Sunday, June 08, 2008

The FLDS Case: Further Legal Issues

A recent CNN story discussing the cost of the case so far to the state noted with a tone of regret that it would be difficult to force the parents to pay the cost since the state Supreme Court had found that the seizure of their children was without legal justification. Readers of this blog will not be surprised that I have been thinking about such issues from the other side. Are the Texas Department of Family and Protective Services or some of its employees liable, civilly or criminally, for actions they have taken? This reduces, I think, to three different questions, each of which raises legal issues that I cannot confidently judge as well as factual issues that would require a trial to resolve.

1. The initial seizure of the children:

According to unanimous votes of both a three judge appeals panel and the state Supreme Court, the seizure was legally unjustified (three justices, as I understand the result, held that it would have been justified if limited to female teens, six that the seizure of any of the children was unjustified). The seizure imposed substantial costs, monetary and others, on the parents and very large non-monetary costs on their children. Is the Department liable for damages? My guess is that it is not, that in this case as in many others government actors are not liable for their mistakes, but I might be wrong.

2. Classifying adults as minors:

For reasons I have discussed in earlier posts, I suspect that the Department, after discovering that only five of the minors they seized were either mothers or pregnant, decided to improve the evidence by reclassifying about 26 adult mothers as minors, thus letting it announce that 31 out of 53 girls aged 14-17 were pregnant or mothers. Suppose it is possible to prove in court that the "mistake" was deliberate. Restraining adults under color of law by pretending they are minors looks to me as though it ought to be both tortious and criminal.

3. The religious question:

At the time of the original seizure, the authorities' evidence of child abuse consisted of some bogus phone calls from a nonexistent 16 year old girl, information provided by an unidentified confidential informant, and the observation that there were pregnant women at the ranch who looked like teenagers. On that evidence more than four hundred children were seized and separated from their parents for about two months.

So far as we know, the informant had never been in the ranch. She appears to have been providing information not about those parents and their children but about their religious beliefs and how other members of their religion in other times and places were said to have acted; the obvious guess is that she is a past defector from the FLDS. One department spokeswoman explained the seizure of male children on the theory that they were being brought up to be abusers-which is to say, brought up in their parents' religion.

The obvious interpretation is that members of the FLDS were being persecuted for their religion. If so, is that a violation of federal law? [It would certainly seem a violation of the First Amendment]

Original report here

(And don't forget your ration of Wicked Thoughts for today)


kbp said...

1. Ignore a few policies and/or mix in malice, and they have a good civil complaint.

2. The count is actually 4 now. One classified as "pregnant" was not, leaving 1 pregnant and 3 as mothers. We can only assume the 3 mothers conceived prior to their 17th birthday (age of consent), having not seen this claim disputed by any.

3. The caler made allegations about her own assaults and claimed to reside at the YFZ Ranch. The alleged caller suspected now is black, so it would not be a safe guess that she is a past defector from the FLDS.

Your source for this information needs to read up on the topic before he posts.

David Friedman said...

kbp has misread my comment, quoted here from my blog. The person I conjecture is a defector is not Rozita Swinton, who pretty clearly made the call, but the unnamed "confidential informant" on whose information the raid was supposedly in part based. Before accusing others of error, he should perhaps read a little more carefully.

kbp does not give a source for his numbers. My count of five was the figure given by the appeals court. I do not know whether or not that included the supposedly pregnant minor, I think 14, who turned out not to be. I was not aware that one of the minors was actually pregnant--what's the source?

While 17 is the age of consent for non-marital sex, 16 is the current age of consent for marriage with parental permission, and 14 was the age less than three years ago. According to the appeals court, the Department offered no evidence on marital status. So we do not know, or at least I do not, whether any of the "pregnant or mothers" represent any violation of the law.

Readers interested in a more extensive discussion of the case may want to look at my blog: