Camreta v Greene Brief of Battered Womens Resource Center, et al

8/6/2019 Camreta v Greene Brief of Battered Womens Resource Center, et al.

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Nos. 09-1454 & 09-1478n tle upreme (:0011 of tle mtite

BOB CAMRETA PetitionerSARAH GREENE, personally and as nextfriend for S. , a minor, and K.G. , a minorRespondent.

JAMES ALFORDDeschutes County Deputy SheriffPetitioner

SARAH GREENE, personally and as nextfriend for S. , a minor, and K.G. , a minorRespondent.ON WRITS OF CERTIORARI TO THE UNITED STATESCOURT OF ApPEALS FOR THE NINTH CIRCUITBRIEF OF BATTERED WOMEN'S RESOURCE

CENTER ET AL. AS AMICI CURIAEIN SUPPORT OF RESPONDENTSLauren E. Handel

Counsel of RecordMalinda MorainMcDERMOTT WILL & EMERY LLP340 Madison AvenueNew York, NY 10173(212) 647- 6400lhandel m we .commmorain mwe.comAttorneys for Amici Curiae

January 2011


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- 1-TABLE OF CONTENTS

PageINTERESTS OF AMICI CURIAE ............................SUMMARY OF ARGUMENT ................................. 10ARGUMENT............................................................ 13

There Is A Significant Risk That The StateWill Unreasonably Invade The Rights OfAbuse Victims , Particularly In Cases In-volving Domestic Violence. ............................... 13A. State Intervention Often CausesGreater Harm..............................................B. Due To Misconceptions And BiasesState Systems Inappropriately PunishAnd Re-Victimize Non-Offending Bat-tered Mothers. ............................................. 17C. Child Protective Services Agents HaveOverstepped Constitutional Bounds InCases Involving Domestic Violence............ 20

II. Given The Risk Of Unreasonable State In-trusions , Victims And Witnesses Of AbuseAre Entitled To Full Fourth AmendmentProtection........................................................... 22


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- 11-TABLE OF CONTENTS

PageA. The Fourth Amendment's ConcernsWith Preventing Arbitrary Govern-ment Intrusions Are Particularly

Relevant In Cases Involving DomesticViolence. ...................................................... 22B. Nothing In The Court's Jurisprudence

Suggests That Witnesses And VictimsAre Entitled To Less Protection UnderThe Fourth Amendment. ............................ 24III. Relaxing Fourth Amendment StandardsFor Child Protection Investigations Will

Diminish Fourth Amendment Rights InDomestic Violence Investigations..................... 27CONCLUSION ....................................................... 32


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-111-TABLE OF AUTHORITIES Page

CasesBrigham v. Stuart547 U.S. 398 (2006) ............................................... 30Brown v. Texas443 U.S. 47 (1979) .................................................Camara v. Municipal Court

387 U.S. 523 (1967) ......................................... , 24Dunaway v. New York442 U.S. 200 (1979) ...............................................Florida v. Royer460 U.S. 491 (1983) ...............................................Georgia v. Randolph547 U.S. 103 (2006) ...............................................Illinois v. Lidster540 U.S. 419 (2004) ......................................... , 26Indianapolis v. Edmond531 U.S. 32 (2000) .................................................Katz v. United States389 U.S. 347 (1967) ...............................................Mich. Dep t of State Police v. Sitz496 U.S. 444 (1990) ...............................................Nicholson v. Scoppetta3 N.Y.3d 357 , 820 N.E.2d 840 (N.Y. 2004) ........... 20Nicholson v. Williams203 F. Supp. 2d 153 (E.D. Y. 2002) passim


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- IV -Sanchez v. County of San Diego464 F. 3d 916 (9th Cir. 2006) ................................. 30State v. Greene162 Ariz. 431 , P.2d 257 (Ariz. 1989) ..................... 29Tierney v. Davidson133 F. 3d 189 (2d Cir. 1998)...................................United States v. Brooks367 F. 3d 1128 (9th Cir. 2004) .............................. 29United States v. Martinez-Fuerte428 U.S. 543 (1976) ...............................................Wyman v. James400 U.S. 309 (1971) ............................................... 30Other AuthoritiesAmerican Psychological Association Violence

and the Family (1996) ........................................... 16Annette R. Appell Protecting Children or

Punishing Mothers: Gender, Race, and Classin the Child Protection System 48 S.C. L.Rev. 577 (1997) ...................................................... 17Lundy Bancroft & Jay G. Silverman TheBatterer as Parent: Addressing the Impact ofDomestic Violence on Family Dynamics(2002) ..................................................................... 16Doriane Lambelet Coleman Storming TheCastle To Save The Children: The IronicCosts Of A Child Welfare Exception To TheFourth Amendment 47 Wm. & Mary L.Rev. 413 (2005) ...................................................... 13


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- v -Charles L. Diviney et al. Outcomes of CivilProtective Orders: Results From One StateJ. Interpersonal Violence (2009)............................ 15V. Pualani Enos Recent Development:Prosecuting Battered Mothers: State LawsFailure to Protect Battered Women andAbused Children 19 Harv. Women s L.J. 229(1996) ..................................................................... 14Deborah Epstein Effective Intervention in

Domestic Violence Cases: Rethinking theRoles of Prosecutors, Judges, and the CourtSystem 11 Yale J.L. & Feminism 3 (1999) .... 17, 20Leigh Goodmark Autonomy Feminism: AnAnti-Essentialist Critique of MandatoryInterventions in Domestic Violence CasesFla. St. U. L. Rev. 1 (2009).............................. 19 , 20Adele Harrell & Barbara E. Smith Effects ofRestraining Orders on Domestic ViolenceVictims, in Do Arrests and Restraining

Orders Work 214 (Eve S. Buzawa & CarlBuzawa eds. , 1996) ................................................ 14David Hirschel , Eve Buzawa , April Pattavina& Don Faggiani, Domestic Violence and

Mandatory Arrest Laws: To What Extent DoThey Influence Police Arrest Decisions 98 J.Crim. L. & Criminology 255 , no. 1 (2007)............. 19Peter G. Jaffe, Nancy K.D. LemonSamantha E. Poisson, Child Custody &Domestic Violence: A Call for Safety andAccountability (2003) ............................................ 14


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- VI -T . K. Logan et al. , Protective Orders: Questionsand Conundrums, Trauma, Violence, and

Abuse (2006)........................................................... 15Ann Malecha et al. , Applying for and DroppingProtection Order: A Study with 150Women Crim. Just. Pol'y Rev. (2003)................... 15G. Kristian Miccio Reasonable BatteredMother? Redefining, Reconstructing, andRecreating the Battered Mother in ChildProtective Proceedings 22 Harv. WomenL.J. 89 (1999) ................................................... 16 , 18

National Council of Juvenile & Family CourtJudges Effective Intervention in DomesticViolence and Child Maltreatment Cases:Guidelines for Policy and Practice (1999)......passimNew York State Judicial CommitteeWomen in the Courts Women in the Courts:A Work in Progress (2002) ............................... 13 , 16

David Owens West Hartford Man ArrestedThree Times on Domestic Violence ChargesHartford Courant (June 1 , 2010) .......................... 15

Bonnie E. Rabin Symposium on Reconceptual-izing Violence Against Women by IntimatePartners: Critical Issues: Violence AgainstMothers Equals Violence Against Children:Understanding the Connections 58 Alb. L.Rev. 1109 (1995) .................................................... 17

T. Scalzo Reporting Requirements for Compe-tent Adult Victims of Domestic Violence(April 21 , 2006) ...................................................... 32


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-V11-Evan Stark Coercive Control: How MenEntrap Women in Personal Life (2007)........... 14 , 15Evan Stark The Battered Mother in theChild Protective Service Case load: Develop-ing an Appropriate Response 23 WomenRts. L. Rep. 107 (2002) passim

Patricia Tjaden & Nancy Thoennes ExtentNature and Consequences of IntimatePartner Violence (2000) ......................................... 15

Deborah Tuerkheimer Exigency, 49 Ariz. L.Rev. 801 (2007) ...................................................... 14Lois A. Weithorn Protecting Children fromExposure to Domestic Violence: The Use andAbuse of Child Maltreatment 53 Hastings

L.J. 1 (2001) ..................................................... 16 , 17


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INTERESTS OF AMICI CURIAEPursuant to Supreme Court Rule 37, the Bat-tered Women s Resource Center; the California Part-nership to End Domestic Violence; Domestic ViolenceReport; Family Violence Law Center; inMotion , Inc.Lakeshore Legal Aid; Legal Services-NYC; Life Span;My Sisters ' Place , Inc.; National Advocates for Preg-nant Women; the National Coalition Against Domes-tic Violence; the New York Legal Assistance Group;Sharwline Nicholson; and the University of Balti-

more Family Law Clinic submit this amici curiaebrief in support of Respondent Sarah Greene.Battered Women s Resource CenterFounded in 2000 , the Battered Women s Re-source Center ("BWRC") is a New York based non-profit that works to empower survivors of domesticviolence. BWRC's Voices of Women Organizing Pro-ject ("VOW"), brings together survivors of domesticviolence to improve the systems that abused womenand their children turn to for safety and justice.VOW members organize to promote long-term sys-temic change by documenting institutional failurestestifying at hearings , creating position papers , and

meeting with local and state officials. BWRC'1 The parties have consented to the filing of amicus briefs

in support of either party or of neither party. Amici confirmthat (i) no person other than amici their members , or theircounsel made a monetary contribution to the preparation orsubmission of this brief, (ii) no counsel for any party authoredany part of this brief, and (iii) no party or counsel contributedmoney intended to fund the preparation or submission of thisbrief.


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Rights of Children Campaign works to support childsafety and freedom from intrusive investigations bythe child welfare agency by utilizing a community-organizing approach in which survivors of domesticviolence organize and advocate for improvements tothe system.

California Partnership To End DomesticViolenceThe California Partnership to End Domestic Vio-

lence ("CPEDV' ) is a statewide membership-basedcoalition of over 175 California organizations , agen-cies , and individuals working to end domestic vio-lence at local , state , and national levels. CPEDV hasa 30-year history of providing a united voice for Cali-fornia s domestic violence advocates and the survi-vors they serve. Aware of the challenges and injus-tices that battered women and children often facewhen interacting with the agencies tasked to protectthem , CPEDV is deeply concerned with the potentialdilution of the Fourth Amendment rights of victimsregardless of where the questioning takes place. It isbased on these realities that CPEDVs membership,through their united voice , urge this Court to con-sider the far-reaching implications of this case , andto protect the constitutional rights of abuse victimssubject to custodial interrogation.

Domestic Violence ReportDomestic Violence Report ("DVR") is a multi-

disciplinary newsletter that is distributed through-out the nation to 2 000 domestic violence programsand advocates , judges , lawyers , therapists, doctorsclergy, academics , police , probation officers , and oth-


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women by offering them legal services designed tofoster equal access to justice and an empowered ap-proach to life. InMotion fulfills its mission by provid-ing free, quality services , primarily in the areas ofmatrimonial, family, and immigration law , in a waythat acknowledges mutual respect , encourages per-sonal growth , and nurtures individual and collectivestrength. Informed by this work , inMotion promotespolicies that make our society more responsive to thelegal issues confronting the women it serves.

Lakeshore Legal AidFounded in 1969 , Lakeshore Legal Aid (Lake-shore) is a nonprofit legal aid program that providesfree , holistic legal services to the poor and vulnerable

in Michigan s lower peninsula. Lakeshore s servicearea is diverse , ranging from the economically de-pressed city of Detroit to Michigan s rural "thumb"region. Recognized as a pioneer in addressing do-mestic and sexual violence , Lakeshore has litigatedthousands of complex civil cases on behalf of domes-tic violence and sexual assault clients in matters ofchild protection , custody, visitation , and divorce. In2010 , Lakeshore received the trailblazer award fromthe Michigan Coalition Against Domestic and SexualViolence for the agency s innovative, collaborativeapproach to meeting the needs of domestic violenceand sexual assault survivors in Michigan.

Legal Services-NYCLegal Services-NYC has provided free civil legalservices to poor people in all boroughs of N ew YorkCity for over 40 years. In addition to representingindividual clients , it provides continuing legal educa-


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tion and consultation to the public interest law com-munity and participates in advocacy organizationssuch as the Lawyers' Committee Against DomesticViolence. Legal Services-NYC has a long history ofproviding high quality legal representation to victimsof domestic violence in cases involving orders of pro-tection, child custody, visitation , child support anddivorce. Legal Services-NYC has an equally longhistory in representing poor parents in child protec-tive proceedings. Between its citywide Keeping Fam-ilies Together program and its Brooklyn Family De-fense Project , Legal Services-NYC assists over 1100families a year , including nearly half the parents inBrooklyn charged with neglect or abuse. Legal Ser-vices-NYC lawyers and advocates also are involvedin numerous policy and advocacy efforts directed atimproving justice for parents and children in theFamily Court and child welfare system.

Life SpanLife Span provides comprehensive legal and so-cial services to victims of domestic and sexual vio-lence and their children in Chicago and its suburbs.

In operation since 1978 , the lawyers , counselors , andadvocates at Life Span help 3 500 clients annually.The agency s lawyers specialize in representing vic-tims in complicated family law matters , includingcustody and visitation , divorce , and orders of protec-tion. Life Span assists hundreds of battered womenand their children each year who have come underthe jurisdiction of the Illinois Department of Chil-dren and Family Services because they are victims ofdomestic violence. Life Span also engages in sys-temic advocacy and policy work with a goal of im-


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proving the response of the legal system to victims ofdomestic and sexual violence.

My Sisters' Place, Inc.A nonprofit organization formed in 1978 , My Sis-ters' Place is the leading resource in WestchesterCounty, New York , and the surrounding regions inthe field of domestic violence and human traffickingprogramming, advocacy, and legal services. Through-out its history, My Sisters ' Place has offered a holis-

tic approach to the many and varied needs of domes-tic violence victims, including safety, supportivehealing services , economic opportunity, and housing.Its programs include two residential shelters, indi-vidual counseling and advocacy, children s programssupport groups, a legal center, life skills training,school-based domestic violence prevention educationand outreach programs. Founded in 1997 , the full-service Legal Center of My Sisters' Place provideslegal advice , counsel , and representation to domesticviolence victims in family law matters and in the ar-eas of immigration, employment, and governmentbenefits.

National AdvocatesWomen For PregnantNational Advocates for Pregnant WomenNAPW") is a nonprofit organization that works toensure the human and civil rights , health , and dig-nity of pregnant and parenting women while protect-

ing children from counterproductive and misguidedstate policies. NAPW advocates for reproductive andfamily justice , including the right to carry a preg-nancy to term , access to culturally-appropriate and


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evidence-based medical care , and the rights of par-ents and children to family integrity undisruptedinappropriate state action. NAPW helped representplaintiffs in Ferguson v. City of Charleston and joinsthis case as amicus because of the harm to parentschildren , and family life if Fourth Amendment pro-tections are denied in the guise of protecting chil-dren.

National Coalition Against DomesticViolenceThe National Coalition Against Domestic Vio-lence ("NCADV' ), founded in 1978 and incorporated

in the state of Oregon , is a national nonprofit thatprovides general information , referrals , and technicalassistance to domestic violence service providers andserves as the primary representative of batteredwomen and their children in the public policy arena.NCADV is extremely concerned about the potentialrelaxing of Fourth Amendment rights of a victim , re-gardless of where that victim is questioned. Throughits work on national domestic violence advocacy,NCADV knows that many battered women and theirchildren face injustices as a result of policies andpractices carried out by agencies that are supposedto help and protect them. Victims of domestic vio-lence must be afforded their rights during question-ing, just as the alleged perpetrator has rights whenquestioned. If those rights are waived or relaxed forthe victims , their personal safety is often comprised.

New York Legal Assistance GroupFounded in 1990 , the New York Legal AssistanceGroup ("NYLAG") is a nonprofit organization dedi-


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cated to providing free civil legal services to NewYork' s low income families. In 1994 , NYLAG estab-lished its Domestic Violence Initiative which pro-vides assistance to victims of domestic violence on apriority basis. In addition to obtaining orders of pro-tection, the Initiative provides victims with legalrepresentation in child protection, custody, visita-tion , support and matrimonial matters. NYLAG hasfurther demonstrated its commitment to promotinglegal services for victims of domestic violencethrough its Domestic Violence Clinical Center

DVCC" The DVCC is an innovative program ad-ministered and supervised by NYLAG attorneyswhich offers law students the opportunity to learnthe substantive and litigation skills necessary toprovide exceptional representation to batteredwomen.Sharwline NicholsonSharwline Nicholson is a mother and a domesticviolence survivor who has experienced first-hand thedevastation child protective services agencies cancause through overly aggressive , unreasonable inter-

ventions in cases involving domestic violence. Herexperience is discussed in more detail in the argu-ment below. In 1999 , after an incident in which Ms.Nicholson was badly beaten by her daughter s fatherthe New York City Administration for ChildrenServices ("ACS") removed her eight-year-old son andthree-year-old daughter to foster care. They did soeven though they had no reason to believe that Ms.Nicholson was neglectful or that the children wouldbe harmed in her care. The children remained in fos-ter care, where they were mistreated, for three


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weeks. Ms. Nicholson subsequently became thenamed plaintiff in the landmark case of Nicholson v.Williams a class action suit which challenged ACS'policy and practice of presumptively removing chil-dren from non-offending battered mothers as a viola-tion of their mothers' constitutional rights. The caseultimately established that battered mothers cannotbe found guilty of neglect merely because their chil-dren have witnessed violence. Following her successMs. Nicholson has spoken at domestic violenceconferences and colleges and has been active inseveral organizations in New York City, includingthe Child Welfare Organizing Project and the ChildWelfare Watch.

University Of Baltimore Family LawClinicThe University of Baltimore Family Law Clinic

provides representation for residents of the Balti-more community in a range of family law matters.The Clinic has focused on the needs of women sub-jected to abuse and their children , representing themin protective order, divorce , custody and child sup-port proceedings and assisting them in understand-ing and using the criminal sanctions applicable whentheir partners' actions violate the criminal law. Be-cause of their interactions with the criminal systemand child protective services , the Clinic s clients arepotentially at risk for the kinds of custodial interro-gation involved in Camreta Alford v. Greene.


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overworked and overzealous CPS and law enforce-ment agents easily can fail to recognize when stateintervention is (or is not) reasonably necessary andappropriate to protect children. For these reasonsthe Fourth Amendment's protections against arbi-trary state interference with children s and parentsrights are particularly important. To protect theserights, the Fourth Amendment's traditional re-quirements for a warrant and probable cause providea necessary check on the discretion of CPS and lawenforcement agents.

Given the intrusiveness of CPS/law enforcementinvestigations of intra-family abuse and the high riskthat state interventions will be damaging and inef-fective, the Court should decline petitioners ' invita-tion to create a lesser standard of Fourth Amend-ment protection for suspected child abuse victims.There is no basis in precedent or logic for a rulingthat suspected victims or witnesses of crime are enti-tled to less freedom from governmental intrusionsthan suspected perpetrators. Undoubtedly, petition-ers are correct that the government's interest in pro-tecting children is compelling. However the gravityof the threat alone cannot be dispositive of questionsconcerning what means (state agents) may employ topursue a given purpose. Indianapolis v. Edmond531 U.S. 32 42 (2000). The Fourth Amendment alsorequires consideration of the harms the interventionmay cause as well as the likelihood that the inter-vention will serve the state s interest.

Furthermore , if the Court condones the seizureand interrogation of S. , a suspected child abusevictim , without a warrant , probable cause , parental


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consent, or exigent circumstances , it will pave theway for relaxing Fourth Amendment rights in cir-cumstances beyond those of the instant case. That isbecause , if accepted by this Court , the rationales onwhich petitioners wrongly rely to justify S. s sei-zure would apply equally to-and, therefore , could beused to justify-seizures in other factual settings.For example , under petitioners' flawed reasoning,because children may be harmed by witnessing do-mestic violence CPS and law enforcement agentswould be justified in seizing and interrogating chil-dren believed to have been exposed to domestic vio-lence , even when those children have not themselvesbeen abused. By logical extension, in certain circum-stances in which adults have reduced expectations ofprivacy, petitioners' faulty rationales also would jus-tify investigatory seizures of battered mothers with-out a warrant , probable cause or consent. Such ex-pansions of state powers in circumstances not di-rectly presented by this case are possible if suspectedabuse victims are afforded anything less than thefull protection of the Fourth Amendment.


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ARGUMENTThere Is A Significant Risk That TheState Will Unreasonably Invade TheRights Of Abuse Victims, Particularly InCases Involving Domestic Violence.A. State InterventionGreater Harm. Often CausesAlthough the state has an interest in protectingpeople from violence , the responses of CPS and lawenforcement agents , in actuality, often increase vio-lence in the home and put victims in greater dangerthereby thwarting the state s interest in protection.Despite the best intentions of state agents, their in-volvement in situations of intra-family abuse canharm and re-victimize victims. See N ew York StateJudicial Committee on Women in the Courts Womenin the Courts: A Work in Progress 26 (2002); Doriane

Lambelet Coleman Storming The Castle To SaveThe Children: The Ironic Costs Of A Child WelfareException To The Fourth Amendment 47 Wm. &Mary L. Rev. 413 , 417-419 (2005). In many cases ofchild abuse and neglect, a parent-typically themother-is a victim of violence by her intimate part-ner.2 Evan Stark The Battered Mother in the Child

2 There is considerable overlap between child protectionand domestic violence cases. Although domestic violence islikely significantly underreported even the lowest estimates ofits prevalence indicate that domestic violence is more often anissue in child protection cases than is substance abuse , home-lessness , mental illness or other comparable problems to whichconsiderably greater resources are devoted." Stark The Bat-


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Protective Service Case load: Developing an Appropri-ate Response 23 Women s Rts. L. Rep. 107, 109(2002) (hereinafter Stark The Battered Mother)(d)omestic violence against the mother is a com-mon , and may be the single most common , contextfor child abuse or neglect. ). In such cases , a victimreport of abuse to the state may trigger intensifiedviolence and increase other forms of coercive controlsuch as intimidation , surveillance , degradation , andisolation of the mother from outside sources of sup-

port. Peter G. Jaffe , Nancy K.D. Lemon , & Saman-tha E. Poisson Child Custody Domestic Violence:A Call for Safety and Accountability 29 (2003); Na-tional Council of Juvenile & Family Court JudgesEffective Intervention in Domestic Violence and ChildMaltreatment Cases: Guidelines for Policy and Prac-tice 66 (1999); Evan Stark Coercive Control: HowMen Entrap Women in Personal Life 228-229 (2007)(hereinafter Stark Coercive Control); V. PualaniEnos Recent Development: Prosecuting BatteredMothers: State Laws ' Failure to Protect BatteredWomen and Abused Children 19 Harv. Women s L.J.229, 243-244 (1996); Deborah Tuerkheimer Exi-

gency, 49 Ariz. L. Rev. 801 , 817 (2007). And whenthe state intervenes-for example , by arresting bat-terers or issuing orders of protection-in many casesit fails to protect victims and their children from fur-ther violence. See Adele Harrell & Barbara E.Smith Effects of Restraining Orders on Domestic Vio-lence Victims , in Do Arrests and Restraining OrdersWork 214, 218 (Eve S. Buzawa & Carl G. Buzawatered Mother at 111-112; see also National Council of Juvenile& Family Court Judges supra at 9.


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eds. , 1996); Patricia Tjaden & Nancy Thoennes Ex-tent, Nature and Consequences of Intimate PartnerViolence 52 (2000) (reporting study findings that only3% of physical assaults , 7.5% of rapes , and 14.6% ofstalking cases involving intimate partners wereprosecuted); Charles L. Diviney et al. Outcomes ofCivil Protective Orders: Results From One StateInterpersonal Violence, 2009, at 1209-1221; T.Logan et al. , Protective Orders: Questions and Co-nundrums, Trauma, Violence, and Abuse 2006 , at175, 191 (reporting analysis of thirty- two studiesfinding that about 40% of protective orders were vio-lated); Ann Malecha et al. , Applying for and Drop-ping a Protection Order: A Study with 150 WomenCrim. Just. Pol'y Rev. , 2003, at 486, 492; DavidOwens West Hartford Man Arrested Three Times onDomestic Violence Charges Hartford Courant (June

, 2010), available at http://articles. courant.com/2010/jun/Ol (follow "West Hartford Man ArrestedThree Times on Domestic Violence Charges" hyper-link).

In addition, the disclosure of violence mayprompt state action to remove children from theirnon-abusive, battered mothers, even where the chil-dren have not been directly abused , but have merelywitnessed their mother s battering.3 New York State3 The threat that the state will take a battered mother's

children if she reports her abuse serves to reinforce the batter-ers' control by discouraging her from seeking help. This is an-other means by which the CPS system, ironically, createsgreater danger for domestic violence victims and their children.In fact, batterers often threaten to call CPS and have the chil-dren removed as a means of exerting control over the mothers.Stark Coercive Control at 251.


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Judicial Committee on Women in the Courts supraat 27; G. Kristian Miccio A Reasonable BatteredMother? Redefining, Reconstructing, and Recreatingthe Battered Mother in Child Protective Proceedings22 Harv. Women s L.J. 89 , 91-92 (1999); see also dis-cussion infra Part I.C. While exposure to domesticviolence may cause some children physical, emo-tional, and behavioral problems , studies show thatthe vast majority of children who witness such abusesuffer no negative effects. Stark The BatteredMother at 116; see also Nicholson v. Williams 203 F.Supp. 2d 153 , 197 (E.D. Y. 2002); National Councilof Juvenile & Family Court Judges supra at 10.The removal of children in these situations is espe-cially harmful because the bond between the non-offending parent and her child is crucial to the child'resiliency. Nicholson 203 F. Supp. 2d at 198- 199; seealso American Psychological Association Violenceand the Family 124 (1996); Lundy Bancroft & Jay G.Silverman The Batterer as Parent: Addressing theImpact of Domestic Violence on Family Dynamics 104(2002). Importantly, the removal of children is likelyunwarranted because non-abusive battered mothersare , in general , highly capable parents. See Stark

4 The degree to which children may be harmed by witness-ing domestic violence depends on a variety of factors includingthe child's age, the level of violence witnessed by the childother stressors in the child's life and the child's relationship tothe victim. Nicholson 203 F. Supp. 2d at 197 (discussing ex-pert testimony). Moreover, when children are harmed by wit-nessing domestic violence, the harm often does not rise to alevel where governmental intervention is justified.Lois A.Weithorn Protecting Children from Exposure to Domestic Vio-lence: The Use and Abuse of Child Maltreatment 53 Hastings

J. 1 , 34 (2001).


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The Battered Mother at 112; Weithorn supra at 33.Thus, in the groundbreaking "Green Book " whichwas the first systematic effort at a national level todevelop guidelines for child protection cases involv-ing domestic violence , the National Council of Juve-nile & Family Court Judges recommends that chil-dren affected by abuse , neglect, or domestic violencebe kept with their non-offending parents wheneverpossible. National Council of Juvenile & FamilyCourt Judges supra at 14.

B. Due To Misconceptions And Biases,State Systems Inappropriately Pun-ish And Re-Victimize Non-OffendingBattered Mothers.

Scholars, legal practitioners, advocates, andcourts have recognized that, instead of providinghelp and needed support , state systems designed toprotect victims of domestic violence frequently pun-ish and re-victimize them. Nicholson 203 F. Supp.at 200-201 , 211 (discussing policies and practicesthat blame victimized mothers and fail to hold abus-ers accountable); Annette R. Appell Protecting Chil-dren or Punishing Mothers: Gender, Race, and Classin the Child Protection System 48 S. C. L. Rev. 577587-588 (1997); Deborah Epstein Effective Interven-tion in Domestic Violence Cases: Rethinking the Rolesof Prosecutors, Judges, and the Court SystemYale J.L. & Feminism 3 , 17 (1999); Bonnie E. RabinSymposium on Reconceptualizing Violence AgainstWomen by Intimate Partners: Critical Issues: Vio-lence Against Mothers Equals Violence Against Chil-dren: Understanding the Connections 58 Alb. L. Rev.1109 , 1110-1111 (1995). Due to inadequate training,


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cultural norms that hold mothers primarily respon-sible for the care of children, institutional biases , andvictim stereotypes (w)hen domestic violence is iden-tified, punitive labels and interventions are morelikely to be applied than in cases involving compara-ble harms to children where no domestic violence hasoccurred." Stark The Battered Mother at 110; seealso Miccio supra at 116-118 (discussing effects ofgender bias on legal system s treatment of batteredmothers). Despite evidence that domestic violencevictims are likely to be high-functioning and capableparents , battered mothers are generally presumedincapable of protecting themselves or their children.Stark The Battered Mother at 112; see also NationalCouncil of Juvenile & Family Court Judges supra11.

Presuming that children exposed to domestic vio-lence are at risk of serious harm and that batteredmothers will not protect their children , CPS and lawenforcement agents often fail to adequately assessthe actual risk and , instead, assume that aggressiveintervention is necessary. National Council of Juve-nile & Family Court Judges supra at 21-22. In ad-dition to removing children from their non-abusivemothers , the state may leverage its child protectiveauthority to force domestic violence victims to takeactions it deems appropriate-such as , cooperationwith possibly inappropriate or ineffective serviceplans, leaving the abuser , obtaining orders of protec-tion , and participating in the prosecution of the bat-terer. See, e. , Nicholson 203 F. Supp. 2d at 216

5 The choices of battered women-for example , to stay withtheir abusers and to resist state intervention-may seem irra-


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(finding that ACS needlessly protracts return of chil-dren to non-offending abused mothers "due to piqueof the ACS employee or to the employee using bu-reaucratic power to punish the mother and child un-til the mother becomes pliant to ACS orders-eventhough the ACS demands may not be necessary toprotect the children. ). Laws mandating arrest ofbatterers and no-drop prosecution policies furtherdeny victims control without necessarily increasingsafety. Leigh Goodmark Autonomy Feminism: AnAnti-Essentialist Critique of Mandatory Interventionsin Domestic Violence Cases 37 Fla. St. U. L. Rev. 132-43 (2009); David Hirschel, Eve Buzawa, AprilPattavina Don Faggiani Domestic Violence andMandatory Arrest Laws: To What Extent Do They In-fluence Police Arrest Decisions 98 J. Crim. L. &Criminology 255 , no. 1 , 255 , 255 (2007). As explainedby Professor Deborah Epstein (i)n many casesprosecutors take complete control over the casefunctioning as the sole decision-maker and ignoringthe victim s voice.... Such re-victimization canthwart the survivor s efforts to regain control overtional or even pathological if considered without proper under-standing of the dilemmas these women face. A batteredmother may choose to stay with an abusive partner and to re-sist state assistance for a variety of rational reasons , includingfear of retaliation , fear that the state will take her childrenaway, economic dependence on the abuser , lack of safe alterna-tive housing, risk that an immigrant abuser will be deportedand religious or cultural reasons. National Council of Juvenile& Family Court Judges supra at 11; Enos supra at 245-246;Epstein supra at 17- 18. When the state fails to take victimsconcerns seriously, and instead forces victims to comply with itsplans, the state paradoxically may jeopardize the safety andsecurity of battered mothers and their children.


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her life and move past the abusive experience.Epstein supra at 17. Such paternalistic approachesto domestic violence ignore the ways in which victimsmake autonomous, rational, and protective choiceswithin the constraints of their circumstances.Goodmark supra at 27-29; Stark The BatteredMother at 125- 126.

C. Child Protective Services AgentsHave Overstepped ConstitutionalBounds In Cases Involving DomesticViolence.

The case of amicus curiae Sharwline Nicholsonprovides a useful illustration of the danger that CPSwill overstep constitutional limits in cases involvingdomestic violence. See Nicholson 203 F. Supp. at153; Nicholson v. Scoppetta 3 N.Y.3d 357, 820E.2d 840 (N.Y. 2004). In that class action litiga-tion , the Eastern District of N ew York found that theCity of New York's Administration for ChildrenServices ("ACS") engaged in "widespread and unnec-essary cruelty" and violated substantive and proce-dural due process rights by removing children fromthe care of non-abusive battered mothers on the pre-sumption that the children exposure to themother s abuse constituted neglect. 203 F. Supp. 2dat 163 , 251. In Ms. Nicholson s personal situationACS took her three-year-old daughter and eight-year-old son into state custody following an incidentin which Ms. Nicholson was beaten and seriously in-jured by her daughter s father , Mr. Barnett. Id.169. This was the first and only time that Ms.Nicholson had been beaten by Mr. Barnett , who livedin another state. Id. Even though the ACS case-


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worker knew that he did not have legal authorizationto keep the children in custody, he testified "that hewas hoping Ms. Nicholson would cooperate with hisdemands in order to avoid going to court. Id. at 170.He further explained that it was common to waitfew days before seeking a court order for removalbecause , after a few days of the children being infoster care , the mother will usually agree to ACS'conditions for their return without the matter evergoing to court. Id. Although he had no evidencethat Ms. Nicholson s children would be subjected torepeated incidents of violence , and even though hedid not believe that Ms. Nicholson was neglectfulthe caseworker "hoped that 'once she got before theJudge , that the Judge would order her to cooperatewith realistic services to protect herself and the twochildren. Id. at 171 (quoting testimony). Ms.Nicholson was separated from her children for 21days and ordered to cooperate with ACS supervisionuntil it eventually dismissed its neglect petitionseven months later. Id. at 172- 173.

Ms. Nicholson s experience was not unique. Al-though the court held that the ACS policy of pre-sumptively removing children from non-abusive bat-tered mothers was unconstitutional and ordered itsdiscontinuation id. at 251 , the case reveals systemicdisregard in the child welfare system for the rights ofdomestic violence victims. The disregard for victimsrights and use of overly aggressive tactics thatNicholson so thoroughly documents are not isolatedto that case or New York. Rather, similar tacticswhich re-victimize battered mothers and their chil-dren , are routinely observed by amici curiae in myr-iad subtle and not-so-subtle forms. As Nicholson


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demonstrates , given the many factors which cancause well-meaning CPS and law enforcement agentsto undervalue and infringe victims ' rights , FourthAmendment safeguards are especially important.II. Given The Risk Of Unreasonable State

Intrusions, Victims And Witnesses OfAbuse Are Entitled To Full FourthAmendment Protection.A. The Fourth Amendment's Concerns

With Preventing Arbitrary Govern-ment Intrusions Are ParticularlyRelevant In Cases Involving Domes-tic Violence.

Given the potentially severe consequences ofstate interventions in cases of suspected intra-familyviolence and the likelihood for state agents to violateconstitutional limits, the Fourth Amendment re-quires safeguards to ensure that searches and sei-zures are not conducted arbitrarily. The "cardinalprinciple" of Fourth Amendment jurisprudence isthat searches and seizures "conducted outside thejudicial process , without prior approval by judge ormagistrate , are per se unreasonable under theFourth Amendment-subject only to a few specifi-cally established and well-delineated exceptions.Katz v. United States 389 U.S. 347 , 357 (1967). Asthe Court explained in setting out the balancing testfor assessing the reasonableness of seizures "less in-trusive than a traditional arrest"

A central concern in balancing these compet-ing considerations in a variety of settings hasbeen to assure that an individual's reason-


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able expectation of privacy is not subject toarbitrary invasions solely at the unfettereddiscretion of officers in the field.To this endthe Fourth Amendment requires that a sei-zure must be based on specific , objective factsindicating that society s legitimate interestsrequire the seizure of the particular individ-ual, or that the seizure must be carried outpursuant to a plan embodying explicit , neu-trallimitations on the conduct of individualofficers.

Brown v. Texas 443 U.S. 47 , 50-51 (1979); see alsoCamara v. Municipal Court 387 U.S. 523 , 528 (1967)The basic purpose of this Amendment, as recog-nized in countless decisions of this Court , is to safe-guard the privacy and security of individuals againstarbitrary invasions by governmental officials. ). Inthis scheme , the probable cause standard "reflectsthe benefit of extensive experience accommodatingthe factors relevant to the 'reasonableness ' require-ment of the Fourth Amendment , and provides therelative simplicity and clarity necessary to the im-plementation of a workable rule. Dunaway v. NewYork 442 U.S. 200, 213 (1979) (citation omitted).Furthermore , the warrant requirement serves a cru-cial purpose in ensuring that the rights of the indi-vidual are not "subject to the discretion of the officialin the field. Camara 387 U.S. at 533.

The constitutional imperative to restrain thediscretion of agents in the field has particular rele-vance in cases involving child welfare and domesticviolence. As the National Council of Juvenile &Family Court Judges has recognized:


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Because domestic violence encompasses awide range of behaviors-from the extremelydangerous to the less serious-families re-quire a range of interventions , some of themvoluntary and some mandated. To createsafety and stability for families requires care-ful assessment of risk and the capacity tomake differential responses.

National Council of Juvenile & Family Court Judgessupra at 24. The Fourth Amendment's require-ments for probable cause and review by a judicial of-ficer are critical to ensure that risks are carefully as-sessed and appropriate responses identified, particu-larly because pervasive biases and misconceptionsare so likely to affect the judgment of CPS and lawenforcement agents in these cases.

B. Nothing In The Court's Jurispru-dence Suggests That Witnesses AndVictims Are Entitled To Less Protec-tion Under The Fourth Amendment.Had S.G. been suspected of committing a crimeher seizure and custodial interrogation in a room shewas not free to leave without valid consent or exigent

circumstances would have required a warrant sup-ported by probable cause. See Florida v. Royer, 460S. 491 , 496 (1983). Yet, because she was suspectedof being a victim and a witness , rather than a crimi-nal, petitioners argue that those traditional FourthAmendment protections did not apply. "It is surelyanomalous to say that the individual and his privateproperty are fully protected by the Fourth Amend-ment only when the individual is suspected of crimi-nal behavior. Camara 387 U.S. at 530. Indeed


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nothing in this Court's jurisprudence supports thenotion that the Fourth Amendment affords innocentvictims or witnesses less protection from governmentintrusion than persons suspected of committingCrIme.

Petitioners wrongly assert that, under theCourt's decision in Illinois v. Lidster 540 U.S. 419(2004), the Fourth Amendment requirements for awarrant and probable cause have no applicationwhen a person who is seized for the purpose of gath-ering information is not suspected of wrongdoing.(See Petro Alford's Br. 23-25; Petro Camreta s Br. 19-21.) The Court made no such ruling. In Lidster theCourt addressed only the circumstances of the sei-zure at issue , in which police briefly stopped allmotorists passing by the location of the hit-and-runaccident. It said nothing about the applicability ofindividualized suspicion to seizures like the one inthis case , in which a particular individual was seizedand interrogated for two hours precisely because shewas suspected of being an abuse victim.

Moreover , the Lidster ruling is inapposite herebecause , in finding that the traffic stops were consti-tutional, the Lidster Court repeatedly emphasizedthat they were brief and minimally intrusive. Lid-ster 540 U.S. at 425-427. In contrast , where theperson seized by the state is potentially a victim aswell as a witness of abuse , the intrusion on libertycaused by a warrantless, nonconsensual custodialinterrogation is vastly greater than the intrusioncaused by a brief traffic stop. The degree of intru-siveness is evaluated both objectively-as "measuredby the duration of the seizure and the intensity of


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III. Relaxing Fourth Amendment StandardsFor Child Protection Investigations WillDiminish Fourth Amendment RightsDomestic Violence Investigations.Petitioners argue that the custodial interrogationof a suspected child abuse victim without any of thetraditional Fourth Amendment requirements- , awarrant, probable cause , parental consent , or exigentcircumstances-is reasonable because the statestrong interest in child protection and lack of practi-

cal alternatives outweighs the purportedly minimalprivacy interests of children in public school. (Ptr.Alford' s Br. 36-53; Ptr. Camreta s Br. 10- , 24-34.N one of petitioners ' stated reasons justifies deviatingfrom traditional Fourth Amendment requirements.However, if the Court accepts petitioners' reasoningand creates a lesser standard of Fourth Amendmentprotection for the seizure of S. G. in this case , it willopen the door to diminished Fourth Amendmentrights in other circumstances. In particular, the jus-tifications petitioners offer to excuse the seizure ofG. would logically extend to seizures in other cir-cumstances where children are not suspected victimsof abuse , but where the state maintains a strong in-terest in the child, in law enforcement, or in someother social good. For instance , because childrenwho witness domestic violence may be harmed seediscussion supra Part LA. , there is no rational rea-son why these proffered justifications would notpermit the state to seize and interrogate a child whois not herself abused, but is a witness to violenceagainst a parent. Nor is there a logical limit in peti-tioners' reasoning to prevent the state from seizingand interrogating an adult victim of domestic vio-


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lence in certain circumstances in which her expecta-tions of privacy are reduced.

Petitioners (wrongly) rely on the following pur-ported grounds for a reduced Fourth Amendmentstandard in this case: (1) the state s strong interestin child protection (Ptr. Alford's Br. 36-39; Ptr. Cam-reta s Br. 24-26); (2) the difficulty of establishingprobable cause where the victim may be the onlywitness (Ptr. Alford's Br. 41; Ptr. Camreta s Br. 1126-28); (3) the impracticality of obtaining a warrantdue to the urgent need for protection (Ptr. Alford'Br. 44-46); and (4) reduced privacy expectations ofvictims (Ptr. Alford's Br. 50-53; Ptr. Camreta s Br.30-33). Each of these rationales could be applied incases of domestic violence. However , none of themlegitimately justifies reduced Fourth Amendmentprotections.

With regard to the first rationale , the state s in-terest in child protection , as already discussed , maybe implicated where a child is exposed to domesticviolence. See discussion supra Part LA. In cases ofdomestic violence , the state has additional importantinterests in protecting the adult victim and punish-ing the offender. See Georgia v. Randolph 547 U.103 , 117 (2006) (recognizing that domestic violence isa serious problem). Yet however compelling thestate s interest may be , that alone cannot justify theinvestigatory seizure of a victim because the seizureis likely to be highly intrusive and damaging, and toactually disserve the state s interest.

Likewise , petitioners' argument that a probablecause standard is impractical in cases of suspectedchild abuse could also be made in situations of do-


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mestic violence because both forms of abuse typicallyoccur in private , the victims may be the only wit-nesses , and they may be reluctant to disclose theirabuse. It is true that , for a variety of rational rea-sons , including fear of increased violence , many vic-tims are reluctant to disclose their abuse. See supranote 5. However, petitioners have not establishedthat this reluctance is so pervasive that the probablecause standard is per se infeasible. Even if a victimis unwilling to disclose the abuse , it may be possibleto obtain probable cause through less intrusivemeans , such as voluntary interviews of other personswho may have relevant knowledge. Moreover , if avictim is truly unwilling to talk, there is little reasonto believe that she will provide reliable informationwhen seized and compelled to endure an interroga-tion. For these reasons , the dificulty of meeting aprobable cause standard in some instances of sus-pected intra-family abuse cannot justify the erosionof Fourth Amendment rights in all such cases.

Similarly, petitioners' rationale that urgencymakes it impractical to obtain a timely warrant couldapply equally in domestic violence cases , as in casesof child abuse. See, e. , United States v. Brooks , 3673d 1128, 1136 (9th Cir. 2004) (finding domesticviolence situations may present exigent circum-stances permitting warrantless police entry); Tierneyv. Davidson 133 F.3d 189 , 197 (2d Cir. 1998) (same);State v. Greene 162 Ariz. 431 , 433 , 784 P.2d 257 , 259(Ariz. 1989) (same). However , the possibility thatCPS and law enforcement officers may sometimesneed to take action for the protection of abuse vic-tims before they have time to obtain a warrant does

not justify a departure from traditional Fourth


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Amendment requirements in all cases becausewhere exigent circumstances truly exist , the FourthAmendment already permits searches and seizureswithout a warrant. See Brigham v. Stuart 547 U.398 , 403 (2006).

Finally, petitioners' argument that the seizure inthis case was justified because schoolchildren havereduced expectations of privacy could be extendedlogically to circumstances in which adult victims ofdomestic violence subject themselves to diminishedprivacy rights by seeking help they need. Thusthere is a risk that the petitioners ' rationale for al-lowing warrantless interrogations of children inschools may be used to justify coercive questioning ofadult domestic violence victims in certain settings.For example, in some states , domestic violence vic-tims who receive welfare may have reduced expecta-tions of privacy in their own homes. Wyman v.James 400 U.S. 309, 326 (1971) (holding that noFourth Amendment privacy rights are violatedwhere a state conditions the receipt of welfare bene-fits on consent to home visits); Sanchez v. County ofSan Diego 464 F.3d 916 , 922-923 (9th Cir. 2006)(same). In addition , Petitioner Camreta argues thatstatutes requiring public school personnel and cer-tain other persons to report child abuse and neglectdiminish children s legitimate expectations of pri-vacy. (Ptr. Camreta s Br. 32-33.) If this premise isaccepted by the Court , similar laws in states that re-quire medical personnel to report domestic violence, more generally, injuries by non-accidental , crimi-nal or violent means , would likewise diminish theprivacy expectations of domestic violence victimswhen they seek treatment for injuries. See T. Scalzo


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Reporting Requirements for Competent Adult Victimsof Domestic Violence (April 21 2006),http://www . usmc- mccs.org/famadv/ (follow "Restrict-ed Reporting Resources" hyperlink; then follow "Na-tional Domestic Violence Reporting Requirementshyperlink).

Given all of these parallels , a ruling exemptingany form of child welfare investigatory seizure fromthe warrant and probable cause requirements haspotential application in circumstances very differentfrom S. s seizure in this case.


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CONCLUSIONIn the event that the Court reaches the merits of

this case , it should rule that a warrant (or compara-ble court order) supported by probable cause to be-lieve that a child has been abused, parental consentor exigent circumstances are required before childprotective services or law enforcement agents mayseize and interrogate suspected victims of childabuse. Such a rule is necessary to protect suspectedvictims of intra-family abuse from unreasonablehighly intrusive , and potentially damaging state in-terventions in their lives.

Respectfully submittedLauren E. HandelCounsel of RecordMalinda MorainMcDermott Will & Emery LLP340 Madison AvenueNew York , NY 10173(212) 547-5400lhandel mwe.commmorain~mwe. comAttorneys for Amici Curiae

January 2011

Documents

Camreta v Greene Brief of Battered Womens Resource Center, et al