Amicus Curiae Brief — Camreta v. Greene

Consolidated Nos. 09-1454 and 09-1478

-_- -- = ree ee

IN THE SUPREME COURT OF THE

UNITED STATES

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,

Respondents

BOB CAMRETA, Petitioner,

Vv.

SARAH GREENE, personally and as next

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

Respondents

On Writs of ‘Certiorari tot the U nited States

Court of Appeals for the Ninth Circuit

Brief for Amicus Curiae Liberty Counsel in

Support of Respondents

Mathew D. Staver ~ Stephen M. ‘Crampton

(Counsel of Record) Mary E. McAlister

Anita L. Staver LIBERTY COUNSEL

LIBERTYCOUNSEL PO Box 11108

1055 Maitland Center Lynchburg, VA 24506

Commons, 2d Floor (434) 592-7000

Maitland, FL 32751 Attorneys for Amicus

(800) 671-1776

Kmail: court@lc.org

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....0000000000000000000... iv

INTEREST OF AMICUS CURIAE............... I

SUMMARY OF ARGUMENT ....0000. 0. 2

LEGAL ARGUMENT ..... cece eec cess eee enes 5

I. PETITIONERS VIOLATED

RESPONDENTS’ FUNDAMENTAL

LIBERTY INTERESTS IN THE

INTEGRITY OF THEIR FAMILY

WHEN THEY SEIZED S.G. AND

INTERROGATED HER WITHOUT

PARENTAL NOTICE OR CONSENT. 5

il. THE DIMINISHED EXPECTATION

OF PRIVACY ACCORDED PUBLIC

SCHOOL STUDENTS SUBJECTED

TO SEARCHES BY SCHOOL

OFFICIALS IS INAPPLICABLE TO

THIS NON-SCHOOL RELATED

INTERROGATION THAT

HAPPENED TO OCCUR ON SCHOOL

FE SED Uv ccsnesverneccotsecenscssonsensonseevezansion 9

Il.

A. T.L.O. Is Inapplicable’ Here

Because This Was Not A Search

Carried Out By School

Authorities In Furtherance Of

The Need To Maintain

Discipline In The Schools....... 10

BB. The Vernonia And

Pottawatomie County Cases Are

Inapplicable Here Because This

Search Was Not Carried Out By

School Authorities In

Furtherance Of Their Custodial

Responsibility Over Students.

GOVERNMENT AGENTS SHOULD

NOT BE PERMITTED TO

CIRCUMVENT FOURTH

AMENDMENT STANDARDS FOR IN-

HOME INTERROGATIONS OF

CHILDREN BY MOVING THE

INTERROGATIONS TO A PUBLIC

PPR Ts sncssranimtcemmeinnenndamnmeninnnmnenenttan 16

A. With The Protective Shield Of

T.L.O., Vernonia And

Pottawatomie County

Unavailable, Petitioners Were

Required To Follow Precedents

Kstablishing That Fourth

Amendment Restrictions Must

Be Followed During Child

Abuse Investigations. .............. 17

B. Petitioners Should Not Be

Permitted To Circumvent The

Statutory Protections Congress

Put In Place To Protect

Families’ Fourth Amendment

Rights During Child Abuse

Investigations. ..................ceceeeees 25

IV. GOVERNMENT AGENTS SHOULD

BE REQUIRED TO PRESENT CLEAR

AND CONVINCING EVIDENCE OF

CAUSE FOR EMERGENCY

REMOVAL BEFORE HAVING

ACCESS TO CHILDREN FOR

INTERROGATION WITHOUT

NOTICE OR CONSENT OF THEIR

FSET Ti. nivcctstneceninenstnennicsinetiestiommnnnnts 29

CFI canccnevencnnssosscntoccessenssestensenssentuts 34

iv

TABLE OF AUTHORITIES

Cases

Addington v. Texas,

ee a te I iicivscknientcicvnccenidenintvaetaes 29, 30

Bd. of Educ. of Indep. School Dist. No. 92 of

Pottawatomie County v. Earls,

Ue S525. BEE Ce ocecvsvcnccccccesccses 10, 14, 15,18

Boddie v. Connecticut,

FG fy NEI S PRES ean ey eee anes Saabs | 8

Calabretta v. Floyd,

189 F.3d 808 (9th Cir. 1999) 2.000.000... 3, 17-19

Croft v. Westmoreland County Children and

Youth Services,

103 F.3d 1123 (8d Cir. 1997). ............0.....0.... 20

Doe v. Heck,

327 F.3d 492 (7th Cir. 2008) ..........000..... 18, 22

Greene v. Camreta,

588 F.3d 1011 (9th Cir. 2009). 20.0.0... 3, 24, 30

Griswold v. Connecticut,

Re Ee HE CR ivecnstecoticctuniccnsssssenetpisennanece 6

Kovacs v. Cooper,

le. Oe Oe iiesdccsantceuéceecceuctesecnsss\ewvnavads 6

Meyer v. Nebraska,

Be eee ee CID ovsccisidsacsecccccucenveccooncuccesvacsecs 5

M.L.B. VU. S.L..,

ey Be eR iciietciintasiasctinenedenicnanexncscscacees 8

Michael C. v. Gresbach,

526 F.3d 1008 (7th Cir. 2008) ...0.00000000000... 1,2

Michael H. v. Gerald D..,

er ee cicceceisevscecimrsienespnionsunciwbasane 8

New Jersey v. 7.L.0.,

469 U.S. 325 (1985) .............3, 9, 10-12, 17, 18

Parham v. J.R.,

ee Se ee Bees icenannickesdiersenrrericivesnenicnes 7

Pierce v. Society of Sisters,

gE SAREE SRE Sipe ees ee Nee 5

Picha v. Wielgos,

410 F. Supp. 1214 (N.D. Tl. 1976) ............... 12

Prince v. Massachusetts,

I ig 5

Rogers v. County of San Joaquin,

487 F.3d 1288 (9th Cir. 2007) .......... 18, 24, 25

vl

Santosky v. Kramer,

ee Pe ME vitkvesiktsscosdicncsncussscsedes 7, 29-31

Smith v. Organization of Foster Families For

Equality and Reform,

A is ee Ot ive teshscccodncbenvacdctnesuscutcentas 6

Stanley v. Illinois,

Ie SII dish nicccncaceskcosscssusceschanoceekes 6

Troxel v. Granville,

OE, BU IN ois dicocccvisicdcdcaccacsss, 2,5,8

Vernonia School Dist. 47J v. Acton,

515 U.S. 646 (1995)... 9 10, 13-15, 18

Wallis v. Spencer,

202 F.3d 1126 (9th Cir. 2000) ....7,8, 18, 20-22

Statutes

42 U.S.C. §5106a....... cee tes eed an Ee 25, 26

Keeping Children and Families Safe Act of

2003, S. 342, Pub. L. No. 108-36, 117 Stat.

UTNE weivusitinicigiiceinccetntsdishaudiertaenaueeabiadanidinidairecends 25

Other Authorities

Dorianne Lambelet Coleman,Storming — the

Castle to Save the Children: The Ironic Costs

of a Child Welfare Exception to the Fourth

Amendment, 17 WM & MARY L. REV. 413

SEEN diisrdiahvseressiatsiobmmbaanebitemebsmedieucoies 23, 25, 31-34

Vil

Be, Se ei -eee ae TINOY Gaevinencataticnceassnesdevs 27-28

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INTEREST OF AMICUS CURIAE!

Liberty Counsel is a national nonprofit

litigation, education and policy organization

dedicated to advancing religious freedom, the

sanctity of human life and the family. Founded

in 1989 by Anita and Mathew Staver, who also

serves as the Dean of Liberty University School

of Law, Liberty Counsel has offices in Florida,

Virginia, Texas and Washington, D.C., and has

hundreds of affiliate attorneys all across the

nation. A significant part of Liberty Counsel’s

work has involved defending families against

government infringement and intrusions upon

fundamental parental rights. Specifically,

Liberty Counsel has represented parents and

children who have been subjected to searches

and seizures that violate both the Fourth

Amendment and fundamental parental rights.

Liberty Counsel represented parents and their

children who were subjected to searches on

_ — ———$ een

' No counsel for a party authored this brief in

whole or in part, and no such counsel or party

made a monetary contribution intended to fund

the preparation or submission of this brief. No

person or entity other than the amicus curiae

made a monetary contribution intended to fund

its preparation or submission. The parties have

consented to the filing of Amicus Briefs, and

such consents are on file with this Court.

private school property, without notice and

consent, in Michael C. v. Gresbach, 526 F.3d

1008 (7th Cir. 2008). In Michael C., the court

found that the parents and children had a

legitimate expectation of privacy at the private

school so that the searches of the children’s

bodies to investigate child abuse’ were

presumptively unreasonable and that no

exception to the warrant requirement was

applicable. /d. at 1015-1016.

This case presents a_ similar clash

between parental rights and the Fourth

Amendment that threatens the sanctity of the

family. Liberty Counsel’s extensive background

in issues surrounding parental rights has

created a wealth of knowledge regarding the

issues. Liberty Counsel believes its perspective

on these issues can be of assistance in this

Court’s analysis. Liberty Counsel respectfully

submits this Amicus Curiae Brief to provide

this Court with information and arguments

that may be of assistance in analyzing the

constitutional issues raised by this case.

SUMMARY OF ARGUMENT

Most glaringly apparent, yet absent from

Petitioners’ presentation to this Court, is

Petitioners’ disregard of, disrespect for and

interference with what this Court has described

as “perhaps the oldest of the fundamental

liberty interests,” t.e., parents’ interests in the

‘are, custody and upbringing of their children.

Troxel v. Granville, 530 U.S. 57, 65 (2000). As

the Ninth Circuit recognized, “parents have an

exceedingly strong interest in directing the

upbringing of their children, as well as in

protecting both themselves and their children

from the embarrassment and social

stigmatization attached to child abuse

investigations,” and those rights were violated

by Petitioners’ actions. Greene v. Camreta, 588

Revd 1011, 1015-1016 (9th Cir. 2009).

Petitioners’ failure to address those interests in

their presentations to this Court does not make

them any less critical to this Court’s analysis.

Neither does Petitioners’ use of a school

office instead of the family home change the

need to respect parental rights and Fourth

Amendment rights when interrogating young

children for purposes of potential criminal

investigations. Calabretta v. Floyd, 189 F.3d

808, 820 (9th Cir. 1999). Petitioners attempted

to circumvent the standard established in

Calabretta by interviewing S.G. at school and

then relying on the diminished expectation of

privacy of public school students described by

this Court in New Jersey v. T.L.0., 469 U.S.

325, 340-341 (1985) to justify their actions.

Conspicuously absent from — Petitioners’

analysis, however, is the fact that the lower

expectation of privacy has been accorded to

school administrators only in the context of

school discipline standards, not’ to — all

interrogations that happen to occur on school

property. Consequently, 7.1.0. does not

provide Petitioners with a shield” against

complying with the Fourth Amendment

requirements put in place in Calabretta.

Neither does it exempt Petitioners from

complying with the statutory protections put in

place by Congress in the Keeping Children and

Families Safe Act of 2003. Congress re-

emphasized the importance of protecting

Fourth Amendment rights during child abuse

investigations, and Petitioners’ actions

circumvent those standards in a way that

threatens to disrupt family security.

Petitioners’ actions illustrate the need for

a stringent evidentiary standard for conducting

child abuse investigations. The important state

goal of preventing and responding to child

abuse allegations must be balanced with the

parents’ and children’s rights under the Fourth

Amendment in a way that will ensure that the

fundamental constitutional rights are respected

and protected. State actors should have to

present clear and convincing evidence before

invading family privacy in the way Petitioners

did here.

These issues should be thoroughly

addressed and analyzed by this Court. They are

critical to this Court’s analysis of Respondents’

constitutional rights, and to the precedent that

will be set by this Court’s decision.

LEGAL ARGUMENT

I. PETITIONERS VIOLATED

RESPONDENTS’ FUNDAMENTAL

LIBERTY INTERESTS IN THE

INTEGRITY OF THEIR FAMILY

WHEN THEY SEIZED S.G. AND

INTERROGATED HER WITHOUT

PARENTAL NOTICE OR CONSENT.

lor more than 85 years, this Court has

recognized that the interest of parents in the

care, custody, and control of their children is

perhaps the oldest of the fundamental liberty

interests protected by the Fourteenth

Amendment. Meyer v. Nebraska, 262 U.S. 390,

399 (1923); Pierce v. Society of Sisters, 268 U.S.

510, 534-535 (1925). The child is not merely a

creature of the State whose care can be doled

out at the whim of a legislature, administrative

agency or court. Meyer, 262 U.S. at 399-400;

Pierce, 268 U.S. at 535; Troxel v. Granville, 530

U.S. 57, 65-66 (2000). Instead, “[iJt is cardinal

with us that the custody, care and nurture of

the child reside first in the parents, whose

primary function and_ freedom — include

6

preparation for obligations the state can

neither supply nor hinder.” Prince — v.

Massachusetts, 321 U.S. 158, 166 (1944). “And

it is in recognition of this that these decisions

have respected the private realm of family life

which the state cannot enter.” Id.

The fundamental interest in child-rearing

pre-dates the founding of this country and the

Bill of Rights. Smith v. Organization of Foster

Families For Equality and Reform, 431 U.S.

816, 845 (1977) (citing Griswold v. Connecticut,

381 U.S. 479, 486 (1965)). “[T]he liberty

interest in family privacy has as its source, and

its contours are ordinarily to be sought, not in

state law, but in intrinsic human rights, as

they have been understood in “this Nation’s

history and tradition.” Smith, 431 U.S. at 845.

That is why “the interest of a parent in the

companionship, care, custody, and management

of his or her children ‘come][s] to this Court with

a momentum for respect lacking when appeal is

made to liberties which derive merely from

shifting economic arrangements.” Stanley v.

Illinois, 405 U.S. 645, 651 (1972) (citing Kovacs

v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter,

J., concurring)).

Even when, as is true here, there are

allegations that one parent might have

mistreated the children, the underlying liberty

interest, and the presumption that parents act

in the best interest of their children, does not

evaporate, and the state cannot seek to tear

apart the family unit without giving due

respect to both parents’—-and the children’s—

liberty interests. Santosky v. Kramer, 455 U.S.

745, 753 (1982); Wallis v. Spencer, 202 F.3d

1126, 1142 (9th Cir. 2000). That is particularly

true here, where there were no allegations

against Sarah G., and therefore no justification

for interfering with her rights vis-a-vis her

children. Wallis, 202 F.3d at 1142 n.14. “The

law’s concept of the family rests on a

presumption that parents possess what a child

lacks in maturity, experience, and capacity for

judgment required for making life’s difficult

decisions.” Parham vu. J.R., 442 U.S. 584, 602

(1979). “More important, historically it has

recognized that natural bonds of affection lead

parents to act in the best interests of their

children.” /d. “That some parents ‘may at times

be acting against the interests of their children’

creates a basis for caution, but is hardly a

reason to discard wholesale those pages of

human experience that teach that parents

generally do act in the child’s best interests.”

Id. at 602-603. Petitioners could not disregard

Sarah G’s parental rights and deny her the

right to be notified of, consent to and

participate in the interrogation of her daughter

merely because there were unproven

allegations made about the children’s father.

Petitioners further disregarded Sarah G.’s

rights when they failed to even address the

issue in their presentation to this Court.

Petitioners’ disregard for Respondents’

familial rights is not trivial. “Choices about

marriage, family hfe, and the upbringing of

children are among associational rights this

Court has ranked as ‘of basic importance in our

society, rights sheltered by the Fourteenth

Amendment against the State’s unwarranted

usurpation, disregard, or disrespect.” M_L.B. v.

S.L.d., 519 U.S. 102, 116 (1996) (citing Boddie

v. Connecticut, 401 U.S. 371, 376 (1971)). That

explains the “historic respect—indeed, sanctity

would not be too strong a term—traditionally

accorded to the relationships that develop

within the unitary family.”. Michael H. v.

Gerald D., 491 U.S. 110, 123 (1989). “Our

decisions establish that the Constitution

protects the sanctity of the family precisely

because the institution of the family is deeply

rooted in this Nation’s history and tradition.”

Id. at 123-124. Absent allegations (and perhaps

proof) that Sarah G. posed a danger to her

children or was otherwise unfit, Petitioners

could not intrude upon the sanctity of the

family either directly by interrogating the

children at home, or surreptitiously by seizing

5.G. and interrogating her at school without

9

even bothering to notify Sarah G. Wallis, 202

Io3d at 1142 n.14, See also, Troxel, 530 U.S. at

68-69 (“|S]o long as a parent adequately cares

for his or her children (i.e., is fit), there will

normally be no reason for the State to inject

itself into the private realm of the family to

further question the ability of that parent to

make the best decisions concerning the rearing

of that parent’s children.”).

Petitioners’ failure to address

Respondents’ familial rights does not render

those rights and Petitioners’ interference with

those rights non-existent. This Court should

not ignore the significant intrusions into the

sanctity of the family unit, but should analyze

Petitioners’ actions through the lens of the

fundamental rights accorded to Sarah G. and

her children.

Il. THE DIMINISHED EXPECTATION

OF PRIVACY ACCORDED PUBLIC

SCHOOL STUDENTS SUBJECTED

TO SEARCHES BY SCHOOL

OFFICIALS IS INAPPLICABLE TO

THIS NON-SCHOOL RELATED

INTERROGATION THAT

HAPPENED TO OCCUR ON

SCHOOL PROPERTY.

The mere fact that Petitioners chose a

school office as the venue for their interrogation

10

of S.G. does not bring it within this Court’s

precedents that have recognized a_ lowered

expectation of privacy for public school students

in certain circumstances. New Jersey v. T.L.0.,

469 U.S. 325 (1985); Vernonia School Dist. 47J

v. Acton, 515 U.S. 646 (1995); Bd. of Educ. of

Indep. School Dist. No. 92 of Pottawatomie

County v. Earls, 536 U.S. 822 (2002). In those

cases, this Court explicitly distinguished school

officials conducting searches pursuant to their

duties to maintain order and discipline, in

which the lowered expectation is appropriate,

from law enforcement searches and seizures

outside of the academic context, in which it is

not. Petitioners’ actions constitute the latter

category which must comport with the Fourth

Amendment standards required for

investigations conducted in the family home.

A. T.L.O. Is Inapplicable

Here Because This Was

Not A Search Carried Out

By School Authorities In

Furtherance Of The Need

To Maintain Discipline In

The Schools.

In 7.1.0. this Court held that in the

context of in-school searches by school officials

exercising their duty to maintain order, the

Fourth Amendment does not require a warrant

or probable cause. 7°.L.0., 469 U.S. at 341. This

1]

Court upheld a school officials’ search of a

student’s purse for cigarettes and marijuana on

the basis of individualized suspicion that she

had violated school rules, t.e., that she had been

smoking in the lavatory. Jd. at 346-347. The

7T.L.O. analysis ts instructive for demonstrating

why it cannot be used to justify Petitioners’

actions here. /d. at 340-341.

The Court discussed the need to strike a

balance between the’ student’s’ legitimate

expectations of privacy and the school’s equally

legitimate need to maintain an environment in

which learning can take place. /d. at 340.

School officials’ need for and duty to maintain

decorum and discipline requires some easing of

the restrictions normally placed upon public

authorities under the Fourth Amendment. Id.

These “special needs” make the warrant and

probable cause requirements impracticable in

the public school context because they would

undercut “the substantial need of teachers and

administrators for freedom to maintain order in

the schools.” /d. at 340-341. The Court

explicitly limited its holding to school officials

exercising their duty to maintain order. Id. at

342.

We here consider only searches

carried out by school authorities

acting alone and on their own

12

authority. This case does not

present the question’ of _ the

appropriate standard for assessing

the legality of searches conducted by

school officials in conjunction with

or at the behest of law enforcement

agenctes, and we express no opinion

on that question.

Id. at 342 n.7. (emphasis added) (citing Picha v.

Wielgos, 410 F. Supp. 1214, 1219-1221 (N.D. Ill.

1976) (holding that students in public schools

were not relieved of the protection of the

Fourth Amendment except to the extent that a

compelling state interest in the maintenance of

school activities, particularly — discipline,

required). By its explicit terms, therefore,

T.L.O. is inapplicable to this interrogation

which was not conducted by school officials

acting on their own authority in furtherance of

their duty to maintain discipline. Petitioners

are not school administrators, and they are not

investigating a_ possible violation of school

rules. Petitioners are law enforcement and

county welfare officials investigating

allegations of child abuse. Their choice to use a

room at the school instead of the student’s

home did not place them under the protection

of 7.L.0.’s lowered standards.

1s

Lb. The Vernonia And

Pottawatomie County

Cases Are Inapplicable

Here Because This Search

Was Not Carried Out By

School Authorities In

Furtherance Of Their

Custodial Responsibility

Over Students.

Similarly, Petitioners cannot rely upon

the relaxed Fourth Amendment standards

approved in Vernonia, 515 U.S. at 656, to

justify them actions. In Vernonia, this Court

found that school policy requiring suspicion-

less drug testing for athletes did not violate

students’ Fourth Amendment rights. Id. at 664-

665. “Fourth Amendment rights, no less than

lirst and Fourteenth Amendment rights, are

different in public schools than elsewhere; the

‘reasonableness’ inquiry cannot disregard the

schools’ custodial and tutelary responsibility for

children.” /d. at 656. “For their own good and

that of their classmates, public school children

are routinely required to submit to various

physical examinations, and to be vaccinated

14

against various diseases.” /d. Somewhat like

adults who choose to participate in a “closely

regulated industry,” students who voluntarily

participate in school athletics have reason to

expect intrusions upon normal rights and

privileges, including privacy. /d. at 657. As it

did in 7.L.0., this Court carefully limited its

holding. /d. at 665. “We caution against the

assumption that suspicionless drug testing will

readily pass constitutional muster in other

contexts.” [d. “The most significant element in

this case is the first we discussed: that the

Policy was undertaken in furtherance of the

government’s responsibilities, under a_ public

school system, as guardian and tutor of

children entrusted to its care.” Id.

That element was also critical in

Pottawatomie County, where this Court upheld

a school policy requiring druy testing for

students involved in non-athletic

extracurricular activities. Pottawatomie

County, 536 U.S. at 829-830. -arents

challenging the policy tried to distinguish it

from the policy upheld in Vernonia because the

Pottawatomie County policy involved non-

athletic programs. Id. The Court rejected that

distinction, holding that athletics versus non-

athletics was not the critical factor. Jd. at 831.

What was critical was the fact that the policy

was implemented as part of the school’s

15

custodial responsibility and authority over

students. /d. at 831. The Court pointed out that

students in extracurricular activities

voluntarily subjected themselves to many of the

same intrusions as did athletes and like

athletes were required to comply’ with

regulations and restrictions not imposed on the

student body as a whole. /d. at 832. Therefore,

they had the same lowered expectation of

privacy as did student athletes, and could be

subjected to the same suspicion-less, warrant-

less drug testing as were athletes, but only for

school-related discipline and safety purposes.

Id.

Another significant factor in

Pottawatomte County and Vernonia was the

lamited use of the information gathered during

the drug testing. /d. at 833; Vernonia, 515 U.S.

at 658. The test results were not turned over to

law enforcement nor even used as a basis for

disciplinary proceedings, but were used only to

protect students from injury and discourage

drug use by withholding the privilege of

participating in extracurricular activities.

Pottawatomie County 536 U.S. at 833;

Vernonia, 515 U.S. at 658. In this case, by

contrast, the information was not only turned

over to, but was actually gathered by law

enforcement officials for use in a= criminal

investigation. In addition, the interrogation

16

was not conducted by school officials acting in

their capacities as guardians of the academic

environment, but by county officials seeking to

avoid the restrictions attendant to an

interrogation in the family home.

Moving the seizure and interrogation of

S.G. from the family’s residence to a_ school

office did not shield Petitioners from the

requirements of the Fourth Amendment. A

mere change in locale did not transform the

criminal investigation of alleged child abuse by

a county child protection officer and deputy

sheriff into a school discipline investigation by

a principal or superintendent. The lessened

expectation of privacy accorded to students in

the latter circumstances cannot be applied to

relieve Petitioners of their obligations under

the Fourth Amendment.

Hl. GOVERNMENT AGENTS SHOULD

NOT BE PERMITTED TO

CIRCUMVENT FOURTH

AMENDMENT STANDARDS FOR IN-

HOME INTERROGATIONS OF

CHILDREN BY MOVING THE

INTERROGATIONS TO A’ PUBLIC

SCHOOL.

The courts and Congress have made it

clear that social welfare workers and law

enforcement must respect Fourth Amendment

17

rights when they engage in child” abuse

investigations. Absent consent, a warrant or

proof of exigent circumstances, child welfare

workers and law enforcement cannot

unilaterally seize a child and interrogate or

examine her, regardless of whether they are in

ihe family home or, as in this case, a school.

A. With The Protective

Shield Of 7.L.0., Vernonia

And Pottawatomie County

Unavailable, Petitioners

Were Required To Follow

Precedents’ Establishing

That Fourth Amendment

Restrictions Must Be

Followed During Child

Abuse Investigations.

As the Ninth Circuit correctly held,

7T.L.O. does not impose a blanket suspension of

fourth Amendment requirements anytime a

child is involved. Calabretta v. Floyd, 189 F.3d

808, 816 (9th Cir. 1999). Nor does it create a

universal exception to the Fourth Amendment

every time a government official enters upon

school property, as Petitioners claim. 7.L.0.,

469 U.S. at 842 n.7. Rather than excusing

Petitioners from Fourth Amendment

safeguards, 7.L.0., Vernonia and Pottawatomie

County point to why Petitioners were not

exempt from the Fourth Amendment merely

18

because they conducted their interrogation at

school. In all three cases, this Court

emphasized that the exemption from a warrant

and probable cause extended only to school

officials conducting investigations as part of

their duty to maintain order and discipline.

T.L.0., 469 U.S. at 342; Pottawatomie County

536 U.S. at 833; Vernonia, 515 U.S. at 658.

Importantly, this Court also emphasized that

the exemptions were acceptable because there

was no law enforcement involvement, either in

the investigations or in analyzing the results.

7T.L.0., 469 U.S. at 342; Pottawatomie County

536 U.S. at 833; Vernonia, 515 U.S. at 658. Law

enforcement is at the heart of the investigation

in this case, making the exemptions granted in

T.L.0., Veronina and Pottawatomie County

wholly inapplicable, regardless of the fact that

the investigation took place at school.

With the shield of the school venue

rendered ineffective, Petitioners are faced with

the binding precedent of Calabretta and

subsequent cases which have firmly established

that social workers and police officers violate

the Fourth Amendment when they invade the

sanctity of the family and interrogate children

without the consent of their parents and absent

exigent circumstances, regardless of whether

they are on school property. Calabretta, 189

I’. 3d at 820; Wallis, 202 F.3d at 1142; Rogers v.

19

County of San Joaquin, 487 F.3d 1288, 1297

(9th Cir. 2007); Doe v. Heck, 327 F.3d 492, 512-

513 (7th Cir. 2008).

In Calabretta, the Ninth Circuit held that

a social worker and police officer violated a

mother and child’s Fourth Amendment rights

when they unlawfully entered the family home

without a warrant and forced the mother to

assist in a strip search of her child. 189 F.3d at

820. “An unlawful entry or search of a home

does not end when the government officials

walk across the threshold. It continues as they

impose their will on the residents of the home

in which they have no right to be.” /d. “An

essential aspect of the privacy of the home is

the parent’s and the child’s interest in the

privacy of their relationship with each other.”

Id.

That interest was egregiously violated in

this case when the Petitioners decided to

bypass the home entirely-and thereby deprive

Sarah G. and S.G. of the ability to even assert

their Fourth Amendment rights—and instead go

to S.G.’s school to seize and interrogate her

without Sarah G.’s knowledge or consent. As

the Ninth Circuit wrote, the government’s

interest in the welfare of children “embraces

not only protecting children’ from physical

abuse, but also protecting children’s interest in

20

the privacy and dignity of their homes and in

the lawfully exercised authority of their

parents.” Jd. Respondents had no opportunity

to even assert those rights, let alone exercise

them, because of Petitioners’ decision to

circumvent Calabretta by showing up at S.C.’s

school. Petitioners should not be permitted to

manipulate the circumstances in order to avoid

complying with the Fourth Amendment.

The fact that Petitioners were

investigating allegations against one of the

parents does not justify their deprivation of the

other parent’s or the children’s rights. Wallis,

202 F.3d at 1142.

We note that the claims of each

family member must be assessed

separately. Here, nothing in the

record before us suggests that

Becky Wallis was anything other

than a fit and loving mother. As the

Third Circuit recently held, a state

has no interest whatever in

protecting children from parents

unless it has some reasonable

evidence that the parent is unfit

and the child is in| imminent

danger. Croft /v. Westmoreland

County Children and Youth

Services], 103 F.8d [1123] at 1125

(3d Cir. 1997)|. The government

may not, consistent with — the

Constitution, interpose itself

between a fit parent and her

children simply because of the

conduct-real or imagined—of the

other parent.

Id. at 1142 n.14 (emphasis added). The Wallis

court’s discussion of the nature and scope of

parents’ and children’s rights during child

abuse investigations is instructive = in

illustrating the constitutional problems with

Petitioners’ attempt to evade the Fourth

Amendment by interrogating S.G. at school. /d.

at 1142. “[PJarents have a right arising from

the liberty interest in family association to be

with their children while they are receiving

medical attention (or to be in a waiting room or

other nearby area if there is a valid reason for

excluding them while all or a_ part of the

medical procedure is being conducted).” /d.

“Likewise, children have a corresponding right

to the love, comfort, and reassurance of their

parents while they are undergoing medical

procedures, including examinations—

particularly those, such as here, that are

invasive or upsetting.” /d. “The interest in

family association is particularly compelling at

such times, in part because of the possibility

that a need to make medical decisions will

22

arise, and in part because of the family’s right

to be together during such difficult and often

traumatic events.” /d.

In fleck, the Seventh Circuit found that

county child welfare workers had violated the

Fourth Amendment when they interrogated a

student regarding corporal punishment on a

private school campus without a warrant or

consent. Heck, 327 F.3d at 515. The court found

that the on-campus search and seizure was

presumptively unreasonable, but would also be

found unconstitutional if the usual Fourth

Amendment test for reasonableness would

apply. /d. “In conducting this test, we do not

consider the government’s interest in the

abstract (i.e., the state’s general interest in

protecting children from abuse), but instead

evaluate whether, under the circumstances of a

particular case, the government officials in

question had “some definite and articulable

evidence giving rise to a reasonable suspicion

that a child has been abused or is in imminent

danger of abuse.” /d. (citing Wallis, 202 F.3d at

1138). There was no such evidence in Heck and

no such evidence in this’ case, making

Petitioners’ actions here unconstitutional.

In Wallis, the court was specifically

addressing invasive physical examinations

instead of the interrogation involved in this

23

case, but the relative rights of the non-accused

parent and the child are no less relevant here

than in Wallis. As one scholar said regarding

the child abuse investigation process:

Indeed, despite the authorities’ best

intentions, the process can be

harmful in two related ways. First,

the investigations undermine the

fundamental values of privacy,

dignity, personal security, and

mobility that are protected by the

Fourth Amendment. It is critical in

this regard that the Fourth

Amendment uniquely has been

interpreted to recognize the child's

own individual interest in these

values, by guarding her right also

to be free from unreasonable

searches and seizures both inside

and outside the family home.

Second, as the — introductory

illustration intimates, depending

upon the child and the nature of

the investigation, the process can

cause emotional and psychological

damage ranging from temporary

discomfort to significant long-term

harm.”

S.G., who was only nine, was removed from

class, placed in a room with a social worker and

deputy sheriff and interrogated for two hours

regarding intimate details of her family life.

Greene v. Camreta, 588 F.3d at 1017. She was

facing difficult and traumatic circumstances

that could cause long-term emotional and

psychological damage. S.G. testified that she

was scared when she was left alone with

Petitioners. /d. She had no less right to the

love, comfort and reassurance of her mother

than she would have if she were undergoing an

invasive physical examination. Likewise, Sarah

G. had a right to be present when her daughter

was being subjected to a situation that could

cause her emotional and psychological harm.

Sarah G. was not the subject of Petitioners’

investigation and therefore should not have

been deprived of her right to provide care and

comfort to her children.

2 Dorianne Lambelet Coleman, Storming the

Castle to Save the Children: The Ironic Costs of

a Child Welfare Exception to the Fourth

Amendment, 47 WM & MARY L. REV. 413, 418-

419 (2005).

Undoubtedly, child abuse and neglect are

serious problems and protecting the victims of

such abuse is an important goal. Rogers, 487

F.3d at 1297. “However, the rights of families

to be free from governmental interference and

arbitrary state action are also important.” /d.

“Thus, we must balance, on the one hand, the

need to protect children from abuse and neglect

and, on the other, the preservation of the

essential privacy and liberty interests that

families are guaranteed under both the Fourth

and Fourteenth Amendments of — our

Constitution.” /d. That balancing requires that

government authorities conform’ to the

requirements of the Fourth Amendment before

mvading familial privacy, whether in the home

or at the child’s school. See id.4

B. Petitioners Should Not Be

Permitted To Circumvent

The Statutory Protections

Congress Put In Place To

Protect Families’ Fourth

Amendment Rights

During Child Abuse

Investigations.

Petitioners’ decision to bypass the family

residence and = interrogate S.G. without

notifying Sarah G. or obtaining her consent

* See also, Coleman, at 418-419.

26

also subverts protections Congress put in place

to prevent just this kind of situation. The

Keeping Children and Families Safe Act of

2003, S. 342, Pub. L. No. 108-36, 117 Stat. 800,

added two subsections to 42 U.S.C. §5106a

aimed at protecting the Fourth Amendment

rights of parents and children during child

abuse investigations. The subsections require

that states enact:

(xvill) provisions and procedures to

require that a representative of the

child protective services agency

shall, at the initial time of contact

with the individual subject to a

child abuse and neglect

investigation, advise the individual

of the complaints or allegations

made against the individual, in a

manner that is consistent with laws

protecting the rights of the

informant;

(xix) provisions addressing the

training of representatives of the

child protective services system

regarding the legal duties of the

representatives, which may consist

of various methods of informing

such representatives of such duties,

in order to protect the legal rights

27

and safety of children and families

from the initial time of contact

during investigation through

treatment.

42 U.S.C. §§5106a_ (xvii), (xix). Congress

explained that it) enacted those’ provisions

precisely to help protect people lke

Respondents who were being subjected to

warrant-less searches and seizures during child

abuse investigations:

The committee has also included a

requirement for training of CPS

workers on their legal

responsibilities in order to protect

the constitutional and statutory

rights of children and families.

While the committee is strongly

committed to the main mission of

the child ~~ protective — services

system—to ensure that child safety

and the best interests of the child

are protected, the committee

believes it is important for child

protective services personnel to

understand and respect fourth

amendment limitations on their

right to enter a home’ when

investigating an allegation without

a court order.

2%

The committee firmly believes that

individuals being investigated for

alleged child maltreatment should

be informed of the — specific

allegations made against them. S.

342 addresses this’ issue _ by

requiring States to have policies

and procedures in place to require

child) protection workers, at the

initial time of contact, to advise

individuals who are subject to a

child abuse and neglect

investigation of the complaints or

allegations made against them. The

committee recognizes that it is a

basic right for all citizens to be

informed of what crime they are

being accused of at the time they

are being asked for an interview or

entry into their home.

S. Rep. NO. 108-12, at 15-16 (2003). Rather

than according Respondents’ Fourth

Amendment rights the respect required’ by

Congress, Petitioners side-stepped the issue by

conducting the investigation at S.G.’s_ school

instead of the family home. Petitioners should

not be permitted to evade their obligations

under the Fourth Amendment by simply

changing the venue for their investigations.

Respondents’ Fourth Amendment rights are

29

not limited to the confines of their residence,

and Petitioners should not be permitted to flout

the will of this Court and Congress by doing at

a child’s school what they cannot do in the

home. Fourth Amendment rights should not be

subjected to such gamesmanship.

IV. GOVERNMENT AGENTS SHOULD

BE REQUIRED TO PRESENT

CLEAR AND CONVINCING

EVIDENCE OF CAUSE FOR

EMERGENCY REMOVAL BEFORE

HAVING ACCESS TO CHILDREN

WITHOUT NOTICE OR CONSENT

OF THEIR PARENTS.

Petitioners’ efforts to circumvent the

requirements for in-home interrogations by

seizing and interrogating S.G. at school

demonstrate the need for stringent evidentiary

standards for government — investigations

involving children. When, as is true in this

case, a state investigation or proceeding

threatens fundamental constitutional rights,

the state should have to establish by clear and

convincing evidence that there isa

countervailing compelling interest — that

requires the extraordinary measures. Santosky

v. Kramer, 455 U.S. 745, 756 (1982). “In cases

involving individual rights, whether criminal or

civil, ‘[t}he standard of proof [at a minimum]

reflects the value society places on individual

30

liberty.” /d. (citing Addington v. Texas, 441

U.S. 418, 425 (1979)). “This Court’ has

mandated an intermediate standard of proof—

‘clear and = convincing evidence’-when the

individual interests at stake in a_= state

proceeding are both ‘particularly important’

and ‘more substantial than mere loss of

money.” Jd. (citing Addington, 441 U.S. at

424)). “The Court has deemed this level of

certainty necessary to preserve fundamental

fairness in a variety of government-initiated

proceedings that threaten’ the individual

involved with ‘a= significant deprivation of

liberty’ or ‘stigma.” Id. (citing Addington, 441

U.S. at 425)).

In the parental rights context, a “clear

and convincing evidence” standard of proof

strikes a fair balance between the rights of the

natural parents and the State’s legitimate

concerns. Id. at 769. “We hold that such a

standard adequately conveys to the factfinder

the level of subjective certainty about his

factual conclusions necessary to satisfy due

process.” Id. There was no such balancing of

rights in this case. Instead, Petitioners

unilaterally elevated their interest in an

intrusive, unobstructed interrogation of a nine-

year old over the constitutional rights of the

child and her mother to gain access to the child

based on no more than a double hearsay

3]

suggestion that there might have been some

conduct that might indicate abuse. Greene uv.

Camreta, 588 F.3d at 1016-1017. Petitioners’

conduct does not reflect the pre-eminent value

placed upon individual liberty or the

fundamental fairness that this Court found

imperative in Santosky. This Court should re-

emphasize that government agents cannot gain

access to children for such’ investigations

without meeting the clear and = convincing

evidence standard described in Santosky, 455

U.S. at 769.

Proceeding, as Petitioners did here,

without meeting such standards, obtaining a

warrant or consent or adducing proof of exigent

circumstances “reflects an unacceptable bias

against individual and family privacy.”4 “When

all of the relevant interests are carefully

cvaluated—notwithstanding the almost

religious sense of many child advocates to the

contrary—there is a strong child-friendly case to

be made for requiring valid consent, a_ real

exigency, or a partrcularized warrant and

probable cause before a state conducts a child

maltreatment investigation that involves either

a home visit or a sequestration and oral or

physical examination of a child.”’ “These

4 Id. at 509.

0 Id. at 582.

32

traditional procedures best balance the various

private interests and public needs at issue in

the child welfare context, by assuring that the

state can conduct a properly circumscribed

investigation when it has proved to a neutral

evaluator that a child is probably at risk.’®

Such requirements also preserve — the

presumption of innocent until proven guilty

from the kind of reversal apparent in this case,

where Petitioners conducted their investigation

under the premise that the father and mother

were presumed guilty.

Adhering to the traditional Fourth

Amendment — protections and evidentiary

standard described in Santosky also protects

the children’s’ constitutional rights. “This

approach uniquely respects the child’s own

Fourth Amendment interest in privacy, dignity,

personal security, and mobility, by recognizing

that, in general, the vitality of these values is

intimately and even inextricably linked to the

child’s sense that she is one with her family. At

the same time, it allows for the reality that this

unity 1s sometimes broken from within’ by

abusive or neglectful parents, giving rise to the

need for the state to intrude into the circle of

33

family privacy when a child likely needs to be

rescued.””!

That circle should not be as. easily

penetrable as it was in this case. “{P|rivacy is

essential to securing parental authority and the

unity of the family group, and to the sense of

dignity and personal security of its individual

members especially the children.”® “The law

cannot realign the children’s interests away

from their parents on the basis of a mere

subjective suspicion of maltreatment and also

be true to the children’s developmental needs

or their Fourth Amendment rights.”® “The fact

is, most parents are their children’s first, best

‘aretakers, and thus’ the — time-honored

presumption that parents act in their best

interests 1s both deserved and necessary to the

children’s wellbeing.”!

Of course, “the sovereignty of the family

cannot be so impenetrable that it prevents the

state from saving children who are at real risk

of maltreatment. At the same time, it cannot be

so porous as to allow the state to storm the

castle to ‘save’ children who do not need

i Id. at 5382-533.

8 Id. at 536.

9 Id. at 586-537.

10 Id.

34

saving.”!! “I*rom the children’s perspective, only

a compromise conception that — reflects

appropriate respect for family privacy is just

and healthy. ‘The Fourth Amendment’s

traditional requirements precisely ensconce

this conception.”'? This Court should clarify

that those requirements must apply to child

abuse investigations, whether interrogations

take place in the home, at school or at some

other location.

CONCLUSION

Government agents investigating

potential child abuse within the family should

not be permitted to circumvent Fourth

Amendment protections by interrogating a

nine-year-old at her school without her parent’s

knowledge or consent. Even if one parent is the

subject of the investigation, the rights of the

other parent and the child must be respected

and protected. This Court should re-emphasize

the fundamental importance of family privacy,

integrity and the Fourth Amendment by

clarifying that the protections accorded to

it Id. at 537.

12 ld.

35

families in their homes must extend = to

investigations conducted away from home.

January 31, 2011.

Mathew D. Staver Stephen M. Crampton

(Counsel of Record) Mary EK. McAlister

Anita L. Staver LIBERTY COUNSEL.

LIBERTY COUNSEL — PO Box 11108

1055 Maitland Center Lynchburg, VA 24506

Commons, 2d Flr. (434) 592-7000

Maitland, FL 82751 Email: court@lc.org

(800) 671-1776 Attorneys for Amicus

Kmail: court@lc.org

Attorneys for Amicus

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