“ACS MADE IT CLEAR—EITHER I LET THEM SEARCH MY HOME OR THEY WERE TAKING MY KIDS.”

The New York City Administration for Children's Services Uses Highly Coercive Tactics to Illegally Search Tens of Thousands of Families’ Homes Every Year. 

I didn’t write the headline and subhead above.  Rather they are the headline and subhead that begin a lawsuit against New York City’s family police agency, the Administration for Children’s Services.  The lawsuit was filed by the Family Justice Law Center, the New York University School of Law Family Defense Clinic and two private firms. 

But unlike most legal documents, this one reads like a good magazine article.  So I’ve reprinted the overview that begins the lawsuit, known as a “preliminary statement” in full, except for footnotes and paragraph numbers.  If that whets your appetite for more, you can read the entire document here. 

You can read news accounts about the lawsuit in The New York Times, New York Daily News, NY1 News (a video interview), Gothamist, Mother Jones, The Imprint, Courthouse News Service, and Reason

  Ebony Gould, et. al., v. The City of New York, 
Preliminary Statement

             One night, without warning, a mother in New York City hears a knock on the door. Her children are home with her. The family is cooking. or playing, or sleeping. 

            When the mother opens the door, two government investigators are standing outside, loudly demanding to be let inside. She is surprised and confused. She asks what this is about. The investigators command the mother. You have to let us in.  We need to look in your home. 

            The mother has no choice, it seems. Terrified, she reluctantly opens the door and steps aside, and the investigators walk into her home. It is clear that there is no present danger to anyone in the home, but still the investigators search the home top to bottom. They look inside medicine cabinets, under beds, in closets and dresser drawers, in the refrigerator, and in cupboards.  The mother does not know why this is happening. The children are scared by these strangers combing through their home.  

              

The investigators demand to see the children's bodies under their clothes. They tell the mother to leave them alone in a room with her children. The investigators command the children. Lift up your shirt.  Pull down your pants.  I need to see your chest, your legs, your back. The children are afraid, but they comply. Their mother cannot protect them from these strangers. The mother fears that if she does not acquiesce to the investigators' demands, they will take her children at any moment. Her fear is reasonable; the investigators are telling her that might happen. 

            The investigators leave as abruptly as they arrived. They have threatened to return, even though they found no evidence that the children are in danger. There seem to be no rules and no laws to protect the mother and her children from this intrusion. 

            The City of New York’s Administration for Children's Services (”ACS”) conducts this kind of invasive and traumatic entry and search inside families’ homes more than 50,000 times a year. That means every day, well over 100 New York City families experience this harrowing violation. 

            As part of its routine investigations into families, ACS has a widespread custom, policy, and practice of entering and searching families’ homes by using coercive tactics (the "Coercive Tactics") to make parents feel that they have no choice but to allow caseworkers to enter and search their homes. For example, ACS caseworkers lie to parents about their rights, threaten to call the police, and even threaten to take the parents’ children away if the caseworkers are not permitted to enter and search the home. ACS conducts the overwhelming majority of these entries and searches without a court order, without voluntary consent, and in the absence of any emergency. 

            Duiring these searches, ACS routinely rummages through entire homes and conducts untrammeled inspections of families’ most private spaces. ACS performs these sprawling searches irrespective of whether these intimate spaces have any connection to whatever allegations have been made about that particular family. 

            These coerced searches rarely result in determinations that the children require any protection. Less than 7% of investigations lead ACS to file petitions in Family Court alleging that parents committed wrongdoing of any kind. 

            Nor do these coerced searches enhance child safety. As ACS has acknowledged, data from the first years of the COVID-19 pandemic show that there is no increase in child maltreatment when ACS drastically reduces the number of home entries and searches.            

            The trauma inflicted by ACS predominantly and disproportionately falls on Black and Hispanic families. More than 80% of the parents and children subjected to ACS investigations are Black or Hispanic. One out of every two Black children in New York City has been subjected to an ACS investigation by the time they reach the age of 18. ACS has acknowledged the racial impact of its investigations—an ACS-commissioned report describes a “predatory system that specifically targets Black and Brown parents.”

             ACS's widespread use of the Coercive Tactics to enter and search families’ homes violates the Fourth Amendment. There are three ways caseworkers may search a family’s home to conduct investigations consistent with the Fourth Amendment: (1 ) obtain a court order, (2) act upon exigent circumstances that require an immediate search of the home, or (3) obtain voluntary consent. Warrantless home searches like those ACS conducts tens of thousands of times a year are “presumptively unreasonable.” Groh v. Ramirez, 540 U.S. 551, 559 (2004) (internal quotation marks omitted). 

            Under the New York Family Court Act, ACS has the ability “at all hours” to obtain court orders to enter and search families’ homes. These orders must be supported by “probable cause” and “specify which action may be taken and by whom.” 

            ACS chooses to almost never seek these court orders. Across the nearly 53,000 investigations ACS conducted last year, it sought only 222 court orders to search families’ homes. Even assuming ACS completed only one home search during each investigation (it typically conducts several), ACS sought court orders for just 0.4% of home entries. This means over 99.5% of home searches that ACS conducts are 'presumptively unreasonable” under the Fourth Amendment. 

            ACS rarely attempts to justify its warrantless home searches by relying on exigent
circumstances. Of course, ACS can enter families’ homes without a court order or consent when it has grounds to believe a child is in imminent danger. But this case is not about the thankfully infrequent emergencies when warrantless searches are necessary to protect a child's safety. This case is about the overwhelming majority of ACS's more than 50,000 warrantless home searches every year—affecting more than 90,000 children and 70,000 caretakers—where no emergency grounds exist, even assuming the allegations under investigation are true. These allegations are typically non-urgent and frequently involve common occurrences, such as a child missing school without a doctor's note, a child seen playing in a hallway, or a parent disagreeing with a school's recommendation for special education services.

             In the absence of exigent circumstances, rather than seeking court orders, ACS caseworkers frequently gain entry into and search families’ homes through coercion, untruths, and threats. For instance, ACS caseworkers misrepresent and withhold information from parents about their rights, threaten to involve the police (i.e., government agents with the ability to use force), and even directly threaten to take parents' children away in order to improperly enter and search families’ homes. Caseworkers routinely employ these Coercive Tactics multiple times during the same investigation. 

            ACS's rampant use of the Coercive Tactics to conduct warrantless home searches is well known to Defendant City of New York. These practices have been meticulously documented by ACS's own internal reports, the agency’s staff and the informational materials ACS provides to parents, as well as by academics, reports and testimony of advocates and investigated parents, and in several prior lawsuits. 

            Nonetheless, ACS fails to provide anything close to adequate training to its caseworkers about families’ Fourth Amendment rights during home searches. Instead of ensuring that its staff follows the law, ACS has created and continues to foster a regime of coerced acquiescence by using tactics that inculcate fear in parents that unless they cede to ACS’s demands, their children will be taken. Indeed, an ACS internal report describes how the agency creates pernicious incentives for caseworkers to “be invasive and not tell parents their rights." 

            Plaintiffs are nine parents who were subjected to ACS's Coercive Tactics. These Coercive Tactics misled and intimidated Plaintiffs into believing they had no choice but to permit ACS's warrantless home entries and searches in non-exigent circumstances. ACS deployed an array of Coercive Tactics over the course of the numerous home searches experienced by Plaintiffs: ACS threatened to take Plaintiffs' children away if they did not let ACS into their homes; ACS threatened to call the police if Plaintiffs refused consent to entry; ACS told Plaintiffs the searches were required” or that ACS “needed” to search their homes; ACS abused and misrepresented its authority; ACS did not meaningfully inform Plaintiffs of their rights to refuse, limit, or revoke consent for ACS's home searches; and ACS made public scenes at Plaintiffs' front doors to intimidate Plaintiffs into letting them in. 

Plaintiff's’ experiences are not isolated or unusual. They are consistent with and indicative of ACS’s widespread and customary practice of deploying highly Coercive Tactics to conduct warrantless searches of families’ homes in non-exigent circumstances in violation of the Fourth Amendment. 

            Plaintiffs, on behalf of themselves and others similarly situated, bring this lawsuit to end these unconstitutional and unconscionable wrongs.