Appeal from the United States District Court for the Eastern District of Wisconsin. No. 05 C 650-Lynn Adelman, Judge.
The opinion of the court was delivered by: Bauer, Circuit Judge.
Before BAUER, EVANS and SYKES, Circuit Judges.
The parents and stepparents of minor children Ian and Alexis ("Plaintiffs") sued Dana Gresbach, a caseworker with the Bureau of Milwaukee Child Welfare ("Bureau"), under 42 U.S.C. § 1983, alleging in part that Gresbach violated the children's Fourth Amendment rights when she conducted under-the-clothes examinations of each child's body during separate interviews at their private school, as part of a child abuse investigation in February of 2004. Gresbach moved for summary judgment on qualified immunity grounds. The district court denied the motion, holding that Gresbach's conduct violated the children's rights to be free from unreasonable searches, and those rights were clearly established at the time of the searches. Gresbach appeals, arguing that she is entitled to qualified immunity because her actions were objectively reasonable under the Fourth Amendment after she received general consent from the school's principal to investigate an allegation of child abuse pursuant to Wis. Stat. § 48.981(3)(c)1, and no case clearly established that her investigation violated the children's Fourth Amendment rights. We affirm.
In Doe v. Heck, 327 F.3d 492 (7th Cir. 2003), we addressed the application of the Fourth Amendment in the context of child abuse investigations by the same state agency at issue here, the Bureau, on the premises of a private school. Because we find Heck to be a blueprint for our analysis, a brief review of its facts and holding, as they pertain to this case, is necessary.
The Bureau, a division of the Wisconsin Department of Health and Family Services which provides child abuse prevention and related services in Milwaukee County, conducts investigations of child abuse allegations under established protocols in order to substantiate whether or not child abuse has occurred. Prior to April, 2003, Wis. Stat. § 48.981(3)(c)1 had been interpreted as providing Bureau caseworkers with the authority to interview children at school without having to obtain permission from their parents or school officials. See Heck, 327 F.3d at 502 n. 6. In Heck, Bureau caseworkers received a report that a child had been spanked at his private school, which followed a corporal punishment policy. Pursuant to their investigation, the caseworkers went to the school, identified themselves to the principal, and requested to see the child for an interview. The principal initially refused to allow the workers to interview the child, however once the workers received confirmation from a Wisconsin district attorney that § 48.981(3)(c)*fn1 gave them the authority to interview children on school premises without obtaining consent from either the parents or school officials, the principal reluctantly agreed to allow the caseworkers to interview the child, which they did, without conducting a physical examination of the child. Later, the school and the child's parents sued the caseworkers, alleging in part that they conducted an unreasonable search of the school premises and an illegal seizure of the child in violation of the Fourth Amendment. The district court found that the caseworkers were protected by qualified immunity, and we affirmed.
Under established Fourth Amendment principles, we found that a private school and its students had a reasonable expectation of privacy in and within the school's premises, and that therefore the caseworkers' warrantless search of the premises and seizure of the child in order to conduct an interview for a child abuse investigation, without the consent of the child's parents or school officials, was presumptively unreasonable. Heck, 327 F.3d at 510-13. We determined, in part, that "to the extent § 48.981(3)(c)1 authorizes government officials to inter-view children suspected of being abused on private property without a warrant or probable cause, consent, or exigent circumstances, it is clearly unconstitutional as applied." Id. at 515-16. We nevertheless found that a reasonable child welfare caseworker would not have understood his actions under the statute to be unconstitutional under the Fourth Amendment at the time of the alleged violation, because his conduct did not violate any clearly established law. Accordingly, we held that the caseworkers were entitled to qualified immunity, but stated that "[a]t this juncture [April, 2003] . . . we now make it clear that it is patently unconstitutional for governmental officials to search the premises of a private or parochial school and/or seize a child attending that school without a warrant or court order, probable cause, consent, or exigent circumstances." Heck, 327 F.3d at 517.
It is through the lens of Heck that we examine the district court's conclusion that Gresbach is not entitled to qualified immunity.
On February 4, 2004, a female family member of eight-year-old Ian made a child abuse report to the Bureau, stating that Ian told her that Michael C., Ian's stepfather, hit him on the wrists with a plastic stick on January 28, 2004. On February 5th, Dana Gresbach, an agent with the Bureau since 1998, was assigned the case. During the next four days, Gresbach reviewed the child abuse report, met with a manager at the Bureau, Rita Zappen, and spoke to the family member who reported the abuse. On February 9th, Gresbach went to Ian's private school, Good Hope Christian Academy ("Good Hope"), to interview Ian and his stepsister, nine-year-old Alexis.
When Gresbach arrived at Good Hope, she met with Principal Cheryl Reetz. Gresbach handed Reetz her business card and told Reetz that she needed to see Ian and Alexis. Reetz was unfamiliar with her own role in a child abuse investigation-the only real training she had received was annual review of the faculty handbook, which delineates a teacher's responsibilities as a mandatory reporter of child abuse. Reetz asked Gresbach if she could call the children's parents, to which Gresbach said no, and that Gresbach would contact the parents herself after she had spoken with Ian and Alexis. Reetz also asked Gresbach if she could observe the interviews, and Gresbach responded that Reetz need not do so. According to Reetz, she was concerned about allowing Gresbach to interview the children without parental consent, but she assumed that because Gresbach was a Bureau caseworker, Reetz was legally obligated to allow Gresbach to see the children, and that she was legally prohibited from contacting the children's parents. Gresbach did not ask permission from Reetz to physically examine Ian and Alexis for signs of abuse; she believed she was not obliged to do so, because § 48.981(3)(c)1 gave her the authority to conduct an interview and possible physical examination of the children without consent. Under Heck, Gresbach's belief was inaccurate.
Reetz allowed Gresbach to use her office to conduct the interviews, and she retrieved the children from their classrooms. Gresbach spent ten to fifteen minutes alone in the office with each child. Ian told Gresbach that Michael C. sometimes hit him with a flexible stick. Gresbach examined Ian's wrist for injuries, but did not see any. Gresbach asked the child to pull up his shirt, and Ian complied. Gresbach inspected his back for suspicious injuries, but found none. During her interview, Alexis told Gresbach that her parents sometimes gave her "whoppings," but denied receiving any marks or injuries. Gresbach asked Alexis to pull down her tights and lift up her dress, and Alexis did so. Gresbach examined her legs for any injuries, and found none. Gresbach finished the interviews and left the school.
Gresbach later spoke with the children's mother, who was very upset about what had happened at the school. The Bureau made attempts to meet with the parents and step-parents of Ian and Alexis, but the meetings never occurred. Because no injuries were ...