No Qualified Immunity for Kentucky Cops Who Strip-Searched a 4-Year-Old and Threatened Mom

Judge: "America's founding generation... knew their fair share of unwelcome constables."

Good news, parents: If you let your kids wait in the car for less than 10 minutes on a cool day—doors locked and fan on—a caseworker and sheriff are actually not allowed to come to your home, threaten to take your children away, and strip search the kids.

These very basic rights were just vindicated the hard way: by a Kentucky mom in federal court. Holly Curry sued the cop and the caseworker, insisting that the day she was investigated for child abuse, the two authorities so overstepped their bounds that they should not be afforded qualified immunity. In other words, their behavior was so egregious, they had to take responsibility for it. The judge agreed.

You may recall the case. Back in March of 2017, Curry was driving her kids to karate when she stopped to get them some muffins. She was in the café for just a few minutes. When she came out, two cops rebuked her for leaving the kids.

In Kentucky, it's a crime to leave children under the age of eight in a car under circumstances that "manifest an extreme indifference" to human life and create a grave risk of death. But the cops didn't say she'd done that. The kids all looked fine, and they the officers left without charging Curry with a crime. Nevertheless, they felt obligated to call the state's child protection hotline, thus opening a neglect investigation which automatically required a visit to the Curry home to check on the kids.

When the caseworker arrived at the home, Holly refused to let her in without a warrant. The worker returned with a sheriff's deputy, but still no warrant. When Holly insisted that they still couldn't enter, they threatened to "come back and put your kids into foster care." Holly begged for time to call her husband. They refused. Finally, crying and terrified, Holly let them in.

Labeling that decision "voluntary consent," the authorities entered the home. Unsurprisingly, the house and kids all looked fine. Even so, the caseworker insisted on strip searching each kid, removing their underwear and examining their genitals for signs of abuse.

A few months later, the caseworker closed the investigation as "unsubstantiated," saying that what Holly had done was a "one-time 'oopsy-daisy.'" But she telephoned Curry later and said, "If we ever get a call against your family again, bad things will happen to you, and we'll take your children."

At that point, Curry had had enough. She turned around and filed suit against the caseworker and cop, claiming violation of her constitutional rights.

They, in turn, pressed hard for immunity. But in in a powerful ruling on August 19 in Curry v. Kentucky Cabinet for Health and Human Services, Judge Justin Walker said that it was clear the government used an improper threat to enter the home, lacked any evidence that might have justified a strip search, and violated the children's rights to bodily integrity. According to Walker:

Act One: An "attentive and loving" mother gets muffins for her children. Act Two: There's a knock on her door and a threat by the government to take away her children. Act Three: Her children are strip searched without cause. America's founding generation may never have imagined a Cabinet for Health and Family Services. But they knew their fair share of unwelcome constables. And they added a Fourth Amendment to our Constitution to protect against this three-act tragedy.

To enter a home without consent and examine stripped kids requires a warrant, genuine suspicion of abuse, or an actual emergency. Who knew? Apparently not the authorities in Kentucky, who have been defending the warrantless entry and strip ever since the Curry's filed their lawsuit in 2018.

Assuming the decision stands, "it's very good news for child welfare and police reformers," says Diane Redleaf, co-chair of United Family Advocates and Let Grow's legal consultant.

"It's also welcome news for all the parents who want to give their kids some unsupervised time—to walk to school, to come home with a latchkey, to wait briefly in the car—but fear what could happen to them if an onlooker decided to call 911," says Redleaf.

The Currys are home schoolers who enlisted James R. Mason, executive director of the Home School Legal Defense Association, to file the federal suit on their family's behalf. Mason hopes that now the authorities will think twice before barging into homes and strip searching kids without evidence of wrongdoing by the parent. The investigator in the case testified that they "automatically strip search every child when they go into a home," Mason notes. "No more."