author: MURGUIA, Circuit Judge: CHRISTEN,. Circuit Judge, FRIEDLAND, Circuit Judge,

text:
    Jamie KIRKPATRICK, individually, and as the natural father and legal guardian of B.W., a minor, Plaintiff-Appellant, v. COUNTY OF WASHOE; Amy Reynolds, WCDSS social worker; Ellen Wilcox, WCDSS social worker; Linda Kennedy, WCDSS social worker, Defendants-Appellees.
    No. 12-15080
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted En Banc June 22, 2016, San Francisco, California
    Filed December 9, 2016
    Morgan B. Christen, Circuit Judge, filed an opinion concurring in the result, in which Andrew D. Hurwitz, Circuit Judge, joined.
    Michelle T. Friedland, Circuit Judge, filed an opinion concurring in part and dissenting in part, in which Sidney R. Thomas, Chief Judge, joined.
    Alex Kozinski, Circuit Judge, filed an opinion dissenting in part, in which Diarmuid F. O’Scannlain, Johnnie B. Rawlinson, and Carlos T. Bea, Circuit Judges, joined, and Paul J. Watford, Circuit Judge, joined in part.

      David J. Beauvais (argued), Oakland, California; Jeffrey Friedman (argued) and William R. Kendall, Reno, Nevada, for Plaintiff-Appellant.
    Herbert B. Kaplan (argued), Deputy District Attorney; Richard A. Gammick, District Attorney; Reno, Nevada, for Defendant-Appellee County of Washoe.
    Brian M. Brown (argued) and Kevin A. Pick, Thorndal Armstrong Delk Balken-bush & Eisinger, Reno, Nevada, for Defendants-Appellees Amy Reynolds, Ellen Wilcox, and Linda Kennedy.
    Before: SIDNEY R. THOMAS, Chief Judge, and ALEX KOZINSKI, DIARMUID F. O’SCANNLAIN, RONALD M. GOULD, JOHNNIE B. RAWLINSON, CARLOS T. BEA, MARY H. MURGUIA, MORGAN B. CHRISTEN, PAUL J. WATFORD, ANDREW D. HURWITZ, and MICHELLE T. FRIEDLAND, Circuit Judges.
   Concurrence by Judge CHRISTEN;

Partial Concurrence and Partial Dissent by Judge FRIEDLAND;

Dissent by Judge KOZINSKI

OPINION

MURGUIA, Circuit Judge:

This appeal arises from Washoe County social workers’ warrantless removal of a two-day-old child from the custody of her mother, who had a history of drug abuse and whose two other children had been previously placed in the care of the Washoe County Department of Social Services (“DSS”). The biological father subsequently brought suit under 42 U.S.C. § 1983 against the social workers and the County, claiming the removal of his daughter violated the Fourth and Fourteenth Amendments. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part the district court’s grant of summary judgment in the defendants’ favor, reverse in part; and remand for further proceedings.

BACKGROUND

The following facts are not in dispute. On July 15, 2008, Rachel Whitworth gave birth to a daughter, B.W., via cesarean section at a hospital in Reno, Nevada. B.W. was born five weeks premature. Whitworth admitted to nursing staff that she used methamphetamine throughout her pregnancy, including as recently as two days prior. B.W. tested positive for methamphetamine at birth. At the time, Whitworth was unemployed and living with a friend. She had recently self-admitted to a drug rehabilitation program but left after three days.

Whitworth informed the hospital that she had two other children who were already in the custody of DSS, and volunteered the name of the social worker managing their case, Chondra Ithurralde. After B.W. was born, the hospital contacted Ithurralde, who noted that a permanent plan to terminate Whitworth’s, parental rights for her other children had been approved by a court due to her failure to comply with the DSS case plan, her lack of appropriate housing, and her demonstrated inability to care for her children. Ithurralde also advised placing a protec-, tive hold on B.W. to prevent her from being discharged. The hospital typically honors DSS hold requests as a courtesy, but it is not legally obligated to do so. The hold did not prevent Whitworth from interacting with B.W. while they were in the hospital together. B.W. remained in the room with Whitworth, who failed to feed the infant on schedule and to change her diapers.

The next day, Ithurralde visited the hospital with DSS social worker Ellen Wilcox. Wilcox interviewed Whitworth, and informed her of the hold and that a protective custody hearing had been scheduled for the following day. Until the hearing, DSS planned to place B.W. in the same foster home as her two half-siblings. Wilcox’s supervisor, Linda Kennedy, directed Wilcox to take B.W. when the hospital released her. On July 17,2008, the hospital discharged two-day-old B.W. into DSS’s care. DSS did not attempt to obtain a warrant before assuming custody of B.W.

On July 18, the family division of Nevada’s Second Judicial District Court held a protective custody hearing at which Whit-worth participated by phone from the hospital. The court determined that B.W. should remain in protective custody due-to Whitworth’s ongoing drug use, finding reasonable cause to believe that continuation in Whitworth’s care was contrary to B.W.’s welfare. Following the hearing, Whitworth made no contact with her attorney or DSS. On July 28, 2008, DSS filed a petition alleging that B.W. was a child in need of protection. Whitworth failed to attend any of the subsequent adjudicatory or disposi-tional hearings. DSS attempted to locate Whitworth but was unable to -find her.

Plaintiff-Appellant Jamie Kirkpatrick was present at the hospital when Whit-worth gave birth to B.W., although he did not know at the time whether he was B.W.’s biological father, nor did he sign an affidavit of paternity. Kirkpatrick first learned of DSS’s involvement soon after Wilcox took custody of B.W. on July 17, 2008. He left his contact information with Wilcox for the purpose of scheduling a paternity test to determine whether he was B.W.’s biological father. Kirkpatrick also advised DSS that he was moving to Elko, Nevada. Kirkpatrick did not attend the protective custody hearing on July 18, 2008, but the court ordered a paternity test at his request. The test revealed that Kirkpatrick is indeed B.W.’s biological father.

Kirkpatrick visited B.W. twice in the Fall of 2008, and expressed an interest in reunification at a six-month permanency hearing held in January 2009. After the hearing, Kirkpatrick returned to Reno and began visiting B.W. more frequently. He continued to maintain his visits, employment, and housing over the' next year. In June 2009, B.W.’s foster family determined that they were no longer able to care for B.W. and her half-siblings, and the children were transferred to a different foster home. Kirkpatrick became concerned about B.W.’s care there, and after an incident during which B.W. suffered a large bruise on her forehead Kirkpatrick began advocating more strongly that B.W. should be placed with him. On December 31, 2009, B.W. was reunified with Kirkpatrick.

In October 2009, Kirkpatrick brought suit under 42 U.S.C. § 1983 against Wash-oe County and DSS workers Ellen Wilcox, Linda Kennedy, and Amy Reynolds — another supervisor — for removing B.W. from Whitworth without a warrant. In the operative complaint — the Second Amended Complaint (“SAC”) — Kirkpatrick alleged one cause of action against the social-worker defendants and another cause of action against the County, both on behalf of “Plaintiff,” in the singular. The SAC also stated that “Plaintiff is the father and legal guardian of the minor child, [B.W.],” and requested damages because “[B.W.’s] constitutional right to be with her parents was violated”

The district court granted the defendants’ motion for summary judgment. The district court first determined that Kirkpatrick had asserted only claims on his own behalf under the Fourth and Fourteenth Amendments. Accordingly, the district court found that Kirkpatrick had not demonstrated that the defendants violated his constitutional rights because only B.W. suffered a potential Fourth Amendment violation, and Kirkpatrick had not established parental rights as of the date of the challenged seizure that could give rise to a Fourteenth Amendment claim. Finding that Kirkpatrick had failed to prove a constitutional violation, the court also entered judgment in favor of Washoe County. This appeal followed.

DISCUSSION

Section 1983 provides a remedy for violations of rights secured by the Constitution by persons acting under the color of state law. 42 U.S.C. § 1983. However, the doctrine of qualified immunity shields individual officers “from liability for civil damages insofar as their conduct [did] not violate clearly established ... constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Municipalities and other local governmental units are “persons” subject to suit under § 1983, but to prevail on a claim against a municipal entity for a constitutional violation, a plaintiff must also show that his or her injury is attributable “to official municipal policy of some nature.” Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691, 98 S.Ct 2018, 56 L.Ed.2d 611 (1978).

Kirkpatrick’s claims against the social workers and Washoe County are addressed, in turn, below.

I.

We apply a two-prong analysis in qualified immunity cases, under which summary judgment is improper if, resolving all disputes of fact and credibility in favor of the party asserting the injury, (1) the facts adduced show that the officer’s conduct violated a constitutional right, and (2) that right was “clearly established” at the time of the violation. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Thus, even if Kirkpatrick demonstrates that there is a question of fact as to whether the social workers violated his or B.W.’s constitutional rights, the workers are entitled to qualified immunity unless the law at the time of B.W.’s removal in 2008 clearly established the unconstitutionality of their conduct.

A.

Two provisions of the Constitution protect the parent-child relationship from unwanted interference by the state: the Fourth and the Fourteenth Amendments. First, parents “have a well-elaborated constitutional right to live” with their children that “is an essential liberty interest pror tected by the Fourteenth Amendment’s guarantee that parents and children will not be separated by the state without due process of law except in an emergency.” Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 1999); accord Mabe v. San Bernardino Cty., Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir. 2001); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1997). Second, the Fourth Amendment safeguards children’s “right ... to be secure in their persons ,.. against unreasonable ,.. seizures” without a warrant, U.S. Const, amend. IV, although we similarly recognize an exception to the warrant requirement where the exigencies of the situation are so compelling that a warrantless seizure is objectively reasonable under the Fourth Amendment, see Rogers v. County of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007). Therefore, we have said that the tests under the Fourth and Fourteenth Amendment for when an official may remove a child from parental custody without a warrant are equivalent. Wallis, 202 F.3d at 1137 n.8.

i.

We consider first Kirkpatrick’s Fourteenth Amendment claim against the DSS workers. The parental right secured by the Fourteenth Amendment “is not reserved for parents with full legal and physical custody.” James v. Rowlands, 606 F.3d 646, 651 (9th Cir. 2010); see also Burke v. Cty. of Alameda, 586 F.3d 725, 733 (9th Cir. 2009) (holding that non-custodial parents have a reduced liberty interest in the companionship, care, custody, and management of their children). At the same time, however, “[p]arental rights do not spring full-blown from the biological connection between parent and child.” Lehr v. Robertson, 463 U.S. 248, 260, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (quoting Caban v. Mohammed, 441 U.S. 380, 397, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979) (Stewart, J., dissenting)) (emphasis omitted). Judicially enforceable interests arising under the Fourteenth Amendment “require relationships more enduring,” which reflect some assumption “of parental responsibility.” Id. (internal quotation marks omitted). It is “[w]hen an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child,” that “his interest in personal contact with his child acquires substantial protection under the due process clause.” Id. at 261, 103 S.Ct. 2985 (internal quotation marks and alteration omitted). Until then, a person -with only potential parental rights enjoys a liberty interest in the companionship, care, and custody of his children that is “unambiguously lesser in magnitude.” James, 606 F.3d at 651 (quoting Brittain v. Hansen, 451 F.3d 982, 992 (9th Cir. 2006)).

When the seizure of B.W. occurred, Kirkpatrick’s due process rights. concerning B.W. were negligible. Whitworth informed Kirkpatrick that he might be the father just prior to giving birth to B.W., but told him that there was “a possibility it could be someone else’s as well.” Kirkpatrick acknowledged that he “did not know” whether he was the father and that there were “possibly other candidates.” At the time, Kirkpatrick lived and worked several hours away in Elko, and although he was present for B.W.’s birth, he returned to Elko immediately thereafter. He did not attend the initial protective custody hearing held two days after B.W. was born. Kirkpatrick remained unsure whether he was B.W.’s biological father until the results of the court-ordered genetic test confirmed his paternity. Before then, Kirkpatrick had minimal contact with Whitworth or B.W., and no responsibility — financial or otherwise — for either’s care. Consequently, Kirkpatrick was not a parent to B.W. in her first few days of life in the constitutional sense, and his substantive rights were not violated when the social workers placed her in protective custody without a warrant.

ii.

This brings us to B.W.’s Fourth Amendment claim. The district court construed the SAC as stating claims only on behalf of Kirkpatrick. We disagree. As noted above, the SAC alleged that “[B.W.’s] constitutional right to be with her parents was violated.” Later, Kirkpatrick also alleged that “Defendants ... acted under color of state law to deprive Plaintiff, as described herein, of constitutionally protected rights, including, but not limited to: ..(d) the right to be free from unreasonable searches and seizures; ... [and] (f) the right to be with her parents.” Moreover, the defendants moved for summary judgment on the merits of B.W.’s Fourth Amendment claim and have thus not been prejudiced by any linguistic imprecision on Kirkpatrick’s part in drafting the SAC. Accordingly, we conclude that Kirkpatrick sufficiently asserted a violation of B.W.’s Fourth Amendment rights to apprise the defendants that Kirkpatrick sought to adjudicate her claims in addition to his own. The district court erred in granting summary judgment to the defendants on the grounds that the SAC did not provide adequate notice of B.W.’s Fourth Amendment claim, and we address this theory of relief and the concomitant issue of qualified immunity for the first time on appeal. See Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998) (“We may affirm the district court’s judgment on any ground finding support in the record, even if it relied on the wrong ground or reasoning.”).

Under the Fourth Amendment, government officials are ordinarily required to obtain prior judicial authorization before removing a child from the custody of her parent. However, officials may seize a child without a warrant “if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.” Wallis, 202 F.3d at 1138.

In Rogers v. County, of San Joaquin, we clarified that seizing a child without a warrant is excusable only when officials “have reasonable cause to believe that the child is likely to experience serious bodily harm in the time that would be required to obtain a warrant.” 487 F.3d at 1295 (citing Mabe, 237 F.3d at 1108) (emphasis added). Rogers concerned a social worker’s removal of two children — ages three and five— from their home eighteen days after receiving an anonymous report that the children displayed signs of severe neglect. See Rogers, 487 F.3d at 1291. The report alleged that the children were not toilet-trained, that the parents locked the children in their rooms at night, that the children were not receiving medical or dental care, that the home was dirty and maggot-infested, and that the children had access to unsecured guns. Id. Child Protective Services (“CPS”) classified the case as a non-emergency, one that only necessitated a response within ten days. Id. But after eventually observing the children in the home and talking to their parents, a CPS worker immediately removed the children without seeking a warrant. Id. at 1292-93.

We began in Rogers from the settled premise that social workers violate the Fourth Amendment by removing children absent a warrant or exigent circumstances. Id. at 1294. Under that standard, we found that none of the allegations- of neglect in Rogers were sufficiently serious to justify the children’s removal. See id. at 1294-95. Bottle rot, malnourishment, and disorderly home conditions' do not present an imminent risk of serious bodily harm. Id. at 1295. Furthermore, the “official’s prior willingness to leave the children in their home militate[d] against a finding of exigency.” Id. We observed that “[sjerious allegations of abuse that have been investigated and corroborated usually give rise to a ‘reasonable inference of imminent danger sufficient to justify taking children into temporary custody’ if they might again be beaten or molested during the time it would take to get a warrant,” but concluded that the chance of grave harm befalling the Rogerses’ children during the “few hours” the social worker believed it would have taken to request a warrant was very low — so low as to “not establish reasonable cause to believe that the children were in immediate danger.” Id. at 1294-95.

Rogers thus makes clear that when social workers investigating suspected abuse or neglect can reasonably obtain a warrant without significantly risking serious bodily harm to the child in question, the Fourth Amendment mandates that they do so. This conclusion finds support in longstanding Fourth Amendment precedent. See, e.g., Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (finding “no exigent circumstances” supporting a warrantless search because “[tjhere was no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant”); Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (“[A] warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant.”); United States v. Echegoyen, 799 F.2d 1271, 1279 n.5 (9th Cir. 1986) (“Exigent circumstances necessarily imply that there .is insufficient time to get a warrant.”); United States v. Good, 780 F.2d 773, 775 (9th Cir. 1986) (“Exigent circumstances alone, however, are insufficient as the government must also show that a warrant could not have been obtained in time.”). This rule is the logical corollary to the Constitution’s proscription of warrantless seizures absent exigent circumstances; if the state had time to obtain a warrant, it stands, to reason that there can be no “exigent circumstance.”

Accordingly, under Rogers, the social workers here lacked cause to forgo a warrant if they had adequate time to pursue one through the ordinary judicial process without risking B.W.’s well-being. We hold that Kirkpatrick has raised a genuine dispute , as to whether B.W. was in such imminent danger of serious bodily injury that no warrant was necessary. Whit-worth’s methamphetamine abuse did not pose a direct threat to B.W. while both mother and daughter remained in the hospital, where nurses were supervising all of B.W.’s medical needs. Nor did Whitworth’s unemployment or lack of a stable place to live justify the social workers’ actions. “[Rjeliance on factors so closely related to economic status as a justification for removal would border on the unconstitutional.” Rogers, 487 F.3d at 1296. In addition, although B.W.’s age may have rendered her more vulnerable to the harms of ne-gleet if it were to occur, the undisputed evidence belies any contention that B.W. was in jeopardy of neglect in the maternity ward of the hospital, which Kennedy — a DSS supervisor — considered to be a safe environment. Wilcox, the social worker in charge of B.W.’s case, similarly confirmed that there was no danger to B.W. “[between the time the hold was put on the child in the hospital and the time just before [she] left the hospital”

According to Kennedy’s deposition testimony, the only potential “imminent risk” facing B.W. at the time that Wilcox removed her from Whitworth’s custody was that B.W. “could die if she goes home with a mother who’s high on drugs and forgets to feed her.” But Whitworth was recovering from a cesarean section and had demonstrated no resistance to the social workers’ intervention: Whitworth even volunteered her case worker’s contact information to hospital staff and remained in the hospital at the time of the protective custody hearing the day after B.W.’s removal. At DSS’s request, the hospital also put a hold on B.W. Accordingly, the unlikely possibility that Whitworth might unexpectedly abscond with B.W. did not justify dispensing with the warrant requirement. See Rogers, 487 F.3d at 1295 (“So remote a risk does not establish reasonable cause to believe that the children were in immediate danger.”). A rational jury presented with this evidence could find that B.W, was under no immediate threat of serious physical injury, and, therefore, that the social workers violated her Fourth Amendment rights by removing her from her mother under non-exigent circumstances.

B.

We therefore turn to the second prong of the qualified immunity analysis, which requires Kirkpatrick and B.W. to demonstrate that this right was “clearly established.” See Kennedy v. City of Ridgefield, 439 F.3d 1055, 1065 (9th Cir. 2006).

“To determine whether a right is clearly established, the reviewing court must consider whether a reasonable [official] would recognize that his or her conduct violate[d] that right under the circumstances faced, and in light of the law that existed at that time.” Id. While “[s]pecific binding precedent is not required to show that a right is clearly established,” Calabretta v. Floyd, 189 F.3d 808, 813 (9th Cir. 1999) (citation omitted), “existing precedent must have placed the statutory or constitutional question beyond debate,” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). “Our task is to determine whether the preexisting law provided the defendants with ‘fair warning’ that their conduct was unlawful.” Kennedy, 439 F.3d at 1065 (quoting Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1137 (9th Cir. 2003)). “This exacting standard gives government officials breathing room to make reasonable but mistaken judgments by protecting] all but, the plainly incompetent or those who knowingly violate the law.” City & Cty. of San Francisco v. Sheehan, —- U.S. -, 135 S.Ct. 1765, 1774, 191 L.Ed.2d 856 (2015) (internal quotation marks omitted).

In July 2008 it was well-settled that a child could not be removed without prior judicial authorization absent evidence that the child was in imminent danger of serious bodily injury. See Rogers, 487 F.3d at 1297 (recognizing that the law has been clearly established in the Ninth Circuit since Mabe, if not earlier); see also Mabe, 237 F.3d at 1106; Wallis, 202 F.3d at 1138; Ram, 118 F.3d at 1310. But the Supreme Court has “repeatedly told courts — and the Ninth Circuit in particular — not to define clearly established law at a high level of generality.” al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074 (citation omitted). “Qualified immunity is no immunity at all if ‘clearly established’ law can simply be defined as the right to be free from unreasonable searches and seizures.” Sheehan, 135 S.Ct. at 1776.

In 2008, it was not beyond debate that the confluence of factors set forth above would not support a finding of exigency. No Supreme Court precedent defines when a warrant is required to seize a child under exigent circumstances. And although the Supreme Court has assumed that circuit precedent can be a dispositive source of clearly established law, see id.; Carroll v. Carman, — U.S. -, 135 S.Ct. 348, 350, 190 L.Ed.2d 311 (2014); Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2094, 182 L.Ed.2d 985 (2012), none of the cases from this court explain when removing an infant from a parent’s custody at a hospital to prevent neglect, without a warrant, crosses the line of reasonableness and violates the Fourth Amendment. See Rogers, 487 F.3d at 1291-93 (finding that malnourishment and bottle rot were not “imminent dangers” to two toddlers); Mabe, 237 F.3d at 1108 (denying summary judgment where social worker seized a 14-year-old girl who accused her stepfather of sexual abuse without a warrant); Wallis, 202 F.3d at 1138 (holding that there was a genuine factual dispute over the “imminency” of the danger tó a child based on allegations that the child’s father intended to ritually sacrifice him to Satan the following week). In fact, very few cases from any circuit have addressed what constitutes exigent circumstances in a case that remotely resembles this one. Cf. Kia P. v. McIntyre, 235 F.3d 749, 761-63 (2d Cir. 2000) (holding that a hospital’s retention of a newborn who tested positive for methadone at birth was reasonable under the Fourth Amendment). No matter how carefully a reasonable social worker had read our case law, she could not have known that seizing B.W. would violate federal constitutional law. Without that fair notice,' 'the social workers in this case are entitled to qualified immunity.

II.

Our inquiry, however, is not over. Summary judgment on B.W.’s Fourth Amendment claim against Washoe County is still inappropriate if we can trace the social workers’ unconstitutional removal to a systemic failure to train DSS officers to obtain a warrant before seizing a child to investigate abuse or neglect.

To prevail on a claim against a municipal entity for a constitutional violation, a plaintiff must show that an official’s action that caused the plaintiffs injury was pursuant “to official municipal policy of some nature.” Monell, 436 U.S. at 691, 98 S.Ct. 2018. To do so, a plaintiff must go beyond the respondeat superior theory of liability and demonstrate that the alleged constitutional deprivation was the product of.-a policy or custom of the local governmental unit. Connick v. Thompson, 563 U.S. 51, 60, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011). Under this standard, a municipal defendant can be held liable because of a failure to properly train its employees only if the failure reflects a “conscious” choice by the government. Bd. of the Cty. Comm’rs v. Brown, 520 U.S. 397, 407, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). In other words, the government’s omission must amount to a “policy” of deliberate indifference to constitutional rights. Harris, 489 U.S. at 389, 109 S.Ct. 1197. A plaintiff can satisfy this requirement by showing that “the need for more or different training is sp obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers ... can reasonably be said to have been deliberately indifferent to the need.” Id. at 390, 109 S.Ct. 1197.

“ ‘[Deliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Connick, 563 U.S. at 61, 131 S.Ct. 1350 (quoting Brown, 520 U.S. at 410, 117 S.Ct. 1382). Satisfying this standard requires proof that the municipality had “actual or constructive notice that a particular omission in their training program” wall “cause[] [municipal] employees to violate citizens’ constitutional rights.” Id. (quoting Brown, 520 U.S. at 410, 117 S.Ct. 1382). In turn, to demonstrate that the municipality was on notice of a constitutionally significant gap in its training, it is “ordinarily necessary” for a plaintiff to demonstrate a “pattern of similar constitutional violations by untrained employees.” Id. at 62, 131 S.Ct. 1350.

Contrary to the dissent’s suggestion, evidence of a pattern of constitutional violations is not always required to succeed on a Monell claim. See Dissent Op. at 801-02, 802. The Supreme Court has reaffirmed that “in a narrow range of circumstances” a particular “showing of ‘obviousness’ can substitute for the pattern of violations ordinarily necessary to establish municipal culpability.” Connick, 563 U.S. at 63, 131 S.Ct. 1350. Such a situation is “rare” — “the unconstitutional consequences of failing to train” must be “patently obvious” and the violation of a protected right must be a “highly predictable consequence” of the decision not to train. Id. For example, the Supreme Court has opined that a single incident of excessive force, coupled with evidence that a city had neglected to train its armed officers on the constitutional limitations on using force against fleeing felons, might establish that the city manifested deliberate indifference in training law enforcement. See Harris, 489 U.S. at 390 n.10, 109 S.Ct. 1197.

A.

In support of his claim that Washoe County maintained an unconstitutional practice of seizing children without a warrant in non-exigent circumstances, Kirkpatrick adduced testimony from Wilcox and Kennedy that they were wholly unfamiliar with the process for obtaining a warrant before taking custody of a child. Wilcox started working at DSS in June of 2007, a year before she handled B.W.’s case. Yet, Wilcox testified that she never received training on how to obtain a warrant during the two years that she was employed by Washoe County, or that she was instructed that social workers must obtain a warrant in non-emergency situations. And, although Wilcox stated that she was trained on “imminent” danger, she could not provide detail on what she had been taught. Under questioning, Wilcox admitted that a hypothetical child in B.W.’s circumstances was not in imminent danger:

Q: But [a child is] not going tó be returned to his father for four days. Is that imminent danger?
A: No.

Wilcox also testified that she would likely remove such a child anyway, and without a warrant:

Q: So what do you do for that child when the mother insists on returning him to a dangerous situation and the father insists on getting him in that dangerous situation, no questions asked, you have already determined and everybody agrees it’s a danger?
A: Then we remove the child.
Q: You don’t get a warrant?
A: No.
Q: The child you admitted is not in imminent danger.
A: No. We don’t get a warrant.
Q: But would you remove the child even though the danger may be three or four days away?
A: Yes.

Wilcox attributed her answer to Washoe County’s unofficial custom or protocol:

Q: Let me ask you an obvious question. If the child wasn’t in danger in the hospital and was there for several days, why didn’t you seek a warrant before you removed the child from mom? Is it because you didn’t know you had to? You weren’t trained on that?
A: It wasn’t the protocol of Washoe County. No one told me to get a warrant and they didn’t train me how to go about getting a warrant.
Q: Or did they even tell you you could get a warrant?
A: No. They didn’t.

Kennedy — who supervised between five and seven social workers, including Wilcox — confirmed that it was “not in [DSS’s] general practice” to obtain a warrant before removing a child:

Q: Back in July of ’08, did you understand that there was a distinction between removing a child with a court warrant and without a court warrant? A: No. I don’t believe at that point we ever had court warrants....
Q: So your best recollection is that as of July of ’08, Washoe County Child Protective Services did not obtain court warrants prior to the removal of a child in any circumstances?
A: I wouldn’t say in no circumstances. But not in our general practice. No. There could be — we had asked for warrants sometimes when there was like a suspected kidnapping or something like that where we had some prior knowledge, let’s say. But generally speaking, we did not. I don’t recall ever getting a warrant to go out with one of my investigators to go out and pick up a child unless it was a special circumstance.

She elaborated that in cases like B.W.’s, she might have obtained ⅛ warrant' “in a rare instance,” but she did not recall ever doing so:

Q: You mentioned that you have a recollection of obtaining — of seeking warrants in situations like kidnappings and things like that. ... What I’m more interested in is the case where you’ve gotten a complaint or a report of some sort of child neglect that triggers an investigation which leads to determining that a child needs to be removed. Okay? That’s the case I’m more interested in. Under those kind of circumstances, do you have any knowledge of ever obtaining a warrant to remove a child under those type of general circumstances?
A: I do not recollect doing that. No.
Q: So it would be safe to say that in your career with Washoe County Child Protective Services you’re not aware of ever obtaining a warrant to remove a child from a parent?
A: I .don’t recollect ■ ever doing that. However, that is not to say that it could have occurred in a rare instance that I’m not just recalling. It was not a general practice, ever to get a warrant.

While discussing the process of removing a child from her parent without a warrant, Kennedy noted that “Washoe" County has all kinds of policies and procedures for everything,” and that the “policy[] was never to get warrants” when removing children:

Q: You stated when a baby or a child is kidnapped that would be a situation where you would get a warrant.
A:. Generally speaking, yes. That happens very rarely.
Q: A warrant to remove the child from the kidnapper or a warrant to arrest the kidnapper?
A: -A warrant to remove the child. We have nothing to do arresting people.
Q: So if it’s a kidnapper you get a warrant to remove it but if it’s a parent you don’t?
A: That’s our policy, was never to get warrants when we remove children when I worked as a supervisor,
Q: There was a policy to, not get warrants or there was no policy?
A: There was no policy related to warrants.

B.

The County does not dispute that, at the time of B.W.’s seizure, it had no policy or procedures for obtaining warrants' before removing children from parental custody, or for training its social workers to recognize that a warrant may be required. The lack of a formal policy is not necessarily unconstitutional if DSS removes children only in cases in which the removal is justified by exigent circumstances. Cf. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (finding evidence that a city had indemnified an officer in an excessive force case was not facially unconstitutional and thus insufficient for municipal liability). Nor does a single Unconstitutional incident, without more, establish that a municipality failed to provide proper training. City of Oklahoma City v. Tuttle, 471 U.S. 808, 821-24, 105 S.Ct. 2427, 86 L.Ed.2d 791 (1986); cf. Miranda v. City of Cornelius, 429 F.Sd 858, 869 (9th Cir. 2006) (holding that the city incurred no liability under § 1983 based solely on a constitutional violation sustained by the plaintiff where the violation occurred in contravention of the city’s official policy). However, the evidence that the social workers violated B.W-⅛ Fourth Amendment rights, in conjunction with Wilcox and Kennedy’s testimony that the County had no policy of obtaining warrants before removing children from parental custody and that it was social workers’ regular practice to remove children regardless of the risk of imminent bodily harm, raises more than a spectre of deliberate indifference by, Washoe County. This is therefore a case in which the municipality’s “inadequacy [is] so likely to result in the violation of constitutional rights” that a jury could reasonably, find § 1983 liability without needing a pattern of violations to find the County culpable. See Harris, 489 U.S. at 390, 109 S.Ct. 1197 (holding that the city could be held liable for failing to train police officers in determining whether detainees needed medical care because of the likelihood that, absent proper training, the officers would default on their constitutional obligations). Given the work performed by DSS social workers, the need for DSS to train its employees on the constitutional limitations of separating parents and children is “so obvious” that its failure to do so is “properly .., characterized as ‘deliberate indifference’ to [the] constitutional rights” of Washoe County families. See id. at 390 & n.10, 109 S.Ct, 1197. Accordingly, a question of material fact exists regarding whether Washoe County maintained an unconstitutional, unofficial policy. Summary judgment on this claim is inappropriate.

There is also a question of fact for the jury as to whether these customs and practices had a “direct causal link” to the deprivation of B.W.’s Fourth Amendment rights. See id. at 389, 109 S.Ct. 1197 (“[A] municipality can be liable under § 1983 only where its policies are the ‘moving force [behind] the constitutional violation,’ ” (quoting Monell, 436 U.S. at 694, 98 S.Ct. 2018)). A reasonable jury could conclude that DSS’s policy of conducting war-rantless seizures of children in non-exigent circumstances was the moving force behind the warrantless removal of B.W. from Whitworth’s custody. See Wallis, 202 F.3d at 1143 (concluding that material issues of fact precluded summary judgment regarding the existence of a municipal custom or practice of taking children from their homes without adequate safeguards based on testimony from three detectives who had seized a child from his home). Consequently, the County is not entitled to summary judgment.

CONCLUSION

For the foregoing reasons, we affirm the district court’s grant of summary judgment to the defendants on Kirkpatrick’s claim that they violated his Fourteenth Amendment rights by seizing B.W. without due process because he had no enforceable parental rights at the time of her removal. We also affirm the district court’s grant of summary judgment to the social workers on B.W.’s Fourth Amendment claim; although the social workers should have obtained a warrant, their constitutional obligation to do so was not clearly, established, and they, .are therefore entitled to qualified immunity..on this claim. However, we reverse summary judgment and remand on B.W.’s claim against Washoe County because Kirkpatrick has presented sufficient evidence to raise a genuine issue of material fact regarding whether the County maintained ,a policy of unconstitutionally seizing children in non-exigent circumstances.,

AFFIRMED in part; REVERSED in part .and REMANDED. Each party shall bear their own costs on appeal.

CHRISTEN,. Circuit Judge,

with whom Circuit Judge HURWITZ joins, concurring:

I agree with the results reached by the majority: Kirkpatrick’s claim was correctly dismissed; a reasonable jury could have found the warrantless seizure of B.W. vio-láted her constitutional rights'but the individual social workers were entitled to qualified' immunity; and the County was not entitled to summary judgment on the claim that its policies violated B.W.’s Fourth Amendment rights. I write separately to address, briefly, what the court describes as “the unlikely possibility that Whitworth' might unexpectedly abscond with B.W.” Maj. Op. at 792.

In Rogers v. County of San Joaquin, we unequivocally explained that social workers áre required to obtain a warrant before seizing a child unless there is “reasonable cause to believe that the child is likely to experience serious bodily harm in the time that would be required to obtain a warrant.” 487 F.3d 1288, 1294 (9th Cir. 2007). Here, the social workers’ testimony makes plain that they gave no thought to obtaining a warrant, apparently because the County made no effort to train its social workers on this requirement. The dissent argues that B.W.’s constitutional rights were not violated because the County correctly trained its workers to remove children only in exigent circumstances. See Dissent Op. at 801-02. But the record tells us nothing about how long it might have taken to obtain a warrant and almost nothing about how likely it was that Whitworth would leave the hospital before a warrant could be obtained. For example, we cannot tell whether the social workers’ conversations with Whitworth caused concern that she might leave. There were unresolved questions of fact at the summary judgment stage, but it was known that the informal “hold” DSS requested did not actually prevent Whitworth from leaving the hospital with B.W., or giving another adult permission to remove the baby.

If the disputed facts are construed in the light most favorable to B.W., it must be assumed that it would have been possible for the social workers to obtain a warrant without delay. On the other hand, it only takes minutes to walk out of a hospital. Even if the risk that Whitworth would leave with B.W. was small, I cannot set aside the possibility that Whitworth might have done so simply because she was recovering from a cesarean section. See Maj, Op. at 791-92. Social workers are entitled to rely on their experience, and at least one social worker testified that she had seen patients recovering from cesarean sections leave the hospital unexpectedly. Compounding the problem, Whitworth had a poor track record of staying in touch with the social workers and they knew they had no way to reach her if she left the hospital.

Boiled down, it seems to me that the individual social workers correctly determined that this newborn faced a catastrophic risk if her mother removed her from the hospital, (she “could die if she goes home with a mother who’s high on drugs and forgets to feed her”), and it would only- have taken a few minutes for someone to leave with B.W. The social workers’ error, if any, was in pegging the likelihood that B.W.’s mother would leave with her. The social workers may have jumped the gun, but how much risk were they inquired to tolerate with the life of a newborn baby at stake? I conclude the social workers reasonably refused to gamble that Whitworth would make the sound decision to leave B.W. in the hospital. Thus, the applicable standards entitle them to qualified immunity.

FRIEDLAND, Circuit Judge,

with whom THOMAS, Chief Judge, joins, concurring in part and dissenting in part:

I join the majority’s opinion as to municipal liability but dissent from its affir-mance of summary judgment on the claim against the individual defendants. An official is liable, and not entitled to qualified immunity, if her “conduct violated a clearly established constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The constitutional rule that B.W. could not be seized without a warrant absent imminent danger was clearly established, and it was equally clear that there was no imminent danger to B.W. On the Fourth Amendment claim against the social workers, I would therefore hold that summary judgment to Defendants should be reversed and Plaintiffs cross-motion for summary judgment should be granted.

The majority correctly recognizes that the rule of law at issue here was clearly established at the time: “[A] child could not be removed without prior judicial authorization absent evidence that the child was in imminent danger of serious bodily injury.” Maj. Op. at 792 (citing Rogers v. Cty. of San Joaquin, 487 F.3d 1288, 1297 (9th Cir. 2007)); see also Mate v. San Bernardino Cty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir. 2001) (“Government officials are required to obtain prior judicial authorization before intruding on a parent’s custody of her child unless they possess information at the time of the seizure that establishes ‘reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.’” (quoting Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000))). Nevertheless, the majority holds that the social workers are entitled to qualified immunity because it was debatable whether B.W. was in imminent danger. I disagree.

The only conclusion to be drawn from the very record evidence the majority discusses is that no reasonable social worker could have believed B.W. was in imminent danger of serious bodily injury. See Saucier v. Katz, 533 U.S. 194, 207, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (“Fourth Amendment issues [] are evaluated for objective reasonableness based upon the information the officers had when the conduct occurred.”). As the majority correctly points out, Whitworth’s methamphetamine abuse could not have reasonably posed a threat to B.W. while both were in the hospital because, even though hospital staff noted that Whitworth was apparently not taking adequate care of B.W., nurses were attending to the newborn’s needs. Maj. Op. at 791-92. Nor was there any reasonable risk that Whitworth would abscond with B.W. In the majority’s own words, “Whitworth was recovering from a cesarean section, and had demonstrated no prior resistance to the social workers’ intervention!;:] ... [S]he remained in the hospital’at the time of the protective custody hearing the day after B.W.’s removal [, and] the hospital [had] also put a hold on B.W.” Maj. Op. at 791-92. “Accordingly,” the majority correctly concludes, there was only an “unlikely possibility that Whit-worth might unexpectedly abscond with B.W.” Id. at 792. “So remote a risk does not establish reasonable cause to believe that the child[] [was] in immediate danger.” Rogers, 487 F.3d at 1295.

Indeed, as the majority correctly recognizes, the social workers expressly admitted that they did not believe B.W. was in imminent danger at the time they seized her. See Maj. Op. at 791-92 (describing Defendant Kennedy’s testimony that the hospital’s maternity ward is a safe environment and Defendant Wilcox’s testimony that there was no danger to B.W. while the hospital’s hold was in place). I am aware of no contrary testimony that would' create a triable issue as to whether B.W. was in imminent danger. On this record, it is thus clear that B.W. was not in imminent danger. The social workers, therefore violated B.W.’s clearly established rights in failing to obtain a warrant before seizing her.

Although it is true that no binding authority has addressed this exact factual scenario, such specificity is not required for a constitutional obligation to be “clearly established.” See Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (stating that for a constitutional right to be clearly established, the “very action in question” need not have “previously been held unlawful,” as long as “in the light of pre-existing law the unlawfulness [is] apparent” (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987))). It was clearly established that a child could not be seized without a warrant absent imminent danger, and the inescapable conclusion to be drawn from this record is that no objective social worker could have believed— and indeed, these social workers did -not believe — that B.W. was in imminent danger. It follows, therefore, that the social workers violated B.W.’s clearly established constitutional rights.

In my view, qualified immunity should be denied and summary judgment entered for Plaintiff on the' Fourth Amendment claim. I dissent from the majority’s contrary conclusion.

KOZINSKI, Circuit Judge,

with whom Circuit Judges O’SCANNLAIN, RAWLINSON and BEA join, and Circuit Judge WATFORD joins with respect to Part 2, dissenting in part:

For the reasons explained in my panel dissent, ’ I agree that the social workers here are entitled to qualified immunity and join that part of the opinion. But I cannot agree that the social workers committed a constitutional violation, nor that the County can be liable for a policy of unconstitutional conduct under Monell. I therefore dissent from those portions of the opinion.

1. There Was No Constitutional Violation

The majority acknowledges that Whit-worth was a drug addict who used meth throughout her pregnancy — transferring it to her baby — and had no job or stable living situation. Op. at 786-87, 791. And my colleagues recognize that “B.W.’s age may have rendered her more vulnerable to the harms of neglect if it were to occur.” Id. at 791-92. They even quote Kennedy testifying that B.W. “could die if she goes home with a mother who’s high on drugs and forgets to feed her.” Id. at 792.

The majority dismisses this exigency because Whitworth remained in the hospital recovering from her c-section “and had demonstrated no resistance to the social workers’ intervention: Whitworth even volunteered her case worker’s contact information to hospital staff.” Id. I disagree with both prongs of the majority’s reasoning.

That Whitworth was recovering from surgery certainly doesn’t mean she couldn’t leave the' hospital on short notice. The social workers here testified that moms like Whitworth “don’t always stay for a few days at the hospital, sometimes they just leave” even after a c-section, as Judge Christen notes. See Christen, J., concurring, at 798. It may have been foolish for Whitworth to do so, but someone who abuses her body and baby by using meth throughout her pregnancy can hardly be counted on to calculate danger rationally or avoid putting herself and her baby at risk.

We may evaluate the risks differently with the benefit of hindsight, but that is not the test. The test is whether well-informed social workers on the scene could reasonably believe that leaving the baby in the mother’s control while they sought a warrant would put the baby at some risk of serious bodily injury or death. See Ryburn v. Huff, 565 U.S. 469, 132 S.Ct. 987, 992, 181 L.Ed.2d 966 (2012) (per curiam); Ashcroft v. al-Kidd, 563 U.S. 731, 735-36, 743-44, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). I don’t read the majority as saying that there was no risk of harm to the baby, only that the risk was small. As Judge Christen aptly notes, “the social workers reasonably refused to gamble that Whit-worth would make the sound decision to leave B.W. in the hospital.” Christen, J., concurring, at 798. We are not entitled to second-guess that judgment.

That the mother was cooperative was no guarantee that she wouldn’t change her mind. Meth addicts can be volatile. Because “it only takes minutes to walk out of a hospital,” id. at 798, and put a baby’s life in danger, any time the social workers took to get a warrant would be too much. My colleagues in the majority are willing to risk a baby’s life on the presumed rational behavior of a woman who treats her own health and that of her baby with contempt. I can’t agree that the social workers were unreasonable in taking a different view. Indeed, they reasonably could have taken the mother’s cooperation as consent, which also would have obviated the need for a warrant.

The test under the Fourth Amendment is reasonableness. The Supreme Court has “instructed that reasonableness must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Ryburn, 132 S.Ct. at 992 (internal quotation marks and citation omitted). “Judged from the proper perspective of a reasonable officer forced to make a split-second decision in response to a rapidly unfolding, chain of events,” id., the social workers here acted reasonably in the difficult circumstances presented to them. Had they left to get a warrant, and had the mother departed the hospital with the baby, they would have had the baby’s life on their conscience. I cannot blame them for refusing to take that small — but far from trivial — risk.

2. The County Is Not Liable Under Monell

The majority compounds its error by holding that the County can be liable for B.W.’s supposedly unconstitutional removal: “Summary judgment on B.W.’s Fourth Amendment claim against Washoe County is still inappropriate if we can trace the social workers’ unconstitutional-removal to a systemic failure -to-train' DSS officers to obtain a warrant before seizing a child to investigate abuse or neglect.” Op. at 793. But the majority never points to any evidence of a systemic problem. The only evidence we have is the experience of the two social workers who were named as defendants in this case. There is no evidence that the training these social workers received was typical. The plaintiffs presented no evidence at all as to the training and guidance given to the rest of the County’s social workers, or even how many of them there were. The experience of these two individuals could be atypical; two data points aren’t enough to establish a pattern or policy.

The majority frames this case as one where the unconstitutional consequences of failing to train were so “obvious” that the violation of a right was “highly predictable.” Id. at 794 (quoting Connick v. Thompson, 563 U.S. 51, 64, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011)); see also id. at 796-97. But the social workers testified that the County trained them on the law and instructed them to remove a child only if there were an imminent risk of harm. So there was training and' there was a standard: “imminent risk to the well being of that child” or “imminent danger.” According to the evidence, this meant “a child’s life was in danger”; that a “child would suffer a serious injury or even possibly death if something wasn’t done.” That’s the constitutional standard: If there are exigent circumstances, no warrant is required. It’s not “highly predictable” that the County’s training would lead to unconstitutional results.

The majority recognizes that “[t]he lack of a formal policy is not necessarily unconstitutional if DSS removes children only in cases in which the removal is justified by exigent circumstances.” Id. at 796. The majority gets around that conclusion by finding “it was social workers’ regular practice to remove children regardless of the risk of imminent bodily harm.” Id. As is often the case with appellate fact-finding, this is a figment.

The majority points to no evidence of a “regular practice” or even a single other instance of children being removed when there was no imminent risk of harm. Instead, they rely on Wilcox’s testimony that “she was trained on ‘imminent’ danger,” but couldn’t remember the specifics of that training at a deposition three years later. Id. at 794-96, 796 n.3. So what? The County is hardly at fault because employees are unable to give details of their training sessions years later. The majority also uses a deposition hypothetical — whether Wilcox would get a warrant to remove a child who will return in four days to a molesting father — as proof that the County’s training was insufficient because it didn’t teach the social workers to get a warrant. Id. The hypothetical is totally inapposite here, where even a few minutes would be enough for Whitworth to leave the hospital with B.W. and put her life at risk. See supra p. 800-01. The County cannot be held liable under Monell based on what an employee says she would have done in a non-analogous, hypothetical situation.

But even if the majority’s illusory finding were supported by the record, it wouldn’t be enough. “A pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Connick, 563 U.S. at 62, 131 S.Ct. 1350 (emphasis added) (citation omitted). Here, there is no evidence that the County unconstitutionally removed any other child because it failed to train social workers on how to get warrants. The majority derives a pattern from a single data point.

The majority gets it almost right. I dissent because, when life or death are concerned, “almost right” isn’t.

      . The Court refers to B.W., a minor, only by her initials to protect her privacy.

      . "Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” County of Sacramento v. Lewis, 523 U.S, 833, 842, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), Therefore, because the Fourth Amendment provides a bulwark against unreasonable seizures, children who have been “seized” must pursue their claims under the purview of that specific constitutional provision.

      . The dissent notes that both Kennedy and Wilcox testified that they were trained to remove a child only in the presence of imminent danger, which indicates that the County trains its social workers pursuant to a lawful policy for removing children from parental custody. See Dissent Op. at 801-02. But Wilcox also testified that she could not recall her “imminent” danger training and admitted that, despite any such training, she would likely effectuate a warrantless removal of a child who was not in imminent danger. Further, Wilcox testified that she was never trained on how to obtain a warrant and Kennedy confirmed that it. was generally not the County’s protocol to obtain a warrant prior to removing a child. This testimony is sufficient to raise a genuine issue of material fact-as to whether the County maintained a policy of unconstitutionally seizing children in non-exigent circumstances.

      . Plaintiff filed a cross-motion for summary judgment and has argued on appeal that it should have been granted.

      . Whitworth's unemployment and lack of stable housing could not justify the warrantless seizure because, again as the majority aptly states, "[rjeliance on factors so closely related to economic status as a justification for removal would border on the unconstitutional.” Maj. Op. at 791 (quoting Rogers, 487 F.3d at 1296). Nor did Whitworth's unemployment and a lack of stable housing pose an imminent danger to B.W. while both were in the hospital.


source: Caselaw Access Project

author: RESTANI, Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Doroteo ROCHA-ALVARADO, Defendant-Appellant.
    No. 15-10517
    United States Court of Appeals, Ninth Circuit.
    Submitted October 21, 2016  San Francisco, California
    Filed December 12, 2016

      Florence M. Bruemmer, Law Office of Florence M. Bruemmer P.C., Anthem, Arizona, for Defendant-Appellant.
    Rosaleen O’Gara, Assistant United States Attorney; Robert L. Miskell, Appellate Chief; John S. Leonardo, United States Attorney; United States Attorney’s Office, Tucson, Arizona; for Plaintiff-Ap-pellee.
    Before: CARLOS T. BEA and. SANDRA S. IKUTA, Circuit Judges, and JANE A. RESTANI, Judge.

       The panel unanimously concludes that this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2).

      The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.

   OPINION

RESTANI, Judge:

Defendant-Appellant Doroteo Rocha-Alvarado appeals the district court’s imposition of a sixteen-level sentencing- enhancement to his conviction of illegal reentry after deportation in violation of 8 U.S.C. § 1326. We conclude that the district court did not err in applying the sixteen-level enhancement because, under the modified categorical approach, Rocha-Alvarado’s prior conviction for attempted sexual abuse in the first degree pursuant to Oregon Revised Statutes § 163.427(l)(a) qualifies as a “crime of violence” for the purposes of the U.S, Sentencing Guidelines (“the Guidelines”) § 2L1.2. -Accordingly, we affirm.

BACKGROUND

Rocha-Alvarado is a citizen of Mexico and had resided in Oregon prior to his deportation on May 13, 2013. On September 4, 2012, Rocha-Alvarado was charged with three counts of attempted sexual abuse in the first degree, alleging that on or between March 24,2012, and August 29, 2012, he subjected a nine-year-old girl to sexual contact by touching her vagina, breast, and lips. The prosecutor’s statements at the change-of-plea hearing further clarified that Rocha-Alvarado effected the sexual contact “outside of the clothes.” ER 34. Rocha-Alvarado pled no contest to three counts of attempted sexual abuse in the first degree in violation of Or. Rev. Stat. § 163.427 and was then deported to Mexico.

On February 22, 2015, United States Border Patrol agents apprehended Rocha-Alvarado near Vamori, Arizona as he was attempting to reenter the United States. Rocha-Alvarado admitted that he was illegally present in the United States. On April 24, 2015, Rocha-Alvarado pled guilty to an indictment charging him with illegal reentry after deportation, in violation of 8 U.S.C. § 1326.

The district court accepted the final pre-sentence report’s recommendation of a sixteen-level enhancement, finding that Rocha-Alvarado’s prior conviction constituted a crime of violence under the Guidelines § 2Ll,2(b)(l)(A)(ii). Thus, the presentence report calculated a Guidelines range of forty-six to fifty-seven months of incarceration and recommended a sentence of forty-six months. The district court"'applied a downward variance because Rocha-Alvarado had no other previous criminal or immigration history and because Rocha-Alvarado reentered the country for a “compelling reason.” Rocha-Alvarado had stated that he returned to the United States in order to find work that would enable him to buy medicine for his son’s kidney transplant. The district court sentenced Rocha-Alvarado to thirty months of incarceration with three years of supervised release. Rocha-Alvarado now appeals.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to'28 U.S.C. § 1291. We review questions of law de novo, including the district court’s interpretation of the Guidelines and whether a prior conviction qualifies as a “crime of violence” under the Guidelines. United States v. Grajeda, 581 F.3d 1186, 1188 (9th Cir. 2009); United States v. Esparza-Herrera, 557 F.3d 1019, 1021-22 (9th Cir. 2009) (per curiam),.

DISCUSSION

Rocha-Alvarado contends that his prior conviction under Or. Rev. Stat. § 163.427 for attempted sexual abuse in the first degree does not qualify as a “crime of violence” under the modified categorical approach. See U.S.S.G. § 2L1.2(b)(l)(A)(ii). He argues that, because the plea transcript states that the sexual contact occurred outside the victim’s clothing, his prior conviction is not a crime of violence because it does not meet the generic federal definition of “sexual abuse of a minor” as defined by 18 U.S.C. §§ 2243(a) and 2246(2)(D). We disagree.

In order to determine whether a state statute of conviction qualifies as a generic federal crime, we apply the categorical approach outlined by the Supreme Court in Taylor v. United States, 495 U.S. 575, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under this approach, we compare only the elements of the state statute of conviction with the generic federal definition. See id. The statute of conviction must criminalize the same or less conduct than the federal generic offense in order to qualify as a categorical match. United States v. Villavicencio-Burruel, 608 F.3d 556, 561 (9th Cir. 2010). But if the statute of conviction criminalizes more conduct than the generic federal offense, then the prior conviction does not qualify as a categorical match to the federal offense, and therefore cannot serve as a sentencing predicate. Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2281, 2283-85, 186 L.Ed.2d 438 (2013); United States v. Jennings, 515 F.3d 980, 987 (9th Cir. 2008).

If a crime of conviction does not qualify as a predicate offense under the categorical approach, it may still qualify under the modified categorical approach, Quintero-Salazar v. Keisler, 506 F.3d 688, 694 (9th Cir. 2007). The modified categorical approach applies where a statute “list[s] potential offense elements in the alternative” rather than means of commission and is, therefore, divisible. Descamps, 133 S.Ct. at 2283; see Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2251-53, 195 L.Ed.2d 604 (2016). Under the modified categorical approach, we may examine certain documents to determine what part of the divisible statute formed the basis of conviction. Descamps, 133 S.Ct. at 2284. Specifically, we may review the terms of “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Parrilla v. Gonzales, 414 F.3d 1038, 1043 (9th Cir. 2005) (quoting Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)); see also United States v. Lee, 704 F.3d 785, 788-89 (9th Cir. 2012). In so doing, we are to evaluate whether the defendant “necessarily admitted” the elements of the particular statutory alternative that is a categorical match to the generic federal offense. Descamps, 133 S.Ct. at 2284 (quoting Shepard, 544 U.S. at 26, 125 S.Ct. 1254).

The Guidelines recommend a sixteen-level enhancement if a defendant, who has unlawfully reentered the United States, also has a previous felony conviction for a “crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A)(ii), The Guidelines define a “crime' of violence” to include a list of enumerated offenses, which relevant to this appeal include: “forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), ,.. [and] sexual abuse of a minor.” . U.S.S.G. § 2L1.2, cmt. n.l(B)(iii). The enumerated “crimes of violence” also include attempts to commit those crimes. U.S.S.G. § 2L1.2, cmt. n.5. These listed offenses are per se crimes of violence. United States v. Rodriguez-Guzman, 506 F.3d 738, 741 (9th Cir. 2007). In addition to the enumerated offenses, the Guidelines include in the definition of “crime of violence” “any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. §.2L1,2, cmt. n.1(B)(iii).

Under the Oregon statute for sexual abuse in the first degree, subsection (l)(a) includes three additional subdivisions that allow for conviction when the sexual contact occurs with: (A) a victim “less than 14 years of age”; (B) a victim who “is subjected to forcible compulsion” by the defendant; or (C) a victim who “is incapable of consent by reason of’ a mental defect, mental incapacitation, or physical helplessness. Or. Rev. Stat. § 163.427(l)(a). Alternatively, subsection (l)(b) prohibits “[i]ntentionally caus[ing] a person under 18 years of age to touch or contact the mouth, anus or sex organs of an animal for the purpose of arousing or gratifying the sexual desire of a person.” Or. Rev. Stat. § 163.427(l)(b). As the Oregon statute of conviction is overinclusive of the federal crime with regard to the bestiality component and as (l)(a) is divisible from (l)(b), we apply the modified categorical approach here.

The Oregon state court convicted Rocha-Alvarado of attempted sexual abusé in the first degree under Or. Rev. Stat. § 163.427. In his pleá of no contest, Rocha-Alvarado admitted specifically that, “[o]n or between March 24, 2012 to August 29, 2012, in Polk County, Oregon, [he] unlawfully and knowingly attempted to subject [the victim] ([Date of Birth] ... [20]03), to sexual contact, by touching her vagina ... breast ... and lips, a sexual or intimate part of [the victim].” ER 33. Rocha-Alvarado’s conviction patently falls under subsection (l)(a) of the Oregon statute, and both parties agree to this matter. We therefore proceed to consider whether Or. Rev. Stat. § 163.427(l)(a), Rocha-Alvarado’s crime of conviction, is a categorical match to the federal generic offense of “crime of violence” for purposes of the Guidelines § 2L1.2.

Because a conviction pursuant to any of the three further subdivisions of (l)(a) falls under the generic federal definition of a crime of violence, either as “sexual abuse of a minor” or a “forcible sex offense,” Rocha-Alvarado was necessarily convicted of the same elements as the generic federal definition. Thus, we hold that a conviction under subsection (l)(a) necessarily entails conviction of the elements of a crime of violence under the generic federal definition.

A. Sexual Abuse of a Minor and Or. Rev. Stat. § 163.427(l)(a)(A)

Rocha-Alvarado submits that because the sexual conduct that led to his conviction under Or. Rev. Stat. § 163.427(l)(a) occurred outside of the clothes, the Oregon statute criminalizes more conduct than the federal definition provided within 18 U.S.C. § 2243, which specifically excludes touching over the clothing in defining sexual abuse of a minor. See 18 U.S.C. § 2246(2)(D). Our precedent, however, previously established that 18 U.S.C. § 2243 does not fully define the universe of sexual offenses contemplated by U.S.S.G. § 2L1.2’s term “sexual abuse of a minor.” United States v. Medina-Villa, 567 F.3d 507, 514-16 (9th Cir. 2009). In Medina-Villa, we recognized that the label “sexual abuse of a minor” extends to statutes which criminalize conduct that (1) is sexual, (2) involves a minor, and (3) is abusive. Id. at 513, 516; see also United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999). We further defined “abuse as physical or psychological harm in light of the age of the victim in question.” Medina-Villa, 567 F.3d at 513 (internal quotations omitted).

We conclude that Or. Rev. Stat. § 163.427(l)(a)(A) constitutes a crime of violence because it falls within the generic federal definition of sexual abuse of a minor. First, a conviction under subdivision (l)(a)(A) of the Oregon statute necessarily involves conduct that is “sexual.” Contrary to Rocha-Alvarado’s arguments, touching over the clothes is irrelevant. The Oregon statute requires simply that the touching was done for the purpose of sexual gratification, placing the focus on the intent rather than the manner of the touching. Or. Rev. Stat § 163.305(6) (defining “[s]exual contact” as “touching of the sexual or other intimate parts of a person ... for the purpose of arousing or gratifying the sexual desire of either party” (emphasis added)). Indeed, in evaluating a comparable California statute, we held that the defendant’s conviction under the California statute categorically constituted “sexual abuse of a minor” and qualified as a “crime of violence” for federal sentencing purposes. Baron-Medina, 187 F.3d at 1147. There, the California statute in question prohibited conduct that involves “the touching of an underage child’s body” where the touching is done “with a sexual intent.” Id.; see Cal. Pen. Code § 288(a) (1987). We explained that, under the California statute, “the character of the touching, though perhaps circumstantially relevant to prove intent, is otherwise immaterial.” Baron-Medina, 187 F.3d at 1147. Here, regardless of the manner of touching, i.e., outside or inside of the clothes, the Oregon statute similarly criminalizes conduct that is sexual as it expressly defines “sexual contact” through its relation to sexual 'gratification.

Second, subdivision (l)(a)(A) of the Oregon statute pertains to minors as it specifically requires the' Victim to be “less than 14 yéars of age.” Or. Rev. Stat. § 163.427(1)(a)(A). Third, it satisfies the last element of “sexual abuse of a minor,” as our precedent establishes that sexual contact with a child below the age of fourteen is per se abusive. United States v. Valencia-Barragan, 608 F.3d 1103, 1107 (9th Cir. 2010). Rocha-Alvarado, relying on only 18 U.S.C. §§ 2243 and 2246(2)(D), has failed to address the broader definition of “sexual abuse of a minor” included in our precedent. Instead, a violation of subdivision (1)(a)(A) requires a conviction of all three elements included within the generic federal definition of sexual abuse of a minor. Any conviction under subdivision (1)(a)(A) of the Oregon statute, therefore, qualifies as a crime of violence because it falls within the federal definition of “sexual abuse of minor.”

B. Forcible Sex Offense and Or. Rev. Stat. § 163.427(l)(a)(B) and (C)

A conviction under either subdivisions (l)(a)(B) or (C) would also constitute a “crime of violence” as both subdivisions fall within the generic federal definition of a “forcible sex offense.” Under the Guidelines, a forcible sex offense includes crimes in which “consent to the conduct is not given or is not legally valid, such as where the consent is involuntary, incompetent, or coerced.” U.S.S.G. § 2L1.2, cmt. n.l(B)(iii). Prior to a 2008 amendment, the Guidelines simply listed “forcible sex offense” as an example of a “crime of violence” and did not specifically define a “forcible sex offense” as a situation in which consent is lacking. The 2008 amendment broadened the meaning of “forcible sex offense” such that an “indicia of additional force or violence are no longer required for the forcible sex offense enhancement so long as consent to the sex offense is shown to be lacking.” United States v. Quintero-Junco, 754 F.3d 746, 753 (9th Cir. 2014) (quoting United States v, Gallegos-Galindo, 704 F.3d 1269, 1272 (9th Cir. 2013)).

Subdivision (l)(a)(B) of the Oregon statute for sexual abuse in the first degree falls within the federal, definition of “forcible sex offense,” i.e., an enumerated crime of violence. The statute requires the victim to be subjected to “forcible compulsion.” Or. Rev. Stat. § 163.427(l)(a)(B). Under Oregon law, forcible compulsion is force that is (1) “greater in degree or different in kind" from the simple act of- touching the intimate part of another and (2) “sufficient to ‘compel’ the victim, against the victim’s will, to submit to or engage in the sexual contact, but it need not rise to the level of violence.” State v. Marshall, 350 Or. 208, 253 P.3d 1017, 1027 (2011). Because this section of the Oregon statute requires that the touching be against the victim’s will, it meets the generic federal definition of a forcible sex offense as provided in the 2008 amendments and, therefore, is a crime of violence.

Subdivision (l)(a)(C) of the Oregon statute also constitutes a forcible sex offense. It requires that sexual contact be made with a victim “incapable of consent.” Or. Rev. Stat. § 163.427(l)(a)(C). Thus, it definitively meets the generic federal definition of forcible sex offense, as amended in 2008, which includes situations where “consent ,,. is not given or is, not legally, valid, ... [e.g.,] involuntary, incompetent, or coerced[.]” U.S.S.G. § 2L1.2, cmt. n.l(B)(iii). Both subdivisions (l)(a)(B) and (l)(a)(C), thus, constitute crimes of violence under the applicable Guidelines.

CONCLUSION

A conviction under any one of Or. Rev. Stat. § 163.427(l)(a)’s three subdivisions, therefore, necessarily entails a conviction of the elements of the generic federal definition of a crime of violence, whether it be sexual abuse of a minor or a forcible sex offense. For the foregoing reasons, the district court’s judgment of conviction and sentence are

AFFIRMED,

      . The prosecutor qualified his statement. When asked by the court whether the touching occurred over the clothes, the prosecutor responded by stating, ''[tjhat is, my understanding, although the Liberty House (indiscernible) had some questions, whether or not that was what had happened.” ER 34. As discussed below, however, whether the touching occurred outside of the clothes is not outcome-determinative.

      . Both parties agree that Or, Rev, Stat § 163.427 is a divisible statute, in that subsections (l)(a) and (l)(b) define two different crimes. See Mathis, 136 S.Ct. at 2249. Indeed, that is correct. Because subsections (l)(a) and (l)(b) provide alternative elements needed for conviction of two different crimes, rather than alternative means of fulfilling the elements of a single crime; the statute is divisible. Accordingly, we must apply the modified categorical approach to determine which of the. two. crimes was Rocha-Alvarado’s crime of conviction.

      . We clarify that the 2008 amendments to the Guidelines abrogated our holding in United States v. Beltran-Munguia, 489 F.3d 1042 (2007), by expanding the generic federal definition of "forcible sex offense." In that case, we held that sexual abuse in the second degree under Or. Rev. Stat. § 163.425 is not categorically a crime of violence, Beltran-Munguia, 489 F.3d at 1044, 1053. We explained that the Oregon statúte at issüe "constitutes a 'crime of violence’ only if: (1) the crime constitutes a ‘forcible sex offense,’ a term left undefined by the guidelines-, or (2) conviction of the crime requires proof of ‘the use, attempted use, or threatened use of physical force against the person of another.’ ” Id. at 1044 (emphasis added). Although we recognized that “the victim’s lack of consent is the defining characteristic” of sexual abuse in the second degree under the Oregon statute, we understood "forcible sex offense" to require "the use of force." Id. at 1045, 1051. As discussed, the 2008 amendment,, however, has defined "forcible sex offense” and broadened the meaning of that term by no longer requiring force if consent is lacking. Quintero-Junco, 754 F.3d at 753.


author: GOODWIN, Circuit Judge:

text:
    CONFEDERATED TRIBES AND BANDS OF the YAKAMA INDIAN NATION, Plaintiff-Appellant, v. ALCOHOL AND TOBACCO TAX AND TRADE BUREAU; John J. Manfreda, in his official capacity as Administrator of the Alcohol and Tobacco Tax and Trade Bureau; United States Department of the Treasury; Timothy Geithner, in his official capacity as Secretary of the United States Department of the Treasury; United States of America, Defendants-Appellees.
    No. 14-35165
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted August 30, 2016 Seattle, Washington
    Filed December 13, 2016

      Randolph Henry Barnhouse (argued) and Justin J. Solimon, Johnson Barnhouse & Keegan LLP, Albuquerque, New Mexico, for Plaintiff-Appellant.
    Patrick J. Urda (argued), Teresa E. McLaughlin, and Gilbert S., Rothenberg, Attorneys; Tamara W. Ashford, Acting Assistant Attorney General; Tax Division, Department of Justice, Washington, D.C.; for Defendants-Appellants.
    Before: ALFRED T. GOODWIN, MARY M. SCHROEDER, and M. MARGARET McKEOWN, Circuit Judges.
   OPINION

GOODWIN, Circuit Judge:

Confederated Tribes and Bands of the Yakama Indian Nation (“the Yakama Nation” or “the tribe”) appeals the district court’s summary judgment in the Yakama Nation’s action seeking to bar defendant federal agencies and officials from imposing the federal excise tax on tobacco products manufactured by King Mountain Tobacco Co. (“King Mountain”). The Yakama Nation alleges that King Mountain is entitled to exemptions from the excise tax under the General Allotment Act, 25 U.S.C. § 331 et seq., and the Treaty with the Yakama, 12 Stat. 951 (1855). Defendants, in turn, contend that the Anti-Injunction Act and the tax exception to the Declaratory Judgment Act bar the Yaka-ma Nation’s claims seeking injunctive and declaratory relief.

We hold that the Anti-Injunction Act deprived the district court of jurisdiction to hear the Yakama Nation’s claims. We therefore vacate the judgment and remand with instructions to dismiss.

FACTUAL AND PROCEDURAL BACKGROUND

The Yakama Nation, King Mountain, and Delbert Wheeler, Sr., brought suit for injunctive and declaratory relief barring the imposition of the federal tobacco excise tax on King Mountain. The tobacco excise tax applies to “cigarettes, manufactured or imported into the United States,” 26 U.S.C. § 5701(b), and “roll-your-own tobacco, manufactured in or imported into the United States,” id. § 5701(g). “[A]ny person who manufactures” cigarettes nr roll-your-own tobacco, id. § 5702(d), is liable for the tax, see id. § 5703(a).

The Yakama Nation is a federally recognized Indian Tribe. King Mountain, a corporation organized, existing, and operating under the laws of the Yakama Nation, manufactures cigarettes and “roll-your-own” tobacco. Wheeler, an enrolled member of the Yakama Nation, owns King Mountain. The tribe alleged that some of the tobacco used by King Mountain is grown on Yakama Nation trust land consistent with Yakama Nation historical practices, and the trust land-grown tobacco is then blended with other tobacco to produce King Mountain products.

The federal agencies moved to dismiss, contending that the claims were barred by the Anti-Injunction Act and the tax exception. to the Declaratory Judgment Act. The district court granted the motion to dismiss as to King Mountain and Wheeler but denied it as to the Yakama Nation, concluding that the Yakama Nation’s claims fell within the exception to the Anti-Injunction Act set out in South Carolina v. Regan, 465 U.S. 367, 373-81, 104 S.Ct. 1107, 79 L.Ed.2d 372 (1984). The district court subsequently granted summary judgment in favor of the federal agencies, concluding that King Mountain was not exempt from the excise tax under the General Allotment Act or the Treaty with the Yakama. The Yakama Nation timely appealed.

DISCUSSION

On de novo, review, Munoz v. Mabus, 630 F.3d 856, 860 (9th Cir. 2010), we hold that the Anti-Injunction Act deprived the district court of jurisdiction over the Yakama Nation’s claims.

The Anti-Injunction Act (“the Act”) provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” 26 U.S.C. § 7421(a). The Act’s principal purpose is to protect “the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference, ‘and to require that the legal right to the disputed sums be determined in a suit for refund,’” Bob Jones Univ., 416 U.S. at 736, 94 S.Ct. 2038 (citation omitted). Unless a suit otherwise barred by the Act “falls within one °of the statutory or judicially created .-exceptions to the Act, the district court lacks subject matter jurisdiction and must dismiss the complaint.” Jensen v. Internal Revenue Serv., 835 F.2d 196, 198 (9th Cir. 1987).

The relief sought in this case — declaratory and injunctive relief prohibiting the imposition of the tobacco excise tax on King Mountain — would restrain the assessment and collection of that tax and thus “falls squarely within the literal scope of the Act.” Bob Jones Univ., 416 U.S. at 732, 94 S.Ct. 2038. The Yakama Nation nonetheless asserts that the claims are not barred, contending, first, that the Yakama Nation is not a “person” for purposes of the Act and second, that the claims qualify for the narrow exception set out in Regan, 465 U.S. 367, 104 S.Ct. 1107, 79 L.Ed.2d 372. We reject both contentions.

First, the Yakama Nation is a “person” subject to the Act’s jurisdictional prohibition. This question is a matter of statutory construction, turning primarily on congressional intent as demonstrated by “[t]he words chosen by Congress ... [and] their plain meaning.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982). “In ascertaining the plain meaning of [a] statute, [we] must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988).

The Act itself does not define “person,” but it' is part of the Internal Revenue Code, whose general definitional provision states as follows: “The term ‘person’ shall be construed to mean and include an individual, a trust, estate, partnership, association, company or corporation.” 26 U.S.C. § 7701(a)(1). Where a definition is introduced with the verb “includes,” “[t]his word choice is significant because it makes clear that the examples enumerated in the text are intended to be illustrative, not exhaustive.” Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 132 S.Ct. 2156, 2170, 183 L.Ed.2d 153 (2012). The Internal Revenue Code itself tells us that “[t]he terms ‘includes’ and ‘including* when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined.” 26 U.S.C. § 7701(c). Because the list of entities contained in § 7701(a)(1) thus is merely illustrative, it is not determinative of whether an Indian tribe constitutes a “person” under the Act.

“When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning.” Smith v. United States, 508 U.S. 223, 228, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993). Webster’s defines “person” to include, inter alia, “a human being, a body of persons, or a corporation, partnership, or other legal entity that is recognized by law as the subject of rights and duties,” Webster’s Third New International Dictionary 1686 (1971). Black’s similarly defines “person” to include, inter alia-, “[a]n entity (such as a corporation) that is recognized by law as having the rights and duties of human beings.” Black’s Law Dictionary 1178 (9th ed. 2004). These broad definitions are consistent with the non-exhaustive list set out in § 7701(a)(1), which includes as illustrative various entities recognized by law as having rights and duties. Accordingly, relying on the ordinary meaning of the word, the term “person” in § 7701(a)(1) covers entities that are recognized by law as the subject of rights and duties, including Indian tribes. Accord Chickasaw Nation v. United States, 208 F.3d 871, 878-80 (10th Cir. 2000) (relying on the ordinary meaning of the word to hold that an Indian tribe was a “person” for purposes of § 7701(a)(1) and therefore was subject to federal wagering and occupational excise taxes).

Interpreting “person” to cover Indian tribes has another virtue: it is consistent with courts’ treatment of other sovereign entities as “persons” for various provisions of the Internal Revenue Code. For example, the Tenth Circuit has construed “person” in '§ 7701(a)(1) to cover the United States and individual states. See Estate of Wycoff v. Comm’r, 506 F.2d 1144, 1151 (10th Cir. 1974). More broadly, the Supreme Court has held that states and other sovereign entities are “persons” for other Code provisions with similar definitions of “person.” See Sims v. United States, 359 U.S. 108, 112, 79 S.Ct. 641, 3 L.Ed.2d 667 (1959) (holding that the term “person” included a state or other sovereign where the special definition of “person” in 26 U.S.C. § 6632 spoke only of corporations and partnerships, and the employees or officers thereof); Ohio v. Helvering, 292 U.S. 360, 370, 54 S.Ct. 725, 78 L.Ed. 1307 (1934) (holding that a state was “embraced within the meaning of the word ‘person’ ” where the word “person” was defined as “meaning and including a partnership, association, company, or corporation, as well as a natural person”), overruled on other grounds by Garcia v. San Antonio Met. Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). And in Re-gan, the Court did not question that South Carolina, acting as sovereign, was a “person” under the statute at issue here, the Anti-Injunction Act.

The same reasoning that extends the Act’s reach to states applies with equal force to Indian tribes. The strength of the analogy is further supported by the fact that, were Indian tribes not “persons,” “we would essentially exempt tribes and tribal organizations from many forms of federal tax liability and render entire sections of the [Internal Revenue Code] superfluous.” Chickasaw Nation, 208 F.3d at 879. This result would be at odds with both the plain terms of the Internal Revenue Code and with the principle that “Indians and their tribes are equally subject to statutes of general applicability, just as any other United States citizen,” subject to exception if there is some proof that “‘Congress intended the law not to apply to Indians.’ ” Solis v. Matheson, 563 F.3d 425, 430 (9th Cir. 2009) (quoting Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir. 1985)).

Nothing in the other constraints on the use of the word “person” in the Anti-Injunction Act — that impliedly the “person” be able to maintain a suit and that the Act applies “whether or not such person is the person against whom such tax was assessed” — detracts from construing “person” to include Indian tribes. In fact, the way in which the “person” language was added to the Anti-Injunction Act lends credence to the broad reading. The original Anti-Injunction Act contained no reference to “person,” barring any suit “for the purpose of restraining the assessment or collection of [any] tax,” Rev. Stat. § 3224, and so it would have covered a suit like the one here. But, as the Supreme Court has indicated, the addition of the phrase “by any person, whether or not such person is the person against whom such tax was assessed” was not meant to be limiting. Bob Jones Univ., 416 U.S. at 731 n.6, 94 S.Ct. 2038. Instead, the new verbiage “reaffirmed] the plain meaning” of the Anti-Injunction Act as applying to taxpayers and nontaxpayers alike, clarifying that the new remedy in 26 U.S.C. § 7426— added as part of the same amendment— was the only means for nontaxpayer lien holders to bring an action. Bob Jones Univ., 416 U.S. at 731 n.6, 94 S.Ct. 2038. This history cuts against an interpretation of the statute that excludes suits based merely on the identity of the plaintiff, at least where that party readily fits the ordinary definition of “person.”

All of these various textual and contextual clues in the Internal Revenue Code and the Anti-Injunction Act specifically overcome any presumption that “person” does not include the sovereign. See Inyo Cty., Cal. v. Paiute-Shoshone Indians of the Bishop Cmty. of the Bishop Colony, 538 U.S. 701, 709-11, 123 S.Ct. 1887, 155 L.Ed.2d 933 (2003); Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 780, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). We conclude that Congress intended “person” in the Anti-Injunction Act to include Indian tribes like the Yakama Nation here.

Next, the district court erred in concluding that the -Yakama Nation’s claims fell within the exception to the Act set out in Regan, 465 U.S. 367, 104 S.Ct. 1107, 79 L.Ed.2d 372. In Regan, South Carolina sought to enjoin the collection of federal taxes on the interest from state-issued bearer bonds, claiming that the tax violated the Tenth Amendment by, in practical effect, requiring it to issue bonds in registered form. Id. at 370-72, 104 S.Ct. 1107. In finding an exception to the Act’s jurisdictional bar, the Regan Court noted that South Carolina otherwise would have to depend on third parties to purchase bearer bonds, file refund suits, and raise the state’s constitutional claims. Id. at 379-81, 104 S.Ct. 1107. Because it was “by no means certain that the State would be able to convince a taxpayer to raise its claims,” enforcing the Act’s jurisdictional bar “would create the risk that the [Act] would entirely deprive the State of any opportunity to obtain review of its claims.” Id. at 380-81, 104 S.Ct. 1107.

The Regan exception, however, is a narrow one. See Am. Bicycle Ass’n v. United States (In re Am. Bicycle Ass’n), 895 F.2d 1277, 1281 (9th Cir. 1990) (declining to apply the Regan exception and noting that “[promoting the purpose behind the Act requires a strict construction of any possible exceptions”); see also RYO Machine, LLC v. U.S. Dep’t of Treasury, 696 F.3d 467, 472 (6th Cir. 2012) (describing the Regan exception as “very narrow”); Judicial Watch, Inc. v. Rossotti, 317 F.3d 401, 408 n.3 (4th Cir. 2003) (“Because of the strong policy animating the Anti-Injunction Act, and the sympathetic, almost unique, facts in Regan, Courts have construed the Regan exception very narrowly®”).

This narrow exception is . inapplicable here. Most critically, in Regan, the state’s interest in issuing bonds in the form it chose existed separately from the bondholders’ interest in avoiding taxation. See Regan, 465 U.S. at 380-81, 104 S.Ct. 1107. A bondholder could avoid taxation simply by purchasing registered bonds, and thus would have little incentive to pay the tax, file a refund suit, and raise the state’s constitutional claims. See id. at 381, 104 S.Ct. 1107. Therefore, the state “would be required to depend on the mere possibility of persuading a third party [bondholder] to assert [its] claims.” Id. (emphasis added). Here, in contrast, the Yakama Nation’s asserted injury flows from the taxation of its members, and thus is wholly derivative of any injury suffered by King Mountain, a tribal corporation, and Wheeler, an enrolled member of the tribe. King Mountain and Wheeler share the Yakama Nation’s interest in preventing taxation; Indeed, the Yakama'Nation’s interest is one that, in another context, likely would be found adequately protected by King Mountain and Wheeler’s participation in a suit. See Fed. R. Civ. P. 19(a)(1)(B)(i), 24(a)(2); Shermoen v. United States, 982 F.2d 1312, 1318 (9th Cir. 1992). And third-party challengers are more than a mere possibility: King Mountain and Wheeler were originally parties to this action and appear to have every incentive to raise these claims in a refund suit.

Our conclusion is consistent with that of the Sixth Circuit in RYO Machine, where that court declined to apply the Regan exception to manufacturers of high-speed cigarette-rolling machines that challenged an agency ruling subjecting retailers to the same taxation as the manufacturers. 696 F.3d at 468. Because the manufacturers’ interests were “inextricably intertwined with those of the retailers,” the retailers could raise all relevant claims in a refund suit. Id. at 472. Moreover, there was “no need to find an elusive third-party challenger,” as a retailer “was originally part of this lawsuit and appears to have every incentive to [raise these claims] through a refund suit.” Id. Similarly, the Yakama Nation’s interest in avoiding the taxation of its members is inextricably intertwined with King Mountain and Wheeler’s interest in avoiding their own taxation. Nor, given King Mountain and Wheeler’s incentives to pursue a refund suit, is there any need to find an elusive third-party challenger, We agree that the narrow Regan exception cannot extend so far. .

' Because the Anti-Injunction Act bars the Yakama Nation’s claims, we VACATE the judgment of the district court- and REMAND with instructions to dismiss for lack of jurisdiction. Each party shall bear its own costs on appeal.

      . Because we hold that the Anti-Injunction Act barred the Yakama Nation's claims, we need not determine if ¡the tax exception to the Declaratory Judgment Act, 28 U.S.C. § 2201(h), similarly would bhr the claims seeking declaratory relief. See Bob Jones Univ. v. Simon, 416; U.S. 725, 732 n.7, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974) (noting that "the federal tax exception to the Declaratory Judgment Act is at least as broad as the Anti-Injunction Act," but declining to determine whether the Declaratory Judgment Act is more preclusive after deciding that the suit was barred by the Anti-Injunction Act),

      . Although Regan contains some broad language that might suggest that "the Act was intended to apply only when Congress has provided an alternative avenue for an aggrieved party to litigate its claims on its own behalf" id. at 381, 104 S.Ct. 1107 (emphasis added), the true focus appears to be on whether the claims can be judicially reviewed at all. Indeed, that statement is preceded by the language quoted above emphasizing that the Court’s real concern was “entirely de-priv[ing]” South Carolina of “any opportunity to obtain review of its claims," id. at 380-81, 104 S.Ct. 1107, and immediately followed by a footnote explaining that taxpayers cannot evade refund suits by setting up organizations to litigate their tax claims because allowing them to do so would “elevate form over substance," id. at 381 n.19, 104 S.Ct. 1107. If the true inquiry is whether the aggrieved party itself can obtain review, it would have been unnecessary for the Court to discuss third-party bondholder refund suits at all.