Ten years ago, Lisa and A.J. Demaree took a USB stick to Walmart to get prints of the photos they’d taken on their last vacation. They’ve been seeking justice for what happened to their family as a result for almost as long.
Because their daughters were nude in seven or eight bath-time snaps among the hundred-plus photos, an employee reported the couple to child services. Their children were removed, examined, separated from one another, and placed in emergency foster care before being entrusted to their grandparents.
The Demarees were not allowed to see their children for several days, lost custody for a month, and were placed on the sex offender registry. Lisa was suspended from work for a year; three dozen friends and family members were subjected to interviews about the suspected sexual abuse. No charges were ever filed.
The Demarees sued the social workers, as well as Walmart and the state attorney general, in federal court.
In 2014, Senior District Judge Roslyn O. Silver decided the social workers had “qualified immunity,” a legal doctrine that protects officials from liability as long as they don’t violate clearly established rights, or rights that the officials should reasonably have known about. Having found that the social workers couldn’t be sued, she decided the case in their favor without a trial by granting them summary judgment, a ruling that means the judge believed that even if the Demarees were right about everything, they still couldn’t prevail.
On Wednesday, the Ninth Circuit, which hears federal appeals from Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, and Washington, disagreed: The Constitution protects people from unwarranted intrusions and deprivations of liberty, both of which apply in the case of parents’ custody of their children and a family’s right to be together, and the social workers should have known as much. Removing children from the home requires judicial authorization or imminent danger; the social workers neither secured authorization nor attempted to show some looming risk to the children. (As the panel notes in its per curiam, or unified, decision, the social workers didn’t prove any relevant risk.)
Viewing the facts in the light most favorable to the Demarees, the social workers did not have reasonable cause to believe the children were at risk of serious bodily harm or molestation. Pederson and Van Ness did not represent that the Demaree children might “again be beaten or molested,” if left in their home—the children were never beaten or molested in the first place. Instead, the articulated concern was that the children could be subjected to future criminal “sexual exploitation” because the parents had “tak[en] sexually explicit pictures of all three children.”
It is helpful to identify what this stated risk did not include. The risk identified by the defendants did not include taking photos of a nude child in an exploitative situation and distributing them, because there was no allegation or indication that A.J. and Lisa had distributed, or were likely in the future to distribute, nude pictures of their children to anyone. Nor did the identified risk include taking photos of a nude child engaging in sexual conduct, because there was no allegation A.J. and Lisa had ever taken, or were likely to take, photos of their children engaging in sexual conduct. And the risk was not that the Demarees would see their own children, ages five, four, and one-and-a-half, nude, including their genitalia, as caring for children of those ages necessitates doing so.
Now, the Demarees’ case will be sent back to the district court for proceedings consistent with the appellate court’s opinion—aka a real trial, potentially resulting in justice for the family.