Opposition Brief — Gresbachbach v. Michael Michael C. (No. 08-220)

- ~~ Supreme Court, U.S7~ |

FILED

Sep 222%

ee Dylan

_OFFICE OF THE CLERIC |

Nos084220

IN THE

Supreme Court of the United States

DANA GRESBACH,

Petitioner,

Vv.

MICHAEL C., CHERITA C., KIMBERLY W,,

ALEXIS C, and IAN W,

Respondents.

On PETITION FOR A Writ OF CERTIORARI TO THE

UNITED STATED Court OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF IN OPPOSITION

MICHAEL D. DEAN STEPHEN M. CRAMPTON

Micwakz D. Dean, LLC Counsel of Record

20975 Swenson Drive Mary E. McALISTER

Suite 125 LIBERTY COUNSEL

Waukesha, WI 53186 PO. Box 11108

(262) 798-8044 Lynchburg, VA 24506

(434) 592-7000

Attorneys for Respondents

218354 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

a

QUESTIONS PRESENTED

1. Whether a social worker conducting a child abuse

investigation based on information twelve days old was

correctly denied qualified immunity when she required

an eight year old boy and his nine year old step-sister

at a private school to remove items of clothing in order

to allow her to examine their bodies for marks, based

solely on permission to “interview” the children?

2. Whether government social workers conducting

child abuse investigations, which routinely involve a dual

purpose implicating both civil and criminal law, should

be excepted from traditional Fourth Amendment

standards, where such investigations regularly include

physical examinations infringing fundamental rights of

bodily privacy and of familial integrity?

3. Whether Gresbach waived her argument that the

special needs exception should apply to social workers

when she failed to raise it in the trial court?

4. Whether a social worker was properly denied

qualified immunity when she acted contrary to both

recent binding Seventh Circuit precedent and this

Court’s previous pronouncement in Florida v. Jimeno,

500 U.S. 251 (1991), by performing warrantless physical

examinations on minor children without consent,

probable cause, or exigent circumstances?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................ i

ES hs ee). yy. ii

TABLE OF CITED AUTHORITIES ......... V

STATEMENT OF THE CASE ............... 1

ia we inges as hv ae+ ean ea 1

ie COREG OF PROUD . jc ccc cee sees 3

Re IE wise csc c end aa panes 3

B OCONEE BHGRAUIOR «2. wc cccccesncss 4

3. The Interviews with the Children ... 6

REASONS FOR DENYING THE PETITION ... 7

I. THERE IS NO SPLIT IN THE

CIRCUITS BECAUSE THE “SPECIAL

NEEDS” EXCEPTION APPLIES

TO ABUSE INVESTIGATIONS IN

PUBLIC SCHOOLS, NOT PRIVATE

CP Clee Lob wish keene eeaS 8 7

A. “Consent” and “Exigent Circumstances”

are the Traditional Exceptions to the

Fourth Amendment’s Probable Cause-

Warrant Requirement. ............. 8

ill

Contents

B. The Reasonableness Standard is not

Applicable Outside the Narrow Class

of Cases Qualifying for the “Special

NOON TOPEION, sik v ccnp aiecines

II. THE CIRCUITS UNIFORMLY LIMIT

THE SPECIAL NEEDS-REASONABLE-

NESS ANALYSIS TO PUBLIC SCHOOL

SEARCHES AND APPLY BASIC WAR-

RANT EXCEPTIONS TO PRIVATE

SOHOGOL GEAMUEI. . ccc cccseccvess

A. The Circuits Uniformly Apply the

Warrant Requirement and Permitted

PIES kb be ea ele ddd ee Sees

The Circuits Uniformly Follow this

Court’s Limitation of the Special

Needs-Reasonableness Analysis to

Public School Searches. ...........

Gresbach Mischaracterizes Wojcik

en err

The Circuits Uniformly Follow Black

Letter Warrant Exceptions in

Analyzing Searches on Private School

PP is he eee ares

Page

10

13

18

iv

Contents

Page

Ill.THIS COURT HAS STRICTLY

LIMITED THE TL.O. “SPECIAL

NEEDS” EXCEPTION TO SEARCHES

ON PUBLIC SCHOOL PROPERTY,

AND THERE IS NO NEED TO

EXTEND IT TO PRIVATE SCHOOL

FTE eo Rts RANG Waandaad ess bs 20

A. There Is No Split Among the Circuits

Applying the Special Needs Exception

to Child Welfare Investigations. .... 20

B. Gresbach Failed to Raise this

PEC ONGE THI na vnc cca vesvness 22

C. Applying the Special Needs-

Reasonableness Analysis to All

Child Welfare Investigations Would

Swallow Both the General Warrant-

Probable Cause Rule and the

Consent and Exigent Circumstances

PEA. ce ache Goan a sh ecu hn 24

IV. THERE IS NO SPLIT IN THE CIR-

CUITS CONCERNING INVESTIGA-

TIONS ON PRIVATE PROPERTY, AND

EVEN IF THERE WERE, THE LAW

WAS CLEARLY SETTLED IN THE

2g toy Be) 25

SE oo Sas Soe ks eed en eeeaeues 28

TABLE OF CITED AUTHORITIES

Page

Cases:

Board of Educ. of Indep. Sch. Dist. No. 92 of

Pottawatomie County v. Earls, 586 U.S. 822

Sibi tas 5. Ges 9 bade Maula w ee Saleleals 21, 22

Brigham City, Utah v. Stuart, 547 U.S. 398

EE Déertadks-s cteebeccadohweweenaeumeuas 21

Burgess v. Lowery, 201 F3d 942 (7th Cir. 2000)... 26

Calabretta v. Floyd, 189 F.3d 808 (9th Cir.

SE Fs aang ew kee aaman kaka kaka wees 14

Camara v. Municipal Court, 387 U.S. 523

a eG a aka ak en 9, 10

Coolidge v. New Hampshire, 403 U.S. 443

EE ts be 5N Mu wUeda ee dnae ee we ere ees 13

Curtis v. Thompson, 840 F.2d 1291 (7th Cir.

SE Wicd dost oy tay ales wk Gane Wee eee 10

Danforth v. Minnesota, __ U.S. __, 128 S.. Ct.

ides ica een hs aoe ee kanal Ree 22

Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986) ... 15

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

vi

Cited Authorities

Page

Doe v. Louisiana, 2 F.3d 1412 (5th Cir. 1998),

cert. denied, 510 U.S. 1164 (1994) .......... 27

Dubbs v. Head Start, Inc., 386 F.8d 1194

a Ok ia gals ie wisia wack 14

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

NG Ste rar a ie an eS wank Goya's sree 12

Florida v. Jimeno, 500 U.S. 248 (1991) ........ i, 19

Gates v. Texas Dept. of Protective and

Regulatory Services, 5387 F.3d 404 (5th Cir.

REE PRISER URES PERG oh dirname cre rpm Purest AU 25

G.M. Leasing Corp. v. United States, 429 U.S.

I Se ns ae a ee ated wie 10

Good v. Dauphin County Social Services for

Children and Youth, 891 F.2d 1087 (3d Cir.

Se a ee ee eri Gale he ka wee he eats 7,13

Griffin v. Wisconsin, 483 U.S. 868 (1987) .. 9, 10, 24

Heartland Academy Community Church v.

Waddle, 317 FSupp.2d 984 (E.D. Mo. 2004) ...18, 19

Heartland Academy Community Church v.

Waddle, 427 F-3d 525 (8th Cir. 2005) ........ 19

vil

Cited Authorities

Page

Kia P. v. McIntyre, 235 F.3d 749 (2d Cir. 2000) ...21, 22

Kiser v. Garret, 67 F.3d 1166 (5th Cir. 1995) ... 27

Meyer v. Nebraska, 262 U.S. 390 (1923) ....... 10

Minnesota v. Dickerson, 508 U.S. 366 (1993) .. 9

New Jersey v. T.-L.O. 469 U.S. 325 (1985) .... passim

O'Connor v. Ortega, 480 U.S. 709 (1987) ....... 9

Pearson v. Callahan, No. 07-751 (U.S S.Ct. filed

Dec. 4, 2007, cert. granted, March 24, 2008) . 26

Pierce v. Society of Sisters, 268 U.S. 510 (1925)... 10

Roe v. Texas Dept. of Protective and Regulatory

Services, 299 F:3d 395 (5th Cir. 2002) ..18, 17, 24, 25

Saucier v. Katz, 583 U.S. 194 (2001) ......... 26, 27

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ... 9,19

Sosna v. Iowa, 419 U.S. 393 (1975) ........... 22

Tenenbaum v. Williams, 193 F8d 581 (2d Cir.

1999), cert. denied, 529 U.S. 1098 (2000) .... 13, 25

vili

Cited Authorities

Page

Tinker v. Des Moines Indep. Community Sch.

Diet, BS UB. BES CR co ein ee civdaseies 21

Vernonia School District 47] v. Acton, 515 U.S.

Oe NRE a bx he has sas ee ee passim

Wildauer v. Frederick County, 993 F.2d 369

CRG SO. his ice vac ce caeee nese ee 12, 15, 16

Williams v. Bitner, 455 F.3d 186 (3d Cir. 2006) ... 26

Wojcik v. Town of N. Smithfield, 76 F.3d 1

C7 Ce Fe a 08.6.0 bs wwe cane eee eae 12, 15, 16

Wyman v. James, 400 U.S. 309 (1971) ......... 24

Wyoming v. Houghton, 526 U.S. 295 (1999) .... = 21

United States Constitution:

POUCA . on civic leteecaunhanee passim

Statutes:

fo a Teer re ee 12

Wee, Ss PE dn tin dcp dards oksba eee 5

Wis. Stat. Ann. § 48.981(S)(D)S ..........0000- 12

ix

Cited Authorities

Se a Ro (2) ee 5

Wis. Stat. Ann. § 48.981(3)(c)5m .............. 12

Uy MRE HOINTL, OOO ve cece ccccercsevceess 12

Other Authorities:

Doriane Lambelet Coleman, Storming the Castle

to Save the Children: The Ironic Costs of a

Child Welfare Exception to the Fourth

Amendment, 47 Wm. & Mary L. Rev. 413

i ak ws hb 6.64 000 84-8 ee ee 2

Scott A. Gartner, Note, Strip Searches of

Students: What Johnny Really Learned at

School and How Local School Boards Can

Help Solve the Problem, 70S. Cal. L. Rev. 921

OEE SS rn eer Sn re 2

Jim Hopper, Ph.D., Cui_p ABuse: Statistics,

Research, and Resources, www.jimhopper.

I, OUD) ov ccceveccceccsecesvecece 1

l

STATEMENT OF THE CASE

A. Summary

Petitioner asserts that there is a “nationwide

epidemic” of child abuse and neglect necessitating this

Court’s attention to the application of Fourth

Amendment constitutional protections to social workers.

Pet. for Cert. at 2 (hereafter “Pet. _”). This assertion

is at best questionable. While it is certainly true that

reports of child abuse or neglect abound, resulting in

myriad investigations, it is by no means clear that actual

abuse or neglect has occurred in the majority of cases.

Moreover, the statistics in this field are notoriously

unreliable. See, e.g., Jim Hopper, Ph.D., CHILD ABUSE:

Statistics, Research, and Resources, www.jimhopper.

com (Sept. 2008) (“All statistics on the incidence and

prevalence of child abuse and neglect are disputed by

some experts.”).

The truth is that Child Protective Services (“CPS”)

frequently does more harm than good in its Rambo-style

modus operandi, treating law-abiding parents wrongly

charged with abuse or neglect as criminals.' Child abuse

investigations routinely “undermine the fundamental

values of privacy, dignity, personal security, and mobility

' Gresbach was “trained to try to meet with the child

hefore contacting the parents because it minimizes the

opportunity for the parents to coach the child to keep quiet, or

to alter the child’s version of what transpired.” Pet. 5 (citing R-

35-2 at 10). The irrebuttable presumption is that parents cannot

be trusted to cooperate and can only taint the investigation.

Further, it is “policy” that when one child is alleged to have

been abused, the social worker will interview (and often perform

physical examinations on) all the children, regardless of the

lack of specific allegations of harm to them. /d.

2

that are protected by the Fourth Amendment.” Doriane

Lambelet Coleman, Storming the Castle to Save the

Children: The Ironic Costs of a Child Welfare Exception

to the Fourth Amendment, 47 Wm. & Mary L. Rev. 413,

418 (Nov. 2005) (observing that in over seventy percent of

child abuse investigations nationwide the government is

unable to demonstrate abuse, and arguing that “in the

name of saving children from the harm that their parents

and guardians are thought to pose, states ultimately cause

more harm to many more children than they ever help”).

Requiring confused and frightened children to remove all

or part of their clothing is particularly invasive. See Scott

A. Gartner, Note, Stain Searches of Students: What

Johnny Really Learned at School and How Local School

Boards Can Help Solve the Problem, 70 S. Cal. L. Rev.

921, 930-31 (1997) (describing emotional impact of strip

searches).?

Additionally, the vast majority of social workers

interview children at public schools, not private schools.

R.35-9 at 2 (estimating that the Bureau performs as many

as 50 times the interviews at public schools that it does at

private schools). Any perceived epidemic is therefore not

precipitated by difficulties applying Fourth Amendment

standards in private schools, where only a small fraction

of the Bureau’s cases arise anyway.

In short, as Professor Coleman argues, “[iJt is...

wrong to abandon all respect for the values ensconced in

the Fourth Amendment” simply in order to accommodate

our burgeoning welfare system. The petition for certiorari

should be denied.

2 While Gresbach argues that she does not personally

force children to remove all of their clothes, the authority she

claims would equally allow her to require the children to strip

naked. Her position is thus a distinction without a difference in

the law of the matter.

B. Statement of Facts

1. First allegation

On January 16, 2004, the Bureau of Milwaukee Child

Welfare (“the Bureau”) received a report from the

Milwaukee Police Department alleging physical abuse

by Michael C. upon Ian W. R. 35-6 at 2. The reporter

was Yvette Harris, [an’s aunt and sister of his biological

father, Ismaa’eel Abdur-Rahim. /d. According to Harris,

Abdur-Rahim had told Cherita, Ian’s mother, “that the

step father [Michael C.] is not to touch Ian.” Jd. Ms.

Harris would pick Ian up from Cherita C.’s home and

bring him to his every-other-weekend visit with his

father “so the parents do not get into confrontations.”

Id. The police also spoke with Michael C., who

cooperated fully. R. 35-7 at 2.

The police found “no neglect or maltreatment of

children.” Jd. Dana Gresbach failed to note on her report

form the date of the incident giving rise to the referral

(R. 35-3 at 7), although she admitted this was an

important fact. R. 35-7 at 3. That the police had actually

been to the home and spoken with both the step-father

and the child did not “make a hill of beans of difference”

to Gresbach. R.35-5 at 4.

2. Second allegation

On January 30, 2004, the next time Abdur-Rahim

had visitation with lan, Ms. Harris made another

referral, claiming this time that Ian told her that Michael

C. had hit him two days earlier, on January 28, 2004. R.

35-7 at 2. But Ms. Harris did not report the alleged abuse

until five (5) days later, on February 4, 2004. /d. On the

afternoon of February 9, 2004, twelve (12) days after

the alleged incident, Gresbach finally went to see the

4

child, making an unannounced visit to the school. R. 35-3

at 11. Gresbach failed in her written reports even to

mention Cheryl Reetz, the principal, but Gresbach testified

at length about an alleged conversation she had with Reetz

at the school. R. 35-3 at 11-12.

According to Gresbach’s recollection at her deposition,

Reetz told her she had never been involved in anything

like this before, did not know where they ought to report

something if they encountered evidence of abuse, and did

not even know what a mandated reporter was. R. 35-3 at

12. Gresbach said she gave Reetz some basic information

as to how the system worked, and gave her a phone number

for further information. Jd. Gresbach could not believe that

a school with so many “inner city children” would not

be more experienced in child abuse investigations.

R.35-3 at 13.

Gresbach never informed Reetz of her right to refuse

permission for the interviews or her right to contact the

parents. /d. When Reetz asked if she could call the parents,

Gresbach told her “no.” Jd. The reason Reetz wanted to

call the parents was to ask their permission for Gresbach’s

interviewing the children. R. 35-1 at 18. When Reetz asked

if she could sit in on the interviews, Gresbach again told

her “she didn’t need to.” R. 35-1 at 6. It made Reetz

“nervous that somebody else would see the children

without the parents’ consent.” /d. Allowing a stranger to

talk to the children was “just something we generally don’t

do without parents knowing.” R 35-1 at 7. Reetz would

not have allowed anyone other than a government

representative she thought had authority to interview

children at the school. R. 35-1 at 13.%

% It is Gresbach’s practice to allow no one else into the

rvom with her when she interviews children. R.35-2 at 9. Neither

does she videotape or record her interviews. Jd

D

Nonetheless, based on Gresbach’s responses, Reetz

believed she was legally obligated to comply with her

demands and that she was legally prohibited from

contacting or discussing the incident with the children’s

parents. R 35-1 at 14. In fact, Gresbach also believed at

the time that she did not need permission, because under

Wis. Stat. §48.981, she “had the legal right to interview

children at any location without the parents’ permission

except in the home.” R 35-4 at 18.4 Therefore, it was

Gresbach’s practice not to ask permission for interviews

at a school, even a private school. R. 35-3 at 14. It was also

her practice not to allow anyone else into the room when

she conducted her interviews, and the Bureau had

“absolutely no standard” with respect to such matters. R.

35-2 at 9.

Gresbach was accustomed to performing physical

examinations on many of the children she interviewed, and

consequently did not discuss with her supervisor her

intention to require the children to disrobe. R. 35-4 at 7.

She estimated that she performed physical examinations

in perhaps fifty percent (50%) of the cases she handled. R.

35-2 at 9. After all, it was her responsibility, she believed,

that whenever there was an allegation of physical abuse

on any part of a child’s body “to make sure this child isn’t

being abused,” which routinely meant examining the rest

of his body, too. R. 35-4 at 6.

‘ The statute provides in pertinent part: “The agency may

contact, observe or interview the child at any location without

permission from the child’s parent, guardian or legal custodian if

necessary to determine if the child is in need of protection or

services...” Wis. Stat. § 48.981(3)(c)1. Doe v. Heck, 327 F:3d 492, 528

(7th Cir. 2003), found this statute “clearly unconstitutional as

applied” to authorize “government officials to interview children

suspected of being abused on private property without a warrant,

probable cause, consent, or exigent circumstances.” Id.

6

3. The Interviews with the Children

When Gresbach interviewed Ian, she looked at his

wrist, where the alleged welt was said to have been, and

saw nothing. R. 35-6 at 2. Undaunted, however, she then

required [an to lift his shirt and, apparently, to pull down

his pants, as she stated that she observed his legs. /d.

(“Ian was checked for suspicious injuries on his arms, back,

chest and legs and no marks or scars were observed.”).°

Gresbach then proceeded to interview Ian’s step-sister,

Alexis. R. 35-4 at 8. Alexis denied ever having received

marks from a spanking (or “whooping”). Jd. (Q: “So

because her brother said he had a mark on his wrist and

his forehead, you check Alexis who denies ever receiving a

mark and ask her to disrobe?” A: “That’s correct.”).

Gresbach nevertheless required her to pull down her tights

in order that Gresbach could physically examine her. /d.°

® Gresbach implies that Ian told her he currently had

other marks. Pet. 8 (“Ms. Gresbach asked if he had other marks.

lan said yes, ....”). In fact, in response to Gresbach’s question

whether he had ever had any marks, Ian responded that he had

once had a bruise on his forehead. R35-4 at 5. He never said he

had any marks still visible.

®° Gresbach repeatedly refers to this invasive and

embarrassing exercise of forcing a child to partially strip down

to her underclothes while a complete stranger stares at her

body as a mere “visual examination of non private areas,” as if

it were an everyday occurrence of no legal consequence. In fact,

it is an invasion of basic human dignity of constitutional

magnitude, as both lower courts correctly held. See, e.g., App.

18a (“conducting a search of a child’s body under his clothes, on

private property, without consent or the presence of any other

exception to the warrant requirement of the Fourth

Amendment, is in direct violation of the child’s constitutional

(Cont’d)

7

The Bureau recognizes that the search of a child’s

body is much more intrusive than simply asking

questions, and that there is a difference in the type of

consent required for the two actions. R. 58-2 at 18-19.

But the Bureau has not defined “consent,” R. 58-2 at

17, and has no procedures or guidelines in place

concerning physical examinations and the need to obtain

consent to perform them. R.35-4 at 6-7.

The file was eventually closed as “unsubstantiated.”

REASONS FOR DENYING THE PETITION

I. THEREISNOSPLIT IN THE CIRCUITS BECAUSE

THE “SPECIAL NEEDS” EXCEPTION APPLIES

TO ABUSE INVESTIGATIONS IN PUBLIC

SCHOOLS, NOT PRIVATE SCHOOLS.

Gresbach urges this Court to adopt a general

“reasonableness standard” applicable to child abuse and

neglect investigations on private school property “rather

than the requirements of probable cause and a warrant.”

Pet. 15. She argues that the “special needs-general

reasonableness” analysis applicable to searches in public

schools should be applied to private schools as well.’

(Cont’d)

right to be free from unreasonable searches”); see also Good v.

Dauphin County Social Services for Children and Youth, 891

F.2d 1087, 1092-93 (3d Cir. 1989) (“It 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

privciple of human dignity.”).

7 She states that the “distinction between publie and

private schools is irrelevant to the question of whether probable

cause or a reasonableness standard should be applicable to

Fourth Amendment searches in the context of child abuse

(Cont'd)

8

As discussed below, “reasonableness” is not a generally

applicable “facts and circumstances” test. Rather, this

Court has determined that the “special needs” of public

schools to conduct searches and maintain order entitle

them to an exception to the Fourth Amendment’s probable

cause-warrant requirement, and “reasonableness” is

simply the standard used in assessing the legality of a

search only after the court makes the threshold

determination that the “special needs” exception applies.

Additionally, this Court and the lower courts uniformly

apply the “special needs-reasonableness” analysis to public

schools only. While there may well be some divergence

among the circuits applying that standard in public school

contexts, there is no authority whatsoever for applying it

to private schools, and Gresbach cites none.

A. “Consent” and “Exigent Circumstances” are

the Traditional Exceptions to the Fourth

Amendment’s Probable Cause-Warrant

Requirement.

Obviously, the “ultimate-measure” of constitutionality

under the Fourth Amendment is “reasonableness.”

Vernonia School District 47J v. Acton, 515 U.S. 646, 652

(1995). And “reasonableness” is determined by “balancing

[the] intrusion on the individual’s Fourth Amendment

interests against [the] promotion of legitimate

governmental interests.” Jd. at 652-53 (citations omitted).

(Cont'd)

investiga’ wns,” Pet. 15, that children’s “expectation of privacy”

in both “the public or private school setting ... must be tempered

by the realities of the school environment,” Pet. 19, and that

“there is no logical reason for distinguishing searches at private

schools from those at public schools where the worker is

properly on the premises.” Pet. 21.

9

Contrary to Gresbach’s assertion, however, “balancing

interests” is not some amorphous, all-purpose, facts-and-

circumstances rationale for whatever a social worker thinks

she has good reason to do. Rather, this Court has

established “carefully defined classes of cases” and the

specific “standard[s] of reasonableness” that the “balance

of interests” requires in each class. O'Connor v. Ortega,

480 U.S. 709, 719 (1987).

For many years, “one governing principle, justified by

history and by current experience, has consistently been

followed: except in certain carefully defined classes of

cases, a search of private property without proper consent

is ‘unreasonable’ unless tt has been authorized by a valid

search warrant.” Camara v. Municipal Court, 387 U.S.

523, 5288-29 (1967) (emphasis added, citations omitted.)

In most cases, therefore, the balance of interests

requires the “usual warrant vr probable-cause

requirements.” Griffin v. Wisconsin, 483 U.S. 868, 873

(1987). This Court has noted “time and again” that

“searches and seizures conducted outside the judicial

process, without prior approval by judge or magistrate,

are per se unreasonable under the Fourth Amendment —

subject only to a few specifically established and well

delineated exceptions.” Minnesota v. Dickerson, 508 U.S.

366, 372 (1993) (emphasis added, citations and internal

quotations omitted).Among those few “specifically

established and well delineated exceptions” are consent,

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973), and

exigent circumstances. United States v. Karo, 468 U.S.

705, 718 (1984). Exceptions are grudgingly granted

because “the privacy interests protected by the Fourth

Amendment are to be jealously guarded.” Wilson v. Health

and Hosp. Corp. of Marion County, 620 F2d 1201, 1209

(7th Cir. 1980) (citations omitted).

10

Those rules apply on private school property the

same as any other private property. A corporation has

reasonable privacy expectations no less than a

homeowner. G.M. Leasing Corp. v. United States, 429

U.S. 388, 358 (1977); Camara, 387 U.S. at 523. Churches

and private schools in particular have privacy

expectations in their premises. Curtis v. Thompson, 840

F.2d 1291, 1800 (7th Cir. 1988) (citations omitted);

Simpson v. Saroff, 741 FSupp.1073, 1078-79 (S.D.N.Y.

1990). A private school’s expectations of privacy are

especially acute because private education is an exercise

of fundamental familial liberties. See generally, Pierce

v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v.

Nebraska, 262 U.S. 390 (1923).

B. The Reasonableness Standard is not Applicable

Outside the Narrow Class of Cases Qualifying for

the “Special Needs” Exception.

Occasionally, government may have “special needs,

beyond the normal need for law enforcement, [which]

make the warrant and probable cause requirement

impracticable.” Vernonia, 515 U.S. at 654 (citing Griffin

v. Wisconsin, 483 U.S. 868, 873 (1987) (internal

quotation marks omitted). In such cases, a lower

standard may be appropriate “depend[ing] in part upon

whether the burden of obtaining a warrant is likely to

frustrate the governmental purpose behind the search.”

Camara, 387 U.S. at 533 (citations omitted).

In New Jersey v. T.L.0. 469 U.S. 325 (1985), this

Court addressed “the questions of the proper standard

for assessing the legality of searches conducted by public

schoo! officials and the application of that standard to

the facts of this case.” Jd. at 329. The Court first

determined that a public school official was entitled to

ll

the special needs exception in searching a student’s

purse for contraband. /d. at 340 (“The warrant

requirement, in particular, is unsuited to the school

environment ....[Wle hold today that school officials

need not obtain a warrant before searching a student

who is under their authority.”). The Court then

determined that a general “reasonableness” standard

was appropriate in determining the legality of the search.

Id. (“(T]he legality of a search of a student should

depend simply on the reasonableness, under all the

circumstances, of the search.”).

Contrary to Gresbach’s urging, then, the 7'L.O. Court

did not create some all-purpose, peripatetic standard to

be applied wholesale to any kind of official investigation.

Rather, it directed that the “reasonableness” standard

should be applied only after determining that the special

needs exception applied to the public school official’s

search. Jd. at 351 (“Only in those exceptional circumstances

in which special needs, beyond the normal need for law

enforcement, make the warrant and probable-cause

requirement impracticable, is a court entitled to substitute

its balancing of interests for that of the Framers.”).

Also contrary to Gresbach’s claim, the special needs-

reasonableness analysis does not apply to searches on

private school premises. Its use is explicitly limited to

assessing “the legality of searches conducted by public

school officials ....” Id. at 329 (emphasis added). It is

also inapplicable to searches conducted in cooperation

with law enforcement. /d. at 342 n.7 (“We here consider

only searches carried out by school authorities acting

alone and on their own authority. This case does not

present the question of the appropriate standard for

assessing the legality of searches conducted by school

officials in conjunction with or at the behest of law

12

enforcement agencies, and we express no opinion on that

question.”); see also Ferguson v. City of Charleston, 532

U.S. 67, 79 (2001) (government can justify warrantless

searches under “special needs” exception only when

“divorced from the State’s general interest in law

enforcement”).®

Il. THE CIRCUITS UNIFORMLY LIMIT THE

SPECIAL NEEDS-REASONABLENESS ANALYSIS

TO PUBLIC SCHOOL SEARCHES AND APPLY

BASIC WARRANT EXCEPTIONS TO PRIVATE

SCHOOL SEARCHES.

Gresbach asserts that the circuit courts are

“inconsistent” and that the “lower courts are split”

between applying the reasonableness standard and

basic warrant exceptions. Pet. 11, 15. She cites only two

cases for the “split,” Wojcik v. Town of N. Smithfield,

76 F.3d 1 (1st Cir. 1996), and Wildauer v. Frederick

County, 993 F.2d 369 (4th Cir. 1993). Pet. 18. She paints

those cases with the broadest of brushes, without factual

recitation or analysis. But as discussed below, Wojczk is

a garden variety public school special needs decision

following 7'L.O. and Vernonia. Wildauer is a garden

variety consent case, applying the basic Fourth

Amendment principles and warrant requirement

exceptions. There is no split in the circuits.

* In Wisconsin, a charge of physical abuse implicates

possible criminal penalties. See Wis. Stats. Ann. §§ 48.02,

48.981(3)(b)3 and (3)(c)5m, and 939.22. The government’s

interests here, then, are not divorced from its general interest

in law enforcement.

13

A. The Circuits Uniformly Apply the Warrant

Requirement and Permitted Exceptions.

Gresbach claims that the circuits have “collapsed”

the “reasonableness” test into four exceptions ~ warrant,

probable cause, exigent circumstances, and special

needs. Pet. 18. But the circuits aren’t “collapsing”

anything. Rather, as the following summary illustrates,

they are uniformly applying this Court’s basic Fourth

Amendment principles in the context of child abuse

investigations on private property.

Second Circuit: “[A]s discussed in connection with

the Fourth Amendment implications of Sarah’s removal

from school, we find that the Fourth Amendment’s

reasonable or probable cause and exigent circumstances

doctrines apply to searches and seizures made in the

course of child abuse investigations.” Tenenbaum v.

Williams, 1938 F.3d 581, 606 (2d Cir. 1999), cert. denied,

529 U.S. 1098 (2000).

Third Circuit: “It is accepted, at least as a matter

of principle, that a search or seizure carried out on a

suspect’s premises without a warrant is per se

unreasonable, unless the police can show that it falls

within one of a carefully defined set of exceptions... .”

Good v. Dauphin County Social Services for Children

and Youth, 891 F.2d 1087, 1092-1093 (3d Cir. 1989) (citing

Coolidge v. New Hampshire, 408 U.S. 448, 474-75

(1970)).

Fifth Circuit: “[A] social worker must demonstrate

probable cause and obtain a court order, obtain parental

consent, or act under exigent circumstances to justify

the visual body cavity search of a juvenile.” Roe v. Texas

Dept. of Protective and Regulatory Services, 299 F.3d

395, 407-408 (5th Cir. 2002).

14

Seventh Circuit: “Because we conclude that [a

private school and student] had a reasonable

expectation of privacy in and within the school’s

premises, the defendants’ warrantless search of the

school and seizure of the child are presumptively

unreasonable, . . . and can only be upheld if either falls

within one of the ‘few specifically established and well

delineated exceptions’ to the Fourth Amendment’s

warrant and probable cause requirements... .”

Doe v. Heck, 327 F.3d at 513 (citations omitted).

Ninth Circuit: “[l]t was settled constitutional law

that, absent exigent circumstances, police could not

enter a dwelling without a warrant even under statutory

authority where probable cause existed.” Calabretta v.

Floyd, 189 F.3d 808, 813 (9th Cir. 1999) (internal

citations omitted).

Tenth Circuit: “The general rule is that a

warrantless search conducted without consent is

‘presumptively’ unconstitutional unless it fits within

certain narrow exceptions to the general rule.” Dubbs

v. Head Start, Inc., 336 F.3d 1194, 1212 (10th Cir. 2003)

(internal citations omitted).

B. The Circuits Uniformly Follow this Court’s

Limitation of the Special Needs-Reasonableness

Analysis to Public School Searches.

Gresbach relies heavily on 7'L.O., but as already stated,

the special needs-reasonableness analysis in 7'L.O. is

strictly limited to “the legality of searches conducted by

public school officials ....” 469 U.S. at 329 (emphasis

added). She also cites Vernonia for the proposition that

there is no distinction between “the public or private schoo]

setting...” Pet. 19. But Vernonia’s limitation of the special

needs-reasonableness analysis to public schools could not

15

be more explicit: “In T.L.O. we rejected the notion that

public schools, like private schools, exercise only parental

power over their students, which of course is not subject

to constitutional constraints.” Vernonia, 515 U.S. at 655.

Gresbach also cites Darryl H. v. Coler, 801 F.2d 893

(7th Cir. 1986), for the proposition that “probable cause

and the warrant requirement did not apply in the

context of a visual inspection of areas of a child’s body

as part of a child abuse investigation at a public school.”

Pet. 13. But Darryl H. has no application in a private

school context because it explicitly follows T.L.O. Darryl

H., 801 F.2d at 900. The Seventh Circuit noted the

obvious distinction in Doe v. Heck, 327 F.3d 492, 514 (7th

Cir. 2003) (“The key difference between the searches at

issue in Darryl H. and Landstrom, and the search and

seizure in this case, is that the searches in Darryl H.

and Landstrom took place on public school grounds with

the consent of public school officials.”)°

C. Gresbach Mischaracterizes Wojcik and

Wildauer.

Gresbach claims that Wojcik and Wildauer apply a

“general reasonableness” test. Pet. 18, 21-22. However, she

provides no analysis, and completely mischaracterizes those

authorities. Wojcik was a public school case, and the only

® Gresbach attempts to distinguish Heck and Darryl H.

by suggesting that there were free exercise issues in those cases

but not here. Gresbach is mistaken. Both Heck and Darryl H

were pure Fourth Amendment cases. Darryl H. was also a public

school case, and while Heck refers to free exercise interests,

the court analyzed only Fourth Amendment claims, 327 F.3d at

509, familial relations (substantive due process) claims, id. at

517, and procedural due process claims, id. at 526. Neither case

analyzed or decided a free exercise claim.

16

“novel element” was that school officials transported a child

from one school to another in furtherance of their

investigation. Wojcik, 76 F:3d at 3. Wojcik follows T:L.O.

and Vernonia, and explicitly limits its analysis to public

schools.

The Fourth Amendment has been applied to

public schools officials, primarily in the

investigation of student misconduct or crime.

E..g., Vernonia School District v. Acton, 515

U.S. 646, 115 S.Ct. 2386, 182 L.Ed.2d 564

(1995); New Jersey v. T.:L.0., 469 U.S. 325, 105

S.Ct. 733, 83 L.Ed.2d 720 (1985). The Fourth

Amendment, however, protects against

unreasonable seizures. Nothing in the

present facts made it unreasonable for the

school, acting in loco parentis, to move one of

the children from one school to another school

in the vicinity, so that both children could be

questioned together by a state official

following upon a possible abuse report made

by one of the teachers.

Wojcik, 76 F.3d at 3.

Gresbach’s citation of Wildawer is even more

misleading, because Wildauwer is a garden variety

“consent” case. Wildauer was a foster mother who

challenged entry by a social worker and nurses into her

unsanitary home to examine the foster children’s health.

The Fourth Circuit easily disposed of her claim based

on consent: “Wildauer’s consent to Cruger’s entry is

uncontested.” Wildauer, 993 F:2d at 372. The court held:

“Having consented to Cruger’s entry, Wildauer could

not deny access to the other members of the party.” /d.

Moreover, the only claims analyzed by the court were

Wildauer’s claims that the entry and inspection of the

17

children violated her Fourth Amendment rights. The

children were foster children already in state custody —

the authority of the state to examine them was not at issue.

The court simply noted that Wildauer’s “attenuated”

privacy interests were outweighed because she did not

have legal custody, officials already had the right to

physically examine the foster children, and the natural

parents also had the right to enter Wildauer’s house to

retrieve their own children. Jd. at 372-373.

Finally, Gresbach cites Roe v. Texas Dept. of Protective

and Regulatory Services, 299 F.3d 395, 399 (5th Cir. 2002),

for the proposition that there is a spectrum of applicable

approaches. Pet. 22. Once again, however, Roe is a

“consent” case that had nothing to do with a search on

private school premises. Roe presented two questions, the

initial entry into Mrs. Roe’s home, and the physical

examination of her daughter for sexual abuse. The district

court found an issue of fact regarding entry into the home,

but the Fifth Circuit held on appeal: “We avoid the first

question by holding that Mrs. Roe consented to an

investigative home visit.” /d. at 400-401. The court found

that she had consented to her daughters’ physical

examination as well. Jd. at 399.

By contrast, neither the parents nor Principal Reetz

had any opportunity to object to Gresbach’s physical

examinations of the children here, because Gresbach had

forbidden Reetz from being present during the

examinations, and had also forbidden Reetz from notifying

the parents that Gresbach was seeing the children. Indeed,

Reetz had no way of knowing Gresbach intended to require

the children to disrobe, as Gresbach had not said anything

about her intentions. See App. 6a, 14a, 35a. This case is a

far cry from the circumstances in Roe.

18

D. The Circuits Uniformly Follow Black Letter

Warrant Exceptions in Analyzing Searches

on Private School Premises.

Lower court decisions applying the warrant

requirement and exceptions to private school searches

are limited but uniform.

In Simpson v. Saroff, supra, a private school

principal alleged that she was arrested for refusing to

allow police to enter the School building to question

students who had fled there after reportedly committing

a robbery and assault of other students just minutes

before. Jd. at 1075-76. Even in that extreme situation,

the court denied a summary judgment motion by the

police, who argued there was no violation of the

principal’s Fourth Amendment rights. Jd. at 1073.

As discussed above, the Seventh Circuit applied

black letter warrant-probable cause exceptions in Doe

v. Heck, concluding that the social workers’

“warrantless search of the school and seizure of the child

are presumptively unreasonable, . . . and can only be

upheld if either falls within one of the ‘few specifically

established and well delineated exceptions’ to the Fourth

Amendment’s warrant and probable cause requirements

.... 327 F3d at 513 (citations omitted).

The Eighth Circuit has likewise applied the

traditional analysis to Fourth Amendment claims on

private property. In Heartland Academy Community

Church v. Waddle, the district court held: “In the context

of removing a child from his home and family, a seizure

is reasonable if it is pursuant to a court order, if it is

supported by probable cause, or if it is justified by

exigent circumstances, meaning that state officers ‘have

reason to believe that life or limb is in immediate

19

jeopardy.’” 317 FSupp.2d 984, 1091 (E.D. Mo. 2004)

(citations omitted). The court continued, “[t]he same

standard for reasonableness applies when a child is

seized from a private school where she has been placed

by her parents.” /d. (citing Doe v. Heck, 327 F.3d at 512)

(“In our view, there is no basis for concluding that when

a minor child is entrusted to the care of a private school

in loco parentis his reasonable expectation of privacy,

vis-a-vis government officials, differs in any material

respect from that which he would otherwise expect to

receive at home.”). On appeal, the Eighth Circuit

summarily affirmed: “Upon review of the record in this

case, we conclude that the court’s factual findings

regarding the process employed by Waddle in obtaining

the ex parte orders are not clearly erroneous. Likewise,

upon de novo review, we see no error in the legal

conclusions on the reasonableness of the seizures and

the Fourth Amendment violation.” Heartland Academy

Community Church v. Waddle, 427 F.3d 525, 533 (8th

Cir. 2005).

In this-case, the Seventh Circuit analyzed

Gresbach’s consent defense under the same well-

established rubric. Gresbach argued that her search was

“objectively reasonable” because she had “general

consent.” App. 13a. The court noted that while a “search

conducted pursuant to consent” is an “established

exception to the warrant requirement,” the search is

reasonable only “as long as it remains within the scope

of the consent.” /d. at 13a-14a (citing Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973) and Florida v.

Jimeno, 500 U.S. 248, 251 (1991)). But the consent

exception is “grudgingly granted because the privacy

interests protected by the Fourth Amendment are to

be jealously guarded.’” Jd. at 13a (quoting Heck)

20

(additional citations omitted). The court then

determined that Reetz’s consent for Gresbach to

interview the children did not include consent to inspect

their bodies as well. Jd. at 14a. The court concluded with

the unremarkable proposition that social workers must

be subject to “basic Fourth Amendment principles under

non-exigent circumstances.” Jd. at 15a-16a.

III. THIS COURT HAS STRICTLY LIMITED THE

T.L.O. “SPECIAL NEEDS” EXCEPTION TO

SEARCHES ON PUBLIC SCHOOL PROPERTY,

AND THERE IS NO NEED TO EXTEND IT TO

PRIVATE SCHOOL PROPERTY.

A. There Is No Split Among the Circuits

Applying the Special Needs Exception to

Child Welfare Investigations.

Gresbach requests this Court to issue a writ to

“settle the conflict in the lower courts as to whether the

special needs doctrine applies [to] investigations of child

abuse” by extending the special needs exception to all

child welfare investigations on private school property.

Pet. 16.

Gresbach assumes without discussion that there is,

in fact, a split among the circuits on this point. But as

discussed above, “reasonableness” and “special needs”

are not separate and distinct analyses. Rather,

“reasonableness” is simply the standard to be applied

in special needs cases. This Court and the lower courts

have appropriately limited the “special needs” exception

to public schools, and Gresbach presents no authority

for striking that limitation and creating virtually

unlimited authority for social workers to seize and

search children whenever and wherever they deem

appropriate.

21

Gresbach cites Board of Educ. of Indep. Sch. Dist.

No. 92 of Pottawatomie County v. Earls, 536 U.S. 822,

829-830 (2002), but Harls was a drug investigation case

that affirms this Court’s long line of cases limiting special

needs-reasonableness analysis to searches in public

schools.

Significantly, this Court has previously held

that “special needs” inhere in the public school

context..... While schoolchildren do not shed

their constitutional rights when they enter

the schoolhouse, ... “Fourth Amendment

rights ... are different in public schools than

elsewhere; the ‘reasonableness’ inquiry

cannot disregard the schools’ custodial and

tutelary responsibility for children.”

Id. at 829-830 (citing Vernonia, 515 U.S. 653, T.L.O., 469

U.S. at 339-340, and Tinker v. Des Moines Indep.

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

Gresbach also cites Brigham City, Utah v. Stuart,

547 U.S. 398 (2006), and Wyoming v. Houghton, 526 U.S.

295, 299-300 (1999). Brigham City involved an officer

entering a home without a warrant after observing a

fight inside, and Wyoming involved a warrantless search

of a driver’s purse for contraband during a traffic stop.

Neither addresses child welfare investigations, much

less searches on private school property.

Finally, Gresbach cites Kia P v. McIntyre, 235 F.3d

749, 759 (2d Cir. 2000). In that case, a private hospital

held a new-born after detecting illegal drugs in her

system. The Second Circuit noted its own decision in

Tenenbaum declined to decide among three available

standards for seizing a child to prevent abuse or neglect,

“probable cause,” “exigent circumstances,” or the “less

stringent” snecial needs-reasonableness standard.

22

Id. at 762. But of critical importance, the Second Circuit

determined that the hospital, which already had custody

of the children, was a state actor. /d.

Here, of course, the children were not in the custody

of a state actor when Gresbach subjected them to the

physical examinations. Instead, they were in the custody

of a private actor on private property. Unlike the .

circumstances in T.L.0., Vernonia, or Earls, then,

application of the traditional Fourth Amendment

analysis requiring probable cause or a warrant was in

keeping with a long line of precedent on the matter.

B. Gresbach Failed to Raise this Argument

Below.

Even if there were a split regarding application of a

special needs-reasonableness analysis in child welfare

investigations on private school premises, this is certainly

not the case to mend it, much less create the new standard

Gresbach urges, because she failed even to raise the

argument in the district court and thus did not make

a record for such a policy-sensitive determination.

See, e.g. Sosna v. Iowa, 419 U.S. 393, 396 (1975) (“The

failure of lowa to raise the issue has... . left us without any

guidance from the parties’ briefs... .”).

Gresbach claims the district court found that “none

of the exceptions to the warrant requirement,

including the special needs exception, applied.” Pet.

13 (emphasis added). That representation is factually

inaccurate. Gresbach never argued or even mentioned

“special needs” in her district court briefing. See R. 21,

54, 62. Not surprisingly, the district court decision does

not mention it, either. Gresbach has therefore waived

the argument, and should be precluded from asserting

it here. See Danforth v. Minnesota, _U.S._, 128S.

Ct. 1029, 1046 (2008) (citations omitted).

23

Gresbach’s failure to raise the special needs

argument below is understandable, given the Seventh

Circuit’s rejection of the argument in Doe v. Heck. As

the court stated below,

Heck foreclosed the justification of the

“special needs” exemption in this context,

because states have “the ability to take

immediate action to ensure the physical safety

of a child suspected of abuse who is located

on private property” through the exigent

circumstances exception to the warrant

requirement of the Fourth Amendment.

App. 15a n.3 (quoting Heck, 327 F.3d at 517 n.20).

Furthermore, having utterly failed to make a record

on the issue, Gresbach relies on uncited, outlandish

assertions. She claims that there were “3.6 million child

abuse and neglect referrals in the year 2006,” Pet. 2,

that “{i]Jncidents of child abuse and neglect occur every

10 seconds in America,” Pet. 11, and that “[t]hese issues

confront child protective services workers on a daily

basis in every State in the country.” Pet. 17.

This data is as unreliable as it is dangerous, as noted

above. See Response at 1-2. Moreover, Gresbach’s

failure to raise the issue or create a record below

deprives Respondents of the opportunity to develop a

countervailing record or examine her assertions.

Nevertheless, under any set of data, the special needs

exception should not be extended here.

24

C. Applying the Special Needs-Reasonableness

Analysis to All Child Welfare Investigations

Would Swallow Both the General Warrant-

Probable Cause Rule and the Consent and

Exigent Circumstances Exceptions.

As explained above, this Court has already created

a “special needs-reasonableness” exception for public

schools in T.L.O. and Vernonia. The application of that

exception to all child welfare investigation as Gresbach

urges would swallow both the general warrant-probable

cause rule and the consent and exigent circumstances

exceptions with it.

Gresbach cites Roe in support of her position, but

the two “special needs cases” analyzed by Roe do not

support such a general application at all. Roe notes that

in Wyman v. James, 400 U.S. 309 (1971), this Court

upheld a New York law requiring AFDC recipients’

consent to a home visit as a condition for continued

benefits. The “application of the general reasonableness

test was dictum” and did not even constitute a Fourth

Amendment search. Roe, 299 F.3d at 405. In Griffin,

supra, this Court permitted probation officers to search

probationers’ homes based on “reasonable grounds”

because the probation system presented “special needs

beyond normal law enforcement.” Roe, 299 F.3d at 405

(citing Griffin, 483 U.S. at 874). Systematic supervision

of convicted criminals certainly entails significant

“special needs,” but a probation system is not remotely

comparable to merely investigating unconfirmed reports

of possible maltreatment on private school premises or

other private property.

25

Most telling, Gresbach simply ignores the result in

Roe “that the special needs doctrine did not permit a

social worker to visually search a child’s body cavities

as part of an abuse investigation without a warrant or

exigent circumstances.” Gates v. Texas Dept. of

Protective and Regulatory Services, 537 F.3d 404,

423 (5th Cir. 2008) (explaining the holding of Roe, 299

F.3d at 406-07).'°

IV. THERE IS NO SPLIT IN THE CIRCUITS

CONCERNING INVESTIGATIONS ON PRIVATE

PROPERTY, AND EVEN IF THERE WERE, THE

LAW WAS CLEARLY SETTLED IN THE

SEVENTH CIRCUIT.

Gresbach makes the remarkable argument that she

is somehow not responsible for knowing clearly

established law within the Seventh Circuit because the

law may be unsettled somewhere else. Pet. 26-30. Again,

she cites no authority for such a proposition, perhaps

because there is none.

Obviously, Doe v. Heck was well-established law when

she conducted the investigation at issue here, even

involving the same Bureau under very similar

circumstances. As discussed above, there was no circuit

split regarding investigations on private school property.

But even if there had been, a split in the circuits is

relevant to the “clearly established” analysis only when

10 Roe also holds that a special needs exception is

inappropriate where, as here, the inspection serves an

investigative, prosecutorial function in addition to a child

welfare function. /d., 299 F.3d at 407. See also Tenenbaum, 193

F.3d at 606 (medical examination did not qualify for special

needs exception where it was “undertaken at the initiative of a

state official [and] serve[d] primarily an investigative

function”).

26

the case is one of first impression in the actor’s own circuit

and there are conflicting district court decisions within that

circuit.

Even under those circumstances, the law may be

sufficiently established in other circuits to impose liability.

The Seventh Circuit has held that

the absence of a decision by the Supreme Court

or this court cannot be conclusive on the issue

whether a right is clearly established in this

circuit. There might be no decision in either

court simply because the existence of the right

was so clear, as a matter of the wording of a

constitutional or statutory provision or

decisions in other circuits or in the state courts,

that no one thought it worth while to litigate

the issue. . . . To rule that until the Supreme

Court has spoken, no right of litigants in this

circuit can be deemed established before we

have decided the issue would discourage anyone

from being the first to bring a damages suit in

this court; he would be certain to be unable to

obtain any damages.

Burgess v. Lowery, 201 F:3d 942, 944 -945 (7th Cir. 2000).

See also, Williams v. Bitner, 455 F3d 186, 192-93 (3d Cir.

2006) (denying qualified immunity to prison officials who

required Muslim inmate to handle pork, even though

neither the Supreme Court nor the Third Circuit had

directly addressed the issue).

Gresbach also references this Court’s order directing

briefing on the analytical framework set forth in Saucier

v. Katz, 5383 U.S. 194 (2001), in Pearson v. Callahan, No.

07-751 (U.S S.Ct. filed Dec. 4, 2007, cert. granted, March

24, 2008). Pet. 13, 27. She seems to imply that the law might

not have been clearly established because the social worker

27

defendants in Doe v. Heck were granted qualified immunity

and were thus unable to appeal the Seventh Circuit’s

threshold determination rejecting the general

reasonableness standard under Saucier.

Gresbach’s own petition in this case exposes the flaw

in her argument. Even assuming the Heck defendants

could not petition for review of an unfavorable threshold

decision under Saucier, they suffered no prejudice because

they were granted qualified immunity. Nor does Gresbach

suffer prejudice under Saucier — obviously she has the

right to petition for review of an unfavorable decision on

immunity, and is in fact doing so here."

Perhaps alternatives to Saucier can be found, but

whatever they may be, Doe v. Heck was clearly established

law in the Seventh Circuit, and Gresbach has had full

opportunity to challenge its holding at every stage of this

litigation — in the district court, the Seventh Circuit, and

now here.

11 Returning to a pre-Saucier regime would no doubt be

attractive to social workers, where constitutional violations have

often continued indefinitely. Granting qualified immunity on

grounds that the law was not “clearly established” precluded

the opportunity to ever establish the law because, having

dismissed the case, there was no opportunity to reach the merits.

For example, in Doe v. Louisiana, 2 F.3d 1412 (5th Cir. 1993),

cert. denied, 510 U.S. 1164 (1994), two social workers

manufactured evidence of sexual abuse in order to remove a

child from the father’s custody. The court granted immunity

because the father’s “family integrity” right was “nebulous,”

id. at 1417, yet refused to reach the merits of that very right.

Consequently, social workers in « subsequent seizure case were

again awarded qualified immunity on the very same ground -

that the “family integrity” right was “nebulous.” Kiser v. Garret,

67 F.3d 1166 (5th Cir. 1995).

28

CONCLUSION

For the foregoing reasons, the Petition for Certiorari

should be denied.

Respectfully submitted,

MICHAEL D. DEAN STEPHEN M. CRAMPTON

MICHAEL D. Dean, LLC Counsel of Record

20975 Swenson Drive Mary E. McALIsTER

Suite 125 LIBERTY COUNSEL

Waukesha, WI 53186 PO. Box 11108

(262) 798-8044 Lynchburg, VA 24506

(434) 592-7000

Attorneys for Respondents