When qualified immunity protects social
By Daniel Pollack, MSSA (MSW), JD, a full professor at Yeshiva University's School of Social Work in New York City and Senior Fellow, Office for Foster Care and Adoption, University of Massachusetts Medical School, Worcester, MA.
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As social work has developed into an increasingly seasoned, mature, and specialized profession, the role of the social worker has also changed. So too is the expectation that social workers will ensure that they are satisfying all legal responsibilities owed to their clients. Although many public sector social work administrators and practitioners are concerned about liability litigation and qualified immunity, no national studies of appellate cases have been published. This study explores when social workers are and are not successful in asserting qualified immunity when sued in civil court under 42 U.S.C. § 1983.
42 U.S.C. § 1983
Generally, courts have recognized the need to protect government employees from unduly burdensome and baseless litigation that may interfere with the exercise of lawful discretion in their official functions. Under 42 U.S.C. § 1983, any person may bring a civil action against an individual who acted under color of any law (with the exception of judges, who are generally immune such suits when concerning official action) who caused a deprivation of any Constitutional right or federal law.[i] Thus, in order to state a claim under §1983, a plaintiff must allege that the defendant was an employee of a state, and their action deprived him/her of a Constitutional right or other right protected by federal law.
Clearly, a social worker can be considered a state actor or “official” for the purposes of 42 U.S.C. § 1983. Liability can attach if the following conditions are met: a violation of a constitutional or other federal legal right has occurred, the law was in existence at the time of the claimed violation, and that the reasonable person (social worker) would have known that the action would cause a violation of that right. Furthermore, the social worker can be held liable under § 1983 if his or her actions caused others to violate the right. [ii]
Qualified immunity is a judicially created mechanism which protects state officials sued in their individual capacity for civil damages under 42 U.S.C. § 1983. Qualified immunity generally shields government officials performing discretionary functions from individual liability for civil damages under § 1983 “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[iii] It is an entitlement which provides an immunity from suit rather than a mere defense to liability. As such, it “is effectively lost if a case is erroneously permitted to go to trial."[iv]
The following cases are examples of when motions to dismiss, filed by social workers, based on qualified immunity, were not granted. Note that in these cases, the issue is only whether the case should be dismissed against the social worker on the basis of qualified immunity. The denial of the motion to dismiss does not mean that the social workers were found liable for the alleged deprivations – only that the case was allowed to proceed and be tried on the facts.
Cases demonstrating when qualified immunity is denied to social workers
Many courts have expressed that when evaluating claims for qualified immunity, they must first determine if the plaintiff has alleged the deprivation of a law or constitutional right, whether the law is clearly established at the time of the alleged violation, and finally, whether a reasonable official could understand that what they are doing violates the law or constitutional right.[v] The subjective intent of the public official is not the question. It is, rather, an objective inquiry as to whether a reasonable person would understand the law and would know that their action was in violation of it.[vi] Further, the Supreme Court has “shifted the qualified immunity analysis from a scavenger hunt for prior cases with precisely the same facts toward the more relevant inquiry of whether the law put officials on fair notice that the described conduct was unconstitutional.”[vii]
When suits have been brought against social workers under §1983 for violations of Constitutional rights, the most common claims are based on unreasonable search and seizure (Fourth Amendment), and due process (Fourteenth Amendment). Typically, social workers seek dismissal on the basis that the claim is barred by the doctrine of qualified immunity, on the basis that the plaintiffs have failed to allege a constitutional depravation, and that even if they adequately asserted a violations of a constitutional right, the right was not clearly established. However, in each case where this is asserted and the qualified immunity claim fails, it is because the facts alleged are always read in a light most favorable to the plaintiff, and the actions of the social worker would have been illegal or unreasonable taking the facts as presented as true.
Unreasonable searches and seizures
The Fourth Amendment of the U.S. Constitution, incorporated by the Fourteenth Amendment, protects, in relevant part, against unreasonable searches and seizure. Thus, seizure alone is not enough for §1983 liability – the seizure must be unreasonable. Of course, reasonableness is not precisely defined, and will be dependent on the particular facts of a case. However, it is clear that “the Fourth Amendment applies to [social workers], as it does to all other officers and agents of the state whose requests to enter, however benign or well-intentioned, are met by a closed door. There is … no social worker exception to the strictures of the Fourth Amendment.”[viii] “A person has been ‘seized’ within the meaning of the Fourth Amendment…if, in view of all of the circumstances surrounding the incident, a reasonable personal would have believed that he was not free to leave.”[ix] Many courts have found that “in the context of removing a child from his home and family, a seizure is reasonable if it is pursuant to a court order, if it is supported by probable cause, or if it is justified by exigent circumstances.”[x]
An example of a qualified immunity-based motion to dismiss that was denied on the basis of a Fourth Amendment violation can be seen where the facts as presented supported allegations that a social worker seized a girl at her high school with no legitimate justification, demanded that she leave her mother’s care, and return to her abusive father (while there was an existing court order assigning temporary custody to the girl’s mother, and forbidding the father from contacting the girl).[xi] No qualified immunity was permitted by the court for a social worker, for the seizure was an “obvious and outrageous” violation of the Fourth Amendment, since an emotionally vulnerable 16-year-old would not have felt free to terminate the encounter. New Mexico has specifically held that the Fourth Amendment subjects state social workers to its requirements.[xii]
An example where qualified immunity was not granted to a social worker based on an unreasonable seizure is where the defendants (a social worker and police officer) allegedly seized the children, dressed in plain clothes, driving an unmarked car, and entered the home in the evening without knocking or identifying themselves, and refused to so when asked. The defendants grabbed the screaming children from the home in a manner in which the children and parents thought they were being kidnapped. [xiii] This case demonstrates that even if a court order directed a child’s removal, or exigent circumstances or probable cause justified the seizure, “the manner in which the defendants seized [the child] may still make his seizure unreasonable.”[xiv]
Freedom of religion is another claim that has been successful in defeating the qualified immunity claim of social workers under §1983. Religious beliefs are tricky in terms of determining child endangerment. Generally speaking, if parental actions, such as punishments or medical decisions based on religious beliefs, are the basis of neglect and a removal, exigent circumstances will be difficult to show, except in the most extreme circumstances. Further, the free exercise clause of the First Amendment, which prohibits governmental regulation of religious beliefs, has been coupled by courts with the interest in familial relations as protected by the substantive due process of the fourteenth amendment.[xv]
A warrantless removal, short of having imminent, immediate danger, has been universally held as in violation of due process, leading to unreasonable seizures. [xvi] Additionally, procedural due process claims have defeated qualified immunity assertions based on constitutional inadequacy of post-deprivation hearings.[xvii] Some courts explicitly distinguish between procedural and substantive due process.[xviii] An example is a case that involved a child who, while in foster care, repeatedly suffered abuse and injuries. The court held that “deliberate indifference by state officials to the safety and welfare of a child in foster care constitutes a violation of the child’s substantive due process rights and is actionable under § 1983.[xix] The social worker in this case was denied qualified immunity based on this substantive due process claim. However, with respect to procedural due process, the court found that the procedural due process violation was not actionable against the social worker under §1983, holding that “only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation actionable under section 1983 arise.”[xx] The court concluded that the state’s laws provided a constitutionally adequate post-deprivation remedy, for the child.
Other jurisdictions have made similar distinctions between procedural and substantive due process. Even when there is a finding of adequate state procedures, and thus the constitutional violation is not found for procedural due process claims, thus affording qualified immunity to the social worker in part, many courts have found that no qualified immunity is applicable to the substantive due process claims.[xxi]
Another substantive due process claim that has defeated the assertion of qualified immunity by social workers is the liberty interest in familial relations. Under the Fourteenth Amendment, parents have a protected liberty interest in the case, custody and control of their children.[xxii] However, cases claiming governmental interference with the right of family integrity are balanced with the state’s interest in protecting children and family privacy. “The balance here, however, is no different than that developed in the Fourth Amendment context”[xxiii].
Where defendants (social workers) provided false information to a district attorney who filed a petition seeking to take custody of children, the plaintiffs asserted that their substantive due process right to familial integrity was violated.[xxiv] While the court noted that the Supreme Court has long recognized family relations as one of the liberties protected by the due process clause of the Fourteenth Amendment, they noted that parents have no constitutional right to freedom from child abuse investigations. Nonetheless, the court held that the social workers were not entitled to qualified immunity, as the facts indicated that the defendants knowingly made false accusations of abuse and neglect. Since the facts as presented did not establish an objectively reasonable suspicion of imminent danger, and the protection of family integrity was well established, the social workers (or, at least a reasonable person) would have known that their actions were unconstitutional. Thus, the motion to dismiss based on qualified immunity was denied.
In another case, a social worker and police officer were denied qualified immunity for a coerced entry into a home, interrogation of a child, and a strip search of a child, all conducted without a warrant or exigency. [xxv] The reasoning concerning the warrentless search is much the same as discussed above, but concerning the strip search, the court ruled that a “social worker is not entitled to sacrifice a family’s privacy and dignity to her own personal views on how parents ought to discipline their children”[xxvi] finding that “there is a very substantial interest, which forcing the mother to pull the child’s pants down invaded, in the mother’s dignity and authority in relation to her own children in her own home.”[xxvii] Thus, this court appears to have embraced a right to dignity, as well as privacy and authority, in support of familial rights.
Another example of a denial of qualified immunity under 42 U.S.C. § 1983 for individual social workers based on a different aspect of substantive due process, is where the complaint alleged that the family services individuals must have known they were placing the minor in a sequence of foster homes that were detrimental to her mental health. The court held that the Due Process Clause requires that state officials take steps to prevent children in state custody from deteriorating physically or psychologically.[xxviii] This case cites to one of the “negative liberties” under the due process clause -- to be free from governmental oppression.[xxix] The court concluded that while there is no constitutional right to governmental protection against physical abuse by parents or other private persons not acting under the direction of the state, the state, having removed a child from the custody of parent cannot place her in a position of danger without violating her rights under the due process clause of the Fourteenth Amendment. “[O]nce the state assumes custody of a person, it owes him a rudimentary duty of safekeeping no matter how perilous his circumstances when he was free.”[xxx]
In a case where a child was beaten to death after being placed for adoption, the court granted summary judgment to one social worker based on qualified immunity because the undisputed facts showed that she exercised professional judgment, but qualified immunity was denied for another, as there were issues of material fact as to whether the other social worker violated the child’s substantive due process by failing to investigate several suspicious events during the period when she was directly responsible for the child. [xxxi] The court held that while state officials are generally not responsible for the actions of third parties under the substantive component of the due process clause, the state may have a special relationship with children in state custody. Thus, “if the state or its employees knew of the asserted danger to minor children in state custody, or failed to exercise professional judgment with respect thereto… and if an affirmative link to the injuries the children suffered can be shown, then the state or its employees violated plaintiff’s constitutional rights.”[xxxii]
The potential impact of qualified immunity is vitally important to all social workers. It is clearly established that social workers are “officials” for the purpose of being entitled to utilize qualified immunity when acting in their individual capacities in accordance with their discretionary functions. Provided that social workers keep aware of laws and constitutional rights, follow appropriate procedures, and act with reasonableness and good faith, the doctrine of qualified immunity is a viable tool against suits brought against them in their individual capacity under 42 U.S.C. § 1983. Social workers acting within the scope of their employment should be immune from prosecution for taking any actions they reasonably believe are necessary and proper in the performance of their functions. Properly applied, this standard is effectively consistent with the doctrine of qualified immunity.
State and local governments indemnify their employees against court judgments incurred in the scope of their employment. Also covered are the costs of defending the lawsuits. Thus, it is imperative that government administrators are keenly aware that the conduct of public sector social workers may have profound fiscal as well as legal implications.
[i] The relevant part of the code discussed in this article reads, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”
[ii] See Brokaw v. Mercer County et al., 235 F.3d 1000, 1014 (7th Cir. 2000) (a Deputy Sheriff and a social worker were claimed to have falsely removed children based on knowingly false claims of neglect, because they disapproved of the parents’ religious practices and beliefs. Regarding the social worker, even though she was not present during the actual seizure of the plaintiff, when the allegations were read in the light most favorable to the plaintiff, the court found that she directed the removal of the children, and that was enough to affix liability.).
[iii] Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 96 (1982)).
[iv] Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
[v] See Mabe at 1106-1107; Villanueva v. San Marcos Consolidated Independent School district et al, US District Court for the Western District of Texan, Austin Division, 2006 U.S. Dist. LEXIS 68280 (2006).
[vi] See Villanueva, page 7. See also Jones at 1229 (“To defeat a claim of qualified immunity, plaintiffs need not point to a prior holding that the specific conduct at issue is unlawful; rather, the unlawfulness of the alleged action must have been apparent.”)
[vii] Starkey at 18, quoting Pierce v. Gilchrist, 359 F3d 1279, 1298 (10th Cir. 2004, discussing Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).
[viii] O’Donnell at 802, quoting from Walsh v. Erie County of Job & Family Servs., 240 F. Supp. 2d 731, 746-47 (N.D. Ohio 2003).
[ix] Brokaw, (determining that a child who was carried from his house, placed in a car and driven away was not free to leave and thus was “seized” within the meaning of the Fourth Amendment) quoting from United States, v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980).
[x] See Brokaw at 1010, also listing other cases discussing Fourth Amendment seizures of children.
[xi] Jones v. Hunt et al, 410 F.3d 1221, 1223 (10th Cir. 2005). Further, qualified immunity also may not protect individual defendants when acting on false or incomplete information. The test remains whether a reasonable person would recognize that the seizure was unreasonable.
[xii] Id. at 1125, citing Dubbs v. Head Start, Inc., 336 F.3d 1194, 1205 (10th Cir. 2003) (“There is no ‘social worker” exception to the Fourth Amendment.”).
[xiv] Id. at 1011. Additionally, some social workers have been found liable on the basis of the “danger creation” theory. Under this theory, state officials can be liable for acts of third parties, if it can be shown that the state actor played a part in creating the danger, or their actions rendered the plaintiff more vulnerable to the danger. See Briggs v. Oklahoma ex rel. Oklahoma Dept; of Human Servs., 2007 U.S. Dist. LEXIS 7092 (W.D. Okla., Jan. 31, 2007). See also Johnson v. Holmes et al., 455 F.3d 1133, 1145 (10th Cir., 2006) (enumerating six elements that must be met to establish liability under a danger creation theory).
[xv] See Starkey et al v. U.S. District Court for the District of Colorado, 2006 U.S. Dist. LEXIS 84768 (2006).
[xvi] See Mabe at1106-1107.
[xvii] See Brokaw at 1021.
[xviii] See e.g., McCall.
[xix] Id. at 1367.
[xx] Id. at 1369.
[xxi] See Brokaw, where the plaintiff claims that he was removed based on knowingly false statements of child neglect, and that the defendants removed him from his home without an investigation, a pre-deprivation hearing, or exigent circumstances, and the court allowed the procedural due process claim to proceed against the defendant’s, including the social worker.
[xxii] Santosky v. Kramer, 455 U.S. 745, 753, 71 L.Ed. 2d 599, 102 s. Ct. 1388 (1982). See also Brokaw at 1017 – 1019, and Mabe at 1107.
[xxiii] Brokaw at 1019 (note that in this case, the claim is separate from a Fourth Amendment unreasonable seizure claim; this claim under substantive due process is for a continuing violations that occurred during a four-month separation from the child’s parents, due to his removal being arguable not justified by a sufficiently compelling governmental interest.).
[xxiv] See Rinehart. See also O’Donnell at 826.
[xxv] Calabretta v. Floyd et al., 189 F.3d 808 (9th Cir. 1999).
[xxvi] Id. at 819.
[xxvii] Id. at 820
[xxviii] K.H. v. Gary T. Morgan et al., 914 F.2d 846 (7th Cir. 1990) The plaintiff was discovered at the age of 17 months to have gonorrhea contracted in vaginal intercourse. When she was removed from the custody of their parents, she was placed with four sets of foster parents in the course of a year, returned to her parents, removed again after 3 months on the basis of neglect. After several more placements, she was found to have been beaten and sexually abused by foster parents.
[xxix] K.H. at 848, citing to Youngberg v. Romeo, 457 U.S. 307, 315-316, 73 L. Ed. 2d 28, 102 S.Ct. 2452 (1982).
[xxx] Id. at 849. “The state, having saved a man from a lynch mob, cannot then lynch him, on the ground that he will be no worse off than if he had not been saved.”
[xxxi] Johnson v. Holmes et al, 455 F.3d 1133 (10th Cir. 2006).
[xxxii] Id. at 1143 (internal quotations omitted).
The above article is an abridged version of the original that appeared in the APSAC Advisor: Rothschild, K., & Pollack, D. (2008). When qualified immunity protects social workers from 42 U.S.C § 1983 lawsuits. American Professional Society on the Abuse of Children Advisor, 20(3/4), 7-10.