The Ninth Circuit Court of Appeals held that the social workers violated the right of parents and children to live together without governmental interference by taking children away from home without judicial authorization or emergency and that sealing summary judgment order granting qualified immunity to social workers was not warranted.
AFFIRMED in part, REVERSED in part, and REMANDED.
Parents had taken pictures of their young children after a bath—basically, of them lying nude on a towel with their butts showing. The person developing the film called the police, who went to the parents’ home to investigate. The police performed physical exams on the children for physical or sexual abuse, and found nothing. Nevertheless, a child protective services officer decided to take the children into protective custody—without obtaining a court order or warrant—and told the parents they would likely be facing felony child sexual exploitation charges. A month later, the children were returned.
The Demarees filed instant 1983 action on behalf of themselves and their children, alleging violations of various constitutional rights. The district court granted summary judgment in favor of Defendants based on qualified immunity. The Demarees requested to seal the summary judgement order in its entirety, which the district court denied. The Demarees appealed on June 23.
The ninth circuit AFFIRMED the district court’s decision that the Demarees’ constitutional right to live together with their children without governmental interference was violated. The opinion states, “under the fourth amendment, government officials are ordinarily required to obtain prior judicial authorization before removing a child from the custody of her parent,” and that officials may remove a child without a court order only “when officials have reasonable cause to believe that the child is likely to experience serious bodily harm in the time that would be required to obtain a warrant.” The ninth circuit determined that in viewing the facts of the case, the social workers “did not have reasonable cause to believe the children were at risk of serious bodily harm or molestation.” The Court notes that there was no evidence of sexual abuse or assault and no cognizable risk of imminent danger.
Because the defendants did not identify any risk of physical injury or molestation to the children, they did not identify the requisite risk of imminent physical injury or abuse …
There was no suspected risk to the children of serious bodily harm, including molestation, imminent or otherwise. Therefore, … , the defendants acted unconstitutionally in taking the three children away from home without judicial authorization.
Demaree v. Pederson, 887 F.3d 870 (9th Cir. 2018)
The ninth circuit REVERSED the district court’s grant of qualified immunity to Pederson and Van Ness. Defendants argue that existing cases in the Ninth Circuit do not clearly establish the constitutional requirements for warrantless removals of children, particularly in the event of allegedly exploitative photos of nude children. However, the Court found that it is, “beyond debate that existing Ninth Circuit precedent establishes that children can only be taken from home without a warrant to protect them from imminent physical injury or molestation in the period before a warrant could be obtained.” The ninth circuit reversed the district court’s grant of qualified immunity on the basis that there is a “very specific line of cases, culminating in Rogers and Mabe, which identified and applied law clearly establishing that children may not be removed from their homes without a court order or warrant absent cogent, fact-focused reasonable cause to believe the children would be imminently subject to physical injury or physical sexual abuse.” Thus, it was clearly established that the removal of Demarees’ children, absent a warrant or imminent danger of physical injury or molestation, was unnecessary and unconstitutional; accordingly, the Ninth Circuit reversed the district court’s grant of qualified immunity.
- April 6, 2018 — Opinion