THE SUPREME COURT
OF THE UNITED STATES
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No. 2004-437
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State of Olympus Department of Social Services and Samantha Sommerman,
Petitioners
v.
William and Mary DeNolf, Respondents
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On Writ of Certiorari to the
United States Circuit Court of Appeals
Seventeenth Circuit
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ORDER OF THE COURT ON SUBMISSION
The petition for writ of certiorari to the United States Court of Appeals for
the Seventeenth Circuit is granted for consideration of the following questions
presented:
IT IS THEREFORE ORDERED that counsel appear before the Supreme Court to present oral argument on the following issues:
(1) Whether the search and seizure in question was reasonable under the Fourth Amendment to the United States Constitution;
and,
(2) Whether the petitioners are entitled to summary judgment as the law at the time of the search and seizure was not sufficiently “clearly established.”
U. S. Circuit Court of Appeals
Seventeenth Circuit
State of Olympus Department of Social Services and Samantha Sommerman,
Petitioners-Appellants
v.
William and Mary DeNolf, Defendants-Appellees
No.CR-04-17-2
State of Olympus Department of Social Services
And Samantha Sommerman
Petitioner-Appellant
v.
William and Mary DeNolf
Defendant-Appellee
OPINION
Opinion by Judge Keith Greiner
with Judge Melanie Pfaffinger concurring
Dissent by Judge Dan Maloney
Argued and Submitted
May 1, 2004
Decided
August 20, 2004
_________________________________________________________________
_________________________________________________________________
OPINION
Greiner, Circuit Court Judge:
This case implicates a clash involving two interests of the highest order. The
balance between the legitimate role of the state in seeking to protect children
from abusive or neglectful parents and the rights of children and their parents
to be free from arbitrary and unwarranted governmental interference is as
crucial as any area that a government may become involved. Unfortunately, such
conflicts occur all too often. The problem of child abuse is a significant one
which can lead to grave personal and societal costs. Conversely, any attempt to
loosen the deep bonds of a family must be examined with profound concern for the
positive societal benefits of maintaining a strong family unit. It is with this
balance in mind that we turn to the facts of the dispute at hand. The following
facts have been stipulated to by all parties.
-I-
On February 25, 2004, Samantha Sommerman, a caseworker with the Olympus
Department of Social Services (DSS), received an anonymous letter alleging that
William and Mary DeNolf constantly left their two children, Gabe, age 5 and
Lucy, age 3, alone or unsupervised in the home. The letter also alleged that Mr.
DeNolf was “overly affectionate” towards his daughter.
The social worker
immediately conducted a record check to see if there had been any previous
reports of abuse or neglect. She discovered no such reports, but learned that
the DeNolfs had adopted Gabe and Lucy through DSS two years earlier and that
they receive $1,258 per month from DSS in county adoption subsidies because Gabe
and Lucy have special physical and educational needs. As a condition of
continuing to receive the subsidy, the DeNolfs had agreed to provide DSS with
annual proof that the children had been seen by a physician and were in good
health. The social worker noted that the DeNolfs were one month overdue in
providing this proof for the current year.
Later that same day, Ms. Sommerman drove to the DeNolf’s modest home, which is
on a quiet cul-de-sac. She knocked on the front door but no one answered.
Sommerman thought she could hear voices inside, possibly children’s, so she
phoned the DeNolf residence, but got their answering machine. On the message,
she identified herself as a caseworker employed by DSS, left her cell phone
number, and stated that she would come to the DeNolf’s home at 10:a.m. the
following day. Sommerman did not discuss the allegations on the message.
As she was getting into
her marked county car, two elderly women came out of the house next door to the
DeNolf’s and approached her, identifying themselves as sisters, and neighbors of
the DeNolf’s. Sommerman decided to question the women to gauge the accuracy of
the allegations. One of the sisters, Mabel Jones, had a particularly negative
perception of the DeNolf’s parenting skills, and reported that she often
observed the children playing unsupervised in the family’s yard. She also
reported being concerned that the families’ dog, a border collie – chow mix,
often circled the children while they were outside, and seemed aggressive
towards them.
Her sister disagreed with
Mabel’s perceptions, and told Sommerman that the children did often play in the
yard alone, but only when one or both of the parents were home, and watching
from inside. She also felt that the dog was protective of the children, not
aggressive towards them. Hazel Jones also told Sommerman that the DeNolfs were
very loving toward their children. In response to specific questioning, she said
that Mr. Denolf was “extremely affectionate” with both of his children, and that
she approved of such a loving relationship. At Sommerman’s prompting, the
elderly woman fondly recalled an incident about a month earlier when she saw
Lucy run out of the DeNolf’s house completely naked and crying hysterically.
“Her daddy told me that Lucy had just been sent to the bathtub when she spotted
her dog out alone in the driveway,” the neighbor told the social worker. “She
wasn’t in any danger though, because her daddy fetched her right back in the
house in less than a minute.”
Mabel recalled that
incident a bit differently, adding that she was “very shocked that the little
girl would be allowed to run about naked, and that the father kissed her on the
belly while carrying her, unclothed, back into the house.” She told Sommerman,
“He didn’t even bring a towel out to wrap her in!” In Mabel’s words, the
father’s extreme affection was “disturbing; almost dirty.” She told Sommerman
that Lucy is, “such a pretty girl, but always running around without clothes,
and her daddy seems to encourage it.” She predicted that there would be trouble
to come in disciplining the children, especially around sexual issues. All in
all, she told Sommerman, the family seems “a bit too free.”
Though they disagreed on the parenting style of the DeNolf’s, the elderly
sisters did both confirm that Mr. DeNolf had left for work several hours ago and
that Mrs. DeNolf has recently left to go to the store. The neighbors were unsure
whether the children were with Mrs. DeNolf when she left.
When Mrs. DeNolf listened
to Sommerman’s message she assumed that the topic of the meeting would be the
annual physicals, which she had forgotten about until she received Ms.
Sommerman’s call. She quickly made an appointment with the children’s
pediatrician for the following week. She asked her husband to pick up an
appointment card on his way home from work so she could show it to the social
worker the following day.
The next day, Sommerman
arrived at the DeNolf home at 10 o’clock. When Mrs. DeNolf answered the door,
Sommerman handed her a business card, which identified her as an “Emergency
Child Welfare Investigator,” and told Mrs. DeNolf that she was investigating a
report of failing to supervise her children and possible sexual abuse.
Mrs. DeNolf expressed
surprise and said she thought the meeting was just a routine follow-up on the
children’s physical exams. Had she known the reason for Sommerman’s presence,
Mrs. DeNolf continued, she would have called her lawyer as soon as she got the
phone message. She indicated her willingness to cooperate but stated that her
husband was not home and she would prefer to wait until he was present to talk
with her.
Ms. Sommerman persisted
and said that it was necessary for her to enter the home to interview the
children immediately. Mrs. DeNolf asked Ms. Sommerman if she could call her
husband and have him come home from work before admitting the social worker. She
explained that he worked nearby and it would take him less than a half hour to
come home.
To this Ms. Sommerman
responded, “Do you have something to hide? Don’t you know that if you don’t let
me in right now I can just call the police and have the children removed?”
Fearing the loss of her children, Mrs. DeNolf stepped back from the door and the
social worker walked in. Mrs. DeNolf immediately called her husband and asked
him to come home.
Once in the home, Mrs.
DeNolf called her children into the living room, where the social worker could
see that they were clean, well dressed, and obviously in good health. The social
worker insisted on interviewing the children apart from their mother.
Again, Mrs. DeNolf
objected. Ms. Sommerman said, “Look, I don’t have time for this. If you refuse
to let me talk to them privately I will take them to my car and drive them to my
office right now.”
Mrs. DeNolf told her
children to go with the social worker who took them into a back bedroom and
locked the door. Sommerman questioned the children about their parents and
regarding any inappropriate touching by their father, which the children denied.
She then removed 3-year-old Lucy’s clothing to inspect for any unusual marks on
their bottoms or her genital region. When she approached 5 year-old Gabe to do
the same, he began to cry and call for his mother. Sommerman told him she must
do as she said and he quieted down while she stripped him and looked for marks.
At this point, Mr. DeNolf
arrived home with his attorney and demanded to see his children. Finding no
physical evidence of abuse, the social worker opened the door to the parents,
told them she would likely return for future visits to look for signs of
neglect, and departed the home. The investigation was later closed as
“unsubstantiated.”
The plaintiffs filed suit
under Rev. Stat. § 1979, 42 U.S.C. § 1983 alleging that the State of Olympus
Department of Social Services and Ms. Samantha Sommerman in investigating
reports of alleged child abuse have deprived them of their rights under the
United States Constitution to, among other protections, freedom from unlawful
searches and seizures and due process of law. The respondents seek damages. The
District Court ruled that the plaintiffs were not entitled to qualified
immunity. That court found that the social worker’s comments were coercive and
that consent to the search was not voluntary creating a violation of the
respondent’s Fourth Amendment rights. The plaintiffs appeal. We affirm on both
grounds.
-II-
In deciding whether an agent of the state is entitled to qualified immunity,
we must first determine whether the agent’s alleged conduct violated a
constitutional right, and if so, whether the asserted right was “clearly
established.”
As a general rule,
searches conducted by the state without probable cause are presumptively
invalid. Despite the good intentions of the state agents in this case, there is
no reason to abandon this time tested concept. In Indianapolis v. Edmond 531
U.S. 32 (2000), the United States Supreme Court held that when agents of the
state pursue general crime control, probable cause is necessary to allow a
search. In this instance, the social worker took it upon herself to conduct an
extremely broad and invasive search. She did so without a modicum of probable
cause and did so clearly without consent. The consent was so clearly lacking in
this case that it is inconceivable to gloss over that aspect of the dispute. The
appellee, threatened with the immediate loss of her children, was not in a
position to refuse the “request” of the social worker. In United States v.
Drayton 536 U.S. 194 (2002), the Supreme Court held that a search at the request
of a law enforcement official is voluntary so long as a reasonable person would
feel free in that situation to terminate the encounter. No reasonable person,
faced with the choice between asserting their constitutional rights or the
imminent loss of their parental rights, would feel free to terminate the
encounter and face the loss of their children. Further, this threat was not
speculative. The social worker told the appellee that she would immediately take
her children away. A more coercive environment is hard to imagine.
Further, it is the
government's burden to prove that the consent was freely and voluntarily given.
See Bumper v. North Carolina, 391 U.S. 543 (1968). This applies with great force
when a person is threatened with the loss of their children. See Lynumn v.
Illinois, 372 U.S. 528 (1963) (all of the officers on the scene told defendant
that her infant children would be taken from her if she did not cooperate; held,
confession was not voluntary but coerced); United States v. Tingle, 658 F.2d
1332 (9th Cir. 1981) (confession rendered involuntary by police officer’s
unmitigated statements that defendant would not see her child “for a while” if
she did not cooperate, and, referring specifically to her child, that she had “a
lot at stake”).
-III-
Having found the search in this case to have been unreasonable, we now turn
to the issue of damages. Government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known. The right the official is alleged to have
violated must have been “clearly established” in an appropriately particularized
sense. The contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right. That 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 readily apparent.
Accordingly, the relevant question is the objective question whether a
reasonable agent could have believed the warrantless search to be lawful, in
light of clearly established law and the information the searching agents
possessed. The officer's subjective beliefs about the search are irrelevant.
Specific binding precedent is not required to show that a right is clearly
established for qualified immunity purposes. See Harlow v. Fitzgerald, 457 U.S.
800 (1982); Anderson v. Creighton, 483 U.S. 635 (1987).
The parties' principal
dispute in this case concerns whether qualified immunity shields the plaintiffs
from any liability arising out of the defendant’s constitutional claims. In
Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court held that a court's
qualified immunity analysis must proceed in two steps. The threshold inquiry is
whether, taken in the light most favorable to the party asserting the injury,
“the facts alleged show the officer's conduct violated a constitutional right.”
This must be the initial inquiry. If no constitutional right would have been
violated were the allegations established, there is no necessity for further
inquiries concerning qualified immunity. If, on the other hand, “a violation
could be made out on a favorable view of the parties' submissions, the next,
sequential step is to ask whether the right was clearly established.” With these
principles in mind, we now consider the merits of the plaintiffs’ claims on
appeal.
In Hope v. Pelzer 536
U.S. 730 (2002), the Supreme Court recently elaborated on what is required for a
particular right to be “clearly established” in the context of qualified
immunity. Reiterating what it previously had said, the Court explained: “For a
constitutional right to be clearly established, its contours must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right. 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.” Anderson v. Creighton, 483 U.S. 635
(1987).
As the facts are alleged
by DeNolf, the Fourth Amendment violation is obvious. Any safety concerns had
long since abated by the time petitioner took the children into a back bedroom,
away from their mother, to conduct the intrusive strip search. The agent, by
that time, had already seen that the children were “clean, well dressed, and
obviously in good health” and thus were in no immediate danger. Nonetheless, the
agent still took immediate action despite requests to wait for Mr. DeNolf and
their legal counsel and in full knowledge that no emergency justified such
action. Such utter disregard for parental rights cannot be ignored if a proper
balance of rights is to be struck.
Despite their
participation in this constitutionally impermissible conduct, the petitioners
may nevertheless be shielded from liability for civil damages if their actions
did not violate “clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800
(1982). That the law be clearly established is crucial as agents sued in a civil
action for damages under 42 U.S.C. § 1983 have the same right to fair notice as
do defendants charged with the criminal offense. The salient question then is
whether the petitioners had fair warning that their mistreatment of the DeNolf’s
was unconstitutional. As the above discussion amply demonstrates, the law in
this instance was clearly established. A threat to remove a child from the legal
custody of a parent is coercion of the highest order. Since the agent had no
legitimate reason to fear for the immediate safety of the children at the time
she undertook the invasive strip search, no reasonable person could have claimed
that the law was anything but clear. Recent cases clearly demonstrate the
certitude of this question. In Calabretta v. Floyd 189 F.3d 808 (1999), that
court held that “any government official can be held to know that their office
does not give them an unrestricted right to enter peoples' homes at will.”
Further, in Ram v. Rubin, 118 F.3d 1306 (9th C. 1997), that court held that a
social worker and a police officer who removed minor children from the custody
of their father without prior notice or a hearing are not immune from suit under
the doctrine of qualified immunity. These decisions, coupled with the vitality
of Lynumn and Tingle, could not seriously be questioned in light of numerous
Supreme Court decisions holding that a search conducted without a warrant and
lacking voluntary consent is unconstitutional.
Accordingly, the decision
is affirmed.
DISSENT
Maloney, Circuit Court Judge:
Ordinarily, searches conducted by the state without probable cause are
presumptively invalid. However, there are myriad exceptions to this rule which
apply to the facts at hand. In Wyman v. James 400 U.S. 309 (1971), the United
States Supreme Court held that when an agent of the state undertakes an
investigation with a valid and proper administrative purpose, any search which
ensues is not “an unwarranted invasion of personal privacy” and thus does not
violate the Fourth Amendment. In that case, the Court upheld the right of an
AFDC caseworker to conduct a home visit to ensure compliance with the terms of
the program. The logic of that decision has many parallels to the current
situation. Even assuming that the home visit had some of the characteristics of
a traditional search, the Court found “New York's program reasonable, as it
serves the paramount needs of the dependent child; enables the State to
determine that the intended objects of its assistance benefit from its aid and
that state funds are being properly used; provides essential information not
obtainable through secondary sources; is conducted, not by a law enforcement
officer, but by a caseworker; is not a criminal investigation; and (unlike the
warrant procedure, which necessarily implies criminal conduct) comports with the
objectives of welfare administration.” Each of these concerns is present in this
case. Further, the importance of obtaining this information is far more vital to
the interests of society in a case involving the possible abuse or neglect of
children that in a welfare benefits dispute.
The Supreme Court has
also found that the state’s need for information outweighs any reasonable
expectation of privacy in a variety of contexts where the state has an interest
in protecting the welfare of specific groups of citizens. See Griffin v.
Wisconsin, 483 U.S. 868 (1987) (upholding the warrantless search of a
probationer’s home on less that probable cause due to society’s interest in
ensuring the terms of probation are met); and New Jersey v. T.L.O., 469 U.S. 325
(1985) (upholding the search of a student’s personal belongings on school
property on less than probable cause due to society’s interest in promoting safe
schools). The Court has also held that even suspicionless searches may be
justified if they serve compelling societal interests and are not directed at
general crime control. See Board of Education v. Earls, 536 U.S. 822 (2002)
(upholding random drug testing for high school students participating in
extracurricular activities as a means to combat the drug problem in schools);
and Illinois v. Lidster, 124 U.S. 885 (2004) (upholding a random traffic stop
for to gather information about a specific criminal investigation). In this
case, the State clearly has a compelling interest in protecting its children.
The means chosen to accomplish this end, a home visit and inspection of the
children based on reasonable suspicion is certainly not an illegitimate means of
achieving a clearly constitutional end.
Other federal courts have
already upheld actions similar to the one in question today. In E.Z. v. Coler,
603 F. Supp. 1546, (1985), the United States District Court for the Northern
District of Illinois held that strip searches of suspected child abuse victims
in their homes by state investigators without search warrants or parental
consent do not violate the Fourth Amendment so long as such examinations are
limited to those necessary to verify allegations of abuse. The court further
reasoned that requiring a warrant or probable cause would hinder effective child
abuse investigations and could result in death or injury of abused children.
I find this logic
persuasive. The protection of children is as solemn an obligation as any a state
may undertake. In dealing with suspected cases of child abuse, the state must be
given wide latitude in pursing an investigation. Sometimes, like in the case at
bar, the charges will turn out to be unsupported, and as a result, blameless
parents will be inconvenienced and their children shaken from their regular
routine. However, according to the National Clearinghouse on Child Abuse and
Neglect Information, a service of the U.S. Department of Health and Human
Services, children were victimized in America at a rate of 12.4 per 1,000
children, resulting in 903,000 children having been found to be victims of child
maltreatment in 2001, the most recent year for which statistics are available.
More than half of these victims suffered neglect (57%), nearly one fifth (19%)
were physically abused, and one out of ten was sexually abused (10%). Fatalities
resulting from child abuse occurred at a rate of 1.81 per 100,000 children. With
these statistics in mind, this seems a small price to pay to allow the state to
continue this noble fight.
-II-
Regardless of the constitutionality of the search, the respondents also
contend that the scope of the search in this case, involving a strip search of
their children outside of the presence of their parents, and without the
assistance of counsel was so far beyond the standards that society is prepared
to accept as reasonable as to strip qualified immunity in the case at hand. I
would reject this conclusion. In deciding whether an agent of the state is
entitled to qualified immunity, the court must first determine whether the
agent’s conduct violated a constitutional right. In this case, I have found no
violation. However, even had the search been unreasonable, since no evidence
resulting from the search was ever used against the respondents in a criminal
proceeding, there can be no constitutional harm. Just last term, the United
States Supreme Court held that a coerced confession obtained from a suspect who
had been repeatedly shot and was questioned prior to receiving medical attention
could not abrogate the qualified immunity of the officer. The Court reasoned
that prior to the initiation of criminal proceedings; no constitutional harm was
done by taking the confession. Chavez v. Martinez 538 U.S. 760 (2003).
Similarly, as the investigation was subsequently closed in the matter at hand,
it is hard to see the constitutional infirmity.
It is also highly
debatable as to whether the law was “clearly established” at the time of the
search in question. The assertions of the majority to the contrary, I cannot
agree that any clarity exists in this area. Few areas of law are more muddled
that what constitutes an unreasonable search and seizure. While it is true that
as a general rule, searches conducted by the state without probable cause are
presumptively invalid, this rule has many exceptions. The Supreme Court has
identified no fewer than twenty exceptions to the warrant requirement for such
things as searches incident to arrest, automobile searches, border searches,
administrative searches of regulated businesses, exigent circumstances, search
of probationer’s homes, boat boarding for document checks, welfare searches,
inventory searches, airport searches, school searches, searches of mobile homes,
and searches of offices of government employees.
Indeed, the question of
searches pursuant to a report of child abuse is no clearer. For example, in E.Z.
v. Coler, 603 F. Supp. 1546, (1985) nude searches of suspected child abuse
victims in their homes by state investigators without search warrants or
parental consent were held to not violate the Fourth Amendment. In Doe v. Heck
327 F. 3d 492 (2003) caseworkers who without a warrant or parental notification
or consent repeatedly isolated and interviewed an 11 year old boy were, despite
the violation of parental rights, entitled to qualified immunity. Finally, in
Roe v. Texas Department of Protective and Regulatory Services 299 F. 3d 395
(2002), a social worker who visually searched the body cavities of a minor child
during a child abuse investigation was held entitled to qualified immunity. The
Fifth Circuit Court of Appeals held that while the issues raised a fact question
as to whether the search violated minor’s Fourth Amendment rights, because those
rights were not clearly established at the time of the search, qualified
immunity must be granted.
It is a very solemn duty
the state performs in protecting children. Many obstacles make that job
infinitely difficult. I believe it is wrong to add to that list by creating a
standard which holds social workers liable for attempting to do their job and
serve the compelling interests of the state.
TABLE OF CASES AND AUTHORITIES
1) Anderson v. Creighton, 483 U.S. 635 (1987)
2) Board of Education v. Earls, 536 U.S. 822 (2002)
3) Bumper v. North Carolina, 391 U.S. 543 (1968)
4) Calabretta v. Floyd, 189 F.3d 808 (1999)
5) Chavez v. Martinez, 538 U.S. 760 (2003)
6) Doe v. Heck, 327 F. 3d 492 (2003)
7) E.Z. v. Coler, 603 F. Supp. 1546, (1985)
8) Griffin v. Wisconsin, 483 U.S. 868 (1987)
9) Harlow v. Fitzgerald, 457 U.S. 800 (1982)
10) Hope v. Pelzer, 536 U.S. 730 (2002)
11) Illinois v. Lidster, 124 U.S. 885 (2004)
12) Indianapolis v. Edmond, 531 U.S. 32 (2000)
13) Lynumn v. Illinois, 372 U.S. 528 (1963)
14) New Jersey v. T.L.O., 469 U.S. 325 (1985)
15) Ram v. Rubin, 118 F.3d 1306 (9th C. 1997)
16) Roe v. Texas Dpt. of Protective and Regulatory Services, 299 F. 3d
395 (2002)
17) Saucier v. Katz, 533 U.S. 194 (2001)
18) United States v. Drayton, 536 U.S. 194 (2002)
19) United States v. Tingle, 658 F.2d 1332 (9th Cir. 1981)
20) Wyman v. James, 400 U.S. 309 (1971)
42 USCS § 1983 (2004)
§ 1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress, except that in any action brought against a judicial officer for an act
or omission taken in such officer's judicial capacity, injunctive relief shall
not be granted unless a declaratory decree was violated or declaratory relief
was unavailable. For the purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia shall be considered to be a
statute of the District of Columbia.