VIEWPOINT: Child abuse editorial misguided, misinformed

VIEWPOINT: Child abuse editorial misguided, misinformed




DOUG SCHAFER
Published: 01/07/10 12:05 am | Updated: 01/07/10 12:23 pm

Recommend (0)Your editorial criticizing a recent ruling by the Ninth Circuit of the U.S. Court of Appeals (“Child abusers win one in the 9th Circuit,” 12-30) is misguided and misleading, as is our county prosecutor’s assessment of it (1-3).

That ruling was by a unanimous three-judge panel, two of whom were appointed by President George W. Bush. They ruled that an Oregon child protection agency worker and deputy sheriff violated the Fourth Amendment’s ban on unreasonable seizures when they detained and interrogated a child for two hours at her school about suspected sexual abuse by her father without first obtaining a warrant or other court order or a parent’s consent.

Your editorial claims that this application of the Fourth Amendment is a “brand-new and rather astonishing requirement.” But a reading of the court’s opinion demonstrates otherwise.

More than 10 years ago, the court held that a warrantless, non-emergency seizure and interrogation of an alleged victim of child sexual abuse victim at her home violates the Fourth Amendment.

That ruling has been widely praised by both conservative and liberal advocates of familial rights and other civil rights. And now the court simply rejected, as other federal courts have, the prosecution argument that law enforcement officials’ seizure and interrogation of a child at her public school renders inapplicable the traditional Fourth Amendment protections.

That argument was based on a 1985 U.S. Supreme Court ruling that lowered the Fourth Amendment’s reasonableness standards for searches and seizures in public schools initiated solely by school officials to enforce school rules and maintain discipline. So teachers and principals may search student lockers and other containers, and may detain and question children, without needing court-issued warrants.

But that 1985 precedent was limited to school officials addressing student conduct at school. It does not apply to law enforcement officials investigating crimes (or enlisting school officials or social workers to do so for them).

The Ninth Circuit also rejected, just as it had in the 1999 case, prosecution arguments that government’s special need to protect children from sexual abuse justifies a departure from the warrant and probable-cause requirements of the Fourth Amendment. The court noted a federal government report that of the 3.6 million investigations in 2006 by child protection agencies, only about a quarter concluded that the children were indeed victims of abuse.

Your editorial mistakenly suggests that the Fourth Amendment’s ban on unreasonable searches and seizures is designed only to protect criminal suspects and defendants, particularly from arbitrary searches of their homes and other spheres of privacy.

But a person – whether a suspect, witness, or victim – is seized whenever he or she is detained by a government official under circumstances in which a reasonable person would not feel free to leave.

The Fourth Amendment protects an unwilling witness or crime victim from being seized and interrogated by the police without a warrant. A seizure impacts one’s liberty, not one’s privacy. And the government’s unwarranted and unreasonable seizure of a child impacts his or her parent’s familial rights without the due process required by the Constitution.

The recent Ninth Circuit ruling is consistent with rulings by five other federal circuits, and after searching I cannot find any published criticism of it except in your editorial pages. The ruling does not, as your editorial claims, “tip the balance of power in favor of suspected abusers” but simply requires government officials to respect the U.S. Constitution when investigating child abuse as they must when investigating other crimes.

Neither the Constitution nor the recent ruling prevents a child’s teachers, neighbors or relatives from asking the child about possible abuse. The Ninth Circuit judges wrote in a footnote, “Nothing in our opinion today would prevent a teacher, for example, from discussing suspected abuse with a student or from passing along any such information to social service workers.” The social worker can then use that information to seek a court warrant, if appropriate.

If, as our county prosecutor claims, this ruling “seriously handicaps” child abuse investigations, then our local investigators must be accustomed to defying the Constitution. This ruling confirms that rogue investigators will be held liable (with taxpayers presumably paying the bill) when they defy the constitutional rights of children and their parents. Retraining seems to be in order.

Doug Schafer is an attorney who’s been practicing law in Tacoma for 31 years.


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