Humphries v. County of Los Angeles

ORDER

The opinion, filed November 5, 2008, [547 F.3d 1117], is amended as follows:

1. At [547 F.3d at 1126], replace “susbstantiated” with “substantiated.”

2. At [547 F.3d at 1128 n. 8], replace “If the parties provide” with “If a party provides.”

3. At [547 F.3d at 1130], replace “County’s CACI-related policies” with “County’s and State’s CACI-related policies.”

4. At [547 F.3d at 1142 n. 15], replace “district court” with “district attorney”; also replace “affect” with “effect.”

5. At [547 F.3d at 1143] replace “very type of liberty interest” with “very type of interference with a liberty interest.”

6. At [547 F.3d at 1148], delete the following: “By failing to do so, LASD’s custom and policy violated the Humphries’ constitutional rights. Therefore, we deny the County summary judgment on this issue.” Add the following:

By failing to do so, it is possible that the LASD adopted a custom and policy that violated the Humphries’ constitutional rights. However, because this issue is not clear based on the record before us on appeal — and because the issue was not briefed by the parties — we remand to the district court to determine whether or not the County is entitled to qualified immunity.

*1175 7. At [547 F.3d at 1148], replace “judgment to the County” with “judgment to the State and the County”

In addition, the panel’s order, filed November 5, 2008, addressing the parties’ costs is amended to delete “and fees.”

With these amendments, the panel has voted to otherwise deny appellee County of Los Angeles’ petition for rehearing. Judge Bybee and Judge Smith have voted to deny the petition for rehearing en banc, and Judge Mills recommended denying the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. Ap-pellee County of Los Angeles’s Petition for Rehearing and Rehearing En Banc is DENIED.

The panel has voted to deny appellee Bill Lockyer’s petition for rehearing. Judge Bybee and Judge Smith have voted to deny the petition for rehearing en banc, and Judge Mills recommended denying the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. Ap-pellee Bill Lockyer’s Petition for Rehearing and Suggestion for Rehearing En Banc is DENIED.

With these amendments, the panel has voted to grant appellants’ motion for clarification. Appellant’s Motion for Clarification is GRANTED.

With these amendments, the panel has also voted to grant in part appellant’s petition for rehearing or reconsideration of the November 5, 2008 order. Appellant’s Petition for Rehearing or Reconsideration of the November 5, 2008 Order is GRANTED IN PART.

No further petitions for rehearing or rehearing en banc will be accepted.

ORDER

The opinion, originally filed November 5, 2008, and amended January 15, 2009, [547 F.3d 1117], is amended as follows:

At [547 F.3d at 1148], delete “we remand to the district court to determine whether or not the County is entitled to qualified immunity.” Add the following: “we remand to the district court to determine the County’s liability under Monell.”

OPINION

Appellants Craig and Wendy Humphries are living every parent’s nightmare. Accused of abuse by a rebellious child, they were arrested, and had their other children taken away from them. When a doctor confirmed that the abuse charges could not be true, the state dismissed the criminal case against them. The Hum-phries then petitioned the criminal court, which found them “factually innocent” of the charges for which they had been arrested, and ordered the arrest records sealed and destroyed. Similarly, the juvenile court dismissed all counts of the dependency petition as “not true.”

Notwithstanding the findings of two California courts that the Humphries were “factually innocent” and the charges “not true,” the Humphries were identified as “substantiated” child abusers and placed on California’s Child Abuse Central Index (“the CACI”), a database of known or suspected child abusers. As the Humphries quickly learned, California offers no procedure to remove their listing on the database as suspected child abusers, and thus no opportunity to clear their names. More importantly, California makes the CACI database available to a broad array of gov *1176 ernment agencies, employers, and law enforcement entities and even requires some public and private groups to consult the database before making hiring, licensing, and custody decisions.

This case presents the question of whether California’s maintenance of the CACI violates the Due Process Clause of the Fourteenth Amendment because identified individuals are not given a fair opportunity to challenge the allegations against them. We hold that it does.

I. FACTS AND PROCEEDINGS

A. The Statutory Scheme

1. The Child Abuse and Neglect Reporting Act

California maintains a database of “reports of suspected child abuse and severe neglect,” known as the Child Abuse Central Index or CACI. Cal. Penal Code § 11170(a)(2). California has collected such information since 1965, see 1965 Cal. Stat. 1171, and since 1988, the maintenance of the CACI has been governed by the Child Abuse and Neglect Reporting Act (“CANRA”), Cal. Penal Code §§ 11164-11174.

a. Inclusion in the CACI

There are many different ways a person can find themself listed in the CACI. CANRA mandates that various statutorily enumerated individuals report instances of known or suspected child abuse and neglect either to a law enforcement agency or to a child welfare agency. Id. § 11165.9. These agencies, in turn, are required to conduct “an active investigation,” id. § 11169(a), which involves investigating the allegation and determining whether the incident is “substantiated, inconclusive, or unfounded,” Cal. Code Regs. tit. 11, § 901(a) (2008).

In an attempt by the legislature to demonstrate how many negatives it could place in a single provision, CANRA then provides that the agency shall send the California Department of Justice (“CA DOJ”) a written report “of every case it investigates of known or suspected child abuse or severe neglect which is determined not to be unfounded,” but that the “agency shall not forward a report to the [CA DOJ] unless it has conducted an active investigation and determined that the report is not unfounded.” Cal. Penal Code § 11169(a). CANRA defines a report as “unfounded” if it is “determined by the investigator who conducted the investigation^] to be false, [2] to be inherently improbable, [3] to involve an accidental injury, or [4] not to constitute child abuse or neglect.” Id. § 11165.12(a). There is no further definition of what it means for a report to be “false” or “inherently improbable,” and no discussion of the standard of proof by which that determination is to be made. Presumably, a report is “not unfounded” if the investigator determines that it meets none of these four criteria.

CANRA defines two other categories of reports, those that are “substantiated” and those that are “inconclusive.” A “substantiated report” means that “the investigator who conducted the investigation” determined that the report “constituted child abuse or neglect ... based upon evidence that makes it more likely than not that child abuse or neglect occurred.” Id. § 11165.12(b). An “inconclusive report” means that “the investigator who conducted the investigation” found the report “not to be unfounded, but the findings are inconclusive and there is insufficient evidence to determine whether child abuse or neglect ... occurred.” Id. § 11165.12(c). Both inconclusive and substantiated reports are submitted to the CA DOJ for inclusion in the CACI. See id. §§ 11169(a), (c), 11170(a)(3).

*1177 To summarize, we understand section 11169(a), when read in conjunction with section 11165.12, to require agencies to investigate all reports of child abuse. Each reported incident of child abuse must then be categorized as (1) “substantiated,” meaning it is more likely than not that child abuse or neglect occurred; (2) “inconclusive,” meaning there is insufficient evidence to determine whether child abuse and/or neglect occurred; or (3) “unfounded,” meaning the report is false, inherently improbable, an accidental injury, or does not constitute child abuse or neglect. It appears that “substantiated” and “inconclusive” reports include everything that is “not unfounded.” The agency must submit both “substantiated” and “inconclusive” reports for inclusion in the CACI.

Given the high standard of proof required for a report to be dismissed as “unfounded” — false or inherently improbable — and the low standard of proof required for a report to be categorized as “substantiated” — more likely than not— with “inconclusive” presumably encompassing everything in between, we understand the minimum evidence required for CANRA to compel the submission of a report to be something less than a preponderance, but more than a scintilla. CAN-RA further requires that the CA DOJ “shall maintain an index of all reports of child abuse and severe neglect submitted pursuant to” the process described above. Id. § 11170(a)(1). The CACI is maintained by means of a computerized data bank. See People v. Bernstein, 197 Cal.App.3d Supp. 34, 243 Cal.Rptr. 363, 367 (1987).

b. Consequences of Inclusion in the CACI

CANRA states that the CA DOJ shall make the information in the CACI available to a broad range of third parties for a variety of purposes. For example, the information in the CACI is made available

to the State Department of Social Services, or to any county licensing agency that has contracted with the state for the performance of licensing duties ... concerning any person who is an applicant for licensure or any adult who resides or is employed in the home of an applicant for licensure or who is an applicant for employment in a position having supervisorial or disciplinary power over a child or children, or who will provide 24-hour care for a child or children in a residential home or facility, pursuant to [various statutory sections].

Cal. Penal Code § 11170(b)(4). The information is also provided to persons “making inquiries for purposes of pre-employment background investigations for peace officers, child care licensing or employment, adoption, or child placement.” Cal. Code Regs. tit. 11, § 907(b) (2008); see also Cal. Penal Code § 11170(b)(8). The “Court Appointed Special Advocate program that is conducting a background investigation of an applicant seeking employment with the program or a volunteer position as a Court Appointed Special Advocate” also has access to CACI information. Cal. Penal Code § 11170(b)(5).

The scope of CANRA is not limited to California institutions. CANRA makes the CACI information available “to an out-of-state agency, for purposes of approving a prospective foster or adoptive parent or relative caregiver for placement of a child” so long as “the out-of-state statute or interstate compact provision that requires that the information received in response to the inquiry shall be disclosed and used for no purpose other than conducting background checks in foster or adoptive cases.” Id. § 11170(e)(1). Thus, it appears that if another state’s agencies require CACI information for foster or adoptive purposes, *1178 the CA DOJ is also obligated to make it available. 1

CANRA provides that agencies obtaining the CACI information are responsible for obtaining the original investigative report from the reporting agency, and for drawing independent conclusions regarding the quality of the evidence disclosed, and its sufficiency for making decisions regarding investigation, prosecution, licensing, placement of a child, employment or volunteer positions with a CASA program, or employment as a peace officer.

Id. § 11170(b)(9)(A). The same provision also applies to out of state agencies that receive CACI information. Id. § 11170(e)(2).

Although CANRA itself only requires that the CA DOJ make this information available, other statutory provisions mandate that certain agencies consult the CACI prior to issuing a variety of state-issued licenses or other benefits. For example, California Health and Safety Code § 1522.1 provides that “[p]rior to granting a license to, or otherwise approving, any individual to care for children, the[State Department of Social Services] shall check the[CACI].” Cal. Health & Safety Code § 1522.1(a); see id. § 1502(b). Similarly, in order to work as a volunteer in crisis nurseries, California law mandates that “[v]olunteers shall complete a [CACI] check.” Id. § 1526.8(b)(2). Also, “[p]rior to granting a license to or otherwise approving any individual to care for children in either a family day care home or a day care center, the [State Department of Social Services] shall check the [CACI].” Id. § 1596.877(b). 2 California Welfare and Institutions Code § 361.4 similarly requires that

[w]henever a child may be placed in the home of a relative, or a prospective guardian or other person who is not a licensed or certified foster parent, the county social worker shall cause a check of the [CACI] ... to be requested from the [CA DOJ], The [CACI] check shall be conducted on all persons over 18 years of age living in the home.

Cal. Welf. & Inst. Code § 361.4(c). Finally, California has implemented a pilot program through the State Department of Social Services (“DSS”) to create a “child-centered resource family approval process” in lieu of existing processes for “licensing foster family homes, approving relatives and nonrelative extended family members as foster care providers, and approving adoptive families.” Id. § 16519.5(a). The approval standards under this statute include “utilizing a check of the [CACI].” Id. § 16519.5(d)(l)(A)(i). Based on these provisions, it is apparent that the CACI listing plays an integral role in obtaining many rights under California law, including employment, licenses, volunteer opportunities, and even child custody. See also Alisha M. Santana, A Pointer System that Points to the Nonexistent: Problems with the Child Abuse Central Index (CACI), 4 Whittier J. Child & Fam. Advoc. 115, 115— 16 (2004) (describing the case of a grandmother denied custody of her grandchil *1179 dren because DSS discovered two hits on the CACI matching her name).

c. Removal From the CACI

CANRA requires that at the time the agency forwards the report to the CA DOJ for inclusion in the CACI, “the agency shall also notify in writing the known or suspected child abuser that he or she has been reported to the [CACI].” Cal. Penal Code § 11169(b). The identified child abuser may obtain the report of suspected child abuse and information contained within their CACI listing. Id. § 11167.5(b)(ll). Understandably, notified individuals who believe that they have wrongfully been included in the CACI would want to be removed from the CACI as expeditiously as possible. CANRA provides that an individual who was originally listed in the CACI pursuant to an “inconclusive or unsubstantiated report” will be deleted from the CACI after ten years, as long as no subsequent report containing his or her name is received within that time period. Id. § 11170(a)(3). There is no provision for removing an individual who was originally listed in the CACI pursuant to a “substantiated report”; such a person apparently remains listed in the CACI permanently. See id. § 11170(a)(1).

CANRA offers no procedure for challenging a listing on the CACI. CANRA does provide that “[i]f a report has previously been filed which subsequently proves to be unfounded, [the CA DOJ] shall be notified in writing of that fact and shall not retain the report.” Id. § 11169(a). The statute does not describe who must notify the CA DOJ of that fact, or how the determination that a report has “subsequently prove[d] to be unfounded” is to be made. CANRA also provides that the CACI “shall be continually updated by the department and shall not contain any reports that are determined to be unfounded.” Id. § 11170(a)(1). By using the passive voice, CANRA fails to specify who is supposed to determine that a report is unfounded, or how to make that decision in order to remove unfounded reports from the CACI.

Apparently, only the submitting agency can decide if a report has proved unfounded. CANRA provides that “[t]he submitting agencies are responsible for the accuracy, completeness, and retention of the reports,” thus suggesting that the submitting agencies are also responsible for removing reports that are determined to be unfounded. Id. § 11170(a)(2). Furthermore, as explained above, CANRA defines an “unfounded report” as “a report that is determined by the investigator who conducted the investigation to be false, to be inherently improbable, to involve an accidental injury, or not to constitute child abuse or neglect.” Id. § 11165.12(a) (emphasis added); see id. § 11165.12(b) (a “substantiated report” means “a report that is determined by the investigator ... ”) (emphasis added). Whether this definition solely references the initial determination of listing someone on the CACI, or whether it also constitutes the definition for a continuing obligation to remove someone from the CACI is unclear. These provisions suggest, however, that the investigator and agency that conducted the investigation are responsible for making, and thus correcting, the determination that a report is unfounded.

Although CANRA itself provides no procedure for an individual to challenge a CACI listing, nothing in the statute prevents a submitting agency from enacting some procedure to allow an individual to challenge their listing or seek to have a determination made that a report is “unfounded.” See id. § 11170(a)(2). CANRA also contemplates that the CA DOJ “may adopt rules governing recordkeeping and reporting,” which may allow the CA DOJ to enact some procedure beyond that pro *1180 vided by CANRA. Id. § 11170(a)(1). To this point, we are unaware of any regulations that provide additional regulatory procedures for challenging a listing on the CACI or the validity of the underlying report. To the contrary, the CA DOJ explicitly “presumes that the substance of the information provided is accurate and does not conduct a separate investigation to verify the accuracy of the investigation conducted by the submitting agency.” Cal. Code Regs. tit. 11, § 904 (2008).

B. The Humphries’ Nightmare

The Humphries’ nightmarish encounter with the CANRA system began on March 17, 2001, when S.H., Craig’s fifteen year-old daughter from a previous marriage, took their car and drove to her biological mother’s home in Utah. S.H. had previously lived in Utah with her biological mother and stepfather and their three younger children. In June 2000, S.H’s biological mother called Craig and said she wanted S.H. to live with the Humphries in Valencia, California, on a trial basis. The night of March 17, S.H. took the Humphries’ car without their knowledge, drove to her mother’s home in Utah, and reported that the Humphries had been abusing her for several months. Tin emergency room physician diagnosed “non-accidental trauma, with extremity contusions.”

1. The Humphries’ Arrest and Inclusion in the CACI

Based on an investigation from the Utah police, the victim’s statement, and emergency room records describing the victim’s allegations, on April 11, 2001, Michael L. Wilson, a detective for the Family Crimes Bureau of the Los Angeles County Sheriffs Department (“LASD”), obtained probable cause warrants to arrest the Hum-phries for cruelty to a child, Cal. Penal Code § 273a(a), and torture, id. § 206. On April 16, Detective Wilson, accompanied by fellow detective Charles Ansberry, arrested Craig and Wendy Humphries, and booked them on the single charge of felony torture under California Penal Code § 206. The same day, a Sheriffs deputy, without a warrant, picked up the Hum-phries’ two other children from their schools and placed them in protective custody. 3 Both children denied any fear of abuse or mistreatment and indicated their desire to return home. Custody of the children was then transferred to the County Department of Children and Family Services, which placed the children in foster care.

On April 17, 2001, the day after the Humphries were arrested, Detective Wilson completed a child abuse investigation report identifying the Humphries’ case as a “substantiated report” of child abuse. 4 Pursuant to CANRA, this information was sent to the CA DOJ, which in turn created a CACI listing identifying Craig and Wendy Humphries as child abuse suspects with a “substantiated” report.

2. Judicial Proceedings Exonerating the Humphries

a. The Criminal Case

On April 18, 2001, Detective Wilson filed a complaint in the Los Angeles County *1181 Superior Court, charging the Humphries with corporal injury to a child, Cal. Penal Code § 273d(a), and cruelty to a child by endangering health, id. § 273a(b), both misdemeanors.

On August 29, 2001, the Humphries’ criminal case was dismissed. 5 The prosecutor had learned that in November 2000, Dr. Isaac Benjamin Paz surgically removed a melanoma on S.H.’s shoulder. S.H. had follow-up visits with Dr. Paz in December 2000 and March 2001, periods that corresponded with S.H.’s claims of abuse. On all these occasions, Dr. Paz examined S.H.’s entire body, and saw no sign of abuse. The prosecutor determined that this information “contradict[ed] the basic part of [S.H.’s] testimony that she was injured during the entire time” and agreed that the Humphries criminal case for the misdemeanor charges should be dismissed in furtherance of justice. The felony torture charges on which the Hum-phries had originally been booked were also dismissed.

The Humphries then successfully petitioned the criminal court under California Penal Code § 851.8 for orders finding them “factually innocent” of the felony torture charge, 6 and requiring the arrest records pertaining to that charge be sealed and destroyed. 7 A finding of factual inno- *1182 cenee means that the court found “that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.” Cal. Penal Code § 851.8(b).

b. The Juvenile Court Case

On April 17, 2001, in separate, non-criminal proceedings, Detective Wilson requested that Los Angeles County file a juvenile court dependency petition to have the Humphries’ two children declared dependent children of the juvenile court based on the fact that their “sibling has been abused or neglected.” On April 19, the County filed a dependency petition against the Humphries based on S.H.’s allegations. After a hearing on June 12, the juvenile court ordered that the Hum-phries retain custody of their children, and dismissed all counts as “not true.” 8

3. The Humphries Seek Removal from the CACI

As required by CANRA, in May 2001, the Humphries were notified that they were listed in the CACI. The notice informed them that if they believed the report was unfounded, and they desired a review, that they should address their request to Detective Wilson. In May 2002, the Humphries contacted LASD’s Family Crimes Bureau through their attorney. They discovered that Detective Wilson no longer worked at the Bureau and there was no available procedure for them to challenge their listing in the CACI. On May 9, 2002, LASD Sergeant Michael Becker advised the Humphries’ attorney that after conducting an investigation, the LASD would not reverse its report labeling the Humphries as “substantiated” child abusers for the purposes of the CACI. Becker indicated that the fact that charges were filed “would indicate to us that some sort of crime did occur” and the fact that the case was dismissed “would not negate the entries” into the CACI.

In October 2003, the CA DOJ asked LASD to complete a confirmation questionnaire regarding the Humphries’ CACI listing. The questionnaire was answered by a civilian clerical worker who confirmed that the report was still “substantiated” as of October 31, 2003. Despite the fact that two independent California tribunals had found that the allegations underlying the Humphries’ CACI listing were “not true” and that the Humphries are “factually innocent,” the CA DOJ continues to list the Humphries in the CACI as substantiated child abusers. Furthermore, because the Humphries were listed pursuant to a “substantiated report,” they will remain listed on the CACI indefinitely.

In addition to the harm already dealt to the Humphries’ reputation by appearing on a list of actual or suspected child abus *1183 ers, the Humphries have also alleged that the CACI now places a burden on their ability to pursue some of their normal goals and activities. The Humphries have indicated that they are hesitant to seek these opportunities for fear that the CACI listing will both influence their ability to obtain certain benefits and further injure their already damaged reputation. For example, the Humphries have expressed a desire to work or volunteer at the Florence Crittenton Center in Los Angeles, a community center offering child care and a variety of other services. Bernice Williams, the Human Resources Manager at the center stated, by affidavit, that all adults must undergo a CACI check prior to obtaining clearance to volunteer or teach at the center. Thus, the Humphries will have to submit to a CACI search before even having an opportunity to volunteer or work at the center.

Similarly, Wendy currently works as a special education teacher and resource specialist at a public school in California. She possesses a number of teaching credentials that must be periodically renewed in order to maintain her current employment — a renewal process that requires her to apply to the California Commission on Teacher Credentialing (“CCTC”). The Humphries have introduced evidence indicating that the information available on the CACI might have an impact on her ability to obtain educational credentials. 9

Wendy has also indicated a desire to pursue a degree in psychology from the University of California at Los Angeles. Two courses of interest within the psychology department, 134 A/D and 134 B/E, place all of the students in a child care program licensed by the state of California. To enroll in these classes, all potential students must pay for and submit to a CACI check.

4. Procedural History

The Humphries initiated this action in federal district court on August 27, 2002. The Humphries’ First Amended Complaint originally included eight counts based on state and federal claims, but on April 14, 2003, the district court dismissed all the state law counts on a Rule 12(b)(6) motion. In the remaining three claims, the Hum-phries sought relief pursuant to 42 U.S.C. § 1983. They alleged that three actions by California officials deprived them of various rights under the United States Constitution: the Humphries’ arrest and incarceration, the Humphries’ initial and continued inclusion in CACI, and the seizure and subsequent placement of the Humphries’ children in temporary protective custody.

*1184 The Humphries sought three types of relief based on these claims. The Hum-phries demanded damages for the constitutional violations resulting from the government’s conduct. In addition to damages, on the allegations related to the Humphries’ listing on the CACI, the Humphries sought an injunction ordering the County of Los Angeles to notify the CA DOJ that LASD’s report to the CACI is unfounded, and to prohibit the State from retaining or disclosing the CACI records on the Humphries based on any report from LASD. The Hum-phries also sought a judicial declaration that CANRA and the County’s and State’s CACI-related policies are unconstitutional because they provide no means for people, such as the Hum-phries, to dispute or expunge their CACI listing or to prevent disclosures of the listing and related records.

Appellees, the County of Los Angeles, Sheriff Leroy D. Baca, and Detectives Wilson and Ansberry (“County Appellees”) and California Attorney General Bill Lock-yer (“State”) (collectively “Appellees”), moved for summary judgment on all claims. The district court denied Appel-lees’ motion for summary judgment on the § 1983 claim regarding the warrantless seizure of the children, but granted Appel-lees’ motion for summary judgment on the § 1983 claim arising out of the Humphries’ initial and continued inclusion in the CACI, as well as the § 1983 claim arising out of the Humphries’ arrest and incarceration. The Humphries appeal the grant of summary judgment with regard to their claims relating to their inclusion in the CACI, arguing that the Appellees’ conduct in listing their names on the CACI and making CACI-related information available to third parties violates their right to due process under the Fourteenth Amendment.

II. ANALYSIS

To establish a prima facie case under § 1983, the Humphries must establish that: (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct violated a right secured by the Constitution and laws of the United States. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Furthermore, the Supreme Court has insisted that even if there is a qualified immunity issue, we must still consider the threshold question of the “existence or nonexistence of a constitutional right as the first inquiry.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). There is no question that the Humphries’ listing on the CACI occurs under color of state law. Thus, the issue in this appeal is whether the initial and continued inclusion of the Humphries on the CACI deprives them of any rights secured by the Constitution and laws of the United States. We find that it does. Accordingly, after our discussion of the existence of a constitutional violation we consider whether the individual and institutional Appellees are entitled to immunity for their acts.

A. Procedural Due Process

The Humphries argue that Appellees violated their Fourteenth Amendment right to procedural due process by listing and continuing to list them on the CACI, without any available process to challenge that listing. In procedural due process claims, the deprivation of a constitutionally protected interest “is not itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). Our analysis proceeds in two steps: “the first asks whether *1185 there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (internal citations omitted). The district court found that the Humphries’ listing on the CACI did not deprive them of any constitutionally protected liberty or property interest. 10 The court did not reach the second step of the due process analysis.

1. Deprivation of a Protected Liberty Interest

The Humphries contend that they have a liberty interest under the “stigma-plus” test of Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). The Humphries argue that the stigma of being listed in the CACI as substantiated child abusers, plus the various statutory consequences of being listed on the CACI constitutes a liberty interest, of which they may not be deprived without process of law. We agree. 11

In Wisconsin v. Constantineau, the Supreme Court held that a liberty interest may be implicated “where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him.” 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). The following year the Court stated that a government employee’s liberty interest would be implicated if he were dismissed based on charges that “imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In Paul v. Davis, the Supreme Court clarified that procedural due process protections apply to reputational harm only when a plaintiff suffers stigma from governmental action plus alteration or extinguishment of “a right or status previously recognized by state law.” 424 U.S. 693, 711, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). This holding has come to be known as the “stigma-plus test.” See Hart v. Parks, 450 F.3d 1059, 1070 (9th Cir.2006).

*1186 a. Stigma

As the district court found, being labeled a child abuser by being placed on the CACI is “unquestionably stigmatizing.” We have observed that there is “[n]o doubt ... that being falsely named as a suspected child abuser on an official government index is defamatory.” Miller v. California, 355 F.3d 1172, 1178 (9th Cir.2004); see also Valmonte v. Bane, 18 F.3d 992, 1000 (2d Cir.1994) (finding it beyond dispute that inclusion on a child abuse registry damages reputation by “branding” an individual as a child abuser). Indeed, “no conduct so unequivocally violates American ethics as ... sexual predation upon the most vulnerable members of our society.” Nicanor-Romero v. Mukasey, 523 F.3d 992, 999 (9th Cir.2008) (citation omitted). The horror deepens when such abuse occurs at the hands of the parents, who have an obligation to protect their children. See id. at 1013 (Bybee, J., dissenting) (“Our recognition that the victim’s vulnerability or intimate relationship with her victimizer can render an act inherently base or vile simply reflects contemporary American mores.”).

The Court has identified stigma on the basis of lesser accusations. In Constanti-neau, the chief of police had posted the plaintiffs name on a list that prohibited her from purchasing alcohol pursuant to a state statute forbidding the sale of alcoholic beverages to persons who had become hazardous by reasons of their “excessive drinking.” 400 U.S. at 434-35, 91 S.Ct. 507. In Paul, the plaintiffs picture appeared on a flyer of individuals who were suspected of shoplifting. 424 U.S. at 695, 96 S.Ct. 1155. In both cases the Court found stigma. Constantineau, 400 U.S. at 435-37, 91 S.Ct. 507; Paul, 424 U.S. at 697, 701, 96 S.Ct. 1155 (stating that imputing criminal behavior to an individual is generally considered “defamatory per se” and implicitly finding stigma by holding that stigma alone is insufficient). Being labeled a child abuser is indisputably more stigmatizing than being labeled an excessive drinker or a shoplifter. Indeed, to be accused of child abuse may be our generation’s contribution to defamation per se, a kind of moral leprosy.

b. Plus

The more difficult issue is whether the Humphries can satisfy the “plus” test. The Humphries must show that, as the result of being listed in the CACI, “a right or status previously recognized by state law was distinctly altered or extinguished.” Paul, 424 U.S. at 711, 96 S.Ct. 1155; see also Siegert v. Gilley, 500 U.S. 226, 233,