Perhaps you remember the case, from California, in which a caseworker
claimed what amounted to a constitutional
right to lie
. They argued that the
judicial doctrine of qualified immunity meant they couldn’t be sued even if
they lied to a court in order to get the court to approve removing a child from
In what was aptly
described as an “epic dis” the Ninth Circuit Court of Appeals made clear
they did not buy this. In general, the
Ninth Circuit has taken a
careful, nuanced look at the issue of qualified immunity – which means that
some government workers are immune from any lawsuit concerning their official
actions unless those actions violate a “clearly established” constitutional
But over in the Eighth Circuit, which covers Missouri, Arkansas,
Iowa, Minnesota, Nebraska and the Dakotas, it may be a different story. No, they didn’t say caseworkers have a right
to lie. But they may well have what
amounts to a right to retaliate against families who dare to fight back.
A family in Missouri alleges that a circuit
manager for the Missouri family police agency, called the Children’s Division,
retaliated against them with a trumped-up neglect finding. She allegedly retaliated after the family threatened to sue
the county over the rape of their teenage son by a sheriff’s deputy. They sued
in the United States District Court for the Eastern District of Missouri. As
first noted on Eugene Volokh’s blog
, the Eighth Circuit Court of Appeals overturned
the lower court and ruled that, even if the allegations in the suit are true,
the circuit manager is immune from liability.
The facts of the case
In Scott County, in Southeast Missouri, on the Illinois
border, Brandon Cook, then a deputy sheriff, knew the teenage son of one of his
colleagues. He allegedly groomed the boy
through something called the Sherriff’s Explorer program and via the Grindr
Then he raped the boy.
He was convicted of felony statutory sodomy.
The boy’s parents notified the county they planned to sue
for damages. Ultimately there was a
settlement. But before the case could be
settled, the family would have to endure even more. The parents were accused of neglect.
It’s not clear who called in the report, but it’s clear who
investigated. Spring Cook,* circuit manager for the county office of the
Children’s Division. Cook arrived at the
family home with two highway patrol troopers and someone from the local
“Juvenile Office” – a
bizarre fifth wheel, unique to Missouri, that
sometimes runs its own parallel investigations in family policing cases – and
which has a reputation for being even harder on families than the Children’s
According to a
lawsuit filed by the family against Cook, because the Children’s Division
and county sheriffs work so closely together, when an allegation involves a
sheriff’s employee, it is customary for the investigation to be transferred to
another county. But Spring Cook allegedly
refused to recuse herself. She also
allegedly told the father she would “get” his peace officer’s license, making
it impossible for him to work in law enforcement.
Cook “substantiated” neglect. According to the
district court ruling:
On January 7, 2019, Cook made a preliminary finding under
a preponderance of evidence standard of parental child neglect. Cook’s finding was
based on the following three incidents:
(1) Brandon Cook’s sexual abuse of the son; …
Let me interrupt right here to emphasize that one: Cook found that the parents were neglectful because
someone else -- a law enforcement officer and colleague of the boy’s father -- raped
Now, back to the court ruling:
(2) the son’s Facebook messaging about sex and alleged
sexual abuse by another adult, a local Tae Kwan Do instructor (“Instructor”);
upon learning of the abuse, Plaintiff Father confronted the Instructor while
Plaintiffs’ daughter and her friend were nearby in a car, the Instructor
responded by assaulting Plaintiff Father; Plaintiff Father de-escalated the situation
by not responding with physical force and retreating; Plaintiff Father did not
report the assault; and (3) a benign, age-appropriate out-of-state date the
minor son went on with his mother’s permission.
Cook focused her findings of neglect on the fact that Plaintiffs
allowed the minor son—who was sixteen at the time—usage of the internet on his iPhone,
and permitted him to drive a vehicle across state lines to go on an
The Juvenile Office, which, as noted above, has a reputation
for being even harsher on families than the Children’s Division,
disagreed. So did the Highway Patrol.
But that didn’t dissuade Cook.
Her decision to substantiate the neglect
allegation meant that unless they successfully appealed, the parents would be
listed on the state’s central register of alleged child abusers forever. That
would bar the father from working in law enforcement and bar the mother from
returning to her career as a teacher.
The first level of appeal is to the circuit manager in the
circuit where the allegation was substantiated.
In this case the circuit manager was Cook herself, who promptly upheld
her own decision.
The second level of appeal is to an administrative tribunal
where the deck still is stacked against families, but at least they’re not
hearing appeals of their own conduct.
That tribunal overturned the neglect finding and the family was cleared.
But Cook allegedly wasn’t done. Again, from the district court decision:
Plaintiffs allege they were subject to an investigation
by the FBI concerning “substantially similar charges” regarding their minor son
in March 2020. Plaintiffs believe that two FBI agents visited Spring Cook’s
office. One of the FBI agents then questioned Plaintiffs’ daughter at length
about the minor son’s sexuality and sexual conduct. Plaintiffs’ daughter was told that she was
the only member of the family who was known by “the authorities” to be
cooperative. The FBI never followed-up with any other family members, and
eventually closed the investigation. Plaintiffs allege that Spring Cook
contacted the FBI in frustration that the [administrative tribunal] did not
substantiate her earlier allegation and/or in retaliation against Plaintiffs.
So, just to review:
● The Juvenile Office found no neglect.
● The Highway Patrol fund no neglect.
● The administrative hearing found no neglect.
● The FBI found no neglect.
So the parents sued.
They cited multiple violations of their rights. The district court, unfortunately, dismissed
many of their claims. But it upheld
their right to sue on grounds that, if Spring Cook retaliated against the
family for threatening to sue, she violated their First Amendment rights.
Cook argued that even if the allegations against her were
true, she was protected by the same immunity doctrine that the California
workers attempted to invoke.
The District Court saw the absurdity:
The question, therefore, is whether a reasonable official
might have believed that it was permissible to make findings of child neglect in
retaliation for parents making claims against county officials related to the sexual abuse of their
child. Under clear Eighth Circuit precedent, the answer is no.
But the Eighth Circuit
Court of Appeals disagreed. They
concluded that families have no “clearly established” right to be free from
retaliation by the family police if they exercise their First Amendment
rights. So, they ruled, Cook’s actions
in investigating the family and substantiating the neglect allegation are
protected by qualified immunity.
As for her decision to rubber-stamp her own conclusions when
the family appealed – for that, they said, she’s covered by another judicial
doctrine invoked less often: absolute immunity!
In the absence of relief in the federal courts, states should
provide a means of redress (unless of course they really want the family police
to be free to retaliate against families.
The Missouri Legislature (and its counterparts in the rest of the Eighth
Circuit – Arkansas, Iowa, Minnesota, Nebraska and the Dakotas) should pass laws
stating clearly that initiating and/or substantiating a child abuse allegation
as an act of retaliation is a violation of a family’s rights and any such
family has grounds to sue in state courts.
There also are some key questions for Missouri officials:
● Has any agency of Missouri state government looked into
the allegations made by the parents in this case? If so, what were the findings?
● Are there any plans to change policies concerning actual
or perceived conflict of interest – such as requiring that complaints against
people with whom a given Children’s Division office works closely be handled by
a different office?
*-Although the lawsuit notes at one point that “Defendant
Cook and the minor son’s abuser share a last name” there is no allegation that they are