Amicus Curiae Brief — Camreta v. Greene

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DEC 17 2610 |

1] 9 | OE HICE OF PH CLL KE |

Nos. 09-1454 and 09-1478

In the Supreme Court of the United States

bon CAMEETA, PETITIONER

ss

AKAHOGRE ENE. PERSONALLY ANDAS NEXT ERIEND

bok S.4., A MINOR, AND K.G.. A MINOR

IAMES ALFORD, DEPUTY SHERIFF, DESCHUTES

CLOUNTY, OREGON, PETITIONER

f

SARAH GREENE, ET AS

ON WRITS OF CRERTIORAN]

LOTHE UNITED STATES COURT OF ALPIEAT

ROK THE NINTH CIRCUTT

BK FOR TIE UNTPED STATES

AS ASEICUS CURIAR SUPPORTING PETITIONEKS

NEAL KWEMAK KRATYAI

Act ng Nolte ifor CGreneral

C ain eclof itn ref

Painy Wii |

LANNY A back Cihlk

Assistant Attorine ys Greneral

LbONDKA K Kittick)

hoy W Mebrerse ttl

Acting Deputy Nolrector:

Croneral

boat. RRGEN

Assistant to the Solicitor

(st fit ral

PhomMaAS M. BRONDY

SUSHMA SONI

JOUN MO VELL irri nd

Aflorney

Department af Justice

Washington, 110) 20580-0001

SupremeCthriefs@iusdo) got

(202) SLG-2275

\e SY a

QUESTIONS PRESENTED

The court of appeals in this case held that petition-

ers’ interview of a suspected victim of parental abuse at

her school violated the Fourth Amendment. [t further

held that petitioners were entitled to qualified immunity

from damages in respondent’s suit under 42 U.S.C. 198%

because the law poverning such interviews was not

clea wy established. The questions presented are.

1 Whether judgment in) petitioners’ favor on

qualitted-tmmunity prounds precludes them from seek

inp review of the court of appeals’ constitutional ruling.

2 Whether the Fourth Amendment requires a war-

rant, a court order, parental consent, or exigent circu:

stances before officials may interview a suspected vietini

of parental abuse ata public school,

TABLE OF CONTENTS

Interest of the United States ...

Statement

aw @ @ 6.6.9 6° o 2 8°06 S078 © 8 6 6 2 @ © 8 6 Oo Ob 6 6 € 8 2. 2-0 6 A 6

Summary of argument

Arpument

1 ‘Phe court of appeals’ constatutronal ruling: is

reviewable notwithstanding its rulings that

petitioners are entitled to Qualified immunity

A

Il The

Constitutional determinations in qualitied

Homurity cases Impose prospective limita-

tions on the actions of government officials

This Court has jurisdiction to review

a constitutional determination that has

continuing adverse Consequences for a

yovernmment official who prevailed on

qualihed-innmunity grounds

Fourth Amendment permits reasonable

warrantless interviews at public schools of

suspected victims of parental abuse oo...

A

bb

Cloneluston

The law enforcement-related interview

ofa suspect Or witness does not presump

Ovely require either a warrant or probable

a suspected parental-abuse victim in

a public school is Consistent with the

bourth Amendment

(11)

1]

0)

A

—

raf

=!

44

lV

TABLE OF AUTITORERIES

(Cases: Pape

Arizonans for Official Rnglish v. Arizona,

Sy Bb as Me CRED 5 0 see ava ewese eves See lf

Bivens vo Sur Unknown Named Agents of Ped

Bureau of Narcotics, 408 US. 388 A9TID) 0.02... 2 a

Board of Bdue. of Indep. Seh. Dest No. Y2 vy. karts,

BE FE Ge ia oe oe ee ves adie dy nel eee

Brigham City v. Stuart, 547 US. 808 (2006) 2. vO

Brown vo Tewas, 448 US. AT OYTO) |. 22, 2h, 2d

Bunting Vv. Mellen, 5AL USS. L019

(2004) ..... Serre arate) eaten ia .. 12 FS, 2H, Pe, 1D, Ze

Calabretta vo Floyd, Wo 8d SOS (ith Cir, BI 7

Cutyof LA v. Lyons, 461 U.S. 95 C)83) ... iM

County of Sacramento v. Lewis, 823 US. 835

(1998)..... eee raves 12, a3

Deposit Guar Nat'l Bank vo Roper, Ado US. 326

(1ON0) rae bh WO ie

District of Colnmobra v. Lleller, L258 S. Cl 2785 (2008). 1s

Dunaway v. New York, 442 US. 200 CNT) . , 27

Electrical Fittings Corp vo Thomas & Betts Co,

eC) OC ERNE 668 seus cessasces . 1th

Fiornido vo Bostick, 5OL US. 420 (ESO)... ae Oe

Florida v. Rodriguez, WO ULS. 1 s4) : oe

Florida vy. Royer, AGO ULS. ADD CESS) ee. A |

Friends of the Karth, lune v. Laidlaw Enotl Servs

(FOO). Fue... KER VB. MT ee i eck cee sess 17

Globe Newspaper Co. vo Supercwor Oe, 457 US. St

(14S2) Te eeer ye

V

Cases Continued Pape

Griffin Vv. Wisconsin, A838 US. SGS CLUST) 0 7,2h

Grok v. Ramirez, AOL S. HHP (2004) 0. 2A

Horlow v, Fitzgerald, 457 U.S. 800 (A982) 2.

INS v. Delgado, 466 U.S. 210 (1984) 20 ee. ee, ol

Mlinows Vv. Lidster, S40 US. AVS (2009) 000. 23, 24, 6,27, US

Mlinoisv. McArthur, SV US. 326 2001) 000. 21, ee Pa

Marbrry vy. Madison, & US. OL Cranch) 137 (1803) Is

Michigan v. Fisher, WOS. Ct. 546 (2009) . . Pes |

Michigan vo Sinomers, 42 US. 642 (LOST) Zs, abcd

New Jersenw vy. U.1L.0., 49 US. 825 CLOS8h) 4,203

New York v. Ferber, AOS US. 747 (L082)... 2%

North Carolina v. Alford, WMOULLS 25978. 5

Pacetie Bell Tel. Coiv. LanklLine Commcus, luc

9 ts. Ct. 1108 (2008) «2... oe. 1S

Payton ve New York, 446 US. 575 (LOND) Zz

Pearsowv. Callahan, 1208S. Ct, SUS

ae wisest a's G3, 00, 12. 44. 74

Pennsylvania v. Mimins, 454 US. 106 (1977) at

Ponnsylrvaniay. Ritehee, ASO ULS BOCLOST) ooo. ; ow

Satsonw vy. California, AT US. S48 (2006) ty

Saucier. Walz, 5383 US. 4 (2001) |. 2

Steagald v. United States, a1 US. ZOA CLOSE)... ee

Terry v. Ohio, 302 U.S. 1 (E968) . . 2... =... . 6, 20, 238, 28. 338

United States v. Brigqnonte Ponce, 422 US. STS LNT) 20. 28

United States v. Drayton, 86 US. 194 (2002) 20. ZL ee be

U/nited States v. Hensley, ABO US. 221 OSD) |. Zt

United States v. Knights, 84 US. 112 (2001)

Vi

(laces, Continued: ape

United States v. Montoya de Hernandes, AT US. 551

Sah elec talc eek eee eee se ee Oe

U/ueted States v. Place, AGZ US. GIG (19K) ee 2:5, 20

Uweted States v. Sharpe, AW US. 675 98D) 2. Sd

Uwited States vo United States Dist Ct, 407 US. 297

[| Sea etre lee Aloe are ie Eee rere eee a eee ee 24

United States v. Watson, 423 US. 41 A976) 2... eee. 22

Vernonia Sch Dist 471d. Acton, 515 US. 646

A RA ee ee Res

Wilson v. Lacyne, 526 US. O08 (999) 2... eee 12, 13

Constitution, statute: and reyulations:

US. Const.:

Cte A ot re eet kee kedas tasakes 9, 15, 86, 17, 19

NEE; oS. sa) ote dae subibees Cake nue Os passim

Child Abuse Prevention and Preatraont Act,

ga ee Pe Berrerrr er eee ee eee ee 4

Child Abuse, Domestic Violence, Adoption and

Isnily Services Act of 1992, Pub. LL. No. 102 295,

eS a . re ica c ase wees er 2M

Det ste Ss ER Si aes S eat acea eae eens i rhawee ean en ne Oe

ey I es a wa bs cranecuniee sa tieis sae sane es ae

Se Ae SE as oss ke xo eines 03 oct Pea eae s eee cs 2

ES CER: ED os oda waretenacavceersahees 446049 2,14

Zed UF.25 sc) ED ee wees eee eC RA Zz

Se Cet s E356 2 kta vaccne ws +s ST eRe eT b

Be GP ASG. UN OD 6 ce eave keevecrenanssawceseen a

SE GF 250 BOE oon + o's 00's Tee eC EE ee 9, 15

Vil

Statute and reyvulations —Continued:

MEME MN aio 80s nar ak oes ceaicleices cee eno

Miscellaneous:

Sherry Bohannon etal, CAME Program,

Or. Dep't of Justice, Oregon Interviewing

Csuidelines (Ad ed. 2004), http://www.doj state.

orus/erimey/pdl/orinterviewinppuide pdf oo 0000.

Child Abuse and Neglect: Hearing Before the

Senate Select Comm. on ludian Affairs,

ith Cong., 2 Sees. (9968) ... 2... eee

Children’s Bureau, US. Dep't of Health and Human

Serys., Chald Maltreatment 2008, http://www.

ach hihs pov/proprams/cb/pabs/emO0s/em0s pdf...

Jill Goldman et al, Office on Child Abuse & Neylect,

US. Dep't of Health and Human Servs., A Coord:

vated Response to Child Abuse and Neglect: The

houndation for Practice, htup://www.-childwelfare.

yov/pubs/uscrmanuals/foundation/foundation pdf...

Harborview Ctr. for Sexual Assault and Traumatic

Stress & Wash. State Crim, Justice Training:

Comnvn, Child Interview Guide (2006), bttyp://

centerforchildweltare finhiustedu/kb/ rpi/

ChildA20TnterviewH20Guide pdf ooo 000... ey kt’

Mark Hardin, Legal Barriers in Child Abuse

Investigations: State Powers and ludeidual

Rights, G8 Wash. L. Rev. 519 (988) 220. ee.

» Wayne K. Lebave, Search and Serzure (4th ed.

CACY ab cha 6.b Ss ded wee ROR OY ORR 6 ho nas

i we A.

oe o OD ee

30

23

¢

“+s + hee

Vill

Miscellaneous Continued: Pape

National Ctr. for Prosecution of Child Abuse, Amer

can Prosecators Research list., /avestigation and

Proseention of Child Abuse Cad ed. 2004) 0000000. 2

S. Rep. No. 208, 1OIst Cong., Ist Sess. (1989) 2.2... ..... 14

Robert I. Stern et al, Supreme Court Practice

TS EE Se eS ee aie ae 1 8S Oo eee a ee Ih

rank bk. Vandervort, Videotaping Investigative

Interviews of Children im Cases of Child Sexual

Abuse. One Community’s Approach, 96 J. Cerin,

i. & Crpmanaiogy 0305 (GGG) i... ee eee caens 2y

Jun the Supreme Court of the Cliuited States

No. 09-1454

Bol CAMEBETA, PETITIONER

4)

SARAH GREENE, PERSONALLY AND AS NEXT FRIEND FOR

S.G., A MINOK, AND K.G., A MINOK

No. 09-1478

JAMES ALFORD, DEPUTY SHERKIEE, DESCHUTES

COUNTY, OREGON, PETITIONER

¢).

SARAH GREENE, ETAL.

ON WRITS OF CERTIORARI

TOTHE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIE POR THE UNPPEDSTATES

AS AMICUS CURTAR SUPPORTING PETETIONERS

oe

INTEREST OF THE UNTPED STATES

This case raises questions about the fourth Amend

ment standard applicable to an in-school interview of a

suspected victiin of parental sexual abuse, as well as the

reviewability of a court of appeals’ constitutional ruling

In-an action brought pursuant to 42 ULS.C. 1983 when

the court ultimately enters judgment in favor of the de-

(1)

fendants on the basis of qualified immunity. Phe United

States has a substantial interest in his Court’s resolu

tion of both questions. The United States investipates

and proseeutes crimes involving the abuse and exploita

tion of children, including: child-abuse crimes that occur

in the special maritime and territorial jurisdiction of the

United States, 18 ULS.C. 2241(¢), 2244, and in Indian

country, 18 ULS.C. 1158. Federal law expressly autho

rizes warrantless interviews of children on Indian land

without parental consent when there ts “reason to be-

heve the child has been subject to abuse.” 25 US.

3206(a); see 25h U.S.C. 520600) and (d). The United

States Departinent of Health and Human Services also

funds and disseminates research related to clild abuse

and provides substantial funding to state child-abuse

prevention and treatment programs, including funding

for child-abuse investigations. See Child Abuse Preven-

tion and ‘Treatment Act, 42 U.S.C. 5101 ef seq.; 45 CAR.

1340.1-1340.20. Finally, the principles governing the re

viewability of constitutional rulings in Section LOSS ae

lions against state and local officials will also apply in

suits ayainst federal officials pursuant to Biveuws ve Sur

Unknown Named Agents of Fed) Burean of Narcotics,

103 US. 388 (1971).

STATEMENT

boa. On February 12, 2005, police arrested respon

dent’s husband, Nunrod Greene (Greene), on Suspicion

of sexually abusing FLS., a seven-year old boy unrelated

to him. Pet. App. 57." According to FLS., Greene had

touched FLS’s penis over his jeans while drunk in FLS.’s

——— — ———™

' Citations on this brief to the petition appendix refer to the appendix

tothe petition fora writol certiorari in Canereta v. Greene, No. 09-1454

home. Jd at 4. BLS. reported that this had happened

once before. bid.

In the course of investiyating these charpes, the po

hee received information from boss parents suppesting

that Greene may have been sexually abusing his daugh-

ters, nine-year-old S.G. and five-year-old KG. Pet. App.

4-5, 57-58%. boS.’s mother told officers that respondent,

Whois the parks’ mother, “had talked to her about how

she doesn’t like the way |Greene| makes [S.G. and K.G.]

sleepin his bed when he ts intoxteated and she doesn’t

like the way he acts when they are sitting on his lap.”

fd. at 4-5. BLS.’s father told officers that Greene himself

“has made some type of prior comment about how [re

spondent] was accusing him of molesting: his daughters

and [respondent] reportedly doesn’t like the girls haying

in bed with [Greene] when he has been drinkings.” /d. at

&. bS.’s father denied that he or his wife had any direct

knowledge of sexual abuse in the Greene home, but said

that comments to that effect had “come in several ways”

from respondent and Greene. bed.

The Oreyon Department of Human Services (DHS)

received a report of Greene’s possible sexual abuse

of his daughters approximately a week after Greene’s

arrest. Pet. App. 5. The following day, petitioner Bob

Camreta, the child protective services caseworker as

signed to assess the safety of S.G. and K-G., learned that

Greene had been released from jail and was having un

supervised contact with his daughters. /d. at. 57-58.

“Based on his training and experience as a DHS case

worker, Camreta was aware that child sex offenders

often act on impulse and often direct those impulses

against their own ch fdeen, among others. For this rea-

son, he was concerned about the safety and well-being of

Nimrod Greene’s own small children.” /d. at 5 Ganternal

quotation marks and brackets omitted).

b. ‘Three days later, Camreta visited S.G’s clemen-

lary school to interview her about the possible sexual

abuse. Pet. App. 58. “Camreta thought the schoot would

be a good place for the interview because it is a place

Where children feel safe and would allow him ‘to conduct

the interview away from the potential influence of sus-

pects, meladings parents.” /d. at 5 6. In-school inter-

views of this sort, Camreta explained, “are a regular

part of clild protective services practice and are consis-

tent with DHS rules and training.” /d. at 6 (brackets

omitted). Camreta was accompanied by a county deputy

sherfl, petitioner James Alford, who wore a visible fire

arm. /bod. Camreta did not obtain parental consent, a

warrant, or other court order before the interview. bid.

A school counselor retrieved SG. from her class-

room, told her that someone was there to talk with her,

and took her toa private office where petitioners were

wailing. Pet. App. 6 According to respondent, S.G.

stated afterwards that she was scared when the school

counselor left the room, but she did not ask to have the

school counselor or her parents present, did not ery, and

did not ask to call home. 7d. at &, 62. Respondent main

tains that Camreta questioned S.G. for approximately

two hours, allhouph petitioners maintain Chat the inter-

view lasted only about an hour. /d at 6 & nb. Alford

did not ask any questions. /d. at 6. “With respect to Al

ford’s presence, S.G. stated that she is generally com

fortable around police officers, that Alford was nice to

her and did not do anything to scare her, and that she

trusted him.” Jd. at &.

According to Camreta, S.G. told him that Greene had

been touching her private parts (specifically, her chest

and buttock areas on the outside of her clothing) since

she was three; that the incidents would occur after

Greene had been drinking; that the last tncident took

place “just last week,” during which she tried to tell

Greene to stop; that she would po to her room and lock

her door when Greene tried to touch her; and that re-

spondent knew about the touching, which was one of

their seerets “with her little sister, K.G.” Pet. App. 6-7.

S.G. and respondent claim that any such statements

were the result of confusion or involuntary acquiesence

followings repeated questioning. 7d at 7S. Camreta

niaintains that he did not coerce or try to induce accusa

tory responses. /d. at 7.

c Greene was indicted on six counts of felony sexual

assault apainst BLS. and S.G. Vet. App. 9. SG. and K.G.

were removed from the Greene home for approximately

three weeks. /d. at 12. They received a physical exami

nation at a medical center specializing in child sexual

abuse, but the examiners were unable to determine

whether they had been sexually abused. /d. at 12-13. At

the time of the examination, S.G. recanted the state-

mnents she had made duringe her initial tn-school iter

view with Camreta. /d. at 12. DHS remained concerned

about the children’s welfare, but consented to their re

turn to respondent’s custody. /d. at 13.

Greene's trial on the sexual-assaull charpes ended in

a hung jury. Pet. App. 13. ‘Though he maintained his tn-

nocence, he ultimately entered an Alford plea to the al

leyed abuse of LS. /d at 18 & nl; see North Carolina

v. Alford, 400 US. 25 (1970). ‘The charges involving: S.C.

were dismussed. Pet. App. 138.

2. Respondent filed suit under 42 ULS.C. 1983 on

behalf of herself, S-G., and K.G., apainst petitioners and

others. Pet. App. 15-14 & 1.4.) Respondent alleped,

()

amony other things, that petitioners’ in-school interview

of SG. had violated the Fourth Amendment. /d. at 15-

14.

The district court pranted summary judgment for

petitioners. Pet. App. 57. On the Fourth Amendment

claim, the distriet court concluded that the evidence sup

ported a finding that S-G. was seized for Fourth Amend

ment purposes, but that no constitutional violation oc

curred because the seizure was “objectively reasonable.”

fd at 62-64. Applying the framework set forth in Terry

Vv. Ohvo, 392 US. 1 C1968), the court concluded that the

iInferview was “justified at its inception” because peti

tioners had reasonable suspicion that Greene had

abused or was a threat to abuse his children, and that

the interview was “reasonably related in seope” to its

permissible purpose of investiyating that suspicion. Pet.

App. 63-64 (quoting Terry, 392 US. at 20). ‘The district

court alternatively held that even ifa constitutional vio-

lation had occurred, petitioners were entitled to quali-

Hed immunity from damages because a reasonable off}

clalin their position could have believed the interview to

be lawful. /d. at 64-65.

3. The court of appeals affirmed in part, reversed in

part. and remanded. Pet. App. b-54. As relevant here,

it concluded that the tnterview of S-G. did violate the

Fourth Amendment, but that petitioners were entitled

to qualified immunity because the constitutional viola

ion was not clearly established under existing: law. /¢.

aut 16-44. ‘The court acknowledged that tt did not need to

address the primary constitutional question, and could

instead address only qualified immunity, but believed

that addressing both would provide useful puidanee. Ze.

at 16-18 (citing, enter alia, Pearson vo Callahan, 129

S. Ct. SOS, STS (2Z009)).

As an initial matter, the court of appeals agreed with

the distriet court that a seizure had taken place, noting

that petitioners did not dispute the issue. Pet. App. 18-

IO. ‘Phe court then retied on its prior decision in Cala

bretta v. Floyd, 189 F.8d SOS (Sth Cir, 1999), which con-

cerned the warrantless entry of a home to investipate

suspected child abuse, to hold that “the general law of

search warrants apples] to child abuse investigations”

outside, as well as inside, the home. Pet. App. 36 (quot-

ing Calabretta, 189 F.3d at 814). An interview lke the

one in this case, the court concluded, requires a warrant

or an equivalent court order supported by probable

cause, except in cases presenting exigent circumstances

or where officials are able to obtain parental consent,

fd. at 86-37 & nn.17-19.

The court of appeals declined to apply the Verry

framework to the warrantless m-school interview of S_Cr.

Pet. App. 21. ‘The court conchided, in particular, that

this Court’s decision in New Jersey v. 7.1..0., 469 US.

325 (1985), applying Verry’s “reasonableness” standard

to a school official’s warrantless search of a student's

purse, see id. at 328, 341-342, was inapposite because

S.G. wus not seized or interviewed by school officials for

the purpose of maintaining: discipline and preserving

authority at the school. Pet. App. 20-23. ‘The court rea-

soned that 7.7.0. fell within “a line of cases in which the

Supreme Court has lowered traditional fourth Amend-

ment protections ‘when special needs, beyond the nor

mal need for law enforcement, make the warrant and

probable cause requirement impracticable,” and con

cluded that law enforcement purposes and personne!

were too deeply intertwined with S.G.’s serure to justify

applying the special-needs doctrine here. /d. at 20-34

(quoting: Groffon ve Wisconsin, 483 US. 868, 873 (1987)).

S

Although the court of appeals determined that there

was a constitutional violation, it held that petitioners

were entitled to qualified imumunity from damages be

cause the constitutional right at issue was not clearly

established. Pet. App. 38-44. ‘The court observed that

“other cireuits have applied the ‘special needs’ reason

ableness standard to investigations of child abuse,” vd.

at 39, and determined that petitioners’ actions were not

clearly unconstitutional under that standard, «d. at 44.

The court stated, however, that “povernment officials

investigating allegations of child abuse should cease op

erating on the assumption that a ‘special need’ automati

cally justifies dispensing with traditional Fourth

Amendment protections in this context.” Jd at 43.

SUMMARY OF ARGUMENT

The court of appeals erred in creating an intlexible

prerequisite to the interview of a suspected victim of

parental abuse at a public school Tt required no less

than a warrant (or similar court order), parental con-

sent, or exivent circumstances. ‘That requirement finds

no support inthis Court’s cases, and threatens to elimi

nate an essential tool for the detection and prevention of

Child abuse and other child-exploitation crimes. ‘This

Court can and should vacate that portion of the court of

appeals’ opinton and remand for further proceedings.

A. ‘The Court has jurisdiction to review the court of

appeals’ constitutional ruling even though petitioners

successfully asserted a qualitied-inmunity defense in

this suit. Constitutional rulings in qualifted-immunity

Cases are a special class of determinations that by de

sipn have adverse prospective effects on prevailing de

fendants, the governmental agencies that employ them,

and other povernmental entitics. Though petitioners

4)

avoided liability in this case, the court of appeals’ opin-

ion places petitioners, along with other similarly situ

ated officials, on injunction like notice that they will be

personally lable for damages unless they comply with

the court of appeals’ decision. To categorically foreclose

further review in such circumstances would not only

Impose an unwarranted hardship on government offi

Clals and entities, but would also impede one of the pri

Inary purposes served by the court of appeals’ initial

consideration of the constitutional question, namely, the

“development of constitutional precedent.” Pearson v.

Callahan, 1298S. Ct. SOS, STS (2009).

Although, as a matter of practice, this Court pener-

ally declines to entertain requests to review case on

which the petitioning party prevailed, there is no leval

impediment to further review in this case. The Court

has statutory authority to review a court of appeals’ de

cision on the petition of “any party,” and to grant broad

relief, including vacating a lower-court decree and di

recling any necessary further proceedings. 28 USC.

1254(1); see 28 USC. 2106. There is no Article LLL bar

lo exercising that authority on behalf of a prevailing

party where the prevailing party is aggrieved by the

decision below. Petitioners in this case have standing to

Challenge the court of appeals’ constitutional ruling be-

cause it effectively prohibits them from job-related ac

tivities in which they would otherwise engage. ‘This

Court’s review of that ruling is warranted.

Bb. The court of appeals’ constitutional ruling: is in-

correct. When investigative questioning involves a sei

zure, and thereby implheates the Fourth Amendment,

the Court has consistently evaluated the constitutional-

ity of the seizure under a context-specific reasonable

ness standard. Applying that standard, the interview of

1)

a child ina public school based on reasonable sus pieton

of parental abuse complies with the Fourth Amendment,

so lonp as the interview is otherwise conducted ina rea

sonable manner,

Neither a warrant nor probable cause is a necessary

precondition to the reasonableness of an offen inter

view. Lnstead, reasonableness is assessed by balancing

the governmental interests served by the interview, and

the degree to which the interview advances those inter

ests, against the liberty intrusion it occasions. Child

abuse interviews In schools serve the sinificant inter-

ests of protecting children, assuring that they are ina

condition to attend and benetit from school, and entore-

ing important crinunal laws. ‘The interviews advance

those interests because they are often an indispensable

component of child-abuse investigations: since child

abuse happens behind closed doors with the child as the

primary (or only) Witness, investigators will often lick

probable cause before interviewing the child; and when

the suspected perpetrator is a parent, it often may be

impractical or undesirable to seek or obtain parental

consent to an interview. buinally, the interviews are at

most a minor intrusion on the liberty of a child whose

freedom of moverment is already considerably restricted

by virtue of her presence at school. Accordingly, so long

as the interview itself is carried out in a reasonable

manner —an issue that the court of appeals did not reach

With respect to the interview at issue in this case—it ts

constitutional.

1}

ARGUMENT

THE COURPOR APPEALS’ CONSTPEPUPIONAL RULING

IS KEVIEFWABLE NOTWELESTANDING PPS RULING

THAT PRTEPIONE RS ARB ENPIPLED TO QUALIFIED

IMMUNITPY

The court of appeals’ entry of judgment in favor

Of petitioners on qualified-immunity prounds does

not divest this Court of authority to review the court

of appeals’ constitutional determination. ‘Though the

qualified-immunity holding protected petitioners from

damages lability in this particular instance, the consti

tutional ruling has both the purpose and the effeet of

prohibiting similar conduct by petitioners and others in

the future. Review of such rulings is appropriate a:

both a jurisdictional and a practical matter,

A. Constitutional Determinations tn Qualifted-Lmmunity

Cases Impose Prospective Limitations On The Actions

Of Government Officials

“The doctrine of qualified imoiunity protects povern

ment officials ‘from liability for civil damages insofar as

their conduct does not violate clearly established statu

tory or constitutional rights of which a reasonable per

son would have known.” Pearson vo Callahan, 129

S. Ct. S08, S15 (2009) (quoting /larlow v. Fitzgerald, AD?

ULS. S800, SIS (1982)). A state or federal official sued in

his personal capacity under Section LISS or Beeens v.

Sic Unknown Named Agents of Federal Bureau of Nar

cotics, 408 ULS. 388s (1971), for an alleged constitutional

Violation is accordingly entitled to the entry of judgment

in his tavor if either (1) his actions did not in fact violate

the Constitution, or (2) the state of the law at the time

would not have put him on notice that bis actions vie

2

lated the Constitution, Welsonw vo Layne, 526 US. 605,

HOO CPIOD).

Until reeently, courts addressing: motions for jad

mentoon qualificd oamunity prounds were required to

Ganiploy a two step protocol under which they would de

ode whether a constitutional right was violated before

deciding whether any such right was clearly established.

Saucier Vv. Katz, 533 US. 194, ZO1 (2001). In Pearson,

thas Court relaxed that requirement, pivings courts

diccretion to deewde the latter issue without deciding

the former, I9S. Oto at S16. The Court made clear,

however, that atas “often benefreial’ to decide the

constitutional violation question first. /badi; see ad. at

“21 Cobserving: that this procedure i “often, but not al

ways, advanbapeous ’)

As the Court exphiuned in Pearson, a pritnary reason

lor a court to make such an announcement ts to “pro

motel | the development of constitutional precedent.”

IOS Ch at RIK At least in some cases, clarifying the

constitutional rule wall provide useful future purdance

lor povernment officials and the publte at large. See

County of Sacramento vo Lewes, 526 Us. 834, 84) 1

(1098) CLEP the policy of avoidance were always fol

lowedin favor of rabings on quadified tomunity whenever

there was no clearly settled constitutional rate of pri:

noory conduct, standards of official condact would tend

fo remain necertain, to the detriment both of offieial

and madividtuals.”)

Underlying this “development of constitutional

precedent’ rationale a the premise that a plamtillt

favorable com titutional role announced by a court of

appeals an the course of enter ap jadpanent i favor of

the offierl defendant wall bind future courts. See rant

my. Mellen, 641 US. (O19, 1024 CSeaha, J. dissenting

13

from dental of certiorari) (The [two step] procedure

pives rise to- and is destgned to groe rise to —constitu

tional rulings * * * with precedential effect”). Tf that

were not the case, then the announcement would be

pointless, as the same offieral could enyape in the same

conduct apain and credibly claim that the ibeyrality of his

actions stdll was not clearly established. See ad at 1025

1074. ‘These announcements are Cherclore meant to put

not only the particular defendant offieral, but also all

other similarly situated offtetats within the court of ap

peaks gurisdiction, on notice that they will henceforth

face individual damages lability for engaging in certain

conduct. See Wilson, 526 US. at 609 (Deciding the

constitutional question before addressings the qualified

omiuinity question * * * promotes clarity in the legal

standards for offierml conduet.’); Lewes, 525 US. at 841

nf A court of appeals’ constitutional determination in

acace ike this thus has an effect similar to an myunction

ora declaratory pudpiment ayaiost the povernment us a

Whole. Cf. Pearson, 129 5. Ct. at &2Z0 (observing that

“constitutional decisions” Like this “may have a serious

prospective effect” on the “operations” of “affected par

tyes”)

The court of appeals in this case chose to follow the

two step Sawerer protocol in order “to provide purdance

to those charged with the difficult task of protecting

child welfare.” Pet. App. 1s The result was a ruling

that the questioning of a suspeeted child abuse vietin

“inthe absence of a warrant, a court order, exigent cir-

cumistances, or parental consent fis} unconstitutional,”

rdooat 36.37 CQootnotes omitted), and an instruction to

“poverniment offierals investyrating alleyations of child

abuse” that they “should cease operating on the assump

tion that acspecial need’ automatically justifies dispens

Inge With traditional bbourth Amendment protections tn

this context,” vd at 46. That holding affects not only

petitioners, but other state, local, and federal officials

enpayed in similar practices. Tt also casts doubt on fed

erablaw that expressly permits interviews of suspected

child-abuse victims based on less than probable cause,

andain the absence of parental consent. See 25 USO.

$2060) CLL fnterviews of an lndian child alleged to have

been subseet to abuse in Indian country shall be allowed

without parental consent if local child protective ser

viecs or local law enforcement offienls have reason to

heleve the child has been subject to abuse.”); see

S. Rep. No. 208, lOtst Cong, Ist Sess. 3 (1989). Barring

further review by this Court, officials within the court of

appeals’ jurisdiction now have the “unenviable choice” to

“comply with the lower court's” opinion, or else to “defy

the views of the lower court, adhere to practices that

have been declared illegal, and thas invite new suits and

potential punitive damapes.” Pearson, 1295. Ot. at 820

Guiternal quotation marks, citation, and brackets ort

teal)

Ko This Court Has Jurisdiction To Review A Constitutional

Determination That Has Continuing Adverse Conse

quences For A Government Otftieiml Who Prevaited On

Qhaalilied-lmmunity Grounds

An appellate ruling dechuiny that povernment action

Violated the Constitution, and warning officials mot to

enpapye i such conduct in the future, would penerally be

subject to further review. Phere is neither a lepal nor a

practical reason why the court of appeals’ constitutional

roling here should be immune from such review simply

heeause petitioners ultimately avoided personal dam

apes hability at the second step of the Samececr analysis.

I

I. By statute, Congress has yviven this Court author-

ity to review decisions of the courts of appeals on the

petition of a prevailing party. The relevant jurisdic

fional statute provides vaat “Lejases in the courts of ap

peal may be reviewed by the Supreme Court * * +

lbly writ of certiorari pranted upon the petition of avy

party to any civilor criminal ease, before or after rend

tion of judgment or decree.” 28 USC. 125401) Compha

sis added). “The literal language of the §125401) refer-

ence to Sany party’ is broad enough to encompass the

successful or prevailing: party before the court of ap-

peals.” Robert L. Stern et al, Supreme Court Practice

79 (Sth ed. 2002) (Stern & Garessman); see bunting, 541

UES at 1028 (Sealia, J, dissenting from dential of certio

rari) And the expansive appellate remedy statute

Which allows this Court, among other things, to “modify”

or “vacate” a lower court “deerce,” and to “require such

further proceedings to be had as may be just under the

circumstances,” 28 US 2106—pives the Court the

power lo prant the prevailing: party whatever relief may

be appropriate.

Y ‘This Court has previously recopnized that “[ijn an

appropriate case, appeal may be permutted from an ad

verse ralings collateral to Che judpiment on the merits al

the behest of the party who has prevailed on the merits,”

limited only by the constraints of Article TEL. Deposcl

Gruar. Natl Bank v. Roper, 445 U.S. 326, 5454 (1980); see

third (noting: that the prevailings party must “retain | a

stake in the appeal satisfying the requirements of

Artlicle| LID); Arizonans for Official huglish vo Are

cond, O20 US. 45, 64 (1997) C' Phe standing Article TT

requires must be met by persons seeking appellate re

view, just as it must be met by persons appearing: in

courts of first instanee.”).

lt

In Mleetrical Fittings Corp vo Thomas & Betts Co.,

307 US. 241 (1939), this Court considered the review

ability of a district court judgment in favor of the defen

dants ina patent suit, where the district court had held

that the plaintaffs’ patent was valid, but that the defen-

dants had not infringred it. Jd. at 241-242. The defen-

dants, though they had prevailed, “asserted a concern

(hat their success in some unspeciied future litigation

would be tipaired by stare decisis or collateral-estoppel

application of the District Court’s ruling on patent valid-

ity.” Deposit Guar, Nat'l Bark, 445 US. at 837. The

Court held that the defendants could ask the court of

appeals to “entertam fan} appeal, not for the purpose of

passing on the merits, but to direct the reformation of

the decree” to climinate the validity rulings, Alectrical

hittings, 807 US. at 242. The Court “had the question

of mootness before it, yet because policy considerations

permitted an appeal from the District Court’s final yudy

ment and because petitioners alleyed a stake im the out

come, the case was still live and dismissal was not re

quired by Arthiclep IL” Deposit Guar, Nat'l Bank, 445

US. at 435.

The constitutional ruling in this case is “collateral to

the judpament” on qualified-immunity prounds in the

same way that the patent-validity ruling in Alectrical

huttings was “collateral to the judgiment™ on non-

infringement prounds. Deposit Guar Nat'l Bank, 445

US oat 834. And this case is similarly “stilllive” for pur

poses of Article TEL 7d) at 835. Indeed, the adverse con

sequences of the ruling: here which prevents petition

ers from enpyapingy ina “routine investipative technique,”

O9 1478 Pet. 14; 09-1454 Pet. bl—are substantially more

certain and imminent than the concerns about “unspect

fied future litivation”? asserted by the appellants im //ee

17

trical Fittings. See Deposit Guar. Nat'l Bank, 445 US.

at 337; ef. Mreends of the Rarth, Ine v. Laidlaw Hivovtl

Servos. (TOC), litve., 828 US. 167, 183-184 (2000) Crecog

nizing standing: to sue where plaintiffs refrained from

certain activities based upon “reasonable concerns” of

adverse consequences). Finally, to the extent that the

reviewability decision in Wlectrical Fittings was based

on “poliey considerations” (Deposit Guar. Nat'l Bank,

Ads US. at 835), the decision below -which concerns not

the business dealings of private parties but the constitu

tionality of yovernmental activities presents a consid-

erably stronger case for appellate review. See faulting,

Hab US. at 1024 (Seahia, JL, dissentings from denial of

certiorari) C'lt seems to me that [the quatified

immunity} situation is exactly what we had in mind when

we said, in Deposit Guaranty Nat. Bank, that ‘in an ap

propriate case’ a petitioner may appeal an adverse col

lateral ruling despite having secured a favorable judy

ment.) (quoting 445 US. at 3384; one set of brackets

commtbeady.

That petitioners here, unlike the defendants in flee

trical Fittings, seek an appellate opimon not only vacat

ing part of the lower court's ruling, but also addressing

iomerits, is of little moment. The merits question sim

ply bears on the reason why the requested appellate

relief (vacatur of the adverse portion of the lower-court

decision) would be pranted, not on whether this Court

has jurisdiction to prant that relied.

Nor, for Article TEL purposes, ts it sapsnificant that the

validity of the patent at issue in Aleetrical Fittengs may

have been of ongoiny siynificance to the non-appealiny

parties, Whereas this case concerns the constitutionality

of a practice that may or may net be appled to S a.

again. ‘Phe prospective impact of the court’s decision on

Is

(he non-appeating parties played no role in the Court's

decision in Llectrical Fittings. And in any event, this

Court has throughout its history heard and decided nu

merous Cases in which the non-appealing party had little

or no interest in defending the lower court’s judgment,

see, eg, Pacrfie Bell Tel. Co. ve LankLine Comm’'cius,

fne. 1209S. Cb. LLO9, E117 (2009) (refusing to dismiss the

writ of certiorari for “hick of adversarial presentation’

by an interested party” where respondents asked for

vacatur of the lower-court decision in their favor, and

noting that “pradential concerns favor our answering

the question presented’); Destrict of Colombia vy. Heller,

IPs S. Cb. 2785, 2545 (2008) (Stevens, Jd., dissenting) (ob

serving that “only one side appeared and presented ar-

pruments” in Marbury vo Madison, & US. CL Craneh) 137

(1S03)); see also, eg, Stern & Gressman 666 (describing

cases in Which “the Court invites fan} aneecas to present

an argument because for some reason no other counse!

Will be representing that side of the case”); Pepper v.

United States, No. 09 6822 Carpued Dec. 6, 2010) Gaumicus

appointed in light of yovernment’s confession of error).~

lt makes httle sense to conclude that there was a suffi

crent case or controversy below to allow the court of ap

peals to decide the constitutional question notwithstand

my its ultimate determination that petitioners were enti

tled to qualified imimunity, yet conclude that the consti

tutional ruling is unreviewable because that case or con

troversy is absent now

Notably, respondent inthis ease fled a briel in opposition to the

petitions for a wrt of certiorartin which she defended the court ot ap

peak constitutronabruling. See Bron Opp 2 Co Phe Court should deny

the Petition for Writ) of Certiorart because the Ninth Cireunt has cou

rectly stated Che law.")

hy

That is mot to say that constitutional rulings by

courts of appeals in qualified immunity cases will always

be reviewable. Tt may wellbe that an official defendant

who has prevailed on qualified-immunity grounds will

lack standing: to seek further review because there ts an

insufficient Likelihood that he will apain engage in the

practice that has been ruled unconstitutional Cl City

of Lo Aly. Lyons, 461 US. 95, 105-106 (1983). Bat where,

as here, a court of appeals’ constitutional ruling: effec

lively prohibits the official defendants from perforniuny

an important and recurring job related function, Article

H1l permits an appect,

3. Inthe absence of either a constitutionabor a stat

utory bar, the only potential impediment to review in

this case is this Court’s traditional “practice” of dechin-

ing “to entertain an appeal by a party on an issue as to

which he prevailed.” Bronte, 541 ULS. at L028 CSealia,

J., dissenting from denial of certiorary. ‘hat “peneral

rule.” however, “should not apply where a favorable

judgment on qualified-immunity grounds would deprive

a party of an opportunity to appeal the unfavorable Cand

often more significant) constitutional determination.”

lhid

lor reasons already explained, sce pp. bo 14a, sapra,

such constitutional determinations have the potential to

inflict real and serious consequences upon governmental

officials, the institutions that employ Chem, and other

yovernmental avencies. Furthermore, petitions seeking

review of such determinations are likely to reach thts

Court only if (1) the court of appeals deems it usetul te

decide a constitutional issue adversely to Che offical

defendant despite ranting qualified minmunity, and (2)

the assue is important and recurrent enough Chat the

defendant perceives the need for further review despite

20

having won below. A cateyorical refusal to review such

determinations not onty would be “unfair to the litigant

Gand to the institution that the litigant represents)” but

also would “undermine|} the purpose served by initial

consideration of the constitutional question, which is to

clarity constitutional rights without delay.” raorteng,

D4) US. at 1024 (Sealia, J., dissenting: from denial of

certiorari). ‘Phis Court can and should review the court

ofappeals’ Fourth Amendment ruling: in this case.

Ho THE POURTILAMENDMENT PERMIEPS REASONABLE

WARKRKANTELESS INTERVIEWS AT PUBLIC SCHOOLS OF

SUSPECTED VICTIMS OF PARENTAL ABUSE

As this Court’s cases make clear, “|t}he ultimate

touchstone of the Fourth Amendment * * 4

ableness,” and the inquiry into what is reasonable “must

be shaped by * * * context.” Michrganv. Fisher, 10

S. bt. 546, 548 (2009) (per curiam) Gnternal quotation

tharks omitted) (quoting Brigham City vo Stuart, 547

US. 398, 408 (2006)), Terry vo Ohkvo, 802 US. 1, 9 (1968).

The court of appeals in this case erred by retlexively

Hiporting a requirement of a warrant (or a traditional

warrant exception) into a context—olficial question

ing where a warrant issued on probable cause pener

ally has not been a prerequisite for reasonableness. in

deed, outstde the context of an arrest (or its funetional

equivalent), the constitutionality of a seizure related to

official questioning: does met turn on the presence of

probable eause at all, but instead depends on a balancing

of the public and private interests involved. When justi

fed by reasonable suspicion and conducted in a reason

able manner, the warrantless in-school interview of a

suspected victim of parental abuse satisfies such a bal

is reason

arcing? Lest

ot

A. ‘Phe taw-Enforcement-Related Intervie. OFA Suspect

Or Witness Does Not Presumptively Require Either A

Warrant Or Probable Cause

The Fourth Amendment, as interpreted by this

Court, establishes various “rales and prestumptions cle

sipned to control conduct of law enforcement officers

that may significantly intrude upon privacy interests.”

Lilinois v. McArthur, 5351 LS. 826, 830 (2001). “Some

times those rules require warrants,” but the Court hats

also found “that certain peneral, or individual, circum

stances may render a warrantless search or seizure rea-

sonable.” /bid. Official questioning, when implicates

the Fourth Amendment at all, has been one of the “pen

eral cireumstaneces” in which a warrant, ora probable

ecause-based warrant exception such as exipent cireuin

stances, is not presumptively required. Offieral ques

tioning often does not require probable cause, and some

times dees not even require individualized SUSPIClOn

| Asan dnitial matter, official questioning, whether

by the police or otherwise, frequentiy will not amount Co

a “seizure” under the Fourth Amendment, “Even when

law entoreement officers have ao basts for suspect inp? aa

particular individual, (hey tay pose questions, ask for

identification, and request consent to search” the per

con's effects without implicating the Fourth Amend

rhiernt Ll nited States vo Drayton, 536 LIS. 194, ZOl

2002). Such official conduct does not rise to the level of

a seizure so lonp as “a reasonable person would feel tree

to terminate the encounter,” and the Fourth Amend

ment accordingly imposes no threshold requirements

before an officer may enpaye in that conduct lbid

In this case, petitioners have not challenged the low

er courts’ determination that the interview of SG. an

“eo

—

volved a seizure.” See Pet. App. 18, 62. The determina

tion that a seizure oecurred, however, ts the bepinningy,

rather than the end, of the Fourth Amendment inquiry,

which then requires an analysis of whether the seizure

is reasonable. ALy., McArthier, S31 US. at S31.

2. ‘The degree of official justification necessary for

an investiyatory seizure depends upon the nature of the

seiwure. Asmall class of particularly invasive serzures—

namely, arrests of suspects ina private place—require

a warrant supported by probable cause. See Sfeagald v.

United States, 451 ULS. 204, 205-206 (L981): Pauton v.

New York, 445 US. 573, 586 (1980). Most seizures, how

ever, do not. Police officers may, for example, arrest a

suspect in publie without a warrant, so long as the arrest

Is Supported by probable cause. United States vo Wat

son, 428 US. 41, 417-418 C1976).

hor seizures less intrusive than an arrest—a cate

ory that includes most seizures related to official ques

lLiommyr probable cause ts not necessarily required. See

Brown ve Tewas, 448 US. 47, 50 C1979). Rather, the

“reasonableness” of such seizures “depends ‘on a bal-

even assuming that there was a semure mn this case, itis far from

clear that albin-schoot child interviews would be seizures So lompe as

the childs asked Co come to the interview voluntarily, and a reasonable

porsonin the child's position would teel tree to terminate Che interview,

no seimure has ovcurred, See,eg, Florndav. Rodrigues, AOUUES 16

Ci9S) Co Phe mittal contact between the officers and respondent, where

they simply asked if [the suspect} would step aside and talk with them,

was clearly the sortof consensual encounter that imphleates no Fourth

Amendment mterest."); Druyten, S86 ES. at VOL Phe fact that the

child's freedom ts otherwise restricted in the school environment does

not by itself mean that the child is unable to terminate the interview

See if at ZOOS 208 (questioning of passenvers on a bus not a seimure),

INS v. Delgado, GUS PLO, 21S (1984) (questioning of factory work-

ers by ayrents blocking exits not a serure), see also pp SO-S1, cefre

“>?

ad

ance between the public interest and the individual's

right to personal security tree from arbitrary iiterter

ence by law officers.”” Jbid. (quoting: Ponrsyloania v.

Minons, 434 US. 106, 109 (1977)) The Court's seminal

opinion in’ Terry, for example, apphed an interest

balancing approach to conclude that law enforcement

officers may stop and question someone based upon rea

sonable suspicion that he is about to commit a crime,

392 US. at 8-22. The Terry reasoning has since been

extended to permit reasonable suspicion based ques

lioning in other contexts as well. See, cg, United States

Vv. Sharpe, 470 US. 675, BSL CLYSO) (stop Co tivestipate

reasonable suspicion of onvoing criminal activity in vel

cle); United States v. fleusley, 469 U.S. 221, 220 (198d)

(stop to investigate reasonable suspicion of already -com

pleted felony), United States vo Brignont- Ponce, 422

US. 873, SS1-S8S84 (1975) (stop to investipate reasonable

suspicion of alien smuggling at border). An officer with

reasonable suspicion to stop someone for questioning

may detain him for the length of time reasonably neces

sary to confirm or alleviate the suspreron, Michigan v.

Sropomers, 452 iS. 692, TOO ne (LOST): see eg, Oocted

States v. Montoya de Hernandez, A038 US. 5381, b42- O44

Ql9OS5) (upholding: multi-hour airport detention of sus

pected international drug smugeler); Siarpo, 470 US

at GS7-6S8S (upholding 20-minute teraftte stop), et ected

States vo Place, 462 ULS. 696, TO9-710 CL9OSS) CLAT

though we decline to adopt any outside limitation for a

permissible Zerry stop, We have never approved a sel

gure of the person for the prolonged 90 minute period

involved here and cannot do so on the facts presented by

this case.) Mootnote omitted).

The Court’s decision in L/lenors ve Leadster, O40 US.

419 (2004), applied a stmilar balancing approach to per

a |

mit suspicionless seizures of potential witnesses to

crimes. The Courtin Ledster upheld the constitutional

ity ofa cheekpoint established for the purpose of asking

motorists Whether they had information about a fatal

hit-and-run accident that had occurred around the same

time roughly a week before. /d. at 421-422. The check

point stops, the Court held, were constitutional despite

the absence of any sort of individualized suspicion that

the stopped motorists would have any information about

the event. /d at 424-425. ‘The Court recognized the

Importance of such “information-seeking stop{s}.” even

Where accomplished by a seizure. /d. at 425-426

S$. In concluding that a formal warrant requirement

applies to the questioning of a suspected child-abuse

Victimina publ school, the court of appeals misinter

preted this Courts precedents in two critical respects

birst, the court of appeals reled on its precedent con

cerning the warrantless entry of a home, declining to

distinguish for Fourth Amendment purposes between

entry of a home and an interview at school See. eg,

Pot. App. 21. ‘Phis Court, however, has recoynized that

“physical entry of the home ts the chief evil against

Which the wording of the Fourth Amendment is di

reeted.” United States vo United States Dist. Ct., 407

US. 297, 3138 (972). Por that reason, “searches and

seizures inside a home without a warrant are presump

tively unreasonable.” Grok vo Ramirez, 540 UES. 5S),

pod (2004) (citation omitted); see po 22, sapere (noting the

upplication of a warrant requirement to in-home car

rests). No similar reasoning, however, presumptively

requires Warrants for seizures that occur elsewhere

See eg, MecArthar, SOLUS. at 830 C’Temporarily heep

Inge a person trom entering his home, a consequence

whenever police stop a person on the street, is consider

—_———— =<

sor

rare

ably less intrusive than police entry into the home itself

in order to make a warrantless arrest or conduct a

search.) [ndeed, the home-protection rationale os frat

ticularly inappheable to a seizure at a puble school See

Vernonia Sek. Dest. 47d ve Acton, OV US. O46, 654

(1995) (distinguishing the privacy interests of cn maivid

ual in his home from the interests of children who “have

been committed to the temporary custody of the State as

schoolmaster”)

Second, the court of appeals erroneously beheved

that the “direct involvement of law enforcement™ in i

child-abuse investigation militates in faver of requiring

a Warrant or exigent circumstances JUStUILyIng an excep)

tion to the warrant requirement Pet. App ost. Phe

court reached that conclusion by negative inference

from this Court's so-called “special needs” eases. fa at

20. tin those CAusCcs, the Court has addressed careum

stances in which “special needs, beyond the normal need

for law enforcement, make the warrant and probable

cause requirement impracticable” Goreffan ve Wescor

sin, 483 US. S68, 873 C1987) (quoting: New Jersey

7T.L.O., ABO LES. 825, B41 (1985) Blackman, 42. concur

ring inthe judgment)). The court of appeals concluded

that these special-needs cases dietate that when Law en

foreement is involved, “the general low of search war

rants applies.” Pet. App. 36 (brackets and citation omit

ted)

This Court has expressly regected the “dubious Logie”

that its causes upholding special-needs searches and set

zures can be read unplicithy to restrict the scope of per

missible law-enforcement practives (onitid Sfutes \

Anights, A384 US. 112. TUT (2007). Phe Court has ex

plained that a search or seizure may be “otherwise rea

semable within the meaniig of the Fourth Amendment”

MAT)

irrespective of whether itis deemed reasonable under a

special-needs analysis. /d. at 1LL7-11ES8; see, eg., Samson

Vv. California, 547 US. 848, 855 n-4 (2006) (suspicionless

searches may be reasonable in both special-needs and

non special-needs cases). As the many law-enforcement

cases cited above demonstrate, the mere fact that a case

directly involves law enforcement personnel and objec-

tives does not automatically trigger a warrant require-

ment. See pp. 21-24, supra. The court of appeals erred

in concluding otherwise.

I. Reasonable Warrantless Questioning Of A Suspected

Parental-Abuse Victim In A Public School ts Consistent

With The Fourth Amendment

A seizure for the purposes of interviewing a sus-

pected parental-abuse victim at a public school, like

most questioning-related seizures, falls within the class

of seizures “less intrusive than a traditional arrest” that

do not necessarily require probable cause, and to which

this Court applies a balancing test to determine reason-

ableness. Brown, 448 US. at 50. Whereas an arrest

involves accusation and the serious threat of prolonged

incarceration or other punishment, an interview with a

suspected vietum of child abuse does not.” Cf. Lidster,

P40 US. at 425 (distinguishing information-seeking

stops from interropation of suspects). As discussed fur-

ther below, the liberty restrictions in such an interview

(to the extent they exist) arise primarily from the custo-

dial aspects of public schooling, rather than the presence

of law-enforcement officers. See pp. 80-31, tnfra. And

Because S.C. was not herself suspected of committing a crime, this

case provides no occasion to address the circumstances under which an

in-school interview with a suspect would be reasonable.

2d

so long as such interviews take place on school prounds,

do not Involve physical restraint, and do not involve the

commandeering of personal property, they lack the indi.

cia of a custedial arrest. Compare, e.g., Montoya de

Hernandez, 473 ULS. at 544 (prolonged detention of un-

cooperative suspect in private airport office not consid

ered an arrest), with /lorida v. Royer, 460 U.S. 491,

502-505 (1982) (plurality opinion) (functional arrest

where police in airport seized ticket, identification, and

luppagre of suspect waiting to board plane and took him

to private room for interrogation); Danaway v. New

York, 442 U.S. 200, 212 (1979) (functional arrest where

suspect was taken to police station and would have been

restramed had he tried to leave).

To assess the reasonableness of this type of seizure,

this Court looks to “the pravity of the public concerns

served by the seizure, the degree to which the seizure

advances the publie interest, and the severity of the in-

terference with individual liberty.” Lidster, 540 ULS. at

427 (quoting Brown, 448 ULS. at 51). Under that rubric,

a warrantless interview at a public school of a child

whom officials reasonably suspect to be a victim of pa-

rental abuse is constitutional, so long as the interview ts

conducted in a reasonable manner.

lL. Multiple important “publie concerns” are “served

by” the interview of a suspected victim of parental

abuse, part-cularly parental sexual abuse. ‘To begin

with, it is “evident beyond the need for elaboration” that

the governmental “interest in ‘safeguarding the physical

and psychological well-being of a minor’ is ‘compel

ling,” and that “prevention of sexual exploitation and

abuse of children constitutes a government objective of

surpassing importance.” New York v. Ferber, 458 U.S.

747, 7TH6-757 (1982) (quoting Globe Newspaper Co. v.

ws

Supertor Cl, 457 U.S. 596, 607 (1982)); see Child Abuse,

Domestic Violence, Adoption and Family Services Act of

1992, Pub. I. No. 102-295, 8 102 (a), 106 Stat. 189

(“|SJubstantial reductions in the prevalence and inci-

dence of child abuse and neglect and the alleviation of its

consequences are matters of the highest national prior-

ity.”). ‘There is also a related, but distinet, governmental

interest in the public-schooling context in assuring that

the influences a child is under (even if those influences

arise off-campus) do not impede the ability of that child,

or of other children, to participate in school activities.

See Board of Kduc. of Indep. Sch. Dist. No. 92 v. Harts,

636 US. 822, 829-831 (2002) (recognizing a similar inter-

est in relation to drug abuse); Acton, 515 ULS. at 661-662

(same); Jill Goldman et al., Office on Child Abuse &

Neglect, U.S. Dep’t of Health and Human Servs., A Co-

ordinated Response to Child Abuse and Neglect: The

Foundation for Practice 37 (2003) “Research has con-

sistently found that maltreatment inereases the risk of

lower academic achievement and problematic school per-

formance.”), http://www.childwelfare.gov/pubs/

usermanuals/foundation/foundation. pdf.”

2. A seizure of the sort that has been presumed

in this case “advances the public interest” to a signifi-

cant degree. If officials were required to have probable

cause (in support of either a warrant or an exigent-

circumstances exception) to interview a suspected child-

even outside the particular contexts of child abuse and public

school, the federal yovernament and the states have a strong peneral

interest in the detection, prevention, and prosecution of crime. See

Terry, 892 U.S. at 22; see also Lidster, 540 US. at 427 (grave” public

concern in investigation of fatal hit-and-run accident); Place, 462 US

at 708 ('[Pyhe public has a compelling interest in detecting those who

would traffic in deadly drugs for personal profit.) (citation omitted).

*}()

ubuse vielim, at least some child-abuse investigations

could be completely stymied. See penerally Arizona

Amicus Merits Brief. “Because of a lack of physical or

medical evidence in most causes, and because |[child-

serxual-abusel offenses by their nature typically take

place in private, often the statements of the child who is

the alleved vietim are eritically important, and perhaps

the only, evidence.” Frank kL. Vandervort, Videotaping

lnvestigative luterviews of Children in Cases of Child

Sexual Abuse: One Community’s Approach, 96 Jd. Crim,

lL & Criminology 18538, 1854 (2006) (footnote omitted);

see Pennsylvania v. Ritchre, 480 US. 389, 60 (1987)

(“Child abuse is one of the most difficult crimes to detect

and prosecute, in large part because there often are no

Witnesses except the victim.) It will therefore be diffi.

cult, if not impossible, in many cases to obtain probable

cause before interviewing the child. See, ¢.g., Mark

Hardin, Legal Barriers in Child Abuse Investigations:

State Powers and Individual Rights, 63 Wash. L. Rev.

493, 519 (L988); 7d. at 520 1.98; 5 Wayne KR. Lak ave,

Search and Seizure & 10.3(a), at 105 (4th ed. 2004).

The court of appeals’ recognition of an exception to

the warrant requirement where the parent has con-

sented to the questioning tay help officers overcome

those obstacles in some cases. But while there will sure-

ly be many cases in which parental consent can be

sought and obtained, there will be other cases in which

it cannot—for example, cases involving single-parent

families or families where both parents are alleyed to

have participated in the abuse. And even in two-parent

families where only one parent is suspected, the other

parent may not be open to cooperating with investipa-

tors. National Ctr. for Prosecution of Child Abuse,

American Prosecutors Research Inst., Jnvestigation

ov

and Prosecution of Child Abuse 94 (Sd ed. 2004) (APRID

(in cases involving “an abusing and a nonabusing: par-

ent,” the “nonabusing mother may protect the child” or

“pressure the child not to talk about the abuse”); ef. Chil-

dren’s Bureau, U.S. Dep't of Health & Human Servs.,

Child Maltreatment 2008, at 7 (fir. 2-1), 70 (tbl. 5-3) (na-

tional study reporting that parents committed over 80%

of cataloged instanees of mistreatment, but made fewer

than 7% of the cataloged reports of mistreatment),

http://www.act hhs.gov/programs/cb/pubs/em0s/

emO0s.padt. Furthermore, even if there is a possibility

that parental consent might be obtained, there is a risk

that asking for it, and thereby makiny the investigation

known, will give a parent (or others) a chance to thwart

the investigation by pressuring the child. See, e.g.,

APRI 94 (observing that non abusing parent may “per-

suade the child to recant the disclosure so the perpetra-

tor does not face the criminal justice system”); Child

Abuse and Neglect: Hearing Before the Senate Select

Comm. on Indian Affairs, 100th Congy., 2d Sess. 41

(1988) (testimony by U.S. Attorney that colleagues of a

teacher accused of child abuse “bep[aln to work on the

victims so that we clould|n’t get a good statement from

them’).

6. Particularly when balanced against the impor-

tance of investigating child abuse and the impossibility

of doing so if probable cause or parental consent are

required, the “severity of the interference with individ-

ual liberty” of a reasonable in-school interview is not.

preat.

Since a schoolchild already is subject to the custodial

authority of the public school system, any liberty re-

striction imposed by the interview itself is, at most, min-

imal. A child at school, whether interviewed or not,

“lack[s| * * * the right of liberty in its narrow sense,

Le, the right to come and go at will,” because her par-

ents’ authority to “control” her “physical freedom” has

been “delegated” to school authorities. Acton, 5145 US.

at 654-655. Those school authorities can restrict both

the child’s ability to leave school grounds and the child’s

ability to move about school grounds without permission.

Though the interview may require the child Gin order to

protect her privacy) to go to a special room, the inter

view does nothing to change the preexisting restraints

on the child’s freedom that are imposed by the school.

Those restraints, which are ancillary to the interview

itself, do not factor into the Fourth Amendment calen-

lus. CE INS v. Delgado, 466 U.S. 210, 218 (1984) (““Ordi-

narily, when people are at work their freedom to move

about has been meaningfully restricted, not by the ae-

tions of law enforcement officials, but by the workers’

voluntary obligations to their employers.”); Florida vy.

Bostick, 501 US. 429, 436 (1990) (observing that while

bus passenger’s movements “were ‘confined’ in a sense,

* * * this was the natural result of his decision to take

the bus; it says nothing about whether or not the police

conduct at issue was coercive”). Simply put, “Fourth

Amendment rights * * * are different in public schools

than elsewhere,” and “the ‘reasonableness’ inquiry can-

not disregard the schools’ custodial and tutelary respon-

sibility for children.” Acton, 515 ULS. at 656.

4. The reasonableness inquiry does, of course, re-

quire consideration not only of the degree of the seizure,

but also of the manner in which it was conducted, includ-

ing its length and other factors. See, e.g., McArthur,

d3t US. at 352. The court of appeals here, however, did

not squarely address those issues in its constitutional

analysis, instead deciding the Fourth Amendment ques-

yA

tion based upon the application of a threshold warrant

requirement. ‘Phis Court need not decide in the first

instance whether the interview in this case was con-

ducted in a reasonable manner. To resolve this case,

this Court need only hold that officials are not categori-

cally barred from conducting in-school interviews of sus-

pected child-abuse victims in the absence of a warrant

(or equivalent court order), exigent circumstances, or

parental consent.

‘To the extent the Court chooses to address the man-

ner in which the interview was conducted, however, it

bears mention that certain factors that appeared to con-

cern the court of appeals in its quatified-immunity analy-

sis) namely, the presence of an armed police officer,

and the presumed two-hour length of the interview, see,

«g., Pet. App. 40 -did not necessarily render the inter-

view unreasonable. As to the presence of the officer,

this Court has observed that “lolfficers are often re-

quired to wear uniforms and in many circumstances, this

is Cause for assurance, not discomfort,” and that because

it is “well known to the public” that officers are fre-

quently armed, the “presence of a holstered firearm is

* * * unlikely to contribute to the coerciveness of the

encounter absent active brandishing of the weapon.”

Drayton, 536 U.S. at 204-205; ef. Sherry Bohannan et

al., CAMI Program, Or. Dep’t of Justice, Oregon Inter-

viewing Guidelines 43 (2d ed. 2004) (noting that while

some children might be intimidated by a uniformed ofti-

cer, others will be comforted), http://www.doj.state.or.

us/crimev/pdf/orinterviewingguide.pdf; Pet. App. 8 (stat-

ing that S.G. said she was “penerally comfortable around

police officers,” that Alford did not scare her, and that

she “trusted him”). And as to the length of the encoun-

ter, the relevant requirement is simply that any seizure

33

he “reasonably related in scope to the circumstances

which justified the interference in the first place.”

Terry, 392 U.S. at 20. A child-abuse interview, particu-

larly of a young child, may take much longer than a typi

cal Terry stop, because the interviewer cannot necessar-

ily put the questions to the child directly, and instead

needs time to lay the ground rules (including possibly

explaining the difference between telling the truth and

lying), develop a rapport, and delve sensitively into the

subject matter. See generally Harborview Ctr. for Sex-

ual Assault and ‘Traumatic Stress & Wash. State Crim.

Justice Training Comm'n, Child literview Gide (2006),

http://centerforchildwelfare.fmhi.usf.edu/k b/trpi/

Child®20 I nterview%20Guide. pdf. The fact that it may

take some time to “verify or dispel” the reasonable sus-

picion that justifies child-abuse interviews does not

make such interviews unreasonable. Montoya de Her

nandez, 473 U.S. at 544; see, e.g., Summers, 452 US. at

TOO n.b2.

Od

CONCLUSION

This Court should vaeate the judgment of the court

of appeals on respondent’s Fourth Amendment claim

and remand the case with instructions to enter judgment

for petitioners consistent with Fourth Amendment prin-

ciples set forth by this Court.

Respectfully submitted.

NitaAl KUMAR KATYAL

Acting Solicitor General

Counsel of Record

TONY WEST

LANNY A. BREUER

Assistant Attorneys General

LEONDKA RO KRUGER

Roy Wo MoLeesre Il

Acting Deputy Solicitors

General

baie: bP REGEN

Assistant to the Solicitor

General

THOMAS M. BONDY

SUSHMA SONI

JOUN M. PRLLETTIERI

Attorneys

DECEMBER ZOLO