Garrity and a Police Officer’s Constitutional Rights

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This is very basic, black letter law, but I feel compelled to address it in the face of completely wrong information at another website.

Charlie Grabski has stated on the PINAC blog that “A citizen may be a police officer. But a police officer is not a citizen.  The citizen has those rights. The officer does not.”  Charles J. Grabski, PINAC comment (emphasis added).  Fortunately, Grabski is completely wrong.

The Supreme Court has been very clear on this, and it is nowhere close to what Grabski says.

“We conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.”  Garrity v. State of N.J., 385 U.S. 493, 500, 87 S. Ct. 616, 620, 17 L. Ed. 2d 562 (1967) (emphasis added).
In other words, although Grabski may wish it were so, police officers have the same constitutional rights as everyone else.
Other cases stating the same thing include, but are not limited to:
  • Hughes v. Whitmer, 714 F.2d 1407, 1435 (8th Cir. 1983) (“As the Supreme Court has so forcefully stated: ‘policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights. . . .'”) (internal citation omitted).
  • Greenwald v. Frank, 337 N.Y.S.2d 225, 231 (App. Div. 1972) (“That statement, like the Holmes dictum . . . that ‘petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman’, has been relegated to the dust heap of history. In the court said, ‘We conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.'”)(internal citations omitted).
  • Driebel v. City of Milwaukee, 298 F.3d 622 (7th Cir. 2002) (“We begin our analysis by stating the well-settled rule that men and women do not surrender their freedoms when joining the police force.”) (internal citations omitted)

Look, I understand that Grabski has a bias against police, he’s had some bad encounters with them.  However, putting out information that police officers are second class citizens is just wrong.

Michael Brown Autopsy

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The NY Times reported that a private autopsy on Michael Brown shows that he was shot six times from the front, not the back as would be the case if he were running away.Brown autopsy  This tends to support the police version of what happened at the scene.  There was information that Brown turned and was charging Officer Wilson.  If Brown had just tried to take Wilson’s gun and it had discharged (intentionally or not) in the squadcar, then ran, and then turned to re-engage the officer, then any police officer would be expected to fire on the person.

It is like this–the person just tried to take the officer’s gun, and about 90% of the time if they get control of the gun they kill the officer.  Now, unarmed, they are attacking a second time?  They are trying to kill you, so you use deadly force to stop them.

Here it appears that the arm was facing the officer, not in an upright “surrender” position.  It would be consistent with the actions of a strong arm robber contacted by the police, at least in my experience.  I never arrested a strong arm robber who did not resist, it was always a fight to arrest them.

The forensic pathologist stated that it appeared that the two head shots were the last two fired, which would also be consistent with police training.  If Wilson fired four rounds, attempting to hit Brown in the chest without apparent effect, then you fire at the head.  It’s called a “failure drill” as in the first shots failed to stop the suspect.

There will be a total of three autopsies performed.  The local one performed by St. Louis County, this private one, and one in the future to be performed by a federal medical examiner.

Although it is beginning to look like the shooting was justified, I am still opposed to the overly militant response of the police.

The Military Occupation of Ferguson, Missouri

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Police Shooting Missouri SWAT-14 SWAT-13 SWAT-12 APTOPIX Police Shooting Missouri SWAT-10 Police officers keep watch while demonstrators protest the death of black teenager Michael Brown in Ferguson Riot police clear a street with smoke bombs while clashing with demonstrators in Ferguson, Missouri

Police Force? Or Occupying Army?

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SWAT-1

SWAT-2

SWAT-3

SWAT-7 SWAT-6 SWAT-5 SWAT-4

Abilene Police do not Understand Lawful Detention or Failure to Identify

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This is a contact between officers of the Abilene Police Department and an individual who identifies himself as Bobby Ivester (at about 0:25).  Ivester is openly carrying a rifle, allows the officers to inspect the weapon, but declines to produce identification when the officer requests it at about 1:30 in the video.  The second officer explains to Ivester that he is being detained.

The reason for the detention?  “Because we got a call on you” (at 2:40).  Unfortunately, both Ivester and the officers do not understand Texas law.

Ivester is arguing that he is not being lawfully detained.  I disagree.  I believe that he is being lawfully detained (initially, at least).  The 911 call about a man with a gun, combined with the officers finding Ivester with an openly carried rifle, provides a reasonable suspicion that Ivester may be committing the offense of disorderly conduct.  See Tex. Pen. Code § 42.01(a)(8), displays a firearm in a public place in a manner calculated to alarm.  Please note that I did not state that Ivester was committing that violation, clearly he was not, but that doesn’t negate the fact that the officers had reasonable suspicion to make the contact and detain Ivester.

Both Ivester and the officers are under the impression that if the police detain someone, that individual has to identify themselves to the officer.  That is simply incorrect.  Tex. Pen. Code § 38.02 is very clear, an offense is only committed if the detained person lies about who he is (or his date of birth or residence).  Refusing to provide identifying information is not an offense.

At about 5:20 in the video, the second officer grabs the camera and handcuffs Ivester.  At 6:55 in the video, an officer says that they don’t know what Ivester’s intent with the gun is.  That’s true.  It also doesn’t matter.  The officers are not allowed to presume that Ivester is a felon or otherwise unable to carry a rifle.  United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013) (Being a felon in possession of a firearm is not the default status).  The officers try this argument anyway, assuming that it is their “duty” to determine if Ivester has the right to carry the rifle.   Uh, guys–his right to carry is called the Second Amendment.

At this point, Ivester is being unlawfully detained.  The officers have already determined that Ivester was not committing the offense of disorderly conduct and are now just fishing for his identification to try and charge him with something else.  They have improperly extended the contact, see Kothe v. State, 152 S.W.3d 54, 64 (Tex. Crim. App. 2004) (“once the original purpose for the stop is exhausted, police may not unnecessarily detain [individuals] solely in hopes of finding evidence of some other crime”).

If you disagreed with what the officer’s did, you can contact them at:

  • Chief Stan Standridge, stan.standridge@abilenetx.com, 325-676-6600
  • Assistant Chief Mike Perry, mike.perry@abilenetx.com, 325-676-6600 (over Uniformed Services)
  • Officer George Spindler, apdpio@abilenetx.com, 325-437-4529 (Public Information Officer)
  • Facebook; webpage

Related posts:

H/T:  Jim Morriss

The Last of Three Abusive Bridgeport, CT Officers Indicted

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In 2011 following a chase, Bridgeport, Connecticut Police Officers tased and arrested Orlando Lopez-Soto.  The two officers initially involved, Elson Morales and Joseph Lawlor, repeatedly kicked Lopez after he was laying flat on the ground, compliant.  They pleaded guilty to federal charges of deprivation of rights under the color of law, a violation of 18 U.S.C. 242.  Each face up to a year in prison.

Clive Higgins did not take the deal and was indicted for the violation with bodily injury.  He faces up to ten years in prison and pleaded not guilty.  He has been placed on unpaid suspension by his department, which recently settled with Lopez for $198,000.  Lopez is currently in prison on a 5-year sentence on drug and gun charges.

What is interesting in this case is that Higgins is being represented by a federal public defender.  Why isn’t he being represented by a union attorney?  I can think of two likely reasons, first, that he was not a member, in which case he is an idiot.  Second, that the union cut him loose, not wanting to defend him, in which case they are spineless.  There are, of course, other possibilities, so there may be a good explanation, but that is just my read on the situation.

In any event, all three are pretty much toast, and rightfully so.  While I do not have a problem with force when it is justified, unjustified force must be identified and prosecuted.

Los Angeles Police Decide that Aerial Photos Violate Privacy…

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But only if it is their privacy, not yours.

Daniel Saulmon (Tom Zebra) was filming again, using his drone, at the LAPD Hollywood station.  The police didn’t like it.

What is hilarious is that the same expectation of privacy that they are claiming is the expectation that they state you, as a private citizen, do not have.

At 4:04 the first officer tried to tell Daniel that he could not fly his drone over police department property.  But these same officers want to be able to fly over other peoples’ property, observe what is below, and obtain search warrants based on those overflights.  That’s legal, according to the U.S. Supreme Court, see California v. Ciraolo, 476 U.S. 207 (1986) (mere fact that individual has taken measures to restrict some views of his activities does not preclude police officer’s observations from public vantage point where he has right to be and which renders activities clearly visible).

Later in the video, the sergeant tries to tell Daniel that he will be charged with trespass, even if he keeps the drone over the sidewalk.  Ludicrous.

In other words, what the police in LA want is to be able to look in your backyard, but where you can not look into theirs.

 

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