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Riehm v. Diercks: EDUCATION | 1983 - essay was threat; Rooker-Feldman not applicable to defendant seeking order; summary judgment for defendants affidavit

United States Court of Appeals
No. 07-1517
David Riehm; Colleen Riehm,
Plaintiffs - Appellants,
John Engelking, in his individual
capacity and his official capacity as
Middle and High School Principal of
Cook County Public Schools,
Independent School District Number
166; Ann Mershon, in her individual
capacity and her official capacity as a
public school teacher employed by
Independent School District Number
166; Independent School District
Number 166, a political subdivision
of the State of Minnesota,
Steven Diercks, in his individual
capacity and his official capacity as a
social worker employed by the
Department of Public Health and
Social Services of Cook County,
Minnesota; Ann DeBevec, in her
individual capacity and her official
capacity as a social worker employed
by the Department of Public Health
and Social Services of Cook County,
Appeal from the United States
District Court for the
District of Minnesota.
Defendants - Appellees,
Deputy Joseph Zallar, in his
individual capacity and his official
capacity as a deputy sheriff employed
by Cook County, Minnesota,
Cook County, a political subdivision
of the State of Minnesota,
Defendant - Appellee,
Officer Christopher Thostenson, in his
individual capacity and his official
capacity as a Minnesota State Patrol
Officer assigned to the Northeast
Submitted: November 13, 2007
Filed: August 15, 2008
Before MURPHY, HANSEN and GRUENDER, Circuit Judges.
GRUENDER, Circuit Judge.
David Riehm was a high school student who wrote an essay detailing a fantasy
murder-suicide inspired by the school shooting that took place at Columbine High
1The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
2The Riehms voluntarily dismissed their claims against Principal John
Engelking, school teacher Ann Mershon, Independent School District Number 166,
Cook County Deputy Sheriff Joseph Zallar, and Minnesota State Patrol Officer
Christopher Thostenson.
School in Littleton, Colorado. He left the essay with his teacher, who read it and
reported it to law enforcement. He was taken from his home in Cook County,
Minnesota, by court order, underwent a psychiatric evaluation and was released after
seventy-two hours. He and his mother, Colleen Riehm, brought this lawsuit against
Cook County and two of its employees, Steven Diercks and Ann DeBevec
(collectively, the county defendants), seeking damages on the grounds that Davids
detention violated his First Amendment right to free speech and Fourth Amendment
right to be free from unreasonable seizures and Colleens Fourteenth Amendment
right to familial integrity, and that the countys failure to pay Davids medical bills
violated Colleens Fourteenth Amendment substantive due process right, as well as
Minnesota state law. The district court1 granted the county defendants motions for
dismissal and summary judgment, and the Riehms appeal.2 For the reasons discussed
below, we affirm.
In January 2005, David was seventeen years old and a student at Cook County
High School in Grand Marais, Minnesota. During Ann Mershons creative writing
class, David wrote three essays that Mershon found disturbing, the last of which
Mershon viewed as a personal threat.
Davids first essay, Poor John Redfield, written in the fall of 2004, described
a student who had a nocturnal emission, fell and penetrated his anus on a toy, slipped
on his own blood and was run over by a bus, which collapsed his head in a red misty
explosion. According to David, the moral of the story was dont have wet dreams
or youll die a horrible death. Mershon returned the essay with comments indicating
that she found it offensive and wanted him to make changes.
David wrote his second essay, consisting of two parts, View Number One and
View Number Two, around the same time. In View Number One, he wrote that
he usually thought about life in general, and you know, life is not g rated. There is
violence, language, sexual content everywhere. He stated, Violence is on the news,
that doesnt mean its [sic] pornography. In View Number Two, he criticized an
old fashioned, narrow minded, uncreative, paranoid, . . . jealous English teacher
pejoratively named Mrs. Cuntchenson. He described her as an old cranky teacher,
with absolutely no comprehension whatsoever of life. He wrote, from her
perspective, If a particular student writes about a violent or gory story, then of course
I automatically assume that they have a problem with obsessive focus on sex and potty
language. Mershon read the essay and informed David that they should talk about
it. Mershon discussed the first two essays with Davids mother, Colleen, at a
conference and believed that the issue had been resolved.
David titled his third essay Bowling for Cuntchenson. The essay called Mrs.
Cuntchenson a bitch[] who is way out of line. The student-narrator is expelled
from Mrs. Cuntchensons English class and dreams about a smoking gun next to a
clump of blood matted hair. The hair belonged to an unrecognizable head. The
student wakes up, packs his bag and begins an interesting day. He eats alone in the
cafeteria like a prisoner sentenced to death. Sitting alone, trying to force down their
[sic] last meal into their [sic] nervously wrecked and knotted stomach, knowing all to
[sic] well their [sic] wasted life will be ended shortly. In Mrs. Cuntchensons class,
he finds himself unable to free myself from her satantic grip and is kicked out of her
class, leaving in a fit of rage, ready to explode out like a million shards of glass in
search of flesh to mangle. He stumbles into a church and bumps into a gun taped
underneath a pew. Maybe it was a sign, a sign from god, a sign that I should do
3Bowling for Columbine is a movie released in 2002 that advocates gun control
and includes security-camera footage of the massacre at Columbine High School that
occurred on April 20, 1999. Roger Ebert, Reason Remains at Arms Length in
Columbine, Chi. Sun-Times, Oct. 18, 2002, at 24.
something. Then I got the most horrific idea that I had ever had, but yet, maybe it was
the best. The student then, on a mission, returns to school where the other students
had no idea of what was about to happen. The student raises the gun, aims at Mrs.
Cuntchenson and smirks at the wide eyed look horror [sic] in her face. He winces
as the bullet replaced her left eye. In an instant a red mist was produced from the
wound, followed by a stead [sic] flow of blood, tissue, and bone fragments. I felt the
warm mist speckle onto my face. The splatter distance was incredible. The student
licks his lips and tastes [b]lood too, her blood, her blood that I had spilt. The
student then commits suicide and concludes, It was all totally worth it. The narrator
fades to a movie theater, where he leaves with his friends and discusses the movie they
just watched, presumably Bowling for Columbine.3
Mershon required students to submit essays in a personal folder she established
for each student in a filing cabinet in her classroom. David alleges that he completed
his third essay in early October before placing it in his folder in the filing cabinet.
Mershon claims she did not see Davids third essay until the weekend of January 22
and 23, 2005. When she read it, she felt threatened, scared and hurt. She reported her
concerns to the school principal, John Engelking. Engelking suspended David on
Monday, January 24. Engelking called Colleen to inform her of Davids suspension.
Engelking and Mershon gave Davids essays to Cook County Deputy Sheriff
Joseph Zallar. Zallar took a statement from Mershon and gave her statement and the
essays to Assistant Cook County Attorney Michael Boese and to the Cook County
Department of Health and Human Services. Steven Diercks, a Cook County social
worker, discussed Davids essays with Zallar and Boese. Diercks opened a Child
Welfare Assessment case with the approval of his supervisor, Ann DeBevec.
On January 25, Diercks prepared two petitions, one for a child in need of
protection or services (CHIPS petition), and the other an ex parte petition for
emergency protective care (ex parte petition). Diercks based his CHIPS petition on
Davids essays, particularly the third essays veiled threat and many threats, and
upon Mershons statement that she feels very threatened and is very afraid about
what this student may do. Diercks stated that David was a child in need of
protection or services, one whose behavior, condition, or environment is such as to
be injurious or dangerous to the child or others. Minn. Stat. 260C.007, subd. 6(9).
Ordinarily, after a CHIPS petition has been filed, the parties appear before the
court voluntarily, or the court issues a summons for a hearing concerning the
allegations. Minn. Stat. 260C.151, subd. 1. An exception exists, however, that
allows immediate custody of a child prior to a hearing for emergency protective
care. The statute provides that,
If the court makes individualized, explicit findings, based on the
notarized petition or sworn affidavit, that there are reasonable grounds
to believe the child is in surroundings or conditions which endanger the
childs health, safety, or welfare that require that responsibility for the
childs care and custody be immediately assumed by the responsible
social services agency and that continuation of the child in the custody
of the parent or guardian is contrary to the childs welfare, the court may
order that the officer serving the summons take the child into immediate
custody for placement of the child in foster care.
Minn. Stat. 260C.151, subd. 6; see Minn. R. Juv. Prot. P. 28.02, subd. 1(b). Diercks
prepared an ex parte petition for emergency protective care referring to this provision.
The ex parte petition also relied on the contents of Davids three essays as well as
Mershons concerns and concluded that immediately taking David into protective
custody was warranted. Boeses personal notes indicated that he found no basis for
criminal prosecution or civil commitment and that the essays may have been in
Mershons filing cabinet for weeks/months, but his notes also indicated that he
believed a CHIPS petition would be appropriate.
Diercks and Boese signed both sworn petitions. Diercks then submitted the
petitions to Cook County District Court Judge Kenneth Sandvik. That day, January
25, Judge Sandvik executed an order (ex parte order) authorizing Davids
immediate detention at Miller Dwan Adolescent Mental Health Unit and scheduled
an emergency protective care hearing for January 28. That evening, Diercks and
Zallar went to the Riehms home, seized David, and placed him in protective custody.
Diercks and Zallar transported David to Duluth, Minnesota, approximately 150
miles from his home. Because Miller Dwan was full, David was placed in the adult
psychiatric ward at nearby St. Lukes Hospital. The following night, January 26, an
ambulance service transferred him to Miller Dwan. Dr. Peder Svingen, a psychiatrist,
examined David on January 27 and concluded that he suffered from adjustment
disorder but was not mentally ill or dangerous. David remained in detention at Miller
Dwan that night. David was transported to court on January 28 for his hearing. At
the hearing, Boese recommended unconditional dismissal of the CHIPS petition,
which the court granted, and David was returned to Colleens custody.
Colleen did not pay the medical bills from Miller Dwan, St. Lukes, or the
ambulance service, totaling ,863. DeBevec wrote Colleen and requested the
Riehms health insurance information. She explained that Cook Countys policy
required patients to submit health insurance information and that any bills unpaid by
the insurance company would then be paid by the county. Miller Dwan sent a similar
letter and warned that if she refused to provide her insurance information, her account
would change to self-pay status. The ambulance service also sent a letter and
warned of future collection efforts. Miller Dwans collection agency made a negative
credit inquiry against Colleen. Colleen claims that her bank denied a consolidation
loan to her on account of that negative credit inquiry, which cost her ,221 in
interest she would have saved over five years.
The Riehms brought suit under 42 U.S.C. 1983 for constitutional violations
and under Minnesota law. David alleged that his First Amendment right to free
4The Riehms do not appeal the dismissal of their claims under the Minnesota
Human Rights Act, the Americans with Disabilities Act, the Minnesota Patient Bill
of Rights, their abuse of power claim, or alleged violations of the Minnesota
Constitution under Article I, 3 (Liberty of the Press) or 16 (Freedom of
speech was violated because he was detained based on the contents of his creative
writing essay. He also argued that his detention violated his Fourth Amendment right
to be free from unreasonable seizures because Diercks could not have relied upon the
ex parte order in good faith, Dierckss ex parte petition contained material omissions,
and the detention was executed unreasonably. Colleen asserted that her Fourteenth
Amendment right to familial integrity was violated when David was taken, and she
claimed that Cook Countys failure to pay Davids medical bills violated substantive
due process under the Fourteenth Amendment. They also brought state law tort and
constitutional claims. The district court granted the county defendants motions for
dismissal and summary judgment. The Riehms appeal.4
The county defendants successfully moved for judgment on the pleadings or for
summary judgment. The district court did not explicitly state on which basis it made
its decision. The Riehms argue that the district court dismissed the claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). However, if matters outside the pleadings
are presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56. Fed R. Civ. P. 12(d); see Gibb v. Scott, 958 F.2d
814, 816 (8th Cir. 1992). In this case, after the Riehms filed their amended complaint,
they offered four affidavits from Colleen and affidavits from David, six of Davids
classmates, and a newspaper reporter, along with declarations from the Riehms
attorney. Several creative writing samples from Davids classmates were submitted.
The record also contains numerous other pieces of evidence, including Boeses notes
composed prior to the application for the ex parte order, Dr. Svingens examination
5Federal Rule of Civil Procedure 12(d) requires that when the district court
treats a motion to dismiss as a motion for summary judgment, the parties must be
given a reasonable opportunity to present all the material that is pertinent to the
motion. We have held that parties have constructive notice that the district court will
treat the motion as one for summary judgment when the moving party states that it is
moving for summary judgment and the parties submit and refer to material outside of
the complaint. See Madewell v. Downs, 68 F.3d 1030, 1048 (8th Cir. 1995); Angel v.
Williams, 12 F.3d 786, 788 & n.3 (8th Cir. 1993). The county defendants styled their
motion as a motion to dismiss or, in the alternative, for summary judgment. The
Riehms referred to and relied on numerous material outside of the complaint in their
memorandum in opposition to the county defendants motion. The Riehms also
acknowledged the standard for summary judgment in their memorandum in
opposition. Because the Riehms had notice that the county defendants sought
summary judgment, introduced and relied on material outside the complaint, and
acknowledged the standard for summary judgment when opposing the county
defendants motion, they had constructive notice sufficient under Rule 12(d).
Furthermore, the county defendants moved to stay discovery, which the Riehms
opposed and the district court granted. The Riehms, however, did not appeal the stay.
notes, a transcript of the CHIPS hearing, Dierckss subsequent resignation from his
social worker position, and newspaper articles discussing the incident. The county
defendants and the Riehms relied on this evidence in their filings, and the district court
considered and cited the evidence in its order. Because the Riehms presented
evidence outside the pleadings that the district court considered, we will review the
district courts decision as a grant of summary judgment.5
We review the district courts grant of summary judgment de novo. Russell v.
Hennepin County, 420 F.3d 841, 847 (8th Cir. 2005). Summary judgment is
appropriate when there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. Id. We view the facts in the light most
favorable to the non-moving party. Id.
6Colleen also appeals the district courts conclusion that the countys failure to
pay the medical bills from Miller Dwan, St. Lukes and the ambulance service before
litigation did not violate her substantive due process right under the Fourteenth
Amendment. She points out that Minnesota statute requires the county to pay
medical bills for detentions of this type. See Minn. Stat. 260C.188, subd. 1. She
notes that the county has a policy that requires individuals to submit insurance
information before it pays bills, which the statute does not require. Also, the countys
A. Federal Claims
In a 1983 action, state actors may be entitled to qualified immunity. Qualified
immunity protects all but the plainly incompetent or those who knowingly violate the
law. Malley v. Briggs, 475 U.S. 335, 341 (1986). We first ask whether the
plaintiffs allegations establish a violation of the Constitution. Sherbrooke v. City
of Pelican Rapids, 513 F.3d 809, 813 (8th Cir. 2008). If there is no violation, then we
need not inquire further. Hayek v. City of St. Paul, 488 F.3d 1049, 1054 (8th Cir.
2007). If there is a constitutional violation, we ask whether it was clearly established
at the time of the violation such that a reasonable person would have known that his
actions violated a constitutional right. Sherbrooke, 513 F.3d at 813.
As a preliminary matter, we find that the Riehms have not presented sufficient
evidence regarding any First or Fourth Amendment violations by Cook County or by
Dierckss supervisor, Ann DeBevec. The county cannot be held vicariously liable for
its agents actions under 1983. See Monell v. Dept of Soc. Servs., 436 U.S. 658,
691 (1978). Instead, the Riehms must identify a county policy or custom that caused
their injuries, which they fail to do. See id.; Brockinton v. City of Sherwood, 503 F.3d
667, 674 (8th Cir. 2007). Additionally, [a] supervisor may be held individually liable
under 1983 if [s]he directly participates in the constitutional violation or if [s]he fails
to train or supervise the subordinate who caused the violation. Brockington, 503
F.3d at 673. The Riehms present no evidence that DeBevec was directly involved in
the alleged constitutional violations or that she failed to train or supervise Diercks.6
failure to pay the bills harmed her credit rating and affected her ability to obtain a
loan. On appeal, she characterizes her claim as a substantive due process claim, which
means she must show that the officials acted in an arbitrary or capricious manner, or
so as to shock the conscience. Herts v. Smith, 345 F.3d 581, 587 (8th Cir. 2003).
DeBevec, acting pursuant to county policy, refused to pay Davids medical bills until
she received Colleens insurance information. While the district court agreed that the
Minnesota statute did not require Colleen to disclose her insurance information, we
agree with the district court that placing this requirement on Colleen did not rise to the
level of shocking the conscience.
Therefore, the district court did not err in granting summary judgment to DeBevec and
the county, and our analysis focuses on the actions of Diercks.
1. First Amendment Claim
David claims that he was seized and detained in retaliation for the exercise of
his free speech rights under the First Amendment. The First Amendment does not
protect a true threat, a statement that a reasonable recipient would have interpreted
as a serious expression of an intent to harm or cause injury to another. Doe v.
Pulaski County Special Sch. Dist., 306 F.3d 616, 624 (8th Cir. 2002) (en banc).
Additionally, Davids speech occurred in the special context of the school
environment, where schools may regulate some speech even though the government
could not censor similar speech outside the school. See Morse v. Frederick, 551 U.S.
---, 127 S.Ct. 2618, 2627 (2007) (internal quotation omitted).
In Pulaski, a student received a letter from her ex-boyfriend expressing the
desire to molest, rape and murder her. The author wrote that he intended to lie under
the students bed with a knife and kill her in her sleep. Even though the letter was
composed months before the student received it and even though the student received
the letter from a third party rather than directly from the author, we concluded that the
letter was a true threat and would not receive First Amendment protection. Pulaski,
306 F.3d at 62627. We emphasized that in the wake of Columbine and Jonesboro,
we expect reasonable school officials to take some action based on . . . violent and
disturbing content. Id. at 626 n.4. The school board expelled the author, and we
found that the expulsion did not violate the First Amendment. The letter exhibited
. . . pronounced, contemptuous and depraved hate for the student and contained
numerous obscenities. Id. at 625. We noted that the letter was extremely intimate
and personal, containing violence . . . directed unequivocally at the student, and
that the author never attempted to alleviate the students concerns. Id.; see also Ponce
v. Socorro Indep. Sch. Dist., 508 F.3d 765 (5th Cir. 2007) (concluding that a students
creative writing diary that described a pseudo-Nazi group, injuries to students, and a
Columbine-type shooting was not protected by the First Amendment).
While David lacked the history of violent tendencies we found relevant to the
true threat analysis in Pulaski, the other factors considered in our analysis establish
that Davids third essay qualifies as a true threat. While the author of the threat in
Pulaski did not give his letter to the subject of the threat, David provided his essays
directly to Mershon, and he submitted them on the schools campus. His first essay,
discussing a students nocturnal emission, penetrating his anus on a toy, slipping on
his own blood, and getting run over by a bus, contained troublesome descriptions.
Although his second and third essays do not specifically name Mershon or David, the
context of these essays leaves little doubt that David was referring to Mershon and
himself. His second essay reflected hatred for Mershon, pejoratively naming her
Cuntchenson and criticizing her as old-fashioned, uncreative, paranoid, [and]
jealous. His third essay went significantly farther and expressed, in graphic terms,
a plan to kill her and himself. The details of the murder-suicide in the essay occur in
the context of references to the movie Bowling for Columbine. David begins the essay
with a dream about a gun and eating lunch like a prisoner sentenced to death. After
his satanic visit to his teachers class, he feels a sign from god as he takes a gun
from church. David mentions that other students had no idea of what was about to
happen. He describes the murder of his teacher in gruesome detail, including
7D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Trust
Co., 263 U.S. 413 (1923).
shattering her eye with a bullet and licking her blood from his lips. He then describes
the shooters suicide. This lengthy essay describing an obsession with weapons and
gore, a hatred for his English teacher with a similar name who had been critical of his
prior essays, a surprise attack at a high school, and the details of his teachers murder
and the narrators suicide lead to the inescapable conclusion that it was a serious threat
directed at Mershon. Although the third essay was allegedly written months earlier,
just like the letter in Pulaski, Mershon reacted immediately after she received it, and
she quite reasonably felt personally threatened. We conclude that as in Pulaski,
Davids third essay constitutes a true threat and is not protected under the First
2. Fourth Amendment Claim
The district court applied the Rooker-Feldman doctrine7 to Davids Fourth
Amendment claim and held that it is not the role of this Court to oversee the
propriety of the state judges decision to issue the order. Riehm v. Engelking, --- F.
Supp. 2d ---, 2007 WL 37799, at *5 (D. Minn. 2007). If the Rooker-Feldman doctrine
applies, federal courts lack subject matter jurisdiction. Simes v. Huckabee, 354 F.3d
823, 827 (8th Cir. 2004). We review the district courts determination of a lack of
subject matter jurisdiction de novo. Simes, 354 F.3d at 827.
Rooker-Feldman is a narrow doctrine. Lance v. Dennis, 546 U.S. 459, 464
(2006). It applies only to cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments.
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). The
Rooker-Feldman doctrine may be inapplicable where federal plaintiffs have not been
given a reasonable opportunity to raise their federal claims in the state proceedings.
Simes, 354 F.3d at 827; see Skit Intern., Ltd. v. DAC Techs. of Ark., Inc., 487 F.3d
1154, 1157 (8th Cir. 2007). Rooker-Feldman does not apply where the federal
plaintiff was not a party in state court. Lance, 546 U.S. at 466.
We conclude that the Rooker-Feldman doctrine does not apply to Davids
Fourth Amendment claim. First, the Riehms could not be considered parties to the ex
parte petition. They had no opportunity to participate in the state court proceeding,
either the CHIPS petition proceeding (prior to the February 28 hearing) or the ex parte
petition proceeding in which the court issued the ex parte order. Second, the Riehms
do not seek to overturn the ex parte order by this action. Rather, they seek redress
under 42 U.S.C. 1983 for an alleged unconstitutional seizure of David. It is possible
for a 1983 action to implicate Rooker-Feldman. See, e.g., Prince v. Ark. Bd. of
Examrs in Psychology, 380 F.3d 337 (8th Cir. 2004) (holding that after plaintiff
litigated revocation of his psychology license in state court, he could not bring a
federal suit under 1983 alleging additional claims). Nevertheless, as the Ninth
Circuit has explained:
If a federal plaintiff asserts as a legal wrong an allegedly erroneous
decision by a state court, and seeks relief from a state court judgment
based on that decision, Rooker-Feldman bars subject matter jurisdiction
in federal district court. If, on the other hand, a federal plaintiff asserts
as a legal wrong an allegedly illegal act or omission by an adverse party,
Rooker-Feldman does not bar jurisdiction.
Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003) (cited favorably in Exxon, 544 U.S.
at 293). Davids claim is actually an independent claim, because it alleges
unconstitutional actions by Diercks in seeking and executing the ex parte order. See
Exxon, 544 U.S. at 293. The Riehms are not challenging the state courts issuance of
the ex parte order. Therefore, the Rooker-Feldman doctrine does not apply.
Turning to the merits of Davids Fourth Amendment claim, we explained in
Heartland Academy Community Church v. Waddle that the Fourth Amendment
requires that the protective seizure of children occur pursuant to a court order, or, in
the absence of a court order, pursuant to probable cause or exigent circumstances. 427
F.3d 525, 533 (8th Cir. 2005). In this case, Diercks acted pursuant to a court order.
He prepared and filed the ex parte petition and the CHIPS petition with a detached and
neutral judge who signed the ex parte order authorizing Davids seizure.
David argues that Diercks could not rely in good faith on the ex parte order
because the order was so lacking in the indicia of probable cause as to render official
belief in its existence unreasonable. See Malley, 475 U.S. at 345 (citing United
States v. Leon, 468 U.S. 897, 923 (1984)). He argues that the petitions were so
lacking in an adequate basis to show that Davids welfare was in danger and that
custody with Colleen was contrary to his welfare that Diercks could not reasonably
rely on Judge Sandviks issuance of the ex parte order. See Minn. Stat. 260C.151,
subd. 6. If an officer relies on an ex parte order in good faith, then he is entitled to
qualified immunity. Malley, 475 U.S. at 345. In assessing good faith reliance on an
order, we consider the totality of the circumstances, including any information
known to the officer but not included in the affidavit. United States v. Grant, 490
F.3d 627, 632 (8th Cir. 2007), cert. denied, 552 U.S. ---, 2008 WL 754361 (U.S. Mar.
24, 2008). Officers can have reasonable, but mistaken, beliefs as to the facts
establishing the existence of probable cause or exigent circumstances, for example,
and in those situations courts will not hold that they have violated the Constitution.
Saucier v. Katz, 533 U.S. 194, 206 (2001).
Diercks seized David pursuant to an ex parte order duly issued by Cook County
District Court Judge Sandvik pursuant to Minnesota law, a law that authorizes the
removal of children from parental custody in any case in which continued custody
poses an immediate threat to the childs health or welfare. See K.D. v. County of Crow
Wing, 434 F.3d 1051, 1056 (8th Cir. 2006) (finding that the Minnesota child
protection statute is not limited to instances of abuse or neglect investigations). The
ex parte petition extensively detailed that Davids essays were disturbingly violent,
8Relying on Groh v. Ramirez, 540 U.S. 551 (2004), David also argues that the
ex parte order was facially invalid, which should have been obvious to Diercks.
According to Groh, a warrant is facially invalid if it does not particularly state the
thing or, in this case, the person to be seized. See id. at 565. Davids allegations
about the deficiencies in the ex parte order do not claim a lack of specificity of the
person to be seized, which is the basis of a facial challenge. Instead, his allegations
concern omissions from the ex parte petition that he claims Diercks should have
known vitiated probable cause. Davids challenge is properly analyzed under a
Franks analysis, not as a facial challenge.
that the essays grew more personalized towards Mershon, that the third essay was a
veiled threat towards Ms. Mershon, that the essay included many threats toward
his teacher, that the student in the essay shoots the teacher in a fit of rage as a directive
from God, and that Mershon felt very threatened and very afraid because of the
obvious parallels between Davids essay and her own relationship with David. In
addition to the contents of the ex parte petition, Diercks was aware of Mershons
report to law enforcement that she had spoken to Colleen about Davids first and
second essays and believed they were on the right track until she subsequently read
the Bowling for Cuntchenson essay. Diercks had a reasonable basis to believe that
Davids apparent threat to murder Mershon and commit suicide placed Davids
welfare at risk and that allowing David to remain in his mothers custody, in light of
Mershons previous ineffective discussion with Colleen about the first two essays, was
contrary to his welfare. The ex parte order was not so lacking in indicia of probable
cause as to render Dierckss reliance on it unreasonable. Therefore, Dierckss good
faith reliance on the ex parte order was reasonable.
David also claims that Diercks omitted material facts from the ex parte petition
and that had this information been included, Judge Sandvik would not have issued the
ex parte order.8 A warrant based upon an affidavit containing deliberate falsehood
or reckless disregard for the truth violates the Fourth Amendment. Bagby v.
Brondhaver, 98 F.3d 1096, 1098 (8th Cir. 1996) (quoting Franks v. Delaware, 438
U.S. 154, 171 (1978)). The party challenging the ex parte petition must show that the
9These essays discussed the rape of Jesus, a school bully killed by head trauma
and a punctured jugular, and suicides.
petitioner omitted facts with the intent to mislead or with reckless disregard for the
truth and that the ex parte petition, if supplemented by the omitted information, would
not have been sufficient to support a finding of probable cause. Id. at 1099.
David argues that our Heartland decision is analogous to this case. In
Heartland, Waddle, a social worker, effected the removal of more than one hundred
students at Heartland Christian Academy, some by ex parte order and others without
court order, based on allegations of mistreatment and abuse. Heartland, 427 F.3d at
52829. Waddle submitted an ex parte petition that contained stale information,
misinformation, and material omissions that rendered the seizures unreasonable. Id.
at 533. In Heartland, Waddle identified eight different abuse-related allegations in
the ex parte petition, four of which were subsequently proven to be false. Heartland
Acad. Cmty. Church v. Waddle, 317 F. Supp. 2d 984, 1093 (E.D. Mo. 2004).
David, however, does not identify any falsehoods in Dierckss ex parte petition.
Instead, David cites a series of omissions that he asserts rise to the level of a
constitutional violation by Diercks. Relying on Boeses notes, he alleges that Diercks
omitted that Boese found no basis for criminal prosecution, that Boese found no
statutory basis for civil commitment, and that the essays might have been in the
classroom file for weeks/months. He also alleges that Diercks omitted that David
had no mental illness or criminal history; that Davids family was not the subject of
any investigation and, therefore, Diercks could not aver that Davids remaining in his
mothers custody was contrary to his welfare; that Mershon was unsure about
referring the case for criminal prosecution; and that Mershon had received disturbing
creative writing essays from other students without reporting them to authorities.9
We reject Davids argument. We find no evidence suggesting that Diercks
intended to mislead the state court or that he acted with reckless disregard for the
truth. Although Boese and Mershon knew much of the omitted information, there is
no evidence in the record that the Diercks was aware of this information. For
instance, no evidence was submitted showing that Diercks knew about the disturbing
creative writing assignments turned in by other students. David points to omissions
reflected in Boeses notes, but he points to no evidence that Diercks knew about the
contents of Boeses personal notes or that Boese ever expressed the contents of his
notes to Diercks. Even if Diercks knew the contents of Boeses notes, the notes
indicate that Boese supported the CHIPS petition, and David was detained under an
ex parte order related to a CHIPS petition that Boese also signed. David was not
detained by a criminal warrant or a civil commitment, which Boese apparently did not
support. Additionally, we find no basis to construe the other alleged omissions,
including the failure to report Davids lack of mental illness or criminal history, as
attributable to Dierckss intentional or reckless disregard for the truth.
Even if we were to conclude that Diercks omitted these details with reckless
disregard for the truth, the omissions are not so probative they would vitiate probable
cause. Heartland, 317 F. Supp. 2d at 1092. Unlike the Heartland case, there is no
evidence here that Judge Sandvik would not have issued the ex parte order had the
omitted information been included. Although it is unclear when David submitted the
third essay, even assuming it was submitted months before Mershon read it, we do not
consider it stale. The timeliness of the information supplied in an affidavit depends
on the circumstances of the case . . . . United States v. Horn, 187 F.3d 781, 786 (8th
Cir. 1999). A school shooting may require extensive planning. See, e.g., Julie Cart,
Teens Planned Assault for a Year, Diary Says, L.A. Times, Apr. 25, 1999, at 1
(describing that a diary indicated the gunmen behind the Columbine massacre planned
their attack for a full year). We conclude that even if the omitted details cited by
David were included in the petitions, they would not affect the underlying probable
cause determination that David posed a potentially serious threat to himself and to
Mershon and that Davids surroundings or conditions endangered his health,
safety, or welfare requiring his immediate protective custody. Minn. Stat.
260C.151, subd. 6.
10David also argues that the petitions were invalid because they were not
notarized. See Minn. Stat. 260C.151, subd. 4. Diercks, however, signed the
petitions that stated he had been duly sworn, which complies with the statutory
requirement that the court base its decision on a notarized petition or sworn
In light of the gravity of the potential consequences of inaction in the face of
evidence suggesting a potential attack, we expect social workers to take reasonable
action. See Pulaski, 306 F.3d at 626 & n.4. The gruesome and vivid description of
an attack on Mershon at Cook County High School provided a reasonable basis for
the conclusion that David posed an immediate danger to himself, Mershon and
perhaps others if he remained in his mothers custody without professional evaluation.
We conclude Dierckss petitions and his reliance on the ex parte order did not violate
the Fourth Amendment.10
In addition, David asserts that the detention was not effected properly because
it was not accomplished by the least restrictive means and was unreasonable under the
Fourth Amendment. He argues that he should not have been placed in the adult ward
at St. Lukes for one night because it was not the least restrictive means of detention.
Minn. Stat. 260C.181. The Supreme Court has repeatedly stated that
reasonableness under the Fourth Amendment does not require employing the least
intrusive means. Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 837
(2002). Under the circumstances, it was reasonable to detain David one night at a
nearby adult ward because the childrens ward was full. He was promptly moved to
Miller Dwan as soon as space was available.
David finally argues that after his psychiatric evaluation revealed that he had
no mental illness and posed no threat, he should have been released immediately on
January 27, not after the hearing January 28. David cites OConnor v. Donaldson,
which held that an involuntary psychiatric confinement becomes unconstitutional once
the lawful basis for confinement no longer exists. 422 U.S. 563, 575 (1975). But
11Colleen also asserts a claim against Diercks regarding her Fourteenth
Amendment liberty interest in a familial relationship. Our court has recognized the
liberty interest which parents have in the care, custody, and management of their
children. Manzano v. S.D. Dept of Soc. Servs., 60 F.3d 505, 509 (8th Cir. 1995).
In Manzano, we granted a social worker qualified immunity because he investigated
upon a reasonable suspicion of child abuse. Id. at 511. This case does not concern
child abuse, but, as discussed above, Diercks had a reasonable suspicion of a threat
to Davids welfare that justified the ex parte order removing David from his home.
Because there was no Fourth Amendment violation surrounding Davids detention,
we reject Colleens claim.
David was not confined under mental health law; he was confined pursuant to child
protection law, and Judge Sandvik found that David needed to be confined until the
court could conduct an evaluation at a hearing scheduled for January 28.
Additionally, OConnor did not involve a challenge to the initial commitment, but
a challenge to a prolonged commitment after the justification for the initial
commitment had passed. Id. at 567. David offers no law in support of the proposition
that his initial detention before his child protection hearing, during which a judge
could evaluate the findings of the psychiatrist and any other evidence, violates the
Fourth Amendment.11
B. Minnesota Claims
The district court also granted the county defendants motion for summary
judgment with regard to the Riehms state law claims.
David alleges that his confinement constituted false imprisonment. According
to Minnesota common law, [A]n individual may not, without legal justification, be
confined against her or his will. Gleason v. Metro. Council Transit Operations, 563
N.W.2d 309, 319 (Minn. Ct. App. 1997). Because we find that Diercks had legal
justification to detain David, we reject this claim.
The Riehms state constitutional claims focus upon Article I, 2 (Equal
Protection), 7 (Due Process), 8 (Remedies), and 10 (Searches and Seizures). The
Riehms appeal the district courts dismissal of their constitutional claims seeking
damages. Minnesota courts explicitly refuse to find causes of action for damages
under the Minnesota Constitution on their own unless the Minnesota Supreme Court
has recognized the cause of action. See Mitchell v. Steffen, 487 N.W.2d 896, 905
(Minn. Ct. App. 1992) (finding that even if cause of action for damages existed under
the Minnesota Constitution, sovereign immunity barred torts for deprivation of
constitutional rights), affd on other grounds, 504 N.W.2d 198 (Minn. 1993); Bird v.
State, Dept of Pub. Safety, 375 N.W.2d 36, 40 (Minn. Ct. App. 1985) (recognizing
that Minnesota Supreme Court has not recognized any tort for the violation of due
process rights). We agree with the district court that because the Minnesota Supreme
Court has not established an action for damages for these constitutional violations, the
Riehms claims fail.
For the foregoing reasons, we affirm the judgment of the district court.


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