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PerryPeabody
 Posted:
Mon Jul 07, 2008 9:31 am |
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The Raid May Have Been Counterproductive
| Quote: | The Children of the Texas Ranch
by Ronald J. Rychlak
insidecatholic.com
7/01/08
One of the questions on my Constitutional Law final examination this past semester focused on the Texas ranch from which authorities seized over 400 children. I played with the facts a bit to set up a few extra issues that we studied in the course, but even unedited, this case raises numerous interesting constitutional issues that touch on matters of great importance.
In case you have forgotten, an anonymous caller to a family shelter hotline said that members of the 1,700-acre "Yearning for Zion" ranch near El Dorado, Texas not only practiced old-line Mormon polygamy, but they also forced youngsters into early marriage and subjected them to sexual abuse. As a result, Texas authorities raided the ranch, took children aged between 6 months and 17 years from their parents, and placed them in state custody. The authorities reported that many teenage girls were or had been pregnant, and that seemed to confirm the suspicions used to justify the raid.
Then there came a story that was given fairly little attention in the press considering its potential significance to the case, but has been very important to the courts. The anonymous call reporting on abuse at the ranch seems to have been made on a cell phone owned by Colorado resident Rozita Swinton. The caller claimed to have been a 16-year old girl who was beaten and raped at the ranch. Swinton, however, is 33 and has a history of making false abuse reports. She has since been arrested and charged with making false claims in a different case.
That's a big problem. The U.S. Constitution protects Americans from unreasonable searches and seizures. Taking children away from their parents is a really significant seizure -- about as big as they get. So a high level of cause should have been established before the seizures took place. Unfortunately, it wasn't.
The authorities in this case took their evidence to a judge to obtain a warrant authorizing them to seize the children. Judges routinely evaluate evidence before a search or seizure takes place, and they only issue a warrant if there is "probable cause." That means that there must be enough evidence so that a reasonable person would conclude that a search would reveal evidence of a crime or that a seizure would similarly be justified by law.
As you might imagine, evidence that comes from an anonymous tip to a "hotline" is highly suspect. After all, when you don't know the speaker, it is hard to evaluate his or her honesty or basis of knowledge. Moreover, probable cause must be individualized. The search of an individual is not justified simply because there is probable cause to be suspicious of the neighborhood (or the ranch).
Although a judge did grant a warrant to the authorities to remove the children, the Texas Supreme Court has now ordered that the children be returned to their parents. What about the fact that some of the girls and young women were or had been pregnant? Well, first of all, Texas law permits 16 year olds to get married if they have parental consent. Prior to 2005, 14 year olds were permitted to marry. (Some say that the law was changed specifically because of this ranch.) Moreover, evidence like this would only provide justification for the authorities to act on behalf of specific individuals, not everyone at the ranch. Additionally, evidence that is found after the search cannot normally be used to justify a search warrant. The Constitution calls for judicial determination of justification (or probable cause) before the search takes place.
The outcome of this entire matter has yet to be determined. It may well be that children were being abused and that the effort to remove them from the compound was justified. Before governmental authorities take such drastic actions, however, they need to be very careful. A detailed investigation that took place prior to the search might have turned up probable cause justifying particularized action related to specifically identified individuals. Children who were truly at risk would have been taken from a dangerous situation. By acting too quickly, the authorities (including the judge who issued the warrant) not only subjected potentially innocent parents and children to a traumatic event; they also endangered any real victims -- who have now been returned to very dangerous situations.
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Ronald J. Rychlak is the associate dean and MDLA Professor of Law at the University of Mississippi School of Law. He is the author of Hitler, the War, and the Pope (2000) and Righteous Gentiles (2005).
http://tinyurl.com/6pbovy |
I just came across this article. I know nothing about this website or this author but he's right.
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Joined: 24 Mar 2006
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| SavannahStar
Posted:
Mon Jul 07, 2008 9:58 am |
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Damn straight he's right!
And at least a few posters said all that he is now saying right from the beginning!
Ooopsie, I swore I wouldn't post on this subject anymore.
Couldn't resist.
Great article.
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**SuperStar**
Joined: 24 Mar 2006
Posts: 21291
Location: Midnight in the Garden of Good and Evil
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| PerryPeabody
Posted:
Mon Jul 07, 2008 11:34 am |
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Well, I hope you'll change your mind about posting on this subject again. There's lots of different aspects of it--the law, the actual (not alleged) facts, why entry to the compound was done so heavy-handedly and in such a frenzy, why the 14 day hearing orders didn't match the facts, (and then, of course, the slippery slope of what is good for children and their upbringing and who has the right to dictate to parents what is good for their children).
Dealing with 400+ potential victims isn't easy but common sense suggests that young kids weren't in any immediate danger (except of being taken out of Texas) and common sense also suggests that a group that already feels vilified, misunderstood and persecuted will group together even more closely for what feels like self-protection.
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Joined: 24 Mar 2006
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| Tonk
Posted:
Mon Jul 07, 2008 6:30 pm |
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whoever wrote that should have spent a little more time with the books in law school because he's confusing civil law and criminal law. CPS didnt remove the kids pursuant to a search warrant. CPS got a court order based on an affidavit. They HAD to investigate pirsuant to their duties imposed by law. By law, CPS is entitled to enter a home and conduct interviews as part of their initial investigation. It was only after they interviewed 15 or so teenage girls that they got a court order authorizing the removal of teenage girls. As interviews continued, they got aother court order to remove more children, and further interviews led to yet another court order to remove the remainder of the children. None of the removals were based on a phone call to a tip line.
On the criminal side ...the phone call to a tip line was actually about 13 hours of recorded phone calls with information so detailed and accurate, including names and actual addresses and descriptive details that leaves no doubt that law enforcement was acting in good faith. The issue of the caller has not been settled. If it was Rozita Swinton, theres reason to think she was calling at the urging of an actual victim of the kind of abuse she described. That investigation continues. After the initial search warrant was issued, law enforcement went back and got a second, broader search warrant based on what they saw in plain view. Those warrants were then superceded by a federal search warrant and that disposes of any legitimate challenge to the state warrants. That has already been ruled on by the court.
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Joined: 25 Jul 2006
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Location: pray for rain
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| Tonk
Posted:
Mon Jul 07, 2008 6:49 pm |
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| PerryPeabody wrote: | Well, I hope you'll change your mind about posting on this subject again. There's lots of different aspects of it--the law, the actual (not alleged) facts, why entry to the compound was done so heavy-handedly and in such a frenzy, why the 14 day hearing orders didn't match the facts, (and then, of course, the slippery slope of what is good for children and their upbringing and who has the right to dictate to parents what is good for their children).
Dealing with 400+ potential victims isn't easy but common sense suggests that young kids weren't in any immediate danger (except of being taken out of Texas) and common sense also suggests that a group that already feels vilified, misunderstood and persecuted will group together even more closely for what feels like self-protection. |
Entry to the compound was not done heavy handedly or in a frenzy. It took place very methodically and over a course of several days.
I don't think it's fair to say the temporary orders didnt match the facts either. There was testimony and evidence about every age group -- the problem was the actual victims could not be distinguished from the children who were supposedly not in immediate danger because of the obfuscation and deceit on the part of the parents and the children.
The adults know exactly what they're doing, and they know exactly how to muddy the water and make it nearly impossible for real facts to be discovered about discrete individuals. They have had years of practice and extensive training about how to beat the courts and the government. It is not because they're being unfairly persecuted and in time the evidence WILL bear that out.
Let's see what happens with the grand jury, and let's see how things end up with the civil case .... there is so much information that is not available publicly, but it will be eventually.
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Joined: 25 Jul 2006
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| SavannahStar
Posted:
Mon Jul 07, 2008 6:52 pm |
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Yeh uh huh.
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**SuperStar**
Joined: 24 Mar 2006
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| Tonk
Posted:
Mon Jul 07, 2008 6:56 pm |
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Great comeback!
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Joined: 25 Jul 2006
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| tulsad
Posted:
Mon Jul 07, 2008 7:09 pm |
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| Tonk wrote: | whoever wrote that should have spent a little more time with the books in law school because he's confusing civil law and criminal law.
(And from your comment following this:) Let's see what happens with the grand jury, and let's see how things end up with the civil case .... there is so much information that is not available publicly, but it will be eventually.
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Thank you, Tonk. After so much information was available during the active stage of this process, the lack of it now leads to both frustration and assumptions/second-guessing.
It is truly sad that all of the children had to be removed - only someone who was truly heartless would feel otherwise - but I fully believe the FLDS are largely responsible for the need for such a drastic measure. I think the saddest part is the babies over six months who were abruptly weaned; I can't help but wonder if at least part of the reason behind this decision was the fact that when the mothers were trying to confuse identities, they passed babies around and multiple women nursed them.
I just hope that the grand jury has the courage to take a stand and hand down indictments.
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Sparkly Tree
Joined: 19 Aug 2006
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| Tonk
Posted:
Mon Jul 07, 2008 7:13 pm |
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| tulsad wrote: |
Thank you, Tonk. After so much information was available during the active stage of this process, the lack of it now leads to both frustration and assumptions/second-guessing.
It is truly sad that all of the children had to be removed - only someone who was truly heartless would feel otherwise - but I fully believe the FLDS are largely responsible for the need for such a drastic measure. I think the saddest part is the babies over six months who were abruptly weaned; I can't help but wonder if at least part of the reason behind this decision was the fact that when the mothers were trying to confuse identities, they passed babies around and multiple women nursed them.
I just hope that the grand jury has the courage to take a stand and hand down indictments. |
I'm pretty certain they will, and it is not a long wait. After that the investigation and charges will continue. I know it's frustrating.
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Joined: 25 Jul 2006
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Location: pray for rain
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| Topsider
Posted:
Mon Jul 07, 2008 8:15 pm |
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| tulsad wrote: |
Thank you, Tonk. After so much information was available during the active stage of this process, the lack of it now leads to both frustration and assumptions/second-guessing.
It is truly sad that all of the children had to be removed - only someone who was truly heartless would feel otherwise - but I fully believe the FLDS are largely responsible for the need for such a drastic measure. I think the saddest part is the babies over six months who were abruptly weaned; I can't help but wonder if at least part of the reason behind this decision was the fact that when the mothers were trying to confuse identities, they passed babies around and multiple women nursed them.
I just hope that the grand jury has the courage to take a stand and hand down indictments. |
It is sad the children had to be removed. But I think the moms contributed to the confusion
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Joined: 08 Dec 2007
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Location: On Hiatus Beach
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| Heartsss
Posted:
Tue Jul 08, 2008 9:25 am |
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| Tonk wrote: | whoever wrote that should have spent a little more time with the books in law school because he's confusing civil law and criminal law. CPS didnt remove the kids pursuant to a search warrant. CPS got a court order based on an affidavit. They HAD to investigate pirsuant to their duties imposed by law. By law, CPS is entitled to enter a home and conduct interviews as part of their initial investigation. It was only after they interviewed 15 or so teenage girls that they got a court order authorizing the removal of teenage girls. As interviews continued, they got aother court order to remove more children, and further interviews led to yet another court order to remove the remainder of the children. None of the removals were based on a phone call to a tip line.
On the criminal side ...the phone call to a tip line was actually about 13 hours of recorded phone calls with information so detailed and accurate, including names and actual addresses and descriptive details that leaves no doubt that law enforcement was acting in good faith. The issue of the caller has not been settled. If it was Rozita Swinton, theres reason to think she was calling at the urging of an actual victim of the kind of abuse she described. That investigation continues. After the initial search warrant was issued, law enforcement went back and got a second, broader search warrant based on what they saw in plain view. Those warrants were then superceded by a federal search warrant and that disposes of any legitimate challenge to the state warrants. That has already been ruled on by the court. |
Interesting...thanks for the info!!
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Joined: 04 Jun 2008
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Location: Texas
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| pax
Posted:
Tue Jul 08, 2008 9:58 am |
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| Tonk wrote: | whoever wrote that should have spent a little more time with the books in law school because he's confusing civil law and criminal law. CPS didnt remove the kids pursuant to a search warrant. CPS got a court order based on an affidavit. They HAD to investigate pirsuant to their duties imposed by law. By law, CPS is entitled to enter a home and conduct interviews as part of their initial investigation. It was only after they interviewed 15 or so teenage girls that they got a court order authorizing the removal of teenage girls. As interviews continued, they got aother court order to remove more children, and further interviews led to yet another court order to remove the remainder of the children. None of the removals were based on a phone call to a tip line.
On the criminal side ...the phone call to a tip line was actually about 13 hours of recorded phone calls with information so detailed and accurate, including names and actual addresses and descriptive details that leaves no doubt that law enforcement was acting in good faith. The issue of the caller has not been settled. If it was Rozita Swinton, theres reason to think she was calling at the urging of an actual victim of the kind of abuse she described. That investigation continues. After the initial search warrant was issued, law enforcement went back and got a second, broader search warrant based on what they saw in plain view. Those warrants were then superceded by a federal search warrant and that disposes of any legitimate challenge to the state warrants. That has already been ruled on by the court. |
Thanks. Has any media requested that the judge release the thirteen hours of tape?
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Joined: 23 Mar 2006
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Location: Wish You Were Here
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| PerryPeabody
Posted:
Tue Jul 08, 2008 11:47 am |
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| Tonk wrote: |
Entry to the compound was not done heavy handedly or in a frenzy. It took place very methodically and over a course of several days.
First, I think Texas was in a no-win situation whatever it did. It had a duty to protect children (whether or not the initial tip was valid) and second, child welfare laws and procedures do not invision taking in 400+ children at a time even when their mothers correctly identify them, even when they correctly identify themselves.
I have no right to criticize how the initial entry or subsequent entries inro the compound was made; I wasn't there; I can't imagine even trying to protect children, search, and do everything they were properly supposed to do on that scale.
When I used the words "heavy-handed" I was referring to the taking and putting in foster care all 400+ children. They all couldn't have been in immediate danger right then. For example, the babies weren't going to be used as sexual partners for heavenly marriages with the old men. There was no need to send away the mothers of the little babies or cut off their nursing their children. I realize that the sheer numbers made things very difficult and the mistrust between CPS and FLDS made things even harder, but causing trauma to very young children wasn't necessary.
I remember someone saying that the surrounding community was going to show them "kindness" and then they would learn that people other than FLDS people were kind and good and they would want to integrate. I'm not sure that a little kid wants to worry about meeting a lot of new people even if they have bikes; he or she wants his or her mother.
I don't think it's fair to say the temporary orders didnt match the facts either. There was testimony and evidence about every age group -- the problem was the actual victims could not be distinguished from the children who were supposedly not in immediate danger because of the obfuscation and deceit on the part of the parents and the children.
When I said that the 14 day order(s) didn't match the situation, I was referring to the facts that they were cursory AND stated that (I'm paraphrasing) that all efforts had been made to reconcile the family. That's just wasn't true at that stage of the incident.
The adults know exactly what they're doing, and they know exactly how to muddy the water and make it nearly impossible for real facts to be discovered about discrete individuals. They have had years of practice and extensive training about how to beat the courts and the government. It is not because they're being unfairly persecuted
I'm not suggesting that at all and I agree that they feel as if they are being persecuted and have a great, and historical, and practiced ability to muddy the waters--and they have a great PR machine.
and in time the evidence WILL bear that out.
Let's see what happens with the grand jury, and let's see how things end up with the civil case .... there is so much information that is not available publicly, but it will be eventually.
I, too, look forward to the grand jury results. What I was suggesting in my initial comment was that the children (and the adults to different degrees) did and will not come out of this unscathed. The children were subjected to abrupt changes and they could not possibly fathom why this was happening to them. I know that there was not an effort to hurt these kids but the experience that they have been through must have had the result of "hardening their hearts" in the long run to the consensus culture and I can't imagine the parents wanting to trust anyone from the "outside". This is just not the type of learning experience I would want my kids to have had. Maybe I'm wrong about the ultimate outcome here; I hope so.
P.S. I'm not criticizing you at all. You neither conceived the plan, planned the logistics of adjudicating the temporary fates of 400+ kids, planned the temporary housing facilities, decided which infant was to be taken from their mother, etc. You volunteered in an effort to help and you worked hard. |
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| pax
Posted:
Tue Jul 08, 2008 12:28 pm |
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Good post perry peabody. It's a difficult case, not black and white. I think we've been saying this since day one. 
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Joined: 23 Mar 2006
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| Black-Tulip
Posted:
Mon Aug 04, 2008 1:46 pm |
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A good article for discussion
Texas CPS case: Who decides who’s your daddy?
by Kurt Schulzke
For what it’s worth, I do not personally believe it a good idea for kids to routinely marry anyone at age 14. I do think that it should be legal, in special cases under judicial or other independent supervision. I would not choose to live polygamously (even if my wife would go along with it), but I can find no moral or public policy rationale to prevent others from doing so.
Nor do I believe that it is acceptable to grant one government, religious or family leader the unqualified power to decide who will be the husbands and fathers of which wives and children. I cannot in the same breath deny what amounts to a ” familial death penalty” power to Barbara Walther or Angie Voss and grant it to Warren Jeffs or Chaudhry Rashid. Rashid, some readers may remember, was the Pakistani man who, on July 6, 2008, strangled his 25-year-old daughter, in Atlanta, for objecting to an arranged marriage.
[Read more →] http://iperceive.net/texas-cps-case-who-decides-whos-your-daddy/
One comment with facts about foster children
Gravitas { 08.04.08 at 9:31 am }
There is NO increase in safety for children in foster care; to the
contrary, it is statistically an increase of risk on all fronts. I would
object to any “emergency removal,” for any cause, that does not first
give the opportunity to extended family to take those children into
their homes. Children in foster care for any length of time are almost
certain to be sexually molested, either by other foster children or by
their supposed care-providers. Children living in homes with one or
more unrelated adults are 50 times, yes, fifty times, more likely to
die of abuse than children with two natural parents. (Per the
American Academy of Pediatrics, 2005.)
Why not keep it in the family, if that is the case?
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