           IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT
                                      _______________

                                        m 01-50711
                                      _______________



                                        MARY ROE,
             INDIVIDUALLY AND AS NEXT FRIEND OF JACKIE DOE, A MINOR CHILD;
                                        JOHN DOE,
                       AS NEXT FRIEND OF JACKIE DOE, A MINOR CHILD,


                                                          Plaintiffs-Appellees,

                                          VERSUS

     TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, ET AL.,

                                                          Defendants,

                                  BEVERLY STRICKLAND,
                       INDIVIDUALLY AND IN HER OFFICIAL CAPACITY,

                                                          Defendant-Appellant.


                                 _________________________

                         Appeal from the United States District Court
                              for the Western District of Texas
                               _________________________

                                        July 17, 2002


Before REAVLEY, SMITH, and DENNIS,                   Mary Roe and John Doe, as parents and
  Circuit Judges.                                 next friends of Jackie Doe, sued the Texas
                                                  Department of Protective and Regulatory Ser-
JERRY E. SMITH, Circuit Judge:                    vices (“TDPRS”) and social worker Beverly
                                                  Strickland after Strickland visually searched
Jackie’s body cavities without a court order.           a prompt and thorough investigation of the
The district court dismissed the claims against         child abuse report. TEX. FAM. CODE ANN.
the TDPRS, and plaintiffs do not appeal that            § 261.301 (West Supp. 2002).
dismissal. The court, however, rejected
Strickland’s motion for summary judgment,                   On July 6-8, Strickland unsuccessfully at-
and Strickland appeals based on the denial of           tempted to contact Mrs. Roe. On July 9, Mrs.
qualified immunity.                                     Roe called Strickland, using a business card
                                                        that Strickland had left on Mrs. Roe’s
   Although we conclude that the plaintiffs             doorstep. According to Mrs. Roe, during the
pleaded a claim and raised a fact question as to        July 9 phone conversation Strickland
whether Strickland violated Jackie’s Fourth             introduced herself, explained that she worked
Amendment rights, we reverse because those              for CPS, and said she needed to talk to Mrs.
rights were not clearly established at the time         Roe. Strickland declined to describe the
of the search. Strickland is entitled to                purpose of the visit and insisted that they talk
qualified immunity. The other allegations do            in person. Strickland stated only that she had
not establish violations of the Fourth and              received a “referral concerning the care and
Fourteenth Amendments. We remand for                    welfare” of Jackie. Strickland and Mrs. Roe
consideration of a state law claim.                     made an appointment for Strickland to visit
                                                        Mrs. Roe’s house the next morning.
                        I.
    Strickland worked for TDRPS in the Child-              On July 10, Strickland arrived at the house.
ren’s Protective Services (“CPS”) division.             Mrs. Roe testified that she had a brief
On June 29, 1999, the CPS Statewide Intake              conversation with Strickland outside the front
Unit received a “hotline” call concerning Jack-         door; Strickland introduced herself again,
ie, alleging that while she was attending a day         explained her affiliation with CPS, and gave
camp, someone observed her “touch[ing]                  Mrs. Roe a business card. Mrs. Roe testified
another six-year-old female’s private parts and         that Strickland entered the house without an
kiss[ing] her on the lips”; Jackie then allegedly       invitation or permission; Strickland maintains
“began dancing and licked her finger and ran it         that she was invited inside. Mrs. Roe testified
down her body and touched her own private               that Strickland did not act in a manner
parts.” The events occurred in a bathroom               designed to frighten or intimidate. Mrs. Roe
where Jackie, naked, was changing out of her            also admitted that she did not say or do
swimsuit.                                               anything to show that she did not want
                                                        Strickland to enter.
    The intake workers concluded that Jackie’s
“behavior indicates that she may have been                 After entering the house, Strickland
sexually abused.” The report assigned the case          explained the purpose of the visit and
a priority 2 status, requiring a CPS                    discussed the report that had been made to
investigator to attempt contact with the family         CPS. Mrs. Roe asked Strickland whether she
in ten days. Samantha Woods, the supervisor             should contact an attorney, and Strickland
for the CPS investigative unit, agreed with the         stated, “Oh no, no. Don’t worry about it.
priority 2 status and assigned the case to              You don’t need anybody.”
Strickland, who was required by law to make


                                                    2
   After asking some questions, Strickland             she would not have taken the pictures but
told Mrs. Roe that she needed to take pictures         opined that the decision to do so lay within
of Jackie. Strickland did not give the mother          Strickland’s discretion. Robert Brown, a Pro-
the option of submitting to the examination            gram Director at CPS, described the visual ex-
and pictures or refusing them. Strickland did          amination and pictures as appropriate because
not disclose the type of pictures or extent of         “caseworkers are trained to find and document
the examination. Strickland acknowledges               all available evidence during their
that she could have requested a medical                investigations.” After Mrs. Roe’s attorney
examination but did not do so. She had re-             complained to CPS, Woods reassigned the
ceived no       training in photography of             case to Michelle Carter. CPS “ruled out”
children’s genitalia.                                  abuse and closed the case.

   Strickland asked Mrs. Roe to remove the                Jackie subsequently experienced frequent
child’s upper clothing, so she could look for          nightmares involving the incident, and
bruises or marks. Strickland found none.               exhibited anxiety responses, for which she
Strickland then asked Mrs. Roe to remove               underwent counseling.        The symptoms
Jackie’s underwear, so that Strickland could           persisted for about six months. Mrs. Roe
see if anything was abnormal. Mrs. Roe asked           experienced a loss of sleep, sadness, and
whether it was really necessary, and Strickland        depression for the same period of time.
responded “Oh, don’t worry. It’s more
stressful for the parent than it is the child.”                                 II.
Strickland took pictures of Jackie’s vagina and            Plaintiffs sued Strickland, TDPRS, and cer-
buttocks in a closed position, and then in-            tain TDPRS officials under 42 U.S.C. § 1983,
structed Mrs. Roe to spread Jackie’s labia and         alleging a violation of their Fourth Amendment
buttocks, so that she could take pictures of the       right to freedom from unreasonable searches,
genital and anal areas. Although Mrs. Roe              Fourth and Fourteenth Amendment rights to
asked a couple of times whether the                    privacy, and Fourteenth Amendment liberty
photographs were necessary, she never                  interests. They also asserted state law claims
requested that Strickland stop. Mrs. Roe               of invasion of privacy, intentional infliction of
“teared up” as Strickland took the pictures,           emotional distress, false imprisonment,
but did not cry.                                       trespass, and negligent failure to train and
                                                       supervise.
   Mrs. Roe testified that Strickland never said
anything about removing the child from the                Defendants filed a motion to dismiss and a
home. After taking the pictures, Strickland            motion for a reply under FED. R. CIV. P. 7.
interviewed Jackie for fifteen to twenty               After plaintiffs filed a rule 7 reply, the court
minutes. Strickland and Mrs. Roe had another           dismissed all defendants but Strickland, who
brief discussion, and Strickland left.                 then moved for summary judgment, asserting
                                                       qualified immunity to the § 1983 claims and
    Plaintiff’s expert, Lawrence Daly, testified       official immunity to the state law claims. The
by affidavit that Strickland could not have be-        court denied the motion, whereupon
lieved in good faith that the examination and          Strickland filed her interlocutory appeal.
pictures were necessary. Woods testified that


                                                   3
                     III.                                     Our decision hinges on the resolution of
   Social workers may assert a qualified im-               legal, not factual, questions. “We examine the
munity defense when sued under § 1983.1 The                plaintiffs’ factual allegations only to determine
denial of summary judgment based on qualified              whether they would be sufficient, if proven, to
immunity is appealable under the collateral                make out a violation of clearly-established
order doctrine before final judgment. Mitchell             law.” Geter v. Fortenberry, 882 F.2d 167,
v. Forsyth, 472 U.S. 511, 526-28 (1985). We                169 (5th Cir. 1989). Our review of the legal
can review the denial only to the extent it                questions is de novo. Id.
“turns on a question of law.” Id. If disputed
factual issues are material to qualified                                          IV.
immunity, the denial is not appealable.                       The district court found that plaintiffs cre-
Feagley v. Waddill, 868 F.2d 1437, 1439 (5th               ated a fact question about whether Strickland’s
Cir. 1989) (dismissing appeal because factual              entry into their home violated their Fourth
arguments went to merits and not to qualified              Amendment rights. Strickland argues, first,
immunity defense).                                         that social workers need not satisfy the
                                                           traditional Fourth Amendment requirements
   This appeal turns on legal questions about              when conducting an investigative home visit,
the scope of Mrs. Roe’s and Jackie’s                       and, second, that Mrs. Roe consented to her
constitutional rights and Strickland’s qualified           entry. We avoid the first question by holding
immunity defense. The only disputed, material              that Mrs. Roe consented to an investigative
fact is whether Mrs. Roe invited Strickland                home visit.
into the house while the two stood on the front
porch. Because we can resolve the legal issue                                       A.
while assuming the truthfulness of Mrs. Roe’s                  In reviewing a claim of qualified immunity,
testimony, this is not the type of “material               we are bound to follow the two-step inquiry
fact” issue t hat divests the appellate court of           explained in Siegert v. Gilley, 500 U.S. 226,
jurisdiction. Cantu v. Rocha, 77 F.3d 795,                 232-34 (1991). Branton v. City of Dallas,
803 (5th Cir. 1996). The limit on appellate                272 F.3d 730, 744 (5th Cir. 2001). We first
review applies only when “what is at issue in              must determine “whether plaintiff’s
the sufficiency determination is nothing more              allegations, if true, establish a constitutional vi-
than whether the evidence could support a                  olation.” Hope v. Pelzer, 2002 U.S. LEXIS
finding that a particular conduct occurred.”               4884, at *11-*12 (U.S. June 27, 2002) (No.
Behrens v. Pelletier, 516 U.S. 299, 313                    01-309) (citing Saucier v. Katz, 533 U.S. 194,
(1996).                                                    201 (2001)). Only if we decide that the
                                                           defendant state actor engaged in such “cons-
                                                           titutionally impermissible conduct,” id. at *16,
                                                           do we proceed to the next step, which is to
   1
     Doe v. Louisiana, 2 F.3d 1412, 1416 (5th Cir.
                                                           determine whether defendant’s actions “violat-
1993) (“Child care workers are entitled to qualified       e[d] ‘clearly established statutory or
immunity in the performance of discretionary,              constitutional rights of which a reasonable
nonprosecutorial functions.”) (citations omitted);         person would have known,’” id. (quoting
Stem v. Ahearn, 908 F.2d 1, 5 (5th Cir. 1990)              Harlow v. Fitzgerald, 457 U.S. 800, 818
(same); Hodorowski v. Ray, 844 F.2d 1210, 1216             (1982)). The first question is governed by our
(5th Cir. 1988) (same).

                                                       4
current understanding of constitutional rights,            question of first impression in this circuitSSan
and the second by what was reasonably under-               issue over which other courts of appeals have
stood at the time of the challenged act, which             divided.4 We need not resolve this conflict,
here occurred in July 1999.                                however, because we conclude that Mrs. Roe
                                                           consented to an investigatory home visit.
                      B.
   The district court held that to enter a par-                                   C.
ent’s or child’s home and conduct an investi-                  As we have stated, the district court
gatory home visit, social workers must show                decided that plaintiffs created a fact question
probable cause and obtain a warrant, receive               concerning whether Mrs. Roe consented to the
consent, or act in response to exigent                     strip search, but the court did not carefully
circumstances. Strickland argues, to the con-              isolate the question of Strickland’s entry into
trary, that the court should have applied the              the house. On appeal, Strickland argues that
more general (and lenient) “special needs”                 Mrs. Roe consented to the investigative home
balancing test.                                            visit, so she should not have an individual
                                                           claim for violation of her Fourth Amendment
   We have held that the Fourth Amendment                  rights but, instead, could only assert Jackie’s
regulates social workers’ civil investigations,            Fourth Amendment claim stemming from the
but we have not fleshed out the relevant                   search.
Fourth Amendment standards. 2              The
procedural postures of those cases did not                    At the first stage of the Siegert inquiry, we
require us to choose between applying the                  assume the accuracy of Mrs. Roe’s version of
traditional or the special needs doctrines.3               the facts. Branton, 272 F.3d at 744. On
Selecting the applicable test for a social                 July 9, Strickland called Mrs. Roe, identified
worker’s investigative home visit would be a               herself as a CPS worker, and requested to
                                                           speak with her regarding Jackie’s welfare.
                                                           Strickland was evasive about the reason, but
   2
     Wooley v. City of Baton Rouge, 211 F.3d               Mrs. Roe established an appointment for the
913, 925 (5th Cir. 2000) (“[I]dentical fourth              home visit anyway. At the time of the ap-
amendment standards apply in both the criminal             pointment, Strickland appeared at Mrs. Roe’s
and civil contexts.”); Franks v. Smith, 717 F.2d           doorstep and asked for permission to enter;
183, 186 (5th Cir. 1983) (“A section 1983 action
can also lie against others, such as social workers,
                                                              4
where actions by them were taken in their official              Compare Wildauer v. Frederick County, 993
capacity as state employees.”).                            F.2d 369, 372 (4th Cir. 1993) (applying “special
                                                           needs” doctrine to social worker’s investigative
   3
      Wooley, 211 F.3d at 925 (explaining that             home visit to check for physical abuse) with Good
although defendants conceded that they lacked a            v. Dauphin County Soc. Servs. for Children &
warrant or probable cause, the panel must remand           Youth, 891 F.2d 1087, 1094-95 (3d Cir. 1989)
for defendants to provide record evidence of the           (applying traditional Fourth Amendment test to
importance of the governmental interest); Franks,          investigative home visit by police officer and social
717 F.2d at 186 (deciding only that plaintiff cre-         worker), and Calabretta v. Floyd, 189 F.3d 808,
ated federal question jurisdiction under § 1983 by         813 (9th Cir. 1999) (rejecting argument that social
alleging that police officer and social worker en-         worker does not usually need a court order to make
tered home without permission).                            an investigatory home visit against parent’s will).

                                                       5
Mrs. Roe did not respond, and Strickland went              social workers to enter homes without per-
into the house.                                            mission. Although they still must obtain the
                                                           parent’s verbal, affirmative consent before
   Silence or passivity cannot form the basis              conducting an investigative home interview,
for consent to enter.5 But, Strickland relied on           they need not obtain that consent again when
far more than Mrs. Roe’s mere silence. Over                they appear at the parent’s doorstep.
the phone, Strickland had identified herself as
a CPS employee and explained the general                      It follows that the district court erred in
purpose of her visit, and Mrs. Roe had agreed              holding that Mrs. Roe had not consented to
to an appointed time for the home interview.               Strickland’s entry; the court should have dis-
                                                           missed Mrs. Roe’s Fourth Amendment claim.
   After that conversation, Strickland justi-              Because, under the first step of the Siegert
fiably believed she had the right to enter. To             methodology, Strickland did not violate Mrs.
rebut that justifiable belief, Mrs. Roe cannot             Roe’s Fourth Amendment rights, we need not
rely only on her silence or passivity. Requiring           advance to the second step of the Siegert test
Mrs. Roe to rescind her initial invitation does            to address whether those rights were “clearly
not relax the consent standard or encourage                established.”

                                                                                   V.
   5
     In United States v. Vega, 221 F.3d 789, 797              We next evaluate Jackie’s Fourth
(5th Cir. 2000), we held that a suspect did not            Amendment claim against Strickland for the
consent when he lied about whether he lived in a           visual body cavity search and pictures. Mary
house and failed to object to the subsequent search.
                                                           and John Doe assert this claim on Jackie’s
In United States v. Jaras, 86 F.3d 383, 390 (5th
                                                           behalf. We answer the first prong of the
Cir. 1996), the panel refused to find consent where
the officer did not ask for permission and the             Siegert test by concluding that Strickland did
suspect did not grant permission but stood by as           violate Jackie’s Fourth Amendment rights, but,
the officer searched. Finally, in United States v.         moving to the second part of that test, we
Cooper, 43 F.3d 140, 145 n.2 (5th Cir. 1995), we           determine that those rights were not clearly
explained that “nonresistance may not be equated           established on July 10, 1999, so Strickland is
with consent.” In United States v. Varona-Algos,           entitled to qualified immunity.6
819 F.2d 81, 83 (5th Cir. 1987), we reached a
contrary result, upholding the conclusion that the
                                                              6
suspect “had impliedly consented to the search by                The Supreme Court has made plain that we
standing by and equivocally acknowledging the bag          should consider whether the public official has vi-
was his and allowing the trooper to go ahead               olated a constitutional right before we consider
without any objection.”                                    whether that right was “clearly established.” Wil-
                                                           son v. Layne, 526 U.S. 603, 609 (1999) (“A court
   Varona-Algos, however, predates the Supreme             required to rule upon the qualified immunity issue
Court’s shift to an objective standard for                 must consider, then, this threshold question: Taken
determining whether a suspect has consented to a           in the light most favorable to the party asserting the
search. We have recognized that the change in Su-          injury, do the facts alleged show the officer’s
preme Court doctrine abrogated Varona-Algos.               conduct violated a constitutional right?”); County
Jaras, 86 F.3d at 391 n.6 (citing Illinois v.              of Sacramento v. Lewis, 523 U.S. 833, 842 n.5
Rodriguez, 497 U.S. 177 (1990); Florida v.                 (1998) (“[T]he better approach to resolving cases
Jimeno, 500 U.S. 248 (1991)).                                                                      (continued...)

                                                       6
                        A.                                  The Third, Ninth, and Tenth Circuits have re-
   The district court held that the Fourth                  jected the Seventh Circuit’s approach and ap-
Amendment requires social workers to show                   ply instead the traditional Fourth Amendment
probable cause and obtain a court order,                    standard to juvenile strip searches.8 The Sec-
receive consent, or act in response to exigent              ond Circuit has taken an intermediate position:
circumstances to search visually, and to                    Even if social workers need not satisfy the
photograph, a child’s body cavities. On                     probable cause and warrant requirement in all
appeal, Strickland argues that the court should             cases, they must obtain prior judicial approval
have applied the “special needs” balancing test             when doing so would not threaten the child’s
instead. She contends that the anonymous                    well-being.9 To take sides in this inter-circuit
hotline call justified her search under the more            conflict, we focus on Supreme Court
lenient test.                                               precedent establishing the “special needs”
                                                            doctrine.
    We have not addressed which Fourth
Amendment test should apply to a social                        In “special needs” cases, the Court has
worker’s visual search of a child’s body                    carved out an exception to the warrant and
cavities, and the ot her courts of appeals are              probable cause requirement. Public officials
divided. The Seventh Circuit has held that a                can justify warrantless searches with reference
child protective services worker need only sat-             to a “special need” “divorced from the State’s
isfy the lesser special needs test and not the              general interest in law enforcement.”
more rigorous probable cause requirement.7                  Ferguson v. City of Charleston, 532 U.S. 67,


   6                                                           7
     (...continued)                                             (...continued)
in which the defense of qualified immunity is raised        (1971)).
is to determine first whether the plaintiff has
                                                               8
alleged the deprivation of a constitutional right at             The Third and Ninth Circuits have held that a
all.”).                                                     social worker must satisfy the warrant and prob-
                                                            able cause requirements to conduct a strip search
   7
      Darryl H. v. Coler, 801 F.2d 893, 901 (7th            of a child. Good, 891 F.2d at 1092 (evaluating
Cir. 1986) (“On this record, we believe that the            search of home and strip search of child under the
district judge was correct in holding that the              probable cause and warrant standard); Calabretta,
searches in question here could be conducted with-          189 F.3d at 817-18 (applying warrant and
out meeting the strictures of probable cause or the         probable cause requirement to coerced strip search
warrant requirement.”); Landstrom v. Ill. Dep’t of          of three-year-old child in her own home). The
Children & Family Servs., 892 F.2d 670, 676-77              Tenth Circuit has held that a police officer must
(7th Cir. 1990) (stating that Darryl H. did not             obtain a search warrant before entering a home and
“clearly establish” child’s right not to take off her       conducting a strip search of an infant. Franz v.
underpants when school official searched for                Lytle, 997 F.2d 784, 791 (10th Cir. 1993).
evidence of physical abuse). The Fourth Circuit
                                                               9
applies the more lenient standard to social workers              Tennenbaum v. Williams, 193 F.3d 581, 604-
investigative home visits, suggesting that it might         05 (2d Cir. 1999) (requiring judicial approval
follow the Seventh Circuit. Wildauer, 993 F.2d at           where social workers removed five-year-old from
372 (citing Wyman v. James, 400 U.S. 309, 318               school without parents’ knowledge and had phy-
                                       (continued...)       sician perform gynecological exam).

                                                        7
79 (2001). Special needs justify, for example,              judged the search’s lawfulness not by
a principal’s search of a student’s purse for               “probable cause” or “reasonable suspicion” but
drugs in school; a public employer’s search of              by “the standard of reasonableness under all of
an employee’s desk; a probation officer’s war-              the circumstances.” O’Connor, 480 U.S. at
rantless search of a probationer’s home; a Fed-             725-26.
eral Railroad Administration regulation
requiring employees to submit to blood and ur-                 We must narrow these diverse cases to
ine tests after major train accidents; drug test-           those most analogous to Strickland’s visual
ing of United States Customs Service employ-                body cavity search. Strip searches implicate
ees applying for positions involving drug inter-            fundamental Fourth Amendment rights.11 Al
diction; schools’ random drug testing of
student athletes, and drug testing of all public
school students participating in extracurricular               10
                                                                  (...continued)
activities.10 In all these cases, the Court                 (citations and internal quotations omitted); Nat’l
                                                            Treasury Employees Union v. Von Raab, 489 U.S.
                                                            656, 666 (1989) (permitting drug testing by
   10
        New Jersey v. T.L.O., 469 U.S. 325, 341             Customs’ service because of critical safety
(1985) (“[T]he accommodation of the privacy                 concerns and results were not made available to
interests of schoolchildren with the substantial need       law enforcement); Veronia Sch. Dist. v. Acton, 515
of teachers for . . . or der in the schools does not        U.S. 646, 657-58 (1995) (upholding uniform poli-
require strict adherence to the requirement that            cy of suspicionless searches of student athletes);
searches be based on probable cause . . . .”);              Bd. of Educ. v. Earls, 2002 U.S. LEXIS 4882, at
O’Connor v. Ortega, 480 U.S. 709, 728 (1987)                *15 (U.S. June 27, 2002) (No. 01-332) (holding
(“[P]ublic employer intrusions on the                       that special needs “inhere in the public school
constitutionally protected privacy interests of gov-        context”).
ernment employees for non-investigatory, work-
                                                               11
related purposes, as well as for investigations of                 Bell v. Woolfish, 441 U.S. 520, 594 (1979)
work-related misconduct, should be judged by the            (Stevens, J., dissenting) (describing body cavity
standard of reasonableness under all the circum-            searches as “clearly the greatest personal
stances.”); Griffin v. Wisconsin 483 U.S. 868,              indignity”); Moore v. Carwell, 168 F.3d 234, 236-
873-74 (1987) (“A State’s operation of a probation          37 (5th Cir. 1999) (holding that strip search of
system, like its operation of a school, government          female prisoner in front of male guards might vio-
office or prison, or its supervision of a regulated         late Fourth Amendment right to privacy); Watt v.
industry, likewise presents ‘special needs’ beyond          City of Richardson Police Dep't, 849 F.2d 195,
normal law enforcement that may justify                     199 (5th Cir. 1988) (finding that strip search of
departures from the usual warrant and probable-             arrestee based on twenty-year-old minor drug of-
cause requirements.”); Skinner v. Ry. Labor Exec-           fense violated the Fourth Amendment); Mary Beth
utives Ass’n, 489 U.S. 602, 620 (1989) (“The . . .          G. v. City of Chicago, 723 F.2d 1263, 1272 (7th
interest in regulating the conduct of railroad em-          Cir. 1983) (describing strip searches as “de-
ployees to ensure safety, like its supervision of           meaning, dehumanizing, undignified, humiliating,
probationers or regulated industries, or its                terrifying, unpleasant, embarrassing, repulsive,
operation of a government office school or prison           signifying degradation and submission”); Scott A.
. . . presents ‘special needs’ beyond normal law en-        Gartner, Note, Strip Searches of Students: What
forcement that may justify departures from the              Johnny Really Learned at School and How Local
usual warrant and probable-cause requirements”)             School Boards Can Help Solve the Problem, 70 S.
                                       (continued...)                                            (continued...)

                                                        8
though none of the “special needs” cases in-                 compel it; the aid recipient could decline the
volved strip searches or nudity, the Court has               benefits and no search would take place. Id. at
long held that citizens have an especially                   317-18. Second, the visitation promoted the
strong expectation of privacy in their homes.12              statutory goal of ensuring a decent living
We therefore begin by examining the Court’s                  standard for dependent children, the recipients
two cases applying the “special needs”                       received advanced notice, and the social
doctrine to investigative home searches.                     workers did not target recipients based on
                                                             individualized suspicion. Id. at 318, 320-21,
   In Wyman, 400 U.S. at 318, the Court                      323. All AFDC recipients had to endure
upheld a New York law conditioning                           visitation; the government did not single out
continued Aid to Families with Dependent                     individual recipients based on potential
Children benefits on permitting a home visit.                criminal liability.
The Court applied a general reasonableness
test rather than requiring a warrant and                        In Griffin, 483 U.S. at 872, the Court up-
probable cause. Id. Wyman, however, does                     held a Wisconsin statute permitting probation
not govern the instant case. First, the                      officers to search probationers’ homes based
application of the general reasonableness test               on “reasonable grounds.” The Court reasoned
was dictum: The Court held that the visitation               that the operation of the probation system pre-
was not a search because criminal law did not                sents “special needs beyond normal law en-
                                                             forcement.”      Id. at 874.       The Court
   11
                                                             distinguished the maintenance and operation of
     (...continued)                                          a prison or punitive regime from “generalized
CAL. L. REV. 921, 930-31 (1997) (describing emo-             law enforcement.” Id. Probation sits at the
tional impact of strip searches).
                                                             most lenient point on a continuum of
   12
      “[P]hysical entry into the home is the chief           punishments, but the state retains valid
evil against which the . . . Fourth Amendment is             interests in rehabilitating the criminal and
directed.” United States v. United States Dist. Ct.,         protecting society. Id. at 874-75. A warrant
407 U.S. 297, 313 (1972). “At the very core [of              requirement would divest the state of its
the Fourth Amendment and the personal rights it              control over the punished probationers,
secures] stands the right of a man to retreat into his       residing outside of the prison’s walls at the
own home and there be free from unreasonable                 state’s discretion. Id. at 876. The special
governmental intrusion.” Silverman v. United                 status of probationers and the state’s
States, 365 U.S. 505, 511 (1961). See also Payton            independent interests justify lowering the
v. New York, 445 U.S. 573, 586 (1980) (“It is a              probable cause and warrant requirements. Id.
‘basic principle of Fourth Amendment law’ that               at 878.
searches and seizures inside a home without a
warrant are presumptively unreasonable.”);
                                                                Griffin addresses searches based on
Coolidge v. New Hampshire, 403 U.S. 443,
474-75 (1970) (“It is accepted, at least as a matter
                                                             particularized suspicion, but it does so in the
of principle, that a search or seizure carried out on        special context of probationers. Probationers
a suspect’s premises without a warrant is per se             waive many of their privacy rights and have a
unreasonable, unless the police can show that it             much lower subjective expectation of privacy
falls within one of a carefully defined set of ex-           in the home; a warrant requirement would
ceptions based on the presence of ‘exigent cir-              interfere with the special needs raised by their
cumstances.’”).

                                                         9
rehabilitation. Ferguson, 532 U.S. at 81 n.15             privacy.14 The potency of her privacy interest
(“[W]e agree with petitioners that Griffin is             makes us reluctant to apply the “special needs”
properly read as limited by the fact that                 doctrine.
probationers have a lesser expectation of
privacy than the public at large.”). And the                 The home search cases and the importance
Court bracketed the question whether the                  of Jackie’s privacy interest give us pause; the
routine use of probation searches to obtain               Texas social workers’ dual purposes and en-
criminal convictions would violate the Fourth             tanglement with law enforcement resolve the
Amendment.13                                              question. None of the previous courts of ap-
                                                          peals to address these issues had the benefit of
   The home search cases underscore the                   Ferguson, 532 U.S. 67, the Court’s recent de-
strength of Jackie’s privacy interest. As the             cision examining dual-purpose searches and
Seventh Circuit aptly explained in a decision             the special needs doctrine.
pre-dating its adoption of the special needs
test, “[i]t does not require a constitutional                 In Ferguson, 532 U.S. at 78-79, the Court
scholar to conclude that a nude search of a               held that the higher probable cause and
thirteen-year-old child is an invasion of                 warrant standard applies where a state
constitutional rights of some magnitude. More             hospital’s drug testing of pregnant women
than that: it is a violation of any known                 systematically threatened them with criminal
principles of human decency.”         Doe v.              liability. The pregnant women who tested
Renfrow, 631 F.2d 91, 92-93 (7th Cir. 1980)               positive faced either automatic criminal
(per curiam); supra note 11.                              indictment or forced diversion into a treatment
                                                          program. Id. at 73. The Court rejected the
   The Court only rarely has permitted                    argument that protecting the health of the
“special needs” searches in the face of a                 mother and child is a “special need” sufficient
person’s strong subjective privacy interests. In          to dispense with the warrant requirement. Id.
Wyman and Griffin, the searched persons                   at 81.
voluntarily surrendered a great deal of the
privacy interest in their homes. The Court has                Claimed special needs should receive “close
never upheld a “special needs” search where               review.” Id. Where the “special need” is not
the person’s expectation of privacy was as                “divorced from the state’s general interest in
strong as is Jackie’s interest in bodily                  law enforcement,” the Court will not recognize
                                                          it. Id. at 79. The Court views entanglement
                                                          with law enforcement suspiciously. Id. at 81
                                                          n.15, 82. Other societal objectives cannot
   13
                                                          justify a program that would systematically
       Griffin, 483 U.S. at 876 n.3 (emphasizing
                                                          collect information for the police. Id. at 83-
consent to search and absence of added legal pen-
alty for noncompliance); Skinner, 489 U.S. at 621
                                                          84.
n.5 (“We leave for another day the question
whether routine use in criminal prosecutions of              Strickland ultimately fails to identify a “spe-
evidence obtained pursuant to the administrative
scheme would give rise to an inference of pretext,
                                                             14
or otherwise impugn the administrative nature of               The Court has permitted visual body cavity
the FRA’s program.”).                                     searches only in the prison setting. See Bell.

                                                     10
cial need” separate from the purposes of                   Strickland argues that a visual body cavity
general law enforcement. Identifying the goal          search often can disprove sexual abuse
of protecting a child’s welfare and removing           allegations. Perhaps. But their necessity in
him from an abusive home is easy;                      some cases does not say anything about social
disentangling that goal from general law               workers’ need to perform warrantless searches
enforcement purposes is difficult.         In          in non-exigent circumstances. The social
Ferguson, the Court also faced a quite                 worker can take many preliminary steps short
worthwhile goalSSpreventing the obvious and            of visual body cavity searches, such as
severe health problems cocaine addiction               interviewing the child and the parents. In non-
caused to pregnant mothers and unborn                  exigent circumstances, the worker then has
infants. The Court could not, however, apply           time to obtain a warrant either personally to
the “special needs” test to such a program             conduct a visual body cavity search or to have
where law enforcement was so deeply                    a physician perform it.
involved.
                                                           Social workers retain the power to seize a
    Strickland appropriately points to the fact        child if “exigent circumstances” exist; if they
that Texas law compels social workers to in-           “have reason to believe that life or limb is in
vestigate allegations of sexual abuse; she ne-         immediate jeopardy,” they need not obtain a
glects, however, to mention that the Texas             court order. Tenenbaum, 193 F.3d at 604-05
statute deeply involves law enforcement in the         (citation omitted). Here, CPS assigned the
investigation. CPS has a duty to notify law            case a priority 2 status, requiring Strickland to
enforcement of any child abuse reports it re-          take action in ten days and giving her plenty of
ceives. TEX. FAM. CODE ANN. § 261.105(b)               time to take other steps and/or seek a court
(West Supp. 2002). The district attorney may           order. The Texas Family Code establishes a
request automatic notification of some or all          procedure for obtaining such a court order.15
types of reported physical or sexual abuse.
Id. § 261.1055 (West Supp. 2002). Violating
these reporting duties can result in criminal             15
                                                             The Texas Family Code contemplates that
liability. Id. § 261.109 (West 1996). Finally,         family courts may issue orders for entry into the
investigations into allegations of physical or         child’s home or school:
sexual abuse are performed jointly with law
enforcement agencies. Id. § 261.301(f) (West              If admission to the home, school, or any
Supp. 2002).                                              place where the child may be cannot be
                                                          obtained, then for good cause shown the
   Texas law describes social workers’                    court having family law jurisdiction shall
investigations as a tool both for gathering               order the parent, the person responsible for
                                                          the care of the children, or the person in
evidence for criminal convictions and for
                                                          charge of any place where the child may be
protecting the welfare of the child. Ferguson             to allow for entrance for the interview,
teaches that we must apply the traditional                examination, and investigation.
Fourth Amendment analysis where a child
protective services search is so intimately            TEX. FAM. CODE ANN. § 261.303 (West Supp.
intertwined with law enforcement.                      2002).

                                                                                           (continued...)

                                                  11
                                                          alone, cannot count as consent.16 Inferring
   We conclude, therefore, that a social work-            meaning from Mrs. Roe’s cooperation at each
er must demonstrate probable cause and obtain             step is even more problematic, because
a court order, obtain parental consent, or act            Strickland did not even explain the purpose of
under exigent circumstances to justify the                her visit until entering the house.
visual body cavity search o f a juvenile.
Because Strickland admits that she did not                    Strickland did not explain that she would be
have probable cause and a warrant or face                 photographing Jackie’s spread labia and anus
exigent circumstances, she can establish the              until she instructed Mary to do so. Strickland
constitutionality of her search only by showing           even actively ignored Mrs. Roe’s protests.
that Jackie, or Mrs. Roe acting on her behalf,            Mrs. Roe asked whether she should call a
consented.                                                lawyer, questioned whether the invasive search
                                                          was necessary, and “teared up” while
                        B.                                Strickland took pictures. Strickland brushed
    The district court found that Mrs. Roe had            off Mrs. Roe’s questions and ignored these
created a fact question on the issue of consent.          signals. In the face of these signals, Strickland
Strickland claims that Mrs. Roe consented by              at least had the obligation to give Mrs. Roe a
failing to stop the search, removing Jackie’s             meaningful opportunity to deny consent.
clothing, and spreading her private parts for
the photographs.                                             In a similar case in which the mother
                                                          participated in the strip search, the Seventh
   Although Mrs. Roe gave affirmative                     Circuit explained its refusal to find consent:
consent to the home interview by scheduling a
home visit, she never verbally consented to the              It is not permissible to hold, as a matter
visual body cavity search. Our caselaw teach-                of law that the mother’s assistance in the
es that silence or a failure to resist, standing             procedure amounted to her consent.
                                                             Indeed, it is difficult to imagine a moth-
                                                             er, faced with the strip searching of her
   15
    (...continued)                                           two young children in a public building,
   Texas law also contemplates that a family court           doing anything other than staying and
may issue an order compelling a medical or                   attempting, by her presence, to alleviate
psychological evaluation:                                    the understandable apprehension of her
                                                             children.
   If a parent or person responsible for the
   child’s care does not consent . . . to a               Darryl H., 801 F.2d at 907. We conclude that
   medical, psychological, or psychiatric                 Mrs. Roe and Jackie created a fact question as
   examination that is requested by the
                                                          to whether Strickland violated Jackie’s Fourth
   department or designated agency, the court
   having family jurisdiction shall, for good
                                                          Amendment rights. We now turn to the
   cause shown, order. . . the examination to be          question whether those rights were “clearly
   made at the times and places designated by             established” in 1999.
   the court.

TEX. FAM. CODE ANN. § 261.303 (West Supp.
                                                             16
2002).                                                            Supra note 5.

                                                     12
                       C.                                 the state action] gave respondents fair warning
                       1.                                 that their alleged treatment of [the plaintiff]
   The district court decided that precedent              was unconstitutional.” Id.
from other circuits had “clearly established” a
parent’s right to refuse the body cavity search                                  2.
of his child absent probable cause; the court                 On July 10, 1999, Supreme Court and Fifth
found that any reasonable social worker would             Circuit precedent plainly established the fol-
have known that his actions raised serious                lowing: (1) A strip or body cavity search rais-
Fourth Amendment concerns. Strickland ar-                 es serious Fourth Amendment concerns, Watt,
gues, to the contrary, that neither Supreme               849 F.2d at 199; and (2) The Fourth Amend-
Court nor Fifth Circuit precedent “clearly                ment governs the lawfulness of a social work-
established” such a right.                                er’s entry into a dwelling to resolve a child
                                                          custody dispute.17 Mary and Jackie need not
   In Hope, the Court recently elaborated on              prove that “the very action in question has
what is required for a particular right to be             previously been held unlawful.” Anderson,
“clearly established” in the context of qualified         483 U.S. at 640. We had not, however, ever
immunity. Reiterating what it previously had              addressed whether the traditional test or the
said, the Court explained:                                “special needs” doctrine applies to a social
                                                          worker’s visual searches of naked juveniles.
   For a constitutional right to be clearly
   established, its coutours “must be suffi-                 This court had provided a little more
   ciently clear that a reasonable official               guidance than simply these general principles.
   would understand that what he is doing                 In Doe, 2 F.3d at 1420, we held that under the
   violates that right. This is not to say                Fourteenth Amendment a social worker could
   that an official action is protected by                subject a son and daughter to proctoscopic
   qualified immunity unless the very action              and culdoscopic examinations to check for
   in question has previously been held                   abuse. Citing with approval the Seventh
   unlawful, see Mitchell [v. Forsyth, 472                Circuit’s decisions in Darryl H. and
   U.S. 511,] 535, n.12; but it is to say that            Landstrom, we held that the social workers
   in the light of pre-existing law the                   could not have known that their efforts to
   unlawfulness must be apparent.”                        investigate abuse violated the family’s
   Anderson v. Creighton, 483 U.S. 635,                   Fourteenth Amendment right to privacy. Id.
   640 (1987).                                            We did not address the Fourth Amendment
                                                          question, id. at 1417, 1420, but to a
Hope, 2002 U.S. LEXIS 4884, at *17.                       reasonable lay observer, Doe would have cast
                                                          doubt on a child’s constitutional right to refuse
    The Court elaborated that “officials can still        a visual body cavity search.
be on notice that their conduct violates es-
tablished law even in novel factual
circumstances.” Id. at *20. Previous cases
need not be “fundamentally similar.” Id. “The                17
                                                                In Franks, 717 F.2d at 186, we applied the
salient question” for a court of appeals is               same Fourth Amendment, probable cause standard
“whether the state of the law [at the time of             to regulate the conduct of both a police officer and
                                                          a social worker.

                                                     13
   Even more importantly, in 1999 the                         this court has not opined on the issue in
Supreme Court had not yet explained whether                   question and the other circuits are in dis-
agencies performing a legitimate “special                     agreement as to whether the challenged acts
need” entangled with law enforcement need to                  constitute a constitutional violation.20 We
satisfy the probable cause standard.                          need not even reach the question whether, or
Subsequently, in Ferguson, 532 U.S. at 77-78,                 to what extent, the law of other circuits may
the Court distinguished previous drug testing                 be relevant to our qualified immunity
cases that employed a general reasonableness                  jurisprudence, in the absence of plain guidance
balancing by emphasizing the hospital’s                       from our own circuit’s caselaw, because here
“authority . . . to turn the results over to law              the other circuits were inconsistent in their
enforcement agents without the knowledge or                   treatment of the rights here alleged.
consent of the patients.”
                                                                 Mrs. Roe and Jackie also argue, however,
   The Supreme Court’s previously vague test                  that even if the Fifth Circuit had not clearly
for finding a “special need” caused the federal               rejected the “special needs” doctrine in 1999,
circuits to diverge over this precise substantive             Strickland’s actions violate the general
question18 and to disagree again as to whether
the rights were “clearly established” for
                                                                 20
purposes of qualified immunity.19 It is difficult                    Wilson, 526 U.S. at 618 (“Between the time
to argue that a matter of law is clearly                      of the events of this case and today’s decision, a
established for state actors in this circuit where            split among the Federal Circuits in fact developed
                                                              . . . . If judges thus disagree on a constitutional
                                                              question, it is unfair to subject police to money
                                                              damages for picking the losing side of the
   18                                                         controversy.”); Mitchell, 472 U.S. at 534-35 &
        Supra notes 7-9.
                                                              n.12 (“[“[I]n cases where there is a legitimate
   19
      The Third and Ninth Circuits held that the              question whether an exception to the warrant
children’s rights were clearly established. Good,             requirement exists, it cannot be said that a
891 F.2d at 1083-84 (finding that sparsity of child           warrantless search violates clearly established
abuse cases does not justify officer or social work-          law.”); Hall v. Thomas, 190 F.3d 693, 696-97 (5th
er’s violation of bedrock constitutional principles           Cir. 1993) (finding law not clearly established,
about the privacy of the home and freedom from                partially because “neither the Fifth Circuit nor the
body cavity searches); Calabretta, 189 F.3d at 813            Supreme Court had spoken” and “a circuit split ex-
(interpreting circuit precedent that prohibited police        isted”); Gunaca v. Texas, 65 F.3d 467, 475 (5th
officers from entering dwellings and resolving                Cir. 1995) (finding circuit split relevant as to
custody disputes without warrants). The Second                whether right was clearly established); McDuffie v.
and Seventh Circuits concluded that the Fourth                Estelle, 935 F.2d 682 (5th Cir. 1991) (“Absent
Circuit’s opinion in Wildauer justified refusing to           binding precedent in this circuit and faced with
grant qualified immunity. Tenenbaum, 193 F.3d at              somewhat conflicting decisions in the two circuits
605 (finding qualified immunity for removal of                which actually addressed the issue . . ., we cannot
child from school and gynecological exam without              say that the law . . . was clearly established.”). But
warrant or court order); Darryl H., 801 F.2d at               see Shipp v. McMahon, 234 F.3d 907, 915 (5th
908 (granting qualified immunity in 1986 because              Cir. 2000) (“[I]n determining whether a right is
neither the Supreme Court nor any court of appeals            clearly established, we are confined to precedent
had addressed the constitutionality of child abuse            from our circuit or the Supreme Court) (citation
searches).                                                    omitted).

                                                         14
reasonableness balancing test. By July 10,                considered a constitutional violation.
1999, only the Seventh Circuit had applied the
“special needs” doctrine to a social worker’s                With Doe on the books and the “special
warrantless, visual body cavity search. In the            needs” test governing, children’s rights against
first such consolidated case, the Seventh                 these searches definitely were not “clearly
Circuit affirmed the refusal to grant a                   established.” Accordingly, on July 10, 1999,
preliminary injunction against the state                  Jackie’s rights, in the context of this case,
agency’s procedures; the court also affirmed a            were not clearly established, so Strickland is
summary judgment in favor of the social                   entitled to qualified immunity on the claim that
workers because the child’s constitutional                she unconstitutionally conducted a visual body
rights were not clearly established. Darryl H.,           cavity search.
801 F.2d at 901. In the second case, the Sev-
enth Circuit held that the doctrine’s general                                  VI.
balancing test did not clearly establish the                 The district court also refused to grant
child’s constitutional rights. Landstrom, 892             summary judgment on plaintiffs’ claims that
F.2d at 676.                                              Strickland violated their Fourteenth
                                                          Amendment rights to family association and
   The possibility existed that other courts              bodily integrity.     The Supreme Court,
might have declared Strickland’s strip search             however, has repeatedly held that where the
unconstitutional under the general balancing              Fourth Amendment fully protects against a
test.21 A reasonable social worker in this cir-           particular government intrusion, courts cannot
cuit, however, knew only that Doe remained                consider substantive due process rights. The
the law and that the Supreme Court had grant-             Fourth Amendment fully embraces a parent or
ed public officials broad leeway under the                child’s claim that a social worker has
“special needs” doctrine.                                 unlawfully entered the home and conducted a
                                                          visual body cavity search. Plaintiffs therefore
    Children’s protective services workers face           cannot state a claim under the Supreme
difficult decisions in the field. They must               Court’s substantive due process doctrine.
make on-the-spot decisions regarding whether
to remove a child from a dangerous environ-                  The Supreme Court has “always been re-
ment or whether, on the other hand, to make               luctant to expand the concept of substantive
the judgment call that the child is in no danger          due process.” Collins v. City of Harker
and should remain with his family. Because                Heights, Tex., 503 U.S. 115, 125 (1992). The
the array of factual situations is endless, so too        more-specific-provision rule established in
is the list of possible reactions to them. In July        Graham v. Connor, 490 U.S. 386, 395 (1989),
1999, there was insufficient legal guidance,              reflects this reluctance.
even under the standard enunciated in Hope,
to inform a CPS worker that what Strickland                  In Graham, the Court held that “[b]ecause
did in reaction to the reports received about             the Fourth Amendment provides an explicit
Jackie’s conduct ultimately would be                      textual source of constitutional protection
                                                          against this sort of physically intrusive
                                                          government conduct, that Amendment, not the
   21
     The Second Circuit did so on October 13,             more generalized notion of ‘substantive due
1999. Tenenbaum, 193 F.3d at 605-06.

                                                     15
process,’ must be the guide for analyzing the                     The Fourth Amendment offered Mrs. Roe
claims.” Id. The Court rejected the peti-                      and Jackie complete protection from
tioner’s claimed right to be free from arbitrary               Strickland’s investigative home visit and visual
exercises of government power that “shock the                  body cavity search. Mrs. Roe could have re-
conscience.” The Court did not cast doubt on                   fused to permit Strickland’s entry into the
the pedigree of that particular substantive due                home, and Strickland then would have been
process right, but, instead, held that whenever                forced to obtain a court order. Mrs. Roe re-
the Fourth Amendment fully protects against                    fused to consent to the strip search, and the
an unlawful arrest, courts should not consider                 Fourth Amendment rendered that subsequent
the vaguer protections established by                          search unlawful; that amendment fully
substantive due process. Since Graham, the                     embraces the governmental action complained.
Court has adhered to this principle in a variety               We therefore cannot consider plaintiffs’
of contexts.22                                                 substantive due process rights to family
                                                               association and bodily integrity.23

   22
        Lewis, 523 U.S. at 842-44 (analyzing                      This analysis is consistent with other child
speeding motorcyclist’s suit for officers’ allegedly           custody cases analyzing parents and children’s
reckless pursuit under substantive due process be-             rights to family association and bodily
cause no “seizure” had occurred, and pursuit fell              integrity. In every one of the family as-
outside of Fourth Amendment’s scope); United                   sociation cases, we conducted the substantive
States v. Lanier, 520 U.S. 259, 272, n.7 (1997)                due process analysis because the social worker
(finding that state judge’s rapes of courthouse                had removed the child from its family home.24
employees and job applicants could support in-
dependent claim under substantive due process); id.
(“Graham simply requires that if a constitutional
claim is covered by a specific constitutional                     22
                                                                    (...continued)
provision, such as the Fourth or Eighth                        Id. at 813 (Rehnquist, J., joined by O’Connor,
Amendment, the claim must be analyzed under the                Scalia, and Ginsburg, JJ.); id. at 814 (Scalia, J.,
standard appropriate to that specific provision, not           concurring); id. (Ginsburg, J., concurring); id. at
under the rubric of substantive due process.”);                817 (Kennedy, J., joined by Thomas, J.,
Whitley v. Albers, 475 U.S. 312, 327 (1986) (“We               concurring); id. at 820-21 & n.2 (Souter, J.,
think the Eighth Amendment, which is specifically              concurring); id. at 305-06, 310 (Stevens, J., joined
concerned with the unnecessary and wanton                      by Blackmun, J., dissenting).
infliction of pain in penal institutions, serves as the
primary source of substantive protection to                       23
                                                                     The Second and Seventh Circuits have taken
convicted prisoners in cases such as this one, where           the same approach. Tenenbaum, 193 F.3d at 600
the deliberate use of force is challenged as                   (refusing to analyze searches under substantive due
excessive and unjustified.”). In Albright v. Oliver,           process). Cf. Darryl H., 801 F.2d at 901 n.7
510 U.S. 266 (1994) (plurality), the Justices dis-             (explaining that the court would use the same
agreed as to whether the Fourth Amendment’s                    analysis to evaluate Fourth and Fourteenth Amend-
prohibition against unlawful arrests extended to a             ment claims).
malicious prosecution claim. Every writing Jus-
                                                                  24
tice, however, agreed that if the Fourth Amendment                   Morris v. Dearborne, 181 F.3d 657, 671 (5th
embraced the claim entirely, the Court could not               Cir. 1999) (deciding that teacher violated right to
consider a separate substantive due process claim.             family integrity by falsifying sexual abuse charge
                                        (continued...)                                               (continued...)

                                                          16
In the bodily integrity cases, we often have                 stemming from a social worker’s search, the
considered criminal assaults committed by                    Fourth Amendment provides the sole means
teachers and other persons to whom the                       for analysis.
Fourth Amendment does not readily or easily
apply.25 Where the plaintiff alleges only harms                                      VII.
                                                                 The district court denied Strickland’s re-
                                                             quest for official immunity from the state law
   24
     (...continued)                                          claims. Mrs. Roe and Jackie argue that we
against father that led to three-year separation);           lack appellate jurisdiction over the district
Kiser v. Garrett, 67 F.3d 1166, 1173 (5th Cir.
                                                             court’s denial of Strickland’s official immunity
1995) (describing right as “nebulous, especially in
                                                             defense against the Texas state law claims.
the context of a state’s taking temporary custody of
a child during an investigation of possible paternal
                                                                 A defendant may appeal an order denying
abuse”); Doe, 2 F.3d at 1418 (considering case               immunity under state law if “the state’s
where social worker had fabricated charges of child          doctrine of qualified immunity, like the federal
abuse, which led to temporary separation of two              doctrine, provides a true immunity from suit
children from their parents); Hodorowski v. Ray,             and not a simple defense to liability.” Sorey v.
844 F.2d 1210, 1217 (5th Cir. 1988) (“[W]e do                Kellett, 849 F.2d 960, 962 (5th Cir. 1988).
not think that appellants in this case should have           Texas’s official immunity doctrine relieves
known that their conduct in removing the                     state officials of the burden of suit as well as of
Hodrowski children from the home violated the                liability for damages. Cantu, 77 F.3d at 804.
nebulous right of family integrity.”). See Wallis v.         Consequently, we have jurisdiction to consider
Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000)                 the question of state, official immunity.
(finding Fourteenth Amendment created
substantive due process rights protecting against
                                                                 Roe then argues that we lack jurisdiction
removal).
                                                             because the district court’s denial of official
   25
      Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443,          immunity turned on resolving a disputed issue
451-52 (5th Cir. 1994) (en banc) (finding                    of factSSwhether Strickland acted in good
substantive due process bars teacher from                    faith. The term “good faith” in Texas’s official
molesting student); Doe v. Rains County Indep.               immunity cases is somewhat misleading. The
Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995)               Texas Supreme Court defines the test as
(“[W]e have little trouble concluding that the Does’         objective and “derived substantially from the
allegations are sufficient to establish that Sarah           test that has emerged under federal immunity
suffered an actionable deprivation of her liberty            law for claims of qualified immunity in § 1983
interest in freedom from sexual abuse by persons             cases.” City of Lancaster v. Chambers, 883
wielding state authority.”); Fee v. Hardin, 900              S.W.2d 650, 656 (Tex. 1994).26 Because the
F.2d 804, 808 (5th Cir. 1984) (citation and
quotations omitted) (finding that a teacher violated
a student’s substantive due process rights by
inflicting corporal punishment that was “arbitrary,             25
                                                                 (...continued)
capricious, or wholly unrelated to the legitimate            grade student to a chair for most of two school
state goal of maintaining an atmosphere conducive            days).
to learning”); Jefferson v. Ysleta Indep. Sch. Dist.,
                                                                26
817 F.2d 303, 305 (5th Cir. 1987) (finding teacher                 The Texas Supreme Court described the
violated substantive due process by lashing second           standard in more detail as applied to the pursuit
                                       (continued...)                                            (continued...)

                                                        17
district court denied the state official immunity           jurisdiction under 28 U.S.C. § 1367. If the
defense for the same reasons it denied the                  court declines supplemental jurisdiction, it
federal defense, we have jurisdiction.                      should dismiss without prejudice so that
                                                            plaintiffs can pursue their claims in Texas state
   Although the Texas Supreme Court                         court.
describes official immunity as similar to federal
immunities, we have difficulty evaluating the                  The order denying qualified immunity is
claim of official immunity now that the                     REVERSED. This matter is REMANDED for
constitutional claims have been dismissed.                  consideration of the state law claims and for
Dismissing those claims may not, however,                   further proceedings, as appropriate, in ac-
guarantee Strickland official immunity for the              cordance with this opinion.
state law claims of invasion of privacy,
intentional infliction of emotional distress, false
imprisonment, trespass, and negligent failure
to train and supervise. We remand to the
district court either to reconsider the official
immunity question or to decline supplemental

   26
     (...continued)
case before them:

   We hold that an officer acts in good faith in
   a pursuit case if:

        a reasonably prudent officer, under
        the same or similar circumstances,
        could have believed that the need to
        immediately apprehend the suspect
        outweighed a clear risk of harm to
        the public in continuing the pursuit.

City of Lancaster, 883 S.W.2d at 656. See Univ.
of Houston v. Clark, 38 S.W.3d 578, 586-87 (Tex.
2000) (resolving officer’s official immunity defense
at summary judgment); Wadewitz v. Montgomery,
951 S.W.2d 404, 466 (Tex. 1997) (“[A] court
must measure good faith in official immunity cases
against a standard of objective legal rea-
sonableness.”); 42 TEX. JUR. 3D Government Tort
Liability § 123 (1995 ed.) (“The test is one of
objective legal reasonableness, without regard to
whether the government official involved acted
with subjective good faith and clarifies the good
faith standard in official immunity cases
generally.”).

                                                       18
