Amicus Curiae Brief — Camreta v. Greene

Nos. 09-1454 and 09-1 if Supreme Court US.

“an Bhe DEC 17 2010

Supreme Court of the nited Beated om

4

BOB CAMRETA,

Petitioner,

"

SAKAI! GREENE, personally and as next friend

for S.G.. a minor, and K.G.. a minor,

Respondent

—_— @ ———- —

JAMES ALFORD. Deschutes County Deputy Sheriff

Petitioner

\

SARAH GREENE, personally and as next tricnd

for SG. a minor, and K.Gr., 4 miner

hee spondent

e

On Writs Of Certiorari To The United States

Court Of Appeals lor The Ninth Circuit

-— ©

AMICUS CURIAE BRIEF OF THE DISTRICT

ATTORNEYS OF SAN DIEGO COUNTY,

CALIFORNIA AND SACRAMENTO COUNTY,

CALIFORNIA IN SUPPORT OF PETITIONERS,

BOB CAMRETA AND JAMES ALFORD,

DESCHUTES COUNTY DEPUTY SHERIFF

e ee a

BONNIE M. DUMANIS JAN SCULLY

lnstrict Attorney of the District Attorney of the

County of San Diego, County of Sacramento,

California California

SOPHIA G. RoAacn* 901 G Street

Deputy District Attorney Sacramento, CA 95414

j330 W. broadway, Suite 460 ‘Tel (916) 874-6218

San Diepo, CA 92101 Kax: (916) 874-5340

Tel) (619) 531-4217 Counsel for Amict Curiae

hax: (619) 515-8632

sophia roach@sdeda.org

COCKLE LAW KIER PRINTING CO) (h00) 225 GUHA r\

ON CALL COLLECT (Atha 442-245) \'

‘Counsel of Record

QUESTION PRESENTED

The state has a special need and historical obli-

vation to protect children. Implicit in this relation

ship is the requirement for child abuse investigations

to be conducted in a manner improving outcomes for

children. Oregon and other states have adopted

statutes which mandate non-discretaonary, multidis-

ciplinary, governmental investigations of all child

abuse reports, but only permit involuntary provision

of services when the state has reasonable cause to

beheve that abuse has occurred. A determination of

reasonable cause is often impossible without) an

initial interview of the child. Should the state be

required to obtain permission from a parent, who

may be an abuser or enabler, to intervicw a reported

child abuse victim on public school grounds during

regular sehool hours, when neither probable cause

nor exigent circumstances can be shown as demanded

hy the Ninth Circuit? Or should this Court find that

these non-discretionary investigations serve a special

need beyond that of normal law enforcement justily-

ing a reasonable school intervicw of a child in order to

determine if abuse has occurred without probable or

even reasonable cause’?

TABLE OF CONTENTS

Pape

A FOI oi sine seevevsscusesesescnaxntces Peerereees i

Table Of Authorities ............0...c0sccesecceseess. ~ «

Interest of the Amurct Curiae Htoaa ene |

Summary of Argument ................. cece. ow

I i aia os canines piapnedpaghenbasaaelaaenaagneareneetaen 4

A. ‘The state has a “special need” and histor-

ical obligation to protect children whoch

far exceeds the normal need for law en-

forcement detection and prosecution

o>

| Children are vulnerable and deseryv-

ing of protection from abuse and the

effective administration of services

¥ Statistical data show provision of ser-

vices as a result of child protection

investigations results in increased

provision of voluntary preventive ser-

vices to children, even when abuse

Claims are unsubstantiated...

8s Artificial distinctions between povern-

ment actors should not preclude the use

of investigative techniques that improve

outcomes for children ........ ea didoions antes oe

1. The participation of law enforcement

is not prohibited in) special needs

ie iavsp inst thcsknsacerisens (aekksisaucsabaieaadintios 12

I)

lil

TABLE OF CONTEN'TS — Continued

Page

Modern law enforcement duties in-

clude functions traditionally reserved

for repvulatory administrators, social

workers, community leaders, educa-

SM, MI a sesdscacadicncesveccnctesccccicss,. OM

The majority of states endorse a mul

tidiscriplinary approach to child protec-

tion and the participation of law

enforcement officers in these multidis-

ciplinary teams has specifically im

proved outcomes for children, which is

necessary to further the regulatory

scheme |... talent fare 16

Applying the warrant requirement of the

Fourth Amendment to the initial inter

view of a child in a non-home setting wall

result in a failure to protect children....... 14

]

hirst mdications to the state repard-

ings alleged abuse of a child rarely

provide sufficrent information — to

prove probable cause or exigent cir

cumstances and warrants based on

less than probable cause have been

PRIN 6.5 8shscpsisias Sema senceyrene svarereevustxes 21

Oregons child protection statute provides

an adequate substitution for the warrant

I air iaiectsyscsvisehucevasstiaseccvadonerton 23

iV

TABLE OF CONTENTS — Continued

Pape

ki | When an allegation of child abuse comes to

the attention of state actors, confined by

statute to a non-discretionary response,

they should be able to conduct a reasona-

ble interview with the child in a school set-

ting without probable cause, reasonable

suspicion, or parental consent in order to

determine if the child needs protection... 24

(Conclusion...... peree eee) dk ksdbevensssiascielean 26

TABLE OF AUTHORITIES

Pape

CASES

Board of Education v. EBarls, 536 US. 822

>? 4 uses sadusassbesehnc’sa iskdabe hd aWudaiiewd menus ees

Delaware v. Prouse, 440 US. 648 (1979) 000.7, 8

kerpuson vo City of Charleston, 532 US. 67

SUES act ances cavevkesaan’ sackets sabivaduncceteecdussves Peer | ae

Greene vo. Camreta, 588 3d 1011 (2010)... > oe

Griffin vo Wisconsin, 483 US. 868 (1987) .. ieee

New York v. Burger, 482 US. 691 (1987) passim

People vo. Ray, 21 Cal 4th 464 (1999)... scecosee MED

Safford Unifted Sch. Dist) #1 vo. Redding, 129

Se ED EEE Ss sci ccvakcsssccéecioocewdncss, 26

United States vo. Biswell, A406 US. 311 (1972) .....20. 24

United States vo Martinez-Fuentes, 428 US.

ER De nak nel CS ee 0, 20, 11,33

Vernonia School District 47/d v. Acton, 515 US

EN Dina cc cn ccccacecscccccccecacne ae ee Tee ee eae

Wyman vo dames, 400 US. 309 (1971). ie ee te

STATUTES

RS EB PG) =

I I oe as ae isons ich ceewdwaecbeneean 6, 13

California Government Code §& 26500 ..000000000.0000.000000.... |

California Penal Code § 11174. 38(a) (2010)... ..... 20)

vi

TABLE OF AUTHORITIES — Continued

Page

Or. Rev. Stat. § 419B.007 (2009) ......00000000.00........6, 13

Or. Rev. Stat. § 419B.020 (2009) ...............0.0.0.0.00..... 23

Or. Rev. Stat. § 419B.045 (2009) ..... hdegn Kapeet ieee

Sespromme Coosst Tasbe D7.Bla).0.....c0ccsesacecasccvccesessversensevell

Supreme Court Rule 37.4.............................. ae

OrHbk AUTHORIPIES

Donane Lambelet Coleman, Storming the

Castle to Save the Child 47 Wm. ANv Mary L

Re MRM II obi vondi paen barons con cdscaceiveusineceuens 10

J. Robert Shull, kmotional and Psychological

Child Abuse: Notes on Discourse, History and

Change 51 Stan. L. Rev. 1665 (1999)...

Kenneth Dodge & Donane Lambelet Coleman,

Preventing Child Maltreatment: Community

Approaches, The Guilford Press, 159 (2009)... 10

Matthew Bell, Fourth Amendment Reasonable

ness: Why Utah Courts Should Embrace the

Community Caretaking Exception to the War-

rant Requirement 1O Boar do Crim. Le 3

CRUD sn cinactcvoncnsocace Fa eT eae Se Rae Sey PO Peer eee eee Lf

NHTSA, Children Traffic Safety Facts DOT IIS

$11157 (2008), www.nhtsa. gov .........................0.005. 7

Theodore P. Cross et al., Police Involvement in

Child Protective Services Investigations: Lit

erature Review and Secondary Data Analysts,

Child Maltreatment, Vol. 10, No. 3, 221-244

I hse ee ee oe onientacepanbatiesatenbia’ 17, 18

TABLE OF AUTHORITIES — Continued

Page

U.S. Department of Health and Hluman Ser

vices, Administration on Children, Youth and

Families, Child Maltreatment (2007), avarla

ble at http:-//www.act hhs gov/programs/cb/pubs/

I Site haitsiacatisapncsctadictudaittietdetatanendinaninke ae

US. Department of Health and Human Ser

vices, Administration on Children, Youth and

Families, Child Maltreatment (2008), avatla

ble at http//www.acl hhs.gov/programs/cb/pubs/

I ee oh ee 7, 12, 19, 20, 21

Vicky Bollenbacher & ‘Taina Sakagawa, Jus

tice, Therapeutic and Hybrids and Implica

tions for Children’s Rights: A Review of State

Policy, Children and Youth Services Review

28 EKCHYSR 6, 682-708 (2006) ..............00.0.00.... 16, 17

William J. Novak, Common Reeulation: Legal

Origins of State Power in Amertwoai 45

HASTINGS L. Jd. 1061 (1994)... lh 4,5, 14

WEBSITES

http://sherift-deschutes org/Community/Kids-

EB EERE OREN TIN: 15

http://www-eactlhhs gov/programs/cb/pubs/cmO 7/

NINE has ictinncnasiacciiis ectsiin meee re 1]

htitp://www.acthhs vov/programs/ch/pubs/cm0O 7/

RS IS IEEE SAS Re Seen ee a eee to li

http://www.act bhs.pov/programs/ch/pubs/cmO8/

I a es 21

Vill

TABLE OF AUTHORITIES — Continued

http://www.acthhs yov/programs/cb/pubs/emO0s/

Page

I isc cncadenepincaccemscinpdechsetbisckeistincents |

http://www.acf.hhs.gov/programs/cb/pubs/cm08/

I asia creas tennsndieecasiahndsagaesbsandnteadiies

http://www.acfbhs.gov/programs/cb/pubs/em08/

chapter7. htm#reports .....000.00000.0........

http://www.ohtsa gov (publication SITS?) 0...

~]

INTEREST OF THE AMICI CURIAE

Amicus curtae, Bonme Dumanis, District Attor-

ney for the County of San Diego, State of California,

submits this brief for filing as the authorized law

officer of San Diego County, and on behalf of Jan

Scully, District Attorney for the County of Sacramen

to, State of California, pursuant to Supreme Court

Rules 37.2(a) and 37.4.'

Bonnie Dumanis is the elected District Attorney

of San Diego County, California, a post she has held

since 2003. Prior to 2003, she served as a Judge of the

California Superior Court. As District Attorney, Ms

Dumanis is responsible for the criminal prosecution

of all felony offenses, and state law misdemeanor

offenses occurring outside the City of San Diego,

within the county. San Diego County is a jurisdiction

of over 3 million people. The District Attorney files

Phe San Diego County Charter section 709 states “The

District Attorney is the public prosecutor of the County whose

duties are prescribed by law (Added, effective 8-7-5) 7 a on

provided in the California general law that

The district attorney us the yeneral prosecutor, except

as otherwise provided by law ‘The puble prosecutor

shall attend the courts, and within his or her discre

tion Shall initiate and conduct on behalf of the poople

all prosecutions for Che public oflenses

Cal Gov Code, § 26500

In addition, on November 10, 2010, counsel for both the

Petitioner and the Respondent filed consents im this Court te the

filing of arnicus curtae brnets in support of either or neither

party Supreme Court Docket no 09-1478

over 45,000 criminal cases per year. The cases within

her prosecution responsibility include physical abuse

and sexual abuse and molest of child victims. By

virtue of her position, District Attorney Dumanis ts

concerned with the protection of child victims, and

the manner in which child victim cases are invests

pated.

Jan Scully is the elected Distmet Attorney of

Sacramento County, Calitorma, a post she has held

since 1995. As District Attorney, Ms. Scully is respon

sible for the criminal prosecution of all felony offens-

es, and all state law musdemeanor offenses, within

the county. Sacramento County is a jurisdiction of

over 14 million people. The District Attorney reviews

over 40,000 criminal cases per year, and files approx.

imately 80,000 of those. The cases within her prose

cution responsibility include physical abuse and

sexual abuse and molest of child victims. By virtue of

her position, District Attorney Scully is concerned

with the protection of child victims, and the manner

in which child victim cases are investigated

SUMMARY OF ARGUMENT

The holding in Greene oo Camreta’ has the poten-

tial to set back progress in child protection by enforc-

ing an unreasonable and untenable requirement of

* Greene vo Camreta, 538 Fd 1011 (2010)

3

state actors secking to conduct interviews of children

to determine if they have been victimized by abuse

The logic behind this rule of law was based on flawed

information which failed to account for improved

outcomes for children as a direct result’ of police

involvement in child protection.

la response to the holding, attorneys for school

boards throughout the jurisdiction of the lower court

have issued written directives to staff prohibiting

interviews of children related to events that did not

occur at school without a warrant or order. The

practical impact is that law enforcement is hampered

in child protection investigations and other preliumi-

nary criminal investigations which benefitted from

the availability of a safe forum to conduct consensua!

Investigative interviews wathout exposure lo scrutiny

by a police wary community, familial pressure, or the

knowledge of an abusive parent

This bref establishes that statutory scheme:

such as Oregon's which regulate child protection in a

non-discretionary manner by requiring a response to

all reports of child abuse in a cooperative effort by

social services and law enforcement in order to im

prove outcomes for children are an essential compo

nent of the state's special need to protect children in a

manner that far exceeds the goals of normal crime

detection

In conducting an analysis of existing case law

relevant to special needs searches that require no

warrant or individualized suspicion, it is clear that

Orepon'’s child protection repulatory scheme meets

the standards of ehipibility established by the United

States Supreme Court. It serves a lepitimate special

need; it was not conceived for the purposes of law

enforcement; it employs non-diseretionary standards,

and the reasonable location, time, and manner re-

quirements are salished in the current context where

the mandated mivestiyation is conducted in a public

school during regular school hours by trained profes.

sionals whose complimentary skill sets are desipned

to further the state’s heavy interest in child protec-

ARGUMENT

A. The state has a “special need” and histori-

‘al obligation to protect children which far

exceeds the normal need for law enforce-

ment detection and prosecution.

Identifying the orians of state power in America,

bostortian Wilham Novak noted the doctrine of parens

patroae was derived from the “amiable capacity” of

the king “to take care of his subjects as are lepally

unable, on account of mental incapacity whether it

proceed from first nonage: second, idiocy; or third,

lunacy. to take proper care of themselves and their

property.” The historical record demonstrates that in

Willian Novak, Common Kepalation. lLaepal Origins of

State Power in Ameria, 45 Hastincs 4&5 LOG), 1094-1094

(Continued on following pase)

the late T&th and early 19th centuries states passed

laws which reflected the povernment’s role as an

insurer of public happiness regulating personal

conduct when it offended others. Among those carly

repulations was the identification of those who aban-

doned their children as disorderly persons.” Less than

50 years after the signing of the United States Con

stitution and before the death of James Madison,

New York City enacted the first statute enabling

yvovernment officials to “commit to the almshouse, or

other suitable place ... any child found in a state of

want or suffering, or abandonment, or improperly

exposed or neglected by its parents. ...””

Though far less draconian than the New York

City statute, most states have developed well studied

programs to effectively prevent, investigate, and

protect children from abuse. Justice Blackmiun’s

proclamation: “[t}here is no more worthy object of the

publie’s concern” than the need to aid and protect

dependent children,” has been adopted by legislators

throughout the nation, including the Lepislative

Assembly of Oregon.

(1994) (citinp Joseph Chitty, A Treatise on the Law of the Preroy

atives of the Crown 4 (1VK20))

* Novak, supra, at n49 and n 5%

“JS Robert Shall, Rmotional and Psycholopwal Child

Abuse. Notes on lhscourse, History and Change, 51 Sian. lL. Kev

1655, 1686 (1999) Ceiting Hlomer Folks, The Care of Destitute,

Neplected, and Delinquent Chudren 97 (1900))

Wynian vo. James, 400 US. 309, 348% (1971)

(

[F jor the purpose of facilitating the use of

protective social services to prevent further

abuse, safeguard and enhance the welfare of

abused children, and preserve family life

when consistent with the protection of the

child by stabilizing the family and improving

parental capacity, it is necessary and in the

public interest to require mandatory reports

and investigations of abuse of children and to

encourage voluntary reports.

Though the statute was not enacted until 2009,

the preceding statute which was amended in 1993

similarly recognized:

It is the policy of the state of Oregon to rec-

ognize that children are individuals who

have legal rights and are not chattels of their

parents or guardians. [Child protection stat

utes| ... shall be liberally construed to the

end that a child coming within the jurisdic

tion of the court may receive such care, guid

ance, treatment and control as will lead to

the child’s welfare and the protection of the

community. Although there is a strong pref-

erence that children live in their own homes

with their own famuhes, the state recognizes

that this is not always possible or in the best

interests of the child or the public’

Oreyon statutes mandating investigation of all

child abuse reports and collaboration with law

Or Rev. Stat. § 419.007 (2009)

" $993 Ore. ALS 546

enforcement are silent on the issues of apprehension

or prosecution of criminals, proving they serve a

purpose other than the normal needs of law enforce-

ment.

1. Children are vulnerable and deserving

of protection from abuse and the effec-

tive administration of services that im-

prove their future outcomes.

The fact that children are vulnerable requires no

proof beyond common experience. Children are typi

cally smaller, less informed, have fewer physical

liberties, and no control over their parentage, which

at times can result in abuse or death.

As many children are killed cach year by abusers

as they are in automobile accidents.’ This fact is

important in determining, a “special need” as this

Court impledly did in the context of approving non

discretionary traffie checkpoints, while striking down

the same activity when it involved individual discre-

lion of officers. Writing for the majority in Delaware

vv Prouse, Justice White made clear the Court’s

awareness of “danger to life and property posed by

" NHSTA, Children Traffic Safety Facts, DOT WS #11157

(2008) Ccatiny 1,447 fatalitues for children 0-14 years old), avail

able at ittp//www nbtsa gov (pubhbeation $11157); US) Department

of Health and Human Services, Administration on Children,

Youth and Families, Child Maltreatment, Chapter 4 (2008) (eit

ing 1,740 fatalities for children 0-18), avaiable at http //www.act

his yrov/proprams/eb/pubs/emO0s/chapter4d him

&

vehicular traffic,” even without the support of statis.

tics, and that regulating compliance in an appropri-

ale manner was an “essential [element] in a highway

safety program.” In Vernonia School District 47S v.

Acton, Justice Seahia, on behalf of the Court, recog

nized a special needs cxception for random drug

testing amongst student athletes who were, as a

proup, proved to be involved in heightened instances

of drug use." On the basis that the combination of

drugs and exertion could lead to injury or death of

children, the Court endorsed random drug testing

without individualized suspicion.” That same empha.

sis on child safety was echoed by Justice Thomas

writings for the majority in Board of Education v.

Karls: “|Sjafety factors into the special needs analy

sis.” Justice Thomas’ opinion in aris is particularly

helpful in that it approved the special needs search

without any evidence of a heightened drug problem

amongst the targeted students. Satished that “drug

use carmes a variety of health risks for children

meluding death from overdose,” the Court upheld its

second child-protection based drug testing policy in a

‘ . i4

public school setting.

" Delaware v. Prouse, 440 U.S. 648, 670 (1979)

Vernonia School District 47d v Acton, 515 US. 646, 649,

664 665 (1995)

“ Id. at 661-665

* Board of Education vu. Earls, 536 US 822 (2002)

Jd. at 836-837

9

Other special needs cases have upheld warrant-

less, non-diseretionary searches and seizures in less

life threatening circumstances such as routine social

service inspections, illegal immigration, and closely

regulated activities.”” Bolstering the case for child

protection as a special need of the state is made

simpler by the fact that the child in reported abuse

cases is not suspect in the investigation.

2. Statistical data show provision of ser-

vices as a result of child protection in-

vestigations results in increased provi-

sion of voluntary preventive services to

children, even when abuse claims are

unsubstantiated.

Addressing the Ninth Circuit’s claim that child

abuse investigations pose a risk of harm to more

children than they help, one need only examine the

source Of their information for proof of error. Citing a

law review article published by a respected Fourth

Amendment scholar and advocate for child rights, the

court justified its) traditional Fourth Amendment

approach to initial child) abuse interviews." The

article relies primarily on anecdotal evidence from a

handful of lower court cases to inflame the reader.

Unlike the staid interview in this case, all but one of

" Wyman, supra; U.S. vo. Martinez-Fuentes, 428 US 543

(1976); New York vo Burger, 482 0S 691 (1987)

It

Greene v Camreta, supra, at 1016 (2010)

10

the lower court cases involved a strip search, remov

al, or unauthorized medical examination of the child.

The exception was a case which took place in a pri-

vate school setting and involved unreasonable inves-

tigative techniques. In a recently published book on

preventing child maltreatment, the author herself

suggests that open ended interviews of reported

victims are far less intrusive than the conduct report-

ed in the cases cited by both her and the Ninth Cir-

cuit.”

Using statistics cited by the U.S. Department of

Health and Human Services in their Child Maltreat-

ment Report, author Doriane Lambelet Coleman

compared the number of investigations to the number

of substantiated claims as the best support for her

argument that “in the name of saving children

states ultimately cause more harm to many more

children than they ever help.””

Not surprisingly, similar statistics had been

analyzed in other special needs cases. The Court in

Martinez Fuentes included statistics showing that of

the 10 millon cars passing through the border check

point, substantially less than one percent carried

illegal immigrants.” ‘This was of no moment for the

Kenneth Dodge, editor and Domane Lambelet Coleman

editor and author, Preventiny Child Maltreatment: Community

Approaches, The Guilford Press, 159 (2009)

ix

Donane Lambelet Coleman, Storming: the Castle to Save

the Child, 47 WM and Mary L. Rev. 418, 417 and n.& (2005)

iy

US. ov. Martinez Fuentes, supra, at 554.

1]

Court as it endorsed the checkpoint, even in the case

of secondary inspections which detected illegal activ

ity in less than twenty-five percent of all vehicles

selected for more rigorous screening.”

Lambelet Coleman’s analysis also fails to account

for reyections based on duplication, lack of jurisdic

tion, instances where insufficient information ts

provided to initiate a case, and where abuse occurred,

but there is insufficient evidence to warrant further

action — a too common problem in child abuse.’ But

most damaging to her hypothesis is that of the 3.2

million roports of abuse documented in the 2007

Maltreatment Report and referred to in Greene, 3.8

million children received preventive services imnelud

ing: respite care, parenting education, housing: assis-

tance, substance abuse treatment, daycare, and

individual and family counseling.” Approximately

333,000 substantiated victims of abuse and 757,000

non-victims received voluntary, in-home post invest)

gation services aimed at identifying family weakness

es and strenpths in order to provide targeted

. ° Pa °

supportive services” That these services protect

” Td. at 554 and 563

zt

US.) Department of Health and Human Services, Admin-

istration on Children, Youth and Famihes, Child Maltreatment

(2007), available at http /www act hhs gow/programs/cb/pubscem07/

chapter2 htmé@screen.

ld , avatlable at http://www act bhs gov/programs/ch/pubs/

cmO0?/chapter6 htm

1s lbid

children cannot be ignored. “Sexual abuse has de

clined 53 percent from 1992-2007, and physical abuse

has declined 52 percent” in the same time.” Certainly,

advances in child protection including multidiseiph-

nary, mandated reporting and investigation, as well

as preventive treatment of child abuse have played a

role in this momentous reduction.

Bk. Artificial distinctions between povernment

actors should not preclude the use of in-

vestigative techniques that improve out-

comes for children.

The Constitution does not distinguish between

types of povernment actors when limiting state power

nor should the Court distinguish between them in

assessing whether the state can act to protect the

public in special needs cases.

1. The participation of law enforcement is

not prohibited in special needs cases.

New York v. Burger upheld a special needs search

conducted jointly by police officers and state agents,

in part because the Court “failled] to see any consti-

tutional significance in the fact that police officers,

rather than ‘administrative’ agents, |were|] permitted

to conduct the §415-a5 inspection.”” That same

“ Child Maltreatment, supra (2008), available at http.//

www act hhs pov/proyrams/ct/pubs/cmOX chapter? htméareports

> New York v Burger, supra, at 717

1S

opinion noted two other cases where special needs

searches were conducted by state actors with tradi-

tional police powers.” The Court has also endorsed

checkpoint stops by Border Patrol agents and joint

comphance searches by probation and police.”’

While some may point to Ferguson v. City of

Charleston” to counter this argument, it was not the

involvement of law enforcement per se, but rather the

development of a specific plan to provide medical

testing results to police, threatening prosecution to

exact comphance with drug treatment while offering

no different medical treatment to either mother or

child that so offended the court. Ferguson is distin-

guishable in five significant ways from the instant

ease:

1. Oregon's child protection statutes pro-

vide additional services to children upon

a finding of reasonable cause to suspect

abuse and they were not devised for

the primary purpose of general crime

detection as evidenced by the legisla-

live intent expressed in Or Rev Stat.

§ 419B.007 and 19938 Ore. ALS 546.

2. ‘The purpose of the interview was plain

and law enforcement involvement was

not secreted from the child.

* New York wv Burper, supra, at n 2s

US vo Martinez-Fuentes, supra

2s

Ferguson vo City of Charleston, 532. U.S. 67 (2001)

14

3. ‘There was no search of the person dur-

ing the school interview.

4. ‘There was no likelihood that the child

subject of the alleged seizure was going

to be prosecuted or have evidence used

against her in any punitive sense.

5. Contrary to findings in Ferguson that

demonstrated the program discouraged

prenatal care by drug users, there is no

evidence that child abuse will increase

on account of school interviews im man

datory, non-discretionary child protec

tion investigations

2. Modern law enforcement duties include

functions traditionally reserved for

regulatory administrators, social work-

ers, community leaders, educators, and

parents.

Early police power in America promoted “a well

ordered community devoted to the public happiness

and public good.”” This is still the function of police,

who even in their traditional roles help victims of

crime who rely on them to intervene in violent sce-

narios and protect them from danger. *‘|OJjur contem-

porary socmety ... is an impersonal one. Many of us

do not know the names of our next-door netghbors

Because of this, tasks that neighbors, friends and

~ Novak, supra, at 1085

Ld

relatives may have performed in the past mow fall to

the police’ ”™

The website of the Deschutes County Sheriff's

Department provides significant insight into the

obligations of modern law enforcement agencies in

stnall counties. In addition to traditional investiya-

tion, they also operate a marine and forest patrol and

are responsible for civil enforcement. They maintain

a “Kid’s Corner” website with tips for internet, bicy

cle, and water safety, prevention of sexual abuse, and

a buddy program for children of incarcerated parents.

All deputies are required to complete the “Darkness

to Light” child protection investigation program

operated by the Kids Center, a non-profit, multidisc:-

plinary child protection agency.

The import of these facts is that) Deschutes

County sheriff's deputies do not function in an isolat

ed world of arrest and prosecution, but play a larger

role in the promotion of public good which makes

arbitrary distinctions between them and certain other

government actors unreasonable when tasked with

the mandatory investigation of reported child abuse.

* Matthew Bell, Fourth Amendment Reasonableness) Why

Utah Courts Should Embrace the Community Caretaking

Exception to the Warrant Requirement, 10 Boart d Crim L389

(2005) (citing People vo Ray, 21 Cal 4th 464, 472 (1999) Coitation

omitted))

Deschutes County Shertt’s OMee, available at

http /shenf? deschutes org/Community/Kids-Satety (2010)

16

3. The majority of states endorse a multi-

disciplinary approach to child protection

and the participation of law enforcement

officers in these multidisciplinary teams

has specifically improved outcomes for

children, which is necessary to further

the regulatory scheme.

Kighty percent of states in our nation require law

enforcement agents to be involved ino emergency

removals of children and 67% are required to take al!

emergency calls reporting child abuse or neglect.”

More than half of the states have adopted a multidis

ciplinary approach to child protection” Joint child

protection efforts are even codified in federal law: “All

reports received shall be promptly investigated, and

whenever appropriate, investigations shall be con

ducted jointly by social services and law enforcement

personnel, with a view toward avoiding unnecessary

multiple interviews with the child.”

This hybrid approach which joins law entorce-

ment (Justice Model) and social service (Therapeutic

Model) disciplines ino child) protection is hailed,

almost universally, as the best method for improving

' Vicky Bollenbacher & Taina Sakagawa, Justice, Thera

peutic and Hybnds and Implications for Children’s Rights: A

Review of State Policy, Children and Youth Services Review 28

LCHYSK 6, 682-703 (2006)

~ Ibid

“42 USC. § 180381 (1990)

outcomes for children.” “In terms of children’s rights

a Hybrid Model should work best tor securing the full

range of just rights claims. The Hybrid) Model pre

sents opportunities for both the best of the Therapeu-

tic Model and the best of the Justice Model to be

ry

obtained simultaneously.”

data and literature on the subject of police involve-

ment in child protection services by the director of the

National Evaluation of Children’s Advocacy Centers.

which studies the effectiveness of current models of

A recent and comprehensive review of available

child abuse investigation, concluded:

Vol

[Pjolice do not appear to hinder CPS eftec-

tiveness and may, in fact, promote it. Police

involvement may increase the probability

that CPS finds allegations of maltreatment

credible and provides services.... There is

currently no empirical concern about sys

termatic negative effects of law enforcement

involvernent on CPS investigations. We rec

ommend that law enforcement and CPS co-

ordinate their child abuse and neglect

Investigations in every community

Bollenbacher et al, supra; Theodore Cross et ab, Police

Invoivement in Child Protective Services Investigations

ture Review and Secondary Data Analysis, Child Maltreatment,

10, No 8, 224-244 (2005)

“ Bollenbacher et al, supra

Cross et al, supra, at 241-24:

Litt ra

14

In assessing the particular benefit) added by

police, the report deemed at) possible that “police

mivolvement helps enable CPS interventions by

providing: more thorough mvestizations and a preater

quantity of evidence. This may help CPS substantiate

more cases... Polee may also provide support,

authorty, safety, and anvestigative expertise to CPS

workers, empowenny them to work more effec-

tively” This promotion of better outcomes for chil

dren “is necessary to further the regulatory scheme.””

And so this Court has recopmized:

[SJtate police officers ... have numerous du-

ties in addition to those associated with tra-

ditional police work. (citations omitted.) As a

practical matter, many States do not have

the resources to assiyn the enforcement of a

particular administrative scheme to a spe

cahized apency So lon as a reyulatory

scheme as properly administrative, iois not

rendered illegal by the fact that the inspect

iy officer has the power to arrest mdividu-

als for violations other than those created by

the scheme atself In sum, we decline to im

pose upon the States the burden of requiring

the enforcement of ther regulatory statutes

to be carried out by specialized ayents.~

-

Cross etal, sapra, at 241

” New York vo Buryer, supra, at 710

hed at 717 718

19

Law enforcement officers are not precluded by

precedent from acting to further a state’s special

needs, further their participation in regulation of

child protechion results in better outcomes for chil

dren due to them specialized investigative traming

and multifaceted role as pvovernment actors. The

lower court's opinion has upset this important repula-

tory service. No sooner was the opinion published

when law firms for school districts within the Ninth

(ayreul’s jurisdiction issued mandatory restrictions on

the access to children at public schools during: school

hours without a warrant or written consent of a

parent. This Court should not restrict the good work

of law enforcement in the regulation of child protec-

tion, as did the lower court when at established an

arbitrary distinction between povernment actors in

order to reyect a claim of special need.

(. Applying the warrant requirement of the

Fourth Amendment to the initial interview

of a child in a non-home setting will result

ina failure to protect children.

More than 80% of all child abuse is perpetrated

hy parents and thus likely to occur within the pro-

tected curtilage of the abuser’s home” Children are

twice as likely to be abused by their mother and 18%

4) «*

US Department of Health and Human Services, supra

(008%) auvatlable at) http /www vel hs pow/proyrams/cb/pubs/

me/chapterds btn

20

of the time the child will be abused by both parents.”

This makes the investigation of child abuse particu-

larly difficult as the child may have been groomed

into silence, beaten ito submission, or so emotionally

disabled that he or she is incapable of report. Addi-

ional compheations include Jove for the abusive

parent, fear of dramatic consequences for the child

and any siblings, and loss of support from a non-

abusive, yel abuse-enabling parent.

These circumstances, inherent in the overwhelm

ing majority of child abuse cases, demonstrate the

necessity for school interviews. So helpful is it to have

a neutral location where the child can feel safe away

from the influence of the abuser that states have

enacted laws with specie procedures for interview-

ing reportedly abused children at school.’ The school

setting helps to “earefully [limit] the time, place, and

scope” of povernment action, which as required in

44

special needs cases.

Thul

“Cal Pen Code © 11174 30a) (2010), Or Rev Stat

£ 4191 O45 (2009)

“ New York vo Burper, 482 US. 691, 705 (1987) Contin

United States v Biswell, 40GUS S11, 315 C1972) 3

2]

1. First indications to the state regarding

alleged abuse of a child rarely provide

sufficient information to prove proba-

ble cause or exigent circumstances and

warrants based on less than probable

cause have been disapproved.

While the concern for abuse in the instant case

evolved from another child protection tnvestiyation, 1

lughhphts the difficulties of predicating an initial

interview on the development of probable cause or

reasonable suspicion under the most common circum

stances. ‘The majority of child abuse investigations

are penerated by professionals who have a legal

obliyation to disclose all allegations of abuse.’ Rarely

will this be someone with personal knowledpe of the

facts. Less than 15% of reporters have non

professional relationships with the child.” Instead,

teachers, legal and medical personnel, and law en-

forcement are likely to report second- or even third-

hand accounts of the abuse. In child abuse, the im

possibility of securmy a warrant without an oppor-

tunity to conduct an initial report with the child has

far less to do with time constraints, and everything to

do with the quantum of evidence presented ino an

initral referral

“US Department of Health and Thurman Services, supra

(200K), available at) http /wwwoeef his vov/proyrams/cb/pubs/

cmOS/chapter? himady

fhiad

Further complicating matters is the Court’s dis-

approval of warrants based on less than probable

cause in Griffin vo Wisconsin.’ In assailing the dis

sent of Justice Blackmun, who advocated that a war

rant based on less than probable cause would be a

better substitute for unbridled probation searches,

Justice Sealia reasoned for the mayority that “[t}he

Constitution prescribes ... that where the matter is

of such a nature as to require a judicial warrant, it is

also of such a nature as to require probable cause.”

‘These sad realities do not bode well for the

protection of children. Without an exception to the

traditional Fourth Amendment requirements, state

actors will be paralyzed by a lack of information and

forced to close unsubstantiated cases leaving children

unprotected. While some could argue the merits of

further mavestigation, a crime that involves the inti

mate infliction of violence, sexual abuse, or neglect by

a parent usually requires information from an insider

the vietum oor his siblings. In the Ninth Circuit,

abusers are free to thwart such investigations by

refusing consent to imterview the child. Shrouded in

the cocoon of child privacy, the abuser may continue

hisor her campaign of berror.

In no other scenamo would courts impose a

requirement of consent by a potential offender in

order to speak with a victim, outside of the home,

" Griffin o Wisconsin, 4853 US. 868, 873 (1987)

* [hid

2:

when neither probable cause nor exigent circum-

stances can be demonstrated.

D. Oregon’s child protection statute provides

an adequate substitute for the warrant re-

quirement,

Deschutes County sheriff’s deputies are mandat

ed by law to respond to all reports of child abuse they

receive. “If the department of Human Services or a

law enforcement agency receives a report of child

abuse, the department or agency shall immediately:

(a) Cause an investigation to be made to determine

mil

the nature and cause of the abuse of the child.

The imperative mature of the statute and the

identification of the parties responsible for investiga

tion satashes the Court’s rule in New York vo Burger

where a statutory regulation was deemed to be an

adequate substitute for a warrant because “the

velucle dismanther knows that the inspections to

Which he is subject do not constitute discretionary

acts by a povernment official, but are conducted

pursuant to statute . and notifies the operator whe

, . ‘A)

is authorized to conduct such an investigation.”

a>

Or Rev Stat § 419B 020 (2009)

te . ',

New York v. Burper, supra, at @11

24

Kk. When an allegation of child abuse comes to

the attention of state actors, confined by

statute to a non-discretionary response,

they should be able to conduct a reasona-

ble interview with the child in a school

setting without probable cause, reasonable

suspicion, or parental consent in order to

determine if the child needs protection.

A {s]tate can address a mayor social problem

both by way of an administrative scheme and

through penal sanctions. Administrative

statutes and penal laws may have the same

ultimate purpose of remedying the = social

problem, but they have different subsidiary

purposes and prescribe different methods of

addressing the problem... . [A] regulatory

approach contrasts with that of the penal

laws, a mayor emphasis of which is the pun-

ishment of individuals for specific acts of be

havior

In United States vo Biswell, we recopoized

this fact that both administrative and penal

schemes can serve the same purposes by ob

serving ... the ullimate purposes of the

Act land the statute to be in harmony | 7

The Orepon statutes directing child) protection

investigations are qualifying administrative statutes

which notify the public that jornt investigations of

child abuse reports by law enforcement and social

ld at 712-715 Gext in brackets mot to orwainal)

services are mandated by law. The statutory scheme

upon Which these statutes rest was desipzned to serve

a special need of government: the protection of chil-

dren from abuse. The regulotions enacted support

that function by providing efficient and effective

procedures which improve outcomes for children as

proved by concrete data. ‘The statutes are not based

on criminal sanctions, but rather the provision of

adequate services to insure their health and safety

These regulations provide an adequate substitute

for the warrant requirement as they are non-

discretionary and clearly advise the public which

government actors are permitted to imvestipate

reports of child abuse. ‘The regulations do not permit

the unposition of involuntary services unless there is

reasonable cause to believe that a child has been

abused. Even then, the statutory scheme mandates

services designed to keep families intact where war

ranted.

School interviews, which are also authorized

under the scheme, further the special needs of the

government's interest in protecting children by allow

Ing interviews in a safe location that is Known to the

ehild during regular business hours where school

offeials charged with the care of the child can inter

vene in any unreasonable conduct by other povern

ment actors

Interviews of children are the least intrusive

means aviulable to povernmment actors ino a child

protection inves’.gation. The case at hand presents

26

no issue of refused consent, trickery, or intrusive

search during the relevant encounter with SG.

Instead it asks for permission to “follow up” with

questions as tmphliedly endorsed by Justice Ginsberg

in her concurrence and dissent in Safford vo. Red-

ding.”

—— -—— -@

CONCLUSION

Hlaving satished each prong of the special needs

test that has evolved through the opinions of this

Court, the amir seek approval for reasonable inter-

views of all reported victims of child abuse at schoo!

during school hours without requiring probable cause

or reasonable suspicion.

Dated. December 17, 2010

Respectfully submitted,

BONNIE M. DUMANIS

Distmet Attorney of the

County of San Diego, California

JAN SCULLY

District Attorney of the

County of Sacramento, California

SOPHIA G. ROACH

Deputy District Attorneys

Counsel of Record

Counsel for Amteot Curtae

* Safford Unified Sch Dist #1 ve Redding, 1298 Ct 2633,

VO4dS (2009) (Ginsbery concurring in part, dissenting in part)