Fighting Back

Fighting Back
Detective Robert R. Surgenor

On February 20, 2001, the Erie County Department of Job and Family Services received an "anonymous" tip that the children of a home educating family were neglected and their home was "cluttered." Two social workers decided to go to the residence to investigate.

When they approached the home, they observed several boxes of clothes, a five gallon bucket, and numerous old telephone devices on the porch. When the mother answered the door, she refused to allow the social workers into the house, even though several techniques were used to try to convince the mother that the social workers were "required" to enter the residence (something I have been warning you about). At one point, one social worker told the mother that if she refused them entry into the home, she would declare an "emergency" and forcibly remove the children from the home (this is another claim often used by social workers). The mother still refused entry.

The social workers then left and returned with two police officers. Even police officers are confused about the authority of social workers. These two officers believed that the social workers were exempt from the Fourth Amendment! They informed the parents that they were required to allow the social workers entry into the home. One officer told the father that if they had to "go through the hassle of getting a warrant," they would site the family for every violation they found in the home. One officer told the father that if he did not let the social workers into the home, he would arrest him for "Obstructing Official Business."

One of the social workers tried to get help from the prosecutor's office on her cell phone, but was told by the prosecutor that they should get a warrant before entering the family's home. I have been warning parents that even though social workers are bound to the same standards as police officer, social workers believe they are exempt from the laws of search and seizure. Obviously, neither the social workers nor the police officers in this case felt they needed a warrant. One officer yelled "This has gone on long enough, I'm taking you into custody for obstruction of official business." He then placed the father spread-eagle and frisked him.

The officer then told dad that he would not be arrested if he allowed them entry into their home. At that point, faced with the possibility of arrest, the father agreed to let the officials into the home. The social workers looked through the entire house, and were unable to find any conditions that would be harmful to the children. The father was released at the scene and the social workers and police officers left the area.

Fortunately, this family was fully aware of their Constitutional rights. The Fourth Amendment states, "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." This family did not think this episode was funny, and filed a civil rights lawsuit in the United States District Court of the Northern District of Ohio against the social workers, the county, the police officers, and the city. The High Court listened to all arguments involved in the case in December of 2002.

The social workers argued that "the Fourth Amendment was not applicable to the activities of their social worker employees." The social workers claimed that "entries into private homes by child welfare workers involve neither searches nor seizures under the Fourth Amendment, and thus can be conducted without either a warrant or probable cause to believe that a child is at risk of imminent harm."

The Court disagreed and ruled: "Despite the defendant's exaggerated view of their powers, the Fourth Amendment applies to them, as it does to all other officers and agents of the state whose request to enter, however benign or well-intentioned, are met by a closed door." The Court also stated "The Fourth Amendment's prohibition on unreasonable searches and seizures applies whenever an investigator, be it a police officer, a DCFS employee, or any other agent of the state, responds to an alleged instance of child abuse, neglect, or dependency."

The social workers then argued that there are exceptions to the Fourth Amendment, and that the situation was an "emergency," which gave them the authority to enter the home without a warrant (we have discussed this misconception by social workers in past articles). The Court disagreed and ruled: "There is nothing inherently unusual or dangerous about cluttered premises, much less anything about such vaguely described conditions that could manifest imminent, or even possible danger or harm to young children. If household 'clutter' justifies warrantless entry and threats of removal of children and arrest or citation of their parents, few families are secure and few homes are safe from unwelcome and unjustified intrusion by state officials and officers."

The Court continues with their chastisement of the social workers: "There can be no doubt that the state can and should protect the welfare of children who are at risk from acts of abuse and neglect. There likewise can be no doubt that occasions arise calling for immediate response, even without prior judicial approval. But those instances are the exception. Otherwise child welfare workers would have a free pass into any home in which they have an anonymous report of poor housekeeping, overcrowding, and insufficient medical care and, thus, a perception that children may be at some risk."

The Court continues: "The anonymous phone call in this case did not constitute a 'report' of child abuse or neglect, as that term is used in the Ohio Administrative Code. Even if it constituted such report under the Code, the defendants were required to take steps to verify its allegations and develop further information before entering the plaintiff's home over their objections. Not having done so, they had no reasonable basis on which to conclude that the children were in any danger, much less the imminent danger of serious harm that must reasonably appear to exist before warrantless, nonconsensual entry can occur."

The social workers and the police officers then claimed that they were immune from liability. The court disagreed and ruled: "That subjective basis for their ignorance about and actions in violation of the Fourth Amendment does not relieve them of the consequences of that ignorance and those actions. No reasonable officer could believe that he could arrest someone without probable cause, be unaware of the elements of the obstruction of justice statute, detain a family without probable cause or a reasonable basis to believe that its children were in imminent harm, believe that consent to enter private premises could be procured by threats and other coercive action, or search an individual without probable cause or a reasonable belief that he was armed and dangerous. No reasonable officer, moreover, could have rationally believed that the anonymous phone call provided sufficient justification to take any of those actions."

The Court then lowers the boom by stating: The claims of defendants (social workers and police officers) of qualified immunity are therefore denied." This decision states that police officers and social workers are not immune from lawsuits if they violate a person's rights against unreasonable searches and seizures as outlined by the Fourth Amendment of the United States Constitution and Ohio Revised Code section § 2933.22.