TOOL OF THE DAY: Remedy for Removing Judicial Immunity…

CATEGORY: Family Law Immunity

It is pretty clear that when you place a person in a position of absolute power (a judge, a guardian ad litem, a social worker, a therapist, etc.), do not provide constitutionally compliant boundaries in your family code, and you provide them immunity then you will have grievances of an epic nature.

The following Bivens case tackles the question of whether there should be remedy for these grievances. As well as raises the question of where “Fourth Amendment interests rank on a scale of social values compared with, for example, the interests of stockholders defrauded by misleading proxies.” The example in this one might be a police officer but if you applied the same principles to the family courts you would find that these might work just as well.

“The problems of both error and deliberate misconduct by law enforcement officials call for a workable remedy. Private damage actions against individual police officers concededly have not adequately met this requirement, and it would be fallacious to assume today’s work of the Court in creating a remedy will really accomplish its stated objective. There is some validity to the claims that juries will not return verdicts against individual officers except in those unusual cases where the violation has been flagrant or where the error has been complete, as in the arrest of the wrong person or the search of the wrong house. There is surely serious doubt, for example, that a drug peddler caught packaging his wares will be able to arouse much sympathy in a jury on the ground that the police officer did not announce his identity and 422*422 purpose fully or because he failed to utter a “few more words.” See Miller v.United States, supra. Jurors may well refuse to penalize a police officer at the behest of a person they believe to be a “criminal” and probably will not punish an officer for honest errors of judgment. In any event an actual recovery depends on finding nonexempt assets of the police officer from which a judgment can be satisfied.

I conclude, therefore, that an entirely different remedy is necessary but it is one that in my view is as much beyond judicial power as the step the Court takes today. Congress should develop an administrative or quasijudicial remedy against the government itself to afford compensation and restitution for persons whose Fourth Amendment rights have been violated. The venerable doctrine of respondeat superior in our tort law provides an entirely appropriate conceptual basis for this remedy. If, for example, a security guard privately employed by a department store commits an assault or other tort on a customer such as an improper search, the victim has a simple and obvious remedy—an action for money damages against the guard’s employer, the department store. W. Prosser, The Law of Torts § 68, pp. 470-480 (3d ed. 1964).[5] Such a statutory scheme would have the added advantage of providing some remedy to the completely innocent persons who are sometimes the victims of illegal police conduct—something that the suppression doctrine, of course, can never accomplish.

A simple structure would suffice.[6] For example, Congress could enact a statute along the following lines:

(a) a waiver of sovereign immunity as to the illegal 423*423 acts of law enforcement officials committed in the performance of assigned duties;

(b) the creation of a cause of action for damages sustained by any person aggrieved by conduct of governmental agents in violation of the Fourth Amendment or statutes regulating official conduct;

(c) the creation of a tribunal, quasi-judicial in nature or perhaps patterned after the United States Court of Claims, to adjudicate all claims under the statute;

(d) a provision that this statutory remedy is in lieu of the exclusion of evidence secured for use in criminal cases in violation of the Fourth Amendment; and

(e) a provision directing that no evidence, otherwise admissible, shall be excluded from any criminal proceeding because of violation of the Fourth Amendment.” ~Bivens v. Six Unknown Fed. Narcotics Agents, 403 US 388 – Supreme Court 1971

If your state representatives continue to insist that they do not agree with putting proper due process protections into your family code, perhaps you should show them this Bivens case, to show them a suggested remedy that they could then to protect you when the family courts continue to abuse their power. Ask them to adopt provisions like the one above to apply to the judges and all experts that the judge appoints or orders to violate a parent’s fourth amendment rights in the form of child custody studies, social studies, psychiatric evaluations, and appointment of guardian ad litems (who take over the decisions made for the child), and anyone else who deprives the parent of their authority without proper due process. See the follow excerpt from