Roe, et al v. TX Dept Protc & Regu

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,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Mary Roe and John Doe, as parents and
next friends of Jackie Doe, sued the Texas
Department of Protective and Regulatory Ser-
vices (“TDPRS”) and social worker Beverly
Strickland after Strickland visually searched

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

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3
After asking some questions, Strickland
told Mrs. Roe that she needed to take pictures
of Jackie. Strickland did not give the mother
the option of submitting to the examination
and pictures or refusing them. Strickland did
not disclose the type of pictures or extent of
the examination. Strickland acknowledges
that she could have requested a medical
examination but did not do so. She had re-
ceived no training in photography of
children’s genitalia.
Strickland asked Mrs. Roe to remove the
child’s upper clothing, so she could look for
bruises or marks. Strickland found none.
Strickland then asked Mrs. Roe to remove
Jackie’s underwear, so that Strickland could
see if anything was abnormal. Mrs. Roe asked
whether it was really necessary, and Strickland
responded “Oh, don’t worry. It’s more
stressful for the parent than it is the child.”
Strickland took pictures of Jackie’s vagina and
buttocks in a closed position, and then in-
structed Mrs. Roe to spread Jackie’s labia and
buttocks, so that she could take pictures of the
genital and anal areas. Although Mrs. Roe
asked a couple of times whether the
photographs were necessary, she never
requested that Strickland stop. Mrs. Roe
“teared up” as Strickland took the pictures,
but did not cry.
Mrs. Roe testified that Strickland never said
anything about removing the child from the
home. After taking the pictures, Strickland
interviewed Jackie for fifteen to twenty
minutes. Strickland and Mrs. Roe had another
brief discussion, and Strickland left.
Plaintiff’s expert, Lawrence Daly, testified
by affidavit that Strickland could not have be-
lieved in good faith that the examination and
pictures were necessary. Woods testified that
she would not have taken the pictures but
opined that the decision to do so lay within
Strickland’s discretion. Robert Brown, a Pro-
gram Director at CPS, described the visual ex-
amination and pictures as appropriate because
“caseworkers are trained to find and document
all available evidence during their
investigations.” After Mrs. Roe’s attorney
complained to CPS, Woods reassigned the
case to Michelle Carter. CPS “ruled out”
abuse and closed the case.
Jackie subsequently experienced frequent
nightmares involving the incident, and
exhibited anxiety responses, for which she
underwent counseling. The symptoms
persisted for about six months. Mrs. Roe
experienced a loss of sleep, sadness, and
depression for the same period of time.
II.
Plaintiffs sued Strickland, TDPRS, and cer-
tain TDPRS officials under 42 U.S.C. § 1983,
alleging a violation of their Fourth Amendment
right to freedom from unreasonable searches,
Fourth and Fourteenth Amendment rights to
privacy, and Fourteenth Amendment liberty
interests. They also asserted state law claims
of invasion of privacy, intentional infliction of
emotional distress, false imprisonment,
trespass, and negligent failure to train and
supervise.
Defendants filed a motion to dismiss and a
motion for a reply under FED. R. CIV. P. 7.
After plaintiffs filed a rule 7 reply, the court
dismissed all defendants but Strickland, who
then moved for summary judgment, asserting
qualified immunity to the § 1983 claims and
official immunity to the state law claims. The
court denied the motion, whereupon
Strickland filed her interlocutory appeal.

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

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

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6
Mrs. Roe did not respond, and Strickland went
into the house.
Silence or passivity cannot form the basis
for consent to enter.5 But, Strickland relied on
far more than Mrs. Roe’s mere silence. Over
the phone, Strickland had identified herself as
a CPS employee and explained the general
purpose of her visit, and Mrs. Roe had agreed
to an appointed time for the home interview.
After that conversation, Strickland justi-
fiably believed she had the right to enter. To
rebut that justifiable belief, Mrs. Roe cannot
rely only on her silence or passivity. Requiring
Mrs. Roe to rescind her initial invitation does
not relax the consent standard or encourage
social workers to enter homes without per-
mission. Although they still must obtain the
parent’s verbal, affirmative consent before
conducting an investigative home interview,
they need not obtain that consent again when
they appear at the parent’s doorstep.
It follows that the district court erred in
holding that Mrs. Roe had not consented to
Strickland’s entry; the court should have dis-
missed Mrs. Roe’s Fourth Amendment claim.
Because, under the first step of the Siegert
methodology, Strickland did not violate Mrs.
Roe’s Fourth Amendment rights, we need not
advance to the second step of the Siegert test
to address whether those rights were “clearly
established.”
V.
We next evaluate Jackie’s Fourth
Amendment claim against Strickland for the
visual body cavity search and pictures. Mary
and John Doe assert this claim on Jackie’s
behalf. We answer the first prong of the
Siegert test by concluding that Strickland did
violate Jackie’s Fourth Amendment rights, but,
moving to the second part of that test, we
determine that those rights were not clearly
established on July 10, 1999, so Strickland is
entitled to qualified immunity.6
5 In United States v. Vega, 221 F.3d 789, 797
(5th Cir. 2000), we held that a suspect did not
consent when he lied about whether he lived in a
house and failed to object to the subsequent search.
In United States v. Jaras, 86 F.3d 383, 390 (5th
Cir. 1996), the panel refused to find consent where
the officer did not ask for permission and the
suspect did not grant permission but stood by as
the officer searched. Finally, in United States v.
Cooper, 43 F.3d 140, 145 n.2 (5th Cir. 1995), we
explained that “nonresistance may not be equated
with consent.” In United States v. Varona-Algos,
819 F.2d 81, 83 (5th Cir. 1987), we reached a
contrary result, upholding the conclusion that the
suspect “had impliedly consented to the search by
standing by and equivocally acknowledging the bag
was his and allowing the trooper to go ahead
without any objection.”
Varona-Algos, however, predates the Supreme
Court’s shift to an objective standard for
determining whether a suspect has consented to a
search. We have recognized that the change in Su-
preme Court doctrine abrogated Varona-Algos.
Jaras, 86 F.3d at 391 n.6 (citing Illinois v.
Rodriguez, 497 U.S. 177 (1990); Florida v.
Jimeno, 500 U.S. 248 (1991)).
6 The Supreme Court has made plain that we
should consider whether the public official has vi-
olated a constitutional right before we consider
whether that right was “clearly established.” Wil-
son v. Layne, 526 U.S. 603, 609 (1999) (“A court
required to rule upon the qualified immunity issue
must consider, then, this threshold question: Taken
in the light most favorable to the party asserting the
injury, do the facts alleged show the officer’s
conduct violated a constitutional right?”); County
of Sacramento v. Lewis, 523 U.S. 833, 842 n.5
(1998) (“[T]he better approach to resolving cases
(continued...)

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7
A.
The district court held that the Fourth
Amendment requires social workers to show
probable cause and obtain a court order,
receive consent, or act in response to exigent
circumstances to search visually, and to
photograph, a child’s body cavities. On
appeal, Strickland argues that the court should
have applied the “special needs” balancing test
instead. She contends that the anonymous
hotline call justified her search under the more
lenient test.
We have not addressed which Fourth
Amendment test should apply to a social
worker’s visual search of a child’s body
cavities, and the ot her courts of appeals are
divided. The Seventh Circuit has held that a
child protective services worker need only sat-
isfy the lesser special needs test and not the
more rigorous probable cause requirement.7
The Third, Ninth, and Tenth Circuits have re-
jected the Seventh Circuit’s approach and ap-
ply instead the traditional Fourth Amendment
standard to juvenile strip searches.8 The Sec-
ond Circuit has taken an intermediate position:
Even if social workers need not satisfy the
probable cause and warrant requirement in all
cases, they must obtain prior judicial approval
when doing so would not threaten the child’s
well-being.9 To take sides in this inter-circuit
conflict, we focus on Supreme Court
precedent establishing the “special needs”
doctrine.
In “special needs” cases, the Court has
carved out an exception to the warrant and
probable cause requirement. Public officials
can justify warrantless searches with reference
to a “special need” “divorced from the State’s
general interest in law enforcement.”
Ferguson v. City of Charleston, 532 U.S. 67,
6(...continued)
in which the defense of qualified immunity is raised
is to determine first whether the plaintiff has
alleged the deprivation of a constitutional right at
all.”).
7 Darryl H. v. Coler, 801 F.2d 893, 901 (7th
Cir. 1986) (“On this record, we believe that the
district judge was correct in holding that the
searches in question here could be conducted with-
out meeting the strictures of probable cause or the
warrant requirement.”); Landstrom v. Ill. Dep’t of
Children & Family Servs., 892 F.2d 670, 676-77
(7th Cir. 1990) (stating that Darryl H. did not
“clearly establish” child’s right not to take off her
underpants when school official searched for
evidence of physical abuse). The Fourth Circuit
applies the more lenient standard to social workers
investigative home visits, suggesting that it might
follow the Seventh Circuit. Wildauer, 993 F.2d at
372 (citing Wyman v. James, 400 U.S. 309, 318
(continued...)
7(...continued)
(1971)).
8 The Third and Ninth Circuits have held that a
social worker must satisfy the warrant and prob-
able cause requirements to conduct a strip search
of a child. Good, 891 F.2d at 1092 (evaluating
search of home and strip search of child under the
probable cause and warrant standard); Calabretta,
189 F.3d at 817-18 (applying warrant and
probable cause requirement to coerced strip search
of three-year-old child in her own home). The
Tenth Circuit has held that a police officer must
obtain a search warrant before entering a home and
conducting a strip search of an infant. Franz v.
Lytle, 997 F.2d 784, 791 (10th Cir. 1993).
9 Tennenbaum v. Williams, 193 F.3d 581, 604-
05 (2d Cir. 1999) (requiring judicial approval
where social workers removed five-year-old from
school without parents’ knowledge and had phy-
sician perform gynecological exam).

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8
79 (2001). Special needs justify, for example,
a principal’s search of a student’s purse for
drugs in school; a public employer’s search of
an employee’s desk; a probation officer’s war-
rantless search of a probationer’s home; a Fed-
eral Railroad Administration regulation
requiring employees to submit to blood and ur-
ine tests after major train accidents; drug test-
ing of United States Customs Service employ-
ees applying for positions involving drug inter-
diction; schools’ random drug testing of
student athletes, and drug testing of all public
school students participating in extracurricular
activities.10 In all these cases, the Court
judged the search’s lawfulness not by
“probable cause” or “reasonable suspicion” but
by “the standard of reasonableness under all of
the circumstances.” O’Connor, 480 U.S. at
725-26.
We must narrow these diverse cases to
those most analogous to Strickland’s visual
body cavity search. Strip searches implicate
fundamental Fourth Amendment rights.11 Al
10 New Jersey v. T.L.O., 469 U.S. 325, 341
(1985) (“[T]he accommodation of the privacy
interests of schoolchildren with the substantial need
of teachers for . . . order in the schools does not
require strict adherence to the requirement that
searches be based on probable cause . . . .”);
O’Connor v. Ortega, 480 U.S. 709, 728 (1987)
(“[P]ublic employer intrusions on the
constitutionally protected privacy interests of gov-
ernment employees for non-investigatory, work-
related purposes, as well as for investigations of
work-related misconduct, should be judged by the
standard of reasonableness under all the circum-
stances.”); Griffin v. Wisconsin 483 U.S. 868,
873-74 (1987) (“A State’s operation of a probation
system, like its operation of a school, government
office or prison, or its supervision of a regulated
industry, likewise presents ‘special needs’ beyond
normal law enforcement that may justify
departures from the usual warrant and probable-
cause requirements.”); Skinner v. Ry. Labor Exec-
utives Ass’n, 489 U.S. 602, 620 (1989) (“The . . .
interest in regulating the conduct of railroad em-
ployees to ensure safety, like its supervision of
probationers or regulated industries, or its
operation of a government office school or prison
. . . presents ‘special needs’ beyond normal law en-
forcement that may justify departures from the
usual warrant and probable-cause requirements”)
(continued...)
10(...continued)
(citations and internal quotations omitted); Nat’l
Treasury Employees Union v. Von Raab, 489 U.S.
656, 666 (1989) (permitting drug testing by
Customs’ service because of critical safety
concerns and results were not made available to
law enforcement); Veronia Sch. Dist. v. Acton, 515
U.S. 646, 657-58 (1995) (upholding uniform poli-
cy of suspicionless searches of student athletes);
Bd. of Educ. v. Earls, 2002 U.S. LEXIS 4882, at
*15 (U.S. June 27, 2002) (No. 01-332) (holding
that special needs “inhere in the public school
context”).
11 Bell v. Woolfish, 441 U.S. 520, 594 (1979)
(Stevens, J., dissenting) (describing body cavity
searches as “clearly the greatest personal
indignity”); Moore v. Carwell, 168 F.3d 234, 236-
37 (5th Cir. 1999) (holding that strip search of
female prisoner in front of male guards might vio-
late Fourth Amendment right to privacy); Watt v.
City of Richardson Police Dep't, 849 F.2d 195,
199 (5th Cir. 1988) (finding that strip search of
arrestee based on twenty-year-old minor drug of-
fense violated the Fourth Amendment); Mary Beth
G. v. City of Chicago, 723 F.2d 1263, 1272 (7th
Cir. 1983) (describing strip searches as “de-
meaning, dehumanizing, undignified, humiliating,
terrifying, unpleasant, embarrassing, repulsive,
signifying degradation and submission”); Scott A.
Gartner, Note, Strip Searches of Students: What
Johnny Really Learned at School and How Local
School Boards Can Help Solve the Problem, 70 S.
(continued...)

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9
though none of the “special needs” cases in-
volved strip searches or nudity, the Court has
long held that citizens have an especially
strong expectation of privacy in their homes.12
We therefore begin by examining the Court’s
two cases applying the “special needs”
doctrine to investigative home searches.
In Wyman, 400 U.S. at 318, the Court
upheld a New York law conditioning
continued Aid to Families with Dependent
Children benefits on permitting a home visit.
The Court applied a general reasonableness
test rather than requiring a warrant and
probable cause. Id. Wyman, however, does
not govern the instant case. First, the
application of the general reasonableness test
was dictum: The Court held that the visitation
was not a search because criminal law did not
compel it; the aid recipient could decline the
benefits and no search would take place. Id. at
317-18. Second, the visitation promoted the
statutory goal of ensuring a decent living
standard for dependent children, the recipients
received advanced notice, and the social
workers did not target recipients based on
individualized suspicion. Id. at 318, 320-21,
323. All AFDC recipients had to endure
visitation; the government did not single out
individual recipients based on potential
criminal liability.
In Griffin, 483 U.S. at 872, the Court up-
held a Wisconsin statute permitting probation
officers to search probationers’ homes based
on “reasonable grounds.” The Court reasoned
that the operation of the probation system pre-
sents “special needs beyond normal law en-
forcement.” Id. at 874. The Court
distinguished the maintenance and operation of
a prison or punitive regime from “generalized
law enforcement.” Id. Probation sits at the
most lenient point on a continuum of
punishments, but the state retains valid
interests in rehabilitating the criminal and
protecting society. Id. at 874-75. A warrant
requirement would divest the state of its
control over the punished probationers,
residing outside of the prison’s walls at the
state’s discretion. Id. at 876. The special
status of probationers and the state’s
independent interests justify lowering the
probable cause and warrant requirements. Id.
at 878.
Griffin addresses searches based on
particularized suspicion, but it does so in the
special context of probationers. Probationers
waive many of their privacy rights and have a
much lower subjective expectation of privacy
in the home; a warrant requirement would
interfere with the special needs raised by their
11(...continued)
CAL. L. REV. 921, 930-31 (1997) (describing emo-
tional impact of strip searches).
12 “[P]hysical entry into the home is the chief
evil against which the . . . Fourth Amendment is
directed.” United States v. United States Dist. Ct.,
407 U.S. 297, 313 (1972). “At the very core [of
the Fourth Amendment and the personal rights it
secures] stands the right of a man to retreat into his
own home and there be free from unreasonable
governmental intrusion.” Silverman v. United
States, 365 U.S. 505, 511 (1961). See also Payton
v. New York, 445 U.S. 573, 586 (1980) (“It is a
‘basic principle of Fourth Amendment law’ that
searches and seizures inside a home without a
warrant are presumptively unreasonable.”);
Coolidge v. New Hampshire, 403 U.S. 443,
474-75 (1970) (“It is accepted, at least as a matter
of principle, that a search or seizure carried out on
a suspect’s premises without a warrant is per se
unreasonable, unless the police can show that it
falls within one of a carefully defined set of ex-
ceptions based on the presence of ‘exigent cir-
cumstances.’”).

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10
rehabilitation. Ferguson, 532 U.S. at 81 n.15
(“[W]e agree with petitioners that Griffin is
properly read as limited by the fact that
probationers have a lesser expectation of
privacy than the public at large.”). And the
Court bracketed the question whether the
routine use of probation searches to obtain
criminal convictions would violate the Fourth
Amendment.13
The home search cases underscore the
strength of Jackie’s privacy interest. As the
Seventh Circuit aptly explained in a decision
pre-dating its adoption of the special needs
test, “[i]t does not require a constitutional
scholar to conclude that a nude search of a
thirteen-year-old child is an invasion of
constitutional rights of some magnitude. More
than that: it is a violation of any known
principles of human decency.” Doe v.
Renfrow, 631 F.2d 91, 92-93 (7th Cir. 1980)
(per curiam); supra note 11.
The Court only rarely has permitted
“special needs” searches in the face of a
person’s strong subjective privacy interests. In
Wyman and Griffin, the searched persons
voluntarily surrendered a great deal of the
privacy interest in their homes. The Court has
never upheld a “special needs” search where
the person’s expectation of privacy was as
strong as is Jackie’s interest in bodily
privacy.14 The potency of her privacy interest
makes us reluctant to apply the “special needs”
doctrine.
The home search cases and the importance
of Jackie’s privacy interest give us pause; the
Texas social workers’ dual purposes and en-
tanglement with law enforcement resolve the
question. None of the previous courts of ap-
peals to address these issues had the benefit of
Ferguson, 532 U.S. 67, the Court’s recent de-
cision examining dual-purpose searches and
the special needs doctrine.
In Ferguson, 532 U.S. at 78-79, the Court
held that the higher probable cause and
warrant standard applies where a state
hospital’s drug testing of pregnant women
systematically threatened them with criminal
liability. The pregnant women who tested
positive faced either automatic criminal
indictment or forced diversion into a treatment
program. Id. at 73. The Court rejected the
argument that protecting the health of the
mother and child is a “special need” sufficient
to dispense with the warrant requirement. Id.
at 81.
Claimed special needs should receive “close
review.” Id. Where the “special need” is not
“divorced from the state’s general interest in
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
justify a program that would systematically
collect information for the police. Id. at 83-
84.
Strickland ultimately fails to identify a “spe-
13 Griffin, 483 U.S. at 876 n.3 (emphasizing
consent to search and absence of added legal pen-
alty for noncompliance); Skinner, 489 U.S. at 621
n.5 (“We leave for another day the question
whether routine use in criminal prosecutions of
evidence obtained pursuant to the administrative
scheme would give rise to an inference of pretext,
or otherwise impugn the administrative nature of
the FRA’s program.”).
14 The Court has permitted visual body cavity
searches only in the prison setting. See Bell.

-- 10 of 18 --

11
cial need” separate from the purposes of
general law enforcement. Identifying the goal
of protecting a child’s welfare and removing
him from an abusive home is easy;
disentangling that goal from general law
enforcement purposes is difficult. In
Ferguson, the Court also faced a quite
worthwhile goalSSpreventing the obvious and
severe health problems cocaine addiction
caused to pregnant mothers and unborn
infants. The Court could not, however, apply
the “special needs” test to such a program
where law enforcement was so deeply
involved.
Strickland appropriately points to the fact
that Texas law compels social workers to in-
vestigate allegations of sexual abuse; she ne-
glects, however, to mention that the Texas
statute deeply involves law enforcement in the
investigation. CPS has a duty to notify law
enforcement of any child abuse reports it re-
ceives. TEX. FAM. CODE ANN. § 261.105(b)
(West Supp. 2002). The district attorney may
request automatic notification of some or all
types of reported physical or sexual abuse.
Id. § 261.1055 (West Supp. 2002). Violating
these reporting duties can result in criminal
liability. Id. § 261.109 (West 1996). Finally,
investigations into allegations of physical or
sexual abuse are performed jointly with law
enforcement agencies. Id. § 261.301(f) (West
Supp. 2002).
Texas law describes social workers’
investigations as a tool both for gathering
evidence for criminal convictions and for
protecting the welfare of the child. Ferguson
teaches that we must apply the traditional
Fourth Amendment analysis where a child
protective services search is so intimately
intertwined with law enforcement.
Strickland argues that a visual body cavity
search often can disprove sexual abuse
allegations. Perhaps. But their necessity in
some cases does not say anything about social
workers’ need to perform warrantless searches
in non-exigent circumstances. The social
worker can take many preliminary steps short
of visual body cavity searches, such as
interviewing the child and the parents. In non-
exigent circumstances, the worker then has
time to obtain a warrant either personally to
conduct a visual body cavity search or to have
a physician perform it.
Social workers retain the power to seize a
child if “exigent circumstances” exist; if they
“have reason to believe that life or limb is in
immediate jeopardy,” they need not obtain a
court order. Tenenbaum, 193 F.3d at 604-05
(citation omitted). Here, CPS assigned the
case a priority 2 status, requiring Strickland to
take action in ten days and giving her plenty of
time to take other steps and/or seek a court
order. The Texas Family Code establishes a
procedure for obtaining such a court order.15
15 The Texas Family Code contemplates that
family courts may issue orders for entry into the
child’s home or school:
If admission to the home, school, or any
place where the child may be cannot be
obtained, then for good cause shown the
court having family law jurisdiction shall
order the parent, the person responsible for
the care of the children, or the person in
charge of any place where the child may be
to allow for entrance for the interview,
examination, and investigation.
TEX. FAM. CODE ANN. § 261.303 (West Supp.
2002).
(continued...)

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12
We conclude, therefore, that a social work-
er must demonstrate probable cause and obtain
a court order, obtain parental consent, or act
under exigent circumstances to justify the
visual body cavity search o f a juvenile.
Because Strickland admits that she did not
have probable cause and a warrant or face
exigent circumstances, she can establish the
constitutionality of her search only by showing
that Jackie, or Mrs. Roe acting on her behalf,
consented.
B.
The district court found that Mrs. Roe had
created a fact question on the issue of consent.
Strickland claims that Mrs. Roe consented by
failing to stop the search, removing Jackie’s
clothing, and spreading her private parts for
the photographs.
Although Mrs. Roe gave affirmative
consent to the home interview by scheduling a
home visit, she never verbally consented to the
visual body cavity search. Our caselaw teach-
es that silence or a failure to resist, standing
alone, cannot count as consent.16 Inferring
meaning from Mrs. Roe’s cooperation at each
step is even more problematic, because
Strickland did not even explain the purpose of
her visit until entering the house.
Strickland did not explain that she would be
photographing Jackie’s spread labia and anus
until she instructed Mary to do so. Strickland
even actively ignored Mrs. Roe’s protests.
Mrs. Roe asked whether she should call a
lawyer, questioned whether the invasive search
was necessary, and “teared up” while
Strickland took pictures. Strickland brushed
off Mrs. Roe’s questions and ignored these
signals. In the face of these signals, Strickland
at least had the obligation to give Mrs. Roe a
meaningful opportunity to deny consent.
In a similar case in which the mother
participated in the strip search, the Seventh
Circuit explained its refusal to find consent:
It is not permissible to hold, as a matter
of law that the mother’s assistance in the
procedure amounted to her consent.
Indeed, it is difficult to imagine a moth-
er, faced with the strip searching of her
two young children in a public building,
doing anything other than staying and
attempting, by her presence, to alleviate
the understandable apprehension of her
children.
Darryl H., 801 F.2d at 907. We conclude that
Mrs. Roe and Jackie created a fact question as
to whether Strickland violated Jackie’s Fourth
Amendment rights. We now turn to the
question whether those rights were “clearly
established” in 1999.
15(...continued)
Texas law also contemplates that a family court
may issue an order compelling a medical or
psychological evaluation:
If a parent or person responsible for the
child’s care does not consent . . . to a
medical, psychological, or psychiatric
examination that is requested by the
department or designated agency, the court
having family jurisdiction shall, for good
cause shown, order. . . the examination to be
made at the times and places designated by
the court.
TEX. FAM. CODE ANN. § 261.303 (West Supp.
2002). 16 Supra note 5.

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13
C.
1.
The district court decided that precedent
from other circuits had “clearly established” a
parent’s right to refuse the body cavity search
of his child absent probable cause; the court
found that any reasonable social worker would
have known that his actions raised serious
Fourth Amendment concerns. Strickland ar-
gues, to the contrary, that neither Supreme
Court nor Fifth Circuit precedent “clearly
established” such a right.
In Hope, the Court recently elaborated on
what is required for a particular right to be
“clearly established” in the context of qualified
immunity. Reiterating what it previously had
said, the Court explained:
For a constitutional right to be clearly
established, its coutours “must be suffi-
ciently clear that a reasonable official
would understand that what he is doing
violates that right. This is not to say
that an official action is protected by
qualified immunity unless the very action
in question has previously been held
unlawful, see Mitchell [v. Forsyth, 472
U.S. 511,] 535, n.12; but it is to say that
in the light of pre-existing law the
unlawfulness must be apparent.”
Anderson v. Creighton, 483 U.S. 635,
640 (1987).
Hope, 2002 U.S. LEXIS 4884, at *17.
The Court elaborated that “officials can still
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
salient question” for a court of appeals is
“whether the state of the law [at the time of
the state action] gave respondents fair warning
that their alleged treatment of [the plaintiff]
was unconstitutional.” Id.
2.
On July 10, 1999, Supreme Court and Fifth
Circuit precedent plainly established the fol-
lowing: (1) A strip or body cavity search rais-
es serious Fourth Amendment concerns, Watt,
849 F.2d at 199; and (2) The Fourth Amend-
ment governs the lawfulness of a social work-
er’s entry into a dwelling to resolve a child
custody dispute.17 Mary and Jackie need not
prove that “the very action in question has
previously been held unlawful.” Anderson,
483 U.S. at 640. We had not, however, ever
addressed whether the traditional test or the
“special needs” doctrine applies to a social
worker’s visual searches of naked juveniles.
This court had provided a little more
guidance than simply these general principles.
In Doe, 2 F.3d at 1420, we held that under the
Fourteenth Amendment a social worker could
subject a son and daughter to proctoscopic
and culdoscopic examinations to check for
abuse. Citing with approval the Seventh
Circuit’s decisions in Darryl H. and
Landstrom, we held that the social workers
could not have known that their efforts to
investigate abuse violated the family’s
Fourteenth Amendment right to privacy. Id.
We did not address the Fourth Amendment
question, id. at 1417, 1420, but to a
reasonable lay observer, Doe would have cast
doubt on a child’s constitutional right to refuse
a visual body cavity search.
17 In Franks, 717 F.2d at 186, we applied the
same Fourth Amendment, probable cause standard
to regulate the conduct of both a police officer and
a social worker.

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14
Even more importantly, in 1999 the
Supreme Court had not yet explained whether
agencies performing a legitimate “special
need” entangled with law enforcement need to
satisfy the probable cause standard.
Subsequently, in Ferguson, 532 U.S. at 77-78,
the Court distinguished previous drug testing
cases that employed a general reasonableness
balancing by emphasizing the hospital’s
“authority . . . to turn the results over to law
enforcement agents without the knowledge or
consent of the patients.”
The Supreme Court’s previously vague test
for finding a “special need” caused the federal
circuits to diverge over this precise substantive
question18 and to disagree again as to whether
the rights were “clearly established” for
purposes of qualified immunity.19 It is difficult
to argue that a matter of law is clearly
established for state actors in this circuit where
this court has not opined on the issue in
question and the other circuits are in dis-
agreement as to whether the challenged acts
constitute a constitutional violation.20 We
need not even reach the question whether, or
to what extent, the law of other circuits may
be relevant to our qualified immunity
jurisprudence, in the absence of plain guidance
from our own circuit’s caselaw, because here
the other circuits were inconsistent in their
treatment of the rights here alleged.
Mrs. Roe and Jackie also argue, however,
that even if the Fifth Circuit had not clearly
rejected the “special needs” doctrine in 1999,
Strickland’s actions violate the general
18 Supra notes 7-9.
19 The Third and Ninth Circuits held that the
children’s rights were clearly established. Good,
891 F.2d at 1083-84 (finding that sparsity of child
abuse cases does not justify officer or social work-
er’s violation of bedrock constitutional principles
about the privacy of the home and freedom from
body cavity searches); Calabretta, 189 F.3d at 813
(interpreting circuit precedent that prohibited police
officers from entering dwellings and resolving
custody disputes without warrants). The Second
and Seventh Circuits concluded that the Fourth
Circuit’s opinion in Wildauer justified refusing to
grant qualified immunity. Tenenbaum, 193 F.3d at
605 (finding qualified immunity for removal of
child from school and gynecological exam without
warrant or court order); Darryl H., 801 F.2d at
908 (granting qualified immunity in 1986 because
neither the Supreme Court nor any court of appeals
had addressed the constitutionality of child abuse
searches).
20 Wilson, 526 U.S. at 618 (“Between the time
of the events of this case and today’s decision, a
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
controversy.”); Mitchell, 472 U.S. at 534-35 &
n.12 (“[“[I]n cases where there is a legitimate
question whether an exception to the warrant
requirement exists, it cannot be said that a
warrantless search violates clearly established
law.”); Hall v. Thomas, 190 F.3d 693, 696-97 (5th
Cir. 1993) (finding law not clearly established,
partially because “neither the Fifth Circuit nor the
Supreme Court had spoken” and “a circuit split ex-
isted”); Gunaca v. Texas, 65 F.3d 467, 475 (5th
Cir. 1995) (finding circuit split relevant as to
whether right was clearly established); McDuffie v.
Estelle, 935 F.2d 682 (5th Cir. 1991) (“Absent
binding precedent in this circuit and faced with
somewhat conflicting decisions in the two circuits
which actually addressed the issue . . ., we cannot
say that the law . . . was clearly established.”). But
see Shipp v. McMahon, 234 F.3d 907, 915 (5th
Cir. 2000) (“[I]n determining whether a right is
clearly established, we are confined to precedent
from our circuit or the Supreme Court) (citation
omitted).

-- 14 of 18 --

15
reasonableness balancing test. By July 10,
1999, only the Seventh Circuit had applied the
“special needs” doctrine to a social worker’s
warrantless, visual body cavity search. In the
first such consolidated case, the Seventh
Circuit affirmed the refusal to grant a
preliminary injunction against the state
agency’s procedures; the court also affirmed a
summary judgment in favor of the social
workers because the child’s constitutional
rights were not clearly established. Darryl H.,
801 F.2d at 901. In the second case, the Sev-
enth Circuit held that the doctrine’s general
balancing test did not clearly establish the
child’s constitutional rights. Landstrom, 892
F.2d at 676.
The possibility existed that other courts
might have declared Strickland’s strip search
unconstitutional under the general balancing
test.21 A reasonable social worker in this cir-
cuit, however, knew only that Doe remained
the law and that the Supreme Court had grant-
ed public officials broad leeway under the
“special needs” doctrine.
Children’s protective services workers face
difficult decisions in the field. They must
make on-the-spot decisions regarding whether
to remove a child from a dangerous environ-
ment or whether, on the other hand, to make
the judgment call that the child is in no danger
and should remain with his family. Because
the array of factual situations is endless, so too
is the list of possible reactions to them. In July
1999, there was insufficient legal guidance,
even under the standard enunciated in Hope,
to inform a CPS worker that what Strickland
did in reaction to the reports received about
Jackie’s conduct ultimately would be
considered a constitutional violation.
With Doe on the books and the “special
needs” test governing, children’s rights against
these searches definitely were not “clearly
established.” Accordingly, on July 10, 1999,
Jackie’s rights, in the context of this case,
were not clearly established, so Strickland is
entitled to qualified immunity on the claim that
she unconstitutionally conducted a visual body
cavity search.
VI.
The district court also refused to grant
summary judgment on plaintiffs’ claims that
Strickland violated their Fourteenth
Amendment rights to family association and
bodily integrity. The Supreme Court,
however, has repeatedly held that where the
Fourth Amendment fully protects against a
particular government intrusion, courts cannot
consider substantive due process rights. The
Fourth Amendment fully embraces a parent or
child’s claim that a social worker has
unlawfully entered the home and conducted a
visual body cavity search. Plaintiffs therefore
cannot state a claim under the Supreme
Court’s substantive due process doctrine.
The Supreme Court has “always been re-
luctant to expand the concept of substantive
due process.” Collins v. City of Harker
Heights, Tex., 503 U.S. 115, 125 (1992). The
more-specific-provision rule established in
Graham v. Connor, 490 U.S. 386, 395 (1989),
reflects this reluctance.
In Graham, the Court held that “[b]ecause
the Fourth Amendment provides an explicit
textual source of constitutional protection
against this sort of physically intrusive
government conduct, that Amendment, not the
more generalized notion of ‘substantive due 21 The Second Circuit did so on October 13,
1999. Tenenbaum, 193 F.3d at 605-06.

-- 15 of 18 --

16
process,’ must be the guide for analyzing the
claims.” Id. The Court rejected the peti-
tioner’s claimed right to be free from arbitrary
exercises of government power that “shock the
conscience.” The Court did not cast doubt on
the pedigree of that particular substantive due
process right, but, instead, held that whenever
the Fourth Amendment fully protects against
an unlawful arrest, courts should not consider
the vaguer protections established by
substantive due process. Since Graham, the
Court has adhered to this principle in a variety
of contexts.22
The Fourth Amendment offered Mrs. Roe
and Jackie complete protection from
Strickland’s investigative home visit and visual
body cavity search. Mrs. Roe could have re-
fused to permit Strickland’s entry into the
home, and Strickland then would have been
forced to obtain a court order. Mrs. Roe re-
fused to consent to the strip search, and the
Fourth Amendment rendered that subsequent
search unlawful; that amendment fully
embraces the governmental action complained.
We therefore cannot consider plaintiffs’
substantive due process rights to family
association and bodily integrity.23
This analysis is consistent with other child
custody cases analyzing parents and children’s
rights to family association and bodily
integrity. In every one of the family as-
sociation cases, we conducted the substantive
due process analysis because the social worker
had removed the child from its family home.24
22 Lewis, 523 U.S. at 842-44 (analyzing
speeding motorcyclist’s suit for officers’ allegedly
reckless pursuit under substantive due process be-
cause no “seizure” had occurred, and pursuit fell
outside of Fourth Amendment’s scope); United
States v. Lanier, 520 U.S. 259, 272, n.7 (1997)
(finding that state judge’s rapes of courthouse
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
provision, such as the Fourth or Eighth
Amendment, the claim must be analyzed under the
standard appropriate to that specific provision, not
under the rubric of substantive due process.”);
Whitley v. Albers, 475 U.S. 312, 327 (1986) (“We
think the Eighth Amendment, which is specifically
concerned with the unnecessary and wanton
infliction of pain in penal institutions, serves as the
primary source of substantive protection to
convicted prisoners in cases such as this one, where
the deliberate use of force is challenged as
excessive and unjustified.”). In Albright v. Oliver,
510 U.S. 266 (1994) (plurality), the Justices dis-
agreed as to whether the Fourth Amendment’s
prohibition against unlawful arrests extended to a
malicious prosecution claim. Every writing Jus-
tice, however, agreed that if the Fourth Amendment
embraced the claim entirely, the Court could not
consider a separate substantive due process claim.
(continued...)
22(...continued)
Id. at 813 (Rehnquist, J., joined by O’Connor,
Scalia, and Ginsburg, JJ.); id. at 814 (Scalia, J.,
concurring); id. (Ginsburg, J., concurring); id. at
817 (Kennedy, J., joined by Thomas, J.,
concurring); id. at 820-21 & n.2 (Souter, J.,
concurring); id. at 305-06, 310 (Stevens, J., joined
by Blackmun, J., dissenting).
23 The Second and Seventh Circuits have taken
the same approach. Tenenbaum, 193 F.3d at 600
(refusing to analyze searches under substantive due
process). Cf. Darryl H., 801 F.2d at 901 n.7
(explaining that the court would use the same
analysis to evaluate Fourth and Fourteenth Amend-
ment claims).
24 Morris v. Dearborne, 181 F.3d 657, 671 (5th
Cir. 1999) (deciding that teacher violated right to
family integrity by falsifying sexual abuse charge
(continued...)

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17
In the bodily integrity cases, we often have
considered criminal assaults committed by
teachers and other persons to whom the
Fourth Amendment does not readily or easily
apply.25 Where the plaintiff alleges only harms
stemming from a social worker’s search, the
Fourth Amendment provides the sole means
for analysis.
VII.
The district court denied Strickland’s re-
quest for official immunity from the state law
claims. Mrs. Roe and Jackie argue that we
lack appellate jurisdiction over the district
court’s denial of Strickland’s official immunity
defense against the Texas state law claims.
A defendant may appeal an order denying
immunity under state law if “the state’s
doctrine of qualified immunity, like the federal
doctrine, provides a true immunity from suit
and not a simple defense to liability.” Sorey v.
Kellett, 849 F.2d 960, 962 (5th Cir. 1988).
Texas’s official immunity doctrine relieves
state officials of the burden of suit as well as of
liability for damages. Cantu, 77 F.3d at 804.
Consequently, we have jurisdiction to consider
the question of state, official immunity.
Roe then argues that we lack jurisdiction
because the district court’s denial of official
immunity turned on resolving a disputed issue
of factSSwhether Strickland acted in good
faith. The term “good faith” in Texas’s official
immunity cases is somewhat misleading. The
Texas Supreme Court defines the test as
objective and “derived substantially from the
test that has emerged under federal immunity
law for claims of qualified immunity in § 1983
cases.” City of Lancaster v. Chambers, 883
S.W.2d 650, 656 (Tex. 1994).26 Because the
24(...continued)
against father that led to three-year separation);
Kiser v. Garrett, 67 F.3d 1166, 1173 (5th Cir.
1995) (describing right as “nebulous, especially in
the context of a state’s taking temporary custody of
a child during an investigation of possible paternal
abuse”); Doe, 2 F.3d at 1418 (considering case
where social worker had fabricated charges of child
abuse, which led to temporary separation of two
children from their parents); Hodorowski v. Ray,
844 F.2d 1210, 1217 (5th Cir. 1988) (“[W]e do
not think that appellants in this case should have
known that their conduct in removing the
Hodrowski children from the home violated the
nebulous right of family integrity.”). See Wallis v.
Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000)
(finding Fourteenth Amendment created
substantive due process rights protecting against
removal).
25 Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443,
451-52 (5th Cir. 1994) (en banc) (finding
substantive due process bars teacher from
molesting student); Doe v. Rains County Indep.
Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995)
(“[W]e have little trouble concluding that the Does’
allegations are sufficient to establish that Sarah
suffered an actionable deprivation of her liberty
interest in freedom from sexual abuse by persons
wielding state authority.”); Fee v. Hardin, 900
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,
capricious, or wholly unrelated to the legitimate
state goal of maintaining an atmosphere conducive
to learning”); Jefferson v. Ysleta Indep. Sch. Dist.,
817 F.2d 303, 305 (5th Cir. 1987) (finding teacher
violated substantive due process by lashing second
(continued...)
25(...continued)
grade student to a chair for most of two school
days).
26 The Texas Supreme Court described the
standard in more detail as applied to the pursuit
(continued...)

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18
district court denied the state official immunity
defense for the same reasons it denied the
federal defense, we have jurisdiction.
Although the Texas Supreme Court
describes official immunity as similar to federal
immunities, we have difficulty evaluating the
claim of official immunity now that the
constitutional claims have been dismissed.
Dismissing those claims may not, however,
guarantee Strickland official immunity for the
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
jurisdiction under 28 U.S.C. § 1367. If the
court declines supplemental jurisdiction, it
should dismiss without prejudice so that
plaintiffs can pursue their claims in Texas state
court.
The order denying qualified immunity is
REVERSED. This matter is REMANDED for
consideration of the state law claims and for
further proceedings, as appropriate, in ac-
cordance with this opinion.
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.”).

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