Virginia Lawyers Weekly VA Lawyers Weekly
The 4th Circuit reverses an order granting a 19-year-old son’s motion to quash a grand jury subpoena that sought his testimony with regard to potential federal drug and firearms charges against his father; no federal appellate court has recognized a parent-child privilege, and the 4th Circuit says it will not be the first.
Police arrived at the home the son shared with his parents and minor siblings in response to a 911 domestic assault complaint. The deputies arrived and conducted a search, and seized approximately 40 firearms, including assault-style rifles, as well as drug paraphernalia and marijuana plants growing in the basement. The mother later dropped the domestic violence charges, the parents separated and the older son moved in with his father.
The government referred the weapons matter to the grand jury for possible prosecution pursuant to 26 U.S.C. § 5861(d). The government subpoenaed the son and the district court granted his motion to quash the subpoena.
Only a very small handful of federal district courts in this country have recognized the parent-child privilege. These decisions have compared the parent-child privilege to other privileges. In contrast, every federal appellate court that has considered adoption of the parent-child privilege – including our own – has rejected it.
In our own cases of U.S. v. Jones, 683 F.2d 817 (4th Cir. 1982), and U.S. v. Dunford, 148 F. 3rd 385 (4th Cir. 1998), we declined to recognize a parent-child privilege, but stopped short of issuing a blanket rejection of the privilege.
We conclude the district court erred in creating a parent-child privilege in this case. As one of our sister circuits has explained, we should create a new privilege only after careful consideration in the face of a strong showing of need for the privilege. There is no such showing here.
First, the son is not an impressionable very young child, but an adult college student. Although the father provides the son’s room and board, buys his clothing and contributes a small amount to his college tuition, the son himself acknowledged that the father would not cut him off or hold it against him if the son testified truthfully. The son also testified that his aunt helped pay his college expenses.
Also, because the government simply seeks to determine the ownership of the firearms found at the residence, we cannot say with certainty that the son’s potential testimony would be of a nature that would damage the father-son relationship, or that creating the privilege will promote the privacy interests a parent-child privilege is meant to protect.
We also do not believe the purported purpose of the parent-child privilege would be duly served by shielding the son from testifying about the firearms seized on Nov. 30, 2012. In her 911 call, the mother alleged spousal abuse. The home in which she and her husband were raising two minor children contained automatic weapons and numerous other firearms, and there were illegal drugs growing in the basement.
Under these circumstances, the son has not provided a strong showing that adoption of the parent-child privilege would promote sufficiently important interest to outweigh the need for probative evidence in the administration of criminal justice.
Reversed and remanded.
Under Seal v. U.S. (Thacker) No. 13-4933, June 16, 2014; USDC at Baltimore, Md. (Motz) Sujit Raman, AUSA, for appellant; Peter D. Ward, for appellee. VLW 014-2-115, 21 pp.
