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ROBERT CALABRETTA, individually
and as parent and natural guardian
of Tamar and Natalie Calabretta,
minor children; SHIRLEY
CALABRETTA, individually and as
parent and natural guardian of
Tamar and Natalie Calabretta,
minor children,
Plaintiffs-Appellees,

v.
No. 97-15385

JILL FLOYD, individually and in her
D.C. No.
official capacity as a Caseworker
CV-95-00345-LKK/
of Yolo County Department of
PAN
Social Services; YOLO COUNTY
OPINION
DEPARTMENT OF SOCIAL SERVICES;
NICHOLAS SCHWALL, individually
and in his official capacity with
Woodland Police Department;
RUSSELL SMITH, individually and in
his official capacity as Chief of
Police of the Woodland Police
Department; WOODLAND POLICE
DEPARTMENT,
Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding

Argued and Submitted
June 8, 1998--San Francisco, California
Filed August 26, 1999

Before: J. Clifford Wallace, Thomas G. Nelson and
Andrew 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 the
plaintiffs-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 police
officer were entitled to qualified immunity, for a coerced
entry into a home to investigate suspected child abuse, inter-
rogation of a child, and strip search of a child, conducted
without 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 denied
it.

Some individual called the Department of Social Services
October 27, 1994, with the information that gave rise to this
case. The report says that the caller was anonymous, but the
report redacts names, thus it is not clear whether the caller
gave her name but the Department treated her as anonymous,
or whether she refused to give her name. The caller said that
she 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 Services
employee - it is not clear from the report) heard a child in the
home scream "No, no, no" in the late afternoon. The caller
said that the children "are school age and home studied" and
that "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 that
they had no priors and had never been on welfare. She did not
attempt to interview the person who had called in the report.

On October 31, four days after the call, the social worker
went to the Calabretta home to investigate. Mrs. Calabretta,
the children's mother, refused to let her in. The children were
standing at the door with their mother, and the social worker
noted on her report that they "were easily seen and they did
not appear to be abused/neglected."
The social worker was about to go on vacation, so she
requested that someone else be assigned to the case, but the
investigation had not been completed when she returned. On
November 10, fourteen days after the call and ten days after
the first visit, the social worker returned to the Calabretta
house with a policeman. She did not tell the police dispatcher
about the specific allegations, just that she needed police
assistance to gain access so that she could interview the chil-
dren. Officer Nicholas Schwall met the social worker at the
Calabretta house, knowing nothing about the case except that
he had been assigned to assist her. She told him that they had
received a report of the children crying, and he understood her
to mean that they might have been beaten.

The policeman knocked, Mrs. Calabretta answered, and the
policeman said they were checking on the children's welfare
because someone had reported children crying. Mrs. Cala-
bretta did not open the door, and said she was uncomfortable
letting 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 warrant
is needed. Mrs. Calabretta and Officer Schwall disagreed in
their depositions on whether Officer Schwall told her that if
she did not admit them, then he would force their way in.
Appellants concede that for purposes of appeal, the entry must
be treated as made without consent.

The social worker then took Mrs. Calabretta's twelve year
old daughter into one room while the policeman stayed with
the mother in another. The twelve year old did not remember
any of the children screaming "No, Daddy, no, " but did recall
that at about the date of the report, her little brother hurt him-
self in the backyard and screamed "no, no, no. " The social
worker asked what kind of discipline the parents used, and
understood the twelve year old to be saying that the parents
used "a round, wooden dowel, very, very thin wooden
dowel," about "twice as big . . . as a pen. " The three year old
came into the room at that point and said "I get hit with the
stick too." The twelve year old told her, according to the
social worker's report, "that her parents do not discipline
indiscriminately, only irreverence or disrespect. " The social
worker wrote in her report "Minor is extremely religious -
made continual references to the Lord and the Bible. " The
social worker testified that any physical means of disciplining
children "raises a red flag" for her, and "I always counsel or
advise parents on other ways of discipline before they resort
to corporal punishment."

While the mother was still with the policeman in the other
room, the social worker told the twelve year old to pull down
the three year old girl's pants. She wanted to look at the three
year old's buttocks to see whether there were marks. The
twelve year old did not do so, and the three year old started
crying. The mother heard her daughter crying and ran in. The
twelve year old said "she wants me to take down Natalie's
pants." The social worker said "I understand you hit your
children with objects," and went on to say "It's against the
California state law to hit your children with objects. And I
found out that you hit your children with objects. And I need
to see Natalie's bottom to see if there are bruises there." The
policeman said "I'll leave you alone to do this" and backed
off. 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 inches
long." Mrs. Calabretta "explained the Biblical basis of its use"
to the social worker. The social worker repeated "It's against
California law to hit your children with objects. This is break-
ing the law. And I insist on seeing her bottom." The three year
old was screaming and fighting to get loose, the mother
looked at the social worker to see whether she would relent,
but she did not, and the mother pulled down the three year
old'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 of
Lincoln log roofing, and Mrs. Calabretta showed it to her. The
social worker then decided not to interview or examine the
buttocks of any of the other children. She "had a brief conver-
sation with the mother in which we discussed her looking into
alternative forms of discipline."

The Calabrettas sued the social worker and policeman and
other defendants for damages, declaratory relief and an
injunction under 28 U.S.C. S 1983. The defendants moved for
summary judgment on grounds of qualified immunity. The
district court denied the defendants' motion, and the social
worker and police officer appeal.

Analysis.

We have jurisdiction over interlocutory appeals from deni-
als of summary judgments denying qualified immunity. 1 On
summary judgment, "even in a qualified immunity case, we
must assume the nonmoving party's version of the facts to be
correct."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, the
disagreements are not material to the outcome. We review
denial of the qualified immunity claim de novo.3

A. The coerced entry

The social worker and police officer concede that for pur-
poses of appeal, they should be treated as having entered the
Calabretta home without consent. They argue that the district
court erred in holding that their nonconsensual entry required
special exigency or a search warrant. Their theory is that an
administrative search to protect the welfare of children does
not carry these requirements, and the social worker was doing
just what she was supposed to do under state administrative
regulations. They claim immunity for entry into the home,
interviewing the twelve year old, and strip searching the three
year old.

[1] "[G]overnment officials performing discretionary func-
tions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known."4 The right the official is alleged to have
violated must have been "clearly established" in an appropri-
ately particularized sense. "The contours of the right must be
sufficiently clear that a reasonable official would understand
that what he is doing violates that right. That is not to say that
an official action is protected by qualified immunity unless
the 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 the
objective (albeit fact-specific) question whether a reasonable
officer could have believed [the] warrantless search to be law-
ful, in light of clearly established law and the information the
searching officers possessed. [The officer's] subjective beliefs
about the search are irrelevant."6 "Specific binding precedent
is not required to show that a right is clearly established for
qualified immunity purposes."7

[2] The facts in this case are noteworthy for the absence of
emergency. The social worker and her department delayed
entry into the home for fourteen days after the report, because
they perceived no immediate danger of serious harm to the
children. The police officer was there to back up the social
worker's insistence on entry against the mother's will, not
because he perceived any imminent danger of harm. The
report that led to the investigation could have indicated a
problem, but was not especially alarming. A child screaming
"no, Daddy, no" late at night could mean that the father was
abusing the child. But in a household where the father puts the
children to bed, these words are often screamed at bedtime,
and also in the middle of the night after a child has gotten up
to 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. The
other scream, "no, no, no," likewise may mean abuse, or may
mean that a child around two is developing a normal, healthy
sense of separateness of herself as an individual and perhaps
does not care for her mother's choice of vegetable. The tip-
ster's reference to religion might imply that the tip arose from
religious differences between the tipster and the Calabretta
family. Had the information been more alarming, had the
social worker or police officer been alarmed, had there been
reason 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 social
workers." They claim qualified immunity on the ground that
there is no clearly established principle to the contrary. The
principle they urged is too broad. Anderson requires more par-
ticularized analysis, to determine whether, in these particular
circumstances, notably the absence of emergency, a reason-
able official would understand that they could not enter the
home without consent or a search warrant.8 

[3] In our circuit, a reasonable official would have known
that the law barred this entry. Any government official can be
held to know that their office does not give them an unre-
stricted right to enter peoples' homes at will. We held in
White 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 cause
existed."10 The principle that government officials cannot
coerce entry into people's houses without a search warrant or
applicability of an established exception to the requirement of
a search warrant is so well established that any reasonable
officer would know it. Under White, appellants' claim, that "a
search warrant is not required for home investigatory visits by
social workers," is simply not the law.

[4] Appellants urge that White speaks only to police, not
social workers. That is an invalid distinction. In the case at
bar, the social worker used a police officer to intimidate the
mother into opening the door. Also, there is no reason why
White would be limited to one particular kind of government
official. The Fourth Amendment preserves the "right of the
people to be secure in their persons, houses . . . . " without lim-
iting that right to one kind of government official. It is not as
though all reasonable people thought any government official
could enter private houses against the occupants' will, without
search warrant or special exigency, and then White said that
police officers could not, without speaking about social work-
ers. Rather, everyone knew that the government could not so
enter 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 immunity
because White did not speak expressly about social workers
is of the kind that Anderson rejects, "[t]hat is not to say that
an official action is protected by qualified immunity unless
the very action in question has previously been held unlawful
. . . ."11

There is a distinction between White and the case at bar, but
the 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 the
seven year old had several welts on his back. The boy and his
father talked to the police officer at the door, and the boy tried
to show the officer his back, but the father would not allow
him to. Based on the report, and the father's violent and abu-
sive response when questioned, the officer thought that if he
delayed to get a warrant, the father would injure the child or
remove him from the house before the officer returned with
the warrant. We held that "the deputies had probable cause to
believe the child had been abused and that the child would be
injured or could not be taken into custody if it were first nec-
essary to obtain a court order."12

By contrast, in the case at bar, the report did not describe
any evidence of physical abuse, and the social worker and
police officer did not perceive any danger of injury to the
children or loss of evidence if they secured a warrant. On her
first visit four days after the call, ten days prior to her return
with the police officer, the social worker wrote "Minors were
easily seen and they did not appear to be abused/neglected."
The only reason the social worker and police officer did not
seek a search warrant was that their subjective opinion was
that they did not need one.

Appellants argue that Baker v. Racansky13 limits White to
the 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, but
merely held that it did the claimants in that case no good.
Baker is not on point, because it did not involve any kind of
home search, and did not turn on any child welfare exception
to normal search and seizure law.

In Baker, we held that social workers were entitled, in the
particular circumstances of that case, to qualified immunity
for their decision to take a child into protective custody. We
noted that at the time, "there was no binding Ninth Circuit or
Supreme Court precedent which clearly established when
state officials could or could not take a child into temporary
protective custody."14 That, of course, distinguishes Baker
from the case at bar, where at the time there was binding
Ninth Circuit precedent, White, which clearly established that
the general law of search warrants applied to child abuse
investigations. Baker also differs from the case at bar in that
the investigators reasonably believed that the child was in
imminent danger of abuse if they did not act. A neighbor's
children reported to their mother, and to the social worker,
that the child's father had sexually abused them, and one of
them had a vaginal rash that corroborated the accusation.
When the social workers asked the father's own child if his
father did anything sexual with him, the child denied it but
"started walking around the room . . . would crawl up in his
chair . . . went into the corner of the room, put his head in
between his legs, raised his legs up, put his arms up toward
his head like this, curled up."15 The social workers thought the
denial was false, because of the child's bizarre behavior when
he made the denial, and thought that the mother would not be
able to protect the child when the father was released from
jail.

Appellants argue that other circuits have allowed broader
qualified immunity, so the social worker and police officer
could not have been expected to know that they were acting
unconstitutionally. They cite Darryl H. v. Coler ,16 Wildauer v.
Frederick Cnty.,17 and Franz v. Lytle,18 and some out of circuit
district 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 social
workers. It is not clear that a conflict among other circuits
would create qualified immunity where clearly established
law in this circuit would preclude it,19  but even if it could,
these cases would not establish such an open question about
coerced entry.

Darryl H. involves strip searches of children, not warrant-
less entries into homes, and is discussed below with respect
to the strip search. Wildauer involves an entry into a home,
but there was apparent consent and no express objection, no
criminal aspect to the investigation, no entry of a parental
home to investigate parents' treatment of their children, and
no investigatory purpose. The householder had nine "foster
children" living with her (apparently the children were not
placed there pursuant to custody orders), and two sets of par-
ents had complained that she would not give their children
back despite the absence of any custodial claim. When the
social worker appeared, the householder gave two children
back and said there were two more she could not find, and
invited the social worker in to help look for them. The social
worker came back with a nurse because many of the children
were disabled and the house looked unhygienic to the social
worker, but the purpose of the second look, to which no
objection was made, was to see whether the children should
stay there, not to investigate any crime.

We are unable to see why appellants cite Franz v. Lytle.20
A neighbor told the police that a woman was leaving her two
year 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 the
neighbor take off the child's diaper so that he could examine
and feel the baby's vaginal area, and under the guise of inves-
tigating for sexual molestation, threatening to take the baby
into protective custody to make the parents bring the baby to
a hospital for further vaginal examination (which revealed no
evidence of sexual molestation, a crime for which there was
no evidence). The case would not have given the police offi-
cer and social worker in the case at bar any reason to think
their entry into the Calabretta house and strip search of the
three year old was constitutionally permissible, because to the
extent that Franz was in any way analogous, the police officer
lost on his qualified immunity claim.

One other circuit has spoken on facts analogous to those in
the case at bar. Good v. Dauphin County Social Services,21
like our decision in White, holds that a social worker and
police officer were not entitled to qualified immunity for
insisting on entering her house against the mother's will to
examine her child for bruises. Good holds that a search war-
rant or exigent circumstances, such as a need to protect a child
against imminent danger of serious bodily injury, was neces-
sary for an entry without consent, and the anonymous tip
claiming bruises was in that case insufficient to establish spe-
cial exigency. In our case, the anonymous tip did not even
allege bruises.

Appellants also argue that the doctrine allowing certain
kinds of administrative searches without warrants or special
exigency applies to social workers' entries into homes for
child protection. That proposition is too broad for the kind of
particularized examination of conduct in particular circum-
stances required by Anderson. We need not decide whether in
some circumstances that doctrine might apply, because it does
not apply in the circumstances of this case.

The starting point for administrative searches is Camara v.
Municipal Court.22 The case involved a routine municipal
housing code inspection of an apartment house, yet the Court
held 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, so
a warrant would be easy to obtain if an occupant would not
let an inspector in without it, but a search warrant was neces-
sary in the absence of special exigency or consent, despite the
lack of any criminal investigatory purpose. Our analysis in
White is consistent with Camara, and Camara is of no help
to appellants.

Appellants argue that Wyman v. James,23 establishes that
where a social worker enters a house to investigate the wel-
fare of a child, Fourth Amendment standards do not apply. It
does not. Wyman holds that the state may terminate welfare
where a mother refuses to allow a social worker to visit her
home to see whether the welfare money is being used in the
best interests of the child for whom it is being paid. It does
not hold that the social worker may enter the home despite the
absence of consent or exigency. Wyman distinguishes Camara
on the ground that in Wyman, "the visitation in itself is not
forced or compelled."24 In the case at bar, by contrast, the
entry 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-school
searches, the Fourth Amendment did not require a warrant or
probable cause. It has no bearing on searches of a home.
Appellants would have us read T.L.O. as a blanket suspension
of ordinary Fourth Amendment requirements where children
are involved. The Court's opinion does not support so broad
a reading. The court emphasized that it was "the school
setting" that "requires some easing of the restrictions to which
searches by public authorities are ordinarily subject."26 Of
course there are occasions when Fourth Amendment restric-
tions on entry into homes are relaxed. We emphasize that in
this case the officials entered without a warrant or consent
simply because they thought they had a right to do so, and
thought that the Fourth Amendment did not apply to entries
into homes where children were involved. This was not a case
where the officials coercing entry into the home recognized
some special exigency creating imminent risk to the child.
White v. Pierce County27 establishes that a special exigency
excuses a warrantless entry where the government officers
have probable cause to believe that the child has been abused
and that the child would be injured or could not be taken into
custody if it were first necessary to obtain a court order.

Appellants also argue that the coerced entry into the home
was primarily to protect the children, not investigate crime,
pursuant to California regulations. It is not clear why this
would excuse them from compliance with the Fourth Amend-
ment, in light of the Camara holding that administrative
inspections of buildings are "significant intrusions upon the
interests protected by the Fourth Amendment," even though
not criminal, so in the absence of emergency, warrants should
be obtained if consent is refused.28 We held, years before the
coerced entry into the Calabretta home, that even in the con-
text of an administrative search, "[n]owhere is the protective
force of the fourth amendment more powerful than it is when
the sanctity of the home is involved . . . . Therefore, we have
been adamant in our demand that absent exigent circum-
stances a warrant will be required before a person's home is
invaded by the authorities."29
[6] Nor did the California statutes and regulations direct the
social worker or police officer to coerce entry into the home
without a warrant or special exigency, or suggest that no war-
rant was needed in that circumstance. The statutes 30 appellants
cite say nothing about entering houses without consent and
without search warrants. The regulations they cite require
social workers to respond to various contacts in various ways,
but none of the regulations cited31 say that the social worker
may force her way into a home without a search warrant in
the absence of any emergency. A possibly related regulation,
in the chapter on "Report of Child Abuse Investigative
Procedures," does speak to search warrants, but not at all
helpfully to appellants. It says that the "child protective
official" receiving a report should "consider the need for a
search warrant."32 This administrative regulation would tend
to put the social worker on notice that she might need a search
warrant, not that she was exempt from any search warrant
requirements. Appellants presented no evidence they did
"consider the need for a search warrant." They both imagined
incorrectly that no search warrants were necessary to enter
houses for child abuse investigations.

We conclude that on appellants' first issue, whether they
were protected by qualified immunity regarding their coerced
entry into the Calabrettas' home, the district court was right.
They were not.

B. The strip search.

Appellants second issue on appeal is whether they were
entitled to qualified immunity for the social worker's requir-
ing the twelve year old to talk to her in a separate room and
requiring 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 that
such a visual inspection is shielded by qualified immunity.
They also argue that there are so many reports of child abuse
that the social workers cannot bear any additional restrictions
on how they conduct their investigations. In their memoran-
dum in support of summary judgment filed in the district
court, 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 no
occasion to pass on the question. The argument in the district
court was limited to the proposition that the social worker vio-
lated no clearly established law in strip searching the three
year 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, and
did not involve an official takeover of the family home. The
Seventh Circuit reversed a summary judgment in the social
workers' favor on constitutionality of the search. The opinion
says that "nude physical examination is a significant intrusion
into the child's privacy" and even where the child is too
young to have the same subjective sense of bodily privacy as
an 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 to
unwarranted state intrusion."35 Although a warrant or probable
cause was not needed, in the Seventh Circuit's view, reason-
ableness was under the Fourth Amendment, and there were
issues of fact that precluded summary judgment regarding
reasonableness. Although in Darryl H., as in the case at bar,
the social worker ordered the mother to strip the child, there
was a genuine issue of fact about whether the mother did so
consensually or in response to coercion. Also, not much
checking had been done on the validity of the tip, the children
denied abuse, and there was evidence that the tipster might
not be fair and objective.

Darryl H. offers some support to appellants because it held
that the social workers were entitled to qualified immunity.
But the strip search was not done during an unconstitutional
entry into the home, and the information supporting a strip
search was much stronger in Darryl H. than in the case at bar.
The school principal reported "Lee H., age six, was tied up for
punishment. Lee and his sister, Marlena, age seven, were thin
and not allowed to eat lunch at school, and the children's
clothes and bodies were dirty."36 The principal told the social
worker that "both parents were usually angry when they came
to school . . . that other students indicated Lee was tied up for
punishment," but "that bruises had never been observed on
the children."37 Thus, in Darryl H., the social workers had
substantial 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 social
worker had little reason to believe that the three year old was
abused. 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 entirely
accurate, a benign explanation of "no, Daddy, no " and "no,
no, no" was at least as likely as any punishment, let alone
abusive punishment. The social worker had noted on her first
visit that "Minors were easily seen and did not appear to be
abused/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 a
family's religious views cannot justify social workers invad-
ing the household and stripping the children. The social
worker plainly expressed the view to the mother that use of
any object to spank a child, such as the "rod " (a nine inch Lin-
coln log) was illegal, and she did have reason to believe that
such 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 we
have found prohibit "cruel or inhuman" corporal punishment
or injury resulting in traumatic condition.38 While some pun-
ishment with some objects might necessarily amount to cruel
or inhuman punishment, a token "rod" such as a nine inch
Lincoln log would not. A social worker is not entitled to sacri-
fice a family's privacy and dignity to her own personal views
on how parents ought to discipline their children.

The Third Circuit held, in factual circumstances much more
similar 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 an
anonymous tipster told Social Services that a seven year old
girl had bruises on her body and said she got them in a "fight
with her mother." As with Calabretta, a social worker and
police officer insisted on entry, claiming that they needed no
search warrant to investigate child abuse.

Good reversed a summary judgment in the social worker's
and police officer's favor on qualified immunity, and held that
they were not entitled to qualified immunity. Even though
there was no case in point, the Third Circuit held that the gen-
eral proposition was clearly established that the government
may 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 Circuit
case 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 some
magnitude. More than that: it is a violation of any known
principle of human dignity."41 Good holds that under
Anderson, "a public official may not manufacture immunity
by inventing exceptions to well settled doctrines for which the
case law provides no support."42

Good distinguishes Darryl H. on the ground that in Darryl
H. the social workers acted pursuant to state guidelines but
they did not in Good (nor did they in the case at bar), and
because "the strip search in this case came in the context of
a forced entry into a residence" at about 10 P.M. 43 Good held
that "the propriety of the strip search cannot be isolated from
the context in which it took place," referring to the coerced
entry into the home.44

The Tenth Circuit has likewise held that a police officer
conducting a strip search of a small child in the context of a
child abuse investigation lacked qualified immunity. Franz v.
Lytle,45 discussed above, held that a police officer who
insisted on looking at a two year old's vagina, and having a
doctor look at it, to assure the absence of sexual abuse, lacked
qualified immunity for the strip search. The Tenth Circuit
rejected the officer's arguments that there was no case
directly in point establishing the unconstitutionality, that this
was an administrative search, and that such great latitude
should be allowed for child protection, and held that a tip that
the baby was going around with urine soaked diapers and uns-
upervised was not sufficient reason to allow this search. The
Tenth Circuit said that the social interest in child protection
included not only protection against child abuse, but also "the
child's psychological well-being, autonomy, and relationship
to the family or caretaker setting."46 

[8] This case is like Good, not Darryl H. The strip search
cannot be separated from the context in which it took place,
the coerced entry into the home. An unlawful entry or search
of a home does not end when the government officials walk
across the threshold. It continues as they impose their will on
the residents of the home in which they have no right to be.
There is not much reason to be concerned with the privacy
and dignity of the three year old whose buttocks were
exposed, because with children of that age ordinarily among
the parental tasks is teaching them when they are not sup-
posed to expose their buttocks. But there is a very substantial
interest, which forcing the mother to pull the child's pants
down invaded, in the mother's dignity and authority in rela-
tion to her own children in her own home. The strip search as
well as the entry stripped the mother of this authority and dig-
nity. The reasonable expectation of privacy of individuals in
their homes includes the interests of both parents and children
in not having government officials coerce entry in violation of
the Fourth Amendment and humiliate the parents in front of
the children. An essential aspect of the privacy of the home
is the parent's and the child's interest in the privacy of their
relationship with each other.

[9] The social worker had already established that, as
against the weak tip, "no, Daddy, no," and "no, no, no," the
children did not appear to be neglected or abused, the twelve
year old said that they were not, and the object with which
they were disciplined was a token "rod" consisting of a nine
inch Lincoln log. By the time the social worker forced the
mother to pull down the child's pants, the investigation had
contracted to the social worker's personal opinion that any
discipline 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 not
only protecting children from physical abuse, but also protect-
ing children's interest in the privacy and dignity of their
homes 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 citation
omitted).
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 appellants
cite 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 the
district court unless there were exceptional circumstances.") (citation
omitted).
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.