The invisible exception to the 4th Amendment?

One of the things that has long appalled me about Child Protective Services (CPS), as well as the various agencies charged with enforcing animal welfare laws, is that unlike normal police, neither the child cops nor the animal cops seem to believe the Constitution applies to them. It's as if they think the founders of this country must have inserted invisible asterisks in the 4th and 5th Amendments going to invisible footnotes which say "except in cases involving crimes against children or animals."

Don't get me wrong. Not only do I oppose crimes against children or animals, I can be just as emotional as some of the enforcement people under the right set of facts. But that does not mean I'm willing to allow my emotions to strike the Fourth and Fifth Amendments from the Constitution.

Darleen Click writes about an all-too-typical case -- Michael C. v. Gresbach "in which a social worker entered a private school, without warrant and demanded to see two children she suspected had been spanked by their parents." She routinely strip-searched children, which was such a standard agency practice that it was deemed not even worthy of telling her supervisor, much less bothering with legal process:

"The social worker performed these strip searches as a matter of routine, estimating that in perhaps one-half of the 300 or so cases she handled every year she subjected kids to a partial disrobing," he said. "In fact, she testified that she considered it so routine that she did not bother to discuss her intentions with her supervisor, even though she spoke to her on her way to the school."

The state had several social workers file affidavits saying they would have followed the same procedure. Crampton said, "That is an alarming admission, and we suspect you would find a similar pattern in social service offices all over America."

If it's a similar pattern in social service offices all over America, and the courts defer to them, what does this suggest about who is in charge of America?

Astoundingly (and quite bravely, IMO), the federal appellate court for the 7th Circuit held that the Constitution actually applies to the child cops:

Gresbach claimed she was entitled to qualified immunity because her actions were reasonable under the Fourth Amendment; however, the court disagreed.

"We do not exempt child welfare workers from adhering to basic Fourth Amendment principles under non-exigent circumstances - to do so would be imprudent," the court stated. "... we do not believe that requiring a child welfare caseworker to act in accordance with basic Fourth Amendment principles is an undue burden on the child welfare system, particularly when it is necessary to conduct an examination of a child's body, which is undoubtedly 'frightening, humiliating and intrusive' to the child."

(Via Tim Sandefur.)

This is an excellent argument for not electing federal judges, because few judges at the local level would be willing to uphold the Constitution in cases involving child cops or animal cops. They defer to the bureaucratic classes out of fear, because the people who run these agencies are generally allowed to write the laws they enforce (they have huge lobbies and own many state and local legislators who create statutory schemes which enable "regulatory" bureaucratic law-writing), and in terms of sheer, raw power, their media operations are second to none. Well-funded propaganda and "public relations" machines are able to commandeer newspaper columnists at a moment's notice, either at a local or a national level. Hollywood is in their hip pocket; I cannot count the number of television shows glorifying child cops or animal cops I've seen as I've flipped through the channels (and those are only dedicated series, which don't include child-cop or animal-cop friendly episodes on other programs). With so-called media "ride-alongs" being common, and private entities being given full police powers, there's a growing convergence between bureaucrats, activists, and media -- the only feature they share being that they're unelected.

Any judge or politician who gets out of line and defies them better be sure that he's squeaky clean, lest he find himself on the receiving end of a targeted media campaign. None of this should surprise any serious student of tyranny. People accustomed to operating outside the rules and who write their own laws are by definition tyrants, and it would be wholly unreasonable to expect them to play by the same rules as everyone else.

Anyway, were I the 7th Circuit judge who wrote that decision, I'd be awfully careful to make sure I had no loose ends in my personal life. No financial or family embarrassments, etc. Because I'd know my name was on a permanent enemies list compiled by whoever holds power at the top of the very powerful child cops bureaucracy. And I do mean "whoever" -- because it really isn't personal. They're faceless and anonymous, and as replaceable as rechargeable batteries.

Unfortunately, it's the nature of bureaucratic power, and only occasionally does a truly famous tyrant emerge from the ranks of the bureaucrats who silently run our lives. For the most part, they're anonymous and impersonal.

I remember an incident in Berkeley when a building inspector showed up at a friend's house, unannounced and without a warrant. He claimed that he wanted to search the house because they were investigating a report of code violations, and when my friend asked him if he had a search warrant, he was genuinely surprised, and said, "We're building inspectors! We don't need search warrants!" and simply demanded entry. This prompted a call to the police. Naturally, the poor officer had to explain patiently that because of the 4th Amendment, there was no way he could force the man to admit him without a search warrant, and he said "If I can't go in without a search warrant, neither can you!"

This is something only a real cop would understand.

That's because ordinary police tend to be held accountable by other cops and by society, and they can even lose their jobs for violating the Constitution.

Bureaucrats who think the Constitution doesn't apply to them get promoted.

posted by Eric on 06.05.08 at 09:53 AM





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Comments

I have always thought that paranoia is properly directed, not at the federal government and things like the Patriot Act, but what local governments and officials will do with the technicalities of laws, trying to weasel out of rights protection for the sake of some public good they are convinced in their own minds is necessary.

As a social worker, I know that different agencies have varying levels of strictness, and without strict accountability, well-meaning ideologues rapidly develop a dangerous culture of telling other people what to do. There's a CS Lewis quote about the greater danger of the well-meaning which I'll dig out when I get a chance.

Assistant Village Idiot   ·  June 5, 2008 10:37 AM
That's because ordinary police tend to be held accountable by other cops and by society, and they can even lose their jobs for violating the Constitution.

I was 100% with you, right up to there.

Phelps   ·  June 5, 2008 11:05 AM

Thanks, AVI.

Phelps, I see your point, but I meant to constrast the levels of accountability. Bear in mind I was reflecting on Berkeley cops, who are more accountable than most. (Anyway I did say "can" not "will.")

Eric Scheie   ·  June 5, 2008 11:20 AM

What's wrong with you? Are you one of those neocons who hates children and small animals?

If totalitarianism fully establishes itself in the US, it will be "for the children."

Steve Skubinna   ·  June 5, 2008 12:04 PM

The Thunder Run has linked to this post in the - Web Reconnaissance for 06/05/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.

David M   ·  June 5, 2008 12:35 PM

"If totalitarianism fully establishes itself in the US, it will be "for the children."

and I've been 100% with all of you, up to this point.

Totalitarianism IS fully establishing itself in the US, but it's cover story is that "its all about the dogs." Children run a distant second in this race.

Does the public line up to support vigilantes who, operating on telephone tips, who go to private residences to intimidate and coerce parents into submitting to unwarranted searches of their homes?

Yet these guys are raking in the dough uh donations.

http://www.newsobserver.com/105/story/1066244.html

Blue Dog State   ·  June 6, 2008 08:40 PM

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