much experience in prison work and criminal war strip search to me involves invasion into body cavities that occur in no your honor that did not occur in words it took the clothes off the child and tricked and took pictures of her right yes yeah what happened here that is what happened trouble made the photographs trouble me because it's a permanent record of the child's humiliation and shame but the fact that a strip search was done of her body to the private areas of her body troubles government workers have the option to intervene the child and she in fact denied injuries to interview the parent to test the credibility of the report then a search may be done was concerned it may be done with some kind of court order and of course there is always the at the chance circumstances that the child is julian some kind of danger then there's a fourth and then an exception there but we argue in this case  c private areas or significant violation of the fourth amendment we also argue that intruding into private areas without even telling her mother and then repeatedly lying to her mother about it that their mother couldn't provide comfort and support to cope with the trauma also violated the fourteenth amendment and shocks the conscience on the fourth amendment that at least as applied to this case you're arguing th what clearly established law can you cite for that proposition and your honor there's a there's a couple ways to approach that the clearly established law which in this case it's the fourth amendment for the southward into yellow standard requires that the search the reasonable in its inception unreasonable in its scope and this case simply did not meet that standard in addition we have tons circuit cases that certainly is clearly established the fourth minute of life to the social workers it applies to body searches we have clearly established law saying that the strip search is an intrusion into personal rights of the most serious magnitude and requires a mark on the further from you i think a partner thank you that a strip search would require a higher level of reasonableness because the seriousness of the intrusion into the right and so in this case the there would be a basic fourth amendment violation now the county  you would have to not have individualized suspicion which you had you would have to not have and tangle not with law enforcement purposes which you absolutely have under under colorado statute and it would have to be impracticable to get a warrant which is not true in colorado because you would on the district are on call but even if a special needs exception applied research is subjective you're on a first i would have you declare that the special needs doctrine not apply because for the reasons i've mentioned it doesn't fit here secondly we go back to the fourth and then that there could be child of being abused or inappropriately handled during an investigative process of as i understand it there are no allegations of that i don't we were told that children can be harmed minority children can be harmed even more so but there's i was not satisfied to find any kind of standard in the kind of you to to stay and preferably state that it's clearly established law that social workers must comply with the fourth amendment in other words they can do these deeply intrusive searches without needing the fourth fourth amendment violation because you're entering a home just that alone and then the fact that a child is taken from the home is sort of beyond belief but how does how does that parallel to what happened here here's a child  house so that this case is an intrusion into the private areas of the person's body which is the worst intrusion so we think about it we would rather a caseworker look in our kitchen than and our naked body and so balancing test and in this case what's balanced against those constitutional rights is the safety of the child involved the sidebottom is correct that there are a lot of cases that are directly on point as far as a child abuse investigation and the special needs often for a search however before i get ahead of myself what i would like to do is quickly tear through the fourteenth amendment claim i believe that it is a much quicker discussion what a plaintiff has are really two aspects that you'll see in my briefing and the first is the issue of the special needs doctrine and whether and to what extent that it applies to a child abuse investigation and the second is as qualified immunity so addressing that first point the sidebottom cites a few different cases and two out of three i believe have to do with school cases and involving drugs the first is new jersey versus t l o that case involves a fourteen year old child suspected of smoking in the bathroom in the search her purse was searched by the assistant vice principal marijuana was found and the search by the official was justified its by attitude set him to action with overturned it went against the school but that one involved a the school asserting the interests of painkillers possibly being provided to another student or other students by a thirteen year old and the thirteen year old underwent research and part of the court's comments in that case had to do with with the the concern for widespread drug use in the school not really going to tell people of this right is really going to be called by searching a child underwear now in this case this is a four year old what our what our social worker did was respond on a complaint from the head start program it was actually alleged that complaint of this nature that there may be ongoing abuse against this four year old she responded to this school asks a child to bear her buttocks for photographs as well as her torso all those are from what i've been told by social connected to the anonymous complaint i realized the hindsight is twenty twentieth's and these were unfounded complaints by the time that the child had already shown herself to the social worker there were two practical purposes for taking the photos the first one  as a matter of policy it can exonerate a parent or cohabitant that may or may not be accused of abusing a child and secondly it's for completion of the investigation that the social worker is conducting so th child where there is a potential or there is a claim of abuse this is going to be as a matter of routine a photograph will be taken of the child in a naked state your honor under circumstances such as this where a child has already been exposed for the purpose of the investigation that is correct just to be clear though it wouldn't necessarily be the case every single what we rely on for that really is the guidance provided by colorado statute nine hundred three three zero six which allows a social worker who has before them a child of a reasonably believe has been abused or neglected because color that are the h s caseworkers of taken and again the reason would be for completion of the investigation to potentially to exonerate prove they did the investigation is correct your honor there's a special needs really apply here there's there's exigency involved i mean the social worker waits until the next day to comment investigate i mean it's just a lot of factors that one would normally look at for special needs  interest doctor and searches we i do think that we need those there is a lack of particular i suspicion as far as what it alter what other person may have been potentially abusing this child there was a concern for the child's future safety and future welfare there are concerns when conducting one of these investigations which are sensitive in alerting the abuser or somebody who may be covering for isn't that a factor having against the special needs doctor i believe it is to an extent your honor i think that the concern now in batch if we try social workers hands based upon the law and i'm afraid to add anything that would possibly taint our record however generally in cases involving a child that's potentially going to be sent to the abusive environment there is a sort of where in the record or in the briefing that that the agency now has a policy to attain parental consent or or a court order which suggests that it wouldn't be a practice because if it were impractical they wouldn't do it  and your honor you are correct that part of human services has actually passed a policy that's that's enforced currently that would require where practicable either a court order or parental consent if it's not going to further endanger the child that policy is not intended to undermine action in a situation involving a potential emergency worry where a child may be sent into a abusive environment is there anything in this record that would indicate that parental consent shouldn't be obtained that is to say was there an allegation or suggestion in the record that the parents themselves may be th had tattoos and was former military i believe that there was a suggestion of that within a complaint based on the headstart employees report if they if that makes that wouldn't preclude contacting the plaintiff's second amended complaint we don't see clearly established law but i didn't see analysis of whether there was satisfaction or not of the special needs exception and that's something that ought to be sent back to the district court to address your honor i don't believe that needs to be sent back to the district court and the reason i don't believe that is that that fourth amendment claims the district court actually did not get to the point of whether or not the special needs doctrine actually applied here the district court dismissed those claims on qualified immunity because there wasn't clear law on point and my my reading of the ruling on  motion to a man with that the amendments would be futile and in remedying the issue of qualified immunity for the fourth amendment point as a district court didn't say a whole lot about that in the order that's why i'm  wondering if we really don't have that much to work with in terms of what the district court said well first and first the complaints dismissed without prejudice and please come back with their second amend and then they say well we're not going to take when i can accept that we're going to give leads to a man because a few tile but there's really no discussion there's no discussion the order about substantive discussion of a clearly does it really address the question of whether the second amended complaint defeated the special needs exceptions so i mean it almost puts us in the position where the district court was to flesh that out and that's why i'm wondering about whether it's appropriate really here your honor i understand the court's difficulty as far as the pleating the fact allegations are pretty minimal in those in that amended pleading and based on the court's move the district court's more extensive discussion in the order granting the motion to dismiss as to the forced fourth amendment planes i believe that that actually lays the foundation for denial of the motion to amend based on the additional facts that were alleged and they are minimal those those additional fa that i'd be the child involved here had previously been the subject of a report by head start and jane doe was cooperative the case was dismissed as unfounded and april woodard knew of this when she spoke with ivy ivy told her that she got she gets red dots on her face when she cries but didn't have any other bruises or marks those were the two additional allegations that are actual fact allegations and considering the district court's amount of time  considering that this report's more detailed finding as far as qualified immunity was concerns and those fourth amendment plans i believe that the denial of the motion to amend was appropriate so we would request that the court uphold the and your honor as i believe you can hold as a matter of law that special needs doctrine does not apply in these cases which takes us back to the fourth and then that standard the county stated reason for not asking consent amendment law i just ask on your special needs point say that it doesn't apply and even if we think that there's a good argument in that direction  still have to be a matter clearly established law that it doesn't apply when we're at the qualified immunity issue so i take two things here and i believe it is clearly established because of the factors laid out  and which special needs or just simply don't meet and secondly because special needs is a fourth amendment exception in the dissents i'm not sure that actually the plaintiff burden to show that the special needs defense is clearly  by even so i believe that plays that pretty clearly in this court can hold as a matter of law that special needs doesn't apply because of the particular suspicion the connection with law enforcement and so forth and to be clear the strip searches in violating children's constitutional rights it violates any known principle of human decency it traumatized children it erodes their boundaries when you say that they have to submit to ad hoc searches by adult strangers who just show up in their life the department wants to protect children but it ends up being an actor in harming children so your honour's we