A legal fight that erupted when social workers claimed a two-month old report of dangerous conditions in a family’s home constituted an “emergency” is returning to the 9th U.S. Circuit Court of Appeals, which is being asked to schedule oral arguments.
The case was started when social workers Rhonda Cash and Jenna Cramer in Maricopa County, Ariz., took police officers to the home of John and Tiffany Loudermilk and demanded immediate entry because of a two-month-old report there were dangerous conditions inside.
They obtained entry – to find no dangerous conditions existed – only after publicly and in front of the couple’s five children threatening to take the children into state custody immediately – with force if necessary – if the Loudermilks did not submit to their wishes.
The case alleging Cash and Cramer violated the civil rights of the family has been pending since it was filed after no problems were found in the home.
Now, the Home School Legal Defense Association has submitted a request to the 9th Circuit for a hearing on the civil rights violations attributed to the social workers.
Senior Counsel Jim Mason explains that the trial court ruled twice in favor of the Loudermilks on claims the social workers and deputies violated their Fourth Amendment rights. But the deputies appealed that, and the next court higher said the deputies were relying on what the social workers told them, and the Supreme declined to overturn that decision.
But based on that, the lower court then went back to reverse itself and dismiss claims against the social workers.
The petition to the 9th Circuit says that’s a dangerous precedent.
“We explained why the deputies and social workers should not be treated the same,” according to Mason. “The social workers had been investigating for two months then suddenly claimed that they had an emergency. The deputies had no way to know all that had happened in those two months.
“The social workers claim in their brief that even though two months had gone by they were entitled to remove the children because the outside of the home was still being worked on. … In our final written submission to the 9th Circuit we attempt to demonstrate that no reasonable official could have concluded that an emergency existed based on what this supervisor knew.”
Continued Mason, “This case is important because it presents an opportunity for a federal appeals court to draw the line between acceptable investigative tactics and those that are beyond the pale. The scenario faced by the Loudermilks happens far too often.”
The organization’s brief raises a number of issues of concern, including that Cash had known about an anonymous tip that there were missing hand rails on the stairs and exposed wiring in the new home for two months.
Despite the fact the Loudermilks did not want an investigation of their home over that period, there was no effort to get a court order or hurry the process along, as should have happened if there truly had been an emergency, the brief explains.
Knowing that the family did not want an inspection of their home, the social workers contacted police to go with them, then strategized about “storming” the home with threats that the children would be taken away if the parents didn’t submit.
But the social workers never bothered to check whether the county, in fact, had authorized the family to live in the home, and inspected it at that time, the brief points out.
“A jury could infer that such information would have a mitigating effect and would go a long way toward discrediting an anonymous report,” the brief states.
The court needs to resolve questions such as, “Could a reasonable jury conclude that Rhonda Cash made plans to get inside the Loudermilks’ home before she ever laid eyes on its exterior? And could a reasonable jury conclude that once Cash arrived at the Loudermilks’ home, she executed those plans quite apart from the appearance of the exterior, including threatening to take the kids into custody.
“Because the answer to both questions is ‘yes,’ the district court erred in granting summary judgment to the defendants,” HSLDA argues.
“She [Cash] carefully laid plans before going to the house and diligently and resolutely executed them once there. She didn’t even bother waiting for the Loudermilks to decline [a search permission] before summoning the police. She knew how to overcome lack of cooperation and she intended to show the Loudermilks that she meant business right from the opening bell,” the brief contends.
“The record is replete with evidence that Rhonda Cash was determined to get into that house from the moment she decided to ‘hit this report…'”
And the facts were that the anonymous report came in during the first part of January, but Cash’s “emergency” entry into the home was March 9.
“This court has repeatedly held that delay is ‘evidence of lack of exigency,'” the brief said.
In court papers, the HDSLA has explained the case: “For 40 terrifying minutes, this homeschooling couple had asserted their Fourth Amendment right to be free from an unreasonable search of their home. The two investigative social workers were eventually joined by six uniformed sheriff’s deputies who were called because the social workers considered the Loudermilks to be ‘uncooperative.'”
But the HSLDA said the Loudermilks were forced to allow the search when the social workers “played their ace-in-the-hole,” warning, “If you don’t let us in immediately, we will take your children into state custody.”
According to court filings, the Loudermilks had been building their dream home in Arizona. They eventually obtained permission from the county to move in, even though there were minor projects to be finished.
The source of the incorrect anonymous report has yet to be identified.