Appeal from the United States District Courtfor the Eastern District of CaliforniaLawrence K. Karlton, District Judge, PresidingArgued and SubmittedJune 8, 1998--San Francisco, CaliforniaFiled August 26, 1999Before: J. Clifford Wallace, Thomas G. Nelson andAndrew J. Kleinfeld, Circuit Judges.Opinion by Judge Kleinfeld
_____________________________COUNSEL J. Scott Smith, Angelo, Kilday and Kilduff, Sacramento,California, for the defendants-appellants.Michael P. Farris, Home School Legal Defense Association,Paeonian Springs, Virginia, for the plaintiffs-appellees.Stephen Bailey (briefed), Placerville, California, for theplaintiffs-appellees.Thomas R. Yanger (briefed), Deputy Attorney General, Sac-ramento, California, for amicus State of California Ex Rel.Eloise Anders, Director of the California State of Social Ser-vices.Kevin T. Snider (briefed), United States Justice Foundation,Escondido, California, for amicus United States Justice Foun-dation and Christian Action Network.
_____________________________OPINION KLEINFELD, Circuit Judge:This case involves whether a social worker and a policeofficer were entitled to qualified immunity, for a coercedentry into a home to investigate suspected child abuse, inter-rogation of a child, and strip search of a child, conductedwithout a search warrant and without a special exigency.Facts.The two individual defendants moved for summary judg-ment based on qualified immunity. The district judge deniedit.Some individual called the Department of Social ServicesOctober 27, 1994, with the information that gave rise to thiscase. The report says that the caller was anonymous, but thereport redacts names, thus it is not clear whether the callergave her name but the Department treated her as anonymous,or whether she refused to give her name. The caller said thatshe was once awakened by a child screaming "No Daddy, no"at 1:30 A.M. at the Calabretta home. Then two days ago she(or someone else, possibly a Department of Social Servicesemployee - it is not clear from the report) heard a child in thehome scream "No, no, no" in the late afternoon. The callersaid that the children "are school age and home studied" andthat "this is an extremely religious family."The report was put into the in box of defendant Jill Floyd,a social worker in the Department. She checked the Depart-ment files to see whether the Calabretta family had any"priors," or had ever been on welfare, and ascertained thatthey had no priors and had never been on welfare. She did notattempt to interview the person who had called in the report.On October 31, four days after the call, the social workerwent to the Calabretta home to investigate. Mrs. Calabretta,the children's mother, refused to let her in. The children werestanding at the door with their mother, and the social workernoted on her report that they "were easily seen and they didnot appear to be abused/neglected."The social worker was about to go on vacation, so sherequested that someone else be assigned to the case, but theinvestigation had not been completed when she returned. OnNovember 10, fourteen days after the call and ten days afterthe first visit, the social worker returned to the Calabrettahouse with a policeman. She did not tell the police dispatcherabout the specific allegations, just that she needed policeassistance to gain access so that she could interview the chil-dren. Officer Nicholas Schwall met the social worker at theCalabretta house, knowing nothing about the case except thathe had been assigned to assist her. She told him that they hadreceived a report of the children crying, and he understood herto mean that they might have been beaten.The policeman knocked, Mrs. Calabretta answered, and thepoliceman said they were checking on the children's welfarebecause someone had reported children crying. Mrs. Cala-bretta did not open the door, and said she was uncomfortableletting them in without her husband at home. The police offi-cer had the opinion that in any check on the welfare of chil-dren "there is an exigent circumstance" so no search warrantis needed. Mrs. Calabretta and Officer Schwall disagreed intheir depositions on whether Officer Schwall told her that ifshe did not admit them, then he would force their way in.Appellants concede that for purposes of appeal, the entry mustbe treated as made without consent.The social worker then took Mrs. Calabretta's twelve yearold daughter into one room while the policeman stayed withthe mother in another. The twelve year old did not rememberany of the children screaming "No, Daddy, no, " but did recallthat at about the date of the report, her little brother hurt him-self in the backyard and screamed "no, no, no. " The socialworker asked what kind of discipline the parents used, andunderstood the twelve year old to be saying that the parentsused "a round, wooden dowel, very, very thin woodendowel," about "twice as big . . . as a pen. " The three year oldcame into the room at that point and said "I get hit with thestick too." The twelve year old told her, according to thesocial worker's report, "that her parents do not disciplineindiscriminately, only irreverence or disrespect. " The socialworker wrote in her report "Minor is extremely religious -made continual references to the Lord and the Bible. " Thesocial worker testified that any physical means of discipliningchildren "raises a red flag" for her, and "I always counsel oradvise parents on other ways of discipline before they resortto corporal punishment."While the mother was still with the policeman in the otherroom, the social worker told the twelve year old to pull downthe three year old girl's pants. She wanted to look at the threeyear old's buttocks to see whether there were marks. Thetwelve year old did not do so, and the three year old startedcrying. The mother heard her daughter crying and ran in. Thetwelve year old said "she wants me to take down Natalie'spants." The social worker said "I understand you hit yourchildren with objects," and went on to say "It's against theCalifornia state law to hit your children with objects. And Ifound out that you hit your children with objects. And I needto see Natalie's bottom to see if there are bruises there." Thepoliceman said "I'll leave you alone to do this" and backedoff. The social worker said "The rod of correction?" Mrs.Calabretta answered, "Oh, it's just a little stick," referring to"a little Lincoln log, piece of Lincoln log roofing, nine incheslong." Mrs. Calabretta "explained the Biblical basis of its use"to the social worker. The social worker repeated "It's againstCalifornia law to hit your children with objects. This is break-ing the law. And I insist on seeing her bottom." The three yearold was screaming and fighting to get loose, the motherlooked at the social worker to see whether she would relent,but she did not, and the mother pulled down the three yearold's pants in obedience to the social worker's order.There were no bruises or marks on the three year old's bot-tom. The social worker then insisted on seeing the piece ofLincoln log roofing, and Mrs. Calabretta showed it to her. Thesocial worker then decided not to interview or examine thebuttocks of any of the other children. She "had a brief conver-sation with the mother in which we discussed her looking intoalternative forms of discipline."The Calabrettas sued the social worker and policeman andother defendants for damages, declaratory relief and aninjunction under 28 U.S.C. S 1983. The defendants moved forsummary judgment on grounds of qualified immunity. Thedistrict court denied the defendants' motion, and the socialworker and police officer appeal.Analysis.We have jurisdiction over interlocutory appeals from deni-als of summary judgments denying qualified immunity. 1 Onsummary judgment, "even in a qualified immunity case, wemust assume the nonmoving party's version of the facts to becorrect."2 Those facts must, of course, be established by evi-dence cognizable under Federal Rule of Civil Procedure 56.In this case, although the parties disagree on some details, thedisagreements are not material to the outcome. We reviewdenial of the qualified immunity claim de novo.3A. The coerced entryThe social worker and police officer concede that for pur-poses of appeal, they should be treated as having entered theCalabretta home without consent. They argue that the districtcourt erred in holding that their nonconsensual entry requiredspecial exigency or a search warrant. Their theory is that anadministrative search to protect the welfare of children doesnot carry these requirements, and the social worker was doingjust what she was supposed to do under state administrativeregulations. They claim immunity for entry into the home,interviewing the twelve year old, and strip searching the threeyear old.[1] "[G]overnment officials performing discretionary func-tions generally are shielded from liability for civil damagesinsofar as their conduct does not violate clearly establishedstatutory or constitutional rights of which a reasonable personwould have known."4 The right the official is alleged to haveviolated must have been "clearly established" in an appropri-ately particularized sense. "The contours of the right must besufficiently clear that a reasonable official would understandthat what he is doing violates that right. That is not to say thatan official action is protected by qualified immunity unlessthe very action in question has previously been held unlawful,but it is to say that in the light of pre-existing law the unlaw-fulness must be apparent."5 The "relevant question . . . is theobjective (albeit fact-specific) question whether a reasonableofficer could have believed [the] warrantless search to be law-ful, in light of clearly established law and the information thesearching officers possessed. [The officer's] subjective beliefsabout the search are irrelevant."6 "Specific binding precedentis not required to show that a right is clearly established forqualified immunity purposes."7[2] The facts in this case are noteworthy for the absence ofemergency. The social worker and her department delayedentry into the home for fourteen days after the report, becausethey perceived no immediate danger of serious harm to thechildren. The police officer was there to back up the socialworker's insistence on entry against the mother's will, notbecause he perceived any imminent danger of harm. Thereport that led to the investigation could have indicated aproblem, but was not especially alarming. A child screaming"no, Daddy, no" late at night could mean that the father wasabusing the child. But in a household where the father puts thechildren to bed, these words are often screamed at bedtime,and also in the middle of the night after a child has gotten upto go to the bathroom, get a drink of water, check the televi-sion, and enter his parents' room to say that he cannot sleep,when the father puts the child to bed the second time. Theother scream, "no, no, no," likewise may mean abuse, or maymean that a child around two is developing a normal, healthysense of separateness of herself as an individual and perhapsdoes not care for her mother's choice of vegetable. The tip-ster's reference to religion might imply that the tip arose fromreligious differences between the tipster and the Calabrettafamily. Had the information been more alarming, had thesocial worker or police officer been alarmed, had there beenreason to fear imminent harm to a child, this would be a dif-ferent case, one to which we have no occasion to speak.Appellants urge us to adopt a principle that "a search war-rant is not required for home investigatory visits by socialworkers." They claim qualified immunity on the ground thatthere is no clearly established principle to the contrary. Theprinciple they urged is too broad. Anderson requires more par-ticularized analysis, to determine whether, in these particularcircumstances, notably the absence of emergency, a reason-able official would understand that they could not enter thehome without consent or a search warrant.8 [3] In our circuit, a reasonable official would have knownthat the law barred this entry. Any government official can beheld to know that their office does not give them an unre-stricted right to enter peoples' homes at will. We held inWhite v. Pierce County9, a child welfare investigation case,that "it was settled constitutional law that, absent exigent cir-cumstances, police could not enter a dwelling without a war-rant even under statutory authority where probable causeexisted."10 The principle that government officials cannotcoerce entry into people's houses without a search warrant orapplicability of an established exception to the requirement ofa search warrant is so well established that any reasonableofficer would know it. Under White, appellants' claim, that "asearch warrant is not required for home investigatory visits bysocial workers," is simply not the law.[4] Appellants urge that White speaks only to police, notsocial workers. That is an invalid distinction. In the case atbar, the social worker used a police officer to intimidate themother into opening the door. Also, there is no reason whyWhite would be limited to one particular kind of governmentofficial. The Fourth Amendment preserves the "right of thepeople to be secure in their persons, houses . . . . " without lim-iting that right to one kind of government official. It is not asthough all reasonable people thought any government officialcould enter private houses against the occupants' will, withoutsearch warrant or special exigency, and then White said thatpolice officers could not, without speaking about social work-ers. Rather, everyone knew that the government could not soenter houses, and White said that principle was well estab-lished, in the context of a child abuse investigation. Appel-lants' argument that they be allowed qualified immunitybecause White did not speak expressly about social workersis of the kind that Anderson rejects, "[t]hat is not to say thatan official action is protected by qualified immunity unlessthe very action in question has previously been held unlawful. . . ."11There is a distinction between White and the case at bar, butthe distinction is of no help to appellants. In White, there was
_____________________________10 Id. at 815.11 Anderson,
483 U.S. at 640
.a special exigency. Someone had called in a report that theseven year old had several welts on his back. The boy and hisfather talked to the police officer at the door, and the boy triedto show the officer his back, but the father would not allowhim to. Based on the report, and the father's violent and abu-sive response when questioned, the officer thought that if hedelayed to get a warrant, the father would injure the child orremove him from the house before the officer returned withthe warrant. We held that "the deputies had probable cause tobelieve the child had been abused and that the child would beinjured or could not be taken into custody if it were first nec-essary to obtain a court order."12By contrast, in the case at bar, the report did not describeany evidence of physical abuse, and the social worker andpolice officer did not perceive any danger of injury to thechildren or loss of evidence if they secured a warrant. On herfirst visit four days after the call, ten days prior to her returnwith the police officer, the social worker wrote "Minors wereeasily seen and they did not appear to be abused/neglected."The only reason the social worker and police officer did notseek a search warrant was that their subjective opinion wasthat they did not need one.Appellants argue that Baker v. Racansky13 limits White tothe principle that compliance with a constitutionally permissi-ble state statute entitles the government officials to immunity.That is not correct. We did not limit White at all in Baker, butmerely held that it did the claimants in that case no good.Baker is not on point, because it did not involve any kind ofhome search, and did not turn on any child welfare exceptionto normal search and seizure law.In Baker, we held that social workers were entitled, in theparticular circumstances of that case, to qualified immunityfor their decision to take a child into protective custody. Wenoted that at the time, "there was no binding Ninth Circuit orSupreme Court precedent which clearly established whenstate officials could or could not take a child into temporaryprotective custody."14 That, of course, distinguishes Bakerfrom the case at bar, where at the time there was bindingNinth Circuit precedent, White, which clearly established thatthe general law of search warrants applied to child abuseinvestigations. Baker also differs from the case at bar in thatthe investigators reasonably believed that the child was inimminent danger of abuse if they did not act. A neighbor'schildren reported to their mother, and to the social worker,that the child's father had sexually abused them, and one ofthem had a vaginal rash that corroborated the accusation.When the social workers asked the father's own child if hisfather did anything sexual with him, the child denied it but"started walking around the room . . . would crawl up in hischair . . . went into the corner of the room, put his head inbetween his legs, raised his legs up, put his arms up towardhis head like this, curled up."15 The social workers thought thedenial was false, because of the child's bizarre behavior whenhe made the denial, and thought that the mother would not beable to protect the child when the father was released fromjail.Appellants argue that other circuits have allowed broaderqualified immunity, so the social worker and police officercould not have been expected to know that they were actingunconstitutionally. They cite Darryl H. v. Coler ,16 Wildauer v.Frederick Cnty.,17 and Franz v. Lytle,18 and some out of circuitdistrict court and state court decisions to show that there is no
_____________________________14 Id. at 187.15 Id. at 189.16 Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986).17 Wildauer v. Frederick County , 993 F.2d 369 (4th Cir. 1993).18 Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993).well-established right to privacy from inspections by socialworkers. It is not clear that a conflict among other circuitswould create qualified immunity where clearly establishedlaw in this circuit would preclude it,19 but even if it could,these cases would not establish such an open question aboutcoerced entry.Darryl H. involves strip searches of children, not warrant-less entries into homes, and is discussed below with respectto the strip search. Wildauer involves an entry into a home,but there was apparent consent and no express objection, nocriminal aspect to the investigation, no entry of a parentalhome to investigate parents' treatment of their children, andno investigatory purpose. The householder had nine "fosterchildren" living with her (apparently the children were notplaced there pursuant to custody orders), and two sets of par-ents had complained that she would not give their childrenback despite the absence of any custodial claim. When thesocial worker appeared, the householder gave two childrenback and said there were two more she could not find, andinvited the social worker in to help look for them. The socialworker came back with a nurse because many of the childrenwere disabled and the house looked unhygienic to the socialworker, but the purpose of the second look, to which noobjection was made, was to see whether the children shouldstay there, not to investigate any crime.We are unable to see why appellants cite Franz v. Lytle.20A neighbor told the police that a woman was leaving her twoyear old unsupervised and not changing her urine-soaked dia-pers. The Tenth Circuit held that the investigating police offi-cer was not entitled to qualified immunity, for having theneighbor take off the child's diaper so that he could examineand feel the baby's vaginal area, and under the guise of inves-tigating for sexual molestation, threatening to take the babyinto protective custody to make the parents bring the baby toa hospital for further vaginal examination (which revealed noevidence of sexual molestation, a crime for which there wasno evidence). The case would not have given the police offi-cer and social worker in the case at bar any reason to thinktheir entry into the Calabretta house and strip search of thethree year old was constitutionally permissible, because to theextent that Franz was in any way analogous, the police officerlost on his qualified immunity claim.One other circuit has spoken on facts analogous to those inthe case at bar. Good v. Dauphin County Social Services,21like our decision in White, holds that a social worker andpolice officer were not entitled to qualified immunity forinsisting on entering her house against the mother's will toexamine her child for bruises. Good holds that a search war-rant or exigent circumstances, such as a need to protect a childagainst imminent danger of serious bodily injury, was neces-sary for an entry without consent, and the anonymous tipclaiming bruises was in that case insufficient to establish spe-cial exigency. In our case, the anonymous tip did not evenallege bruises.Appellants also argue that the doctrine allowing certainkinds of administrative searches without warrants or specialexigency applies to social workers' entries into homes forchild protection. That proposition is too broad for the kind ofparticularized examination of conduct in particular circum-stances required by Anderson. We need not decide whether insome circumstances that doctrine might apply, because it doesnot apply in the circumstances of this case.The starting point for administrative searches is Camara v.Municipal Court.22 The case involved a routine municipalhousing code inspection of an apartment house, yet the Courtheld that the Fourth Amendment requirement of a search war-rant, consent, or exigent circumstances applied. The require-ment of probable cause was diluted in the circumstances, soa warrant would be easy to obtain if an occupant would notlet an inspector in without it, but a search warrant was neces-sary in the absence of special exigency or consent, despite thelack of any criminal investigatory purpose. Our analysis inWhite is consistent with Camara, and Camara is of no helpto appellants.Appellants argue that Wyman v. James,23 establishes thatwhere a social worker enters a house to investigate the wel-fare of a child, Fourth Amendment standards do not apply. Itdoes not. Wyman holds that the state may terminate welfarewhere a mother refuses to allow a social worker to visit herhome to see whether the welfare money is being used in thebest interests of the child for whom it is being paid. It doesnot hold that the social worker may enter the home despite theabsence of consent or exigency. Wyman distinguishes Camaraon the ground that in Wyman, "the visitation in itself is notforced or compelled."24 In the case at bar, by contrast, theentry into the home was forced and compelled. [5] New Jersey v. T.L.O.25 holds that the Fourth Amend-ment does apply to a school administrator search of a stu-dent's purse, but that in the special context of in-schoolsearches, the Fourth Amendment did not require a warrant orprobable cause. It has no bearing on searches of a home.Appellants would have us read T.L.O. as a blanket suspensionof ordinary Fourth Amendment requirements where childrenare involved. The Court's opinion does not support so broada reading. The court emphasized that it was "the schoolsetting" that "requires some easing of the restrictions to whichsearches by public authorities are ordinarily subject."26 Ofcourse there are occasions when Fourth Amendment restric-tions on entry into homes are relaxed. We emphasize that inthis case the officials entered without a warrant or consentsimply because they thought they had a right to do so, andthought that the Fourth Amendment did not apply to entriesinto homes where children were involved. This was not a casewhere the officials coercing entry into the home recognizedsome special exigency creating imminent risk to the child.White v. Pierce County27 establishes that a special exigencyexcuses a warrantless entry where the government officershave probable cause to believe that the child has been abusedand that the child would be injured or could not be taken intocustody if it were first necessary to obtain a court order.Appellants also argue that the coerced entry into the homewas primarily to protect the children, not investigate crime,pursuant to California regulations. It is not clear why thiswould excuse them from compliance with the Fourth Amend-ment, in light of the Camara holding that administrativeinspections of buildings are "significant intrusions upon theinterests protected by the Fourth Amendment," even thoughnot criminal, so in the absence of emergency, warrants shouldbe obtained if consent is refused.28 We held, years before thecoerced entry into the Calabretta home, that even in the con-text of an administrative search, "[n]owhere is the protectiveforce of the fourth amendment more powerful than it is whenthe sanctity of the home is involved . . . . Therefore, we havebeen adamant in our demand that absent exigent circum-stances a warrant will be required before a person's home isinvaded by the authorities."29[6] Nor did the California statutes and regulations direct thesocial worker or police officer to coerce entry into the homewithout a warrant or special exigency, or suggest that no war-rant was needed in that circumstance. The statutes 30 appellantscite say nothing about entering houses without consent andwithout search warrants. The regulations they cite requiresocial workers to respond to various contacts in various ways,but none of the regulations cited31 say that the social workermay force her way into a home without a search warrant inthe absence of any emergency. A possibly related regulation,in the chapter on "Report of Child Abuse InvestigativeProcedures," does speak to search warrants, but not at allhelpfully to appellants. It says that the "child protectiveofficial" receiving a report should "consider the need for asearch warrant."32 This administrative regulation would tendto put the social worker on notice that she might need a searchwarrant, not that she was exempt from any search warrantrequirements. Appellants presented no evidence they did"consider the need for a search warrant." They both imaginedincorrectly that no search warrants were necessary to enterhouses for child abuse investigations.We conclude that on appellants' first issue, whether theywere protected by qualified immunity regarding their coercedentry into the Calabrettas' home, the district court was right.They were not.B. The strip search.Appellants second issue on appeal is whether they wereentitled to qualified immunity for the social worker's requir-ing the twelve year old to talk to her in a separate room andrequiring the mother to pull down the three year old's pants.They argue that there is no authority on point in the Ninth Cir-cuit, and the Seventh Circuit held in Darrell H. v. Coler33 thatsuch a visual inspection is shielded by qualified immunity.They also argue that there are so many reports of child abusethat the social workers cannot bear any additional restrictionson how they conduct their investigations. In their memoran-dum in support of summary judgment filed in the districtcourt, appellants did not argue that they were entitled to quali-fied immunity for the interview with the twelve year old.Because this claim was not raised in the district court, it can-not be raised for the first time on appeal34 and we have nooccasion to pass on the question. The argument in the districtcourt was limited to the proposition that the social worker vio-lated no clearly established law in strip searching the threeyear old, so that is the only issue we consider.Darryl H. is not entirely supportive of appellants' position.The strip search was conducted at the children's school, anddid not involve an official takeover of the family home. TheSeventh Circuit reversed a summary judgment in the socialworkers' favor on constitutionality of the search. The opinionsays that "nude physical examination is a significant intrusioninto the child's privacy" and even where the child is tooyoung to have the same subjective sense of bodily privacy asan older child, the nude body search affects "legitimate expec-tations of the parents . . . , protected by the fourteenth amend-ment, that their familial relationship will not be subject tounwarranted state intrusion."35 Although a warrant or probablecause was not needed, in the Seventh Circuit's view, reason-ableness was under the Fourth Amendment, and there wereissues of fact that precluded summary judgment regardingreasonableness. Although in Darryl H., as in the case at bar,the social worker ordered the mother to strip the child, therewas a genuine issue of fact about whether the mother did soconsensually or in response to coercion. Also, not muchchecking had been done on the validity of the tip, the childrendenied abuse, and there was evidence that the tipster mightnot be fair and objective.Darryl H. offers some support to appellants because it heldthat the social workers were entitled to qualified immunity.But the strip search was not done during an unconstitutionalentry into the home, and the information supporting a stripsearch was much stronger in Darryl H. than in the case at bar.The school principal reported "Lee H., age six, was tied up forpunishment. Lee and his sister, Marlena, age seven, were thinand not allowed to eat lunch at school, and the children'sclothes and bodies were dirty."36 The principal told the socialworker that "both parents were usually angry when they cameto school . . . that other students indicated Lee was tied up forpunishment," but "that bruises had never been observed onthe children."37 Thus, in Darryl H., the social workers hadsubstantial reason to believe that the children were malnour-ished, dirty, and abusively disciplined.[7] By contrast with Darryl H., in the case at bar the socialworker had little reason to believe that the three year old wasabused. The tip itself included a reference to the Calabrettas'religious views that might suggest that the tipster was moti-vated by religious differences. Even if the tip was entirelyaccurate, a benign explanation of "no, Daddy, no " and "no,no, no" was at least as likely as any punishment, let aloneabusive punishment. The social worker had noted on her firstvisit that "Minors were easily seen and did not appear to beabused/neglected." The twelve year old had already explained
_____________________________36 Id. at 905.37 Id.away the screaming and told the social worker that the chil-dren were not abusively disciplined. The social worker's nota-tions refer to the religiosity of the household, but surely afamily's religious views cannot justify social workers invad-ing the household and stripping the children. The socialworker plainly expressed the view to the mother that use ofany object to spank a child, such as the "rod " (a nine inch Lin-coln log) was illegal, and she did have reason to believe thatsuch an object was used, but appellants have cited no author-ity for the proposition she was right that California law pro-hibits use of any object to discipline a child. The statutes wehave found prohibit "cruel or inhuman" corporal punishmentor injury resulting in traumatic condition.38 While some pun-ishment with some objects might necessarily amount to cruelor inhuman punishment, a token "rod" such as a nine inchLincoln log would not. A social worker is not entitled to sacri-fice a family's privacy and dignity to her own personal viewson how parents ought to discipline their children.The Third Circuit held, in factual circumstances much moresimilar than Darryl H. to the case at bar, that the social work-ers lacked qualified immunity for strip searching small chil-dren. In Good v. Dauphin County Social Services,39 ananonymous tipster told Social Services that a seven year oldgirl had bruises on her body and said she got them in a "fightwith her mother." As with Calabretta, a social worker andpolice officer insisted on entry, claiming that they needed nosearch warrant to investigate child abuse.Good reversed a summary judgment in the social worker'sand police officer's favor on qualified immunity, and held thatthey were not entitled to qualified immunity. Even thoughthere was no case in point, the Third Circuit held that the gen-eral proposition was clearly established that the governmentmay not "conduct a search of a home or strip search of a per-son's body in the absence of consent, a valid search warrant,or exigent circumstances."40 Good cited a Seventh Circuitcase for the proposition that "It does not require a constitu-tional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of somemagnitude. More than that: it is a violation of any knownprinciple of human dignity."41 Good holds that underAnderson, "a public official may not manufacture immunityby inventing exceptions to well settled doctrines for which thecase law provides no support."42Good distinguishes Darryl H. on the ground that in DarrylH. the social workers acted pursuant to state guidelines butthey did not in Good (nor did they in the case at bar), andbecause "the strip search in this case came in the context ofa forced entry into a residence" at about 10 P.M. 43 Good heldthat "the propriety of the strip search cannot be isolated fromthe context in which it took place," referring to the coercedentry into the home.44The Tenth Circuit has likewise held that a police officerconducting a strip search of a small child in the context of achild abuse investigation lacked qualified immunity. Franz v.Lytle,45 discussed above, held that a police officer whoinsisted on looking at a two year old's vagina, and having adoctor look at it, to assure the absence of sexual abuse, lackedqualified immunity for the strip search. The Tenth Circuitrejected the officer's arguments that there was no casedirectly in point establishing the unconstitutionality, that thiswas an administrative search, and that such great latitudeshould be allowed for child protection, and held that a tip thatthe baby was going around with urine soaked diapers and uns-upervised was not sufficient reason to allow this search. TheTenth Circuit said that the social interest in child protectionincluded not only protection against child abuse, but also "thechild's psychological well-being, autonomy, and relationshipto the family or caretaker setting."46 [8] This case is like Good, not Darryl H. The strip searchcannot be separated from the context in which it took place,the coerced entry into the home. An unlawful entry or searchof a home does not end when the government officials walkacross the threshold. It continues as they impose their will onthe residents of the home in which they have no right to be.There is not much reason to be concerned with the privacyand dignity of the three year old whose buttocks wereexposed, because with children of that age ordinarily amongthe parental tasks is teaching them when they are not sup-posed to expose their buttocks. But there is a very substantialinterest, which forcing the mother to pull the child's pantsdown invaded, in the mother's dignity and authority in rela-tion to her own children in her own home. The strip search aswell as the entry stripped the mother of this authority and dig-nity. The reasonable expectation of privacy of individuals intheir homes includes the interests of both parents and childrenin not having government officials coerce entry in violation ofthe Fourth Amendment and humiliate the parents in front ofthe children. An essential aspect of the privacy of the homeis the parent's and the child's interest in the privacy of theirrelationship with each other.[9] The social worker had already established that, asagainst the weak tip, "no, Daddy, no," and "no, no, no," thechildren did not appear to be neglected or abused, the twelveyear old said that they were not, and the object with whichthey were disciplined was a token "rod" consisting of a nineinch Lincoln log. By the time the social worker forced themother to pull down the child's pants, the investigation hadcontracted to the social worker's personal opinion that anydiscipline of a child with an object must be against the law,and her puzzling mention of the family's religiosity. The gov-ernment's interest in the welfare of children embraces notonly protecting children from physical abuse, but also protect-ing children's interest in the privacy and dignity of theirhomes and in the lawfully exercised authority of their parents.AFFIRMED. the end
___________________________FOOTNOTES 1 Act Up!/Portland v. Bagley, 988 F.2d 868, 870 (9th Cir. 1993).2 Liston v. County of Riverside , 120 F.3d 965, 977 (9th Cir. 1997).3 Act Up!/Portland, 988 F.2d at 871.4 Harlow v. Fitzgerald,
457 U.S. 800, 818
(1982).5 Anderson v. Creighton,
483 U.S. 635, 640
(1987) (internal citationomitted).6 Id. at 641.7 Brady v. Gebbie, 859 F.2d 1543, 1557 (9th Cir. 1988).8 Anderson,
483 U.S. at 640
-41.9 White v. Pierce County, 797 F.2d 812 (9th Cir. 1986).12 White, 797 F.2d at 815.13 Baker v. Racansky, 887 F.2d 183 (9th Cir. 1989).19 See Garcia v. Miera, 817 F.2d 650, 658 (10th Cir. 1987).20 Franz v. Lytle. 997 F.2d 784 (10th Cir. 1993).21 Good v. Dauphin County Social Servs., 891 F.2d 1087 (3d Cir. 1989).22 Camara v. Municipal Court,
387 U.S. 523
(1967).23 Wyman v. James,
400 U.S. 309
(1971).24 Id. at 317.25 New Jersey v. T.L.O.,
469 U.S. 325
(1985).26 T.L.O.,
469 U.S. at 340
.27 White v. Pierce County, 797 F.2d 812, 815 (9th Cir. 1986).28 Camara v. Municipal Court,
387 U.S. 523
, 534, 539-40 (1967).29 Los Angeles Police Protective League v. Gates, 907 F.2d 879, 884(9th Cir. 1990).30 Cal. Welfare & Inst. Code SS 16501(a) & 16208. Though appellantscite S 16208, the Code says that section was repealed.31 DSS Regulations SS 31-105.1, 31.105.11, 31.120.1, 31-125.2, & 31-130.2.32 Cal. Admin. Code tit. 11, S 930.60.33 Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986).34 Marx v. Loral Corp., 87 F.3d 1049, 1055 (9th Cir. 1996) ("Generally,an appellate court will not consider arguments not first raised before thedistrict court unless there were exceptional circumstances.") (citationomitted).35 Darryl H., 801 F.2d at 901.38 Cal. Penal Code, tit. 1, SS 11165.3 & 11165.4.39 Good v. Dauphin County Social Services, 891 F.2d 1087 (3d Cir.1989).40 Id. at 1092.41 Id. at 1093, citing Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir. 1980).42 Good, 891 F.2d at 1094.43 Id. at 1096.44 Id. at 1096, n. 6.45 Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993).46 Id. at 792-93.