Investigations can be an effective tool for intimidation. Government officials across the ideological spectrum weaponize this power to punish those who speak out against them.
The stories of junk investigations are legion. Los Angeles just voted out a democratic sheriff who, according to the New York Times, “opened criminal investigations into people that resulted in no filing of charges”—a sure sign of “ulterior motives.” And former President Trump’s Chief of Staff John F. Kelly recently disclosed that Trump asked him to “get the IRS on” two of his critics, as part of a pattern of using “his authority as president against people who had been critical of him.”
Whatever shape they take, investigations are easy to launch and can wreak havoc with people’s lives and businesses. That’s what happened to the family at the center of this case. The parents threatened to sue the county after one of its deputy sheriffs sexually assaulted their son. A county child protective services (CPS) officer, however, retaliated against the family by launching an investigation that put the parents under a cloud of suspicion for nine months. After they were exonerated, they sued the CPS officer, but the 8th U.S. Circuit Court of Appeals overruled a district court, which had held that the parents’ allegations of retaliation warranted further adjudication. According to the Eighth Circuit, there is no such thing as constitutional protection from retaliatory investigation.
Unfortunately, the Eighth Circuit is not alone. In at least 16 states across this nation, people who criticize their government and are investigated as the result of this criticism can get no constitutional accountability.
The Institute for Justice (IJ) teamed up with the parents in the U.S. Supreme Court to overrule Eighth Circuit and give them their day in court. This case is part of IJ’s Project on Immunity and Accountability, which is devoted to the simple idea that government officials are not above the rules and that if individuals must follow the law, then government must abide by the Constitution.
Petition for Certiorari
In May 2018, a 15-year-old boy was sexually abused by Brandon Cook, a deputy in the Scott County, Missouri, Sheriff’s Department. A few months after the assault, the boy’s parents threatened to sue Brandon Cook’s employer, Scott County, for its negligence in allowing Brandon—who had been disciplined in previous law enforcement jobs—to serve as a deputy. Only seven weeks after that threat, the parents found themselves subject to an intrusive investigation for child neglect by a child-welfare investigator in Scott County, Spring Cook, who claimed that the parents were the ones to blame for letting their son be sexually abused.
Cook arrived, unannounced, at the parents’ home on November 7, 2018, accompanied by a juvenile officer and state highway patrol troopers. She interviewed the son against the parents’ consent and forced him to do another interview in a different location that evening.
Cook came to the family home again two additional times, to conduct more interviews with the boy and his siblings. During the investigation, the boy was referred for an inspection of his genitals and rectum for evidence; his cellphone was taken; and he was told that he could be charged with a sex crime. The parents asked Cook to recuse herself, since she worked closely with Brandon Cook and knew the father, who also worked for the sheriff’s department. But Cook did not do that. She only doubled down, at one point threatening the father with a revocation of his law enforcement license.
After the parents retained a pro bono lawyer and refused Cook’s requests for additional home visits, Cook issued preliminary findings alleging child neglect. In essence, she blamed the parents for permitting their son to have access to a cellphone, the internet, and a car—which, by her reasoning, opened him up to being taken advantage of by strangers.
By contrast, neither the deputy juvenile officer nor the highway patrol troopers—all present during the original home visit—found probable cause of parental neglect. In addition, when Cook’s findings were presented to Missouri’s Child Abuse and Neglect Review Board, Cook was summarily reversed. The Board unanimously concluded that Cook’s findings of neglect were unsubstantiated.
The district court allows the parents’ case against Cook to move forward
Once the parents cleared their names and settled with the county out of court, they sued Cook for investigating them in retaliation for their threat to sue the county, which is a core First Amendment right. Cook promptly filed a motion to dismiss, claiming immunity. The district court sided with the parents, holding that the parents provided enough facts to link Cook’s investigation to her retaliatory motive. In addition, in the court’s view, a reasonable official in Cook’s shoes would not have believed that “it was permissible to make findings of child neglect in retaliation for parents making claims against county officials related to the sexual abuse of their child.”
The Eighth Circuit reverses the district court
Cook appealed the decision to the Eighth Circuit, which ruled that as a government employee, she was immune from being held accountable in court. Relying on the doctrine of “qualified immunity,” the three-judge panel wrote that “[e]ven assuming that the facts in the complaint are true,” the court has “never recognized a retaliatory-investigation claim of this kind.”
The parents now appeal to the Supreme Court
By rejecting the parents’ claim, the Eighth Circuit joined three other courts of appeals in holding that retaliatory investigations—unlike other means of retaliation, such as prosecutions, arrests, or even something as petty as parking tickets—do not warrant constitutional scrutiny.
That can’t be true. Retaliatory investigations like Cook’s ruin people’s lives. They are extremely damaging, costly and demoralizing. They are also extremely easy to launch. If there are no constitutional checks on investigations, they could become a default form for the government to punish its critics. That is not to say that the government should not have the power to investigate. Of course it should. The point is that this legitimate power cannot be used for illegitimate purposes, like silencing critics. And when it is used for such purposes, there needs to be an ability to hold government officials accountable by taking them to court.
Abuses with investigations are rampant. With state child protective services specifically, NBC News and ProPublica reports that case-workers “investigate the home lives of roughly 3.5 million children every year.” Only “about 5% of them are ultimately found to have been physically or sexually abused.” Yet, as University of Pennsylvania Professor Dorothy Roberts writes in her groundbreaking article, “During CPS investigations, caseworkers may inspect every corner of the home, interrogate family members about intimate details of their lives, strip-search children to look for evidence, and collect confidential information from schools, healthcare providers, and social service programs.”
Investigation is an effective tool for intimidation outside the context of child protective services as well. For example, FBI investigators can easily open a special type of investigation called an assessment. As the Brennan Center described in its report, “Assessments permit physical surveillance, database searches, interviews, racial and ethnic mapping” all “without any factual or criminal predicate”—that is, without probable cause. Between 2009 and 2011, for example, the FBI opened 82,325 assessments, only 3,315 of which had enough evidence to warrant an actual investigation. Some of these were opened on political advocacy organizations based on nothing more than the agents themselves speculating about subjects potentially committing a crime. Similarly, according to a U.S. Senate Committee report, officials at the Commerce Department had an unfiltered investigative power that resulted in the targeting of Chinese-Americans by “opening thousands of unauthorized investigations into department employees, often for specious reasons.”
The First Amendment is not worth much if people in power can weaponize government investigations to punish those whose speech they don’t like. If speaking could result in an invasive or embarrassing investigation, speakers will simply stay silent. That is anathema to the purpose of the First Amendment.
That’s why IJ is teaming up with the parents in this case to get the Supreme Court to recognize that investigations, just like other forms of retaliatory conduct, should be subjected to constitutional scrutiny.
The Institute for Justice
Founded in 1991, the Institute for Justice is the national law firm for liberty. IJ is dedicated to fighting judge-made rules that make it extremely difficult to hold government officials accountable for violating the Constitution. Our efforts include direct lawsuits against government officials at all stages of litigation (such as our cases on behalf of Hamdi Mohamud, Kevin Byrd, Sylvia Gonzalez and Cassi Pollreis), appellate friend-of-the-court briefs in support of individuals who have suffered at the hands of government officials, and outreach to members of the public who want to know more about the difficulties of suing governments and their employees for violating individual rights. IJ seeks to ensure that those who violate the Constitution are held accountable for their actions.