Cato Files Brief Challenging Qualified Immunity for Warrantless Strip Search of 4-Year-Old

[Elderberry]

Cato Institute By Jay Schweikert 4/10/2019

For over a year, Cato has been leading the charge to challenge the doctrine of qualified immunity: an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s, which shields government agents from liability for misconduct – even when they break the law. Today marks a huge milestone in that ongoing campaign, as Cato has just filed an amicus brief in support of a new cert petition calling on the Court to reconsider this doctrine. So has a diverse, cross-ideological alliance of over a dozen prominent public interest groups, as well a group of leading qualified immunity scholars. In the words of Wyatt Earp: “You called down the thunder. Well, now you’ve got it!”

The case at issue is I.B. and Doe v. Woodard. When I.B. was a four-year-old girl, she was strip searched and photographed at her preschool by April Woodard, a state caseworker. Woodard had neither a warrant, nor the consent of the girl or her mother, nor were there any exigent circumstances requiring such an invasive search. All she had were unfounded abuse allegations (specifically, of a few marks and bruises on I.B.) which easily could have been checked and disproven through a non-invasive search. After I.B. complained to her mother about what happened, Woodard denied having performed a search at all, and continued to lie about that fact for several weeks, until finally admitting what she had done. I.B. suffered severe and ongoing emotional trauma as a result of being strip-searched and photographed against her will.

I.B. and her mother filed a Section 1983 against Woodard (and others), alleging violations of I.B.’s Fourth Amendment rights. But a divided panel of the Tenth Circuit held that the defendants were entitled to qualified immunity, because Woodard’s strip search did not violate “clearly established law.” The court failed to even address the Fourth Amendment claims on the merits, noting only that (1) there was a circuit split on whether a warrant was necessary under these circumstances, and (2) assuming a warrant wasn’t necessary, it was still not “clearly established” whether this sort of strip search was permissible.

More: https://www.cato.org/blog/cato-files-brief-challenging-qualified-immunity-for-warrantless-strip-search-of-4-year-old

[verga]

Twice while in NYS I had to report suspected child abuse to Child Protective services. Neither time time did it require a "Strip search". The first was a 14-15 year old girl. Step Momster had stripped an extension cord and used it as a whip on the child. The school nurse did have to photograph her back, but her front was covered and the female assistant principal was present. Father believed Step Momsters version and the kid ended up in the foster system.
Second time one of the members of my swim team came in with his right eye dotted and told his dad had done it. CPS investigated and wonder of wonders the kid changed his story. He got it by "walking into a door". I did my part after that it is up to them and God.

[Elderberry]

I hope the court takes up this case and returns qualified immunity to a "goodfaith defense"

This case, in particular, is an excellent vehicle for the Court to review its qualified-immunity precedents. First, the existence of this Court’s 2009 Safford opinion—which expressly said it was creating clear law—affords the Court a clean opportunity here to elucidate what counts as clearly established law. Second, petitioners pleaded significant allegations of bad faith—most importantly, Woodard lying for weeks about the strip search and photographs. If the Court were to return qualified immunity to a goodfaith defense, these allegations of bad faith would directly matter in this case—for both the warrant and clearly-established- law questions presented. Third, this case does not arise in the tense situation where officials—such as police officers—had to make split-second decisions. The Court could therefore refine its precedents outside that context, which could possibly call for different standards as discussed above. See supra p. 27.

 Each of the three questions presented independently warrants this Court’s review. Together, they present the ideal vehicle to address not only the important recurring question of what standards apply when government officials strip search children, but also to reconsider the Court’s qualified-immunity doctrine in light of the significant concerns raised by Members of this Court, lower courts, and commentators from across the ideological spectrum.