Wednesday, June 04, 2008

The FLDS Case: Further Legal Issues

A recent CNN story discussing the cost of the case so far to the state noted with a tone of regret that it would be difficult to force the parents to pay the cost since the state Supreme Court had found that the seizure of their children was without legal justification. Readers of this blog will not be surprised that I have been thinking about such issues from the other side. Are the Texas Department of Family and Protective Services or some of its employees liable, civilly or criminally, for actions they have taken? This reduces, I think, to three different questions, each of which raises legal issues that I cannot confidently judge as well as factual issues that would require a trial to resolve.

1. The initial seizure of the children:

According to unanimous votes of both a three judge appeals panel and the state Supreme Court, the seizure was legally unjustified (three justices, as I understand the result, held that it would have been justified if limited to female teens, six that the seizure of any of the children was unjustified). The seizure imposed substantial costs, monetary and others, on the parents and very large non-monetary costs on their children. Is the Department liable for damages? My guess is that it is not, that in this case as in many others government actors are not liable for their mistakes, but I might be wrong.

2. Classifying adults as minors:

For reasons I have discussed in earlier posts, I suspect that the Department, after discovering that only five of the minors they seized were either mothers or pregnant, decided to improve the evidence by reclassifying about 26 adult mothers as minors, thus letting it announce that 31 out of 53 girls aged 14-17 were pregnant or mothers. Suppose it is possible to prove in court that the "mistake" was deliberate. Restraining adults under color of law by pretending they are minors looks to me as though it ought to be both tortious and criminal.

3. The religious question:

At the time of the original seizure, the authorities' evidence of child abuse consisted of some bogus phone calls from a nonexistent 16 year old girl, information provided by an unidentified confidential informant, and the observation that there were pregnant women at the ranch who looked like teenagers. On that evidence more than four hundred children were seized and separated from their parents for about two months.

So far as we know, the informant had never been in the ranch. She appears to have been providing information not about those parents and their children but about their religious beliefs and how other members of their religion in other times and places were said to have acted; the obvious guess is that she is a past defector from the FLDS. One department spokeswoman explained the seizure of male children on the theory that they were being brought up to be abusers—which is to say, brought up in their parents' religion.

The obvious interpretation is that members of the FLDS were being persecuted for their religion. If so, is that a violation of federal law?

I would be especially interested in comments from readers familiar with the relevant law.

17 Comments:

At 9:00 PM, June 04, 2008, Anonymous randolph fuller said...

now is the time for all good men to come to the aid of the party.

 
At 7:46 AM, June 05, 2008, Blogger Alan said...

Some people (like Richard Dawkins) think that any religious indoctrination of children is child abuse. I tend to think they're probably right, although I'm not sure I'd be very comfortable outlawing it.

Even if not all religious indoctrination is abuse, it's pretty clear that some kinds could be. If kids were taught that they must physically torture themselves, for example.

 
At 9:54 AM, June 05, 2008, Blogger Clayton said...

They (the FLDS) should hit the ACLU up just in case they might take it up as a 1st Am case. It's a stretch, but the ACLU has defended some people that are pretty objectionable to its own (revealed) political leanings. Of course, I doubt the FLDS will ask.

@alan

I am a deeply religious person but value liberty. Banning religious indoctrination is tantamount to creating thoughtcrimes. For those kinds of religious indoctrination (e.g. self-flagellation) that are abusive, the laws already on the books that don't purport to read minds will do just fine. Oh, and Dawkins isn't exactly the most unbiased source on the psychological effects of religious upbringing given his own personal life experiences.

 
At 10:02 AM, June 05, 2008, Blogger Joe Bingham said...

Didn't the ACLU brief state that they believed CPS actions violated first amendment free exercise rights?

 
At 1:07 PM, June 05, 2008, Blogger David Friedman said...

Clayton and Joe raise the question of ACLU involvement. The ACLU has been commenting on the case from early on, and expressed concern that the authorities were violating the rights of the parents and children. The ACLU brief is at:

http://www.aclu.org/religion/gen/35467lgl20080529.html

 
At 10:40 PM, June 05, 2008, Blogger montestruc said...

I think a problem may well be that the FLDS think that the ACLU is the "in league with the devil" (for various things the ACLU has defended in the past), which may make them not wish to ask for their help. They have their own motives which are not necessarily coincident with that of libertarians.

But I will bring up sending them an emissary from the Texas LP when I go to the convention next week. They are making a point of getting voter registration cards, , ,

 
At 11:50 PM, June 09, 2008, Anonymous Anonymous said...

Today, a Texas District court enjoind
Child Potective Services from seeking to enforce at part of the ordere returning the FLDS children to them, that autorized them to enter the premises to examine and question the children at any time. The trial judge, Martha Tanner, Democrat of Bexar County said fromthe bench at the time of her ruling that "I am not going to permit Child Protective Serices to wreck any more families".

 
At 6:03 AM, June 11, 2008, Anonymous Anonymous said...

it is perfectly lawful 14 year old girls to marry in Texas with their parents' consent. Even without their parents' consent the marriage cannot be set asice excepton petition of the 14 year old giel herself. The rule is the same for boys but the age cut off i sixteen. Many county clerk's and justices of the peace make no serious effort to determine the age of an applicant gor a marriage license so marriages of teens at these ages are common.xhbbqyqc

 
At 1:15 PM, June 11, 2008, Blogger David Friedman said...

According to a recent news story, Rod Parker, a Salt Lake City lawyer who has been representing the FLDS--he is himself catholic--says he plans to sue the Texas authorities. I haven't seen any details yet on what his claims would be.

 
At 9:21 PM, June 11, 2008, Blogger montestruc said...

I found this on a newspaper website where someone was claiming that Texas Governor Perry, and the Judge and possibly a lot of other people, including newspaper people broke federal laws by taking the kids and/or inciting others to do it. The guy cited the following, specifically item 6 :

http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001091----000-.html

-----------quote
§ 1091. Genocide

(a) Basic Offense.— Whoever, whether in time of peace or in time of war, in a circumstance described in subsection (d) and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such—
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group;
or attempts to do so, shall be punished as provided in subsection (b).
(b) Punishment for Basic Offense.— The punishment for an offense under subsection (a) is—
(1) in the case of an offense under subsection (a)(1), where death results, by death or imprisonment for life and a fine of not more than $1,000,000, or both; and
(2) a fine of not more than $1,000,000 or imprisonment for not more than twenty years, or both, in any other case.
(c) Incitement Offense.— Whoever in a circumstance described in subsection (d) directly and publicly incites another to violate subsection (a) shall be fined not more than $500,000 or imprisoned not more than five years, or both.
(d) Required Circumstance for Offenses.— The circumstance referred to in subsections (a) and (c) is that—
(1) the offense is committed within the United States; or
(2) the alleged offender is a national of the United States (as defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)).
(e) Nonapplicability of Certain Limitations.— Notwithstanding section 3282 of this title, in the case of an offense under subsection (a)(1), an indictment may be found, or information instituted, at any time without limitation.
-----------end quote

I wonder how that judge will feel getting handed a 20 year sentence, and a $500,000.

I think it would make other judges pause before they let their prejudices run amok.

 
At 11:57 AM, June 12, 2008, Blogger Clayton said...

While the description of genocide in that law (strangely) does accurately describe the actions of the TX authorities, I am highly skeptical that any judge (even Barbie Walther) is going to be brought up on such charges, let alone convicted of them.

I wonder if the problem of immunity in cases like this is not so much the consequence of sovereignty as publicly shared responsibility. That is, it is incredible to charge an entire department or bureaucracy with something like genocide since responsibility for whatever actions were taken by that department (even if they did qualify as "genocide" in the ordinary sense of the word) are distributed, usually in such a way as to minimize individual responsibility for any decision, especially decisions which are potentially controversial or inculpating.

Lt. Col. David Grossman (in his book On Killing) discusses this group responsibility for atrocity as a key enabler for the sociopathic behavior of gangs, police, military units, etc. He draws a comparison between the psychology of a firing squad and group violence. As a member of a firing squad, I aim and, when I hear "Fire!", I close my eyes and fire. Since it is more probable that one of the other 9 bullets struck the execution victim first than that my bullet did, I can feel that I am probably not responsible for his or her death or, since I closed my eyes, I may have even missed and not be directly responsible for their death at all.

In the case of gang violence, I throw in an occasional kick on the guy on the ground, but it's probably not one of my blows that are directly responsible for his death. Hence, I enjoy the benefits of seeing one of my enemies beaten to death, but bear very little of the costs of the guilt of violence associated with brutally beating and killing someone since that cost is shared among the group.

In the case of TX CPS, each member of the bureaucracy enjoyed the benefits of being part of the narrative that they were rescuing children (something which should make anyone feel good), while bearing very little of the costs of the devastation they were actually wreaking. Since we (the public) well understand this dynamic, at least on a subconscious level, perhaps that explains why it is so rare that bureaucracies are held accountable, as a group, for the consequences of the decisions they make and actions they take.

 
At 5:16 PM, June 12, 2008, Blogger montestruc said...

Nothing strange about it IMHO, they want to do away with the FLDS as a distinct religious group, and that meets the basic definition of genocide. I think that if people start screaming loud and strong about it to any who will listen, TV, radio, newspapers, and so on, and the diplomats of other nations, eventually federal prosecutors will get moving on it.

 
At 12:28 AM, June 14, 2008, Anonymous Anonymous said...

The Civil Rights Act of 1866 would appear to apply in this case.

There is no limit on the size of the award under this Act.

 
At 5:40 PM, June 18, 2008, Blogger Mark said...

Montestruc:
How would newspaper people be criminally liable in this case? I could understand a civil libel suit if someone wrote something maliciously untrue. But criminal charges against a journalist doing his job - even sloppily - would seem to be violating one part of the First Amendment - freedom of the press - in defense of another part - religious freedom.

Also, this case may meet the definition of genocide you cite, but in its popular usage, genocide = killing, so I would be hesitant to use the term if I were you, lest others see hyperbole where you see literal accuracy.

 
At 10:18 PM, June 18, 2008, Blogger montestruc said...

I do not think I said or implied any newspaper people would be, but if they were it would be under the incitement portion of the law. Inciting someone to commit a crime is not protected free speech.

As in I am watching you have a fight with your girlfriend and it gets ugly and I shout for you to rape her, and keep repeating it.

I am unaware of any specific person who might be charged as an inciter in this case. Though I have little doubt that some did.

I think it better to stop genocide BEFORE they start the mass murders, don't you?

That seems to be part of the specific law I cited, a desire to make the acts that tend to lead toward mass murder illegal as well. Forced sterilization, taking of children, making it impossible to live, all of them are listed as historically these are things that genocidal tyrants have tried before they switch to mass murder.

 
At 1:21 PM, June 24, 2008, Anonymous Westmiller said...

Clayton writes: "...perhaps that explains why it is so rare that bureaucracies are held accountable ..."

It explains it psychologically, but the issue is sovereign immunity for "legal" acts. As long as the law granting CPS authority is sufficiently vague, usually worded as "reasonable belief", they're free of any criminal liability for foolish acts. That decision is left to the state's Attorney General, not a judge.

As a civil matter, they can and should file a massive damage suit against the person who made the final decision, as well as the state itself, for granting such vague authorities.

There was a similar case in California, where a pre-school was alleged, by "memory recovery psychologists", of child abuse. It took several years, but the parents and school won a huge civil suit against the city of Los Angeles.

 
At 1:43 AM, July 01, 2008, Blogger Kathleen said...

Raids, and everyone from our area my age or older remembers at least the 1953 raid, makes things
worse.

Why so many children? Because of past threats while in the custody of
do-gooders that they'd
never see their parents
or children again.

What irritates me is the
FLDS being told by anyone
that their genetic problems are from
consaguinity. They told the japaneese the same thing after Hiroshima and
Nagasaki.

Partly, perhaps, but these people are owed a lot more money than they've been paid, and for
many fewer diseases than
Ionizing Radiation causes.

Kathleen

 

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