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Cops Immune for|Child Welfare Check

(CN) - Police officers in an Oregon town who removed children from a couple's home without a court order have immunity from the family's civil rights claims, a Ninth Circuit panel held.

The action stemmed from a February 2010 incident where police in Stayton, Oregon, responded to a request for a welfare check on two children aged two and five.

Stayton is a town in Marion County, about 12 miles southeast of Salem.

The children's parents, Jessica Borchers and Stephen Sjurset, had previously been convicted of endangering the welfare of a minor after the mother tested positive for methamphetamine while pregnant. The older child had temporarily been placed in foster care as a result.

A case worker with Department of Human Services called the Stayton Police Department after she was unable to reach the parents.

On a Saturday night, three Stayton Police officers went to the couple's house, and Sjurset would not let the officers inside without a warrant.

The officers called DHS, who dispatched a social worker to the house. Because it was a Saturday, DHS could not get a court order authorizing the removal of the children.

Social worker Mary Anne Miller called her supervisor and made the decision to take the children into protective custody.

Sjurset sued the city of Stayton, the DHS officials, and the police officers for civil rights violations, on behalf of himself and his children.

A district court judge found in favor of the city and the DHS officials, but denied immunity to the officers, the social worker and her supervisor.

The officers appealed to the Ninth Circuit, and last week a three-judge panel ruled that they acted reasonably in removing the children from the home.

Circuit Judge Ronald Lee Gilman noted that the officers "made no independent decisions regarding protective custody and merely assisted DHS in securing the children."

"We thus decline to find that the Stayton officers were either plainly incompetent or that they knowingly violated the law when they relied on DHS' determination that Sjurset's children were in imminent danger," Gilman wrote for the panel.

"To hold otherwise would place the Stayton officers in a Catch-22 situation: either challenge DHS' determination, which could potentially endanger the children's safety and put the officers at risk of liability or discipline if harm had befallen the children, or carry out DHS' instructions in the absence of a court order at the risk of being sued for violating the children's and the parents' constitutional rights," the judge continued.

"The correct answer would not be obvious to a reasonable officer."

The panel reversed the district court's decision regarding the officers' immunity.

Circuit Judges Ferdinand F. Fernandez and Carlos T. Bea joined in Gilman's opinion.

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