# Appendix — City of New York v. Tenenbaum > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0658%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2000 - **Citation:** 529 U.S. 1098 ## Text UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 1998 (Argued: September 9, 1998 - Decided: October 13, 1999) Docket Nos. 97-9488(L), 97-9554(XAP) MARC TENENBAUM and MARY TENENBAUM, individually and on behalf of SARAH TENENBAUM, an infant, Plaintiffs-Appeliees- Cross-Appellants, —V_.— NAT WILLIAMS, individually and as a caseworker, Child Welfare Administration, VERONICA JAMES, individually and as a caseworker, Child Welfare Administration, DOBY FLOWERS, individually and as Commissioner of Social Services of the City of New York, and BROOKE TRENT, individually and as Deputy Commissioner of Social Services of the City of New York, Defendants-C ross-Appellees, NEW YORK CITy, | Defendant-Appellant- Cross-Appellee, MARVA LIVINGSTON, as Commissioner of Social Services of the City of New York, CLAUDE MEYERS, as Deputy Commissioner of Social Services of the City of New York, Appellants-Cross-Appellees, and NEW YORK CITy BOARD OF EDUCATION, Defendant. Al ~ — Before: MCLAUGHLIN, JACOBS and SACK, | Circuit Judges. Appeal and cross-appeal from a judgment of the United States District Court for the Eastern District of New York (Denis R. Hurley, Judge) in plaintiffs’ action against the defendants under 42 U.S.C. § 1983 (i) awarding plaintiffs damages on their claims against some of the defendants on the grounds that (a) the plaintiffs’ and their daughter Sarah’s procedural due-process rights were violated by the perfor- mance of a medical examination on Sarah in connection with child-abuse allegations against her father without the plain- tiffs’ permission or court authorization, and (b) Sarah’s Fourth Amendment right to be free from unreasonable searches was violated by the same examination; and (ii) granting defendants’ motion for Summary judgment as to, inter alia, (a) plaintiffs’ claims that their and Sarah’s pro- cedural due-process rights were violated by the removal of Sarah from school for the purpose of conducting the medica] €xamination, (b) plaintiffs’ claim that Sarah’s Fourth Amend- ment right to be free from unreasonable seizures was violated by her removal from school, (c) plaintiffs’ claims that their and Sarah’s substantive due-process rights were violated by Sarah’s removal from school, (d) plaintiffs’ claims under State law, and (e) plaintiffs’ claims against the individual defendants because all such claims were barred on the grounds of qualified immunity. Plaintiffs also challenge the district court’s award of damages as insufficient to com- pensate them and Sarah for the constitutional violations they suffered. Ad SEL SS ae Affirmed in part, vacated in part, and remanded. Judge Jacobs concurs in part and dissents in part in a separate opinion. CAROLYN A. KUBITSCHEK, Lansner & Kubitschek, New York, NY (David J. Lansner, Christopher S. Weddle, Charles Park, legal assistant, on the brief), for Appellees-Cross-Appellants. ELLEN RAVITCH, Assistant Corporation Counsel of the City of New York, New York, NY (Jeffrey D. Friedlander, Acting Corporation Counsel of the City of New York, Stephen J. McGrath, Bruce Rosenbaum, of counsel), for Appellants-Cross-Appellees and Defendant- Appellant-Cross-Appellee. Diane Redleaf, Lehrer & Redleaf, Chicago, IIl., for Amicus Curiae National Coalition for Child Protection Reform. SACK, Circuit Judge: On Tuesday, January 9, 1990, at about noon, a caseworker from the New York City Child Welfare Administration (the “CWA”) removed five-year-old Sarah Tenenbaum from her kindergarten class at P.S. 230 in Brooklyn, New York, pur- Suant to the emergency removal provisions of New York Social Services Law § 417! and New York Family Court Act I Section 417 states, in pertinent part, that specified public officials “shall take all appropriate measures to protect a child’s life and health including, when appropriate, taking or keeping a child in protective custody without A3 § 1024,? without court order and without notifying or receiv- ing authorization from either of her parents, Marc and Mary Tenenbaum (the “Tenenbaums”). Sarah was taken to the emergency room at Coney Island Hospital where a pediatri- cian anda £ynecologist examined her for signs of possible sexual abuse. When they found none, she was returned to her parents. The case was abandoned as “unfounded.” The Tenenbaums brought suit in the United States District Court for the Eastern District of New York against, inter alia, New York City (the “City”), the CWA, and CWA employees. The City appeals from a money judgment against it in the district court (Denis R. Hurley, Judge) based on the district court’s finding that the medical examination performed with- out either parental consent or court order deprived the Tenen- baums and their daughter of procedural rights guaranteed by the Due Process Clause of the Fourteenth Amendment, and infringed Sarah’s right to be free from unreasonable searches under the Fourth Amendment applied to the States through the Fourteenth. The Tenenbaums, for themselves and their daughter, cross-appeal from the judgment of the district court insofar as it granted defendants’ motion for summary judg- ment dismissing their claim that the defendants’ removal of Sarah from school without their consent or court authoriza- tion was a violation of their and Sarah’s procedural and substantive rights under the Due Process Clause of the Four- | teenth Amendment. They also appeal the court’s holding that the consent of a parent or guardian if such person has reasonable cause to believe that the circumstances or condition of the child are such that con- tinuing in his or her place of residence _ . - presents an imminent danger to the child’s life or health.” N.Y. Soc. Serv. Law § 417(1)(a) (McKinney 1999). 2 Section 1024 is substantially similar to § 417 but adds that, in order to effect an emergency removal! without a court order, there must not be enough time to apply for such court order. See N.Y. Fam. Ct. Act § 1024(a)(ii) (McKinney 1999). Ae age award, arguing that it is insufficient to compensate them for the constitutional violations they suffered. rights and awards damages therefor. We disagree with the however, we vacate in part and remand only with respect to the City. We affirm the district court’s award of damages, Should the Tenenbaums prevail on the claims that we remand for trial. A5 Background The facts underlying this appeal are largely undisputed. Five-year-old Sarah Tenenbaum, a kindergartner at P.S. 230 in Brooklyn, was “developmentally delayed” and afflicted with “elective mutism”—only rarely would she speak to oth- ers outside of her home. In school, non-verbal or limited ver- bal communication was therefore typical. Sarah’s teacher, Mary Murphy, was in her third year as a teacher, her first as _ a kindergarten teacher. Sarah communicated with Murphy by showing her pictures she (Sarah) had drawn or by speaking in one- or two-word sentences. On Thursday, January 4, 1990, Sarah slept while her class was being told a story and attendance was being taken. When she awoke, she was crying. Murphy asked Sarah why; Sarah did not respond. Murphy persisted, asking Sarah whether anyone in the class had hurt her. Sarah shook her head “no.” When Murphy asked whether someone at home had hurt her, Sarah nodded “yes.” Then, according to Murphy, she “went down the list of people that were in [Sarah’s] life. . . all of which [Sarah] shook her head, no, to. When {Murphy] asked [Sarah] if her father was hurting her, her eyes welled up in tears and she shook her head, yes, and she started to really cry.” Later that day, Murphy talked to Sarah again and asked Sarah to indicate on a doll she was holding where Sarah was being hurt. Sarah pointed to the groin area of the doll. In order to make sure she was not misunderstanding Sarah, Murphy asked Sarah to indicate again where she was being hurt and Sarah again pointed to the doil’s groin area. Murphy did not report the incident that day. During the following day, Friday, January 5, according to Murphy, Sarah drew a picture of two figures. Murphy asked A6 Sarah what was happening in the Picture and Sarah said “Sarah and. . . Daddy kneeling, hurt,” and then fell silent. Murphy reported Sarah ’s behavior to her superiors at PS. Social Services Law.3 She also reported that Sarah often slept A guidance counselor at P.S. 230 in turn reported the matter by telephone to the New York State Department of Social] Services’ Central Register of Child Abuse and Maltreatment that day, also as required by law. An operator at the State agency made a record of the coun- selor’s cal] ona department “Form 2221”: “Sarah is speech and language delayed. Sarah is unable to stay awake during the day. Ch[ild] often naps off and on al] day. Ch[ild] is ner- vous and withdrawn. Ch{ild] is afraid of fa[ther]. Fa[ther] hurts her vaginal area at night.” The department telecopied the Form 2221 to defendant Nat Williams, a supervisor in the child protective unit of the CWA in Brooklyn. Williams received it at about noon that day, Friday. Sarah’s teacher, Murphy, about the allegations contained in the Form 2221. James attempted to reach Murphy at the school, but Murphy had left for the weekend. teachers in public schools. That section also permits such persons who are members of the staff “of a medical or other public or private institution, school, facility or agency,” to report the suspected abuse to the Person in Williams also told James to visit the Tenenbaums’ home that evening to examine the child for marks and bruises, to assure herself that Sarah’s living conditions were acceptable, and to discuss with the Tenenbaums Sarah’s sleeping in school and her delayed development. Williams issued explicit instructions to James not to raise the issue of sexua] abuse. That evening, James, accompanied by colleague Thomas O’Connell, who was sent along by Williams in case any male children might be involved, arrived unannounced at the Tenenbaums’ home. James told the Tenenbaums that she and O’Connell were investigating a report that Sarah was devel- opmentally delayed and was sleeping in school. In accor- dance with Williams’ instructions, they did not mention the O’Connell, respectively, to inspect Sarah’s and her brother’s partially uncovered bodies for marks or bruises. The case- Tenenbaum, a plumber for the City school system, was home during the evenings. The Tenenbaum home seemed to the caseworkers to be neat and well-cared for. There is a dispute about what the caseworkers told the Such request and had not left a telephone number where she, O’Connell, or their Supervisor could be reached. In any event, not having been told about the sexual abuse charges, the Tenenbaums did not know that Mr. Tenenbaum was sus- pected of wrongdoing or that anyone thought that Sarah might be in imminent danger of physical harm. James and O’Connell left the Tenenbaum home, James reported their observations to Williams by telephone, and the NO one contacted it about the Tenenbaum Situation. Neither did Williams, James, O’Conne]] or anyone else then or dur- ing the week that followed try to reach Sarah’s doctors to dis- cuss the Possibility of abuse. There is Similarly no indication that anyone attempted to find teacher Murphy at her home or elsewhere over the weekend to try to determine the nature and extent of the evidence that Sarah had been abused. On Monday, January 8, James Visited P.S. 230. She met Murphy, who reiterated what had happened the week before. AQ expected from Mr. or Mrs. Tenenbaum. The call never came. The Tenenbaums, as already noted, deny that they had ever received any request to contact Williams. Neither did Williams call the Tenenbaums even thou gh he knew how to reach them. After James completed her report, Williams told her to work on other cases for the remainder of the day. Based on what he termed his “assessment of the Case including Miss Murphy’s account” and the failure of the Tenenbaums to contact him, Williams decided that on Tues- day, the day after he received James’s report, he would have Sarah removed from school in order to have her physically examined “to rule out [the possibility of] sexual abuse.”4 James says that at her meeting with Williams on Monday she was “instructed that [James] would have to take the child to the hospital.” When asked why she did not remove Sarah until the next day, James testified that she did not recall. Williams testified that he did not decide unti] Tuesday morn- ing to have Sarah removed from school. “I decided just to do it on Tuesday.” Although CWA lawyers were on staff at Williams’ and James’ office, neither sought legal advice before removing Sarah from school and subjecting her to the examination. Neither Williams nor James made an attempt—indeed, no one considered making an attempt—to obtain parental consent for a physical] examination of Sarah as provided by § 1021 of the New York Family Court Act.5 And no one considered seeking ‘ The defendants assert in their reply brief on appeal that Williams was Justified in treating Sarah’s simation as an emergency by the end of the day Monday because he thought the Tenenbanms had been told to telephone him that day and “the Tenenbaums took the allegation of sex abuse so lightly that they did not even call him” Bot, as Williams was of course aware, the Tenenbaums knew nothing about the sexual abuse allegation ‘becanse he had given the order that they not be told about it. > Section 1021 of the New York Family Court Act provides that an autho- rized official may temporarily remove a child who is abused or neglected A110. RAE RE PARE UR meg Neonat Sabra lished. See also N.Y. Fam. Ct. Act § 1022 (McKinney 1999), Practice Commentaries, Douglas J. Besharov at 10 (stating that it is “common to take emergency protective action with- Out prior court review” in New York City in contrast with procedures used in other Parts of the State). In the district court, the defendants “stipulated that the removal of Sarah were done pursuant to CWA policy.” Tenenbaum vy. Williams, 91-CV-0037 (DRH), Memorandum and Order at 2-3 (E.D.N.Y. Oct. 21, 1997). And at oral argument on this appeal, counsel for the defendants, when asked whether the City condoned the defendants’ actions, responded “Yes, and they do it routinely. That is the policy.” oh gata an Order directing the temporary removal of a child from the place where he or she is residing. See N.Y. Fam. Ct. Act § 1022 7 Counsel for the defendants on this appeal conceded at oral argument that “Perhaps, in this case, a court order if sought could have been obtained on that day.” All Sc ee Following Williams’ instruction, James went to P.S. 230 on Tuesday, January 9 at about noon, without court order or parental consent, and effected an “emergency” removal of Sarah for the purpose of determining whether she had been sexually abused. The school, as a matter of policy, con- sented. James, by herself, took Sarah to the emergency room at Coney Island Hospital where, after several hours’ delay, Sarah was examined by both a pediatrician and a gynecolo- gist. The gynecological examination included the insertion of a cotton swab in Sarah’s vagina and anus. No evidence of sexual abuse was discovered, although the hospital report stated that it could not be ruled out. While James and Sarah wete at the hospital, Williams con- tacted Mrs. Tenenbaum and told her that Sarah had been taken from school. Mrs. Tenenbaum telephoned her husband and both parents went to Williams’ office. When they arrived, Williams confronted Mr. Tenenbaum for the first time with the sexual abuse charge. He heatedly denied it. After Sarah’s physical examination was complete, James brought Sarah to the CWA office, where she was returned to her parents sometime between 7:30 and 8:30 that evening. Williams told the Tenenbaums that they could take Sarah home because no evidence of sexual abuse had been dis- covered. No further action was taken on the charge. Williams ultimately marked Sarah’s case “unfounded.” In January 1991, the Tenenbaums filed a complaint in the United States District Court for the Eastern District of New York pursuant to 42 U.S.C. § 1983 against Williams, James 8 Section 2.2 of the Regulation of the Chancellor relating to Reports of Suspected Child Abuse and Maltreatment then in effect read in part: “The school must permit Child Protective Services workers to take children into their custody, upon their presentation of either a court order or a written Statement from the Office of Special Services for Children.” A12 vidual capacities and on behalf of Sarah. The defendants moved for summary judgment and the Tenenbaums cross-moved for partial summary judgment. On meritorious. Even if they were, the district court held, the individual defendants were entitled to qualified immunity. The court found as a matter of law, however, that the judi- Cially unauthorized medical examination violated the Tenen- baums’ and Sarah’s Procedural due-process rights and Sarah’s Fourth Amendment right to be free from unreason- able searches. Although the individual] defendants were enti- tled to qualified immunity on this claim, the City of New York was subject to suit. The court further found that there were disputed factual issues surrounding a separate physical search claim against the Board of Education, a claim the Tenenbaums nonetheless subsequently withdrew. The court dismissed all of the Tenenbaums’ state-law claims and denied the Tenenbaums’ partial summary judgment motion. 907 F. Supp. 606, 618 (E.D.N_Y. 1995) (“Tenenbaum IT’). The City then conceded that the actions of Williams, James and the CWA, which formed the basis of the viable claims, were taken pursuant to City policy and that the City was therefore responsible for them. Tenenbaum vy. Williams, 91- CV-0037 (DRH), Memorandum and Order at 2-3 (E.D.N.Y. Oct. 21, 1997) (“Tenenbaum III’). The court held a damages trial on March 10 and 18, 1997. It awarded damages in the amount of $15,000 to Sarah and $1.00 each to Mr. and Mrs. Tenenbaum. Jd. at 7-12. These cross-appeals followed. Discussion I. Procedural Due-Process Claims The Due Process Clause of the Fourteenth Amendment provides that no State shall “deprive any person of life, lib- erty, OF property, without due process of law.” The Tenen- baums claim that they have a liberty interest in the care, management and custody of their daughter Sarah, and that her removal] from school without their consent and without court authorization deprived them of that interest without due process of law. The district court disagreed, finding that rea- sonable grounds existed for Sarah’s emergency removal. Tenenbaum I, 862 F. Supp. at 969-72. The court also found that even had the individual defendants violated plaintiffs’ due-process rights, those defendants were entitled to quali- fied immunity because officials “of reasonable competence could disagree on whether [there was] probable cause” for Sarah’s removal. Jd. at 972 (internal quotation marks and Citation omitted). The Tenenbaums claim a similar liberty interest with respect to their daughter's subjection to a medical examina- ion. The district court agreed. In contrast to its conclusion as to Sarah’s removal, the court held that the defendants’ Al4 | actions violated the Tenenbaums’ and Sarah’s procedural due-process rights as a matter of law. It reasoned that what- ever emergency may have existed at the time of Sarah’s removal from school, it had abated by the time Sarah was at the hospital. Because there was moO emergency, absent parental consent judicial authorization was required by the Due Process Clause. It had not been obtained. Jd. at 972-73. The court nevertheless found that the individual defendants were entitled to qualified immunity on this claim too, and granted summary judgment to them on that basis. Jd. at 973. The City, to which the qualified immunity defense does not apply, was held potentially liable on this claim and the court denied summary judgment as to it. See id. After the district court denied its motion for reargument, the City conceded that the actions of the CWA caseworkers were taken pursuant to City policy. See Tenenbaum IH], at 2-3. A damages trial followed and the court awarded the plaintiffs and Sarah dam- ages on this claim. See Tenenbaum II, at 7-12. On appeal, the Tenenbaums contend that the district court erred when it granted summary judgment for the defendants on the Tenenbaums’ claim that, aside from the medical exam- ination, Sarah’s removal from school violated their and Sarah's due-process rights. They also challenge the district court's finding that qualified immunity shields the individual defendants from liability. For its part, the City asserts that the district court erred in holding that the medical examination violated the plaintiffs’ due-process rights. The Tenenbaums argue that this aspect of the court’s decision was correct, but insist that the individual defendants are not entitled to qual- ified immunity as to this claim. This Court reviews the district court’s grant of summary judgment de novo, see Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir. 1998), and we construe the evi- dence in the light most favorable to the non-moving party. A15 See Anderson vy. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). We will affirm the decision only if the record indi- cates that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a mat- ter of law.” Fed. R. Civ. P. 56(c). “A dispute regarding a material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ Stuart v. American Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998) (quoting Anderson, 477 U.S. at 248), cert. denied, 119 S. Ct. 1456 (1999). A. Sarah’s Removal 1. Constitutional Violation “Choices about marriage, family life, and the upbringing of children are among associational rights [the Supreme] 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.J., 519 U.S. 102, 116 (1996) (internal citation Omitted). Parents therefore have a constitutionally protected liberty interest in the care, custody and management of their chil- dren. See Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); Hurlman y. Rice, 927 F.2d 74, 79 (2d Cir. 1991); van Emrick v. Chemung County Dep’t of Soc. Servs., 911 F.2d 863, 867 (2d Cir. 1990); see also Stanley v. Illinois, 405 U.S. 645, 649- 52 (1972) (rights to conceive and raise one’s children have been deemed “essential” and “basic civil rights of man”); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (the cus- tody, care and nurture of the child reside first with the par- ents); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (liberty guaranteed by the Fourteenth Amendment includes the right to establish a home and bring up children); Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) (recognizing the A16 At the same time, however, the State has a Profound inter- est in the welfare of the child, Particularly his or her being Sheltered from abuse. In “ ‘emergency’ circumstances,” 821 F.2d at 922). “[T]he mere ‘Possibility’ of danger” is not enough. Jd. at 81. If it Were, officers would always be justi- fied in Seizing a child without a court order whenever there was suspicion that the child might have been abused. See id. The law thus seeks to Strike a balance among the Hollingsworth y. Hill, 110 F.3d 733, 739 (10th Cir. 1997); Robison, 821 F.2d at 920. According to the district court, because consent was not obtained? and court Proceedings not employed, “[t]he Pivotal a 9 Joval and sats 6o not argue thatthe school’s rotine consent to Serah’ question” is whether James’ removal of Sarah from P.S. 230 was an “appropriate response to a legitimately perceived emergency.” Tenenbaum I, 862 F. Supp. at 970. The district court found that Williams, who ordered Sarah’s removal, had probable cause, i.e., an objectively reasonable basis, to believe emergency circumstances existed because “the sub- Stance of what the child communicated to Murphy... . is essentially uncontroverted, viz. that Sarah’s father hurt her through contact with her Vaginal area at night.” Jd. This was enough to satisfy the district court that as a matter of law there were emergency circumstances that permitted Sarah’s removal from school for a physical examination without a court order. See id. at 971. We disagree. While “there is a sufficient emergency to warrant officials’ taking [a child into] custody without a prior hearing if [he or she] is immediately threatened with harm,” Robison, 82] F.2d at 922 (citation omitted), the converse is also true. If the v. Acton, 515 U.S. 646, 654 (1995), the Supreme Court has rejected the nouon that public schools generally “act in loco parentis in their dealings with students: (that) their authority is that of the parent. . . . Such rea- soning is in tension with contemporary reality and the teachings of th[e] Court.” New Jersey v. T.L.O, 469 U.S. 325, 336 (1985). If it were other- wise, a public school could in effect consent to its own infringements of Students’ Fourth and Fourteenth Amendment rights thereby rendering these rights meaningless as against the school. The Supreme Court has held to the contrary that a public school is an agency of the State subject to con- absent a court order, an emergency, or parental consent.”). The extent to which a private person or institution with temporary care. taking responsibilities for a child may effectively consent to a government Official’s removal of the child and her subsequent physical examination is mot in issue in this case. We intimate no views on the question. Ais danger to the child is not so imminent that there is reasonably sufficient time to seek prior judicial authorization, ex Parte Or otherwise,!° for the Child’s removal, then the circum- out judicial Process, pre-seizure Procedural due process for the parents and their child evaporates. The decision to remove Sarah from schoo] was made as early as Monday, January 8. She was not taken from schoo] erly instructed jury could conclude that at the time the case- workers decided to remove Sarah, there was reasonably any time Sarah should have been removed for her protection and there was not then reasonably sufficient time to seek pre- deprivation judicial authorization, there would have been, as a matter of law, no violation of either the Tenenbaums’ or Sarah’s due-process rights. A jury could conclude, however, that in the case of Sarah Tenenbaum that time never came. When child abuse is asserted, the child’s welfare pre- dominates over other interests of her parents and the State. But “we must be sensitive to the fact that society’s interest in the protection of children is, indeed, multifaceted, composed not only with concerns about the safety and welfare of chil- dren from the community’s point of view, but also with the child’s psychological well-being, autonomy, and relationship to the family.” Franz v, Lytle, 997 F.2d 784, 792-93 (10th Cir. _ 1993). And while the paramount importance of the child’s well-being can be effectuated only by rendering State offi- Cials secure in the knowledge that they can act quickly and decisively in urgent situations and that the law will protect them when they do, there is a critical difference between nec- essary latitude and infinite license. As the Supreme Court Stated in Stanley v. Illinois: The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. 405 U.S. at 656. And as this case may demonstrate, if officers of the State come to believe that they can never be ques- tioned in a court of law for the manner in which they remove a child from her ordinary care, custody and Management, it is inevitable that they will eventually inflict harm on the par- ents, the State, and the child. A20 EIS 2. Qualified Immunity the defendants was inappropriate “vis-a-vis Sarah’s removal, the [individual] defendants] would still be entitled to such I, 862 F. Supp. at 972. We agree. exist” a parent can “not be deprived” of the custody of his or her child “without due process, generally in the form of a predeprivation hearing.” Huriman, 927 F.2d at 79 (citing Robison, 821 F.2d at 921). But not until teday have we specifically held that where there is reasonable time consis- tent with the safety of the child to obtain a judicial order, the “emergency” removal of a child is unwarranted. We cannot Say that this principle was clearly enough articulated in or implied by our case law as of 1990 to require the defendants to answer in damages for their failure to abide by it at that time. The district court, in a thoughtful and thorough opinion, moreover, held that the individual defendants’ actions in removing Sarah complied with procedural due-process requirements. While such a conclusion would not entirely preclude us from finding that the individual defendants’ actions violated plaintiffs’ “clearly established right,” the district court’s determination in 1994 that no such right existed helps persuade us that in early 1990 the right was not “clearly established.” We conclude that the district court cor- rectly determined that the individual defendants were pro- tected by qualified immunity. Because we now hold that it is unconstitutional for state officials to effect a child’s removal on an “emergency” basis where there is reasonable time safely to obtain judicial autho- rization consistent with the child’s safety, caseworkers can no longer claim, as did the defendants here, that they are immune from liability for such actions because the law is not “clearly established.” But there remains substantial protec- tion for caseworkers under the second prong of the qualified immunity test, so long as it is “objectively reasonable [for them] to believe that [their] acts [do] not violate these clearly established rights.” Young, 160 F.3d at 903. “The objective reasonableness test is met—and the defendant is entitled to A22 TNE immunity—if ‘Officers of reasonable competence could dis- agree’ on the legality of the defendant’s actions.” Lennon y. Briggs, 475 U.S. 335, 34] (1986)). We continue to recognize [P]rotective S€Tvices caseworkers [must] choose between difficult alternatives . - . . If they err in interrupting Provide ample protection for caseworkers, enabling them to fulfill their crucia] duties safely and effectively. When sued, nity doctrine. 3. Liability of the City While the individual] defendants are entitled to qualified immunity, the City is not. See Owen v. City of Independence, 445 U.S. 622, 657 (1980); Ferran v. Town of Nassau, 11 F.3d 21, 23 (2d Cir. 1993), cert. denied, 513 U.S. 1014 (1994). In -— A23 order for a court to impose liability on a municipal defendant under § 1983, the plaintiff must identify a municipal “policy” or “custom” from which the alleged injury arose. See Monell v. Department of Social Servs., 436 U.S. 658, 694 (1978). This “ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly consti- tuted legislative body or of those officials whose acts may fairly be said to be those of the municipality.” Board of the County Comm’rs v. Brown, 520 U.S. 397, 403-04 (1997). The City conceded in the district court that both “the removal of Sarah and her subsequent examination” were accomplished pursuant to City policy. Tenenbaum III, at 2-3. This concession was reconfirmed at oral argument on this appeal. If this concession is binding on the City and after trial on remand Sarah’s removal is found to have been a vio- lation of the plaintiffs’ procedural due-process rights, then the City will be liable for that violation. If for any reason the district court holds that the City is not bound by this con- cession, however, in order to prevail on their claim that the City is liable for the procedural due-process infringements by the individual defendants based on Sarah’s removal, the plaintiffs will also be required to show on remand that the removal was effected pursuant to a City policy or custom. B. The Medical Examination 1. Constitutional Violation The district court found that Sarah’s subjection to a med- _ ical examination by both a pediatrician and a gynecologist at the request of CWA caseworker James violated Sarah’s and her parents’ procedural due-process rights but concluded that the individual defendants were qualifiedly immune from lia- bility. The City was not shielded from liability, however, because it conceded that the €xamination was conducted A24 the present case is distinguishable. We are unpersuaded. the x-rays were taken, the child was placed in the temporary custody of the Department of Social Services: this Custodial arrangement, effected pursuant to @ court order, was not based on anything the X-rays revealed but rather was made because of the caseworkers’ fear that the child could be in danger if returned home. The investigation ended without any A25 finding of responsibility for the injury and the child was returned to her parents. See id. at 865. In determining that the administration of the X-rays with- out the parents’ consent or a court order violated the plain- tiffs’ procedural due-process rights, this Court concluded that the x-rays were not “medically indicated.” See id. at 867. The purpose of the x-rays “was not to provide medical treatment to the child, but to provide investigative assistance to the caseworker.” Jd. Based on this determination, we announced that | the Constitution assures parents that, in the absence of parental consent, x-rays of their child may not be under- taken for investigative purposes at the behest of state officials unless a judicial officer has determined, upon notice to the parents and an Opportunity to be heard, that - rounds for such an examination exist and that the administration of the procedure is reasonable under al] the circumstances. Id. Relying on this holding, the court below found that: Sarah was subjected to intrusive bodily examinations by two strangers, in a strange location, in the absence of a parent or other reassuring figure. . . [and accordingly] plaintiffs have established, as a matter of law, that their procedural] due process rights were violated by the man- ner in which Sarah was Subjected to a medical exami- nation on January 9, 1990. Tenenbaum I, 862 F. Supp. at 973. The district court reiter- ated this holding on the City’s motion for reconsideration. See Tenenbaum II, 907 F-Supp. at 617-18. The City contends that van Emrik is distinguishable from this case because (1) the medical procedure administered in van Emrik (long-bone A26 X-rays) was potentially harmful to the child, while the med- ical procedure in the present case was not, and (2) the x-rays in van Emrik were administered purely for investigative pur- poses whereas the examination of Sarah’s vaginal area was conducted for the Purpose of detecting and heating injuries that may have been caused by alleged sexual abuse. We dis- agree on both counts. First, with respect to the contention that van Emrik’s hold- ing does not apply because Sarah was subjected to a gyne- cological exam rather than long-bone x-rays, we agree with the district court that “(while the child in van Emrik faced - the possibility of physical injury, Sarah, almost certainly, did, in fact, experience Psychological injury on January 9, 1990.” 862 F. Supp. at 973. That likelihood surely could have been anticipated by both Williams and James. Moreover, van Emrik does not confine its holding to x-rays, but instead Speaks in broad terms of “medical procedures in aid of child abuse investigations.” van Emrik, 911 F.2d at 868. Second, with respect to the City’s argument that Sarah’s physical examination was medically indicated, the evidence discloses that when Sarah was brought to the emergency room at Coney Island Hospital, doctors were told that she was a suspected victim of sexual abuse by her father. It is undisputed that the Synecological exam that ensued was undertaken for the Purpose of determining whether such abuse had occurred. Williams unambiguously so testified. While the purpose was investigative, the method by which the doctors conducted the investigation was, of course, to examine Sarah for injuries consistent with abuse. During the examination of Sarah “to rule out [the possi- bility of] sexual abuse,” injuries might have been found, and if so we would surely expect them to have been treated. But that possibility did not turn an investigative examination into A27 one that is “medically indicated” and designed for treatment. Cf. Chayo v. Kaladjian, 844 F. Supp. 163, 169 (S._.D.N.Y. 1994) (interpreting van Emrik to permit unauthorized X-rays that were ordered by a pediatric resident for purposes of diagnosis, not investigation, where child had visible bruise on head); Schwimmer y. Kaladjian, 988 F. Supp. 631, 641 (S.D.N.Y. 1997) (doctor-ordered X-rays where child was cov- ered with ecchymotic lesions were medically indicated, not merely investigative), aff’d, 164 F.3d 619 (2d Cir. 1998) (unpublished table decision). We also agree with the district court that if Sarah had ever been in imminent danger, she was not by the time she was taken to the hospital in the custody of the CWA. The case- workers were required under van Emrik either to notify the Tenenbaums that Sarah was about to undergo a medical pro- cedure and obtain the approval of either of them or to obtain judicial authorization. They did neither. See Tenenbaum I, 862 F. Supp. at 972. 2. Qualified Immunity We also agree with the district court that the individual defendants were nonetheless entitled to qualified immunity. Not until van Emrik was decided in August 1990 was the law Clear that subjecting a child to invasive investigatory medi- cal examination in the course of an abuse investigation requires a court order absent parental consent. The events in Tenenbaum occurred more than seven months prior thereto. The individual defendants did not, therefore, violate rights that were “clearly established” at the time. See section 1.A.2., supra. Il. Substantive Due-Process Claims The Tenenbaums also contend that Sarah’s temporary removal for the purpose of subjecting her to a medical exam- A28 ination violated their and Sarah’s substantive due-pro-cess rights." The district court granted the defendants’ motion for 969. We agree with the district court’s conclusion, although we affirm its grant of summary judgment as to the claim brought on Sarah’s behalf on different grounds. Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opin- ion of Rehnquist, C.J -) (quoting Graham y. Connor, 490 U.S. 386, 395 (1989)). “Substantive due process analysis is there- fore inappropriate in this case. . . if [the] claim is ‘covered by” the Fourth Amendment.” County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998). As discussed below, Sarah’s removal and her examination constituted a seizure and claim on Sarah’s behalf therefore “must be analyzed under the standard appropriate to [the Fourth Amendment], not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n.7 (1997). We affirm the dis- missal of the substantive due-process claim brought on Sarah’s behalf on this ground. The Tenenbaums do not have—or at least no longer allege—cognizable Fourth Amendment claims based on Sarah’s examination and removal. See note 13, infra. It is therefore appropriate to analyze whether their claims are redressible as substantive due-process violations. Because we tind that they are not, we affirm the district court’s grant of Summary judgment on those claims. The Tenenbaums and their family have, in general terms, a substantive right under the Due Process Clause “to remain together without the coercive interference of the awesome power of the state.” Duchesne, 566 F.2d at 825. We could agree with the Tenenbaums that this right was violated by the defendants in this case only if we were to conclude that the removal of Sarah for several hours under these circumstances would have been prohibited by the Constitution even had the Tenenbaums been given all the procedural protections to which they were entitled. See Daniels y. Williams, 474 U.S. 327, 331 (1986) (substantive due-process rights bar “certain government actions regardless of the fairness of the proce- dures used to implement them.”). The substantive rights aris- ing out of the Due Process Clause are not so broad. “[T]he touchstone of due process is protection of the indi- vidual against arbitrary action of government.” County of Sacramento, 523 U.S. at 845 (internal quotation marks and citation omitted). Substantive due-process rights guard against the government’s “exercise of power without any rea- sonable justification in the service of a legitimate govern- mental objective.” Jd. at 846 (citation omitted). “[OJnly the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense’ ” and therefore unconstitutional. A30 Thus, in Joyner y, Dumpson, 712 F.2d 770 (2d Cir. 1983), we analyzed whether New York’s mandatory Custody Here, Sarah was taken from P'S. 230 at about noon on Jan- uary 9, 1990 and was returned to her parents hours later. The The Tenenbaums aver that the duration of an imposed sep- aration has no bearing on the substantive due-process anal- ysis. The cases on which they rely, however, are inapposite. In United States v. Langer, 958 F.2d 522 (2d Cir. 1992), for example, we determined that police detention even for ten to fifteen minutes was “constitutionally significant” for pur- poses of 18 U.S.C. § 242. See id. at 524. The right implicated in Langer was the Fourth Amendment right to be free from unreasonable seizures and in that context we recognized that “even a brief seizure is a serious intrusion upon the sanctity of the person.” Jd. (internal quotation marks omitted). Sim- ilarly, in Davis v. Mississippi, 394 U.S. 721 (1969), the Supreme Court found that the detention of the defendant at police headquarters, even for a short period of time, violated the Fourth Amendment where there was no probable cause for arrest. The Tenenbaums ask us to extrapolate from Langer and Davis a rule that the separation of child and parent for a short period of time, no matter what procedural protections accompany it, constitutes a violation of the right to family integrity. There is no basis for us to do so. It does not follow from the principle that brief seizures of people may be unrea- sonable and therefore violate the Fourth Amendment that brief removals of children from their parents to protect them from abuse are “without any reasonable justification in the service of a legitimate governmental objective,” County of Sacramento, 523 U.S. at 846, under the Due Process Clause. The district court properly granted summary judgment for all the defendants on this claim. Ill. Fourth Amendment Claims The Tenenbaums assert on behalf of Sarah! that both her removal and her subjection to the medical examination also 3 “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” Alderman v. United A32 violated her Tight to be free from unlawful Searches and Seizures under the Fourth Amendment, because the CWA caseworkers did not have a Warrant or its equivalent autho- holding with Fespect to these claims mirrored its procedural due-process determinations: First, the caseworkers had prob- was conducted pursuant to City policy, Tenenbaum III at 2-3, and that it was therefore legally responsible for the indi- vidual defendants’ actions with respect thereto. Tenenbaum I, 862 F. Supp. at 978. A33 On appeal, the Tenenbaums assert on Sarah’s behalf that contrary to the district court’s holding, Sarah’s removal, like her examination, was not justified by emergency circum- stances and was therefore a violation of her Fourth Amend- ment rights. They also assert that the individual defendants are not entitled to qualified immunity. The City contends that the district court properly decided the removal aspect of the Tenenbaums’ Fourth Amendment claim but that the medica] €xamination portion also should have been dismissed because the examination was medically indicated and therefore con- stitutional. As with our determination of the procedural due- process claim, we find the record facts insufficient to sustain the district court’s holding that as a matter of law Sarah’s emergency removal was proper. But we agree with the dis- trict court that the individual defendants are entitled to qual- ified immunity. We also agree with the district court that the physical examination performed on Sarah without parenta] consent or judicial authorization violated Sarah’s Fourth Amendment rights but that qualified immunity shields the individual defendants from liability on that claim as well. A. Sarah’s Removal 1. Constitutional Violation Sarah was taken by a government official from her school to a hospital where she was required to remain for several hours before being examined and returned to her parents. We agree with the district court that this constituted a “seizure” under the Fourth Amendment. Cf. Graham, 490 U.S. at 395 n.10 (“A ‘seizure’, triggering the Fourth Amendment’s pro- tections occurs . . . when government actors have, ‘by means of physical force or show of authority . . . in some way restrained the liberty of a citizen.’ ”); Gardiner, 50 F.3d at 155 (an individual is seized if, under the circumstances A34 presented, “a reasonable Person would have believed he was not free to leave.”) (internal quotation marks and citations omitted). The Fourth Amendment Protects “the people” from “unrea- sonable searches and seizures,” also providing that “no War- rants shall issue, but upon probable cause, Supported by Oath or affirmation, and Particularly describing. . . the persons or things to be seized.” (emphasis added). In the context of a seizure of a child by the State during an abuse investiga- tion, as the district court recognized, see Tenenbaum I, 862 F. Supp. at 974 n.7, a court order is the equivalent of a war- rant. But the caseworkers here neither sought nor obtained such an order. So whether the equivalent of a warrant was properly obtained and, indeed, whether or in what sense probable cause would be Tequired to be demonstrated in order to obtain one are not issues on this appeal. The term “probable cause” has also been imported from the warrant clause of the Fourth Amendment and applied to its “unreasonable searches and seizures” clause. The term “prob- able cause” is thus not only the explicit Fourth Amendment requirement for obtaining a warrant, but also descriptive of what seizures are “reasonable” when, as here, no warrant has been obtained. See generally, Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757 (1994). This issue arises most commonly where there is a war- rantless arrest. In general, probable cause to arrest exists when the offi- cers have knowledge or reasonably trustworthy infor- mation of facts and circumstances that are sufficient to Warrant a person of reasonable caution in the belief that 14 The Fourth Amendment's search and seizure provisions are applicable to the defendants through the Fourteenth Amendment’s due Process Clause. See, e.g., Mapp v. Ohio, 367 U.S. 643, 655 (1961). A35 ESS 'S = rr the person to be arrested has committed or is comunitting a crime. . Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citations omitted); cf. T.L.O., 469 U.S. at 340 (“probable cause” that there has been a violation of the law is ordinarily required even for searches that can be permissibly carried out without @ warrant). Probable cause is a flexible term. There is no “rigid demand that Specific ‘tests’ be satisfied.” Iilinois vy. Gates, 462 U.S. 213, 231 (1983). “In dealing with probable Cause, . . . as the very name implies, we deal with proba- bilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Jd. (internal quotation marks and citation omitted). The district court found that probable cause in this Sense was required for the removal of Sarah from her School, and that it existed suffi- ciently to justify the defendants’ actions. Tenenbaum I, 862 F. Supp. at 977. | There is a threshold issue, as the district court recognized. Does the ordinary probable-cause standard applicable to, among others, law enforcement officials making warrantless arrests also apply to caseworkers seizing children without prior court authorization? Although all agencies of govern- ment are governed by the unreasonable searches and seizures provision of the Fourth Amendment, there are some agencies outside the realm of criminal law enforcement where gov- ernment officials have “special needs beyond the normal need for law enforcement {that] make the warrant and prob- able-cause requirement impracticable.” O’Connor v. Ortega, 480 U.S. 709, 720 ( 1987) (plurality Opinion) (internal quo- tation marks and citation omitted); see also id. at 732 (Scalia, officer to follow ordinary law-enforcement requirements under the Fourth Amendment would impose intolerable bur- A36 Cir. 1989) (applying ordinary Probable-cause Standard to inspection of child’s nude body by caseworker and police officer); Donald v. Polk County, 836 F.2d 376, 384 (7th Cir. 1988) (applying probable-cause standard to caseworkers’ removal of child from parents’ custody). But see Darryl H. y. Coler, 801 F.2d 893, 901-02 (7th Cir. 1986) (neither warrant A37 But we refrain from deciding categorically, as did the dis- trict court, that the removal of a child of whom abuse is Suspected is not a “special needs” Situation. There may be circumstances in which the law of watrant and probable cause established in the criminal] Setting does not work effec- tively in the child removal or child examination context.15 This is not such a Case. or refer directly to the “unreasonable. . - Seizure” language of the Foarth Amendment, as we must in “special needs” cir- cumstances. If “probable cause” was required, and the infor- 15 wroteon not decide, as the district court did, for example. whether caseworkers ever have “special needs” that would permit them to base a removal of a child on information from an anonymous source contrary to ordinary probable Cause jurisprudence. See Tenenbaum I, 862 F. Supp. at 975-76. A38 out first obtaining a court order. See Weyant, 101 F.3d at 852. If a more general “special needs” ““Teasonableness” test Son of reasonable caution in the belief that Sarah was subject to the danger of abuse if not removed from school before court authorization could reasonably have been obtained, her removal was reasonable also. Finally and in any event, it is core Fourth Amendment doc- trine that a seizure without consent or 4 Warrant is a “rea- sonable” seizure if it js justified by “exigent circumstances,” States v. Medina, 944 F.2q 60, 68 (2d Cir. 1991), cert. denied, 503 U.S. 949 (1992); Good, 891 F2q at 1093-94 (discussing “exigent circumstances” Principles applied to officer’s A39 before court authorization can reasonably be obtained, the “exigent circumstances” doctrine too permits removal of the child without a warrant equivalent and without parental con- sent. See, e.g., Huriman, 927 F.2d at 80. Whatever Fourth Amendment analysis is employed, then, it results in a test for present purposes similar to the proce- dural due-process standard. If information possessed by Williams or James warranted a person of reasonable caution in the belief that Sarah was subject to the danger of abuse if not removed from school before court authorization reason- ably could be obtained, Sarah’s removal complied with Fourth Amendment requirements despite the absence of a warrant equivalent because probable cause, reasonable cause, and exigent circumstances sufficient to justify it existed. A jury could reasonably conclude that the case here was oth- erwise. We reverse the district court’s grant of summary judgment against Sarah on her Fourth Amendment removal claim. 2. Qualified Immunity Qualified immunity protects the individual defendants from liability under the Fourth Amendment for Sarah’s removal. The application of Fourth Amendment standards in the child-abuse context was not clear at the time of defen- dants’ acts in 1990. Our analysis here is similar to our anal- ysis of the individual defendants’ immunity from the procedural due-process claims. See section 1.A.2, supra. There was no “clearly established” law under the Fourth Amendment from which the individual defendants could have concluded that they did not have “probable cause” to remove Sarah from P.S. 230 on an emergency basis. In this analysis, as in the parallel due-process assessment, it is particularly difficult to conclude that the individual defendants’ behav- ior was wrongful under “clearly established” Fourth Amend- A40 ment principles in light of the district court’s carefully con- sidered decision that it did not violate the Fourth Amendment at all, even though we ultimately disagree with that conclu- sion. We affirm the district court as to the individual defen- dants’ qualified immunity. We emphasize again the importance of the availability of qualified immunity where child welfare workers are seeking to protect children from abuse. If caseworkers “ ‘of reason- able competence could disagree’ on the legality of [a] defen- dant’s actions” their behavior is protected. Lennon, 66 F.3d at 420 (quoting Malley, 475 U.S. at 341). 3. Liability of the City. For the reasons set forth in section I.A.3., above, in con- nection with liability for due-process violations, the City must be liable for Sarah’s removal as a violation of her Fourth Amendment rights if the removal constituted such a violation and was effected in conformity with a “policy” or “custom” of the City. As we have indicated, the City appar- ently conceded the latter. See Tenenbaum III, at 2-3. If it has not, the Tenenbaums on Sarah’s behalf will be required to establish both aspects of her Fourth Amendment removal Case at trial. B. The Medical Examination 1. Constitutional Violation The district court found that Sarah’s physical ex..uination violated her Fourth Amendment right to be free from war- rantless searches. Tenenbaum I, 862 F. Supp. at 978. The City was held liable for the actions of the individual defendants because it conceded that the examination was pursuant to City policy. See Tenenbaum IIT, at 2-3. We agree. For the rea- Sons discussed in the procedural due-process portion of this A41 opinion, section I.B.1., supra, we conclude that the medical . ¢Xamination was “undertaken at the initiative of a state offi- _cial [and] serve[d) primarily an investigative function; [and] in such circumstances, Fourth Amendment and bodily integrity interests of the child are implicated.” van Emrik, 911 F.2d at 867; see also Good, 891 F.2d at 1092-93: Darryl H., 801 F.2d at 907; Schwimmer, 988 F. Supp. at 644. Further, as discussed in connection with the Fourth Amendment implications of Sarah’s removal from school, we find that the Fourth Amendme\*’s reasonable or probable cause and exigent circumstances doctrines apply to searches and seizures made in the course of child abuse investigations. Accordingly, in the absence of a warrant equivalent, in order for the examination to have been constitutional, reasonable or probable cause or exigent circumstances justifying an emergency examination must have existed at the time the examination was performed. As the district court found, they did not. Sarah could not have been in danger from her father while she was being held by the CWA. There was ample time to obtain a court order. The district court’s conclusion that there was an insufficient justification for performing the examination on an emergency basis is not clearly erroneous and we therefore affirm its judgment as to this claim. 2. Qualified Immunity Again, the individual defendants were rightly held by the district court to be immune. The only case that can be said to have “clearly established” the impropriety of Sarah’s exam- ination, albeit on due process not Fourth Amendment grounds, was van Emrick. It was not decided until] months after the events in this case transpired. Whatever van Emrik “clearly established” therefore could not have guided the behavior of the individual defendants here and they are enti- tled to qualified immunity, as the district court held. A42 ~ IV. Other Grounds for Appeal A. State-law Claims New York law Provides absolute immunity for state and local employees when they perform discretionary, as opposed tO ministerial, functions. See, e.g., Tango vy. Tulevech, 61 N.Y.2d 34, 40 (1983). This protection extends to the State ground that James’ and Williams’ actions were discretionary and that absolute immunity was appropriate. Tenenbaum J, 862 F. Supp. at 981. We agree and affirm on this portion of the cross-appeal. B. Damages The Tenenbaums assert that the district court’s award of $15,000 to Sarah and $1.00 each to Mr. and Mrs. Tenenbaum A43 Vv. Claims Against the Board of Education We make explicit what we think is implicit in the forego- ing discussion. Public schools have a relationship with their students that is markedly different from the relationship between most governmental agencies, including the CWA, and the children with whom they deal. Constitutional claims based on searches or seizures by public school officials relat- ing to public school students therefore call for an analysis under the Fourth and Fourteenth Amendments that is differ- ent from that set forth in this opinion. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) (routine drug testing of public school] student athletes does not violate the Fourth Amendment); T.L.0., 469 U.S. 325 (1985) (Fourth Amendment “probable cause” requirement inapplicable to warrantless search by public school assistant vice principal of student’s purse). Inasmuch as the plaintiffs have not pur- sued claims against the Board of Education or public school officials, we have no occasion to discuss this issue in further detail or to apply that analysis. Conclusion In sum, we find that, with respect to Sarah’s removal from school by the CWA, the district court erred in concluding as a matter of law that the Tenenbaums’ and Sarah’s procedural due-process rights and Sarah’s Fourth Amendment rights were not infringed as a matter of law, and remand those claims to the district court for further proceedings. We con- clude, however, that (1) the district court was correct in deciding that the defendants did not violate the Tenenbaums’ or Sarah’s substantive due-process rights as a matter of law; (2) with respect to Sarah’s physical examination, the district court. was correct in deciding that the Tenenbaums’ and Sarah’s procedural due-process rights and Sarah’s Fourth A44 Amendment rights were infringed; and (3) with respect to al] the assertions of constitutional violations, the district court was Correct in deciding that the individual defendants are entitled to qualified immunity. We also affirm the district court’s assessment of damages with Tespect to Sarah’s phys- ical examination and its dismissal of the Tenenbaums’ state- law claims. JACOBS, Circuit Judge, concurring in part, and dissenting in part: I concur generally in the portions of the majority opinion that affirm the dismissal of the Tenenbaums’ substantive due process and state law claims. I respectfully dissent from the remainder of the opinion, however, because I see no consti- tutional violation, and would not reach the question of qual- ified immunity or the Tenenbaums’ challenge to the district court’s award of damages. A. Removal of Sarah 1. Definition of “Emergency” We have previously held that an emergency is an exigent Situation in which a child welfare worker may take custody of a child without parental consent and without a court order. Thus the majority recites: “in “emergency circumstances,’ a child may be taken into custody by a responsible State offi- Cial without court authorization or parental consent.” Major- ity Opinion at 7027-7028 (quoting Huriman vy. Rice, 927 F.2d 74, 80 (2d Cir. 1991)). This standard has been applied again and again. See Gottlieb y. County of Orange, 84 F.3d 5] l, 520 (2d Cir. 1996) (“It is established . . . that government A45 officials may remove a child from his or her parents’ custody before a hearing is held where there is an objectively rea- sonable basis for believing that a threat to the child’s health or safety is imminent.”); Cecere v. City of New York, 967 F.2d 826, 829 (2d Cir. 1992); Robison v. Via, 821 F.2d 913, 922 (2d Cir. 1987) (“[I}t is sufficient if the officials have been presented with evidence of serious ongoing abuse and there- fore have reason to fear imminent recurrence.”); Duchesne v. Sugarman, 566 F.2d 817, 825-26 (2d Cir. 1977). The majority opinion announces a new and incompatible principle: that there is no such emergency, notwithstanding the exigency, if there is or may be time to obtain a court order. None of our cases has held that the availability of the emergency-removal exception depends on whether there is time to obtain judicial pre-authorization. Each of our prior cases requires only that an emergency exist, a fact that is determined by reference to the child’s peril, not the case worker's schedule or the court’s calendar. This is a sensible formulation, and one that keeps the child welfare worker focused on what matters first in these cases, the child’s pre- carious welfare. “When a child’s safety is threatened, that is justification enough for action first and hearing afterward.” Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir. 1983), quoted in Robison, 821 F.2d at 921. The error of the majority opinion is to recast a.child-wel- fare emergency in terms of a procedural emergency, i.e., whether the danger to the child is so pressing that no court order is feasible. Thus the majoritty opinion requires a child welfare worker, at peril of personal liability, to make the additional determination as to whether there is time enough to secure court authorization. An already-difficult calculus is thus complicated by a new and comfusing set of standards and risks. Cf. Wilkinson v. Russell, 182 F.3d 89, 105 (2d Cir. 1999) (“[C]Jourts must be especially sensitive to the pres- A46 Surized circumstances routinely confronting case workers, circumstances in which decisions between difficult alterna- tives often need to be made on the basis of limited or con- flicting information.” (internal quotation Marks omitted)). The circumstances of this case objectively justified Invo- Cation of the emergency exception. At the time the child wel- garten each day. I would therefore affirm summary judgment for the defendants on the removal claim. 2. Applying the Majority’s New Rule Under the rule announced by the Majority, however, a jury would decide if there was time for the child welfare worker to obtain a court order. Was there time in this case? How long does it take? The City concedes that it can be done in a day: was there a day? The majority’s treatment of these questions demonstrates that in terms of legal risk the only safe course now open for a social worker or the City will be to obtain a court order in every case. To illustrate: Supervisor Williams made the decision to remove Sarah for examination on Tues- day morning, January 9, and she was removed before the noon dismissal of her kindergarten Class; yet the majority opinion holds that there was sufficient time to obtain a court order because the decision could have been made “as early as Monday,” and a court order could have been procured in a day. See Majority Opinion at 7029. A47 The opportunity to seek a court order, as supposed in the majority opinion, is premised on the implied criticism that the decision to remove Sarah should have been made sooner or faster. Thus the majority criticizes Williams for awaiting a call from the Tenenbaums (a call the Tenenbaums aver they were never told to make), even after the record on which he acted was otherwise complete. But Supervisor Williams did not get the report on the interviews with Sarah and the teacher until after they were conducted sometime on Monday, and made his decision on Tuesday morning.! There is therefore no basis for finding a delay of any appreciable number of workday hours. Similarly, the major- ity opinion criticizes inaction over the weekend, and suggests that efforts could have been made to find Sarah’s teacher before Monday.” Thus in this case, where the child welfare workers acted with dispatch, having taken action no more than a few business hours after receipt of a full report, every- one involved has been criticized (and—but for immunity in this case only—made subject to liability) both for delay and for haste. That is why the only safe decision a child-welfare worker can make (from a liability standpoint) is to get a court order regardless of risk to the child. The error of the majority opinion is partly traceable to the City’s admission that it routinely effects emergency removals and rarely seeks judicial pre-authorization. Such a policy might be called into question in a case in which no objective 1 The majority quotes testimony of caseworker James that Williams told her on Monday that she “would have to take [Sarah] to the hospital,” and deduces from that testimony that Williams made the decision on Monday. But James’ categorical testimony on this point establishes that she did not act on Monday because the decision could only be made by Williams, ie., the decision and order to act had not happened. 2 __ “Although the CWA maintains an emergency children’s services unit that is on cal] nights and weekends, no one contacted it about the Tenen- baum situation.” Majority Opinion at 7019. AaB emergency existed. But this is not such a case, nor is it a ‘Class action; the only issue before the Court is whether the child welfare workers were justified in bypassing judicial Stitutional violation, see Monell y, Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38 (1978), not on whether there was a constitutional violation in the first place. The majority opinion, however, treats the City’s policy as circumstantial evidence from which a jury could infer a lack of emergency in this Case, i.e., that the decision to remove Sarah was triggered by compliance with the City’s policy rather than by the judgment of the child welfare workers. nique, and into the tough choices that caseworkers must make and that we should not. A49 The addition of this subjective element is contrary to this Court’s precedents, all of which have assessed due process challenges to emergency removals in terms that are Strictly objective. See, e.g., Wilkinson, 182 F.3d at 104 (“An inves- tigation passes constitutional muster provided simply that case workers have a reasonable basis for their findings of abuse.” (internal quotation marks omitted) (emphasis added)); Gottlieb, 84 F.3d at 520 (“It is established. . . that government officials may remove a ¢hild from his or her par- ents’ custody before a hearing is held where there is an objectively reasonable basis for believing that a threat to the child’s health or safety is imminent.” (emphasis added)); Cecere, 967 F.2d at 829 (“[T]he only issue before us is whether the assertion of custodial authority by [the defen- dant] was objectively reasonable.” (emphasis added)); Robi- son, 821 F.2d at 922 (“The belief that the danger was of emergency proportions was likewise objectively reasonable.” (emphasis added)); see Chayo v. Kaladjian, 844 F. Supp. 163, 169 (S.D.N.Y. 1994) (“[I]t is this Court’s task to focus on the objective legal reasonableness of the defendants’ actions, rather than the defendants’ Subjective state of mind.” (inter- nal quotation marks and citation omitted)).3 3. The Danger of the Majority’s New Rule One harm of the Majority opinion will be to make summary judgment largely unattainable in due process and Fourth Amendment cases brought by parents challenging emergency removals. Ordinarily, a judge would have little trouble ascer- taining as a matter of law that the child welfare worker faced an emergency, objectively considered. (This case, in my 3 Some of these cases addressed qualified immunity, rather than the under}ying constitutional claim. As we have recently noted, however, the cases in this area typically collapse the two inquiries, so the qualified immunity cases are directly relevant to this discussion. See Wilkinson, 182 A50 emergencies are delayed, reviewed and reconsidered, or stuck in a superior’s in-box. And even a child welfare worker over- burdened with real emergencies is a human being who might 80 to lunch, take a Personal day, go home on time, or spend weekends at home. to raise a material question as to whether the exigency fore- A51 protection is considered necessary as against the parents themselves” (internal quotation marks Omitted)). The job of the child welfare worker requires a delicate balancing of risks. Already, there are incentives to err on the side of excessive caution rather than excessive action. See John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 Va. L. Rev. 47, 74-78 (1998). The majority opinion reinforces that tendency, which will be bad news for abused children. Although the majority opinion finds that the individual] defendants in this case are qualifiedly immune from dam- ages, the issuance of the holding in this appeal means (inter alia) that qualified immunity in similar situations may no longer be available in this Circuit. Every time a child welfare worker has reason to Suspect child abuse, she will have to consider (i) whether there is reason to believe the child is in imminent danger (which until now has been al] that was required) and (ii) whether there is time to get to court and obtain a court order (the majority’s new requirement) as wel] as (iii) whether a court or jury will second-guess that deci- Sion on the basis that more efficient decision-making would have afforded sufficient time to obtain the court order. In terms of litigation, individual liability and damages, an error on the side of removal is risky, while an error on the other side is safe. See DeShaney vy. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 201-02, 109 S. Ct. 998, 1006-07 (1989) (no § 1983 liability for state defendants’ failure to remove child from abusive Situation). The incentive will be to allow some number of children—their constitutional rights pre- served—to return home to a predatory adult.‘ York’s statute governing “preliminary” removal orders. See Majority Opin- ton at.7021-7022 & n.6 (citing N.Y. Fam. Ct. Act $ 1022). Although such A52 B. Physical Examination of Sarah The majority is on stronger precedential] ground in sections 1.B. and III.B., which address the physical €xXamination of fracture was diagnosed. See id. at 864. Suspicious that the baby-sitter had caused the injury, the parents agreed with hospital personne] that the case should be reported to the State’s child abuse “hot line.” See id. at 864-65. When the child was about to be discharged, the assigned case worker asked the attending physician to perform “long- bone x-rays.” Jd. at 865. The doctor demurred because of the an voing at be obtained ex parte, the officer seeking it must make a noUce showing, ie., either that “the parent or other person legally responsible” ep tid is “absent” or thatthe parent refused to consent to me hein, temporary removal. See N.Y. Fam. Ct. Act § 1022(a); see also id § 1023; (finding § 1022 order i y defective” and therefore 2 “nullity” when child protection workers “failed to ask [parents] to consent to a tem- porary removal of the child”). is in objective danger of harm. Cf. Robison, $21 F.2d at 923 (“Federal Of proweienal standards rather than state statutes define the requirement, of procedural due Process.”). A53 radiation risk, and so advised the case worker. See id. The case worker prevailed on the doctor, however, insisting that she needed “to know if there were other fractures that had gone undetected and had healed.” Jd. In a fact-specific opinion, the van Emrik court emphasized that the x-rays in that case “were not medically indicated” and that the doctor had initially opposed them. Id. at 867. “The x-rays were not sought to facilitate diagnosis or treat- ment. . . . but to provide investigative assistance to the caseworker.” Jd. The court concluded that parents’ liberty interest in the “care, custody, and management of their child” was especially “significant” when an examination “serve[s] primarily an investigative function.” Jd. In such cases, the Court held, it is improper to perform the examination with- © out a judicial finding of justification and reasonableness. The district court here found that “the gynecological exam- ination of Sarah—like the examination of the child in van Emrik—was not conducted ‘to provide medical treatment to the child, but to provide investigative assistance to the case- worker.’ ” Tenenbaum v. Williams, 907 F. Supp. 606, 618 (E.D.N.Y. 1995) (quoting van Emrik, 911 F.2d at 867). The sole evidence on this point is the testimony of defendant Nat Williams to the effect that Sarah was examined to detect sex- ual abuse. The district court construed this testimony (which is set out in the margin‘) as a concession that the examination 5 * “[Mily decision was that [Sarah] should be removed from the school and taken to Coney Island Hospital, specifically to be examined to rule out sexual abuse.” . © [¥]Jou removed or had Sarah removed because you wanted to have a medical examination done to determine whether or not she had been sexually abused; is that correct? A: That is correct-” a “| was doing [the exam] to determine whether or not the child had been sexually abused.” A54 was “purely investigatory,” as van Emrik used that term. The district court thus read the word “investigatory” as a term of art suggesting (to lawyers) a police or criminal investigation. However, the district court (as well as the majority opinion) fail to appreciate that medical diagnostics is also “investi- gatory”—in the sense that the physician investigates whether | the patient would benefit from treatment. In van Emrick, there was no question that the examination was conducted exclusively to further the forensic investiga- tion: the case worker was seeking evidence of healed frac- tures, and the procedure was medically harmful (in the doctor’s view). The holding of van Emrik therefore extends no further than instances in which medical justification is lacking. The case should not be read to bar physical exami- nations that serve a medical purpose, even if a law enforce- ment purpose is served as well. No doubt, the physical examination of Sarah Tenenbaum had its forensic uses. But it was also investigatory in the additional sense that signs of sexual abuse would have served important diagnostic purposes: a five-year-old girl who has been sexually abused by an adult male (a) may need imme- diate medical care; and (b) may need to be kept out of an environment in which she would be exposed to further med- ical and psychological injury. These cases being necessarily quite fact-specific I believe that, notwithstanding the holding in this case, the door stands open for the City to prove in other cases, or after adoption of new guidelines, that the investigatory purpose of the Jenen- baum-style examination is chiefly diagnostic, and designed to ascertain whether the child is in need of medical treatment and protection from further injury. The majority notes that “if Sarah had ever been in immi- nent danger,” she was no longer in danger while in the cus- A55 tody of the child welfare workers. They therefore had time to seek judicial] authorization for the examination. See Major- ity Opinion at 7038-7039, 7051. Of course, in another portion of the opinion (in which I concur), we affirm dismissal of the plaintiffs’ substantive due process claim on the ground that the “temporary separation” of Sarah and her parents “was not severe enough” to constitute a violation of substantive due process. See Majority Opinion at 7042. These two rulings will creete a dilemma for the child welfare worker who has removed a child and sees a need for a medical examination. She might await judicial authorization, which may require overnight detention, with concomitant delays sufficient to support a substantive due process claim. Or she might go ahead with the examination, in order to return the child home as soon as possible, and run the risk of procedural due pro- cess and Fourth Amendment liability. + *x * The influence of this opinion is potentially far-reaching. © The Court creates a new procedural requirement that burdens, punishes, and thereby marginally inhibits decisive action to protect children from people in their households. A56 720—10-18-99 + USCA—80004 FY90 RECORD PRESS, INC., 157 Chambers St., N.Y. 10007 (212) 619-4949 Marc TENENBAUM and Mary Tenenbaum, individually -and on behalf of Sarah Tenenbaum, an infant, Plaintiffs, V. Nat WILLIAMS, individually and as caseworker, Child Welfare Administration, Veronica James, individually and as caseworker, Child Welfare Administration, Doby Flowers, individually, Marva Livingston Hammons,’ as Commissioner of Social Services of the City of New York, Brooke Trent, individually, Claude Meyers,* as Deputy Commissioner of Social Services of the City of New York, City of New York, and New York City Board of Education, Defendants. No. 91-CV-0037 (DRH) United States District Court, E.D. New York, Hauppauge Division. 862 F. Supp. 962; 1994 U.S. Dist. LEXIS 14320 Sept. 30, 1994 Lansner & Kubitschek by Carolyn A. Kubitschek and David J. Lansner, New York City, for Plaintiffs. * Defendants Hammons and Meyers have replaced defendants Flowers and Trent as Commissioner and Deputy Commissioner of Social Services of the City of New York. Accordingly, while Flowers and Trent remain defendants in their individual capacities, Hammons and Meyers are, hereby, substituted as defendants with respect to plaintiffs’ claims against Flowers and Trent in their official capacities. Fed. R. Civ. P. 25(d(1). See Hafer v. Melo, 502 U.S. 21 (1991). -A57- —————————————eeeeeeeeeeeoereeeee oe Paul A. Crotty, New York City Corporation Counsel by Bruce Rosenbaum, New York City, for Defendants. MEMORANDUM AND ORDER HURLEY, District Judge Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56(b); plaintiffs cross- move for partial summary judgment pursuant to Federal Rule of Civil Procedure 56(a). ; Defendants’ motion is denied in part and granted in part, plaintiffs’ cross-motion is denied. BACKGROUND In September 1989, plaintiffs Marc and Mary Tenenbaum - ("the Tenenbaums") enrolled their daughter Sarah in kindergarten at P.S. 230 in Brooklyn. Sarah suffers from "elective mutism," meaning that she does not speak to people outside of her home. At P.S. 230, Sarah often fell asleep and on occasion would cry in the morning in class, according to her teacher, Mary Murphy. (Murphy Dep. at 17-18.) At first, Sarah did not speak to Murphy. Over time, however, Sarah grew comfortable with her, and would show Murphy pictures and speak one- or two-word sentences to her. (Murphy Dep. at 21.) On January 4, 1990 and January 5, 1990, defendants allege that Sarah communicated to Murphy in words and gestures that her father sexually abused her. On one occasion when Sarah began crying, Murphy asked her if anyone was hurting her and identified a series of people in -A58- her life to which she "shook her head no." However, when her father's name was mentioned in the litany of individuals, Sarah's eyes filled "up in tears and she shook her head, yes, and she started to really cry." (Murphy Dep. at 23.) Sarah is said to have pointed to the groin area of one of the dolls in the play area of her classroom when asked by Murphy where her father hurt her. (Murphy Dep. at 24-26.) Defendants also allege, inter alia, that Sarah drew a picture of two figures and said to Murphy that one of the figures was her father and that he "kneeled" and "hurt" her, and that she was the other figure, and then she stopped talking. (Murphy Dep. at 27.) As required by Sections 413 and 415 of the New York Social Services Law, Murphy reported what Sarah had done and said to her superiors at P.S. 230. An official at the school, Susan Raiten, in turn reported the matter to the New York State Department of Social Services' ("the State DSS's") Central Register of Child Abuse and Maltreatment by telephone in the morning of Friday, January 5, 1990. (Raiten Dep. at 13.) An operator at the State DSS recorded the call on a DSS Form 2221 ("2221 Report"). The 2221 Report stated, "Sarah is speech and language delayed. Sarah is unable to stay awake during the day. Ch[ild] often naps off and on all day. Ch[ild] is nervous and withdrawn. Ch{ild] is afraid of fa[ther]. Fa[ther] hurts her vaginal area at night." As required by state law, the State DSS forwarded the 2221 Report to defendant Nat Williams, a supervisor in the child protective unit of the New York City Child Welfare Administration ("the CWA") Brooklyn field office. Williams received the report on the day it was made, Friday, January 5, 1990, and on the same day assigned the case to defendant Veronica James, a _newly-hired caseworker under his supervision. (Williams Dep. at 37.) -A59- Williams instructed James to contact Murphy to verify the allegations contained in the 2221 Report. He also told James to visit the Tenenbaums’ home. James attempted to contact Murphy later on Friday, but she had already left for the day. James then visited the Tenenbaum home with a co- worker named Thomas O'Connell. When the caseworkers arrived at the Tenenbaum home on Friday evening, they told the Tenenbaums that they were there to investigate a report that Sarah had been absent from school and was developmentally delayed. (James Dep. at 11.) They did not inform the Tenenbaums of their suspicion of sexual abuse. (Mary Tenenbaum Decl. at § 13.) James and O'Connell interviewed the Tenenbaums at length (Mary Tenenbaum Decl. at { 15), and the Tenenbaums informed the caseworkers that Sarah was being treated at Maimonides Hospital for her speech and developmental problems. The Tenenbaums gave James the names of the pediatricians caring for Sarah and her younger brother, Aaron, and signed releases for their medical records. (James Dep. at 16.) They also informed the caseworkers that they had an ongoing dispute with officials at P.S. 230 over plans for Sarah's education, and believed that the report of Sarah's absence and developmental problems was made to retaliate for their refusal to go along with the school's plans. (/d. at 11; Mary Tenenbaum Decl. at §P 14.) The Tenenbaums partially undressed their children so that James and O'Connell could inspect them for any bruises or marks on their chests, backs or extremities. The caseworkers found no signs of maltreatment or abuse. (James Dep. at 14-15; O'Connell Dep. at 18.) No effort was made to inspect either child's genital area. -A60- No further action on the Tenenbaum case was taken over the weekend. On Monday, January 8, 1990, James visited P.S. 230 to interview Murphy and Sarah. Murphy related the evidence of abuse she had gathered from Sarah on January 4, 1990 and January 5, 1990. When Murphy, with James present, asked Sarah whether her father touched her near her vagina and hurt her, however, Sarah shook her head "no." (James Dep. at 22-25.) In fact, she responded to all of the questions asked of her that day by Murphy by shaking her head "no," including the question "[d]oes your mother bathe you." Jd. Murphy also reported to James that a gym teacher had noticed a red mark on Sarah's thigh several weeks earlier. (Murphy Dep. at 36.) The Tenenbaums allege that the gym teacher could have seen the mark only by undressing Sarah because she always wore opaque tights to school: (Mary Tenenbaum Decl. at 4 21.) After leaving the school, James reported what she had learned to Williams. He instructed her to go to P.S. 230, to effect an emergency removal of Sarah pursuant to Social Services Law § 417 and Family Court Act § 1024, and to take her to Coney Island Hospital to be examined by doctors for possible sexual abuse. (James Dep. at 28.) James and Williams made no effort to seek judicial authorization prior to removing Sarah, although Williams testified that a court order can be obtained within one day. (Williams Dep. at 128.) In the afternoon of Tuesday, January 9, 1990, James visited P.S. 230 and gave the school officials a form which indicated that she was taking Sarah into protective custody in accordance with state law. (Oberferst Dep. at 39.) James then took Sarah to Coney Island Hospital. -A61- At the hospital, a pediatrician and a gynecologist conducted an examination of Sarah. The doctors found no evidence of sexual abuse. While James and Sarah were at Coney Island Hospital, Williams contacted Mary Tenenbaum by phone to advise her that the CWA had removed her daughter from school. Mary Tenenbaum contacted her husbarjd and went to meet with Williams at his office. Marc Tenenbaum arrived later. The Tenenbaums assert that Williams spoke very rudely to them. He allegedly warned them that they would not get Sarah back, that Mary Tenenbaum was an unfit mother, and that Marc Tenenbaum was a sex abuser. (Mary Tenenbaum Decl. at {4 28-29.) At the conclusion of Sarah's examination at Coney Island Hospital, James took her to the CWA's Brooklyn field office, where Sarah met her parents at about 7:30 to 8:30 p.m. (Mary Tenenbaum Decl. at { 32.) Later that evening, Williams told the Tenenbaums that the CWA would not file charges and that they could take Sarah home because the medical examination did not find evidence that the child had been sexually abused. (Mary Tenenbaum Dep. at 241.) Ultimately, Williams marked the case "unfounded," (Williams Dep. at 100), and no attempt to remove Saran from the Tenenbaum home was made. DISCUSSION I. Standard for Summary Judgment A party should be granted summary judgment only when its moving papers show that "there is no genuine issue as to -A62- any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of establishing the absence of relevant facts in dispute, and the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). In addition, "not only must there be no genuine issue as to evidentiary facts, but there must also be no controversy regarding the inferences to be drawn from them." Jd. Plaintiffs correctly argue that a court generally should not render summary judgment prior to the completion of discovery. Fed. R. Civ. P. 56(f); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980). By order, dated November 1, 1991, Hon. Carol Bagley Amon of this Court issued an order "staying discovery as to Monell claims against the City of New York and the New York Board of Education" until completion of the non- Monell discovery, at which time permission could be sought to lift the discovery stay as to the remaining claims. As a result, the defendants Flowers, Trent, Hammons, Meyers, and the City of New York have not been deposed or otherwise subject to discovery. Therefore, as to those defendants, the issue of summary judgment will be held in abeyance pending the completion of discovery, unless plaintiffs’ claims against one or more of them are clearly npe for summary judgment now and Monell-type discovery could not affect the ultimate outcome. II. Elements of Claims Under Section 1983 The Tenenbaums seek damages pursuant to 42 U.S.C. § 1983. To recover, they must show (1) "that some person has deprived [them] of a federal right" and (2) "that the person who has deprived [them] of that right acted under -A63- color of state or territorial law." Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980). To recover against employees of the City of New York in their individual capacities, plaintiffs must also be prepared to resist the asserted affirmative defenses of qualified immunity. Jd. Qualified Immunity The individual defendants James, Williams, Flowers and- Trent will be entitled to immunity if they can show that (1) "it was not clear at the time of the official acts that the interest asserted by the plaintiff was protected by a federal statute or the Constitution," or (2) "it was not clear at the time of the acts at issue that an exception did not permit those acts," or (3) "even if the contours of the plaintiffs’ federal rights and the official's permissible actions were clearly delineated at the time of the acts complained of, the defendant[s} may [still] enjoy qualified immunity if it was objectively reasonable tor [them] to believe that [their] acts did not violate those nights." Robison v. Via, 821 F.2d 913, 920-21 (2d Cir. 1987). As to this third prong, courts have explained that a defendant is entitled to summary judgment if the defendant "'adduce[s] sufficient facts [such] that no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiffs, could conclude that it was objectively unreasonable for the defendant []' to believe that he was acting in a fashion that did not clearly violate an established federally protected right." 821 F.2d at 921 (quoting Halperin v. Kissinger, 807 F.2d 180, 189 (D.C. Cir. 1986)). Supervisor Liability Plaintiffs assert individual claims against Doby Flowers and Brooke Trent, the former Commissioner and former -A64- Deputy Commissioner, respectively, of the Department of Social Services of the City of New York. As individuals, Flowers and Trent can be liable only if they were personally responsible for violations of plaintiffs’ rights, by, inter alia, promulgating unconstitutional policies or plans, or otherwise authorizing or approving the challenged misconduct. See Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 371, 46 L. Ed. 2d 561 (1976) (superior can be liable for constitutional violation resulting from policy or order); Duchesne v. Sugarman, 566 F.2d 817, 831 (2d Cir. 1977) (superiors could be liable for policy-making); Meriwether v. Coughlin, 879 F.2d 1037, 1048—(2d Cir. 1989) (supervisor liable when he or she has actual or constructive notice of an unconstituticnal practice and demonstrates “gross negligence or deliberate indifference" by failing to act). Municipal Liability Plaintiffs also assert claims against the City of New York, Marva Livingston Hammons and Claude Meyers’ in their official capacities, as the Commissioner, and Deputy Commissioner of New City Social Services respectively, and against the New York City Board of Education. The claims against Hammons and Meyers, as well as the claims against James and Williams in their official capacities as caseworkers, are the equivalent of claims against New York City. Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 361- 62, 116 L. Ed. 2d 301 (1991). The Tenenbaums could recover against New York City or the Board of Education based on their authorization of unconstitutional acts, approval of unconstitutional customs, or failure to train. See ' As noted previously, Hammons and Meyers replaced Flowers and Trent as Commissioner and Deputy Commissioner of Social Services. of the City of New York after the present action was commenced. - -A65- Monell v. Department of Social Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) (city can be liable for unconstitutional policy promulgated by its officers); City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. —~ Ed. 2d 412 (1989) (complaint asserting failure to train as a result of deliberate indifference to constitutional nights states a claim for relief). While the city and its agencies cannot be held liable based on respondeat superior, Monell, 436 U.S. at 694 n.58, they are not permitted to assert the defense of qualified immunity that is available to the individual defendants. Smith v. Wade, 461 U.S. 30, 32-33, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983). III. Due Process Claims A. Substantive Due Process The Tenenbaums first argue that defendants’ removal of their daughter from school to be examined for abuse violated their Fourteenth Amendment right to substantive due process. Plaintiffs’ substantive due process claim derives from "the right of the family to remain together without the coercive interference of the awesome power of the state." Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977). This right is fundamental. Joyner v. Dumpson, 712 F.2d 770, 778 (2d Cir. 1983). Although fundamental, a constitutional violation of the right to family integrity occurs only if defendants’ actions "significantly interfere" with plaintiffs’ family integrity. Zablocki v. Redhail, 434 U.S. 374, 386, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1978). For example, in Joyner, the Second Circuit found that a statute which required that parents wishing to obtain state-subsidized residential care for their -A66- children temporarily transfer custody to the state did not significantly interfere with the parents' right to family integrity. 712 F.2d at 778. Similarly, in Fitzgerald v. Williams, 787 F.2d 403, 408 (8th Cir. 1986), the Eighth Circuit held that no substantive due process violation occurred where caseworkers had arranged for a psychologist to examine a child who was allegedly abused. See also Doe "A" v. Special School Dist.; 637 F. Supp. 1138, 1146 (E.D. Mo. 1986) (detention by bus driver for several hours did not infringe right to family integrity). As in Joyner, Fitzgerald and Doe "A", defendants’ deprivation of the Tenenbaums of their child for a single afternoon for a medical examination did not significantly infringe their fundamental right to live together without interference from the state. All” defendants are therefore entitled to summary judgment on this claim. B. Procedural Due Process 1. Removai of the Child from School The Tenenbaums also allege that defendants deprived them of their right to procedural due process. In Robison v. Via, the Second Circuit held that it [is] clearly established that a parent's interest in the custody of his or her children [is] a constitutionally protected "liberty" of which he or she [can] not be deprived without due process, which [] generally require[s] a predeprivation hearing. However, it [is] equally well established that officials may temporarily -A67- deprive a parent of custody in “emergency” circumstances "without parental consent or a prior court order.” 821 F.2d 913, 921 (2d Cir. 1987) (emphasis in original) (citations omitted). In the present case, James and Williams relied on Section 1024 of the New York Family Court Act in removing Sarah from school on January 9, 1990. That Section provides that a child may be removed, absent parental consent or a court order, if there is "reasonable cause to believe that the child is in such circumstances or condition that his continuing in said ga of residence or in the care and custody of the parent . . . presents an imminent danger to the child's life or health," “and there is insufficient time to obtain prior judicial authorization for the removal pursuant to Section 1022 of the Family Court Act. Plaintiffs claim defendants violated state law in removing Sarah. Given the chronology in this case, it may be that James and Williams had sufficient time to obtain a Section 1022 court order. Such an order, according to Williams, could have been obtained within one day. (Williams Dep. at 128.) However, whether the procedure embodied in Sections 1022, or 1024, or another Section of the Family Court Act should have been followed by CWA has little, if any, bearing on the issue before the court. As noted by now Chief Judge Newman, writing for the Second Circuit in Doe v. Connecticut Dep't of Children and Youth Servs.: 2 Section 1022 provides that a family court judge may issue an order directing the temporary removal of a child from his or her home, before a child abuse or neglect petition is filed, upon a finding that an emergency exists. -A68- Appellants challenge Judge Dorsey's conclusion . . . [in granting summary judgment to defendants, upon the ground] that factual issues remain as to whether the defendants fully complied with the requirements of state law. Even if true, the claim is irrelevant. The question is whether 'no reasonable jury, looking at the evidence most favorable to, the plaintiffs could conclude that it was objectively unreasonable for the defendant[s]' to believe that [they were] acting in a fashion that did not clearly violate an established federally protected right. 911 F.2d 868, 869 (2d Cir. 1990) (emphasis in original). The pivotal question, then, is whether Sarah's removal was justified as an appropriate response to a legitimately perceived emergency. If so, neither parental consent nor prior judicial approval was required. The meaning of the word "emergency" in the present context is explained in Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir. 1991) thusly: the child is immediately threatened with harm, . . . for example . . . where there is evidence of serious ongoing abuse and the officials have reason to fear imminent recurrence.... A juxtapositioning of the Hurlman standard with the specific information that. Sarah communicated to her teacher, and which the teacher reiterated to James, indicates that an emergency existed, even if the child's claimed recantation before James is taken into account. A CWA worker, in possession of the above information, would have reasonable cause to conclude that Sarah had been a victim of sexual abuse by her father, and that returning the child to her home would place her at imminent risk for further abuse. See, e.g., Cecere v. City of New York, 967 F.2d 826, -A69- 830 (2d Cir. 1992) ("temporary assertions of custodial authority in the face of a reasonably perceived emergency do not violate due process"); Doe v. Connecticut Dep't of Children and Youth Servs., 911 F.2d 868 (2d Cir. 1990); Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir. 1983) ("when a child's safety is threatened, that is justification enough for action first and hearing afterwards"); Chayo v. Kaladjian, 844 F. Supp. 163, 171 (S.D.N.Y. 1994) ("The Caseworkers had sufficient reason to believe that the Chayo children might be in imminent danger. The steps they took (i.e. temporary removal of children from parents' home for medical examination without court order or parental consent] in light of the information available to them and the risk of danger to the Chayo children were reasonable. Consequently, the plaintiffs were not deprived of due process by this temporary removal.") It should be noted that the substance of what the child communicated to Murphy, and what Murphy, in turn, told James is essentially uncontroverted, viz. that Sarah's father hurt her through contact with her vaginal area at night. Being unable to factually call into question the substance of the message, plaintiffs seek to create a factual issue via an assault on the messenger: Mary Murphy, the source of the charge that plaintiff Marc Tenenbaum harmed his daughter, was not a reliable informant who had provided valuable or accurate information to the defendants in the past. See, e.g., Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), U.S. v. Pea [Pena], 961 F.2d 333, 338, note 2 (2d Cir. 1992). Instead, Murphy was a novice school teacher, who had never before been involved in a child abuse investigation, and who had no prior contact whatsoever with the defendants or any other employees of the Child Welfare Administration. -A70- (Pls.' Apr. 23, 1993 Mem. in Opp. at 23.) Plaintiffs cite only criminal cases in support of their argument that if CWA _ workers "possess only uncorroborated information from an informant of untested reliability, they do not have probable cause... . ." (Pls.' June 1, 1993 Reply Mem. at 7.) The present case, of course, is civil. The person speaking to James is a non-anonymous public school teacher, charged with a statutorily-created responsibility to report suspected incidents of child abuse. She would have no reason to fabricate, or otherwise color the nature of her communications with Sarah.? And James would have no reason to reject the information provided by Murphy simply because she had no prior contact with CWA and, therefore, could not be labelled as a "reliable informant" as that term is used in the field of criminal law. If that were a precondition to a finding of probable cause in a child abuse case, CWA would be unable to effect an emergency removal even if, for example, a teacher saw a parent commit a particularly heinous sexual act upon his or her child as they entered their home absent some type of independent proof confirming the accuracy of the teacher's report, unless that teacher had prior, and positive, contacts with CWA. No authority has been advanced for the proposition that such a stringent standard is an essential component to a finding of probable cause in a child abuse case, and the court rejects the argument that it is. > No evidence has been elicited to even remotely lend credence to plaintiffs’ claim that Murphy fabricated the entire scenario "because of . . . past disagreements with plaintiffs." (See Compl. at J 21.) -A71- DAES ae oC One further argument raised by the plaintiffs warrants comment, that being whether the defendants’ conduct in not removing the child until January 9th belies the existence of a claimed emergency. To place this argument in context, a brief reiteration of certain facts is necessary. Based on _ Sarah's communications to Murphy, a report was made to the State Central Register on the morning of Friday, January Sth. The report was, in turn, faxed that same day to the CWA Brooklyn Field Office. Williams assigned the case to James and told her to contact the source of the information in an effort to verify its accuracy. James was unsuccessful in her efforts to reach Murphy on Friday afternoon, but did establish contact on Monday, January 8th. At that time, Murphy told James of the information she had received from Sarah. That information was relayed from James to Williams who instructed her to remove the child from school and have her medically examined, which was done on Tuesday, January 9, 1990. The delay in this case appears to be reasonable. The three day hiatus between receipt of the report and the call for removal was occasioned by, inter alia, CWA's decision not to act until Murphy, as the source of the report, was personally interviewed. But assuming, arguendo, that there was no reason to wait three days before acting, does this delay invalidate the claim of emergency? The holding in Doe v. Connecticut Dep't of Child and Youth Servs. compels a negative answer to that question, as evidenced by the following excerpt: Nor does the fact that the defendant waited three days from receipt of the psychologist's report before invoking their authority under the state statute preclude the availability of qualified immunity. The suit sought -A72- damages for the removal of the child, not the delay in taking such action. The removal remained objectively reasonable when it was undertaken. 911 F.2d at 870 (emphasis added). In sum, the court finds, as a matter of law, that the information provided by Murphy to James established reasonable grounds for the emergency removal of Sarah. Accordingly, none of the defendants violated a due process night of any of the plaintiffs. That being the case, James and Williams, as well as all of the other defendants are entitled to summary judgment on this, the first prong of the plaintiffs’ procedural due process claim. Before proceeding to the question of whether plaintiffs’ procedural due process rights were compromised by the manner in which Sarah was subjected to a medical examination, qualified immunity -- as an alternate ground for granting summary judgment to James, Williams, Flowers and Trent will be discussed. Even if, arguendo, a material issue of fact were to be gleaned from the materials before the court, thereby precluding an award of summary judgment to all defendants vis-a-vis Sarah's removal, the caseworkers, together with Flowers and Trent would still be entitled to such relief under the doctrine of qualified immunity. To partially reiterate, qualified immunity is available to defendant if his or her conduct, inter alia, was objectively reasonable or if "officers of reasonable competence could disagree on whether the probable cause_test was met." Robison, 821 F.2d at 921. Measured against the second part of that standard, which recognizes the "Hobson's choice" often confronting those involved in the investigation of child abuse charges, van Emrik v. Chemung County Dep't -A73- of Social Servs., 911 F.2d 863, 866 (2d Cir. 1990), James, Williams, Flowers and Trent may not legitimately be called upon to answer in damages for the events of January 1990. A juxtapositioning of the previously explained activities of James and Williams against the doctrine of qualified immunity compels that conclusion." 2. Interference with Right to Choose Medical Treatment The Tenenbaums also assert that defendants unconstitutionally interfered with their parental nights by having a pediatrician and gynecologist at Coney Island Hospital examine Sarah. Given the highly intrusive nature of this particular examination, which was solely for investigative purposes, the Court agrees. Although Sarah's removal was based on probable cause to believe that an emergency existed, that circumstance ceased upon her custody being temporarily vested in CWA. She was then no longer in what was perceived to be harm's - way. Thereafter, procedural due process required notice to the parents and judicial authorization before Sarah could be subjected to an inspection of her vagina and surrounding area. See van Emrik v. Chemung County Dep't of Social Servs., 911 F.2d 863, 867 (2d Cir. 1990) ("we believe the Constitution assures parents that, in the absence of parental consent, x-rays of their child may not be undertaken for investigative purposes at the behest of state officials unless * Although discovery of Flowers and Trent has not commenced, it is clear -- as explained above -- that their activities vis-a-vis Sarah's removal, if any, are not actionable due to the defense of qualified immunity. If they are deposed, the purpose will be to elicit information bearing upon the question of liability of the City of New York with respect to the medical examination of Sarah. -A74- a judicial officer has determined, upon notice to the parents and an opportunity to be heard, that grounds for such an examination exist and that the administration of the procedure is reasonable under all the circumstances"); cf. Chayo v. Kaladjian, 844 F. Supp. at 169 ("The instant case [Chayo] is distinguishable . . . [from van Emrik] because the x-ray examinations [of the Chayo child] were ordered not by the caseworkers but by Doctor Ibrahm Ahmed, a pediatric resident at St. Vincent's Hospital, and for medical rather than investigative purposes.").° Defendants argue that van Enmrik is "factually distinguishable from the case at bar and is, therefore, inapplicable to this case." (Defs.' Mar. 5, 1993 Mem. at 19- 20.) Granted, the medical examination of Sarah did not involve any physical risk, unlike the long-bone X-rays in van Emrik which did entail some possible risk of physical harm. But that fact does not render the rationale and holding of van Emrik irrelevant for present purposes. Here, as in van Emrik, time -- following the emergency removal - - permitted parental and judicial involvement prior to the medical examination being conducted. Harm to a child cannot legitimately be defined to exclude significant, and objectively reasonable emotional trauma. As noted in Doe v. Renfrow, "[i]t does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human dignity." 631 F.2d 91, 92-93 (7th Cir. 1980) (emphasis added), cert. denied, 451 U.S. 1022, 101 S. Ct. 3015, 69 L. Ed. 2d 395 (1981); see generally Shatz, * Note that Sarah's case, unlike that of the child in Chayo, is factually akin to van Emrik in that a caseworker directed that a medical examination be conducted, which was done solely for investigative purposes. -A75- Donovan & Hong, The Strip Search of Children and the Fourth Amendment, 26 U.S.F. L. Rev. 1, 11-14 (1991) (a strip search, for a child, is "akin to sexual abuse."). Sarah was subjected to intrusive bodily examinations by two strangers, in a strange location, in the absence of a parent or other reassuring figure. While the child in van Emrik faced the possibility of physical injury, Sarah, almost certainly, did, in fact, experience psychological injury on January 9, 1990. Defendants maintain that the expedited procedure employed by CWA on that date actually benefited plaintiffs by abbreviating the interval between Sarah's removal and return to her family. (Defs.' Mar. 5, 1993 Mem. at 20-21.) This argument trivializes the constitutional implications of the State subjecting a person to an investigatory, intrusive medical examination without notice, and an opportunity to be heard, within the context of a judicial proceeding. In sum, plaintiffs have established, as a matter of law, that their procedural due process nights were violated by the manner in which Sarah was subjected to a medical examination on January 9, 1990. However, in van Emrik, the Second Circuit found the individual defendants immune because the law was not settled at the time the events in that case occurred. The events at issue in the present case also occurred when the law establishing this mght was not settled, prior to the Second Circuit's decision in van Emrik. The individual defendants here, as in van Emrik, are therefore immune from suit. Accordingly, Williams, James, Flowers and Trent are entitled to summary judgment on this claim. The City of New York, however, not having the benefit of the qualified immunity defense, may still be liable to the Tenenbaums under the principles of municipal liability previously discussed. -A76- IV. Fourth Amendment Claims A. Seizure of the Child from School The Tenenbaums also allege that defendants' removal of Sarah from school violated her Fourth Amendment night to be free from unreasonable seizures because defendants lacked probable cause to believe she had been abused. While at least one court has questioned whether taking custody of a minor is violative of the child's liberty interest (on the theory that custody is merely transferred from the parent to the state), see Lossman v. Pekarske, 707 F.2d 288 (7th Cir. 1983), the sounder view, and apparently the law in this Circuit, is that the state's assumption of custody is a seizure under the Fourth Amendment. See van Emrik, 911 F.2d at 867 ("That interest [viz. the parents' decision- making role concerning medical procedures for child] assumes special significance when the procedures undertaken at the initiative of a state official serve primarily an investigative function; in such circumstances, Fourth Amendment and bodily integrity interests of the child are implicated, interests the parents are entitled to assert on the child's behalf.") (citations omitted); cf. Glass v. Mayas, 984 F.2d 55, 58 (2d Cir. 1993) ("Although confinement of the mentally ill by state action is generally analyzed under the due process clause of the fourteenth amendment, we analyze the distinct right to be free from an unreasonable government seizure of the person for whatever purpose") (quoting Maag v. Wessler, 960 F.2d 773 (9th Cir. 1991)). The seizure of Sarah, then, implicates her Fourth Amendment rights. The same may not be said of her parents to the extent that they have sued individually, as well as on Sarah's behalf. -A77- Neither Marc nor Mary Tenenbaum has been the subject of a search or a seizure. See Donald v. Polk County, 836 F.2d 376 (7th Cir. 1988) (the "removed" child, her parents and her siblings sued the Polk County Department of Social Services under 42 U.S.C. § 1983, claiming, inter alia, a violation of their Fourth Amendment rights; court held that "none of the plaintiffs in this case have [sic] been the object of a search and seizure, with possible exception of. . . [the child]," thereby impliedly rejecting the notions that a parent suffers derivative harm, and that a child constitutes an "effect," for Fourth Amendment purposes.). Moreover, the Court is not aware -- based on its own research and the submissions of counsel -- of any federal decision which has held that a parent may legitimately assert an individual, as distinct from representative, Fourth Amendment claim based upon the seizure of a child. A parent's protection under such circumstances is to be found elsewhere in the Constitution, often in the due process clause of the Fourteenth Amendment. That is the situation with respect to Marc and Mary Tenenbaum. Given that defendants’ conduct falls within the ambit of the Fourth Amendment as to Sarah, this court must consider what standard to apply in judging the constitutionality of the seizure. The Supreme Court has not had occasion to answer the question of whether probable cause, or some lesser standard, governs the removal of children in cases of suspected abuse or neglect, and the Second Circuit has written little on the subject.° ° What guidance there is from the Second Circuit, however, seems to indicate that "probable cause" is the standard. van Emrik, 911 F.2d at 867; Doe v. Connecticut Dep't of Children and Youth Servs., 712 F. Supp. 277, 284 (D. Conn. 1989) ("The emergency removal of John Doe requires ‘probable cause’ to believe that he was in immediate physical -A78- Searches and seizures effected by police for law enforcement purposes may occur only pursuant to a warrant’ supported by probable cause unless within "a few specifically established and well-delineated exceptions." Coolidge v. New Hampshire, 403 U.S. 443, 454-5, 91 S. Ct. 2022 5, 29 L. Ed. 2d 564 (1971) (citations omitted). Outside the realm of criminal law, however, the Supreme Court has approved searches and seizures on less than probable cause where the government has "'special needs, beyond the normal need for law enforcement." O'Connor v. Ortega, 480 U.S. 709, 720, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987) (quoting Blackmun, J., concurring in New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S. Ct. 733, 747, 83 L. Ed. 2d 720 (1985)). In such cases, searches and seizures remain subject to the general reasonableness requirement of the Fourth Amendment. 7.L.0., 469 U.S. at 341, 105 S.Ct at 742. The Supreme Court has used special needs to justify departure from the requirements of probable cause and a warrant when special needs "make the warrant and danger from his surroundings and that removal was necessary to insure his safety."), aff'd, 911 F.2d 868 (2nd Cir. 1990). : Throughout this decision, the word "warrant" and the term "judicial authorization" will be used interchangeably as synonyms, with the understanding that a judicial authorization in the present context, and thus a "warrant," might consist of, inter alia, an oral court order given over the telephone, followed by a confirmatory written order. Parenthetically, such a practice was often utilized -- with the telephone call being taped -- in the Family Court of Suffolk County for Section 1022 applications under the Family Court Act (see p. 970, n.2 supra) when the author of this opinion served in that court in the early- to mid- 1980s. -A79- probable-cause requirements impracticable." O'Connor, 480 U.S. at 720, 107 S. Ct. at 1499 (quoting Blackmun, J., concurring in 7.L.0., 469 U.S. at 351, 105 S. Ct. at 747 (emphasis added)). Alternatively, the Court has stated that it will dispense with a warrant and probable cause when they are "likely to frustrate the governmental purpose behind the search." O'Connor, 480 U.S. at 720, 107 S. Ct. at 1499 (quoting Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 533, 87 S. Ct. ~ 1727, 1733, 18 L. Ed. 930 (1967) (emphasis added)). In another case, the Court held that a warrant was not required where it would "interfere to an appreciable degree" with the government scheme. Griffin v. Wisconsin, 483 US. 868, 876, 878, 97 L. Ed. 2d 709, 107 S. Ct. 3164 (1987). ° * In each case where the Court has found special needs to justify lifting the warrant and probable cause requirements, it has analyzed separately the burdens imposed by each requirement. In T.L.O., the court approved searches of school children subject only to a requirement of reasonableness. The Court held that probable cause was not required based on the need to relieve teachers of the burden of learning "the niceties of probable cause,” 469 U.S. at 343, 105 S. Ct. at 743 and to allow them "freedom to maintain order." Id. at 341, 105 S. Ct. at 742. It held that the warrant requirement would “unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools." /d. at 340, 105 S. Ct. at 742. In O'Connor, the Court dispensed with the warrant requirement in the search of a government employee's office because "requiring an employer to obtain a warrant whenever the employer wished to enter an employee's office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome." 480 U.S. at 722, 107 S. Ct. at 1500. Probable cause was not required because it would cause "the work of [government] agencies [to] suffer." 480 U.S. at 723, 107 S. Ct. at 1500. In Griffin, the Court held that a probationer's home could be searched without probable cause or a warrant because those requirements would "make it more difficult for probation officials to respond quickly to -A80- Should a lesser standard than probable cause and a warrant be utilized in child abuse cases, due to special needs making the requirements "impracticable," or likely to "frustrate the governmental purpose" behind the search, or likely to "interfere to an appreciable degree" with the government goal involved? Before endeavoring to answer that question, it may be helpful to try and determine the likely impact of t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0658%3A2. Public record. Not legal advice.