CPS Threats Unconstitutional

October 27, 2007 permalink

A US federal court has ruled that threats against parents to get their consent are unconstitutional. This ruling will have little practical impact because of a procedural rule. Challenges to apprehensions must be made at the shelter hearing, within three days. Most parents can't find a lawyer that fast, so their rights are forfeited. Only the few parents with legal counsel will benefit from the court's ruling, so this case is a good reason why homeschooling parents should be members of the HSLDA. Of course, no Canadian court will be as generous to parents as the Arizona appellate court. Below is the report on the case from the HSLDA. We also have the full text of the court's opinion (pdf).

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October 22, 2007

Judge Rules Social Worker Fear Tactics Unconstitutional

A federal court in Arizona has ruled that an unsupported threat to place children in custody, made to coerce cooperation with a social services investigation, violates the constitutional guarantee of family privacy and integrity.

As detailed in the March/April 2007 issue of the Court Report, social workers and sheriff’s deputies had come to the home of Home School Legal Defense Association members John and Tiffany Loudermilk, demanding entry based on a six-week-old anonymous tip that the newly constructed home was unsafe for children. The Loudermilks declined consent, as was their right under the Fourth Amendment. After an escalating confrontation at the front door that lasted 40 minutes, the social workers, backed by no fewer than four deputies, threatened to take the Loudermilks’ children into custody and place them in foster care if the Loudermilks continued to deny them entry to their home. An assistant attorney general repeated this threat to HSLDA attorney Thomas Schmidt, who was assisting the Loudermilks during the confrontation.

Under this duress, Mr. and Mrs. Loudermilk allowed the social workers and sheriff’s deputies inside. Within five minutes, the social workers determined that the anonymous tip was false and left.

HSLDA filed a federal lawsuit on behalf of the Loudermilk family, alleging that the search violated the Fourth Amendment and that the unjustified threat to remove the children was a separate constitutional violation of the family’s Fourteenth Amendment right to privacy and family integrity. The social workers and assistant attorney general moved to dismiss the claims, arguing that neither the search nor the threat to remove the children violated the Loudermilks’ constitutional rights.

On September 27, 2007, the judge ruled in the Loudermilks favor, stating: “Defendants persisted in their threats to remove the children if Plaintiff Parents did not consent to the search, stating that [they] could arrest or handcuff the Parents in front of the children. Based on the allegations set forth in the Amended Complaint, viewed in Plaintiff’s favor, no reasonable official would have believed that his or her conduct was authorized by state or constitutional law.” With regard to the assistant attorney general, the court ruled that “Plaintiffs have sufficiently alleged that [the attorney] . . . by ‘threat’ exerted ‘coercive pressure’ on them to allow the search of their home so that their children would not be removed.”

The judge’s ruling allows the case to proceed to trial. “The ruling in this case makes it clear that threatening to remove children to gain a parent’s cooperation is unconstitutional,” said James R. Mason, Senior Counsel for HSLDA. “We hope that this ruling will change this common tactic used by investigative caseworkers all over the country.”

Source: Home School Legal Defense Association