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Calling the case “one of international intrigue,” the 1st U.S. Circuit Court of Appeals has held that a police officer was not entitled to immunity after allegedly violating a mother’s rights by turning over her child to Moroccan grandparents masquerading as the parents. Faced with conflicting stories and documents on the child’s parentage, the Revere, Mass., police officer allegedly decided the custody dispute himself, giving the child to her grandparents shortly before they went back to Morocco. The plaintiff, Mouna Kandy Suboh, is a native of Morocco who moved to Massachusetts after marrying an American, Ishaq Suboh. According to Mouna, in 1991 she gave birth to a daughter, Sofia, out of wedlock while she was still living in Morocco with her parents, Mustapha and Rahima Kandy. Mouna claims that her parents took Sofia from her and raised the girl to believe she was Mouna’s sister. Mouna moved to the United States in 1995. Sofia remained in Morocco. Mouna claims she couldn’t get custody because of her father’s influence there. But when the Kandys visited Massachusetts in 1998, bringing Sofia with them, Mouna and Ishaq took Sofia to a hotel so that the Kandys could not return her to Morocco. The Kandys called the police, claiming the Subohs had kidnapped Sofia for ransom. They said they were Sofia’s parents and provided a birth certificate in French and Arabic. The next day, Officer Carl Borgioli interviewed Mouna, who was found with Sofia. Mouna claims she told Borgioli everything and showed him official Moroccan documents. Borgioli denied having seen them. When he called Suffolk Assistant District Attorney Michael N. Murphy, he did not mention any documentation, according to the court ruling. Murphy told Borgioli to charge Mouna with kidnapping by a relative and Ishaq with kidnapping. Borgioli arrested the Subohs and returned Sofia to the Kandys, who took her back to Morocco. The charges against the Subohs were dismissed, but Mouna has not been able to obtain custody of Sofia, and Ishaq committed suicide. In an interlocutory appeal on the allowance of Mouna’s federal and state claims against Borgioli alleging 14th Amendment violations, the 1st Circuit said the policeman did not have a qualified immunity defense. The court said Mouna had a liberty interest in the custody of Sofia, that her accompanying right to due process was clearly established and that an objectively reasonable officer would have not have violated those rights by immediately concluding that the Kandys’ documents were valid and Mouna’s forged. The court dismissed the claims against Murphy. Suboh v. District Attorney’s Office of the Suffolk District, No. 01-2272. Borgioli’s lawyer, Michael J. Akerson of the law offices of Edward P. Reardon in Worcester, Mass., said the policeman released the child to the Kandys at Murphy’s direction, after telling Murphy everything he knew. “The court took small factual disputes and raised them to genuine disputes of material fact,” he said. “Now anybody can create a custody dispute just by saying ‘that’s my child’ and pointing to a child walking with her mother down the street.” One of Mouna’s lawyers, Kimberly H. Scheckner of Boston’s Rodgers, Powers & Schwartz, said, “It borders on hysteria to construe the court’s decision to mean that.”

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