NY1: Protective arrest of juvenile for health and safety reasons just to get him to court violates 4A

The protective arrest of a juvenile under the Family Court Act violates the Fourth Amendment. This has been a longstanding practice, and no bad motives are attributed to anyone, but this practice can’t continue. Matter of Zavion O. (Donna O.), 2019 NY Slip Op 03554, 2019 N.Y. App. Div. LEXIS 3553 (1st Dept. May 7, 2019):

These cases, consolidated for appeal, present the recurring issue whether Family Court Act § 153, relied on by Family Court, authorizes the issuance of a warrant for the protective arrest of a child who is neither a respondent nor a witness in a Family Court proceeding for purposes of ensuring the child’s health and safety rather than to compel his or her attendance in court. Notwithstanding that such protective arrests may have become a practice of Family Court under very compelling circumstances, in the absence of more explicit statutory authority we cannot endorse the legality of the practice. In reaching our conclusion, though, we do not suggest any criticism of the respective Family Courts in this case nor do we impute improper motives to the Administration for Children’s Services, various parties or even law enforcement, who, to all appearances, were operating on the best of motives. However, the issuance of an arrest warrant must proceed from explicit statutory authority. Such is lacking in this case, as is, notably, any authoritative decisional law.

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Family Court Act section 153 authorizes Family Court to issue “in a proper case a warrant or other process to secure or compel the attendance of an adult respondent or child . . . whose testimony or presence at a hearing or proceeding is deemed by the court to be necessary. . . .” Section 153-a governs the execution of the arrest warrant, which, pursuant to subsection (c) may include “such physical force as is justifiable” by reference to the Penal Law. Although the decision accompanying an arrest in this case contemplated the absence of handcuffs, the statute nevertheless allows for it and a restriction in one case has no effect, of course, in other similar cases. An arrest warrant allows for heightened coercion imposed on the arrestee with Fourth Amendment ramifications. An arrest record, even if not correlating with a criminal record, could have future adverse ramifications for employment or otherwise. Moreover, there is also the potential trauma that an arrest, especially if coupled with handcuffs or other restraints, may pose for an already fragile child. Hence, even if an arrest warrant were to be legislatively authorized for cases such as these, it should be carefully conditioned so as to be sensitive to these concerns. In any event, while the record for these particular cases amply demonstrates the need for a valid and binding legal instrument to secure the subject children, keep them off the streets, in a manner of speaking, for their own health and safety, and to provide a means for the children to be continually provided regular medical treatment and other services, no statutory device seems to fit the need in either of these cases.

Family Court relied on section 153 as a device to issue arrest warrants to facilitate these goals. As noted above, we do not fault the court, law enforcement, the parties or the attorneys for each child in terms of their motivation, all of whom perceived themselves to be acting in the best interests of each child. However, the question presented to us is whether under these compelling circumstances the court could avail itself of section 153 to achieve the intended protective goal. We conclude that the statute does not authorize the arrest of a nonrespondent child who is not needed as a witness in a Family Court hearing or proceeding under these circumstances regardless of the seriousness of the concerns.