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The Washington Times
September 7, 1999

Appeals court rejects coerced entry to home

By Michael Farris
The Washington Times
September 7, 1999

Parent’s authority and privacy regarding their children should not be undermined by the government.

Jill Floyd, a social worker for the Yolo County (Calif.) Department of Social Services (DSS), had the “goods” on the Calabretta family. An anonymous tipster had heard a child’s voice yelling “No, Daddy, no” late at night. Another time the tipster had heard a child’s voice yelling “No, no, no” from the backyard. Additionally, the tipster knew that the Calabrettas home-schooled their children and were very religious.

Ms. Floyd went to the home four days after DSS received this report. She demanded entry. Shirley Calabretta, a member of Home School Legal Defense Association (HSLDA) who had been instructed in her rights under the Fourth Amendment, graciously said “No.” The Calabretta children were observed by the social worker when Shirley opened the door. Later that day, the social worker wrote that the children “did not appear to be abused or neglected.”

Ms. Floyd went on a 10-day vacation. She hoped that another worker would complete the investigation while she was away. However, when she returned, she found the file still sitting, uncompleted. She then called for a policeman to accompany her to the home. Not for her protection, but simply to coerce entry into the Calabretta home.

Officer Nicholas Schwall knew nothing more than that children had been heard crying in the home when he coerced Mrs. Calabretta to open her door with the threatening words, “We will get into your home one way or another.”

Once inside, Ms. Floyd insisted on segregating the two girls, then-aged 12 and 3. She asked the 12 year-old whether the children were spanked. The girl gave a remarkably mature description of biblical discipline and said that they were sometimes spanked with a short, thin dowel and other times with a Lincoln Log roofing piece. The girl denied any abuse or bruises.

Nonetheless, Ms. Floyd insisted on strip searching the 3-year-old. She demanded that the 12-year-old remove the younger sister’s pants. The older girl refused and the little girl began to scream in the tug-of-war that ensued. Mrs. Calabretta came into the bedroom, despite having been told to stay out.

When she found out what the social worker was demanding, Mrs. Calabretta removed the little girl’s pants to show the social worker a perfectly normal child’s bottom without a hint of bruising.

HSLDA filed a civil rights lawsuit for the Calabretta family in the federal district court in Sacramento. We argued that the Fourth Amendment of the U.S. Constitution prohibits either social workers or police officers from coercing entry into a family’s home without a warrant or probable cause evidence of an emergency.

The social worker and police officers defended on the basis that the normal rules of the Fourth Amendment do not apply to child welfare investigations. Additionally, they argued that the law concerning child welfare investigations was not clear and they were entitled to the good faith immunity defense for government officials who act in an area where the law is murky.

The federal trial court ruled in favor of the Calabrettas on all points. Unsurprisingly, the government agents appealed this decision to the 9th U.S. Circuit Court of Appeals.

On Aug. 26, the 9th Circuit issued an extraordinarily strong decision affirming parental rights and the right of privacy of the family home. The court held that neither social workers nor police officers can coerce their way into a home unless they have either a warrant or probable cause that there is an emergency situation. Anonymous tips like the one here simply do not qualify.

The court said, “The reasonable expectation of privacy of individuals in their homes includes the interests of both parents and children in not having government officials coerce entry in violation of the Fourth Amendment and humiliate the parents in front of the children. An essential aspect of the privacy of the home is the parent’s and the child’s interest in the privacy of their relationship with each other.”

We have heard from the “it-takes-a-village people” that the government’s need to protect children from abuse. The 9th Circuit recognized that this is only one aspect of a child’s legitimate needs. The decision said, “The government’s interest in the welfare of children embraces not only protecting children from physical abuse, but also protecting children’s interest in the privacy and dignity of their homes and the lawfully exercised authority of their parents.”

Judge Andrew Kleinfeld, a Bush appointee to the Court, has penned the most important endorsement of parental rights in any case I have litigated in the 23 years I’ve been in practice. It’s about time that parents got some really good news.

Michael Farris is the father of 10 home-schooled children and president of the
Home School Legal Defense Association

Michael Farris is the father of 10 home-schooled children and chairman of the
Home School Legal Defense Association

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