Amicus Curiae Brief — Camreta v. Greene

| ‘ Sade t dat © v

tietue

Nos. 09-1454 & 09-1478

: es

Supreme Court of the Gnited States

_ -—— @- -—

BOB CAMRETA,

Petitioner,

V.

SARAH GREENE, et al.,

Respondents

a oo

JAMES ALFORD,

Petitioner,

wa

SARAH GREENE, et al.,

Respondents

— e —_ ——E

On Writs Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

— ¢ —------ - EE

AMICI CURIAE BRIEF FOR THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS (NACDL), CIVIL RIGHTS AND

LIBERTIES COMMITTEE OF THE NEW YORK

COUNTY LAWYERS’ ASSOCIATION (NYCLA),

AND CENTER FOR CONSTITUTIONAL RIGHTS

IN SUPPORT OF RESPONDENTS

— — ——— ¢----—- >

MARK R. BKOWN DAVID M. PORTER

Counsel of Record Co-Chair, NACDA,

303 E. Broad Street Amicus Committee

Columbus, Ohio 43215 801 | Street, 8rd Floor

(614) 236-6590 Sacramento, California 95814

mbrown@law.capital.edu (916) 498-5700

si teat “COMLELAWRNIEF PRIKTINGCU 8225661 #@ «= |

OMCALL COLLECT +402) 542 2e il

_JAN 2% 2011

In The LEEICE OF SHE CLERK |

Page

pentane GE Seis SOWIE oo sci cins voce eccesnsceviespemeadenn ]

Bhatoment OF FMCG ...sicc<cccesscccssecccocss wetanescorancenst 3

Summary of Argument .......................... opin edanened 5

FRI os. ccccovscrseinsnnciecnactisitiinea nee &

I S.G’s Detention and 'Two-Hour Interroga-

tion Was a Full Seizure Within the Mean.

ing of the Fourth Amendment..................... 8

I].

TABLE OF CONTENTS

History Supports the Conclusion that

Petitioners’ Warrantless Seizure of S.G.

Violated the Fourth Amendment...............

A. Children in the Eighteenth and Nine

teenth Centuries Could Not Be Sum-

marily Taken From Their Parents By

Government Officials ............000.......2...

1. Founding to Civil War ....................

2 Post-Civil War to Twentieth Cen-

Bb. Twentieth-Century Reform Efforts

Established Governmental Programs

to Address Neglected and Abandoned

CIS nos civ vicnsicerseecnncoeceteere ane

No Recognized Exception Justifies Dis-

pensing With Warrants When Seizing

RUIN... ccinesusdssctistarcdeosinbtadnsantenes ieasaseeine

A. 7'L.O. Does Not Control .................

8. Familial Privacy Is Fundamental....

12

20

28

il

TABLE OF CONTENTS — Continued

Page

©. Lladster’s Focus Was Brief Encoun-

Mis. ra ccdaceseeenees edie oesadasesiolechiedwarers 30

IV. Familial Rights Do Not Evaporate at the

I so od dat eagcouaneneee 31

V. Summary Seizures Are Not Necesserv to

Achieve a Compelling Interest .................. 35

ee awunocoear y => DOT ee 39

TABLE OF AUTHORITIES

Pape

CASES

Arizona v. Gant, 540 U.S. 963 (2003)...................... 2200: 2

Barron v. Mayor of City of Baltimore, 32 U.S.

TG sities cones pcanctcsintcessebeinianinunendawendinenss ae

Board of Education of Independent School

District No. 92 of Pottawatomie County ov.

Barta, GOB UB. BEB (BBG S) .cccvcccsecesssscccecsecencsaves 26, 27

California v. Hodari D., 499 U.S. 621 (1991) .............. 9

Central Virginia Community College v. Katz,

a ee ee ai diisascrentisetactav eA aticeguservassieas 15

City of Los Angeles v. Lyons, 461 U.S. 95 (1983)... 1]

Cooper Industries, Inc. v. Leatherman Tool

Group, Inc., 5382 U.S. 424 (200)) ................... Suites

Crawford v. Metropolitan Government of Nash-

ville and Davidson County, Tennessee, 129

ee I a keianns skcepeeesncaitdindtdsitnctieonncall

Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) .................... 8

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

ID so iii ct dacudcucacnigncout dudtcepnassacmectamenrinas thie 6, 25, 27

Florida v. Royer, 460 U.S. 491 (1983) ................-... 511

Florida v. Thomas, 532 U.S. 774 (2001) ...................... 2

Grayned v. City of Rockford, 408 U.S. 104

PID sinicxensebcceandeunss : pinta dwaienteanisapaseustiaeechate eusiannciae

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

UNITES SS Belt dh att hp ROOM Se NEE ae Seer ct a 9, 12, 35, 37

iV

TABLE OF AUTHORITIES — Continued

Page

Greene v. Camreta, No. 05-6047, 2006 WI.

Se Ste TN I ciciscsnicsrpsscacieineLiusddarciiaasearoscnetsomsaoss oe

Hoffman v. Harris, 511 U.S. 1060 (1994) 0000000000.0.....38

Illinois v. Gates, 462 U.S. 213 (1983)...0.0000000000.00.......37

Illinois v. Lidster, 540 U.S. 419 (2004) ...00000000..... 30, 31

Immigration and Naturalization Service v.

Delgado, 466 U.S. 210 (1984) .........0........ cece cece ceeee eee 8

In re Gault, 387 U.S. 1 (1967)......... wteneusal 22, 23, 24, 38

Johnson v. Sackett, 793 So.2d 20 (Fla. App.

Kalmanson v. Lockett, 848 So.2d 374 (Fla. App.

PATS) «2.200000 ala hdiaanghaaseiennatnntcbalipouaaiae sipeaadiabakiaisanieall

Kolender v. Lawson, 461 U.S. 352 (1983) ..................38

Lassiter v. Department of Social Services, 452

Se GE NT cn cdensaciccusciindcotsdecnwatnsneeossucseiacuicntaictele 30

M.L.B. v. S.L.d.,519 US. 102 (1996).........................30

Mapp v. Ohio, 367 U.S. 643 (1961) 200... 22

Marshall v. Barlow’s, Inc., 436 U.S. 307

| Sees a tapsuctaicun te siaead eet Baakstes 8, 36, 37

McCabe v. Life-Line Ambulance Service, 77

raeey Gv Un I I he )

Meyer v. Nebraska, 262 U.S. 390 (1923) --.00..0.0.00000.... 29

Michigan v. Chesternut, 486 U.S. 567 (1988) ....000-...... 8

Mincey v. Arizona, 437 US. 385 (1978)... 85

New Jersey v. T'L.O., 469 U.S. 325 (1985)......... passim

Vv

TABLE OF AUTHORITIES — Continued

Page

New York v. Burger, 482 U.S. 691 (1987) ................... 25

Newton v. Burgin, 414 U.S. 1139 (1974)... 35

Ornelas v. United States, 517 US. 690 (1996) _...... —

Papachristou v. City of Jacksonville, 405 US.

NEN tskneccsrondccnccoanss cceseietesneneccasteneiiles cnlacs 15, 38

Payton v. New York, 445 U.S. 573 (1980)....... 13, 28, 29

Pierce v. Soctety of Sisters, 268 U.S. 510 (1925)........ 29

Rasul v. Bush, 542 U.S. 466 (2004)......... dass 2

Reno v. Flores, 507 U.S. 292 (19938) ......................... g

Robinson v. California, 370 U.S. 660 (1962) .............32

Safford Unified School District No. 1 v. Red-

ding, 129 S. Ct. 2633 (2009) «2000000000000... eaauaeame passim

Santosky v. Kramer, 455 U.S. 745 (1982) ......... o>

Schmerber v. California, 384 U.S. 757 (1966)........... 26

Skilling v. United States, 130 S.Ct. 2896

GP csntadcacscess ase Rta benusenneshabegsceouiapadacetiacecscanaie nce

Skinner v. Railway Labor Executives Ass’n, 489

i WN RII scapes covet crores aa OS 26

Stanley v. Illinois, 405 U.S. 645 (1972)... 6, 30

Terry v. Ohio, 392 U.S. 1(1968)........................... 11,12

Thornton v. United States, 541 U.S. 615 (2004)... 2

Treasury Employees v. Von Raab, 489 U.S. 656

See ibonkatah sess ciesdad tesa torecsaeas ate eee) Face tee 26

Troxel v. Granville, 530 U.S. 57 (2000)................ 29, 30

vi

TABLE OF AUTHORITIES — Continued

Pape

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

Pins cain cndonti eu asus taensdrhdutlansacscacchedaahicdtnn 2k 8, 10, 11

United States v. Watson, 423 U.S. 411 (1976)... passim

Villanova v. Abrams, 972 F.2d 792 (7th Cir.

WEE cuscaupcannuendenpasnndiciacadadiedtatanuctamee naa eee 8

Wallace v. Kern, 520 F.2d 400 (2d Cir. 1975)... 2

Walsh v. Erie County tepartment of Job and

Family Services, 240 F. Supp. 2d 731 (N_D.

Ohio 2003) ............... peiadcsielenateaddmedatimucuscemticts Seconds 14

Wernecke v. Garcia, 591 F.3d 3886 (5th Cir.

I ledidsteatecieeaiicsaMe acpi Nm aS ao ig)

Winston v. Lee, 470 U.S. 753 (1985)................ 28

FEDERAL STATUTES

Child Abuse Prevention and Treatment Act

(CAPTA), Pub. L. No. 93-247, 88 Stat. 4

RUNNION dicta tcstig ss Uecisisicctei ed vanamue.claedseasbacbidees asiciuenecmee ens 21

Adoption Assistance and Child Welfare Act,

Pub. L. No. 96-272, 94 Stat. 500 (1980)... 21

Adoption and Safe Families Act, Pub. L. No.

105-89, 111 Stat. 2115 (1997)..0000 See 21

at MI ED Coaeccee cack oes ta ee ee 4

STATE STATUTES

PBA. COMM BS BB-BG- RDG) « -accccccccccocccccccocaccocnssecccoceccs, 36

Ariz. Rev. Star. §§ 8-303 & 8-821... Lee a! 36

Vil

TABLE OF AUTHORITIES — Continued

Page

eee eS

oF ee Re GD RS See

COU, BRUY. SOUT. DS SUB. Be LD oonecncs ve cesccccucccceccceccces: 14

PA. CORROL. ERTAT. AR. © GSB o.onnccccccccccccccccessesccccccccsllt

oe Ee

RULES

oye ” Se Renee ae s Eaehidadeeane aaanicumanaee eee l

Sic Weis SE HI ices reg bien ag caoe cu ccsdencaceacectunaretoneuer tel l

MISCELLANEOUS

WILLIAM BLACKSTONE, COMMENTARIES ...........0.0.00000000. 15

Mark R. Brown, Rescuing Children from Abu-

sive Parents: The Constitutional Value of Pre-

Deprivation Process, 65 Onto Str. Lad. 918

Paul Chill, Burden of Proof Begone: The Perni-

cious Effect of Emergency Removal in Child

Protection Proceedings, 42 FAM. Cr. Rev. 540

(2004)....... ele ate diimonanitadercats Vcuiednbdesedi iaahcen we reonirecee

Howard A. Davidson, Child Protection Policy

and Practice at Century’s End, 33 Fam. 1.Q.

I os abis hie iascscaoesres tesa aentiinon cued passim

Sanford J. Fox, Juvenile Justice Reform: An

Historical Perspective, 22 STAN. L. Rev. 1187,

1190-91 (1971)

Vill

TABLE OF AUTHORITIES - Continued

Pape

Janet Gilbert, Richard Grimm & John

Parnham, Applying Therapeutic Principles to

a Family-Focused Juventle Justice Model

(Delinquency), 52 ALA. L. Rev. 1153 (2001)... 16

Jill Elaine Hasday, Parenthood Divided: A

Legal History of the Bifurcated Law of Pa-

rental Relations, 90 GEORGETOWN L.J. 299

(Rte res ASM RRR RR Re Rat tanto ns Mi 15, 18, 19, 20

4 Wayne R. LAFAVE, Searncit AND SEIZURE § 9.2

a eee ee eee bt hina ise 11

Wayne R. LAFAVE, SUBSTANTIVE CRIMINAL LAW

GEE SPUD vida cxncacsossentecces baer d et Pie te AMR Ee: ey E

Model Juvenile Court Act, § 13(a1), 9A U_L.A.

ERO RA ys Ee ap me pot Med Ptaemy Bey. & hee ea ANDRE. a

Model Juvenile Court Act, § 13(a2), 9A ULEL.A.

ee ditt Reducer uses STE PAT OS SES EEESY COR LDATS SMEs Aye es es

Model Juvenile Court Act, § 13(aX3), 9A ULL.A.

Be i iidveccncceccecenvenvss dete dadiias ounencnad Rie ladnnien des cadet 23

Model Juvenile Court Act, § 13(aX4), 9A ULL.A.

ERASE EY Pore epee aon mre Hop es SOONG leet AP SRR 23

Model Juvenile Court Act, § 14, 9A ULL.A. 22

SE iaccinaeadaitattichdvaen. aitnk asset susie avetnadussnbssichue aces acca 23

Model Juvenile Court Act, § 15(a\1), 9A ULL.A.

| SREP SAO nee wh teeth A a ea 23

Alexander A. Reinert, Public Interest(s) and

Fourth Amendment Enforcement, 2010 U.

FRR, a) PERRI Sept Dr fees Ocha ny Py Per 38

TABLE OF AUTHORITIES — Continued

Page

Douglas K. Rendleman, Parens Patriae: From

Chancery to the Juvenile Court, 23° 5S.

CAROLINA L. Rev. 205, 210 (1971)........0000..... eeanaes 15

Harold A. Richman, From a Radtwolopist’s Judp

ment to Public Policy on Child Abuse and

Neplect: What Have We Wrought?, 30 PEDIATRIC

RAmMoLoGcy 219, 220 (2000) .............. 20, 21, 29, 33, 34

William J. Stuntz, Warrants and Fourth Amend-

ment Remedies, 77 Va. lL. Rev. 8&1, &9]1

(1991) ede Spaced ces Sdieayvelewasaéecececacivisaese ae

Wilham Jo Stuntz, OJ. Sempson, Bill Clinton,

and the Transsubstantiwve Fourth Amend-

ment, 114 Harv. lL. Rev. $42, 848 (200) ) —....000000....38

Jacobus tenBrocek, California's Dual System of

Family Law: Its Oripin, Development and

Present Status, 16 STAN. L. Rev. 257 (1964) ....15, 16

Marvin Ventrell, From Cause to Professton: The

Development of Children Law and Practice,

eae eae, CAA. LAU, GEd CISD oc ccvescccccccccsces 16, 17, 18

United States Department of Health and

Human Services Administration for Chil

dren and Families, Appendix G: Highlights

of Child Maltreatment 2003, http://www.acf.

hhs.gov/programs/cb/pubs/cwo03/appendix/

appendixy htm Cast visited January 4, 2011) ....... 33

INTEREST OF AMICI CURIAE'

1. ‘The National Association of Criminal Defense

Lawyers “NACDIL”) is a non-profit organization with

direct national membership of over 10,000 attorneys,

in addition to more than 35,000 affiliate members

from all 50 states. Founded in 1958, NACDI is the

only professional bar association that’ represents

publi defenders and private criminal defense law-

yers at the national level. The American Bar Associa-

tion recognizes NACDL as an affilrated organization

with full representation in the ABA House of Dele-

pates

NACDL’s mission 1s to ensure justice and due

process for the accused; to foster the integrity, inde-

pendence, and expertise of the criminal defense

profession, and to promote the proper and fair adimin-

istration of criminal justice, including issues involv-

ing the Bill of Rights. NACDL files approximately 35

amicus curiae briefs cach year on various issues in

this Court and other courts. NACDI, has previously

filed amicus curiae briefs in this Court in cases, like

the present one, involving the validity of searches and

' Pursuant to Kule 47.6, counsel for amuct states that no

counsel for a party authored this brief in whole or in part, and

that no person other than amici, its members, or its counsel

made a monetary contribution to the preparation or submission

of this brief. Kespondents have filed a global consent to amiuce

filianys, and letters of consent to the filing of this brief from

petitioners have been lodged with the Clerk of the Court pursu

ant to Rule 37.3

seizures under the Fourth Amendment. See, e.g.,

Thornton vo. United States, 541 US. 615 (2004);

Arizona v. Gant, 540 U.S. 963 (2003), Florida. v.

Thomas, 532 U.S. 774 (2001).

2. The Civil Rights and Liberties Committee of

the New York County Lawyers’ Association

(“NYCLA”) was established in 1938. The Committee

sponsors forums, prepares reports and helps coordi-

nate pro bono projects on topics such as advocacy for

the indigent, education and employment for ex

offenders, collateral consequences of convictions, and

bullying in the schools. NYCLA, a 9,000-member bar

association, was established in 1908 with a_ policy

that any lawyer admitted to practice could join re-

gardless of race, religion, gender or ethnicity.

% The Center for Constitutional Rights is a

national non-profit legal, educational and advocacy

organization dedicated to advancing and protecting

the rights guaranteed by the United States Constitu-

tion and the Universal Declaration of Human Rights.

Founded in 1966, the Center has litigated numerous

landmark civil and human rights cases, many of

which have focused on ensuring the fair and humane

treatment for all persons involved in the American

criminal justice system. See, e.g., Rasul v. Bush, 542

U.S. 466 (2004), Wa'lace v. Kern, 520 I-2d 400 (2d

Cir. 1975).

3

STATEMENT OF FACTS’

Petitioner-Camreta 1s an investigator for the

Oregon Department of Human Services (ODHS).

Petilioner-Alford is a deputy sheriff. Respondent,

Sarah Greene, is the mother of a nine-year-old girl

(S.G_) who was forcibly removed from her elementary

school and interrogated for two hours by Petitioners,

who admittedly did not have probable cause, a war-

rant, exigent circumstances, or Respondent’s consent.

Petitioners’ seizure of S-G. was based on a report

received by ODHS on or about February 19, 2003.

S.G Js father, Nimrod Greene, was arrested on Febru-

ary 12, 2003 for allegedly abusing another child, F.S.,

the seven-year-old son of a family that: employed

Greene. F.S.’s mother reported at this same time her

concern that Greene might be abusing SG.

Approximately four days after this report: was

made, Camreta and Alford went to S.G.’s elementary

school and had her removed from her classroom

Alford was armed and in uniform at the time of the

seizure. Petitioners isolated S5.G. in a private room at

the clementary school in order to question her. The

questioning lasted for two hours. At the end of the

Because the District Court pranted summary judgment to

Petitioners, Respondents’ version of the facts is taken as true

and all reasonable inferences are drawe in Kespondents’ favor.

See Crawford v. Metropolitan Government of Nashuille and

Davidson County, Tennessee, 1295S. Ct. 846, 849 nn. 1 (2009).

* SG. and her younger sister, K.G., represented by their

mother, are also Respondents

questioning, SG. finally told Petitioners what they

wanted to hear — that Greene had abused her. Not-

withstanding the seriousness of this” revelation,

Petitioners allowed S.G. to return home to her father.

On March 6, 2003, Greene was charged with

abusing FS. and S.G. He was shortly released and

ordered not to have any contact with SG. or her

younger sister, K.G. On March 11, 2003, Camreta

obtained a court order placing S.G. and K.G. in foster

care, where they remained until March 31, 2003.

Given a lack of credible evidence that they had

been abused, the court on March 31, 2003 returned

S.G. and her sister to Respondent’s custody. Greene

was later tried for his alleged sexual abuse of }.S. and

S.G., but was not convicted. When the jury could not

reach a verdict, he pleaded guilty to a lesser charge

based on the allegations involving F.S. Greene re-

ceived no jail time. The charges involving S.G. were

dismissed.

Respondent filed this action on behalf of herself

and S.G. against Petitioners (in their individual

capacities) under 42 U.S.C. § 19838, alleging, inter

alia, that S.G.’s seizure and two-hour interrogation

violated the Fourth Amendment. The District Court

concluded that S.G. was seized, but concluded that it

was reasonable within the meaning of the Fourth

Amendment. On appeal, Petitioners conceded that

S.G. had been seized. Contrary to the District Court’s

holding, the Ninth Circuit ruled that S.G.’s two-hour

detention and interrogation, with the assistance of

2

law enforcement and without a warrant, violated the

Fourth Amendment.

SUMMARY OF ARGUMENT

1. Petitioners conceded below that S.G’s two-

hour detention and interrogation by Petitioners was a

seizure. The Court of Appeals relied on this conces-

sion to hold that Petitioners violated the Fourth

Amendment. Petitioners cannot now change the

question presented to this Court to seek an advisory

opinion on whether S.G.’s seizure was simply justified

“at its inception.” A seizure’s being justified “at its

inception” does not mean that it satisfies the Fourth

Amendment. This Court has held on a number of

occasions that justifiable stops can mature with time

or intrusion into unconstitutional seizures. See, e.y.,

Florida v. Royer, 460 U.S. 491 (1983). Safford Unified

School District No. 1 vo. Redding, 129 S.Ct. 2633

(2009), specifically ruled that a justifiable stop in

school will demand more as it becomes more intru-

sive. Consequently, even if S.G.’s warrantless stop

was justified at its inception (apd consistent with the

Fourth Amendment), its duration and = intensity

caused it to mature into an unconstitutional seizure.

2. History teaches that the Framers in the last

quarter of the Eighteenth Century would not have

countenanced government’s meddling with America’s

families. They would not have allowed government

officials to take children because of alleged abuse.

6

Simply put, the Founders did not consider raising

and rearing children government's business. Warrant-

less rescues based on claimed abuse would therefore

not have been tolerated. Nor did such a practice exist

at the time the Fourteenth Amendment was adopted.

Grovernment’s concern with child safety did not coa-

lesce until the middle of the Twentieth Century

Indeed, the Nation’s most recent protective efforts

defined in terms of “dependency” and “neglect” did

not emerge until the 1960s. By this time, the Fourth

Amendment had been incorporated; it was under

stood that court orders and warrants were needed to

separate children from their parents.

3. Seizures at the hands of law enforcement

officers cannot be justified by “special needs.” New

Jersey v. TL.O., ABI US. 825 (1985), ts predicated on

school authorities attempting to maintain discipline

in schools. This Court has steadfastly refused to

extend this “special needs” exception to criminal law

enforcement. See Ferguson v. City of Charleston, 532

U.S. 67 (2001). Further, even if the setzure here were

perpetrated by only protective service investigators, it

would still fall beyond the pale of 71.0. As made

clear in Redding, some seizures are simply too inva-

sive to rely only on reasonable suspicion. This is true

of familial mghts. America’s right to family ts one of

the oldest and most basic of constitutional freedoms.

It has routinely been afforded heightened procedural

protection. See, e.g., Stanley v. Illinois, 405 U.S. 645

(1972). Children and families deserve the utmost

constitutional protection.

7

4. Any distinction between the confines of “the

home” and “other” places, see, e.g., United States v.

Watson, 423 U.S. 411 (1976), does not control. Familial

rights do not evaporate at a house’s’ threshold.

Although adults and juveniles can be arrested outside

their homes without warrants, this does not mean

that children can be taken into protective custody

without warrants just because they are in their yards

or at school. Dependency laws and delinquency laws

have different histories. While warrantless arrests

have historically been allowed outside homes, history

has not recognized that children can be taken from

parents under this same model. Further, because of

reporting requirements, broad definitions and the

lack of experienced investigators, the risk of error in

rescuing children from alleged abuse is large. Arrests

in public places for criminal behavior, though not

always correct, are not routinely wrong, either. The

opposite is true with removals, rescues and tempo-

rary seizures.

5 Petitioners have not demonstrated that the

basic warrant process facilitates child abuse. They

have produced no evidence showing that parents

routinely refuse to cooperate in child abuse investiga-

tions. Nor have they shown that children in states

that require warrants are subject to more abuse than

those in states, ike Oregon, that do not. Petitioners

have not established that warrants are unworkable or

place paralyzing costs on Oregon's protective services

system. Petitioners have therefore failed to prove that

8

their alternative ts absolutely necessary to protect

children. They have not satisfied strict scrutiny.

——ee @

ARGUMENT

1. S.G.’s Detention and Two-Hour Interroga-

tion Was a Full Seizure Within the Meaning

of the Fourth Amendment.

The meaning of “seizure” extends beyond formal

arrests. Even in the absence of handcuffs and book-

ings, a person is seized by police if “in view of all of

the circumstances surrounding the incident, a rea

sonable person would have believed that he was not

free to leave.” United States v. Mendenhall, 446 U.S.

544, 554 (1980).*

The Fourth Amendment, moreover, is not limited

to criminal suspects and police investigations. It

applies tn civil settings, see, e.g., Marshall v. Barlow’s,

Inc., 436 U.S. 307 (1978); Immigration and Natural

zation Service v. Delpado, 466 U.S. 210 (1984), and

restricts teachers’ actions, see, e.g., New Jersey ov.

TL.O., 469 U.S. 325 (1985), as well as those of protec

tive service investigators. See, e.g., Doe v. Heck, 327

F.3d 492, 510 (7th Cir. 2003). Whether a civil com-

mitment, see, e.g., Villanova v. Abrams, 972 F.2d 792,

* Although Justice Stewart's formulation in Mendenhall

only garnered plurality support, it has since been adopted by a

mayority. See, eg., Michivan vu. Chesternut, 486 US. 567, 573

(1988)

9

795 (7th Cir. 1992); McCabe v. Life -Line Ambulance

Service, 77 F.3d 540 (ist Cir. 1996), arrest, see, e..,

California v. Hodari D., A499 US. 621, 624 (1991),

search within a public school, see, e.g., Safford Unt-

fied School District No. 1 v. Redding, 129 5S. Ct. 2633

(2009), or removal from the home, see, e.g., Wernecke

vu. Garcia, 591 F.3d 386 (5th Cir. 2009); cf Reno v.

Flores, 5O7 U.S. 292, 317 (1993) (O'Connor, J., con

curring) (observing that children “have a protected

liberty interest in ‘freedom from institutional re

straints’”), the Fourth Amendment protects children.

Petitioners conceded below that S.G.’s detention

and two-hour interrogation was a “seizure” within the

meaning of the Fourth Amendment. The Ninth Cir-

cuit observed that “Camreta and Alford do not contest

the district court’s holding that the two-hour interview

of S.G. at her school was a seizure. We agree ... that

it was.” Greene v. Camreta, 588 F.3d 1011, 1022 (9th

Cir. 2009) (emphasis added). The District Court, for

its part, apphed Mendenhall, 446 U.S. at 554, to

conclude that, “in view of all of the circumstances

surrounding the incident,” Greene v. Camreta, No. 05-

6047, 2006 WL, 758547, at *3 (D. Ore. 2006), “SG.

was seized.” Id. The issue framed by the Court of

Appeals was therefore “relatively straightforward”:

“whether an in-school seizure and interrogation of a

suspected child abuse victim ts always permussible

under the Fourth Amendment without probable cause

and a warrant or the equivalent of a warrant, as

defendants maintain.” Greene, 588 F.3d at 1022

(emphasis added). The Ninth Circuit concluded that

10

warrantless seizures accompanied by lengthy interro,

vations in school settings are not “always permissi-

ble”; rather, when they involve police, lasts for two

hours, and satisfy Mendenhall’s definition of a sei-

zure, they are not. /d. at 1030.

Camreta argues that even though 5.G. was fully

seized — that is, even though S.G. was forcibly taken

from her classroom and interrogated for two hours

Petitioners’ actions were justified “at their inception”

by reasonable suspicion. See Brief for Camreta at 38-

40. The Ninth Circuit therefore was wrong in holding

that S.G’s two-hour ordeal violated the Fourth

Amendment. There is no need Camreta argues, nor

would it even be proper, to consider the length of

S.G.’s detention and the circumstances under which

she was interrogated. See Brief for Camreta at 40.

Camreta’s argument ignores both the Fourth

Amendment question put by Petitioners to this Court

and Fourth Amendment jurisprudence. The Fourth

Amendment question presented included no language

limiting review to the validity of S.G.’s detention “at

its inception.” Petitioners broadly asked this Court to

review whether the Ninth Circuit’s Fourth Amend.

ment holding was correct. In the absence of limiting

language in their Petitions, and in light of the conces-

sions below, the question presented here necessarily

includes the totality of circumstances used by the

District Court to find that S.G. did not reasonably feel

free to leave within the meaning of Mendenhall.

11

Searches and seizures, of course, can be justified

at their inception and still violate the Fourth

Amendment. See 4 WAYNE LAFave, SEARCH AND

SEIZURE § 9.2 (2010). A valid stop under Terry v. Ohio,

$92 U.S. 1 (1968), for example, will mature into a

Fourth Amendment violation if it lasts too long or

becomes too invasive. See, e.g., Florida v. Royer, 460

U.S. 491 (1983). That a student is justifiably seized

and searched under the logic of New Jersey v. TL.O.,

469 US. 3825 (1985), does not mean that she can be

forced to disrobe. See Safford Unified School District

No. 1 v. Redding, 129 S. Ct. 2633 (2009). Here, the

Ninth Circuit concluded that S.G.’s detention and

two-hour interrogation by Petitioners under all the

facts and circumstances violated the Fourth Amend-

ment. There was no need for it to go back to assess

whether 5S.G.’s stop was justified “at its inception.”

Regardless of whether it was, what happened over

the course of two hours violated the Fourth Amend

ment.”

* Camreta purposely confuses what is necessary with what

is suflicrent. Seizures necessarily must be justified at their

inception to survive the Fourth Amendment. See Mendenhall

However, this does not mean all seizures that are initially

justified are valid See Royer.

* Camreta may not even have standing to make this

“inception” argument before this Court. After all, success on this

newly framed, limited tssue would not alter the Ninth Circuit’s

ruling that S's two-hour seizure and interrogation violated

the Fourth Amendment. It would afford them no rehef See City

of Los Angeles v. Lyons, 461 US. 95 (1983)

12

Petitioners argued below that warrantless sei

zures of students are always permissible. See Greene,

588 F.3d at 1022. The District Court agreed. The

Court of Appeals reversed. The question before this

Court is whether the Ninth Cireuit was correct. Are

warrantless seizures and interrogations of students

based on mere suspicion always permusstbhle? Are they

permissible when they include two hours of ques

tioning in the presence of law enforcement officers?

Amict agree with Respondents that they are not.

Il. History Supports the Conclusion that Peti-

tioners’ Warrantless Seizure of S.Ci. Violated

the Fourth Amendment.

At common law, “a peace othicer was permitted

to arrest without a warrant for a misdemeanor or

felony committed in his presence as well as for a

felony not committed in his presence af there was

reasonable grounds for making the arrest.” United

States v. Watson, 423 US. 411, 418 (1976). This was

also “the prevathng rule under state constitutions

and statutes” when the Fourth Amendment was

Note that the Ninth Cireait did not rule that all semures

of students must be accompanied by warrants It did not decide

whether bref, Terry type stops of students require warrants (or

even require cause preater than reasonable suspicion). It did not

address whether lengthy interrogations by school authorities, or

social workers in the absence of law enforcement assistance,

require probable cause, let alone warrants

S|

adopted. Jd at 419. Because the Second Conyress

adopted this standard in the late Eighteenth Century

and “plamly decided apainst conditioning warrantless

arrest power on proof of exigent circumstances,” td. at

423, this Court in Walson assumed that the Kramers

of the Fourth Amendment could not have meant to

displace it. Warrantless felony arrests are thus pen-

erally acceptable under the Fourth Amendment — at

least when they oceur outside the home. Sce Payton v.

New York, 445 U.S. 573, 58% (1980).

History is plainly important to the Constitution’s

meanimy. If children were routinely being taken by

poverniment officials without warrants in the late

luighteenth Century, that would lend credence to the

claim that the Fourth Amendment was not meant to

prolubit these removals. The converse is also true; if

children were not being taken by government officials

at the founding, with or without warrants, one could

conchade that the Pramers did not mean to authorize

future warrantless seizures. Indeed, if familial rights

were considered inviolate at the Founding, one could

conclude that the Framers did not even consider

warrantless seizures of allepedly neglected children a

legal possibility.

Children of white, property-owning fathers (who

formed the Nation's original political community)

could not be taken by vovernment officials at the

Pounding, with or without prior judicial authoriza-

tion. Nor had such a practice emerped by the time the

hourteenth Amendment was adopted following the

14

Civil War. Taking children from parents because of

“dependency,” “neplect,” or “abuse” is a modern devel-

opment that emerged in the last quarter of the Twen-

lieth Century. Further, this most’ modern reform

effort, at its inception, assumed that warrants would

be required. Only within the last generation have

states, ike Orezon, moved toward a summary removal

model.” Petitioners essentially ask this Court to bless,

for the first time, a “social worker exception to the

strictures of the Fourth Amendment.” Walsh vo. Erie

County Department of Job and Family Services, 240

I. Supp. 2d 731, 746-47 (N_D. Ohio 2003) Crefusing to

recognize this exemption).

A. Children in the Eighteenth and Nine-

teenth Centuries Could Not Be Sum-

marily Taken From Their Parents By

Government Officials.

I. Founding to Civil War

A father’s right to the care, custody and control of

his children is of anqjent origin. Blackstone’s Com-

mentanes, published in 1765, observed that “‘[tlhe

anqgent Roman laws pave the father a power of life

and death over his children; upon this principle, that

Orevon law authorizes warrantless removals “|wjhen the

child’s condition or surroundings reasonably appear to be such

as to jeopardize the child’s welfare ” Or. Revo Strat

6 419B 1500) a) As the present case demonstrates, Oregon

officials also assume the authority to temporarily seize children

without obtamimy warrants

15

he who pave had also the power of taking away... .’”

Jill Klaine Wasday, Parenthood Divided: A’ Legal

History of the Bifurcated Law of Parental Relations,

90 GEORGETOWN LJ. 299, 510 (2002) (citing 1 WILLIAM

BLACKSTONE, COMMENTAKIES *440). Blackstone ob-

served that “children lived in ‘the empire of the

father’ until they reached twenty-one,” «dd. (citing

BLACKSTONE at 4441), and the father’s common law

“right to the custody, labor, and earnings of his minor

children” was sacred. Id. at 310. Government there-

fore had little Gf any) room to interfere with a father’s

mpht to raise his children.

Ilackstone’s common law deference to fathers, of

course, did not abolish slavery. Nor did it override

KMlizabethan “Poor Laws” that were enacted following

the disintegration of lngland’s feudal age. See Doug-

las R. Rendleman, Parens Patriae: From Chancery to

the Juventle Court, 23 S. CAKOLINA L. Rev. 205, 210

(1971). Not only did Poor Laws allow the imprison-

ment of poor parents, see Papachristou v. City of

Jacksonville, 405 US. 156, 161 n. 4 (1972) (describing

the history behind “Elizabethan Poor Laws”); Central

Virginta Community Collepe vo. Katz, 546 U.S. 356,

365 n. 4 (2006) (noting that lengland did not abolish

moprisonment for debt until 1869), they authorized

the removal of children from poor families. See

Jacobus tenBrock, Caltfornia’s Dual System of Family

Law: Its Origin, Development and Present Status, 16

STAN. L. Rev. 257, 279 (1964). Children from poor

families were impressed into the service of more

prosperous families. /d.

16

The American Colonies received and recognized

Blackstone’s description of familial rights. They also,

unfortunately, embraced England’s Poor Laws, just as

they recognized slavery. Church wardens and overseers

in the Colonies took poor children from their homes

and impressed them into the service of others. See

Marvin Ventrell, From Cause to Profession: The

Development of Children Law and Practice, 32-Jan.

Coto. LAw. 65, 66 (2003); tenBroek, supra, at 279.

States in antebellum America — free from the

constraints of the Fourth Amendment, see Barron v.

Mayor of City of Baltimore, 32 US. 243 (1833)

continued this practice. During the “House of Refuge

Movement” of the early Nineteenth Century, “delin-

quent” children were regularly snatched from streets

and sent to institutions. See Janet Gilbert, Richard

Grimm & John Parnham, Applying Therapeutic Prin-

ciples to a Family Focused Juvenile Justice Model

(Delinquency), 52 ALA. lL. Rev. 1153, 1158 (2001). The

onslaught of immigration forced States to forego

indentures in favor of reformatories and “houses of

refuge.” As an adjunct to “almshouses,” which con-

fined poor adults, these houses institutionalized poor

children. See Ventrell, supra, at 66"

New York’s law (enacted in 1824), for example, provided a

charter to the Society for the Reformation of Juvenile Delin

quents to erect a “House of Refuge” for minor vagrants, delin

quents and criminals) See Sanford J. Fox, Juvenile Justice

Reform: An Historical Perspective, 22 Svan. lL. Rev. 1187, 1190

(1971)

17

Their names notwithstanding, houses of refuge

were not designed to shelter or protect children; “the

undertaking was a matter of crime and delinquency

protection, aimed at saving predelinquent youth.”

Sanford J. Fox, Juvenile Justice Reform: An Histori.

cal Perspective, 22 STAN. L. Rev. 1187, 1190-91 (1971).

The Movement’s essential thesis was that poverty

correlated with “moral depeneracy.” Id. at 1198.

Kemoving poor children (and their parents) from the

population-at-large ridded society of actual or poten-

tial moral deviants, offered correction and advanced

crime control. /d. at 1207. It was no more benevolent

or benign than slavery, which remained a facet of

early American life.

2. Post-Civil War to Twentieth Century

Keform efforts geared toward protecting children

as opposed to protecting society from children — did

not emerge until afler the adoption of the Fourteenth

Amendment. The genesis of this” post-Civil War

reform movement can be found in two celebrated

child abuse cases tried in New York City in 1871 and

1874, respectively. See Ventrell, supra, at 66 (discuss-

ing cases involving Emily (1871, and Mary Ellen

(1%74)). Both cases involved children who had been

abused by their parents or guardians. Henry Bergh,

the founder of New York’s Society for the Prevention

of Cruelty to Animals, used “a writ de homine

replegsando (similar to a writ of habeas corpus), . . . to

remove the girls and ultimately have them placed by

the New York Special Sessions Court in safe care. It is

1%

not clear under what authority the court acted; it

probably saw itself as exercising its equitable authority,

having taken criminal jurisdiction over the abusers.”

/d. These two cases spawned the creation of the New

York Society for the Prevention of Cruelty to Children

in 1874. Ie.

In the years that followed, more communities

followed suit. “Led by their wealthy private philan-

thropists, [these societies] amassed unprecedented

legal authority to scrutinize parental behavior, arrest

parents, and remove thousands of children.” Hasday,

supra, at 302. Most often, society agents simply

“followed children back to their homes,” id. at 307,

arrested their parents and seized the children. Id.

Because removals were parcel to the arrests of the

parents, they occurred without prior or accompanying

jyudicial process. Process came, if at all, as part of the

subsequent criminal proceedings against the par-

ents.” Even though the New York Reform Movement’s

mandate ostensibly was protection, it continued to

labor under a distinction between rich and poor.

” “Onee a child had been removed from her parents at the

New York socoety’s instization or with its help,” moreover, “the

courts were extremely reluctant to allow visitation or to release

the child, unless the society ayreed.” Jd at S08 In twenty years

(1881-1900), the New York society brought “52,860 criminal

cases, resulting i 49,330 convictions Ca 95.5% success rate)

Duriy the same period, ae society removed 90,078 children

with judicial approval. It exercised enormous discretion over

their placement, and put the overwhelming majority in institu

tions.” 1d at 307-08

19

“From the start, [the New York Society] focused on

families that had not been successful in the wage

labor economy, operating on the principle that this

economic failure had been caused by some crucial

moral or character flaw.” Hasday, supra, at 304-05.

Despite Elizabethan Poor Laws, the House of

Refuge Movement, and Henry Bergh’s private efforts

in New York," “lolver the entire course of the nine-

teenth century, common law courts and legal writers

in the United States remained highly respectful of

the control that parents, particularly fathers, exer-

cised over their households and children, and comsmiuit-

ted to doctrines that made legal intervention § to

counter parental excess or abuse very unltkely.” Id. at

311 (emphasis added) Even though slavery and Poor

Laws co-existed with these protective doctrines, the

understood rule was clear and inviolate: children

simply could not be taken with or without warrants

from citizens who formed America’s political commu-

nity.

At the close of the Nineteenth Century, Bergh’s move

ment ceded control to state and local administrative bodies See

Howard A. Davidson, Child Protection Policy and Practice at

Century’s End, 33 Fam. L..Q. 765, 766 (1999)

20

B. Twentieth-Century Reform Efforts Es-

tablished Governmental Programs to

Address Neglected and Abandoned

Children.

In the first quarter of the Twentieth Century,

several States passed “mothers’ pension laws.” See

Hasday, supra, at 348. These laws

authorized local governments to provide dt-

rect financial support to poor mothers, |and|

differed from the child cruelty societies in

two important institutional respects... .

First, [they] established completely govern-

mental programs. ... Second, and more cru-

cially, [they] primarily accomplished their

aims through the provision and refusal of

much needed financial aid, building on a

prowing consensus among reformers of the

period that this strategy was both more

effective, and more cost-efficient, than = re-

moving children from their parents’ custody.

ld By mid-Century “all states had government

agencies that provided statewide services to abused,

neglected, and abandoned children.” Davidson, supra,

at 767. This was) fueled by federal) spending

measures, such as the Aid to Dependent Children Act,

which was passed as part of the Social Security Act of

1935. See Hasday, supra, at 357.

The medical community took note of what mod-

crn Americans now know to be “child abuse” in 1946,

when Dr. John Caffey reported the case histories of

six “battered” children. See Harold A. Richman, From

21

a Radtologist’s Judgment to Public Policy on Child

Abuse and Neglect: What Have We Wrought?, 30

PEDIATRIC RADIOLOGY 219, 220 (2000) The dialogue

that followed “began the modern era in our under

standing of child abuse and our response to it.” Jd. In

1961, the American Academy of Pediatrics organized

its first conference on “The Battered Child Syn-

drome.” Id. The first model child abuse law was

drafted at this conference. Jd. The following year, a

report by the same name was published in the Jour-

nal of the American Medical Association. Jd It

“brought the problem lof child abuse| to a wider

audience, not only in medicine but in government as

well....” Id. By 1966, “every state in the Union

passed a child-abuse reporting law.” Id."

Once abuse laws and reporting requirements

were in place, the problem turned to process: how

could local authorities respond to reported instances

of abuse? Should children be followed home and

kidnapped following the arrest of their parents, as

was true with the private societies that emerged in

the last quarter of the Nineteenth Century? Should

‘In 1974, Congress enacted the Child Abuse Prevention

and ‘Treatment Act (CAPTA), Pub L. No. 93-247, 88 Stat. 4

(1974), which marked “its first direct action to address child

maltreatment within the home ” Davidson, supra note 13, at

776 ln 1980 and 1997, Congress passed additional spending

measures, the Adoption Assistance and Child Welfare Act, Pub

lL. No 96-272, 94 Stat. 500 (1980), and the Adoption and Safe

Families Act, Pub Lo No. 105-89, 111 Stat. 2115 (199%), respec

tively It has never addressed the problem presented here

22.

discretion be left with church wardens and overseers

to indenture children, as was true in the late EKight-

eenth Century?

While the first half of the Twentieth Century saw

little change in the procedures that accompanied the

institutionalization of children (and incarceration of

adults), the incorporation of the Bill of Rights — in

particular, the full application of the Fourth Amend-

ment to state and local activities, see, e.g., Mapp v.

Ohio, 367 U.S. 6438 (1961) — caused dramatic proce-

dural changes throughout the States in the second

half of the Century. Before 1967, juveniles were

commonly subjected to detention without procedural

protections. See in re Gault, 387 US. 1, 11 n7

(1967). As explained in Gau/t, 387 US. at 15, “[t}he

early reformers were appalled by adult procedures

and penalties, and by the fact that children could be

given long prison sentences and mixed in jail with

hardened criminals.” These early reformers thus

discarded the “apparent rigidities, technicalities, and

harshness which they observed in both substantive

and procedural criminal law” for juvenile delinquents.

Id. Vhey left juveniles with promises of compassion

and fairness as opposed to process.

The Court in Gault, 387 US. at 18, rightly saw

through this guise: “Juventle Court history has again

demonstrated that unbridled) discretion, however

benevolently motivated, is frequently a poor substi-

tute for principle and procedure.” The Court reminded

modern Americans of what the Founders knew well -

23

governmental claims of compassion and protection

are “poor substitutels| for principle and procedure.”

Following Gault’s landmark holding, the National

Conference of Commissioners on Uniform State Laws

presented its recommendation for implementing the

changes needed to America’s juvenile justice system

in 1968. The result was the Uniform Juvenile Court

Act of 1968 (“the Model Juvenile Court Act” or “Mode!

Act”); this model law purported to implement changes

needed in America’s juvenile justice system to comply

with the Constitution. It distinguished between

procedures that should be followed with dependent

children and those that should be followed with

i

delinquents: a child could only be “taken into custody”

“pursuant to an order of the court under this Act,”

Model Juvenile Court Act, § 13(a)l), 9A ULLA. 22

(1968), or “pursuant to the laws of arrest.” /d.

§ 13(aX 2).

The Model! Act provided exceptions for a “child | |

suffering from illness or injury or || in immediate

danger from his surroundings,” as well as a child who

“has run away from his parents, guardian, or other

custodian.” dd. § 13(aX3) & (4). Even then the Model

Act required that the child be immediately returned

to its parents “upon their promise to bring the child

before the court when requested,” rd., § 15(a)(1),

unless the child’s parents presented a flight risk. /d

§ 14. The Model Act expressed a clear preference for

prior judicial involvement and supervision in depend

ency and abuse proceedings. Unilateral, summary

seizures were only permissible in emergencies, and

24

even then the Model Act required the tmmedtiate

return of children to their parents.

+ + ¢

Three important conclusions can be drawn from

this historical outline: First, the Framers would not

have countenanced government’s meddling with

families. Never would they have allowed governmen-

tal avents to take their children because of alleged

“abuse.” Simply put, the Founders did not consider

raising and rearing children government’s business.

Warrantless rescue based on claimed abuse was not

tolerated.

Second, the Drafters of the Fourteenth Amend-

ment would not have tolerated governmental inter-

ference. Private concerns over “child abuse” did not

arise until after the Civil War. Government did not

embrace this end until the beginning of the Twentieth

Century. When this happened, government officials

were not yet constrained by federal constitutional

norms. As a constitutional matter, local authorities

during the first half of the Century were free to

exercise “unbridled license” over children — and they

did (as noted in Gault).

Third, the most modern reform eftort Which

vastly expanded notions of abuse, neglect and de-

pendence -— emerged with knowledge of the con-

straints of the Fourth and Fourteenth Amendments.

The Model Act of 1968 followed on the heels of Gau/t

and codified this Court’s post-incorporation holdings

As a result, the Model Act stated that children cannot

5 -

ww)

be taken “into custody” without court orders. Society's

most recent “child protection” system was predicated

on this assumption. By 1968, it was clear that chil-

dren could not be routinely taken from their parents

without judicial authorization.

lil. No Recognized Exception Justifies Dis-

pensing With Warrants When Seizing Chil-

dren.

Circumstances sometimes excuse compliance

with the Fourth Amendment's warrant requirement

“Closely regulated” businesses and industries, for

example, are not protected from warrantless searches.

See, e.g., New York v. Burger, 482 U.S. 691 (1987).

Today, these exceptions to the Fourth Amendment’s

probable cause and warrant requirements are de

scribed as “special needs.” Critical to this exception is

the intersection of a diminished expectation of privacy

.

and a governmental objective “other than the normal

need for law enforcement.” Ferguson vu. City of

Charleston, 532 U.S. 67, 75 n. 7 (2001). Where indi-

vidual expectations of privacy are high, this exception

rarely applies. And where government uses crime.

control laws as leverage, or employs criminal law

enforcement personnel, it must fully comply with the

Fourth Amendment’s basic requirements

A. T.L.O. Does Not Control.

Because the seizure in the present case occurred

at S.G.’s school, Petitioners argue that New Jersey v

nA 8)

TL.O., 469 U.S. 325 (1985), controls. The Court’s

holding there, however, was premised not on the

student’s mere presence in the school; rather, the

Court relied on the fact that the school authorities

conducted the search to maintain school discipline.

LL.O. cannot be read to award protective service

investigators and police officers similar authority

simply because a child is temporarily on school prop-

erty.

TL.O., like all special needs cases, made clear

that it was not to be read broadly “Special needs”

does not mean law enforcement. For example, while

governmental agents are subject to warrantless (even

suspicionless) drug testing, see Skinner vo Railway

Labor Executives Ass’n, 489 US. 602 (1989); Treasury

Employees v. Von Raab, 489 U.S. 656 (1989): and

students who participate in extra-curricular activities

can likewise be tested, Board of Education of Inde

pendent School District No. 92 of Pottawatomite Coun

ty vu. Marls, 536 US. 822 (2002), the great majority of

America’s citizenry remains protected by the Fourth

Amendment’s warrant) requirement. See, ee,

Schmerber v. California, 384 U.S. 757, 771-72 (1966)

The Court in Karls emphasized that the testing

program at issue was “not in any way related to the

conduct of criminal investigations... .” Jd at 82Y.

The test results were “not turned over to any law

enforcement authority,” nor would they “lead to the

imposition of discipline or have any academic conse

quences.” Jd. at 833. The school district’s concern was

27

sunply “detecting and preventing drug use amony its

students.” ld. at #25

Ferpuson vo. City of Charleston, 5382 US. 67

(2001), stands in stark contrast to Marls and the

exception at represents Ferpuson addressed a public

hospitals use of dray testing to deter preynant wom-

cn from using crack cocaime. Urine sercens were

performed on maternity patients and test results

were used to leveraye patients mto formal treatment

programs. Jd) at 72. Those who refused were referred

to law enforcement officials for prosecution. Jd. at 72-

75 Potential charges imeceluded child) neglect and

unlawful delivery of a controlled substance to a child.

ld

Because the proyram was not “divorced from the

State’s interest in law enforcement,” i at 79, but

instead used “law enforcement to coerce the patients

info substance abuse treatment,” 1d. at &O, the Court

concluded that it did not qualify for treatment under

the specal needs exception. Mven though the hospi

tals “benign” motives meladed protecting children,

id at &5, conecdedly “a serious problem,” 1d. at 86,

the propram’s “pervasive involvement” with law

enforcement rendered at unqualified for the special

needs exception. “|The gravity of the threat alone

cannot be dispositive of questions concerning what

means law enforcement officers may croploy lo pursue

a piven purpose.” fd) at 46. As pointed out by Justice

Kennedy, 532 US. at &% (Kennedy, J., concurring):

“None of fthe Courts} spectal necds precedents has

canetioned the routine meclausion of law enforcement

24

to implement the system desiyned for the special

needs objectives.”

Bk. Familial Privacy Is Fundamental.

ven assuming that the present case were di

vorced from law enforcement, the special needs

exception would still not apply. S-G.’s seizure and

interrogation were too intrusive. The Court ruled in

Safford Unified School District No. 1 vu. Redding, 129

S Ct. 263% (2009), that students suspected of violat-

mage school rules could not be strip-searched pursuant

to ThO?’s reasonable suspicion standard, even

though the school was attempting to maimtaim order

and police were not involved. ‘The “patent intrusive

ness” of such a search, 129 S. Ct. at 2641, the Court

concluded, demanded “distinet clements of jyustifica-

tion” dd Redding makes clear that individual privacy

concerns sometimes overcome relaxed special needs

standards. Searching a purse is one thing, see T'L.0.;

stripping a student is another. See Redding.”

’ayton vo. New York, 445 US. 574, 588 (1980),

bikewise ruled that fundamental privacy interests

canmot be trusted to executive heense. Watson, of

course, had ruled that arrests outside the home could

proceed without warrants because historically that

fideed, some bodily satrusions are so invasive that they

are not allowed to proceed even when police have fully complied

with the Fourth Amendment's terms and obtamed a warrant

See, op, Winston vo lave, 4700S 753, 766 C1985)

29

was the rule. But this was also the common law rule

for felony arrests inside the home. See Payton, 445

US) at GIG (White, J., dissenting) Stall, the Court

reyected this histoneal aryument in favor of protecting

privacy: “an entry to arrest and an entry to search for

and to seize property implicate the same interest in

preserving, the privacy and the sanctity of the home,

and justify the same level of constitutional protec-

tion.” Id. at 58S.

‘This same rationale applies to familial privacy

inside and outside the home. One’s right to family

cannot depend on location. It follows the family.

Lengthy seizures and interrogations of young chil-

dren about sexual matters and family intimacies

jeopardize familial privacy whether conducted inside

or outside the home. The mapnitude of these inva-

sions is nol just spatial, it is, as explained in Redding,

physical, emotional and psychological. An interroga-

tion of this nature may very well forever define the

family. Its impact not only falls on “the family’s view

of itself,” but also “on the view of the family held by

those consulted in the investigation{.)” Richman,

supra, al 223.

This Court has lony recognized a basic, funda

mental right to raise children. See Meyer v. Nebras-

ka, 262 U.S. 890 (1925), Prerce vo Society of Sisters,

264% U.S. 510 (1925). In Troxel vo. Granville, 530 U.S

57, 66 (2000), the Court stated that “it cannot now

be doubted that the Due Process Clause of the Four-

teenth Amendment protects the fundamental right

of parents to make decisions concerning the care,

30

»

custody, and control of their children.” These rights,

the Court observed, are “perhaps the oldest of fun-

damental liberty interests recoynized by this Court.”

Id. at 6D.

Heightened procedural protections, moreover,

have routinely been extended to families. In Stanley

v0. Hlinots, 405 US. 645 (1972), for example, the Court

ruled that a father (as well as a mother) “as a matter

of due process” is “entitled to a hearing on his fitness

as a parent before his chi dren were taken from

him... .” dd. at 647. This logic naturally extends to

both temporary and permanent takings: “Surely, - . .

if there is delay between the doing and the undoing

petitioner suffers from the deprivation of his children,

and the children suffer from uncertainty and disloca-

tion.” Id. (emphasis addea}. See also Lassiter v. De

partment of Social) Services, 452 US. 18% (1981):

Santosky vo. Kramer, 455 US. 745 (1982). M_L.B. ov.

SL, 519 US. 102 (1996).

(. Lidster’s Focus Was Brief Encounters.

Recognizing: the stramed analogy to 711.0. and

other special needs precedents, Petitioners rely on

Mlinows vo. Ladster, 540 U.S. 419 (2004), for support.

There, the Court approved brief stops of motorists at

highway checkpoints in order to elicit information

about a ermme that had occurred in’ the vicinity.

ladster hardly helps Petitioners’ case. ‘The Court in

ludster repeatedly relied on the brevity of the stops

to support them validity. See, eg., 540 US. at 424

$1

(distinguishing the case as involving “bmef, infor-

mation-secking highway stops”) They were not

desipned to last more than a few minutes. ‘The Court

did not hold that law enforcement officers may seize

adults (et alone young children) without probable

cause in order to engage in hours-long questioning.

Lidster, moreover, hinged on information-seeking

stops in non-coercive and non-invasive environments.

fd at 425 Cinformation-secking highway stops are

less likely to provoke anxiety or to prove intrusive”)

Here, S.G., a nine-year-old pirl, was moved, isolated

and interrogated for two hours. Iler seizure was far

from a brief, casual, information-seeking stop.

IV. Familial Rights Do Not Evaporate at the

Hlome’s ‘Threshold.

Iynoring familial rights’ long pedipree, the Solici-

tor General argucs that parents and children do not

enjoy the protections envisioned by warrants when

they are outside their homes. See Brief for the United

States at 22. After all, the Solicitor General notes, the

Fourth Amendment allows arrests outside the home

without warrants. [d.

The Solicitor General is correct; jyaveniles can be

arrested without warrants under the logic of Watson

when they are outside their homes. But this does not

mean Chat young toddlers and children of tender

years can be summarily seatched from sidewalks and

schools. It cannot mean that povernment ayents can

constitutionally wait at the curb for school-age

32

children to emerge, and then spirit them away for

incommunicade interrogation. If this were the case,

then the constitutional right to “family” would mean

nothing more than the right to stay home.

As the framers of the Model Act of 1968 well

knew, removal and arrest are different. ‘They devel-

oped along different historical paths. ‘They advance

different ends. Delinquent children and dependent

children, in short, are different.

“Juvenile delinquents” present a small class of

children. This class is necessarily limited to minors

who have matured beyond tender years; young chil-

dren simply cannot commit crimes or be delinquent

Further, Due Process demands that criminal statutes

be clear, see, e.g., Skilling v. United States, 1380S. Ct

28496 (2010), and focus on action rather than mere

status." See, ee, Robinson v. California, 370 US

660 (1962).

In contrast, the class of potentially “dependent”

children is huge. It encompasses all children in Amer

ica. Infants, toddlers and young school-age children,

hike SG.

of potential “status” victims, coupled with mandatory

, are all potential targets. ‘This vast universe

reporting requirements, vague understandings of

i

Although ermuominal laws sometimes punish maction when

a duty ts present, the vast majority focus on voluntary acts See

WAYNE Ro LAFAVE, SupsTantivk CRIMINAL LAW § 6.2 (2010) This

further limits the scope of the net cast by Watson's law of arrest

and mcreases the accuracy rate

33

“neglect,” and undertrained tnvestizators produces a

significant error rate within the child protection

system. Harold Richman, Director of the Chapin Hall

Center for Children at the University of Chicago,

lamented ten years ago that the definition of child

abuse has “preatly expanded” since the early 1960s,

bringang ina large percentage of cases that fall inte a

“troublesome” pray area.” Richman, supra, at 221.

Simple neglect and emotional maltreatment, Rich-

man explains, “account for almost 60% of all mal-

treatment.” /d."" The “most startling fact about child-

abuse reporting numbers, beyond their size,” Rich-

--

man reported in 2000, “is that most of the reports

remain unsubstantiated — that is, they are not sub

stantiated after caseworker investigation.” Id at 22:

lloward Davidson, Director of the American Bar Assocta

tion's Center on Children and the Law, has echoed this pot

“lal single incident of a child scemungly left unattended by

parental or adult supervision, or when, in an instant, a parent

has ‘lost their cool’ and hit their child, are frequent bases for

making reports that cause fullbseale 0.) tnvestysations” Da

vidson, supra, at 774 “By far,” Davidson has noted, “the majority

of reports of child maltreatment do not allege that children are

in semous and imminent danger...” /d Davidson therefore

concludes that “it is time to seriously consider changes in the

fundamental ways in which child abuse and neglect are defined

vd responded to” ld

“ “Fmends, neywhbors, and relatives” are responsible for

gust under one half of these reports See the United States

Department of Health and Human Services Administration for

Children and Famihes, Appendix Go tHlighlphts of Child Mal

treatment 20038, http //www.act hhs gov/proprams/cb/pubs/ewoO./

appendix/appendixg htm (last visited danmuary 4, 2011)

34

On average, “60% to 65% of [the] cases flare! not

substantiated.” ld) (emphasis added). Even after

initial screening and investigation, this preponder

ance of misinformation has still translated into an

unacceptably large percentage of false positives. One

authority estimates the percentage of wrongful

rescues and removals (not counting temporary set

zures, as here) at over 839%. Paul Chill, Burden of

Proof Begone: The Pernicious Effect of Emergency

Removal in Child Protection Proceedings, 42 FAM. Cr.

Rev. 540, 541 (2004).

Third, protective service investigators are not

experts. “In most states, a bachelor’s degree in any

subject is all that is required to become a public child

protective service (CPS) caseworker.” Howard A

Davidson, Child Protection Policy and Practice at

Century’s End, 33 Fam. L.Q. 765, 772 (1999). “After

hiring, CPS pre-service trang is too often minimal.

Pay seales are often very low, morale is frequently

poor, and stall turnover is constant.” fa.

Crime control and dependency are, for all of these

reasons, quite different. Extending the distinction

between home and public to protective service case

workers risks, to put it bluntly, disaster: Large num

bers of innocent children will be swept into the net of

false positives. Families will be destroyed. At. bare

minimum, any clarm Wafson’s distinction is necessary

to protect children must be seriously questioned. It

may harm as many children as it helps

3h

Vv. Summary Seizures Are Not Necessary to

Achieve a Compelling Interest.

The Fourth Amendment’s warrant requirement

does not facilitate child abuse. It does not prevent

protective service tnvestigators and law enforcement

officials from investipating, nor does it stop teachers

from questioning children once inside their schools. It

simply injects a judicial, neutral decision-maker

between executive license and familial integrity.

Before government reaches beyond teaching and

beyins investigating, it should obtain a warrant.

The Fourth Amendment's warrant requirement

simply demands that, in the absence of exigent cir

cumstances,’ see Mincey v. Arizona, 437 US. 885, 394

(1978), government officials obtain authorization

from a neutral, detached magistrate before seizing

children. It injects objective decision-making between

government’s uobridled discretion and familial intes

rity If a judge or magistrate agrees, ex parte, that

probable cause exists to believe a child is, has been,

or will be abused, the child can be seized and ques

tioned. See Newton v. Burgin, 414 US. 1139 (1974)

If not, the child and her family are protected from

In the present case, time and exipencies were never a

problem. As pounted out by the Court of Appeals, Petitioners had

several days to seek a warrant. 588 BF aédat 1lOS0 n 17. Petitroners

allowed Si) to return to her home Warrants, of course, can be

obtained telephonically, see, eg, Aalmanson vo Lockett, 848

So 2d $74,379 (Fla App 2003), and protective service unvestipa-

tors accordingly enjoy a Large measure of flexibility

36

unauthorized and unnecessary intrusions. Children

are protected on both sides of the divide.

Petitioners and their amici have presented no

empirical evidence to support the charge that war-

rants impede protective services. This Court in

Marshall v. Barlow's, I[nc., 486 US. 3807, 316 (1978),

reyected a similar claim by federal inspectors: “We are

unconvinced —.. that requiring warrants to inspect

will impose serious burdens on the inspection system

or the courts, will prevent inspections necessary to

enforce the statute, or will make them less effective.”

In the absence of “any widespread pattern of refusal,”

i, the Court properly assumed that “the great

majority 2... can be expected ino normal course to

consent to inspection without warrant.” Ja.

Because Petitioners here present no evidence of a

“widespread pattern of refusal’ on th > part of uncoop

erative parents, nor is there any evidence of wide

spread investigative failures caused by warrants,

Petitioners’ claims must be taken with a large prain

of salt. Many states continue to operate child abuse

. . is . .

systems requiring warrants,” yet Petitioners have

"See ex, Ata Cope §$ 12-15 125(a) (requiring = prior

yudicial authorization except when immediate removal ts

“naecessary’), AkiZ. Revo Spar. §§ 8 305 & 8 B21 (same); GA Cope

ANN. § 15-11-45 (same) ND Centr. Cope § 27-20-13 (same); PA

Conso.. Svar ANN. § 6424 (same); Wis) Srar. § 48. 19¢d) (same)

See penerally Mark Ro Brown, Rescuing Children from Abusive

Parents’ The Constitutional Value of Pre Deprivation Process, 65

Quo Sv lL. d 913, 915 19 (2004)

37

pointed to no comparative data demonstrating abuse

in these states is higher (or lower). There ts absolutely

no suggestion of any correlation between States’

requiring warrants and increased child abuse.

Petitioners eflectively admit here that they did

not have probable cause to seize SG." “Hence,” the

argument poes, “we could not have investigated

allegations agaist S-G.’s father if we were required

to obtain a warrant.” Of course, no one knows whether

Petitioners could have obtained a warrant here, since

they never asked.” Notwithstanding their concession,

it is by no means clear that investigators in simular

situations must necessarily be denied) warrants

Under J/dinots vo. Gates, 462 US. 213 (1983), courts

look to the totality of circumstances in order to assess

probable cause.’ Probable cause, like reasonable

suspicion, is a “fluid concept.” Cooper Industries, Ine

v Leatherman Tool Group, inc., 532 US. 424, 4386

(ZOOL) “TO}ne determination will seldom be a useful

i

Although Alford claimed in the Court of Appeals that he

had probable cause to seize Si, see Ninth Circuit: Brief for

Alford at pp 26-28, he has not in this Court) Instead, his (and

Camreta’s) position is that reasonable suspicion should suffice

Camreta has never claumed probable cause existed

“There was no finding below that Petitioners did not have

probable cause The Court of Appeals ruled only that “applying

the traditional Fourth Amendment requirements, the decision to

seize and interrogate SG in the absence of a warrant, a court

order, exigent circumstances, or parental consent was uncensts

tutional” 588 FSd at 1080 (footnotes omitted)

In coval settings this standard may be relaxed See, ex ,

Marshall v Barlow's, Inc., AS6 US. 307, 320 (19738)

3d

‘precedent’ for another’” Ornelas vo United States,

517 US. 690, 698 (1996).

Petitioners’ demand for a lower standard is

premised less on a desire to protect children than to

win unbridled discretion. History teaches, however,

that license breeds abuse. See, e.g., Aolender vo Law

son, 461 US. 352, 358 (1983) (warning that “virtually

complete discretion in the hands of the police” cannot

be tolerated); Papachristou v. City of Jacksonville,

AOS US. 156 (1972); Grayned v. City of Rockford, 408

US. 104, 108-09 (1983). History teaches that “unbri

dled discretion, however benevolently motivated, is

frequently a poor substitute for principle and proce

dure.” Gault, 8387 US. at 18

The Fourth Amendment's warrant requirement

reduces abuse by minimizing errors. See Wilham J.

Stuntz, Warrants and Fourth Amendment Remedies,

77 Va. L. Rev. 881, 891 (1991); William J. Stuntz,

O.J. Sunpson, Ball Clinton, and the Transsubstantive

Fourth Amendment, 114 Harve L. Reve 842, 8148

(2001); Alexander A. Reinert, Public interest(s) and

Fourth Amendment Enforcement, 2010 U. Tu. L. Rev.

1461, 1498) Filtering child abuse reports through

neutral magistrates is even more productive in the

protective services context, because social workers

tend to be less trained, see Davidson, supra, at 772,

and more immune than police: See, eg, fofimson v

Sackett, 793 So 2d 20, 24 (Fla. App. 2001) (holding

that social workers have absolute immunity under

state law), Hoffman vo Harris, 511 US. LOO C194)

(Thomas, <., dissenting from denial ot certiorari)

3g

(discussing federal immunities available to social

workers). Under circumstances like these, requiring

antecedent warrants is very lkely the only effective

deterrent. See Stuntz, Warrants and Fourth Amend

ment Remedies, supra, at 909.

— — ee

CONCLUSION

Should the Court determine that review remains

appropriate in this case, the Court of Appeals’ conclu-

sion that S.G.’s two-hour seizure and interrogation

violated the Fourth Amendment should be affirmed

Respectfully submitted,

Mankk R. BROWN

Counsel of Record

303 E. Broad Street

Columbus, Ohio 43215

(G14) 286-6590

mbrown@law.capital.edu

Set) ie an