In Kovacic, the majority held that social workers do not have immunity when removing children from a home because they are performing a police function rather than a judicial or prosecutorial one. The court held that these social workers, who removed children without a search warrant, might be held liable without a valid exception to the warrant rule. Interestingly, Judge Sutton dissented, essentially arguing that the welfare of children in this instance outweighs the right to privacy, especially when the law is not clear.
The notion of governmental immunity can be frustrating to all of us who do not enjoy it, but its purpose can be more understandable if you stand in the government’s shoes, as Judge Sutton does in his dissent:
Say you are a social worker. You are monitoring an unhappy family unhappy in its own way. After the parents divorce, they begin behaving badly when it comes to custody over their children. The mother, perhaps unfairly, perhaps not, is the immediate focus of concern. Over several years, she has had a series of encounters with social workers and police officers, each raising concerns about her stability and her capacity to care safely for her children. On March 26, 2002, you and five other social workers and officers along with several members of the Kovacic family meet to discuss the situation, and, with your operational silos removed, discuss the risk that the mother might imminently harm the two children, ages 11 and 8. The mother is invited but at the last minute declines to attend. You and the government officials together perceive risks you had not perceived individually. You act. Consistent with two state statutes and a standing order of the juvenile court concerning child endangerment, you remove the two children from the custody of their mother. Within three days, and again consistent with state law, a state court judge holds a hearing. She finds that the requisite endangerment and emergency existed, requiring the children to remain in state custody. State law provides a right of appeal, but the mother does not exercise it and never challenges the ruling. The children remain in the custody of the State (and a family member) for ten months.
Eleven years later, a federal court of appeals considers whether the two children may recover money damages from you and the other social workers under § 1983 for seizing them in violation of the Fourth and Fourteenth Amendments. At that point, the court is told about the seen risks of a seizure (removal of children from their mother) and cannot be told about the unseen risks of a non-seizure (irreversible harm to the children) because you eliminated that danger. Let the reader be the judge. I for one would grant qualified immunity to the social workers. . . .
If ever there were a reason for granting qualified immunity, it would be this: The social workers faced an uncertain legal and factual landscape and decided to act; a state court judge found three days later that they acted properly; and the affected family members did not challenge the state court decision, thus permitting the children to live outside their mother’s care for the next ten months.