Sept. 30, 2012

Search ruled 'voluntary' despite threat armed officers would seize children

Police cars screech to a halt outside your door, six deputies approach along with two social workers who warn they have information from an anonymous tipster and threaten that unless you allow them to enter RIGHT NOW, the armed officers will take your children away from you.

So your decision to allow the authorities to enter is completely voluntary?

That’s the determination of a federal judge who has relieved two social workers – Rhonda Cash and Jenna Cramer – of liability for their actions in a case brought by homeschooling parents John and Tiffany Loudermilk in Arizona.

The 9th U.S. Circuit Court of Appeals previously ruled that deputies Joshua Ray, Joseph Sousa, Richard Gagnon and Michael Danner had qualified immunity for their role in the 2005 confrontation with the Loudermilks, the parents of five children.

Jim Mason, a senior counsel for the Home School Legal Defense Association’s litigation team, which represents the Loudermilks, explained that in 2005, the couple was confronted at their door by authorities investigating a two-month-old anonymous allegation that their home was unsafe.

Faced with losing their children, Mason said, the Loudermilks opened their door to the investigators, “and the allegation was quickly proven false.”

However, the Loudermilks’ civil rights lawsuit against the social workers and the deputies, citing Fourth and 14th Amendment rights, has faced an uphill battle.

“We argued that the search of the Loudermilks’ home was coerced because the social workers used the threat of taking their children to gain access,” Mason said. “Both the social workers and sheriff’s deputies argued that they were immune to such claims because the Loudermilks ‘voluntarily’ opened their home to be investigated.”

The district court ruled in the Loudermilks’ favor in 2010, but the deputies then obtained a ruling from the 9th Circuit, which said the deputies were entitled in immunity.

Then the lower court, which originally concluded that such searches were not voluntary, changed its mind, Mason said.

“While the sheriff’s deputies had arrived on the scene late and were not insisting to enter the home, the social workers were. It was the social workers who claimed that their visit was an ‘emergency’ despite the allegation being two months old. The social workers, not the deputies, threatened to take the Loudermilk children into custody. Despite our response to the social workers’ request, the district court ruled that the social workers were also immune from violating the Loudermilks’ rights based on the ruling of the Ninth Circuit in favor of the deputies,” he said.

Mason said the organization now is considering whether there should be an appeal.

“Based on the facts and the law, it is our view that the social workers should not be entitled to the same benefit of the doubt that the Ninth Circuit afforded the deputies,” he said.

The HSLDA has noted in court papers: “For 40 terrifying minutes, this homeschooling couple had asserted their Fourth Amendment right to be free from an unreasonable search of their home. The two investigative social workers were eventually joined by six uniformed sheriff’s deputies who were called because the social workers considered the Loudermilks to be ‘uncooperative.’”

But the HSLDA said the Loudermilks were forced to allow the search when the social workers “played their ace-in-the-hole,” warning, “If you don’t let us in immediately, we will take your children into state custody.”

The court filing explains that the still-anonymous tipster told authorities that there was a danger to the children in the new home, but social services took some two months to respond.

“In the two months between receiving the anonymous report and arriving unannounced on the Loudermilks’ front porch, social services clearly never believed that the situation needed emergency intervention,” HSLDA asserted. “No one ever asked a judge for a court order. But when it came time for the social workers to complete their investigation, the family’s Fourth Amendment rights just got in the way.”

According to court filings, the Loudermilks had been building their dream home in Arizona. They eventually obtained permission from the county to move in, even though there were minor projects to be finished.

One social worker left a business card and later explained when the parents contacted the office that there had been an anonymous tip. A visit was scheduled for the social worker to investigate what allegedly was a “danger” to the children two months later.

However, the family consulted a lawyer who warned the county that the county itelf had given proper permission for the family to move in.

When social workers Cash and Cramer appeared at the home unannounced some weeks later, they threatened to take the family’s five children.

The petition says Cash “appeared to believe that her simple inability to determine the children’s living conditions was sufficient grounds for her to remove the children from their parents.”

That’s even though the social workers were allowed to talk to the children to see that they were fine.

Nevertheless, the threats from Cash continued.

“Faced with unrelenting ultimatum that the officers would physically remove the children from the home unless they were admitted, together with a significant show of force, John felt that he had no option besides allowing the search of his home. He believed that he would be arrested and the children removed if he continued to refuse. … Tiffany believed her children would be immediately removed from the home if she did not allow the social workers and officers to search her home.”

The ultimate search took only minutes and uncovered no issues, showing that the “tip” was wrong.

U.S. District Judge Earl H. Carroll previously concluded the lawsuit by the family against the social workers, sheriff and deputies would be allowed to continue, because the social workers’ concerns were based on “an anonymous tip that the … Loudermilk children were being neglected and that plaintiffs’ home was uninhabitable.”

However, the judge said that under federal law, an anonymous tip “without more, does not constitute probable cause.”

http://www.wnd.com/2012/09/judge-oks-social-workers-invasion-of-homeschoolers/print/