588 F.3d 1011 (9th Cir. 2009), 06-35333, Greene v. Camreta

Docket Nº:06-35333.
Citation:588 F.3d 1011
Opinion Judge:BERZON, Circuit Judge.
Party Name:Sarah GREENE, personally and as next friend for S.G., a minor, and K.G., a minor, Plaintiff-Appellant v. Bob CAMRETA; Deschutes County; James Alford, Deschutes County Deputy Sheriff; Bend Lapine School District; Terry Friesen, Defendants-Appellees.
Attorney:Mikel R. Miller, Law Office of Mikel R. Miller, Bend, OR, for the plaintiff-appellant. Hardy Myers, Attorney General; Mary H. Williams, Solicitor General; David B. Thompson, Senior Assistant Attorney General; for Bob Camreta, Defendant-Appellee. Janet M. Schroer, Hoffman, Hart & Wagner, LLP, for ...
Judge Panel:Before: MARSHA S. BERZON and CARLOS T. BEA, Circuit Judges, and PHILIP GUTIERREZ,[*] District Judge.
Case Date:December 10, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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588 F.3d 1011 (9th Cir. 2009)

Sarah GREENE, personally and as next friend for S.G., a minor, and K.G., a minor, Plaintiff-Appellant

v.

Bob CAMRETA; Deschutes County; James Alford, Deschutes County Deputy Sheriff; Bend Lapine School District; Terry Friesen, Defendants-Appellees.

No. 06-35333.

United States Court of Appeals, Ninth Circuit.

December 10, 2009

Argued and Submitted March 6, 2008.

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Mikel R. Miller, Law Office of Mikel R. Miller, Bend, OR, for the plaintiff-appellant.

Hardy Myers, Attorney General; Mary H. Williams, Solicitor General; David B. Thompson, Senior Assistant Attorney General; for Bob Camreta, Defendant-Appellee.

Janet M. Schroer, Hoffman, Hart & Wagner, LLP, for Terry Friesen and Bend LaPine School District, defendants-appellees.

Christopher Bell and Mark P. Amberg, Deschutes County Legal Counsel, for Deputy Sheriff James Alford and Deschutes County, defendants-appellees.

Appeal from the United States District Court for the District of Oregon, Ann L. Aiken, District Judge, Presiding. D.C. No. CV-05-06047-AA.

Before: MARSHA S. BERZON and CARLOS T. BEA, Circuit Judges, and PHILIP GUTIERREZ,[*] District Judge.

BERZON, Circuit Judge.

We are asked to decide whether the actions of a child protective services caseworker and deputy sheriff, understandably concerned for the well-being of two young girls, exceeded the bounds of the constitution. Specifically, the girls' mother, Sarah Greene, alleges, on behalf of S.G., one of her children, that the caseworker, Bob Camreta, and deputy sheriff, James Alford, violated the Fourth Amendment when they seized and interrogated S.G. in a private office at her school for two hours without a warrant, probable cause, or parental consent. Sarah also argues that Camreta's subsequent actions, both in securing a court order removing the girls from her custody and in subjecting the girls to intrusive sexual abuse examinations outside her presence, violated the Greenes' familial rights under the Due Process Clause of the Fourteenth Amendment.

As this brief description makes clear, resolving the constitutional claims at issue in this case involves a delicate balancing of competing interests. On one hand, society has a compelling interest in protecting its most vulnerable members from abuse within their home. The number of child abuse allegations is staggering: In 2007, for example, state and local agencies investigated 3.2 million reports of child abuse or neglect. See U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, ADMINISTRATION ON CHILDREN, YOUTH AND FAMILIES. CHILD MALTREATMENTT 2007 (2009), available at http:// www. acf.hhs.gov/programs/cb/pubs/cm07/chapter2.htm.

On the other hand, parents have an exceedingly strong interest in directing the upbringing of their children, as well as in

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protecting both themselves and their children from the embarrassment and social stigmatization attached to child abuse investigations. Of the millions of investigations conducted by state and local agencies in 2007, only about a quarter concluded that the children were indeed victims of abuse. See id. This discrepancy creates the risk that " in the name of saving children from the harm that their parents and guardians are thought to pose, states ultimately cause more harm to many more children than they ever help." Doriane Lambelet Coleman, Storming the Castle to Save the Children: The Ironic Costs of a Child Welfare Exception to the Fourth Amendment, 47 WM. & MARY L. REV. 413, 417 (2005).

With these competing considerations in mind, we turn first to Sarah's constitutional claims. As we explain below, we hold that the investigation conducted by Camreta and Alford and the removal and examination instigated by Camreta all violated Sarah and the girls' constitutional rights. As to the investigation, however, we conclude that Camreta and Alford cannot be liable in damages because they have qualified immunity.

I. FACTS & PROCEDURAL HISTORY

A. FACTUAL BACKGROUND

Nimrod Greene (" Nimrod") was arrested on February 12, 2003, for suspected sexual abuse of F.S., a seven-year old boy. Nimrod's arrest was based on statements made by F.S. to his parents and similar statements later made to investigators, all alleging that Nimrod had touched F.S.'s penis over his jeans when Nimrod was drunk in F.S.'s parents' home. F.S. reported that Nimrod had done this to him once before. In addition, F.S.'s mother told officers that Sarah, Nimrod's wife, " had talked to her about how she doesn't like the way Nimrod makes [their daughters, S.G. and K.G.,] sleep in his bed when he is intoxicated and she doesn't like the way he acts when they are sitting on his lap." Along the same lines, F.S.'s father told officers that:

Nimrod himself has made some type of prior comment about how his wife Sarah was accusing him of molesting his daughters and Sarah reportedly doesn't like the girls laying in bed with Nimrod when he has been drinking. [F.S.'s father] said neither he nor his wife [ ] have any direct knowledge of abuse at the Greene home, but this type of comment and/or accusation has come in several ways from Sarah and Nimrod.

The Oregon Department of Human Services (" DHS") heard of these allegations about a week after Nimrod's arrest. The next day, Bob Camreta, a caseworker with DHS, learned that Nimrod had been released and was having unsupervised contact with his daughters. Camreta was assigned to assess the girls' safety. Based on his training and experience as a DHS caseworker, Camreta was " aware that child sex offenders often act on impulse and often direct those impulses against their own children, among others. For this reason,[he was] concerned about the safety and well-being of Nimrod Greene's own small children."

Three days after hearing of Nimrod's release, Camreta visited S.G.'s elementary school to interview her. Camreta thought the school would be a good place for the interview because it is a place where children feel safe and would allow him " to conduct the interview away from the potential influence of suspects, including parents." According to Camreta, " [i]nterviews of this nature, on school premises, are a regular part of [child protective services] practice and are consistent with DHS rules and training." Sarah was not informed of, nor did she consent to, the

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interview of her daughter. Camreta also did not obtain a warrant or other court order before the interview.

Throughout the interview Camreta was accompanied by Deputy Sheriff Alford. Upon arriving at the school, Camreta told school officials that he and Alford were there to interview S.G. and requested use of a private office. Terry Friesen, a counselor at the elementary school, visited S.G. in her classroom and told the child that someone was there to talk with her. Friesen took S.G. to the room where Camreta and Alford were waiting and left.

Camreta interviewed S.G. for two hours in Alford's presence.1 The interview was not recorded. Alford, who had a visible firearm, did not ask any questions during the interview. According to Camreta, S.G. told him:

• " ‘ When he drinks he tries to do it,’ meaning, ‘ he tries to touch me somewhere in my private parts. Then I go to my room and lock the door.’ "

• The last incident occurred " ‘ just last week’ on the outside of her clothing and she had tried to tell him to stop."

• " The touching of private parts started when she was three."

• " The touching involved the chest and buttock areas, outside of clothing. Her father sometimes ‘ mumbled’ during the touching."

• " Her mother knew about the touching ..." and it was " ‘ one of our secrets' with her little sister, K.G.’ "

Camreta maintains that he " certainly did not coerce [S.G.] or try to induce her into making any accusations."

In contrast, S.G. recounted the interview as follows:

[Camreta] ask[ed] me if sometimes my dad touched me all over my body. I thought back to the times when my dad hugged me, kissed me, gave me piggy-back rides, rides on his shoulders and horsey rides. I remembered all of my dad's touches with fondness. He was a very loving father, and I loved hugging and kissing him. These were the touches that I was referring to when I said my dad touched me. So I told the man, yes, my dad touches me all over. And then the man started asking me if sometimes those were bad touches, and I said, no they weren't, but he kept asking me over and over again, and I would say, no, I don't think my dad touched me in a bad way. He would say, " No, that's not it," and then ask me the same question again. For over an hour, Bob Camreta kept asking me the same questions, just in different ways, trying to get me to change my answers. Finally, I just started saying yes to whatever he said. And then after a while, he said I could go. I believe I was there for two hours.

According to Sarah, later that night S.G. told her that when Camreta asked her what bad things her father had done, she initially told him " nothing," but that Camreta kept asking questions and confused her. S.G. stated that she was " scared" when Friesen left her with Camreta and Alford, although she did not ask to call home, did not ask to have Friesen or her parents with her, and did not cry. With respect to Alford's presence, S.G. stated that she is generally comfortable around police officers, that Alford was nice to her and did not do anything to scare her, and that she trusted him.

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Based on the interview and other information he had gathered, Camreta believed that Nimrod had sexually abused S.G. As a result, Camreta and...

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