The Children of the Texas Ranch
by Ronald J. Rychlak - July 1, 2008
Reprinted with permission.
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.
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).
