or afternoon your honors may please the court i'm ben cooper counsel for the families your honors i think we can all agree that preventing child abuse is an important goal but that we can't violate the constitution to do it in here because there was state action a warrantless search in no fourth amendment exception the defendants violated the constitution now in light of the court's most recent request i'd like to turn and first address state action the key question for state action is whether the conduct is fairly attributable to the state would you say the key thing that supports you in state action is the reporting requirement is that the thing that you focus on the most makes there obviously not traditional state actors right they're not paid by the state and all that stuff is the key thing the reporting requirement it's not your honor ok what's key here is the purpose of these additional medical tests and let me step back also and say what what conduct that we're focused on here the conduct that's an issue here are additional tests that are performed after the child has come into the hospital so it's the kid comes in for then for treatment yes you're on and they consented to these tests they consented to they signed a general consent form a medical general consent form and on the state action side  our point is that conducting medical tests for the purpose of investigating crime for the state constitutes state actually don't we first have to determine whether that part of the standard practice or not  i don't think so your honor in the end as if it is your our court right that's right that's right if we we can see that there were medical purpose why else would they do it well it's in part to investigate crime on behalf of the state rather well in the facts in the records no crime reported to whom they were investigating it what they saw of the patient the drove them to make additional tests that that's that it was in part for a medical purpose there should be no dispute and i think if asked my colleagues would concede that medical tests that are conducted solely for the purpose of investigating crime on behalf of the state clearly constitute state action in our point here is that simply by adding an additional purpose a medical purpose that those analyses do not change the tests that were state action that were fairly attributable to the state the thing i'm almost thinking of this in terms of causation so forget intent for a while which can be so slippery i'm trying to figure out what state law changed the way the doctors in iraq did with these children in other words i could imagine a world where there's there's not a single criminal law enforcement there's no reporting duty there actually isn't even a criminal law prohibiting child abuse such as say hypothetically if there's just no conceivable law enforcement connection to the tass it seems irrefutable to me on this record the test would have been conducted so that disconnects the private entities from the state and from what happened well and respectfully honor it i disagree about that it disconnects that ok thank you we certainly would concede have performed these tests anyway even if there was no law that prohibited child abuse and even if there were no reporting law i think that's right or wrong on this on this record ok the issue is is whether the conduct is is fairly attributable to the state in there it took the state completely out of it in that in that sort of them stayed in that circumstance it would not be fairly attributable to the state if the if the medical provider acted entirely independently of any law enforcement purpose surely  the record here show that they conducted the test for medical purposes in part your honor but the record also shows and would allow a jury to conclude that there was also an investigative purpose and it's from things like the signed agreements between the hoss spittal in law enforcement the county prosecutor to collaborate for the investigation of child abuse it's the statements from the hospital itself saying that these additional tests are mandated by state law it's also the fact that when the hospital suspects child abuse rather than immediately reporting it they conduct the additional tests and then report that information to children's services you just said that these these exact tests were mandated by state law that's what the hospital has said is that that that the investigation of child abuse was required by state law and we played it was the counsel for the hospital who sent a letter that's where that that's where one of the statements comes from the are there any other statements in the record besides that there are your honor we cite them in our in our letter brief it's the april twenty fifteen letter in the main twenty fifteen letter that's on page three of our of our letter brief that's where they say state law requires that we investigate all cases where there's any suspicion of abuse and we therefore follow the strict protocol we've also pointed the court to to that protocol which which is not a question of law though not a question of fact whether or not state law requires the investigation it may be  how can that be a fact that's relevant for summary judgment well i think it speaks to to the hospital's intent and why it's why it's conducting these tests and our point is that the constellation of these facts would permit a jury to reasonably conclude that one purpose of the test at least one purpose of the remains just seems so strange to me the same thing is going on in every hospital throughout the state probably the country and you want to have a facts and circumstances test one day they're liable one day they're not depending on the jury your honor that seems incredibly odd to me that it's it's well for this court's purring think we should have the same rule for all these hospitals when it's the same state law that you say mandated the same state law that has the reporting it goes to the same law enforcement shouldn't there be one rule for everyone it what will the supreme court has told us that in the state action context it's factual dependent it's dependent on the facts and that's because the state can set up a number of different scenarios in which part of the problem the reason i give bags standard practice is the state doesn't mandate tests unless they're called for and the type of test can differ with patient patient right depending on what the doctor says x so it's all it's all a medical decision your honor it is in part a medical  if if you saw nothing his medical decision would be i can diagnose it on the basis of what i see this child abuse and then what would he do but i'm sorry i'm not if he didn't physical evidence of me says i think it's child abuse but i'm going to confirm whether or not confirm i'm going to do a test but the test he decides on whether to do a test are all the medical decisions own that's that's a reason has there been and that's the reason they brought to trial that was to take care of the physical being and the reason he turned it in when he filed child abuse to take care of the trial crime is a medical crime something that he sees requires a diagnosis well the the additional tests the twenty additional x rays the brain c t scan the blood work mandated by the state there's no there's no there's nothing that says every child you come in you must do these kinds of brain scans he only does that if there are necessary in his medical judgment to take care of the child urine and we just are put we respectfully disagree that the record would allow a reasonable jury to conclude that one is another way to come in judge for hundreds question is how how would you d system you have to be of the view that it's ok when someone comes in and they have they present with something and that something could suggest there's even worse things you have to agree that doctors are going to take care of that so you how should we design a system because i i take it you as you agree we're not going to do a search warrant before every c t test they'll be pretty strange so how do we design it what do we fix here you are i think there would be a very simple fix to this and that's to include the investigatory purpose in the consent form that the family is is signing so all you have to do is say in that form each time by the way there is a reporting requirement and this goes off to state that not not simply the reporting requirement but that we have an investigatory purpose behind these tests in addition to our medical that's not fair that's requiring the say something they don't believe they would perform the test without any investigatory purpose we know that you're back with  there's it's if if it's the case i agree that if it's the case that simply having one medical purpose an ocular it's the hospital from the fourth the memory serves me my my problem with saying this fixes the problem that when you sign up for consent you agree that the results can go to the state or the law enforcement everybody knows this i mean you know we're all assume to know the law and this actually is one of the areas where that's not a fiction most people do know that if there's evidence of child abuse at a school the school's going to report a psychiatrist gonna report and hospital gonna report so i feel like this is not a problem they already do know that's what's happening in your i see my time is up me i'd respon it's it's not we're not challenging the reporting requirement we're challenging the additional tests the conduct that's that's the search in this case in if the court does find that there is state action here there's no consent to those additional tests for the purpose of those tests for the the full law enforcement purpose that's that's one of the purposes behind the instance you get your full rebuttal thank you this case i have fifteen minutes your honor and i would like on behalf of mr sewell franklin county children services he would like to reserve two minutes here is i want to take a step back and judge  i think you got right to the point that there is a there is an important concept that gets lost in the we in the plane if a collins case here and that is that child abuse is yes indeed a crime but it is also a medical diagnosis it is a medical condition just like a heart or lung disease and just like a hard or long disease there are certain tests that are medically recommended in the independent medical judgment of the doctor who is treating the child and those tests may or may not be administered in this case three tests were given to each of the three children based upon again the independent medical judgment of the attending physician for that child they are not mandated by the state there is no such mandate that but that's what he said and how do you deal with the correspondence that we mentioned in which the council said it was mandated by the state those letters are by administrators the issue here is whether or not there is a medical purpose for the tests in the diagnosis and treatment of the medical condition of child abuse what those administrator said in that letter which they testified to under oath was dealt with the ridge meant to address the mandatory reporting requirement and nothing more nothing less but the significance is that whatever they said it's not dispositive all of us dispositive for this court's germination to affirm judge services summary judgment decision is that those folks who decided the purpose for these tests were the treating docs as affirmed by the three nationally recognized pediatric experts with the way you know he he said the one thing that would fix this problem is a consent form putting the intent issue to the side and i likes except that most people do know about this reporting duties but if you've got these consent forms god knows everyone's pretty well regulated in this area what is the downside of explaining to perhaps some people who don't appreciate it that we're going to perform these tests and by the way if they reveal potential criminal problems we have to report that to the prosecutor judge sutton one of one of the reasons is because there's no obligation to put that kind of information in the consent form in this court has ruled on many many occasions that we don't need to disclose all the reasons all the motivations that may be involved in a search in order to give valid voluntary and free consent i look to your court to your own writings your honor in the u s the montgomery case where you were you you talked about you talked about a lot of issues in that case but one of which was that there was no reason no no legal reason to for any for a policeman to have to disclose the true motive or purpose of the search in order to have valid concern and so that we don't need to add additional verbiage to the consent are attempting to have this court do is to say look you should you do you need to warn me in the consent form you need to warn me that that there's a possibility that the test results may be given to children services or that i have the right to refuse that is miranda that is not appropriate in the context of the fourth amendment search and seizure which is their theory in this case and it just it just where do you went where do you stop when you're putting together  consent not to be too skeptical but you could imagine a reason for not including this is the fear that the parents will consent to the test and you know if if i'm a hospital that would bother me right because i want the test done because i care about the patient and i could care less about law enforcement the practical but i do worry about it a little bit that that does suggests there is a law enforcement component to it even though i don't think it would motivate a single doctor certainly in this in this case your honor the testimony is uncontroverted that the purposes of the necessity of the tests were all medical in nature and driven by the medical standard of care and that and so that the consent that was given in this case which was for all things needed to medically treat care and diagnose these individual children were signed off were read were testified to being thoroughly understood parents where their parents stayed with the kids parents were to her present during every single test that was administered never refuse never objected if they had questions they ask those questions and if i could just speak just for a moment to the three tests that are involved here because i think my provide additional color to your honor's there are three tests that are about once a blood test and when these three children one six month old one twelve weeks old one thousand days old when they appeared and presented to the hospital one of them had a fracture skull on each side of his head in those instances those doctors and their independent from independent medical judgment decided to take a blood test to determine whether there was internal hemorrhaging damage to the organs internally which these most vulnerable of children who can't talk or walk you need to do the test for that purpose the c t scan obvious obvious for the kids with a broken skulls but for the child with a broken leg it's related in the in the experience of the doctors that often where you have a femur fracture there may be additional injuries and you're looking for intracranial hemorrhage and then finally the  which is the most controversial of the tests that test is given in order to find if there are hidden injuries in these children who can't talk or walk and i think the court should note and it's in our brief but it's a stunning statistic which is that eighteen percent of the time that a child under the year under one year of age is the specter of child abuse eighteen percent of the time that skeletal survey will find additional hidden injuries that's why those tests are given there is nothing about investigatory purpose it is all about the medical care and treatment of these children the ferguson case and the few remember that case the crack baby case who could say there was plenty of medical purpose right i mean i can't think of anything more essential than looking after these fetuses ferguson is an interesting case your honor it's a case in which the hospital which was a state hospital so no question of state actor they were state hospital they actually approached law enforcement and set up a practice by which these tests would be administered for the singular purpose of incrimination and arrest which is nothing what we have here i mean there's no doubt more involved than that but i have to believe they were motivated a little bit by looking after these babies well that there is some discussion of that in that case your hon but what what ferguson its relevance to this case since it didn't completely answer the consent issue and state action was not an issue because it was it was it was because it was state action was that the court the supreme court helped to to delineate or differentiate between between information that may be found through the medical tree inadvertently found through the medical treatment of a child that that could be turned over to law enforcement such as you might do as was done in this case pursuant to the mandatory reporting so it makes that clear distinction between information found inadvertently through medical testing and that which information which is found through testing for the sole purpose of incrimina your honour's just to go back to the consent issue and to wrap that up what appellants are asking this court to do with respect to consent by by trying to proclaim that the consent was involuntary that there was some investigatory purpose involved is to is to ask physicians to disclose information which the ordinary cop on the beat is not obligated to disclose under a fourth amendment search and seizure analysis so that is not the law and should not be the law in this case with respect to state action this there is there is no state action in this case because there is no investigatory purpose in this there is no evidence of a state mandating the tests other than your honors reference to those letters and i have addressed that issue i think the court out of curiosity to state hospitals do this differently yours is your understanding and maybe you don't know and i certainly don't know what the same way the state hospital realized nationwide's not a state hospital so i got that point but i'm just curious if it's the same regime in both places your honor i do not know the answer to that what i do know the answer to is is that in the leading private pediatric hospitals in the united states they universally approach the issue of the diagnosis of child abuse the same way that children's hospital does the doctors that were there for i mean i filled to make a standard practice i can't think of any reason that it would your honor i just  simply my knowledge is limited to a survey of virtually every leading pediatric hospital private pediatric hospital i just don't know but i can't see why a doctor in a in a state hospital would approach this this this issue any differently than they do a children's wrapping up on state action in your honour's if the court were to look to places i think are helpful one is the is u s p howard which is a decision that this court decided in which and insurance there was arson and police and an insurance agent engaged in an investigation of the house the insurance the suspect  claimed at the insert the insurance agent in his investigation had engaged in state state action since he was cooperating with the police this court found that because there was an independent reason for the search other than criminal collection collection of information for criminal purposes that the insurance agent was not a state actor and you can apply that law here because under this record there is clearly an independent reason other than any proposed or alleged state investigatory action that being the sole purpose of these tests in the care and treatment was medical and nature the key of p case we discuss at some length the court may wish to take guidance from the second circuit sister jurisdiction and keep the versus mcentire which was a case involving a pediatric hospital where a child was kept in the hospital for seven days related to a methadone exposure in that case there was a declared one reason they were kept they kept the kid this baby was because there was a policy at the hospital was to keep children while there was a children's services investigation ongoing so a clear investigatory purpose the second circuit determined that cuz there was an independent medical reason for keeping the child in addition to the investigatory reason that there was no state action so key a peep provides further guidance if you will if the court wish to look at it in that we and this circumstance we obviously have independent medical reasons for the tests the care and the treatment of these three siblings these three children and their thank you your honors may please the court nick soulis on behalf of franklin county children services i speak to day only to remind the court as it pertains to my client franklin county children services i concede were state point out that on the record below there is absolutely no dispute counsel for appellants clearly stated at the fourth amendment violations here were the additional testing in the testing that was maybe you know the answer to the question to the public hospitals and private hospitals operate alike when it comes to the i was hoping you had forgotten that question judge i do not know the answer to that question i see no reason however for the hospitals to act differently i  i'm not familiar with other jurisdiction i do concede but there is no reason for state hospitals to act any differently while they may be considered state actors it appears to me that the testing that was performed below was for the sole purpose of the care and treatment of the individual children the mandatory reporting which is the only state mandate in this case individualized testing is not mandated by state law in this case only what the doctors what the physicians deem to be the best possible care of ford to the children is what dictates their behavior the record below is clear however that franklin county children services does not participate in the medical decisions in the care and treatment of the children we had no role in that all we do is step in after the fact and investigate these allegations in a record below have any doctors on staff  know that's correct no way none that participate i believe there are some nurses that are on staff but they do not develop any protocol with respect to the care or treatment of individual  of any individual children the only the only exception would be if children services has actual legal custody of a child and that instance we will request and direct the medical care would you do go to the parents and say look i think you fractured your children's skulls i think you've busted their legs but if i verify that i get a turn over the police do you want to do that and they say no then these children go home is that what you're advocating it would be reported to children services your honor but what he doesn't know with adam and i think that and he's telling th parents that i know are wearing verify is these tests i believe the statute requires as soon as there's a suspicion of child abuse that that suspicion is this really is obviously posing a question where you don't hit that threshold and you only hit that threshold with more tests but if that is the case if there is no suspicion of child abuse that would trigger the statute in the parents decided to to not have their child treated at the hospital and that is the parent's right to make medical care decisions on behalf of their children and in with with respect to the notion of whether simply having one medical purpose  removed this case from state action i think the one of the worries about that is that it would seem to undermine for example the supreme court's case in west versus actions in that case it said that a doctor  private physician who is providing medical care to prisoners on behalf of the state is still state actor that's even though there's there's they're exercising independent medical judgment that that's why i want to get away from purpose i think the best way to think about these cases is causation and that's why i asked you that question at the outset would these tests have been done without any state child abuse laws without any reporting requirements without any conceivable long fest to get a purpose and i think this record says they would have been done no matter what the law is on this and that would be a causation point and that just solves a problem because it's so hard to figure out what the purpose is when you often have two purposes or it's very easy to have two purposes but on the causation point joe from a one thousand and three claim standpoint the causation point would be whether the cost to the actors caused a actors state actor caused a constitutional or state law that's really that's right and in here is so i would say no if private medical people were doing things they would have done without regard to a single state law well and respectfully your honor if if they are acting on behalf of the state if they are state actors but your by your if by conducts the answer the question you want i mean what i'm saying that the causation question comes as soon as we have a state actor once we have a state actor that's when the causation question comes into being in that question is is is this person who's a state actor causing a constitutional to actually wondering if it's a way to answer the state actor question you have some individuals who are not classic state actors and i'm saying to myself wait we the evidence one hundred percent they would have done this without regard to a single state law doesn't that show they weren't doing this under the badge of state authority that's what i'm trying to think and i don't i don't think so your honor i think it soon as there is an investigatory purpose their conduct is fairly attributable to the state in the only other thing i'd like to say on that is is to point out  something your honor had brought up about why these are included in the consent form and we cited to this on page fifteen of our our brief in their internal e mails from the hospital saying we're worried that if we tell doubt that preventing child abuse is important we just think that whether state action in a warrant was searched or can't violate the constitution to do it and for those reasons we've asked this court to reverse the district court's opinion in remand the case all right thanks to all four of you for your helpful briefs in all argument thanks for answering our questions we really appreciate it that case will be submitted in the court they call the next case