In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1756
MICHAEL C., CHERITA C., KIMBERLY W., ET AL.,
Plaintiffs-Appellees,
v. DANA GRESBACH,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 C 650--Lynn Adelman, Judge.
ARGUED DECEMBER 3, 2007--DECIDED MAY 19, 2008
Before BAUER, E VANS and SYKES, Circuit Judges.
BAUER, Circuit Judge. The parents and stepparents of minor children Ian and
Alexis ("Plaintiffs") sued Dana Gresbach, a caseworker with the
Bureau of Milwaukee Child Welfare ("Bureau"), under 42U.S.C. §
1983, alleging in part that Gresbach violated the children's Fourth
Amendment rights when she conducted under-the-clothes examinations of each
child's body during separate inter- views at their private school, as part
of a child abuse investigation in February of 2004. Gresbach moved for
summary judgment on qualified immunity grounds. The district court denied
the motion, holding that Gresbach's conduct violated the children's rights
to be free from unreasonable searches, and those rights were clearly
established at the time of the searches. Gresbach appeals, arguing that she
is entitled to qualified immunity because her actions were objectively
reasonable under the Fourth Amendment after she received general consent
from the school's principal to investigate an allegation of child abuse
pursuant to Wis. Stat. § 48.981(3)(c)1, and no case clearly established
that her investigation violated the children's Fourth Amendment rights. We
affirm.
I.
In Doe v. Heck, 327 F.3d 492 (7th
Cir. 2003), we addressed the application of the Fourth Amendment in the
context of child abuse investigations by the same state agency at issue
here, the Bureau, on the premises of a private school. Because we find Heck
to be a blueprint for our analysis, a brief review of its facts and holding,
as they pertain to this case, is necessary.
The Bureau, a division of the Wisconsin Department of Health and Family
Services which provides child abuse prevention and related services in
Milwaukee County, conducts investigations of child abuse allegations under
established protocols in order to substantiate whether or not child abuse
has occurred. Prior to April, 2003, Wis. Stat.
§ 48.981(3)(c)1 1 had been interpreted as providing Bureau caseworkers with
the authority to interview children at school without having to obtain
permission from their parents or school officials. See Heck, 327 F.3d at 502
n. 6. In Heck, Bureau caseworkers received a report that a child had been
spanked at his private school, which followed a corporal punishment policy.
Pursuant to their investigation, the caseworkers went to the school,
identified themselves to the principal, and requested to see the child for
an interview. The principal initially refused to allow the workers to
interview the child, however once the workers received confirmation from a
Wisconsin district attorney that § 48.981(3)(c)1 gave them the authority to
interview children on school premises without obtaining consent from either
the parents or school officials, the principal reluctantly agreed to allow
the caseworkers to interview the child, which they did, without conducting a
physical examination of the child. Later, the school and the child's parents
sued the caseworkers, alleging in part that they conducted an unreasonable
search of the school premises and an illegal seizure of the child in
violation of the Fourth Amendment. The district court found that the
caseworkers were protected by qualified immunity, and we affirmed.
Under established Fourth Amendment principles, we found that a private
school and its students had a reasonable expectation of privacy in and
within the school's premises, and that therefore the caseworkers'
warrantless search of the premises and seizure of the child in order to
conduct an interview for a child abuse investigation, without the consent of
the child's parents or school officials, was presumptively unreasonable.
Heck, 327 F.3d at 510-13. We determined, in part, that "to the extent
§ 48.981(3)(c)1 authorizes government officials to interview children
suspected of being abused on private property without a warrant or probable
cause, consent, or exigent circumstances, it is clearly unconstitutional as
applied." Id. at 515-16. We nevertheless found that a reasonable child
welfare caseworker would not have understood his actions under the statute
to be unconstitutional under the Fourth Amendment at the time of the alleged
violation, because his conduct did not violate any clearly established law.
Accordingly, we held that the caseworkers were entitled to qualified
immunity, but stated that "[a]t this juncture [April, 2003] . . . we
now make it clear that it is patently unconstitutional for governmental
officials to search the premises of a private or parochial school and/or
seize a child attending that school without a warrant or court order,
probable cause, consent, or exigent circumstances." Heck, 327 F.3d at
517.
It is through the lens of Heck that we examine the district court's
conclusion that Gresbach is not entitled to qualified immunity.
II.
On February 4, 2004, a female family member of eight year-old Ian made a
child abuse report to the Bureau, stating that Ian told her that Michael C.,
Ian's stepfather, hit him on the wrists with a plastic stick on January 28,
2004. On February 5th, Dana Gresbach, an agent with the Bureau since 1998,
was assigned the case. During the next four days, Gresbach reviewed the
child abuse report, met with a manager at the Bureau, Rita Zappen, and spoke
to the family member who reported the abuse.
On February 9th, Gresbach went to Ian's private school, Good Hope Christian
Academy ("Good Hope"), to interview Ian and his stepsister,
nine-year-old Alexis.
When Gresbach arrived at Good Hope, she met with Principal Cheryl Reetz.
Gresbach handed Reetz her business card and told Reetz that she needed to
see Ian and Alexis. Reetz was unfamiliar with her own role in a child abuse
investigation--the only real training she had received was annual review of
the faculty handbook, which delineates a teacher's responsibilities as a
mandatory reporter of child abuse. Reetz asked Gresbach if she could call
the children's parents, to which Gresbach said no, and that Gresbach would
contact the parents herself after she had spoken with Ian and Alexis. Reetz
also asked Gresbach if she could observe the interviews, and Gresbach
responded that Reetz need not do so.
According to Reetz, she was concerned about allowing Gresbach to interview
the children without parental consent, but she assumed that because Gresbach
was a Bureau caseworker, Reetz was legally obligated to allow Gresbach to
see the children, and that she was legally prohibited from contacting the
children's parents.
Gresbach did not ask permission from Reetz to physically examine Ian and
Alexis for signs of abuse; she believed she was not obliged to do so,
because § 48.981(3)(c)1 gave her the authority to conduct an interview and
possible physical examination of the children without consent. Under Heck,
Gresbach's belief was inaccurate.
Reetz allowed Gresbach to use her office to conduct the interviews, and she
retrieved the children from their classrooms. Gresbach spent ten to fifteen
minutes alone in the office with each child. Ian told Gresbach that Michael
C. sometimes hit him with a flexible stick.
Gresbach examined Ian's wrist for injuries, but did not see any. Gresbach
asked the child to pull up his shirt, and Ian complied. Gresbach inspected
his back for suspicious injuries, but found none. During her interview,
Alexis told Gresbach that her parents sometimes gave her "whoppings,"
but denied receiving any marks or injuries.
Gresbach asked Alexis to pull down her tights and lift up her dress, and
Alexis did so. Gresbach examined her legs for any injuries, and found none.
Gresbach finished the interviews and left the school.
Gresbach later spoke with the children's mother, who was very upset about
what had happened at the school.
The Bureau made attempts to meet with the parents and step-parents of Ian
and Alexis, but the meetings never occurred. Because no injuries were
observed on the children, the Bureau eventually closed the case.
On June 15, 2005, Plaintiffs (individually and on behalf of their minor
children, Alexis and Ian) sued Gresbach, individually and in her official
capacity, and Denise Revels Robinson (the Bureau's director) and Helene
Nelson (the Bureau's secretary) in their official capacities.
Plaintiffs alleged that the defendants (1) subjected each child to an
unreasonable search and seizure at their private school, in violation of the
Fourth Amendment; (2) violated all of the Plaintiffs' rights to familial
relations under the Fourteenth Amendment; and (3) violated all of the
Plaintiffs's rights to procedural due process under the Fourteenth
Amendment. Plaintiffs also challenged the constitutionality of Wis. Stat. §
48.981(3)(c)1 as applied, sought an injunction against defendants to
prohibit enforcement of the statute in a manner inconsistent with
Plaintiffs' constitutional rights and to direct defendants to amend their
procedures and personnel training, and requested a declaration that the last
sentence of § 48.981(3)(c)1 was unconstitutional. The defendants responded
that their conduct did not violate any clearly established constitutional
rights, and that therefore they were protected by qualified immunity. Both
parties moved for summary judgment.
On March 19, 2007, the district court granted partial summary judgment in
favor of the Plaintiffs, finding that Gresbach violated the children's
Fourth Amendment rights to be free from unreasonable searches and seizures.
The court held that while Gresbach obtained voluntary consent from Reetz to
conduct interviews of the children, Gresbach did not have consent to conduct
the searches of the children's bodies, thus violating their rights to be
free from unreasonable searches. The court further found that those rights
were clearly established at the time of the alleged violation under Heck, in
that a reasonable child welfare worker would have known that she lacked
authority to conduct such a search. Accordingly, the court denied Gresbach's
motion for summary judgment under qualified immunity.2 III.
We review a district court's denial of summary judgment on qualified
immunity grounds de novo. Sallenger v. Oakes, 473
F.3d 731, 739 (7th Cir. 2007). We will affirm the district court's
judgment if we find that a plaintiff "present[ed] a version of the
facts that is supported by the evidence and under which defendants would not
be entitled to qualified immunity." Borello v. Allison, 446
F.3d 742, 746 (7th Cir. 2006) (citation omitted). Under the qualified
immunity analysis, an official performing discretionary functions is immune
from suit if her "conduct could reasonably have been thought consistent
with the rights she is alleged to have violated." Id. (internal
quotations omitted).
When evaluating a qualified immunity claim, we must first decide whether,
taken in the light most favorable to the plaintiffs, the facts show that the
official's conduct violated a constitutional right. Finkel v. Cruppenink, 326
F.3d 903, 906 (7th Cir. 2003) (citing Saucier v. Katz, 533
U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). "Only if the
answer is affirmative does the court inquire whether the official enjoys
qualified immunity." Hosty v. Carter, 412
F.3d 731, 733 (7th Cir. 2005). If a constitutional violation could be
made out on a favorable view of the parties' submissions, the next step is
to ask whether the right was "clearly established." Id. To be
"clearly established," the contours of the right must be
sufficiently clear that a reasonable official would under- stand that what
she is doing violates that right. Landstrom v. Illinois Dept. of Children
and Family Services, 892 F.2d 670,
675 (7th Cir. 1990) (quoting Anderson v. Creighton, 483 U.S.
635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1986)). If the right was
"clearly established," the official is not entitled to qualified
immunity from suit.
A. Violation of a Constitutional Right Our threshold inquiry is whether
Gresbach violated Ian and Alexis's Fourth Amendment rights to be free from
unreasonable searches. The Fourth Amendment, as applied to the states
through the Fourteenth Amendment, protects individuals against unreasonable
searches and seizures of their persons, homes, and effects, without a
warrant supported by probable cause. See
First we determine whether Gresbach's conduct constituted a
"search" within the meaning of the Fourth Amend ment. "When
the Fourth Amendment was ratified, as now, to `search' meant `to look over
or through for the purpose of finding something; to explore; to examine by
inspection. . . .' " Heck, 327 F.3d at 510 (quoting Kyllo v. United
States, 533 U.S. 27, 33 n.1, 121
S.Ct. 2038, 150 L.Ed.2d 94 (2001)); see Johnson v. Phelan, 69
F.3d 144, 145 (7th Cir. 1995) (holding that observation of unclothed
bodies is a form of a search under the Fourth Amendment).
Within the context of child abuse investigations, physical examinations
conducted by child welfare caseworkers, that include visual examinations of
portions of a child's body which are normally covered by clothing, implicate
Fourth Amendment concerns, and are within the scope of searches under the
amendment. Daryl H., 801 F.2d at 899-900. Thus, the visual observations of
Ian's stomach and Alexis's legs by Gresbach to look for signs of abuse must
be searches under the scope of the Fourth Amendment.
Of course, the Fourth Amendment prohibits only those searches that are
unreasonable. See Vernonia School Dist. 47J v. Acton, 515
U.S. 646, 652, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) ("As the text
of the Fourth Amendment indicates, the ultimate measure of the
constitutionality of a governmental search is reasonableness.");
Stanley v. Henson, 337 F.3d 961,
964 (7th Cir. 2003) ("Included within the Fourth Amendment's protection
is the right to be free from unreasonable searches of one's unclothed
body."). To determine reasonableness under the Fourth Amendment, we
balance the degree of the intrusion on the individual's privacy interests
against the government's need for the search. Shell v. United States, 448
F.3d 951, 956 (7th Cir. 2006). "[W]hether a search is `reasonable,'
in the constitutional sense, will vary according to the context of the
search." Daryl H., 801 F.2d at 900. Gresbach's searches of the
children's bodies took place on private property, and Heck made clear that a
warrantless search conducted on private property is presumptively
unreasonable, whether the government's motivation is to investigate
violations of criminal laws or breaches of other statutory standards, so
long as the person has a reasonable expectation of privacy in the premises
on which the search took place.
Heck, 327 F.3d at 511 (citations omitted).
A reasonable expectation of privacy is present for Fourth Amendment purposes
when (1) one exhibits an actual or subjective expectation of privacy, and
(2) that expectation is one that society is prepared to recognize as
reasonable. United States v. Amaral-Estrada,
Moreover, an expectation of privacy is objectively reasonable where parents
who place their children in private schools expect that the parents' express
delegation of parental authority to school officials will be both
acknowledged and respected by government actors. Heck, 327 F.3d at 512. We
find that Plaintiffs had a legitimate expectation of privacy at Good Hope,
and therefore the searches of the children's bodies to investigate child
abuse were presumptively unreasonable, unless they fall within an exception
to the warrant requirement of the Fourth Amendment. See id. at 511.
Gresbach argues that it is objectively reasonable under the Fourth Amendment
for a child welfare agent to visually inspect these areas of a child's body
for injuries after receiving general consent from the child's private school
principal to investigate child abuse. An established exception to the
warrant requirement is a search conducted pursuant to consent. Schneckloth
v. Bustamonte, 412 U.S. 218, 219,
93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Moore, 375
F.3d 580, 585 (7th Cir. 2004).
We are aware that this exception is grudgingly granted because "the
privacy interests protected by the Fourth Amendment are to be jealously
guarded." Heck, 327 F.3d at 513 (quoting Wilson v. Health & Hosp.
Corp. of Marion County, 620 F.2d 1201,
1209 (7th Cir. 1980)). A consensual search is manifestly reasonable under
the Fourth Amendment as long as it remains within the scope of consent. See
Florida v. Jimeno, 500 U.S. 248,
251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). The scope of consent is
"limited by the breadth of actual consent, and whether the search
remained within the boundaries of the consent is a question of fact to be
determined from the totality of all the circumstances." United States
v. Long, 425 F.3d 482, 486 (7th
Cir. 2005) (citation omitted). "In determining the scope of a
defendant's consent, we apply an objective standard: `what would the typical
reasonable person have understood by the exchange between the offic[ial] and
the [consentor]?' " Id. (quoting United States v. Raney, 342
F.3d 551, 556 (7th Cir. 2003)).
Applied to the case sub judice, the inquiry is whether it was reasonable for
Gresbach to believe that Reetz's consent to interview the children included
consent to conduct a search of the children's bodies. We find that it was
not. Based on Gresbach's representations that she needed to "see the
children" to investigate a child abuse allegation, and that Reetz need
not be present for the interview, Reetz allowed Gresbach to speak to the
children privately in order to obtain their statements about an allegation
of child abuse. A reasonable person would not have interpreted this to mean
that Reetz authorized Gresbach to search the children's bodies. It is
undisputed that Gresbach did not ask Reetz for permission to search the
children for injuries. Gresbach argues that Reetz's "general
consent" to interview included the consent to inspect the children's
bodies, but she cites to no supporting relevant authority, and we are
unaware of any case under Fourth Amendment jurisprudence that proscribes
this notion.
In some instances, the line implicating Fourth Amendment concerns is blurred
when it applies to the government and child abuse investigations. See Heck,
327 F.3d at 514 (acknowledging that there are circumstances in which the law
of warrant and probable cause does not work effectively in the child removal
or child examination context); Landstrom, 892 F.2d at 676 (holding that a
search or seizure of a child by a state social worker must be
"reasonable," but that does not necessarily require probable cause
or a warrant); Daryl H., 801 F.2d at 902 (stating that the government must
fulfill its responsibility to protect the young under difficult
circumstances).
Recognizing the sensitive nature of these types of investigations, officials
may make a search or seizure under exigent circumstances, where they have
reason to believe life or limb is in jeopardy.3 See Brokaw, 235 F.3d at
1010. We do not exempt child welfare workers from adhering to basic Fourth
Amendment principles under non-exigent circumstances--to do so would be
imprudent. In these circumstances, caseworkers can take preliminary steps
short of searches, such as interviewing the child and a parent, or obtaining
a warrant either personally to conduct a search or to have a doctor perform
the search. See Roe v. Texas Dept. of Protective and Regulatory Services, 299
F.3d 395, 407 (5th Cir. 2002).
Gresbach advocates the position that a warrant is for police officers, not
caseworkers, and that the probable cause and warrant requirement are more
appropriately geared towards the investigation of the abusers, not the
victims. We disagree. The Fourth Amendment preserves the right to be free
from warrantless searches by the government, without limiting that right to
one type of official. See Calabretta v. Floyd, 189
F.3d 808, 813-14 (9th Cir. 1999). The requirement that a child welfare
worker obtain the equivalent of a warrant before conducting a search (absent
exigent circumstances) can effectively protect children, without having to
excuse workers from obtaining advance judicial approval of searches and
seizures. Heck, 327 F.3d at 514; see Tenenbaum, 193 F.3d at 604.
Additionally, nothing in the record supports Gresbach's belief that
obtaining a warrant would have delayed and thus compromised her
investigation.
Because Gresbach conducted a search of each child on private property
without consent, a warrant or probable cause, or exigent circumstances, Ian
and Alexis's Fourth Amendment rights to be free from unreasonable searches
were violated.
B. Clearly Established Law Despite her participation in this
constitutionally impermissible conduct, Gresbach may nevertheless be
shielded from liability for civil damages if Plaintiffs fail to meet their
burden of proving that Gresbach's actions violated clearly established
statutory or constitutional rights of which a reasonable person would have
known. Hope v. Pelzer, 536 U.S. 730,
739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (citing Harlow v. Fitzgerald, 457
U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)); Sonnleitner v.
York, 304 F.3d 704, 716-17 (7th
Cir. 2002). In determining whether a defendant's alleged actions violated a
clearly established right, courts may properly take into account any
information the defendant should have reasonably obtained. Jones v. Wilhelm,
425 F.3d 455, 461 (7th Cir.
2005).
Moreover, the salient question is whether the law at the time of the
disputed conduct gave defendants fair warning that their alleged treatment
of plaintiffs was unconstitutional. Id.; see also Creighton, 483 U.S. at
640, 107 S.Ct. 3034 ("This is not to say that an official action is
protected by qualified immunity unless the very action in question has
previously been held unlawful, . . . but it is to say that in the light of
pre-existing law the unlawfulness must be apparent.") (internal
citations omitted).
As we stated above, the structures of the Fourth Amendment apply to social
workers. Heck, 327 F.3d at 511. Plaintiffs argue that our decision in Heck
precludes Gresbach's understanding of her rights to conduct a child abuse
investigation under § 48.981(3)(c)1, and we agree. "[T]o the extent §
48.981(3)(c)1 authorizes government officials to conduct an investigation of
child abuse on private property without a warrant or probable cause,
consent, or exigent circumstances, the statute is unconstitutional."
Id. at 515-16. Considering the facts above in the light most favorable to
the Plaintiffs, we find that a reasonable child welfare worker would have
known that conducting a search of a child's body under his clothes, on
private property, without consent or the presence of any other exception to
the warrant requirement of the Fourth Amendment, is in direct violation of
the child's constitutional right to be free from unreasonable searches.
Gresbach argues that Heck is distinguishable from this case, because Heck
did not address the issue of scope of consent in the context of child abuse
investigations.
However, a general constitutional rule already identified may apply with
obvious clarity to the specific conduct in question, even though the very
action in question has not previously been held unlawful. Hope, 536 U.S. at
741, 122 S.Ct. 2508 (quoting Lanier, 520
U.S. 259, 27071, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)); see also
Jones, 410 F.3d at 1230 (holding that officials committing outrageous, yet
sui generis, constitutional violations ought not to shield their behavior
behind qualified immunity simply because another official has not previously
had the audacity to commit a similar transgression). Officials can still be
on notice that their conduct violates established law even in novel factual
circumstances. Hope, 536 U.S. at 741, 122 S.Ct. 2508. In this case, it was
clearly established that the scope of consent to interview does not extend
to a search of an individual's body under Jimeno and its progeny.
Gresbach further argues (as the caseworkers did in Heck) that we should
apply the "reasonableness" framework we laid out in Daryl H.,
where we held that the constitutionality of a visual inspection of a child's
body who may be a victim of child abuse should be evaluated under the
reasonableness test of the Fourth Amendment.
Daryl H., 892 F.2d at 902 ("[U]nder the circumstances of that
particular search in a public school, we could not say that a visual
inspection of a child's body can only be performed if a social worker has
probable cause or obtained a warrant."). We declined to accept this
argument in Heck, and we do the same here. The key difference between the
searches in Daryl H. and in Heck was that the search in Daryl H. took place
on public school grounds with the consent of public school officials,
whereas in Heck, as here, the search took place on private property.
Heck, 327 F.3d at 514. Heck found that Daryl H. stood for the proposition
that a lower standard of scrutiny applies to searches and seizures conducted
by government officials on public school property. Id. (citing Brokaw, 235
F.3d at 1011). This case falls squarely within the scope of Heck, as the
search took place at a private school.
While we recognize that "child welfare caseworkers are often called
upon to make difficult decisions without the benefit of extended
deliberation" in order to prevent "the most vulnerable members of
society, children of tender years, from being physically abused," Heck,
327 F.3d at 525, we do not believe that requiring a child welfare caseworker
to act in accordance with basic Fourth Amendment principles is an undue
burden on the child welfare system, particularly when it is necessary to
conduct an examination of a child's body, which is undoubtedly
"frightening, humiliating, and intrusive" to the child. At the
time Gresbach conducted the searches at Good Hope in 2004, there was a
clearly established doctrine as to what actions a Bureau caseworker must
take when conducting a child abuse investigation at a private school.
Today we reiterate Heck's definitive holding, along the lines of the Fourth
Amendment principles outlined above, that it is a violation of a child's
constitutional rights to conduct a search of a child at a private school
without a warrant or probable cause, consent, or exigent circumstances.
CONCLUSION For the foregoing reasons, the judgment of the district court is
AFFIRMED.
USCA-02-C-0072--5-19-08
1 Section 48.981(3)(c)1 provides, in pertinent part, that "[t]he agency
may contact, observe or interview the child at any location without
permission from the child's parent, guardian, or legal custodian if
necessary to determine if the child is in need of protection or services,
except that the person making the investigation may enter a child's dwelling
only with permission from the child's parent, guardian, or legal custodian
or after obtaining a court order."
2 The district court dismissed all
of Plaintiffs' claims for equitable relief, which included all claims
against Robinson and Nelson, as well as supplemental state law claims--none
of which are issues before us today. The court further denied defendants'
motion for summary judgment on Plaintiffs' due process claims without
prejudice, and granted a stay, pending this appeal.
3 Heck foreclosed the justification of the "special needs"
exemption in this context, because states have "the ability to take
immediate action to ensure the physical safety of a child suspected of abuse
who is located on private property" through the exigent circumstances
exception to the warrant requirement of the Fourth Amendment. Heck, 327 F.3d
at 517 n. 20. While it seems unlikely from the record that Gresbach could
have reasonably suspected the children's safety was at risk, she does not
raise this issue on appeal.