After you’ve successfully defended your client’s good name against false allegations of child abuse and somehow shepherded him safely through the quagmire of a horribly abusive investigation, what’s next?
Is there any remedy for a parent who has been intentionally put through the grinder of a false abuse charge?
There are remedies, of course, but whether they are available for your client will depend on your jurisdiction, the facts of your case, and the persuasiveness of your evidence.
By far the most common approach is to file suit in federal court under section 1983 of title 42 of the U.S. Code.
This section provides a remedy through civil litigation for violations of constitutionally protected or statutorily-granted civil rights.
Money damages are available against defendants, but there is a requirement that the defendants were acting “under color of law.” This would be satisfied if the complained-of actions took place in the context of a child welfare agency investigation of false abuse charges.
Defendants can claim immunity through different legal doctrines. One of the most common forms of immunity is the concept of qualified immunity. This defense protects defendants sued in their individual capacities who exercised discretion in discharging their duties.
To defeat a claim of qualified immunity, the plaintiff must then show that the defendant’s “discretionary” actions violated a clearly established right of the plaintiff’s, and that a reasonable person should have known that the defendant’s conduct violated the plaintiff’s rights.
In addition to the federal approach through section 1983, plaintiffs may also elect to pursue a state law cause of action.
Generally, in the context of a false abuse allegation case, that cause of action will be a tort claim. Common torts alleged in such cases can include intentional infliction of emotional distress (or the tort of outrage), defamation, and/or injury to reputation.
Plaintiff’s counsel must be careful to consider any “Tort Claims Act”-type legislation enacted by the state in which the investigation occurred. These statutes can frequently give government defendants additional protections from suit and liability, and may also impose certain procedural “hoops” a plaintiff must jump through in order to litigate the claim at trial. Additionally, most state TCAs will include some cap on damages, which may severely limit the amount recoverable at trial, if successful.
Of course, if a lawsuit is pending in any court, it would be improper to litigate the case in the press. Most jurisdictions’ professional responsibility rules would prohibit that sort of tactic, anyway.
But if for whatever reason the vindicated client does not want to prosecute a lawsuit, or litigation is not appropriate under the facts of the case, there is nothing to prohibit him from attempting to raise public awareness, both of his case in particular and the problem of false abuse charges generally after the charges have been dropped or a successful verdict delivered.
Lawyers should take care to caution clients who show interest in this approach about the boundaries and contours of First Amendment protections of speech – and what the right to speak freely both does and does not mean.
Oftentimes, a vindicated client will express an interest in pursuing more formal advocacy work for this cause. If so, encourage them to hire a press specialist who can work with them to craft a message and present a polished image to the press.
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