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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

- ~~ 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1246%3A2. Public record. Not legal advice.