Greene v. Camreta ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SARAH GREENE, personally and as 
next friend for S.G., a minor, and
K.G., a minor,
Plaintiff-Appellant No. 06-35333
v.
 D.C. No.
CV-05-06047-AA
BOB CAMRETA; DESCHUTES COUNTY;
JAMES ALFORD, Deschutes County OPINION
Deputy Sheriff; BEND LAPINE
SCHOOL DISTRICT; TERRY FRIESEN,
Defendants-Appellees

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted
March 6, 2008—Portland, Oregon
Filed December 10, 2009
Before: Marsha S. Berzon and Carlos T. Bea, Circuit Judges,
and Philip Gutierrez,* District Judge.
Opinion by Judge Berzon
*The Honorable Philip Gutierrez, United States District Court for the
Central District of California, sitting by designation.
16291
16298 GREENE v. CAMRETA
COUNSEL
Mikel R. Miller, Law Office of Mikel R. Miller, Bend, Ore-
gon, for the plaintiff-appellant.
Hardy Myers, Attorney General; Mary H. Williams, Solicitor
General; David B. Thompson, Senior Assistant Attorney Gen-
eral; for Bob Camreta, Defendant-Appellee. Janet M. Schroer,
Hoffman, Hart & Wagner, LLP, for Terry Friesen and Bend
LaPine School District, defendants-appellees. Christopher
Bell and Mark P. Amberg, Deschutes County Legal Counsel,
GREENE v. CAMRETA 16299
for Deputy Sheriff James Alford and Deschutes County,
defendants-appellees.
OPINION
BERZON, Circuit Judge:
We are asked to decide whether the actions of a child pro-
tective services caseworker and deputy sheriff, understand-
ably concerned for the well-being of two young girls,
exceeded the bounds of the constitution. Specifically, the
girls’ mother, Sarah Greene, alleges, on behalf of S.G., one of
her children, that the caseworker, Bob Camreta, and deputy
sheriff, James Alford, violated the Fourth Amendment when
they seized and interrogated S.G. in a private office at her
school for two hours without a warrant, probable cause, or
parental consent. Sarah also argues that Camreta’s subsequent
actions, both in securing a court order removing the girls from
her custody and in subjecting the girls to intrusive sexual
abuse examinations outside her presence, violated the
Greenes’ familial rights under the Due Process Clause of the
Fourteenth Amendment.
As this brief description makes clear, resolving the consti-
tutional claims at issue in this case involves a delicate balanc-
ing of competing interests. On one hand, society has a
compelling interest in protecting its most vulnerable members
from abuse within their home. The number of child abuse
allegations is staggering: In 2007, for example, state and local
agencies investigated 3.2 million reports of child abuse or
neglect. See U.S. DEPARTMENT OF HEALTH AND HUMAN
SERVICES, ADMINISTRATION ON CHILDREN, YOUTH AND FAMILIES.
CHILD MALTREATMENT 2007 (2009), available at
http://www.acf.hhs.gov/programs/cb/pubs/cm07/
chapter2.htm.
16300 GREENE v. CAMRETA
On the other hand, parents have an exceedingly strong
interest in directing the upbringing of their children, as well
as in protecting both themselves and their children from the
embarrassment and social stigmatization attached to child
abuse investigations. Of the 3.6 million investigations con-
ducted by state and local agencies in 2006, only about a quar-
ter concluded that the children were indeed victims of abuse.
See id. This discrepancy creates the risk 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.” 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, 417 (2005).
With these competing considerations in mind, we turn first
to Sarah’s constitutional claims. As we explain below, we
hold that the investigation conducted by Camreta and Alford
and the removal and examination instigated by Camreta all
violated Sarah and the girls’ constitutional rights. As to the
investigation, however, we conclude that Camreta and Alford
cannot be liable in damages because they have qualified
immunity.
I. FACTS & PROCEDURAL HISTORY
A. FACTUAL BACKGROUND
Nimrod Greene (“Nimrod”) was arrested on February 12,
2003, for suspected sexual abuse of F.S., a seven-year old
boy. Nimrod’s arrest was based on statements made by F.S.
to his parents and similar statements later made to investiga-
tors, all alleging that Nimrod had touched F.S.’s penis over
his jeans when Nimrod was drunk in F.S.’s parents’ home.
F.S. reported that Nimrod had done this to him once before.
In addition, F.S.’s mother told officers that Sarah, Nimrod’s
wife, “had talked to her about how she doesn’t like the way
Nimrod makes [their daughters, S.G. and K.G.,] sleep in his
GREENE v. CAMRETA 16301
bed when he is intoxicated and she doesn’t like the way he
acts when they are sitting on his lap.” Along the same lines,
F.S.’s father told officers that:
Nimrod himself has made some type of prior com-
ment about how his wife Sarah was accusing him of
molesting his daughters and Sarah reportedly doesn’t
like the girls laying in bed with Nimrod when he has
been drinking. [F.S.’s father] said neither he nor his
wife [ ] have any direct knowledge of abuse at the
Greene home, but this type of comment and/or accu-
sation has come in several ways from Sarah and
Nimrod.
The Oregon Department of Human Services (“DHS”) heard
of these allegations about a week after Nimrod’s arrest. The
next day, Bob Camreta, a caseworker with DHS, learned that
Nimrod had been released and was having unsupervised con-
tact with his daughters. Camreta was assigned to assess the
girls’ safety. Based on his training and experience as a DHS
caseworker, Camreta was “aware that child sex offenders
often act on impulse and often direct those impulses against
their own children, among others. For this reason, [he was]
concerned about the safety and well-being of Nimrod
Greene’s own small children.”
Three days after hearing of Nimrod’s release, Camreta vis-
ited S.G.’s elementary school to interview her. Camreta
thought the school would be a good place for the interview
because it is a place where children feel safe and would allow
him “to conduct the interview away from the potential influ-
ence of suspects, including parents.” According to Camreta,
“[i]nterviews of this nature, on school premises, are a regular
part of [child protective services] practice and are consistent
with DHS rules and training.” Sarah was not informed of, nor
did she consent to, the interview of her daughter. Camreta
also did not obtain a warrant or other court order before the
interview.
16302 GREENE v. CAMRETA
Throughout the interview Camreta was accompanied by
Deputy Sheriff Alford. Upon arriving at the school, Camreta
told school officials that he and Alford were there to interview
S.G. and requested use of a private office. Terry Friesen, a
counselor at the elementary school, visited S.G. in her class-
room and told the child that someone was there to talk with
her. Friesen took S.G. to the room where Camreta and Alford
were waiting and left.
Camreta interviewed S.G. for two hours in Alford’s pres-
ence.1 The interview was not recorded. Alford, who had a vis-
ible firearm, did not ask any questions during the interview.
According to Camreta, S.G. told him:
• “ ‘When he drinks he tries to do it,’ meaning, ‘he
tries to touch me somewhere in my private parts.
Then I go to my room and lock the door.’ ”
• The last incident occurred “ ‘just last week’ on
the outside of her clothing and she had tried to
tell him to stop.”
• “The touching of private parts started when she
was three.”
• “The touching involved the chest and buttock
areas, outside of clothing. Her father sometimes
‘mumbled’ during the touching.”
• “Her mother knew about the touching . . .” and
it was “ ‘one of our secrets’ with her little sister,
K.G.’ ”
1
The parties dispute the length of the interview. Both Camreta and
Alford assert that the interview lasted about an hour, while S.G. maintains
that it lasted two hours. Because this is a motion for summary judgment,
we view the facts in the light most favorable to the non-moving party and
so assume that the interview lasted two hours.
GREENE v. CAMRETA 16303
Camreta maintains that he “certainly did not coerce [S.G.] or
try to induce her into making any accusations.”
In contrast, S.G. recounted the interview as follows:
[Camreta] ask[ed] me if sometimes my dad touched
me all over my body. I thought back to the times
when my dad hugged me, kissed me, gave me
piggy-back rides, rides on his shoulders and horsey
rides. I remembered all of my dad’s touches
with fondness. He was a very loving father, and I
loved hugging and kissing him. These were the
touches that I was referring to when I said my dad
touched me. So I told the man, yes, my dad touches
me all over. And then the man started asking me
if sometimes those were bad touches, and I said, no
they weren’t, but he kept asking me over and over
again, and I would say, no, I don’t think my dad
touched me in a bad way. He would say, “No, that’s
not it,” and then ask me the same question
again. For over an hour, Bob Camreta kept asking
me the same questions, just in different ways, trying
to get me to change my answers. Finally, I just
started saying yes to whatever he said. And then
after a while, he said I could go. I believe I was
there for two hours.
According to Sarah, later that night S.G. told her that when
Camreta asked her what bad things her father had done, she
initially told him “nothing,” but that Camreta kept asking
questions and confused her. S.G. stated that she was “scared”
when Friesen left her with Camreta and Alford, although she
did not ask to call home, did not ask to have Friesen or her
parents with her, and did not cry. With respect to Alford’s
presence, S.G. stated that she is generally comfortable around
police officers, that Alford was nice to her and did not do any-
thing to scare her, and that she trusted him.
16304 GREENE v. CAMRETA
Based on the interview and other information he had gath-
ered, Camreta believed that Nimrod had sexually abused S.G.
As a result, Camreta and Alford visited the Greenes’ home
and spoke with Sarah and Nimrod. Both parents denied any
sexual abuse but agreed to a safety plan whereby, pending an
investigation, Nimrod would not have unsupervised contact
with his two daughters, S.G. and K.G. The safety plan also
provided that S.G. would undergo a sexual abuse examination
at the KIDS Intervention & Diagnostic Service Center (“the
KIDS Center”), which specializes in child sexual abuse. Cam-
reta advised the parents not to speak with their children about
the allegations of abuse.
On March 6, 2003, Nimrod was indicted on six counts of
felony sexual assault of F.S. and S.G. He was shortly released
but ordered not to have any contact with his daughters. That
same day counsel for the Greenes informed Camreta that he
had been retained to represent the family, that all family
members had been advised of their Fifth Amendment right to
remain silent and had chosen to invoke that right, and that no
one from DHS had permission to meet with a member of the
family without counsel present.
The next day, Camreta went to the Greene home to inform
Sarah of the court’s no-contact order and assess whether
Sarah would comply with it. Sarah indicated that she had
hired an attorney to defend her husband, that the allegations
against him were lies, and that she had talked to S.G. about
the allegations of abuse.
Sarah’s and Camreta’s accounts of the conversation
between them on March 7 diverge in two respects. First, with
regard to the no-contact order, Sarah stated that she told Cam-
reta:
[W]hile it would be significantly detrimental to [her]
family finances, there was a place [her] husband
could stay so that he would have no contact with
GREENE v. CAMRETA 16305
[her] children. [She] specifically informed Mr. Cam-
reta that [she] intended to abide by [the] Safety Plan
and that [she] would take the children to the KIDS
Center.
In contrast, Camreta maintains that Sarah told him “that she
had no extra resources for Nimrod to obtain alternative hous-
ing, which [Camreta] understood to mean [Nimrod] would be
returning home.”
Second, Sarah stated she told Camreta that she “did want
[her] children interviewed at the KIDS Center” and “would
not interfere with them being interviewed,” although she
“wished to attend [their] medical examination[s], to be there
to help them through the emotionally traumatic event.” Cam-
reta maintains that “[Sarah] refused to sign an informational
release form to facilitate the pending sex abuse examination
of her daughter at the KIDS Center.”
Following the March 7 conversation, Camreta was con-
cerned that DHS would not be able to ensure the safety of the
children because Sarah denied Nimrod’s abuse and was
unwilling to place her children’s interests over those of her
husband. Convinced that he had a duty to take protective
action, Camreta decided to seek an order removing both chil-
dren from Sarah’s home.
On March 11, 2003, Camreta petitioned the Deschutes
County Juvenile Court for an order removing S.G. and K.G.
from the Greene home and placing them in foster care. In an
affidavit filed with the Juvenile Court, Camreta represented
that “[Sarah] indicated the family had no alternate resources
for either the children or Nimrod to ensure there would be no
contact,” and that she “refused to sign an information release
form for a Kid’s Center evaluation for the girls.” Citing the
letter from the Greenes’ counsel, Camreta stated that
“[w]ithout access to the family members[ ] and the home
DHS is unable to monitor and ensure the safety of the chil-
16306 GREENE v. CAMRETA
dren and unable to ensure that the children receive forensic
interviews and exams to determine the health and welfare of
S.G. and K.G., and to conclude the investigation.”
After reviewing Camreta’s petition and affidavit, the Juve-
nile Court issued a protective custody order authorizing the
removal of S.G. and K.G. from the Greene home. DHS took
protective custody of S.G. and K.G. the same day.
The next day, the Juvenile Court held an emergency shelter
hearing, which both Sarah and Nimrod attended with counsel.2
At the conclusion of the hearing, the Juvenile Court placed
the children in DHS’s temporary custody, scheduled KIDS
Center assessments for both girls, ordered that the children be
made available to participate in those assessments, prohibited
Sarah from discussing the case with the children, ordered
Nimrod not to have any contact with the children, and
directed DHS to return the children to Sarah’s care “as soon
as [a] safety plan is in place and DHS concerns have been
addressed.”
DHS had custody of the children from March 11 through
March 31, 2003. The two girls lived in a local foster home for
those weeks. Sarah’s contact with her daughters was limited
to pre-arranged, supervised visits.
K.G. was interviewed and examined at the KIDS Center on
March 20, 2003, and S.G. was interviewed and examined on
March 31, 2003. On the day of K.G.’s examination, Sarah
2
The district court characterized the shelter hearing as “an opportunity
[for Sarah], with counsel, . . . to challenge the evidence presented in sup-
port of the court order.” The record, however, contains virtually no infor-
mation about the shelter hearing, other than the facts that both parents
attended with counsel, that counsel was appointed for the children, and
that the hearing took one hour and fifteen minutes. The record does not
indicate whether the Greenes presented evidence at the emergency shelter
hearing to rebut Camreta’s assertion that Nimrod was unable to comply
with the no-contact order.
GREENE v. CAMRETA 16307
went to the KIDS Center “fully intend[ing] to cooperate with
the KIDS Center and lend whatever assistance and support
[she] could to [her] daughter.” According to her affidavit,
however, she was prevented from doing so when KIDS Cen-
ter staff, acting “under orders of Bob Camreta,” forced her “to
leave the premises.” Sarah was also excluded from the prem-
ises during S.G.’s examination.
At her KIDS Center interview, S.G. said that her earlier
statements to Camreta concerning Nimrod were not true and
that he had not abused her. During the examination, S.G. was
told to undress, and the examiners “looked all over [her]
body,” “took pictures of [her] private parts,” and used a mag-
nifying glass scope to visually examine her. In her deposition,
S.G. stated that a doctor asked her to let her know if she felt
uncomfortable and told her that the examination would stop
if she felt uncomfortable, but that she never told the doctor
she felt uncomfortable or asked to stop the interview. She also
testified that she felt fine after the examination was over and
did not feel sick or upset. In her affidavit, however, S.G.
stated, “I wish my mom could have been there. I felt very
scared and alone . . . . [T]hey looked all over my body, and
it was very uncomfortable.”
Ultimately, the KIDS Center examiners could not deter-
mine whether S.G. and K.G. had been sexually abused. Even
so, they “remained concerned for [S.G.] especially as there
appears to be a high likelihood that S.G. may have recanted
her statements about her father touching her privates in an
attempt to expedite her return home.” Despite these concerns,
the Juvenile Court, at DHS’s request, ordered the children
returned to their mother’s custody on March 31, 2003.
Nimrod eventually stood trial on charges of sexual abuse
but the jury did not reach a verdict. Faced with a retrial, Nim-
16308 GREENE v. CAMRETA
rod accepted an Alford plea with respect to the alleged abuse
of F.S.3 The charges concerning S.G. were dismissed.
B. PROCEDURAL HISTORY
Sarah filed this action on behalf of herself, S.G., and K.G.
under 42 U.S.C. § 1983, alleging that: (1) Camreta and
Alford’s in-school seizure of S.G. without a warrant, parental
consent, probable cause, or exigent circumstances violated the
Fourth Amendment; (2) Camreta violated the Greenes’ rights
under the Fourteenth Amendment by intentionally presenting
false information to the Juvenile Court to obtain an order to
remove the children from Sarah’s custody and by removing
the children from Sarah’s care; and (3) Camreta and the KIDS
Center violated the Greenes’ Fourteenth Amendment rights
by unreasonably interfering with Sarah’s right to be with her
children and with the children’s right to have their mother
present during an intrusive medical examination.4
The district court granted summary judgment to all defen-
3
A defendant who enters an Alford plea maintains his innocence but
admits that sufficient evidence exists from which a judge or jury could
find him guilty. See North Carolina v. Alford, 400 U.S. 25 (1970).
4
There were other defendants, claims, and requests for relief in the
Greenes’ complaint, not pertinent to this appeal.
In particular, the complaint alleged custom and policy claims against
Bend LaPine School District and Deschutes County with regard to the sei-
zure of S.G. The district court rejected those claims, and the Greenes’
opening brief does not challenge that holding. Any challenge to the dis-
missal of the claims against the School District and the County has there-
fore been waived, and the dismissal stands. See Ind. Towers of Wash. v.
Washington, 350 F.3d 925, 929 (9th Cir. 2003).
The Greenes also brought a claim against Friesen, the school guidance
counselor, for her role in removing S.G. from class to conduct the inter-
view. Friesen was sued only in her official capacity. Claims against
Friesen in her official capacity are treated as if they had been brought
directly against the school district, see Butler v. Elle, 281 F.3d 1014, 1026
n.9 (9th Cir. 2002), so the dismissal of the suit against Friesen also stands.
GREENE v. CAMRETA 16309
dants. As to the in-school interrogation, the court held that
S.G. had been seized when she was taken from her classroom
and interviewed by Camreta and Alford but that the seizure
was “objectively reasonable under the facts and circumstances
of this case.” Moreover, even if the Greenes’ constitutional
rights had been violated, the district court held, Camreta and
Alford were entitled to qualified immunity because “no rea-
sonable school official, caseworker, or police officer would
have believed [their] actions violated the Fourth Amend-
ment.”
With respect to the removal of S.G. and K.G. from Sarah’s
custody and Sarah’s exclusion from their medical examina-
tions, the court held that there were no due process violations
because the girls were removed from Sarah’s custody pursu-
ant to a court order and Sarah was given an opportunity to be
heard at the custody hearing. The court also concluded that
(1) Camreta was, in any event, entitled to absolute quasi-
judicial immunity regarding the removal of the girls; and (2)
excluding Sarah from the examinations did not violate the
Fourteenth Amendment because Sarah did not have custody
at that time and the examinations conformed with Oregon
statutory and administrative law.
The Greenes timely appealed.
II. ANALYSIS
As this case is an appeal from the grant of summary judg-
ment to defendants, we will draw all reasonable inferences in
the Greenes’ favor. Defendants, as the moving parties, bear
the burden of production and persuasion. Anderson v. Liberty
Lobby, 477 U.S. 242, 255 (1986). We review the grant of
summary judgment de novo. See Blankenhorn v. City of
Orange, 485 F.3d 463, 470 (9th Cir. 2007).
A. SCHOOL INTERVIEW
Before proceeding to the merits of the school interview
issue, a note on our reasons for addressing this central consti-
16310 GREENE v. CAMRETA
tutional claim on the merits is in order. Ultimately, the ques-
tion in this case is whether the individual defendants may be
held liable in damages to the Greenes. The defendants main-
tain that even if they violated the Greenes’ constitutional
rights, they are entitled to qualified immunity and so not lia-
ble in damages.
[1] Before the Supreme Court’s recent decision in Pearson
v. Callahan, 129 S. Ct. 808 (2009), courts addressing an offi-
cial’s claim of qualified immunity were required to follow the
two-step sequential inquiry established in Saucier v. Katz, 533
U.S. 194 (2001), asking first whether the plaintiff alleged vio-
lation of a constitutional right and, second, whether that right
was clearly established at the time of the conduct at issue.
Pearson relieved courts of their obligation always to follow
this sequence, permitting “[t]he judges of the district courts
and the courts of appeal . . . to exercise their sound discretion
in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances
in the particular case at hand.” Pearson, 129 S. Ct. at 818.
[2] Although rigid adherence to the Saucier protocol is no
longer required, Pearson was also careful to note that the Sau-
cier’s two-step procedure is “often beneficial,” as it “pro-
motes the development of constitutional precedent.” Id. Such
is the case here, where the constitutional standards governing
the in-school seizure of a student who may have been abused
by her parents are of great importance. As will appear,
although other circuits have provided guidance to parents,
school officials, social workers, and law enforcement person-
nel on the issue, we have not. In a similar circumstance aris-
ing after Pearson, we addressed the constitutional issue on the
merits first. See Stoot v. City of Everett, 582 F.3d 910, 918 n.8
(9th Cir. 2009) (conducting the constitutional inquiry “where
we have not previously addressed whether a police officer
may rely solely on the statements of a very young victim of
alleged sexual abuse to establish probable cause to seize a
potential suspect.”) (emphasis altered). See also Kelsey v.
GREENE v. CAMRETA 16311
Country of Schoharie, 567 F.3d 54, 61 (2d Cir. 2009) (“The
development of constitutional precedent is especially impor-
tant here, where . . . this Court has not spoken on . . . the con-
stitutionality of clothing exchange procedures in jails.”); Okin
v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415,
430 n.9 (2d Cir. 2009) (finding it “necessary to articulate the
nature of the claimed violation” before determining whether
the right in question was clearly established).
[3] Moreover, the school interview issue does not present
a “kaleidoscopic set of facts . . . creat[ing] . . . a classic genu-
ine issue of material fact on the central issue” on which the
alleged constitutional violation turns, rendering a constitu-
tional determination too case-specific to aid in clarifying the
law for the future. Mueller v. Auker, 576 F.3d 979, 994 (9th
Cir. 2009). To the contrary, we consider the relatively
straightforward question whether an in-school seizure and
interrogation of a suspected child abuse victim is always per-
missible under the Fourth Amendment without probable cause
and a warrant or the equivalent of a warrant,5 as defendants
maintain. We therefore address both prongs of the qualified
immunity inquiry in this case, to provide guidance to those
charged with the difficult task of protecting child welfare
within the confines of the Fourth Amendment.
[4] With that background, we proceed to consider whether,
as the Greenes argue, the warrantless, in-school interview of
S.G. violated S.G.’s Fourth Amendment rights.6 The Fourth
Amendment guarantees individuals the right “to be secure in
their persons . . . against unreasonable searches and seizures
5
As discussed infra, Part II.A.2, we hold that in the child abuse investi-
gation context, a court order permitting the seizure of a child is the func-
tional equivalent of a warrant.
6
The Greenes have not argued that the in-school seizure of S.G. violated
Sarah’s familial rights under the Fourteenth Amendment, although they
have made such a claim with respect to the subsequent removal order and
physical examinations. See Santosky v. Kramer, 455 U.S. 745, 753-54
(1982).
16312 GREENE v. CAMRETA
. . .” by government officials. U.S. CONST. amend. IV. Cam-
reta and Alford do not contest the district court’s holding that
the two-hour interview of S.G. at her school was a seizure.
We agree with the district court, and with the ruling of the
Seventh Circuit in a very similar case, that it was. See Doe v.
Heck, 327 F.3d 492, 509 (7th Cir. 2003) (holding that student
removed from class to be questioned by a caseworker and a
uniformed police officer regarding alleged abuse had been
seized for Fourth Amendment purposes); id. at 510 n.15 (col-
lecting similar cases). The question before us is whether that
seizure was “unreasonable.”
[5] We have yet to address the principles governing the in-
school seizure of a suspected child abuse victim. We have,
however, previously held that the warrantless, non-emergency
search and seizure of an alleged victim of child sexual abuse
at her home violates the Fourth Amendment. See Calabretta
v. Floyd, 189 F.3d 808 (9th Cir. 1999). Calabretta does not
resolve the Fourth Amendment issue in this case but goes a
fair way towards doing so.
In Calabretta, a social worker received a tip from a neigh-
bor who claimed to have been awakened late at night by a
child screaming “No Daddy, no.” Id. at 810. Suspecting
abuse, the social worker, accompanied by a police officer, vis-
ited the home, entered without consent, and interviewed and
examined the children. Id. at 810-12. The family later brought
suit, alleging violation of their Fourth Amendment rights.
[6] The defendants in Calabretta maintained, primarily,
that the search and seizure at the family home was reasonable
because “any check on the welfare of children” triggered the
“exigent circumstance[s]” exception to the Fourth Amend-
ment’s warrant requirement. Id. at 811. They also came at the
problem another way, arguing that traditional Fourth Amend-
ment protections do not apply to child abuse investigations at
all, as such investigations constitute administrative searches
requiring neither probable cause nor a warrant. Id. at 812. We
GREENE v. CAMRETA 16313
rejected both arguments, holding both that traditional Fourth
Amendment protections apply to child abuse investigations
and that the family’s right to be free of warrantless searches
and seizures in their home, even within the context of a child
abuse investigation, was clearly established at the time of the
incident. See id. at 817. We have reaffirmed our holding in
Calabretta twice, noting that although the crime of child sex-
ual abuse “may be heinous . . . [this] does not provide cause
for the state to ignore the rights of the accused or any other
parties.” Wallis v. Spencer, 202 F.3d 1126, 1130 (9th Cir.
2000); see also Rogers v. County of San Joaquin, 487 F.3d
1288, 1291 (9th Cir. 2007).
Defendants insist that Calabretta and Wallis have nothing
to do with this case because S.G. was seized at school rather
than at home. Citing the Supreme Court’s decision in New
Jersey v. T.L.O., defendants argue that searches and seizures7
in public schools are subject to a special standard of reason-
ableness, whereby a search or seizure is “reasonable” if it was
“justified at its inception” and “reasonably related in scope to
the circumstances which justified the interference in the first
place.” 469 U.S. 325, 341 (1985), quoting Terry v. Ohio, 392
U.S. 1, 20 (1967). Defendants urge us to conclude, in other
words, that while seizing S.G. and interviewing her at home
for two hours would have been unreasonable absent probable
cause and a warrant or exigent circumstances, it was reason-
able to do a similarly lengthy interrogation in the same way
7
Although T.L.O., like many of the so-called “special needs” cases
listed infra note 9, involved a search rather than a seizure, courts have
applied the same standard to seizures of students at public schools as to
searches. See Jones v. Hunt, 410 F.3d 1221, 1228 (10th Cir. 2005) (citing
Edwards v. Rees, 883 F.2d 882, 844 (10th Cir. 1989)); Wofford v. Evans,
390 F.3d 318, 326 (4th Cir. 2004); Hassan v. Lubbock Indep. Sch. Dist.,
55 F.3d 1075, 1079 (5th Cir. 1995). Indeed, the standard enunciated in
T.L.O. was based on the “reasonableness” standard established in Terry v.
Ohio, 392 U.S. 1, 20 (1968), which involved a brief seizure for investiga-
tive purposes. We therefore draw on Fourth Amendment case law govern-
ing both searches and seizures throughout this opinion.
16314 GREENE v. CAMRETA
at S.G.’s school. We decline to adopt this distinction, for rea-
sons we now explain.
1. T.L.O. and the Fourth Amendment in Public
Schools
We begin by noting that, despite defendants’ heavy reliance
upon it, the Supreme Court’s decision in T.L.O. is at best tan-
gentially related to this case. T.L.O. addressed the claims of
a high school student whose purse was searched by an assis-
tant vice principal, without a warrant or probable cause, after
a teacher discovered two girls smoking in the school lavatory.
469 U.S. at 328. The Court held the search reasonable even
in the absence of a warrant or probable cause, explaining that
the warrant requirement was “unsuited to the school environ-
ment” because it “would unduly interfere with the mainte-
nance of the swift and informal disciplinary procedures
needed in the schools.” Id. at 340. The Court similarly noted
that the school setting required “some modification of the
level of suspicion” needed to justify a search of students, in
light of “the substantial need of teachers and administrators
for freedom to maintain order in the schools.” Id. at 340-41.
The Court therefore applied a special standard — “reason-
ableness under all the circumstances” — which “involves a
twofold inquiry: first, . . . whether the action was justified at
its inception; second, . . . whether the search as actually con-
ducted was reasonably related in scope to the circumstances
which justified the interference in the first place.” Id. at 341(internal citation and quotation omitted).
Defendants maintain that we must apply this standard
across-the-board to all searches and seizures in public
schools, but the language of T.L.O. itself indicates that it was
not meant to be read so broadly. The Court expressly noted,
for example, that it was addressing only searches “by a
teacher or other school official,” explaining that “[b]y focus-
ing attention on the question of reasonableness, the standard
will spare teachers and administrators the necessity of school-
GREENE v. CAMRETA 16315
ing themselves in the niceties of probable cause and permit
them to regulate their conduct according to the dictates of rea-
son and common sense.” Id. at 341, 343. The Court further
clarified that it was considering “only searches carried out by
school authorities acting alone and on their own authority,”
expressing “no opinion” on “the appropriate standard for
assessing the legality of searches conducted by school offi-
cials in conjunction with or at the behest of law enforcement
agencies.” Id. at 341 n.7.
[7] The Court recently affirmed the narrowness of T.L.O.,
characterizing it as “h[o]ld[ing] that for searches by school
officials a careful balancing of governmental and private
interests” requires a showing less than probable cause, and
therefore applying “a standard of reasonable suspicion to
determine the legality of a school administrator’s search of a
student.” Safford Unified Sch. Dist. v. Redding, 129 S.Ct.
2633, 2639 (2009) (internal citation and quotation omitted).8
See also Ferguson v. City of Charleston, 532 U.S. 67, 79 n.15
(2001) (noting that “[i]n T.L.O., [the Court] made a point of
distinguishing searches ‘carried out by school authorities act-
ing alone and on their own authority’ from those conducted
‘in conjunction with, or at the behest of law enforcement
agencies’ ”).
[8] S.G. was, of course, seized and interrogated by a social
services caseworker and a deputy sheriff. Neither of these
individuals qualifies as a “school official.” Thus, by its own
terms, T.L.O. does not control our resolution of S.G.’s Fourth
Amendment claim. The Second Circuit has reached the same
conclusion we do, holding T.L.O. inapplicable to the seizure
of a student by a social services agency caseworker. See
Tenenbaum v. Williams, 193 F.3d 581, 607 (2d Cir. 1999). As
the Second Circuit explained, “[p]ublic schools have a rela-
tionship with their students that is markedly different from the
8
Redding held that a strip search of a girl suspected of possessing pre-
scription ibuprofen was unreasonable under the T.L.O. standard.
16316 GREENE v. CAMRETA
relationship between most governmental agencies, including
[Child Protective Services], and the children with whom they
deal. Constitutional claims based on searches or seizures by
public school officials relating to public school students there-
fore call for an analysis . . . that is different from that [for
searches or seizures by caseworkers].” Id.Moreover, the Court’s decision in T.L.O. was premised on
a “special need” of government not present in this case: “the
substantial interest of teachers and administrators in maintain-
ing discipline in the classroom and on school grounds.” 469
U.S. at 339. The Court noted that disciplinary problems and
student drug use had been rising in recent years, and that “the
preservation of order and a proper educational environment
requires close supervision of schoolchildren, as well as the
enforcement of rules against conduct that would be perfectly
permissible if undertaken by an adult.” Id. It was in light of
these considerations that the Court concluded that the school’s
need swiftly to discipline T.L.O., suspected of smoking in the
lavatory in violation of school rules, would be frustrated if
school officials were required first to obtain a warrant based
on probable cause. Id. at 340-41.
In this case, by contrast, S.G. is not suspected of having
violated any school rule, nor is there any evidence that her
immediate seizure was necessary to “maintain[ ] discipline in
the classroom and on school grounds.” Id. at 339. The “spe-
cial need” animating the Court’s decision in T.L.O. is there-
fore entirely absent.9 See Jones v. Hunt, 410 F.3d 1221, 1228
9
For the same reason, several of the other school seizure cases relied
upon by defendants are inapposite, as they also address situations in which
the student was suspected of committing an infraction on school grounds
or during a school activity. See, e.g., Gray ex rel. Alexander v. Bostic, 458
F.3d 1295 (11th Cir. 2006) (student verbally threatened teacher); Wofford
v. Evans, 390 F.3d 318 (4th Cir. 2004) (student allegedly brought gun to
school); Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075 (5th Cir.
1995) (student detained and removed from school field trip due to misbe-
GREENE v. CAMRETA 16317
(10th Cir. 2005) (holding the T.L.O. standard inapplicable to
the seizure of a student that did “not involve efforts by school
administrators to preserve order on school property”).
[9] These distinctions are crucial if we are properly to
assess the Fourth Amendment standard applicable to the sei-
zure of an alleged victim of child sexual abuse at her school.
“Although the underlying command of the Fourth Amend-
ment is always that searches and seizures be reasonable, what
is reasonable depends on the context within which a search
takes place.” T.L.O., 469 U.S. at 337. For each “specific class
of searches,” we determine the appropriate standard of rea-
sonableness by “ ‘balancing the need to search against the
invasion which the search entails.’ ” Id. (quoting Camara v.
Mun. Court, 387 U.S. 523, 536-37 (1967)). If the seizure of
a student at school to investigate sexual abuse by a parent
could be said to belong to the same “specific class of search-
es” as the search of a student’s purse to investigate a disci-
plinary infraction, we would be justified in applying the
reasonableness standard outlined in T.L.O. to the facts of this
case. But T.L.O. itself indicates that the two types of searches
differ in critical ways. We therefore cannot rely on the balanc-
ing of interests in T.L.O. to assess the reasonableness of
defendants’ decision to seize S.G.
2. The “Special Needs” Doctrine & Child Sexual
Abuse Investigations
[10] Defendants also argue that, even if the Supreme
Court’s decision in T.L.O. does not strictly control this case,
T.L.O. stands more generally for the proposition that probable
havior); Edwards v. Rees, 883 F.2d 882 (10th Cir. 1989) (student sus-
pected of making a bomb threat); Cason v. Cook, 810 F.2d 188 (8th Cir.
1987) (student suspected of breaking into another student’s locker); Tarter
v. Raybuck, 742 F.2d 977 (6th Cir. 1984) (student suspected of dealing
drugs at school).
16318 GREENE v. CAMRETA
cause and a warrant are not “irreducible requirement[s] of a
valid search” or seizure under the Fourth Amendment. See
T.L.O., 469 U.S. at 340. That much is quite true. T.L.O.
belongs to a line of cases in which the Supreme Court has
lowered traditional Fourth Amendment protections “when
special needs, beyond the normal need for law enforcement,
make the warrant and probable cause requirement impractica-
ble.”10 Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (inter-
nal quotation omitted). Although defendants acknowledge
that neither the Supreme Court nor this court has applied the
“special needs” doctrine to searches or seizures of children
during a child abuse investigation, they argue that the govern-
ment’s “special need” to protect children from sexual abuse
justifies a departure from both the warrant and probable cause
requirements in a case such as this one.11 As noted above, we
10
Although the term “special needs” was first used by Justice Blackmun
in his concurring opinion in T.L.O., see 469 U.S. at 351 (Blackmun, J.,
concurring), the doctrine is rooted in the Supreme Court’s decision in
Camara v. Mun. Court, 387 U.S. 523 (1967), which addressed the consti-
tutionality of San Francisco’s warrantless building inspection program.
Since Camara, the Court has applied the doctrine in a number of contexts
in which such “special needs” exist. See, e.g., Bd. of Educ. v. Earls, 536
U.S. 822 (2002) (drug testing of high school students participating in
extracurricular activities); Vernonia Sch. Dist. v. Acton, 515 U.S. 646(1995) (random drug testing of high-school athletes); Skinner v. Ry. Labor
Executives’ Ass’n, 489 U.S. 602 (1989) (drug and alcohol testing of rail-
road employees involved in accidents); Nat’l Treasury Employees Union
v. Von Raab, 489 U.S. 656 (1989) (drug testing of employees applying for
certain Customs Service positions); Griffin v. Wisconsin, 483 U.S. 868(1987) (search of probationers); New York v. Burger, 482 U.S. 691 (1987)
(administrative inspections in closely-regulated industries); O’Connor v.
Ortega, 480 U.S. 709 (1987) (workplace searches of public employees);
United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (traffic stops at
border checkpoints). But see Ferguson, 532 U.S. at 84-85 (refusing to
extend special needs doctrine to drug testing of pregnant women for law
enforcement purposes); City of Indianapolis v. Edmond, 531 U.S. 32(2000) (refusing to extend doctrine to police roadblocks aimed at detecting
narcotics trafficking); Chandler v. Miller, 520 U.S. 305 (1997) (refusing
to extend doctrine to drug testing of candidates for political office).
11
The federal district and circuit courts are split on the applicability of
the “special needs” doctrine to investigations of child abuse. Compare Roe
GREENE v. CAMRETA 16319
addressed a similar argument in Calabretta, holding that tra-
ditional Fourth Amendment protections apply to the seizure of
a child from her home. We reach the same conclusion in this
case, as we now explain.
[11] The threshold inquiry in a “special needs” case is
whether the government has identified some need, “beyond
the normal need for law enforcement,” to justify a departure
from traditional Fourth Amendment standards. Von Raab, 489
U.S. at 665-66; see also Ferguson, 532 U.S. at 74 n.7; Hen-
derson v. City of Simi Valley, 305 F.3d 1052, 1056 (9th Cir.
2002). So, although the Supreme Court has “tolerated suspen-
sion of the Fourth Amendment’s warrant or probable-cause
requirement[s] [when] there was no law enforcement purpose
behind the searches . . ., and . . . little, if any, entanglement
with law enforcement” in conducting them, Ferguson, 532
v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 406-07 (5th
Cir. 2002) (holding the “special needs” doctrine inapplicable given the
extensive involvement of law enforcement in investigations of child abuse
under Texas law); Tenenbaum, 193 F.3d at 606 (applying traditional
Fourth Amendment analysis to searches and seizures made in the course
of child abuse investigations); Franz v. Lytle, 997 F.2d 784, 791 (10th Cir.
1993) (holding “special needs” doctrine inapplicable to investigation of
child abuse conducted by law enforcement); Good v. Dauphin County Soc.
Servs., 891 F.2d 1087, 1093-94 (3d Cir. 1989) (applying traditional Fourth
Amendment analysis); with Doe v. Bagan, 41 F.3d 571, 575 n.3 (10th Cir.
1994) (applying T.L.O.’s lesser standard of reasonableness to the seizure
of a student during a child sexual abuse investigation); Wildauer v. Fred-
erick County, 993 F.2d 369, 372-73 (4th Cir. 1993) (same); Darryl H. v.
Coler, 801 F.2d 893, 900-02 (7th Cir. 1986) (applying T.L.O.’s lesser stan-
dard of “reasonableness” and holding the warrant and probable cause
requirements inapplicable). In the Seventh Circuit, the appropriate stan-
dard of review under the Fourth Amendment turns on whether the student
attends private or public school. Compare Michael C. v. Gresbach, 526
F.3d 1008, 1015 (7th Cir. 2008) (holding that caseworkers must comply
with the warrant and probable cause requirements when searching and
seizing students on private school grounds); Doe v. Heck, 327 F.3d 492,
512 (7th Cir. 2003) (same); with Darryl H., 801 F.2d at 900-02 (applying
lesser standard of reasonableness to the same conduct on public school
grounds).
16320 GREENE v. CAMRETA
U.S. at 79 n.15, the Court hasn’t relaxed traditional Fourth
Amendment protections when the main purpose of an ostensi-
bly administrative search was to gather evidence for use in
subsequent criminal proceedings, or when law enforcement
personnel were substantially involved in the design and
implementation of the administrative program. Indeed,
“[n]one of [the Court’s] special needs cases have . . . upheld
the collection of evidence for criminal law enforcement pur-
poses.” Id. at 83 n.20; see also Edmond, 531 U.S. at 38.
Rather, “[t]he traditional . . . requirements are waived . . . on
the explicit assumption that the evidence obtained in the
search is not intended to be used for law enforcement pur-
poses.” Ferguson, 532 U.S. at 88 (Kennedy, J., concurring).
[12] In this case, the presence of law enforcement objec-
tives is evident. At the time of the seizure, police were
actively investigating allegations of child sexual abuse against
S.G.’s father and a police officer was present at S.G.’s inter-
view. As courts faced with similar “dual-purpose” searches
have noted, “disentangling [the goal of protecting a child’s
welfare] from general law enforcement purposes” becomes
particularly “difficult” in these circumstances, as we cannot
allow “[o]ther societal objectives [to] justify a program that
would systematically collect information for the police.” Roe,
299 F.3d at 406-07; see also Ferguson, 532 U.S. at 83 n.20;
Edmond, 531 U.S. at 38, 41-42. Here, we are convinced that
law enforcement personnel and purposes were too deeply
involved in the seizure of S.G. to justify applying the “special
needs” doctrine, for two primary reasons.12
[13] First, police were conducting an ongoing investigation
of S.G.’s father, and Camreta requested that Deputy Sheriff
Alford, a uniformed police officer carrying a visible firearm,
12
The facts of this case do not require us to decide whether the “special
needs” doctrine would apply to an in-school interrogation of a child where
there is no direct law enforcement purpose and no involvement of law
enforcement personnel.
GREENE v. CAMRETA 16321
accompany him to the interview. A state regulation required
Child Protective Service workers to “[i]nterview the child out
of the presence of other persons, unless the CPS worker
believes the presence of a school employee or other person
would facilitate the interview.” OR. ADMIN. R. 413-015-
0610(4) (2003).13 There are two apparent ways in which
Alford’s presence might have “facilitated” the interview. One
purpose may have been to gather evidence firsthand, which
would clearly run afoul of the Supreme Court’s admonition
that “[n]one of [its] special needs cases have . . . upheld the
collection of evidence for criminal law enforcement pur-
poses.” Ferguson, 532 U.S. at 83 n.20; see also Franz, 997
F.2d at 791. Or perhaps Camreta and Alford believed that “the
threat of law enforcement intervention” would provide the
“necessary leverage” to “facilitate” Camreta’s interview with
S.G., reasoning that a nine-year-old girl would surely feel
compelled to talk truthfully in the presence of a uniformed,
armed police officer. Cf. Ferguson, 532 U.S. at 72. Either
way, the decision to have Alford accompany Camreta to the
interview constituted sufficient entanglement with law
enforcement to trigger the traditional Fourth Amendment pre-
requisites to seizure of a person.
[14] Second, we are mindful of the general rule that the
constitutionality of a search or seizure cannot turn on the sub-
jective intent of government officials. See Whren v. United
States, 517 U.S. 806, 813 (1996). But the Supreme Court has
allowed a “purpose inquiry in [the ‘special needs’] context [if]
conducted only at the programmatic level,” cautioning that
such an inquiry “is not an invitation to probe the minds of
individual officers acting at the scene.” Edmond, 531 U.S. at
48. We therefore look to Oregon law to determine whether “a
child protective services search is so intimately intertwined
with law enforcement” as to render the “special needs” doc-
13
The regulations cited are those in effect at the time of the events in
this case. There have been some changes since. See OR. ADMIN. R. 413-
015-0415(5) (2009).
16322 GREENE v. CAMRETA
trine inapplicable. Roe, 299 F.3d at 407. Our review of Ore-
gon’s statutory scheme convinces us that the involvement of
law enforcement in this case is symptomatic of the broader
entanglement of law enforcement and social services officials
in the state’s investigation of child abuse.
Under Oregon law, an investigation into alleged abuse
begins when a mandatory reporter14 contacts either “the local
office of the Department of Human Services” or “a law
enforcement agency within the county.” Or. REV. STAT.
§ 419B.015.15 Once a report is received, the Department must
notify a law enforcement agency, and vice versa. Id. Reports
are then accorded priority based upon criteria, established by
the department, that “enable[s] the department, the designee
of the department or a law enforcement agency to quickly and
easily identify reports that require notification within 24 hours
after receipt.” § 419B.017. Either “the department or the
agency shall immediately cause an investigation to be made
to determine the nature and cause of the abuse of the child.”
§ 419B.020(1). “If the law enforcement agency conducting
the investigation finds reasonable cause to believe that abuse
has occurred, the law enforcement agency shall notify . . . the
local office of the department,” which “shall provide protec-
tive social services of its own or of other available social
agencies to prevent further abuses.” § 419B.020(3).
Either the law enforcement agency or the department may
also take protective custody of the child. § 419B.020(5)(a). If
either an officer or a caseworker “has reasonable cause to
14
A “mandatory reporter” is “[a]ny public or private official having rea-
sonable cause to believe that any child with whom the official comes in
contact has suffered abuse or that any person with whom the official
comes in contact has abused a child.” See OR. REV. STAT. § 419B.010.
With certain exceptions, any official with such knowledge “shall immedi-
ately report or cause a report to be made” to DHS or local law enforce-
ment. Id.
15
All the remaining citations in this paragraph are also to Oregon
Revised Statutes.
GREENE v. CAMRETA 16323
believe that the child has been affected by sexual abuse . . .
and that physical evidence of the abuse exists and is likely to
disappear, the court may authorize a physical examination for
the purposes of preserving evidence . . .” § 419B.020(6).
Moreover, any “person conducting an investigation” under the
statute who “observes a child who has suffered suspicious
physical injury . . . shall [i]mmediately photograph or cause
to have photographed the suspicious physical injuries . . . and
[e]nsure that a designated medical professional conducts a
medical assessment within 48 hours . . .” §§ 419B.023,
419B.028. Once photographs are taken, the officer or case-
worker “shall . . . place hard copies or prints of the photo-
graphs . . . in any relevant files pertaining to the child
maintained by the law enforcement agency or the depart-
ment.” § 419B.028(2)(b).
[15] The Fifth Circuit, reviewing similar provisions for
investigating child abuse under Texas law, held that such joint
investigations were not “divorced from the state’s general
interest in law enforcement,” because they functioned “as a
tool both for gathering evidence for criminal convictions and
for protecting the welfare of the child.” Roe, 299 F.3d at 406-
07 (quotation omitted). We reach the same conclusion here.
Oregon’s statutory scheme makes no effort to distinguish
between criminal investigations of child abuse and civil inves-
tigations to protect the victims of abuse. To the contrary, the
provisions described above encourage entanglement between
law enforcement and social service workers, by involving
both police officers and caseworkers in the gathering and col-
lection of evidence of child sexual abuse from the outset of
an investigation.
[16] We do not mean to express any negative judgment
concerning the wisdom of Oregon’s policy. It may well be
that fostering coordination and collaboration between case-
workers and law enforcement officers is an effective way both
to protect children and to arrest and prosecute child abusers
— each, of course, governmental activity of the highest
16324 GREENE v. CAMRETA
importance. But we do hold that state officials using such a
policy cannot thereby forge an exception to traditional Fourth
Amendment protections for the criminal investigation of child
sexual abuse, as they seek to do here. Again, “[t]he fact that
the suspected crime may be heinous . . . does not provide
cause for the state to ignore the rights of the accused or any
other parties.” Wallis, 202 F.3d at 1130.
This is not to say, of course, that the seizure of S.G. was
unconstitutional “simply because, in the course of [investigat-
ing], an inspecting officer may discover evidence of crimes.”
Burger, 482 U.S. at 716. Any time a government official sus-
pects that a child has been abused, investigation of that abuse
for child protection purposes may uncover evidence of a
crime. Nor do we suggest that a caseworker conducting an
investigation to ensure the welfare of the child is precluded
from sharing the fruits of that investigation with law enforce-
ment officers, who may subsequently use such information to
prosecute the offender. See Ferguson, 532 U.S. at 80-81, 85;
id. at 90 (Kennedy, J., concurring).16
[17] Rather, we hold, as we did in Calabretta, that “the
general law of search warrants applie[s] to child abuse inves-
16
Mandatory reporting laws, which require public and private officials
to contact the authorities if they have reasonable grounds to suspect that
a child is being abused, see, e.g., OR. REV. STAT. § 419B.010, do not raise
the constitutional concerns discussed in the text. As the Supreme Court
carefully noted in Ferguson, mandatory reporters come across such infor-
mation in the course of their normal business and do not intend to elicit
or coerce such statements. See 532 U.S. at 78 n.13, 80-81; id. at 90 (Ken-
nedy, J., concurring). Nothing in our opinion today would prevent a
teacher, for example, from discussing suspected abuse with a student or
from passing along any such information to social service workers. For
“[w]hen a parent sends her child to school, she delegates some of her par-
enting responsibilities to school officials. Though she does not consent to
overzealous investigators interrogating her children over the principal’s
objection . . ., she should reasonably expect that school officials will speak
with her child if the child raises serious concerns about her home life.”
United States v. Hollingsworth, 495 F.3d 795, 802 (7th Cir. 2007).
GREENE v. CAMRETA 16325
tigations.” Calabretta, 189 F.3d at 814. Once the police have
initiated a criminal investigation into alleged abuse in the
home, responsible officials must provide procedural protec-
tions appropriate to the criminal context. At least where there
is, as here, direct involvement of law enforcement in an in-
school seizure and interrogation of a suspected child abuse
victim, we simply cannot say, as a matter of law, that she was
seized for some “special need[ ], beyond the normal need for
law enforcement.” Ferguson, 532 U.S. at 74 n.7.
[18] In short, applying the traditional Fourth Amendment
requirements, the decision to seize and interrogate S.G. in the
absence of a warrant, a court order, exigent circumstances,17
or parental consent18 was unconstitutional. We follow the lead
of our sister circuits and hold that in the context of the seizure
of a child pursuant to a child abuse investigation, a court order
permitting the seizure of the child is the equivalent of a warrant.19
17
Exigent circumstances permit a caseworker to seize a child without a
warrant if the caseworker has “reasonable cause to believe that the child
is likely to experience serious bodily harm in the time that would be
required to obtain a warrant.” Rogers, 487 F.3d at 1294; see also Burke
v. County of Alameda, 2009 WL 3739333 at *4-5 (9th Cir. 2009) (holding
that a child’s statements during an interview gave the officer reasonable
cause to believe that she was in danger of imminent sexual and physical
abuse); Tenenbaum, 193 F.3d at 594. The exigent circumstances exception
is not applicable here. Defendants waited three days to detain and interro-
gate S.G. after receiving the initial report from DHS, and then returned her
to her parents’ custody after the allegedly incriminating interview. Such
delays and actions undermine any claimed exigency. See Rogers, 487 F.3d
at 1296; Tenenbaum, 193 F.3d at 595, 605.
18
S.G.’s parents did not consent to her seizure at school, as defendants
did not notify them of the planned interview. The fact that defendants
received permission from school officials to conduct the interview does
not constitute valid “consent.” “The handing over of a child from a public
school teacher to another State official . . . is not the equivalent of the con-
sent of the parents.” Tenenbaum, 193 F.3d at 594 n.9; see also T.L.O., 469
U.S. at 336 (recognizing the limits of the in loco parentis doctrine in this
context).
19
Here, for instance, Or. Rev. Stat. § 419B.045 specifically authorizes
caseworkers to investigate reports of child abuse on public school prem-
16326 GREENE v. CAMRETA
See, e.g., Tenenbaum, 193 F.3d at 602; Doe v. Heck, 327 F.3d
at 517; Gates v. Texas Dept. of Protective and Regulatory
Servs., 537 F.3d 404, 429 (5th Cir. 2008). We therefore
reverse the district court to the extent that it held that Alford
and Camreta had not violated S.G.’s right to be free from an
unconstitutional seizure.
B. QUALIFIED IMMUNITY
[19] Even where, as here, government officials have vio-
lated citizens’ constitutional rights, “[t]he doctrine of quali-
fied immunity protects government officials ‘from liability for
civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a rea-
sonable person would have known.’ ” Pearson, 129 S. Ct. at
815 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). “[Our] inquiry turns on the ‘objective legal reason-
ableness of the action, assessed in light of the legal rules that
were clearly established at the time it was taken.’ ” Id. at 822(quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)); see also
Anderson v. Creighton, 483 U.S. 635, 640 (1987). If a govern-
ment official “could . . . have reasonably but mistakenly
believed that his or her conduct did not violate a clearly estab-
lished constitutional right,” he is entitled to qualified immu-
nity. Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th
Cir. 2001).
[20] The Greenes bear the burden of demonstrating that the
right allegedly violated was clearly established at the time of
the incident. See Galen v. County of Los Angeles, 477 F.3d
ises. Section 419B.150 permits an employee of the Department of Human
Services or other officer to take a child into protective custody upon an
order by the juvenile court. As the statutory scheme thus permits a case-
worker to seek a court order for temporary protective custody and permits
in-school interviews, it appears that a caseworker could obtain a court
order for an in-school interview that complies with the constitution by pre-
senting facts, “supported by Oath or affirmation,” to a judge, which facts
constitute probable cause to suspect the child has been abused.
GREENE v. CAMRETA 16327
652, 665 (9th Cir. 2007). To meet this burden, the Greenes
cite only two cases: our prior decisions in Wallis and Cala-
bretta. Yet, as defendants correctly argue, neither case is
directly applicable, as both involved children seized or
searched in their homes. See Wallis, 202 F.3d at 1134; Cala-
bretta, 189 F.3d at 810. Calabretta mentioned this distinction
in declining to follow the Seventh Circuit’s decision in Darryl
H., which permitted in-school investigations of child abuse
based upon a showing of reasonableness, on the grounds that
search and seizure at issue in Darryl H. “was not done during
an unconstitutional entry into the home.” 189 F.3d at 818.
[21] A case directly on point is not necessary to show that
a right was “clearly established.” See Anderson, 483 U.S. at
640. But neither Wallis nor Calabretta would have put Cam-
reta and Alford on notice that a social worker’s warrantless
seizure of a child at her school, even in conjunction with a
law enforcement officer, could violate the Fourth Amend-
ment. Some other circuits have applied the “special needs”
reasonableness standard to investigations of child abuse, see
supra note 11. The fact that other courts “disagree[ ] about the
contours of a right does not automatically render the law
unclear,” but here, “these differences of opinion from our own
are substantial enough to require immunity.” Redding, 129
S.Ct. at 2644.
[22] The qualified immunity inquiry cannot end there, how-
ever. If the defendants’ actions were clearly unconstitutional
even on the lesser, “special needs” reasonableness standard
they regard — incorrectly, as we have held — as applicable,
then qualified immunity would not be available. Their actions
could not then be said to be “reasonabl[e], but mistaken[ ]”
with regard to whether S.G.’s constitutional rights were vio-
lated. Jackson v. City of Bremerton, 268 F.3d at 651.
[23] Under the lesser standard of reasonableness applicable
in “special needs” cases, we conduct a “twofold inquiry” to
determine whether a warrantless search is “reasonable”: “first,
16328 GREENE v. CAMRETA
[we] must consider whether the action was justified at its
inception; second, [we] must determine whether the search [or
seizure] as actually conducted was reasonably related in scope
to the circumstances which justified the interference in the
first place.” T.L.O., 469 U.S. at 341(internal quotations and
citations omitted). Accepting the facts in the light most favor-
able to S.G., she was kept for two hours in a closed room by
two people she did not know: a caseworker and a uniformed
police officer carrying a firearm. Applying the T.L.O. stan-
dard, Camreta and Alford could have reasonably believed that
the decision to seize S.G. was sufficiently justified at its
inception. Whether they could reasonably have regarded the
seizure “as actually conducted” as reasonable in scope is a
considerably closer question, for several reasons.
First, neither Camreta nor Alford have provided any expla-
nation for Deputy Sheriff Alford’s presence at the interview.
Defendants emphasize that Alford “did not participate in the
interview” and “just sat there without asking any questions.”
These assertions support rather than detract from the conclu-
sion that the seizure was not “reasonably related” to defen-
dants’ claimed justification for interfering with S.G.’s liberty
interests. Nothing in the record — or common sense — sug-
gests that the silent presence of a uniformed, armed police
officer at an interview of a child in a grade school is helpful
in any legitimate way to determining whether the child needs
child protective services.
Second, the justification in the record for a seizure lasting
two hours is weak. Most of the cases relied upon by Camreta
and Alford do not address such a prolonged seizure. See Has-
san, 55 F.3d at 1078, 1080 (holding the detention of a student
for disciplinary reasons for 50 minutes reasonable); Doe v.
Bagan, 41 F.3d 571, 574-75 (10th Cir. 1994) (holding case-
worker’s decision to seize and question student alone in the
principal’s office for ten minutes reasonable); Edwards v.
Rees, 883 F.2d 882, 884 (10th Cir. 1989) (holding vice princi-
pal’s twenty-minute interrogation of student alleged to have
GREENE v. CAMRETA 16329
made bomb threat reasonable). To the contrary, these cases
held that the challenged seizures were reasonable in scope
precisely because they were “brief,” noting, for example, that
a “ten minute initial interview with a social services case-
worker . . . [is] a de minimis interference with [a student’s]
liberty, insufficient at that stage to trigger constitutional lib-
erty concerns.” Bagan, 41 F.3d at 575. The seizure of S.G.,
who was not herself suspected of any crime, lasted considera-
bly longer than that.
Other cases cited by defendants, however, come closer to
sanctioning a two-hour seizure, although the circumstances
were quite different. Wofford v. Evans, for example, involved
the investigatory detention of a student who had allegedly
brought a gun to school. See 390 F.3d at 321. The student
claimed to have been detained for an hour and a half while
school officials and law enforcement officers searched the
school grounds for a gun. The Fourth Circuit held the deten-
tion reasonable in scope because “school officials detained the
pupil no longer than necessary to obviate [the unacceptable
risk of her retrieving the weapon or revealing its location to
a peer].” Id. at 327; see also Shuman v. Penn Manor Sch.
Dist., 422 F.3d 141, 149 (3d Cir. 2005) (finding a detention
lasting “no more than four hours” reasonable); Couture v. Bd.
of Educ. of Albuquerque Pub. Schs., 535 F.3d 1243, 1254
(10th Cir. 2008) (holding that a school that had “barricade[d
a child] in a closet-like timeout room for one hour and thirty-
five minutes” was not unreasonable).
Camreta and Alford seek to justify the length of the seizure
by pointing out that as the interview progressed, S.G. began
disclosing sexual abuse by her father. S.G. maintains that for
“over an hour” she repeatedly told Camreta that her father had
never touched her in a bad way until she finally “just started
saying yes to whatever he said.” It is far from clear that it was
reasonable for Camreta and Alford to continue to detain S.G.
for an entire hour during which she continually denied such
abuse, even if it was reasonable to continue the interview
16330 GREENE v. CAMRETA
once she started to say otherwise. Still, there is some case law
applying the T.L.O. standard sanctioning a detention longer
than an hour, and none refuting the justification Camreta and
Alford offer for prolonging the detention beyond that —
namely, that S.G. was just becoming — in their view —
responsive.
We are also mindful of the difficult task facing social ser-
vices caseworkers, who are required to exercise significant
discretion in determining whether a child’s welfare is in jeop-
ardy. As the Second Circuit has explained,
Protective services caseworkers [must] choose
between difficult alternatives . . . . If they err in
interrupting parental custody, they may be accused
of infringing the parents’ constitutional rights. If
they err in not removing the child, they risk injury to
the child and may be accused of infringing the
child’s rights. It is precisely the function of qualified
immunity to protect state officials in choosing
between such alternatives, provided that there is an
objectively reasonable basis for their decision,
whichever way they make it.
Tenenbaum, 193 F.3d at 596 (quoting van Emrik v. Chemung
County Dep’t of Soc. Servs., 911 F.2d 863, 866 (2d Cir.
1990)) (alterations in original).
[24] For all these reasons, we hold that defendants in this
case are entitled to qualified immunity. We hasten to note that
government officials investigating allegations of child abuse
should cease operating on the assumption that a “special
need” automatically justifies dispensing with traditional
Fourth Amendment protections in this context. As noted, we
rejected such a claim in Calabretta, where state officials
argued that “any check on the welfare of children” triggered
the “exigent circumstances” exception to the warrant require-
ment and that seizures conducted during investigations of
GREENE v. CAMRETA 16331
child abuse were “administrative searches” subject to some
lesser standard of reasonableness. 189 F.3d at 811-12. We
have never adopted such an exception to traditional Fourth
Amendments standards, and our decision today makes clear
that we are unwilling to create an across-the-board exception
because a student happens to be seized at a public school
rather than on private property.
[25] Because our precedent did not clearly establish that the
in-school seizure of a student suspected of being the victim of
child sexual abuse can be subject to traditional Fourth
Amendment protections, and because, applying the lesser
T.L.O. standard, the defendants’ actions were not so clearly
invalid as to strip them of immunity, we affirm the district
court’s ruling that defendants are entitled to qualified immu-
nity on the Greenes’ Fourth Amendment claim.
C. THE REMOVAL OF S.G. AND K.G. FROM SARAH’S
CUSTODY
The Greenes also argue that their constitutional rights were
violated because S.G. and K.G. were removed from Sarah’s
custody pursuant to a Juvenile Court order triggered by an
intentional misrepresentation by Camreta. In an affidavit pro-
vided to the Juvenile Court, Camreta stated that “[Sarah] indi-
cated the family had no alternate resources for either the
children or Nimrod to ensure there would be no contact.” The
Greenes maintain that this representation was materially false,
contending that (1) Sarah had agreed to Camreta’s proposed
“safety plan,” under which Nimrod would not have any uns-
upervised contact with his daughters; and (2) Sarah told Cam-
reta that, even though “it would be significantly detrimental
to [the] family finances,” she had secured “a place where
[Nimrod] could stay so that he would have no contact with
[S.G. and K.G.].”
Camreta argues that he is entitled to absolute quasi-judicial
immunity for removing the children from the Greene home.
16332 GREENE v. CAMRETA
A recent en banc decision of this court compels the opposite
conclusion.
[26] In Beltran v. Santa Clara County, 514 F.3d 906 (9th
Cir. 2008) (en banc), we held:
Parties to section 1983 suits are generally entitled
only to immunities that existed at common law. We
have therefore granted state actors absolute immu-
nity only for those functions that were critical to
the judicial process itself, such as initiating a prose-
cution. It follows that social workers have absolute
immunity when they make discretionary, quasi-
prosecutorial decisions to institute court dependen-
cy proceedings to take custody away from parents.
But they are not entitled to absolute immunity from
claims that they fabricated evidence during an
investigation or made false statements in
a dependency petition affidavit that they signed
under penalty of perjury, because such actions
aren’t similar to discretionary decisions about
whether to prosecute. A prosecutor doesn’t have
absolute immunity if he fabricates evidence during
a preliminary investigation, before he could prop-
erly claim to be acting as an advocate, or
makes false statements in a sworn affidavit in sup-
port of an application for an arrest warrant. Further-
more, as prosecutors and others
investigating criminal matters have no absolute
immunity for their investigatory conduct, a fortiori,
social workers conducting investigations have
no such immunity.
Id. at 908-09 (internal citations and quotations omitted).
According to the Greenes, Camreta falsely represented that he
had been told the family lacked the financial resources to
comply with the safety plan, even though Sarah in fact gave
repeated assurances that her husband would live elsewhere
GREENE v. CAMRETA 16333
and have no contact with her daughters. Assuming, as we
must, that Sarah’s version of events is true, under Beltran
such a misrepresentation falls outside the scope of the abso-
lute immunity afforded caseworkers.
Camreta relies on our pre-Beltran decision in Mabe v. San
Bernardino County Department of Public Social Services, 237
F.3d 1101 (9th Cir. 2001), for the proposition that “social
workers enjoy absolute, quasi-judicial immunity when mak-
ing post-adjudication custody decisions pursuant to a valid
court order.” Id. at 1109 (internal quotation omitted). Mabe
provides no support for Camreta’s position in this case for
two reasons. First, the quoted passage refers specifically to
post-adjudication conduct, whereas the Greenes allege that
Camreta misrepresented the fruits of his investigation before
the Juvenile Court’s adjudication of the protective custody
order. Second, Mabe itself distinguished the presentation of
false evidence from other, discretionary decisions made by
caseworkers during a child abuse investigation: Mabe held
that “social workers are entitled to absolute immunity for the
initiation and pursuit of dependency proceedings,” as well as
any “post-adjudication custody decisions,” but noted that
plaintiff’s allegations of false evidence in that case failed only
“because [plaintiff] failed to offer any evidence of false or
perjured testimony” by the caseworker. Id.[27] Camreta is not entitled to qualified immunity as to the
false representation claim, as the Greenes’ right to be free
from judicial deception in securing the removal order was
clearly established at the time of Camreta’s alleged misrepre-
sentations to the court. We have repeatedly held that “[a] sei-
zure conducted pursuant to a warrant obtained by judicial
deception violates the Fourth Amendment.” Whitaker v. Gar-
cetti, 486 F.3d 572, 581 (9th Cir. 2007) (citing Butler v. Elle,
281 F.3d 1014, 1024 (9th Cir. 2002) (per curiam)). “To sup-
port a § 1983 claim of judicial deception, a plaintiff must
show that the defendant deliberately or recklessly made false
statements or omissions that were material to the finding of
16334 GREENE v. CAMRETA
probable cause.” KRL v. Moore, 384 F.3d 1105, 1117 (9th
Cir. 2004), citing Galbraith v. County of Santa Clara, 307
F.3d 1119, 1126 (9th Cir. 2002). Whether a false statement
was “material” to the finding of probable cause is a question
of law for the reviewing court. KRL, 384 F.3d at 1117; Butler,
281 F.3d at 1024.
More specifically, the right to be free from deception in the
presentation of evidence during a protective custody proceed-
ing was clearly established at the time Camreta filed his affi-
davit with the Juvenile Court. In Devereaux v. Perez, 218
F.3d 1045 (9th Cir. 2000), for example, we held in the context
of a child abuse proceeding that “the constitutional right to be
free from the knowing presentation of false or perjured evi-
dence” is clearly established. Id. at 1055-56. Even earlier, we
stated emphatically that “if an officer submitted an affidavit
that contained statements he knew to be false or would have
known were false had he not recklessly disregarded the truth,
. . . he cannot be said to have acted in an objectively reason-
able manner, and the shield of qualified immunity is lost.”
Hervey v. Estes, 65 F.3d 784, 788 (9th Cir. 1995) (internal
quotations and citation omitted); see also Butler, 281 F.3d at
1024; Whitaker, 486 F.3d at 582 (concluding that “the con-
tours of the Fourth Amendment right against judicial decep-
tion” were clearly established by 1996). See also Snell v.
Tunnell, 920 F.2d 673 (10th Cir. 1990) (holding social work-
ers who deliberately fabricated evidence of child sexual abuse
to secure a removal order not entitled to qualified immunity).
[28] The Greenes have presented proof, in the form of
Sarah’s affidavit and deposition testimony, that Camreta
included false statements in his affidavit requesting a protec-
tive custody order. According to Sarah, she told Camreta that
there was a place for Nimrod to stay so that he would not
have any contact with their daughters. Camreta’s sworn affi-
davit states precisely the opposite, claiming that Sarah indi-
cated the family lacked the financial resources to secure
alternate housing for Nimrod. These conflicting accounts of
GREENE v. CAMRETA 16335
the same conversation create a genuine factual dispute as to
whether Camreta intentionally or recklessly misrepresented
his conversations with Sarah in an effort to persuade the court
to remove the children from her custody.20
[29] The alleged misrepresentation was “material” to the
granting of the removal order if the Juvenile Court would
have declined to issue the order had Camreta been truthful.
See Butler, 281 F.3d at 1026. The sole evidence presented
against Sarah’s continued custody of her daughters consisted
of Camreta’s contested assertion that she was unwilling or
unable to prevent Nimrod from having contact with her daugh-
ters.21 There was no basis for the Juvenile Court to remove
S.G. and K.G. from Sarah’s custody, unless Sarah was failing
to take the requisite steps to protect her daughters from Nim-
rod. “The government may not, consistent with the Constitu-
tion, interpose itself between a fit parent and her children
simply because of the conduct — real or imagined — of the
other parent.” Wallis, 202 F.3d at 1142 n.14. Camreta’s
alleged misrepresentation provided crucial evidence for deter-
mining whether the girls remained in sufficient danger in
Sarah’s custody to warrant a protective custody order. In all
likelihood, the Juvenile Court would not have issued its order
absent Camreta’s allegation that Sarah was unable to provide
alternate housing for Nimrod.
20
If Camreta did not misrepresent what Sarah told him, or if he negli-
gently misrepresented her statements, his conduct did not violate the Con-
stitution. But whether either is the case is a question for the trier of fact,
not for this court. See Butler, 281 F.3d at 1024.
21
This issue is complicated by the fact that the record does not contain
any evidence regarding Sarah’s response to Camreta’s claims at the Juve-
nile Court hearing. The record indicates that Sarah was present and repre-
sented by counsel, and she presumably had an opportunity to rebut
Camreta’s assertions. Transcripts from the Juvenile Court hearing were
not included in the district court record, so it is impossible to know
whether or how Sarah responded to Camreta’s version of the events at
issue. If Sarah essentially ratified Camreta’s account of their March 7 con-
versation at the hearing, Sarah’s claim that Camreta intentionally misrep-
resented her statements to the Juvenile Court would be refuted.
16336 GREENE v. CAMRETA
[30] Because Camreta’s alleged misrepresentation in sup-
port of his request for a protective custody order — again,
assuming it occurred — violated the Greenes’ clearly estab-
lished rights, he is not entitled to qualified immunity. The dis-
trict court’s grant of summary judgment to Camreta on the
Greenes’ Fourteenth Amendment claims stemming from the
removal order is therefore reversed.
D. THE CHILDREN’S MEDICAL EXAMINATIONS OUTSIDE
THEIR MOTHER’S PRESENCE
Finally, the Greenes assert a separate claim under the Four-
teenth Amendment premised on Camreta’s decision to
exclude Sarah from her daughters’ physical examinations at
the KIDS Center. Specifically, the Greenes argue that Sarah’s
exclusion violated her “substantive due process right to be
there for her children,” as well as S.G. and K.G.’s right “to
have their mother there when they face potentially traumatic
events, such as the exams [performed at the KIDS Center].”
We agree.22
Wallis directly addressed the constitutionality of investiga-
tory physical examinations of children outside their parents’
presence. We stated:
[P]arents have a right arising from the liberty interest
in family association to be with their children while
they are receiving medical attention (or to be in a
waiting room or other nearby area if there is a valid
reason for excluding them while all or a part of the
medical procedure is being conducted). Likewise,
22
Camreta initially argued that he was entitled to absolute, quasi-judicial
immunity for executing the Juvenile Court’s order, but at oral argument
conceded that he is not. The concession is well-taken. Camreta was not
executing a court order when he made the decision to exclude Sarah from
the KIDS Center assessments, as the order said nothing about excluding
Sarah from the examinations.
GREENE v. CAMRETA 16337
children have a corresponding right to the love,
comfort, and reassurance of their parents while they
are undergoing medical procedures, includ-
ing examinations — particularly those . . . that are
invasive or upsetting. The interest in family associ-
ation is particularly compelling at such times, in part
because of the possibility that a need to make medi-
cal decisions will arise, and in part because of the
family’s right to be together during such difficult
and often traumatic events.
Wallis, 202 F.3d at 1142. This passage from Wallis estab-
lishes two points central here: first, parents and children main-
tain clearly established familial rights to be with each other
during potentially traumatic medical examinations; and sec-
ond, this right may be limited in certain circumstances to
presence nearby the examinations, if there is some “valid rea-
son” to exclude family members from the exam room during
a medical procedure.
[31] Even if Camreta had a valid reason to exclude Greene
from K.G.’s medical exam, which we do not decide, Wallis
held that parents have a right to be present at medical exami-
nations of their children or “to be in a waiting room or other
nearby area if there is a valid reason for excluding them.” Id.
at 1142. In this case, according to Sarah, she “was ordered by
the staff of the KIDS Center, who were under orders of Bob
Camreta, to leave the premises” entirely, depriving her of any
opportunity to comfort her children even after the examina-
tions had been completed. Prohibiting Sarah from remaining
in an adjoining or nearby room violated her constitutional
right under Wallis.
[32] The language of Wallis is clear and unambiguous:
government officials cannot exclude parents entirely from the
location of their child’s physical examination absent parental
consent, some legitimate basis for exclusion, or an emergency
requiring immediate medical attention. Id. at 1141-42. The
16338 GREENE v. CAMRETA
KIDS Center assessments involved the visual inspection and
photographing of the children’s genitals. This process could
certainly be emotionally traumatic to a young girl. Cf. Redd-
ing, 129 S.Ct. at 2642 (citing a study concluding that strip
searches can “result in serious emotional damage.”). The chil-
dren’s right to their mother’s comfort and their mother’s right
to provide such comfort were thus at their apex. Camreta’s
decision to exclude Sarah not just from the examination but
from the entire facility where her daughter was being exam-
ined violated the Greenes’ clearly established rights.23
[33] We therefore reverse the district court’s grant of sum-
mary judgment to Camreta on this claim as well.
III. CONCLUSION
In sum, we hold that Camreta and Alford are entitled to
qualified immunity with respect to S.G.’s Fourth Amendment
claims and affirm the district court’s grant of summary judg-
ment on that basis. With respect to the Greenes’ Fourteenth
Amendment claims regarding the removal order, we conclude
that there is a genuine issue of material fact as to whether
Camreta secured the order by misrepresenting his conversa-
23
We note that there was no state administrative rule to the contrary.
Oregon Administrative Rule 413-015-0720 sets forth “interviewing rules”
for child protective services, providing, inter alia, that “[i]f the parent or
caregiver is the alleged abuser or if the presence of the parent or caregiver
might impede the interview, the CPS worker may interview children inde-
pendent of their parents or caregivers.” OR. ADMIN. R. 413-015-0720(4)
(2003). These rules were intended to govern initial interviews with victims
of suspected abuse, a point made quite clear by the very next sub-part of
the rule, which provides separate guidelines for initial physical examina-
tions. See OR. ADMIN. R. 413-015-0720(5) (2003). The State’s regulatory
scheme thus reflected a concern that the presence of a victim’s parents
might impermissibly influence the child’s answers to a caseworker’s ques-
tions, not a license to exclude a parent from the premises on which a phys-
ical examination is occurring. (These regulations have been revised and
now appear at OR. ADMIN. R. 413-015-0420 and OR. ADMIN. R. 413-015-
0415.)
GREENE v. CAMRETA 16339
tions with Sarah. We therefore reverse the district court’s
grant of summary judgment on that claim. Finally, we hold
that Camreta’s decision to exclude Sarah from her daughters’
medical examinations at the KIDS Center violated the
Greenes’ clearly established familial rights under the Four-
teenth Amendment. We therefore reverse the district court’s
grant of summary judgment on that claim as well.
AFFIRMED in part, REVERSED in part, and
REMANDED.