Anonymous tip entry to remove children from home stated a claim

Plaintiffs’ allegations that defendants acting on an anonymous tip that the children were abused and the house uninhabitable coerced consent stated a claim for relief, and the motion to dismiss was denied. Loudermilk v. Arpaio, 2007 U.S. Dist. LEXIS 76819 (D. Ariz. September 27, 2007):

Plaintiffs have asserted in their First Claim that their Fourth Amendment rights were violated when Defendants Cash and Cramer searched their home. The Fourth Amendment generally prohibits the warrantless entry of a person’s home except in a few well-defined circumstances, such as based on voluntary consent or exigent circumstances. Kyllo v. United States, 533 U.S. 27, 31, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001); Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990). Plaintiffs assert in support of their Second Claim that their Fourteenth Amendment rights were violated when Defendants Cash and Cramer repeatedly threatened to remove the children without cause. “The Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies.” Mabe v. San Bernadino County, Dept. of Public Schools, 237 F.3d 1101, 1107 (9th Cir. 2001)(citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)).

“Officials may remove a child from the custody of its parents without prior judicial authorization only if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.” Wallis v. Spencer, 202 F.3d 1126, 1136-37 (9th Cir. 2000); Calabretta, 189 F.3d at 813-14. Courts generally have found that entry of social workers or police officers into a home to inspect or remove a child requires a warrant. Calabretta, 189 F.3d at 813; Roska v. Peterson, 328 F.3d 1230, 1240 (10th Cir. 2003).

With respect to Plaintiffs’ claim based on violation of the Fourteenth Amendment, parents and children have a constitutional right to live together without governmental interference and will not be separated without due process of law except in emergencies. Doe v. Lebbos, 348 F.3d 820, 827 (9th Cir. 2003) (citing Mabe, 237 F.3d at 1107). Courts have analyzed threats to remove a child from a family under the fundamental right to familial relations, which includes the liberty interests of parents in the care, custody and management of their children. Doe v. Heck, 327 F.3d 492, 524 (7th Cir. 2003); King v. Olmsted County, 117 F.3d 1065, 1066-68 (8th Cir 1997). The liberty interest in maintaining the family unit is guaranteed by the Fourteenth Amendment. See Heck, 327 F.3d at 523.

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Based on the Amended Complaint’s allegations, Defendants Cash and Cramer persisted in seeking entry into Plaintiffs’ home in order to search the premises, despite Plaintiffs’ continued refusal and consultation with their attorney. Moreover, as further alleged, Defendants persisted in their threats to remove the children if the Plaintiff Parents did not consent to the search, stating that they could arrest or handcuff the Parents in front of the children. Based on the allegations set forth in the Amended Complaint, viewed in Plaintiffs’ favor, no reasonable official would have believed that his or her conduct was authorized by state or constitutional law.