Saturday, December 3, 2022
Tarek Ismail (CUNY) has recently posted to SSRN his article Family Policing and the Fourth Amendment (California Law Review, Forthcoming). Here is the abstract:
Each year, child protective services (CPS) investigates over one million families. Every CPS investigation includes a thorough room-by-room search of the family home, designed to uncover evidence of maltreatment. Most seek evidence of poverty-related allegations of neglect; few ever substantiate the allegations. Despite what in many cities amounts to dozens of daily home invasions by government agents, the most remarkable feature of CPS home searches is how uncommon it has been for courts to clarify their legal parameters. More surprising than the relative dearth of case law and scholarship on the subject is the conclusion some courts have reached that these investigations are outside the familiar rules regulating law enforcement searches of homes.
This Article examines how CPS home searches have escaped meaningful Fourth Amendment scrutiny for the past fifty years, despite their explicitly suspicion-based, investigative design. The few courts examining CPS home searches have distinguished them from traditional police investigations. These courts have situated CPS home searches within the “administrative search doctrine”—a confusing web of Fourth Amendment exceptions which the Supreme Court created in the late 1960s for non-law enforcement searches. But when CPS agencies were conceived in the 1970s, they assumed policing powers initially held by traditional law enforcement—including the power to investigate maltreatment, and to remove children. The co-emergence of the administrative search doctrine and CPS as a new investigative agency with old policing powers resulted in half a century of unnecessary confusion.
The Article seeks to resolve that confusion. It provides a brief description of the statutorily-required CPS home search, its legal framework, and a critical analysis of the consequences of CPS searches on the families who experience them. The Article then situates the emergence of the CPS home search within the contemporary Fourth Amendment doctrinal edifice. It analyzes how a government agency conducting millions of suspicion-based home searches could slip through the cracks, and demonstrates how none of the administrative search exceptions apply. Finally, the Article suggests a path forward, through universal application of traditional Fourth Amendment principles. In so doing, the Article highlights CPS’ unique coercive power, related to—but wholly distinct from—the criminal police. It sets the stage for engagement based on support, not coercion.