Federal Court: No, You Fucking May Not Force Your Way Into A Home And Strip Search Six Very Young Children

Legal Issues

from the fire-them-(out-of-a-cannon)-[into-the-sun] dept

The facts of this case are pretty ugly so let’s just dive right into them. As Lenore Skenazy reported for Reason last year, two government employees decided a single incident of a mother leaving her kids in the car was all the reason they needed to swing by the house and strip-search every one of her six children. The oldest was five years old. The youngest were a pair of 10-month-old twins.

Holly Curry stopped at a shop to get some muffins and left her six children in the car while she ran in to get them. She was gone for less than 10 minutes. It was only 67 degrees outside. When she came back to her car, two police officers told her she shouldn’t leave her kids in the car and wrote up a “JC3 form” — a hotline-type alert that would be forwarded to Kentucky’s Child Protective Services.

The next day a CPS investigator showed up. So did a sheriff’s deputy. Here’s what happened next:

The investigator insisted on taking the youngest child from Curry’s lap and, without permission, began to undress her. In the presence of the male deputy, the investigator proceeded to undress each child, male and female, down to the genitals (removing the diapers of the two youngest). Curry tried to object, but she knew she was powerless to stop the investigator from doing full-body inspections.

The last to be undressed was her 4-year-old son, taught by his pediatrician that he should never let a stranger take his clothes off without his mom’s okay. But when the boy tried to make eye contact with Curry, the investigator stood directly in his line of sight, leaving him helpless. Then the investigator pointed to the deputy and said, “Show that cop your muscles!” The little boy removed his shirt and flexed his biceps as ordered. The investigator and deputy began laughing while the investigator started to pull down his pants. When the little boy finally was able to look back at his mother, she was holding back tears. The little boy’s face registered shame and fear.

Two weeks after this strip search and questioning, the CPS investigation was closed as “unsubstantiated.” Holly sued. And she has won. Qualified immunity has been denied to the CPS worker and deputy for their warrant entry and multiple strip searches.

The story is even worse than the earlier summation by Skenazy. This is from the decision [PDF]. It shows the CPS worker (Jeanetta Childress) intimidating Holly into “consenting” to a warrantless entry by her and Deputy Michael Furnish.

Childress and Furnish drove back to the Currys’ house. This time, Furnish knocked on the door. He was armed and in uniform. Again, Holly answered. Childress and Furnish told her they “needed to come in.” Again, Holly asked if they had a warrant. And again — when Furnish replied that they did not — Holly refused to let them in.

Childress started yelling at Holly. Holly asked if they could reschedule the visit for when her husband was home. She also offered to bring the children to the door so Childress could see them. But Furnish and Childress would not agree to that. Instead, they both told her that if she didn’t let them in, they would get an emergency custody order. When Holly asked what this meant, Furnish told her, “We’ll come back and take all of your children.” Childress and Furnish both started yelling, “What’s it gonna be?” Holly started crying. She said, “Fine, we can do this.”

That led to even more officious bullshit.

Childress interviewed the two oldest children in a bedroom, separately, while Furnish waited in the hallway. Holly stayed with the rest of the children in another part of the house. At one point, Holly tried calling her husband, but Childress sat on her phone.

Then the social worker claimed she and the officer needed to check the kids for “injuries.” Apparently, this involved inspecting the genitals of all six of Holly’s children.

The court says the warrantless entry was illegal and no good faith or any other government excuse (like exigent circumstances) can save it. There were no exigent circumstances. The children were uninjured, accounted for, and in no apparent danger. Holly had no history with Child Protective Services that might demand a swift removal of her children. And both government workers knew they had nothing close to what they needed to obtain and execute an emergency custody order. Therefore, the entry was coerced. And in this circuit, this particular violation of rights has been clearly established for nearly a quarter-century.

In 1998, the Sixth Circuit held that an officer’s baseless threat to take a suspect’s child “constituted an objectively improper police action.” Thus, qualified immunity doesn’t shield either Childress or Furnish for entering the Currys’ home without a warrant.

The court says the same thing about the strip searches. Strip searches require probable cause and government employees better have a whole lot of it if they want to strip search minors. Neither person involved with these searches had anything resembling faint suspicion, much less probable cause.

Here, Childress lacked even a shadow of probable cause that the Currys physically abused their children. No one had ever reported physical abuse. There was no evidence of it. Nothing about their house indicated they lived in dangerous conditions. The children didn’t tell Childress anything that pointed to “a substantial chance” of physical abuse. In fact, the two oldest children told Childress that their parents didn’t even use corporal punishment. In Childress’s own words, Holly and her husband were “attentive and loving” parents.

This is so much of a violation the court doesn’t even have to look for precedent.

If Childress did what the Currys allege, strip searching the children was clearly unconstitutional. Other Circuits have reached this conclusion in similar cases. Childress’s alleged actions were “so clearly” unconstitutional under Supreme Court precedent that we don’t need to find that “the very action[s] in question have previously been held unlawful” in this circuit. To hold otherwise would permit social workers to strip search children as a matter of course in every investigation.

Apparently this social worker believed the Sixth Circuit had already “held otherwise.”

Incredibly, Childress repeatedly testified that she believed she should “automatically” strip search any child who was four or under.

Incredibly wrong.

The Constitution protects against that approach to children’s privacy, and no reasonable social worker could think otherwise.

The deputy may not have removed any of the children’s clothing but he’s still far from blameless. No qualified immunity for him either.

Had Furnish only witnessed the strip searches — rather than talk to the children during the search and encourage them to undress — he might be entitled to qualified immunity. The law is less clear about an officer’s liability when he is simply present while a social worker unreasonably strip searches a minor. But here, a jury could find that Furnish participated in the unconstitutional strip searches of the children. And as already stated, the law against those searches under these facts is so well-established that a reasonable officer would know that the searches here were unconstitutional.

The government will certainly waste taxpayers’ money (and their patience) by appealing this decision. Few people enjoy being held accountable for their abusive actions but government employees tend to be the most resistant to personal responsibility. But for now, the decision stands and these two alleged public servants will have to continue being sued for threatening to take away someone kids before deciding a half-dozen strip-searched prepubescents was punishment enough for leaving kids locked safely in a car for 5-10 minutes on a cool day.

Filed Under: 6th circuit, child protective services, holly curry, jeanetta childress, kentucky, michael furnish