The defendants in an ongoing federal lawsuit out of Kentucky got mixed results from recent motions to dismiss the case against them. Only part of the complaint is moving forward, but the court ruled against them—in no uncertain terms—for the strip search of six children who were each under age seven.
U.S. District Judge Justin R. Walker, a soon-to-be appellate court judge and known admirer of Supreme Court Justice Brett Kavanaugh, offered a clear opinion in a document dated last Wednesday, Aug. 18.:
Act One: An “attentive and loving” mother gets muffins for her children. Act Two: There’s a knock on her door and a threat by the government to take away her children. Act Three: Her children are strip searched without cause.
America’s founding generation may never have imagined a Cabinet for Health and Family Services. But they knew their fair share of unwelcome constables. And they added a Fourth Amendment to our Constitution to protect against this three-act tragedy.
This stems from a lawsuit filed in 2017 by parents Holly and Josiah Curry. In the story, the mother was driving her six children to karate class when she stopped for some coffee and muffins. (As mentioned in the opinion, the facts were presented in these plaintiffs’ favor under case law since they were the non-moving party in these motions for summary judgment.) She left the kids in the vehicle while the temperature outside was in the low-to-mid 60s, the court wrote. Someone called the police because she left the kids in the car. Holly Curry returned up to 10 minutes later. From the account [citations removed]:
Holly told the officer that she believed her kids were safe because the van’s fan was on high, its key was out of the ignition, and its safety features would shut down the car if anyone tampered with the transmission. He told Holly that the kids should never be left unattended, and she told him she understood. He also told her that he had to file a report with the Kentucky Cabinet for Health and Family Services and that a social worker would be sent to the Currys’ home to investigate the report. The officer allowed Holly to leave with her children and didn’t bring any criminal charges against her.
The children sustained no harm.
According to the opinion, social worker Jeanetta Childress went to the Currys’ home, but Holly told her she couldn’t come in without a warrant. Curry told her to get the cops. She brought over co-defendant Hardin County Deputy Michael Furnish, the opinion said. As described, the pair allegedly bullied their way into the home:
Childress started yelling at Holly. Holly asked if they could reschedule the visit for when her husband was home. She also offered to bring the children to the door so Childress could see them. But Furnish and Childress would not agree to that. Instead, they both told her that if she didn’t let them in, they would get an emergency custody order.28 When Holly asked what this meant, Furnish told her, “We’ll come back and take all of your children.” Childress and Furnish both started yelling, “What’s it gonna be?” Holly started crying. She said, “Fine, we can do this.”
Childress allegedly said inappropriate things about the family’s size and religious beliefs, and sat on Holly Curry’s phone when the mother tried calling her husband. The children were interviewed. From the complaint:
After the interviews, Childress told Holly that she needed to examine the children for signs of physical injury. Holly and many of the children were crying. Holly and Furnish were present when Childress conducted the searches. Furnish talked to some of the children as Childress examined them. This examination included inspecting each child’s genitals.
Even though the report was found to be “unsubstantiated,” Childress allegedly told both parents “we’ll take your children” if authorities get another call.
Judge Walker determined that Holly Curry may have let the case worker and deputy inside the house, but a jury could find she was coerced. There was no basis for the authorities to threaten to take the children away, he said.
The judge said there was no basis for the strip search.
“Here, Childress lacked even a shadow of probable cause that the Currys physically abused their children,” he wrote. “No one had ever reported physical abuse. There was no evidence of it. Nothing about their house indicated they lived in dangerous conditions. The children didn’t tell Childress anything that pointed to ‘a substantial chance’ of physical abuse. In fact, the two oldest children told Childress that their parents didn’t even use corporal punishment. In Childress’s own words, Holly and her husband were ‘attentive and loving’ parents.”
Walker declined to toss the case against Childress and Furnish. According to the opinion, Furnish both witnessed the strip search and spoke to the kids, so a jury could find he participated in an unconstitutional search.
“Had Furnish only witnessed the strip searches — rather than talk to the children during the search and encourage them to undress — he might be entitled to qualified immunity,” Walker wrote. “The law is less clear about an officer’s liability when he is simply present while a social worker unreasonably strip searches a minor. But here, a jury could find that Furnish participated in the unconstitutional strip searches of the children.”
Attorneys for the defense did not immediately respond to a Law&Crime request for comment.
There were some rulings in favor of the defense in the opinion, however. The judge dismissed claims that 1) the Hardin County Sheriff’s Office had a policy or practice of helping social workers coerce warrantless entries into homes for child abuse or neglect investigations; 2) that authorities “illegally seized” the eldest daughter when Childress interviewed her alone; and 3) a Fourteenth Amendment claim that relied on the same facts as the couple’s Fourth Amendment claim.
[Screengrab via Home School Legal Defense Association, which represents the Currys]
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