US Supreme Court Decides Camreta v. Green

FosterEema here with a legal update posting occasioned by a US Supreme Court decision issued yesterday morning. You may recall I previously wrote about Camreta v. Green, and I made a second post predicting what I thought the Supreme Court might do. So, what did the Supreme Court decide?

Yesterdays's decision, which you can read on the Court's web site (PDF), reached three conclusions. I'll share them all, even though only the first is only likely of interest to Constitutional Law geeks like me:

1. The fact that a government official "wins" a case by virtue of qualified immunity does not deny that official Article III standing to seek appellate review of the underlying Constitutional issue in the case.
2. In this case, the appeal is moot because the minor has left the State of Oregon and will soon turn 18, ensuring that she can never again be the subject of an Oregon social services investigation. Therefore, the appeal should be dismissed as moot.
3. Because the subsequent events (S.G. growing up and moving to Florida) render the case moot, the 9th Circuit's Constitutional decision has essentially become unreviewable. Since the Supreme Court's general practice is that no foundational Constitutional principle should be established "by default", the 9th Circuit's decision on the 4th Amendment issue is vacated pursuant to United States v. Munsingwear.

This is (mostly) the outcome I predicted, but let me take a minute to re-state for everyone what the practical effects of this decision are.

As a practical matter, the Ninth Circuit's holding (that search warrants are required when social services workers and police officers interview a child in a school setting*) is no longer valid law. Camreta v. Green can not be cited in any other case in support of that proposed rule, and CWS workers need not assume they will always need a search warrant in this context. Since the issue remains undecided, qualified immunity may be a defense to future Constitutional claims against social workers under the Fourth Amendment. The law as it now stands is, for all intents and purposes, as it was before Camreta v. Green was decided.

However, this statement carries with it a caution for child welfare professionals. Because the Supreme Court decided the case on mootness grounds, they did so without actually considering the Constitutional issue of when a search warrant is or is not required. For this reason, while social workers need not assume they always need a search warrant to conduct a custodial interview of a child in a school setting, neither can they safely assume that a search warrant is never required. It could well be, in some future case where the appeal is not frustrated by mootness, that the Supreme Court will rule that search warrants are required in this context.

My suspicion (and, I must admit, my hope) is that social services agencies will decide that obtaining a search warrant is cheaper than fighting yet another legal battle like the one Camreta and his employer fought here. In true exigent circumstances, of course, a warrant is not required. But I've always felt the idea that any child welfare investigation automatically constitutes exigent circumstances for the purposes of the Fourth Amendment is absolute nonsense. It remains to be seen, of course, whether the Supreme Court will ultimately agree with me, but I hope they do.

At the end of the day, we're back to where we were before this case was decided: The answer to the question "do social workers require search warrants to talk to a child in school?" is a very clear and unequivocal "who the heck knows?"

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* This case only reaches the Fourth Amendment issue in the context of an interview conducted in a school. In a prior case, Calabretta v. Floyd, the Ninth Circuit Court of Appeals decided that (at least within the states of AZ, CA, NV, ID, MT, OR, WA, AK, HI and the Northern Mariana Islands) a search warrant was required to conduct a forced interview and search of a child in the context of the family's home. This decision was never appealed to the Supreme Court, so it remains binding law within the Ninth Circuit's jurisdiction.

Update to "Do Social Workers Need Search Warrants"

A few weeks ago, I (FosterEema) posted about an interesting case now before the United States Supreme Court. That case, Camreta v. Greene, confronted the issue of whether, and when, social workers need a search warrant to interview children in a school context.

For the legal eagles in the crowd, you can read a transcript (PDF) of the oral argument which took place before the Supreme Court, or listen to a recording of the argument.

At this point, while everyone waits for the Supreme Court to issue its opinion, the $64,000 question is how the Court will rule. Based upon my reading of the transcript, here're my thoughts:

First of all, the Justices seemed really uncomfortable with a blanket rule that would require social workers to always obtain search warrants before interviewing children. John Kroger, the attorney arguing for the social worker and sheriff's deputy, made the statement that in many cases it would be impossible to establish probable cause to get warrants without talking to the kid because "the child is usually the only witness that is available to the government". Therefore, he argued, reasonable suspicion - and not a warrant backed by probable cause - should be the legal standard for interviewing children.

However, the Court also spent a great deal of time on a more foundational issue: whether or not this appeal is even something they can decide. Under Article III of the United States Constitution, the courts cannot decide a case when there is no meaningful action they can take to benefit the party appealing. This is a legal doctrine known as "mootness", which stems from the requirement that courts only decide matters where there exists a "justiciable case or controversy".)

Here, the Supreme Court expressed considerable doubt that a justiciable case still existed. S.G., the minor in this case, is now 18 and no longer residing in Oregon, so her life is unaffected by the outcome of the appeal. And, since the lower court already granted social worker Camreta and Deputy Alford qualified immunity from liability, the Supreme Court's decision - whatever it ends up being - will change nothing for them, either. Given this, the only possible difference the Supreme Court's ruling could make would be to clarify the legal standard for the future, and several justices seemed reluctant to tackle that issue here.

So, what are the options available to the Supreme Court? I see at least four potential outcomes:

1. The Court could agree with the Ninth Circuit's decision that search warrants are required before interviewing a child at school. Based on the tenor of the argument, I'd be very surprised if the Court did this.
2. The Court could reverse the Ninth Circuit's decision on the merits, thereby setting a rule that search warrants are not required in child welfare investigations. I think this is also unlikely.
3. The Court could withdraw its grant of certiorari as improvidently granted. Essentially, this would be the Court saying "we shouldn't have agreed to hear this case, so we're going to pretend we never did that and let the lower court's ruling stand."
4. The court could issue a vacactur order back to the Ninth Circuit under United States v. Munsingwear, Inc.. I'll let you read this detailed article for a fuller explanation of what vacatur and the Munsingwear decision are all about, but the short version is that it would throw out the Ninth Circuit's decision mandating warrants and return things to the way they were without actually deciding the issue of whether and when warrants are needed.

To be clear, the difference between options #3 and #4 is what happens within the Ninth Circuit's jurisdiction. Both outcomes would defer the establishment of a blanket rule about search warrants, but under a vacatur, the Ninth Circuit's decision would be erased entirely. By contrast, if the Supreme Court withdraws the grant of certiorari, no national rule would be established, but the Ninth Circuit's requirement for search warrants would remain law within the states under its jurisdiction.

What's going to happen in this case? If I had to guess, I'd say this last option - vacating the Ninth Circuit's decision under Munsingwear is the most likely option. Although the Supreme Court Justices expressed considerable doubt that the Ninth Circuit's decision mandating search warrants was correct, they definitely seemed to feel that this might not be the right case from which to create a blanket rule. Vacating under Munsingwear would signal agencies within the Ninth Circuit's jurisdiction that they need not follow the search warrant rule, while kicking the larger issue down the road to a case with clearer facts and a justiciable controversy.

I'll update you all again when the Supreme Court issues its ruling.

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