. Id. Plaintiffs are wrong.

1. Only Conduct that “Shocks the Conscience” Violates theGuarantee of Substantive Due Process.

The Fourteenth Amendment (U.S. Const. amend. XIV), which forbids

deprivations of protected interests without due process, has a substantive

component that protects against government interference with fundamental rights,

regardless of procedural fairness (County of Sacramento v. Lewis, 523 U.S. 833,

845-46 (1998)). It thus protects individuals from “the exercise of power without any

reasonable justification in the service of a legitimate governmental objective.” Id. at

845-46 (emphasis added, internal citations, quotation marks, and parentheticals

omitted). As Lewis stressed, “only the most egregious official conduct” is actionable

when the government performs in its executive (as opposed to legislative) capacity,

that is, “only when [the conduct] can properly be characterized as arbitrary, or

conscience shocking, in the constitutional sense,” though what is “conscience

shocking” varies with the context. Id. at 847; see, e.g., Palka v. Shelton, 623 F.3d

447, 453 (7th Cir. 2010) (upholding dismissal of substantive due process claim

concerning investigation that, although it subverted department rules, was not

-31-

“conscience-shocking”). Thus, such claims require “an exact analysis of [the]

circumstances before any abuse of power is condemned as conscience shocking.”

Lewis, 523 U.S. at 850.

For substantive due process claims, mere negligence is not actionable, for

liability may be found “only at the ends of the tort law’s spectrum of culpability.”

Id. at 848-52 & n.12. And “a much higher standard of fault than deliberate

indifference has to be show” when balancing competing obligations or evaluating a

decision made in haste, under pressure, and without the luxury of a second chance.

Id. at 852-53 (internal quotation marks omitted). Thus, taking protective custody of

a child is actionable only if grossly negligent or arbitrary because, although officials

need not make split-second decisions, they do not have “the luxury of proceeding in

a deliberate fashion.” Miller v. City of Philadelphia, 174 F.3d 368, 375-76 (3d Cir.

1999); see also Darryl H. v. Coler, 801 F.2d 893, 902 (7th Cir. 1986) (observing that

“time can be an important factor, especially if the child is still in a situation where

repetition of the alleged abuse is a possibility”).

As shown below, Plaintiffs failed to show that any Defendant’s conduct was

“conscience-shocking” under the circumstances or that any substantive due process

right Plaintiffs assert was “clearly established.”

2. Plaintiffs Presented No Evidence From Which aReasonable Jury Could Find That Any Defendant“Shocked the Conscience” by Taking Jaymz IntoTemporary Protective Custody, and Plaintiffs Failed toDefeat Qualified Immunity.

The Fourteenth Amendment’s substantive component protects the Parents’

rights to the companionship of their child and to make decisions about his custody,

All three Plaintiffs raised this claim (SApp34), but the district court3

properly found that Jaymz’s claim about being taken into protective custody fellunder the Fourth Amendment, not the Fourteenth (App14). But as Plaintiffs’ briefindicates, only Jaymz can assert that Fourth Amendment claim, so the districtcourt should have entertained the Parents’ mirror substantive due process claim. AT Brf. 33-34.

Although Plaintiffs apply the Fourth Amendment’s objective4

reasonableness standard, Lewis held that mere negligence is not actionable forsubstantive due process claims (523 U.S. at 848-52 & n.12) and Miller indicatesthat only “gross negligence or arbitrariness” is actionable for removals (174 F.3d at375-76). Because Plaintiffs cannot meet the lesser Fourth Amendment’s standard,they surely cannot not meet the Fourteenth Amendment’s greater one.

-32-

care, and control. Troxel v. Granville, 530 U.S. 57, 65-66 (2000). These rights,3

however, are subject to the State’s “wide range of power for limiting parental

freedom and authority in things affecting the child’s welfare . . . .” Prince v.

Massachusetts, 321 U.S. 158, 167 (1944). This includes the State’s interest in

protecting children from abuse, especially from their parents, an interest that is

“unquestionably compelling” (Heck, 327 F.3d at 525) and “extraordinarily weighty”

(Darryl H., 801 F.2d at 902). This state interest allows removing children from the

home when there is “some definite and articulable evidence giving rise to a

reasonable suspicion that a child has been abused . . . .” Brokaw, 235 F.3d at 1019.

Plaintiffs seem to concede that if Defendants were entitled to summary

judgment on Jaymz’s Fourth Amendment claim, Defendants were entitled to

summary judgment on the Parent’s related claim, because the Fourth Amendment’s

“reasonableness” standard applies. AT Brf. at 34. Accordingly, for the same4

reasons that Defendants are entitled to judgment on Jaymz’s Fourth Amendment

claim (on the merits or on qualified immunity, as explained above), they also are

-33-

entitled to judgment on the Parents’ mirror claim (on the merits or on qualified

immunity grounds): the facts each Defendant knew at the time gave them probable

cause to believe that Jaymz had been abused by the Parents or, alternatively,

Plaintiffs show no violation of a “clearly established” right. Indeed, as in Lossman

v. Pekarske, 707 F.2d 288, 292 (7th Cir. 1983), it would have been imprudent and

irresponsible not to have taken Jaymz into temporary protective custody under the

circumstances here.

3. Plaintiffs Presented No Evidence From Which a Reasonable Jury Could Find That Any Defendant “Shocked the Conscience” by Keeping Jaymz in Temporary Protective Custody for Fewer Than 48 Hours Under the Circumstances Here, and Plaintiffs Failed to Defeat Qualified Immunity.

Plaintiffs contend that they have a substantive due process claim concerning

the duration of Jaymz’s temporary protective custody, on which factual disputes

barred summary judgment for Defendants. AT Brf. at 34-38. Not so.

Plaintiffs first contend that the district court should not have granted

Defendants summary judgment on this claim because they did not address it in

their summary judgment motion. AT Brf. at 34-35, 36. But Defendants’ motion

sought judgment for the entire period of protective custody, not just for taking

Jaymz into custody. See, e.g., SApp182, 192. And although Defendants analyzed

this claim under the Fourth Amendment (id.), Plaintiffs apply the same

reasonableness standard (AT Brf. at 34), so it is not surprising that the district

court overlooked any forfeiture.

On the merits, Plaintiffs fare no better. In Gerstein v. Pugh, 420 U.S. 103

-34-

(1975), the Court held that a warrantless arrest (but with probable cause) and

consequent detention do not violate the Fourth Amendment so long as a “prompt”

judicial hearing is held to establish probable cause for further detention, and it

later held that a hearing conducted no more than 48 hours after arrest generally

satisfies Gerstein, though officials may prove that “practical realities” justify a later

hearing. County of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991). Gerstein

and McLaughlin, which Plaintiffs ignore, establish that a warrantless arrest and

consequent detention generally form a single “seizure,” not two separate ones.

Indeed, two of Plaintiffs’ own authorities agree: (1) Garcia explicitly states that

“the seizure of a person ends after the Gerstein hearing” (24 F.3d at 971 n.6),

indicating that the seizure includes the entire pre-hearing detention; and (2)

Brokaw held that the child plaintiff could bring a substantive due process challenge

to a four-month foster care placement, in addition to his Fourth Amendment claim,

but only because the placement was the result of a hearing (235 F.3d at 1017-18 &

n.14). Plaintiffs offer no authority for the notion that Jaymz’s Fourth, and the

Parents’ Fourteenth, Amendment claims is limited to his removal and that they can

bring separate “duration of custody” claims.

Even if Plaintiffs could do so, the result would be the same. Jaymz was

taken into temporary custody at approximately 4:50 p.m. on September 8 and

remained in it (at his great-grandparents’ home, in accordance with Crystelle’s

request) until shortly after 10:00 a.m. on September 10, when the safety plan was

signed. SApp346, 420. Just as the seizure of Jaymz was “reasonable,” so too was

his 41-hour detention under Gerstein and McLaughlin and Brokaw (325 F.3d at

-35-

1010), which allow an initial detention of at least 48 hours if a warrantless seizure

was based on probable cause. At the very least, these opinions would entitle

Defendants to qualified immunity for such a claim.

Plaintiffs insist, however, that they can assert this as separate claim because

probable cause “evaporated” on September 9, citing (1) the orthopedist’s statement

to Foster that Jaymz’s injury “didn’t look like any abuse or neglect” and was

“consistent with the history of child falling from crib” (SApp640); (2) the “normal”

skeletal exam, which indicated “no clinical or radiographic signs of abuse” to the

examining physician and the radiologist (SApp443-46); and (3) the State’s

Attorney’s view that there was “not enough to file a petition” for adjudication of

wardship at that time (SApp643-44). AT Brf. at 35-36. These additional facts are

not disputed, of course, but as a matter of law, they cannot be said to have negated

the reasonableness of Jaymz’s removal.

For example, Plaintiffs point to nothing in the record indicating that the

orthopedist, the physician who performed the skeletal exam, the radiologist, or even

the State’s Attorney knew all the other facts Defendants knew: the unexplained

other bruising, the inconsistencies between the Parents’ statements and Jaymz’s

injury (which even the skeletal exam physician testified would be a “red flag” for

her (SApp446)) and about who was home at the relevant time, the Parents’

apparent lies about Jaymz’s ability to climb and what was in the crib, the Parents’

refusal of any safety plan, and so on. At most, this additional medical information

created a conflict with the existing medical evidence, and Foster ordered an expert

opinion to resolve that conflict. SApp727. And the Assistant State’s Attorney, who

-36-

was not even aware that Jaymz had been taken into custody, testified that “the door

isn’t shut” about filing a petition at any particular time in an investigation, for the

decision is an “evolving” one. SApp460, 469-71; Doc. 87-7 at 5-6.

Lastly, although Plaintiffs find significant that Foster told Crystelle on

September 9 that temporary protective custody had already lapsed (AT Brf. at 36),

that “fact” was incorrect as a matter of law: temporary protective custody does not

lapse until 48 hours after removal, under McLaughlin’s 48-hour guideline and

Illinois law (705 ILCS 405/2-9 (2008)). Indeed, Foster-Stith and Rappe did not

decide to allow it to lapse until September 10, about two hours before Foster

presented the safety plan. SApp351, 646. In sum, no reasonable jury could find,

based on this additional information, that probable cause “evaporated” on

September 9 and thus that any Defendant violated the guarantee of substantive

due process by keeping Jaymz in temporary protective custody until around 10:00

a.m. on September 10.

Plaintiffs cite a single authority for the proposition that Defendants were not

entitled to judgment, on the merits or on qualified immunity grounds. AT Brf. at 36

(citing Miller v. Amer. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000)).

But Miller is an employment discrimination case, and the page Plaintiffs cite

concerns only the general summary judgment standard. They identify no genuine,

material factual dispute barring summary judgment (or qualified immunity) on this

claim. There is none.

Plaintiffs then cite three cases, arguing that they “clearly establish” the right

at issue. AT Brf. at 37-38. But none of them gave “fair warning” to officials in

-37-

Defendants’ shoes that to keep Jaymz in temporary protective custody until the

morning of September 10 under the circumstances here was unconstitutional.

For example, Brokaw held only that the defendant officials were not entitled

to dismissal of any of the child plaintiff’s Fourth and Fourteenth Amendment

claims, including his months-long post-hearing detention, for the “unique”

allegations there stated such claims and, at the pleading stage, the court did “not

know enough facts to determine where along the continuum this case falls” because

“it is impossible to know which clearly established rules of law to consult unless you

know what is going on.” 235 F.3d at 1022-23. To thwart summary judgment on

this claim, Plaintiffs were obliged to present evidence from which a reasonable jury

could find that “what was going on” during protective custody of Jaymz violated

clearly established rights, and they did not.

Similarly, Sivard v. Pulaski County, 959 F.2d 662 (7th Cir. 1992), held only

that summary judgment was unwarranted on a Fourth Amendment claim based on

a 17-day unexplained delay for a Gerstein hearing and that certain unknowns

barred summary judgment on the plaintiff’s other claim concerning a nearly eight-

week delay for an extradition hearing. Id. at 666-69, 665-66. But it was “the sheer

length of Sivard’s preindictment detention” that allowed a jury to infer that the

defendant officials there knew it was unlawful (Tibbs v. City of Chicago, 469 F.3d

661, 665 (7th Cir. 2006)), and temporary protective custody of Jaymz lasted about

40 hours, not 17 days. Plaintiffs then misquote from Garcia (AT Brf. at 37) in a way

that is both wrong and misleading: Judge Cudahy stated that continued detention

“should” violate due process “when the sole basis for detention has evaporated,” but

-38-

that quote appears in the dissenting portion of his partial concurrence and dissent.

24 F.3d at 975 (Cudahy, J., concurring in part and dissenting in part) (emphasis in

original). And anyway, there was more than one basis for keeping Jaymz in

custody, which did not “evaporate” on September 9.

In sum, Plaintiffs failed to show that any Defendant violated the guarantee

of substantive due process by keeping Jaymz in protective custody for about 40

hours under the circumstances, much less that any Defendant violated “clearly

established” law by doing so.

4. Plaintiffs Failed to Present Evidence From Which aReasonable Jury Could Find That Foster “Shocked theConscience” by “Coercing” The Parents’ Agreement tothe Initial Safety Plan, and Plaintiffs Failed to DefeatHer Qualified Immunity.

The district court ordered summary judgment against the Parents on their

claim that Foster unconstitutionally coerced their agreement to the initial safety

plan, reasoning that Foster’s statement — they could not see Jaymz if they did not

sign it — could not be reasonably construed as threats or coercion in light of the

safety plan’s explicit language concerning its voluntary nature and the possible

consequences of non-agreement. App15. Alternatively, the court found, Plaintiffs

failed to show that Foster violated a “clearly established” right. App15-17. The

district court was right.

As this Court has recognized, a safety plan itself “imposes no obligation on

anybody” and is “a sensible, perhaps indeed an unavoidable, partial solution to the

agonizingly difficult problem of balancing the right of parents to the custody and

control of their children with the children’s right to be protected against abuse and

-39-

neglect.” Dupuy v. Samuels, 465 F.3d 757, 761, 763 (7th Cir. 2006) (Dupuy I).

Even when the offer of a safety plan is accompanied by threats to remove a child

unless a parent agrees, Dupuy I held, “the decision to agree to a safety plan is

optional with the parents,” who may “thumb their nose[s] at the offer” if they

believe they will prevail at the temporary custody hearing (assuming one is held),

and if they do so, the Department can do nothing but proceed with the investigation

(unless it seeks and prevails at such hearing). Id. at 761.

Dupuy I explained that presenting this hard choice to a parent is not itself

unconstitutional coercion, which occurs only if agreement is obtained by illegal

means, such as misrepresentations or a threatened action the Department has no

legal right to take, e.g., a threat of removal without any objective evidentiary basis.

Id. at 762-63. And even absent that evidentiary basis, Dupuy I held, to offer a

safety plan is not unconstitutional duress, for parents have an effective legal

remedy, i.e., the temporary custody hearing that must occur within 48 hours of any

removal. Id. at 762. Dupuy I also found significant every safety plan’s explicit

language “inform[ing] the parents of the possibility that the child will be removed

— information that is in the nature of a truism,” for an ongoing investigation may

reveal new evidence justifying removal. Id. at 762-63 (emphasis in original).

Dupuy I’s reasoning — that to require a choice between two undesirable

options does not, standing alone, render the choice unconstitutionally involuntary

— is not limited to safety plans. For example, in Wilkie v. Robbins, 551 U.S. 537,

557-58 (2007), a property owner claimed that the government tried to force him into

agreeing to an easement (by, among other things, bringing criminal charges against

-40-

him), but this “hard bargaining” was merely “legitimate tactics designed to improve

the Government’s negotiating position,” for it had the authority to take these

actions (and had benefits to offer in exchange). See also id. at 562 (cautioned that

creating judicial standard to distinguish illegitimate pressure from legitimate hard

bargaining “would be endlessly knotty to work out”). More recently, Palka v.

Shelton, 623 F.3d 447, 453 (7th Cir. 2010), held that to require an employee to

choose between resigning and risking an unfavorable outcome from a disciplinary

hearing did not make his resignation involuntary. See also United States v. Miller,

450 F.3d 270, 272-73 (7th Cir. 2006) (holding that confession was not unlawfully

coerced, given lack of evidence that threat inaccurately stated what would have

occurred otherwise or that offered alternative was unconstitutional.

Yet another case Plaintiffs ignore is Terry v. Richardson, 346 F.3d 781 (7th

Cir. 2003), which is closely analogous. There, a jury found that an investigator

violated a noncustodial father’s substantive due process rights by telling him to

forgo visitation with his daughter during an investigation into allegations that he

sexually abused her, but this Court reversed, concluding that no reasonable person

would have left unquestioned the investigator’s authority to do so. Id. at 785-86.

These cases, especially Dupuy I and Terry, control here. Even assuming

Foster told the Parents they could not see Jaymz unless they signed the safety plan,

that he was in the custody of his great-grandmother, and that Crystelle had no

parental rights (AT Brf. at 39), these facts were true at that time, for the 48-hour

period of temporary custody had not yet lapsed. Moreover, it is undisputed that the

plan itself explicitly instructed the Parents that their agreement was voluntary

-41-

(SApp674), Foster explained it was voluntary (Doc. 87-3 at 119), and Foster had

informed Crystelle the day before that the 48-hour temporary protective custody

was being allowed to lapse and there would be no hearing (SApp298-99).

Nevertheless, Joshua admits that he did not bother to read the plan (SApp507-08),

Crystelle “didn’t really care” about its terms (Doc. 87-4 at 26, 29), and neither of

them asked a single question before signing it (Doc. 87-3 at 119), e.g., whether

custody of Jaymz would revert to them automatically at the end of the 48-hour

custody period. Under these circumstances, reasonable people would feel free to

refuse and instead would follow the roadmap given in Terry and Dupuy I: question

Foster’s authority to limit contact with Jaymz going forward, knowing that

temporary protective custody would lapse in just a few hours and no hearing for

further custody would be conducted, and then “thumb their noses” at her and refuse

to sign.

Plaintiffs disagree. AT Brf. at 38-44. Their first error is that they argue

repeatedly for holding “defendants” liable on this claim (see, e.g., id. at 38, 42), yet

they point to no evidence that anyone but Foster was personally involved in the

“threats.” Next, they contend that a genuine issue of material fact exists about

whether the Parents’ agreement was coerced, apparently because they testified that

they subjectively felt coerced. Id. at 38-41. But whether coercion occurred is an

objective inquiry: whether a reasonable person would have felt free to refuse under

the circumstances. Florida v. Bostick, 501 U.S. 429, 435-38 (1991). Here, there is

no dispute about the circumstances surrounding presentation of the safety plan,

under which no reasonable person would have signed it or left Foster’s authority

-42-

unquestioned.

The Parents also argue that the Investigator had “no legal authority” to say

they could not see Jaymz unless they signed the safety plan, once again citing

Foster’s knowledge of the conflicting medical evidence, of Jaymz’s ability to climb

(which indicated that the Parents had lied), and the State’s Attorney’s decision not

to file a petition for adjudication of wardship. AT Brf. at 38-39. Plaintiffs also cite

the Supervisor’s and the Administrator’s September 10 decision to allow custody to

lapse. Id. at 39. But as explained above, probable cause had not “evaporated” when

Foster presented the safety plan. Moreover, the 48-hour period of temporary

custody did not lapse as a matter of Illinois (or Fourth Amendment) law until about

4:50 that afternoon, and Jaymz could be held for up to 48 hours after being taken

into custody, under Gerstein, McLaughlin, Brokaw, and Illinois law. Thus, Foster

did have a legal right that morning to tell the Parents that, to see Jaymz at that

time, they had to sign the safety plan.

Next, Plaintiffs argue that the district court impermissibly resolved a factual

dispute about coercion and “disregard[ed]” or “ignored” Crystelle’s “unrefuted

testimony” that Foster said they could not see Jaymz unless they signed the safety

plan. AT Brf. at 39-40. In fact, the district court quoted that statement before

concluding, as a matter of law (versus fact), that it could not accept Plaintiffs’

unreasonable inference of coercion from that statement. App15 (citing Shank v.

William R. Hague, Inc., 192 F.3d 675, 683 (7th Cir. 1999)). Defendants do not

dispute (for purposes of summary judgment) Plaintiffs’ version of what Foster said,

so Plaintiffs can identify no factual dispute about coercion.

-43-

Plaintiffs also contend that the district court “failed to recognize the

inherently coercive nature of threats concerning the custody of a parent’s children.”

AT Brf. at 40. But Dupuy I flatly rejected this argument, holding that threatening

to enforce legal rights is not itself “coercion,” which occurs only when the threats

are misrepresentations or involve other unlawful means. 465 F.3d at 762; see also

Dupuy v. McEwen, 495 F.3d 807, 808 (7th Cir. 2007) (Dupuy II). Other courts are

in accord. See, e.g., Smith v. Williams-Ash, 520 F.3d 596, 599-601 (6th Cir. 2008)

(affirming summary judgment for investigator who threatened to remove children

permanently if parents stopped cooperating in safety plan); United States v.

Patayan Soriano, 361 F.3d 494, 501-03 (9th Cir. 2003) (holding that mother’s

consent to search of hotel room was voluntary despite threats to take children if she

refused, given that (among other things) she was informed of her right to refuse).

The Parents then string-cite several cases in which a statement was or could

be construed as involuntary under the circumstances, each of which is factually

inapposite. AT Brf. at 40-41. In Vaughn v. Ruoff, 253 F.3d 1124, 1128-29 (8th Cir.

2001), a procedural due process case, a reasonable inference of coercion could be

drawn from the extreme circumstances: defendant social worker’s comments to a

“mildly retarded” mother, whose newborn had just been taken into custody, that her

children would not be returned unless she agreed to sterilization. In Sornberger v.

City of Knoxville, Ill., 434 F.3d 1006, 1023 (7th Cir. 2006), this Court denied

summary judgment due to factual disputes about whether and when the defendants

threatened to take children unless the plaintiff confessed. Here, no such factual

disputes exist.

-44-

Sornberger string-cited the Parents’ other string-cites: Lynumn v. Illinois,

372 U.S. 528, 534 (1963) (holding that woman suspected of selling marijuana was

coerced by being told that unless she “cooperate[d],” she would be sent to jail for ten

years and state aid would be cut off for her small children, who would be placed in

foster care, all while encircled in her apartment by three police officers (who did not

have probable cause to arrest her) and the twice-convicted felon who had “set her

up”); Rogers v. Richmond, 365 U.S. 534, 544 (1961) (holding that whether confession

was admissible depended on whether officials’ conduct — i.e., threat to arrest wife

and children — overbore will to resist); Spano v. New York, 360 U.S. 315, 323

(1959) (holding that will was overborne by official pressure, fatigue, and sympathy

falsely aroused by childhood friend, after indictment, to confess). These

circumstances have no bearing here.

The Parents also rely on Heck (327 F.3d 492), which they say involves less

coercive circumstances than here, and Croft v. Westmoreland County Children &

Youth Servs., 103 F.3d 1123 (3d Cir. 1997), but their reliance is misplaced. As

Dupuy I explained, the defendants in Heck did not suspect the parents of abuse, so

they had no legal right to threaten removal of their child unless their attorney

called within 24 hours and arranged an interview with the child. 465 F.3d at 763.

Similarly inapposite is the “ultimatum” to the father in Croft — leave the home or

the child would be placed in foster care — which was based solely on “a six-fold

hearsay report by an anonymous informant” and thus could not support a

reasonable suspicion of abuse by the father. 103 F.3d at 1126. Here, by contrast,

the existing evidence — conflicting medical evidence, the Parents’ apparent lies, the

-45-

other unexplained bruising, the Parents’ conflicting statements about who was

home and who put Jaymz in the crib — gave rise to a reasonable suspicion of abuse

that existed the morning of September 10. And it was not reasonable for the

Parents to sign the safety plan without reading it and without questioning Foster’s

authority, knowing that temporary custody would end within a few hours and no

hearing would be held.

The Parents also contest the district court’s conclusion that they failed to

show that Foster was not entitled to qualified immunity, contending that in light of

Dupuy I, a reasonable investigator would have known that a safety plan “was not

voluntary where it was obtained through duress, extortion, or other wrongful

means.” AT Brf. at 41-44. As Brousseau teaches, however, that broad general

proposition was not enough to give “fair warning.” 543 U.S. at 199. The Parents’

burden was to show that pre-existing law compelled the conclusion, for every

reasonable official in Foster’s shoes, that it “shocked the conscience” to tell the

Parents they could not see Jaymz, who still was in protective custody, if they did

not sign the safety plan (Khuans, 123 F.3d at 1019-20) and that officers of

reasonable competence would not disagree (Purtell, 527 F.3d at 621). The Parents

failed to satisfy this burden.

The Parents’ only authorities on qualified immunity are Dupuy I and an

unreported district court case, which post-dates the conduct at issue here by two

years. AT Brf. at 41-44 (citing Evans v. Richardson, 2010 WL 1194272 (N.D. Ill.

March 19, 2010)). As a district court case, Evans cannot “clearly establish” the law

for qualified immunity purposes. Boyd v. Owen, 481 F.3d 520, 527 (7th Cir. 2007).

-46-

Evans also is easily distinguished: according to the allegations there, which the

court had to accept as true, the child was removed a week after her injury, based

solely on a hotline report of possible abuse (that all medical evidence, including the

examining physician, contradicted), so there was no probable cause to remove her,

but the parents nevertheless were told she would remain in custody (at an

undisclosed location) unless they agreed to a safety plan. 2010 WL 1194272 at *3.

As for Dupuy I, it did not “clearly inform[ Foster] that [her] conduct here was

illegal.” AT Brf. at 42-43. On the contrary, the very quotes the Parents use

undermine their argument: Dupuy I indicates that it is not unconstitutional to

offer a safety plan when, as here, there was still probable cause to suspect abuse,

Jaymz was still in protective custody, and the Parents had an effective legal remedy

against any threat of continued custody — a hearing within 48 hours of removal

(465 F.3d at 762) — but they present no evidence that Foster made such a threat.

Parents complain that the district court had found Dupuy I sufficient to

thwart qualified immunity at the pleading stage (AT Brf. at 43), but (as in Evans)

the only facts available then were the allegations in Plaintiffs’ one-sided complaint,

so (as in Brokaw) it simply was not possible then to know if qualified immunity

would be available. What discovery provided was additional facts about the

circumstances, which Plaintiffs’ complaint had omitted and which are dispositive

against them. As this Court has recognized, “because the balance between a child’s

liberty interest in familial relations and a state’s interest in protecting the child is

nebulous at best, social workers and other state actors who cause a child’s removal

are entitled to qualified immunity because the alleged constitutional violation will

-47-

rarely — if ever — be clearly established.” Brokaw, 235 F.3d at 1023. Accordingly,

Foster is entitled to qualified immunity because the facts of this case place it at

least “in the center of the continuum where the two interests [in protecting children

and in family relationships] overlap . . . .” Id.

In sum, the safety plan explicitly stated that agreement was voluntary, and

no reasonable person would have left Foster’s authority unquestioned or would have

felt obliged to sign it under the circumstances here, when temporary custody was

about to end and no hearing would be held. Alternatively, not all reasonable

investigators would have agreed Foster’s conduct was unconstitutional.

E. Defendants Were Entitled to Judgment on Plaintiffs’Procedural Due Process Claims.

Plaintiffs alleged that their procedural due process rights were violated in

several ways — (1) lack of a hearing before (or after) Jaymz was removed; (2) lack of

a hearing before (or after) the safety plan was offered; (3) lack of notice about ways

to challenge the safety plan’s restrictions; and (4) lack of accurate information

regarding the investigation or their legal rights and remedies (SApp35-36) — but

their brief appears to address only the first two and thus forfeits the others. United

States v. Dabney, 498 F.3d 455, 460 (7th Cir. 2007). Without addressing the merits

of these claims, the district court correctly concluded that Plaintiffs failed to

demonstrate that Defendants violated any clearly established procedural right.

App17-19. Plaintiffs also failed to present evidence of a procedural due process

violation in the first place.

-48-

1. Procedural Unfairness Is Actionable Only If the ExistingProcedural Safeguards Shock the Universal Sense ofJustice.

The Fourteenth Amendment’s procedural component requires that the

government provide “fundamental procedural fairness.” Lewis, 523 U.S. at 845-46.

Thus, a procedural due process claim is cognizable when the procedural safeguards

are so deficient that they “are shocking to the universal sense of justice.” Id. at 848-

50 (internal quotation marks omitted). How much “process” is “due” depends on the

nature of the private interests affected, the risk of erroneous deprivation coupled

with the probable value of additional procedural safeguards, and the importance of

the government’s interest, including the burden of adding more safeguards.

Mathews v. Eldridge, 424 U.S. 319, 333-35 (1976). Plaintiffs failed to present

evidence of a procedural due process violation and, alternatively, of a “clearly

established” one.

2. Plaintiffs Failed to Present Evidence from Which aReasonable Jury Could Find That Any DefendantDeprived Plaintiffs of Their Liberty Interest in FamilialRelations Without the Process That Was Due, andPlaintiffs Failed to Defeat Qualified Immunity.

Plaintiffs contend due process required a pre-custody hearing (absent only

exigent circumstances), for which Brokaw provided fair warning. AT Brf. at 44.

But their bright-line rule ignores that the Fourteenth Amendment is a flexible

concept, which requires only that a hearing be held “at a meaningful time.”

Mathews, 424 U.S. at 333. It also overstates Brokaw, which held only that a pre-

deprivation hearing or exigent circumstances were required for removal because

(unlike here) removal was based on knowingly false statements and no

-49-

investigation. 235 F.3d at 1021. And they do not mention that after Brokaw, this

Court held in Jensen v. Foley, 295 F.3d 745, 747 (7th Cir. 2002), that a hearing held

within two business days after removal is sufficient if there existed either exigent

circumstances or probable cause to believe a child would be subject to the danger of

abuse. They also ignore Lossman’s warning that “[w]hen a child’s safety is

threatened, that is justification enough for action first and hearing afterward.” 707

F.2d at 291.

Under the circumstances here, a pre-custody hearing was not required, for

(as explained above) the facts known to each Defendant on the afternoon of

September 8 (and again assuming that Foster may be held liable for just effecting

custody, for which Plaintiffs provide no authority) created probable cause to believe

that Jaymz had been abused and was in danger of further abuse. At the very least,

Defendants are entitled to qualified immunity, for Lossman and Jensen indicate

that no pre-custody hearing was required under the circumstances here and thus

provided no “fair warning” that these circumstances required such a hearing.

Judgment against Plaintiffs on this claim was warranted for yet another

reason. Lossman teaches that, in addition to demonstrating a hearing was

required, a plaintiff must establish injury, by “show[ing], with some degree of

probability, that such a hearing would have prevented the deprivation of which he

complains.” 707 F.2d at 291. Although Plaintiffs summarily state that a hearing

before or on the afternoon of September 8 “might have” prevented removal, and also

complain about the lack of a post-custody hearing (AT Brf. at 45 & n.7), they do not

(and cannot) point to any evidence from which a reasonable jury could conclude that

-50-

such a hearing had any probability of preventing (or, later, reversing) the decision

to take Jaymz into temporary protective custody, given that probable cause existed

for removal even when the safety plan was offered on September 10, as explained

above.

Furthermore, although Plaintiffs appear to believe that each Defendant had

an individual constitutional obligation to provide a hearing, all of their quoted

authorities impose this burden on “the State” (see AT Brf. at 47), and Illinois

already provided plenty of process. In addition to the hearing within 48 hours of

removal, if Jaymz had remained in custody that long (705 ILCS 405/2-9 (2008)),

Plaintiffs could have filed an action for immediate declaratory or injunctive relief in

state court or a post-deprivation civil suit for damages. Indeed, Crystelle’s step-

mother started calling attorneys even before Jaymz was taken into custody. Doc.

87-3 at 6. Given all these existing procedural safeguards under Illinois law for an

erroneous custody decision, Mathews imposed no constitutional obligation on any

Defendant to provide yet another.

In sum, Plaintiffs failed to create a question of fact on the merits of this

claim, and even if they had, they failed to show that Defendants were not entitled to

qualified immunity under the circumstances.

3. Plaintiffs Failed to Present Evidence from Which aReasonable Jury Could Find That Any DefendantDeprived Them of Their Liberty Interest in FamilialRelations Without the Process That Was Due for theSafety Plan, and Plaintiffs Failed to Defeat QualifiedImmunity.

Plaintiffs’ only other procedural due process claim on appeal concerns the

-51-

safety plan. AT Brf. at 46-48. As they admit (AT Brf. at 46), no hearing is required

for a voluntary safety plan, which is not a “deprivation” for Fourteenth Amendment

purposes. Dupuy I, 465 F.3d at 761-62. They again assert that voluntariness

cannot be determined as a matter of law, but they again identify no factual dispute

about coercion. AT Brf. at 46. Thus, the relevant question is one of law: would a

reasonable person have felt free to refuse the safety plan under the (undisputed)

facts here. Bostick, 501 U.S. at 435-38. Because the answer is yes, no hearing was

needed.

Plaintiffs contend that if their agreement was involuntary, their procedural

due process rights necessarily were violated as well, which they say Dupuy I held.

AT Brf. at 46. But Dupuy I found no deprivation, so it did not reach that second

step in the analysis; rather, it merely observed that “hearings are required for

deprivations ordered over objection” (465 F.3d at 761-62), without giving an

advisory opinion about what type of hearing would be required, or when.

In any event, that issue was resolved in Terry, which held that the father

was not entitled to a hearing before being ordered not to have contact with his child

and that Illinois law provided sufficient post-deprivation procedural avenues (listed

above) for guarding against any erroneous interference with his parental rights.

346 F.3d at 787. Terry held that the father could have refused to comply, which in

turn would have forced officials to initiate judicial proceedings to keep him away

(id.), which eviscerates the Parents’ speculation about “legal limbo” and successive

removals (AT Brf. at 47-48). Terry indicates that Plaintiffs had no constitutional

right to a pre-safety plan hearing, and Illinois law provided sufficient post-safety

-52-

plan procedural safeguards. At the very least, Terry prevented Plaintiffs from

showing a clearly established right to additional process for the safety plan.

Plaintiffs insist they were entitled to a forum for complaints, and even a

neutral determination, about the safety plan, citing only Duchesne v. Sugarman,

566 F.2d 817 (2d Cir. 1977). AT Brf. at 47. But Duchesne held only that while

“extraordinary” circumstances had justified removal of children without a prior

hearing or consent, based solely the State’s “unilateral and untested evaluation of

the mother’s fitness as a parent,” habeas proceedings were constitutionally

inadequate for the subsequent 36-month separation under Mathews because “the

State” was obliged to initiate judicial review. 566 F.2d 827-28 & n.24 (analogizing

to Gerstein). Duchesne is completely inapposite under the circumstances here.

-53-

CONCLUSION

For the reasons stated above, Defendants-Appellees respectfully request that

this Court affirm the judgment in its entirety.

December 17, 2010

Respectfully submitted,

LISA MADIGANAttorney General of Illinois

MICHAEL A. SCODROSolicitor General

100 West Randolph Street12th FloorChicago, IL 60601312/814-3312

Attorneys for Defendants-Appellees.

___________________________MARY E. WELSHAssistant Attorney General100 West Randolph Street12th FloorChicago, Illinois 60601312/814-2106

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION,TYPEFACE REQUIREMENTS, and TYPE STYLE REQUIREMENTS

The undersigned attorney hereby certifies that the attached brief complieswith

1. the type-volume limitation of Fed. R. App. P. 32(a)(7)(B), because the brief contains, excluding the parts of the brief exempted by Fed. R. App. P.32(a)(7)(B)(iii), 13,983 words of text.

2. the typeface requirements of Fed. R. App. P. 32(a)(5) and the type stylerequirements of Fed. R. App. P. P. 32(a)(6), because the brief has been prepared in aproportionally spaced typeface using WordPerfect 11.0, in 12-point CenturySchoolbook.

________________________Mary E. Welsh

STATE OF ILLINOIS )) SS.

COUNTY OF COOK )

PROOF OF SERVICE

The undersigned being first duly sworn upon oath, deposes and states that

two (2) copies of the attached Brief of Defendants-Appellees (and, by agreement, an

electronic copy of same was e-mailed) were served upon each of the below-named

parties by depositing such copies, in the United States mail at 100 West Randolph

Street, Chicago, Illinois, in an envelope bearing sufficient postage, on December 17,

2010, by 5 p.m.

Julie A. BauerChaitnya MaddaliJoanna C. WadeE. Jason BurkeMichael BessWINSTON & STRAWN LLP35 W. Wacker DriveChicago, IL 60601

_____________________________

SUBSCRIBED and SWORN to before methis 17th day of December, 2010.

___________________________________NOTARY PUBLIC