concurring in part, and dissenting in part:
I concur generally in the portions of the majority opinion that affirm the dismissal of the Tenenbaums’ substantive due process and state law claims. I respectfully dissent from the remainder of the opinion, however, because I see no constitutional violation, and would not reach the question of qualified immunity or the Tenenbaums’ challenge to the district court’s award of damages.
A. Removal of Sarah
1. Definition of “Emergency”
We have previously held that an emergency is an exigent situation in which a child welfare worker may take custody of a child without parental consent and without a court order. Thus the majority recites: “in ‘emergency circumstances,’ a child may be taken into custody by a responsible State official without court authorization or parental consent.” Majority Opinion at 593-94 (quoting Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir.1991)). This standard has been applied again and again. See Gottlieb v. County of Orange, 84 F.3d 511, 520 (2d Cir.1996) (“It is established ... that government officials may remove a child from his or her parents’ custody before a hearing is held'where there is an objectively reasonable basis for believing *608that a threat to the child’s health or safety is imminent.”); Cecere v. City of New York, 967 F.2d 826, 829 (2d Cir.1992); Robison v. Via, 821 F.2d 913, 922 (2d Cir.1987) (“[I]t is sufficient if the officials have been presented with evidence of serious ongoing abuse and therefore have reason to fear imminent recurrence.”); Duchesne v. Sugarman, 566 F.2d 817, 825-26 (2d Cir.1977).
The majority opinion announces a new and incompatible principle: that there is no such emergency, notwithstanding the exigency, if there is or may be time to obtain a court order. None of our cases has held that the availability of the emergency-removal exception depends on whether there is time to obtain judicial pre-authorization. Each of our prior cases requires only that an emergency exist, a fact that is determined by reference to the child’s' peril, not the case worker’s schedule or the court’s calendar. This is a sensible formulation, and one that keeps the child welfare worker focused on what matters first in these cases, the child’s precarious welfare. “When a child’s safety is threatened, that is justification enough for action first and hearing afterward.” Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir.1983), quoted in Robison, 821 F.2d at 921.
The error of the majority opinion is to recast a child-welfare emergency in terms of a procedural emergency,, ie., Whether the danger to the child is So pressing that no court order is feasible. Thus the majority opinion requires a child welfare worker, at peril of personal liability, to make the additional determination as to whether there is time enough to secure court authorization. An already-difficult calculus is thus complicated by a new and confusing set of standards and risks. Cf. Wilkinson v. Russell, 182 F.3d 89, 105 (2d Cir.1999) (“[C]ourts must be especially sensitive to the pressurized circumstances routinely confronting case workers, circumstances in which decisions between difficult alternatives often need to be made on the basis of limited or conflicting information.” (internal quotation marks omitted)).
The circumstances of this case objectively justified invocation of the emergency exception. At the time the child welfare workers decided to effect the removal of Sarah Tenenbaum for a hospital exam, they knew: that the little girl was mute some or all of the time (a state consistent with some appalling trauma); that she had nevertheless expressed to her teacher that she was being hurt in her sexual parts by her father; that her mother worked nurse’s hours; and that her father (whose hours as a Board of Education plumber were unknown) might or might not be home when she left kindergarten each day. I would therefore affirm summary judgment for the defendants on the removal claim.
£. Applying the Majority’s New Rule.
Under the rule announced by the majority, however, a jury would decide if there was time for the child welfare worker to obtain a court order. Was there time in this case? How long does it take? -The City concedes that it can be done in a day: was there a day? The majority’s treatment of these questions demonstrates that in terms of legal risk the only safe course now open for a social worker or the City will be to obtain a court order in every case. To illustrate: Supervisor Williams made the decision to remove Sarah for examination on Tuesday morning, January 9, and she was removed before the noon dismissal of her kindergarten' class; yet the majority opinion holds that there was sufficient time to obtain a court order because the decision could have been made “as early as Monday,” and a court order could have been procured in a day. See Majority Opinion at 594-95.
The opportunity to seek a court order, as supposed in the majority opinion, is premised on the implied criticism that the decision to remove Sarah should have been made sooner or faster. Thus the majority *609criticizes Williams for awaiting a call from the Tenenbaums (a call the Tenenbaums aver they were never told to make), even after the record on which he acted was otherwise complete. But Supervisor Williams did not get the report on the interviews with Sarah and the teacher until after they were conducted sometime on Monday, and made his decision on Tuesday morning.1
There is therefore no basis for finding a delay of any appreciable number of workday hours. Similarly, the majority opinion criticizes inaction over the weekend, and suggests that efforts could have been made to find Sarah’s teacher before Monday.2 Thus in this case, where the child welfare workers acted with dispatch, having taken action no more than a few business hours after receipt of a full report, everyone involved has been criticized (and — but for immunity in this case only— made subject to liability) both for delay and for haste. That is why the only safe decision a child-welfare worker can make (from a liability standpoint) is to get a court order regardless of risk to the child.
The error of the majority opinion is partly traceable to the City’s admission that it routinely effects emergency removals and rarely seeks judicial pre-authorization. Such a policy might be called into question in a case in which no objective emergency existed. But this is not such a case, nor is it a class action; the only issue before the Court is whether the child welfare workers were justified in bypassing judicial pre-authorization in their removal of Sarah Tenenbaum, which in my view they clearly were. Whether they acted pursuant to a city policy bears on whether there would have been municipal liability if the defendants had committed a constitutional violation, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978), not on whether there was a constitutional violation in the first place.
The majority opinion, however, treats the City’s policy as circumstantial evidence from which a jury could infer a lack of emergency in this case, ie., that the decision to remove Sarah was triggered by compliance with the City’s policy rather than by the judgment of the child welfare workers.
As the majority opinion thus demonstrates, the new constitutional standard— and therefore the liability of case workers and municipalities — depends upon a highly subjective determination as to whether there is time to get a court order, a question that is more complicated than it seems. The majority opinion holds that a decision made on Tuesday morning, and acted upon a couple of business hours later, is unconstitutional because a court order could have been obtained if (as the majority thinks) the information available on Monday afternoon was enough. Such second-guessing places in jeopardy the case worker or supervisor who does the more thorough investigation, thinks a bit longer before acting, or does something Tuesday morning that could have been done on Monday afternoon. This kind of analysis draws the federal court into decisions about bureaucratic practice and technique, and into the tough choices that caseworkers must make and that we should not.
The addition of this subjective element is contrary to this Court’s precedents, all of which have assessed due process challenges to emergency removals in terms *610that are strictly objective. See, e.g., Wilkinson, 182 F.3d at 104 (“An investigation passes constitutional muster provided simply that ease workers have a reasonable basis for their findings of abuse.” (internal quotation marks omitted) (emphasis added)); Gottlieb, 84 F.3d at 520 (“It is established ... that government officials may remove a child from his or her parents’ custody before a hearing is held where there is an objectively reasonable'basis for believing that a threat to the child’s health or safety is imminent.” (emphasis added)); Cecere, 967 F.2d at 829 (“[T]he only issue before us is whether the assertion of custodial authority by [the defendant] was objectively reasonable." (emphasis added)); Robison, 821 F.2d at 922 (“The belief that the danger was of emergency proportions was likewise objectively reasonable." (emphasis added)); see Chayo v. Kaladjian, 844 F.Supp. 163, 169 (S.D.N.Y.1994) (“[I]t is this Court’s task to focus on the objective legal reasonableness of the defendants’ actions, rather than the defendants’ subjective state of mind.” (internal quotation marks and citation omitted)).3
3. The Danger of the Majority’s New Rule
One harm of the majority opinion will be to make summary judgment largely unattainable in due process and Fourth Amendment cases brought by parents challenging emergency removals. Ordinarily, a judge would have little trouble ascertaining as a matter of law that the child welfare worker faced an emergency, objectively considered. (This case, in my view, is one of them.) But it will be all too easy for a plaintiff to point to some circumstance from which a jury could infer that the decision to intervene could have been made sufficiently in advance of the time it was made to allow the case worker to get a court order. Delay will not be hard to find: child welfare officers often must practice triage, deciding which endangered child must wait while another one, in seemingly greater peril, takes precedence. Decisions on emergencies are delayed, reviewed and reconsidered, or stuck in a superior’s in-box. And even a child welfare worker overburdened with real emergencies is a human being who might go to lunch, take a personal day, go home on time, or spend weekends at home.
If the delays that inhere in any bureaucracy are sufficient to raise a material question as to whether the exigency foreclosed the seeking of a court order, then nearly every such case will have to be tried to a jury. And individual child welfare workers, whose qualified immunity defense in 'such cases has now become tenuous, could be individually liable for damages. The only safe harbor for child welfare workers in such a legal environment will be to seek and then await a court order in every instance, with the result that some children will be left too long in abusive situations.
My principal concern is that the majority’s approach, so measured and reasonable in the pages of a federal appellate opinion, will work serious harm in an exceptionally sensitive area of state responsibility. “[Considerable deference must be accorded the delicate judgments made by responsible state,officials. Perhaps in no context is this truer than where the state is acting as parens patriae to protect children from imminent danger.” Jordan v. Jackson, 15 F.3d 333, 348 (4th Cir.1994); see also Wilkinson, 182 F.3d at 104 (discussing the “compelling governmental interest in the protection of minor children, particularly in circumstances where the protection is considered necessary as against the parents themselves” (internal quotation marks omitted)). The job of the child welfare worker requires a delicate balancing of risks. Already, there are incentives to err *611on the side of excessive caution rather than excessive action. See John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 Va. L.Rev. 47, 74-78 (1998). The majority opinion reinforces that tendency, which will be bad news for abused children.
Although the majority opinion finds that the individual defendants in this case are qualifiedly immune from damages, the issuance of the holding in this appeal means (inter alia) that qualified immunity in similar situations may no longer be available in this Circuit. Every time a child welfare worker has reason to suspect child abuse, she will have to consider (i) whether there is reason to believe the child is in imminent danger (which until now has been all that was required) and (ii) whether there is time to get to court and obtain a court order (the majority’s new requirement) as well as (iii) whether a court or jury will second-guess that decision on the basis that more efficient decision-making would have afforded sufficient time to obtain the court order. In terms of litigation, individual liability and damages, an error on the side of removal is risky, while an error on the other side is safe. See DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 201-02, 109 S.Ct. 998, 1006-07, 103 L.Ed.2d 249 (1989) (no § 1983 liability for state defendants’ failure to remove child from abusive situation). The incentive will be to allow some number of children — their constitutional rights preserved — to return home to a predatory adult.4
B. Physical Examination of Sarah
The majority is on stronger precedential ground in sections I.B. and III.B., which address the physical examination of Sarah. It concludes that the examination was investigative in the police sense, rather than medically indicated, and therefore inappropriate without parental consent or judicial preauthorization,
The principal authority in this Circuit on the question of medical examinations during the course of child abuse investigations is van Emrik v. Chemung County Department of Social Services, 911 F.2d 863 (2d Cir.1990). In that case, two parents took their small child to the hospital, where a leg fracture was diagnosed. See id. at 864. Suspicious that the baby-sitter had caused the injury, the parents agreed with hospital personnel that the case should be reported to the state’s child abuse “hot line.” See id. at 864-65.
When the child was about to be discharged, the assigned case worker asked the attending physician to perform “long-bone x-rays.” Id. at 865. The doctor demurred because of the radiation risk, and so advised the case worker. See id. The case worker prevailed on the doctor, however,, insisting that she needed “to *612know if there were other fractures that had gone undetected and had healed.” Id.
In a fact-specific opinion, the van Emrik court emphasized that the x-rays in that case “were not medically indicated” and that the doctor had initially opposed them. Id. at 867. “The x-rays were not sought to facilitate diagnosis or treatment .... but to provide investigative assistance to the caseworker.” Id. The court concluded that parents’ liberty interest in the “care," custody, and management of their child” was especially “significant” when an examination “serve[s] primarily an investigative function.” Id. In such cases, the Court held, it is improper to perform the examination without a judicial finding of justification and reasonableness.
The district court here found that “the gynecological examination of Sarah — like the examination of the child in van Emrik — was not conducted ‘to provide medical treatment to the child, but to provide investigative assistance to the caseworker.’ ” Tenenbaum v. Williams, 907 F.Supp. 606, 618 (E.D.N.Y.1995) (quoting van Emrik, 911 F.2d at 867). The sole evidence on this point is the testimony of defendant Nat Williams to the effect that Sarah was examined to detect sexual abuse. The district court construed this testimony (which is set out in the margin5) as a concession that the examination was “purely investigatory,” as van Emrik used that term. The district court thus read the word “investigatory” as a term of art suggesting (to lawyers) a police or criminal investigation. However, the district'court (as well as the majority opinion) fail to appreciate that medical diagnostics is also “investigatory” — in the sense that the physician investigates whether the patient would benefit from treatment.
In van Emrik, there was no question that the examination was conducted exclusively to further the forensic investigation: the case worker was seeking evidence of healed fractures, and the procedure was medically harmful (in the doctor’s view). The holding of van Emrik therefore extends no further than instances in which medical justification is lacking. The case should not be read to bar physical examinations that serve a medical purpose, even if a law enforcement purpose is served as well.
No doubt, the physical examination of Sarah Tenenbaum had its forensic uses. But it was also investigatory in the additional sense that signs of sexual abuse would have served important diagnostic purposes: a five-year-old girl who has been sexually abused by an adult male (a) may need immediate medical care; and (b) may need to be kept out of an environment in which she would be exposed to further medical and psychological injury.
These cases being necessarily quite fact-specific I believe that, notwithstanding the holding in this case, the door stands open for the City to prove in other cases, or after adoption of new guidelines, that the investigatory purpose of the Tenenbaum-style examination is chiefly diagnostic, and designed to ascertain whether the child is in need of medical treatment and protection from further injury.
The majority notes that “if Sarah had ever been in imminent danger,” she was no longer in danger while in the custody of the child welfare workers. They therefore had time to seek judicial authorization for the examination. See Majority Opinion at 599-600, 605-06. Of course, in another portion of the opinion (in which I concur), we affirm dismissal of the plaintiffs’ substantive due process claim on the ground *613that the “temporary separation” of Sarah and her parents “was not severe enough” to constitute a violation of substantive due process. See Majority Opinion at 601. These two rulings will create a dilemma for the child welfare worker who has removed a child and sees a need for a medical examination. She might await judicial authorization, which may require overnight detention, with concomitant delays sufficient to support a substantive due process claim. Or she might go ahead with the examination, in order to return the child home as soon as possible, and run the risk of procedural due process and Fourth Amendment liability.
The influence of this opinion is potentially far-reaching. The Court creates a new procedural requirement that burdens, punishes, and thereby marginally inhibits decisive action to protect children from people in their households.
. The majority quotes testimony of caseworker James that Williams told her on Monday that she "would have to take [Sarah] to the hospital,” and deduces from that testimony that Williams made the decision on Monday. But James' categorical testimony on this point establishes that she did not act on Monday because the decision could only be made by Williams, i.e., the decision and order to act had not happened.
. "Although the CWA maintains an emergency children's services unit that is on call nights and weekends, no one contacted it about the Tenenbaum situation.” Majority Opinion at 590.
. Some of these eases addressed qualified immunity, rather than the underlying constitutional claim. As we have recently noted, however, the cases in this area typically collapse the two inquiries, so the qualified immunity cases are directly relevant to this discussion. See Wilkinson, 182 F.3d at 107 & n. 10.
. Another passage in the majority opinion also has this unintended effect of increasing the risks of child abuse. The majority opinion strongly implies that the defendants in this case should have complied with New York’s statute governing ''preliminary” removal orders. See Majority Opinion at 590-91 & n.6 (citing N.Y. Fam. Ct. Act § 1022). Although such an order can be obtained ex parte, the officer seeking it must make a notice showing, i.e., either that "the parent or other person legally responsible” for the child is "absent” or that the parent refused to consent to the child's temporary removal. See N.Y. Fam. Ct. Act § 1022(a); see also id. % 1023; In re Adrian J., 119 Misc.2d 900, 464 N.Y.S.2d 631, 633 (1983) (finding § 1022 order "jurisdictionally defective” and therefore a "nullity” when child protection workers "failed to ask [parents] to consent to a temporary removal of the child”).
The majority opinion thus has the effect of imposing a constitutional requirement of parental notice. It is worth pointing out that while the child welfare worker is seeking the order, the child will presumably remain in the custody of the alleged abuser, who is thereby alerted to the accusation and has time to coach the child, or take other measures. I cannot agree that the Constitution requires resort to the New York statute even when a child is in objective danger of harm. Cf. Robison, 821 F.2d at 923 ("Federal constitutional standards rather than state statutes define the requirements of procedural due process.”).
. * "[M]y decision was that [Sarah] should be removed from the school and taken to Coney Island Hospital, specifically to be examined to rule out sexual abuse.”
* "Q: [Y]ou removed or had Sarah removed because you wanted to have a medical examination done to determine whether or not she had been sexually abused; is that correct?
A: That is correct.”
* "I was doing [the exam] to determine whether or not the child had been sexually abused.”