Family Asks Supreme Court to Hold CPS Officer Accountable for Retaliatory Investigation

J. Justin Wilson
J. Justin Wilson · November 28, 2022

Today, a Missouri family partnered with the Institute for Justice (IJ), a nonprofit public interest law firm, to ask the Supreme Court to hold a child protective services officer accountable for launching an unwarranted, retaliatory investigation after the family criticized the county. The case asks the Supreme Court to recognize that retaliatory investigations are not above constitutional scrutiny.

“From ordinary families to the highest echelons of power, government investigations are regularly used to punish innocent Americans for speaking out,” said Institute for Justice Attorney Anya Bidwell. “In many circumstances, being ‘under investigation’ is a punishment in and of itself. Retaliatory investigations ruin lives, drain bank accounts and cast an unsubstantiated cloud of guilt on everyone within their reach. Worst of all, they intimidate citizens into staying silent. That’s anathema to the First Amendment. There must be an ability to sue government officials when they do this to you.”

The case before the court started with a tragedy. 

In May 2018, a family’s 15-year-old son was sexually abused by a Scott County, Missouri, sheriff’s deputy. After the deputy was arrested and charged, the family threatened to sue the county for allowing the deputy—who had been disciplined in previous law enforcement jobs—to serve on the force.

Then, a few weeks later, the family heard a knock at their front door and found a juvenile officer and two highway patrol troopers accompanying a child-welfare investigator from the Scott County Children’s Division. The child-welfare investigator informed the parents that they were being formally investigated for child neglect, claiming that an anonymous source called the state’s child abuse tipline and reported the family. 

What unfolded next only served to retraumatize the already-victimized family. 

The investigator returned to their home two more times. She demanded one-on-one interviews with the children and attempted to have the teenage son—the victim of the initial abuse—to have his genitals and rectum examined for evidence. The boy’s cellphone was also taken, and he was told that he could be charged with a sex crime. Because the family was lucky enough to find a dedicated pro bono lawyer, the visits stopped. But the investigation did not. 

Two months after the initial visits, the investigator issued a preliminary report finding the parents guilty of neglect. The parents were horrified: the investigator argued that by allowing their son to have access to a cell phone, the internet and a car—things the vast majority of parents allow—they were effectively complicit in his abuse by the officer. 

The parents challenged the preliminary findings and won. Missouri’s Child Abuse and Neglect Review Board found that the investigator’s findings of neglect were unsubstantiated and a separate review by a county juvenile officer found no evidence of parental neglect. 

For nine months, the family lived under a cloud of uncertainty and frustration. When they were finally exonerated, and settled with the county out of court, they sued the investigator in federal court, arguing that she’d unconstitutionally retaliated against them after they criticized the county.

In her defense, the investigator argued, predictably, that she was protected by the controversial doctrine of “qualified immunity,” which gives government officials a blank check to violate the Constitution, unless there is a case in their jurisdiction that already declared identical actions to be unconstitutional. But the district court disagreed and denied qualified immunity to the investigator. In the court’s view, the Constitution did not allow the investigator “to make findings of child neglect in retaliation for parents making claims against county officials related to the sexual abuse of their child.” 

The investigator appealed and the 8th U.S. Circuit Court of Appeals reversed the lower court and gave the investigator immunity. The three-judge panel found that “[e]ven assuming that the facts in the complaint are true,” the court has “never recognized a retaliatory-investigation claim of this kind.” In other words, according to the court, there is no such thing as a constitutional protection from retaliatory investigation.

That’s the question this case poses to the U.S. Supreme Court: Does the Constitution protect Americans from unwarranted, retaliatory investigations that punish people for their speech?

“If there are no constitutional checks on investigations, then they could become a default form for the government to punish its critics,” said IJ Attorney Christie Hebert. “Investigations are easy to launch, have little oversight, and can ruin their subjects’ lives before a court, let alone a prosecutor, has an opportunity to decide if there is any basis for the investigation. We’re hopeful that the Supreme Court will recognize that in many ways investigations are punishment in and of themselves, and thus, subject to constitutional scrutiny.”

This case is the latest from the Institute for Justice’s Project on Immunity and Accountability, which seeks to ensure that those who violate the Constitution are held accountable for their actions. 

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