U.S. 9th Circuit Court of Appeals WALLIS v CITY OF ESCONDIDO

U.S. 9th Circuit Court of Appeals

WALLIS v CITY OF ESCONDIDO
9755579

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Analysis
Facts
Opinion
Counsel
Footnotes
Conclusion
Dissenting Judge
Procedural History

LAUREN WALLIS, by and through her Guardian Ad Litem, REBECCA LYNN WALLIS, Guardian Ad Litem; JESSIE WALLIS, by and through his Guardian Ad Litem, WILLIAM LAWRENCE WALLIS, Guardian Ad Litem; REBECCA LYNN WALLIS; WILLIAM LAWRENCE WALLIS, Plaintiffs-Appellants,

No. 97-55579
v.
D.C. No.

MARY SPENCER, M.D.; CANDACE CV-93-00135-MLH
YOUNG, PH.D.; RACHEL STECKS; CITY OF SAN DIEGO; CITY OF ESCONDIDO; CHILD PROTECTIVE SERVICES, A DIVISION OF THE SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES; WELLS GARDNER; CATHY MCLENNON; CANELA CAVEDA; SUSAN GOULIAN; GRACE GOODALL; and DOES 1 through 300, Inclusive,

Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding

Argued and Submitted
November 6, 1998--Pasadena, California

Filed September 14, 1999
Before: Myron Bright,* Stephen Reinhardt, and Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Reinhardt

Dissent by Judge Rymer

COUNSEL

Paul Leehey, Fallbrook, California, and Donnie Cox, Carlsbad, California, for the plaintiffs-appellants.

Jeffrey Epp, City Attorney, and Mark Wagoner, Assistant City Attorney, Escondido, California, for the defendant.
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OPINION

REINHARDT, Circuit Judge:

This case involves a conflict between the legitimate role of the state in protecting children from abusive parents, and the rights of children and parents to be free from arbitrary and undue governmental interference. Such conflicts occur with increasing frequency these days. The problem of child abuse is a critical one, with deep personal and social costs. For too long, intra-familial sexual abuse was considered to be a "private" matter. Today, the law is changing. As we develop a greater awareness of the extent and severity of this difficult and painful problem, society has finally begun to treat intra- familial child abuse as a serious criminal offense.


Because the swing of every pendulum brings with it potential trial adverse consequences, it is important to emphasize that in the area of child abuse, as with the investigation and prosecution of all crimes, the state is constrained by the substantive and procedural guarantees of the Constitution. The fact that the suspected crime may be heinous -- whether it involves children or adults -- does not provide cause for the state to ignore the rights of the accused or any other parties. Other- wise, serious injustices may result. In cases of alleged child abuse, governmental failure to abide by constitutional constraints may have deleterious long term consequences for the child and, indeed, for the entire family. Ill considered and improper governmental action may create significant injury where no problem of any kind previously existed.


Here, the plaintiffs two young children and their parents have sued the City of Escondido, among others, for violations of their constitutional rights. Escondido police officers, evidently acting on the basis of a non-existent court order, seized the children, aged two and five, placed them in a county run institution, and several days later, without obtaining judicial authorization and without notifying their parents, took them to a hospital for the performance of highly intrusive anal and vaginal physical examinations. The children were not returned to their parents for approximately two and one half months. All of this occurred after a mental patient who had a long history of delusional disorders and was confined to a mental institution told her therapist a fantastic tale of Satanic witchcraft within her family and an impending child sacrifice. The district court initially granted the City's motion for summary judgment on the erroneous theory that the action was collaterally stopped by a preliminary ruling of the juvenile court referee, and we reversed. Subsequently, the district court again granted the City summary judgment, this time on the merits. Again, we reverse.
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Facts

In September, 1991, Bill and Becky Wallis lived in San Diego with their five year old daughter Lauren and their two year old son, Jessie. At that time, Bill had worked at the Lucky Supermarket in San Marcos for over ten years; Becky had worked for a similar period of time at Lucky's in the nearby community of Escondido. Although Bill and Becky Wallis maintained relationships with their parents, the family had had no contact with Becky's sister, Rachel Stecks, for the previous 18 months. Rachel, who suffers from a long history of psychiatric problems, including severe dissociative and multiple personality disorders, had made a false report to the San Diego County Child Protective Services ("CPS") in April of 1990, alleging that Bill was sexually abusing Lauren. CPS had investigated the report and found that there was no credible evidence to support the allegations and no action was taken against the Wallises. Bill and Becky remained angry at Rachel, however, and terminated their relationship with her.


The following year, Rachel was hospitalized in a psychiatric facility because she was suicidal and was afraid that she would be murdered. She reported to her therapist in the hospital, Candace Young, that Bill Wallis was planning to sacrifice his young son Jessie to Satan at the "Fall Equinox ritual," and that Bill had told her that Jessie's ritual murder would be covered up by staging a car accident in which his body would be burned. Rachel also told Young that both her parents were in a satanic cult, and that Bill Wallis was also in the cult, but that Becky was not, and indeed "might not know" about her husband's and parents' cult membership. Rachel recounted her recently recovered memory "of being with her father in the woods, with him wearing a cult robe reciting hypnotically. On the third full moon after two blue moons a child will be killed.' " Rachel believed that this incident occurred in 1970, some 20 years before Jessie's birth. One of Rachel's "alter" multiple personalities told Young that the incantation referred to Jessie and meant that he would be sacrificed to Satan on the "Fall Equinox," supposedly one of the Satanic "High Holidays."2 In 1991, the Fall Equinox evidently fell upon September 23, one day before Jessie's third birthday.


Young, a marriage and family counselor, was at the time a mandated reporter of child abuse under California law. Rachel's tale (and that of her alters) apparently caused Young some concern; in any event, she telephoned Sue Plante at CPS on September 17, 1991. Plante told Young that she needed more information before she could refer the matter to the child abuse investigation unit. After two days, Young sent Plante a letter. Plante then phoned the child abuse hotline, on September 19, 1991. The referral filled out by the hotline worker by now a third hand account of a story told by an institutionalized mental patient indicates that Rachel reported to her therapist that Bill Wallis was going to sacrifice Jessie to Satan on September 23, 1991. The referral also says that Rachel was currently hospitalized for psychiatric reasons, and that she has "multiple personality and decompensates during cult holidays." In addition, the referral clearly states that, according to the mental patient, Becky "may not know of husband's cult activity," and noted where Bill and Becky worked.


Plante also called her supervisor, who advised her to contact the Escondido Police Department, which she did. The Police Department, in turn, assigned the case to Officer Brian Knodel. Plante told Knodel the contents of the referral from Young, including the fact that Rachel wasn't sure that her sister Becky knew about the cult, and also that Young had told her that Rachel's father owned a boat docked in San Diego called "Witch Way." The next day, Knodel reported to Plante that he could not locate the family at the address provided by Rachel because it was over a year old likely due to the fact that Bill and Becky had cut off contact with Rachel after her earlier false report to CPS and that he did not attempt to find them at their jobs "because he did not want to alert them to the possibility that we were trying to find the child to intervene."


Plante wrote up her recommendations for the CPS case- worker who would be assigned to the matter, stating that she felt "we have no choice but to take the children into protective custody until an investigation can be done." Plante later testified, however, that she had no recollection of telling anyone at the Escondido Police Department or at CPS that the children should be picked up. On September 20, 1991, CPS assigned Karen Cabico to be the "emergency response social worker." In that capacity, she was the case-worker charged with deciding whether the circumstances warranted removing the Wallis children from their home and placing them in foster care. Cabico's notes from September 20 show that she communicated with both Knodel and Plante during the effort to locate the family's home. At some point that day, Plante told Cabico that a district attorney named Jane Via told Plante that "we have enough to pick up the kids."


Also on September 20, Knodel wrapped up his involvement in the matter by recommending to his superiors at the Police Department that "this case be submitted to investigations or be followed up by CPS case worker Sue Plante." The Police Department assigned the case to juvenile detectives Diana Pitcher and Ralph Claytor, who continued to search for the family. Cabico testified that she never told Pitcher or anyone else at the Police Department that it was authorized to pick up Lauren or Jessie, but that she did not know whether anyone else at CPS told the police to do so. Pitcher testified that she had no discussion with anyone from CPS about any allegations of sexual abuse concerning either Wallis child, and that all of her conversations with Plante and Cabico involved the supposed "ritual murder" of Jessie. Pitcher also contacted Young, who reiterated the tale told to her by her institutionalized patient. Pitcher later said that "in her mind" she believed Rachel's story because Young had some "expertise " in the area of ritualistic abuse.


Pitcher and Claytor both contend that CPS workers Plante and Cabico told them though neither officer can recall the precise facts or circumstances that "there was a pickup order." Pitcher testified at her deposition that she did not believe she was responsible for investigating the case, but "was really looking at just picking up the children on the order." She testified that she "knew" that there was a court order though she never saw one and repeated that she was not conducting an investigation but only enforcing the supposed order. Claytor also testified that he was involved in investigating the location of the children in order to enforce the CPS pickup order, but that he was not involved in any investigation of abuse. Pitcher's supervisor, Ken Burkett, also testified that he believed that there was a juvenile court order to pick up the children that had previously been obtained by CPS, and that the Police Department picked them up as it would "normally" do in that circumstance. It is undisputed that no order ever existed and that CPS had not yet even reached a decision about whether to seek protective custody of the children when the police picked them up.


During discovery, Pitcher, Claytor, and Burkett all testified that, at the time the Wallis children were seized, the Police Department had in effect a practice of taking "at face value" telephonic representations from CPS that there was a court order to remove children from their parents' custody. Claytor testified that "it was not unusual for CPS workers to call and ask for our units to respond to a particular scene, and tell them that `we have a petition that's been filed,' or kids have already been made a ward of the court in response to a petition. That happened fairly often." Burkett, the supervisor, testified that the Police Department did nothing to verify that a pickup order existed because there's been a longstanding agreement between law enforcement agencies, that if I tell you I have a search warrant, up until recent times, you would be taken at face value that you did, in fact, have a search warrant. Same way as when I call down to verify that there is a warrant in the system for some- one and make the arrest, I don't physically see it.


Unlike arrest warrants, however, court orders to seize children were not at that time part of any computerized database and there was no established procedure for verifying such orders, by xerox, fax, computer, or otherwise. Indeed, Pitcher testified that in September of 1991 the Department had a settled practice of not confirming CPS representations that there was a court order to pick up children. Pitcher was identified by the Police Department as the person most knowledgeable about the Department's practices regarding taking protective custody of minors, and she was deposed as such.


On September 21 and 22, the police continued to look for the family in order to enforce the purported court order, but still did not go to either parent's place of work. An officer finally went to the Lucky's in Escondido on the afternoon of September 22 and discovered that Becky did in fact work there and that she was scheduled to work that evening. The manager of the Lucky's did not have a current home address for Becky. At some point that day, the police also discovered that a boat called "Witch's Way" was berthed at a harbor in the city of Oceanside. They made no inquiry, however, as to the name of the person or persons who owned or used the boat. The officers decided to have a "stake out " in the parking lot of the Escondido Lucky's grocery store. When Becky got off work late that night, three unmarked police cars followed her. Becky later said that she had become frightened when she realized that she was being followed, and even went to the Escondido police station in an effort to get help; however, she was afraid to get out of her car, and drove around in a panic for two hours. At that point, the police realized that their "surveillance had been compromised," and pulled her over in the parking lot of a 7-11 store. There, according to Detective Supervisor Burkett, the officers identified themselves, told her that they needed to "check on" the children, and said that if she took them to her house, they would be able to "sit down and talk about it." Burkett testified, however, that when the officers made these statements to Becky, they did not want only to "check on" the children or talk with the Wallises but they intended to pick up the children based on their belief that there was a court order to do so. In response to the officers' representations, Becky took the officers to the family's home and agreed to their entry.


When Becky arrived at her house, accompanied by the police, at around midnight, her children were asleep. The children appeared well-cared for, and Detective Claytor acknowledged that there was no sign of anything suspicious. Nevertheless, Pitcher decided to "interview" Lauren. She required Bill and Becky to awaken Lauren so that she could question her. According to Pitcher, the sleepy five year old was "evasive," but told her that they had to move from the apartment in which they had previously lived because of "spiders on the walls." Although Pitcher acknowledged that she had no information from any source that Lauren had ever been sexually abused, she asked her whether "anybody had ever given her bad touches or abused her." Lauren denied that anyone had.


Pitcher then told the parents that their children were being taken away from them. She testified that she took custody of Lauren and Jessie "because of the order . . .because of the investigation that had already taken place in CPS. " She stated that she "did not know the specifics of how they[CPS] laid the groundwork to get the kids removed." Pitcher did not interview Becky or Bill because "we had an order and so I wasn't that concerned with it." According to Detective Burkett, who was also present at the time, the police probably told Bill and Becky that there was a court order requiring the police to pick up the children. At 1:00 a.m. on September 22, 1991, Detectives Pitcher and Claytor took Lauren and Jessie to the Hillcrest Receiving Home, a county institution. The children were not allowed to see their parents and cried for them constantly. Lauren and Jessie were not returned to their parents for two and one-half months.


Three days after the children were removed from their home, Detective Pitcher picked them up from the county institution and took them to Palomar Hospital, where she ordered, on behalf of the Escondido Police Department, an evidentiary physical examination of both children. No court order was obtained prior to this examination, which was performed in order to determine whether either child had been sexually abused. Nor were the parents notified in advance that the examinations would be conducted. They were not given any opportunity to object to the intrusive examinations, to suggest conditions under which they might take place, or to be present when they occurred. Pitcher testified that she took the children for the examinations "as the officer who had placed the children in protective custody, or at the request of Child Pro- tective Services, or both." CPS insists that the exams were conducted at the City's behest, and the medical report form reflects that the Escondido Police Department was the "requesting agency."


The medical procedures, conducted by Dr. Mary Spencer, included internal body cavity examinations of the children, vaginal and anal. Dr. Spencer also took photographs of both the inside and outside of Lauren's vagina and rectum and Jessie's rectum. These examinations were conducted on Jessie's third birthday. A social worker who observed the examinations reported, not surprisingly, that Lauren was very upset by the procedures and asked for her parents. Following the examinations, Dr. Spencer reported to Wells Gardner, CPS's "court intervention worker" that the results disclosed medical evidence that both children had been molested, and that Dr. Susan Horowitz, a specialist from Children's Hospital's Sexual Abuse Unit concurred with her findings. On September 25, 1991, Gardner filed a petition in Juvenile Court alleging that Bill was going to sacrifice Jessie to Satan and that both children had been sexually abused. The Juvenile Court referee specifically rejected the allegations regarding occult sacrifice as a basis for retaining custody of the children, but determined that Dr. Spencer's report provided sufficient evidence of sexual abuse to keep them in county custody. Bill and Becky were granted only one supervised visit per week.


Two months went by. Then, on November 25, Dr. Horowitz sent Gardner a letter that changed the lives of the Wallis family. It informed CPS that Dr. Spencer's statement in her report that Dr. Horowitz supported the finding of sexual abuse was false. In fact, Dr. Horowitz wrote, as of the time of Dr. Spencer's report, she (Dr. Horowitz) had not had access to the records of Dr. Spencer's examination, had not performed a full review, and had not offered any conclusion. Dr. Horowitz's letter further stated that she now had reviewed the full file and, based on all the evidence, she did not agree with Dr. Spencer's conclusion that the children had been abused. To the contrary, Dr. Horowitz concluded that there was no evidence of abuse and that there were alternative, normal physiological explanations for what Dr. Spencer had observed. Dr. Horowitz's explanations were based on Lauren's history of vaginal irritation and infection, as documented in her medical records, as well as other information contained in those records. Gardner, to his credit, immediately released the children to their maternal grandmother, and moved swiftly to dismiss the case in Juvenile Court. On December 6, 1991, Lauren and Jessie were returned by court order to the custody of their parents. No one now contends that either child was ever sexually or physically abused, that there was ever any evidence of any abuse by their parents, or that Bill Wallis had ever had any intention of sacrificing Jessie to Satan.
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PROCEDURAL HISTORY

All four members of the Wallis family joined in an action alleging the violation of their federal constitutional rights to be free from unreasonable, arbitrary, and undue intrusions on their privacy, person, and home, as well as setting forth various state law claims. CPS, the County, and several other defendants settled with the Wallises; the district court then granted summary judgment to the remaining defendants. The Wallises appealed the district court's ruling. In an unpublished disposition, we reversed as to the City of Escondido, holding that the Wallises' action was not precluded by the juvenile court referee's decision to retain the children in tem- porary custody on the basis of Dr. Spencer's false report of sexual abuse. We remanded the matter for further proceedings.


The district court granted the City's second motion for summary judgment on the theory that none of the Wallises' constitutional rights were violated because the Police Department had reasonable cause to remove the children from their parents' custody with or without a court order, and that the officers had, therefore, acted reasonably. The court then said that even if the Wallises' rights were violated, they had not offered any facts or evidence proving that the Police Depart- ment had a policy that caused the violation. The district judge also concluded that the City was immune from any state law remedy because the police officers were "reasonable" both in removing the children from their parents' custody and in sub- jecting them to the investigatory body cavity examinations. Then, despite the fact that the Wallis family did not sue any officers in their individual capacities, the district court went on to conclude that even if the Wallises' constitutional rights had been violated, the officers were entitled to both absolute and qualified immunity, and that this personal immunity was transferrable to the City itself: "Consequently the city is entitled to qualified immunity for their actions in regards to all S 1983 actions alleged by plaintiff." The Wallises appealed.

Analysis

I. Constitutional Claims


[1] The Wallises allege that the City of Escondido, through the actions of its Police Department, violated the family's constitutional rights by the unlawful removal of Lauren and Jessie from their home in the middle of the night and by the subsequent unlawful detention of the children, including the invasive vaginal and anal examinations. A municipality like the City can be sued for "constitutional deprivations visited pursuant to governmental custom." Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690 (1978). In order to avoid summary judgment, a plaintiff need only show that there is a question of fact regarding whether there is a city custom or policy that caused a constitutional deprivation. Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994); Jackson v. Gates, 975 F.2d 648 (9th Cir. 1992) (city may be liable when its policy is the moving force behind constitutional vio- lation). The Wallises are entitled to prevail on this appeal, therefore, if they introduced sufficient evidence to show that there is an issue of material fact as to whether (1) their consti- tutional rights were violated; and (2) the violations were caused by a Police Department custom or practice. 5


A. The Alleged Violations


[2] The Wallises argue that the seizure and removal of the children from their parents' custody in the middle of the night pursuant to a non-existent court order violated their rights under the Constitution. Parents and children have a well- elaborated constitutional right to live together without govern- mental interference. Santosky v. Kramer, 455 U.S. 745 , 753 (1982); Stanley v. Illinois, 405 U.S. 645 (1972); Pierce v. Soc'y of Sisters, 268 U.S. 510, 534 -35 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). That right is an essential liberty interest protected by the Fourteenth Amendment's guarantee that parents and children will not be separated by the state without due process of law except in an emergency. Stanley, 405 U.S. at 651 ; Campbell v. Burt , 141 F.3d 927 (9th Cir. 1998); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1996); Caldwell v. LeFaver, 928 F.2d 331, 333 (9th Cir. 1991); Baker v. Racansky, 887 F.2d 183, 186 (9th Cir. 1988); accord, J.B., 127 F.3d at 927; Croft , 103 F.3d at 1125; Hurlman v. Rice, 927 F.2d74, 79 (2d Cir. 1991); Duchesne v. Sugarman, 556 F.2d 817, 824 (2d Cir. 1977). The Wallises have produced more than enough evidence to create a genuine issue of material fact as to whether the removal of the children from their parents' custody was violative of their constitutional rights.


1. The Non-Existent "Pick-Up" Order


[3] It is now beyond dispute that no court authorized anyone to remove Lauren and Jessie from their home on September 21, 1991. The Wallises contend that the City's police officers removed the children on the basis of a nonexistent court order, and have produced substantial evidence that this is what actually happened. Detectives Pitcher, Claytor, and Burkett all testified that they were told by someone at CPS that there was a "pick-up" order and that their task was to locate the family and enforce the order. Detective Pitcher tes- tified in her deposition that she told Bill and Becky Wallis that she was taking their small children away in the middle of the night "because of the order . . . because of the investiga- tion that had already taken place in CPS." Detective Burkett confirmed that the officers probably told Bill and Becky that there was an order requiring the removal of the children. Indeed, the only evidence that could be construed as offering any other reason for the "pick-up" is Detective Pitcher's subsequent statements that appear to contradict her earlier testimony.6


The testimony of CPS workers regarding what they told the police is somewhat different. Sue Plante testified that she could not recall telling the officers that there was a court order to remove the children; her contemporaneous notes indicate, however, that it is possible that she did advise the police to pick them up. Karen Cabico, the official caseworker, flatly denied conveying any such information to the police; her notes report, however, a phone call from Plante informing her that a district attorney had stated that there was enough evi- dence to "pick up the kids."


[4] The City does not seriously challenge the contention that the officers took custody of Lauren and Jessie because they mistakenly believed that there was an outstanding court order. Nor on this appeal do they separately argue that either a mistaken belief that a court order exists, or reliance on an erroneous statement to that effect from a social service agency worker, satisfies the requirement for a court order or provides reasonable cause, in itself, for the seizure of the children.7 Instead, confronted with the fact that there was no court order to remove the children from their parents' control, the City contends that the removals were nonetheless lawful, essentially because the facts of which the police were aware regarding the impending Satanic sacrifice of Jessie provided "reasonable cause" to seize the children. 8


2. Reasonable Cause and Imminent Danger


[5] Officials may remove a child from the custody of its parent without prior judicial authorization only if the informtion they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury. Good, 891 F.2d at 1093 (citing Mincey v. Arizona, 437 U.S. 385, 393 (1978)); see also Campbell, 141 F.3d at 927; Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993); Hurlman v. Rice , 927 F.2d 74, 80 (2d Cir. 1991) (collecting cases). The existence of reason- able cause, and the related questions, are all questions of fact to be determined by the jury. McKenzie v. Lamb , 738 F.2d 1005, 1008 (9th Cir. 1984) (per Kennedy, J.); Smiddy v. Varney, 665 F.2d 261, 265 (9th Cir. 1981) (per Sneed, J.) Summary judgment in favor of the defendants is improper unless, viewing the evidence in the light most favorable to the plaintiffs, it is clear that no reasonable jury could conclude that the plaintiffs' constitutional rights were violated.


[6] Thus, summary judgment was improper here if a material question of fact exists regarding whether (1) there was reasonable cause to believe, on the basis of the information in the possession of the Escondido police officers, that the Wal- lis children faced an immediate threat of serious physical injury or death; or (2) the actions taken by the officers removing the children from their mother and placing them in an institution exceeded the permissible scope of the action necessary to protect them from that immediate threat. We conclude that there are material disputes of fact with respect to both questions.


[7] First, the state may not remove children from their parents' custody without a court order unless there is specific, articulable evidence that provides reasonable cause to believe that a child is in imminent danger of abuse. Croft v. Westmoreland County Children and Youth Servs., 103 F.3d 1123, 1125; Ram v. Rubin, 118 F.3d 1306, 1311 (9th Cir. 1997) ("An indictment or serious allegations of abuse which are investigated and corroborated usually gives rise to a reason- able inference of imminent danger."); Good , 891 F.2d 1087, 1093 (3d Cir. 1989) (citing Mincey v. Arizona , 437 U.S. 385, 393 (1978)); see also Campbell, 141 F.3d at 927; Franz, 997 F.2d 784; Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991) (collecting cases). Moreover, the police cannot seize children suspected of being abused or neglected unless reasonable avenues of investigation are first pursued, particularly where it is not clear that a crime has been, or will be, committed. See Sevigny v. Dicksey, 846 F.2d 953, 957 (4th Cir. 1988) (holding that child abuse investigator has duty to investigate information that would have clarified matters prior to separating children from their parents); BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) (officer has duty to "make a thorough investigation and exercise reasonable judgment before invoking the awesome power of arrest and detention"). Whether a reasonable avenue of investigation exists, however, depends in part upon the time element and the nature of the allegations.


[8] At the time Lauren and Jessie were removed, the police department had received a report from a mental health worker that an institutionalized mental patient, who had an extensive history of severe delusional disorders and multiple personalities, had told a story of anticipated ritual murder by Jessie's father a story that would appear to an objective observer clearly to be founded in mental illness. In fact, Detective Claytor later testified that the allegations "sounded a little bizarre" to him, and that he had expressed that opinion to Detective Pitcher at the time. Applying a reasonable cause standard, the juvenile court judge who subsequently heard the dependency petition in this case explicitly rejected those charges as a basis for removing Lauren and Jessie from their parents' custody. Detective Pitcher, however, stated that "in her mind" she believed the story because it was conveyed to her by Young, an "expert."


The only other facts on which the City relies to demonstrate that the officers had reasonable cause to believe that there was an imminent threat to the children's welfare at the very most help the City establish that a genuine issue of material fact exists and that summary judgment should not be awarded to the Wallises. See McKenzie, 738 F.2d at 1008. Those "facts," taken together with Rachel's tale as reported by Young, do not by any means justify the conclusion that a reasonable jury would be required to find that the officers had reasonable cause for taking the children into custody. The additional "facts" are as follows: First, the City claims that the officers confirmed that Rachel's and Becky's father, David Stecks, owned a boat named "Witch Way." In fact, the police did not confirm any such thing; according to Detective Claytor, who was the officer searching for the boat, he learned only that a boat with a similar name (Witch's Way) was docked in Oceanside. He did not, however, confirm that the boat was owned, or used, by David Stecks, or by any member of Becky's family. Moreover, the police never conducted any investigation whatsoever into how the boat acquired its name, or whether Stecks had anything to do with naming it. Next, the City relies on the fact that the Wallises had moved from the address Rachel supplied, which the City characterizes as "disappearing from where they were supposed to be." An equally valid inference is that the Wallises' change of address demonstrates the unreliability of Rachel's tip, because important information Rachel provided proved false, and because Rachel lacked knowledge regarding important family matters.


Third, Detective Pitcher testified that she accorded significance to five-year-old Lauren's statement about spiders and her "elusive" behavior on being awakened at 1:00 a.m. The Wallises are entitled to the inference that Lauren was drowsy and had nothing adverse to report. In any event, when asked by Pitcher if anyone had ever given her "bad touches," Lauren denied that anyone ever had, which is hardly "elusive."


Finally, we note that the tip itself stated that Becky Wallis was probably unaware that Bill was contemplating harming Jessie and was not part of the "plot" to kill her son.10 Nevertheless, the City acknowledges that its officers did not inter- view Becky because they mistakenly thought they were enforcing a court order. More important, for this reason, the officers also did not undertake any significant investigation into the underlying charge, specifically, the allegation that Jessie would be sacrificed.


[9] Under the circumstances, a jury could reasonably con- clude that the information possessed by the officers was insufficient to give rise to reasonable cause or that the officers' conduct in failing to investigate the mental patient's bizarre tale before acting was not reasonable. While ordinarily a close relative's tip that a child is about to be killed might provide reasonable cause to believe that an emergency exists and justify a seizure of the child without prior judicial authorization, the facts in this case are far from ordinary. They are, indeed, extraordinary in every sense of the word, including the fact that the close relative had a long history of psychiatric disor- ders, was confined to a mental institution, and told a tale that was wholly incredible. In any event, given the factual uncertainty regarding the information actually possessed by the officers at the time they removed the children, the contradictions in Detective Pitcher's testimony and sworn statements, the absence of any significant investigation into the allegations, and the extraordinary nature of the allegations, it cannot be said as a matter of law that reasonable cause existed, or that the officers acted reasonably. Viewing the evidence in the record in the light most favorable to the Wallises, we conclude that a reasonable jury could find that the officers did not have reasonable cause to remove the children without a court order.


3. Permissible Scope of the Removal


[10] Even if state action to protect Jessie against future Satanic sacrifice by his father were reasonable under the circumstances, triable issues of fact would exist regarding whether the scope and degree of the state interference was justified by the alleged exigency. Bell, 441 U.S. at 559; Barlow, 943 F.2d at 1138 ("Police officers can proceed with- out a warrant if they reasonably believe they are confronted with an emergency that threatens life or limb, but the [intrusion] must be strictly circumscribed by the exigencies which justify its initiation."); Franz, 997 F.2d at 791 (intrusion must be "reasonably necessary to alleviate the threat") Good, 891 F.2d at 1093 (under "very limited exception" to warrant rule, intrusion must be reasonably necessary to alleviate the threat of immediate harm); Hebein, 37 F. Supp.2d at 1043 (holding that danger must justify the degree of interference imposed). Merely because some intrusion on a child's protected privacy and security interests may be reasonable does not mean that any intrusion is.


[11] Here, the City asserts that the exigency motivating the officers' decision to remove the children without a court order was the belief that Bill Wallis would sacrifice Jessie to Satan on the "Fall Equinox," which was to occur on September 23, 1991. The City argues in its brief that part of its "reasonable" belief in the credibility of this threat was the information that the "Equinox" is one of the "high holidays " for devil worshipers, "when cultists perform human sacrifices and . . . believe that they derive energy from abusing children on that day." (emphasis added). By the City's own admission, then, the police had no information that Jessie's father's plot extended beyond the Equinox; the imminent danger to Jessie was to occur specifically and only on September 23, 1991, a day after the children's seizure. Thus, there is a genuine issue of material fact as to whether the emergency continued to exist for more than the brief day or two following the time of the children's seizure.


[12] Furthermore, as previously noted, the police had no information whatsoever that implicated the children's mother in any past or future abuse. There is no evidence that the children could not have been taken with their mother to a shelter, or placed under some other form of protective custody with her until after the Equinox, or even until some later date. A genuine issue of material fact exists therefore as to whether the removal of the children from their mother's custody, and their placement in a county institution for an indefinite period, was sufficiently "strictly circumscribed by the exigency that justified" the City's intrusion into the children's lives. Good, 891 F.2d at 1093. Such questions are also to be decided by a jury. McKenzie, 738 F.2d at 1008.


4. Subsequent Conduct


[13] The Wallises contend that the violation of their rights occasioned by the City's removal of the children continued for the more than two month period during which the children were detained. During that time, the children were held in Hillcrest Receiving Home, and moved through at least three different "confidential" foster homes. Their parents were not permitted to know their whereabouts and were only allowed one hour of supervised visitation per week. There is evidence in the record that the children were traumatized by the separation and cried constantly for their parents. The Wallises contended below that the City was liable for all the damages that flowed from this entire ordeal because the City's policy was the legal cause of the separation. The City, in response, contended that it could not be held liable for any detention of the children after their removal was approved by the juvenile court. We leave it to the district court on remand to determine whether any City policy could be held to have caused any vio- lation of the Wallises' rights after the date of the juvenile court hearing. With respect to the fourday period between the removal and the court hearing, only one alleged violation of the Wallises' rights merits separate consideration the subjecting of Lauren and Jessie to invasive vaginal and anal medical examinations at the behest of the Escondido police department.


[14] The right to family association includes the right of parents to make important medical decisions for their children, and of children to have those decisions made by their parents rather than the state. See Parham v. J.R., 442 U.S. 584, 602 (1979) (holding that it is in the interest of both parents and children that parents have ultimate authority to make medical decisions for their children unless "neutral fact finder" determines, through due process hearing, that parent is not acting in child's best interests); see also Calabretta v. Floyd, _______ F.3d _______ (9th Cir. 1999) (holding that "[t]he gov- ernment'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."). We agree with the Second Circuit which held, in van Emrick v. Chemung County Dept. of Social Servs. , that the "Constitution assures parents that, in the absence of parental consent, [physical examinations] of their child may not be undertaken for investigative purposes at the behest of state officials unless a judicial officer has determined, upon notice to the parents, and an opportunity to be heard, that grounds for such an examination exist and that the administration of the procedure is reasonable under all the circumstances."11 911 F.2d 863, 867 (2d Cir. 1990). Barring a reasonable concern that material physical evidence might dissipate, see Schmerber, 384 U.S. at 770, or that some urgent medical problem exists requiring immediate attention, the state is required to notify parents and to obtain judicial approval before children are subjected to investigatory physical exami- nations.


[15] Moreover, parents have a right arising from the liberty interest in family association to be with their children while they are receiving medical attention (or to be in a waiting room or other nearby area if there is a valid reason for excluding them while all or a part of the medical procedure is being conducted). Likewise, children have a corresponding right to the love, comfort, and reassurance of their parents while they are undergoing medical procedures, including examinations particularly those, such as here, that are invasive or upsetting. The interest in family association is particularly compelling at such times, in part because of the possibility that a need to make medical decisions will arise, and in part because of the family's right to be together during such diffi- cult and often traumatic events.


5. Conclusion


In light of the above, we conclude that there are genuine issues of fact as to whether the Wallises' constitutional rights were violated when the Escondido police officers took the children into custody, placed them in a county institution, and subjected them to invasive medical procedures. We must still consider, however, whether the City is entitled to summary judgment on the ground that the police officers did not engage in the conduct at issue pursuant to any municipal policy, custom, or practice.
B. Municipal Policy, Custom, or Practice


[16] Next, we must consider whether a material question of fact exists regarding whether the constitutional deprivations (which for purposes of summary judgment we must assume occurred) were caused by a "practice or custom which consti- tutes . . . standard operating procedure." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). The Wallises adduced testimony from Pitcher, Burkett, and Claytor that there was a practice a "longstanding agreement," in Burkett's words of enforcing "orders" to take protective custody of children without ever seeing the order. This is sufficient to raise a gen- uine issue of material fact regarding the existence of a custom or practice of taking children from their homes based on telephone calls from CPS without adequate safeguards to ensure that the removal is legal.


[17] Furthermore, the Wallises presented evidence from which it may reasonably be inferred that the Escondido Police Department customarily took children that it placed at Hillcrest Receiving Home for invasive investigatory examinations at Palomar Hospital without obtaining a court order and with- out notifying their parents. Detective Pitcher, who ordered the investigatory examinations, acknowledged that she may have done so in fulfillment of her function as the juvenile detective who removed the children from their parents' custody, and that there was a contract between Palomar and the Escondido Police Department for the performance of such investigatory examinations. A reasonable inference may be drawn from this evidence that it was "standard operating procedure" to obtain those examinations without seeking judicial authorization or notifying the parents; indeed, given the absence of any individualized suspicion of sexual abuse, it is difficult to imagine, on the basis of the record before us, why else the Wallis children would have been subjected to the invasive examinations.


[18] The Wallises also produced sufficient evidence to create a question of fact for the jury as to whether these customs and practices had a "direct causal link" to the deprivations of the Wallises' constitutional rights detailed above. City of Canton v. Harris, 489 U.S. 378, 385 (1989); Chew v. Gates, 27 F.3d 1432, 1444, 1456 (9th Cir. 1994) (holding that city may properly be held liable where policy is moving force behind constitutional violation); Jackson v. Gates, 975 F.2d 648, 654 (9th Cir. 1992) (holding that city's policy need not be unconstitutional per se, but need only cause a constitu- tional violation). A reasonable jury could readily conclude, viewing the evidence presently in the record in the light most favorable to the Wallises, that the moving force behind the removal of the children from the parents' custody was the pol- icy of accepting telephonic representations from CPS without any procedure for checking on the accuracy or validity of the supposed orders. See McMurray v. Sheahan, 927 F. Supp. 1082, 1090 (N.D. Ill. 1996) (holding county liable for false arrests when it has no system to check validity of warrants on computer system). That would be true whether a CPS employee had erroneously told the police that a pick-up order existed or whether the police mistakenly believed that a CPS employee had made such a statement. Similarly, a reasonable jury could conclude that the investigatory vaginal and anal examinations were performed on the children pursuant to a Police Department custom and practice of instigating body cavity examinations without first notifying the parents and without seeking prior court authorization whenever its offi- cers place children in protective custody.14 [19] The district court incorrectly held that even if the City did have policies that caused the deprivations, it was not lia- ble because any absolute and qualified immunities possessed by the individual officers were somehow transferred to the city itself. There are, however, no personal immunities avail- able vicariously or otherwise to municipal actors under S 1983. Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 166 (1993). It appears that the district court also applied state statutory immunities for child abuse investiga- tions to the federal constitutional claims and concluded that the City is immune from a S 1983 action under a state immu- nity statute. Again, the district court erred. Immunity under S 1983 is governed by federal law; state law cannot provide immunity from suit for federal civil rights violations. Martinez v. California, 444 U.S. 277, 284 (1980); Good v. Dauphin County Social Serv., 981 F.2d 1087, 1090-91 (3d Cir. 1989) (holding that state law providing immunity from suit for child abuse investigators has no application to suits under S 1983). In sum, the City of Escondido has the benefit of neither federal nor state immunity from liability under S 1983 for the alleged violations of the Wallises' constitutional rights.


Appellants' evidence regarding municipal custom and practice is sufficient to permit them to survive summary judgment on the Monell issue. Accordingly, we reverse the district court's grant of summary judgment to the City of Escondido with respect to the Wallises' S 1983 claims.


II. State Law Claims


In addition to their constitutional claims, the Wallises sued the City for abduction, assault, battery, and intentional infliction of emotional distress. The district court granted summary judgment to the City on those claims also, holding that the police had "reasonable cause" to remove the children and to subject them to vaginal and anal examinations, and thus violated no state laws. As discussed above, on the basis of the record before us, whether there was reasonable cause for the removal of Lauren and Jessie from their home is a question of fact for the jury; so, too, as we have fully explained, the City is not entitled to summary judgment regarding the physi- cal examinations.


[20] The officers contend that under Cal. Govt. Code S 820.2, they and under state law, by extension, the City are immune from liability on the state law tort claims.15 The district court concluded that the police had reasonable cause to seize the children and subject them to the invasive medical examinations, it did not reach the question of immunity. Given the conclusions we have reached, however, it is necessary for us to do so.16


[21] Under S 820.2, a public employee cannot be held lia- ble for any injury resulting from "his act or omission where the act or omission was the result of the exercise of discretion vested in him, whether or not such discretion be abused." The City correctly asserts that S 820.2 applies to county social workers engaged in investigating allegations of child abuse, and extends to other public employees whom those social workers "reasonably enlist to assist in the investigation." Newton v. County of Napa, 266 Cal. Rptr. 682, 687 (Cal. App. 1990); Alicia T. v. County of Los Angeles, 271 Cal. Rptr. 513, 519-20 (Cal. App. 1990) (holding that social workers' immu- nity is designed to protect "the continuing exercise of . . . discretion in favor of the protection of minor children"). This immunity provides complete protection for the decision to investigate, to make an "in-person response," and for actions necessary to make a meaningful investigation. It does not extend, however, to non-discretionary actions or to at least some intentional torts committed in the course of making the investigation, such as battery and false imprisonment. Newton, 266 Cal. Rptr. at 687-88.17


[21] Under S 820.2, a public employee cannot be held lia- ble for any injury resulting from "his act or omission where the act or omission was the result of the exercise of discretion vested in him, whether or not such discretion be abused." The City correctly asserts that S 820.2 applies to county social workers engaged in investigating allegations of child abuse, and extends to other public employees whom those social workers "reasonably enlist to assist in the investigation." Newton v. County of Napa, 266 Cal. Rptr. 682, 687 (Cal. App. 1990); Alicia T. v. County of Los Angeles, 271 Cal. Rptr. 513, 519-20 (Cal. App. 1990) (holding that social workers' immu- nity is designed to protect "the continuing exercise of . . . dis- cretion in favor of the protection of minor children"). This immunity provides complete protection for the decision to investigate, to make an "in-person response," and for actions necessary to make a meaningful investigation. It does not extend, however, to non-discretionary actions or to at least some intentional torts committed in the course of making the investigation, such as battery and false imprisonment. Newton, 266 Cal. Rptr. at 687-88.17
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CONCLUSION

Genuine issues of material fact exist as to whether the City of Escondido is liable, under Monell, for violating the Wal- lises' constitutional rights with respect to the removal of the children from their home and the City's subsequent conduct, including the invasive body cavity examinations. In addition, genuine issues of material fact exist regarding the City's assertion of immunity under Cal. Govt. Code S 820.2 with respect to the state causes of action. Given the numerous fac- tual disputes in this case, we conclude that summary judgment was improper, and that the Wallises are entitled to pursue both their federal and state law claims.


REVERSED and REMANDED for further proceedings consistent with this opinion.

RYMER, Circuit Judge, dissenting:

Whether the summary judgment should be reversed on the only ground urged by the Wallises that there is a triable issue of fact on whether the City had a policy to pick up children without verifying the existence of a court order and with- out reasonable cause is a close question. There is a good argument that, as the district court held, the officers had accumulated reasonable cause in the course of investigating Rachel's allegations, thereby making the nonexistence of the court order immaterial. However, because it is a close ques- tion, sending this issue back for trial is within the ballpark.


But holding that there is a triable issue of fact on a policy with respect to the medical examinations that was never alleged, never argued, and as to which no evidence was ever adduced as to the City the only party left in the case is not in the ballpark.


For sure there is evidence in the record about the examina- tions because Dr. Spencer, CPS, and San Diego County were defendants. However, the Wallises settled their claims against CPS and the County, and Dr. Spencer was dismissed from the case on immunity grounds. The City is the only party to this appeal. Until the majority got its bat on this case, there was no question at all about liability on the part of the City for the medical examinations.


I therefore dissent. The possibility of a City policy with respect to medical examinations of children was invented here; the discussion with respect to it is dicta, as it clearly is not necessary to the decision to reverse; and we have no busi- ness inventing an issue and a constitutional right or two to resolve it. the end
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AFFIRMED. the end

FOOTNOTES

1 The record is not entirely clear as to the ownership of the stores at which they worked during this period, but that fact is of no import.


2 In a subsequent letter to CPS, Young stated with respect to the infor- mation that Jessie would be sacrificed by his father: "A child alter of Rachel's named _______ relayed this information to me, however it is not clear which alter actually received this information from her own and Jessie's father. Unfortuneately, (sic) the alters wish to remain anonymous out of fear of punishment for disclosure." The blank space above refers to the alter personality that requested the therapist preserve his or her anonymity. The therapist complied with that request.


3 As this litigation has progressed over the years, Pitcher's statements about her telephone conversation with Young have grown more elaborate. Thus, at Pitcher's first deposition in May 1994, she stated that she subjectively thought that the report might be credible based solely on the fact that Young and another doctor, to whom Pitcher never spoke, specialized in ritual abuse. Pitcher did not, in that deposition, testify that Young ever told her that this report was credible or that the Wallis children were in any immediate danger. However, when three years later Pitcher submitted an affidavit in support of the defendant's motion for summary judgment, she reported a different version of her conversation with Young one in which Young told her that "in her professional opinion Rachel Stecks's report was . . . true and . . . that she had a real fear for the safety of the Wallis children." The two divergent accounts of this telephone conversation, as offered by Pitcher, in themselves create a question of fact and of credibility that can only be resolved by the jury. Moreover, even if Pitcher's most recent account is accurate, whether this conversation supplied sufficient objective facts and information to justify the seizure is a ques- tion of fact for the jury. See McKenzie v. Lamb , 738 F.2d 1005, 1008 (9th Cir. 1984) (holding that the existence of probable cause in a S 1983 case is a jury question).


4 Once again, Pitcher's testimony has changed as time has passed. In a subsequent deposition and declaration Pitcher offered a different version of these events, insisting that she had conducted an investigation, and had picked up the children after concluding that she had probable cause for such action. Even then, however, she made it clear that at the time she acted she was relying at least in substantial part on a statement from CPS that a pick-up order existed.


5 "The Wallises" refers to all four plaintiffs, except where the context reflects otherwise.


6 See supra note 4.


7 Although we do not consider here the legal consequences of relying on a non-existent order, see note 10, infra , we note that a number of factual issues exist as to what, if anything, the officers were told about a pick-up order for Lauren and Jessie. Such questions are best resolved at trial.


8 The claims of the parents in this regard should properly be assessed under the Fourteenth Amendment standard for interference with the right to family association. Campbell v. Burt, 141 F.3d 927 (9th Cir. 1998); Ram v. Rubin, 118 F.3d 1306, 1310 (9th Cir. 1991). Because only the chil-dren were subjected to a seizure, their claims should properly be assessed under the Fourth Amendment. Donald v. Polk County, 836 F.2d 376 (7th Cir. 1988); but see J.B. v. Washington County , 127 F.3d 919, 928 (10th Cir. 1997) (noting that there may be circumstances in which a parent has standing to bring a Fourth Amendment claim for the seizure of a minor child). As the same legal standard applies in evaluating Fourth and Four- teenth Amendment claims for the removal of children, we analyze the Wallises' claims together.


9 The City also cites, as a contributing factor in the reasonable cause cal- culus, the "fact" that the officers were told by CPS workers about the "pick-up" order. There are two problems with this suggestion. First, what, if anything, CPS told the officers is a disputed question of material fact. Second, there is a substantial legal question as to whether a mistaken belief as to the existence of a warrant or court order, even when based on an erroneous report from another law enforcement officer, can in itself constitute a contributing factor. In the recent case of Rogers v. Powell, 120 F.3d 446, 453 (3d Cir. 1997), the Third Circuit appears to have answered this question in the negative. In Rogers, a state trooper mistakenly believed, based on a conversation with a probation officer, that there was a warrant for Rogers's arrest. That trooper then told two fellow officers that there was an arrest warrant, and all three arrested Rogers on that basis. The Third Circuit concluded that all three officers violated the plaintiff's Fourth Amendment rights. The court went on to say, however, that the second two officers were entitled to qualified immunity, because it was objectively reasonable for them to believe that they were authorized to rely on the clear and unambiguous statements of a fellow officer.


10 The tip also stated that Bill supposedly told Rachel that Becky would get over the loss of Jessie, saying "She's not going to miss him. Besides, we've got Lauren. It's not like we don't have our hands full with her. She'll forget about him after a while." This part of the tip suggests that there was never any reasonable cause to remove Lauren even if there were reason to remove Jessie. There were no allegations that anyone planned to harm Lauren or that anyone had ever previously harmed Lauren.


11 In our recent decision in Calabretta, we quoted with approval the fol- lowing language: "It does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitu- tional rights of some magnitude. More than that: it is a violation of any known principle of human dignity." Calabretta, _______ F.3d at _______ (quoting Good v. Dauphin County Social Services, 891 F.2d at 1093 (in turn quot- ing Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir. 1980)).


12 See R. Lazebnik et al., Preparing Sexually Abused Girls for Genital Evaluation, 13 ISSUES IN COMPREHENSIVE PEDIATRIC NURSING 155 (1990) (concluding that vaginal examinations are highly traumatic to little girls, particularly when their mothers are absent). A social worker who observed five year old Lauren's vaginal and anal examination reported that Lauren was upset and "under stress" during the examination and asked for her parents. Later, Lauren appeared for an interview with this same social worker clutching a security blanket and a stuffed animal and tearfully asked whether her parents wanted her back or were trying to "get rid of her."


13 We note that the claims of each family member must be assessed sep- arately. Here, nothing in the record before us suggests that Becky Wallis was anything other than a fit and loving mother. As the Third Circuit recently held, a state has no interest whatever in protecting children from parents unless it has some reasonable evidence that the parent is unfit and the child is in imminent danger. Croft, 103 F.3d at 1125. The government may not, consistent with the Constitution, interpose itself between a fit parent and her children simply because of the conduct -- real or imagined -- of the other parent.


14 While we determine in the text that there is a genuine issue of material fact as to the existence of a municipal custom or practice of subjecting children, taken into custody due to suspected abuse or neglect, to investigatory anal and vaginal examinations without prior judicial authorization and parental notification, we do not intend to imply that it is necessary for the Wallises to establish the existence of a second and independent munic- ipal policy

http://www.bountylicenserecovery.com/wallis.html

CALABRETTA v FLOYD

CALABRETTA v FLOYD
9715385

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Analysis
Facts
Opinion
Counsel
Footnotes
The Strip Search

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.No. 97-15385

JILL FLOYD, individually and in her D.C. No. official capacity as a Caseworker CV-95-00345-LKK/ of Yolo County Department of PAN Social Services; YOLO COUNTY OPINION DEPARTMENT OF SOCIAL SERVICES; NICHOLAS SCHWALL, individually and in his official capacity with Woodland Police Department; RUSSELL SMITH, individually and in his official capacity as Chief of Police of the Woodland Police Department; WOODLAND POLICE DEPARTMENT, Defendants-Appellants.

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, Sac- ramento, California, for amicus State of California Ex Rel. Eloise Anders, Director of the California State of Social Ser- vices.

Kevin T. Snider (briefed), United States Justice Foundation, Escondido, California, for amicus United States Justice Foun- dation and Christian Action Network.
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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, inter- rogation of a child, and strip search of a child, conducted without a search warrant and without a special exigency.
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Facts

The two individual defendants moved for summary judg- ment 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 Depart- ment 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 chil- dren. 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. Cala- bretta 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 chil- dren "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 him- self 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 break- ing 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 bot- tom. 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 conver- sation 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.
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Analysis

We have jurisdiction over interlocutory appeals from deni- als 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 evi- dence 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 pur- poses 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 func- tions 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 appropri- ately 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 unlaw- fulness 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 law- ful, 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."

[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 televi- sion, 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 tip- ster'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 dif- ferent case, one to which we have no occasion to speak.

Appellants urge us to adopt a principle that "a search war- rant 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 par- ticularized analysis, to determine whether, in these particular circumstances, notably the absence of emergency, a reason- able 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 unre- stricted 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 cir- cumstances, police could not enter a dwelling without a war- rant 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 lim- iting 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 work- ers. Rather, everyone knew that the government could not so enter houses, and White said that principle was well estab- lished, in the context of a child abuse investigation. Appel- lants' 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 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 abu- sive 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 nec- essary 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 permissi- ble 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 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 warrant- less 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 par- ents 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 dia- pers. The Tenth Circuit held that the investigating police offi- cer 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 inves- tigating 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 offi- cer 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 war- rant or exigent circumstances, such as a need to protect a child against imminent danger of serious bodily injury, was neces- sary for an entry without consent, and the anonymous tip claiming bruises was in that case insufficient to establish spe- cial 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 circum- stances 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 war- rant, consent, or exigent circumstances applied. The require- ment 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 neces- sary 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 wel- fare 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 Amend- ment does apply to a school administrator search of a stu- dent'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 restric- tions 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 Amend- ment, 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 con- text 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 circum- stances 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 war- rant 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.
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The strip search

Appellants second issue on appeal is whether they were entitled to qualified immunity for the social worker's requir- ing 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 Cir- cuit, 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 memoran- dum in support of summary judgment filed in the district court, appellants did not argue that they were entitled to quali- fied immunity for the interview with the twelve year old. Because this claim was not raised in the district court, it can- not 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 vio- lated 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 expec- tations of the parents . . . , protected by the fourteenth amend- ment, 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, reason- ableness 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 malnour- ished, 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 moti- vated 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 away the screaming and told the social worker that the chil- dren were not abusively disciplined. The social worker's nota- tions refer to the religiosity of the household, but surely a family's religious views cannot justify social workers invad- ing 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 Lin- coln log) was illegal, and she did have reason to believe that such an object was used, but appellants have cited no author- ity for the proposition she was right that California law pro- hibits 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 pun- ishment 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 sacri- fice 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 work- ers lacked qualified immunity for strip searching small chil- dren. 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 gen- eral proposition was clearly established that the government may not "conduct a search of a home or strip search of a per- son'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 constitu- tional 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 uns- upervised 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 rela- tion to her own children in her own home. The strip search as well as the entry stripped the mother of this authority and dig- nity. 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 gov- ernment's interest in the welfare of children embraces not only protecting children from physical abuse, but also protect- ing children's interest in the privacy and dignity of their homes and in the lawfully exercised authority of their parents.
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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.

http://www.bountylicenserecovery.com/calabretta.html

DHS, Concilio and the full-court press against this story

DHS, Concilio and the full-court press against this story

By REGINA MEDINA
Philadelphia Daily News
medinar@phillynews.com 215-854-5985

When the Department of Human Services learned that the Daily News was pursuing a story about a 16-year-old girl in DHS care who had a late-term abortion in New Jersey, it began a legal battle against the People Paper, and a provider agency began to pressure one of the story's main sources.

* The girl and her attorney, child-advocate Robin Banister, requested a temporary restraining order against the Daily News April 21 in Common Pleas Court, asking that the girl's name not be published.

Judge Paul P. Panepinto approved the order the same day and added other details not to be published, including the location of the girl's school and foster home, and the name of her birth mother or those of any other direct relatives. He later allowed for the birth mother's name to be published.

An attorney for the Daily News said yesterday that the newspaper is appealing the judge's order.

"The First Amendment guarantees the Daily News' right to publish whatever details it sees fit," said the lawyer, David Laigaie. "However, within its journalistic prerogative it could tell the story without invading the juvenile's privacy."

* The foster mother said that since word got out that the Daily News was working on a story, she has been called constantly by representatives of Concilio, the provider agency that subcontracts with DHS.

Zenaida Maravi, family-services director at Concilio, told the foster mother not to speak to reporters or to allow any "new faces" into her house, the foster mother said.

* Maravi and another Concilio employee entered the foster home at 9:30 p.m. April 20 without announcing their presence, the foster mother said. When she learned that they were in her house, the foster mother looked for them in the teen's room, but when she tried to enter, they shut the door in her face while the teen remained with them in the room, the foster mother said.

* Maravi has told colleagues at the agency that "the [Daily News] story is not going to run," sources said.

The teen told her foster mother that "DHS is going to stop the news," according to the foster mother.

http://www.philly.com/dailynews/local/20100503_DHS__Concilio_and_the_full-court_press_against_this_story.html