THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SANJAY TYAGI et al., )
) No.
16 cv 11236
Plaintiffs, )
Hon. Thomas M. Durkin
) Judge Presiding
v. )
)
SHELDON, et al., )
) Defendants.
)
)
PLAINTIFFS’ MOTION TO DECLARE DCFS PRACTICE OF SEIZING, SEARCHING, INTERVIEWING AND INTERROGATING SCHOOL CHILDREN AT PUBLIC SCHOOLS WITHOUT CONSENT OF PARENTS AND ABSENT EXIGENT CIRCUMSTANCES OR COURT ORDER AS UNCONSTITUTIONAL
On
07/21/2017, Plaintiffs have conferred with Defendants’ Counsels and all the
Counsels object to this Motion. (Exhibit
1 – Email Communication with Counsels of Defendants)
Plaintiffs
submit this Motion to request the Court to declare DCFS practice of seizing,
searching children’s bodies, interviewing and interrogating school children at
public schools without consent of parents and absent exigent circumstances or
court order as unconstitutional.
INTRODUCTION
DCFS routinely seizes, searches children’s
bodies and interviews and interrogates and children at school without consent
of parents and absent exigent circumstances or Court Order. DCFS routinely
disregards, disrespects and interferes with parents’ interests in the care,
custody and upbringing of their children. US Supreme Court has described
parental rights as “perhaps the oldest of the fundamental liberty interests”.
Parents
have an exceedingly strong interest in directing the upbringing of their
children, as well as in protecting both themselves and their children from the
embarrassment and social stigmatization attached to child abuse investigations.
Actions of DCFS routinely violate these rights.
DCFS
is not exempt from complying with the statutory protections put in place by
Congress in the Keeping Children and Families Safe Act of 2003. Congress
reemphasized the importance of protecting Fourth Amendment rights during child
abuse investigations, and DCFS actions circumvent those standards in a way that
threatens to disrupt family security.
DCFS
actions illustrate the need for a stringent evidentiary standard for conducting
child abuse investigations. The important state goal of preventing and
responding to child abuse allegations must be balanced with the parents and
children’s rights under the Fourth Amendment in a way that will ensure that the
fundamental constitutional rights are respected and protected. State actors
should have to present clear and convincing evidence before invading family
privacy in the way DCFS did in this case and routinely does in other cases.
LEGAL ARGUMENTS
1. DCFS VIOLATED PLAINTIFFS’ FUNDAMENTAL
LIBERTY INTERESTS IN THE INTEGRITY OF THEIR FAMILY WHEN THEY SEIZED A.T. AND
INTERROGATED HIM AT SCHOOL WITHOUT PARENTAL NOTICE OR CONSENT
For
more than 85 years, US Supreme Court has recognized that the interest of
parents in the care, custody, and control of their children is perhaps the
oldest of the fundamental liberty interests protected by the Fourteenth
Amendment. Meyer v. Nebraska, 262 U.S. 390,399 (1923); Pierce v. Society of
Sisters, 268 U.S.510, 534-535 (1925). The child is not merely a creature of the
State whose care can be doled out at the whim of a legislature, administrative
agency or court. Meyer, 262 U.S. at 399-400;Pierce, 268 U.S. at 535; Troxel v.
Granville, 530U.S. 57, 65-66 (2000). Instead, “[i]t is cardinal with us that
the custody, care and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the state can
neither supply nor hinder.” Prince v.Massachusetts, 321 U.S. 158, 166 (1944).
“And it is in recognition of this that these decisions have respected the
private realm of family life which the state cannot enter.” Id.
The fundamental interest in child rearing pre-dates the
founding of this country and the Bill of Rights. Smith v. Organization of
Foster Families For Equality and Reform, 431 U.S. 816, 845 (1977) (citing
Griswold v. Connecticut, 381 U.S. 479, 486 (1965)). “[T]he liberty interest in
family privacy has as its source, and its contours are ordinarily to be sought,
not in state law, but in intrinsic human rights, as they have been understood
in “this Nation’s history and tradition.” Smith, 431 U.S. at 845. That is why
“the interest of a parent in the companionship, care, custody, and management
of his or her children „come[s] to this Court with a momentum for respect
lacking when appeal is made to liberties, which derive merely from shifting
economic arrangements.‟” Stanley v.Illinois, 405 U.S. 645, 651 (1972) (citing
Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter,J., concurring)).
Even when, as is true here, there are allegations that one
parent might have mistreated the children, the underlying liberty interest, and
the presumption that parents act in the best interest of their children, does
not evaporate, and the state cannot seek to tear apart the family unit without
giving due respect to both parent’s and the children’s liberty interests. Santosky
v. Kramer, 455 U.S.745, 753 (1982); Wallis v. Spencer, 202 F.3d 1126, 1142 (9th
Cir. 2000). “The law’s concept of the family rests on a presumption that
parents possess what a child lacks in maturity, experience, and capacity for judgment
required for making life’s difficult decisions.” Parham v. J.R., 442 U.S. 584,
602 (1979). “More important, historically it has recognized that natural bonds
of affection lead parents to act in the best interests of their children.” Id.
“That some parents, may at times be acting against the interests of their
children’ creates a basis for caution, but is hardly a reason to discard
wholesale those pages of human experience that teach that parents generally do
act in the child’s best interests.” Id. at 602-603. DCFS Defendants could not disregard Plaintiff’s
parental rights and deny them the right to be notified of, consent to and
participate in the interrogation and physical examination of their minor son
A.T.
DCFS Defendants’ disregard for Plaintiffs’ familial rights is
not trivial. “Choices about marriage, family life, and the upbringing of
children are among associational rights US Supreme Court has ranked as of basic
importance in our society,‟ rights sheltered by the Fourteenth Amendment
against the State’s unwarranted usurpation, disregard, or disrespect.” M.L.B.
v.S.L.J., 519 U.S. 102, 116 (1996) (citing Boddie v. Connecticut, 401 U.S. 371,
376 (1971)). That explains the “historic respect–indeed, sanctity would not be
too strong a term–traditionally accorded to the relationships that develop within
the unitary family.” Michael H. v.Gerald D., 491 U.S. 110, 123 (1989). “Our decisions
establish that the Constitution protects the sanctity of the family precisely because
the institution of the family is deeply rooted in this Nation’s history and tradition.”
Id. at 123-124. Absent allegations (and perhaps proof) that plaintiffs posed a
danger to their children or was otherwise unfit, DCFS Defendants could not
intrude upon the sanctity of the family either directly by interrogating the children
at home, or surreptitiously by seizing A.T. and interrogating and physically
examining him at school without even bothering to notify the parents. See also,
Troxel, 530 U.S. at 68-69 (“[S]o long as a parent adequately cares for his or
her children (i.e., is fit), there will normally be no reason for the State to
inject itself into the private realm of the family to further question the
ability of that parent to make the best decisions concerning the rearing of
that parent’s children.”).
2. THE DIMINISHED EXPECTATION OF PRIVACY
ACCORDED PUBLIC SCHOOL STUDENTS SUBJECTED TO SEIZURES AND SEARCHES BY SCHOOL
OFFICIALS IS INAPPLICABLE TO THIS NON-SCHOOL RELATED INTERROGATION THAT DCFS
CONDUCTED ON SCHOOL PROPERTY.
The mere fact that DCFS Defendants chose a school office as
the venue for their interrogation of A.T. does not bring it within the Supreme
Court’s precedents that have recognized a lowered expectation of privacy for
public school students in certain circumstances. New Jersey v. T.L.O., 469 U.S.
325 (1985); Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995); Bd. of
Educ. of Indep. School Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S.
822 (2002). In those cases, the US Supreme Court explicitly distinguished
school officials conducting searches pursuant to their duties to maintain order
and discipline, in which the lowered expectation is appropriate, from law
enforcement searches and seizures outside of the academic context, in which it
is not. DCFS Defendants’ actions at school constitute the latter category,
which must comport with the Fourth Amendment standards required for
investigations conducted in the family home.
DCFS Defendants are not school
administrators, and they are not investigating a possible violation of school
rules. Defendants are State welfare officials investigating
Allegations
of child abuse. Their choice to use a room at the school instead of the
student’s
Home
did not place them under the protection of T.L.O.’s lowered standards. This was
not a search and seizure carried out by School Authorities in furtherance of
the need to maintain discipline in the schools.
Moving the seizure and interrogation of A.T. from the family’s
residence to a school office did not shield DCFS Defendants from the
requirements of the Fourth Amendment. A mere change in locale did not transform
the investigation of alleged child abuse by DCFS Investigators into a school
discipline investigation by a principal or superintendent. The lessened
expectation of privacy accorded to students in the latter circumstances cannot
be applied to relieve DCFS Defendants of their obligations under the Fourth
Amendment.
3. GOVERNMENT AGENTS SHOULD NOT BE PERMITTED
TO CIRCUMVENT FOURTH AMENDMENT STANDARDS FOR IN HOME INTERROGATIONS OF CHILDREN
BY MOVING THE INTERROGATIONS TO A PUBLIC SCHOOL
The courts and Congress have made it clear that social
welfare workers and government agents must respect Fourth Amendment rights when
they engage in child abuse investigations. Absent consent, a warrant or proof
of exigent circumstances, child welfare workers and law enforcement cannot
unilaterally seize a child and interrogate or examine her, regardless of
whether they are in the family home or, in a school.
With the shield of the school venue rendered ineffective,
DCFS Defendants are faced with the binding precedent of Calabretta and
subsequent cases which have firmly established that social workers and
government agents violate the Fourth Amendment when they invade the sanctity of
the family and interrogate children without the consent of their parents and
absent exigent circumstances, regardless of whether they are on school property.
Calabretta, 189 F.3d at 820; Wallis, 202 F.3d at 1142; Rogers v. County of San
Joaquin, 487 F.3d 1288, 1297 (9th Cir. 2007); Doe v. Heck, 327 F.3d 492,
512-513 (7th Cir. 2003).
In Calabretta, the Ninth Circuit held that a social worker
violated a mother and child’s Fourth Amendment rights when they unlawfully
entered the family home without a warrant and forced the mother to assist in a
strip search of her child. 189 F.3d at 820. “An unlawful entry or search of a
home does not end when the government officials walk across the threshold. It
continues as they impose their will on the residents of the home in which they
have no right to be.” Id. “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.”
This interest was egregiously violated in this case when the
DCFS Defendants decided to bypass the consent of parents, thereby deprive
Plaintiffs and minor A.T. of the ability to even assert their Fourth Amendment
rights, and instead go to A.T.’s school to seize and interrogate and physically
examine him without the knowledge or consent of his parents.
As the Ninth Circuit wrote, 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 in the lawfully exercised authority of their parents.” Id. Plaintiffs had no opportunity to even assert
those rights, let alone exercise them, because of DCFS Defendants’ decision to
circumvent Calabretta by showing up at A.T.’s school. DCFS Defendants should
not be permitted to manipulate the circumstances in order to avoid complying
with the Fourth Amendment.
Children have a corresponding right to the love, comfort, and
reassurance of their parents while they are undergoing forced interrogations
and physical examinations that are that are invasive or upsetting.
In Heck, the Seventh Circuit found that county child welfare
workers had violated the Fourth Amendment when they interrogated a student
regarding corporal punishment on a private school campus without a warrant or
consent. Heck, 327 F.3d at 515.
Despite the authorities’ best intentions, the process is
harmful in two related ways. First, the investigations undermine the
fundamental values of privacy, dignity, personal security, and mobility that
are protected by the Fourth Amendment. It is critical in this regard that the
Fourth Amendment uniquely has been interpreted to recognize the child's own
individual interest in these values, by guarding his right also to be free from
unreasonable searches and seizures both inside and outside the family home.
Second, the process causes emotional and psychological damage
ranging from temporary discomfort to significant long-term harm. Minor A.T. had
no less right to the love, comfort and reassurance of his parents than he would
have if he were undergoing an invasive physical examination. Likewise, parents
of A.T. had a right to be present when their son was being subjected to a
situation that could cause him long-term emotional and psychological harm.
This requires that government authorities conform to the
requirements of the Fourth Amendment before invading familial privacy, whether
in the home or at the child’s school.
DCFS Defendants should not be permitted to circumvent the
Statutory Protections Congress put in place to Protect Families’ Fourth
Amendment Rights during Child Abuse Investigations. DCFS Defendants’ decision
to bypass the parents and interrogate and physically examine A.T. without
notifying parents or obtaining their consent also subverted protections
Congress put in place to prevent just this kind of situation. The Keeping
Children and Families Safe Act of 2003, S. 342, Pub. L. No. 108-36, 117 Stat.
800, added two subsections to 42 U.S.C. §5106a aimed at protecting the Fourth
Amendment rights of parents and children during child abuse investigations. 42
U.S.C. §§5106a (xviii), (xix). Congress explained that it enacted those
provisions precisely to help protect people like Plaintiffs who were being
subjected to warrant-less searches and seizures during child abuse
investigations.
Rather than according Plaintiffs’ Fourth Amendment rights and
the respect required by Congress, DCFS Defendants sidestepped the issue by
conducting the investigation at A.T.’s school instead of the family home. DCFS
Defendants should not be permitted to evade their obligations under the Fourth
Amendment by simply changing the venue for their investigations. Plaintiffs’
Fourth Amendment rights are not limited to the confines of their residence, and
DCFS Defendants should not be permitted to flout the will of US Supreme Court
and Congress by doing at a child’s school what they cannot do in the home.
Fourth Amendment rights should not be subjected to such gamesmanship.
4. VIOLATED FIRST AMENDMENT RIGHTS OF FREE
EXERCISE CLAUSE OF RELIGIOUS OBJECTION TO THE INTERVIEW AND PHYSICAL
EXAMINATION
These in-school interviews and physical examinations violate
the rights of the parents to direct the education of their children and
substantially burdens their ability to direct the upbringing of their child.
5. CAUSED SUBSTANTIAL INVASION OF PRIVACY OF
THE CHILDREN
Children have a legitimate reasonable expectation of privacy
at the school so that the seizure and searches of the children’s bodies to
investigate child abuse and interrogation without parental consent are
presumptively unreasonable and that no exception to the warrant requirement
should be applicable.
Supreme Court of United States has recognized that even a
limited search of the person is a substantial invasion of privacy. Terry v.
Ohio, 392 U. S. 1, 392 U. S. 24-25 (1967)
6. VIOLATED FOURTEENTH AMENDMENT RIGHTS TO
SUBSTANTIVE DUE PROCESS AND PROCEDURAL DUE PROCESS
U.S. Supreme Court has recognized that Students in a public
school have property and liberty interests that qualify for protection under
the Substantive Due Process and Procedural Due Process Clause of the Fourteenth
Amendment. Pp. 419 U. S. 572-576 Goss v. Lopez, 419 U.S. 565 (1975)
CONCLUSION
In light of the above facts, Plaintiffs
respectfully request this Court to Court to declare DCFS practice of seizing,
searching and examining children’s bodies, interviewing and interrogating school
children at public schools without consent of parents and absent exigent
circumstances or court order as unconstitutional.
Dated: July 23, 2017 Respectfully
submitted,
/s/ Sanjay Tyagi
Petitioner, Pro Se
/s/ Alka Jagatia
Petitioner, Pro Se
P.O. Box 597124
Chicago, IL 60659
Phone: (312) 278-3425
Email – sanjaytyagi6@gmail.com
CERTIFICATE OF SERVICE
I, hereby
certify that I electronically transmitted this document to the Clerk’s Office
using the CM/ECF System for filing and transmittal of a Notice of Electronic
Filing on this 23rd day of July 2017, which automatically sends notice and a
copy of filing to all counsel of record.
Respectfully submitted,
/s/ Sanjay Tyagi
Petitioner, Pro Se
/s/ Alka Jagatia
Petitioner, Pro Se
P.O. Box 597124
Chicago, IL 60659
Phone: (312) 278-3425
Email – sanjaytyagi6@gmail.com
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