THE RIGHT TO INTIMATE FAMILY ASSOCIATION

Patel v. Searles, --- F.3d ---, 2002 U.S. App. LEXIS 20707 (2d Cir.,
Sept. 30, 2002)

    Plaintiff's mother and sister were murdered and the police investigation was unable to develop meaningful leads.  The police then initiated a campaign of lies about plaintiff for the purpose of alienating him from family members, with the hope that they would provide information incriminating him.  Among other things the police drafted fake confession letters blaming plaintiff's cousin for the murders, and claimed they came from plaintiff's typewriter.  They falsely claimed there was a serious rift between plaintiff and his sister, that his net worth had plummeted, that he was leading a double life and that he had failed a polygraph and refused to take another. Plaintiff alleged that as a result he was completely ostracized from his family.

    The court held that although the right to intimate family association has been incompletely defined by the Supreme Court, it is sufficiently well recognized to conclude that plaintiff's constitutional rights were violated by the police actions in this case.  The court held that the relationships between plaintiff and his father, siblings, wife and children were deserving of the greatest protection.  The court rejected defendants' argument that ostracization from the family was not a harm of constitutional magnitude. The court also rejected at the pleading stage the defendants' argument that the governmental interest in solving the double homicide outweighed plaintiff's interest in familial association.

    With respect to qualified immunity, the court held that the general right to familial association had been clearly established since 1984 when Roberts v. Jaycees was decided by the Supreme Court.  Although the court recognized that the contours of this right are uncertain, it concluded that "we do not think it would be objectively reasonable for the police to engage in an extended public and private defamatory misinformation campaign to destroy a family, hoping that those tactics might produce incriminating leads in a murder investigation."  The court thus denied qualified immunity.