In 32 States, Social Workers Absolutely Immune for Judicial Misconduct
Note: This article has been updated to clarify that, at least, the 9th Circuit does not recognize absolute immunity for claims of perjury.
Federal law provides a way for families to sue government employees who violate their rights under the U.S. Constitution.[1]
However, in federal courts within the Third, Fourth, Sixth, Seventh, Eight, and Ninth circuits, government social workers are absolutely immune from being sued for violating those constitutional rights in the context of judicial proceedings.[2]
As one commentator put it, “They cannot be held liable for conduct that is intimately associated with the judicial phase of the child protection process, no matter how egregious the constitutional violation” (emphasis added).[3]
To put it in perspective, those six federal circuits cover the following 31 states (listed alphabetically):
Alaska, Arizona, Arkansas, California, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Virginia, Washington, West Virginia, Wisconsin.[4]
Federal district courts in Connecticut have also ruled that government social workers in that state are absolutely immune from lawsuits for such actions.[5]
Therefore, there are at least 32 states where government social workers are absolutely immune from suit for violating your constitutional rights for conduct closely connected with the judicial phase of a case, “no matter how egregious” their actions are.[6] Whether social workers in these states and others are liable to suit for violating state constitutions or statutes varies from state-to-state.
If you as a private individual hurt someone, you can be sued and held accountable if you did something wrong. The same should be true for government social workers.
- 42 U.S.C. sections 1983, 1985, 1986 ↩
- In these federal circuits, social workers are absolutely immune from suit under federal law for actions in preparing for, initiating, and prosecuting dependency proceedings. See Beltran v. Santa Clara Cnty., 514 F.3d 906, 908–09 (9th Cir. 2008) (en banc) (discussing the absolute immunity of social workers when making make discretionary, quasi-prosecutorial decisions, but holding that social workers are not entitled to absolute immunity from claims that they fabricated evidence during an investigation or made false statements in a petition affidavit signed under penalty of perjury); Abdouch v. Burger, 426 F.3d 982, 989 (8th Cir. 2005); Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416, 422–23 (6th Cir. 2001); Ernst v. Child & Youth Servs., 108 F.3d 486, 495 (3d Cir. 1997), cert. denied. 522 U.S. 850 (1997); Millspaugh v. Cnty. Dep’t of Pub. Welfare, 937 F.2d 1172, 1176 (7th Cir. 1991); Vosburg v. Dep’t of Soc. Servs., 884 F.2d 133, 135 (4th Cir. 1989). See also Spielman v. Hildebrand, 873 F.2d 1377, 1382–1383 (10th Cir. 1989) (10th Circuit positively discussing, without deciding, absolute immunity for social workers in the judicial context). See also Baca v. City of New York, 2003 U.S. Dist. LEXIS 11810, (S.D.N.Y. June 30, 2003) (2nd Circuit district court positively discussing, without deciding, absolute immunity for social workers in the judicial context). But see V.S. v. Muhammad, 581 F. Supp. 2d 365, 401 (E.D.N.Y. 2008) reversed on other grounds, V.S. v. Muhammad, 595 F.3d 426, 431, 2010 U.S. App. LEXIS 3017, 10–11 (2d Cir. 2010) (2nd Circuit district court refusing to extend absolute immunity to social workers in the judicial context). The U.S. Supreme Court has not directly decided whether social workers have absolute immunity in any context, but Justice Thomas has expressed skepticism regarding it. See Hoffman v. Harris, 511 U.S. 1060, 1062–63 (1994) (Thomas, J., dissenting from denial of certiorari). Social workers have qualified immunity in all other contexts. ↩
- Rebecca Aviel, Restoring Equipoise to Child Welfare, 62 Hastings L.J. 401, 408 n.27 (2010) (arguing that the United States Supreme Court should extend social worker immunity in the judicial context to all fifty states). ↩
- Circuit Map ↩
- Brenna v. Wood, 2006 U.S. Dist. LEXIS 99496, 12, 2006 WL 2331011 (D. Conn. Aug. 8, 2006); Torres v. Howell, 2006 U.S. Dist. LEXIS 38568, 38, 2006 WL 1525942 (D. Conn. May 26, 2006) ↩
- The 9th Circuit, at least, does draw the line at outright perjury. Beltran v. Santa Clara Cnty., 514 F.3d 906, 908–09 (9th Cir. 2008) (en banc). ↩