ROBERT CALABRETTA, individually and as parent and natural guardian of Tamar and Natalie Calabretta, minor children; SHIRLEY CALABRETTA, individually and as parent and natural guardian of Tamar and Natalie Calabretta, minor children, Plaintiffs-Appellees, v. JILL FLOYD, individually and in her |
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No. 97-15385
D.C. No. OPINION |
Appeal from the United States District Court for the Eastern District of
California Lawrence K. Karlton, District Judge, Presiding
Argued and Submitted
June 8, 1998--San Francisco, California
Filed August 26, 1999
Before: J. Clifford Wallace, Thomas G. Nelson and Andrew J. Kleinfeld, Circuit
Judges.
Opinion by Judge Kleinfeld
_________________________________________________________________
COUNSEL
J. Scott Smith, Angelo, Kilday and Kilduff, Sacramento, California, for the
defendants-appellants.
Michael P. Farris, Home School Legal Defense Association, Paeonian Springs,
Virginia, for the plaintiffs-appellees.
Stephen Bailey (briefed), Placerville, California, for the plaintiffs-appellees.
Thomas R. Yanger (briefed), Deputy Attorney General, Sacramento, California, for
amicus State of California Ex Rel.
Eloise Anders, Director of the California State of Social Services.
Kevin T. Snider (briefed), United States Justice Foundation, Escondido,
California, for amicus United States Justice Foundation and Christian Action
Network.
_________________________________________________________________
OPINION
KLEINFELD, Circuit Judge:
This case involves whether a social worker and a police officer were entitled to
qualified immunity, for a coerced entry into a home to investigate suspected
child abuse, interrogation of a child, and strip search of a child, conducted
without a search warrant and without a special exigency.
Facts.
The two individual defendants moved for summary judgment based on qualified
immunity. The district judge denied it.
Some individual called the Department of Social Services October 27, 1994, with
the information that gave rise to this case. The report says that the caller was
anonymous, but the report redacts names, thus it is not clear whether the caller
gave her name but the Department treated her as anonymous, or whether she
refused to give her name. The caller said that she was once awakened by a child
screaming "No Daddy, no" at 1:30 A.M. at the Calabretta home. Then two
days ago she (or someone else, possibly a Department of Social Services employee
- it is not clear from the report) heard a child in the home scream "No,
no, no" in the late afternoon. The caller said that the children "are
school age and home studied" and that "this is an extremely religious
family."
The report was put into the in box of defendant Jill Floyd, a social worker in
the Department. She checked the Department files to see whether the Calabretta
family had any "priors," or had ever been on welfare, and ascertained
that they had no priors and had never been on welfare. She did not attempt to
interview the person who had called in the report.
On October 31, four days after the call, the social worker went to the
Calabretta home to investigate. Mrs. Calabretta, the children's mother, refused
to let her in. The children were standing at the door with their mother, and the
social worker noted on her report that they "were easily seen and they did
not appear to be abused/neglected." The social worker was about to go on
vacation, so she requested that someone else be assigned to the case, but the
investigation had not been completed when she returned. On November 10, fourteen
days after the call and ten days after the first visit, the social worker
returned to the Calabretta house with a policeman. She did not tell the police
dispatcher about the specific allegations, just that she needed police
assistance to gain access so that she could interview the children. Officer
Nicholas Schwall met the social worker at the Calabretta house, knowing nothing
about the case except that he had been assigned to assist her. She told him that
they had received a report of the children crying, and he understood her to mean
that they might have been beaten.
The policeman knocked, Mrs. Calabretta answered, and the policeman said they
were checking on the children's welfare because someone had reported children
crying. Mrs. Calabretta did not open the door, and said she was uncomfortable
letting them in without her husband at home. The police offi cer had the opinion
that in any check on the welfare of children "there is an exigent
circumstance" so no search warrant is needed. Mrs. Calabretta and Officer
Schwall disagreed in their depositions on whether Officer Schwall told her that
if she did not admit them, then he would force their way in. Appellants concede
that for purposes of appeal, the entry must be treated as made without consent.
The social worker then took Mrs. Calabretta's twelve year old daughter into one
room while the policeman stayed with the mother in another. The twelve year old
did not remember any of the children screaming "No, Daddy, no, " but
did recall that at about the date of the report, her little brother hurt himself
in the backyard and screamed "no, no, no. " The social worker asked
what kind of discipline the parents used, and understood the twelve year old to
be saying that the parents used "a round, wooden dowel, very, very thin
wooden dowel," about "twice as big . . . as a pen. " The three
year old came into the room at that point and said "I get hit with the
stick too." The twelve year old told her, according to the social worker's
report, "that her parents do not discipline indiscriminately, only
irreverence or disrespect. " The social worker wrote in her report
"Minor is extremely religious - made continual references to the Lord and
the Bible. " The social worker testified that any physical means of
disciplining children "raises a red flag" for her, and "I always
counsel or advise parents on other ways of discipline before they resort to
corporal punishment."
While the mother was still with the policeman in the other room, the social
worker told the twelve year old to pull down the three year old girl's pants.
She wanted to look at the three year old's buttocks to see whether there were
marks. The twelve year old did not do so, and the three year old started crying.
The mother heard her daughter crying and ran in. The twelve year old said
"she wants me to take down Natalie's pants." The social worker said
"I understand you hit your children with objects," and went on to say
"It's against the California state law to hit your children with objects.
And I found out that you hit your children with objects. And I need to see
Natalie's bottom to see if there are bruises there." The policeman said
"I'll leave you alone to do this" and backed off. The social worker
said "The rod of correction?" Mrs. Calabretta answered, "Oh, it's
just a little stick," referring to "a little Lincoln log, piece of
Lincoln log roofing, nine inches long." Mrs. Calabretta "explained the
Biblical basis of its use" to the social worker. The social worker repeated
"It's against California law to hit your children with objects. This is
breaking the law. And I insist on seeing her bottom." The three year old
was screaming and fighting to get loose, the mother looked at the social worker
to see whether she would relent, but she did not, and the mother pulled down the
three year old's pants in obedience to the social worker's order.
There were no bruises or marks on the three year old's bottom. The social worker
then insisted on seeing the piece of Lincoln log roofing, and Mrs. Calabretta
showed it to her. The social worker then decided not to interview or examine the
buttocks of any of the other children. She "had a brief conversation with
the mother in which we discussed her looking into alternative forms of
discipline."
The Calabrettas sued the social worker and policeman and other defendants for
damages, declaratory relief and an injunction under 28 U.S.C. S 1983. The
defendants moved for summary judgment on grounds of qualified immunity. The
district court denied the defendants' motion, and the social worker and police
officer appeal.
Analysis.
We have jurisdiction over interlocutory appeals from denials of summary
judgments denying qualified immunity. 1 On summary judgment, "even in a
qualified immunity case, we must assume the nonmoving party's version of the
facts to be correct."2 Those facts must, of course, be established by
evidence cognizable under Federal Rule of Civil Procedure 56. In this case,
although the parties disagree on some details, the disagreements are not
material to the outcome. We review denial of the qualified immunity claim de
novo.3
A. The coerced entry
The social worker and police officer concede that for purposes of appeal, they
should be treated as having entered the Calabretta home without consent. They
argue that the district court erred in holding that their nonconsensual entry
required special exigency or a search warrant. Their theory is that an
administrative search to protect the welfare of children does not carry these
requirements, and the social worker was doing just what she was supposed to do
under state administrative regulations. They claim immunity for entry into the
home, interviewing the twelve year old, and strip searching the three year old.
[1] "[G]overnment officials performing discretionary functions generally
are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known."4 The right the official is alleged to
have violated must have been "clearly established" in an appropriately
particularized sense. "The contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that
right. That is not to say that an official action is protected by qualified
immunity unless the very action in question has previously been held unlawful,
but it is to say that in the light of pre-existing law the unlawfulness must be
apparent."5 The "relevant question . . . is the objective (albeit
fact-specific) question whether a reasonable officer could have believed [the]
warrantless search to be lawful, in light of clearly established law and the
information the searching officers possessed. [The officer's] subjective beliefs
about the search are irrelevant."6 "Specific binding precedent is not
required to show that a right is clearly established for qualified immunity
purposes."7
[2] The facts in this case are noteworthy for the absence of emergency. The
social worker and her department delayed entry into the home for fourteen days
after the report, because they perceived no immediate danger of serious harm to
the children. The police officer was there to back up the social worker's
insistence on entry against the mother's will, not because he perceived any
imminent danger of harm. The report that led to the investigation could have
indicated a problem, but was not especially alarming. A child screaming
"no, Daddy, no" late at night could mean that the father was abusing
the child. But in a household where the father puts the children to bed, these
words are often screamed at bedtime, and also in the middle of the night after a
child has gotten up to go to the bathroom, get a drink of water, check the
television, and enter his parents' room to say that he cannot sleep, when the
father puts the child to bed the second time. The other scream, "no, no,
no," likewise may mean abuse, or may mean that a child around two is
developing a normal, healthy sense of separateness of herself as an individual
and perhaps does not care for her mother's choice of vegetable. The tipster's
reference to religion might imply that the tip arose from religious differences
between the tipster and the Calabretta family. Had the information been more
alarming, had the social worker or police officer been alarmed, had there been
reason to fear imminent harm to a child, this would be a different case, one to
which we have no occasion to speak.
Appellants urge us to adopt a principle that "a search warrant is not
required for home investigatory visits by social workers." They claim
qualified immunity on the ground that there is no clearly established principle
to the contrary. The principle they urged is too broad. Anderson requires more
particularized analysis, to determine whether, in these particular
circumstances, notably the absence of emergency, a reasonable official would
understand that they could not enter the home without consent or a search
warrant.8
[3] In our circuit, a reasonable official would have known that the law barred
this entry. Any government official can be held to know that their office does
not give them an unrestricted right to enter peoples' homes at will. We held in
White v. Pierce County9, a child welfare investigation case, that "it was
settled constitutional law that, absent exigent circumstances, police could not
enter a dwelling without a warrant even under statutory authority where probable
cause existed."10 The principle that government officials cannot coerce
entry into people's houses without a search warrant or applicability of an
established exception to the requirement of a search warrant is so well
established that any reasonable officer would know it. Under White, appellants'
claim, that "a search warrant is not required for home investigatory visits
by social workers," is simply not the law.
[4] Appellants urge that White speaks only to police, not social workers. That
is an invalid distinction. In the case at bar, the social worker used a police
officer to intimidate the mother into opening the door. Also, there is no reason
why White would be limited to one particular kind of government official. The
Fourth Amendment preserves the "right of the people to be secure in their
persons, houses . . . . " without limiting that right to one kind of
government official. It is not as though all reasonable people thought any
government official could enter private houses against the occupants' will,
without search warrant or special exigency, and then White said that police
officers could not, without speaking about social workers. Rather, everyone knew
that the government could not so enter houses, and White said that principle was
well established, in the context of a child abuse investigation. Appellants'
argument that they be allowed qualified immunity because White did not speak
expressly about social workers is of the kind that Anderson rejects, "[t]hat
is not to say that an official action is protected by qualified immunity unless
the very action in question has previously been held unlawful . . . ."11
There is a distinction between White and the case at bar, but the distinction is
of no help to appellants. In White, there was
_________________________________________________________________
10 Id. at 815.
11 Anderson,
483
U.S. at 640
.
a special exigency. Someone had called in a report that the seven year old had
several welts on his back. The boy and his father talked to the police officer
at the door, and the boy tried to show the officer his back, but the father
would not allow him to. Based on the report, and the father's violent and
abusive response when questioned, the officer thought that if he delayed to get
a warrant, the father would injure the child or remove him from the house before
the officer returned with the warrant. We held that "the deputies had
probable cause to believe the child had been abused and that the child would be
injured or could not be taken into custody if it were first necessary to obtain
a court order."12
By contrast, in the case at bar, the report did not describe any evidence of
physical abuse, and the social worker and police officer did not perceive any
danger of injury to the children or loss of evidence if they secured a warrant.
On her first visit four days after the call, ten days prior to her return with
the police officer, the social worker wrote "Minors were easily seen and
they did not appear to be abused/neglected." The only reason the social
worker and police officer did not seek a search warrant was that their
subjective opinion was that they did not need one.
Appellants argue that Baker v. Racansky13 limits White to the principle that
compliance with a constitutionally permissible state statute entitles the
government officials to immunity. That is not correct. We did not limit White at
all in Baker, but merely held that it did the claimants in that case no good.
Baker is not on point, because it did not involve any kind of home search, and
did not turn on any child welfare exception to normal search and seizure law.
In Baker, we held that social workers were entitled, in the particular
circumstances of that case, to qualified immunity for their decision to take a
child into protective custody. We noted that at the time, "there was no
binding Ninth Circuit or Supreme Court precedent which clearly established when
state officials could or could not take a child into temporary protective
custody."14 That, of course, distinguishes Baker from the case at bar,
where at the time there was binding Ninth Circuit precedent, White, which
clearly established that the general law of search warrants applied to child
abuse investigations. Baker also differs from the case at bar in that the
investigators reasonably believed that the child was in imminent danger of abuse
if they did not act. A neighbor's children reported to their mother, and to the
social worker, that the child's father had sexually abused them, and one of them
had a vaginal rash that corroborated the accusation. When the social workers
asked the father's own child if his father did anything sexual with him, the
child denied it but "started walking around the room . . . would crawl up
in his chair . . . went into the corner of the room, put his head in between his
legs, raised his legs up, put his arms up toward his head like this, curled
up."15 The social workers thought the denial was false, because of the
child's bizarre behavior when he made the denial, and thought that the mother
would not be able to protect the child when the father was released from jail.
Appellants argue that other circuits have allowed broader qualified immunity, so
the social worker and police officer could not have been expected to know that
they were acting unconstitutionally. They cite Darryl H. v. Coler ,16 Wildauer
v. Frederick Cnty.,17 and Franz v. Lytle,18 and some out of circuit district
court and state court decisions to show that there is no
_________________________________________________________________
14 Id. at 187.
15 Id. at 189.
16 Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986).
17 Wildauer v. Frederick County , 993 F.2d 369 (4th Cir. 1993).
18 Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993).
well-established right to privacy from inspections by social workers. It is not
clear that a conflict among other circuits would create qualified immunity where
clearly established law in this circuit would preclude it,19 but even if
it could, these cases would not establish such an open question about coerced
entry.
Darryl H. involves strip searches of children, not warrantless entries into
homes, and is discussed below with respect to the strip search. Wildauer
involves an entry into a home, but there was apparent consent and no express
objection, no criminal aspect to the investigation, no entry of a parental home
to investigate parents' treatment of their children, and no investigatory
purpose. The householder had nine "foster children" living with her
(apparently the children were not placed there pursuant to custody orders), and
two sets of parents had complained that she would not give their children back
despite the absence of any custodial claim. When the social worker appeared, the
householder gave two children back and said there were two more she could not
find, and invited the social worker in to help look for them. The social worker
came back with a nurse because many of the children were disabled and the house
looked unhygienic to the social worker, but the purpose of the second look, to
which no objection was made, was to see whether the children should stay there,
not to investigate any crime.
We are unable to see why appellants cite Franz v. Lytle.20 A neighbor told the
police that a woman was leaving her two year old unsupervised and not changing
her urine-soaked diapers. The Tenth Circuit held that the investigating police
officer was not entitled to qualified immunity, for having the neighbor take off
the child's diaper so that he could examine and feel the baby's vaginal area,
and under the guise of investigating for sexual molestation, threatening to take
the baby into protective custody to make the parents bring the baby to a
hospital for further vaginal examination (which revealed no evidence of sexual
molestation, a crime for which there was no evidence). The case would not have
given the police officer and social worker in the case at bar any reason to
think their entry into the Calabretta house and strip search of the three year
old was constitutionally permissible, because to the extent that Franz was in
any way analogous, the police officer lost on his qualified immunity
claim.
One other circuit has spoken on facts analogous to those in the case at bar.
Good v. Dauphin County Social Services,21 like our decision in White, holds that
a social worker and police officer were not entitled to qualified immunity for
insisting on entering her house against the mother's will to examine her child
for bruises. Good holds that a search warrant or exigent circumstances, such as
a need to protect a child against imminent danger of serious bodily injury, was
necessary for an entry without consent, and the anonymous tip claiming bruises
was in that case insufficient to establish special exigency. In our case, the
anonymous tip did not even allege bruises.
Appellants also argue that the doctrine allowing certain kinds of administrative
searches without warrants or special exigency applies to social workers' entries
into homes for child protection. That proposition is too broad for the kind of
particularized examination of conduct in particular circumstances required by
Anderson. We need not decide whether in some circumstances that doctrine might
apply, because it does not apply in the circumstances of this case.
The starting point for administrative searches is Camara v.Municipal Court.22
The case involved a routine municipal housing code inspection of an apartment
house, yet the Court held that the Fourth Amendment requirement of a search
warrant, consent, or exigent circumstances applied. The requirement of probable
cause was diluted in the circumstances, so a warrant would be easy to obtain if
an occupant would not let an inspector in without it, but a search warrant was
necessary in the absence of special exigency or consent, despite the lack of any
criminal investigatory purpose. Our analysis in White is consistent with Camara,
and Camara is of no help to appellants.
Appellants argue that Wyman v. James,23 establishes that where a social worker
enters a house to investigate the welfare of a child, Fourth Amendment standards
do not apply. It does not. Wyman holds that the state may terminate welfare
where a mother refuses to allow a social worker to visit her home to see whether
the welfare money is being used in the best interests of the child for whom it
is being paid. It does not hold that the social worker may enter the home
despite the absence of consent or exigency. Wyman distinguishes Camara on the
ground that in Wyman, "the visitation in itself is not forced or
compelled."24 In the case at bar, by contrast, the entry into the home was
forced and compelled.
[5] New Jersey v. T.L.O.25 holds that the Fourth Amendment does apply to a
school administrator search of a student's purse, but that in the special
context of in-school searches, the Fourth Amendment did not require a warrant or
probable cause. It has no bearing on searches of a home. Appellants would have
us read T.L.O. as a blanket suspension of ordinary Fourth Amendment requirements
where children are involved. The Court's opinion does not support so broad a
reading. The court emphasized that it was "the school setting" that
"requires some easing of the restrictions to which searches by public
authorities are ordinarily subject."26 Of course there are occasions when
Fourth Amendment restrictions on entry into homes are relaxed. We emphasize that
in this case the officials entered without a warrant or consent simply because
they thought they had a right to do so, and thought that the Fourth Amendment
did not apply to entries into homes where children were involved. This was not a
case where the officials coercing entry into the home recognized some special
exigency creating imminent risk to the child. White v. Pierce County27
establishes that a special exigency excuses a warrantless entry where the
government officers have probable cause to believe that the child has been
abused and that the child would be injured or could not be taken into custody if
it were first necessary to obtain a court order.
Appellants also argue that the coerced entry into the home was primarily to
protect the children, not investigate crime, pursuant to California regulations.
It is not clear why this would excuse them from compliance with the Fourth
Amendment, in light of the Camara holding that administrative inspections of
buildings are "significant intrusions upon the interests protected by the
Fourth Amendment," even though not criminal, so in the absence of
emergency, warrants should be obtained if consent is refused.28 We held, years
before the coerced entry into the Calabretta home, that even in the context of
an administrative search, "[n]owhere is the protective force of the fourth
amendment more powerful than it is when the sanctity of the home is involved . .
. . Therefore, we have been adamant in our demand that absent exigent
circumstances a warrant will be required before a person's home is invaded by
the authorities."29 [6] Nor did the California statutes and
regulations direct the social worker or police officer to coerce entry into the
home without a warrant or special exigency, or suggest that no warrant was
needed in that circumstance. The statutes 30 appellants cite say nothing about
entering houses without consent and without search warrants. The regulations
they cite require social workers to respond to various contacts in various ways,
but none of the regulations cited31 say that the social worker may force her way
into a home without a search warrant in the absence of any emergency. A possibly
related regulation, in the chapter on "Report of Child Abuse Investigative
Procedures," does speak to search warrants, but not at all helpfully to
appellants. It says that the "child protective official" receiving a
report should "consider the need for a search warrant."32 This
administrative regulation would tend to put the social worker on notice that she
might need a search warrant, not that she was exempt from any search warrant
requirements. Appellants presented no evidence they did "consider the need
for a search warrant." They both imagined incorrectly that no search
warrants were necessary to enter houses for child abuse investigations.
We conclude that on appellants' first issue, whether they were protected by
qualified immunity regarding their coerced entry into the Calabrettas' home, the
district court was right. They were not.
B. The strip search.
Appellants second issue on appeal is whether they were entitled to qualified
immunity for the social worker's requiring the twelve year old to talk to her in
a separate room and requiring the mother to pull down the three year old's
pants. They argue that there is no authority on point in the Ninth Circuit, and
the Seventh Circuit held in Darrell H. v. Coler33 that such a visual inspection
is shielded by qualified immunity. They also argue that there are so many
reports of child abuse that the social workers cannot bear any additional
restrictions on how they conduct their investigations. In their memorandum in
support of summary judgment filed in the district court, appellants did not
argue that they were entitled to qualified immunity for the interview with the
twelve year old. Because this claim was not raised in the district court, it
cannot be raised for the first time on appeal34 and we have no occasion to pass
on the question. The argument in the district court was limited to the
proposition that the social worker violated no clearly established law in strip
searching the three year old, so that is the only issue we consider.
Darryl H. is not entirely supportive of appellants' position. The strip search
was conducted at the children's school, and did not involve an official takeover
of the family home. The Seventh Circuit reversed a summary judgment in the
social workers' favor on constitutionality of the search. The opinion says that
"nude physical examination is a significant intrusion into the child's
privacy" and even where the child is too young to have the same subjective
sense of bodily privacy as an older child, the nude body search affects
"legitimate expectations of the parents . . . , protected by the fourteenth
amendment, that their familial relationship will not be subject to unwarranted
state intrusion."35 Although a warrant or probable cause was not needed, in
the Seventh Circuit's view, reasonableness was under the Fourth Amendment, and
there were issues of fact that precluded summary judgment regarding
reasonableness. Although in Darryl H., as in the case at bar, the social
worker ordered the mother to strip the child, there was a genuine issue of fact
about whether the mother did so consensually or in response to coercion. Also,
not much checking had been done on the validity of the tip, the children denied
abuse, and there was evidence that the tipster might not be fair and objective.
Darryl H. offers some support to appellants because it held that the social
workers were entitled to qualified immunity. But the strip search was not done
during an unconstitutional entry into the home, and the information supporting a
strip search was much stronger in Darryl H. than in the case at bar. The school
principal reported "Lee H., age six, was tied up for punishment. Lee and
his sister, Marlena, age seven, were thin and not allowed to eat lunch at
school, and the children's clothes and bodies were dirty."36 The principal
told the social worker that "both parents were usually angry when they came
to school . . . that other students indicated Lee was tied up for
punishment," but "that bruises had never been observed on the
children."37 Thus, in Darryl H., the social workers had substantial reason
to believe that the children were malnourished, dirty, and abusively
disciplined.
[7] By contrast with Darryl H., in the case at bar the social worker had little
reason to believe that the three year old was abused. The tip itself included a
reference to the Calabrettas' religious views that might suggest that the
tipster was motivated by religious differences. Even if the tip was entirely
accurate, a benign explanation of "no, Daddy, no " and "no, no,
no" was at least as likely as any punishment, let alone abusive punishment.
The social worker had noted on her first visit that "Minors were easily
seen and did not appear to be abused/neglected." The twelve year old had
already explained
_________________________________________________________________
36 Id. at 905.
37 Id.
away the screaming and told the social worker that the children were not
abusively disciplined. The social worker's notations refer to the religiosity of
the household, but surely a family's religious views cannot justify social
workers invading the household and stripping the children. The social worker
plainly expressed the view to the mother that use of any object to spank a
child, such as the "rod " (a nine inch Lincoln log) was illegal, and
she did have reason to believe that such an object was used, but appellants have
cited no authority for the proposition she was right that California law
prohibits use of any object to discipline a child. The statutes we have found
prohibit "cruel or inhuman" corporal punishment or injury resulting in
traumatic condition.38 While some punishment with some objects might necessarily
amount to cruel or inhuman punishment, a token "rod" such as a nine
inch Lincoln log would not. A social worker is not entitled to sacrifice a
family's privacy and dignity to her own personal views on how parents ought to
discipline their children.
The Third Circuit held, in factual circumstances much more similar than Darryl
H. to the case at bar, that the social workers lacked qualified immunity for
strip searching small children. In Good v. Dauphin County Social Services,39 an
anonymous tipster told Social Services that a seven year old girl had bruises on
her body and said she got them in a "fight with her mother." As with
Calabretta, a social worker and police officer insisted on entry, claiming that
they needed no
search warrant to investigate child abuse.
Good reversed a summary judgment in the social worker's and police officer's
favor on qualified immunity, and held that they were not entitled to qualified
immunity. Even though there was no case in point, the Third Circuit held that
the general proposition was clearly established that the government may not
"conduct a search of a home or strip search of a person's body in the
absence of consent, a valid search warrant, or exigent
circumstances."40 Good cited a Seventh Circuit case for the
proposition that "It does not require a constitutional scholar to conclude
that a nude search of a thirteen-year-old child is an invasion of constitutional
rights of some magnitude. More than that: it is a violation of any known
principle of human dignity."41 Good holds that under Anderson, "a
public official may not manufacture immunity by inventing exceptions to well
settled doctrines for which the case law provides no support."42
Good distinguishes Darryl H. on the ground that in Darryl H. the social workers
acted pursuant to state guidelines but they did not in Good (nor did they in the
case at bar), and because "the strip search in this case came in the
context of a forced entry into a residence" at about 10 P.M. 43 Good held
that "the propriety of the strip search cannot be isolated from the context
in which it took place," referring to the coerced entry into the home.44
The Tenth Circuit has likewise held that a police officer conducting a strip
search of a small child in the context of a child abuse investigation lacked
qualified immunity. Franz v. Lytle,45 discussed above, held that a police
officer who insisted on looking at a two year old's vagina, and having a doctor
look at it, to assure the absence of sexual abuse, lacked qualified immunity for
the strip search. The Tenth Circuit rejected the officer's arguments that there
was no case directly in point establishing the unconstitutionality, that this
was an administrative search, and that such great latitude should be allowed for
child protection, and held that a tip that the baby was going around with urine
soaked diapers and unsupervised was not sufficient reason to allow this search.
The Tenth Circuit said that the social interest in child protection included not
only protection against child abuse, but also "the child's psychological
well-being, autonomy, and relationship to the family or caretaker
setting."46
[8] This case is like Good, not Darryl H. The strip search cannot be separated
from the context in which it took place, the coerced entry into the home. An
unlawful entry or search of a home does not end when the government officials
walk across the threshold. It continues as they impose their will on the
residents of the home in which they have no right to be. There is not much
reason to be concerned with the privacy and dignity of the three year old whose
buttocks were exposed, because with children of that age ordinarily among the
parental tasks is teaching them when they are not sup-posed to expose their
buttocks. But there is a very substantial interest, which forcing the mother to
pull the child's pants down invaded, in the mother's dignity and authority in
relation to her own children in her own home. The strip search as well as the
entry stripped the mother of this authority and dignity. The reasonable
expectation of privacy of individuals in their homes includes the interests of
both parents and children in not having government officials coerce entry in
violation of the Fourth Amendment and humiliate the parents in front of the
children. An essential aspect of the privacy of the home is the parent's and the
child's interest in the privacy of their relationship with each other.
[9] The social worker had already established that, as against the weak tip,
"no, Daddy, no," and "no, no, no," the children did not
appear to be neglected or abused, the twelve year old said that they were not,
and the object with which they were disciplined was a token "rod"
consisting of a nine inch Lincoln log. By the time the social worker forced the
mother to pull down the child's pants, the investigation had contracted to the
social worker's personal opinion that any discipline of a child with an object
must be against the law, and her puzzling mention of the family's religiosity.
The government's interest in the welfare of children embraces not only
protecting children from physical abuse, but also protecting children's interest
in the privacy and dignity of their homes and in the lawfully exercised
authority of their parents.
AFFIRMED. the end
_______________________________________________________________
FOOTNOTES
1 Act Up!/Portland v. Bagley, 988 F.2d 868, 870 (9th Cir. 1993).
2 Liston v. County of Riverside , 120 F.3d 965, 977 (9th Cir. 1997).
3 Act Up!/Portland, 988 F.2d at 871.
4 Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982).
5 Anderson v. Creighton, 483
U.S. 635, 640 (1987) (internal citation omitted).
6 Id. at 641.
7 Brady v. Gebbie, 859 F.2d 1543, 1557 (9th Cir. 1988).
8 Anderson, 483
U.S. at 640-41.
9 White v. Pierce County, 797 F.2d 812 (9th Cir. 1986).
12 White, 797 F.2d at 815.
13 Baker v. Racansky, 887 F.2d 183 (9th Cir. 1989).
19 See Garcia v. Miera, 817 F.2d 650, 658 (10th Cir. 1987).
20 Franz v. Lytle. 997 F.2d 784 (10th Cir. 1993).
21 Good v. Dauphin County Social Servs., 891 F.2d 1087 (3d Cir. 1989).
22 Camara v. Municipal Court, 387
U.S. 523 (1967).
23 Wyman v. James, 400
U.S. 309 (1971).
24 Id. at 317.
25 New Jersey v. T.L.O., 469
U.S. 325 (1985).
26 T.L.O., 469
U.S. at 340
.27 White v. Pierce County, 797 F.2d 812, 815 (9th Cir. 1986).
28 Camara v. Municipal Court, 387
U.S. 523 , 534, 539-40 (1967).
29 Los Angeles Police Protective League v. Gates, 907 F.2d 879, 884(9th Cir.
1990).
30 Cal. Welfare & Inst. Code SS 16501(a) & 16208. Though appellants cite
S 16208, the Code says that section was repealed.
31 DSS Regulations SS 31-105.1, 31.105.11, 31.120.1, 31-125.2, & 31-130.2.
32 Cal. Admin. Code tit. 11, S 930.60.
33 Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986).
34 Marx v. Loral Corp., 87 F.3d 1049, 1055 (9th Cir. 1996) ("Generally, an
appellate court will not consider arguments not first raised before the district
court unless there were exceptional circumstances.") (citation omitted).
35 Darryl H., 801 F.2d at 901.
38 Cal. Penal Code, tit. 1, SS 11165.3 & 11165.4.
39 Good v. Dauphin County Social Services, 891 F.2d 1087 (3d Cir. 1989).
40 Id. at 1092.
41 Id. at 1093, citing Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir. 1980).
42 Good, 891 F.2d at 1094.
43 Id. at 1096.
44 Id. at 1096, n. 6.
45 Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993).
46 Id. at 792-93.