In Demaree v. Pederson, published January 23, 2018, a divided panel of the 9th Circuit Court of Appeals reversed summary judgment granted to two Child Protective Services social workers in a 42 U.S.C. section 1983 case. One of the plaintiffs dropped off photos at a store to be printed. A worker noted that there were nude photos of children, and contacted the police. Police interviewed the parents, who stated they had photographed their daughters, ages 1-1/2 to 5, nude as keepsakes and would not share them. The police took the daughters to medical and physical exams, which disclosed no abuse. The police obtained a search warrant and searched the plaintiffs' house. A defendant social worker spoke with one of the investigating officers, who told the worker that he expected charges would be brought against the parents. The social worker consulted with her supervisor (another defendant) and decided to take the children into emergency temporary custody without obtaining a court order or warrant. The parents were never arrested or charged with a crime, and the children were returned to them after a month. The district court granted the defendants summary judgment based on qualified immunity.
The 9th Circuit majority determined that, viewing the facts in the light most favorable to the plaintiffs, the defendants were not entitled to qualified immunity. Because the social workers did not have reasonable cause to believe the children were at imminent risk of serious bodily injury or molestation, taking the children violated the parents' and children's constitutional right under the Fourth Amendment to live together without governmental interference. The Fourth Amendment requires government officials to obtain prior judicial authorization before removing a child from a parent, unless, in an emergency, officials have reasonable cause to believe that the child is likely to experience serious bodily harm in the time required to obtain a warrant. No facts showed such a danger here. Further, the law clearly established that the social workers' actions would violate the Fourth Amendment. Ninth Circuit case law published at the time of the incident established that under worse circumstances than those here, removing a child from a parent's custody without court authorization violated the Fourth Amendment. The law established beyond debate that the children could not be removed absent evidence of imminent danger to the child of serious bodily injury, and that the facts here did not meet the standard.
One judge dissented from denial of qualified immunity, on the ground that the incident happened on the Saturday of a holiday weekend, there were allegations of serious abuse, and the law was not clearly established that under those circumstances removing the children without court authorization would violate the Constitution.
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