Full opinion text
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. 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 BYBEE, Circuit Judge: 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 government 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). 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, the CA DOJ is also obligated to make it available. 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). 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 grandchildren 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 provided 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. 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. 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 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. 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, and requiring the arrest records pertaining to that charge be sealed and destroyed. A finding of factual inno-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.” 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 abusers, 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. 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. 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 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. 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. 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). 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, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) (reaffirming that an injury to reputation by itself is not a protected liberty interest under the Fourteenth Amendment). As the Court explained in Paul, when the chief of police in Constantineau posted the plaintiffs name on a list forbidding the sale of alcohol to her, it “significantly altered her status as a matter of state law” by depriving her “of a right previously held under state law[ — ]the right to purchase or obtain liquor in common with the rest of the citizenry.” Paul, 424 U.S. at 708, 96 S.Ct. 1155. The Court concluded that “it was that alteration of legal status which, combined with the injury resulting from the defamation, justified the invocation of procedural safeguards.” Id. at 708-09, 96 S.Ct. 1155. In Paul itself, the Louisville Chief of Police placed Davis’ name on a flyer distributed to Louisville merchants containing a list of individuals thought to be active in shoplifting. Id. at 695, 96 S.Ct. 1155. In contrast to the mandatory nature of the statute in Constantineau, the flyer merely “came to the attention” of Davis’ supervisor who warned him not to repeat his actions in the future. Id. at 696, 96 S.Ct. 1155. The Court found that this harm to Davis’ reputation was not sufficient to create a liberty interest. Id. at 712, 96 S.Ct. 1155. Notably, no law had required the Chief of Police to distribute this flyer, nor did any law require employers to check the list. Thus, although any impairment to Davis’ employment opportunities “flow[ed] from the flyer in question,” his injury only occurred because the flyer happened to have “e[o]me to the attention of [his] supervisor.” Id. at 696-97, 96 S.Ct. 1155. As a preliminary matter, the Appellees contend that the Humphries’ attempt to satisfy the “plus” test is foreclosed by our decision in Miller v. California, 355 F.3d 1172 (9th Cir.2004). In Miller, we confronted different questions concerning the rights of grandparents listed on the CACI. The Millers’ three grandchildren had been removed from their parents’ home, and the Millers were eventually named the children’s guardians. Id. at 1173-75. In the meantime, as a result of a doctor’s concern about possible sexual abuse, Charles Miller’s name was listed on the CACI. Id. at 1174-75. The Millers brought suit to clear their names and argued that county employees, by placing Charles Miller’s name on the CACI, had conspired to deprive them of a liberty interest to associate with their grandchildren. Id. at 1173-74. We held that the Millers had no “substantive due process right to family integrity or association as noncustodial grandparents of children who are dependents of the court, nor of a liberty interest in visiting their grandchildren.” Id. at 1176. In a separate argument, Charles Miller argued that he had suffered a stigma-plus injury to his reputation and had been denied an opportunity to be heard on the deprivation. Id. at 1177. We concluded that Miller had shown injury to his reputation, but could not establish the “plus” because he was “not legally disabled by the listing [on the CACI] alone from doing anything they otherwise could do.” Id. at 1179. As we observed, the Millers were in fact awarded guardianship of their grandchildren after Charles’ name had been placed on the CACI. The only “plus” alleged in Miller was a fundamental liberty interest in preserving family association. Id. at 1178. We held that because grandparents have no constitutionally protected liberty interest in a relationship with their grandchildren, the Millers could not allege “plus” on those grounds. Id. Significantly, we expressly declined to address whether the mere presence of Miller’s name on the CACI denied him due process “because CANRA provides no procedure by which those suspected of being child abusers can challenge the allegations against them.” Id. at 1179 n. 4. The argument had not been properly presented to the district court and was not properly before us. We also did not address whether requiring agencies to search the CACI prior to issuing a license constitutes a viable “plus.” We now take the opportunity to address these issues left open in Miller. The Humphries allege more than mere reputational harm — being listed on the CACI alters their rights in two general ways. First, state statutes mandate that licensing agencies search the CACI and conduct an additional investigation prior to granting a number of rights and benefits. These rights include gaining approval to care for children in a day care center or home, Cal. Health & Safety Code § 1596.877(b), obtaining a license or employment in child care, id. § 1522.1(a), volunteering in a crisis nursery, id. § 1526.8(b)(2), receiving placement or custody of a relative’s child, Cal. Welf. & Inst. Code § 361.4(c), or qualifying as a resource family, id. § 16519.5(d)(1)(A)®. These benefits are explicitly conditioned on the agency checking the CACI and conducting an additional investigation. Second, information in the CACI is specifically made available to other identified agencies: state contracted licensing agencies overseeing employment positions dealing with children, Cal. Penal Code § 11170(b)(4); persons making pre-em-ployment investigations for “peace officers, child care licensing or employment, adoption, or child placement,” id. § 11170(b)(8); individuals in the Court Appointed Special Advocate program conducting background investigations for potential Court Appointed Special Advocates, id. § 11170(b)(5), and out-of-state agencies making foster care or adoptive decisions, id. § 11170(e)(1). Although these agencies are not explicitly required by CANRA to consult the CACI, they may, as a practical matter, be required to do so by their own regulations or practices, as discussed below. Thus, inclusion in the CACI alters the Humphries’ legal rights or status in a variety of ways that Californians who are not listed on the CACI are not subject to: applying for custody of a relative’s child, becoming guardians or adoptive parents (inside or outside of California), obtaining a license for child care, becoming licensed or employed in a position dealing with children, obtaining employment as a peace-officer, and involvement in adoption and child placement. We have mentioned, and the district court found, that the Humphries were directly affected in their eligibility to work or volunteer at a local community center. The Humphries also introduced evidence indicating that Wendy was affected in her ability to renew her teaching credentials. We recognize that being listed on the CACI may not fully extinguish the Hum-phries’ rights or status. Agencies that obtain information from the CACI are responsible for “drawing independent conclusions regarding the quality of the evidence disclosed.” Id. § 11170(b)(9)(A). Thus, for example, inclusion on the CACI does not necessarily bar the Humphries from obtaining a license for child care, but it does guarantee that the licensing entity will conduct an investigation anew before issuing or denying the license. However, we need not find that an agency will necessarily deny the Humphries a license to satisfy the “plus” test. Outright denial would mean that a listing on the CACI has extinguished the Humphries’ legal right or status. Rather, Paul provides that stigma-plus applies when a right or status is “altered or extinguished.” 424 U.S. at 711, 96 S.Ct. 1155 (emphasis added). We hold that where a state statute creates both a stigma and a tangible burden on an individual’s ability to obtain a right or status recognized by state law, an individual’s liberty interest has been violated. A tangible burden exists in this context where a law effectively requires agencies to check a stigmatizing list and investigate any adverse information prior to conferring a legal right or benefit. As outlined above, California created the CACI via CANRA and explicitly requires agencies to consult the CACI and perform an independent investigation before granting a number of licenses and benefits. This requirement places a tangible burden on a legal right that satisfies the “plus” test. We find that a tangible burden also exists where the plaintiff can show that, as a practical matter, the law creates a framework under which agencies reflexively check the stigmatizing listing — whether by internal regulation or custom — prior to conferring a legal right or benefit. CAN-RA appears to create such a legal framework. CANRA explicitly provides that a variety of agencies will have access to the CACI, and we cannot turn a blind eye to the actions of these other agencies merely because they are not explicitly required by statute to receive CACI information. The record before us on this latter point is admittedly sparse. Nevertheless, as a practical matter, it is difficult to imagine that an agency charged with protecting California’s children — through granting or denying licenses to work in child care, allowing people to engage in adoption or child-placement services, or considering potential Court Appointed Special Advocates — would fail to consult the CACI. There is possibly no information more relevant to determining whether a person should be permitted to have a license to work or care for children than whether that person has abused an innocent child in the past. As Bernice Williams, the Human Resources Manager at the Florence Crittenton Center in Los Angeles stated in her affidavit, “Before any adult is cleared to teach at our school, to work at our day care center, or to work or volunteer anywhere within our facility, he or she must undergo Livescan screening, including a [CA DOJ CACI] check.” We would be surprised to hear anything differently from other agencies or entities responsible for providing for the safety and education of children. Indeed, on top of the need to protect California’s youth, hiring or giving a license to someone without checking the CACI could potentially lead to tort liability under California law. See Juarez v. Boy Scouts of Am., Inc., 81 Cal.App.4th 377, 97 Cal.Rptr.2d 12, 24-25 (2000) (“[I]n California, an employer can be held liable for negligent hiring if he knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee’s unfitness before hiring him. [T]he theory of negligent hiring here encompasses the particular risk of molestation by an employee with a history of this specific conduct.”) (internal citations and quotations omitted). Once an agency consults the CACI and finds adverse information, CANRA requires the agency to conduct an investigation and come to its own conclusion. Cal. Penal Code § 11170(b)(9)(A) Viewing the evidence in the light most favorable to the Humphries, we conclude that California has implemented a system whereby the CACI is reflexively consulted prior to the conferral of legal rights or benefits under California law, even where the statute does not necessarily require agencies to check the list on its face. The CANRA both stigmatizes the Humphries and creates an impediment to the Hum-phries’ ability to obtain legal rights. The Humphries have asserted the existence of a sufficient liberty interest under the stigma-plus test, of which they may not be deprived without due process of law. Our holding is consistent with Paul. In Paul, the Court was concerned that every insult by a police officer might create a due process right and turn the Fourteenth Amendment into “a font of tort law to be superimposed upon whatever systems may already be administered by the States.” 424 U.S. at 701, 96 S.Ct. 1155. This concern that “a hearing would be required each time the State in its capacity as employer might be considered responsible for a statement defaming an employee who continues to be an employee,” id. at 710, 96 S.Ct. 1155, is not triggered here. Our decision is limited to those “stigma-plus” situations where both the defamatory statement and the tangible burden on a legal right are statutorily created. In Paul, individual officers independently chose to distribute a leaflet, and the stigmatizing language in the leaflet just happened to come to the attention of the plaintiffs private supervisor. In contrast, the burdens on the Humphries’ abilities to obtain various licenses and other legal rights from the state of California are the result of state statutes creating the CACI, instructing state officers to put certain information on the CACI, and effectively mandating that various entities consult the CACI. The CACI is not just haphazard, second-hand information that happens to reach the ears of an employer. This case does not resemble the sort of state-court tort case that Paul feared. In reaching this holding, we find the Second Circuit’s reasoning in Valmonte v. Bane persuasive. 18 F.3d 992 (2d Cir.1994). In Valmonte, the Second Circuit heard a challenge to the New York Central Register of Child Abuse and Maltreatment. Under the New York scheme, the Department of Social Services determined whether an allegation of child abuse was “indicated” or “unfounded.” Id. at 995. If there was “some credible evidence” supporting a complaint, the report was deemed “indicated” and went into the Central Register; otherwise, it was deemed “unfounded,” expunged from the Central Register, and destroyed. Id. As in California, state agencies, private businesses, and licensing agencies were required to check whether potential employees or applicants were on the Central Register. Id. The agency or business could hire the person only if the employer maintained a written record explaining why the person was suitable for employment or a license. Id. at 996. The court found that because agencies and employers would learn of Valmonte’s inclusion on the Central Register “by operation of law ... and ... likely ... will choose not to hire her due to her status” the New York scheme “[did] not simply defame Valmonte, it place[d] a tangible burden on her employment prospects.” Id. at 999, 1001. The Second Circuit explained that “[t]his is not just the intangible deleterious effect that flows from a bad reputation. Rather, it is a specific deprivation of her opportunity to seek employment caused by a statutory impediment established by the state.” Id. at 1001. Valmonte stands for the proposition that to satisfy stigma-plus, a child abuse registry does not need to create a per se bar to employment; it is sufficient that a child abuse registry, by operation of law, creates a “statutory impediment” or a “tangible burden” to being hired. Id. at 1001-02. See also Dupuy v. Samuels, 397 F.3d 493, 503-04, 509-11 (7th Cir.2005) (finding that where “child care workers effectively are barred from future employment in the child care field once an indicated finding of child abuse or neglect against them is disclosed to, and used by, licensing agencies” a protected liberty interest is “squarely implicate[d]” under Paul). Appellees argue that the CACI differs from the statute in Valmonte, because there is no requirement in California that an agency maintain a written record explaining why the person was suitable for employment or other government right. We disagree. The CACI requires agencies to undergo the same investigation to independently establish eligibility for a government benefit. The mere fact that agencies in California are not required to write anything down does not place any less of a burden on the Humphries’ ability to obtain employment, a license, or custody than Valmonte experienced under the New York statute. We emphasize that an injury that results merely from simple defamation is not a constitutional liberty interest under the “stigma-plus” test. Siegert v. Gilley, 500 U.S. 226, 233-34, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Employment, licensing, custody, or other legal rights under California law are not refused merely because of the deleterious effect of a bad reputation. By operation of law, California has effectively required agencies to consult the CACI, agencies will have to conduct an additional investigation to determine if the Humphries should be eligible for a government benefit, and those agencies will therefore be more hesitant to issue that benefit. As in Valmonte, the Humphries will not lose these benefits based merely on their reputation, these benefits “will be refused ... simply because [their] inclusion on the list results in an added burden on employers who will therefore be reluctant to hire [them].” 18 F.3d at 1001. We note that the Eleventh Circuit, in Smith v. Siegelman, denied a stigma-plus claim where the plaintiff was designated a child sexual abuser and placed on Alabama’s Central Registry on Child Abuse and Neglect. 322 F.3d 1290, 1296-98 (11th Cir.2003). We think Smith rests on a different footing. It appears that Alabama did not mandate that potential employers consult the Registry; rather, “the information on the Registry is made available to an employer or potential employer where the employment involves care or supervision of children.” Id. at 1297; see also Ala. Code § 26-14-8(d) (providing that the information in the registry “may be made available” to employers). Accordingly, the Eleventh Circuit held that the Alabama scheme was governed by Paul because the plaintiff “was [not] denied any right or status other than his not being branded a child sexual abuser.” Id. at 1297. As we have explained, the CACI is more than a registry that an employer “may” consult. By law, licensing agencies must consult the CACI, investigate, and use the CACI information in making their licensing decisions, see, e.g., Cal. Health & Safety Code §§ 1522.1(a), 1526.8(b)(2), 1596.877(b). The CACI is much closer to the New York Central Register than the Alabama Registry. See Valmonte, 18 F.3d at 1002 (explaining that “the injury associated with the[New York] Central Register is not simply that it exists, or that the list is available to potential employers” but rather that “employers must consult the list.”). In addition, the Eleventh Circuit either did not have evidence of or did not consider the possibility that as a result of the statutory framework other entities were effectively required to consult the registry as a matter of internal rule or custom. To the extent that the Eleventh Circuit refuses to recognize a liberty interest where the state functionally requires agencies to consult a stigmatizing list prior to conferring a government benefit, we must disagree. A state can alter a legal right or status without using the word “must” — the word “may” in conjunction with a rule or custom of “must” can equally deprive a citizen of a liberty interest giving rise to a procedural due process claim. Thus, we conclude that the Humphries’ legal rights or status have been altered. First, California has explicitly required some agencies to search a stigmatizing listing and conduct an additional investigation before issuing a license or benefit under state law. Second, California has made CACI information available to a variety of other agencies, and the Humphries have introduced evidence that those agencies — especially agencies charged with ensuring the safety and well-being of children — reflexively check the CACI before issuing a government license or benefit. Thus, being listed on the CACI places an added burden on entities wishing to confer legal rights or benefits, makes the chances of receiving a benefit conferred under California law less likely, and practically guarantees that conferral of that benefit will be delayed. Accordingly, we hold that the Humphries have satisfied the first step of the procedural due process analysis: They have a liberty interest in both their good name and using it to obtain a license, secure employment, become guardians, volunteer or work for CASA, or adopt. Listing the Humphries on the CACI places a tangible burden on their ability to exercise this liberty interest. We proceed to consider whether they have been deprived of this interest without due process of law. 2. Adequacy of the Procedural Safeguards The Humphries must show that the procedural safeguards of their liberty interest established by the state are constitutionally insufficient to protect their rights. Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). California currently provides some minimal safeguards against erroneously listing someone on the CACI. In the first place, a reporting agency must conduct “an active investigation and determine[] that the report is not unfounded.” Cal. Penal Code § 11169(a). Once the agency creates the report and forwards it to the CA DOJ, if a report “subsequently proves to be unfounded” the CA DOJ has a duty to “not retain the report.” Id. Although this entire process is spelled out in the passive voice, it appears that the agency has the duty to correct its files and thus to decide if they are unfounded. See id. § 11170(a)(2) (“The submitting agencies are responsible for the accuracy, completeness, and retention of the reports.”). CANRA also provides that the CACI “shall be continually updated by the [CA DOJ] and shall not contain any reports that are determined to be unfounded.” Cal. Penal Code § 11170(a)(1). Once a report has been made to the CA DOJ and an entry made on 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].” Id. § 11169(b). A person who believes he has been wrongfully listed on the CACI has two possible remedies under CANRA. First, a listed person might try to get the agency who originally reported the information to the CACI to correct its reports. As noted above, it appears that California agencies have a general duty to maintain accurate records and to advise CA DOJ of any report that subsequently proves unfounded. Cal. Penal Code §§ 11169(a), 11170(a)(1). CANRA does not identify how an agency is to ensure that it has accurate records or who is responsible for correcting any errors. The CA DOJ’s responsibility is limited to ensuring that the CACI “accurately reflects the report it receives from the submitting agency”' — -it does not appear to have any duty to ensure the accuracy of the report itself. Id. § 11170(a)(2); Cal. Code Regs. tit. 11, § 904 (2008) (stating that the CA DOJ “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”). At best, CANRA implies that reports are subject to correction “by the investigator who conducted the investigation.” Id. § 11165.12. However, California provides no formal mechanism for requesting that an investigator review a report or for appealing an investigator’s refusal to revisit a prior report. Thus, for this first avenue of obtaining relief, at best an informal process exists in which the person seeking review must contact the agency blindly and hope the investigator is responsive. It is not clear what a person seeking review is to do if the investigator has transferred from the agency, retired, or died. Second, the person may rely on a licensing or employing agency to conduct its own investigation and to “draw[ ] 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). Indeed, no particular process is required pri- or to the agency “drawing independent conclusions.” Unless the agency unilaterally undertakes its own detailed investigation, it may only perpetuate any errors contained in the original report, even as it draws its own “independent conclusions.” In addition, even if the agency has the time, funding, and resources to determine that the evidence contained in the CACI is erroneous or unfounded, it does not have power to expunge the listing. Thus, in the best case scenario for an innocent person placed on the CACI, the only remedy under this avenue for relief is that the agency might still confer the government benefit after taking the time to conduct an added background investigation. The CACI listing, however, remains. We evaluate the process that California provides persons listed on the CACI under the three part test set out in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Mathews instructs us to balance (1) the private interest affected by the official action; (2) the risk of erroneous deprivation and the probable value of additio