The Volokh Conspiracy
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Victor Fakoya and his family are Nigerian immigrants. After they moved to Las Vegas, they hosted another immigrant family with a two-year-old son, who died while home with Mr. Fakoya. The Nevada DA's office investigated Mr. and Mrs. Fakoya for the child's death, charged Mr. Fakoya with murder, and brought no charges against his wife. He stood trial twice in Nevada state court: the first jury hung and the second acquitted him. Mr. Fakoya spent two years in pretrial detention because he could not afford to post bond.
He returned home on December 21, 2010. Mr. Fakoya was removed from his home again on December 23, 2010, and Clark County initiated family-court proceedings against him on January 6, 2011, arguing under the lower civil standard that his parental rights should be terminated because of the alleged murder. A post-deprivation hearing occurred the second week in January.
For more than five months after he was removed from his home, Mr. Fakoya was permitted supervised visitation with his children, which Mrs. Fakoya oversaw. The Fakoyas allege that officials from the DA's office and CPS used coercive tactics to elicit an admission from Mr. Fakoya that he murdered the two-year-old boy – and they advised Mrs. Fakoya that she must either divorce her husband or lose custody of their daughters.
The Fakoyas believe civil proceedings were initiated against Mr. Fakoya in retaliation for his acquittal and for comments on his criminal trial. The Fakoyas also allege that the DA's office opposed Mr. Fakoya's effort to seal his criminal record – a routine procedure after an acquittal. He has been permitted to return to his family, but whether the civil proceedings have concluded is unclear from the complaint….
In a substantive-due-process case, the plaintiff must identify conduct "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience."
Plaintiffs have alleged a colorable substantive-due-process theory. They allege that County officials removed Mr. Fakoya from his family at Christmastime, as he returned home for the first time in two years after being acquitted of murder – and did so for retaliatory purposes and not as a legitimate exercise of government authority. And they allege that County officials instructed Mrs. Fakoyas that she must either divorce her husband or surrender her children. A reasonable jury could find that these actions shock the contemporary conscience.
And these allegations plausibly implicate a substantive-due-process right. The test for a substantive-due-process right is twofold: whether the right is "objectively, deeply rooted in this Nation's history and tradition" and whether "the crucial guideposts" of "[o]ur Nation's history, legal traditions, and practices" support the right. The fundamental rights recognized under substantive due process include "personal decisions relating to marriage … family relationships, child rearing, and education," which often "involv[e] the most intimate and personal choices a person may make in a lifetime." With respect to marriage, "the Constitution undoubtedly imposes constraints on the State's power to control the selection of one's spouse that would not apply to regulations affecting the choice of one's fellow employees." And the Supreme Court has long and specifically recognized the "essential," "basic," and "precious" rights to conceive and raise children.
As the Ninth Circuit recognized in Brittain v. Hansen, "It is long-settled that custodial parents have a liberty interest in the 'companionship, care, custody, and management' of their children." This interest does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state. In Smith v. City of Fontana, the Ninth Circuit panel wrote that § 1983 permits parents to challenge "a state's severance of a parent-child relationship as interfering with their liberty interests in the companionship and society of their children." "This constitutional interest in familial companionship and society logically extends to protect children from unwarranted state interference with their relationships with their parents" because "[t]he companionship and nurturing interests of parent and child in maintaining a tight familial bond are reciprocal, and we see no reason to accord less constitutional value to the child-parent relationship than we accord to the parent-child relationship."
The Fakoyas allege that County officials removed Mr. Fakoya from his family at Christmas, on the heels of his release from state jail, even though officials should have known he was innocent of the murder charges brought against him. DA and CPS employees then sought to sever Mr. Fakoya's parental rights, arguing under the lower civil standard that he was an unfit parent because he had killed a child in his home. The authority by which officials removed an adult parent from his own home – rather than removing the Fakoyas' minor daughters, as is typically done, if there was a threat to the children's welfare – is presently unclear. Yet taking the facts pled as true, it could be implied that County officials interfered with Mr. Fakoya's right to oversee his daughters' care and upbringing, and he thus states a plausible substantive-due-process claim.
Lola Fakoya has also alleged a plausible substantive-due-process claim. She alleges that DA and CPS officials used coercive tactics during the civil investigatory process when they "repeatedly" told her that she had to choose either marriage to her husband or custody of her children. The Fourteenth Amendment right to select one's own spouse is well-established – and, if County officials were indeed forcing Mrs. Fakoya to choose between her marriage and her children, they may have interfered with this right….
Note that, in principle, it's quite possible that if, for instance, there's a 90% chance that someone was guilty of murdering a child living in his home, he would (1) be rightly acquitted (since his guilt can't be proved beyond a reasonable doubt) but (2) rightly have his parental rights terminated (since he could be shown to be an unfit parent by clear and convincing evidence). And even if there's only, say, a 60% chance that he was guilty, he could well have his parental rights sharply curtailed, for instance by being limited to supervised visitation or some such. But the court concludes that there are sufficient allegations here that the government officials acted not for such legitimate reasons, but out of a retaliatory motive.