Thursday, May 22, 2008

Enterprising Lawyer Needed

As I point out in the previous post, the recent finding of a Texas appeals court shows the position of the Texas authorities responsible for separating more than four hundred children from their parents to be even more indefensible than I have been arguing. In particular, the claim that out of 53 women 14-17 in their custody 31 were either pregnant or mothers was a lie on a grand scale. According to the court, five were.

It now seems clear that the Child Protective Services were guilty of at least:

1. Restraining women whom they knew to be adults under the pretense that they were minors--including a pregnant 22 year old married woman with a birth certificate as proof of age.

2. Deliberately defaming particular women, for instance by claiming that that one was a pregnant minor when they had no evidence that she was a minor and a birth certificate showing she was an adult.

3. Deliberately defaming the FLDS with a set of claims for none of which they have any evidence beyond allegations and some of which they knew to be wildly false--for instance the 31 minors now reduced to five.

I suspect that further investigation, of the sort that could result from a tort suit, would turn up additional damning evidence, in particular that the reclassification of a group of women from adults to minors was a deliberate attempt to inflate the number of minors they could claim had been mothers or were pregnant.

And all this is aside from their real crime--separating hundred of children from their mothers with not a scrap of evidence that those children were in any immediate danger (see the court statement). That, I suspect, is one for which there is unfortunately no legal recourse.

On the other hand ... . The CPS, as an agency of the state of Texas, is protected from most tort liability by sovereign immunity. According to one commenter on of my earlier posts, child protective service generally have even greater immunity than other state agencies.

So the question is whether an enterprising lawyer could get past whatever sorts of immunity they have by demonstrating that their torts were deliberate and malicious, perhaps even that they were a deliberate attempt to use state power to suppress an unpopular religion in violation of the First Amendment to the Constitution. It's hard to believe that a state can use immunity to shield actions by its agents that are deliberately unconstitutional. But then, I'm not a lawyer, and the law does allow for the possibility of legal wrongs for which there is no legal remedy.

Any volunteers?
[Added later]

A commenter points me at an informative (but not unbiased) page on legal rights of parents and children in dealing with state child protective agencies. Googling turns up a discussion of 42 U.S.C. 1983 from which it seems clear that sovereign immunity does not provide protection for state agents who violate federal law. My inexpert opinion from this is that the FLDS parents, and the FLDS adults who were put under CPS control on the pretence that they were minors, do indeed have a potential tort claim against those responsible.


Seth said...

Isn't this the sort of thing that the Federal law about "Violation of Civil Rights Under Color of Law" was written to handle?

Mark said...

I think you're looking for this handy guide: Child Protective Services And The Juvenile Justice System

jimbino said...

Congratulations David for making the early call and for taking on this important issue.

Anonymous said...

Yes, I'll second that.

Congratulations for defending these people from an outrageous violation of their rights at a time when no one seemed to be asking any questions of a bunch government thugs who took 440 children away from their parents, told outrageous lies and in general acted in a way that should horrify every parent in America.

What I find astonishing is the deafening silent. How is it that no one else noticed how absurd the claim of 31 pregnant children was?

At least one poster on this board even fiercely defended the state AFTER Prof. Friedman demonstrated it's absurdity.

I suspect that after this ruling, others will jump on the bandwagon, but this should be a stern warning to all of us that the people targeted by an over-powerful and abusive state are always the people at the margins of society.


Anonymous said...

I wonder if the Institute for Justice might take this case?

Anonymous said...

Oops. I meant to say the FIRST people targeted by an abusive and over-powerful state are the marginal and generally unpopular.


Murna Gilbert said...

Most US courts (I'm not sure of Texas) consider opinions or commentaries on facts as defenses against defamation suits. But this does not rule out a careful consideration of the defendant's reckless disregard for the truth. It is nice to keep in mind though that in the US defamation suits are tough to prove -- the onus on the plaintiff is greater than in other countries.

I must confess that I am particularly disappointed in the actions of the state; this has a serious civil liberty implication. However, I am confident that they are being adequately represented, as the recent ruling by the state's Appeals Court proves. I hope they get whatever remedies they are legally entitled to.

This is one big victory for the private citizen!

Anonymous said...

The decisionmakers themselves would probably not be immune to suit in their personal capacities. Punitive damages are available. However, the state would not have to pick up the tab for any judgment, so the advisability of such a suit woudl depend on how much they wanted to spend to ruin the guy's life. Injunctive relief against the state is a possibility, and I think 1983 allows declaratory judgments as well, so they might be able to get the Feds to agree that they were very bad boys.

Max Lybbert said...

Due to the Duke Lacrosse team's rape case, I believe:
(1) it's relatively easy to sue various people at CPS in their personal capacity;
(2) it's possible, but an uphill battle, to sue the state directly.