Amicus Curiae Brief — Camreta v. Greene

Nos. OG 1404, 09 147%

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SQ COUMNE Ow Cards:

UN ACE SCACAS

BOK CANRICLTA,

Vetitioner,

Vv

SARKAHL GREENE, personally and as next friend for 5.G.,

agpinor, and KG, a minor,

Kespondent

JAMES ALFORD, Deschutes County Deputy Shertff,

Petitioner,

V

SAKA GREENE, personally and as next friend for 5 G.,

eosninor, and K-G., a minor,

Respondent

On Writs Of Certiorari Lo The Unitod States Court

Of Appeals For ‘The Ninth Circuit

BRIE OF THE CENTER FOR INDIVIDUAL

KIGHES AS AMICUS CURIAK SUPPORTING

KESPONDENT

Michacl ko Kosman

Counsel of Khecord

Center for Individual Riphts

243% 20 St. NAW, Surte $00

Washington, CC 20006

(YO2, HI B400

rosman@or usa orp

QUESTIONS PRESENTED

Petitioners, povernment officials who had

interrogated respondent's nine-year old daughter

about possible abuse from respondent’s husband,

suecessfully moved for summary judgment in the

district court. On review, the Ninth Circust

reyected one of the povernment officials’ claimed

bases for summary judgment: their contention

that, even with all disputed facts and factual

inferences resolved in favor of respondent, they

had not violated the Fourth and Fourteenth

Amendments to the U.S. Constitution. It

nonetheless ruled that the povernment officials

had qualified immunity, were not lable for any

damages, and thus affirmed the distmect court’s

dismissal of respondent's Fourth Amendment

Claim. Despite this favorable result, the

povernment officials filed a petition for a writ of

certioran and have asked this Court to review the

Ninth Circuit’s summary judgment analysis.

Kespondent did not appeal

1. Does this Court have jurisdiction to

determine petitioners’ appeal, and, ifse, should it

exercise that jurisdiction?

2. Does a two-hour custodial interrogation

of a nine year old girl without a warrant, probable

cause, or the consent of either parent violate the

Fourth Amendment of the US. Constitution as

incorporated through the Fourteenth?

TABLE OF CONTENTS

QUESTIONS PRESENTED .. 2.0... 026 c eens i

pf OR YE ae og 4: roe i

TABLE OF CITED AUTHORITIES 2. ......... v

INTEREST OF AMICUS CURIAE ........... |

SUMMARY Gf ARGUMENT ................ l

PR toe is te ei ee ws ee See ok ee 4

I. THIS COURT LACKS

JURISDICTION TO KEVIFEW PILE

FOURTH AMENDMENT

CONCLUSIONS OF Tittt NINTH

CIRCUITS OPINION; EVEN IF TP

HAD SUCH JURISDICTION, IT

SHOULD DECLINE TO EXERCISE

HT A AAS org rer eee Ae

A This Court Reviews

ND fn seca oe a ee 6

I; The “Equivalence” Argument

ts. rae 1]

( There Is No Case Or

a eee 14

1).

Prudential Reasons Militate In

Kavor Of Declining ‘To Address

Fourth Amendment Issues . 20

THE COURT BELOW DID NOT ERK

IN REFUSING ‘TO GRANT

PETITIONERS’ MOTION FOR

SUMMARY JUDGMENT SOLELY

ON FOURTHIL AMENDMENT

ft, a eee eae 23

A.

13.

Seizures For More ‘Than A Few

Minutes In Length Generally

Require Probable Cause ... 23

Petitioners’ Criteria Lack Both

Coherence And A Fourth

Amendment Pedigree 2.2... 30

| year arr sea arer ne 30

2 Child Abuse

Investipations ...... 3I

a. Witnesses And

i. er reee 32

4. School Context ...... 34

Other Factors Militate In Favor

Of Strict Adherence To Fourth

Amendment Standards .... 37

CONCLUSION

1. Children Cannot Consent

As Adults Do

_ + Family Rights

iV

prelevece las 37

ei teck rere ee

TABLE OF CIPED AUTHORITIES

(Clases

Almeida Sanchez v. United States, 413 U.S.

CURD» 6 550 aces akinesia 20, 32

Arizonans For Official English v. Artzona,

eee CP 2S. SO CEED ice cuccees cave 15, 16

Atwater v. City of Lago Vista, 532 U.S. 318

GLE » co o.0 « €.5 3.) cb ore tole ere 24, 29, 30

Baker v. Carr, 369 US. 186 (1962) 22222... 18

Bender v. Willtamsport Area School Dist.,

BIG UF. BS CRBS i vate wc tcc aes 15, 18

California v. Acevedo, 500 US. 565 (1991) 2... 27

California v. Rooney, 483 U.S. 307 (1987) 2... 7,8

Camara v. Municipal Court, 387 US. 5238 (1967)

Camreta vo. Greene, 588 F.3d 1011 (9" Cir.

- eee age tahoe Patel Ay Hy 1 7. 6, 20, 22, 23

Carroll v. United States, 267 US. 132 (1925) .. 30

Chathas v. Local 134 IBEW, 233 ¥.3d 508

STP << Cw a sag ba viele 415-684 Bee we 6 6

Cutizens for Better Forestry v. U.S. Dep't of

Agriculture, 567 F.3d 1128 (9" Cir.

ee ee ee eh We ee ee se ee 14

Commonwealth v. Colon, 726 N.K.2d 909

i SN oR A es ee a 37

Davis v. Mississippi, 392 U.S. 721 (1969). - 26, 33

Deposit Guaranty Natl Bank v. Roper, 445

ee ee. wn oes ore a . 15, 16

Diamond v. Charles, 476 U.S. 54 (1986) 15, 17, 18

Dickerson v. United States, 538 U.S. 1045

sg gle A Pe a 19

Dunaway v. New York, 442 U.S. 200, 210

Re: Ea Pe enema ae a 24, 33

Electrical Fittings Corp. vo. Thomas & Betts

Co., M7 UB. 243 (3808) ......... 10

Fare vo Michael C., 442 U.S. 707 (A979)... , oo

Fed'l Communications Comm'n v. Pacifica

Foundation, 438 U.S. 726 (A978) 22. 5, 28

Ferguson v. City of Charleston, 532. US. 67

Sty LE NE A Ss 5-2 ee

Vi

Fisher v. Untversity of Texas at Austin, 645

I Supp. 2d 587 (W.D. ‘Pex. 2009),

affd, 2011 WL 135813 (5" Cir. dan.

DE kk 6 oka 5 Oe oc PRB eK Se ot bh re 10

Florida v. Royer, A460 US. 491 (1983) 2... 25, 37

Gallegos v. Colorado, 370 US. 49 (1962) 200... 38

Hayley v. Ohio, 332 U.S. 596 (1948) .......... 38

Hewitt v. Helms, 482. U.S. 755 (1987) 22... 11-14

Hopwood v. Texas, 78 F.3d 9382 (5" Cir.),

cert. dented, 518 U.S. 10383 (1996) .... 8, 10

Illinois v. Lidster, 540 US. 419 (2004) . 28, 33, 34

INS ov. Delgado, 466 U.S. 210 (1984) 2.2.22... 85

O'Connor v. Ortega, 480 US. 709 (1987) 2002 2. 86

Oliver v. United States, 466 U.S. 170 (1984) 2... 29

Pacific Bell Tel. Co. v. LinkLine

Communications, Inc., 29S. Ct. blog

i... aan ae A ee .. 1

Pierson v. Ray, 386 US. 547 (1967) 2... 31

Safford Unified School District #1 v

Redding, 129 8S. Ct. 2633 (2009)... 2.2... 39

Shaffer v. Carter, 252 U.S. 37 (1920) ......... 16

State v. Hoyle, 194 P. 976 (Wa. 1921) ........ 38

Steel Co. v. Citizens for a Better

Envtronment, 523 US. 838 (1998) 2.0... 19

Summe v. Kenton County Clerk's Office, 604

eee ee Os I oe os Ss Se ses G

terry v. Ohio, 302 U.S. 1 (1968) |... ee es 24

Texas v. Hopwood, 518 US. 1033 (1996) 2... 8,9

Troxel v. Granville, 530 US. 57 (2000) . 2. . 39, 40

United States v. Brignont Ponce, 422 US

ee E's 5 tad O56 oh HN de ee hoe. 850 26

United States v. Martinez Fuerte, 428 U.S.

Ss on ea ac ob le bee hw 6 baw uw 25

United States v. Mendenhall, 446 U.S. 544

ot) Tiare Peas ene eet ee a Oe ae

United States v. Montoya De Hernandez, A738 US

oo) ) as Gime Chae hd ia 2s?

United States v. Place, 462 US. 696 (1983) 2.) 25,

) #6

28, 32

United States v. Watson, 423 US. 411 (1976)

ag a te ee 6 a et . o.oo

Vill

Vernonta School Dist. 47d v. Acton, 515 ULS.

Ry I a no oe ee er 36

Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000)

Sys f'n GCOS Wire Ae We © oe eae Saree eo te tanans 40

Wilson v. Arkansas, 514 U.S. 927 (1995) .. 2... 41

Constitutional and Statutory Provisions

Le: Se Oh ese eis eee 1, passim.

Fe MO RE oss Vow eos 6 are -¢ @. ae

me, Ce... BOE TEE ook en cs oc BR Oe, Be Be

EN GR Re era er or ee er 34

CN I. oy 5-6 eo 5 eos bl ene ere 11

Sree a GE coves ) eae ph a-ale ba we oe eo 11

Other

Brief for the United States As Amicus

Supporting Petitioners, Zexas v

Hopwood, 518 U.S. 1033 (1996) (No

IES oh ia wis kate aes oe ee ee eee |

IX

Bricf for United States as Amicus Curiae

Supporting Petitioners, Hewitt v.

Flelms, 482 U.S. 755 (1987) (No. 85

ene ii Se Be Aon ryan fi So at 12

Hlorace L. Wilgus, Arrest Without A

Warrant, 22 U. Mich. L. Rev. 541

SE We eg tat thas eee. ore Ne da te

INTEREST OF AMICUS CURIAE'

The Center for Individual Rights (“CIR”) is a

public interest law firm based in Washington, DC

It has litigated constitutional issues in the federal

courts and has a special interest in the rights of

families.

Here, petitioners and their amici have

asserted that this Court should create a new

exception to the general probable cause

requirement of the Fourth Amendment for

investigations related to intrafamily child abuse.

Because this argument would diminish

substantially the protections provided by both the

Fourth Amendment and the liberty interest in

family and parental rights, CIR submits this

amcus brief

SUMMARY OF ARGUMENT

The court below affirmed a judgment

dismissing the two individual petitioners. Since

this Court reviews judgments, and not opinions,

those two individuals cannot appeal that favorable

judgment. ‘The tact that the court below said

The parties have consented to the tiling of this bret

No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

mtended to fund the preparation of this brief No person

other than aricus curiae, its members, or its counsel made

a monetary contribution to its preparation or submission

things that petitioners did not like — crz., that they

violated the US. Constitution ~— does not change

that tact. Had the court below skipped the part of

the analysts in which it found that petitioners

violated the Constitution, petitioners would not

have prevailed in the case more than they have

In another way, too, an appeal here is

burdened by the absence of a party who truly has

something at stake in the controversy. The Ninth

Circuit did not issue any declaratory or injunctive

rehef and, even if it had, petitioners do not

contend that they personally wish to engage in the

conduct in question in the future. (Indeed. they do

not even state that they are still employed in

positions that weuld allow them to do so.) Having

tailed to appeal, respondent, in turn, cannot win

any damages against petitioners, not even nominal

damages, and her loss in the lower court precludes

any claim for attorneys’ fees against the

petitioners. An affirmance ot the Ninth Circuit's

analysis of the constitutionality of petitioners’

conduct would provide her with only a moral

victory.

As tothe Pourth Amendment analysis itself,

should the Court choose to reach it, the Ninth

Circuit was eorreet. This Court has repeatedly

stated that the Fourth Amendment

“reasonableness requirement is generally

tuntamount to a requirement ot “probable cause.”

lt has identified only a few exceptions, and, with

respect to seizures of the person outside of border

searches by customs officials, only one: a brief,

fleeting, seizure of a person is subject to a

balancing test weighing the state’s and seized

persons’ respective interests. This Court has

primarily applied this balancing test for fleeting

personal seizures in one context, viz., car stops.

Ferguson v. City of Charleston, 532 U.S. 67, 83

n.21 (2001) (noting that “the handful of seizure

cases in which we have applied a balancing test to

determine Fourth Amendment reasonableness .. .

involved roadblock seizures”). It has never applied

it to anything even remotely approaching a two-

hour interrogation of a nine-year old child in her

school, regardless of the reason. To the contrary,

this Court has rejected soundly any departure

from the “probable cause” standard in anything

analogous to the facts here.

Thus, petitioners and their amici, in a case

in Which no party has any substantial stake riding

on the outcome, ask this Court to create a brand

new, and quite broad, exception to the general

“probable cause” requirement of the Fourth

Amendment. ‘They provide no justification for that

new exception. Crime is frequently difficult to

solve, and the Fourth Amendment is often an

impediment to solving crime. Nothing about child

or intrafamily abuse 1s particularly unique in that

regard, and nothing about it suggests we should

disregard the standard tradeoff between

individual liberty and societal needs reflected in

the probable cause requirement.

To the contrary. The fact that the seized

person here was a nine-year old girl requires, as a

matter of constitutional law, more vigilance about

protecting individual liberty from state abuse.

Children’s “consent” to being seized would be

questionable under any circumstances, much less

the circumstances here, and they have a basic

fundamental right to the advice and direction of

their parents. By seizing this child without

parental consent or judicial oversight, petitioners

violated that basic right, and as a result, the life of

a family was disrupted.

In short, petitioners ask for the wrong result

in the wrong case.

ARGUMENT

Petitioners lack standing to raise the Fourth

Amendment issue here and, even if they had

standing, it would be a poor exercise of this Court's

discretionary jurisdiction to address that issue.

Further, the question of whether petitioners were

entitled to summary judgment even given the

respondent’s evidence is controlled by this Court’s

precedents.

. THIS COURT LACKS JURISDICTION TO

REVIEW THE FOURTH AMENDMENT

CONCLUSIONS OF THE NINTH

CIRCUIT'S OPINION; EVEN IF IT HAD

SUCH JURISDICTION, IT SHOULD

DECLINE TO EXERCISE [T

IL is a fundamental precept that this Court

(and other federal appellate courts) reviews

judgments, and not statements in opinions. Fed7

Communications Comm’n v. Pacifica Foundation,

438 U.S. 726, 734 (1978). The rule has “special

force when the statements ratse constitutional

issues.” /d. Whether application of that rule is

jurisdictional in all instances, its application here

is. And even if it were not, there are a number of

prudential reasons for this Court to decline to

review the Ninth Circuit’s opinion. That court

said only that petitioners were not entitled to

summary judgment solely on the ground that

undisputed facts demonstrated that they did not

violate S.G.’s constitutional rights.

Not only is that issue not worth reviewing at

this time, petitioners and their amici do not want

this Court to review it. Rather, they want this

Court to ignore the actual length and nature of the

seizure and interrogation, and opine about

hypothetical seizures and interrogations not

involved in this case.

That being said, the petitioners had it

within their power to fix many of these

jurisdictional and prudential problems. They

could have waived their qualified immunity

defense in the district court. See Summe v. Kenton

County Clerk’s Office, 604 F.3d 257, 269-70 (6

Cir. 2010) (holding that defendant who raised

qualified immunity defense in his answer, but

omitted any discussion of it in his summary

judgment papers, waived qualified immunity). Cf.

Camreta Br. 43 n.6 (noting indemnification

provisions of Oregon law). Defendants chose the

safety of qualified immunity over the greater

justiciability that would have come with waiving

that defense. They should be held to that decision.

A. This Court Reviews Judgments

The court below stated that “with respect to

S.G.'s Fourth Amendment claims,” it “affirm|ed|]

the district court’s grant of summary judgment on

thle] basis” of qualified immunity. Camreta v.

Greene, 588 F.3d 1011, 1037 (9 Cir. 2009). As a

general matter, “[a] winning party cannot appeal

merely because the court that gave him his victory

did not say things that he would have liked to hear

. dudgments are appealable; opinions are not.”

Chathas v. Local 134 IBEW, 233 F.3d 508, 512

(7th Cir. 2000). As tacit acknowledgment of this

rule, petitioners’ and the United States’s

conclusions seek to have the judgment reversed or

vacated. E.g., Alford Br. 64; Brief for the United

States As Amicus Supporting Petitioners (“U.S.

Br.”) 34. But cf. U.S. Br. 17 (suggesting “vacatur

of the adverse portion of the lower-court decision”).

-G-

Petitioners do not explain why they need to have a

judgment that favored them reversed or vacated.

The rule that this Court does not review

statements in opinions has been applied by this

Court in similar circumstances. In California v.

Rooney, 483 U.S. 307 (1987), police had searched

the communal trash bin of the apartment building

in which Rooney lived and had discovered evidence

of illegal gambling. The police subsequently

obtained a search warrant of Rooney’s apartment

based upon the fruits of that trash search and

other pieces of evidence. Rooney, 483 U.S. at 309.

Rooney sought to suppress the fruits of the

apartment search on the ground that the trash

search was illegal and that there was insufficient

other evidence to support probable cause. The

California Court of Appeal stated that the trash

search was, in fact, illegal, but that the other

evidence supporting the warrant was sufficient.

Id. at 310. The State sought review in this Court

of the ruling that the trash search was illegal.

This Court, noting the rule that it reviews

judgments, and not opinions, dismissed the writ as

improvidently granted, holding:

The fact that the Court of Appeal

reached its decision through analysis

different than this Court might have

used does not make it appropriate for

this Court to rewrite the California

court’s decision, or for the prevailing

party to request us to review it. That

the Court of Appeal even addressed

the trash bin issue is mere fortuity; it

could as easily have held that since

there was sufficient evidence to

support the [apartment] search even

without the trash evidence, it would

not discuss the constitutionality of the

trash search. The Court of Appeal’s

use of analysis that may have been

adverse to the State’s long-term

interests does not allow the State to

claim status as a losing party for

purpose of this Court’s review.

Id. at 311 (emphasis added).

Similarly, in Texas v. Hopwood, 518 U.S.

1033 (1996), the district court had held that the

system of admission to the University of Texas

Law School in 1992 discriminated on the basis of

race in violation of the Equal Protection Clause of

the Fourteenth Amendment because it was not

narrowly-tailored to meet a compelling

government interest. Hopwood v. Texas, 78 F.3d

932, 939 (5" Cir.), cert. denied, 518 U.S. 1033

(1996). Plaintiffs appealed from that judgment,

but defendants did not. The Fifth Circuit Court of

Appeals went further and held that educational

diversity was not a compelling governmental

interest sufficient to justify the consideration of

race in the admissions process. /d. at 944.

The defendants sought to have this Court

review the Fifth Circuit’s rationale, and

particularly its conclusion that diversity was not a

compelling governmental interest. The United

States filed an amicus brief to support defendants,

arguing that, although the Fifth Circuit had

affirmed the district court’s denial of injunctive

relief, “the court’s opinion effectively amounts to

such an injunction.” Brief for the United States As

Amicus Supporting Petitioners at 11, Texas v.

Hopwood, 518 U.S. 1033 (1996) (No. 95-1773)

(available at

http://www .justice.gov/osg/briefs/1995/w951773w.

txt). Compare U.S. Br.13 (“A court of appeals’

constitutional determination in a case like this

thus has an effect similar to an injunction or a

declaratory judgment against the government as a

whole”).

This Court denied the petition. Justice

Ginsburg wrote an opinion (joined by Justice

Souter) with respect to that denial, agreeing that

the question involved was one “of great national

importance,” but reiterating that this Court

reviews judgments, not opinions; that petitioners

were improperly “challengling] the rationale relied

on by the Court of Appeals”; and that the Court

needed to await a “final judgment on a program

genuinely in controversy before addressing the

important issue raised in this petition.” Texas v.

Hopwood, 518 U.S. 1033 (1996) (opinion of

Ginsburg, J.) (emphasis in original).

9-

‘To be sure, the Fifth Circuit’s opinion in

Hopwood caused substantial shifts in the

admissions systems of universities under its

jurisdiction. See Fisher v. University of Texas at

Austin, 645 F. Supp. 2d 587, 591-93 (W.D. Tex.

2009) (describing history of University of Texas

admissions before and after Hopwood), aff'd, 2011

WL 135813 (5" Cir. Jan. 18, 2011). But that alone

was insufficient for this Court to accept review.

The United States cites Electrical Fittings

Corp. v. Thomas & Betts Co., 307 U.S. 241 (1939)

to support its contention that this Court has

jurisdiction to hear petitioners’ appeal. U.S. Br.

15-17. In that patent infringement case, the

District Court ruled that a patent was valid but

had not been infringed. Both rulings were set

forth in the district court’s decree, and the

defendant appealed the part of the judgment that

held the patent valid. This Court held that,

although “|a] party may not appeal from a

judgment... for the purpose of obtaining a review

of findings he deems erroneous which are not

necessary to support the decree, . . . here the decree

itself purports to adjudge the validity of [the

patent].” Electrical Fittings. 307 U.S. at 242

(emphasis added). This Court held only that the

defendant had standing to seek reformation of the

decree. Id. Thus, Electrical Fittings hardly

undermines the rule that only judgments, and not

opinions, are appealable. To the contrary, it

confirms that rule.

-10-

The United States also points out that the

statutes authorizing this Court’s appellate

jurisdiction do not specify who may invoke that

jurisdiction. U.S. Br. 15. Of course, the same can

be said of the statutes that provide courts of

appeals with jurisdiction over orders and

judgments of district courts. 28 U.S.C. §§ 1291,

1292. But even if appeals from non-aggrieved

parties were statutorily permissible, Article II]

provides a separate limitation applicable here.

Similarly, even if the historic practice of reviewing

judgments, and not statements in opinions was not

grounded in Article Ill in every instance, it is a

practice that frequently conflates with Article III

concerns. As it does here.

B. ‘The “Equivalence” Argument And Hewitt

The United States argues that the opinion of

the Ninth Circuit in this case is the same as a

declaratory judgment or an injunction and, thus,

should be appealable. U.S. Br. 13 (‘an effect

similar to an injunction or a declaratory judgment

against the government as a whole”). It makes no

mention of Hewitt v. Helms, 482 U.S. 755 (1987), a

case that addressed the “equivalence” of an opinion

to a judgment in a somewhat different context.

In Hewitt, it was the plaintiff-prisoner who

made the contention the United States makes

here, as part of an argument that he was entitled

to attorneys’ fees. The Third Circuit had held that

his rights had been violated when a misconduct

1 1-

hearing in prison relied solely on hearsay to find

him guilty of the alleged misconduct. It had also

summarily affirmed a later district court judgment

granting defendants summary judgment on

qualified immunity grounds and concluded that

plaintiff was nonetheless entitled to attorneys’ fees

because its earlier constitutional ruling had the

effect of a declaratory judgment. Hewitt v. Helms,

482 U.S. at 758-59.

The United States filed a brief as amicus

supporting the defendants in that case. See Brief

for United States as Amicus Curiae Supporting

Petitioners, Hewitt v. Helms, 482 U.S. 755 (1987)

(No. 85-1630) (available at

http://www.justice pov/osg/briefs/1986/s¢86044 1.

txt). It emphasized that the Third Circuit's

decision finding a violation of the plaintiff-

prisoner's constitutional right “did not hold that

|prisoner]| was entitled to a declaratory judgment”

and “did not direct the district court to address”

such claims on remand; and that the prisoner had

not renewed any request for declaratory or

injunctive relief in the district court. Jd. It

emphasized that the suit was not a class action,

and that the lower courts would have had no

authority to grant class-wide relief. /d.

This Court reversed the Third Circuit. It

rejected the possibility that the previous

constitutional ruling was tantamount to a

declaratory judgment. First, as the United States

had argued, this Court found that the prisoner had

-12-

not sought declaratory or other non-monetary

relief in the district court. /fewitt, 482 U.S. at 760.

Second, the Third Circuit’s statements did not

affect defendants’ actions towards the prisoner,

aod “a judicial statement that does not affect the

relationship between the plaintiff and the

defendant is not an equivalent [of a judicial

judgment].” Jd. at 761 (emphasis in original).

“The only ‘relief [the prisoner] received was the

moral satisfaction of knowing that a federal court

had concluded that his rights had been violated.”

Id. at 762.

The Court further noted:

(I’|Jhere is a very practical objection to

equating statements of law (even legal

holdings en route to a final judgment

for the defendant) with declaratory

judgments: The equation deprives the

defendant of valid defenses to a

declaratory judgment to which he is

entitled. ... [Had plaintiff sought a

declaratory judgment,] |t|he

defendants would then have had the

opportunity to contest its entry not

only on the ground that the case was

moot but also on equitable grounds.

The fact that a court can enter a

declaratory judgment does not mean

that it should.

Id. (emphasis in original).

13

Finally, and perhaps most importantly, the

Court emphasized that considerations relevant to

whether to enter a declaratory judgment “may not

enter into the decision whether to include

statements of law in opinions — or if they do, the

court’s decision is not appealable in the same

manner as its entry of a declaratory judgment.” Id.

at 763 (emphasis added). Cf. Citizens for Better

Forestry v. U.S. Dep’t of Agriculture, 567 F.3d 1128

(9 Cir. 2009) (reversing district court’s

determination that a prior panel’s holding was the

functional equivalent of a declaratory judgment

entitling plaintiff to attorneys’ fees).

Thus, this Court’s treatment of the Third

Circuit opinion in /fewitt demonstrates the

distinction between statements in an opinion and a

declaratory judgment. Having determined that

such statements are not judgments for attorneys’

fee purposes, this Court should hold the same

thing for purposes of appealability.

C. There Is No Case Or Controversy

Because petitioners were successful in both

the District Court and the Ninth Circuit in

dismissing plaintiffs claims for damages, there is

no “case or controversy” sufficient under Article If]

of the United States Constitution. This is so

because (1) petitioners have no standing to appeal

and (2) respondent did not seek review of the

Ninth Circuit’s dismissal of her damages claims.

-14-

While this Court’s “standing” cases

primarily revolve around whether the plaintiff who

initiates the lawsuit has standing under both

Article III (pursuant to the familiar three

requirements of injury, causation, and

redressability) and various prudential

considerations, this Court also has made clear that

those who invoke an appellate court’s jurisdiction

must have similar (albeit not identical) interests.

E.g., Arizonans For Official English v. Arizona,

520 U.S. 43, 64 (1997) (“The standing Article III

requires must be met by persons seeking appellate

review, just as it must be met by persons

appearing in courts of first instance”); Diamond v.

Charles, 476 U.S. 54 (1986) (holding that

pediatrician did not have standing to appeal

circuit court’s judgment enjoining certain parts of

Illinois’s abortion law); Bender v. Williamsport

Area School Dist., 475 U.S. 534 (1985) (holding

that school board member had not had standing to

appeal district court’s judgment declaring that

school district could not preclude student group

from meeting).”

’ Prior to the decisions tn Bender, Diamond, and

Arizonans, this Court said that the rule precluding parties

not aggrieved from a judgment from appealing is “one of

federal appellate practice . .. derived from the statutes

franting appellate jurisdiction and the historic practices of

the appellate courts; it does not have its source in the

jurisdictional limitations of Art. III.” Deposit Guaranty

Nat'l Bank v. Roper, 445 U.S. 326 (1980). This statement in

Roper seems to be in some tension with the later-decided

(continued...)

A plaintifi commencing a lawsuit must be

aggrieved (have suffered or will suffer an injury)

by a defendant’s actual or imminent actions,

whereas an appellant must be aggrieved by the

judgment being appealed. E.g., Arizonans For

Official English, 520 U.S. at 66 (expressing doubt

as to whether organization that had sponsored

state initiative had standing to appeal from a

judgment declaring the initiative unconstitutional;

“The requisite concrete injury to [sponsor’s]

members is not apparent. As nonparties in the

District Court, [sponsor’s] members were not

bound by the judgment for [plaintiff]”). When the

injury from the judgment is “not apparent,” the

appellant should make that demonstration to the

appellate court. Petitioners have not met that

burden.

The Ninth Circuit’s judgment as to

respondent’s Fourth Amendment claim did not

harm petitioners. The Ninth Circuit affirmed the

district court’s dismissal of that claim on qualified

immunity grounds.

“(continued )

cases all holding that appellants must have separate and

distinct Article III standing. In any event, the statement in

Roper is dicta. The appellants there were most certainly

aggrieved by an interlocutory order (denying their motion

for class certification), id. at 329, and that interlocutory

order was merged into the final judgment from which they

appealed. Shaffer v. Carter, 252 U.S. 37, 44 (1920). The

petitioners in Roper were hardly appealing from statements

in an opinion.

-16-

Even ifthe Ninth Circuit’s opinion (contrary

to precedent) could be deemed a declaratory

judgment, petitioners have not shown how they

would be harmed by such a judgment. Petitioners

provide no statement (much less evidence) of what

their current positions are and whether the lower

court’s opinion would affect the manner in which

they carried out their current or future duties. Cf.

U.S. Br. 19 (conceding 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

again engage in the practice that has been ruled

unconstitutional”).

Nor are the interests of the State of Oregon

or Deschutes County adequate to substitute for the

interest of an actual appellant. Those entities are

not partics, petitioners’ efforts to pretend

otherwise notwithstanding. #L.g., Camreta Brief 41

(“The State recognizes ... that because the Ninth

Circuit ruled that petitioner is entitled to qualified

immunity, the State received a favorable

judgment. The State also recognized in its petition

for certiorari .. .”); id. at 43-44. Petitioners cannot

invoke the interests of those entities to remedy

their own lack of appellate standing. E_y.,

Diamond, 476 U.S. at 62-63 (holding that State of

Illinois’s status as a party in the Supreme Court,

and its letter to the Court stating that its interests

were the same as the appellant-pediatrician, were

insufficient to provide appellate standing to

pediatrician seeking to defend Illinois’s abortion

17-

law); Bender, 475 U.S. at 544 (holding that

petitioner’s “status as a School Board member

does not permit him to ‘step into the shoes of the

Board’ and invoke its right to appeal”). And, if

those entities wanted to preserve the ability to

appeal any adverse resolution of the underlying

constitutional issue, they could have instructed

petitioners to waive their qualified immunity to

damages. Camreta Br. 43 n.6 (noting

indemnification provisions of Oregon law).

Just as importantly, respondent lacks any

interest in defending the Ninth Circuit opinion.

Respondent will get nothing from this appeal

regardless of what this Court rules on the Fourth

Amendment issue. If it reached the substance,

then, this Court would be deciding an important

constitutional issue without the “concrete

adverseness which sharpens the presentation of

issues upon which the [Clourt so largely depends

for illumination of difficult constitutional issues.”

Diamond, 476 U.S. at 62 (quoting Baker v. Carr,

369 U.S. 186, 204 (1962)).

‘The United States glosses over this problem

by asserting that “this Court has throughout its

history heard and decided numerous cases in

which the non-appealing party had little or no

interest in defending the lower court’s judgment.”

U.S. Br. 18. We disagree. Such a practice would

make a mockery of the “concrete adverseness” that

this Court has traditionally sought as part of the

Article III “case or controversy” requirement. In

the one actual holding that the United States cites

for this proposition, this Court actually found

ambiguity in the respondent’s position, and

concluded that that ambiguity left an ongoing

dispute about the propriety of the lower court’s

judgment. Pacific Bell Tel. Co. v. LinkLine

Communications, Inc., 129 S. Ct. 1109, 1117

(2009).

The United States also suggests that cases

in which this Court has appointed counsel to argue

positions demonstrate that a non-appealing party’s

lack of interest in the outcome is not an obstacle to

Article III jurisdiction. U.S. Br. 18. Of course, the

Court’s practice of appointing counsel, without any

consideration of its implications under Article III,

is not precedent on any jurisdictional issue. Steel

Co. v. Citizens for a Better Environment, 523 U.S.

83, 91 (1998) (“drive-by jurisdictional rulings .. .

have no precedential effect”). In any event, it is

frequently the United States that has had counsel

appointed to argue its interests. It is inaccurate to

say that the United States lacks an interest in

those cases; rather, those are cases in which the

official attorneys for the United States have

declined, for whatever reason, to make the

argument that is in its interests. Dickerson v.

United States, 538 U.S. 1045 (1999) (inviting

amicus counsel to argue that a United States

statute was constitutional). Moreover, the United

States is the respondent in those cases; even where

it confesses error and agrees with the petitioner as

to the impropriety of the yuadgment of the court

-19

below, a case or controversy still exists because

this Court must do something to alter that

judgment.

Here, of course, it is the respondent herself,

not her representatives, that lacks an interest in

the outcome of the case. Further, no one is asking

this Court to do anything to the Ninth Circuit’s

judgment dismissing respondent’s Fourth

Amendment claim.

LD. Prudential Reasons Militate In Favor

Of Declining To Address Fourth

Amendment Issues

Finally, even if this Court had jurisdiction

over this appeal, it should decline to address the

Fourth Amendment issues, particularly the ones

petitioners would like it to.

The Ninth Circuit did not hold (contrary to

the United States’s misrepresentation) that “the

interview of S.G.... violate[d] the Fourth

Amendment.” U.S. Br. 6. Rather, it held that

petitioners were not entitled to summary judgment

solely on the ground that the facts, with all factual

disputes and inferences from undisputed facts

being resolved in respondents’ favor, demonstrated

that petitioners complied with the Fourth

Amendment. Camreta v. Greene, 588 F.3d 1011,

1017 n.1, 1021 (9" Cir. 2009). Thus, at least

insofar as the Fourth Amendment discussion ts

concerned, this case is now in an interlocutory

20-

posture. Indeed, if this Court truly had

jurisdiction because there were a live case or

controversy, then an affirmance of the Ninth

Circuit’s ruling on the denial of summary

judgment should lead to a trial in the district court

on the question of whether petitioners did violate

the Fourth Amendment — although there would be

no point to it at all and nothing would turn on the

outcome. US. Br. 8 (asserting that this Court

should “remand for further proceedings”).

What is even more remarkable, and which

provides even more reason for this Court to decline

deciding any constitutional issues, is that

petitioners (and the United States) do not want this

Court to resolve whether petitioners were entitled to

summary judgment.

Thus, Camreta asserts that “this Court...

need not address the reasonableness of the scope of

the interview” he conducted. Camreta Br. 38.

Indeed, he concedes that this is a complex issue

that “ultimately depends on the resolution of

heavily disputed facts by the trier of fact.” Id. at

39. The United States makes a similar plea for

judicial avoidance. U.S. Br. 32 (“This Court need

not decide in the first instance whether the

interview in this case was conducted in a

reasonable manner’).

As for Alford, he simply ignores the

summary judgment posture altogether and asks

this Court to do the same. Compare Alford Br. 55

-2)}-

(“Nothing in this record demonstrates that

petitioner or Camreta used coercive or

intimidating tactics in asking S.G. questions”)

(emphasis added) with J.A. 71 (4 9) (S.G. testifying

that Camreta would not accept her answers that

her father had not touched her improperly and

“kept asking me the same questions, just in

different ways, trying to get me to change my

answers”). See also Alford Br. 9-10 (reciting

Camreta’s version of events).

Petitioners and the United States want this

Court to determine whether every interrogation of

a child abuse victim in school requires a warrant

or probable cause. But the Ninth Circuit never

held that every police interrogation in school

requires a warrant or probable cause (nor did

respondent ever so argue). The question of

whether a non-threatening, five- or ten-minute

police interrogation of a possible abuse victim in

school based solely on reasonable suspicion would

violate the Fourth Amendment simply was not

before that court — just as it is not before this

Court. Indeed, it is clear that the length of

petitioners’ interrogation was quite an important

element in the court below’s analysis. Camreta,

588 F.3d at 1017 n.1; id. at 1023 (“Defendants urge

us to conclude, in other words, that while seizing

S.G. and interviewing her at home for two hours

would have been unreasonable absent probable

cause and a warrant or exigent circumstances, it

was reasonable to do a similarly lengthy

interrogation in the same way at 8.G.'s school. We

-22

decline to adopt this distinction.”) (emphasis

added); id. at 1032 (“(T]he justification in the

record for a seizure lasting two hours is weak”); id.

(“It is far from clear that it was reasonable for

Camreta and Alford to continue to detain S.G. for

an entire hour during which she continually

denied such abuse.”). See F.C.C. v. Pacifica, 438

U.S. at 734 (noting that FCC order finding that

George Carlin monologue was indecent was

“carefully confined to the monologue ‘as broadcast”

and holding that the Court would not review

general statements in the Commission’s order).

Petitioners provide no reason why this Court

should bother to answer a hypothetical question

about interrogations in general, particularly one

that the court below did not address. For this

reason as well, this Court should decline to decide

the issues petitioners ask it to.

1}. THE COURT BELOW DID NOT ERR IN

REFUSING TO GRANT PETITIONERS’

MOTION FOR SUMMARY JUDGMENT

SOLELY ON FOURTH AMENDMENT

GROUNDS

A. Seizures For More Than A Few Minutes In

This Court’s precedents regarding the

validity of seizures under the Fourth Amendment

have developed a two-tiered approach. Virtually

all seizures have traditionally required probable

-23-

cause. For very short seizures, involving an

intrusion far less severe than the norm, the Court

has used a balancing test first adopted in Terry v.

Ohio, 392 U.S. 1 (1968), in which a reasonable

suspicion that a short seizure was appropriate

might be sufficient where there was a sufficient

governmental interest for the seizure and the

manner in which the seizure was carried out was

not overly intrusive. But “because Terry involved

an exception to the general rule requiring probable

cause, this Court has been careful to maintain its

narrow scope.” Dunaway v. New York, 442 U.S.

200, 210 (1979). (Alford falsely attributes a quote

about “balancing” governmental and individual

interests to Dunaway. Alford Br. 13.)

Thus, while it is true that “reasonableness”

is the touchstone of the Fourth Amendment’s text,

“t]he standard of probable cause thus represents]

the accumulated wisdom of precedent and

experience as to the minimum justification

necessary to make the kind of intrusion involved in

an arrest ‘reasonable’ under the Fourth

Amendment.” Dunaway, 442 U.S. at 208. Itis a

“standard applied to all arrests, without the need

to ‘balance’ the interests and circumstances

involved in particular situations.” /d. See also

Atwater v. City of Lago Vista, 532 U.S. 318, 354

(2001) (confirming that standard). (Alford’s

contention that Atwater did not “impose... a

requirement ... of probable cause” for arrests,

Alford Br. 22, is thus stunningly inaccurate and

disingenuous.) The court below did no more than

24

apply that rule to petitioners’ motion for summary

judgment (while resolving factual issues in

respondent's favor).

In fact, outside of the sud generis context of a

customs stop of suspected drug smugglers — United

States v. Montoya De Hernandez, 473 U.S. 531, 538

(1985) (“the Fourth Amendment’s balance of

reasonableness is qualitatively different at the

international border than in the interior”);

Almeida-Sanchez v. United States, 413 U.S. 266,

274 (1973) (noting Court’s historical distinction

between “searches at the border and in the

interior”) — this Court has never applied anything

less than probable cause to any seizure regarding

law enforcement more than 30 minutes long. £.g.,

Florida v. Royer, 460 U.S. 491, 502-03 (1983)

(holding that airline passenger had been seized in

violation of the Fourth Amendment when

detectives, after initial questioning in a public

area, asked him to go back to a small room where

he was questioned further; Terry “did not justify

the restraint to which [passenger] was then

subjected”); United States v. Place, 462 U.S. 696,

709 (1983) (equating seizure of an airline

passenger's luggage with seizure of his person, and

holding that, where it took 90 minutes for the

police to bring the luggage to drug-sniffing dogs,

the seizure exceeded the scope of a Terry stop and

had to be justified by probable cause; “The length

of the detention of respondent’s luggage alone

precludes the conclusion that the seizure was

reasonable in the absence of probable cause. .

('I'|Jhe brevity of the invasion of the individual’s

Fourth Amendment interests is an important

factor in determining whether the seizure is so

minimally intrusive as to be justifiable on

reasonable suspicion”); United States v. Brignont-

Ponce, 422 U.S. 873, 881-82 (1975) (holding that

border patrol may stop cars based solely on

reasonable suspicion that cars may contain aliens

who are in the country illegally “because of the

importance of the governmental interest at stake,

the minimal intrusion of a brief stop, and the

absence of practical alternatives for policing the

border .... The officer may question the driver

and passengers about their citizenship and

immigration status and he may ask them to

explain suspicious circumstances, but any further

detention or search must be based on consent or

probable cause”); Davis v. Mississippt, 392 US.

721, 722, 728 (1969) (bringing a 14-year old boy in

to police headquarters for “fingerprintling] and

routine question|ing|” violated Fourth

Amendment).

Of course, “probable cause” can mean

somewhat different things in different contexts.

Camara v. Municipal Court, 387 U.S. 523, 538

(1967). Here, “probable cause” to seize a nine-year

old girl means probable cause to believe (1) that a

crime has been committed and (2) that the child is

a victim or witness to that crime. Petitioners do

not contend that they had such probable cause.

Alford Br. 46-48 (arguing that probable cause

requirement would be counterproductive).

The law surrounding seizures is equally

clear in another (although perhaps less relevant)

way: arrests for criminal conduct do not generally

require a warrant provided that probable cause is

present. United States v. Watson, 423 U.S. 411

(1976). Whether, of course, this is also true for

seizures of witnesses is a question that this brief

does not address at length since it is undisputed

that petitioners lacked probable cause.

Thus, the standards in applying the Fourth

Amendment to seizures have been far simpler than

the standards for searches. For seizures, probable

cause is the general rule with basically one very

limited exception. For searches, this Court has

identified, at one end, various “special needs” and

different contexts in which modest searches can be

effected consistent with the Fourth Amendment for

reasons other than probable cause related to law

enforcement. At the other end, there is a complex

and not altogether consistent set of rules about

when warrants are needed for searches. See

generally California v. Acevedo, 500 U.S. 565, 581-

&5 (1991) (Sealia, J., concurring).

This can be explained by the different

interests the Fourth Amendment protects.

Searches implicate privacy interests, which vary

greatly. Such interests are at their height at one’s

home, are less on the street, and may be even

lower in the office of one’s employer. But seizures

usually implicate the same concerns. They

implicate one’s liberty to go about one’s business.

_27-

Place, 462 U.S. at 708 (holding that the detention

of an airline passenger’s luggage is tantamount to

a seizure of the person because it “intrudes on .. .

his liberty interest in proceeding with his

itinerary”). Further, and particularly relevant

here, seizures create anxiety and fear in the

person seized. United States v. Martinez-Fuerte,

428 U.S. 543, 558 (1976) (noting that the Court

views “checkpoint stops in a different light because

the subjective intrusion — the generating of

concern or even fright on the part of lawful

travelers — is appreciably less in the case of a

checkpoint stop”). See also Illinois v. Lidster, 540

U.S. 419, 425 (2004) (noting that the car stops

secking information regarding a hit-and-run

accident were “less likely to provoke anxiety or to

prove intrusive” because they were “likely brief”);

Watson, 423 U.S. at 428 (Powell, J., concurring)

(“A search may cause only annoyance and

temporary inconvenience to the law-abiding

citizen, assuming a more serious dimension only

when it turns up evidence of criminality. An

arrest, however, is a serious personal intrusion

regardless of whether the person seized is guilty or

innocent”). Cf. Alford Br. 59 (describing S.G. as “a

frightened 9-year old girl”).

Petitioners and their amici would replace

the simple and clear “probable cause” standard for

all but the briefest seizures with a dizzying array

of factors tossed into an amorphous balancing test

that would undermine the clarity of the law. Aside

from the impropriety of the factors they identify to

-28

diminish the central role of probable cause in

seizures, they grossly undervalue the need for

clarity that this Court has stressed:

But we have traditionally recognized

that a responsible Fourth Amendment

balance is not well served by

standards requiring sensitive, case-by-

case determinations of government

need, lest every discretionary

judgment in the field be converted into

an occasion for constitutional review.

Often enough, the Fourth

Amendment has to be applied on the

spur (and in the heat) of the moment,

and the object in implementing its

command of reasonableness is to draw

standards sufficiently clear and

simple to be applied with a fair

prospect of surviving judicial second-

guessing months and years after an

arrest or search is made. Courts

attempting to strike a reasonable

Fourth Amendment balance thus

credit the government’s side with an

essential interest in readily

administrable rules.

Atwater, 532 U.S. at 347. See also Oliver v. United

States, 466 U.S. 170, 181 (1984) (“This Court

repeatedly has acknowledged the difficulties

created for courts, police, and citizens by an ad

hoc, case-by-case definition of Fourth Amendment

-29-

standards to be applied in differing factual

circumstances.”); Carroll v. United States, 267 U.S.

132, 159 (1925) (upholding the rule that the police

may seize from a car anything unlawfully there,

noting that the rule “is a wise one because . .. it is

easily applied and understood and is uniform.”).

Compare U.S. Br. 9 (claiming that this Court “has

consistently evaluated the constitutionality of [a]

seizure under a context-specific reasonableness

standard”).

As shown below, “complications arise the

moment we begin to think about the possible

applications of the several criteria |petitioners and

their amici] propose” to be tossed into the

reasonableness mix to replace probable cause.

Atwater, 532 U.S. at 348.

B. Petitioners’ Criteria Lack Both Coherence

And A Fourth Amendment Pedigree

Among the myriad of considerations that

petitioners suggest this Court consider in

determining whether the initial seizure of S.G.

complied with the Fourth Amendment are history,

the context of a child abuse investigation, the fact

that S.G. was a possible victim of child abuse, and

the school setting. These suggestions are

misguided.

l. History. — Petitioners misunderstand

the role that history should play in determining

the propriety of a seizure. This Court does not

-30

break down each specific factual setting to

determine whether the common law recognized a

right to be free from seizures in precisely that

setting. If it did, then presumably probable cause

could be abandoned in all automobile searches.

Among the cases that are traditionally cited

as supporting a common law analysis for Fourth

Amendment protections is Watson. E.g., Wilson v.

Arkansas, 514 U.S. 927, 931 (1995). And in

Watson, this Court held that “probable cause” was

the basis for arrests for criminal conduct under the

common law. Cf. Pierson v. Ray, 386 U.S. 547, 555

(1967), id. at 556-57 (“Part of the background of

tort liability, in the case of police officers making

an arrest, is the defense of good faith and probable

cause”). It has never suggested that the common

law had a lower standard for the seizure of

witnesses, children, victims, or anyone else. Cf.

Horace L. Wilgus, Arrest Without A Warrant, 22 U.

Mich. L. Rev. 541, 820-21 (1924) Gin a common law

suit against an officer for seizing a suspected

insane person, officer had to prove both that the

arrestee was insane and that he was a danger to

himself or others).

2. Child Abuse Investigations. -

Petiioners suggest that child abuse investigations

are uniquely difficult making the normal

reasonableness standard of probable cause for

seizures inapplicable. The United States, on the

other hand, acknowledges that the governmental

interest in preventing child abuse (intrafamily or

$1

otherwise) is similar to the governmental interest

in any efforts to prevent crimes. U.S. Br. 28 n_b5.

Crimes of all stripes can be difficult to solve

because of a lack of evidence. The inability to find

crime perpetrators and remove them from the

public risks further crime against others

(including children who go to school). Place, 462

U.S. at 705 n.5 (noting the difficulties in stopping

druy trafficking and concluding that “[aJs a result,

the obstacles to detection of illegal conduct may be

unmatched in any other area of law enforcement.” )

(quoting United States v. Mendenhall, 446 U.S.

544, 562 (1980) (opinion of Powell, J.)). Murder

sprees are very serious, but the fact that many

perpetrators may be clever in covering up evidence

- attacking in places without witnesses, hiding the

bodies, leaving no physical evidence — has never

been thought grounds for suspending the

guarantees of the Fourth Amendment. Almeida-

Sanchez, 413 U.S. at 273 (holding that automobile

search of Border Patrol twenty miles from the

border violated the Fourth Amendment because it

was effected without consent or probable cause;

“The needs of law enforcement stand in constant

tension with the Constitution’s protection of the

individual against certain exercises of official

power. It is precisely the predictability of these

pressures that counsels a resolute loyalty to

constitutional safeguards.”). Nor can they be here.

3. Witnesses And Victims. — Petitioners

and their amici suggest that a different standard

32

should apply to those not suspected of criminal

conduct. They do not explain why an indisputably

innocent individual should receive less protection

under the Fourth Amendment than a potential

criminal,

Petitioners’ suggestion also runs into a

whole host of practical problems. Police frequently

do not know whether the person they are speaking

to is or should be a suspect. F.g., Dunaway, 442

U.S. 200, 207 (1979) (holding that seizure and

interrogation violated the Fourth Amendment

even though “police had a ‘reasonable suspicion’

that petitioner possessed ‘intimate knowledge

about a serious and unsolved crime.”); Davis, 394

U.S. at 722 (noting that early questioning of

defendant “apparently related primarily to

investigation of other potential suspects”). The

alleged blackmail victim may turn out in some

cases to be a statutory rape perpetrator, and vice

versa. This is not a problem when the purported

victim has voluntarily agreed to an interrogation.

But the Fourth Amendment precludes seizing

suspected victims and witnesses on anything less

than probable cause that they are, indeed, victims

or witnesses of an actual crime.

Finally, the assessment of “brief,

information-seeking highway stops” in Lidster is

simply irrelevant here. The much lengthier and

far more traumatic questioning of a nine-year old

girl about her father’s touches are far more likely

Lo “provoke anxiety or to prove intrusive,” id. at

33-

425, one of the core concerns of the Fourth

Amendment prohibition against unreasonable

seizures. Cf. td. at 426 (“the motorist stop will

likely be brief”), 427 (“Viewed objectively, each

stop required only a brief wait in line — a very few

minutes at most. Contact with the police lasted

only a few seconds”).

A. School Context. — Finally, petitioners

and their amici argue that the seizure of a nine-

year old by law enforcement at school should be

subject to a lower standard because children’s

freedom of movement at school is already

restricted. E.g., U.S. Br. 30-31."

Schools are not the only places where

' The United States emphasizes the school context of

S.G.’s seizure despite the fact that one of its interests in this

case is a statute that apparently permits non-consensual

seizures of children to investigate potential child abuse

occurring on Indian lands. U.S. Br. 2, 14 (citing 25 U.S.C.

§ 3206). Of course, that statute apparently authorizes

seizures of children in their own homes (§§ 3206(a), (b)) and

allows judges to issue warrants to seize children on less

than probable cause (§ 3206(d)). None of the arguments the

United States makes here would appear to solve these

seemingly obvious constitutional infirmities.

So, too, Camreta’s suggestion that the State can

actually change the scope of Fourth Amendment protections

by passing constitutionally questionable legislation that

reduces citizens’ reasonable expectations of privacy,

Camreta Br. 33, is without basis in any of this Court’s

precedents.

34

people’s movements are restricted by the

government. Many government employees

presumably need to show up to work each day;

citizens make appointments at povernment offices

and in government buildings (including courts) for

a wide variety of reasons, and need to be in certain

piaces at certain times. The notion that the police

can seize a government employee in her office on

something less than probable cause, take her to a

conference room against her will, and question her

there at noon for several hours, just because her

employer expects her to be available for a 2:30 p.m.

meeting, should give anyone pause. The United

States cites INS v. Delgado, 466 U.S. 210 (1984)

(U.S. Br. 31), but it misses the point of that case;

the employees there were indeed at work, but this

Court nonetheless went through an extensive

analysis to determine if any of the plaintiffs were

“seized” by the federal agents’ questioning. /d. at

218, 219 n.7 (noting that “respondents [had] no

reason to believe that they would be detained if

they ... simply refused to answer” and that

several respondents had left the building during

the investigation).

This Court has made clear that proper

fourth Amendment analysis considers not just

where a search or seizure takes place, but by whom

and why. E.g., Ferguson, 532 U.S. at 84 (holding

that program testing pregnant woman for drugs

violated Fourth Amendment; “The fact that

positive test results were turned over to the police

_.. provides an affirmative reason for enforcing

35

the strictures of the Fourth Amendment”); td. at 79

n.15 (noting that precedent distinguishes

“searches in schools conducted by school

authorities alone from those conducted with law

enforcement agencies”); O’Connor v. Ortega, 480

U.S. 709, 717 (1987) (bolding that employees in

government offices had reasonable expectations of

privacy in their place of work even though “(tlhe

operational realities of the workplace ... make

some employees’ expectations of privacy

unreasonable when an intrusion is by a supervisor

rather than a law enforcement offictal.”) (plurality

op.) (emphasis added); id. at 731 (Scalia, J.,

concurring) (“The identity of the searcher (police v.

employer) is relevant ...to whether the search of

a protected area is reasonable”).

The fact that the patients in Ferguson had

every expectation that medical professionals

employed at a state hospital would view their

blood test results did not warrant a conclusion that

the police could mandate that those tests be taken

and view the results consistent with the Fourth

Amendment. Similarly, the fact that parents send

their children to school knowing that their

“liberty” will be restricted by school officials does

not mean that the Fourth Amendment does not

apply in full when the student is seized in schoo!

by other state officials. Such officials are not

entrusted with the “custodial and tutelary”

responsibilities over public school children that

public school officials have. Vernonia School Dist.

47J v. Acton, 515 U.S. 646, 655 (1995).

36

+ Other Factors Militate In Favor Of

Strict Adherence To Fourth

Amendment Standards _

Petitioners and their amici ignore two

important factors that weigh heavily in favor of

the traditional reasonableness standard of

“probable cause.” First, the seized party here was

a nine-year old girl. Second, she and her family

had independent constitutional rights.

& Children Cannot Consent As Adults

Do. — Government officials do not violate the

Fourth Amendment by going up to someone and

asking questions. E.g., Royer, 460 U.S. at 497.

“The person approached, however, need not

answer any question put to him; indeed, he may

decline to listen to the questions at all and may go

on his way.” Id. at 497-98. Such an encounter is

not a Fourth Amendment issue because it is

deemed voluntary.

The degree to which a nine-year old’s

agreement to cooperate or to answer questions

under any circumstances — much less, the ones

here where no one has even argued that S.G.

voluntarily went with her guidance counselor and

spoke with petitioners — is a far more difficult

question. Under the common-law, for example, a

person charged with kidnapping a child could not

claim that the child voluntarily went with him.

The law was (and is) that a child could not

consent. #.g., Commonwealth v. Colon, 726 N.K.2d

-37

909, 911 (Mass. 2000) (relying upon the common

law, and concluding that a 12-year old could not

consent to her own kidnapping); State v. Hoyle,

194 P. 976, 977 (Wa. 1921) (discussing “tender

years” doctrine under the common law; “[a] child

of tender years was regarded as incapable of

consenting to its own seizure... ”).

Similarly, this Court has repeatedly noted

that the standards for determining whether a

minor’s confession was “voluntary” for Fifth

Amendment purposes requires a more careful and

nuanced weighing of factors — including the child’s

age — than a similar analysis for an adult. Fare v.

Michael C., 442 U.S. 707, 725 (1979) (applying a

“totality-of-the-circumstances” approach to a

juvenile’s waiver of Miranda rights, including “the

juvenile’s age, experience, education, background,

and intelligence... .”). See also Gallegos v.

Colorado, 370 U.S. 49, 54 (1962) (recognizing that

“a 14-year-old boy, no matter how sophisticated, is

unlikely to have any conception of what will

confront him when he is made accessible only to

the police,” and that such a person is “not equal to

the police in knowledge and understanding of the

consequences ...and... unable to know how to

protect his own interests or how to get the benefits

of his constitutional rights.”); /layley v. Ohto, 332

U.S. 596, 599 (1948) (noting that when “a mere

child—an easy victim of the law—is before us,” the

Court must exercise special care, as “[t}hat which

would leave a man cold and unimpressed can

overawe and overwhelm a lad in his early teens.”)

-38-

This consideration of consent can be seen in

one of this Court’s recent Fourth Amendment cases

as well. In Safford Unified School District #1 v.

Redding, 129 S. Ct. 2633 (2009), this Court

considered school officials’ search of a 13-year old

girl for pain relief pills. After being questioned,

the girl had “agreed to let la school official] search

her belongings,” id. at 2638, and her backpack was

searched. This Court nonetheless analyzed

whether the school official had enough justification

for that search, and, indeed, insisted that “[t]here

is no question that justification for the school

officials’ search lof her backpack] was required

...” Id. at 2641 n.3. That is, the girl’s agreement

alone to have her backpack searched was

insufficient for Fourth Amendment purposes.

Such consent, of course, would have been

dispositive for an adult.

The fact that children cannot consent to a

seizure suggests that law enforcement officials

should limit their contacts with them. The normal

standard for reasonableness as to seizures, viz.,

probable cause, can effectively limit these contacts

to situations where such involuntary, non-

consensual contacts are truly needed.

2. Family Rights. — The interest of

parents in the upbringing of their children is the

seminal “fundamental” liberty interest protected

by the Fourteenth Amendment. Troxel vu.

Granville, 530 U.S. 57, 65 (2000) (“The liberty

interest at issue in this case -- the interests of

39

parents in the care, custody, and control of their

children -- is perhaps the oldest of the

fundamental liberty interests recognized by this

Court.”) It protects the rights of parents to make

important decisions for their children. /d. at 66.

Cf. Wallis v. Spencer, 202 ¥.3d 1126, 1141 (9th Cir.

2000) (children have the right to have important

medical decisions made by their parents).

Whether or not to cooperate with state

authorities in their efforts to seek information

from a child is a decision of great concern, one that

normally would be entrusted to a parent. To be

sure, as petitioners argue, there may be situations

where a parent might have a conflict of interest;

the state officials may be seeking information

about improper conduct of the parent. But

precisely because such efforts to pit a child against

one of her parents is so fraught with consequences

for the entire family — as they were here — the

fundamental rights of parents and children should

not be casually overcome on the mere suspicion

that there is a conflict of interest. Again, the

fundamental liberty interest of familial association

strongly suggests that nothing less than probable

cause should warrant a child’s seizure to extract a

condemnation of one of her parents.

-40-

CONCLUSION

This Court should conclude that it lacks

jurisdiction to assess the Ninth Circuit’s opinion

regarding respondent's Fourth Amendment claim,

or, alternatively, that it should not, in its

discretion, exercise whatever jurisdiction it might

have. Should the Court reach that issue, it should

agree with the Ninth Circuit that there were

genuine issues of material facts precluding a grant

of summary judgment to the petitioners solely on

the ground that they complied with the Fourth

Amendment.

Respectfully submitted,

Michael KF. Rosman

Center for Individual Rights

1233 20" St. NW, Suite 300

Washington, DC 20036

(202) 833-8400

Attorney for Amicus

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