C., Michael v. Gresbach, Dana

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1756

M ICHAEL C., C HERITA C., K IMBERLY W., ET AL.,

Plaintiffs-Appellees,

v.

D ANA G RESBACH,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05 C 650—Lynn Adelman, Judge.

____________

A RGUED D ECEMBER 3, 2007—D ECIDED M AY 19, 2008

____________

Before B AUER, E VANS and S YKES, Circuit Judges.

B AUER, Circuit Judge. The parents and stepparents of

minor children Ian and Alexis (“Plaintiffs”) sued Dana

Gresbach, a caseworker with the Bureau of Milwaukee

Child Welfare (“Bureau”), under 42 U.S.C. § 1983, alleging

in part that Gresbach violated the children’s Fourth

Amendment rights when she conducted under-the-clothes

examinations of each child’s body during separate inter-

views at their private school, as part of a child abuse

investigation in February of 2004. Gresbach moved for

summary judgment on qualified immunity grounds. The

2 No. 07-1756

district court denied the motion, holding that Gresbach’s

conduct violated the children’s rights to be free from

unreasonable searches, and those rights were clearly

established at the time of the searches. Gresbach appeals,

arguing that she is entitled to qualified immunity be-

cause her actions were objectively reasonable under the

Fourth Amendment after she received general consent

from the school’s principal to investigate an allegation of

child abuse pursuant to Wis. Stat. § 48.981(3)(c)1, and no

case clearly established that her investigation violated the

children’s Fourth Amendment rights. We affirm.

I.

In Doe v. Heck, 327 F.3d 492 (7th Cir. 2003), we addressed

the application of the Fourth Amendment in the context

of child abuse investigations by the same state agency

at issue here, the Bureau, on the premises of a private

school. Because we find Heck to be a blueprint for our

analysis, a brief review of its facts and holding, as they

pertain to this case, is necessary.

The Bureau, a division of the Wisconsin Department of

Health and Family Services which provides child abuse

prevention and related services in Milwaukee County,

conducts investigations of child abuse allegations under

established protocols in order to substantiate whether or

not child abuse has occurred. Prior to April, 2003, Wis. Stat.

§ 48.981(3)(c)1 1 had been interpreted as providing Bureau

1

Section 48.981(3)(c)1 provides, in pertinent part, that “[t]he

agency may contact, observe or interview the child at any

location without permission from the child’s parent, guardian,

(continued...)

No. 07-1756 3

caseworkers with the authority to interview children at

school without having to obtain permission from their

parents or school officials. See Heck, 327 F.3d at 502 n. 6. In

Heck, Bureau caseworkers received a report that a child

had been spanked at his private school, which followed

a corporal punishment policy. Pursuant to their investi-

gation, the caseworkers went to the school, identified

themselves to the principal, and requested to see the

child for an interview. The principal initially refused to

allow the workers to interview the child, however once

the workers received confirmation from a Wisconsin

district attorney that § 48.981(3)(c)1 gave them the au-

thority to interview children on school premises without

obtaining consent from either the parents or school offi-

cials, the principal reluctantly agreed to allow the case-

workers to interview the child, which they did, without

conducting a physical examination of the child. Later, the

school and the child’s parents sued the caseworkers,

alleging in part that they conducted an unreasonable

search of the school premises and an illegal seizure of the

child in violation of the Fourth Amendment. The district

court found that the caseworkers were protected by

qualified immunity, and we affirmed.

Under established Fourth Amendment principles, we

found that a private school and its students had a rea-

sonable expectation of privacy in and within the school’s

1

(...continued)

or legal custodian if necessary to determine if the child is in need

of protection or services, except that the person making the

investigation may enter a child’s dwelling only with permission

from the child’s parent, guardian, or legal custodian or after

obtaining a court order.”

4 No. 07-1756

premises, and that therefore the caseworkers’ warrantless

search of the premises and seizure of the child in order to

conduct an interview for a child abuse investigation,

without the consent of the child’s parents or school offi-

cials, was presumptively unreasonable. Heck, 327 F.3d at

510-13. We determined, in part, that “to the extent

§ 48.981(3)(c)1 authorizes government officials to inter-

view children suspected of being abused on private

property without a warrant or probable cause, consent, or

exigent circumstances, it is clearly unconstitutional as

applied.” Id. at 515-16. We nevertheless found that a

reasonable child welfare caseworker would not have

understood his actions under the statute to be unconsti-

tutional under the Fourth Amendment at the time of the

alleged violation, because his conduct did not violate any

clearly established law. Accordingly, we held that the

caseworkers were entitled to qualified immunity, but

stated that “[a]t this juncture [April, 2003] . . . we now

make it clear that it is patently unconstitutional for gov-

ernmental officials to search the premises of a private or

parochial school and/or seize a child attending that

school without a warrant or court order, probable cause,

consent, or exigent circumstances.” Heck, 327 F.3d at 517.

It is through the lens of Heck that we examine the dis-

trict court’s conclusion that Gresbach is not entitled to

qualified immunity.

II.

On February 4, 2004, a female family member of eight-

year-old Ian made a child abuse report to the Bureau,

stating that Ian told her that Michael C., Ian’s stepfather,

hit him on the wrists with a plastic stick on January 28,

No. 07-1756 5

2004. On February 5th, Dana Gresbach, an agent with the

Bureau since 1998, was assigned the case. During the

next four days, Gresbach reviewed the child abuse

report, met with a manager at the Bureau, Rita Zappen,

and spoke to the family member who reported the abuse.

On February 9th, Gresbach went to Ian’s private school,

Good Hope Christian Academy (“Good Hope”), to inter-

view Ian and his stepsister, nine-year-old Alexis.

When Gresbach arrived at Good Hope, she met with

Principal Cheryl Reetz. Gresbach handed Reetz her busi-

ness card and told Reetz that she needed to see Ian and

Alexis. Reetz was unfamiliar with her own role in a

child abuse investigation—the only real training she

had received was annual review of the faculty hand-

book, which delineates a teacher’s responsibilities as a

mandatory reporter of child abuse. Reetz asked Gresbach

if she could call the children’s parents, to which Gresbach

said no, and that Gresbach would contact the parents

herself after she had spoken with Ian and Alexis. Reetz

also asked Gresbach if she could observe the interviews,

and Gresbach responded that Reetz need not do so.

According to Reetz, she was concerned about allowing

Gresbach to interview the children without parental

consent, but she assumed that because Gresbach was a

Bureau caseworker, Reetz was legally obligated to allow

Gresbach to see the children, and that she was legally

prohibited from contacting the children’s parents.

Gresbach did not ask permission from Reetz to phys-

ically examine Ian and Alexis for signs of abuse; she

believed she was not obliged to do so, because

§ 48.981(3)(c)1 gave her the authority to conduct an in-

terview and possible physical examination of the

children without consent. Under Heck, Gresbach’s belief

was inaccurate.

6 No. 07-1756

Reetz allowed Gresbach to use her office to conduct

the interviews, and she retrieved the children from

their classrooms. Gresbach spent ten to fifteen minutes

alone in the office with each child. Ian told Gresbach that

Michael C. sometimes hit him with a flexible stick.

Gresbach examined Ian’s wrist for injuries, but did not see

any. Gresbach asked the child to pull up his shirt, and Ian

complied. Gresbach inspected his back for suspicious

injuries, but found none. During her interview, Alexis

told Gresbach that her parents sometimes gave her

“whoppings,” but denied receiving any marks or injuries.

Gresbach asked Alexis to pull down her tights and lift

up her dress, and Alexis did so. Gresbach examined her

legs for any injuries, and found none. Gresbach finished

the interviews and left the school.

Gresbach later spoke with the children’s mother, who

was very upset about what had happened at the school.

The Bureau made attempts to meet with the parents and

step-parents of Ian and Alexis, but the meetings never

occurred. Because no injuries were observed on the chil-

dren, the Bureau eventually closed the case.

On June 15, 2005, Plaintiffs (individually and on behalf

of their minor children, Alexis and Ian) sued Gresbach,

individually and in her official capacity, and Denise

Revels Robinson (the Bureau’s director) and Helene

Nelson (the Bureau’s secretary) in their official capacities.

Plaintiffs alleged that the defendants (1) subjected each

child to an unreasonable search and seizure at their

private school, in violation of the Fourth Amendment;

(2) violated all of the Plaintiffs’ rights to familial rela-

tions under the Fourteenth Amendment; and (3) vio-

lated all of the Plaintiffs’s rights to procedural due pro-

cess under the Fourteenth Amendment. Plaintiffs also

No. 07-1756 7

challenged the constitutionality of Wis. Stat. § 48.981(3)(c)1

as applied, sought an injunction against defendants to

prohibit enforcement of the statute in a manner incon-

sistent with Plaintiffs’ constitutional rights and to direct

defendants to amend their procedures and personnel

training, and requested a declaration that the last sen-

tence of § 48.981(3)(c)1 was unconstitutional. The defen-

dants responded that their conduct did not violate any

clearly established constitutional rights, and that there-

fore they were protected by qualified immunity. Both

parties moved for summary judgment.

On March 19, 2007, the district court granted partial

summary judgment in favor of the Plaintiffs, finding that

Gresbach violated the children’s Fourth Amendment

rights to be free from unreasonable searches and seizures.

The court held that while Gresbach obtained voluntary

consent from Reetz to conduct interviews of the chil-

dren, Gresbach did not have consent to conduct the

searches of the children’s bodies, thus violating their

rights to be free from unreasonable searches. The court

further found that those rights were clearly established at

the time of the alleged violation under Heck, in that a

reasonable child welfare worker would have known

that she lacked authority to conduct such a search. Accord-

ingly, the court denied Gresbach’s motion for sum-

mary judgment under qualified immunity.2

2

The district court dismissed all of Plaintiffs’ claims for

equitable relief, which included all claims against Robinson

and Nelson, as well as supplemental state law claims—none of

which are issues before us today. The court further denied

defendants’ motion for summary judgment on Plaintiffs’ due

(continued...)

8 No. 07-1756

III.

We review a district court’s denial of summary judg-

ment on qualified immunity grounds de novo. Sallenger v.

Oakes, 473 F.3d 731, 739 (7th Cir. 2007). We will affirm

the district court’s judgment if we find that a plaintiff

“present[ed] a version of the facts that is supported by

the evidence and under which defendants would not be

entitled to qualified immunity.” Borello v. Allison, 446 F.3d

742, 746 (7th Cir. 2006) (citation omitted). Under the

qualified immunity analysis, an official performing dis-

cretionary functions is immune from suit if her “conduct

could reasonably have been thought consistent with the

rights she is alleged to have violated.” Id. (internal quota-

tions omitted).

When evaluating a qualified immunity claim, we

must first decide whether, taken in the light most favor-

able to the plaintiffs, the facts show that the official’s

conduct violated a constitutional right. Finkel v. Cruppenink,

326 F.3d 903, 906 (7th Cir. 2003) (citing Saucier v. Katz, 533

U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). “Only

if the answer is affirmative does the court inquire

whether the official enjoys qualified immunity.” Hosty v.

Carter, 412 F.3d 731, 733 (7th Cir. 2005). If a constitu-

tional violation could be made out on a favorable view

of the parties’ submissions, the next step is to ask whether

the right was “clearly established.” Id. To be “clearly

established,” the contours of the right must be suf-

ficiently clear that a reasonable official would under-

2

(...continued)

process claims without prejudice, and granted a stay, pending

this appeal.

No. 07-1756 9

stand that what she is doing violates that right. Landstrom

v. Illinois Dept. of Children and Family Services, 892 F.2d 670,

675 (7th Cir. 1990) (quoting Anderson v. Creighton, 483 U.S.

635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1986)). If the

right was “clearly established,” the official is not entitled

to qualified immunity from suit.

A. Violation of a Constitutional Right

Our threshold inquiry is whether Gresbach violated Ian

and Alexis’s Fourth Amendment rights to be free from

unreasonable searches. The Fourth Amendment, as

applied to the states through the Fourteenth Amendment,

protects individuals against unreasonable searches and

seizures of their persons, homes, and effects, without a

warrant supported by probable cause. See U.S. Const.

amend. IV. The protections afforded by the Fourth Amend-

ment apply not only to the activities of criminal au-

thorities, but civil authorities as well, New Jersey v. T.L.O.,

469 U.S. 325, 335, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985),

including child welfare workers. Heck, 327 F.3d at 509;

Daryl H. v. Coler, 801 F.2d 893, 900 (7th Cir. 1986); see also

Brokaw v. Mercer County, 235 F.3d 1000, 1010 n.4 (7th

Cir. 2000) (finding that the Fourth Amendment protects

students from unreasonable searches and seizures by

public school officials); Jones v. Hunt, 410 F.3d 1221, 1225

(10th Cir. 2005) (“There is no ‘social worker’ exception to

the Fourth Amendment.”) (citation omitted); Tenenbaum v.

Williams, 193 F.3d 581, 606 (2d. Cir 1999) (holding the

Fourth Amendment doctrine applies to searches and

seizures made in the context of child abuse investigations).

First we determine whether Gresbach’s conduct consti-

tuted a “search” within the meaning of the Fourth Amend-

10 No. 07-1756

ment. “When the Fourth Amendment was ratified, as

now, to ‘search’ meant ‘to look over or through for the

purpose of finding something; to explore; to examine by

inspection. . . .’ ” Heck, 327 F.3d at 510 (quoting Kyllo v.

United States, 533 U.S. 27, 33 n.1, 121 S.Ct. 2038, 150

L.Ed.2d 94 (2001)); see Johnson v. Phelan, 69 F.3d 144, 145

(7th Cir. 1995) (holding that observation of unclothed

bodies is a form of a search under the Fourth Amendment).

Within the context of child abuse investigations, physical

examinations conducted by child welfare caseworkers,

that include visual examinations of portions of a child’s

body which are normally covered by clothing, implicate

Fourth Amendment concerns, and are within the scope

of searches under the amendment. Daryl H., 801 F.2d at

899-900. Thus, the visual observations of Ian’s stomach

and Alexis’s legs by Gresbach to look for signs of abuse

must be searches under the scope of the Fourth Amend-

ment.

Of course, the Fourth Amendment prohibits only those

searches that are unreasonable. See Vernonia School Dist. 47J

v. Acton, 515 U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564

(1995) (“As the text of the Fourth Amendment indicates,

the ultimate measure of the constitutionality of a gov-

ernmental search is reasonableness.”); Stanley v. Henson,

337 F.3d 961, 964 (7th Cir. 2003) (“Included within the

Fourth Amendment’s protection is the right to be free from

unreasonable searches of one’s unclothed body.”). To

determine reasonableness under the Fourth Amendment,

we balance the degree of the intrusion on the individual’s

privacy interests against the government’s need for the

search. Shell v. United States, 448 F.3d 951, 956 (7th Cir.

2006). “[W]hether a search is ‘reasonable,’ in the con-

stitutional sense, will vary according to the context of the

No. 07-1756 11

search.” Daryl H., 801 F.2d at 900. Gresbach’s searches of

the children’s bodies took place on private property, and

Heck made clear that a warrantless search conducted on

private property is presumptively unreasonable, whether

the government’s motivation is to investigate violations

of criminal laws or breaches of other statutory standards,

so long as the person has a reasonable expectation of

privacy in the premises on which the search took place.

Heck, 327 F.3d at 511 (citations omitted).

A reasonable expectation of privacy is present for

Fourth Amendment purposes when (1) one exhibits an

actual or subjective expectation of privacy, and (2) that

expectation is one that society is prepared to recognize as

reasonable. United States v. Amaral-Estrada, 509 F.3d 820,

826 (7th Cir. 2007). Even a limited search of a person is

a substantial invasion of privacy. “A search of a child’s

person or of a closed purse or other bag carried on her

person . . . is undoubtedly a severe violation of subjec-

tive expectation of privacy.” Daryl H., 801 F.2d at 900

(quoting T.L.O., 469 U.S. at 330, 105 S.Ct. 733). However,

it is unnecessary to show a subjective expectation of

privacy in instances of searches or seizures of young

children—it is more appropriate to consider whether

the parents manifested a subjective expectation of privacy

in the premises within which the search took place. Heck,

327 F.3d at 512. Private schools, by their very operation,

exhibit a subjective expectation of privacy in their pre-

mises. Id. at 511. The Plaintiffs manifested a subjec-

tive expectation of privacy by placing their children in

Good Hope Academy, and entrusting their children to the

care of the school’s officials in loco parentis. See id.

Moreover, an expectation of privacy is objectively

reasonable where parents who place their children in

12 No. 07-1756

private schools expect that the parents’ express delega-

tion of parental authority to school officials will be both

acknowledged and respected by government actors. Heck,

327 F.3d at 512. We find that Plaintiffs had a legitimate

expectation of privacy at Good Hope, and therefore the

searches of the children’s bodies to investigate child

abuse were presumptively unreasonable, unless they

fall within an exception to the warrant requirement of

the Fourth Amendment. See id. at 511.

Gresbach argues that it is objectively reasonable under

the Fourth Amendment for a child welfare agent to

visually inspect these areas of a child’s body for injuries

after receiving general consent from the child’s private

school principal to investigate child abuse. An estab-

lished exception to the warrant requirement is a search

conducted pursuant to consent. Schneckloth v. Bustamonte,

412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973);

United States v. Moore, 375 F.3d 580, 585 (7th Cir. 2004).

We are aware that this exception is grudgingly granted

because “the privacy interests protected by the Fourth

Amendment are to be jealously guarded.” Heck, 327 F.3d

at 513 (quoting Wilson v. Health & Hosp. Corp. of Marion

County, 620 F.2d 1201, 1209 (7th Cir. 1980)). A con-

sensual search is manifestly reasonable under the

Fourth Amendment as long as it remains within the

scope of consent. See Florida v. Jimeno, 500 U.S. 248, 251,

111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). The scope of con-

sent is “limited by the breadth of actual consent, and

whether the search remained within the boundaries of

the consent is a question of fact to be determined from

the totality of all the circumstances.” United States v. Long,

425 F.3d 482, 486 (7th Cir. 2005) (citation omitted). “In

determining the scope of a defendant’s consent, we

No. 07-1756 13

apply an objective standard: ‘what would the typical

reasonable person have understood by the exchange

between the offic[ial] and the [consentor]?’ ” Id. (quoting

United States v. Raney, 342 F.3d 551, 556 (7th Cir. 2003)).

Applied to the case sub judice, the inquiry is whether

it was reasonable for Gresbach to believe that Reetz’s

consent to interview the children included consent to

conduct a search of the children’s bodies. We find that

it was not. Based on Gresbach’s representations that

she needed to “see the children” to investigate a child

abuse allegation, and that Reetz need not be present for

the interview, Reetz allowed Gresbach to speak to the

children privately in order to obtain their statements

about an allegation of child abuse. A reasonable person

would not have interpreted this to mean that Reetz au-

thorized Gresbach to search the children’s bodies. It is

undisputed that Gresbach did not ask Reetz for per-

mission to search the children for injuries. Gresbach

argues that Reetz’s “general consent” to interview in-

cluded the consent to inspect the children’s bodies, but

she cites to no supporting relevant authority, and we are

unaware of any case under Fourth Amendment juris-

prudence that proscribes this notion.

In some instances, the line implicating Fourth Amend-

ment concerns is blurred when it applies to the govern-

ment and child abuse investigations. See Heck, 327 F.3d

at 514 (acknowledging that there are circumstances in

which the law of warrant and probable cause does not

work effectively in the child removal or child examina-

tion context); Landstrom, 892 F.2d at 676 (holding that

a search or seizure of a child by a state social worker

must be “reasonable,” but that does not necessarily re-

quire probable cause or a warrant); Daryl H., 801 F.2d at

14 No. 07-1756

902 (stating that the government must fulfill its responsi-

bility to protect the young under difficult circumstances).

Recognizing the sensitive nature of these types of in-

vestigations, officials may make a search or seizure

under exigent circumstances, where they have reason to

believe life or limb is in jeopardy.3 See Brokaw, 235 F.3d at

1010. We do not exempt child welfare workers from

adhering to basic Fourth Amendment principles under

non-exigent circumstances—to do so would be impru-

dent. In these circumstances, caseworkers can take pre-

liminary steps short of searches, such as interviewing

the child and a parent, or obtaining a warrant either

personally to conduct a search or to have a doctor per-

form the search. See Roe v. Texas Dept. of Protective and

Regulatory Services, 299 F.3d 395, 407 (5th Cir. 2002).

Gresbach advocates the position that a warrant is for

police officers, not caseworkers, and that the probable

cause and warrant requirement are more appropriately

geared towards the investigation of the abusers, not the

victims. We disagree. The Fourth Amendment preserves

the right to be free from warrantless searches by the

government, without limiting that right to one type of

official. See Calabretta v. Floyd, 189 F.3d 808, 813-14 (9th Cir.

3

Heck foreclosed the justification of the “special needs”

exemption in this context, because states have “the ability to take

immediate action to ensure the physical safety of a child

suspected of abuse who is located on private property” through

the exigent circumstances exception to the warrant require-

ment of the Fourth Amendment. Heck, 327 F.3d at 517 n. 20.

While it seems unlikely from the record that Gresbach could

have reasonably suspected the children’s safety was at risk,

she does not raise this issue on appeal.

No. 07-1756 15

1999). The requirement that a child welfare worker ob-

tain the equivalent of a warrant before conducting a

search (absent exigent circumstances) can effectively

protect children, without having to excuse workers

from obtaining advance judicial approval of searches

and seizures. Heck, 327 F.3d at 514; see Tenenbaum, 193

F.3d at 604. Additionally, nothing in the record sup-

ports Gresbach’s belief that obtaining a warrant would

have delayed and thus compromised her investigation.

Because Gresbach conducted a search of each child on

private property without consent, a warrant or probable

cause, or exigent circumstances, Ian and Alexis’s Fourth

Amendment rights to be free from unreasonable searches

were violated.

B. Clearly Established Law

Despite her participation in this constitutionally imper-

missible conduct, Gresbach may nevertheless be shielded

from liability for civil damages if Plaintiffs fail to meet

their burden of proving that Gresbach’s actions violated

clearly established statutory or constitutional rights of

which a reasonable person would have known. Hope v.

Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666

(2002) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102

S.Ct. 2727, 73 L.Ed.2d 396 (1982)); Sonnleitner v. York, 304

F.3d 704, 716-17 (7th Cir. 2002). In determining whether

a defendant’s alleged actions violated a clearly estab-

lished right, courts may properly take into account any

information the defendant should have reasonably ob-

tained. Jones v. Wilhelm, 425 F.3d 455, 461 (7th Cir. 2005).

Moreover, the salient question is whether the law at the

time of the disputed conduct gave defendants fair

16 No. 07-1756

warning that their alleged treatment of plaintiffs was

unconstitutional. Id.; see also Creighton, 483 U.S. at 640, 107

S.Ct. 3034 (“This 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.”) (internal citations omitted).

As we stated above, the structures of the Fourth Amend-

ment apply to social workers. Heck, 327 F.3d at 511. Plain-

tiffs argue that our decision in Heck precludes Gresbach’s

understanding of her rights to conduct a child abuse

investigation under § 48.981(3)(c)1, and we agree. “[T]o

the extent § 48.981(3)(c)1 authorizes government officials

to conduct an investigation of child abuse on private

property without a warrant or probable cause, consent, or

exigent circumstances, the statute is unconstitutional.” Id.

at 515-16. Considering the facts above in the light most

favorable to the Plaintiffs, we find that a reasonable

child welfare worker would have known that con-

ducting a search of a child’s body under his clothes, on

private property, without consent or the presence of any

other exception to the warrant requirement of the Fourth

Amendment, is in direct violation of the child’s constitu-

tional right to be free from unreasonable searches.

Gresbach argues that Heck is distinguishable from this

case, because Heck did not address the issue of scope of

consent in the context of child abuse investigations.

However, a general constitutional rule already identi-

fied may apply with obvious clarity to the specific con-

duct in question, even though the very action in ques-

tion has not previously been held unlawful. Hope, 536

U.S. at 741, 122 S.Ct. 2508 (quoting Lanier, 520 U.S. 259, 270-

71, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)); see also Jones, 410

No. 07-1756 17

F.3d at 1230 (holding that officials committing outrageous,

yet sui generis, constitutional violations ought not to

shield their behavior behind qualified immunity simply

because another official has not previously had the au-

dacity to commit a similar transgression). Officials can

still be on notice that their conduct violates established

law even in novel factual circumstances. Hope, 536 U.S. at

741, 122 S.Ct. 2508. In this case, it was clearly estab-

lished that the scope of consent to interview does not

extend to a search of an individual’s body under Jimeno

and its progeny.

Gresbach further argues (as the caseworkers did in

Heck) that we should apply the “reasonableness” frame-

work we laid out in Daryl H., where we held that the

constitutionality of a visual inspection of a child’s body

who may be a victim of child abuse should be evaluated

under the reasonableness test of the Fourth Amendment.

Daryl H., 892 F.2d at 902 (“[U]nder the circumstances of

that particular search in a public school, we could not say

that a visual inspection of a child’s body can only be

performed if a social worker has probable cause or ob-

tained a warrant.”). We declined to accept this argument

in Heck, and we do the same here. The key difference

between the searches in Daryl H. and in Heck was that the

search in Daryl H. took place on public school grounds

with the consent of public school officials, whereas in

Heck, as here, the search took place on private property.

Heck, 327 F.3d at 514. Heck found that Daryl H. stood for

the proposition that a lower standard of scrutiny applies

to searches and seizures conducted by government offi-

cials on public school property. Id. (citing Brokaw, 235

F.3d at 1011). This case falls squarely within the scope of

Heck, as the search took place at a private school.

18 No. 07-1756

While we recognize that “child welfare caseworkers are

often called upon to make difficult decisions without the

benefit of extended deliberation” in order to prevent “the

most vulnerable members of society, children of tender

years, from being physically abused,” Heck, 327 F.3d at

525, we do not believe that requiring a child welfare

caseworker to act in accordance with basic Fourth Amend-

ment principles is an undue burden on the child welfare

system, particularly when it is necessary to conduct an

examination of a child’s body, which is undoubtedly

“frightening, humiliating, and intrusive” to the child. At

the time Gresbach conducted the searches at Good Hope

in 2004, there was a clearly established doctrine as to

what actions a Bureau caseworker must take when con-

ducting a child abuse investigation at a private school.

Today we reiterate Heck’s definitive holding, along the

lines of the Fourth Amendment principles outlined above,

that it is a violation of a child’s constitutional rights to

conduct a search of a child at a private school without a

warrant or probable cause, consent, or exigent circum-

stances.

CONCLUSION

For the foregoing reasons, the judgment of the district

court is A FFIRMED.

USCA-02-C-0072—5-19-08