Article content continued

When authorities declined to bring charges – judges who reviewed the pictures found they were, in fact, harmless family photos – the couple sued two Child Protective Services employees, among others, alleging constitutional violations.

On Tuesday, after a series of defeats in the case, a federal appeals court affirmed what the Demarees have argued all along: that their children were taken from them for no good reason.

“The social workers did not have reasonable cause to believe the children were at risk of serious bodily harm or molestation,” a three-judge panel of the U.S. Court of Appeals for the 9th Circuit wrote in a 47-page opinion. “Therefore, viewing the record most favorably to the Demarees, the defendants acted unconstitutionally in taking the three children away from home without judicial authorization.”

The social workers did not have reasonable cause to believe the children were at risk of serious bodily harm or molestation

The decision, which came nearly 10 years after the parents’ initial encounter with police, revived the case against the two social workers after a lower court dismissed it in 2014. That court ruled that the social workers, as employees of the Arizona government, were entitled to “qualified immunity,” meaning they were protected from liability in lawsuits arising from their professional duties.

Photo by Scott Olson/Getty Images

But the San Francisco-based 9th Circuit panel disagreed, ruling that the social workers presented no evidence that the children were at risk of sexual abuse.

“The risk identified by the defendants did not include taking photos of a nude child in an exploitative situation and distributing them, because there was no allegation or indication that A.J. and Lisa had distributed, or were likely in the future to distribute, nude pictures of their children to anyone,” the three-judge panel wrote. “Nor did the identified risk include taking photos of a nude child engaging in sexual conduct, because there was no allegation A.J. and Lisa had ever taken, or were likely to take, photos of their children engaging in sexual conduct.”