SOCIAL WORKERS AND THE FOURTH AMENDMENT CASE LAW

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Dazeemay
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SOCIAL WORKERS AND THE FOURTH AMENDMENT CASE LAW

Postby Dazeemay » Fri Jul 22, 2005 6:35 pm

http://www.childlaw.us/

June 20, 2005
Social Workers and the Fourth Amendment
It should come as no surprise that social workers and other child welfare workers are covered by the Fourth Amendment to the United States Constitution. What might be surprising is that the most conservative federal district courts are taking the lead in defining this new and rapidly evolving constitutional mandate, most notably the Tenth Circuit Court of Appeals (covering Wyoming, Utah, Colorado, New Mexico, Oklahoma and Kansas).

Applicable to the states through the Fourteenth Amendment's Due Process Clause, the Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." Because the Amendment focuses on safeguarding persons from unwarranted intrusion, and not on regulating the behavior of particular governmental actors, the prohibition against unreasonable seizures extends to civil, as well as criminal, investigations by the government.

In Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003), the Tenth Circuit Court of Appeals held that there is no social worker exception to the Fourth Amendment. In Dubbs, eight pre-school children enrolled in the Head Start program were subjected to intrusive physical examinations, including genital examinations and blood tests, on school premises without parental notice or consent.

Also in 2003, the Seventh Circuit Court of Appeals, in Doe v. Heck, 327 F.3d 492 (7th Cir. 2003), held that the strictures of the Fourth Amendment apply to child welfare workers, as well as all other governmental employees. In that case, a private Christian elementary school and a student's parents sued several child welfare caseworkers under the Fourth and Fourteenth Amendments after the caseworkers interviewed a student about corporal punishment without a warrant or the consent of the school or parents.

A Fourth Amendment analysis is based on the totality of the circumstances in determining whether a reasonable person would have believed that he was not free to terminate an encounter with government. Some of the factors considered include:


1) the threatening presence of several officials;
2) the brandishing of a weapon by an official;
3) some physical touching by an official;
4) use of aggressive language or tone of voice indicating that compliance with an official's request is compulsory;
5) prolonged retention of a person's personal effects;
6) a request to accompany the official to the station;
7) interaction in a nonpublic place or a small, enclosed place;
8) and absence of other members of the public.

In the Tenth Circuit Court of Appeal's most recent decision issued last week, Jones v. Hunt, 2005 WL 1395095 (10th Cir. 2005), the court analyzed a sixteen year old girl's encounter with child welfare social workers "through the eyes of a reasonable sixteen year old" child.

After concluding that the alleged encounter constituted a seizure, the court then reviewed whether the seizure was reasonable which depends on the context in which it took place. With limited exceptions, a search or seizure requires either a warrant or probable cause.

In this case, the court found that the social worker's actions "violated the most minimal standard of which we can conceive." The court held that where no legitimate basis exists for detaining a child, a seizure is plainly unreasonable. The court further found that this standard was clearly established as far back as 1994 when it held, in Doe v. Bagan, 41 F.3d 571 (10th Cir. 1994) that a seizure of a nine year old boy was justified at its inception because a victim of child abuse had identified him as her abuser and a ten minute interview with a social services caseworker was reasonably related in scope to determining Doe's role in the incident.

In a critical footnote in Jones v. Hunt, the court noted that "we do not imply that a social worker investigating allegations of abuse or neglect necessarily requires a warrant, probable cause, or exigent circumstances before questioning a child on public school property. Where a social worker merely conducted an interview of a child at a public school, and thus did not remove the child nor interfere with the sanctity of the private home, we have applied the Terry standard." (a search of a child by a government official is reasonable if "justified at its inception" and "reasonably related in scope to the circumstances which justified the interference in the first place")

The court concluded "it may be that the Terry standard applies even where a social worker removes a child from her parents' custody at a public school following a legitimate investigation into child abuse and neglect."

Should the Fourth Amendment apply to the day to day workings of social workers in child welfare investigations? Do social workers understand and apply this constitutional mandate in your jurisdiction?

Posted by James R. Marsh at 06:59 PM | Comments (1) | Trac
**********************************
This is not legal advice;hopefully wisdom

To put it in simple terms…when the authorities ARE the perpetrators and the perpetrators ARE the authorities, there is no earthly justice or recourse, at the end of the day (unless the American people wake up).

Therefore, those who have achieved the highest levels of power seek to ‘enjoy’ the most grievous and extreme injustices. For many of those in the highest circles of power, the greatest statement of power is to perpetrate the greatest possible injustice…the savage, brutal traumatization and abuse of an innocent child.
http://themurkynews.blogspot.com/ MattTwoFour

"Ultimately, the law is only as good as the judge" --- D.X. Yue, 2005, in "law, reason and judicial fraud"
http://www.parentalrightsandjustice.com/index.cgi?ctype=Page;site_id=1;objid=45;curloc=Site:1

gideonmacleish
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Postby gideonmacleish » Sun Oct 02, 2005 11:48 am

Thanks, dazee. I needed this tidbit. We're currently fighting the social worker's demand to a home visit in response to the claims against us on our fourth amendment grounds. She continues to insist that she has a right to demand the home visit.

This should help...a LOT!

sedwards
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Postby sedwards » Mon Oct 03, 2005 4:34 am

Only if it is ordered by a jdge . do they have a right to home visits . Other than that hellno they dont . they dont even have the right to be on your property. If they are bugginf you tell them take you to court . Now if a jugde orders it then you have to let them in your home and let them see the children or you are in violation .. They have no rights just remember that .... That is your home! Tell them like i did . If you want to come to my house with out judges orders than you better talk to my landlord and change the lease. Cause as of now it has my name on it . Which means it is mine. And you are trespassing on my property. So you have one of two choices you can leave or i can cal the law . She said hhhhhuumm and walked to her car and left . Lease never got changed . But my address eventually did lol She can have it now :)

gideonmacleish
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Postby gideonmacleish » Mon Oct 03, 2005 9:45 am

Where this helped us is in realizing that the "mandatory" interviews they were stating they needed to complete their investigation ALSO fall under 4th amendment protection. I was aware the home "visit" (read: SEARCH) was unconstitutional, but was, before this, unaware that the interviews without consent were also protected. I had previously given VERBAL consent, I called today at 10:06 AM and advised them that I was WITHDRAWING verbal consent.

I am also aware that a search warrant establishes the parameters of their search. If they enter, for instance, to prove that we have food for the children, then the warrant establishes that they can ONLY satisfy that requirement; they can't use the warrant to search for everything and anything they can find. I am also aware that it will similarly protect our children in interview situations...and that's all I am asking, as my children are too young to identify and fend off leading questions.

I can't say I'm not frightened by this fight; heck, we ALL are. But I am aware that our defense of our rights is bigger than we are; it is important for EVERY American citizen.


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