Lawsuits Against the Texas Department of Family and Protective Services?

Some commenters on the earlier post raised this issue, so I thought I'd speak briefly about it.

1. Fourth Amendment and the substantive parental rights doctrine developed under the Due Process Clause: From what I've seen of the circuit court cases, both constitutional provisions have been read as requiring at least reasonable suspicion of imminent danger to the child (or of past abuse to the child, which will usually also lead to individualized reasonable suspicion of imminent danger) before a child can be seized by child protective services, even briefly. Some courts require not just reasonable suspicion, but the higher standard of probable cause. See Doe v. O'Brien, 329 F.3d 1286 (11th Cir. 2003) (probable cause); Hatch v. Department for Children, Youth and Their Families, 274 F.3d 12 (1st Cir. 2001) (reasonable suspicion); Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) (probable cause, especially when read together with Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir. 2000)); Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999) (generally suggesting probable cause, though leaving open a "special needs" exception for unusual cases). The rule may be different when the child is detained briefly at a government-run school as opposed to in a private home or a private school, but that's not at issue here. As I read the Texas Court of Appeals decision, it looks like the state did not have probable cause or even reasonable suspicion of abuse as to many of the children involved in the raid, so the Fourth Amendment and the parents' parental rights have almost certainly been violated.

Of course, before any damages award is given, there'd have to be a finding that the law is well-established (or else the defendants would have qualified immunity. My quick search didn't find any Fifth Circuit or Texas state precedent that's entirely on point. But my sense is that the need for at least individualized reasonable suspicion is likely clearly enough established (even if only in other circuits), especially given the broader background Fourth Amendment principles requiring probable cause for seizures in private homes.

2. Procedural rights under the Due Process Clause: I know much less about this than I do about the Fourth Amendment and substantive parental rights, but I strongly suspect that the Due Process Clause has been read as requiring a hearing before one's children are removed, even temporarily, unless there are some exigent circumstances preventing that. Given the Texas Court of Appeals' description of the facts, it sounds like exigent circumstances were indeed absent here, at least as to many of the children.

3. State law rights: I can't speak to whether Texas law provides its own damages remedy for the violations of the law found by the Texas Court of Appeals.

Cornellian (mail):
Isn't there some type of 11th Amendment issue with such lawsuits?
5.22.2008 7:36pm
S1938 takes precedence over the 11A at least insofar as it falls within Congress's power under the 14A.
5.22.2008 7:51pm
George Weiss (mail) (www):
as for state law claims (as opposed to federal claims against the state)-Texas seems to have two types of liability:

1) motor vehicle/proprietary liability
2) indemnifying state officials for tortuous acts in the scope of employment

this would be the latter-and § 104.003. of the Texas governmental liability code limits such suits to 300,000 per incident (and an additional 10,000 for property)

so i doubt such cases are really going to be worth it compared to the possibility of federal recovery. (not to mention the fact that plaintiffs are going to probably face criminal charges they will be busy with
5.22.2008 8:17pm
Bill Dyer (mail) (www):
What "violations of the law" are you talking about, Prof. V?

The opinion found that the agency had failed to meet its burden to establish particular facts that the statute requires be proved before parental custody can be even temporarily interrupted.

That's in no way equivalent to a "finding" that anyone at the agency did anything in bad faith or "violated" any law (a phrase that normally implies the violation of a criminal statute).
5.22.2008 9:39pm
Don Cruse (www):
Texas does not have a statute creating a claim for constitutional damages that is akin to 1983. But since these are likely federal constitutional claims, 1983 would be available.

There are certain situations in which the Texas Legislature has waived sovereign immunity for other types of damage suits (such as the tort suits alluded to by the previous poster and also a cause of action for those who have been wrongfully incarcerated for a criminal conviction), but I am not aware of a statute that would apply to this situation.

Oren is (of course) right that a 1983 action can be brought against state officials for damages without offending the 11th amendment, but it couldn't name the State itself (or likely this state agency) as a defendant.
5.22.2008 9:42pm
David Friedman (mail) (www):
Bill Dyer asks about what violations of law occurred.

Unlike Eugene I'm not a lawyer. But I would have thought that holding someone prisoner on the pretense that she is a minor, when she has shown you documentary evidence that she is an adult and you have no evidence to the contrary, would count as unlawful restraint of some sort. In one case the woman was 27, in another 22 and pregnant--and compelled to have her child under CPS supervision, after which they decided to admit she was an adult.

More generally, I think it is pretty clear that the CPS has acted throughout in bad faith. They claimed to have 31 minors who had had children or were pregnant. At this point they have conceded that at least 15 of them were adults, and the appeals court seems to think there were only five such minors. So far there is no evidence that any of them got pregnant through a violation of Texas law--they could all have been legally married, and the CPS offered no evidence that they weren't. And there is no evidence that there were any pregnant minors at the ranch. Of the three women specifically claimed to be such, two were adults and I believe the CPS has now conceded that the third, who is fourteen, is not pregnant.

The CPS made repeated statements about the age of women in their custody, clearly designed to justify their actions, without mentioning that they were refusing to accept documentary evidence of age, hence did not know the ages of the women in question, hence were making statements they had good reason to believe were false.

They tried to argue that the number of children found by X-rays to have had fractures was evidence of child abuse--until someone pointed out that the number came to under 10% of the children they had under their control, making the rate if anything rather lower than average.

Their spokeswoman claimed to have spoken with several girls who knew the "Sarah" who had made the initial call--who we now know was a 33 year old Colorado woman with no connection to the FLDS and a history of bogus phone calls.

How many such examples does it take before you conclude that the CPS has been engaged in deliberate fraud in an attempt to justify their initial action?

Finally, I think if you read the appeals court opinion, you will see that what they are claiming is not merely an error of judgment but a decision so indefensible that no reasonable person could have honestly made it. Deliberately violating rights under color of law is actionable; I don't known what it takes to make it criminal.
5.22.2008 10:03pm
7th Circuit just reiterated that finding with state social worker who entered private school and did physical examination of student w/o warrant.
5.22.2008 10:09pm
Michael Masinter (mail):
Here's a quick refresher course on section 1983 and the eleventh amendment. Claims against state actors sued in their individual capacity do not implicate the eleventh amendment, but individuals so sued may as Eugene notes assert the defense of qualified immunity. Claims against the state and its agencies do implicate the eleventh amendment, and though section 1983 was enacted by congress under its section five powers, it does not by its terms purport to strip states of their eleventh amendment immunity, so for that reason the eleventh amendment forbids naming a state or its agency as a defendant in a suit under section 1983; in addition, a state is not a "person" within the meaning of section 1983. Although one can circumvent the eleventh amendment in a suit by suing the head of a state agency in his official capacity for prospective injunctive relief, the eleventh amendment bars official capacity suits against agency heads that seek retrospective monetary relief whether designated as compensatory damages or equitable restitution. Entities of local government do not enjoy protection under the eleventh amendment; neither are they entitled to qualified immunity, but they are only liable for the acts of an individual employee or officer when the individual is carrying out the official policy of the entity or is a final policymaker for the entity who by acting has made final policy.
5.22.2008 10:09pm
David Friedman (mail) (www):
Eugene's comments focus on the seizure of the children, but it seems to me that there are at least two other elements of the CPS's actions that may be actionable. They held a considerable number of adult women under their control on the pretense that they were minors. At least some had presented birth certificates showing they were adults, the CPS seems to have had no evidence at all to the contrary,and it has now conceded that at least 15 of them were adults--including one who was 27.

I think there is evidence that this was not an error but deliberate fraud--that they reclassified twenty-some women as minors at the point when they discovered that they had almost no minors who either were or had been pregnant, making it hard for them to justify their previous actions. If so, I would think it would be actionable.

There is also the matter of defamation. They claimed a pregnant woman was a minor when she was actually 22 and married. They claimed a 14 year old was pregnant, a claim they have apparently now conceded was false. They claimed that 31 out of 53 minor women were either pregnant or mothers; the appeals court seems to think the real number was 5. I would think all of those would be actionable, the first two as defamation of particular people, the third as defamation of the FLDS.

Interested readers may want to look at my blog. I've been covering the case almost from the beginning, and it now looks as though my guesses at what was going on have largely been vindicated by the court.
5.22.2008 10:12pm
Eugene Volokh (www):
Mr. Dyer: I meant violations of Texas Family Code 262.201 and surrounding sections -- "the violations of the law found by the Texas Court of Appeals" -- and whether the violations could lead to civil liability (the "damages remedy" I mentioned).
5.22.2008 10:20pm
Bill Dyer (mail) (www):
Prof. V: The word "violate" or "violation" doesn't appear in the opinion. No findings was made that the agency violated anything. My further comments on this topic are on your earlier post.
5.22.2008 11:08pm
EH (mail):
Whatever the statutes are, this case gets increasingly Nifong-esque with every development.
5.22.2008 11:12pm
Eugene Volokh (www):
Bill Dyer: I respond here with more on why I think the Court of Appeals decision did indeed find a violation of the law on the Department's part.
5.23.2008 2:27pm
David Rogers (mail) (www):
There is no Texas analog to §1983. Injunctive relief is available for violation of Texas Constitutional provisions, but money damages and attorney's fees are not available. There is a Texas criminal statute for "official oppression," but that is rarely used, and will likely not be invoked in this case.

Attorney's fees would be available in a Texas Declaratory Judgments Act action (similar to the federal UDJA), but again, no money damages would result.
5.23.2008 2:50pm