Thanks to a ruling in a federal district court in Kentucky last week, a child welfare investigator can no longer claim qualified immunity for bullying their way into a home and strip-searching children without cause.
The case, Josiah Curry, et al v. Kentucky Cabinet for Health and Family Services, et al, arose from a 2017 incident.
On a cool March day, Holly Curry opted to leave her children asleep in her van while she went into a café to get them some muffins. She was inside less than ten minutes, but thanks to an anonymous hotline tip, she was met by a police officer when she came back outside.
The officer did not file any charges against Holly, but he warned her not to leave her children unattended. And he told her he would have to report the incident to the Kentucky Cabinet for Health and Family Services.
Entering without a Warrant
The following day, child welfare investigator Jeanetta Childress went to the Curry home and insisted on being allowed inside. Holly asked to see a warrant, and when Childress failed to produce one, refused to let her in.
Childress left to get police officer Michael Furnish, then returned. Again, Curry asked to see their warrant, and again, there was none. But Childress, backed by an armed and uniformed Furnish, threatened to take the Curry children into foster care if Childress and Furnish were not allowed in to investigate. In tears, Holly finally relented.
Once inside, Childress proceeded to interview the two oldest children alone, then to strip-search the youngest children, with Furnish’s help.
Finding no evidence of any wrongdoing—not surprising, since no abuse had ever been alleged—Childress closed the case as “unsubstantiated.”
And, far too often, that would have been the end of the story.
But in this case, the Currys filed suit against both Childress and Furnish for violating their Fourth Amendment right to be secure in their homes and their children’s Fourth Amendment right to bodily integrity. In other words, the Currys alleged that both the warrantless, forced entry and the strip searches of the children violated the Constitution.
Not surprisingly, Childress and Furnish petitioned the court to dismiss the case, citing qualified immunity.
Qualified immunity is the legal doctrine that says a civil servant cannot be held personally liable for actions taken in their official capacity for violating one’s constitutional rights, if a reasonable official in their shoes would not have known their action was contrary to a federal right.
And, far too often, that would be the end of the story.
That is what makes this case so refreshing.
Instead of allowing bad actors to hide behind qualified immunity, the judge has left Childress and Furnish to face the consequences of their violations against this family’s Fourth Amendment rights.
Can a child welfare investigator strip-search a child without cause? According to the ruling, “Childress repeatedly testified that she believed she should ‘automatically’ strip search any child that was four or under.” But do child welfare investigators in general believe this?
Like me, the court found this “incredibl[e],” adding, “The Constitution protects against that approach to children’s privacy, and no reasonable social worker could think otherwise.”
It was equally refreshing that the court recognized that, although Curry “let” the investigator and the police officer into her home, it was nevertheless without her consent.
A critical issue in this case was whether Holly voluntarily consented to the investigator’s entry into her home. But in this case, the judge made a distinction, explaining that “when state actors suggest that they will take hostile action against a member of someone’s family, any consent that person gives after that threat is likely involuntary.”
Because both agents threatened to remove the children, knowing full well they had “no legal basis” for such a removal, the judge found it likely “a jury could find that Holly’s consent was coerced.”
For these reasons, the court refused to grant qualified immunity to either Childress or Officer Furnish. His decision allows the Curry’s lawsuit to move forward to a jury trial.
(Jim Mason, president of the Parental Rights Foundation, is the lawyer of record on this case, through his affiliation with Home School Legal Defense Association.)
In addition, this ruling should help correct any improper actions in Kentucky like those of Jeanetta Childress, which have hurt innocent families for too long.
No trial date has yet been set, but we will follow this case closely and keep you apprised of its results.
Already, this ruling will help fix some of the injustices happening in Kentucky. But if Curry’s suit succeeds at trial, it will send an even clearer message to all Kentucky investigators, and even, indirectly, to those in other states: parents’ and children’s rights under the Constitution must be respected, even in a child welfare investigation.
And that is a message all of us would gladly welcome.