C., Michael v. Gresbach, Dana ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1756
M ICHAEL C., C HERITA C., K IMBERLY W., ET AL.,
Plaintiffs-Appellees,
v.
D ANA G RESBACH,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 C 650—Lynn Adelman, Judge.
____________
A RGUED D ECEMBER 3, 2007—D ECIDED M AY 19, 2008
____________
Before B AUER, E VANS and S YKES, Circuit Judges.
B AUER, Circuit Judge. The parents and stepparents of
minor children Ian and Alexis (“Plaintiffs”) sued Dana
Gresbach, a caseworker with the Bureau of Milwaukee
Child Welfare (“Bureau”), under 42 U.S.C. § 1983, alleging
in part that Gresbach violated the children’s Fourth
Amendment rights when she conducted under-the-clothes
examinations of each child’s body during separate inter-
views at their private school, as part of a child abuse
investigation in February of 2004. Gresbach moved for
summary judgment on qualified immunity grounds. The
2 No. 07-1756
district court denied the motion, holding that Gresbach’s
conduct violated the children’s rights to be free from
unreasonable searches, and those rights were clearly
established at the time of the searches. Gresbach appeals,
arguing that she is entitled to qualified immunity be-
cause her actions were objectively reasonable under the
Fourth Amendment after she received general consent
from the school’s principal to investigate an allegation of
child abuse pursuant to Wis. Stat. § 48.981(3)(c)1, and no
case clearly established that her investigation violated the
children’s Fourth Amendment rights. We affirm.
I.
In Doe v. Heck, 327 F.3d 492 (7th Cir. 2003), we addressed
the application of the Fourth Amendment in the context
of child abuse investigations by the same state agency
at issue here, the Bureau, on the premises of a private
school. Because we find Heck to be a blueprint for our
analysis, a brief review of its facts and holding, as they
pertain to this case, is necessary.
The Bureau, a division of the Wisconsin Department of
Health and Family Services which provides child abuse
prevention and related services in Milwaukee County,
conducts investigations of child abuse allegations under
established protocols in order to substantiate whether or
not child abuse has occurred. Prior to April, 2003, Wis. Stat.
§ 48.981(3)(c)1 1 had been interpreted as providing Bureau
1
Section 48.981(3)(c)1 provides, in pertinent part, that “[t]he
agency may contact, observe or interview the child at any
location without permission from the child’s parent, guardian,
(continued...)
No. 07-1756 3
caseworkers with the authority to interview children at
school without having to obtain permission from their
parents or school officials. See Heck, 327 F.3d at 502 n. 6. In
Heck, Bureau caseworkers received a report that a child
had been spanked at his private school, which followed
a corporal punishment policy. Pursuant to their investi-
gation, the caseworkers went to the school, identified
themselves to the principal, and requested to see the
child for an interview. The principal initially refused to
allow the workers to interview the child, however once
the workers received confirmation from a Wisconsin
district attorney that § 48.981(3)(c)1 gave them the au-
thority to interview children on school premises without
obtaining consent from either the parents or school offi-
cials, the principal reluctantly agreed to allow the case-
workers to interview the child, which they did, without
conducting a physical examination of the child. Later, the
school and the child’s parents sued the caseworkers,
alleging in part that they conducted an unreasonable
search of the school premises and an illegal seizure of the
child in violation of the Fourth Amendment. The district
court found that the caseworkers were protected by
qualified immunity, and we affirmed.
Under established Fourth Amendment principles, we
found that a private school and its students had a rea-
sonable expectation of privacy in and within the school’s
1
(...continued)
or legal custodian if necessary to determine if the child is in need
of protection or services, except that the person making the
investigation may enter a child’s dwelling only with permission
from the child’s parent, guardian, or legal custodian or after
obtaining a court order.”
4 No. 07-1756
premises, and that therefore the caseworkers’ warrantless
search of the premises and seizure of the child in order to
conduct an interview for a child abuse investigation,
without the consent of the child’s parents or school offi-
cials, was presumptively unreasonable. Heck, 327 F.3d at
510-13. We determined, in part, that “to the extent
§ 48.981(3)(c)1 authorizes government officials to inter-
view children suspected of being abused on private
property without a warrant or probable cause, consent, or
exigent circumstances, it is clearly unconstitutional as
applied.” Id. at 515-16. We nevertheless found that a
reasonable child welfare caseworker would not have
understood his actions under the statute to be unconsti-
tutional under the Fourth Amendment at the time of the
alleged violation, because his conduct did not violate any
clearly established law. Accordingly, we held that the
caseworkers were entitled to qualified immunity, but
stated that “[a]t this juncture [April, 2003] . . . we now
make it clear that it is patently unconstitutional for gov-
ernmental officials to search the premises of a private or
parochial school and/or seize a child attending that
school without a warrant or court order, probable cause,
consent, or exigent circumstances.” Heck, 327 F.3d at 517.
It is through the lens of Heck that we examine the dis-
trict court’s conclusion that Gresbach is not entitled to
qualified immunity.
II.
On February 4, 2004, a female family member of eight-
year-old Ian made a child abuse report to the Bureau,
stating that Ian told her that Michael C., Ian’s stepfather,
hit him on the wrists with a plastic stick on January 28,
No. 07-1756 5
2004. On February 5th, Dana Gresbach, an agent with the
Bureau since 1998, was assigned the case. During the
next four days, Gresbach reviewed the child abuse
report, met with a manager at the Bureau, Rita Zappen,
and spoke to the family member who reported the abuse.
On February 9th, Gresbach went to Ian’s private school,
Good Hope Christian Academy (“Good Hope”), to inter-
view Ian and his stepsister, nine-year-old Alexis.
When Gresbach arrived at Good Hope, she met with
Principal Cheryl Reetz. Gresbach handed Reetz her busi-
ness card and told Reetz that she needed to see Ian and
Alexis. Reetz was unfamiliar with her own role in a
child abuse investigation—the only real training she
had received was annual review of the faculty hand-
book, which delineates a teacher’s responsibilities as a
mandatory reporter of child abuse. Reetz asked Gresbach
if she could call the children’s parents, to which Gresbach
said no, and that Gresbach would contact the parents
herself after she had spoken with Ian and Alexis. Reetz
also asked Gresbach if she could observe the interviews,
and Gresbach responded that Reetz need not do so.
According to Reetz, she was concerned about allowing
Gresbach to interview the children without parental
consent, but she assumed that because Gresbach was a
Bureau caseworker, Reetz was legally obligated to allow
Gresbach to see the children, and that she was legally
prohibited from contacting the children’s parents.
Gresbach did not ask permission from Reetz to phys-
ically examine Ian and Alexis for signs of abuse; she
believed she was not obliged to do so, because
§ 48.981(3)(c)1 gave her the authority to conduct an in-
terview and possible physical examination of the
children without consent. Under Heck, Gresbach’s belief
was inaccurate.
6 No. 07-1756
Reetz allowed Gresbach to use her office to conduct
the interviews, and she retrieved the children from
their classrooms. Gresbach spent ten to fifteen minutes
alone in the office with each child. Ian told Gresbach that
Michael C. sometimes hit him with a flexible stick.
Gresbach examined Ian’s wrist for injuries, but did not see
any. Gresbach asked the child to pull up his shirt, and Ian
complied. Gresbach inspected his back for suspicious
injuries, but found none. During her interview, Alexis
told Gresbach that her parents sometimes gave her
“whoppings,” but denied receiving any marks or injuries.
Gresbach asked Alexis to pull down her tights and lift
up her dress, and Alexis did so. Gresbach examined her
legs for any injuries, and found none. Gresbach finished
the interviews and left the school.
Gresbach later spoke with the children’s mother, who
was very upset about what had happened at the school.
The Bureau made attempts to meet with the parents and
step-parents of Ian and Alexis, but the meetings never
occurred. Because no injuries were observed on the chil-
dren, the Bureau eventually closed the case.
On June 15, 2005, Plaintiffs (individually and on behalf
of their minor children, Alexis and Ian) sued Gresbach,
individually and in her official capacity, and Denise
Revels Robinson (the Bureau’s director) and Helene
Nelson (the Bureau’s secretary) in their official capacities.
Plaintiffs alleged that the defendants (1) subjected each
child to an unreasonable search and seizure at their
private school, in violation of the Fourth Amendment;
(2) violated all of the Plaintiffs’ rights to familial rela-
tions under the Fourteenth Amendment; and (3) vio-
lated all of the Plaintiffs’s rights to procedural due pro-
cess under the Fourteenth Amendment. Plaintiffs also
No. 07-1756 7
challenged the constitutionality of Wis. Stat. § 48.981(3)(c)1
as applied, sought an injunction against defendants to
prohibit enforcement of the statute in a manner incon-
sistent with Plaintiffs’ constitutional rights and to direct
defendants to amend their procedures and personnel
training, and requested a declaration that the last sen-
tence of § 48.981(3)(c)1 was unconstitutional. The defen-
dants responded that their conduct did not violate any
clearly established constitutional rights, and that there-
fore they were protected by qualified immunity. Both
parties moved for summary judgment.
On March 19, 2007, the district court granted partial
summary judgment in favor of the Plaintiffs, finding that
Gresbach violated the children’s Fourth Amendment
rights to be free from unreasonable searches and seizures.
The court held that while Gresbach obtained voluntary
consent from Reetz to conduct interviews of the chil-
dren, Gresbach did not have consent to conduct the
searches of the children’s bodies, thus violating their
rights to be free from unreasonable searches. The court
further found that those rights were clearly established at
the time of the alleged violation under Heck, in that a
reasonable child welfare worker would have known
that she lacked authority to conduct such a search. Accord-
ingly, the court denied Gresbach’s motion for sum-
mary judgment under qualified immunity.2
2
The district court dismissed all of Plaintiffs’ claims for
equitable relief, which included all claims against Robinson
and Nelson, as well as supplemental state law claims—none of
which are issues before us today. The court further denied
defendants’ motion for summary judgment on Plaintiffs’ due
(continued...)
8 No. 07-1756
III.
We review a district court’s denial of summary judg-
ment on qualified immunity grounds de novo. Sallenger v.
Oakes, 473 F.3d 731, 739 (7th Cir. 2007). We will affirm
the district court’s judgment if we find that a plaintiff
“present[ed] a version of the facts that is supported by
the evidence and under which defendants would not be
entitled to qualified immunity.” Borello v. Allison, 446 F.3d
742, 746 (7th Cir. 2006) (citation omitted). Under the
qualified immunity analysis, an official performing dis-
cretionary functions is immune from suit if her “conduct
could reasonably have been thought consistent with the
rights she is alleged to have violated.” Id. (internal quota-
tions omitted).
When evaluating a qualified immunity claim, we
must first decide whether, taken in the light most favor-
able to the plaintiffs, the facts show that the official’s
conduct violated a constitutional right. Finkel v. Cruppenink,
326 F.3d 903, 906 (7th Cir. 2003) (citing Saucier v. Katz, 533
U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)). “Only
if the answer is affirmative does the court inquire
whether the official enjoys qualified immunity.” Hosty v.
Carter, 412 F.3d 731, 733 (7th Cir. 2005). If a constitu-
tional violation could be made out on a favorable view
of the parties’ submissions, the next step is to ask whether
the right was “clearly established.” Id. To be “clearly
established,” the contours of the right must be suf-
ficiently clear that a reasonable official would under-
2
(...continued)
process claims without prejudice, and granted a stay, pending
this appeal.
No. 07-1756 9
stand that what she is doing violates that right. Landstrom
v. Illinois Dept. of Children and Family Services, 892 F.2d 670,
675 (7th Cir. 1990) (quoting Anderson v. Creighton, 483 U.S.
635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1986)). If the
right was “clearly established,” the official is not entitled
to qualified immunity from suit.
A. Violation of a Constitutional Right
Our threshold inquiry is whether Gresbach violated Ian
and Alexis’s Fourth Amendment rights to be free from
unreasonable searches. The Fourth Amendment, as
applied to the states through the Fourteenth Amendment,
protects individuals against unreasonable searches and
seizures of their persons, homes, and effects, without a
warrant supported by probable cause. See U.S. Const.
amend. IV. The protections afforded by the Fourth Amend-
ment apply not only to the activities of criminal au-
thorities, but civil authorities as well, New Jersey v. T.L.O.,
469 U.S. 325, 335, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985),
including child welfare workers. Heck, 327 F.3d at 509;
Daryl H. v. Coler, 801 F.2d 893, 900 (7th Cir. 1986); see also
Brokaw v. Mercer County, 235 F.3d 1000, 1010 n.4 (7th
Cir. 2000) (finding that the Fourth Amendment protects
students from unreasonable searches and seizures by
public school officials); Jones v. Hunt, 410 F.3d 1221, 1225
(10th Cir. 2005) (“There is no ‘social worker’ exception to
the Fourth Amendment.”) (citation omitted); Tenenbaum v.
Williams, 193 F.3d 581, 606 (2d. Cir 1999) (holding the
Fourth Amendment doctrine applies to searches and
seizures made in the context of child abuse investigations).
First we determine whether Gresbach’s conduct consti-
tuted a “search” within the meaning of the Fourth Amend-
10 No. 07-1756
ment. “When the Fourth Amendment was ratified, as
now, to ‘search’ meant ‘to look over or through for the
purpose of finding something; to explore; to examine by
inspection. . . .’ ” Heck, 327 F.3d at 510 (quoting Kyllo v.
United States, 533 U.S. 27, 33 n.1, 121 S. Ct. 2038, 150
L. Ed. 2d 94 (2001)); see Johnson v. Phelan, 69 F.3d 144, 145
(7th Cir. 1995) (holding that observation of unclothed
bodies is a form of a search under the Fourth Amendment).
Within the context of child abuse investigations, physical
examinations conducted by child welfare caseworkers,
that include visual examinations of portions of a child’s
body which are normally covered by clothing, implicate
Fourth Amendment concerns, and are within the scope
of searches under the amendment. Daryl H., 801 F.2d at
899-900. Thus, the visual observations of Ian’s stomach
and Alexis’s legs by Gresbach to look for signs of abuse
must be searches under the scope of the Fourth Amend-
ment.
Of course, the Fourth Amendment prohibits only those
searches that are unreasonable. See Vernonia School Dist. 47J
v. Acton, 515 U.S. 646, 652, 115 S. Ct. 2386, 132 L. Ed. 2d 564
(1995) (“As the text of the Fourth Amendment indicates,
the ultimate measure of the constitutionality of a gov-
ernmental search is reasonableness.”); Stanley v. Henson,
337 F.3d 961, 964 (7th Cir. 2003) (“Included within the
Fourth Amendment’s protection is the right to be free from
unreasonable searches of one’s unclothed body.”). To
determine reasonableness under the Fourth Amendment,
we balance the degree of the intrusion on the individual’s
privacy interests against the government’s need for the
search. Shell v. United States, 448 F.3d 951, 956 (7th Cir.
2006). “[W]hether a search is ‘reasonable,’ in the con-
stitutional sense, will vary according to the context of the
No. 07-1756 11
search.” Daryl H., 801 F.2d at 900. Gresbach’s searches of
the children’s bodies took place on private property, and
Heck made clear that a warrantless search conducted on
private property is presumptively unreasonable, whether
the government’s motivation is to investigate violations
of criminal laws or breaches of other statutory standards,
so long as the person has a reasonable expectation of
privacy in the premises on which the search took place.
Heck, 327 F.3d at 511 (citations omitted).
A reasonable expectation of privacy is present for
Fourth Amendment purposes when (1) one exhibits an
actual or subjective expectation of privacy, and (2) that
expectation is one that society is prepared to recognize as
reasonable. United States v. Amaral-Estrada, 509 F.3d 820,
826 (7th Cir. 2007). Even a limited search of a person is
a substantial invasion of privacy. “A search of a child’s
person or of a closed purse or other bag carried on her
person . . . is undoubtedly a severe violation of subjec-
tive expectation of privacy.” Daryl H., 801 F.2d at 900
(quoting T.L.O., 469 U.S. at 330, 105 S. Ct. 733). However,
it is unnecessary to show a subjective expectation of
privacy in instances of searches or seizures of young
children—it is more appropriate to consider whether
the parents manifested a subjective expectation of privacy
in the premises within which the search took place. Heck,
327 F.3d at 512. Private schools, by their very operation,
exhibit a subjective expectation of privacy in their pre-
mises. Id. at 511. The Plaintiffs manifested a subjec-
tive expectation of privacy by placing their children in
Good Hope Academy, and entrusting their children to the
care of the school’s officials in loco parentis. See id.
Moreover, an expectation of privacy is objectively
reasonable where parents who place their children in
12 No. 07-1756
private schools expect that the parents’ express delega-
tion of parental authority to school officials will be both
acknowledged and respected by government actors. Heck,
327 F.3d at 512. We find that Plaintiffs had a legitimate
expectation of privacy at Good Hope, and therefore the
searches of the children’s bodies to investigate child
abuse were presumptively unreasonable, unless they
fall within an exception to the warrant requirement of
the Fourth Amendment. See id. at 511.
Gresbach argues that it is objectively reasonable under
the Fourth Amendment for a child welfare agent to
visually inspect these areas of a child’s body for injuries
after receiving general consent from the child’s private
school principal to investigate child abuse. An estab-
lished exception to the warrant requirement is a search
conducted pursuant to consent. Schneckloth v. Bustamonte,
412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973);
United States v. Moore, 375 F.3d 580, 585 (7th Cir. 2004).
We are aware that this exception is grudgingly granted
because “the privacy interests protected by the Fourth
Amendment are to be jealously guarded.” Heck, 327 F.3d
at 513 (quoting Wilson v. Health & Hosp. Corp. of Marion
County, 620 F.2d 1201, 1209 (7th Cir. 1980)). A con-
sensual search is manifestly reasonable under the
Fourth Amendment as long as it remains within the
scope of consent. See Florida v. Jimeno, 500 U.S. 248, 251,
111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991). The scope of con-
sent is “limited by the breadth of actual consent, and
whether the search remained within the boundaries of
the consent is a question of fact to be determined from
the totality of all the circumstances.” United States v. Long,
425 F.3d 482, 486 (7th Cir. 2005) (citation omitted). “In
determining the scope of a defendant’s consent, we
No. 07-1756 13
apply an objective standard: ‘what would the typical
reasonable person have understood by the exchange
between the offic[ial] and the [consentor]?’ ” Id. (quoting
United States v. Raney, 342 F.3d 551, 556 (7th Cir. 2003)).
Applied to the case sub judice, the inquiry is whether
it was reasonable for Gresbach to believe that Reetz’s
consent to interview the children included consent to
conduct a search of the children’s bodies. We find that
it was not. Based on Gresbach’s representations that
she needed to “see the children” to investigate a child
abuse allegation, and that Reetz need not be present for
the interview, Reetz allowed Gresbach to speak to the
children privately in order to obtain their statements
about an allegation of child abuse. A reasonable person
would not have interpreted this to mean that Reetz au-
thorized Gresbach to search the children’s bodies. It is
undisputed that Gresbach did not ask Reetz for per-
mission to search the children for injuries. Gresbach
argues that Reetz’s “general consent” to interview in-
cluded the consent to inspect the children’s bodies, but
she cites to no supporting relevant authority, and we are
unaware of any case under Fourth Amendment juris-
prudence that proscribes this notion.
In some instances, the line implicating Fourth Amend-
ment concerns is blurred when it applies to the govern-
ment and child abuse investigations. See Heck, 327 F.3d
at 514 (acknowledging that there are circumstances in
which the law of warrant and probable cause does not
work effectively in the child removal or child examina-
tion context); Landstrom, 892 F.2d at 676 (holding that
a search or seizure of a child by a state social worker
must be “reasonable,” but that does not necessarily re-
quire probable cause or a warrant); Daryl H., 801 F.2d at
14 No. 07-1756
902 (stating that the government must fulfill its responsi-
bility to protect the young under difficult circumstances).
Recognizing the sensitive nature of these types of in-
vestigations, officials may make a search or seizure
under exigent circumstances, where they have reason to
believe life or limb is in jeopardy.3 See Brokaw, 235 F.3d at
1010. We do not exempt child welfare workers from
adhering to basic Fourth Amendment principles under
non-exigent circumstances—to do so would be impru-
dent. In these circumstances, caseworkers can take pre-
liminary steps short of searches, such as interviewing
the child and a parent, or obtaining a warrant either
personally to conduct a search or to have a doctor per-
form the search. See Roe v. Texas Dept. of Protective and
Regulatory Services, 299 F.3d 395, 407 (5th Cir. 2002).
Gresbach advocates the position that a warrant is for
police officers, not caseworkers, and that the probable
cause and warrant requirement are more appropriately
geared towards the investigation of the abusers, not the
victims. We disagree. The Fourth Amendment preserves
the right to be free from warrantless searches by the
government, without limiting that right to one type of
official. See Calabretta v. Floyd, 189 F.3d 808, 813-14 (9th Cir.
3
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 require-
ment of the Fourth Amendment. Heck, 327 F.3d at 517 n. 20.
While it seems unlikely from the record that Gresbach could
have reasonably suspected the children’s safety was at risk,
she does not raise this issue on appeal.
No. 07-1756 15
1999). The requirement that a child welfare worker ob-
tain the equivalent of a warrant before conducting a
search (absent exigent circumstances) can effectively
protect children, without having to excuse workers
from obtaining advance judicial approval of searches
and seizures. Heck, 327 F.3d at 514; see Tenenbaum, 193
F.3d at 604. Additionally, nothing in the record sup-
ports Gresbach’s belief that obtaining a warrant would
have delayed and thus compromised her investigation.
Because Gresbach conducted a search of each child on
private property without consent, a warrant or probable
cause, or exigent circumstances, Ian and Alexis’s Fourth
Amendment rights to be free from unreasonable searches
were violated.
B. Clearly Established Law
Despite her participation in this constitutionally imper-
missible conduct, Gresbach may nevertheless be shielded
from liability for civil damages if Plaintiffs fail to meet
their burden of proving that Gresbach’s actions violated
clearly established statutory or constitutional rights of
which a reasonable person would have known. Hope v.
Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L. Ed. 2d 666
(2002) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S. Ct. 2727, 73 L. Ed. 2d 396 (1982)); Sonnleitner v. York, 304
F.3d 704, 716-17 (7th Cir. 2002). In determining whether
a defendant’s alleged actions violated a clearly estab-
lished right, courts may properly take into account any
information the defendant should have reasonably ob-
tained. Jones v. Wilhelm, 425 F.3d 455, 461 (7th Cir. 2005).
Moreover, the salient question is whether the law at the
time of the disputed conduct gave defendants fair
16 No. 07-1756
warning that their alleged treatment of plaintiffs was
unconstitutional. Id.; see also Creighton, 483 U.S. at 640, 107
S. Ct. 3034 (“This is not to say that an official action is
protected by qualified immunity unless the very action
in question has previously been held unlawful, . . . but it
is to say that in the light of pre-existing law the unlaw-
fulness must be apparent.”) (internal citations omitted).
As we stated above, the structures of the Fourth Amend-
ment apply to social workers. Heck, 327 F.3d at 511. Plain-
tiffs argue that our decision in Heck precludes Gresbach’s
understanding of her rights to conduct a child abuse
investigation under § 48.981(3)(c)1, and we agree. “[T]o
the extent § 48.981(3)(c)1 authorizes government officials
to conduct an investigation of child abuse on private
property without a warrant or probable cause, consent, or
exigent circumstances, the statute is unconstitutional.” Id.
at 515-16. Considering the facts above in the light most
favorable to the Plaintiffs, we find that a reasonable
child welfare worker would have known that con-
ducting 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 constitu-
tional right to be free from unreasonable searches.
Gresbach argues that Heck is distinguishable from this
case, because Heck did not address the issue of scope of
consent in the context of child abuse investigations.
However, a general constitutional rule already identi-
fied may apply with obvious clarity to the specific con-
duct in question, even though the very action in ques-
tion has not previously been held unlawful. Hope, 536
U.S. at 741, 122 S. Ct. 2508 (quoting Lanier, 520 U.S. 259, 270-
71, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997)); see also Jones, 410
No. 07-1756 17
F.3d at 1230 (holding that officials committing outrageous,
yet sui generis, constitutional violations ought not to
shield their behavior behind qualified immunity simply
because another official has not previously had the au-
dacity to commit a similar transgression). Officials can
still be on notice that their conduct violates established
law even in novel factual circumstances. Hope, 536 U.S. at
741, 122 S. Ct. 2508. In this case, it was clearly estab-
lished that the scope of consent to interview does not
extend to a search of an individual’s body under Jimeno
and its progeny.
Gresbach further argues (as the caseworkers did in
Heck) that we should apply the “reasonableness” frame-
work we laid out in Daryl H., where we held that the
constitutionality of a visual inspection of a child’s body
who may be a victim of child abuse should be evaluated
under the reasonableness test of the Fourth Amendment.
Daryl H., 892 F.2d at 902 (“[U]nder the circumstances of
that particular search in a public school, we could not say
that a visual inspection of a child’s body can only be
performed if a social worker has probable cause or ob-
tained a warrant.”). We declined to accept this argument
in Heck, and we do the same here. The key difference
between the searches in Daryl H. and in Heck was that the
search in Daryl H. took place on public school grounds
with the consent of public school officials, whereas in
Heck, as here, the search took place on private property.
Heck, 327 F.3d at 514. Heck found that Daryl H. stood for
the proposition that a lower standard of scrutiny applies
to searches and seizures conducted by government offi-
cials on public school property. Id. (citing Brokaw, 235
F.3d at 1011). This case falls squarely within the scope of
Heck, as the search took place at a private school.
18 No. 07-1756
While we recognize that “child welfare caseworkers are
often called upon to make difficult decisions without the
benefit of extended deliberation” in order to prevent “the
most vulnerable members of society, children of tender
years, from being physically abused,” Heck, 327 F.3d at
525, we do not believe that requiring a child welfare
caseworker to act in accordance with basic Fourth Amend-
ment principles is an undue burden on the child welfare
system, particularly when it is necessary to conduct an
examination of a child’s body, which is undoubtedly
“frightening, humiliating, and intrusive” to the child. At
the time Gresbach conducted the searches at Good Hope
in 2004, there was a clearly established doctrine as to
what actions a Bureau caseworker must take when con-
ducting a child abuse investigation at a private school.
Today we reiterate Heck’s definitive holding, along the
lines of the Fourth Amendment principles outlined above,
that it is a violation of a child’s constitutional rights to
conduct a search of a child at a private school without a
warrant or probable cause, consent, or exigent circum-
stances.
CONCLUSION
For the foregoing reasons, the judgment of the district
court is A FFIRMED.
USCA-02-C-0072—5-19-08