Gates v. Texas Deparment of Protective & Regulatory Services

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

July 28, 2008

No. 06-20763 Charles R. Fulbruge III

Clerk

GARY W GATES, JR; MELISSA GATES, Individually and as next friends to

Sarah Gates, Derodrick Gates, Travis Gates, Raquel Gates, Cynthia Gates,

Cassandra Gates, Timothy Gates, Andrew Gates, Alexis Gates, and Marcus

Gates; GARY WILTON GATES; GEORGE GATES; SCOTT GATES

Plaintiffs-Appellants

v.

TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES,

Childrens Protective Services; THOMAS CHAPMOND; JERRY POLASEK;

AMY ODIN; SANDRA RUSSELL; LISA MATTHEWS; LAURA MILLER;

ERIKA DAVIS; SHERRECE HAYWOOD; LAURA RAMIREZ; FORT BEND

COUNTY; MILTON WRIGHT; SAM MILLSAP; ARTHUR CHAPMAN;

CARLOS CARRILLO; VIRGINIA SCHAEFER; KEN LEE; LLOYD

ROWLAND, Sergeant; JAMES CARLSON, Detective; SPILMAN, Detective

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before WIENER, DeMOSS, and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Before us is an appeal of a district court’s decision to dismiss a family’s

claims against various governmental entities and employees who allegedly

performed unconstitutional child abuse investigations. For the following

reasons, we AFFIRM the judgment of the district court.

No. 06-20763

I. FACTUAL BACKGROUND

Gary and Melissa Gates are the parents of thirteen children—two

biological (Sarah and Will) and eleven adopted (George, Scott, Derodrick, Travis,

Raquel, Cynthia, Cassandra, Timothy, Andrew, Alexis, and Marcus).1 The

Gateses believe that the Texas Department of Protective and Regulatory

Services (“TDPRS”)2 and Fort Bend County (“Fort Bend”), along with employees

of each, violated their constitutional rights when conducting several child abuse

investigations of the Gates family.

A. First Incident–February 11, 2000

Gary and Melissa adopted siblings Scott, Derodrick, Travis, and Raquel

through TDPRS in 1997. Travis had a severe attachment disorder and an eating

disorder that caused him to steal and gorge on food. Travis’s teachers at his

school in the Lamar Consolidated Independent School District (“LCISD”) were

aware of this problem and had to monitor Travis closely, as he would frequently

steal food from students and teachers. Indeed, Travis’s school files contain

documentation of dozens of instances of food theft by Travis. In addition to that,

Gary and LCISD disagreed about how to best educate Travis overall, and the

dispute culminated in a “heated” Admission, Review, and Dismissal meeting

between Gary and LCISD personnel on February 10, 2000.

Also on February 10, Gary and Melissa discovered that Travis, who was

ten years old at the time, had stolen food from the kitchen, including two boxes

of fig bars that he ate in the attic. He had also played with matches while in the

attic. In an attempt to make Travis understand the seriousness of his conduct,

Gary put the fig bar wrappers in a baggie and pinned it to Travis’s shirt. Gary

said it was the first time Travis had shown genuine remorse for his actions, so

1

Because of the number of Gateses involved in this case, we will refer to each member

of the family by his or her first name.

2

TDPRS is now known as the Texas Department of Family and Protective Services.

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No. 06-20763

Gary decided to make Travis wear the baggie filled with wrappers to school on

February 11. Gary included a note in the baggie that explained his reason for

the punishment and invited LCISD to contact him if it had any questions.

At 8:31 a.m. on February 11, Tiffany Bezdek (“Bezdek”), a Statewide

Intake Specialist with TDPRS, received a call on the Abuse/Neglect Hotline from

an individual at LCISD (“the reporter”) regarding Travis. According to the Call

Narrative, the reporter stated as follows:

• Travis had been forced by his father to wear food wrappers stapled to his

clothes as a punishment for stealing food from home.

• Travis was not allowed to attend the Valentine’s Day parties or eat any

food from school.

• Travis had a severe emotional disturbance and eating disorder.

• Travis was in a strict setting at school because Gary would not treat him

medically.

• Gary was “very religious and very controlling” and weighed Travis each

day, forcing him to work off any extra pounds.

• Gary once punished Travis for stealing food by requiring him to move

bricks from one pile to another.

• One year ago, Gary punished Travis for stealing food by handcuffing him

to his bed for a day.

Based on this information, Bezdek classified the report as Priority 1. TDPRS is

supposed to classify reports as Priority 1 when the reports “concern children who

appear to face an immediate risk of abuse or neglect that could result in death

or serious harm.” 40 TEX. ADMIN. CODE § 700.505 (2007).3 TDPRS must

investigate Priority 1 reports within twenty-four hours. Id.

3

Bezdek stated that the factors she considered in designating the report as Priority 1

were accessibility of the alleged perpetrator to the child, the fact that the child was

unprotected, hostility expressed toward the child, inappropriate discipline, the fact that the

alleged abuse/neglect was occurring now, yelling at the child, and behavior of the child that

was detrimental to himself.

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No. 06-20763

Because of the Priority 1 designation, TDPRS dispatched Defendant-

Appellee Erika Davis (“Davis”), a TDPRS investigator, to interview Travis at his

school. Upon arriving, Davis noticed that Travis “had a mark on his hand and

a mark on his face somewhere.” Davis decided to take Travis to the Child

Advocacy Center (“the CAC”) for a videotaped interview. The CAC was

established pursuant to Chapter 264, Subchapter E, of the Texas Family Code.

The goal of the CAC is to coordinate child abuse investigations among the

various branches of government, including TDPRS, county law enforcement, and

the district attorney, so that children will not experience the trauma of multiple

investigations from the different governmental entities. Thus, for example, a

CAC worker may conduct one interview of a child that can then be used by any

branch of government, rather than each entity conducting its own interview.

Upon arrival at the CAC, Travis was interviewed by CAC worker Bonnie

Martin (“Martin”). Travis told her that, following Gary’s discovery that Travis

had been stealing food, Gary pushed and kicked Travis, made Travis sit in the

“chair position” with his back against the wall, and run up and down stairs until

his legs hurt. Travis further stated that Gary’s punishments in the past

included drinking “throw up” medicine, running, and moving bricks. Travis also

said he had been spanked with a board before.

Prior to Travis’s interview with Martin, Davis learned that Travis had

twelve other siblings. Davis informed her supervisors at TDPRS of this fact, and

Jerry Polasek (“Polasek”), a TDPRS supervisor, sent TDPRS employees Amy

Odin (“Odin”) and Sherrece Haywood (“Haywood”), along with TDPRS trainees

Lisa Matthews (“Matthews”) and Laura Ramirez (“Ramirez”), to interview Will,

George, and Scott at their schools. Polasek, Odin, Haywood, Matthews, and

Ramirez are all Defendants-Appellees in this action.

According to Will, George, and Scott, Gary was the disciplinarian in the

family. His punishments included requiring the children to sit in the chair

4

No. 06-20763

position against a wall (sometimes with weights in their laps), move boards and

bricks around the driveway, and run (both for punishment and for exercise). The

smaller children were spanked with a belt. Will and Scott stated that Gary had

handcuffed Travis to his bed in the past to keep him from stealing food. Scott

also stated that Gary pushed Travis down when he found out about Travis

stealing the fig bars. After reporting this information to their TDPRS

supervisors, Odin, Haywood, Matthews, and Ramirez went to lunch.

At approximately 1:30 p.m., Davis took Travis from the CAC to the TDPRS

offices. She then called Gary to inform him that TDPRS had interviewed Travis

and to request permission to interview his other children. Gary denied

permission to interview his children and arrived at the TDPRS offices ten

minutes later to discuss the matter. TDPRS did not tell him that Travis was in

the building.

In the meantime, Polasek called Odin, Haywood, Matthews, and Ramirez

while they were at lunch and told them to go to the Gateses’ home and interview

the remaining children. Before arriving at the Gateses’ home, Odin called for

non-emergency support from the Fort Bend Sheriff’s Department. Deputies

Carlos Carrillo (“Carrillo”) and Virginia Schaefer (“Schaefer”), who are

Defendants-Appellees, responded to the request. The six of them arrived at the

house between 3:00 and 3:30, right before the children came home from school.

The Gateses’ housekeeper Nermi Menjivar (“Menjivar”) answered the door. She

spoke only Spanish, which Carrillo and Ramirez also spoke.

Whether Menjivar consented to the entry of the individual defendants into

the Gateses’ house is the subject of some debate between the parties. Ramirez,

Odin, and Haywood all remember that Menjivar let them into the house, but

they do not remember what anyone said during the conversation. Carrillo

believes he would have remembered if Menjivar had refused to let them in, and

he does not recall that happening. Schaefer and Matthews do not remember

5

No. 06-20763

anything about the conversation. According to Menjivar, someone at the door

told her that they wanted to speak with the children. She told them that Gary

and Melissa were not home but that Melissa would be back between 4:00 and

4:30. Menjivar testified at her deposition that the TDPRS employees and Fort

Bend deputies did not ask for permission to enter the house and that she did not

intend for them to enter the house; however, she admits that she never told

them that they could not enter the house. She also stated at her deposition that

she told the TDPRS employees and Fort Bend deputies that “they would be able

to speak with [the children].”

Within minutes, the Gates children arrived home by school bus, and

Menjivar motioned them to come quickly into the house and told Derodrick to

call his father. It appears that the TDPRS employees and Fort Bend deputies

entered the house with the children and began the interview process. Once the

TDPRS employees had gained entry to the house, the Fort Bend deputies left.

The time spent at the front door took less than ten minutes.

While at the TDPRS offices, Gary received a call from Derodrick telling

him that TDPRS employees were at their home and asking questions. Gary

immediately returned to his house. Again, the parties disagree about what

happened next. Gary claims he ordered the TDPRS employees to leave and that

Odin told him they would remove his children if he did not cooperate. Matthews

does not remember anything except Gary asking them to write their names

down on a piece of paper. Haywood recalls that Gary was upset, and Ramirez

remembers Gary yelling a lot and locking the front door so they could not leave.

One of the TDPRS employees called the Fort Bend Sheriff’s Department,

prompting Carrillo, Schaefer, and Defendant-Appellee Deputy Arthur Chapman

(“Chapman”) to arrive. According to Gary, Chapman would not let Gary see his

children and took Gary to the porch and threatened to put him in the squad car.

Melissa arrived home around 5:15 p.m. and was not permitted to see the

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No. 06-20763

children either. TDPRS employee Laurel Miller (“Miller”), also a

Defendant-Appellee, later arrived in order to interview Melissa. Gary was

eventually permitted in one room of the house, but he was still not allowed to be

with his children. Around 6:00 p.m., TDPRS granted Gary and Melissa

permission to order pizza for the children.

During the interviews with the children, TDPRS learned that Gary’s

punishments included sitting against the wall in the chair position, running,

moving bricks and boards across the driveway, doing push-ups, and being

spanked with a hand, belt, or board. Travis and Alexis had been given

“throw-up” medicine (ipecac) for eating food they should not have eaten, and

children were required to skip their next meal if they stole food. On occasion,

Gary taped newspaper around a child’s hands to keep him or her from stealing

food.

Timothy stated that Gary threw the older children against the wall and

that “dad hurts Travis and the big kids.” Timothy also stated that he was afraid

of his father because “he hurts them.” Cynthia stated that after Gary found out

about Travis stealing food, he kicked out Travis’s chair while Travis was sitting

on it, causing Travis to hit his head on the floor; Gary then hit Travis, kicked

him in the stomach, and pushed him into a wall. Marcus corroborated this story.

Cynthia also stated that Gary had hit Cassandra and Andrew the previous day

and that she is scared to live at home because her dad gets so mad. Andy

confirmed that he had been spanked the previous day and had a bruise on his

leg as a result.

Further, according to a TDPRS employee, when Gary arrived home that

day, he told his children, “These people want to talk to you, they think mom and

dad are bad people.” Timothy then responded, “Well dad you are bad, you

slammed them [sic] up against the wall and made his head bleed.” Alexis and

Marcus agreed with Timothy.

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No. 06-20763

Based on the reports and interviews,4 Polasek and Defendant-Appellee

Sandra Russell (“Russell”), who were TDPRS supervisors operating offsite, made

the decision to remove the children from the home that evening. Later that

evening, the Fort Bend County “jail wagon” arrived with Sergeant Sam Millsap

(“Millsap”), Deputy Ken Lee (“Lee”), and Deputy Scott Pagel (“Pagel”). Millsap

and Lee are Defendants-Appellees in this case. All of the children were loaded

into the wagon and taken to the CAC, where they were further interviewed and

eventually sent to foster homes. At 8:30 p.m., Davis removed Will from his high

school dance and took him to the CAC. The Gateses were given a form notice

that their children were being removed because the children’s “physical health

or safety was in immediate danger” and “there was no time to obtain an

emergency court order before the removal.”

On Monday, February 14, 2000, the next business day after the children

were removed, TDPRS filed a Suit Affecting the Parent-Child Relationship. A

hearing was conducted that same day, and the court ordered that the children

be returned to their parents. TDPRS ultimately dismissed the suit seven

months later. Gary and Melissa contended throughout the suit that they never

abused their children. In support of their position, Gary and Melissa produced

numerous affidavits from friends and professionals that commended the job

Gary and Melissa were doing in raising a large number of children with different

needs.

B. Second Incident–January 25, 2001

4

All of the TDPRS employees’ hand-written notes of their interviews with the Gates

children on February 11, 2000, were shredded pursuant to TDPRS policy after the information

was entered into a computer. Thus, the only information regarding what was said by the

Gates children comes from an affidavit signed by Davis that appears to be a compilation of the

notes from Davis, Odin, Haywood, and Miller. The affidavit was created for use before the

state court on February 14, 2000, when TDPRS attempted to justify its warrantless seizure

of the Gates children. It is unclear to this court whether all of the information from the

hand-written notes was included in the affidavit. While the Gates find fault with the

shredding policy, the constitutionality of that practice is not before us today.

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No. 06-20763

On January 25, 2001, an individual from LCISD anonymously reported to

TDPRS that Alexis, who was in kindergarten at the time, had a one-inch bruise

on her face. The individual further stated that Alexis told her teacher that Gary

had given her the bruise but told the school nurse that her brother Derodrick

gave her the bruise when he pushed her into a bed. TDPRS classified the report

as Priority 1, and Polasek ordered TDPRS employee Lori Sterns (“Sterns”) to

remove Alexis from school and bring her to the CAC so TDPRS could conduct a

videotaped interview. During the interview, Alexis stated that she received the

bruise while wrestling with her brother Marcus. Alexis was then returned to her

parents.

TDPRS asked Gary for permission to interview other members of the

family, and Gary refused. In response, TDPRS filed a Petition for Orders in Aid

of Investigation of a Report of Child Abuse in state district court in order to gain

access to the children. The court held a hearing regarding the Petition on

February 2, 2001. Prior to the completion of the hearing, the Gateses reached

an agreement with TDPRS that would allow TDPRS to question Marcus,

Derodrick, Gary, and Melissa. The questioning took place that day, and TDPRS

subsequently closed the case.5

C. Third Incident–April 25, 2003

The final episode made part of this suit occurred on April 25, 2003. Ten

days earlier, on April 15, 2003, the Richmond YMCA reported to TDPRS that

Alexis had suspicious marks on her body. Specifically, the report indicated that

over the past several weeks, Alexis was observed with bruises on her arms, legs,

and face, and a belt-shaped slash on her back. When asked about the bruises,

Alexis told YMCA personnel that she got them from falling off of her bed. Upon

5

During the interviews, Marcus and Derodrick were asked sexual abuse questions,

which upset the Gateses. The propriety of the sexual abuse questions was resolved in a state

court suit filed by the Gateses. Gates v. Fort Bend County Child Advocates, Inc., No.

01-03-01298-CV, 2005 WL 1251988 (Tex. App.—Houston[1st Dist.] May 26, 2005, pet. denied).

9

No. 06-20763

receipt of the report, TDPRS determined that it would be best if the

investigation was handled by the Fort Bend Sheriff’s Department. To that end,

Sergeant Lloyd Rowland (“Rowland”) dispatched Detectives James Carlson

(“Carlson”) and Mary Spilman (“Spilman”) to conduct the investigation. All

three are Defendants-Appellees.

On April 25, 2003, Alexis and Marcus were attending a home/private

school function at the YMCA along with their caretaker Ms. Kellough.6 Carlson

and Spilman donned YMCA shirts and, without Ms. Kellough’s knowledge, took

Alexis and Marcus into a separate room at the YMCA and questioned them for

a short time. Based on the interviews, the sheriff’s department decided to close

the investigation. Gary and Melissa learned of the incident when Alexis and

Marcus told them about it.

II. PROCEDURAL HISTORY

The Gateses (Gary, Melissa, and all of their children) filed suit on

February 8, 2002, bringing fourteen claims against TDPRS, Fort Bend, the Fort

Bend County Sheriff’s Department, the Fort Bend County District Attorney’s

Office, LCISD, and twenty-four individuals. The Gateses later supplemented

their complaint to add the individuals involved in the April 2003 incident. The

Gateses’ claims include (1) unlawful search and seizure, (2) excessive force, (3)

interference with family relations, (4) removal of children without a hearing, (5)

intentional infliction of emotional distress, (6) assault and battery, (7) invasion

of privacy and a § 1983 privacy claim, (8) false imprisonment, (9) abuse of civil

process, (10) conspiracy, and (11) violation of the Texas constitution.7

6

Due to repeated conflicts with LCISD, Gary and Melissa had pulled their children out

of public schools and were home-schooling them.

7

The Gateses also brought claims of unlawful retaliation, negligence, and violation of

federally protected rights against individuals who are not part of this appeal.

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No. 06-20763

The proceedings before the district court were protracted and contentious,

spanning four and a half years. The district court held multiple hearings in an

attempt to narrow the issues and eliminate extraneous parties, and the parties

participated in an unsuccessful mediation. All of the defendants filed motions

for summary judgment. The district court dismissed the claims against Fort

Bend and its employees at a hearing on March 28, 2006. The district court

dismissed the claims against the TDPRS and its employees without a hearing

and in a one-page order issued on April 14, 2006.

Following the Gateses’ settlement with LCISD, the district court entered

a take-nothing judgment on August 1, 2006. The Gateses have appealed the

dismissal of their claims against TDPRS and its employees and Fort Bend and

its employees. We have jurisdiction under 28 U.S.C. § 1291 to hear their appeal.

III. STANDARD OF REVIEW

This court reviews the grant of summary judgment de novo. Nichols v.

Enterasys Networks, Inc., 495 F.3d 185, 188 (5th Cir. 2007). Summary judgment

is appropriate when “the pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(c). A genuine issue of material fact exists when the evidence is such

that a reasonable jury could return a verdict for the non-moving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When considering a

motion for summary judgment, we view all of the evidence and factual inferences

in the light most favorable to the non-moving party. Baker v. Am. Airlines, Inc.,

430 F.3d 750, 753 (5th Cir. 2005).

Our review in this case is complicated by the district court’s failure to

provide clear reasons for its decision to grant summary judgment; instead, it

issued single-page orders dismissing the defendants. It appears that the district

court attempted to explain some of its reasoning at status conferences and

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No. 06-20763

hearings in this case. However, review of the transcripts of the district court’s

comments reveals nothing more than that the court believed that the

government’s actions were “reasonable.” The district judge did not cite any law

or legal standard by which he was measuring the parties’ actions, other than his

own concept of what should be done in child abuse investigations.

As will be seen from this opinion, this case concerns areas of the law that

have not yet been fully developed. The district court’s manner of summarily

dismissing the case was helpful to the parties only in that it moved the case

toward a final resolution. The district court’s actions, however, did nothing to

advance the state of the law in this area and gave the parties absolutely no

guidance on how to conduct themselves in the future.

Further, by failing to articulate clear reasons for the dismissal, the district

court prevented the parties from being able to focus their briefs on specific issues

on appeal. As we have stated before,

The spotlight of the appeal is given its focus by the trial judge’s

written decision, which shapes and sharpens the issues and reveals

the basis for his action. . . . When given such aid, counsel know what

issues must be met and the appellate court need not scour the entire

record while it ponders the possible explanations.

Jot-Em-Down Store (JEDS), Inc. v. Cotter & Co., 651 F.2d 245, 247 (5th Cir.

Unit A July 1981); see also Myers v. Gulf Oil Corp., 731 F.2d 281, 284 (5th Cir.

1984) (noting that a statement of reasons for a district court’s decision is “not

only helpful, but essential” in all but the “simplest case” (internal quotation

marks omitted)). In this case, there were over thirty defendants, fourteen causes

of action, and approximately eight thousand pages of record, none of which

contain a legal basis for the district court’s decision. Because of the lack of a

legal analysis by the district court, this court and the parties have had to start

from scratch in addressing the issues.

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No. 06-20763

In the past, we have not hesitated to remand a case to the district court for

an explanation of its decision when no explanation was originally given. See,

e.g., Myers, 731 F.2d at 284. However, given the amount of time and effort the

parties have put into this litigation, a resolution of the case is appropriate, not

a remand to give the district court another chance to properly address the issues.

Therefore, we will consider the issues without the benefit of a district court

analysis.

IV. DISCUSSION

As noted above, the Gateses have appealed their claims against TDPRS

and its employees and Fort Bend and its employees. The individual defendants

in this case argue that they did not violate the Constitution or any other law

and, alternatively, that they are entitled to qualified immunity for their actions.

We will analyze the claims against the individual defendants under the qualified

immunity rubric, as that will also encompass a consideration of the

constitutionality of the child abuse investigation practices at issue. We will then

consider the liability of the TDPRS and Fort Bend supervisors, and then the

liability of TDPRS and Fort Bend.

A. Qualified Immunity

All of the individual defendants in this case have asserted the defense of

qualified immunity. Qualified immunity shields government officials from

liability when they are acting within their discretionary authority and their

conduct does not violate clearly established statutory or constitutional law of

which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982); Wallace v. County of Comal, 400 F.3d 284, 289 (5th Cir. 2005).

In performing the qualified immunity analysis, the first question we must ask

is whether, taken in the light most favorable to the plaintiffs, the facts alleged

show that the officer’s conduct violated a constitutional right. Saucier v. Katz,

533 U.S. 194, 201 (2001); Aucoin v. Haney, 306 F.3d 268, 272 (5th Cir. 2002). If

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No. 06-20763

no constitutional right would have been violated were the allegations

established, the inquiry ends. Saucier, 533 U.S. at 201. If, however, the

plaintiffs allege the violation of a constitutional right, we must then determine

whether the right was clearly established at the time of the incident at issue.

Id.; Aucoin, 306 F.3d at 272. A right is clearly established when its contours are

“‘sufficiently clear that a reasonable official would understand that what he is

doing violates that right.’” Wooley v. City of Baton Rouge, 211 F.3d 913, 919 (5th

Cir. 2000) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Finally,

if the law was clearly established, we must decide whether the defendant’s

conduct was objectively reasonable. Aucoin, 306 F.3d at 272; see also Harlow,

457 U.S. at 818. We consider an official’s conduct to be objectively reasonable

unless all reasonable officials in the defendant’s circumstances would have then

known that the conduct violated the Constitution. Hampton v. Oktibbeha

County Sheriff Dep’t, 480 F.3d 358, 363 (5th Cir. 2007).

In the summary judgment context, a government official need only plead

qualified immunity, which then shifts the burden to the plaintiff. Michalik v.

Hermann, 422 F.3d 252, 262 (5th Cir. 2005). The plaintiff must rebut the

defense by establishing that the official’s allegedly wrongful conduct violated

clearly established law and that genuine issues of material fact exist regarding

the reasonableness of the official’s conduct. Id. Because the individual

defendants have asserted their entitlement to qualified immunity, the Gateses

bear the burden of overcoming that defense.

B. Entry Into the Home

The Gateses’ first claim is that the individual defendants entered the

Gateses’ home on February 11, 2000, without a warrant and in violation of the

Fourth Amendment. There are two aspects to this claim: (1) whether the

defendants’ initial entry into the house was permissible, and (2) whether the

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defendants’ decision to remain in the house after Gary ordered them to leave was

permissible.

1. Initial Entry

The Gateses contend that TDPRS employees and Fort Bend deputies

violated the Fourth Amendment by entering the Gateses’ home without a

warrant or court order on February 11, 2000.8 In response, the TDPRS

employees and Fort Bend deputies assert that their entry into the Gateses’ home

was permissible because (1) the housekeeper, Menjivar, consented to their entry,

(2) they were compelled by exigent circumstances, and (3) they met the

reasonableness standard of the “special needs” doctrine. The district court did

not make clear which, if any, of those arguments it relied on when dismissing

the case.9 Thus, we will consider all three arguments made by the defendants.

a. Whether Allegations Establish a Constitutional

Violation

The first step in the qualified immunity analysis requires us to determine

if the Gateses have alleged the violation of a constitutional right. Saucier, 533

U.S. at 201. We begin by noting that it is well established in this circuit that the

Fourth Amendment regulates social workers’ civil investigations. Roe v. Tex.

Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 401 (5th Cir. 2002); see

also Wooley, 211 F.3d at 925 (stating that Fourth Amendment standards apply

in both criminal and civil contexts). Therefore, we will apply the typical Fourth

Amendment standards in assessing the defendants’ conduct.

“[P]hysical entry of the home is the chief evil against which the . . . Fourth

Amendment is directed.” United States v. United States Dist. Court, 407 U.S.

8

The TDPRS employees making the initial entrance were Odin, Haywood, Matthews,

and Ramirez. The Fort Bend deputies were Carrillo and Schaefer.

9

During one of the hearings in this case, the district court stated that the report

regarding Travis “was an adequate predicate for a warrantless intervention,” which indicates

that the district court may have been relying on exigent circumstances.

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No. 06-20763

297, 313 (1972). Pursuant to our Fourth Amendment law, “[w]arrantless

searches of a person’s home are presumptively unreasonable unless the person

consents, or unless probable cause and exigent circumstances justify the search.”

United States v. Gomez-Moreno, 479 F.3d 350, 354 (5th Cir. 2007); United States

v. Gould, 364 F.3d 578, 587 n.9 (5th Cir. 2004); see also United States v. Mendez,

431 F.3d 420, 429 (5th Cir. 2005) (“Consensual searches are established

exceptions to the Fourth Amendment’s warrant requirement.”). The Supreme

Court has also carved out an exception to the warrant requirement in a few

instances when there is a “special need” that is “‘divorced from the State’s

general interest in law enforcement.’” Roe, 299 F.3d at 404 (quoting Ferguson

v. City of Charleston, 532 U.S. 67, 79 (2001)). Therefore, we must now decide

whether consent, exigent circumstances, or a special need justified the

warrantless entry into the Gateses’ house.10

i. Consent

The individual defendants first argue that their entry into the Gateses’

home was constitutional because Menjivar, the Gateses’ housekeeper, gave them

consent to enter. This court determines whether consent was given based on the

totality of the circumstances. United States v. Freeman, 482 F.3d 829, 831-32

(5th Cir. 2007). “[T]he standard for measuring the scope of . . . consent under

the Fourth Amendment is that of ‘objective’ reasonableness—what would the

typical reasonable person have understood by the exchange between the officer

and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991).

In this case, the parties dispute whether Menjivar gave consent for the

TDPRS employees and Fort Bend deputies to enter the house. As noted earlier,

although a few believe they had consent to enter, none of the individual

10

It is undisputed that the individual defendants did not obtain a court order to enter

the house pursuant to Texas Family Code § 261.303(b). Such an order would have been the

equivalent of a warrant in this situation.

16

No. 06-20763

defendants remember what was said. Menjivar asserts that she did not intend

for the individuals to enter and that no one ever asked for permission to enter.

However, she admits that she did not tell the defendants that they could not

enter and she also indicated that they could interview the children when the

children arrived home.11

We have previously held that “[s]ilence or passivity cannot form the basis

for consent to enter.” Roe, 299 F.3d at 402. Further, “[i]t is well established that

a defendant’s mere acquiescence to a show of lawful authority is insufficient to

establish voluntary consent.” United States v. Jaras, 86 F.3d 383, 390 (5th Cir.

1996). Here, no defendant was able to testify that Menjivar affirmatively

consented to let them into the house. Yet, Menjivar’s statement that she told

them that they could speak with the children might have indicated to a

reasonable officer that he or she had permission to enter the house. These facts

present a very close call; however, taken in the light most favorable to the

Gateses, this raises a fact issue as to whether consent was actually given.12

11

Menjivar specifically stated, “What I told [the defendants] was that the children were

on their way and that they would be able to speak with them because I don’t know anything

about it.”

12

We reject the Gateses’ assertion that consent was denied when Gary told Davis that

he did not want TDPRS to interview his children. There is no evidence that the individuals

at the scene were aware of this statement, so they cannot be held accountable for proceeding

in spite of Gary’s wishes.

17

No. 06-20763

ii. Exigent Circumstances

The next legal theory relied upon by the individual defendants that would

permit a warrantless entry into the Gateses’ home is exigent circumstances.

“[L]aw enforcement officers may enter a home without a warrant to render

emergency assistance to an injured occupant or to protect an occupant from

imminent injury.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006); see also

Michigan v. Tyler, 436 U.S. 499, 509 (1978) (stating that a warrantless entry

may be legal “when there is compelling need for official action and no time to

secure a warrant”). Immediate safety risks to police officers and others are

exigent circumstances that may excuse a warrantless entry into a residence.

United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001). The Tenth Circuit has

used the exigent circumstances analysis to evaluate the legality of a warrantless

entry into a home for the purposes of seizing a child who might have been

abused. Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1240-41 (10th Cir. 2003).

In similar circumstances, the Third Circuit has required that “the state actors

making the search . . . have reason to believe that life or limb is in immediate

jeopardy and that the intrusion is reasonably necessary to alleviate the threat.”

Good v. Dauphin County Soc. Servs. for Children & Youth, 891 F.2d 1087, 1094

(3d Cir. 1989).

Here, the individual defendants argue that exigent circumstances existed

based on the report by LCISD regarding Travis and the interviews of Will,

George, and Scott. The defendants further point out that they are commanded

by statute to investigate allegations of child abuse. See TEX. FAM. CODE ANN.

§ 261.301(a) (stating that TDPRS and law enforcement “shall make a prompt

and thorough investigation of a report of child abuse”). The Gateses counter that

the allegations in the LCISD report and any subsequent comments by Will,

George, and Scott do not suffice as exigent circumstances. The Gateses further

18

No. 06-20763

point out that the defendants have never shown that there was insufficient time

in the day to seek a court order that would have permitted the entry.

We can first easily dispose of any contention that the Texas Family Code’s

requirement that TDPRS undertake a “prompt” investigation somehow exempts

the defendants’ actions from constitutional scrutiny. A statutory command to

investigate allegations within twenty-four hours is not a license to ignore the

Fourth Amendment, and it is unreasonable for the defendants to think

otherwise. See Sibron v. New York, 392 U.S. 40, 60-61 (1968) (holding that,

although a state may develop its own search and seizure law, the state may not

authorize police conduct that infringes Fourth Amendment rights). Regardless

of what Texas law may authorize, entry into a house by the individual

defendants must satisfy Fourth Amendment standards.

Therefore, we next consider whether exigent circumstances existed that

permitted the individual defendants to make a warrantless entry into the

Gateses’ house.13 The individual defendants claim that exigent circumstances

were present, based on information that Gary had pushed and kicked Travis

that morning, had handcuffed Travis to his bed at some point, and used unusual

discipline methods.

There is no Fifth Circuit precedent directly on point regarding when a

social worker may enter a home due to exigent circumstances. In Wooley, this

court denied summary judgment on the issue of qualified immunity to officers

13

The Gateses erroneously contend that any fact issue regarding the truth of the

allegations in the LCISD report precludes summary judgment, relying on Tamez v. City of San

Marcos, 118 F.3d 1085, 1094 (5th Cir. 1997). This misconstrues the exigent circumstances

analysis. Tamez does not require that the underlying criminal conduct be established before

an officer may act on exigent circumstances. Instead, Tamez only requires that the officer

establish the existence of facts that would lead a reasonable officer to believe there was an

emergency. See id. Here, it is undisputed that an LCISD employee made a report to TDPRS

about Travis. Whether the allegations in the report were ultimately proven to be true or false

has no bearing on whether a reasonable officer could have believed exigent circumstances

existed on the basis of the report alone.

19

No. 06-20763

who entered a home and seized a child pursuant to a court order when the order

did not authorize the seizure. 211 F.3d at 925. There, we noted that there was

no evidence of any danger to the child that would enable the state to act without

a warrant. Id. That case, however, turned more on the validity of the court

order, rather than on any danger to the child. Id. In Roska, government officials

entered a house without a warrant and removed a child suspected of being

abused. 328 F.3d at 1238. The Tenth Circuit determined that there were no

exigent circumstances justifying the warrantless entry into the home. Id. at

1240-41. The court based its decision on the fact that the defendants were aware

that various doctors had suspected for some time that the child was a victim of

abuse, there was nothing particularly unusual about the child’s condition at the

time he was removed, and the child’s attending physician told the defendants it

would be a mistake to remove the child. Id. In that case, the removal took place

two days after the school reported its suspicions to child protective services. Id.

at 1238.

Turning to the facts of this case, we agree with the Gateses that there

were no exigent circumstances present at the time of the defendants’ initial

entry into the Gateses’ house that would have permitted the warrantless

intrusion. First, Gary, the alleged abuser, was not at home, so there was no

immediate danger to the children. Also, at that time, TDPRS was not aware of

any allegations that Gary had abused any of his children besides Travis, other

than his unusual discipline methods.14 We further note that none of the TDPRS

employees treated these interviews as emergencies. The Gateses point to

deposition testimony by Davis that the interviews conducted at the Gateses’

14

The unusual discipline methods include running, sitting against the wall in a chair

position, and moving bricks and boards around the driveway. We make no determination on

whether those forms of discipline constitute child abuse, leaving that instead to the state

courts. We do note, however, that those discipline methods presented no immediate risk to the

life or health of any of the Gates children at that time.

20

No. 06-20763

home were routine, non-emergency interviews. In fact, the TDPRS employees

went to lunch after interviewing Will, George, and Scott at school without taking

any emergency measures. Carrillo also testified that he did not witness any

exigent circumstances or emergency situation at the Gateses’ home.

Thus, at the time the individual defendants approached the house, the

only evidence of danger to the Gates children was a one-time incident involving

only Travis and the questionable discipline methods. These facts do not give rise

to an “immediate danger” supporting a warrantless entry into the Gateses’

house. Indeed, the stated purpose of entering the house was to interview the

children, not to guard them against some sort of immediate danger.

Consequently, we conclude that the individual defendants’ entry into the

Gateses’ house was not justified by exigent circumstances.

iii. Special Needs

Finally, the individual defendants argue that the “special needs” doctrine

supports their warrantless entry into the Gateses’ house. As we have described

it, the special needs doctrine permits warrantless searches with respect to a

special need that is divorced from the state’s general interest in law

enforcement. Roe, 299 F.3d at 404. Examples of recognized special needs are:

a principal’s search of a student’s purse for drugs in school; a public

employer’s search of an employee’s desk; a probation officer’s

warrantless search of a probationer’s home; a Federal Railroad

Administration regulation requiring employees to submit to blood

and urine tests after major train accidents; drug testing of United

States Customs Service employees applying for positions involving

drug interdiction; schools’ random testing of student athletes, and

drug testing of all public school students participating in

extracurricular activities.

Id. (citing multiple Supreme Court cases). In cases involving a special need, the

court judges the lawfulness of the search by “the standard of reasonableness

under all of the circumstances” instead of a probable cause or reasonable

suspicion standard. Id. (internal quotation marks omitted).

21

No. 06-20763

Key to the special needs doctrine, however, is that the need must be

divorced from the purpose of general law enforcement. Ferguson, 532 U.S. at 79.

As we stated in Roe, we “view[] entanglement with law enforcement

suspiciously,” and “[o]ther societal objectives cannot justify a program that

would systematically collect information for the police.” 299 F.3d at 406. In Roe,

we held that the special needs doctrine did not permit a social worker to visually

search a child’s body cavities as part of an abuse investigation without a warrant

or exigent circumstances. Id. at 406-07. In reaching that conclusion, we noted

that Texas law requires TDPRS to notify law enforcement of all child abuse

reports. See TEX. FAM. CODE ANN. § 261.105(b). Further, Texas law also

requires TDPRS and local law enforcement to conduct a joint investigation when

a report alleges that the child is at risk of immediate physical or sexual abuse.

Id. § 261.301(f). Given that the social worker’s search in Roe was “intimately

intertwined with law enforcement,” we concluded that the special needs doctrine

could not apply. Roe, 299 F.3d at 407.

The Tenth Circuit has also held that the special needs doctrine will not

permit a social worker to enter a home to remove a child absent a warrant or

exigent circumstances. Roska, 328 F.3d at 1242. The Second Circuit, however,

has refrained from setting forth a categorical rule that removal of a child from

a home can never be pursuant to a special need. Tenenbaum v. Williams, 193

F.3d 581, 604 (2d Cir. 1999) (noting that there may be circumstances in which

the law of warrant and probable cause would not work effectively in the child

removal or child examination context).

Applying the reasoning of Roe, there was no special need in this case. The

purpose of TDPRS’s entry into the Gateses’ home—the investigation of possible

child abuse—was closely tied with law enforcement for the same reasons

articulated in Roe. Indeed, law enforcement personnel accompanied the TDPRS

employees into the home and were called back when TDPRS needed assistance.

22

No. 06-20763

Therefore, because the need to enter the Gateses’ home was not divorced from

the state’s general interest in law enforcement, there was no special need that

justified the entry.

In a related argument, the individual defendants, specifically the Fort

Bend employees, contend that the Supreme Court in Wyman v. James, 400 U.S.

309 (1971), relaxed the requirement for entering homes when the welfare of

children is involved. At issue in Wyman was whether an AFDC beneficiary could

refuse a home visit by a caseworker without risking the termination of benefits.

Id. at 310. In part of its analysis, the Court stated that the public’s interest in

the welfare of children was one factor that indicated the visits were not

unreasonable. Id. at 318. However, the Court also noted that the visits

concerned welfare programs, not alleged criminal activity. Id. at 322-23. More

importantly, the portion of the Court’s opinion regarding the welfare of children

was dicta, as the Court first held that the visits did not implicate the Fourth

Amendment in the first place. Id. at 317-18; see also Roe, 299 F.3d at 405

(finding that portion of Wyman to be dicta). Therefore, Wyman does not support

lowering the Fourth Amendment standard for entering houses for the purpose

of interviewing children about possible abuse.

In conclusion, because the visit to the Gateses’ home to investigate possible

child abuse was not separate from general law enforcement, the special needs

doctrine cannot be used to justify the warrantless entry. Therefore, the typical

Fourth Amendment standards of a court order, consent, or exigent

circumstances apply and, as discussed above, the individual defendants are not

entitled to summary judgment with respect to any of those standards.

Therefore, taken in the light most favorable to them, the Gateses have alleged

a constitutional injury with respect to the individual defendants’ initial entry

into the Gateses’ home.

23

No. 06-20763

b. Whether the Constitutional Right Was Clearly

Established

Having concluded that the Gateses have alleged a constitutional violation

with respect to the initial entry into their home by the TDPRS employees and

Fort Bend deputies, we proceed to the next step in the qualified immunity

analysis—whether the Gateses’ constitutional rights were clearly established at

the time of the alleged violation. See Saucier, 533 U.S. at 201. Although the law

regarding consent and exigent circumstances has been clearly established for

some time, we conclude that the law regarding the special needs exception, as

arguably applied to the facts of this case, was not clearly established.

We first consider whether it was reasonable for the individual defendants

to believe that the state’s interest in investigating child abuse allegations

presented a special need that would relax the Fourth Amendment warrant

requirement. See Anderson, 483 U.S. at 640 (holding that a “clearly established”

right depends on what a reasonable official would understand the law to be).

Special needs that have been recognized by the Supreme Court include the need

of teachers and administrators to maintain order in the schools, the need to

adequately supervise individuals on probation, and the need to deter drug use

among students. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 661 (1995)

(permitting drug testing of certain students); Griffin v. Wisconsin, 483 U.S. 868,

875 (1987) (permitting search of probationer’s home); New Jersey v. T.L.O., 469

U.S. 325, 341 (1985) (permitting search of student’s purse). In each of those

circumstances, the Court explained that the doctrine allowed some invasions of

privacy when there was a special need “beyond the normal need” for law

enforcement that made the warrant and probable cause requirement

“impracticable.” See, e.g., Vernonia Sch. Dist., 515 U.S. at 653.

Turning to the need to investigate allegations of child abuse, we note that

this court has recognized that the state has an interest in protecting the health,

24

No. 06-20763

safety, and welfare of children. Wooley, 211 F.3d at 924; see also Wyman, 400

U.S. at 318 (referring to a dependent child’s needs with respect to AFDC benefits

as “paramount” and stating that “[t]here is no more worthy object of the public’s

concern”). Considering the state’s interest in the welfare of children, it was not

unreasonable for the individual defendants to conclude that the need to protect

children from abuse went “beyond” a general interest in law enforcement.

Further, it was not until after the February 2000 events in this case that the

Supreme Court began to state that the special need must be “divorced” from the

state’s general interest in law enforcement. See Ferguson, 532 U.S. at 79.

Although it is not clear that the Supreme Court intended a change in the special

needs standard by using the “divorced” language, it is more reasonable to

conclude that the state’s interest in preventing child abuse goes “beyond” the

need for law enforcement, as opposed to being “divorced” from it, thereby

bringing it within the realm of the special needs doctrine. See Roe, 299 F.3d at

409 (referring to the Supreme Court’s pre-Ferguson special needs test as

“vague”).

Additionally, this court in Roe noted that we had not yet “fleshed out the

relevant Fourth Amendment standards” with respect to entering a house in

order to investigate allegations of child abuse, as previous cases had not required

us to choose between traditional Fourth Amendment standards and the special

needs doctrine. Id. at 401. We further stated that “[s]electing the applicable test

for a social worker’s investigative home visit would be a question of first

impression in this circuit—an issue over which other courts of appeals have

divided.” Id. (citing Wildauer v. Frederick County, 993 F.2d 369, 372 (4th Cir.

1993) (applying a standard that was lower than the traditional Fourth

Amendment standard), Good, 891 F.2d at 1094-95 (applying the traditional

Fourth Amendment standard), and Calabretta v. Floyd, 189 F.3d 808, 813 (9th

Cir. 1999) (applying the traditional Fourth Amendment standard)). Ultimately,

25

No. 06-20763

though, we did not reach the issue of whether the special needs test applied to

a social worker’s entry into a house for investigative purposes because we

concluded that the homeowner had given her consent to the entry. Id. We did

conclude, however, that the application of the special needs doctrine to a social

worker’s visual search of a child’s body cavities was not clearly established in

1999, in light of the lack of precedent concerning that area of law. Id. at 409-11.

Given the statements in Roe that the court had not yet established the

constitutional standard for entering a home for purposes of investigating child

abuse, it is clear that the law in this area was not clearly established in

February 2000. See id. at 409-10 (“It is difficult to argue that a matter of law is

clearly established for state actors in this circuit where this court has not opined

on the issue in question and the other circuits are in disagreement as to whether

the challenged acts constitute a constitutional violation.”). Further, although we

have held that the special needs doctrine was inapplicable in this situation, it

was not unreasonable for the individual defendants to believe in February 2000

that their need to enter the Gateses’ home in order to investigate allegations of

child abuse went beyond the normal need for law enforcement in light of the

state’s avowed interest in the health and safety of children. Consequently,

because the constitutional standard for entry into the Gateses’ house was not

clearly established in February 2000 and it was reasonable for the individual

defendants to believe that the special needs doctrine applied, the individual

defendants are entitled to summary judgment on the basis of qualified

immunity.

2. Remaining in the Home

The next issue before us is whether the individual defendants violated the

Fourth Amendment after Gary returned home and ordered the defendants out

26

No. 06-20763

of his house.15 We again consider the doctrines of consent, exigent

circumstances, and special needs in determining the constitutionality of the

defendants’ actions.

The district court held that once consent is given to enter a house, it

cannot be revoked. If that was the basis for the district court’s holding, it erred,

as it is clearly established that “[a] consent which waives Fourth Amendment

rights may be limited, qualified, or withdrawn.” United States v. Ho, 94 F.3d

932, 936 n.5 (5th Cir. 1996); see also Mason v. Pulliam, 557 F.2d 426, 428-29 (5th

Cir. 1977). It makes no difference in our analysis that it was Gary who was

revoking Menjivar’s alleged consent. The Supreme Court recently held that

when a physically present co-occupant of a home objects to a warrantless search,

the search may not take place, even if another occupant has given consent.

Georgia v. Randolph, 547 U.S. 103, 106 (2006). It is only a small step to

conclude that a physically present co-occupant may revoke or withdraw the

consent given by another occupant. Therefore, if the individual defendants’

entry was based on Menjivar’s consent and Gary revoked that consent upon his

return home, the defendants violated the Gateses’ Fourth Amendment rights by

remaining in the house, absent a court order or exigent circumstances.

As for exigent circumstances, the exigency remained the same as when the

defendants first entered the house, with the exception of Gary’s return. There

is no evidence that the TDPRS employees learned new damaging information

from the children in the few minutes that they had been present. Further, there

is no evidence that Gary displayed any anger towards his children or gave any

indication that he might abuse them in the immediate future. As noted by the

Second Circuit in a due process context, “[e]mergency circumstances mean

15

The individual defendants involved here are Odin, Haywood, Ramirez, and Matthews,

who were TDPRS employees, and Carrillo, Schaefer, and Chapman, who were Fort Bend

deputies.

27

No. 06-20763

circumstances in which the child is immediately threatened with harm. . . .[T]he

mere possibility of danger is not enough.” Tenenbaum, 193 F.3d at 594 (internal

citation and quotation marks omitted). Here, there was no immediate threat

that required the individual defendants to remain and continue the interviews

in the absence of a court order. Therefore, the individual defendants cannot rely

on exigent circumstances to justify their decision to remain in the home.

Finally, for the reasons noted above, the special needs doctrine will not

support the decision to remain in the home in the absence of a court order,

consent, or exigent circumstances. Therefore, the Gateses have alleged that the

individual defendants violated the Fourth Amendment when the defendants did

not leave the Gateses’ house upon the request of Gary.

Moving to the second step in the qualified immunity analysis, however, we

note that the law in this area, particularly with respect to the special needs

doctrine, was not clearly established in 2000, as described in the previous

section. If the law was not clearly established at the time of the alleged

constitutional violation, the individual defendants are entitled to qualified

immunity. See Aucoin, 306 F.3d at 272. Thus, although the Gateses’ rights may

have been violated, summary judgment on this issue was appropriate.

C. Seizing the Children from the Home

Next, the Gates children claim that their Fourth Amendment rights were

violated when the TDPRS employees and Fort Bend deputies seized them by

removing them from their home without a court order on February 11, 2000.

The individual defendants contend that the seizure was justified pursuant to

exigent circumstances, namely the threat of abuse and the inability to obtain a

court order that evening, and that they are entitled to qualified immunity. The

Fort Bend deputies further argue that they were entitled to rely on the decision

made by TDPRS to remove the children. The Gateses counter that there was no

evidence of an immediate danger to the children, that the defendants had all day

28

No. 06-20763

to obtain a court order but failed to do so, and that the Fort Bend deputies may

not blindly rely on TDPRS’s decision to remove the children. We will analyze

each group of defendants separately.

1. TDPRS Employees

We begin with the TDPRS employees, as they were the individuals

responsible for interviewing the Gates children and making the decision to seize

them from the Gateses’ house. As with the entry into the Gateses’ house, we

must first define the Fourth Amendment standards that apply in this situation.

This court has previously held that the Fourth Amendment, which protects

against unreasonable seizures, applies to the seizure of children from their

homes. Wooley, 211 F.3d at 925. To determine the reasonableness of a seizure

under the Fourth Amendment, we balance “‘the nature and quality of the

intrusion on the individual’s Fourth Amendment interests against the

importance of the governmental interests alleged to justify the intrusion.’” Id.

(quoting United States v. Place, 462 U.S. 696, 703 (1983)).

We begin by noting that seizing a child who may be the victim of abuse

presents a different Fourth Amendment dynamic than seizing an individual

suspected of criminal wrongdoing. In the latter case, the government seizes the

individual in order to keep that individual from harming others, while in the

former case, the child is seized to keep others from harming him. Thus, while

a Fourth Amendment seizure has taken place when the government seizes the

alleged victim of child abuse, the government’s interest is primarily in protecting

the child, not in restricting the child’s freedoms. Therefore, when courts are

called upon to balance the child’s Fourth Amendment rights with the

government’s interests, it is important to recognize that the child’s interests may

align with the government’s interests if, indeed, the child is at risk of abuse.

In Roe, we noted in dicta that social workers may seize a child when

exigent circumstances exist, specifically if they have reason to believe that life

29

No. 06-20763

or limb is in immediate jeopardy. 299 F.3d at 407. However, we have never

described in more detail the circumstances that will permit the warrantless

seizure of such a child. Other circuits, however, have considered this question

in depth and have reached differing conclusions.

The Ninth and Tenth Circuits have adopted the strictest standards for

removal of a child, requiring an immediate danger to the child’s life or health

and the inability to obtain a warrant before the abuse might occur. The Ninth

Circuit recently held that there must be “reasonable cause to believe that the

child is likely to experience serious bodily harm in the time that would be

required to obtain a warrant.” Rogers v. County of San Joaquin, 487 F.3d 1288,

1294 (9th Cir. 2007) (noting that, in the due process context, social workers must

have “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” (internal quotation marks omitted)). The Tenth Circuit

similarly requires reasonable grounds to believe that there is an immediate need

to protect the life of the child. Roska, 328 F.3d at 1242 (“Simply put, unless the

child is in imminent danger, there is no reason that it is impracticable to obtain

a warrant before social workers remove a child from the home.”).

The Second Circuit permits the removal of a child pursuant to exigent

circumstances when “information possessed by a state officer would warrant a

person of reasonable caution in the belief that a child is subject to the danger of

abuse if not removed from [home] before court authorization can reasonably be

obtained . . . .” Tenenbaum, 193 F.3d at 605. However, the court refrained from

creating a categorical rule that a lesser standard would never be appropriate.

Id. at 604 (“There may be circumstances in which the law of warrant and

probable cause established in the criminal setting does not work effectively in

the child removal or child examination context.”).

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No. 06-20763

The First and Eleventh Circuits have considered the removal of a child in

the context of a due process analysis. The First Circuit opted for a rule that

would permit social workers to take temporary custody of a child without a court

order when the social worker “has a reasonable suspicion that child abuse has

occurred (or, alternatively, that a threat of abuse is imminent).” Hatch v. Dep’t

for Children, Youth & Their Families, 274 F.3d 12, 22 (1st Cir. 2001). There, the

court specifically rejected a proposed rule that would have required the social

worker to have “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.” Id. at 21 (internal quotation marks

omitted). The Eleventh Circuit simply attempted to balance all of the interests

involved. Doe v. Kearney, 329 F.3d 1286, 1295 (11th Cir. 2003). Notably, though,

the Eleventh Circuit declined to make the inability of a social worker to timely

obtain a court order dispositive of the exigent circumstances analysis, instead

choosing to consider it as part of an overall balancing. Id. at 1297-98 (rejecting

the Second Circuit’s statement in Tenenbaum that there can be no emergency

removal unless there is insufficient time to obtain a court order).

In the instant case, the Gateses contend that the defendants are

attempting to create a “child abuse” exception to the Fourth Amendment.

Regardless of the defendants’ intentions, we agree with the Gateses that any

sort of categorical rule that applies only in child abuse cases is not appropriate

in the Fourth Amendment analysis. “The Fourth Amendment caselaw has been

developed in a myriad of situations involving very serious threats to individuals

and society, and we find no suggestion there that the governing principles should

vary depending on the court’s assessment of the gravity of the societal risk

involved.” Good, 891 F.2d at 1094.

That being said, there is no doubt that child abuse is a heinous crime, and

the government’s interest in stopping abuse and removing children from abusive

31

No. 06-20763

situations is paramount. As noted earlier, seizures due to allegations of child

abuse present a unique dynamic in Fourth Amendment jurisprudence which

cannot be ignored. Deciding what is reasonable under the Fourth Amendment

will require an assessment of the fact that the courts are dealing with a child

who likely resides in the same house as, and is under the control of, the alleged

abuser. The analysis cannot be divorced from that fact, but that fact does not

override all other Fourth Amendment considerations.

Therefore, we hold that the government may not seize a child from his or

her parents absent a court order,16 parental consent, or exigent circumstances.

Exigent circumstances in this context means that, based on the totality of the

circumstances, there is reasonable cause to believe that the child is in imminent

danger of physical or sexual abuse if he remains in his home. This is a flexible

inquiry that considers all of the facts and circumstances with no one factor being

dispositive. Thus, for example, we agree with the Eleventh Circuit in Doe that

the question of whether there was time to obtain a court order is only one factor

that informs the reasonableness analysis; it is not a dispositive issue. Other

non-exclusive factors the court might consider are the nature of the abuse (its

severity, duration, and frequency), the strength of the evidence supporting the

allegations of abuse, the risk that the parent will flee with the child, the

possibility of less extreme solutions to the problem, and any harm to the child

that might result from the removal.

Using that standard, we consider the facts of the instant case, paying

careful attention to what information was known by the TDPRS employees

making the decision to remove the Gates children. As noted earlier, Travis

displayed two small wounds that had allegedly been inflicted by Gary. Several

16

An order properly issued by a court pursuant to Texas Family Code § 262.102, which

authorizes state courts to issue emergency orders to take possession of a child, would have

sufficed to meet the “warrant” requirement in this instance.

32

No. 06-20763

children corroborated the story that Gary had punched or kicked Travis that

morning. The children also spoke of Gary’s unusual discipline methods, which

could be abusive if carried to an extreme. Gary had forced at least two of his

children (Travis and Alexis) to throw up food they had eaten and had allegedly

handcuffed Travis to a bed. Timothy expressed fear of his father because Gary

“hurt[] Travis and the big kids.” Cynthia stated that Gary had hit Cassandra

and Andrew the previous day and that she was scared to live at home because

of Gary’s anger.17

Based on this information, we do not believe that it was unreasonable for

the TDPRS employees to conclude that the children needed to be removed from

their home that day. There were allegations of recent physical abuse of multiple

children—Travis, “the big kids,” Cassandra, and Andrew. Further, some of the

allegations had been corroborated by several children, giving the claims more

credence. There is no evidence that TDPRS was able to gather all of this

information before the state courts closed that day, so obtaining a court order in

a timely fashion was likely not possible. Further, TDPRS considered and ruled

out the less drastic options of having Gary vacate the house or placing the

children with a family friend, concluding that Melissa or the family friend might

not keep Gary away. Although it is a close call, we conclude that the TDPRS

employees did not violate the Fourth Amendment rights of the Gates children

17

To be clear, we did not consider most of these facts in the exigent circumstances

analysis regarding the individual defendants’ entry into the Gateses’ house because there was

no evidence the individual defendants had learned this information at that time. Several of

these facts came to light only after the Gates children were interviewed in their home.

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by seizing them without a court order.18 Consequently, summary judgment was

appropriate on this issue.

Our conclusion that TDPRS’s seizure was reasonable under the exigent

circumstances standard also means that the seizure of Will from his high school

dance was reasonable. Once the TDPRS employees decided that all of the

children needed to be removed, they did not need to wait for Will to return home

and be exposed to the possibly dangerous circumstances before seizing him.

Judged under a standard of reasonableness, the seizure of Will was not

unconstitutional, and summary judgment was proper on that claim as well.

2. Fort Bend Employees

The Gates children also fault the Fort Bend deputies for their roles in the

seizure that evening and argue that the deputies may not blindly rely on

TDPRS’s conclusions to justify their actions. Because we have determined that

TDPRS did not violate the Fourth Amendment by seizing the Gates children, we

also conclude that the Fort Bend deputies acted constitutionally.

We note that the Supreme Court has held that police officers may act on

the basis of information known by their colleagues in conducting searches and

seizures. See United States v. Hensley, 469 U.S. 221, 230-231 (1985); see also

Whiteley v. Warden, 401 U.S. 560, 568 (1971) (“Certainly police officers called

upon to aid other officers in executing arrest warrants are entitled to assume

that the officers requesting aid offered the magistrate the information requisite

to support an independent judicial assessment of probable cause.”). As stated

by the Ninth Circuit, “[E]ffective law enforcement cannot be conducted unless

18

There is no conflict between this decision and the state court’s decision on February

14, 2000, that there was not sufficient danger to the children to justify keeping them from their

parents. The state court was applying the standard from Texas Family Code § 262.107 rather

than the Fourth Amendment. Further, the state court never held that the initial seizure was

unjustified under Texas law. See TEX. FAM. CODE ANN. § 262.104(a) (authorizing the seizure

of children without a court order if a person of ordinary prudence and caution would believe

there is an immediate danger to the physical health or safety of the children).

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police officers can act on directions and information transmitted by one officer

to another and that officers, who must often act swiftly, cannot be expected to

cross-examine their fellow officers about the foundation for the transmitted

information.” United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976).

Because TDPRS concluded that it was necessary to remove the Gates

children, the Fort Bend deputies were entitled to reasonably rely on TDPRS’s

assessment of the situation. The Fort Bend deputies’ reliance was reasonable

in this case because the deputies were aware that the TDPRS employees had

questioned the children for several hours, which would indicate that TDPRS was

making an informed decision. Further, the Gateses did not present any evidence

that TDPRS had routinely made unconstitutional decisions to remove children

in the past, which might have given the Fort Bend deputies pause before

agreeing to assist the TDPRS employees. Consequently, the Fort Bend deputies

did not violate the Gates children’s Fourth Amendment rights in assisting

TDPRS in removing the children from their home.19

D. Seizing the Children from School and at the YMCA

Next, Travis, Alexis, and Marcus contend on appeal that the district court

failed to address their arguments that various defendants violated the Fourth

Amendment when those defendants seized them from their schools and the

YMCA without a court order. While the district court ruled that the YMCA

seizure was reasonable, it does not appear that the district court specifically

considered the seizures from the schools. We will first analyze the claims

regarding taking the children from school and then the claim regarding speaking

to the children at the YMCA.

19

In the interest of thoroughness, we note that any claims of unlawful entry into the

Gateses’ house by Millsap, Wright, and Lee for the purpose of assisting in the removal of the

children must also be dismissed for this reason.

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1. Seizing Travis and Alexis from Their Schools

Travis and Alexis claim that their Fourth Amendment rights were violated

when (1) Davis removed Travis from his school on February 11, 2000, and took

him to the CAC for an interview and (2) Sterns removed Alexis from her school

on January 25, 2001, and took her to the CAC for an interview.20 As with the

claim based on the seizure of the children from their home, the Fourth

Amendment governs our analysis of this claim.

A person is “seized” under the Fourth Amendment “only if, in view of all

of the circumstances surrounding the incident, a reasonable person would have

believed that he was not free to leave.” Michigan v. Chesternut, 486 U.S. 567,

573 (1988) (internal quotation marks omitted). Under this standard, we have

little trouble concluding that Travis and Alexis were “seized” when they were

removed from their school by TDPRS employees. Thus, the next question is

whether the seizures were unreasonable.

In assessing the reasonableness of a seizure, we are to balance the nature

and quality of the intrusion on the individual’s Fourth Amendment interests

against the importance of the governmental interests that justify the intrusion.

Place, 462 U.S. at 703. The Gateses would have us adopt an exigent

circumstances standard similar to the one employed when children are seized

from their homes for the purposes of taking them into state custody. Such a

blanket rule, however, fails to account for the differences in the nature and

quality of the intrusion. Temporarily seizing a child from a public school in

order to interview him in a safe place is decidedly different than seizing a child

from his home for the purpose of removing him from allegedly abusive parents.

To begin with, the rights of children to freely move about, especially within

a public school, are not as extensive as adults’ rights. The Supreme Court has

20

Although Sterns is not a party to this appeal, Alexis’s claim encompasses conduct by

Polasek (who ordered the seizure) and TDPRS.

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No. 06-20763

recognized that Fourth Amendment rights of children “are different in public

schools than elsewhere; the ‘reasonableness’ inquiry cannot disregard the

schools’ custodial and tutelary responsibility for children.” Vernonia Sch. Dist.,

515 U.S. at 656. Thus, while the Fourth Amendment is not non-existent,

students have a lesser expectation of privacy. See id. at 656-57. Further,

unemancipated minors lack the right to come and go at will, remaining subject

to the control of their guardians or parents. Id. at 654. Consequently, seizing

a child from a public school is a lesser intrusion into the freedoms the child

would otherwise enjoy, as those freedoms have already been limited.

Next, the nature and scope of the intrusion into the child’s rights is

relatively small. The seizures in this case were for the purpose of interviewing

the children for their own protection. As described above, the CAC was created

with the purpose of reducing trauma to the possible victims of child abuse by

coordinating child abuse investigations among the various branches of

government. See TEX. FAM. CODE ANN. §§ 264.403, 264.405. Although claiming

that the seizure of a child is for his benefit will not automatically justify a

seizure, it is a factor that should be taken into account.

Cases from other circuits do not provide a clear rule as to what

constitutional standard should be used, but they do indicate that the test should

be flexible enough to account for the unique interests involved in child abuse

investigations. The Second Circuit has employed an exigent circumstances

analysis to determine whether removing a child from school in order to undergo

a physical exam for evidence of sexual abuse is constitutional. Tenenbaum, 193

F.3d at 605. The court indicated, though, that an exigent circumstances analysis

might not always be appropriate in the child examination context; however, the

court did not elaborate as to what situations might call for a lower standard. Id.

at 604. The Seventh Circuit, in a public school setting, has held that searches

of children’s bodies for evidence of physical abuse need only meet a

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No. 06-20763

reasonableness standard. Darryl H. v. Coler, 801 F.2d 893, 902-03 (7th Cir.

1986) (noting the state’s “very special responsibility” to the children of the

community).21

Given the differences in the freedoms enjoyed by children inside a public

school, the nature and scope of the seizures at issue, and the need to promptly

investigate and act upon allegations of child abuse, we believe an exigent

circumstances analysis sets too high a threshold for the state to overcome when

investigating allegations of child abuse. However, removing a child from a

public school solely on the basis of an anonymous report is not a constitutional

solution either. The answer lies somewhere in between.

We return to traditional Fourth Amendment law. Here, the TDPRS

employees were brought to the schools on the basis of anonymous tips made to

a child abuse hotline. Just as “an anonymous tip, standing alone, is rarely

sufficient to provide probable cause for a warrant,” Kohler v. Englade, 470 F.3d

1104, 1110 (5th Cir. 2006), an anonymous tip regarding child abuse will rarely

be sufficient to justify the seizure of a child. However, anonymous tips that have

been independently corroborated by government officials may provide sufficient

grounds to seize a child. See United States v. Martinez, 486 F.3d 855, 863 (5th

Cir. 2007) (noting that anonymous tips that have been corroborated may provide

reasonable suspicion for an investigatory stop). Thus, before seizing a child on

the basis of an anonymous tip, TDPRS must sufficiently corroborate the tip by

initiating its own investigation. This might involve a preliminary interview of

the child, his teachers, or peers, or perhaps a visual inspection of any injuries

that can be seen without the removal of the child’s clothing.

21

The Seventh Circuit uses an exigent circumstances analysis when the child is in

private, as opposed to public, school. Doe v. Heck, 327 F.3d 492, 517 (7th Cir. 2003). Here, we

are concerned only with removal of a child from public school.

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No. 06-20763

Taking all of the above precedent into account, we hold that before a social

worker can remove a child from a public school for the purpose of interviewing

him in a central location without a court order, the social worker must have a

reasonable belief that the child has been abused and probably will suffer further

abuse upon his return home at the end of the school day.22 This reasonable belief

must be based on first-hand observations of TDPRS employees,23 unless the

anonymous report shows significant indicia of reliability. As with removing a

child from the home, this is a totality of the circumstances analysis that should

consider all of the facts of which the social worker is aware. It may be, too, that

the child is more comfortable being interviewed at his school than at a strange

location, so a social worker should take into account any of the child’s express

desires.

Applying that standard here, both seizures violated the Fourth

Amendment. Beginning with Travis, at the time Davis seized Travis from the

school, the only information that she had corroborated was the existence of the

baggie full of wrappers. She also observed two small marks on Travis’s hand

and face, but there is no indication that she asked Travis how he had received

the marks. Although the anonymous reporter made allegations of emotional

abuse, the allegations are void of information that would indicate a likelihood of

physical abuse were Travis to return home, and Davis did not uncover any such

evidence before seizing Travis. Therefore, Davis could not have had a reasonable

belief that Travis had been or likely would be abused at his home.

Similarly, the anonymous report regarding Alexis indicated that she had

a bruise and had, at one point, stated that her father had given it to her.

22

This is a lower standard than exigent circumstances in that it does not require that

the child be in “imminent danger” of abuse.

23

TDPRS employees may rely on the investigations of other TDPRS employees in

making the decision to remove a child from school.

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No. 06-20763

Polasek ordered Sterns to pick up Alexis from her school on the basis of the

anonymous report alone. Prior to removing Alexis, Sterns confirmed the

existence of the bruise, but made no attempt to discover its origin before

removing Alexis from school. Thus, again, the TDPRS employees did not have

sufficient evidence to warrant seizing Alexis from school without a court order.

Because Travis and Alexis have stated a claim for the violation of their

Fourth Amendment rights, we must now consider whether those rights were

clearly established at the time the violations occurred. See Saucier, 533 U.S. at

201. As with some of the other claims in this case, the law in this area was

simply not clearly established at the time of the incidents at issue. This court

has never before set out a Fourth Amendment standard for this type of seizure,

and the other circuit courts have either been silent or reached ambiguous

conclusions on this issue. It would not be reasonable to expect the TDPRS

employees in this case to comply with a constitutional standard that we have not

articulated until today. Consequently, because the law regarding seizing

children from school for the purpose of interviewing them without a court order

was not clearly established at the time Travis and Alexis were seized, the

TDPRS individuals involved are entitled to qualified immunity.

2. The YMCA Incident

Alexis and Marcus also argue that several Fort Bend deputies violated

their Fourth Amendment rights when they moved Alexis and Marcus into a

separate room at the YMCA in order to interview them about allegations of

abuse. We agree with the district court that this seizure was reasonable. The

intrusion was minor (simply being moved to a separate room) and of short

duration. The children were questioned about the allegations and released.

This was very similar to an investigatory detention, as approved in Terry v.

Ohio, 392 U.S. 1, 21-22 (1968), in that it was supported by reasonable suspicion

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and was no more intrusive than necessary. There is nothing to suggest that the

Fort Bend deputies stepped outside their constitutional bounds.

E. Due Process Claims

Gary and Melissa next contend that their due process rights under the

Fourteenth Amendment were violated by the seizures of their children without

a court order or exigent circumstances. The Supreme Court has held that

parents have a “fundamental liberty interest . . . in the care, custody, and

management of their child . . . .” Santosky v. Kramer, 455 U.S. 745, 753 (1982).

Consequently, before parents may be deprived of that interest, some sort of

procedural due process is necessary. See id. at 753-54. When deciding what

process is due, a court must consider “the private interests affected by the

proceeding; the risk of error created by the State’s chosen procedure; and the

countervailing governmental interest supporting use of the challenged

procedure.” Id. at 754; Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

In this case, Gary and Melissa’s Fourteenth Amendment allegations

mirror their Fourth Amendment allegations—their children were seized without

a court order or exigent circumstances. The Second, Ninth, and Eleventh

Circuits have equated the procedures required under the Fourteenth

Amendment with those required under the Fourth Amendment for searches and

seizures related to child abuse investigations. Doe, 329 F.3d at 1299 (denying

Fourth Amendment claim “[f]or the same reason[]” it denied a due process

claim); Wallis v. Spencer, 202 F.3d 1126, 1137 n.8 (9th Cir. 2000) (noting that

“the same legal standard applies in evaluating Fourth and Fourteenth

Amendment claims for the removal of children”); Tenenbaum, 193 F.3d at 605

(“Whatever Fourth Amendment analysis is employed, then, it results in a test

for present purposes similar to the procedural due-process standard.”).

We see no reason to deviate from what these circuits have done. The

procedures required for a constitutional search and seizure under the Fourth

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No. 06-20763

Amendment are adequate to protect Gary and Melissa’s procedural due process

rights and liberty interest in directing the upbringing of their children. Texas

law calls for a hearing as soon as possible after children are removed without a

court order, TEX. FAM. CODE ANN. § 262.105, and that is what the defendants did

in this case. Therefore, adequate procedural due process was given.

Consequently, because summary judgment is appropriate for Gary and Melissa’s

Fourth Amendment claims, it is also appropriate for their Fourteenth

Amendment claims.

F. Supervisory Liability

The Gateses next claim that Defendant-Appellee Thomas Chapmond

(“Chapmond”) and Defendant-Appellee Sheriff Milton Wright (“Wright”) are

liable as the heads of TDPRS and the Fort Bend Sheriff’s Department,

respectively, for constitutional violations. A supervisory official may be held

liable under § 1983 only if (1) he affirmatively participates in the acts that cause

the constitutional deprivation, or (2) he implements unconstitutional policies

that causally result in the constitutional injury. Baker v. Putnal, 75 F.3d 190,

199 (5th Cir. 1996). Here, the Gateses do not contend that Chapmond or Wright

had any personal involvement with the events at issue. Instead, the Gateses

argue that Chapmond and Wright unconstitutionally failed to train their

employees.

To succeed on a failure to train claim, a plaintiff must show that “(1) the

supervisor either failed to supervise or train the subordinate official; (2) a causal

link exists between the failure to train or supervise and the violation of the

plaintiff’s rights; and (3) the failure to train or supervise amounts to deliberate

indifference.” Estate of Davis ex rel. McCully v. City of North Richland Hills, 406

F.3d 375, 381 (5th Cir. 2005). In this instance, the evidence in this case suggests

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two possible constitutional violations—the warrantless entry into the Gateses’

house and the removal of Travis and Alexis from their schools.24

Turning first to Chapmond, the Gateses do not make mention of him in

their briefing. Thus, we consider their claim against him waived. See Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Even if not waived, the Gateses

have not set forth evidence that the TDPRS employees were improperly or

inadequately trained or that Chapmond was personally responsible for any such

inadequacies.

With respect to Wright, the Gateses contend that they were prevented

from obtaining discovery about Wright and any training procedures by an order

of the district court.25 Regardless, summary judgment for Wright was

appropriate for at least three reasons. First, there is no evidence of a causal

connection between any training and the Fort Bend deputies’ entry into the

Gateses home. The Gateses were able to depose Carrillo, and he testified that

he was trained not to enter a home if the occupant refused to grant consent and

there was no warrant or exigency. Second, because the standard for entering a

home for purposes of a child abuse investigation was not clearly established in

February 2000, see Section IV.B. supra, Wright is entitled to qualified immunity

for any alleged training deficiencies. Third, the removal of Travis and Alexis

from their schools did not involve any Fort Bend deputies, so there is no possible

liability on those claims. Therefore, despite any lack of discovery as to Wright,

the facts demonstrate that he is entitled to summary judgment.

24

Because the TDPRS employees and Fort Bend deputies did not violate the

Constitution when seizing the Gates children in February 2000, there can be no liability for

any alleged failure to train on proper seizure procedures.

25

Although the Gateses do not identify which order of the court they are referring to,

the district court did stay the case as to all Fort Bend defendants in September 2004.

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G. Governmental Liability

The Gateses have also sued TDPRS and Fort Bend as governmental

entities that were allegedly responsible for the violation of the Gateses’ rights.

Although the individual defendants have been dismissed on the basis of qualified

immunity, governmental entities are not entitled to qualified immunity. See

Owen v. City of Independence, 445 U.S. 622, 657 (1980). Therefore, we must

determine whether TDPRS and Fort Bend violated the Gateses’ constitutional

rights. Because there was no constitutional violation in seizing the Gates

children from their home, the only violations at issue are the entry into the

Gateses’ house and the seizure of Travis and Alexis from their schools.

It is well established that governmental liability under § 1983 must be

premised on a government policy or custom that causes the alleged

constitutional deprivation. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694

(1978). A policy may be a policy statement, ordinance, regulation, or decision

that is officially adopted and promulgated by the government’s lawmaking

officers or by an official to whom the lawmakers have delegated policy-making

authority. Burge v. St. Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003). A

custom is shown by evidence of a persistent, widespread practice of government

officials or employees, which, although not authorized by officially adopted and

promulgated policy, is so common and well settled as to constitute a custom that

fairly represents government policy. Id. The Gateses have not identified any

officially adopted policy that they claim is unconstitutional; therefore, we look

for a custom that is unconstitutional.

The Gateses claim that TDPRS has an unconstitutional practice of calling

Fort Bend deputies in order to force their way in to the homes of those they are

investigating and that Fort Bend is a willing participant in these constitutional

violations. As evidence, the Gateses point to the testimony of several TDPRS

employees that it is a common practice to call the police to assist them in

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entering a house for purposes of investigating claims of child abuse. What is

lacking, however, is any evidence that the Fort Bend deputies use

unconstitutional methods to gain entry into the homes. While the presence of

a police officer might encourage a parent to consent to entry, the presence of a

police officer alone is not sufficient to invalidate any otherwise voluntary

consent.

Also, the failure to obtain a court order prior to entering the home is not

actionable. Although there was testimony from several TDPRS employees that

they never obtain court orders before removing children from their homes, there

was a lack of corresponding evidence that those prior entries and removals were

not made on the basis of parental consent or exigent circumstances. Therefore,

the only case in which we can say with certainty that a constitutional violation

may have occurred is the present one—when the TDPRS employees and Fort

Bend deputies allegedly entered the Gateses’ home without consent. However,

“[i]solated violations are not the persistent, often repeated constant violations

that constitute custom and policy as required for municipal section 1983

liability.” Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995)

(internal quotation marks omitted). Because it is permissible in some

circumstances to remove a child from his home without a court order, the

Gateses needed to present evidence that the prior removals were not based on

consent or exigency before an unconstitutional custom can be shown. Therefore,

the Gateses have failed to present evidence of a policy or custom that caused

their alleged constitutional deprivation with respect to the entry into their home.

The analysis regarding the seizure of Travis and Alexis from their schools

is similar. The Gateses present no evidence that children were routinely or

customarily removed from school in the absence of a court order or a reasonable

belief of abuse. Thus, we are left with two instances of unconstitutional conduct.

We conclude that this is not sufficient to support a finding that TDPRS

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customarily and unconstitutionally seized children from their schools in order

to interview them at a central location. Therefore, the Gateses’ claim fails on

this count as well.

H. Remaining Claims

The Gateses’ briefing on appeal also addresses a few of their other causes

of action. First, the Gateses make claims under the Texas Constitution,

specifically Article I, Sections 9 and 19, which correspond to the Fourth and

Fourteenth Amendments of the United States Constitution, respectively. The

individual defendants contend that official immunity precludes any liability

under the Texas Constitution. Texas law provides that a governmental

employee is entitled to official immunity for “(1) the performance of discretionary

duties (2) that are within the scope of the employee’s authority, (3) provided that

the employee acts in good faith.” Telthorster v. Tennell, 92 S.W.3d 457, 461 (Tex.

2002). Official immunity is analogous but not identical to qualified immunity

under federal law. Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 427

n.3 (Tex. 2004).

Although recognizing that section 9 (search and seizure) and the Fourth

Amendment are the same in all material aspects, the Texas Court of Criminal

Appeals has held that Supreme Court decisions regarding the Fourth

Amendment are not necessarily binding on section 9. Heitman v. State, 815

S.W.2d 681, 682, 690 (Tex. Crim. App. 1991). But see Williams v. Kaufman

County, 352 F.3d 994, 1017 (5th Cir. 2003) (noting that Texas courts have

interpreted section 9 as being congruent with the Fourth Amendment).

Therefore, it is possible that section 9 provides more protection to Texas citizens

than the Fourth Amendment does. However, Texas courts have rejected claims

that the protections of the Texas Constitution exceed those of the Fourth

Amendment when no authority is argued or provided for such an interpretation.

See Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993). Here, the Gateses

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make no argument that the Texas Constitution should be given a more

expansive interpretation than the Fourth Amendment. Thus, we have no reason

to conclude that application of section 9 would lead to a different result in this

case.

Similarly, Texas courts have historically equated section 19 (due process)

with the Fourteenth Amendment, although declaring that they are not bound by

Supreme Court decisions if they believe Texas’s protections are broader. Wilson

v. State, 825 S.W.2d 155, 162 (Tex. App.—Dallas 1992, pet. ref’d). Again,

though, the Gateses have not argued that section 19 provides more protection

than the Fourteenth Amendment, and we see no obvious reason that it should

in this case. Therefore, given the nearly identical nature of the state and federal

law claims, as well as the doctrines of qualified and official immunity, we

conclude that summary judgment was appropriate on the Gateses’ state law

claims for the same reasons it was granted on the federal claims.

Next, the Gateses argue that the district court erred when it dismissed

their claims for declaratory relief. According to their first amended complaint,

the Gateses seek a declaration that “the policies, practices, and acts complained

of herein are illegal and unconstitutional.” The grant or denial of declaratory

relief is reviewed for an abuse of discretion. United Teacher Assocs. Ins. Co. v.

Union Labor Life Ins. Co., 414 F.3d 558, 569 (5th Cir. 2005). Because the

district court correctly granted summary judgment in this case, we find no abuse

of discretion in its decision to deny declaratory relief.

The Gateses also seek an injunction to prevent TDPRS, Fort Bend, and

their employees from entering the Gateses’ home and searching or seizing their

children without a court order, consent, or exigent circumstances. We review the

denial of a permanent injunction for an abuse of discretion and any conclusions

of law de novo. United States v. Sage Pharms., Inc., 210 F.3d 475, 477 (5th Cir.

2000). Again, because summary judgment was appropriate on the Gateses’

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substantive claims, we conclude that the district court did not abuse its

discretion in denying the Gateses’ request for injunctive relief.

The remainder of the claims brought by the Gateses were not briefed on

appeal, and thus have been waived. See Yohey, 985 F.2d at 224-25. This

includes claims of intentional infliction of emotional distress, excessive force,

assault and battery, privacy violations, and abuse of civil process. We, therefore,

affirm the district court’s grant of summary judgment on those claims.

V. CONCLUSION

Although we are affirming summary judgment against the Gateses, we are

not necessarily endorsing all of the practices of TDPRS and Fort Bend as carried

out in this case. Affirmance is required because the law in this area was not

clearly established, and the government’s interest in stopping child abuse, along

with the doctrine of qualified immunity, tips the balance in favor of TDPRS, Fort

Bend, and all of the individual defendants. However, now that we have clearly

established the law in this area, we expect that TDPRS, law enforcement

agencies, and their agents and employees will abide by these constitutional rules

and seek to involve the state courts, who act as neutral magistrates in these

complicated matters, as early in the process as is practicable. In that way, the

government may ensure that everyone’s interests are considered, and the least

amount of harm will come to the children the government seeks to protect, as

well as to their parents.

For the foregoing reasons, we AFFIRM the judgment of the district court.

AFFIRMED.

48