A Good Summary of the FLDS Situation in Texas

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6 responses to “A Good Summary of the FLDS Situation in Texas”

1. 

   Carl

   2008-05-11

   Sorry man, hate to disagree, but there is precisely zero analysis of the Constitutional rights being violated in the San Angelo Witch Hunts article. There’s no mention the 1st, 4th, 5th, 6th, or 14th amendments (the ones I can think of immediately). To do a valid analysis of Constitutional rights, I think they should have at least mentioned some of the rights in the Constitution.
   Based on all the info I have, which, granted, is not a lot, there has been no violation of the 4th because they obtained a valid warrant based on probable cause at the time of obtaining the warrant. Just because it may turn out that the call was a hoax, doesn’t mean that there was any violation because when they got the warrant, it was based on probable cause.
   Second, because of the state’s interest in maintaining the safety of its citizens, the deprivation of the children from the men is not in violation of the 5th amendment. Also, the additional procedures of cheek swabs to verify parenthood probably satisfies the Mathews v. Eldridge test for determining whether there has been a violation of the mother’s rights to procedural due process guaranteed under the 5th Amendment.
   There is no indication that any of the people have not received adequate representation of counsel under the 6th Amendment. You probably would not argue that considering the horror show of attorneys in the courtroom.
   There is no indication that the laws against bigamy or sexual assault are unconstitutional, if you want to make that argument, you can based on the 1st amendment, but you’ll be hard pressed to overcome the precedent and the political climate.
   Under the 14th, you’ll have a difficult argument to show that there has been any unequal protection under the law because the Supreme Court would likely defer to the government where the FLDS church are not a suspect class based on the test of US v. Caroline Products test where the class does not have an immutable characteristic.
   You’ll have a hard time showing that their living situation falls within a fundamental right. I don’t have the cites memorized, but I could find case law that would show that there’s no fundamental right to live in their peculiar situation.

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2. 

   David

   2008-05-12

   Admittedly they never talk about “Constitutional rights” in the article, but let’s have a look here.

   I’ll grant you that the authorities obtained a warrant based on probable cause despite what we have learned since then about their information – that’s just icing on the cake of the complaints against this action.

   You argue that the state has an interest in maintaining the safety of their citizens and therefore was justified in removing the children from the men. I agree that they have that interest but they face many problems from their action in this case. First – not all those children were residents of Texas. According to news reports, Governor Huntsman has a list of Utah citizens who had children taken at the compound because they happened to be visiting relatives at the time of the raid. Second, arguing that the children should be taken for their own safety is not unlike arguing that when a woman complains about her abusive boyfriend or husband the judge could issue a restraining order against her to keep her away from her abuser. They detained the children and the women rather than detaining the men who were the suspected abusers. Third, they received a complaint about one case of abuse and they took every one of the children, more than 460, from the compound. That’s like getting one complaint of discriminatory hiring practices at a WalMart in Kansas and launching a full scale investigation into discriminatory hiring practices at every retail store in the nation. It’s huge overkill and violates the “innocent until proven guilty” premise of our justice system.

   I would not bother to argue that the laws against bigamy or sexual assault are unconstitutional. The author of San Angelo Which Hunts has outlined how the FLDS could practice the polygamous principle that is their religious belief without technically violating any of the laws of Texas. There is no “spirit of the law” where human justice is concerned. If they are keeping th letter of the law then they are supposed to be innocent in our courts. Thus far there has been no evidence presented that this is not the case.

   The rights of the FLDS have been violated as demonstrated by the fact that the reaction on the authorities is completely out of proportion to the evidence they they had to work with. They overstepped their bounds. I don’t mean to accuse the authorities of malice – only of having their perspective clouded by the prejudice of preconceived expectations.

   (By the way, we have lots of evidence that because of preconceived expectations many of the FLDS parents and children are not acting in ways that are most likely to help them through this situation. They expect to be treated unfairly so they are more likely to be uncooperative – thus making it a self-fulfilling expectation.)

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3. 

   Carl Miller

   2008-05-12

   I didn’t see any mention of Constitutional rights here either.

   First point: If there are children from Utah in YFZ, then it’s a federal issue because it involves more than one state jurisdiction and Texas is still OK because they are working in conjunction with the Feds.

   Second: Taking the children away from the children is not like issuing a restraining order against an abused woman. Let’s not make false comparisons. If the men were alleged guilty and the women were determined innocent, then it’s fine to just get the men. If the women were complicit in the abuse, then they should also be detained. So if they detain the men and the women, should they just leave the kids at the compound with no one to care for them? Did they have probable cause to suspect that the women were complicit before they went in? To determine this question, we’d need to know exactly what was said in the phone call that started everything.

   Third, innocent until proven guilty means no punishment for any crimes until they’re proven. It doesn’t mean that the procedural wheels will be completely painless. Calling the authorities with the allegations set the wheels in motion and they can’t stop rolling now.

   It’s all well and good that the Witch Hunt guy pointed out ways that FLDS might be complying with the law, but until that’s proven in court, it’s of no use to them because it doesn’t show that there was no probable cause to take action.

   My big point is that the authorities don’t have to know whether they’re innocent or guilty to take action, all they need is probable cause. They don’t have to send a nice letter asking the FLDS if anything untoward is going on and get a confession before they can do something. They had probable cause and acted on it.

   I’d even argue that the government acted with a lot of restraint. Warren Jeffs was convicted the crimes people were guessing were occurring in YFZ but the police didn’t just run in there to crush them. They waited until there was actually reason to believe that something was going on.

   PS, “Probable cause” as a legal definition is a lot easier to show than “probable cause” in common use.

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4. 

   David

   2008-05-13

   I have to admit that I had not considered the implications of the unspoken assumption that the women were complicit (“brainwashed” is what many people have claimed) in the abuse. In that case it does make more sense to have removed the children. There is still the issue that they received probable cause on a single case of abuse and everybody accepts that after a couple of interviews they could determine that every child was in imminent danger of being abused. Does anyone really believe that they found probable cause for that kind of widespread abuse in only 72 hours?

   My biggest complaint though is that the argument the authorities are making is a complete double standard. They took the children because they believe there is “a culture of abuse.” They say that girls are being groomed for abuse and boys are being groomed to be abusers.

   Apparently they are more concerned with the FLDS kids in a “culture of abuse” than they are with the inner city kids. Even if the worst stories we have been told about polygamy were all true (and I’m sure they’re not all true) the YFZ ranch would not be one bit worse than the culture that prevails in slums across the country. If this kind of action – overwhelming CPS with hundreds of kids by clearing out areas with a culture of abuse – had any merit to it they should be doing the same thing elsewhere.

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5. 

   Carl

   2008-05-13

   I agree with you entirely. I will say that the “culture of abuse” probably is the result of the current political climate of calling anything even related to Mormons a cult.

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6. 

   David

   2008-05-13

   Personally, I think the “culture of abuse” is just their excuse to do what they wanted to do even before their hoax phone call gave them the trigger to do it. (Not to suggest that the phone call was not considered probable cause at the time.)

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