County of San Diego, California v. Mark Mann, et al.

When children in the County of San Diego are temporarily removed from their parents’ care based on suspicion that they have been abused or neglected, they are placed in protective custody at Polinsky Children’s Center, a residential emergency shelter operated by the County. There, they receive a 10-15 minute diagnostic medical examination by a pediatrician, to determine if they have any immediate medical needs and to protect other children from contagious disease. The parents are not notified and are not invited to attend the examination. The questions presented are:

1. Does a parent claiming substantive due process violations need to demonstrate that the County’s conduct “shocks the conscience” (as five Circuits have held), or do omissions by the County—i.e., the lack of obtaining parental notice and consent—alone result in municipal liability (as the Ninth Circuit held below)?

2. Are parental notice and consent (or a court order) prerequisites to a child’s medical examination, even if (i) the exams are diagnostic and do not involve treatment decisions; and (ii) any investigatory purpose of the examinations is incidental to the primary purposes of protecting the child’s health and preventing the spread of contagious disease?

3. In conducting its “special needs” balancing test under the Fourth Amendment, did the Ninth Circuit err by disregarding the government’s interest in protecting the health of other children and Center staff?