Appellate Law

Ninth makes absolute immunity issue as clear as day

By S. COTUS

DotD points to a brief opinion by an en banc Ninth Circuit reversing itself on the issue of whether Social Workers (that work for the departments charged with taking kids away from parents) are entitled to absolute immunity for statements in a child dependency petition.  The result is that they get qualified immunity.  But, in doing so, the Ninth lays out the law on absolute immunity for prosecutors (and now social workers) very clearly, so that there can be no mistake:

• It follows that social workers have absolute immunity when they make ?discretionary, quasi-prosecutorial decisions to institute court dependency proceedings to take custody away from parents.?

• But they are not entitled to absolute immunity from claims that they fabricated evidence during an investigation or made false statements in a dependency petition affidavit that they signed under penalty of perjury, because such actions aren?t similar to discretionary decisions about whether to prosecute.

• A prosecutor doesn?t have absolute immunity if he fabricates evidence during a preliminary investigation, before he could properly claim to be acting as an advocate or makes false statements in a sworn affidavit in support of an application for an arrest warrant...

• Furthermore, as prosecutors and others investigating criminal matters have no absolute immunity for their investigatory conduct, a fortiori, social workers conducting investigations have no such immunity.

I don?t think it gets any clearer than this.

Full post as published by Appellate Law and Practice on January 24, 2008 (boomark / email).