In this article we are going to take a look again at a case of false imprisonment and detainment that is currently transpiring in Texas. There is a systematic failure that has recently caught the attention of one judge in the state. U.S. District Judge Janis Graham Jack has recently ordered state officials to make over 100 changes to start correcting the child welfare system in regards to numerous failings she is attempting to stop. In this article we are going to take a look at a video of an altercation between Marie Cruz and local police, where she and her family were illegally detained based off of the orders from Child Protective Services, and her son was unlawfully arrested. At the conclusion of this piece, I will attempt to outline exactly why this was illegal, what rights citizens have, define things like a “B.O.L.O.”, and explain how CPS violates constitutional rights when officers acting on their behalf step outside what the law gives them power to do. I will also provide resources at the end to information on situations like this, and a link to my article on Section 1983 litigation and making a claim of false arrest.
FIRST, MARIE'S SON IS UNLAWFULLY ARRESTED WITHOUT A WARRANT OR PROBABLE CAUSE
In the first video we are shown through Marie’s footage that was streamed live, her family member being taken into custody for possession of a firearm. Police arrived at their vehicle while shopping at a flea market responding to a B.O.L.O. that C.P.S. instructed local officers to carry out. Officers immediately detained Marie and her three children, and proceeded to enact an unlawful arrest on her oldest son. Her oldest son was in legal possession of a firearm under Texas law but refused to provide identification at the officers request, and instead inquired the reason for their being detained. The officers are seen cutting his holster from his person, and dragging him away from the premise stating the grounds as “failure to identify”. The Texas penal code defines this charge as valid when refusing information during a lawful arrest. At the time, no crime had been committed as the family had simply been shopping. Likewise, the officers responding possessed no warrant to detain Marie’s oldest son on suspicion of involvement in a crime. Given that this was not a lawful arrest, constitutionally and under Texas law the individual was committing no crime by withholding his information at the time he was physically restrained for exercising his rights. Under Texas law you have to be under arrest and charged with a crime to be required to provide your name and information. If a citizen is only being detained, they are not obligated to say anything including their name. Until the point they are actually arrested, they cannot be charged with “failure to identify” as this charge requires a crime be committed for a citizen to be required to identify themselves formally. Arresting a citizen for not identifying themselves without their being under arrest for a separate crime at the time would be an unlawful arrest, and a civil rights violation under both state and federal laws.
In the state of Texas citizens have the right to constitutional carry, and the possession of a firearm is not a legal justification to search or detain a citizen who has not committed a crime. Texas has constitutional open carry laws that have been upheld in courts that the act of possessing or carrying a firearm is not an arrest-able offense. Likewise in Texas, an officer cannot compel a citizen for ID or personal information based solely on the fact that they possess or are carrying a firearm. Until a crime is committed any detainment or search of ones person is unlawful and they cannot be compelled to incriminate or identify themselves. The existing B.O.L.O was not a warrant, and the fact that no crime had been committed by the son seen in the first video, him being taken into custody for the charge of failure to identify illustrates a gross overstep of power by the officers involved. Between this video and the next, viewers witness the rights of four people violated all stemming from this initial unlawful detainment.
AND OFFICERS THEN PROCEED TO DETAIN MARIE UNTIL CPS ARRIVES DESPITE CONFIRMING THERE WAS NO IMMINENT DANGER
The second video begins with police outlining to this mother that she was being detained because CPS had put out a B.O.L.O. for her and her children, and they were required by law to locate her children and ensure they are safe. Marie inquires to the officer why she is being detained if no crime had been committed. The officer on camera states no laws had been broken, and they were acting on C.P.S.’s B.O.L.O. In Texas there is a law that gives this agency the power to have police carry out a procedure like a B.O.L.O., but does not permit much of what is seen in the video. Later in this article I will outline HB 2053, and how Texas law only requires that officers responding to the B.O.L.O notify CPS that the children are safe when that is the case, and only empowers them to attempt to take kids without a court order when clear imminent danger is sensed. This same law does not permit any type of detention or arrest in the event the children are not found to be in imminent danger. The officer states on film that the children are in fact safe, but the mother cannot leave with her children despite their having no warrant, and no crime being committed. The officer further elaborates that he can legally detain her for 20 minutes while he waits for the warrant and/or CPS to get there. In this same time we watch them park their vehicle in to prevent her leaving, and at each of her attempts to leave on foot she is also prevented from leaving.
We see the officers continue to hold the mother against her will after verifying the safety of her children in a clear attempt to buy time until CPS officials arrive. Finally, two people arrive, and the officer in charge leaves as Marie states for the video that her phone is about to die. We can hear the woman wearing a badge tell the mother that they need to inspect her home as the video ends. HB 2053 is a bill that cleared the house several years ago that defined when CPS could utilize officers of the law to track down parents or children. Through this bill it empowers the CPS officials to keep a list of people either in the system or receiving services who they deem should be checked in on periodically. It outlines also what is to be done in the event this agency is looking for someone and cannot find them. This is the law that allowed CPS to even put a B.O.L.O. out in the first place. The important piece of this legislation worth noting is Article 2.272 where it outlines how law enforcement is supposed to respond in the event that they encounter someone who is being sought by CPS. An officer of the law is only permitted to take children from their parents in this scenario under family code Section 262.104. It is this code that outlines how it has to be apparent that the children are in clear imminent danger to be able to take said children without a court order. As the video establishes, when the officer acknowledges there is no imminent danger he is at that point detaining the family unlawfully when he should be notifying CPS the children were safe and instructing Marie to contact her case worker. This is a very clear example how a justified B.O.L.O. can quickly turn into a civil rights violation when people acting on behalf of the state act outside the law themselves.
ON WHY THE WAY THIS WAS HANDLED WAS UNLAWFUL...
The first thing that should be clarified here is that a B.O.L.O. is not a warrant. This term means “be on the look out”, and is not a reference to anything that permits detainment of citizens. When officers are on the lookout, it would imply that this is for questioning for relation to a crime. If the person in question has not committed a crime, and is not being charged there are rules regarding physically preventing them from leaving. The same is true for warrants, there are rules that govern what is required to actually arrest someone when charged with a crime, guilty or not. In Texas, a situation like the one above is tricky for a few reasons. Citizens of Texas can be charged with evading arrest for walking away from police, even if only detained and not under arrest. Citizens likewise do have to at least stop for officers, but are in no way obligated to answer any questions. It is each Texans right to either be charged with a crime or let go, however this is often not what happens.
In the case of Marie, a previous incident resulted in a B.O.L.O. being issued, and she was detained after officers confirmed no crime had been committed. Police officers are agents of the Judicial Branch, meaning they are supposed to be taking orders from the court and enforcing laws. What transpired today was officers detaining a citizen so a private agency could place itself into her home life without any legal right to do so. Officers are supposed to detain citizens upon suspicion of a crime, and in her video we see the officer admit several time that all the criteria for her being allowed to leave were met, yet still hold her on the word of C.P.S. Had she left and been arrested for evading her false detainment, this agency would have taken her children and placed them in foster care despite the blatant disregard of anyone’s rights involved. Though it is your right to leave, often people are “baited” into charges in situations like these, and we can hear Marie mention this in the video.
Since the 1960’s the child welfare system has gone from being a public entity to being managed by a conglomerate of nonprofit’s and private businesses. Over the years many arguments have been made both for and against it, and many argue that through privatization these same entities have become more concerned with government payouts than whats best for the families. There are immense issues on the table that all seem to stem from Child Protective Services having financial incentives to keep the maximum number of children in the system. A whole system has been built to provide homes for the children taken on orders of unelected entities holding no legal power. All too often we are seeing that the children taken should not have been, and that our government is allowing our tax dollars to fund this system that destroys many good families.
The way CPS works is that based on laws requiring the reporting a child in danger, almost anything can initiate an investigation by Child Welfare Services. The result of a report being filed, is an agent of this network can ultimately rule on whether your children are taken from you. These agencies are still required to possess warrants to search your home, and your constitutional rights do apply to them as they would an officer of the law. It is the first instinct for many to comply and answer questions when confronted by CPS, but in actuality one can refuse to do so. What would happen is the same agency would have to obtain a court order based on reasonable suspicion of danger to get a warrant to search a persons home. Many do make arguments that if one knows they have done nothing wrong they can consent to a search or drug test to settle the matter, but each situation is different and many have still lost their children regardless. In this situation Marie was detained by an officer without a warrant who stated no crime had been committed, but they had either made or received a call for a child in danger. The officer who saw the kids safe held her illegally until this agency arrived to do their own investigation, which the mother had a legal right to refuse. By intimidating her with the fear of being arrested and losing her children they illegally coerced her into an unconstitutional search of her home. Below readers will find several links to articles touching the surface of the rights of parents and children when facing issues with CPS. Most information presented suggests that by becoming more aware of the rights we possess coupled with a knowledge of how the system operates it can empower us to exercise these same rights to defend ourselves properly. It would be my recommendation too to do your own research about your rights if you have children as data suggests the number of complaints to CPS continually rises, and they will investigate every claim no matter how ridiculous it is. Knowing and exercising your rights may not prevent wrongdoing from occurring, but it will force the officers or CPS to involve the courts to proceed further, and likewise will document and lay groundwork for a Monell claim should the situation not be resolved in your favor.
Below readers will find a link to another article I did presenting the treatise of arrest, 1983 litigation, and Monell claims. I’m going to briefly summarize here how this all applies to the video and situation above, but recommend readers evaluate the material there as well. 1983 litigation outlines the procedure for taking civil action against an agency that has violated a persons civil rights. The Monell claim specifically is the supreme court ruling that upheld that courts, law enforcement, and other agencies or bureaus are liable to suit in the same way a person is. Using the example of what happened to Marie, the officers and police department would be liable for violating several rights by unlawfully detaining her, and the same would be true of CPS for causing this to happen, as well as coercing an unlawful search of the home. This process is outlined more in depth in my other article, and therein readers can find links that will describe what they are entitled to for damages while arguing this in court.
In the state of Texas, to detain or arrest a person there has to be reasonable evidence to suggest they have committed a crime, or are about to. False arrest would be defined simply as an arrest made without constitutional grounds to stand on, or evidence to support the charge being alleged. An unlawful arrest is simply an arrest being made without a warrant, but it is still technically illegal to physically resist an unlawful arrest due to a past supreme court ruling finding that the physical interaction was not the best place to decide the validity of the arrest. The court at the time laid precedent that persons making a case for unlawful arrest should do so in the court room, and the Monell claim is the way to argue this and sue the people or agencies after the fact. Below are a couple links to Texas penal code information which defines both false imprisonment and unlawful restraint. These are seriously punishable offenses, and when officers without warrants detain parents who haven’t committed crimes it meets the criteria for criminal charges, fines, and suit for damages by the injured party.
Much of this all comes down to our civil rights, due process, and liberty. Recently I wrote another article describing ways the courts themselves can be as corrupt as an agency like CPS. I’d also encourage readers to take a look at this as I’ve done my best to define the constitutional provisions that protect our rights to justice and the Blessings of Liberty. It is my opinion that all citizens should understand these rights and how to properly exercise them. No matter how much an agency or individual tries to convince citizens they don’t have rights, they to. The purpose of the Constitution was to preserve the intention that no branch of government, or agency acting on their behalf has the power to infringe our God given rights. In America we are all born free, and the videos displayed above are clear examples of how quickly citizens rights are infringed upon, and how easy it has become for private entities to destroy families in defiance of law in our nation.