In Hardwick v. County of Orange, published January 3, 2017, the 9th Circuit Court of Appeals affirmed a district court's denial of summary judgment to social workers whom the plaintiff alleged used perjured testimony and fabricated evidence in 1999 to obtain the removal of the plaintiff—then a minor—from her mother. The social workers sought summary judgment based on absolute and qualified immunity.
The appellate panel held that while social workers have absolute immunity for conduct as quasi-prosecutorial advocates in presenting their case, presenting perjury and false evidence to a dependency court falls well outside their quasi-prosecutorial role. Turning to qualified immunity, the panel ruled that it was clearly established in 1999 that using perjury or fabricated evidence in civil proceedings to remove a child from her parent violated the 14th Amendment's guarantee that parents and children will not be separated by the state without due process of law except in an emergency. Case law existing in 1999 clearly established the constitutional right to be free from the knowing presentation of false or perjured evidence in civil court child removal proceedings. "No official with an IQ greater than room temperature in Alaska could claim that he or she did not know that the conduct at the center of this case violated both state and federal law." Further, in 1995 California enacted Government Code section 820.21, which states that civil immunity of social workers does not extend to malicious perjury or fabrication of evidence. Case law holding that the constitutional rights of foster parents concerning foster children were not clearly established did not apply to the clearly-established rights of parents and their children.
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