Children were removed from the home because of suspected child abuse and subjected to forced gynecological and rectal exams without any court authorization or parental knowledge or consent. The court assumes the “special needs” doctrine applies and then finds it wasn’t complied with. Mann v. County of San Diego, 2018 U.S. App. LEXIS 30804 (9th Cir. Oct. 31, 2018). Summary by the court:
The panel affirmed in part and reversed in part the district court’s summary judgment in an action alleging that the County of San Diego acted unconstitutionally when it removed children from their family home under a suspicion of child abuse, took them to a temporary shelter, and subjected them to invasive medical examinations, including a gynecological and rectal exam, without their parents’ knowledge or consent and without a court order authorizing the examinations.
The panel held that the County violated the parents’ Fourteenth Amendment substantive due process rights when it performed the medical examinations without notifying the parents and without obtaining either the parents’ consent or judicial authorization. The panel stated that in an emergency medical situation or when there is a reasonable concern that material physical evidence might dissipate, the County may proceed with medically necessary procedures without parental notice or consent. Neither exception applied in this case. The panel held that the County’s failure to provide parental notice or to obtain consent violated the parents’ Fourteenth Amendment rights and the constitutional rights of other Southern California parents whose children were subjected to similar medical examinations without due process. The panel further held that the County violated the children’s Fourth Amendment rights by failing to obtain a warrant or to provide these constitutional safeguards before subjecting the children to these invasive medical examinations.
from the opinion:
We assume, without deciding, that the “special needs” doctrine applies to the Polinsky medical examinations, but conclude that the searches are unconstitutional under the “special needs” balancing test if performed without the necessary notice and consent. To reach this conclusion, we balance the children’s expectation of privacy against the government’s interest in conducting the Polinsky medical examinations.
Children removed from their parents’ custody have a legitimate expectation of privacy in not being subjected to medical examinations without their parents’ notice and consent. See, e.g., Yin v. California, 95 F.3d 864, 871 (9th Cir. 1996) (Persons have “a legitimate expectation of privacy in being free from an unwanted medical examination, whether or not that examination entails any particularly intrusive procedures.”); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 657, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995) (concluding that the collection of a public school student’s urine sample, as well as its subsequent analysis, are invasions of societally-sanctioned expectations of privacy, but ultimately concluding that the search was reasonable). While the County’s custodial responsibility and authority over the children diminishes their privacy interests somewhat, Parham, 442 U.S. at 603, the children nonetheless maintain a legitimate expectation of privacy.
Importantly, the Polinsky medical examinations are significantly intrusive, as children are subjected to visual and tactile inspections of their external genitalia, hymen, and rectum, as well as potentially painful tuberculosis and blood tests. See Dubbs, 336 F.3d at 1207. Children are forced to undress and are inspected, by strangers, in their most intimate, private areas. See Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 604, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (urination is “an excretory function traditionally shielded by great privacy.”). N.G.P.M.’s description of the examination to Melissa indicates that even at six years old, she knew that the examination had exposed something private. The County’s argument that the examinations are “minimally intrusive” because they are “adjusted to the children’s comfort level,” ignores that the County routinely subjects children to these objectively intimate and potentially upsetting procedures. And while the County argues that the test results “were used only for health-related rather than law enforcement purposes,” the dual purposes of the search necessarily mean that the examinations could result in the disclosure of information to law enforcement, which would further intrude on the children’s privacy. Cf. Earls, 536 U.S. at 833 (reasoning that because test results were kept in confidential files released to school personnel only on a “need to know” basis, this diminished the potential privacy invasion); Vernonia, 515 U.S. at 658 (same).
While the County’s concern for the health of children in its custody is important, it has not demonstrated that the “nature and immediacy” of its interest outweighs the children’s privacy interests. See Earls, 536 U.S. at 834. When a child is examined, he or she has already been admitted to Polinsky and been examined for emergency medical needs and contagious diseases. While the initial assessment clearly serves to treat children’s immediate needs and address potential dangers to other children at Polinsky, it is less evident how the search at issue does so. Cf. Mueller, 700 F.3d at 1187. And the County provides no other interest beyond the health of the child that would make the need to conduct the search more immediate such that providing notice and obtaining consent would impede the provision of necessary medical services.
Nor has the County demonstrated that compliance with the Fourth Amendment, i.e., providing parental notice and obtaining consent or judicial authorization, would be “impracticable.” See Earls, 536 U.S. at 829. …
The Mann children’s experience underscores our conclusion. Here, the County removed the children from the family home, and could have sought Mark and Melissa’s consent at that time. When the children were subjected to the Polinsky medical examination the next day, Mark and Melissa were present in court, at which time the County also could have sought their consent. And there was no suspicion that the Mann children had been sexually abused or needed immediate medical attention such that performing the search was necessary prior to providing Mark and Melissa notice and obtaining their consent.
