Yesterday a federal appeals court revived an Arizona couple's lawsuit against two social workers who removed their three daughters from their custody for a month based on innocuous bathtime photos that were deemed "sexually explicit." The decision by the U.S. Court of Appeals for the 9th Circuit, which rejected a federal judge's conclusion that the social workers were protected from liability by "qualified immunity," should strike fear into the hearts of overzealous functionaries who kidnap children under the color of law.
The trouble began for A.J. and Lisa Demaree in August 2008, when A.J. dropped off a memory stick containing photos of a family trip to San Diego at a Walmart in Peoria, Arizona, for printing. Some of the photos showed the couple's three daughters, who at the time were 5 years, 4 years, and 18 months old, without their clothes. In one picture, the three girls were lying on a towel after a bath, their buttocks visible. In another, they were wrapped in towels and had their arms around each other. "None of the photographs portrayed children engaged in sexual activity," the 9th Circuit noted. "None portrayed the children's genitalia frontally." A hypervigilant Walmart employee nevertheless called the police, prompting a visit by Det. John Krause of the Peoria Police Department.
Krause and his partner interrogated the Demarees and took their children for "forensic and medical exams," which found no evidence of sexual abuse. Neither did a search of the family's home, during which police "seized all the evidence that might be relevant to a child pornography investigation," including "computers, printers, photographs, cell phones, undeveloped film, floppy discs, DVDs, CDs, VHS tapes, and cameras." The Demarees were never arrested or charged with a crime. Laura Pederson, an investigating officer with Child Protective Services, nevertheless took it upon herself to remove the three girls from their home.
Pederson had the approval of her supervisor, Amy Van Ness, but did not bother to obtain a court order. Her justification, listed on the "Temporary Custody Order" that she gave the Demarees: "Mother & father have taken sexually explicit pictures of all three children." The girls were sent to foster homes for two days, then spent a month with their grandparents before being reunited with their parents.
A juvenile court never determined that any of the girls had been neglected or abused, and a judge concluded there was nothing nefarious about the photos. Under Arizona law, child pornography includes "any visual depiction in which a minor is engaged in exploitive exhibition," defined as "the actual or simulated exhibition of the genitals or pubic or rectal areas of any person for the purpose of sexual stimulation of the viewer" (emphasis added). In the absence of a sexual intent, pictures of one's own children in a state of undress do not qualify.
The Demarees initially sued Krause, Walmart, the city of Peoria, and the state attorney general as well as Pederson and Van Ness. They reached a settlement with Krause, and the other defendants were dismissed from the suit, leaving only the two social workers. In 2014 U.S. District Judge Roslyn Silver dismissed the case after concluding that, even assuming the truth of the Demarees' allegations, Pederson and Van Ness had not violated any clearly established constitutional rights. The 9th Circuit disagreed, sending the case back to the district court.
Families have a "well-elaborated constitutional right to live together without governmental interference," the appeals court noted, and the government may remove children from their parents' custody 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." Since there was no such risk in this case, the court said, the removal of the Demarees' daughters was unconstitutional, and Pedaree and Van Ness should have known that based on specific, directly applicable precedents.
"The clearly established case law requires articulable, imminent, and serious physical injury or physical abuse to children to justify removing them from their parents' home without a judicial order," the court noted. "There was no such injury identified here." Although the juvenile court was closed for Labor Day weekend, "the defendants did not suggest that there was any possible harm of the requisite sort to the children before the juvenile courts would reopen after the holiday…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."
In addition to the torment and humiliation caused by the investigation and the removal of the Demarees' children, ABC News reported in 2009, "Lisa, who works at a school, was suspended from her job for a year while the investigation was under way, and the couple spent $75,000 on legal bills." Assuming that the Demarees ultimately obtain damages from Pederson and Van Ness, the example should help counteract the incentives that social workers have to break up families based on the slightest hint of danger, even when it exists only in the minds of people who habitually see innocent acts in a sinister light. The fear of being blamed for leaving children in abusive homes must be balanced by a fear of real consequences for erring in the opposite direction as egregiously as Pederson and Van Ness did.