From Whalen v. McMullen, CA9, decided October 30, 2018:
While investigating Kathleen Whalen for fraud related to her application for social security benefits, Washington State Patrol officer John McMullen gained both her cooperation and entrance into her home by requesting her assistance in a fictitious criminal investigation. During his investigation, McMullen secretly videotaped Whalen both outside and inside her home. No criminal charges were ever lodged against Whalen, but the Washington Disability Determination Services division (“DDS”) of the Washington Department of Social and Health Services (“DSHS”) used at her social security hearing the footage surreptitiously filmed inside her home.
Whalen brought suit against McMullen under 42 U.S.C.§ 1983, alleging that McMullen’s entry into her home without a warrant and under false pretenses violated her Fourth Amendment right to be free from unreasonable searches and seizures. She appeals a grant of summary judgment in favor of McMullen based on qualified immunity. W e conclude that McMullen violated Whalen’s Fourth and Fourteenth Amendment rights, but we agree with the district court that McMullen has qualified immunity from suit because the right was not clearly established. We affirm.I have seen this exact same tactic used in North Carolina. I think it's the way they're generally doing these investigations. I'm pretty sure they won't keep using this tactic in the 9th Circuit area. What about the rest of the country? I don't know that I'd want to do it if I were working for them or with them.
8 comments:
Seems like it is clearly established now. But it is odd to distinguish between the fact that this only was a civil/administrative investigation. I am not aware at what point an investigation is decidedly only a civil/admin investigation versus a criminal investigation. I thought that decision is made once the evidence is gathered.
It also seems odd for the 4th amendment not to apply during the procedural phase of an investigation, given ultimately no criminal action will proceed. At best, this seems wasteful.
I've never seen one of these ever exonerate a claimant. When they have nothing at all they still try to use loaded language that prejudices the record. I've also seen some instances where OHO/ODAR does not put them in the record which is interesting. More witch hunting.
The decision says that DDS determined that she did not commit fraud DDS does not make determinations about fraud and you would think a circuit court judge would know that. To 6:10 ....I have seen several cases where the CDI indicated that the claimant's statements were accurate.. The only time a CDI might not be in the record would be if a referral was made but they decided not to,pursue. Only a court decides fraud and that only when someone actually obtained money from it. The monies saved by the CDI units are not from successful fraud cases but when benefits are either denied r ceased as a result.
The procedural and evidentiary rules are significantly different between a civil enforcement action and a criminal prosecution. The US Attorney's office of Affirmative Civil Enforcement is responsible for the investigation and litigation of a variety of complex civil cases, including health care fraud and federal program fraud.
CDI investigations and reports are a complete farce. Anonymous sources, general observations that cannot be corroborated, and deceptive tactics, all by a unit that derives its budget from the sums they are supposedly saving.
The commentator above was correct in saying that DDS doesn't find fraud, instead they call it "fraud or similar fault."
For many disabilities, a "snapshot" would be insufficient to get the entire story. Give me 4-5 days of sunshine...and I might think I can work . About 5 minutes later , I realize how wrong I was and I then pay for it the next week. A couple of days of rainrain ...There are times I would welcome death .
Just anecdotal evidence here, but I have seen maybe 6 or 8 reports by these investigators in my client's case files over the years. One of them was legitimate and when I found out and corroborated the information in it I confronted the client, recommended that he withdraw his claim, and then ceased representation.
The others were not believable and they followed a pattern. In their reports, the investigators typically attributed supernatural powers to themselves. It was clear from the report language that they believed they had the power to look at a person and discern how much pain (if any) they are in, something that current medical science has not yet determined how to objectively determine. The report language indicated that these investigators believed they had the ability to tell from short observation whether a person was faking, of course without the need for any medical training on their part, or detailed review of the claimant's medical file. Their attempts to get disability claimants to do or say incriminating things, while of course lying to them about why they were there, were unconvincing.
To their credit, the ALJs were not gullible and did not credit those reports. It did upset the claimants, however, that they were actively lied to by agents of SSA and that a report was issued to the Judge hearing their case with erroneous unflattering information about them. If my experience is typical, then quality control of those investigators is sadly lacking. At very least they need to be required to write accurate factual reports.
I think that people getting paid for finding x will find x , no matter what x is...or, at least will require most money , and then they'll find it. Global warming, "fraud", Bigfoot, space aliens...Any conclusions from a paid witness should be listened to "with a grain of salt." CEs, MEs, VEs opinions are given way too much weight by SSA , which is just looking to deny anyone they can.
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