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January 19, 2011 Articles

Supreme Court to Hear Case on Seizure, Questioning of Children in Schools

Diane L. Redleaf

Camreta/Alford v. Greene, USSC No. 09-1454/1478, has the potential to significantly impact children's and parent's interests in privacy, safety, and family life. The U.S. Supreme Court agreed to hear this case, and arguments will be heard on March 1, 2011. The question before the Supreme Court is whether police and child protective services investigators may, consistent with the Fourth Amendment, conduct a custodial interrogation of a child in a public school as to the details of his or her home life without a warrant or court order supported by probable cause, consent of either parent, or exigent circumstances.

A Bend, Oregon, child protection investigator (Camreta) and a deputy sheriff (Alford) brought the case to the Supreme Court after the two male officers interviewed a 9-year-old girl (S.G.) for two hours in a school office, pulling her out of her public school classroom without the consent of her parents. The reason for the questioning was that S.G.'s father, Nimrod Greene, had been arrested due to a claim of sexual molestation of his employer's son. The boy's parents made some comments that suggested possible inappropriate conduct between S.G. and her father, but not enough reliable information to establish "probable cause." There was reason to doubt the credibility of the allegations from the outset because the employer and his wife, even after supposedly knowing of the son's claims of abuse, had left Greene alone with their son. Four days after learning of the allegations, Camreta and Alford went to S.G.'s elementary school and pulled her out of class for questioning. Without seeking her parent's consent to the interview, or S.G.'s own permission, Camreta questioned S.G. for two hours, asking sexually explicit questions, while deputy sheriff Alford sat silently in the closed room with his gun visible in its holster. Neither of the officers knew that S.G. had special needs and serious communication delays when they interrogated her. She later testified that she was afraid to ask for water or to leave the room.

During the questioning, S.G. insisted her father was a good father, who touched her in only appropriate ways. She denied any "bad touches." Camreta's consistent response to her repeated negative answers was "that's not it." By the end of the two-hour interview, when she heard the school buses arriving and feared she would not be able to get home, S.G. finally told them the answers she thought would satisfy them: Yes, her father had touched her chest and buttocks outside of her clothes. Camreta and Alford let her go back home after she gave these answers. She allegedly threw up five times that evening. S.G. quickly retracted all allegations in the ensuing juvenile court case, and that case was dismissed. No criminal conviction or juvenile court findings ever sustained the allegations that S.G. had been abused, but the father, having exhausted his funds, took a plea agreement (without jail time) to the allegation that he had attempted to fondle the employer's son.

In the suit by S.G., her younger sister, and their mother, Sarah Greene, for violation of their civil rights, S.G. alleged that investigator Camreta and deputy sheriff Alford had seized her in violation of her Fourth Amendment right to be "secure" in her "person" and to be free from "unreasonable seizure." It was conceded throughout the case that the actions of Camreta and Alford in questioning S.G. for a two-hour period in a closed room amounted to a "seizure" in Fourth Amendment terms. Traditional Fourth Amendment jurisprudence requires that, before a person can be seized and held for questioning, there must be a warrant issued by a judge and supported by probable cause or another court order, parental consent for a child to be questioned, or exigent circumstances. Camreta and Alford argued that nonconsensual, warrantless, custodial questioning of children who are potential witnesses to abuse by a parent is constitutional because it is "reasonable" when such questioning occurs in a public school setting. The plaintiffs have also charged that Camreta lied to the juvenile court to obtain an order placing the girls in foster care for three weeks, but that claim is not before the Supreme Court on this appeal.

The briefs filed by Camreta and Alford argue that the state's interest in protecting children from child abuse is so great that no specific evidence of specific harm to the child is needed before children can be seized without notice to their parents, as long as this occurs in school. The solicitor general of the United States has filed an amicus brief that argues that the detention of any witness to any crime is "reasonable" and consistent with the Fourth Amendment as long as the resulting detention is "reasonable" in scope. Camreta and Alford and their amici argue that S.G.'s privacy rights in protecting herself from interrogation and from being asked intrusive questions about her family were "minimal" because the questioning occurred at school, saying that a right to privacy exists only inside the home. Many of the amicus groups supporting the petitioners, primarily prosecuting attorneys and other governmental associations, elaborate on the general need for joint investigation of child abuse by law enforcement and child protective services. The Greenes agree with the use of joint investigations, but they have argued that the interview was coercive, the parents were not notified, and there was no judicial oversight. The Court's decision in this case could have a significant impact on basic civil liberties, child and family rights (including privacy rights), law enforcement authority, and a host of other related areas, including impact on education and the rights of victims of crimes other than child abuse, such as adult domestic violence.

The plaintiffs' amici will focus on the importance of parental consent and not assuming that a mother will automatically object to questions of her child if done in a manner that is sensitive to the child's needs, the interests of children and parents in family integrity and privacy, why judicial oversight is needed, and children's interest in having sound interviews conducted in accordance with current accepted practices. They will also point out that the interview of S.G. did not comply with such practices—it was not recorded, Camreta used leading questions, and another interview at a child advocacy center was required.

Also interesting is the question of whether the Alford/Camreta case should even be heard on the merits. The Supreme Court also accepted certiorari on the question of whether there was a "case or controversy" in light of the Ninth Circuit's decision in favor of the petitioners on the issue of "qualified immunity." Even though the Ninth Circuit had ruled in favor of the plaintiffs on the constitutional issue, it had held that no damages were available to them because the constitutional issue was not "clearly established" law. 588 F.3d 1011 (9th Cir. 2009) Now the Supreme Court will decide if government employees can appeal constitutional rulings even when they have won in the court below. This issue potentially cuts broadly across wide swaths of civil rights litigation and judicial authority, and will be as interesting and important to watch as the questions on the merits.

Keywords: litigation, children's rights, Camreta, Alford, Greene, Supreme Court, Fourth Amendment

Diane L. Redleaf – January 19, 2011

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