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CPS is Liable for Violation of Rights Under the US Constitution


http://www.truthwillprevail.org/index.php?parentid=1&index=25

Officials Are Liable for Their Actions in the YFZ Raid
2008-05-21 12:54:05
By Donald Richter

Many victims of the raid on the YFZ community, as well as many of those sympathetic to the disrupted families, recognize the gross violations of human rights which have occurred in this tragic event but feel helpless to do anything about them. Those responsible for these violations seem able to justify any atrocity under the cloak of “protecting the children” and behave as though they were above the law and accountable to no one.

The truth is that those involved in the raid can and should be held accountable for their actions. There are numerous precedent-setting cases in federal courts which involve rulings that seem almost tailor-made for the YFZ case.

Before citing several of these cases, let us notice briefly a few of the actions in this raid that involve clear civil-rights violations.

v The raid was based on an anonymous phone call, which has since been shown to be a hoax. Sheriff David Doran knew his information was unreliable before he ever entered the community.

v The entire community was treated as a single residence. Separate search warrants were not obtained for the individual homes.
One citizen reported that when he demanded to see a search warrant before admitting officers to his home, he was told that the warrant had been served on Mr. Jessop at the gate.
“This isn’t Mr. Jessop’s home,” the citizen objected.
“Well, we’re coming in anyway,” he was told.
Many others could testify to the same treatment.

v Coercive and intimidating behavior was standard procedure for those conducting the raid.

v Children were removed en masse from the community without any particularization of evidence of child abuse in individual families.

v The principle of due process was ignored during the preliminary hearing that placed the children in state custody.

The cases cited in this article are gathered from the list of Case Laws at http://www.gigglesandfrog.com/CaseLaws.html. The reader is encouraged to look at the whole collection. Almost every decision is relevant in some way to the YFZ case.

CONSTITUTIONAL RIGHT TO BE A PARENT CASE LAWS

Doe et al, v. Heck et al (7th Cir. Ct. App. 2003)

The practice of “no prior consent” interview of a child, will ordinarily constitute a “clear violation” of the constitutional rights of parents under the 4th and 14th Amendments to the U.S. Constitution. The investigative interview of a child constitutes a “search and seizure” and, when conducted on private property without “consent, a warrant, probable cause, or exigent circumstances (imminent danger),” such an interview is an unreasonable search and seizure in violation of the rights of the parent, child, and, possibly of the private property.

Griswold v. Connecticut

The Constitution also protects “the individual interest in avoiding disclosure of personal matters” Federal Courts (and State Courts), under Griswold can protect, under the “life, liberty and pursuit of happiness” phrase of the Declaration of Independence, the right of a man to enjoy the mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of law. There is a family right to privacy, which the state cannot invade or it becomes actionable for civil rights damages. 381 US 479, (1965)

In the Interest of Cooper (Kansas 1980)

Parent’s interest in custody of their children is a liberty interest which has received considerable constitutional protection; a parent who is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection.

Santosky v. Kramer (102 S. Ct. 1388 1982)

Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. The U.S. Supreme Court ruled that clear and convincing evidence rather than a mere preponderance were needed to terminate parental rights. 455 US 745 (1982)

DUE PROCESS CASE LAWS

Brokaw v. Mercer County (7th Cir. 2000)

Children have a Constitutional right to live with their parents without government interference. Child’s four month separation from his parents could be challenged under substantive due process. Sham procedures don’t constitute true procedural due process. — Just the highlights

Quilloin v. Walcott (1978)

A due-process violation occurs when a state-required breakup of a natural family is founded solely on a “best interests” analysis that is not supported by the requisite proof of parental unfitness. 434 U.S. 246, 255 (1978)

GENERAL FAMILY RIGHTS CASE LAWS

Cassady v. Tackett

Coercive or intimidating behavior supports a reasonable belief that compliance is compelled.

Florida v. Bostick (S. Ct. 1991)

“Consent” that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse.

K.H. through Murphy v. Morgan (7th Cir. 1990)

State employee who withhold a child from their family may infringe on the family’s liberty of familial association. Social workers could not deliberately remove children from their parents and place them with foster caregivers when the officials reasonably should have known such an action would cause harm to the child’s mental or physical health.

North Hudson DYFS v. Koehler Family (2001)

The court explained “absent some tangible evidence of abuse or neglect, the Courts do not authorize fishing expeditions into citizens’ houses. Mere parroting of the phrase “best interest of the child” without supporting facts and a legal basis is insufficient to support a Court order based on reasonableness or any other ground.”

JUDGES & PROSECUTORS – ABSOLUTE IMMUNITY CASE LAWS

Forrester v. White (S. Ct. 1988)

Holding that judges do not have absolute immunity when acting in an administrative capacity. — Just the highlights

Joseph v. Patterson (6th Cir. 1986)

Prosecutor was not entitled to absolute immunity where it is alleged that he supervised and participated in an unconstitutional police interrogation.

Kalina v. Fletcher (S. Ct. 1997)

A prosecutor is not entitled to absolute immunity for allegedly false statements of fact made in an affidavit supporting an application for a warrant.

QUALIFIED IMMUNITY CASE LAWS
“I WAS ONLY FOLLOWING ORDERS”

Good v. Daupin County Social Services (3rd Cir. 1989)

Defendants were not entitled to qualified immunity for conducting a warrantless search of home during a child abuse investigation where exigent circumstances were not present. Court held that a search warrant or exigent circumstances, such as a need to protect a child against imminent danger of serious bodily injury, was necessary for an entry without consent, and an anonymous tip was insufficient to establish special exigency. 891 F.2d 1087

Grossman v. City of Portland (9th Cir. 1994)

Individuals aren’t immune for the results of their official conduct simply because they were enforcing policies or orders. Where a statute authorizes official conduct which is patently violative of fundamental constitutional principles, an officer who enforces that statute is not entitled to qualified immunity.

Hafer v. Melo (S. Ct. 1991)

Social workers (and other government employees) may be sued for deprivation of civil rights under 42 USC 1983 if they are named in their ‘official and individual capacity. — Just the highlights

Walsh v. Erie County Department of Job and Family Services

Child protection social workers claimed they were immune from liability in a civil violation (4th Amendment) suit, claiming qualified immunity because “they had not had training in Fourth Amendment law.” They felt they couldn’t be sued for their mistake, because they thought they were not binded by the Fourth Amendment. The court disagreed ruling “That subjective basis for their ignorance about and actions in violation of the Fourth Amendment does not relieve them of the consequences of that ignorance and those actions.” and denied their immunity. 3:01-cv-7588.

Aponte Matos v. Toledo Davilla (1st Cir. 1998)

An officer who obtains a warrant through material false statements which result in an unconstitutional seizure may be held liable personally for his actions under section 1983.
False statements made to obtain a warrant, when the false statements were necessary to the finding of probable cause on which the warrant was based, violates the Fourth Amendment’s warrant requirement. The warrant clause contemplates the warrant applicant to be truthful: “no warrant shall issue, but on probable cause, supported by oath or affirmation.” Deliberate falsehood or reckless disregard for the truth violates the warrant clause. When a warrant application is materially false or made in reckless disregard for the truth, the warrant becomes invalid and will have been obtained in violation of the Fourth Amendment’s warrant clause. A search must not exceed the scope of the search authorized in a warrant. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the Fourth Amendment particularity requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers of the Constitution intended to prohibit. There is a requirement that the police identify themselves to the subject of a search, absent exigent circumstances. Failure to knock and announce forms part of the reasonableness or not inquiry under the Fourth Amendment.

Brokaw v. Mercer County (7th Cir. 2000)

Child removals are “seizures” under the Fourth Amendment. Seizure is unconstitutional without court order or exigent circumstances. Court order obtained based on knowingly false information violates fourth amendment. — Just the highlights.

Calabretta v. Floyd (9th Cir. 1999) Warrant-less Search

There is no exception to the warrant requirement for social workers in the context of a child abuse investigation. A social worker may not force their way into a home without a search warrant in absence of an emergency. Police officers and social workers are not immune for coercing or forcing entry into a person’s home to investigate suspected child abuse, interrogation of a child, and strip search of a child, without a search warrant or special exigency.. — Just the highlights. 189 F. 3d 808.

California v. Hobari D. (1991)

For purposes of the Fourth Amendment, a “seizure” of a person is a situation in which a reasonable person would feel that he is not free to leave, and also either actually yields to a show of authority from police or social workers or is physically touched by police. Persons may not be “seized” without a court order or being placed under arrest. 499 U.S. 621

Griffin v. Wisconsin (483 U.S. 868 – 1987)

The United States Supreme Court has held that courts may not use a different standard other than probable cause for the issuance of such orders. If a court issues a warrant based on an uncorroborated anonymous tip, the warrant will not survive a judicial challenge in the higher courts. Anonymous tips are never probable cause.

Walsh v. Erie County Department of Job and Family Services

Child protection workers are subject to the 4th and 14th Amendment in the context of an investigation of alleged abuse or neglect as are all “government officials”. The court ruled “despite the defendant’s (child protection worker) exaggerated view of their powers, the Fourth Amendment applies to them, as it does to all other officers and agents of the state whose request to enter, however benign or well-intentioned, are met by a closed door.” “The Fourth Amendment’s prohibition on unreasonable searches and seizures applies whenever an investigator, be it a police officer, a DCFS employee, or any other agent of the state, responds to an alleged instance of child abuse, neglect, or dependency”. 3:01-cv-7588.

Yabarra v. Illinois (1979)

Where the standard for a seizure or search is probable cause, then there must be particularized information with respect to a specific person. This requirement cannot be undercut or avoided simply by pointing to the fact that coincidentally there exists probable cause to arrest or to search or to seizure another person or to search a place where the person may happen to be. 44 U.S. 85

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