                                                                         FILED
                                                             United States Court of Appeals
                                     PUBLISH                         Tenth Circuit

                      UNITED STATES COURT OF APPEALS                January 3, 2019

                                                                Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                  Clerk of Court
                         _________________________________

JANE DOE; I.B.,

      Plaintiffs - Appellants,

v.                                                    No. 18-1066

APRIL WOODARD, in her individual
capacity; CHRISTINA NEWBILL, in her
individual capacity; SHIRLEY RHODUS,
in her individual capacity; RICHARD
BENGTSSON, in his individual capacity;
EL PASO COUNTY BOARD OF
COUNTY COMMISSIONERS,

      Defendants - Appellees,

and

REGGIE BICHA, in his official capacity as
Executive Director of the Colorado
Department of Human Services; JULIE
KROW, in her official capacity as
Executive Director of the El Paso County
Department of Human Services,

     Defendants.
_______________________

PARENTAL RIGHTS FOUNDATION;
NATIONAL CENTER FOR HOUSING
AND CHILD WELFARE; NATIONAL
COALITION FOR CHILD PROTECTION
REFORM; PARENT GUIDANCE
CENTER; MARK FREEMAN; PACIFIC
JUSTICE INSTITUTE,

      Amici Curiae.
                         _________________________________

                      Appeal from the United States District Court
                              for the District of Colorado
                           (D.C. No. 1:15-CV-01165-KLM)
                        _________________________________

Theresa Lynn Sidebotham, (Jessica Ross with her on the brief), of Telios Law PLLC,
Monument, Colorado, for Plaintiffs - Appellants.

Kenneth R. Hodges, Senior Assistant County Attorney (Diana K. May, First Assistant
County Attorney, with him on the brief), Colorado Springs, Colorado, for Defendants -
Appellees.

Kevin T. Snider, Pacific Justice Institute, Sacramento, California, filed an Amicus Curiae
brief for Pacific Justice, in support of Appellants.

Darren A. Jones and James R. Mason, III, Purcellville, Virginia, Martin Guggenheim and
Carolyn Kubitschek, Alexandria, Virginia, Diane Redleaf, College Park, Maryland, and
Mark Freeman, Media, Pennsylvania, filed an Amici Curiae brief for Parental Rights
Foundation, National Center for Housing and Child Welfare, National Coalition for Child
Protection Reform, Parent Guidance Center, and Mark Freeman, Esq., in support of
Appellants.
                        _________________________________

Before BRISCOE, LUCERO, and MATHESON, Circuit Judges.
                   _________________________________

MATHESON, Circuit Judge.
                    _________________________________

      I.B., a minor child, and her mother, Jane Doe (collectively, “Does”), claim that

April Woodard, a caseworker from the El Paso County Department of Human Services

(“DHS”), a state agency, wrongfully searched I.B. at the Head Start preschool program

in Colorado Springs. Without consent or a warrant, Ms. Woodard partially undressed



                                                 2
I.B., performed a visual examination for signs of abuse, then photographed I.B.’s

private areas and partially unclothed body.

         In their lawsuit, the Does alleged that Ms. Woodard and other DHS officials

violated the Fourth Amendment’s prohibition on unreasonable searches and the

Fourteenth Amendment’s protection against undue interference with parental rights and

with familial association. The Defendants moved to dismiss.1 The district court

granted the motion, holding that qualified immunity precludes the Fourth Amendment

unlawful search claim and that the complaint failed to state a Fourteenth Amendment

claim.

         The Does appeal these rulings and the district court’s denial of leave to amend

their complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                     I. BACKGROUND

                                   A. Factual Background

         In reviewing the grant of a motion to dismiss, we accept the allegations in the

complaint as true and draw all reasonable inferences in favor of the non-moving party—

here, the Does. Mayfield v. Bethards, 826 F.3d 1252, 1255, 1258 (10th Cir. 2016).




         1
        The Does sued six defendants, who are identified in the procedural history
section below.

                                                   3
       In December 2014, I.B. was attending preschool at the Head Start Program in

Colorado Springs.2 An anonymous source reported to DHS possible signs of abuse on

I.B.’s body, including bumps on her face, a nickel-sized bruise on her neck, a small red

mark on her lower back, two small cuts on her stomach, and bruised knees. DHS

caseworker April Woodard responded to the report, arriving to take I.B. to the nurse’s

office.3 Allegedly acting on instructions from DHS supervisor Christina Newbill, Ms.

Woodard removed I.B.’s clothing and visually inspected and photographed I.B.’s buttocks,

stomach, and back using a county-issued cell phone.4

       The Does alleged that the undressing and photographing were “executed under an

unwritten, but well-established county-wide policy or custom encouraging the practice,

often without first obtaining parental consent or a court order.” Aplt. Br. at 5 (citing Aplt.




       2
        Pacific Justice’s amicus brief explains that Head Start is “a federally funded
preschool in which children engage in a course of age-appropriate studies conducted by
a teacher. Although not a K-12 public school, Head Start primarily functions as an
educational institution for very young children.” Pacific Justice Amicus Br. at 2
(footnote omitted). The “program meets on public school campuses.” Id.

           3
          This was the not DHS’s first investigation regarding I.B. The Does alleged
 that, between 2012 and 2014, DHS investigated their home “around half a dozen
 times, based on false reports that I.B. was being abused.” Am. Compl. ¶ 15. One
 investigation was based on a report that I.B. had marks resembling a hand print on
 her bottom and lower-back bruising. DHS visually examined I.B. with her clothing
 removed. DHS closed the investigation, finding in January 2014 the report was
 unfounded. Id. ¶¶ 24-32.
       4
      According to Defendants, “the school’s health paraprofessional” assisted Ms.
Woodard. Aplee. Br. at 7.
                                           4
App., Vol. I at 21-28). They further alleged that Richard Bengtsson, then Executive

Director of the El Paso County DHS, issued the policy, and the director of Ms. Woodard’s

department, Shirley Rhodus, implemented it.

      The following day, Ms. Woodard visited Ms. Doe at home. DHS did not suspect

her of abuse, and she cooperated with the investigation. Ms. Woodard did not inform

Ms. Doe that she had inspected and photographed I.B. in a state of partial undress. The

case was closed as unfounded.

      After DHS closed the case, I.B. told her mother about the incident, saying she

hoped she would not see Ms. Woodard again because “I don’t like it when she takes all

my clothes off.” Aplt. App., Vol. I at 17. I.B. later said to Ms. Doe that Ms. Woodard

had taken photos of her against her will. Aplt. App., Vol. I at 18. When Ms. Doe

approached Ms. Woodard about her daughter’s accusations, Ms. Woodard at first

denied them. Two months later, she reversed course and admitted that she did the

inspection and took photographs. Ms. Woodard told Ms. Doe that a child abuse

accusation and investigation takes priority over the mother’s parental rights.

                                 B. Procedural History

      The Does sued under 42 U.S.C. § 1983, alleging violation of I.B.’s Fourth

Amendment rights and violations of I.B.’s and Ms. Doe’s Fourteenth Amendment




                                                5
rights.5 The Fourth Amendment claims were based on both the visual inspection and

the photographs; the Fourteenth Amendment claims only on the inspection. In addition

to Ms. Woodard, the Does named as defendants Ms. Woodard’s supervisors, Ms.

Newbill and Ms. Rhodus; Mr. Bengtsson, Executive Director of El Paso County DHS;

Reggie Bicha, Executive Director of Colorado DHS; and the El Paso Board of County

Commissioners (“BOCC”). The Does sought damages and prospective relief against a

“statewide and local policy and custom” encouraging “strip searching children

whenever injuries are alleged.” Aplt. App., Vol. I at 40. The Defendants moved to

dismiss based on qualified immunity and failure to state a claim.

1. Dismissal of Fourth Amendment Claims

         A magistrate judge6 concluded Ms. Woodard and her supervisors were entitled

to qualified immunity on the Fourth Amendment claim7 and dismissed the claim

without prejudice. When the Does sought to file an amended complaint, the court

rejected the request on futility grounds and dismissed the claim with prejudice.




         5
         Because I.B. is a minor, Ms. Doe brought her claims for her. Although we
refer to “the Does” when discussing the Fourth and Fourteenth Amendment claims, the
Fourth Amendment claims are solely on behalf of I.B.
         6
         The parties agreed to have all proceedings in the case decided by a magistrate
judge. See 28 U.S.C. § 636(c). We will refer to the magistrate judge’s court as the
“district court.”
         7
             Doe et al. v. Woodard et al., No. 1:15-CV-01165-KLM (D. Colo. Sept. 30,
2016).
                                                 6
      a. Ms. Woodard and Ms. Newbill

      The district court dismissed the Fourth Amendment claim against Ms. Woodard

and Ms. Newbill because the law was not so “clearly established” as to “give

Defendants fair warning that the taking photographs of portions of I.B.’s unclothed

body required a warrant.” Dist. Court Op. at 16.

      To the extent the Fourth Amendment claim was based on the Defendants’ failure

to show that the “special needs” doctrine justified the search, the district court

recognized that a special needs search comports with the Fourth Amendment only if it

is “justified at its inception” and “reasonably related in scope to the circumstances

which justified interference in the first place.” Id. at 19 (quotations omitted). But, the

district court concluded, the Does’ complaint “lack[ed] allegations” the search was

unjustified at its inception or was improper in scope. Id.8

      The district court dismissed the Does’ Fourth Amendment claim without

prejudice.

      b. Ms. Rhodus and Mr. Bengtsson

      The district court dismissed the Fourth Amendment § 1983 supervisory liability

claim against Ms. Rhodus and Mr. Bengtsson. Because qualified immunity shielded

their supervisees, Ms. Woodard and Ms. Newbill, it also shielded them. Id. at 22. The


      8
        The district court also said Defendants’ conduct was objectively reasonable
because they complied with a Colorado statute authorizing photography in cases of
suspected child abuse. Id. (citing Colo. Rev. Stat. § 19-3-306).
                                               7
court also dismissed the claim for prospective relief against Ms. Rhodus and Mr.

Bengtsson, which demanded safeguards on storing photographs obtained in future

searches, because it was based only on a “mere potential violation.” Id. at 23-24.

2. Dismissal of Fourteenth Amendment Claims

      a. Ms. Woodard and Ms. Newbill

      The district court dismissed, for failure to state a claim, the Does’ substantive

due process claims under the Fourteenth Amendment for violation of the parental right

to direct medical care and of the right to familial association.

             i. Right to direct medical care

      The district court dismissed the parental rights claim, stating that (1) the visual

exam of a child was not “essentially a medical procedure”; (2) the complaint did not

allege that the exam “affected [I.B’s mother’s] right to direct [I.B.’s] medical care”;

and (3) the complaint did not allege that the exam caused any “interference with

[I.B.’s] medical treatment.” Id. at 31 (quotations omitted).

             ii. Right to familial association

      The district court dismissed the familial association claims, concluding the Does

did not sufficiently plead that (1) the Defendants intended to separate I.B. from her

mother or that (2) the Defendants knew their conduct would adversely affect the

familial relationship. Id.

      b. Ms. Rhodus, Mr. Bengtsson, and Mr. Bicha


                                                 8
      The district court also dismissed the Fourteenth Amendment supervisory claims

against Ms. Rhodus and Mr. Bengtsson and the official capacity claims against Mr.

Bengtsson and Mr. Bicha because the complaint failed to allege an underlying violation

of the Fourteenth Amendment.9

3. Denial of Leave to Amend and Dismissal with Prejudice

      When the Does attempted to amend their complaint, the district court denied the

request, stating that the Does “have not addressed the Court’s determination that

Defendants were entitled to qualified immunity because the law was not clearly

established with respect to whether Defendants needed a warrant in order to search the

minor Plaintiff. In the absence of any case clearly establishing Plaintiffs’ rights as

asserted, the Court cannot find that Defendants knowingly violated the law, even

assuming that they committed a constitutional violation.” Aplt. App., Vol. II at 72-73

(citations and quotations omitted).10




      9
        The Does do not appeal the dismissal of the Fourteenth Amendment official-
capacity claims.
      10
         The Does sued the BOCC for its role in the same alleged violations under the
Fourth and Fourteenth Amendments. The district court dismissed these claims because
the BOCC is a county rather than state entity and lacked final policymaking control.
This ruling is not on appeal.

                                                9
      The district court also dismissed the Fourth and Fourteenth amendment claims

with prejudice.11




      11
          The claim for prospective relief against Mr. Bengtsson and Mr. Bicha in their
official capacities survived the motion to dismiss. Limited discovery was granted
regarding standing on the claim, but it was later dismissed by stipulation of the parties.
No prospective claim against Ms. Rhodus and Mr. Bengtsson in their official capacity
is part of this appeal.
                                                10
                                    II. DISCUSSION

       Our discussion reviews (A) the district court’s qualified immunity dismissal of

the Does’ Fourth Amendment claims and (B) its dismissal of their Fourteenth

Amendment claims for failure to state a claim. We affirm in both instances.

                             A. Fourth Amendment Claims

       This section provides background on the standard of review; qualified immunity

law; Fourth Amendment search requirements, with emphasis on the special needs

doctrine; and analysis of whether the Does have shown there was clearly established

law at the time of the search to support their claim. We conclude they have not shown

clearly established law that the special needs doctrine could not support the search in

this case. They therefore have not shown that a warrant clearly was required.12

1. Standard of Review

       We review de novo the grant of a motion to dismiss under Rule 12(b)(6) due to

qualified immunity. Estate of Lockett v. Fallin, 841 F.3d 1098, 1106 (10th Cir. 2016).


       12
          This approach is similar to the one we followed in McInerney v. King, 791 F.3d
1224 (10th Cir. 2015). In that case, the plaintiff brought a § 1983 action alleging a Fourth
Amendment violation based on the defendant police officer’s warrantless search of her
home. We reversed the district court’s grant of qualified immunity. As in our case, the
search was conducted without a warrant, and the defendant relied on an exception to the
warrant requirement to contest the Fourth Amendment claim. After reviewing the existing
case law, we concluded it was clearly established that the exigent circumstances exception
did not apply and therefore the defendant was not entitled to qualified immunity. Id. at
1228. Here, after reviewing existing case law, the opinion concludes that the law was not
clearly established that the special needs exception did not apply, and therefore the
defendants were entitled to qualified immunity.
                                                  11
“At [the motion to dismiss] stage, it is the defendant’s conduct as alleged in the

complaint that is scrutinized for ‘objective legal reasonableness.’” Behrens v.

Pelletier, 516 U.S. 299, 309 (1996).

2. Legal Background

      a. Qualified immunity

      Under 42 U.S.C. § 1983, a person acting under color of state law who “subjects,

or causes to be subjected, any citizen of the United States . . . to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws, shall be liable to

the party injured . . . .” “Individual defendants named in a § 1983 action may raise a

defense of qualified immunity, which shields public officials from damages actions

unless their conduct was unreasonable in light of clearly established law.” Estate of

Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (citation, ellipsis, and quotations

omitted).

      “[Q]ualified immunity protects ‘all but the plainly incompetent or those who

knowingly violate the law.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986)). A motion to dismiss based on qualified

immunity imposes the burden on the plaintiff to show “both that [1] a constitutional

violation occurred and [2] that the constitutional right was clearly established at the

time of the alleged violation.” Green v. Post, 574 F.3d 1294, 1300 (10th Cir. 2009)

(quotations omitted). A court evaluating qualified immunity is free to “exercise [its]


                                                12
sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in the particular case at

hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

      A constitutional right is clearly established if it is “sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.”

Mullenix, 136 S. Ct. at 308 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).

The plaintiff must show there is a “Supreme Court or Tenth Circuit decision on point,

or the clearly established weight of authority from other courts must have found the

law to be as the plaintiff maintains.” Klen v. City of Loveland, 661 F.3d 498, 511 (10th

Cir. 2011) (quotations omitted). Generally, “existing precedent must have placed the

statutory or constitutional question beyond debate” for a right to be clearly established.

The Estate of Lockett, 841 F.3d at 1107 (quoting Mullenix, 136 S. Ct. at 308).

      There “need not be a case precisely on point.” Redmond v. Crowther, 882 F.3d

927, 935 (10th Cir. 2018). But “it is a ‘longstanding principle that clearly established

law should not be defined at a high level of generality.’” Id. (quoting White v. Pauly,

137 S. Ct. 548, 552 (2017) (per curiam)); see also District of Columbia v. Wesby, 138

S. Ct. 577, 590 (2018) (“The clearly established standard . . . requires a high degree of

specificity.” (quotations omitted)). “[T]he salient question . . . is whether the state of

the law . . . gave [the defendants] fair warning that their alleged treatment of [the

plaintiffs] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).


                                                13
       “[G]eneral statements of the law are not inherently incapable of giving fair and

clear warning to officers, but in the light of pre-existing law the unlawfulness must be

apparent.” White, 137 S. Ct. at 552 (citations and quotations omitted). “[T]here can be

the rare obvious case, where the unlawfulness of the officer’s conduct is sufficiently

clear even though existing precedent does not address similar circumstances.” Wesby,

138 S. Ct. at 590 (quotations omitted).

       For supervisory liability, “[p]ersonal participation is an essential allegation in a

1983 claim.” Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). A

supervisor cannot be held vicariously liable for the constitutional violations of

subordinates. See Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151 (10th Cir. 2003)

(“Supervisors are only liable under § 1983 for their own culpable involvement in the

violation of a person’s constitutional rights.”) “[D]irect participation,” however, “is

not necessary.” Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990) (quotations

omitted). “The requisite causal connection is satisfied if the defendant set in motion a

series of events that the defendant knew or reasonably should have known would cause

others to deprive the plaintiff of her constitutional rights.” Id. (quotations omitted).

“[T]he establishment or utilization of an unconstitutional policy or custom can serve as

the supervisor’s affirmative link to the constitutional violation . . . . Where an official

with policymaking authority creates, actively endorses, or implements a policy which

is constitutionally infirm, that official may face personal liability for the violations


                                                14
which result from the policy’s application.” Dodds v. Richardson, 614 F.3d 1185,

1199 (10th Cir. 2010) (quotations and brackets omitted). Supervisors cannot be liable

under § 1983 where there is no underlying violation of a constitutional right by a

supervisee. See Martinez v. Beggs, 563 F.3d 1082, 1092 (10th Cir. 2009).

      b. Fourth Amendment search requirements

             i. The warrant requirement

      The Fourth Amendment protects people from unreasonable government searches

of their “persons, houses, papers, and effects.” U.S. Const. Amend. IV. It “protects

the right of the people to be ‘secure in their persons’ from government intrusion

whether the threat to privacy arises from a policeman or a Head Start administrator.”

Dubbs v. Head Start, Inc., 336 F.3d 1194, 1205 (10th Cir. 2003). “There is no ‘social

worker’ exception to the Fourth Amendment.” Id.

      As a general rule, a search requires a warrant based on probable cause. Illinois

v. Gates, 462 U.S. 213, 239 (1983). “Searches conducted without a warrant are per se

unreasonable under the Fourth Amendment—subject only to a few ‘specifically

established and well-delineated exceptions.’” Roska ex rel. Roska v. Peterson, 328

F.3d 1230, 1248 (10th Cir. 2003) (quoting Katz v. United States, 389 U.S. 347, 357




                                              15
(1967)). These exceptions include (1) consent;13 (2) exigent circumstances;14 and (3) a

“special need.” In this case, there was no warrant, consent, or exigent circumstance.

The qualified immunity question concerns, therefore, (1) whether a warrant was

required for the search because the special needs exception did not apply, and (2) if it

did, whether the search nonetheless violated the special needs doctrine.

              ii. Special needs doctrine

       “‘Special needs’ is the label attached to certain cases where ‘special needs,

beyond the normal need for law enforcement, make the warrant and probable-cause

requirement impracticable.’” Dubbs, 336 F.3d at 1212 (quoting Bd. of Educ. of Indep.

Sch. Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 830 (2002)).

       There is no definitive list of “special needs.” The Supreme Court has found a

special need in a principal’s in-school search of a student’s purse for drugs; a public




       13
        “It is . . . well settled that one of the specifically established exceptions to the
requirements of both a warrant and probable cause is a search that is conducted
pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
       14
         “The exigent circumstances exception allows a warrantless search when an
emergency leaves police insufficient time to seek a warrant. It permits, for instance,
the warrantless entry of private property when there is a need to provide urgent aid to
those inside, when police are in hot pursuit of a fleeing suspect, and when police fear
the imminent destruction of evidence.” Birchfield v. North Dakota, 136 S. Ct. 2160,
2173 (2016) (citation omitted). “Warrants are generally required to search a person’s
home or his person unless the exigencies of the situation make the needs of law
enforcement so compelling that the warrantless search is objectively reasonable under
the Fourth Amendment.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (quotations
omitted) (brackets omitted).
                                               16
employer’s search of an employee’s desk; a probation officer’s search of a

probationer’s home; a Federal Railroad Administration policy requiring employees to

take blood and urine tests following a major rail accident; drug testing of United States

Customs employees applying for drug interdiction jobs; schools’ random drug testing

of athletes; and drug testing of public school students partaking in extracurricular

activities. See Dubbs, 336 F.3d at 1213 (collecting cases). In Dubbs, we synthesized

the special needs doctrine as follows:

               (1) an exercise of governmental authority distinct from that
               of mere law enforcement—such as the authority as
               employer, the in loco parentis authority of school officials,
               or the post-incarceration authority of probation officers;
               (2) lack of individualized suspicion of wrongdoing, and
               concomitant lack of individualized stigma based on such
               suspicion; and (3) an interest in preventing future harm,
               generally involving the health or safety of the person being
               searched or of other persons directly touched by that
               person’s conduct, rather than of deterrence or punishment
               for past wrongdoing.

Id. at 1213-14.

       State actors can invoke the special needs doctrine only when the purpose of the

search is sufficiently “divorced from the State’s general interest in law enforcement.”

Ferguson v. City of Charleston, 532 U.S. 67, 79 (2001) (drug tests used in a state

obstetrics ward not justified under special needs because they were coordinated with

the police).




                                                17
      When it applies, the special needs doctrine employs a more relaxed test than the

one traditionally used under the Fourth Amendment to assess the reasonableness of a

search. To evaluate special needs reasonableness, we have (1) required that (a) the

search be “justified at its inception” and (b) reasonable in its “scope” given the

“circumstances”;15 or we have (2) balanced government and private interests.16

                    1) Child abuse context: Supreme Court and Tenth Circuit

      The Supreme Court has not addressed the special needs doctrine in the context

of social workers’ inspection of children upon suspicion of child abuse. It has rejected

the special needs doctrine to justify a search, but in a different child abuse context. In

Ferguson v. City of Charleston, 532 U.S. 67 (2001), the Court held that a hospital’s

testing of pregnant mothers in its maternity ward for cocaine and reporting results to

authorities under a theory that a positive result constituted “child abuse” did not qualify

for the special needs exception to the Fourth Amendment warrant requirement because

of the program’s “pervasive involvement of law enforcement.” Id. at 70, 85.




      15
          See, e.g., Edwards For and in Behalf of Edwards v. Rees, 883 F.2d 882, 884
(10th Cir. 1989) (quoting New Jersey v. T.L.O., 469 U.S. 325, 341 (1985)). T.L.O., in
turn, cites this test from Terry v. Ohio, 392 U.S. 1, 20 (1968).
      16
          See, e.g., Dubbs: “[I]n special needs cases, the Court replaces the warrant and
probable cause requirement with a balancing test that looks to the nature of the privacy
interest, the character of the intrusion, and the nature and immediacy of the
government’s interest.” 336 F.3d at 1213.

                                               18
      The Tenth Circuit has not previously addressed whether the special needs

doctrine applies to a social worker’s search of a student at school to detect evidence of

suspected abuse. We applied it in a child abuse context when a student at a public

school needed to be interviewed. Doe v. Bagan, 41 F.3d 571, 574 n.3 (10th Cir. 1994).

That case concerned a seizure, however, not a search, because it involved the

questioning of a minor suspected of abusing another child, not an inspection of the

allegedly abused child. See id. In another case, we held that special needs did not

permit a social worker, who suspected abuse, to enter a home and remove a child.

Roska, 328 F.3d at 1242. In Franz v. Lytle, 997 F.2d 784 (10th Cir. 1993), we held that

even if a police officer is performing the functions of a social worker in examining a

young child’s private areas upon suspicion of abuse, the police officer nevertheless

must abide by the Fourth Amendment’s warrant requirement.17

      In Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), a school invoked

the special needs doctrine when it subjected an entire class of children to intrusive

physical examinations (including genital examinations and blood tests) without

parental notice or consent, stating this was “done in order to comply with federal

regulations [and] is an effective means of identifying physical and developmental




      17
        We decided Franz before the Supreme Court held in Ferguson that social
workers are not categorically exempt from the warrant requirement when performing a
search. Ferguson, 532 U.S. at 76 & n.9.

                                               19
impediments in children prior to them starting school, a goal of Head Start.” Id. at

1214. We did not decide whether the doctrine applied, holding instead that even if it

did, the searches were unconstitutional under the balancing test. The extreme privacy

deprivations involved in the invasive testing outweighed the ostensible special need of

doing a health assessment. Id. at 1214-15.

      We therefore have not established whether the special needs doctrine permits a

social worker to search a child, such as by removing clothing and/or taking

photographs, to investigate a report of suspected abuse.

                    2) Child abuse context: other circuits and special needs

      Other circuits have split on whether a social worker’s examination of a child

upon suspicion of abuse requires a warrant or qualifies for the special needs doctrine.

      The Seventh Circuit held that a social worker’s visual inspection of a child upon

suspicion of child abuse falls under the special needs doctrine and thus can proceed

without a warrant, as long as the search passes the special needs balancing test and is

fundamentally reasonable. Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986).18 In

Wildauer v. Frederick County, 993 F.2d 369 (4th Cir. 1993), the Fourth Circuit held

social workers’ warrantless examinations of potentially abused children in their foster




      18
         The Seventh Circuit later limited this holding to searches on public as opposed
to private property. Michael C. v. Gresbach, 526 F.3d 1008, 1016 (7th Cir. 2008).
                                               20
homes should be evaluated under a special needs balancing and general

“reasonableness” analysis, as opposed to probable cause.

      Four other circuits, however, have held that social worker examinations of

children based on abuse suspicions are not candidates for special needs analysis. The

Third Circuit, in Good v. Dauphin Cty. Soc. Servs. for Children & Youth, 891 F.2d

1087 (3d Cir. 1989), held that social workers’ search of a child in his home required

either a search warrant, consent, or exigent circumstances. The Ninth Circuit, in

Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999), held that a social worker performing

a search on a child to investigate possible abuse must have a warrant, consent, or

exigent circumstances, and may not rely on the special needs doctrine (especially in

this case where a police officer was also present with the social worker). The Second

Circuit, in Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), held that judicial

authorization was required for social workers to examine a student upon suspicion of

abuse. Finally, the Fifth Circuit, in Roe v. Texas Dep’t of Protective & Regulatory

Servs., 299 F.3d 395 (5th Cir. 2002), held that social workers performing a visual body

cavity search for suspected abuse needed a court order based on probable cause or

exigent circumstances, and that they could not rely on the special needs doctrine. Roe

emphasized, under Ferguson, the overlap of social workers with law enforcement

investigating abuse militates against the applicability of the special needs doctrine. Id.

at 406.


                                               21
3. Analysis

       We limit our qualified immunity analysis, as the district court did, to whether

the Does can satisfy the second prong of qualified immunity—that is, whether they can

show that any Fourth Amendment violation was based on clearly established law.

       Defendants do not contest that Ms. Woodard conducted a search for Fourth

Amendment purposes.19 For the search to have been valid under the Fourth Amendment,

Ms. Woodard needed a warrant or one of the exceptions to the warrant requirement to

apply—consent, exigent circumstances, or the special needs doctrine. Because (1) Ms.

Woodard did not obtain a warrant, (2) Ms. Doe did not consent to the search, and (3) the

circumstances were not exigent, the search would have been valid without a warrant only if

the special needs doctrine applied.

       The Does have not cited a Supreme Court or Tenth Circuit decision specifically

holding that a social worker must obtain a warrant to search a child at school for evidence

of reported abuse. Instead, they argue that (a) only a warrant could have justified the

search of I.B. because the special needs doctrine did not apply, or (b) even if the special

needs doctrine did apply, Defendants’ conduct violated the Fourth Amendment




       19
         Although the Defendants do not expressly and directly concede that I.B. was
subject to a search, they devote their brief to evaluating a “search” of this type. See,
e.g.¸Aplee Br. at 14 (“This Court should consider a social worker’s visual inspection
and photographing of a child, under the circumstances alleged, as an administrative
search subject to the reasonableness balancing test . . . .”).

                                                 22
reasonableness standards for a special needs search. The Does have not met their burden of

showing clearly established law on either ground.

      a. No showing of clearly established Fourth Amendment law on whether social
         worker searches examining for abuse qualified for the special needs
         exception

      In this section, we examine the Does’ attempts to show that Ms. Woodard’s

search violated clearly established Fourth Amendment law in December 2014 because

she lacked a warrant and the special needs exception did not apply. They have failed to

do so. Based on our previous review of the case law and discussion below, we

conclude that neither the Supreme Court nor this court had previously decided that the

special needs exception does not apply to warrantless social worker searches for

suspected child abuse. Nor was the weight of authority from other circuits clearly

established. We therefore hold that, when the search occurred in this case, there was

no clearly established law that a warrant was required.

             i. Supreme Court and Tenth Circuit law

      The Does argue that Supreme Court and Tenth Circuit precedent on special

needs existing when Ms. Woodard searched I.B. may be read to find a Fourth

Amendment violation under clearly-established law. They cite (1) Franz, which held

that a police officer could not search a young child without a warrant or consent upon

suspicion of abuse; (2) Dubbs, which held that examinations of children at school

needed a warrant, consent, or exigent circumstances, and that there is no general social


                                               23
worker exception to the Fourth Amendment; (3) Roska, for the proposition that the

special needs doctrine can be used only when obtaining a warrant is impracticable; and

(4) Ferguson, for the principle that “[e]xcessive entanglement with law enforcement

renders the special need exception inapplicable,” Aplt. Br. at 35.20

      The Does contend that these cases put the DHS caseworkers and their

supervisors on notice that Ms. Woodard could not undress and photograph I.B. without

a warrant, consent, or exigent circumstances. We disagree that these cases would have

put a reasonable social worker on notice that her conduct violated the Fourth

Amendment.

      First, Franz involved a police officer who searched a young child upon

suspicion of abuse, and held that the officer needed a warrant, consent, or exigent

circumstances to do so. In other words, the special needs doctrine did not apply. But a

police search is not a social worker search, and Franz does not address the latter.

      Second, Dubbs does not clearly establish Fourth Amendment law for a social

worker’s search for child abuse in this case. In Dubbs, the school indiscriminately

tested the entire class and performed much more invasive examinations. The defendant

school officials argued that the special need was for generalized health assessment to




      20
         In their reply brief, the Does drop their reference to Ferguson in their clearly-
established argument and rely only on Franz, Dubbs, and Roska. See Aplt. Reply Br.
at 9.

                                               24
comply with federal regulations, not to search for child abuse. Accordingly, Dubbs did

not address the issue presented here—whether Ms. Woodard’s search of I.B. for child

abuse satisfied the Fourth Amendment as a special needs search.

      Third, Roska also does not provide clearly established law. In Roska, we said

that a special need must “make the warrant and probable-cause requirement

impracticable.” 328 F.3d at 1241 (quotations omitted). It held that, barring exigent

circumstances, no special need “renders the warrant requirement impracticable when

social workers enter a home to remove a child.” Id. at 1242. Roska does not bear upon

social workers searching and photographing a child at school for suspected child abuse.

      Finally, in Ferguson, the Supreme Court held that hospital workers’ reporting of

drug tests taken in a maternity ward to police could not qualify for the special needs

exception because their conduct was too intertwined with law enforcement. Ferguson

says nothing about social workers searching and photographing a child at school

because of suspected child abuse or whether such conduct is unacceptably entangled

with law enforcement to qualify for special needs analysis. Nor have we, in contrast to

the Fifth Circuit in Roe, ever held that a social worker search for suspected abuse

context was too closely tied to law enforcement to qualify for the special needs

doctrine.

      Taken together, these four cases do not constitute clearly established law that the

Does suffered a Fourth Amendment violation because no warrant was obtained. They


                                               25
are not factually similar enough to apply to the Does’ claim. See White, 137 S. Ct. at

552 (“[I]t is again necessary to reiterate the longstanding principle that “clearly

established law should not be defined at a high level of generality . . . . [C]learly

established law must be particularized to the facts of the case.”) (quotations and

citations omitted).

             ii. Other circuits

      Four circuits have rejected the special needs doctrine as an exception to the

 warrant requirement and two have approved it for searches like the one here. This

 does not amount to a “clearly established weight of authority from other courts,”

 Estate of Lockett, 841 F.3d at 1112 (quotations omitted), such that this “statutory or

 constitutional question [is] beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741

 (2011). Also, the circuits rejecting the special needs doctrine often did so based on

 facts distinguishable from this case—for instance, the search occurred at the child’s

 home, see, e.g., Good, 891 F.2d at 1092; Roe, 299 F.3d at 411-12, or involved taking

 the child out of school to a hospital, see Tenenbaum, 193 F.3d at 602.

      b. No showing of clearly established law on minimal Fourth Amendment
         reasonableness standards

      Despite the lack of law clearly showing the special needs doctrine did not apply

 to the search here, the Does could still attempt to show that Ms. Woodard’s search

 failed to meet clearly established minimal Fourth Amendment reasonableness

 standards applicable to special needs searches.
                                                26
      When the Supreme Court first described the “special needs” exception in New

 Jersey v. T.L.O., 469 U.S. 325 (1985), it said a special needs search must satisfy

 minimum standards drawn from Terry v. Ohio, 392 U.S. 1 (1968):

             the legality of a search of a student should depend simply
             on the reasonableness, under all the circumstances, of the
             search. Determining the reasonableness of any search
             involves a twofold inquiry: first, one must consider
             “whether the . . . action was justified at its inception”;
             second, one must determine whether the search as actually
             conducted “was reasonably related in scope to the
             circumstances which justified the interference in the first
             place.”

T.L.O., 469 U.S. at 341 (alteration in original) (citation omitted) (quoting Terry, 392

U.S. at 20). As noted above, we also have measured reasonableness by balancing

government and private interests. See Dubbs, 336 F.3d at 1214.21

             i. Appellants’ failure to show clearly established law



      21
         Although the Terry reasonableness determination and the interest-balancing
approach are not identical, courts have recognized overlap in these tests. See, e.g.,
Jones v. Hunt, 410 F.3d 1221, 1228-29 (10th Cir. 2005) (assessing reasonableness
under Terry and quoting Wyoming v. Houghton, 526 U.S. 295, 299–300 (1999), for the
proposition that courts may “evaluate the search or seizure under traditional standards
of reasonableness by assessing, on the one hand, the degree to which it intrudes upon
an individual’s privacy and, on the other, the degree to which it is needed for the
promotion of legitimate governmental interests.”). See also Darryl H., 801 F.2d
902-03 (adopting approach that blends Terry analysis with interest-balancing test:
“The test of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application. In each case it requires a balancing of the need
for the particular search against the invasion of personal rights that the search entails.
Courts must consider the scope of the particular intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in which it is conducted.”)
(quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).
                                                  27
      The Appellants offer almost no analysis to support their contention that the

search violated clearly established minimal Fourth Amendment standards. Their

opening brief devotes less than two pages to this issue. Although it cites several cases,

including Dubbs, it does not provide any case analysis or otherwise begin to show how

Appellants can meet the clearly established law burden to overcome qualified

immunity. Aplt. Br. at 36-37. Their Reply Brief fares no better. It mixes arguments

and case cites about warrant requirements and the special needs exception with

arguments about reasonable searches. Aplt. Reply at 8-9. Other than parenthetical

case summaries, however, the Reply lacks case analysis or explanation as to why these

cases clearly establish that Ms. Woodard’s search violated minimal Fourth Amendment

protections. The Reply complains that the Appellees have failed to provide case law to

support the search and then states it is “not impermissibly shift[ing] the burden” to the

Appellees. Id. at 10. But that is exactly what their argument would do. The

Appellants’ failure to meet their burden should resolve the issue. The dissent attempts

to do their work for them, but it does not show the law was clearly established, either.




                                               28
              ii. The dissent

       We have shown that in December 2014 the law did not clearly establish that a

warrant was required to justify Ms. Woodard’s search. This is so because the law did not

clearly establish that Ms. Woodard could not rely on the special needs exception to justify

the search. See McInerney, 791 F.3d at 1237 (performing clearly established analysis by

examining whether it was clearly established that an exception did not apply to the Fourth

Amendment’s warrant requirement).

       Despite appearing to agree with the foregoing, the dissent contends the search

violated clearly established Fourth Amendment requirements even assuming the special

needs doctrine applied. We disagree for two related reasons—(1) the cases it relies on are

factually distinguishable from this case, and (2) Supreme Court precedent calls for factually

similar cases to constitute clearly established law. We respond to the dissent to address

whether it was clearly established that the special needs doctrine’s reasonableness

standards were not met in this case.

       First, the Does must “identify a case where an officer acting under similar

circumstances . . . was held to have violated the Fourth Amendment.” White, 137 S. Ct. at

552. The dissent relies on two cases that are materially different from this case. In Dubbs,

the purpose of the search was to identify physical and developmental impediments in all




                                                29
children to comply with federal Head Start program requirements.22 The state actors did

not attempt to justify the search in Dubbs based on the special need of detecting child

abuse—just the opposite: “The nurses who administered the examinations, Strayhorn and

Baker, testified that the exams were in conformity with standards for well-child

examinations and were not performed for the purpose of detecting child abuse.” 336 F.3d

at 1200. In Safford, the purpose of the search was to prevent a student from distributing

medications to other students. 557 U.S. at 368. The purpose of Ms. Woodard’s search was

to check for reported child abuse. Although, as the dissent notes, all three searches served

“the state’s interest in child welfare,” Dissent Op. at 6, the purpose of Ms. Woodard’s

search was different in kind from the others—to protect a child from reported abuse.

       In Dubbs, the nature of the search was an intrusive examination of the genitals of all

children in the class, “separated only by partitions, so that it was possible for other children

to see or hear portions of the examinations performed on their classmates.” Dubbs, 336

F.3d at 1199. “The girls were asked to lay spread-legged on a table where the nurses

inspected the girls’ labia; in some cases the nurses would ‘palpate,’ or touch, the genital

area when a visual inspection was not adequate. Similarly, the nurses would palpate the


       22
         The dissent, quoting Dubbs, states that “‘[t]he focus of the [Fourth]
Amendment is . . . on the security of the person, not the identity of the searcher or the
purpose of the search.’” Dissent Op. at 7 (quoting Dubbs, 336 F.3d at 1206). But this
quotation from Dubbs addressed whether the physical examinations in that case were
“searches” under the Fourth Amendment in the first place, not whether a given search
was reasonable under the Fourth Amendment.

                                                  30
boys’ genitals to test for the presence of testes.” Id. at 1200. Accordingly, not only was the

state justification weaker in Dubbs than in this case, the search was far more invasive, far

less private, and applied indiscriminately to the entire class. Dubbs held the search

unconstitutional under “the ‘special needs’ balancing test,” id. at 1214, but the factors to

balance in this case are plainly different.

       In Safford, school officers searched a student suspected of distributing medications

to other students. 557 U.S. at 368. The search, which involved removal of the student’s

clothing and pulling aside her undergarments to expose private areas, id. at 369, was

comparable to this case, but the circumstances underlying the search were different. The

student searched in Safford was suspected of harming others through drug distribution. Id.

at 377. The child in this case was suspected of suffering abuse from a third party. The

Safford Court asked whether the search was “‘reasonably related in scope to the

circumstances which justified the interference,’” id. at 375 (quoting T.L.O., 469 U.S. at

341), and held that it was not, given that the school lacked facts that the alleged

medications were dangerous or that the student hid them “in her underwear.” Id. at 376.

Neither Safford or Dubbs served to clearly establish that Ms. Woodard’s search of I.B. was

not reasonably related in scope to the circumstances—suspected child abuse. The dissent

correctly states that the searches in all three cases involved the children’s “intimate areas,”

but the purpose and circumstances of the search for suspected child abuse in this case




                                                  31
differed too much for Dubbs and Safford to have guided Ms. Woodard with clearly

established law.

       Unlike the dissent, therefore, we do not see how a reasonable social worker in Ms.

Woodard’s position would, based on these cases, know that her search of I.B. violated the

requirements for the special needs exception or the basic protections of the Fourth

Amendment. “The precedent must be clear enough that every reasonable official would

interpret it to establish the particular rule the plaintiff seeks to apply.” Wesby, 138 S. Ct. at

590; see also Mullenix, 136 S. Ct. at 308 (“A clearly established right is one that is

sufficiently clear that every reasonable official would have understood that what he is

doing violates that right.”) (quotations omitted). As we have shown, the facts in this case

differ markedly from the facts in the cases the dissent attempts to use for clearly established

law.

       Second, the dissent’s reliance on these cases runs counter to the Supreme Court’s

repeated instruction that “clearly established law should not be defined at a high level of

generality” but “must be particularized to the facts of the case.” White, 137 S. Ct. at 552

(quotations omitted). The Court has stressed that the rule’s high “degree of specificity” is

“especially important in the Fourth Amendment context.” Mullenix, 136 S. Ct. at 309. The

dissent contends that the clearly established “particular rule” in December 2014, Dissent

Op. at 6 (quoting Wesby, 138 S. Ct. at 590), was that a search “needed to be ‘justified at its

inception and reasonably related in scope to the circumstances that justified the interference


                                                   32
in the first place,’” id. (quoting Aplt. Br. at 36). But this minimal Fourth Amendment

standard applies to all searches. It is not particularized to the facts of this case. The dissent

therefore attempts “to define clearly established law at a high degree of generality”

contrary to the Supreme Court’s instructions. Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018) (quotations omitted).23

       Even if Dubbs and Safford offer plausible authority to support a special needs

Fourth Amendment violation here, whether they supply clearly established law is at most

debatable, and to be clearly established, “‘existing precedent must have placed the statutory

or constitutional question beyond debate.’” White, 137 S. Ct. at 551 (quoting Mullenix,

136 S. Ct. at 308). “It is not enough that the rule is suggested by then-existing precedent.”

Wesby, 138 S. Ct. at 590. Qualified immunity lies where “none of the cases [the parties




       23
          The Supreme Court has repeatedly emphasized for more than 35 years that
generalized propositions of law are insufficient for clearly established law purposes.
See Anderson v. Creighton, 483 U.S. 635, 640 (1987) (Court of Appeals “misapplied
[qualified immunity] principles” when its “discussion of qualified immunity consisted of
little more than an assertion that a general right Anderson was alleged to have violated—
the right to be free from warrantless searches of one’s home unless the searching officers
have probable cause and there are exigent circumstances—was clearly established.”);
Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (per curiam) (Court of Appeals was
mistaken in using “the general proposition that use of force is contrary to the Fourth
Amendment if it is excessive under objective standards of reasonableness” for clearly
established purposes because the proposition is “cast a high level of generality” (quotations
omitted)).

                                                  33
and the dissent rely on] squarely governs the case here.” Mullenix, 136 S. Ct. at 309

(brackets and quotations omitted).24

      To the extent the Does attempt to argue that this is the rare alleged violation of

minimal Fourth Amendment standards that is so “obvious” that a factually similar case

is unnecessary for the clearly established law standard,25 see Aplt. Reply Br. at 6

(citing Hope, 536 U.S. at 741), this argument fails. “[T]his is not an obvious case

where a body of relevant case law is not needed.” Wesby, 138 S. Ct. at 591 (quotations

omitted).




      24
          The dissent also contends that Safford clearly establishes that “the
categorically extreme intrusiveness” of a body search “requires some justification in
suspected facts, general background possibilities fall short.” Dissent Op. at 7 (quoting
Safford, 575 U.S. at 376). But the Does and the dissent do not show that under the
circumstances in this case, a reasonable social worker in Ms. Woodard’s shoes would
have known her conduct fell short. As alleged in the First Amended Complaint, the
report that I.B. was being abused contained specifics—“little bumps on I.B.’s face, a bruise
about the size of a nickel on her neck, a small red mark on her lower back, two small cuts
on her stomach, and bruised knees.” Aplt. App., Vol I at 15 ¶ 36. Combined with a report
of child abuse, a reasonable social worker could understand these to be “suspected facts,”
not “general background possibilities.” To the extent Appellants pled, as the dissent
suggests, that “Ms. Woodard was never aware of facts that could have justified such an
intrusive search of a four-year-old girl,” Dissent Op. at 9, such an allegation is both
conclusory and contradicted by other allegations in the First Amended Complaint.
      25
         See, e.g., McCoy v. Meyers, 887 F.3d 1034, 1053 (10th Cir. 2018) (“Even
assuming that our previous cases were not sufficiently particularized to satisfy the
ordinary clearly established law standard, ours is ‘the rare obvious case, where the
unlawfulness of the [state actor’s] conduct is sufficiently clear even though existing
precedent does not address similar circumstances.’” (quoting Wesby, 138 S. Ct. at 590);
see also White, 137 S. Ct. at 552; Brosseau, 543 U.S. at 199.

                                                34
                                       *    *    *   *

       In summary, the Does have not shown that Ms. Woodard’s search violated clearly

established Fourth Amendment law. We affirm the district court’s conclusion that the

Defendants, including supervisors, were entitled to qualified immunity and that the Fourth

Amendment claims should be dismissed. 26

                              B. Fourteenth Amendment Claims

       This section addresses the two substantive due process claims for violation of

parental rights and interference with familial association. We describe our standard of

review and provide legal background on the facts required to allege these types of

claims and how those facts must “shock the conscience.” We then examine whether

the Does’ complaint states a plausible claim under these standards and, like the district

court, find it lacking.

1. Standard of Review

       We review de novo a district court’s Rule 12(b)(6) dismissal of a complaint for

failure to state a claim. Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.




       26
         In a different circuit with more developed law, the analysis of the “clearly
established” prong of qualified immunity might have been different. As noted above,
we do not address the first step of qualified immunity analysis—whether the
Defendants violated the Fourth Amendment.
       We note that El Paso County DHS later instituted a policy under which social
workers must ask parental permission or obtain a court order before searching and
photographing children for suspected abuse. Aplt. App., Vol. II at 7.

                                                35
2002). To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead

sufficient factual allegations “to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible

“when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). Dismissal under Rule 12(b)(6) is appropriate if the

complaint alone is legally insufficient to state a claim. See Peterson v. Grisham, 594

F.3d 723, 727 (10th Cir. 2010).

       Under our de novo review, “[a]ll well-pleaded facts, as distinguished from

conclusory allegations, must be taken as true,” and we must liberally construe the

pleadings and make all reasonable inferences in favor of the non-moving party. Ruiz v.

McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002) (quotations omitted).

2. Legal Background

       The following describes the parental right to direct medical care and the right of

familial association. To state a claim for either, the plaintiff must show that the alleged

conduct “shocks the conscience.”

       a. Substantive due process claims—“shocks the conscience”

       In Halley v. Huckaby, 902 F.3d 1136 (10th Cir. 2018), we recently recounted

that the Supreme Court recognizes two types of substantive due process claims: (1)

claims that the government has infringed a “fundamental” right, see, e.g., Washington


                                                 36
v. Glucksberg, 521 U.S. 702, 721-22 (1997) (assessing asserted right to assisted

suicide); and (2) claims that government action deprived a person of life, liberty, or

property in a manner so arbitrary it shocks the judicial conscience, see, e.g., City of

Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (examining a high-speed police chase).

Halley, 902 F.3d at 1153. “[W]e apply the fundamental-rights approach when the

plaintiff challenges legislative action, and the shocks-the-conscience approach when

the plaintiff seeks relief for tortious executive action.” Id. The Does’ substantive due

process claims—violation of the parental right to direct medical care and to familial

association—challenge executive action, id. at 1154, and therefore are “shocks the

conscience” claims.

      Executive action that shocks the conscience requires much more than

negligence. Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006). Even the actions

of a reckless official or one bent on injuring a person do not necessarily shock the

conscience. Id. “Conduct that shocks the judicial conscience” is “deliberate

government action that is arbitrary and unrestrained by the established principles of

private right and distributive justice.” Hernandez v. Ridley, 734 F.3d 1254, 1261 (10th

Cir. 2013) (quotations omitted). “To show a defendant’s conduct is conscience

shocking, a plaintiff must prove a government actor arbitrarily abused his authority or

employed it as an instrument of oppression.” Id. (brackets omitted) (quotations

omitted). “The behavior complained of must be egregious and outrageous.” Id.; see


                                                37
Breithaupt v. Abram, 352 U.S. 432, 435 (1957) (“We set aside the conviction because

such conduct ‘shocked the conscience’ and was so ‘brutal’ and ‘offensive’ that it did

not comport with traditional ideas of fair play and decency.”) The Supreme Court

found conscience-shocking behavior in a case involving a sheriff’s application of

stomach pumping to force vomiting, Rochin v. California, 342 U.S. 165, 172 (1952).

This Circuit recently found a social worker’s various actions that led to physical and

sexual abuse of a minor shocked the conscience. T.D. v. Patton, 868 F.3d 1209, 1213

(10th Cir. 2017).

      b. Parental right to direct child’s medical care

      The Fourteenth Amendment protects the right of parents to make decisions

“concerning the care, custody, and control of their children.” Troxel v. Granville, 530

U.S. 57, 66 (2000). This right provides “some level of protection for parents’ decisions

regarding their children’s medical care.” PJ ex rel Jensen v. Wagner, 603 F.3d 1182,

1197 (10th Cir. 2010). The right to direct a child’s medical care is not absolute.

“[W]hen a child’s life or health is endangered by her parents’ decisions, in some

circumstances a state may intervene without violating the parents’ constitutional

rights.” Id. at 1198. As noted above, a violation of this right must be conscience

shocking.




                                               38
      c. Right of familial association

      The government’s “forced separation of parent from child, even for a short time,

represents a serious impingement” on a parent’s substantive due process right to

familial association. Jensen, 603 F.3d at 1199 (quotations omitted). A familial

association claim must be based on allegations of abusive government authority. See

Griffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993); see also Jensen, 603 F.3d at

1198-99; J.B. v. Washington County, 127 F.3d 919, 927 (10th Cir. 1997). A parent

must allege “intent to interfere” with this right—that is, the state actor must have

directed conduct at the familial relationship “with knowledge that the statements or

conduct will adversely affect that relationship.” Lowery v. City of Riley, 522 F.3d

1086, 1092 (10th Cir. 2008). Again, the right is not absolute, but must be weighed

against the state’s interest in protecting a child’s health and safety. See Youngberg v.

Romeo, 457 U.S. 307, 320-21 (1982); see also Jensen, 603 F.3d at 1199; Lowery, 522

F.3d at 1092. In conducting this balancing, courts consider the severity of the

infringement on the protected relationship, the need for defendants’ conduct, and

possible alternative courses of action. See Griffin, 983 F.2d at 1548.27


      27
         In Halley, we explained that, the two-part test “simply describes the kind of
behavior we find to shock the conscience in this context.” 902 F.3d at 1154. “Namely,
it shocks the conscience when: (1) the officials intended to deprive the plaintiff of a
protected relationship with a family member, and (2) the officials’ intrusion into the
relationship was not warranted by state interests in the health and safety of the family
member. Together, the facts alleged by the plaintiff on these points must meet the
shocks-the-conscience standard.” Id. (footnote and citation omitted).
                                               39
      To state a claim, Ms. Doe must have alleged that (1) the Defendants intended to

deprive her of her protected relationship with her daughter, see Estate of B.I.C. v.

Gillen, 710 F.3d 1168, 1175 (10th Cir. 2013); and that (2) the Defendants either unduly

burdened Ms. Doe’s protected relationship, see Jensen, 603 F.3d at 1199, or effected

an “unwarranted intrusion” into that relationship, Trujillo v. Bd. of Cty. Comm’rs, 768

F.2d 1186, 1190 (10th Cir. 1985).

3. Analysis

      a. Right to direct medical care

      Ms. Doe’s allegations on the right to control medical treatment do not “shock the

conscience.” To be conscience-shocking, Ms. Woodard’s (or her supervisors’)

behavior had to be so “arbitrary” to be “as an instrument of oppression,” “egregious,”

“outrageous,” and “so brutal and offensive” that it runs afoul of “traditional ideas of

fair play and decency.” Hernandez, 734 F.3d at 1261; Breithaupt, 352 U.S. at 435.

      The allegations did not allege this level of severity. They did not allege

interference with Ms. Doe’s control of I.B.’s medical treatment other than Ms.

Woodard’s performing an initial examination to determine whether I.B. had been

abused. To the extent this was a “medical decision,” it hardly rose to the level of what

precedent requires for “shocks the conscience.”




                                               40
      b. Familial association

      Ms. Doe’s familial association allegations similarly did not “shock the

conscience” under Halley. We consider whether the complaint alleged (1) a

deprivation of Ms. Doe’s protected relationship with I.B. that (2) “unduly burdened”

that relationship in a manner that was “egregious,” “outrageous,” “unrestrained,”

“brutal,” and a display of arbitrary power being used “as an instrument of oppression.”

Moore, 438 F.3d at 1040; Hernandez, 734 F.3d at 1261; Breithaupt, 352 U.S. at 435.

      Again, the complaint did not allege this level of severity. The Does argue in

their brief that their complaint should be read to allege that Ms. Woodard intended to

separate I.B. from her mother to conduct an examination without the mother present.

But even if the complaint could be read this way, it still needed to allege an intended

deprivation or suspension of the parent-child relationship that shocks the conscience.

See, e.g., Thomas v. Kaven, 765 F.3d 1183, 1195-96 (10th Cir. 2014) (complaint

sufficiently stated claim for § 1983 familial association claim where it was alleged

Defendant, upon suspecting domestic sexual abuse, placed a medical hold on a child to

prevent parents from taking the child home from the hospital). Here, the complaint

lacked allegations that Ms. Woodard’s motivation was anything other than to

investigate potential child abuse.

      Moreover, the search happened during school hours when I.B.’s mother would

not otherwise have been with her. To the extent I.B. was separated from her mother


                                               41
during a time when she would have wanted her mother to be present, this is a far cry

from the substantial separation required in other cases. See, e.g., Thomas, 765 F.3d at

1188-90, 1197-98 (Fourteenth Amendment claim stated where plaintiff’s daughter

allegedly separated coercively for weeks in mental health ward); Roska, 328 F.3d at

1238-39, 1246 (familial association Fourteenth Amendment claim stated where child

was removed from home and placed under protective care for a week).

                                         *    *    *   *

       In summary, the Does have failed to state a Fourteenth Amendment substantive due

process claim for violation of parental rights or interference with familial association

against the Defendants.

                                    III. CONCLUSION

       We affirm the district court’s (1) dismissal of the I.B.’s Fourth Amendment

claims under qualified immunity, and (2) dismissal of the Does’ Fourteenth

Amendment claims for failure to state a claim.28




       28
         We also affirm the district court’s denial of the Does’ motion for leave to
amend their complaint. Amendment would have been futile given this opinion’s
analysis of clearly established law. See Jefferson Cty. Sch. Dist. No. R-1 v. Moody’s
Inv’rs Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999) (“Although [Federal Rule of
Civil Procedure] 15(a) provides that leave to amend shall be given freely, the district
court may deny leave to amend where amendment would be futile.”).

                                                  42
No. 18-1066, Doe v. Woodard
BRISCOE, Circuit Judge, concurring in part, dissenting in part.

       I agree with the majority that it is not clearly established that a social worker

investigating an allegation of child abuse must obtain a warrant before searching a child.

But, as the majority acknowledges, uncertainty about whether Ms. Woodard was required

to obtain a warrant does not fully dispose of I.B.’s Fourth Amendment claim. Maj. Op. at

26. “[T]he Does could still attempt to show that Ms. Woodard’s search failed to meet

clearly established minimal Fourth Amendment reasonableness standards applicable to

special needs searches.” Id. The majority concludes that the Does have not made this

showing because the law is not clearly established; in the majority’s view, the cases

applying the special needs exception to a search of the intimate areas of a child’s body

are too factually dissimilar from Ms. Woodard’s search of I.B. Id. at 28.

       I disagree. Even assuming the special needs exception applied, it was clearly

established in December 2014 that Ms. Woodard’s search of I.B.’s intimate areas—a

search that Ms. Woodard conducted without parental consent or a specific suspicion that

evidence of abuse would be found—was unconstitutional. Any reasonable person would

have known, based on Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), cert.

denied, 540 U.S. 1179 (2004), and Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S.

364 (2009), that Ms. Woodard’s search violated the Fourth Amendment. Accordingly, I

would reverse the district court’s dismissal of the Does’ Fourth Amendment claims

against April Woodard, Christina Newbill, Shirley Rhodus, and Richard Bengtsson in

their individual capacities, and remand for further proceedings. I would also reverse the
district court’s denial of the Does’ motion for leave to file a Second Amended Complaint.

For these reasons, I respectfully dissent.1

                                              I

       Ms. Woodard is entitled to qualified immunity “under § 1983 unless (1) [she]

violated a federal statutory or constitutional right, and (2) the unlawfulness of [her]

conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct.

577, 589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). I first address

the “clearly established” prong. McCoy v. Meyers, 887 F.3d 1034, 1045 (10th Cir. 2018)

(“Courts have discretion to decide the order in which to engage the two qualified

immunity prongs.” (alterations omitted) (quoting Tolan v. Cotton, 572 U.S. 650, 656

(2014)). “To be clearly established, a legal principle must have a sufficiently clear

foundation in then-existing precedent.” Wesby, 138 S. Ct. at 589. Two controlling cases

decided before December 2014—Dubbs, 336 F.3d 1194, and Safford, 557 U.S. 364—

apply the special needs exception to a search of the intimate areas of a child’s body.

“Clearly established law ‘must [also] be particularized to the facts of the case.’” McCoy,

887 F.3d at 1044 (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)). I

therefore discuss the facts of Dubbs and Safford in detail.

       In Dubbs, a group of parents sued a Head Start program for violating their

toddlers’ Fourth Amendment rights by conducting medical exams on the toddlers without

parental consent. 336 F.3d at 1199–1200. “The children were required to lower or

       1
      I agree with the majority’s conclusions regarding the Does’ Fourteenth
Amendment claims.

                                              2
remove their underclothes and were given a medical examination that included, among

other things, a genital exam and blood test.” Id. at 1200. The district court granted

summary judgment to the Head Start program because it found that the searches were

reasonable under the special needs exception. Id. at 1201. The special need asserted was

“that the physical examination of a child, done in order to comply with federal

regulations, is an effective means of identifying physical and developmental impediments

in children prior to them starting school.”2 Id. at 1214 (quotation marks omitted).

Without “resolv[ing] whether the ‘special needs’ doctrine applie[d],” we reversed

“because it [was] plain that, if performed without the necessary consent, the searches

were unconstitutional even [under] the ‘special needs’ balancing test.” Id. at 1214.

       We explained that, “[i]n special needs cases, . . . the warrant and probable cause

requirement [is replaced] with a balancing test that looks to the nature of the privacy

interest, the character of the intrusion, and the nature and immediacy of the government’s

interest.”3 Id. at 1213. We also emphasized that “[t]he premise of the ‘special needs’

doctrine is that . . . compliance with ordinary Fourth Amendment requirements would be

‘impracticable.’” Id. at 1214 (quoting Bd. of Educ. v. Earls, 536 U.S. 822, 829 (2002)).

The searches conducted by the Head Start program were plainly unconstitutional because




       2
        We concluded that there was a genuine issue of fact about whether the
“discovery of child abuse was one purpose of the exams.” Dubbs, 336 F.3d at 1205.
       3
         Dubbs was decided prior to Safford, so the special needs test is articulated
slightly differently in each case.

                                             3
“[t]here [was] no reason[] . . . to think that parental notice and consent [was]

‘impracticable.’” Id. at 1215.

       Lack of parental consent was a decisive fact in Dubbs because “the requirement

. . . of parental consent in the case of minor children[] serves important practical as well

as dignitary concerns, even when a social welfare agency . . . believes it is acting for the

good of the child.” Id. at 1207. “Even beyond constitutional values of privacy, dignity,

and autonomy, parental notice and consent for childhood physical examinations are of

significant practical value.” Id. Parents can “provide medical histories, discuss potential

issues with the health care professionals, help to explain the procedures to the children,

and reassure them about the disturbing and unfamiliar aspects of the exam—which

included . . . visual . . . inspection of genitals by strangers.” Id.

       Six years after Dubbs, the Supreme Court also analyzed the constitutionality of a

search of a child’s intimate areas under the special needs exception. See Safford, 557

U.S. 364. In Safford, a 13-year-old student was accused of distributing prescription and

over-the-counter medications to other students at her school. Id. at 368. The pills had

previously made another student sick. Id. at 372. In an effort to locate the medications,

an assistant principal and administrative assistant searched the accused student’s

backpack, but found nothing. Id. The assistant principal then “instructed [the assistant]

to take [the student] to the school nurse’s office to search her clothes for pills.” Id. at

369. They found no medications. Id. Having already removed all of her clothing except

her underwear, the student “was told to pull her bra out and to the side and shake it, and

to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to

                                                4
some degree.” Id. Again, “[n]o pills were found.” Id. The student’s mother sued the

assistant principal for violating her daughter’s Fourth Amendment rights. Id.

       The Court explained that this type of search “implicate[s] the rule of

reasonableness as stated in [New Jersey v. T.L.O., 469 U.S. 325 (1985)], that ‘the search

as actually conducted [be] reasonably related in scope to the circumstances which

justified the interference in the first place.’” Id. at 375 (second alteration in original)

(quoting T.L.O., 469 U.S. at 341). Under this special needs test, “[t]he scope [of the

search] will be permissible[] . . . when it is ‘not excessively intrusive in light of the age

and sex of the [child] and the nature of the’” government’s interest in conducting the

search. Id. (quoting T.L.O., 469 U.S. at 342).

       The Court emphasized the severity of a search that “expos[es]” a child’s “intimate

parts.” Id. at 377. “[B]oth subjective and reasonable societal expectations of personal

privacy support the treatment of . . . a search [of a child’s intimate areas] as categorically

distinct” from more limited searches of her “outer clothing and belongings.” Id. at 374.

“The meaning of such a search, and the degradation its subject may reasonably feel, place

a search that intrusive in a category of its own demanding its own specific suspicions.”

Id. at 377. “[G]eneral background possibilities fall short; a reasonable search [so]

extensive calls for suspicion that it will pay off.” Id. at 376. Ultimately, the Court held

that the assistant principal’s search was unconstitutional because he did not possess facts

suggesting either that the alleged medications posed any “danger to the students” or that

the student was hiding medications “in her underwear.” Id. at 376–77.



                                               5
       The legal principle controlling the constitutionality of Ms. Woodard’s search of

I.B. is clearly established because Dubbs and Safford are “particularized to the facts of

[this] case.” McCoy, 887 F.3d at 1044 (quoting Pauly, 137 S. Ct. at 552). Both cases

analyze the search of the intimate areas of a child’s body under the special needs

exception, which is the issue presented here. In both cases, the searches were justified by

the state’s interest in child welfare—“identifying physical and developmental

impediments” in Dubbs, 336 F.3d at 1214, and preventing students from distributing

medications in Safford. Both searches were conducted by multiple adults, on school

property, without parental notification, consent, or presence. In both Dubbs and Safford,

the searches violated the Fourth Amendment.

       This “precedent [is] clear enough that every reasonable official would interpret it

to establish the particular rule the [Does] seek[] to apply,” Wesby, 138 S. Ct. at 590,

namely that Ms. Woodard’s search needed to be “justified at its inception and reasonably

related in scope to the circumstances that justified the interference in the first place,”

Aplt. Br. at 36 (citing Safford, 557 U.S. at 375). See Jones v. Hunt, 410 F.3d 1221,

1228–31 (10th Cir. 2005) (reversing grant of qualified immunity to a social worker who

seized a student on school property because the seizure was not “justified at its

inception”). Given their factual similarities to the search at issue here, Dubbs and Safford

“obviously resolve whether the circumstances . . . confronted” by Ms. Woodard satisfied

the special needs exception. Wesby, 138 S. Ct. at 590 (quotation marks omitted).

       The majority concludes that the searches at issue in Dubbs and Safford are too

dissimilar from Ms. Woodard’s search of I.B. for Dubbs and Safford to be clearly

                                               6
established law. Maj. Op. at 28–32. I do not think that Defendants are entitled to

qualified immunity based on the factual differences between Dubbs, Safford, and

Woodard’s search of I.B. “[T]here does not have to be ‘a case directly on point[;]’

existing precedent must [have] place[d] the lawfulness of the particular [action] ‘beyond

debate.’” Wesby, 138 S. Ct. at 590 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011)). At the very least, Safford clearly established the legal principle that, under the

special needs exception, a government official’s search of a child’s body must be

“reasonably related in scope to the circumstances which justified the interference in the

first place.” 557 U.S. at 375 (quoting T.L.O., 469 U.S. at 341). Safford also established

that, because of “the categorically extreme intrusiveness of a search down to the body,”

such a search “requires some justification in suspected facts, general background

possibilities fall short.” Id. at 376. To be “reasonable,” a “search that extensive calls for

suspicion that it will pay off.” Id.

       Ms. Woodard could not have thought herself exempt from Safford. “We have held

that the Fourth Amendment subjects state social workers to its requirements,” Jones, 410

F.3d at 1225, because “[t]here is no ‘social worker’ exception to the Fourth Amendment,”

Dubbs, 336 F.3d at 1205. Neither does the fact that Ms. Woodard was investigating an

allegation of child abuse meaningfully set her apart from a school administrator

investigating the distribution of medications on campus. See Dubbs, 336 F.3d at 1206

(“The focus of the [Fourth] Amendment is . . . on the security of the person, not the

identity of the searcher or the purpose of the search.”); Franz v. Lytle, 997 F.2d 784, 793

(10th Cir. 1993) (A police officer’s “motive to protect [a] child [from abuse] does not

                                              7
vitiate [the child’s] Fourth Amendment rights.”). While the effective investigation of

child abuse is “a strong government interest,” Roska ex rel. Roska v. Peterson, 328 F.3d

1230, 1242 (10th Cir. 2003), that does not relieve a social worker of her obligation to

justify the search of a child’s intimate areas with “facts,” not “general possibilities,”

Safford, 557 U.S. at 376.4

       As I discuss in the next section, this is where Ms. Woodard fell short of meeting

the standard required by clearly established law. The Does have pled an unconstitutional

search under Safford because they have alleged that Ms. Woodard was not aware of

specific facts to justify a reasonable suspicion that she would find evidence of abuse by

examining I.B.’s intimate areas. See McCoy, 887 F.3d at 1052–53 (concluding that

precedent was clearly established law even though “not factually identical” to the case on

appeal because the precedent was “factually analogous” and “share[d] . . . decisive

factual circumstance[s]” with the case on appeal).

                                              II

       Because I would conclude that there is clearly established law on the question of

whether Ms. Woodard’s search was constitutional under the special needs exception, I

would also address the remaining prong of the qualified immunity test—whether Ms.

Woodard “violated [I.B.’s] federal . . . constitutional right.” Wesby, 138 S. Ct. at 589.


       4
        “[W]e must be sensitive to the fact that society’s interest in the protection of
children is, indeed, multifaceted, composed not only with concerns about the safety and
welfare of children from the community’s point of view, but also with the child’s
psychological well-being, autonomy, and relationship to the family or caretaker setting.”
Franz, 997 F.2d at 792–93.

                                               8
Ms. Woodard’s search needed to be “reasonably related in scope to the circumstances

which justified the interference in the first place,” meaning that the search should “not

[have been] excessively intrusive in light of the age and sex of [I.B.] and the nature of

the” government interest. Safford, 557 U.S. at 375 (quoting T.L.O., 469 U.S. at 341,

342). Certainly, the government’s interest in thoroughly and promptly investigating

allegations of child abuse is weighty. See Roska, 328 F.3d at 1242 (“It is true that the

state has a strong interest in protecting children, and that this interest should be taken into

account in evaluating the reasonableness of [a] search . . . .”). But that interest does not

supersede I.B.’s Fourth Amendment right to be free from unreasonable search. See id.

According to the operative First Amended Complaint, Ms. Woodard was never aware of

facts that could have justified such an intrusive search of a four-year-old girl, even under

the special needs exception. See Jones, 410 F.3d at 1223 (“When reviewing a dismissal

pursuant to Rule 12(b)(6), we accept the well-pleaded allegations of the complaint as true

and view them in the light most favorable to the plaintiff.”). Because this analysis is fact-

intensive, I recount and expand upon the facts discussed by the majority.

       The El Paso County Department of Human Services “received a report that I.B.

was being abused” on December 9, 2014. App. Vol. I at 15. “Allegations of abuse

included little bumps on I.B.’s face, a bruise about the size of a nickel on her neck, a

small red mark on her lower back, two small cuts on her stomach, and bruised knees.”

Id. The next day, on December 10, 2014, Ms. Woodard went to I.B.’s school. Id. at 16.

At that time, Ms. Woodard had already “received permission from her supervisor[] . . . to



                                               9
view I.B.’s buttocks, stomach/abdomen, and back so [she] could look for marks/bruises.”

Id. (quotation marks omitted).

       I.B was taken to the school nurse’s office with Ms. Woodard and a school health

paraprofessional. Id. Without first assessing the accuracy of the report of abuse—which,

given the location of the alleged injuries, could have been accomplished without fully

removing I.B.’s clothes—“Ms. Woodard instructed I.B. to show her buttocks and

stomach and back.” Id. Ms. Woodard and the school health employee then “took off all

I.B.’s clothes” and “viewed I.B.” Id. When Ms. Woodard later documented her findings,

she noted that “the marks observed were not consistent with the” report of alleged abuse.

Id. at 17.

       Nevertheless, Ms. Woodard and the school nurse “prepared to take photographs.”

Id. at 16. “I.B. told Ms. Woodard she did not want photographs taken.” Id. Undeterred,

Ms. Woodard “took color photographs of private and unclothed areas of I.B.’s body.” Id.

At no point did Ms. Woodard notify Ms. Doe of her plan to search I.B. or seek consent

from Ms. Doe to conduct the search. See id. at 17.

       The next day, on December 11, 2014, Ms. Woodard visited the Does’ home to

continue her investigation. Id. at 16. On January 5, 2015, “[t]he case was closed as

unfounded.” Id. at 17.

       Safford dictates the outcome of this case. The privacy intrusion at issue here is

more serious than in Safford, where the student’s “breasts and pelvic area” were briefly

exposed “to some degree,” 557 U.S. at 374, because Ms. Woodard removed all of I.B.’s

clothes and took color photographs of I.B.’s naked body. To survive Fourth Amendment

                                            10
scrutiny, even under the special needs exception, Ms. Woodard’s search would have

required “specific suspicions” that I.B was in “danger” or that there was “evidence of

wrongdoing” in the private areas of I.B.’s body. Id. at 377. As alleged, Ms. Woodard

had neither.

       The Does’ allegations do not support an inference that Ms. Woodard believed I.B.

to be in particular danger. See id. at 375–76 (“[T]he content of the [vice principal’s]

suspicion failed to match the degree of intrusion” because “[h]e must have been aware of

the nature and limited threat of the specific drugs he was searching for[.]”). DHS did not

dispatch Ms. Woodard to investigate the allegation of abuse until the day after its receipt,

when I.B. was already back at school. It is reasonable to infer that, had DHS or Ms.

Woodard considered I.B. to be in particular danger, Ms. Woodard would have intervened

more promptly. Nor is there any indication that, when Ms. Woodard arrived at the

school, I.B. appeared more injured or more in danger than the report suggested.

       Neither could Ms. Woodard have had a “specific suspicion[]” that evidence of

abuse would be found in the private areas of I.B.’s body. Id. at 377. No facts were pled

that support such a suspicion. The report of abuse was limited to I.B.’s neck, back,

stomach, and knees—all non-private, or at least less private, areas of I.B.’s body.

Nothing more than a “general background possibilit[y]” could have supported Ms.

Woodard’s apparent belief that she would find evidence of abuse by fully undressing I.B.

Id. at 376. But as the Supreme Court has held, such general possibilities “fall short”

when “the categorically extreme intrusiveness of a search down to the body of a” child is

at issue. Id. Even if Ms. Woodard had initially limited her search to the areas of I.B.’s

                                             11
body implicated by the report of abuse—which Ms. Woodard did not do—she would

have learned no facts to support expanding the search; “the marks observed were not

consistent with the” report of abuse. App. Vol. I at 17. Therefore, based on Safford, Ms.

Woodard’s search was unconstitutional under the special needs exception to the Fourth

Amendment.

       I would reach the same conclusion relying on Dubbs. Ms. Woodard’s search was

unreasonable because she had “no justification for proceeding without parental notice and

consent.” Dubbs, 336 F.3d at 1214. Ms. Woodard began to investigate the allegation of

abuse the day after the report was received by DHS, ostensibly giving Ms. Woodard time

to speak with Jane Doe, I.B.’s mother. App. Vol. I at 15–16. In fact, Ms. Woodard had

time to secure her supervisor’s approval for the search prior to arriving at I.B.’s school,

id. at 16, making it all the more reasonable to infer that Ms. Woodard had time to seek

consent from Ms. Doe. Instead, Ms. Woodard elected to search I.B. without Ms. Doe’s

consent, which left four-year-old I.B. alone in the school nurse’s office as two adult

strangers examined and photographed her naked body in search of signs of physical

abuse. Ms. Doe could not “discuss potential issues with” Ms. Woodard, “help to explain”

the search to I.B., or “reassure [I.B.] about the disturbing and unfamiliar aspects of the

exam.” Dubbs, 336 F.3d at 1207. “[I]t is plain that” Ms. Woodard’s search of I.B. was

“unconstitutional.” Id. at 1214.




                                             12
       The unconstitutional nature of Ms. Woodard’s search becomes even clearer upon

consideration of new facts alleged in the proposed Second Amended Complaint.5 First,

the Does allege that Ms. Woodard was aware, before she searched I.B., of a previous

unfounded report of abuse from I.B.’s school. App. Vol. I at 206. Ms. Woodard also

“knew that Jane Doe had been cooperative in [the] previous DHS investigation.” Id.

Second, the Does allege that Ms. Woodard “interviewed I.B. at her school prior” to the

search. Id. at 230. During this interview, “I.B. told [Ms.] Woodard that she gets red dots

on her face when she cries, but that she did not have any other ‘owies.’” Id.

       Because Ms. Woodard knew that I.B.’s school had previously made an unfounded

report of abuse, it was less reasonable for Ms. Woodard to rely on a report from the same

source to justify a search of the intimate areas of I.B.’s body. That Ms. Woodard knew

Ms. Doe had cooperated in the previous DHS investigation also made it less reasonable

for Ms. Woodard to search I.B. without first attempting to notify Ms. Doe. Finally, when

I.B. explained the marks on her face and denied any other injuries, it was not reasonable

for Ms. Woodard to then expand the search beyond the scope of reported abuse, to

include I.B.’s entire body. Ms. Woodard’s “search[,] as actually conducted,” needed to

be “reasonably related in scope to the circumstances which justified the [search] in the

first place.” Safford, 557 U.S. at 375. The new facts alleged in the proposed Second

       5
        Because the Does’ motion for leave to amend was not futile, in that it would state
a claim under the Fourth Amendment, I would also reverse the district court’s denial of
the motion to amend. See Miller ex rel. S.M. v. Bd. of Educ., 565 F.3d 1232, 1249 (10th
Cir. 2009) (“[W]hen denial [of a motion to amend a pleading] is based on a determination
that amendment would be futile, our review for abuse of discretion includes de novo
review of the legal basis for the finding of futility.”).

                                            13
Amended Complaint make it all the more plain that Ms. Woodard’s search was

unconstitutional.

       Because I would conclude that Ms. Woodard violated I.B.’s clearly established

Fourth Amendment rights, “it [would] become[] [Defendants’] burden to prove that her

conduct was nonetheless objectively reasonable.” Roska, 328 F.3d at 1251. Defendants

argue that Ms. Woodard’s search was objectively reasonable because it was authorized

by statute. “In considering the objective legal reasonableness of the state officer’s

actions, one relevant factor is whether the defendant relied on a state statute, regulation,

or official policy that explicitly sanctioned the conduct in question.” Id. (quotation marks

omitted). “[A]n officer’s reliance on an authorizing statute does not render the conduct

per se reasonable,” but “the existence of a statute or ordinance authorizing particular

conduct is a factor which militates in favor of the conclusion that a reasonable official

would find that conduct constitutional.” Id. at 1252 (quotation marks omitted).

              [A] court must consider whether reliance on the statute rendered the
              [official’s] conduct “objectively reasonable,” considering such
              factors as: (1) the degree of specificity with which the statute
              authorized the conduct in question; (2) whether the officer in fact
              complied with the statute; (3) whether the statute has fallen into
              desuetude; and (4) whether the officer could have reasonably
              concluded that the statute was constitutional.

Id. at 1253 (footnotes omitted).

       Defendant’s rely on Colorado Revised Statute § 19-3-306(1), which states: “Any

. . . social worker . . . who has before him a child he reasonably believes has been abused

or neglected may take or cause to be taken color photographs of the areas of trauma



                                             14
visible on the child.” I do not think this statute renders Ms. Woodard’s search

reasonable.

       First, the statute does not authorize Ms. Woodard to undress I.B. The statute

specifically limits Ms. Woodard’s authority to photograph “areas of trauma” that are

“visible.” Id. That implies some areas of trauma are not visible. Once a child is

undressed, all external areas of trauma become visible. But the statute says nothing about

what procedures a social worker must follow to undress a child.

       Moreover, Ms. Woodard did not photograph areas of trauma. The Does allege that

Woodard took photographs of “private and unclothed areas of I.B.’s body,” App. Vol. I at

16, even though the report of abuse only implicated non-private parts of I.B.’s body and

“the marks observed [on I.B.’s body] were not consistent” with the report of abuse, id. at

17.

       Ms. Woodard also let I.B. return to school and her mother’s custody, which further

suggests that Ms. Woodard did not “reasonably believe[ I.B.] ha[d] been abused or

neglected.” Colo. Rev. Stat. § 19-3-306(1). Defendants have therefore not met their

burden of showing that the state statute rendered Ms. Woodard’s search objectively

reasonable. See Halley v. Huckaby, 902 F.3d 1136, 1151–52 (10th Cir. 2018) (state

statute authorizing interview of a suspected victim of child abuse “at any place” did not

make it reasonable to think that “DHS [could] . . . take a child into custody anywhere and

everywhere”).

                                            III



                                            15
       I concur in the majority’s rulings on the Fourteenth Amendment claims and would

AFFIRM on those claims. Because I would conclude the Does have alleged that Ms.

Woodard violated I.B.’s clearly established Fourth Amendment rights, I would

REVERSE in part and REMAND for further proceedings on the Does’ Fourth

Amendment claims, as alleged in the proposed Second Amended Complaint, against

April Woodard, Christina Newbill, Shirley Rhodus, and Richard Bengtsson in their

individual capacities.




                                          16
