Spencer

dissenting:

Whether the summary judgment should be reversed on the only ground urged by the Wallises—that there is a triable issue of fact on whether the City had a policy to pick up children without verifying the existence of a court order and without reasonable cause—is a close question. There is a good argument that, as the district court held, the officers had accumulated reasonable cause in the course of investigating Rachel’s allegations, thereby making the nonexistence of the court order immaterial. However, because it is a close question, sending this issue back for trial is within the ballpark.

But holding that there is a triable issue of fact on a policy with respect to the medical examinations that was never alleged, never argued, and as to which no evidence was ever adduced as to the City—the only party left in the case—is not in the ballpark.

For sure there is evidence in the record about the examinations because Dr. Spencer, CPS, and San Diego County were defendants. However, the Wallises settled their claims against CPS and the County, and Dr. Spencer was dismissed from the case on immunity grounds. The City is the only party to this appeal. Until the majority…

This case involves a conflict between the legitimate role of the state in protecting children from abusive parents, and the rights of children and parents to be free from arbitrary and undue governmental interference. Such conflicts occur with increasing frequency these days. The problem of child abuse is a critical one, with deep personal and social costs. For too long, intra-familial sexual abuse was considered to be a “private” matter. Today, the law is changing. As we develop a greater awareness of the extent and severity of this difficult and painful problem, society has finally begun to treat intra-familial child abuse as a serious criminal offense.

Because the swing of every pendulum brings with it potential adverse consequences, it is important to emphasize that in the area of child abuse, as with the investigation and prosecution of all crimes, the state is constrained by the substantive and procedural guarantees of the Constitution. The fact that the suspected crime may be heinous — whether it involves children or adults — does not provide cause for the state to ignore the rights of the accused or any other parties. Otherwise, serious injustices may result. In cases of…