Several Maricopa County, Ariz., deputies are seeking protection from the courts after threatening to take children away from their parents because the homeschooling family was unwilling to allow social workers inside their home for an inspection based on an unsubstantiated anonymous rumor.
But officials with the Home School Legal Defense Association have responded to the court filing by the deputies, explaining that they must answer for their actions in a court of law.
The case stems from a conflict in 2006 between social services in Arizona and John and Tiffany Loudermilk.
A judge previously ruled that their lawsuit over civil rights violations by the social workers and the deputies can move forward. But the deputies appealed to the 9th U.S. Circuit Court of Appeals that they should be exempted from liability.
Social workers, told earlier by the court that they must respect the U.S. Constitution regarding privacy and parental rights, did not appeal that ruling, and the case, pending in the 9th U.S. Circuit Court of Appeals, will move forward at the district court level once again when the deputies’ requests have been resolved.
So far the court has suggested the social workers, accompanied by Maricopa County deputy sheriffs, made unsupported threats to place a family’s children in custody and arrest the parents if they were not allowed to make what ended up being an allegedly illegal search of the family’s home.
“No intellectually serious argument can be made to support the [deputies] incredulity about why an innocent man would wish to keep a government official from intruding into his home without legal authority,” the HSLDA brief in opposition to the deputies’ requests said.
“The deputies were not merely bystanders. They were active participants in coercing consent to search. It was clearly established law that the threatening presence of several officers is an important factor in determining whether consent to search is voluntary and whether a person is seized,” the HSLDA said.
“They cannot claim that they were merely present or merely ‘standing by.’ Indeed, the physical presence of a single uniformed law enforcement officer is considered to be the use of ‘force,'” the brief said.
“After Sgt. [Joseph] Sousa arrived on the scene he determined that there were no grounds for arrest … and that there was no justification to enter the Loudermilks’ home without a search warrant. The written policy of the Maricopa County Sheriff’s Office about consent searches further put Sgt. Sousa and the rest of the MCSO defendants on notice that, ‘any consent to search must be voluntary, without fear, threats or promise.’
“Sgt. Sousa was the patrol sergeant. He had the authority to order the deputies to leave the Loudermilks’ home, but he did not do so. Each of the deputies individually and all of them together were active participants in the violation of the Loudermilks’ constitutional rights,” the brief argues. “Their conduct was contrary to clearly established law; it was contrary to their training; and it was contrary to the sheriff’s written policy about ‘consent searches.'”
“Deputies argue that the district court erred in denying their motion for summary judgment and that they should be granted qualified immunity. This is wrong,” the brief said. “The law of the Fourth Amendment in relation to warrantless searches in child protective investigations is clearly established and has been since at least 1999.
“There was a clear violation of the Loudermilks’ constitutional rights to be protected from unreasonable searches and seizures,” the brief said.
Earlier, U.S. District Judge Earl H. Carroll decided that the lawsuit by the family against the social workers, sheriff and deputies, would be allowed to continue, because the social workers’ concerns were based on “an anonymous tip that the … Loudermilk children were being neglected and that plaintiffs’ home was uninhabitable.”
However, the judge said that under federal law, an anonymous tip, “without more, does not constitute probable cause.”
The Loudermilks are members of the Home School Legal Defense Association, a Virginia-based organization leading their defense.
“Social workers and sheriff’s deputies had come to the home … demanding entry based on a six-week-old anonymous tip that the newly constructed home was unsafe for children,” the organization said.
The judge’s ruling had directed the case toward a jury trial, except the process was interrupted by the deputies’ demand for protection from the courts against accusations of civil rights violations.
Authorities have alleged the Loudermilks voluntarily allowed the search of their home, which produced no evidence that the rumor, in fact, was true.
The HSLDA said, however, that “assertion … ignores the fact the social worker had said the Loudermilk children would be removed for 72 hours if the parents did not permit entry.”
According to the HSLDA, social workers responding to the six-week-old tip demanded entry into the home.
“After an escalating confrontation at the front door that lasted 40 minutes, the social workers, backed by no fewer than four deputies, threatened to take the Loudermilks’ children into custody and place them in foster care if the Loudermilks continued to deny them entry into their home. An assistant attorney general repeated this threat to HSLDA Attorney Thomas Schmidt, who was assisting the Loudermilks by phone during the confrontation.
“Under this duress, Mr. and Mrs. Loudermilk allowed the social workers and sheriff’s deputies inside. Within five minutes, the social workers determined that the anonymous tip was false and left,” the HSLDA said.
The family’s subsequent lawsuit filed by the HSLDA alleged violations of the Fourth and 14th Amendments.
The lawsuit names Maricopa County Sheriff Joe Arpaio, deputies Joshua Ray, Joseph Sousa, Richard Gagnon and Michael Danner, social workers Rhonda Cash and Jenna Cramer, and Assistant Attorney General Julie Rhodes.
The judge, in handing authorities a previous courtroom loss, noted that the social workers misrepresented that they had a court order for an inspection of the home. He also noted the deputies were uncooperative, refusing to provide their cell phone number so the HSLDA attorney could talk to them.
The judge ruled that verbal threats generally are not actionable in a federal civil rights proceeding, but in this case, “courts have held that a threat constitutes an actionable constitutional violation in certain circumstances, including ‘when the threat is so brutal or wantonly cruel as to shock the conscience.'”