ChildLaw Blog

Children's Law Center 2009 Kennedy Center Benefit Highlights

2009-11-09T16:32:22Z

The sold out crowd at the ninth annual Helping Children Soar benefit enjoyed a beautiful evening on the Kennedy Center's Roof Terrace Restaurant among fellow CLC supporters, advocates and leaders in the legal community. The Honorable Eric H. Holder, Jr. received the 2009 Distinguished Child Advocate award. Mr. Holder was recognized for his long time support of CLC and dedication to the District of Columiba's children. Here are two great photos from this amazing event.

CLC Chair Guy Collier, Past-CLC Chair James Marsh, AG Eric Holder and Past-CLC chairs Tom Bulleit and Wayne Curtis

Executive Director Judith Sandalow presents AG Eric Holder with CLC's 2009 Distinguished Child Advocate Award

For more pictures from this fabulous event visit CLC's 2009 Benefit Photo Gallery

ACLU Sues School for MySpace Penis Pop Pix Punishment

2009-11-04T03:43:16Z

Two sophomore girls have sued their school after they were punished for posting lingerie photos on MySpace during their summer vacation which showed them licking a penis-shaped lollipop. This is not New York, New Jersey or even California folks. The girls live in rural Indiana.

The ACLU, in a federal lawsuit filed last week on behalf of the girls, argues that Churubusco High School violated the girls' free speech rights when it banned them from extracurricular activities for a joke that didn't involve the school. They say the district humiliated the girls by requiring them to apologize to an all-male coaches' board and undergo counseling.

Some argue that schools should play a role in monitoring students' behavior and Supreme Court has ruled that students can be disciplined for activities that happen outside of school, as long as the school can prove the activities were disruptive or posed a danger.

An attorney for the district claims the school was just enforcing the school's athletic code which allows the principal to bar from school activities any student-athlete whose behavior in or out of school "creates a disruptive influence on the discipline, good order, moral or educational environment at Churubusco High School."

The girls took the photos during a summer sleepover with friends and posted them on their MySpace pages, setting the privacy controls so only those designated as friends could view them. None of the photos made any reference to the school.

The principal initially suspended both girls from all extracurricular activities for the year but reduced the penalty to 25 percent of fall semester activities after the girls completed three counseling sessions and apologized to the coaches board.

Parent Sponsored Online Pornography for the Little Ones

2009-10-30T15:45:00Z

A 1970s-era Texas law that allows parents to show "harmful material" to their children has come under fire after a prosecutor said he couldn't file charges against a man accused of forcing his eight- and nine-year-old daughters to watch hardcore online pornography.

The law apparently was meant to protect the privacy of parents who wanted to teach children about sex education, but it states clearly that parents can't be prosecuted for showing "harmful material" to their children.

Randall County District Attorney James Farren has asked for an opinion from Texas Attorney General Greg Abbott about a law Farren says makes no sense and needs to be changed.

Farren says the argument that government has no right to tell parents how to raise their children doesn't fly here. "The government should and does respect the right of parents to raise their children, but that doesn't mean a parent can do anything they want to their child. Obviously, the government can step in when parents are acting in a way that is sufficiently detrimental to the mental health and the physical health of children. I understand that this is a conservative community. I'm conservative. I don't like big government. I don't want government too intrusive, and I certainly don't want government intruding into the family more than necessary. . . . but I don't think very many people would believe that it's appropriate to show true pornographic material to their children simply because they're the parent and they choose to do that - just because they're twisted enough, they want to watch it, that they then want to subject their children to it."

More on this story here.

The Children's Law Center Comes of Age

2009-10-23T00:50:00Z

When I created the Children's Law Center in 1996, my biggest dream (and worst nightmare) was that we'd have enough money to keep the doors open for a month. Well I guess I must have been dreaming in color because now we have VIDEOS! See why CLC is the nation's leading grassroots child advocacy organization. I couldn't be prouder!

Masha Allen's Untold Story

2009-10-21T14:30:00Z

Once again Niels from Pound Pup Legacy has written a blockbuster piece about Masha Allen. Drawing from new sources who are speaking out for the first time, this never ending tragedy is further revealed in The Untold Story of Masha Allen.

Visit the Pound Pup Legacy page on the Masha Allen case.

One of Masha Allen's current lawyers speaks out anonymously about her case

Pedophile Director Roman Polanski Jailed

2009-09-29T02:33:57Z

Last spring there was a great deal of controversy about Oscar winning film director Roman Polanski's long running attempt to escape justice for his 1977 rape of a 13 year old girl. Back in February, Salon.com published an excellent review of the case and a recently released documentary film about the case. On Saturday, Polanski was jailed in Switzerland on an international warrant as he arrived in Zurich to receive a lifetime achievement award from a film festival.

An international tug-of-war over the 76-year-old director escalated today as France and Poland urged Switzerland to free him on bail and pressed U.S. officials all the way up to Secretary of State Hillary Clinton on the case.

Authorities in Los Angeles consider Polanski a "convicted felon and fugitive." The director pleaded guilty to unlawful sexual intercourse in 1977 with a 13-year-old girl. He was sent to prison for 42 days but then the judge tried to renege on the plea bargain. On the day of his sentencing in 1978, aware the judge would sentence him to more prison time, Polanski fled to France.

French Foreign Minister Bernard Kouchner said he hoped Polanski could be quickly freed by the Swiss, calling the apprehension a "bit sinister." He and his Polish counterpart Radek Sikorski wrote to Secretary of State Hillary Clinton and called Swiss Foreign Minister Micheline Calmy-Rey about the case.

"(Polanski was) thrown to the lions," said French Pedophile Minister Frederic Mitterrand. "In the same way that there is a generous America that we like, there is also a scary America that has just shown its face."

Polanski seems most likely to spend several months in detention, unless he agrees to forgo any challenge to his extradition to the United States. Under a 1990 accord between Switzerland and the U.S., Washington has 60 days to submit a formal request for his transfer.

The Swiss Justice Ministry insisted Sunday that politics played no role in its arrest order for Polanski, who lives in France but has spent much time at a chalet in the luxury Swiss resort of Gstaad. The court theoretically could confine Polanski to his Gstaad chalet, but up to now there has never been a case of house arrest in such a situation.

The U.S. has had an outstanding warrant on Polanski since 1978, but the Swiss said American authorities have sought the arrest of the director around the world only since 2005.

His victim, Samantha Geimer, who long ago identified herself, has joined in Polanski's bid for dismissal, saying she wants the case to be over. She sued Polanski and reached an undisclosed settlement.

A native of France who was taken to Poland by his parents, Polanski escaped Krakow's Jewish ghetto as a child during World War II and lived off the charity of strangers. His mother died at the Nazis' Auschwitz death camp.

The arrest prompted angry criticism from fellow filmmakers and actors across Europe.

"It seems inadmissible ... that an international cultural evening, paying homage to one of the greatest contemporary filmmakers, is used by police to apprehend him," says a petition circulating in France and signed by artists including Costa Gavras, Stefen Frears and Monica Bellucci.

Oscar-winning director Andrzej Wajda and other Polish filmmakers also appealed for Polanski's immediate release.

"(He has) atoned for the sins of his young years," Jacek Bromski, head of the Polish Filmmakers Association, told The AP. "He has paid for it by not being able to enter the U.S. and in his professional life he has paid for it by not being able to make films in Hollywood."

More on tihs story:

LA prosecutors: Polanski efforts go back decades

Polanski arrest draws cheers and jeers in Europe

France rallies to Polanski's defence while Hollywood watches

Report finds Florida overmedicates foster children

2009-08-13T16:08:05Z

Yesterday, the Miami Herald revealed that in a report "expected to be released publicly later this month," a "panel of child-welfare experts, including two top administrators from the" Florida Department of Children & Families, "says child welfare authorities too often rely on the potent medications to manage abused and neglected children -- but fail to offer psychiatric treatment to help them overcome the trauma they suffered."

The report states that "caregivers for children in state custody frequently use powerful mind-altering drugs to manage unruly kids, rather than treat their anger and sadness." According to the report, "psychotherapeutic medications are often being used to help parents, teachers, and other child workers quiet and manage, rather than treat, children." The Herald adds that "the use of psychiatric drugs among children in state care is widespread." In fact, "records updated by DCF last week show that, among children in state care aged six to 12, more than 22 percent are being given psychiatric" medications.

A Bold Gambit to Reduce Demand for Child Porn

2009-08-07T20:52:56Z

From today's Christian Science Monitor:

Federal prosecutors and New York lawyer James Marsh are persuading courts to order anyone caught with illicit images to pay financial restitution to child victims.

Federal prosecutors are embracing an aggressive approach to fight the spread of child pornography on the Internet, urging judges across the country to order full restitution to identified child victims in cases where the defendant possessed the images but played no role in their creation.

Generally, restitution is awarded in cases where a defendant's direct actions caused the injuries suffered by the victim. In a child pornography case, the person most responsible for injuring the child is the pedophile who abused the child, recorded images of the abuse, and then traded or sold those images to others.

But child-victim advocates say that is not the only harm. Those who download child pornography help set the stage for future abuse by fostering an active market for such images.

This novel - and controversial - strategy is the brainchild of New York lawyer James Marsh. He represents a 20-year-old woman who was raped and sexually abused at age 8 or 9 by an uncle who recorded the abuse and sent the images to a pedophile who requested them. The resulting still photographs have been actively traded on the Internet since 1998.

Read this entire article by Warren Richey in the Christian Science Monitor.

Legal Immunity for CPS Workers who Lie?

2009-08-05T16:33:59Z

The critics and plaintiffs’ attorneys are out there. They seethe with frustration in their assertion that there are child protection workers who are as dysfunctional and flawed as some of the abusive and neglectful parents they investigate. They feel mistreated, ambushed, without recourse to a neutral oversight authority, and fume that the courts will believe the word of child protection workers over their clients. And yet, when there is a credible allegation that a child protection worker has knowingly made misleading or false statements which resulted in the wrongful removal of a child, their criticism and anger seem justified. Such misrepresentations may involve highly contested issues of material fact that more properly should be examined by an agency supervisor or in court on the merits. The supervisor or court, inadvertently giving credence to the worker’s misrepresentation, may thereby be swayed in favor of the worker’s recommendations.

Guest Feature Article by Daniel Pollack, MSW, JD Legal Aspects of Immunity for Government Social Workers

It is an accepted principle that a parent has a constitutionally protected interest in the custody and care of his or her child. This interest does have exceptions, especially when the child may be in immediate or apparent danger. This is when child protection services gets involved. Crucial to every child protection investigation is to establish the facts and circumstances of the case. When these are presented to the court at a dependency hearing, the evidence may become proof.

The best professional judgment of child protection workers may, in hindsight, be wrong. For this and other reasons, child protection workers usually have some level of immunity from prosecution. [1] When individual government officials are sued for monetary damages they generally are granted either absolute or qualified immunity. The United States Supreme Court has stated that qualified immunity is the norm, absolute immunity is the exception. [2]

Should that immunity disappear when, in their official capacities as child protection workers, they make knowingly inaccurate or false statements which result in the wrongful removal of a child? California law provides for public employee immunity from liability for an injury caused by the employee instituting or prosecuting any judicial or administrative proceeding within the scope of their employment, even if he or she acts maliciously and without probable cause. [3] However, a public employee has no such immunity if he or she acted with malice in committing perjury, fabricating evidence, failing to disclose exculpatory evidence or obtaining evidence by duress.

Generally, whether an employee is acting within the scope of his or her employment is ordinarily a question of fact to be determined in light of the evidence of the particular case. Some courts hold that immunity for child protective workers exists as long as they act responsibly in the performance of their duties. The immunity applies even where a complaint alleges caseworker misconduct or intentional wrongdoing. [4] Others hold that the worker must be involved in a function critical to the judicial process itself. In either case, the more outrageous the employee's alleged tortuous conduct, the less likely it could be described as foreseeable, and the less likely the social service agency could be required to assume responsibility for the act as a general risk of doing business.

Recent Cases

In Doe v. Lebbos, [5] the Ninth Circuit held that a social worker was entitled to absolute immunity for allegedly failing to investigate adequately the allegations of abuse and neglect against a father and in allegedly fabricating evidence in a child dependency petition because those actions had the "requisite connection to the judicial process' to be protected by absolute immunity (at 826)." In Van Emrik v. Chemung County Dep't of Soc. Servs., [6] the court found that child protective caseworkers were entitled to qualified immunity in connection with the removal of a child from the custody of her parents during a child abuse investigation. In the Sixth Circuit and the District of Columbia Circuit the type of immunity depends on the particular task the worker is doing. In Gray v. Poole, [7] the court held that qualified immunity covers social workers acting as investigators, while social workers testifying as witnesses are protected by absolute immunity. In Rippy ex rel. Rippy v. Hattaway, [8] the court ruled that absolute immunity protects social workers who initiate proceedings on behalf of a child. In Austin v. Borel, [9] the court ruled that child protection workers were not entitled to absolute immunity when they filed an "allegedly false verified complaint seeking the removal of two children" from the family home (at 1363).

Ethical Considerations

There is, of course, a difference between misrepresentation of a piece of physical or verbal evidence and the actual creation of false evidence. Misrepresentation involves the willful giving of a misleading representation of the facts. Creation of false evidence involves the act of improperly causing a ‘fact’ to exist. More often, critics and attorneys accuse workers of a willingness to misrepresent, selectively quote, and misconstrue information to support their claims and therefore to present an entirely misleading case. Rather than sticking to agency protocols and training the workers sensationalize their documentation and findings in a misleading fashion.

To what extent are such allegations true? Do workers consciously or unconsciously misrepresent evidence, and selectively engage in systematic distortion? How often do they may make deliberate efforts to mislead, deceive, or confuse their own supervisor or the court in order to promote their own personal or ideological objectives? How frequently are workers omitting or concealing material facts? Under the guise of vigilance, are there child protection workers whose adherence to rules and procedures is purposely excessive?

From a social work, legal, or judicial perspective, making a knowing misrepresentation in a child protection case is a serious ethical breach. The NASW Code of Ethics, 4.01(c), notes that: “Social workers should base practice on recognized knowledge, including empirically based knowledge, relevant to social work and social work ethics.” At 4.04 the Code goes on to state: “Social workers should not participate in, condone, or be associated with dishonesty, fraud, or deception.” Dishonesty, shading the truth, or a lack of candor cannot be tolerated in child protection services, a field of endeavor built upon trust and respect for the law. Whether or not child protection workers deserve immunity from prosecution when they misrepresent or fabricate evidence is a question each states’ courts are dealing with. Similarly, each court must decide whether such misconduct warrants setting aside the decision to remove the child from his or her home. In the final analysis, the question might soon find itself before the U.S. Supreme Court.

A worker’s misrepresentation or fabrication of evidence is particularly pernicious because it puts the whole field of child protection in a negative light. Whether or not immunity is granted, there is simply no excuse for this kind of willful and egregious conduct.

Endnotes

[1] See, e.g., Abdouch v. Burger, 426 F.3d 982 (8th Cir. 2005) and Babcock v. Tyler (884 F.2d 497 (9th Cir. 1989) (absolute immunity shields social workers to the extent that their role is functionally equivalent to that of a prosecutor); but see Burton v. Richmond, 276 F.3d 973 (2002) (when a state department of human services affirmatively places children in an abusive foster care setting, the state may be liable for damages); Gray v. Poole, 275 F.3d 1113, (D.C. Cir. 2002) (qualified immunity covers social service workers acting as investigators, but when testifying as witnesses they are protected by absolute immunity). Qualified immunity is often afforded if the social work is involved in a “discretionary function” unless his or her conduct is clearly a violation of a statute or constitutional principle (Snell v. Tunnell, 698 F. Supp. 1542 (W.D. Okla. 1988).

[2] Harlow v. Fitzgerald, 457 U.S. 800 (1982) (absolute immunity is appropriate in limited circumstances -- judicial, prosecutorial, and legislative functions-- whereas executive officials usually receive qualified immunity).

[3] Cal. Gov't Code § 821.6

[4] Cunningham v. Wenatchee, 214 F. Supp. 2d 1103 (E.D. Wash. 2002).

[5] 348 F.3d 820 (9th Cir. 2003).

[6] 911 F.2d 863, (2d Cir. 1990).

[7] 275 F.3d 1113 (D.C. Cir 2002).

[8] 270 F.3d 416 (6th Cir. 2001).

[9] 830 F.2d 1356, 1363 (5th Cir. 1987).

This article originally appeared in the APSAC Advisor: Do child protection workers deserve immunity when they misrepresent or fabricate evidence?, American Professional Society on the Abuse of Children Advisor, 21(2), 18-19.

Daniel Pollack, MSW, JD is full professor at Yeshiva University School of Social Work in New York City and is a frequent expert witness and contributer to this blog.

Facebook Gestapo?

2009-07-30T14:36:57Z

Now that Facebook is no longer pimping our children, the public school system is rushing to fill the void. Still smarting from getting whacked by the Supreme Court for strip searching middle school students over asprin, our ever-inventive educational industrial complex is devising innovative new ways to keep impertinent students in line. Not surprisingly, their tactics are focusing on sexting and social networking.

In one recent case, a high school student in Mississippi is suing her local school district after a teacher logged into the student's Facebook account and distributed information that embarrassed her and led to her removal from the cheerleading team.

On Sept. 10, 2007, Pearl High School cheerleading coach Tommie Hill required each member of the cheerleading squad to reveal the passwords to their Facebook accounts, according to the suit.

Many of the students immediately deleted their accounts using their mobile phones, said Jackson's attorney Rita Nahlik Silin. Jackson did not delete her account.

The suit alleges Hill later logged onto Jackson's Facebook account and disseminated content — including private messages with another Pearl High School student — to other teachers, cheerleading coaches, and the principal and superintendent.

According to the suit, the officials "reprimanded, punished, and humiliated" Jackson for an exchange of profanity-laced messages between Jackson and the cheerleading captain in which Jackson asked the student to "stop harassing" several of the cheerleaders.

"I would have been completely fine with the school officials looking at my public [profile on] Facebook, but I think they went too far with getting my password and looking at my personal messages between me and my peers," Jackson, 16, said in a message. "They were conversations between me and my friends so I shouldn't have gotten in trouble for them."

As a result of her private Facebook content, Jackson was not allowed to attend cheerleading practices, participate in football games or partake in school events for which she had already paid participation fees, according to the suit.

These kinds of tactics remind me of Brannum v. Overton County School Bd which was decided last year. In that case, middle school students brought a federal civil rights action against county school board members, the director of schools, and a school principal and assistant principal, alleging that they violated the students' constitutional right to privacy by installing and operating video surveillance equipment in the boys' and girls' locker rooms at the school.

Our public educators' rationalization of strip searching, sexting suppression, and social networking censorship--all detailed ad nausem on this blog--pale in comparison to the Overton education professionals' justification for essentially producing and distributing child pornography.The following is taken directly from the Court of Appeals decision and is well worth your time:

In an effort to improve security at LMS, the Overton County School Board approved the installation of video surveillance equipment throughout the school building. The school board engaged the education technology firm, Edutech, Inc., to install cameras and monitoring equipment. The board ordered the Director of Schools, William Needham, to oversee the project. Needham delegated his authority for the installation of the monitoring equipment to the LMS Principal, Melinda Beatty, who delegated her authority to the Assistant Principal, Robert Jolley. None of the defendants promulgated any guidelines, written or otherwise, determining the number, location, or operation of the surveillance cameras.

After several meetings, Assistant Principal Jolley and an Edutech representative decided to install the cameras throughout the school in areas facing the exterior doors, in hallways leading to exterior doors, and in the boys' and girls' locker rooms. The cameras were installed and were operational by July 2002.

The images captured by the cameras were transmitted to a computer terminal in Jolley's office where they were displayed and were stored on the computer's hard drive. Jolley testified that, in September 2002, he discovered that the locker room cameras were videotaping areas in which students routinely dressed for athletic activities. He said that he immediately notified Principal Beatty of the situation and suggested that the placement of the cameras be changed. But, the cameras were not removed nor were their locations changed for the remainder of the fall semester.

In addition to Jolley receiving the images on his computer, they were also accessible via remote internet connection. Any person with access to the software username, password, and Internet Protocol (IP) address could access the stored images. Neither Jolley nor anyone else had ever changed the system password or username from its default setting. The record indicates that the system was accessed ninety-eight different times between July 12, 2002, and January 10, 2003, including through internet service providers located in Rock Hill, South Carolina; Clarksville, Tennessee; and Gainsboro, Tennessee.

During a girls' basketball game at LMS on January 9, 2003, visiting team members from Allons Elementary School noticed the camera in the girls' locker room and brought this to the attention of their coach, Kathy Carr. Carr questioned Principal Beatty, who assured Carr that the camera was not activated. In fact, the camera was activated and had recorded images of the Allons team members in their undergarments when they changed their clothes. After the game, Carr reported the camera incident to the Allons school principal, who contacted Defendant Needham later that evening. Needham immediately accessed the security system from his home and viewed the recorded images. The following morning, January 10, Needham, Beatty, and two other officials viewed the images in Needham's office by remote access. Needham later stated that in his opinion, the videotapes of the 10 to 14 year old girls contained “nothing more than images of a few bras and panties.” School employees removed the locker room cameras later that day.

The Sixth Circuit allowed the students' lawsuit to proceed against the principal and assistant principal holding that:

Some personal liberties are so fundamental to human dignity as to need no specific explication in our Constitution in order to ensure their protection against government invasion. Surreptitiously videotaping the plaintiffs in various states of undress is plainly among them. Stated differently, and more specifically, a person of ordinary common sense, to say nothing of professional school administrators, would know without need for specific instruction from a federal court, that teenagers have an inherent personal dignity, a sense of decency and self-respect, and a sensitivity about their bodily privacy that are at the core of their personal liberty and that are grossly offended by their being surreptitiously videotaped while changing their clothes in a school locker room. These notions of personal privacy are “clearly established” in that they inhere in all of us, particularly middle school teenagers, and are inherent in the privacy component of the Fourth Amendment's proscription against unreasonable searches. But even if that were not self-evident, the cases we have discussed, supra, would lead a reasonable school administrator to conclude that the students' constitutionally protected privacy right not to be surreptitiously videotaped while changing their clothes is judicially clearly established.

The question of whether teenage students themselves have a right to voluntarily give up their "inherent personal dignity, sense of decency and self-respect, and sensitivity about their bodily privacy" by sexting naked images of themselves into cyberspace has yet to be answered. I think it's safe to assume that right or no right, whether it's on Facebook, MySpace or a cell phone, inquiring school administrators will still want to know.

Decriminalizing Sexting?

2009-07-24T14:26:38Z

Hot on the heels of a spate of high-profile sexting cases in New Jersey and the nation, New Jersey legislators are proposing alternatives to criminal prosecution that will effectively decriminalize teenage production and distribution of child pornography

The sponsors say teenagers often engage in the practice out of a psychological vulnerability, not a criminal mindset, and the law should reflect that.

The bills A-4069 (Pamela Lampitt, D-Camden) and S-2926 (James Beach, D-Camden), were introduced in June, just three months after the Passaic County Sheriff's Department charged a 14-year-old girl with distribution of child pornography for posting nude pictures of herself on MySpace. The girl was ultimately given probation and counseling.

Throughout the country, a wide-ranging debate has been growing about this presumably prevelant practice. Cybersafety Queen Parry Aftab is leading a national effort to make sexting a federal crime while commentator Ashleigh Banfield demands harsh felony prison terms for teens caught sexting. Meanwhile studies show that one out of every five teens has either sent or received nude or semi-nude pictures of themselves or others electronically, according to a survey from the National Campaign to Prevent Teen and Unplanned Pregnancy.

And speaking of pregnancy, the lead plaintiff in the ACLU's watershed case against Wyoming County DA George Skumanick recently announced on national television that she is pregnant at age 15. The federal judge in that case issued an injunction to protect three teenage girls from the threat of criminal charges for using their cell phones to take and send semi-nude images of themselves while the case is on appeal to the Third Circuit.

Meanwhile the debate about sexting continues. Is it a crime or just youthful indiscretion? Is technology fostering a new generation of child pornographers and sex offenders? Does sexting at 13 lead to pregnancy at 15? When do victims become victimizers? Schools, child welfare groups and politicians are struggling for answers.

Prosecutors Move to Seize House in Child Pornography Case

2009-07-07T02:23:58Z

Prosecutors in the Eastern District of Kentucky don't just want to put Joseph Robert Leitner in prison for years. The federal government wants his house.

Leitner, 62, pleaded guilty last week to charges that he possessed more than 30,000 images of child pornography, and he agreed to give up his home in the Chevy Chase subdivision of Lexington, court records show.

The property forfeiture marked the first time that prosecutors in the Eastern District of Kentucky have seized a home in a child pornography investigation. The forfeiture of houses more often occurs in drug prosecutions.

“He used his house as a protective shield to allow his criminal activity to go undetected,” said Kyle Edelen, a spokesman for the U.S. Attorney’s Office. Prosecutors, he said, based the forfeiture decision on the number of images and the frequency of the downloads.

More on this story in The BLT: The Blog of Legal Times.

XOb (Child Porn a Family Affair)

2009-07-06T21:30:26Z

Child pornography is a family affair - victims seven times more likely to be exploited by parents than strangers Link

Sexting might be IN but Strip Searching is definitely OUT

2009-07-01T14:41:25Z

By now the story of Savana Redding is well known, at least to readers of this blog where we have been discussing this case for almost a year.

After escorting 13-year-old Savana Redding from her middle school classroom to his office, an assistant principal accused her of distributing over-the-counter pain relief pills to fellow students. Savana denied the allegations and agreed to a search of her belongings. Finding nothing, the assistant principal then sent Savana to the school nurse for a strip-search. That search also turned up nothing.

Savana’s mother filed suit against the school district and the staff members who authorized and participated in the investigation alleging that the strip search violated Savana’s Fourth Amendment rights. Claiming qualified immunity, the staff members moved for summary judgment. The District Court granted the motion, finding that there was no Fourth Amendment violation, and the en banc Ninth Circuit reversed.

The case was appealed to United States Supreme Court. As we reported in April, Savana's case wasn't looking very good at oral argument where the mostly male justices reacted skeptically to her claim. Alas we, along with most commentators, were wrong. Last week, a near unanimous Court held that the strip search violated Savana’s Fourth Amendment rights.

The court recognized that for school searches, “the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause.” T.L.O., 469 U. S., at 341. Under the resulting reasonable suspicion standard, a school search “will be permissible … when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id., at 342. The required knowledge component of reasonable suspicion for a school administrator’s evidence search is that it raise a moderate chance of finding evidence of wrongdoing.

The Court found that while there was sufficient suspicion to justify searching Savana’s backpack and outer clothing, the suspected facts pointing to Savana did not indicate that the drugs presented a danger to students or were concealed in her underwear and therefore there was insufficient suspicion to warrant extending the search to her underwear.

The search necessarily exposed Savana's breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings. Savana’s subjective expectation of privacy is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation is indicated by the common reaction of other young people similarly searched, whose adolescent vulnerability intensifies the exposure’s patent intrusiveness. Its indignity does not outlaw the search, but it does implicate the rule that “the search [be] ‘reasonably related in scope to the circumstances which justified the interference in the first place.’” T.L.O., supra, at 341.

Perhaps the Court best summed up its position as follows:

Here, the content of the suspicion failed to match the degree of intrusion. Because the assistant principal knew that the pills were common pain relievers, he must have known of their nature and limited threat and had no reason to suspect that large amounts were being passed around or that individual students had great quantities. Nor could he have suspected that Savana was hiding common painkillers in her underwear. When suspected facts must support the categorically extreme intrusiveness of a search down to an adolescent’s body, petitioners’ general belief that students hide contraband in their clothing falls short; a reasonable search that extensive calls for suspicion that it will succeed. Nondangerous school contraband does not conjure up the specter of stashes in intimate places, and there is no evidence of such behavior at the school;

In other words, stop acting like power crazed morons. Sometimes a Motrin is just a Motrin.

XOb (USSC Decision: Safford v. Redding)

2009-06-25T18:58:02Z

News Alert: in a surprising decision Supreme Court ruled today that school strip-search of student was unconstitutional - more on this soon