Judge denies qualified immunity to officers who took children from family home without a court order

March 20, 2024 | By DANIEL WOISLAW
Sabey parents reading to children

Last week, a judge ruled that parents Josh Sabey and Sarah Perkins’ lawsuit could move forward against government officials who stole their children from their home without a court order in the middle of the night. The basis for this action? A single x-ray of their sick infant showed an old, healing rib injury. Without allegations of abuse or additional evidence, the officers took the unprecedented step of threatening to break down the family’s front door if Josh and Sarah did not surrender their children.

The officers argued they were immune from being sued under an archaic legal rule called “qualified immunity,” which judges have described as a shield “for all but the incompetent or those who willingly violate the law.” The judge disagreed, ruling that if what Josh and Sarah alleged is true, then the officers violated clearly established constitutional rights, including the 4th Amendment, which protects Americans’ privacy by securing their homes against intrusion by the government.

One of the best English statements incorporated to American law is that a person’s home is their castle. In the words of British statesman William Pitt, “The poorest man may in his cottage bid defiance to all the forces of the crown.” That’s exactly what Josh Sabey and Sarah Perkins did when the government came to their home in the middle of the night and demanded their children. Most people would have acquiesced to the demands of the police thumping on their door at 1:00 a.m., but Josh and Sarah are not most people. They knew their rights and what the government was doing was wrong. They understood that without a warrant, the government may not cross the threshold of a private home. So, they demanded one.

Unfortunately, the officers did not understand the Sabeys’ rights as well as they did, and Sarah and Josh ended up surrendering their children to the government’s forceful demands, rather than have their home physically sieged. Their lawsuit seeks to vindicate their right to call their home their castle.

Strong property rights are a key feature of any free society, and our Constitution recognizes this by providing repeatedly within the Bill of Rights for its protection. The 5th Amendment guarantees due process of law before people are deprived of property and also provides that public takings of private property require compensation. The 8th Amendment forbids excessive fines, protecting Americans’ savings from being dispossessed by the government. The Second and 3rd Amendments contain provisions prohibiting interference with weaponry or compulsory lodging for soldiers in private homes. And finally, the 4th Amendment defends privacy by securing “persons, houses, papers, and effects” from unreasonable searches and seizures.

The “castle doctrine” is often discussed in the context of a person’s right to shoot an intruding burglar, but it is arguably more important where government invasions are concerned. A person’s right to call their home their castle is a bulwark of constitutionally protected liberty. The home is where children are raised and taught right from wrong, where families cook and laugh and play. It’s the place where Americans can feel free to shake off the weariness and anxieties of a long day, knowing that it is their space. “When it comes to the 4th Amendment,” the Supreme Court has said, “the home is first among equals.” The judge in Josh and Sarah’s case repeated this language in denying the officers’ motion to dismiss their lawsuit, adding that “the core of the 4th Amendment is the right of a family to retreat into their own home and there be free from unreasonable governmental intrusion.”

The Sabey family is not the only one to have suffered an unreasonable government invasion of the place in American society that is supposed to be the safest and securest under both custom and law, but they’re sending a clear message to the officers involved that they won’t stand for it. Strong property rights, especially those surrounding the private family home, are the last line of defense against the tyranny of the state, and the 4th Amendment is one of the most effective tools for its protection. Josh and Sarah’s lawsuit, and the judge’s recent ruling that their case can move forward, is proof of that fact.