SAN FRANCISCO (CN) – Arizona social workers who removed children from a couple’s home after they had bath-time photos of the kids developed at a Walmart should not be granted immunity, the Ninth Circuit ruled Tuesday.
In 2008, Lisa and A.J. Demaree photographed their daughters, who were ages 5, 4, and 1 1/2 at the time, in the bath during a trip to San Diego. When they returned home, they dropped off their camera memory stick at a Walmart in Peoria, Arizona, to have the photos developed.
The Walmart employees reported the photos, which contained some nude images of the girls, to the Peoria Police Department, which called in Child Protective Services.
According to court records, Child Protective Services investigator Laura Pederson decided to remove the daughters from the Demarees' home without a warrant or court order after a Peoria detective indicated the parents would face felony child sexual exploitation charges. Pederson discussed her decision with her supervisor, Amy Van Ness, who agreed.
The children were removed and placed with their grandparents for a month, before they were returned to their parents. Charges were never brought against the Demarees, and the children were never adjudicated as abused or neglected by a juvenile court.
The Demarees sued Pederson and Van Ness in 2011, claiming the social workers’ actions violated the family's constitutional rights to family unity and companionship.
U.S. District Judge Roslyn Silver granted summary judgment for Pederson and Van Ness, finding qualified immunity protected them from liability for removing the girls from their parents' care without judicial permission.
A three-judge panel of the Ninth Circuit disagreed Tuesday in a per curiam decision.
"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," the panel ruled.
Pederson and Van Ness did not present evidence that the children would be beaten or molested if left in the home.
"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," the panel said. "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."
While the removal did take place over a holiday weekend when the juvenile court was closed, social workers could have waited for the court to open to seek a warrant.
"The defendants did not suggest that there was any possible harm of the requisite sort to the children before the juvenile courts would reopen after the holiday," the panel found.
In Tuesday's decision, the panel also denied the Demarees' request to seal the federal court's summary judgment order to protect the "privacy and innocence of children" and to prevent that material from use in "improper purposes," like for sexual stimulation.
"[T]he district court order employed clinical, anatomically correct language to briefly describe the nudity depicted in the photographs at issue," the ruling stated. "The unquantifiable odds that an unsavory individual might find this language titillating does not create a compelling reason for removing it from the public record – especially since the Demarees did not file their complaint under seal, and in fact gave public interviews in which they, themselves, described the photos and the nudity depicted."
Neither an attorney for the couple nor the Arizona Attorney General's Office immediately responded to requests for comment.
The Demarees also sued Walmart, the Arizona Attorney General, and the Peoria Police Department in 2009 over their roles in the girls’ removal from the home.
In the suit against Walmart, Judge Silver found Arizona's immunity laws also relieve the store’s employees of liability for reported potential child pornography.
The lawsuit against the attorney general and Peoria was dismissed in state court after a judge found most of the claims were time-barred. The claims that were timely were barred by absolute prosecutorial immunity.
Ninth Circuit Judges Marsha Berzon and N. Randy Smith sat on the panel along with U.S. District Judge Jack Zouhary from the Northern District of Ohio.Follow @jamierossCNS
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