Franz v. Lytle

997 F.2d 784, 1993 WL 229896
Court of Appeals for the Tenth Circuit·Decided June 29, 1993·No. No. 92-3183·Published·Cited by 24 cases

Opinion

JOHN P. MOORE, Circuit Judge.

Richard Lytle, an officer with the Hays-ville, Kansas Police Department, appeals the denial of his motion for summary judgment based on his qualified immunity from plaintiffs’ suit alleging violations of their Fourth and Fourteenth Amendment rights. Franz v. Lytle, 791 F.Supp. 827 (D.Kan.1992). On appeal, Officer Lytle contends the district court erred in distinguishing his conduct as a police officer investigating a report of possible child neglect or abuse from that of a social worker performing the same function [785] but for whom the probable cause or warrant requirement has been eliminated. Against the societal imperative to protect children, particularly young children suspected of being victims of neglect or abuse, plaintiffs’ interests in privacy must yield, Officer Lytle maintains. It is, however, because of our deep concern for the safety and well-being of young children that we disagree and, under the circumstances of this case, do not balkanize the Fourth Amendment as recommended. We affirm the district court’s judgment.

I.

The following facts, set forth in the district court’s opinion and viewed in a light most favorable to the nonmoving parties, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2605, 91 L.Ed.2d 202 (1986), were presented for our plenary review. On October 19, 1988, police dispatch contacted Officer Lytle to investigate a report of a child who was possibly in need of care. That report had been called in by Ms. Susan Brickley,1 who told police her neighbors’ two-year-old daughter, Ashley Franz, was unsupervised, wet, and unclean. Late that afternoon, Officer Lytle went to Ms. Brickley’s home where Ashley was playing. Ms. Brick-ley told Officer Lytle Ashley had a severe diaper rash and stank from constantly being urine-soaked. Without contacting Ashley’s mother, Officer Lytle asked Ms. Brickley to remove Ashley’s diaper. Ms. Brickley laid Ashley down on the living room floor and removed her diaper permitting Officer Lytle to observe the child’s vaginal area and take five or six photographs of what he believed was a “very severe rash.” Officer Lytle then visited the home of Katherine and Timothy Franz, Ashley’s parents, telling Mrs. Franz he had just examined Ashley, and she would be contacted by Social and Rehabilitative Services (SRS).

Upon returning to headquarters, Officer Lytle contacted SRS, filled out a standard Kansas Bureau of Investigation (KBI) report, and consulted with Capt. Gary Johnson. According to Capt. Johnson’s report, Officer Lytle told Capt. Johnson he was investigating “a possible molesting case,” was concerned about “leaving the children at the home because of the risk factor that if there was a molestation case,” and “was shown the bruising of the vaginal area by the female caller.” Capt. Johnson advised Officer Lytle he might want to take the child for a medical examination so that a doctor could determine what caused the bruising and “alleviate the problem of protective custody.” Capt. Johnson also suggested Officer Lytle have a female officer accompany him when he returned to the house.

Late the following afternoon, after telephoning a former neighbor of the Franzes,2 Officer Lytle, accompanied by Officer Jeanette Schlabach, returned to the Franz home and requested to see Ashley again. Both officers were in uniform and carrying side arms. Mrs. Franz permitted them to enter her home and complied with their request to examine Ashley, removing her pants, laying her down on the floor, and spreading her legs apart as ordered.3 Kneeling over Ashley, Officer Lytle then touched her vaginal area in several places “checking for any soreness or swelling,” and Ashley’s reaction to his touch, asking her if the places he pressed hurt.4 Officer Lytle believed he saw some discoloration in the area.

In response to Mrs. Franz’s explanation she had been trying to “potty train” Ashley, Officer Lytle asked her to “voluntarily take her up to Wesley [Hospital] ER and let the Doctor look at her.” To her protests about the cost and her lack of transportation, Officer Lytle answered he could place Ashley in protective custody and “take her up there ourselves.” Upset, Mrs. Franz telephoned [786] her husband at work. Officer Lytle took the phone and told Mr. Franz he had received a report from SRS, checked it out, and “Ashley does have some type of discoloration, bruises, whatever it is on her legs and around her vaginal area and we need to have it checked.” Officer Lytle told Timothy Franz he could either take the child voluntarily, or they would take Ashley into protective custody.

Mr. Franz returned home, and he and Mrs. Franz, escorted by the officers, drove to Wesley Hospital where Ashley was examined by an emergency room physician.5 Mrs. Franz and the officers remained in the examining room while Dr. Davidson examined the child, concluding Ashley had “mild redness to labial folds, no tears, bruising, or edema.” The officers apologized, and the Franzes returned home.

II.

Surviving in this appeal are plaintiffs’ Fourth Amendment and pendent state law claims based on invasion of privacy, trespass, and deprivation of liberty on which the district court denied defendant’s qualified immunity defense.6 To reach this result, the district court tethered summary judgment review to Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), and Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), and framed its crucial inquiry as “whether, at the time defendants acted, it was clearly established law that a child abuse investigation conducted by police officers is subject to the probable cause or warrant requirements.” 791 F.Supp. at 830. Cognizant of a seeming split in the Circuits over this issue, the district court drew a bright line between law enforcement officers trained and “expected to know the subtleties of the probable cause and warrant requirements,” id. at 831, and social workers who “have no such fluency of the legal standards.” Id. The court found at all times defendant was conducting a criminal investigation involving searches “aimed at uncovering incriminating evidence of sexual abuse by one or both of the parents.” Id. This conduct, the court held, was circumscribed by the Fourth Amendment which “clearly prohibited police officers from conducting warrantless searches of a home and a child’s body for evidence of criminal sexual abuse absent consent or exigent circumstances or any of the recognized exceptions to the warrant requirement.” Id. at 831-32. Adding the Anderson v. Creighton prong to its analysis, the court further concluded no reasonable officer acting on the sole information provided, that Ashley was wet, unclean, and unsupervised, would “have believed that the searches were lawful.”7

III.

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Franz v. Lytle, 997 F.2d 784, 1993 WL 229896 (10th Cir. 1993).

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