Podcast with Tarek Ismail: Family Policing and the Fourth Amendment

This podcast episode accompanies the article from Professor Tarek Ismail: Family Policing and the Fourth Amendment.

Transcript

SPEAKERS

Professor Tarek Ismail, Georgiana Soo

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Georgiana Soo  00:00

Each year Child Protective Services investigates over 1 million families. Every investigation includes a room by room search of the family home, as well as the threat of the state's coercive authority to remove children from their families. Today, we discuss how these investigations have evaded traditional Fourth Amendment scrutiny. My name is Georgiana Soo, and you're listening to the California Law Review podcast. Our goal is to provide an accessible and thought provoking overview of the scholarship we publish. In today's episode, we will be discussing "Family Policing and the Fourth Amendment," a piece by CUNY School of Law Associate Professor Tarek Ismail. This piece will be published in Issue Five of Volume 111, in October of 2023. Professor Ismail, thank you so much for taking the time to talk with me today about your article.

Professor Tarek Ismail  00:57

Thanks for having me. And for all the work that you and your colleagues put into this into this article. I really appreciate it.

Georgiana Soo  01:04

So just to begin with, can you summarize your main arguments in this piece? 

Professor Tarek Ismail  01:10

So the main argument here is quite simple, actually, it is that anytime a government agent goes into someone's home, they can only do so based on consent, or with a warrant substantiated by probable cause that there would be evidence of wrongdoing, if they went into that home. That should that should seem maybe obvious to listeners here. But the point of this article is to say that the term government agent includes more than just police officers as we would traditionally think think of that would include child protective services agents, as agents of the government who are doing investigations into allegations of particular families. And so that's the argument that I that I make here, that if CPS wants to get into a home, a parent has a right just like any person under police investigation, to ask for a warrant. And if they do, then CPS has to go to court and get a warrant that is substantiated by probable cause.

Georgiana Soo  02:17

And I'm curious what motivated you to write this piece?

Professor Tarek Ismail  02:21

Well, you know, I come to this piece as a, as a practitioner, for for some years I represented before starting my work in the clinic here at CUNY. I represented parents and other caregivers in neglect and abuse proceedings in Brooklyn, as a public defender, you would notice that so many of the cases came in where the allegations that initially brought the case and had nothing to do with what would eventually come come to court. So many of these cases involve evidence gathering that was happening under the guise of benevolence. So CPS would come in and say, Hey, we're here to help. And then they would do all sorts of things that the person who isn't exposed to this sort of investigation would find really sort of objectionable. And I'm sure we'll talk about them later in the piece. As I started to look more and more into this, I discovered that, you know, the cases that made their way to court, were just the tip of the iceberg. So we're talking about of all the investigations that happen in any given year, only about 5% of those ended up in court, the bulk of them, 95% of the cases never see a judge. They don't have any court supervision. No one is looking at CPS as they're doing their investigations and and we're still is that about of those 95%. About 80% of cases never substantiate the allegations in the first place. So the family has undergone a really invasive experience with a government agent. And the government agent actually just comes and says, Oh, well, I guess we didn't find anything and we'll leave you alone. So today, for example, while one in four white American children will go through a CPS investigation before they turn the age of 18. One in two black children will go through a CPS investigation before they turn 18 which means one in two black children in the US has a government agent knocking on their door and searching through their home in the ways that we'll talk about without any oversight by by a judge. And so that to me, was caused to at least make a case for the fact that basic Fourth Amendment protections apply here and with the hopes that, you know, practitioners might be able to do something with that and of course, that affected families might be able to do something with that, you know, with adequate sort of planning and support.

Georgiana Soo  04:58

So early on in the article you explain the process that leads up to a typical CPS home search today, and the legal and institutional backgrounds that informs the searches themselves. Can you lay out the key features of these searches for listeners, including their similarity to investigations conducted by police.

Professor Tarek Ismail  05:18

So most criminal cases that come into criminal court, start with an arrest. It's not like there's a long investigation that leads up to it. And then there's an arrest, you know, like the thing happens and someone just goes in and gets arrested the vast majority of the time, that's different in in the case of CPS. So, every or the vast majority of CPS cases come in through some report into a hotline. Those reports happen either from a reporter who's mandated by state and federal law to make those reports and mandated reporters include everything from school teachers, to therapists, when they have a concern of maltreatment. They're required by law to make a report to this hotline, on penalty of crime and on penalty of your licensure. And of course, many people call in reports because they don't know what to do and they don't have the resources available to help out a kid and so the problem goes to CPS. And CPS goes out to do an investigation once they determine that the allegations called in meet the state's definition of neglect or abuse within 24 to 48 hours. The local social services agency is dispatched to do an investigation. Most states either require or imply that as part of that investigation, two main things have to happen. The local services social services agency has to see the child and to do a whole a search of the home environment. Some states don't explicitly require that but they sort of imply that that's a requirement and federal guidelines suggest doing a search of the home environment. What that means in practice is to answer the question that you asked or Jana is these agents or caseworkers, show up at the door and say to a parent, hey, you know, I'm here from CPS, can I come in or I'm here from CPS I need to come in. And because these investigations happen so often in the same neighborhoods by virtue of the racial disparity in the system, folks know that the CPS agent has the power to take children away. So families very often let them in CPS will speak with every member of the family most times who's there. Often they will separate a child and speak with the child separately, ask the child really invasive questions, oftentimes that have nothing to do with the allegation. And so regardless of whether the allegation is educational, neglect, or spanking, CPS comes in and sort of the gear continues to turn right. And so it asks questions about how would you rate your relationship with mommy or daddy from one to 10, sometimes they will ask children to lift up their shirts or pull down their pants as a part of the regular investigation. Again, regardless of if the allegation is educational neglect, or that the kid might have been home alone, or that, you know, they didn't have adequate housing, they often sort of go through kitchen cabinets to theoretically to ensure that there's enough food, they will go through medicine cabinets to see what medicine is being prescribed. It's the kind of investigation that kind of very thorough investigation that a police officer would dream of being able to do, if not restricted by a warrant, which would otherwise sort of say, Okay, you're only allowed to look here for this. But CPS thinks about these as home visits, right? They don't often think about them as searches and so they don't think about them as similarly restricted.

Georgiana Soo  09:01

So in essence, CPS is able to hide behind the idea that this is a home search, it's nothing crazy. And that gives them grounds to enter as opposed to a police officer with a scary warrant.

Professor Tarek Ismail  09:14

Yeah, I can give you I can give you an example. I mean, there's a story from public that I cite in that piece from just last year. That cites a number that's something like 56,000 home searches were done by by CPS and I think the year was 2020 of those 56,000 searches that were done. CPS obtained warrants in 95. Right. So 99.75% of the cases they're not getting warrants when you ask them if the Fourth Amendment applies here. They'll say something like, yeah, the Fourth Amendment applies, but this isn't a search. This is a home visit. Right? And we'll get into the the legal implications of what there's saying in a second, I'm sure. But what they're implying is that they shouldn't have to do the same exhaustive showing of, of proof in order to get a warrant if someone refuses, right, but of course, this is a search and so that that language is, is manipulative.

Georgiana Soo  10:19

So with these details in mind, a core argument of your article covers the jurisprudence of CPS home searches, and specifically you discuss how this jurisprudence has failed to meaningfully consider the extent to which CPS agents function within the historical scope of the Fourth Amendment's search doctrine. And a key part of that argument is how the family policing system came out of the American welfare state, particularly through the so called Flemming rule. So can you briefly summarize this history and its impact on the way we view home searches today?

Professor Tarek Ismail  10:55

Sure. So in the 1950s, and 60s, as we began to roll out social welfare in this country, the ugliness of racism was sort of written into the law. And so at the time, they had sort of what they called suitability rules that each state could use to determine whether or not a family was suitable to receive welfare benefits. Right. And so ultimately, what that would mean is an a welfare worker would go in, and they weren't theoretically evaluating whether or not the person was parenting adequately, they weren't evaluating maltreatment, they were simply evaluating suitability of the of the home. And so certain things like whether or not a mother was solo parenting children, who was supporting the kids, all of these questions which were coded, of course for racist presumptions about how families are, are meant to be run resulted in findings of unsuitability. So in the years leading up to the Fleming rule in the night, in the early 1960s 1000s, and 1000s of black families, mostly in the south, were just knocked off of the welfare rolls simply because agents would go and determine that they weren't suitable. And so ultimately, the flooding rule was sort of the birth of this idea that like, no, no, no, we can't do that. There's got to be some benevolent way to deal with this problem, right. And so instead of saying, Look, just provide the welfare that these families need, Fleming suggests something that, again, is considered to be benevolent, but it ends up being a lot more nefarious, right, it asks that welfare worker to wear a second hat, they're no longer just going in to evaluate the suitability of the home. They're also going in and saying, you can't just cut someone off because their home isn't suitable, you also have to evaluate. And here I'm summarizing some of the arguments in the piece. But you also have to evaluate whether or not the family needs support and whether or not the children are getting adequate support. And this now turns that welfare worker into a police of sorts, right? So we're no longer going and doing an up down check for is there a parent with a kid in the home in that case, they would be suitable in an ideal world, right? Instead, now we're doing a parental fitness test. The theory behind it is, well, we need to offer parents support or remove the child from that unsuitable situation. But now you're asking the welfare worker to do the sort of work that police were previously doing, including referring the case to a court or to the police if they thought that a kid needed to be removed from their parents care. So all of a sudden, you have this role being played, which is now you're evaluating a family for whether or not maltreatment is going on now you're evaluating for something more than just does this family meet the requirements, financial or otherwise write for for this sort of support that they might otherwise that they might otherwise be qualified for?

Georgiana Soo  14:03

And so after the Flemming rule, you note that the Supreme Court's treatment of the CPS regime has been characterized by slips and slips, as you explain, are analyses commonly undertaken by the court that overlook CPS 's role. They do this by deciding cases based on other more familiar government actors that the court can more easily accept, digest and reckon with. So can you elaborate on these court slips and explain how they've resulted in courts overlooking CPS, even as CPS's influence and reach has grown over time through federal legislation?

Professor Tarek Ismail  14:41

Yeah, sure. So I mean, I think the way I've I've tended to think about this is I think it's quite difficult for the court to contend with police that are enforcing law other than the criminal law, right. And so here we have a new set of Officer Was that crop up with the Child Abuse Prevention and Treatment Act CAPTA in 1974. So with CAPTA, you are moving away from that dual hat that the welfare worker is is wearing. And you've now got just an agent who's there to look at whether or not child maltreatment is happening yes or no. And so, it's useful to think about, like, how does this happen? What, what is what's going on, as the courts thinking about this right? Before Catholic comes into place, you have this this case Weiman V. James, in the early 70s, which is evaluating this very question of whether or not a parent has a Fourth Amendment Right? To say no to the welfare worker we were discussing before, who was coming into the home to evaluate whether or not the person get welfare benefits, right. And the court in that case, says, Look, this, workers coming into your home, as a condition of a contract that you made with the government, you made a contract with the government that I'm going to get these welfare benefits. And in exchange, I'm gonna let this worker come in and evaluate my head. And the only harm that's done to the person who's living in that home, Miss James, in this case, is that she loses out on the contract like she did by not letting the person into her home to do the evaluation, she's breaching the contract. And therefore, that's that, like, that's the end of it, that way of thinking the courts saying this agent is there to protect the government FISC. Right, we're trying to make sure that when the government is doling out money, that it's doling it out properly. And if she doesn't want to let them in, then that's her loss, she doesn't get the financial support that she otherwise might get. Of course, that's retrograde. Right, that logic is so backwards. But that's the logic that the government sorry that the court relies on. And even in that case, in a dissent by Thurgood Marshall, he points to the fact that actually, the danger here is that the that government agent might come in and find evidence of a crime and feed that evidence to the government or that, you know, they might uncover welfare fraud, which itself is a crime and feed that to the government. So by letting that government agent and she's putting herself at risk of criminal exposure, and so, Marsha was relying on the risk of criminal exposure as a way of saying, no, no, no, we the Fourth Amendment has to apply here, right because of someone's Liberty interest as it's attached to the Fourth Amendment interest against violation of privacy. But what he misses there, and what he doesn't pay close attention to is the fact that now we're post the Fleming, right. And so we're in the world where this person who's coming into the house actually has the power to remove that person's child. So when they're coming in to do that evaluation, they're not just assessing whether or not the person is financially eligible, but they're also assessing whether or not this child needs to be removed from the hand. And the court instead is arguing about whether or not there's a criminal exposure here, the majority says, No, there's not more or less. And if there is, it's sort of a tangential thing that if it happens, it happens, you know, tough, you know, kick rocks. That's the condition of the contract you sign. And the dissent, who's arguing for Fourth Amendment protections, is saying, yes, there is criminal exposure here, but they're slipping because they're missing the exposure to your children being removed or further surveillance. Bye, bye. This was before CPS was nationally mandated, but CPS started to exist even in this in this time.

Georgiana Soo  19:00

Got it. And after your article sets up the doctrinal background, you go on to argue that CPS home searches are in fact, traditional policing investigations. And as traditional policing investigations, they should be subject to traditional Fourth Amendment principles, rather than the administrative search doctrine, which has mostly characterized courts' treatments of CPS home searches today. So can you explain your argument on that point?

Professor Tarek Ismail  19:32

Yeah. So I think that the administrative search doctrine ends up being pretty confusing to courts and to a lot of people who read about it and sort of pay attention to it. And for purposes of the argument here when we're talking about home searches, right, and I focused the argument on home searches here because things are much more more clear as it pertains to the breakdown of administrative searches, administered searches sort of break down into two groups. One group of administrative searches are sort of dragnet searches right here. What I mean by dragnet is when a government agency searches every particular entity in a particular space for the protection of the space at large. And so here I'm thinking about when, for example, in, in New York City, the buildings department comes in, and checks to make sure that window guards are appropriately in the windows of the building, or when a building inspector goes through a particular part of the town, and checks the wiring in every single basement to make sure that the wiring is appropriate. In those sorts of cases, the court has said, Look, if someone refuses to let you in, the search is so minimally invasive. And importantly, it's not based on an individualized suspicion, it's general, that if someone refuses to let you in, the thing that someone needs to do is they go to court, the government agent will go to court and say, hey, it's that time of year, again, where we go around and do the building searches. And so and so at such and such address is not letting me in, can I get a warrant. And, you know, let's assume that a statute says that this has to happen every three years or whatever, based on that three year, three years passing alone, a judge might issue a warrant to go in this is called a camera warrant. And so on that basis, you know, just on the the refusal alone, if enough time has passed in this example, they could get a warrant to go in and search the basement. So that's, that's a search sort of that a dragnet search. That's one class of searches. The other classes of search is a search that is incident to diminished privacy, right. And in the home context, when we're talking about diminished privacy, the only examples that exist really for diminished privacy in the home context, are for individuals who have been incarcerated and are out on some sort of agreement with the state right on parole or on probation, where the court has perceived those in ways that I personally think are probably wrong, morally, and probably even constitutionally. But they perceive the person's home when they're out on probation or parole as simply an extension of the jail, that or prison that they were in. And so you, you have diminished privacy. When you're in your home on that condition. It's almost like why men, right, because you've contracted with the state that your home on this condition, and therefore, you have a diminished expectation of privacy. And so if the police come and knock on your door, because they suspect, because they suspect something, they don't need probable cause to get in, they may need reasonable suspicion or even less on more recent, more recent cases. So the argument that I make in the next part of the article is to say, well, we're not talking about a dragnet search here. And we're not talking about a diminished privacy search on a dragnet. On the dragnet side of things. This is not the search of every particular home in the neighborhood. It's the search of one individualized home because a call has come in. And it's an allegation against a particular individual that they've done something wrong, right. And it's also not a search pursuant to diminished expectation of privacy. Because just like anybody who is subject to a criminal investigation, these are allegations, they haven't been substantiated often they're coming from people who either are required by law to make to make the allegations if they have even a modicum of suspicion, or by anonymous people where you can't really substantiate who's making the allegations or On what basis. So there's, there's certainly no diminished expectation of privacy here. And to the extent that it's not this, and it's not that then all that's left is traditional Fourth Amendment principles, and those are the ones that should apply.

Georgiana Soo  24:20

And so now you've established the traditional Fourth Amendment argument. And assuming that CPS home searches are in fact subject to this format, can you sketch out to our listeners how exactly that would impact the conditions under which a CPS agent could obtain entry into someone's home?

Professor Tarek Ismail  24:43

So I think it'd be helpful to illustrate this point with with an example. So let's let's imagine that a child is playing on the sidewalk or in the evening In the street, and then in a neighborhood, and someone passes by, and they're concerned, they call CPS. And they say, Hey, this kid is being left out here and I see him they're chewing on a balloon. They're doing this and that. And I need you to come and investigate, I think that this child is being neglected. Right. In the case of a police investigation, let's say that this person was being investigated for endangering the welfare of a child, we would need evidence that searching the home itself would help us substantiate that that particular instance, of the child being left out in the sidewalk or on the street or whatever was endangering the welfare of a child right then that, not only that, but that if they went into the home, they would find evidence that this thing happened that was endangering the welfare of a child, right? Normally, what would happen in that instance, though, with CPS is that they would just show up at the parents house, the call comes in, they knock on the door, and the parent says, I suppose you can come in. But let's imagine that the parent instead says, No, I really don't feel comfortable with you coming in. And honestly, I was right behind my daughter, I was coming right back out, CPS would then have to go to court and say to a judge, Your Honor, you know, we have these allegations that these children were being endangered. And we need to get into the house. And the judge then should say to them under Illinois V. Gates, which is the Supreme Court precedent that sets the standard, a very low standard, by the way for what needs to be in a warrant. A judge would say to them, Well, what evidence Have you got that searching someone's entire home, is going to uncover evidence that that particular incident was endangering the welfare of a child. And if they were to come back to them and say, well, this anonymous dude called a hotline, and said, he saw a kid chewing on a balloon on the sidewalk, that's not going to cut mustard under Illinois V gates, that's not enough, then what would have to happen is then CPS would ask, Hey, can you produce this child? Somewhere? And we can, we can make sure that there are right, you know, but beyond that, they don't have enough proof. And so the home search simply wouldn't happen as a result, they would have to do their investigation in some other way.

Georgiana Soo  27:39

So you mentioned Illinois v. Gates, and I want to quickly talk about that. In your article, you analyze whether the typical lead up to a CPS home search process would actually create the requisite probable cause for a warrant under Gates. Can you explain your assessment of that specific question?

Professor Tarek Ismail  28:00

Yeah. You know, I, I feel like we've sort of touched on it. Maybe I jumped the gun on that question a little bit. But, you know, I do think that the vast by virtue of the nature of how CPS investigations come in, right. I took some numbers down here, just so that I, I could share them with you all. In 20 24,000,004 point 3 million more than 4.3 million cases were reported to statewide center registers across the country, right. 4.3 million. And so theoretically, every single one of those that is deemed to articulate something that meets the definition of neglect, or abuse, is going to have to be investigated. So of those 4.3 million cases, some and a CPS worker is doing the job of doing that screening, right. And so they're thinking, Does this meet the definition of neglect? Or does it not meet the definition of neglect? That year, they decided 2 million of those calls, don't even meet the definition of neglect. Right. So they've screened those out. So what remain are 2.4 million reports that are screened in and that have to be investigated? Right. These reports come from, as we talked about before, mandated reporters. They sometimes come from anonymous callers. They sometimes come from confidential callers. And there's no baseline requirement for the amount of evidence that needs to be included in these reports, right. They the requirement is not an evidentiary requirement, the requirement is a statutory requirement, but that's just not enough to search someone's house, right? And so theoretically, what CPS would have I have to do on their own before going to knock on someone's door is to try and either gather more information and determine is this something that we are going to go barge into someone's house on, or decide like, this is not the kind of thing that we're going to spend all of our government resources on investigating. And they might be able to do that with some confidence, because like I said, almost 80% of the cases that they end up investigating are unsubstantiated in the first place, right. And so and so that's, that's I think what would end up happening very, very often is either they would spend the resources necessary to do the investigation to substantiate a warrant to get into a home, or they would decide this is a waste of our resources to keep looking into neglect cases, they might decide instead, that those resources are best poured into the community without strings attached by asking parents, hey, how best can we help your your families? What sorts of resources do you need to thrive, rather than spending all of that time and effort doing the sort of policing that we've been discussing?

Georgiana Soo  31:10

And you end the article by considering the implications of subjecting CPS home searches to traditional Fourth Amendment scrutiny. For the benefit of our listeners, can you lay out those key takeaways?

Professor Tarek Ismail  31:23

Yeah, I mean, I think that, you know, that, it's one thing to say that we would subject them to this, this scrutiny, right? Because the rights here are not self effectuating. They're not self enforcing. And so until parents and caregivers feel like they have the power and the support, to articulate these rights, and to push back in the way that it might require, I'm afraid that these rights are not going to sort of, you know, spawn on their own. So what it would mean to enforce them is for, you know, parents to to have the capacity to push back, how do they have the capacity to push back? Well, some states have already started to put into motion. I think Texas and Arizona, for example, both have statutes that require CPS to inform families of their rights. When CPS comes to the door, New York has one that is being considered now that has been proposed by parents and affected families, a family Miranda bill, they're calling it that folks should take a look at and, you know, support, if that's something that that folks are interested in supporting. But really, the implications here would be that it would once you know, families then have the capacity to push back in that sort of way. The implication would be that CPS would have some kind of tough choices to make. And I think that those tough choices aren't tough, because Because CPS is uncovering all sorts of wrongdoing in their daily practice, the choices are tough, because they've just been violating the law for so long, that it's become the norm and the practice that they violate the law. So to bring their action in line with the law, I think is going to require some growing pains. But I think it ultimately means deciding, as we talked about, previously, whether to gather more facts to substantiate a warrant or to let cases go and to let cases go would mean ultimately to do advocacy around really putting resources elsewhere that don't involve the, the stick alongside the carrot. And as a final note,

Georgiana Soo  34:09

What do you hope a listener or reader takes away from this episode more generally?

Professor Tarek Ismail  34:14

I hope that a reader or listener considers what they might, their their role in this sort of thing, first and foremost. So if you're a mandated reporter, for example, which many people are, and many of I imagine the listeners and readers here might be. Think about what it means for you to make that call. Think about the implications of picking up the phone and, and making the call and what trauma that might, you know, visit upon a family. The fear that so many of my clients, be they parents or children have articulated to me that lives with them well into their lives, even if they were never separated from their families, even if they never made it to court, because someone came into their home and undermine the attachment to their parent, undermine their parents ability to be the person who can protect them most, is traumatizing. It's the kind of stuff that you read about in sort of an attachment theory, right? When we're thinking about sort of trauma, and its long, long term impact on on a relation. So that's one thing that I would say is if you're a mandated reporter, think about what you can do before making that call, what sort of resources do you have at your disposal to provide to a family, if instead you're working for CPS, well be it as an attorney or as a line worker, think about the power that you're that you're bringing to the table, you know, CPS and the lawyers for CPS don't have much incentive to comply with the Fourth Amendment, because there's no suppression rule in child welfare cases. So for example, if the CPS officer violates the Fourth Amendment in obtaining evidence, they can still present that evidence in court. Right. And so there's not much built in incentive for them to comply. So instead, I would say, you know, if you care about the families that you're working with, and if you're intending to support them, one way to support them would be to inform them of their of their rights. Or if you don't want to go that far. Really think about whether or not you need to go into someone's house and rummage through their stuff. Is that something you need to do? And if you're if you're neither of those, you know, look into what local parents and affected families are doing. former foster youth, others who are organizing around these issues. And get involved if this is something that interests you, the family Miranda bill here in New York is a very small way for folks to get involved, call your legislators, let them know that this is something that that you think is important.

Georgiana Soo  37:21

Professor, thank you so much for joining us and discussing your article.

Professor Tarek Ismail  37:27

Thanks for taking the time.

Georgiana Soo  37:30

We hope you've enjoyed this episode of The California Law Review podcast. If you would like to read Professor Ismail's article, you can find it in Volume 111, Issue 5 of the California Law Review, at californialawreview.org. For updates on new episodes and articles, please follow us on Instagram @californialawreview. A complete list of our socials is available on our website. Lastly, you can find a list of the editors who worked on this volume of the podcast in the show notes. See you in the next episode.