No en banc review in child caseworker liability case

The Second Circuit will not hear en banc a case holding that an abusive father can sue a caseworker under Section 1983 for unlawfully entering his home under a bad warrant and seizing his at-risk children. The Court of Appeals hears very few cases en banc, but we can usually count on interesting and provocative opinions that dissent from the refusal to hear the case en banc. This case is no exception.

The case is Southerland v. City of New York, originally decided by the Court of Appeals in June 2011. A three-judge panel held that a caseworker who entered Southerland's home on a warrant containing inaccurate information about his children could not invoke qualified immunity. That entry caused the caseworker, Timothy Woo, to seize six other at-risk children. Here's my summary of the case from June 2011:

Investigator Woo was assigned to the case after one of the Southerland daughters, Ciara, was behaving strangely in school. Woo came to the house and claimed that the Southerland's children were living in squalor; Southerland strongly disputed this characterization. Concluding that their safety was threatened, Woo removed the children from their home and sent them to foster care. While Kings County Family Court concluded that Southerland had abused and neglected his children and sexually abused Ciara, none of this damning information was in Woo's possession when he entered the home and took away the kids. For that reason, the Second Circuit (Sack, Kearse and Hall) disregards the Family Court's findings in determining whether Woo violated the Constitution.

Five active judges on the Second Circuit (Raggi, Cabranes, Jacobs, Livingston and Wesley) want the court to hear the case again. I guess you could call this the conservative wing of the Second Circuit. Two of those judges issue opinions dissenting from the court's refusal to hear the case en banc.

Judge Raggi says that "in allowing an adjudicated abusive father and the children he abused to sue a caseworker for prematurely halting the abuse, the panel extends our due process precedent in a way that the court should reject en banc. ... Recognizing a viable claim for money damages in such circumstances risks bringing the law into disrepute. Further, it endangers future abuse victims by unnecessarily deterring caseworkers from promptly intervening for fear of being liable for money damages, not only in cases where no parental abuse or neglect is established but also in cases where courts conclusively determine that it is." She concludes:

Rather than allow this case to go forward, this court should clarify two principles of law: (1) there is always probable cause to look for an at-risk child in the home of his or her custodial parent, at least absent conclusive evidence to the contrary; and (2) once a parent has been adjudicated to have so abused and neglected his children as to be denied custody, neither the adjudicated abusive parent nor the children he abused can sue the caseworker who effected the initial removal for money damages based on due process or Fourth Amendment claims that the removal was premature. With these principles clarified, there is no question that the defendant caseworker, Timothy Woo, is entitled to summary judgment on the ground of qualified immunity.

Judge Jacobs also dissents, slamming cases like this that unfairly subject public servants to personal liability for doing nothing wrong. In this case, he says that the original panel decision "has jumped the rails." For those of you who go straight to Justice Scalia's dissenting opinions in reading Supreme Court cases, Chief Judge Jacobs is the Second Circuit counterpart. Here are some highlights:

Nothing can account for such an opinion and result except the panel’s tacit assumption that Mr. Woo is merely a nominal defendant, that the City of New York will take on his defense and indemnify him for any judgment, and that litigation like this is not really a claim against the individual but is in effect an instrument for developing ever more ramified constitutional principles and for policing governmental compliance with these constitutional developments. This is an almost-complete misconception of Section 1983 claims against individuals. An individual defendant has at stake his savings, his pension, the equity in his home, the kids’ college fund: This should tell us something about the threshold of liability.

...

The panel’s opinion and the assumptions that animate it have effects that reach beyond Mr. Woo and the City of New York as his employer: There is a substantial and direct impact on public safety. ... When the panel opinion in this case is considered together with DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), holding that state officials have no constitutional duty to protect children against domestic abuse, a perverse incentive is created. A child welfare worker is shielded from liability when she recklessly fails to protect abused children, but she is exposed to personal liability when she acts in good faith to protect them.

...

The panel would send Mr. Woo to a jury for an assessment of his liability and the damages he should pay. I would shake his hand.