Amicus Curiae Brief — Camreta v. Greene

Nos. 09-1454 and 09-1478 (Consolidated)

Bn the Supreme Court of the Anited States

BOB CAMRETA,

Petitioner,

Vv.

SARAH GREENE, Personally and as Next

Friend for S.G., a Minor, and K.G., a Minor,

Respondent.

JAMES ALFORD, DESCHUTES COUNTY

DEPUTY SHERIFF,

Petitioner,

Vv.

SARAH GREENE, Personally and as Next

Friend for S.G., a Minor, and K.G., a Minor,

Respondent.

On Writs of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF EAGLE FORUM

EDUCATION & LEGAL DEFENSE FUND, INC.,

IN SUPPORT OF RESPONDENT

LAWRENCE Jd. JOSEPH

1250 CONN. AVE. NW #200

WASHINGTON, DC 200386

202) 669. 5135

hoseph@larryjyoseph.com

Counsel for Amicus

a EI EE RN OES I TELL SL

Wu SON F PES PRINTING CO , INC (202) 789-0096 -— WaSsrwiNGTON D C 20002

QUESTIONS P

These consolidated cases present three questions,

with two essentially mirroring each other to phrase

the merits question and one raised only in No. OY

1454, but essentially common to both cases.

1.

Does the Fourth Amendment require a warrant,

a court order, parental consent, or exigent

circumstances before law enforcement and child

welfare officials may conduct a temporary

seizure and interview at a public school of a child

whom they reasonably suspect was being

sexually abused by her father’ (No. 09-1478)

The state received a report that a nine-year-old

child was being abused by her father at home. A

child-protection caseworker and law-enforcement

officer went to the child’s school to interview her

To assess the constitutionality of that interview,

the Ninth Circuit apphed the traditional

warrant/warrant-exception requirements that

apply to serzures of suspected criminals. Should

the Ninth Circuit, as other circuits have done,

instead have applied the balancing standard that

this Court has identified as the appropriate

standard when a-witness is temporarily

detained? (No. 09-1454)

The Ninth Circuit addressed the

constitutionahty of the interview in order to

provide “guidance to those charged with the

difficult task of protecting child welfare within

the confines of the Fourth Amendment|,]” and it

thus articulated a rule that will apply to all

future child-abuse investigations. Is the Ninth

Circuits constitutional ruling | reviewable,

notwithstanding that it ruled in petitioner's favor

on qualified immunity grounds? (No. 09-1454)

In this brief, amicus curiae Eagle Forum answers

Questions | and 2, which essentially cover the same

merits issues

Pages

Questions Presented ....... Ps Ne etree ss Galawneite scab Ranbadensates i

Sn IIE «oa cau ncunndinn banghenebenmaedaedaimenaaons iil

A ee no vvcevncvuncvevencurscavécvasdaccuvneuasusses V

SER Ae I TIO oo vc accicescnsccocnccenisthscnsdenerssese |

Constitutional Background......0.0..........-.00.0.0.0.00. 000s. 2

ee i eceseubiouecrssiecberncocktaniey 3

NN NG on . cconvcndssecesecenssesistbemasweseenans 5

= pain ac anneesuntnaniiniacusenaepacpnaastnces 7

1 ‘The Fourth Amendment Requires a Warrant or

Warrant Exception to Seize a Minor Child in a

Criminal Investigation ....................cccccceeeeeeeeeeeees 7

A. Existing Fourth-Amendment Flexibility

Suffices for Seizing Minor Children in

Criminal Investigations ................................ a)

8. The Petitioners’ Seizure of S.G. Was Not

Reasonable under Terry .............................. 11

ll. The Petitioners’ Proposed ‘Tests for

“Reasonableness” Cannot and Do Not Justify the

I NIT TE Th: « sclssinccigedennismnnanuaitnedenionblcadtadnislanininesncess 13

A. The “Special Needs” Exceptions Do Not

Apply to Criminal Investigations ............... 13

8. Lidster Did Not — and this Court Should Not

Create a Per Se Fourth-Amendment

Exception for Seizing Witnesses................. 14

C. T.L.O. Did Not — and this Court Should Not —

Create a Per Se Fourth-Amendment

Kxception for Seizing Minors in Public

ARE ane Mk 4a lot Renee 16

I. The Seizure of S.G. Cannot Survive Any

framework Consistent with the Fourth

EE OTS Ee LTS ICE PO NNP EOE GODT PNT ED 19

Conclusion ............. 59 ae Lear PE raRR EY ase Oh ee Beets arta ken oe 20

1V

TABLE OF AUTHORITIES

Pages

Cases

Brigham City, Utah v. Stuart,

Se ab eenesnasemueunnacedan 9

Brown v. Texas, 443 U.S. 47 (1979) .......0.00.0-0- 2.22. 11

Camara v. Municipal Court of City & County of

San Francisco, 387 U.S. 523 (1967) ................. 7,8

City of Indianapolis v. Edmond,

EP: Ge ID cntcasdsctnctadgedesesécndeconesous 12, 15-16

Colorado v. Bertine, 479 U.S. 367 (1987)......0.0.......... i)

Ferguson v. City of Charleston,

Oe 13-14

Frost v. Railroad Comm'n of State of California,

Be Pn Ce I ade kn saiceccscccaccicccscecsansindwdsess 18-19

Greene v. Camreta,

588 F.3d 1011 (9th Cir. 2009)..................00........ 0. 4

Illinois v. Lidster,

540 U.S. 419 (2004)........................ 6, 14-16, 19, 20

Lassiter v. Dep't of Social Services,

EE es ie CE cssekcssbpnnisaaiadiidesecscnutansias 3, 10-11

Mapp v. Ohuvo, 367 US. 643 (1961)... eee. 2

Mathews v. Eldridge,

re ee Ce I ibis coin ddtactedecttanicctaseswieets 10, 11

Mohamed v. Jeppesen Dataplan, Inc.,

614 F.3d 1070 (9th Cir. 2010).....0.000000000.0...... 16-17

New Jersey v. T.L.0O.,

469 U.S. 325 (1985)..................... 9, 13, 14, 16-18

New York v. Burger, 482 U.S. 691 (1987).................. 9

Vv

Pierce v. Society of Sisters,

SE a A I icici cichnsatinenmeniasandeonaasrsehins 2-3

Santosky v. Kramer, 455 U.S. 745 (A982)............ 3,10

Skinner v. Railway Labor Executives’ Ass'n.,

ee SS Mee eee TRE nae 19

Terry v. Ohvo,

£ Oe 6). Ree 6, 7, 8, 10-13, 19-20

U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975)............. 7

U.S. wv. Deomtate, 490 USS. 2B CRBTED onccecsccccccccscecesosecsss 9

U.S. v. Place, 462 U.S. 696 (1981) ....................0.000 12

Vernonia Sch. Dist. 47J v. Acton,

ee We, acs eisancaemmnisene 17

Wisconsin v. Yoder, 406 U.S. 205 (1972) «0.000.000.0000... 3

Statutes

Re Ee, NIE OP a. a scaune Sobaiesemennaneies passim

Oy I ns cccmmak noeebacneans 5

Ft, es MINER, WS MUD: Woo ivi ccnasanianencstnsiscancaads 2,5,8

re, ee ee combs naneamnb 2,5

U.S. CONST. amend. XIV, §1, cl. 8.........000.0000000-. 3,5, 8

Rules, Regulations and Orders

OR ra can ce cadet cola aaevnigabieiienbed 2

Other Authorities

Timothy J. Gilfoyle, The Moral Origins of

Political Surveillance: The Preventive Society

in New York City, 1867-1918, 38 AMERICAN

QUARTERLY G37 (IGBGE)........ccccccccccccccccccccssssescoesees 5

Doriane Lambelet Coleman, Storming the Castle

to Save the Children: The Ironic Costs of a

Child Welfare Exception to the Fourth

vi

Amendment, 47 WM. & MARY L. REV. 413

EERE RESIS RE oe Bone 8 Been ke AER Reman bo 5

JANE WALDFOGEL, THE FUTURE OF CHILD

PROTECTION: HOW TO BREAK THE CYCLE OF

ABUSE AND NEGLECT (Harvard University

SN Nuh re als agaekebeneabibudin 5

vu

Nos. 09-1454 and 09-1478 (Consolidated)

| In the Supreme Court of the United States

BOB CAMRETA,

Petitioner,

Vv.

SARAH GREENE, Personally and as Next

Friend for S.G., a Minor, and K.G., a Minor,

Respondent.

JAMES ALFORD, DESCHUTES COUNTY

DEPUTY SHERIFF,

Petitioner,

Vv.

SARAH GREENE, Personally and as Next

Friend for S.G., a Minor, and K.G., a Minor,

Respondent.

On Writs of Certiorari to the United States

Court of Appeals for the Ninth Circuit

INTEREST OF AMICUS CURTAE

Amicus curiae Kagle Forum Education & Legal

Defense Fund, Inc. (“Eagle Forum”)! is a nonprofit

' Amicus Eagle Forum files this brief with the

consent of all parties; Petitioners’ and Respondent's

written letters of consent have been lodged with the

(Footnote cont'd on next page)

organization founded in 1981 and headquartered in

Saint Louis, Missouri. Eagle Forum has repeatedly

defended parents and families against governmental

encroachment on parental rights and = family

autonomy. For the foregoing reasons, Kagle Forum

has a direct and vital interest in the issues presented

before this Court.

CONSTITUTIONAL BACKGROUND

The Fourth Amendment provides that “[t}he

right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.” U.S. CONST. amend. IV. By its

terms the Fourth Amendment applies only to the

federal government, but the Fourteenth Amendment

incorporates it to apply to the States. Mapp v. Ohio,

367 US. 643, 655 (1961).

The Fifth Amendment’s Due Process Clause

provides that “No person shall ... deprived of life,

liberty, or property, without due process of law.” U.S.

(Footnote cont'd from previous page.)

Clerk of the Court. Pursuant to Rule 37.6, counsel for

amicus curiae authored this brief in whole, no

counsel for a party authored this brief in whole or in

part, and no person or entity — other than amicus, its

members, and its counsel — contributed monetarily to

the preparation or submission of this brief.

2

CONST. amend. V cl. 4. The Fourteenth Amendment's

Due Process Clause apphes this same protection of

the people to State government. U.S. CONST. amend.

XIV, §1, cl. 3. This liberty interest provides the

procedural and substantive due-process protections

for parents’ control over the raising of their children,

including — of course — custody over their children.

See, e.g., Pierce v. Society of Sisters, 268 U.S. 510,

534-35 (1925) (striking state law requiring children

to attend public schools as “interfer[ing] with the

liberty of parents and guardians to direct the

upbringing and education of children under their

control”); Wisconsin v. Yoder, 406 U.S. 205, 213-36

(1972) (exempting Amish children from compulsory

school-attendance law because inter alia it impinges

on the fundamental rights of parents with respect to

religious upbringing of their children); Lassiter vu.

Dep't of Social Services, 452 U.S. 18, 31-32 (1981)

(parents have procedural due-process rights in state-

initiated proceeding to terminate parental rights);

Santosky v. Kramer, 455 U.S. 745, 754 (1982) (same).

STATEMENT OF FACTS

Respondent Greene prevailed in establishing

that Petitioners Alford and Camreta (collectively,

“Petitioners’) violated the Fourth Amendment when

they conducted a two-hour interview of Greene’s

nine-year-old daughter, S.G., in a closed conference

room at S.G.’s public elementary school. Because

Alford is a deputy sheriff and Camreta is a social

worker in child-protective services, they argued their

qualified immunity from damage claims. Viewing the

fourth Amendment's protections as insufficiently

established when Petitioners seized S.G., the Ninth

Circuit found qualified immunity to apply.’

The facts here — and this Court’s resolution of

this case — fit within the larger societal context of the

legal and administrative regimes that identify and

prosecute child abuse. As the Ninth Circuit

explained, only a quarter of the investigations

conducted by state and local agencies concluded that

the children in question were indeed victims of

abuse. Greene v. Camreta, 588 F.3d 1011, 1015 (9th

‘ir. 2009) (citing U.S. Dep't of Health & Human

Services, Admin. on Children, Youth & Families,

Child Maltreatment 2007 (2009)). This 3:1

discrepancy does not occur in a vacuum.

These investigations can have devastating

stigmatic consequences for the children and parents.

Here, the Greene family - which would have suffered

financially from having Mr. Greene stay outside the

home while Petitioners pursued their investigation —

has been burdened by a criminal trial, as well as a

civil claim brought all the way to this Court. As the

Ninth Circuit explained, the 3:1 “discrepancy creates

the risk that ‘in the name of saving children from the

harm that their parents and guardians are thought

to pose, states ultimately cause more harm to many

more children than they ever help.” Greene, 588 F.3d

at 1016 (quoting Doriane Lambelet Coleman,

Storming the Castle to Save the Children: The lronic

2 Petitioner Camreta’s challenged post-seizure

conduct is not at issue in this appeal.

Costs of a Child Welfare Exception to the Fourth

Amendment, 47 WM. & MARY L. REV. 413, 417

(2005)).

Professor Coleman's immense and “ironic” costs

like the costs that Petitioners visited on the

Greenes — trace back to the first child-protection

organizations, chapters of the Society for the

Prevention of Cruelty to Children (“SPCC”). The poor

and immigrant communities that the SPCCs policed

knew the SPCCs as “the Cruelty,” because of their

agents reputations for engineering the removal of

children from homes and _é families deemed

undesirable, Timothy J. Gilfoyle, The Moral Origins

of Political Surveillance: The Preventive Society in

New York City, 1867-1918, 38 AMERICAN QUARTERLY

637-52 (1986), and, incidentally, tending to

institutionalize them, rather than find new and

better homes. JANE WALDFOGEL, THE FUTURE OF

CHILD PROTECTION: HOW TO BREAK THE CYCLE OF

ABUSE AND NEGLECT, at 71 (Harvard University

Press 1998). From their inception, then, these child-

protection services have presented an overzealous

and unfair dark side that detracts from the good that

they can accomplish. This case requires reconciling

these issues with the Fourth Amendment and the

Due Process Clauses of the Fifth and Fourteenth

Amendments.

SUMMARY OF ARGUMENT

The Fourth Amendment provides sufficient

flexibility for Petitioners to accomplish their

important functions, without violating the Fourth,

Fifth, and Fourteenth Amendment rights of families

through in-school] seizures of minors in criminal

5

investigations. (Section 1.A.) Moreover, the two-hour,

closed-door hearing here cannot qualify as a “Jerry

stop” because it was too long, too custodial, and too

intrusive, even for an adult and a fortiorari for a

nine-year-old child. (Section 1.B.) In any event,

whether the Court analyzes seizure of S.G. under the

traditional warrant exception in Terry v. Ohto or

under Petitioners’ proposals, the ultimate issue 1s

the reasonableness of the seizure. A two-hour session

behind closed doors in which the State - backed by a

uniformed office with a visible firearm — repeatedly

asks a nine-year-old child the same questions until

she breaks down and gives the desired answers is

unreasonable. (Sections 1.B, [1.D.)

Petitioners’ attempt to extend gencral language

from Jllinois v. Lidster, 540 U.S. 419 (2004), to allow

seizure of witnesses (t.e., as distinct from suspects)

misapplies the law of generalized police fact-finding

of the public at large to the targeted, individualized

seizure of S.G. For that reason, this Court must

reject Petitioners’ suggestion for a per se exception

from traditional Fourth Amendment protections for

the targeted seizure of witnesses. (Section I1.B.)

Similarly, and although it is certainly true that

parents and their children have lower expectations of

privacy at school than in the home, that does not

mean that non-school branches of State government

‘an invite themselves into schools to sidestep the

public’s protections from those non-school branches

of the States. For that reason, this Court must reject

Petitioners’ suggestion for a per se exception to

traditional Fourth Amendment protections for

seizing minors in public schools. (Section II.C.)

6

ARGUMENT

I. THE FOURTH AMENDMENT REQUIRES A

WARRANT OR WARRANT EXCEPTION TO

SEIZE A MINOR CHILD IN A CRIMINAL

INVESTIGATION

In “safeguard[ing] the privacy and security of

individuals against arbitrary invasions by

governmental officials,” the Fourth Amendment is

“basic to a free society” and inherent in ordered

liberty. Camara v. Municipal Court of City & County

of San Francisco, 387 U.S. 523, 528 (1967) (emphasis

added, interior quotations omitted).

No right is held more sacred, or is more

carefully guarded, by the common law, than

the right of every individual to the possession

and control of his own person, free from all

restraint or interference of others, unless by

clear and unquestionable authority of law.

Terry v. Ohio, 392 U.S. 1, 9 (1968) (internal

quotations omitted). At the outset, therefore, it 1s

clear that “[t}he Fourth Amendment applies to all

seizures of the person, including seizures that

involve only a brief detention short of traditional

arrest.” U.S. v. Brignont-Ponce, 422 U.S. 873, 878

(1975) (citing cases). The question is not whether the

Fourth Amendment applies here, but how it applies

on the facts of this case.

Even without competing constitutional interests,

the Fourth Amendment's application § presents

difficult questions: “translation of the abstract

prohibition against ‘unreasonable searches and

seizures’ into workable guidelines for the decision of

particular cases is a difficult task which has for

7

many years divided the members of this Court.”

Camara, 387 U.S. at 528. Here, however, the Court

must address not only the Fourth Amendment's

competing interests but also the degree to which the

State’s interests under the Fourth Amendment

impede families’ and parents’ interests under the

Due Process Clauses of the Fifth and Fourteenth

Amendments. However true that may be when

constitutional interests compete, it is especially true

here where the State’s involvement is more than

three times more likely to harm than to help in any

given intervention and seizure.

By way of background, the Fourth Amendment's

last clause requires “probable cause, supported by

Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be

seized” in two types of government actions:

(1) searches and seizures, and (2) warrants. U.S.

CONST. amend. IV. The first type of action includes a

“reasonableness” limitation on the “right of the

people to be secure in their persons ... searches and

seizures,” whereas the second type is not limited by

the constitutional text. Jd. No one disputes that

Petitioners seized S.G. without “probable cause,”

much less “probable cause, supported by Oath or

affirmation.” Therefore, Petitioners violated the

Fourth Amendment unless (1) their actions fit into

one of the existing Court-recognized exceptions,

(2) the seizure was “reasonable” under Terry v. Ohio,

392 U.S. 1, 20 (1968), or (3) Petitioners convince this

Jourt to create or expand an exception to apply here.

As explained in Sections 1B and II.D, infra, the

second and third options collapse into each other to

8

the extent that they rely on the same test for

“reasonableness.”

A. Existing Fourth-Amendment Flexibility

Suffices for Seizing Minor Children in

Criminal Investigations

This Court has recognized significant flexibility

in the Fourth Amendment, including some criteria

that potentially apply to child-abuse investigations

in schools and some that do not.s Obviously, the

fourth Amendment would have allowed Petitioners

to have proceeded with a warrant had they obtained

one, with parental consent had they sought and

received it, and in exigent circumstances if present.

U.S. CONST. amend. IV; Brigham City, Utah ov.

Stuart, 547 U.S. 398, 403-04 (2006) (discussing

exigent-circumstance exceptions); New Jersey v.

T.L.O., AGI ULS. 325, 336-37 (1985) (parents, but not

school officials, may consent to searches involving

their children). Petitioners did not attempt to avail

themselves of any of these courses.

4 See, e.g., U.S. v. Dionisio, 410 US. 1, 9 (1973)

(court-issued subpoena for witness to appeal before

grand jury in criminal investigation); New York v.

Burger, 482 U.S. 691, 716 & n.27 (1987)

(administrative searches not used as pretext to

enable law-enforcement officers to gather evidence of

criminal violations); Colorado v. Bertine, 479 U.S.

367, 372 (1987) (standard administrative search of

impounded vehicle’s contents without bad faith or

sole purpose of investigation).

Because Petitioners acted in a law-enforcement

context, and because seizing S.G. far exceeded the

Terry test for reasonableness, see Section 1.B, infra,

that would end the matter, even if this particular

law-enforcement context did not involve something

so harmful both to the children of guilty parents

when the government is objectively right and to the

innocent parents’ Due Process’ rights when

government is wrong. As indicated by the Ninth

‘“rcuit and in the Statement of the Facts, supra, the

government is wrong far more often than it is right.

Rather than follow the three-part test that

Petitioners propose, see Section II.D, infra, amicus

Kagle Forum respectfully submits that the high

false-positive error rate and the significant damage

that those errors cause commend at least considering

the three-part test from Mathews v. Eldridge, 424

U.S. 319, 335 (1976), which Lassiter imported for due

process in parental-rights termination proceedings:

[1| the private interests affected by the

proceeding; [2] the risk of error created by

the State’s chosen procedure; and [3] the

countervailing governmental interest

supporting use of the challenged procedure.

Santosky v. Kramer, 455 U.S. 745, 754 (1982) (citing

Mathews and_ Lassiter). Significantly, unlike

Petitioners’ proposed balancing test, the Mathews-

Lassiter test expressly includes consideration of the

government’s abject failure rate in this context.

Before this Court even considers excepting the

Fourth Amendment's protections of minor children

from seizure in criminal investigations, the child-

welfare industry needs to perform much better.

10

Given Petitioners’ weak factual showing and the

procedural setting here (namely, Petitioners have

moved for summary judgment), this case does not

present an opportunity for the Court to expand the

rights of the government at the expense of parents.

B. The Petitioners’ Seizure of S.G. Was Not

Reasonable under Terry

In Terry, this Court determined that the Fourth

Amendment allows an _ officer who has’ mere

“reasonable suspicion” to detain someone briefly to

confirm or alleviate the officer’s suspicion. Terry, 392

U.S. at 16-19. When the VJerry analysis applies,

courts assess reasonableness under a three-part test:

(1) “the gravity of the public concerns served by the

seizure,” (2) “the degree to which the seizure

advances the public interest,” and (3) “the severity of

the interference with individual liberty.” Brown vu.

Texas, 443 U.S. 47, 51 (1979). The Mathews-Lassiter

“risk of-error” criterion fits squarely within both the

second and third prongs this test. Whether this

Court uses a balancing test or not, the framework

that the Court adopts for seizures in the child-abuse

context must fully consider the very real — indeed

likely prospect that the very act of Petitioners’

intervening will cause more harm than good.‘

4 By its terms, the Fourth Amendment applies

even when the risk of error is zero. The risk of error’s

relevance here is that Petitioners seek an exemption

from the Fourth Amendment, based on factors that

they attribute to the child-abuse context. If it

(Footnote cont'd on next page)

1]

But the Court need not conduct the balancing

here because’ Petitioners’ two-hour, closed-door

interrogation of a nine-year-old child, with a

uniformed police officer’s firearm visible, simply does

not meet the contours of a Terry stop. Although this

Court has “decline[d] to adopt any outside limitation

for a permissible Terry stop,” the Court has “never

approved a seizure of the person for [a] prolonged 90-

minute period.” U.S. v. Place, 462 U.S. 696, 709-10

(1981). Here, Petitioners browbeat S.G. with the

same questions, over and over again, until she told

them what they wanted to hear.

Finally, because courts analyze Fourth

Amendment issues under an objective standard, City

of Indianapolis v. Edmond, 531 U.S. 32, 47 (2000), it

is irrelevant that S.G. indicated that Deputy Alford

made her feel comfortable. The relevant issue is that

Petitioners (including an armed, - uniformed

policeman) detained S.G. for two hours of repeated

questioning until she relented and gave them what

they wanted to hear.

(Footnote cont'd from previous page.)

considers Petitioners’ contextual arguments, the

Court must consider the entire context. But even if

the risk of error were zero in this context, law

enforcement would have less intrusive means to

accomplish its goals.

12

ll. THE PETITIONERS PROPOSED TESTS

FOR “REASONABLENESS” CANNOT AND

DO NOT JUSTIFY THE SEIZURE OF S.G.

Petitioners propose several alternate

mechanisms for this Court to use in evaluating the

seizure of minor children from school in criminal

investigations of child abuse, outside the Fourth

Amendment's traditional warrant and = warrant-

exception analysis. Although none of these alternate

mechanisms are appropriate, all of them lead to

essentially the same reasonableness test. See Alford

Br. at 13-14; Camreta Br. at 17. As indicated in

Section I.B, supra, Petitioners fail the Terry

reasonableness test, which Petitioners acknowledge

is comparable to the tests that they propose. See

Section II.D, infra. Whether under the Constitution

itself or the Constitution as they ask this Court to re-

write it, therefore, Petitioners must fail.

A. The “Special Needs” Exceptions Do Not

Apply to Criminal Investigations

Petitioners ask this Court to extend its “special

needs” analysis from its historic non-criminal context

to this criminal investigation. That is unprecedented:

Only in those exceptional circumstances in

which special needs, beyond the normal need

for law enforcement, make the warrant and

probable-cause requirement impracticable, is

a court entitled to substitute its balancing of

interests for that of the Framers.

7T.L.O., 469 U.S. at 351 (Blackmun, J., concurring in

the judgment). By definition, “special needs” are

“beyond the normal need for law enforcement,” id., or

even “divorced from the State’s general interest in

13

law enforcement.” Ferguson v. City of Charleston,

532 U.S. 67, 79 (2001); see also 7.L.0., 469 U.S. at

341, n.7 (distinguishing between searches “carried

out by school authorities acting alone and on their

own authority” and those conducted “in conjunction

with or at the behest of law enforcement agencies’).®

This Court should reject Petitioners’ invitation to

extend special-needs analysis to searches and

seizures in conjunction with criminal investigations.

B. Lidster Did Not — and this Court Should

Not -—- Create a Per Se _ Fourth-

Amendment Exception for Seizing

Witnesses

In a tactic defeated by the very authority on

which they rely, Petitioners ask this Court to allow

their searches and seizures of witnesses — as distinct

from suspects — based on general language in this

Court’s decision in /llinots v. Lidster, 540 U.S. 419

(2004). Because Petitioners’ proposed per se “Witness

Exception” does not comport with Lidster and offends

the Fourth Amendment, this Court must reject it.

Lidster upheld the constitutionality of a police

checkpoint established to enable police to ask

motorists whether they had information about a fatal

hit-and-run accident that had occurred around the

same time roughly a week before. Lidster, 540 U.S.

at 421-22. As a result of stopping Mr. Lidster’s

vehicle at this checkpoint, the police determined that

6 Justice Blackmun’s 7°:L.O. concurrence coined

the term “special needs.” Ferguson, 532 U.S. at 74.

14

Mr. lLadster was driving under the influence of

alcohol and arrested him. Lidster, 540 U.S. at 422.

Petitioners rely on Lidster to suggest that the

fourth Amendment does not apply when the potice

seize witnesses to third-party wrongdoing:

The checkpoint stop here differs significantly

from that in Edmond. The stop’s primary law

enforcement purpose was not to determine

whether a vehicle’s occupants were

committing a crime, but to ask vehicle

occupants, as members of the public, for their

help in providing information about a crime

in all likelihood committed by others.

Lidster, 540 U.S. at 423 (emphasis in original). “[A]n

information-seeking stop is not the kind of event that

involves suspicion, or lack of suspicion, of the

relevant individual.” Lidster, 540 U.S. at 424-25

(emphasis added). Despite its general language

distinguishing witnesses from suspects, Lidster

cannot carry the weight that Petitioners would place

on it.

Lidster distinguished a prior checkpoint decision,

City of Indianapolis v. Edmond, 531 U.S. 32, 41

(2000), which held that stops made “without

individualized suspicion” for “crime control” purposes

violate the Fourth Amendment. In doing so, the

Court explained that courts cannot read general

language in decisions to cover situations unlike the

situation in the case underlying the decision:

We must read this and related general

language in Kdmond as we often read

general language in judicial opinions — as

referring in context to circumstances similar

15

to the circumstances then before the Court

and not’ referring to quite different

circumstances that the Court was not then

considering.

Lidster, 540 U.S. at 424. The same general-language

caution that Lidster used to distinguish Edmond

easily distinguishes Lidster here. Petitioners’ cannot

extend general language from cases about

checkpoints that stopped all passers-by

indiscriminately to a case involving the targeted

seizure of a single material witness.

In any event, the Fourth Amendment does not

limit the scope of its protections only to suspects.

U.S. CONST. amend. IV. To extend the preposterous

analogy that Petitioner Camreta makes to guest

lectures by non-school officials, Camreta Br. at 31,

the Lidster-style exception could apply if Camreta

gave a lecture on abuse to an auditorium full of

students and, as part of that lecture, asked the

students whether anyone had suffered abuse. But

that is entirely different from the State’s singling out

a single student for confined questioning.

>» T.L.O. Did Not — and this Court Should

Not — Create a Per Se_ Fourth-

Amendment’ Exception for Seizing

Minors in Public Schools

In a tactic analogous to the Central Intelligence

Agency's alleged “extraordinary rendition” program,

see generally Mohamed v. Jeppesen Dataplan, Inc.,

16

614 F.3d 1070, 1073-75 (9th Cir. 2010),6 Petitioners

argue that this Court should allow their criminal

investigations to proceed carte blanche in_ public

schools on the theory that the Fourth Amendment

does not apply to schools under 7.L.O. Because this

argument does not comport with 7:L.O. and offends

the Fourth Amendment, this Court must reject it.

Schools exercise a “power [that] is custodial and

tutelary, permitting a degree of supervision and

control that could not be exercised over free adults.”

Vernonia Sch. Dist. 47) v. Acton, 515 U.S. 646, 655

(1995). “Thus, while children assuredly do not ‘shed

their constitutional rights ... at the schoolhouse gate,’

the nature of those rights is what is appropriate for

children in school.” Vernonia Sch. Dist., 515 U.S. at

655-56 (quoting Tinker v. Des Moines Independent

Community Sch. Dist., 393 U.S. 503, 506 (1969),

alteration in original, emphasis added). That

students “have been committed to the temporary

custody of the State as schoolmaster,” Vernonia Sch.

Dist., 515 U.S. at 654 (emphasis added), simply does

not mean that students have been committed to that

custody for all purposes.

In 7.L.0., a school administrator disciplining two

students allegedly caught smoking in a_ lavatory

found maryuana (as well as tobacco cigarettes) in

6 Under the alleged rendition program, the Agency

allegedly transfers foreign nationals from U.S.

custody to the custody of governments for

interrogation outside the Constitution’s reach. /d.

17

one student's purse after she denied “smok|ing] at

all.” 7!L.0., 469 U.S. at 328. In determining that the

warrant requirement did not apply, the Court

balanced “the schoolchild’s legitimate expectations of

privacy” versus “the school’s equally legitimate need

to maintain an environment in which learning can

take place.” 7.:L.0., 469 U.S. at 340. Nowhere did the

Court sanction outside law-enforcement personnel to

come on campus for targeted searches (much less

seizures) in criminal investigations. Instead, the

Court was concerned with the warrant requirement’s

“undule] interfere{[nce] with the maintenance of the

swift and informal disciplinary procedures needed in

the schools. Id. (emphasis added). Accordingly, the

“School Exception” under 7.1.0. extends only to

“search[s] of a student by a teacher or other school

official’ and, even then, only “when there are

reasonable grounds for suspectiu.g that the search

will turn up evidence that the student has violated or

is violating either the law or the rules of the school.”

T.L.O., 469 U.S. at 341-42 (emphasis added). Neither

situation applies here.

This Court should not sanction Petitioners’

efforts to compel those who cannot afford private

education to surrender their constitutional rights as

a condition to receiving a free — albeit compulsory —

public education:

It would be a palpable incongruity to strike

down an act of state legislation which, by

words of express divestment, seeks to strip

the citizen of rights guaranteed by the

federal Constitution, but to uphold an act by

which the same result is accomplished under

18

the guise of a surrender of a right in

exchange for a valuable privilege which the

state threatens otherwise to withhold.

Frost v. Ratlroad Comm'n of State of California, 271

U.S. 583, 593-94 (1926).7 Under Frost, the States

cannot do indirectly what they cannot do directly.

D. The Seizure of S.G. Cannot Survive Any

Framework Consistent with the Fourth

Amendment

Even assuming arguendo that Petitioners can

convince this Court to go beyond the probable-cause

standard of the Fourth Amendment’s warrant and

warrant-exception analysis, Petitioners still cannot

show that their seizing S.G. was reasonable: “What

is reasonable, of course, depends on all of the

circumstances surrounding the search or seizure and

the nature of the search or seizure itself.” Skinner v.

Railway Labor Executives’ Ass’n., 489 U.S. 602, 619

(1989) (interior quotations omitted). Whichever test

the Court uses to analyze the question, the bottom

line will be the same answer reached under Terry in

Section I.B, supra. By seizing S.G., Petitioners

coerced a nine-year-old girl until she capitulated,

telling the officers whatever they wanted to hear.

Petitioners propose the Lidster three-part test for

assessing reasonableness: (1) “the gravity of the

? Frost prohibited the States’ conditioning use of

public roads on a_ private carrier's voluntarily

submitting to otherwise-inapplicable regulation. 271

U.S. at 592-94.

19

public concerns served by the seizure,” (2) “the

degree to which the seizure advances the public

interest,” and (3) “the severity of the interference

with individual hberty.” Camreta Br. at 20 (quoting

Lidster, 540 U.S. at 427 (quoting Brown, 443 U.S. at

51)); Alford Br. at 33 (same).6 As indicated in

Sections [.A and I.B, the Court’s§ decisional

framework must address the fact that the child-

protection industry gets it wrong far more often than

they get it right, with devastating consequences. If

the Court uses the Lidster three-part test, it can and

must consider these profound social costs in the

second or third factors. Put simply, these seizures do

not truly advance the public interest, and they

interfere with far more than the individual liberty

negated during the period of the seizure. Even under

Petitioners’ view of the law, then, Petitioners cannot

prevail.

CONCLUSION

For the foregoing reasons and those argued by

the Respondent, this Court should affirm the Ninth

Circuit’s decision with respect to the constitutional

merits.

* The three-part test is the same under the Terry

and special-needs modes of analysis.

20

Dated: January 31, 2011 Respectfully submitted,

LAWRENCE J. JOSEPH

1250 CONN. AVE. NW #200

WASHINGTON, DC 20036

(202) 669-5135

lhoseph@larryjoseph.com

Counsel for Amicus

21

MA AAA

enti

ral

iD ae

eek eae

: ‘ Pipiris

see Goe-

eee

; A rs ae

: aa eH em ey ve

= AGORCG OA”

ee ae

aaa

AP hee Sets ae

eae wegee.

ok

wel