In a recent decision involving a lawsuit against the Adult Protective Services (APS) office of the Bergen County Board of Social Services, the Appellate Division held that without a court order or warrant for entry, or “exigent circumstances,” an APS employee could not enter the home of the elderly or disabled person who was allegedly subject to abuse or exploitation if consent to entry was not granted. Despite the broad authority granted to APS to investigate cases of alleged abuse or neglect of disabled and cognitively impaired adults in the community, the Court held that constitutional Fourth Amendment protections apply to these investigations.
The case arose out of an intrafamily dispute concerning two elderly brothers (Emil and Fred) who were business partners. As the business was being dissolved, the attorney-in-fact for Fred stepped in to act on his behalf with respect to the business. Emil’s family member then filed a report of exploitation with APS, who commenced an investigation and came into the home on five occasions over objections by Fred and his Agent under Power of Attorney. Finding Fred to be mentally incapacitated at that point, APS initiated guardianship proceedings [which can be both intrusive and expensive]. Eventually, Fred sued Emil and his family for damages for invasion of privacy and other harm, and sued APS under 42 USC 1983 for damages for violation of his 4th amendment constitutional rights. The trial court dismissed all counts, but the Appellate Division reinstated the claim against APS. The case is Rizzo v. Bergen County Bd. of Social Services, N.J. Super. App. Div. (per curiam) (37 pp.). As with all “unpublished” court decisions, the decision is non-precedential and is not binding on other courts.
The New Jersey Adult Protective Services Statute authorizes the agencies to investigate cases of alleged abuse, neglect or exploitation, including self-neglect, of individuals over age 18 who reside in the community, are physically or mentally disabled and have cognitive impairments that adversely impact their ability to live safely and decisions to protect their interests. Complaints are kept confidential and investigation files are confidential unless court proceedings are initiated. The APS agency has broad authority to initiate a court petition for protective proceedings to prevent, mitigate or remedy clear and imminent harm. A person who makes a good faith complaint may enjoy a “qualified immunity” against suit for damages.
The 4th amendment to the US Constitution says that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The NJ counterpart is in Article One, paragraph 7, and says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.
In this case, the Court found that exigent circumstances didn’t exist that could have authorized the warrantless entry and search. Since there was no consent, no court order and no emergent circumstances, the warrantless entry violated Fred’s protected constitutional rights, and the lawsuit for damages could proceed under “Section 1983.”
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