Children

9th Circuit Revives Suit by Couple Whose Children Were Seized Over Bathtime Photos

A social worker took three little girls from their home without a court order because she thought the pictures were "sexually explicit."

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Brandon K. / Yelp

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.

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85 responses to “9th Circuit Revives Suit by Couple Whose Children Were Seized Over Bathtime Photos

  1. Take their kids!

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  2. I’m curious as to who would see something perverted in innocent family photos.

    1. The brain trust hired by Wal-Mart, the highly trained Peoria police department, the mis-named Peoria child protective services, U.S. District Judge Roslyn Silver, and the state of Arizona.

    2. There were bare bottoms of CHILDREN pictured!

      It is almost always you conservative types that get all worked up by such “pornographic images”.

      1. Actually, on conservative sites, they were blaming this debacle on “liberal pinheads”.

  3. Apparently the USPS was ‘non-essential’ or something over the weekend.

    Waiting on a package that, on the 19th, was on schedule for delivery on the 22nd.

    On the 20th that changed to ‘on its way to the destination’. I’ve gotten 4 updates since then and they’re all ‘as of the 20th of January the package is on its way to the destination’ with no delivery date. This despite getting packages that were shipped *after this one* was already.

    1. Apparently your package was deemed to be non-essential. Sad.

    2. Oh, you actually get your mail and not some random neighbor from the 12 block area? Check out Mr. 1% over here.

      1. USPS doesn’t deliver to my house – we have one post office and you have to pick up your mail there. I pay the same to them – actually I pay extra since now I need to rent a PO box to get mail – for the service.

        But at least they don’t put it in the wrong box when it gets here.

        1. Or in the middle of a pile of junk mail, like my last Driver’s License renewal.

    3. I just read your comment in full. Seriously, is this the first time you’ve used USPS for a package? And B: Is this the first time you’ve used USPS “tracking”?

      While I’ll admit that USPS tracking has improved marginally over the last several years, it generally consists of “USPS has been made aware of a package, no further information available” changing to “delivered” about three days after it’s been delivered.

      Tip: Don’t use USPS for anything if you don’t have to.

      1. IME, USPS – at least out here – has been really good. But, I live in a town of 15,000 people and we’re not part of a larger metro area so the guys who work at the local PO live in this area.

      2. UPS and FedEx. Often you pay for Overnight or Next AM Service when the cheapest fee gets it there overnight anyways. They never let packages sit overnight.

  4. 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.

    You would be scared at how much the State tramples all over people’s lives, rights and livelihoods under the guise of “Rule of Law, Bitches!”.

    Trumpistas should be outraged at this show of judicial activism, though. I mean, Dee Lawz Iz Dee Lawz, ins’t it?

    1. Meh … there’s a neighborhood near my home that most of my neighbors avoid, because they expect the police to ignore violent crime there.

      1. In Philly?

    2. You should stop with the “Trumpistas” thing. You’re better than this.

  5. “Bathtime Photos” was my nickname at the ski resort hot tub.

  6. These social workers are the latest iteration of the all-knowing state. One can only wish for them the worst possible outcome, booby traps in front lawns, and poisoned blow darts in their butts. Read, if you have the stomach, about the Wenatchee Witch Hunt.

    1. Yeah. I’m starting to think that these arrests are designed to give jailbirds and ex-cons a socially acceptable way to let off steam so that they commit fewer crimes that police are expected to prosecute.

      1. Which is awful. Our prisons are awful and it’s a disgrace that we allow those things to go on. That we laugh at it.

  7. simulated exhibition of the genitals

    How does that work exactly?

    1. I imagine it’s meant to outlaw virtual kiddie porn.

      1. Oh, I thought it meant simulated exhibition of the genitals of a real person.

        1. If you take a picture of a kids arm, but their elbow looks kind of like a butt, then that’s a felony.

          1. What if your kid is 13-16 – then they are literal asses.

          2. Only if he’s holding an apple.

          3. Only if he’s holding an apple.

      2. I guess a cartoon is a person now.

        1. Well, I’m only guessing. But certainly virtual porn is similarly dangerous. It’s the same logic applied to virtual smoking. It LOOKS like it. So we can’t have that.

          I vaguely remember reading some time ago about some kid getting in trouble for writing down kid diddling fantasies.

          1. That tends to go back and forth, but the Supreme Court has defended that as speech a few times. It also has happened with excessively violent comic books and other such things that get determined to be obscene.

            Obscenity laws are a joke.

  8. “The repeal of Net Neutrality is a hot topic in America, but it can be very difficult to understand. That’s why the Burger King brand created Whopper Neutrality, a social experiment that explains the effects of the repeal of Net Neutrality by putting it in terms anyone can understand: A Whopper sandwich,” writes Burger King in the video’s description.

    In the video, customers paying the minimum amount for their Whoppers needed to wait 15 to 20 minutes unless they paid dramatically more ? from $13 for the fast mbps, to $26 for the hyperfast mbps options for a single Whopper order. A single Whopper usually costs around $4.19. Back in reality, only high-end restaurants charge anything close to $26 for a burger.

    http://www.businessinsider.com…..deo-2018-1

    1. Thankfully Burger King doesn’t have a local monopoly on burgers.

      1. I agree 100% and that is what makes this analogy stupid.

        Net neutrality is essential to prevent your LOCAL MONOPOLY ISP from throttling burgers.

        1. If they’re willing to throttle burgers, imagine what they’re doing to the proles.

        2. Except NN is not essential for anything. The monopolies could be rescinded.

        3. So, GOVERNMENT permits and protects a burger monopoly, so we must give government more power to deal with the problem government power created in the first place?

          And this makes sense to you? You think that *it will work this time*?

        4. Let’s work on bashing those monopolies then. Though, I’m not exactly sure it’s the correct way to go. I keep mentioning this, but 5g very well might leapfrog this all. Except for gamers.

          But as a gamer myself, I must say this: Fuck all Gamers, they are scum and deserve the worst.

          1. As for gamers – we don’t need high bandwidth (at least once the game is downloaded – physical storefronts are sooooo 2003), just low latency.

            This whole NN . . . thing, is for people who spend all day watching YouTube. People doing *work* mostly don’t need high bandwidth either. I don’t need a large pipe to shop or run Facebook.

            So, if they implement pricing tiers I’d likely see my bill *decrease* – and so would a lot of other people.

            1. Yeah, my point is only that 5g would cover bandwidth bottlenecked tasks, which is really most people’s tasks. The latency is not a huge deal for people talking. Only really accurate low ping tasks. Which there are many, but the biggest thing for people who yell online is gaming.

        5. “Net neutrality is essential to prevent your LOCAL MONOPOLY ISP from throttling burgers.”
          Turd is stupid enough to think that ‘only a couple of sources’ = “monopoly”.
          Turd is also stupid enough to imagine that a new regulation will somehow remove the former regulation, granting that monopoly.
          Turd is fucking stupid.

    2. Patrons who only paid $1 for their Whopper get the same Whopper that someone paid $13 for.

      These bizarre analogies are painfully stupid and end up making the case against net neutrality. This is as dumb as the poster that suggested Grandma who doesn’t use social networking and only looks up recipes on the internet should have to pay $159 a month for high speed video. Because if she only pays $19 a month, it’s unfair to Grandma.

    3. I only paid $26,000 for my car? Why isn’t it a Lamborghini?!!

    4. Turd is convinced that more regulation and price fixing means “freedom”!
      Turd’s an idiot.

    5. DId Burger King forget that Jack-In-The-Box, McDonalds, and Carl’s junior are on the same block?

      1. Jack-In-The-Box is an idle threat to anyone who likes tastes.

  9. Families have a “well-elaborated constitutional right to live together without governmental interference,” the [9th Circuit] appeals court noted

    Interesting. So they have a constitutional right to live together without government forcing them to go to some sort of school?

  10. 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.

    Know your job and get a warrant. As long as you don’t lie in the warrant application, you’re covered.

  11. Tesla on autopilot rear-ends large, red vehicle with warning stripes all over it.

    Right below video, sub caption reads: GM app lets you order coffee while you drive.

    Is that irony? I can never tell.

    1. Tesla should know by now that stage 3 and 4 autopilots should never never never be made available to consumers. They simply automate too much stuff while not being able to handle emergencies – so Joe Moron feels comfortable reading the WSJ while sipping his latte NO MATTER HOW OFTEN he’s told he still needs to pay attention.

      In fact, reducing the load that much makes it, IMO, effectively impossible to maintain alertness while not simultaneously controlling the vehicle. Its impossible for anyone except maybe the most trained and disciplined soldiers.

    2. So, from the article;
      “In general, it is more difficult for a car’s radar-based system to detect and respond to a stationary object than a moving one, according to the Insurance Institute for Highway Safety.”

      Huh? Why is that?

      1. It can’t see you if you don’t move.

  12. US stealth bombers in Guam appear to be readying for a tactical nuclear strike on North Korea

    http://www.businessinsider.com…..rea-2018-1

    1. Pro military insider tip: US Stealth Bombers are already ready for a tactical nuclear strike.

      And US bombers in general are ready for a nuclear strike on NK since the 1950s.

      1. Everybody knows that except liberals.

    2. Oh, and look! Business Insider! What a
      pathetic excuse for a news outlet.
      Grow up, turd.

    3. So, how *exactly* does preparing a bomber for a tactical nuclear strike differ from preparing it for a non-tactical strike? Or from training?

      1. Tactical = “take out their king with your queen and rooks” mode, as opposed to “strategic”, AKA “flip the damn board over” mode.

        1. I know the difference between the two.

          My question to the OP is how does he think you tell the difference between a bomber that is being prepared to carry one 2000 lb conventional bomb and one that is being prepared to carry a nuclear bomb that is the same size.

          1. Well, you said “non-tactical strike”, not “non-nuclear strike”.

            Anyway, ehhh… Maybe the janitors were spotted dusting off the W-80 dispenser in the corner of the bomb shop?

    4. This article legitimately reads like scaremongering.

    5. The US recently sent nuclear bombers to North Korea that can carry tactical nukes that would be perfect for taking out Kim Jong Un.

      Apparently the author doesn’t know that *all* of our heavy bombers are ‘nuclear bombers’ first and the ability to carry conventional bombs is there as an afterthought.

      Fucvk, the whole article reads like he copied off of Wikipedia with no understanding.

      1. Apparently the author doesn’t know that *all* of our heavy bombers are ‘nuclear bombers’ first and the ability to carry conventional bombs is there as an afterthought.

        Not the B-1. Has been conventional only since 94. However, it was developed as one, if that’s what you meant.

    6. For example, The Aviationist reported in October that a civilian with a handheld radio scanner intercepted B-2 and B-52 pilots over Kansas training to pull off a strike on North Korean VIP targets.

      So, IOW, training…as they have every day since they became operational…

      SMDH!

  13. “Families have a “well-elaborated constitutional right to live together without governmental interference,” the appeals court noted,”

    This wording bothers me a LOT.
    It sounds like the court is claiming that somewhere in the constitution, there is a note saying ‘families get to live together’, when is should be that nowhere in the constitution does it allow some hall-monitor busy-body to bother people without that warrant.
    People should not have to find ‘constitutional rights’; the government should have to show exactly how and why the agent felt she could do what she did.

  14. Bratfart.com

    “Amnesty Don” lied to us!

    http://www.breitbart.com/

    You wingnuts have been CONNED by the Con Man.

    1. DOW JONES INDU AVERAGE NDX(Dow Jones Global Indexes:INDUS – 26,252.12

    2. Well, out of the many things I could be lied about, him secretly being pro-open borders would be one of the most pleasant surprises.

    3. Nobody’s been conned by him. He’s doing exactly what I expected him to do.

    4. Oh man. Some of those comments are just precious. This one is my favorite thus far:

      President Trump TOTALLY CAVES on AMNESTY for 3.6 MILLION ILLEGAL ALIEN INVADERS!!! To HELL with you Trump! You are stabbing us American Citizens in the back!! You have LIED to us Deplorables & Working Class-Middle Class Americans who VOTED for you!! I am DONE with you, the Republican Sell-outs will LOSE in a Landslide in 2018!! SHAME ON YOU!! Enjoy your Impeachment!! Mueller will eat you for lunch next week!! MAGA?? AMERICA FIRST?? WHAT A JOKE!!

      1. I don’t want that guy to be upset. But my guess is he’d be upset no matter what happened.

      2. “Oh man. Some of those comments are just precious.”
        Have you read Tony’s comments on the supposed Trump/Russia connection? Comedy gold!
        Get him going on “treason”: A laugh riot

  15. 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.”

    And never returned those assets, right? RIGHT?!

  16. Don’t take nude photos of any kind to be developed by Walmart

    1. I wonder why Walmart was released from the list of defendants. It seems like they are highly complicit in the process.

  17. Can we talk about the exceptionally disturbing fact that someone was getting photos printed out at a photo mat these days?

    1. That is what I was thinking. But then again this all happened back in the Stone Age of 2008, so maybe it is not so unusual after all.

    2. look, apparently these . . . *people* were still using floppy media and VHS. Freaking primitivists!

    3. 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.

      Snark FAIL. Some people like to get photos printed. Maybe for scrapbooking bullshit.

      Related: having gotten back into photography recently, I got a Christmas gift of a “104 things to photograph” book, the idea being to go take photos and put prints in the book. I was furious with it for a good 20 minutes. Just think of how much goddamn trouble and money it would cost to use this ‘gift’ as it’s intended.

      1. 10 fucking years dealing with this shit. Unreal.

  18. Nudity =/= sexual

    What is so difficult to understand about that?

  19. Too bad there aren’t any lawyers with enough balls to challenge the governments assertion that children can somehow be “voodoo raped” by looking at a picture of them.

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