Do Social Workers Need Search Warrants?

I'm making a (relatively rare, these days) guest post today, with a rundown an interesting case that's being argued today before the US Supreme Court. The case, or rather a pair of cases arising from the same set of circumstances, will help bring some guidance to an important question for the child welfare system: When do social workers, talking to suspected abused children, need a search warrant?

The facts which gave rise to this case, titled Camreta v. Greene, are fairly straightforward and mostly undisputed. A child welfare referral was made in Oregon, alleging that S.G. and K.G. (both minor girls) were sexually abused by their father. Bob Camreta, a child welfare worker, and deputy sheriff James Alford, visited S.G.'s elementary school and pulled her from class to interview her. During most of a two hour interview (conducted with an armed cop in the room) S.G. denied that any abuse had taken place. Toward the end of the questioning, S.G. admitted to sexual abuse, although she said later she only did so to get the questioning to stop.

Armed with S.G.'s admission, S.G. and K.G. were taken into emergency custody and were given a medical exam to look for signs of sexual abuse. The girls' mother, Sarah, asked for and was denied permission to be present at the medical exam, which revealed no clear signs of sexual abuse. When the dependency petition was finally heard, faced with a lack of physical evidence and S.G.'s recantation of her confession, DHS requested and juvenile court ordered the children returned to Sarah's custody.

Sarah filed a civil rights lawsuit (under 42 USC 1983) on her own behalf and on behalf of her children. She argued, in essence, that the combined police/law enforcement interview violated S.G.'s Constitutional rights because it was conducted without a warrant, and that her parental rights were violated by not being permitted to be with S.G. during the medical exam when she was not suspected of any wrongdoing. (There was also a claim that Camreta had misrepresented certain facts in his dependency petition, but since the petition was ultimately dismissed, that was an issue of secondary importance with regard to the appeal.)

The Ninth Circuit Court of Appeals, in a decision written by Judge Marsha Berzon, concluded that Sarah's Constitutional rights, as well as those of S.G. and K.G., had been violated. Judge Berzon wrote that:

We hold, as we did in Calabretta, that “the general law of search warrants applie[s] to child abuse investigations.” Once the police have initiated a criminal investigation into alleged abuse in the home, responsible officials must provide procedural protections 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.”

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, or parental consent 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.

As regards the other issues, Judge Berzon ruled that, since Sarah was not suspected of any wrongdoing, it was a violation of her rights and the rights or her children to exclude her from being present at S.G.'s medical examination, and that her rights had been violated by having her children removed from her custody based without good reason (ie, because she was not suspected of any wrongdoing).

However, Judge Berzon also ruled that the Deputy Sheriff and social worker were entitled to qualified immunity with respect to the claims about the interview which was conducted without a search warrant. Judge Berzon explained that, because it was not clearly established at the time of Camreta and Alford's interview that search warrants were required when conducting a "custodial interrogation" of a child in the school setting, Camreta and Alford could not be held liable for damages.

So, how'd the US Supreme Court get involved? Curiously, both Camreta and Alford appealed Judge Berzon's decision, and they argued both that a search warrant shouldn't have been required prior to conducting their interview of S.G. and that they should have been given absolute immunity, rather than qualified immunity, for their actions.

The $64,000 question is this: Camreta and Alford essentially won in the Ninth Circuit, in that Judge Berzon's ruling gave them a free pass, in the form of qualified immunity, from any damages for their actions. So, why are they appealing, and why are they appealing BOTH the search warrant issue and the qualified immunity issue? Here's what I think: I'm betting that Bob Green very much would like the Supreme Court to decide that child welfare workers needn't bother with pesky details like search warrants, which require would probable cause - not mere suspicion - that child abuse has occurred. I'm betting he'd also like the Supreme Court to say that child protective workers are more like prosecutors than bureaucrats, and hence that they should have absolute immunity from consequences for their actions. Even (or especially) in cases like this one, where misconduct was alleged.

Jennifer Clark over at SCOTUSblog has an excellent rundown of the arguments that were made in the legal briefs, so I won't rehash that here. Instead, I'd like to offer my thoughts about why this case was appealed in the first place, and what I hope the Supreme Court will do here.

Personally, I believe child protective services workers should need a search warrant, and probable cause rather than mere suspicion, to interview a child outside of her/his parents' presence. Probable cause isn't an especially high bar, so it seems likely to me that requiring a warrant isn't likely to handicap CPS much where real abuse is happening. But it will unquestionably restrict the ability of social workers to go rooting in people's private lives based on unsubstantiated suspicions or personal animus. I also think, of course, that social workers should not have absolute immunity from the consequences of their actions or misconduct. There's too much abuse of discretion in that system already without giving social workers a permanent 'get out of jail free' card and a blank check to go fishing whenever they'd like.

Apparently, I'm not the only one who thinks this, either. A host of agencies, individuals, and legal professionals, including the Juvenile Law Center, New York University School of Law Family Defense Clinic, and the Pacific Justice Institute, filed amicus curiae briefs in support of Sarah Greene with the Supreme Court. By contrast, and not surprisingly, the National Association of Social Workers and a number of other agencies filed briefs in support of Mr. Camreta and/or Mr. Alford. In all, 29 different groups filed amicus briefs - 8 in support of Camreta or Alford, 18 in support of Ms. Greene's position, and 3 "in support of neither party".

What's the Supreme Court going to do? Who knows. The tenor of the questioning in today's argument may offer some clue, and I'll update this post with a link to the transcript and recording of the oral argument when they're available. However, the outcome has the power to dramatically change the legal landscape in which child welfare investigations operate, so suffice it to say there are a great many of people with either a personal or professional interest in the child welfare system who will be watching today's argument with a great deal of interest.

If you're one of the legal beagle types who, like me, enjoys reading case briefs, you can find them on the SCOTUSwiki pages here: Camreta v. Greene, Alford v. Greene