Argument preview: Do Fourth Amendment warrant requirements attach to the in-school interview of a child whom authorities suspect may be the victim of sexual abuse at home?

Background

Bob Camreta, a social worker employed by the state of Oregon, had information from a third party that S.G. and K.G., two minor girls living at home with their parents, were being sexually abused by their father.  Camreta, accompanied by Deputy Sheriff James Alford, went to S.G.’s school, took her out of class and to a school conference room, and interviewed her for one to two hours to determine whether she was being sexually abused at home.  Camreta did not seek either a warrant or consent from S.G.’s parents for the interview.  Camreta asked all of the questions during the interview, while Alford – who was in uniform and armed – stood nearby.

S.G.’s answers during the interview, along with separate allegations against her father, provided sufficient basis for the filing of sexual assault charges against him.  Camreta later secured a protective custody order authorizing the removal of the two girls from their home; the girls were placed in foster care for three weeks.  The order also mandated that the children be interviewed and physically examined at a diagnostic service center specializing in child abuse.  The record indicates that S.G.’s mother asked for, but was (at Camreta’s instructions) denied, permission to be present during the examinations.

The girls’ mother, Sarah Greene, filed suit in federal court on behalf of herself and her daughters against Camreta, Alford, and others.  She claimed relief under Section 1983 for Fourth Amendment and Fourteenth Amendment violations, as well as under state tort law.  The district court dismissed the case on summary judgment.  It determined that although the interview of S.G. was a seizure, it was reasonable under the Fourth Amendment; moreover, Camreta and Alford were entitled to qualified immunity for their actions surrounding the interview.  As to Greene’s claim that Camreta violated her children’s and her Fourteenth Amendment substantive due process rights to family unity by removing the daughters from the family home and refusing to allow her to observe the examinations, the court held that Greene received due process of law because these actions were taken pursuant to a valid court order and Oregon statutory and administrative law; here too, the court concluded, Camreta was entitled to immunity.

On appeal, the Ninth Circuit reversed the district court’s rulings on Greene’s Fourteenth Amendment claims.  The court held that there was a genuine issue of material fact as to whether Camreta was entitled to immunity for removing the children from their home.  Further, Camreta did violate Greene’s and the girls’ rights by refusing the mother access to the examination, and he was not entitled to immunity for those violations.  As to the Fourth Amendment claims, all parties agreed that the interview was a seizure; Alford and Camreta maintained that it was reasonable and that they were in any event entitled to qualified immunity.  The court, relying on earlier circuit precedent applying the general law of search warrants to child abuse investigations, held that the seizure was unconstitutional:  it reasoned that there was no warrant, court order, parental consent, or exigent circumstances, and there were no “special needs” that would permit a deviation from the standard warrant procedure.  The Ninth Circuit agreed with the district court, however, that Camreta and Alford were entitled to qualified immunity.

In an interesting procedural twist, Alford and Camreta – who had prevailed at the Ninth Circuit on the Fourth Amendment claims on qualified immunity grounds – filed petitions for certiorari, asking the Court to consider both the merits of the lower court’s Fourth Amendment ruling and whether it may constitutionally review the Ninth Circuit’s merits decision on this question when the petitioners prevailed on qualified immunity grounds.  The Court granted the petitions and consolidated the two cases on October 12, 2010.

Merits Briefing

In their briefs on the merits, Camreta and Alford contend that the Ninth Circuit applied the wrong Fourth Amendment standards to the interview.  Specifically, rather than focusing on the warrant/warrant exception doctrine, they argue, the court should have considered whether the seizure was reasonable under all of the circumstances.  In particular, the Ninth Circuit should have balanced the governmental interest in conducting the interview with S.G.’s right to privacy and concluded that here the former outweighed the latter.  Alford and Camreta make three doctrinal arguments for adopting such a standard.  First, they argue that the Court’s modern approach to the Fourth Amendment, as exhibited in cases such as Virginia v. Moore and Vernonia School District 47J v. Acton, involves a two-step process of determining what norms existed at the time of the Founding and then conducting a balancing inquiry.  What little historical evidence is available on this topic, they contend, tilts in their favor or is, at worst, inconclusive.  Second, they argue that the Court’s decision in Illinois v. Lidster, a case involving checkpoints of individuals not suspected of criminal activity for the purposes of gathering information about a crime, belies any suggestion that the Fourth Amendment necessarily imposes traditional warrant requirements when the subject of a seizure is a witness or victim to a crime, rather than one suspected of criminal wrongdoing.  In absence of the traditional warrant requirements, a balancing test should be performed.  Finally, they point to a line of cases in which the Court has found warrantless searches constitutional under the Fourth Amendment because “special needs” of law enforcement render standard warrant and probable cause requirements “impracticable,” and a balancing of government interests with individual privacy came out in favor of the search.  Emphasizing the “immensity of the problem” posed by child abuse, they argue that protecting a child whom state officers reasonably suspected was being abused in her home created a special needs exception.

Applying its balancing standard to Camreta and Alford’s interview of S.G., petitioners argue that the governmental interest in investigating child abuse and protecting a child believed to be at risk outweighs the minimal invasiveness of the seizure.  They further contend that the public and the state have a weighty interest in preventing and stopping child abuse, and that seizures such as the one conducted here provide an effective means of doing so away from the undue influence of parents perpetrating or complicit in abuse.  By contrast, requiring a warrant or probable cause would frustrate the efficacy of such seizures, as the delay involved could lead to further harm to the child.  Camreta and Alford contrast these interests with the reduced privacy interests that a child has at public school, as well as the relative un-invasiveness of the seizure conducted here.  S.G. was at a room in her school, a familiar location, and was not asked to submit her person or possessions to search of any kind.

Further, Alford and Camreta urge the Court to apply the two-pronged standard announced in New Jersey v. T.L.O. to the interviewing of children at school when there is reasonable suspicion of abuse:  a court should 1.) determine whether the action was “justified at its inception” and then 2.) determine whether the search conducted was “reasonably related in scope to the circumstances which justified the interference in the first place.”

Finally, Alford and Camreta ask the Court to review the Fourth Amendment question on the merits notwithstanding that they ultimately prevailed on qualified immunity grounds.  Relying on the Court’s recent decision in Pearson v. Callahan, they reason that the Ninth Circuit’s ruling on the merits of the Fourth Amendment claim is now binding precedent in that circuit.  The Court’s review of the Fourth Amendment ruling would, they emphasize, have actual effect on the law as applied in the Ninth Circuit.

Greene responds first to the procedural question, arguing that the Court should not review the case because Camreta and Alford ultimately prevailed below.  This claim does not, she contends, fall under the exception for review of rulings adverse to the petitioner that are collateral to the judgment on the merits.  Rather, the heart of the question below was whether S.G.’s Fourth Amendment rights had been violated—the same question Camreta and Alford now want the Court to decide.  Second, this case does not present an Article III case or controversy.  S.G. chose not to appeal the Ninth Circuit’s qualified immunity ruling, and she thus cannot hope to gain any further relief from the Court’s judgment, regardless of its outcome; therefore, the case is moot.  Further, Greene argues Alford and Camreta lack standing to bring this claim, as they currently have no personal stake in the outcome of the litigation.  Greene also contests petitioners’ reading of Pearson, disputing that it somehow overturned the Court’s precedent of declining to grant writs of certiorari filed by prevailing parties.

Moving to the Fourth Amendment question, Greene counters petitioners’ historical claims by arguing that the compelled witness laws in effect at the time of the Founding contemplated judicial approval through a warrant.  Greene then urges the Court to apply the warrant and probable cause requirements to this case, claiming that the emotionally charged setting of a child abuse investigation demands robust Fourth Amendment protections to safeguard against off-the-cuff decision making by law enforcement officials.  Moreover, Greene argues, in-school child interviews to investigate potential child abuse are “highly unusual”; she thus emphasizes the scarcity of evidence that requiring officials to adhere to warrant requirements would make such investigations more difficult.  And, she continues, there is no doctrinal basis for reduced Fourth Amendment protections for those who are seized but not suspected of criminal activity:  probable cause is the proper evidentiary standard.  Lidster’s less stringent standard does not apply here, as that case involved very brief conversations (lasting only ten to fifteen seconds) regarding topics that were much less personal than the questions posed to S.G. during the interrogation.  Nor, she argues, does the “special needs” doctrine call for reduced Fourth Amendment protections in this circumstance, as law enforcement was substantially involved, there was no consent, and the interrogation actually impeded the ability of the school to keep order and administer education.  Greene claims that, because the school setting was incidental to the seizure, T.L.O. does not apply.  And in any event, Greene argues, the interview of S.G. was unreasonable even under a balancing test:  The infringement on her privacy was — given the length of the interview, the presence of law enforcement, and the personal nature of the inquiry — severe.  Also, the actions of Camreta and Alford were contrary to, rather than consistent with, the public interest in preventing child abuse, as the interview was conducted in a manner unlikely to gather reliable information.

The case has generated a great deal of interest from amici:  seven amicus briefs were filed in support of petitioners, eighteen in support of respondent, and three in support of neither party.  The United States filed an amicus brief supporting Camreta and Alford in which it argues that the Court can and should reach the Fourth Amendment question, as the Ninth Circuit’s holding on that claim puts state officials on “injunction-like notice” of future liability.  The Government urges the Court to vacate the Ninth Circuit’s application of traditional warrant requirements to the interview of public school children based on suspected parental abuse, arguing instead for a context-specific reasonableness inquiry based on a balancing of interests.