Pearland Texas and Brazoria County Apparently Needs Training on Both Failure to ID and Open Carry

1 Comment

On April 29, 2015, Brazoria County, Texas Deputy Constable Carlos Bustos* approaches an individual who is apparently open carrying a rifle over his back. The individual asked if he was being detained and was told that he was not, but when he attempted to leave was stopped by the deputy. He attempts to leave again and the deputy wants to know if the rifle is unloaded.

Uh, deputy? There is no law that states that the rifle has to be unloaded. And if challenged on it, you can’t turn it around and require that the citizen prove that there is a law which allows him to carry a loaded rifle. You see, in this country, to create a crime, the legislature must explicitly state what the violation is, to notify the public what the law is.

Pearland Police Officer Brown† took the same approach that the weapon had to be unloaded, and upped the ante by informing the citizen that he had to identify himself or he would be arrested for Failure to Identify (at 3:00). Again, this is not correct. A person is under no obligation under Texas law to identify themselves unless they have been arrested. This is clear, well established law.

Then, at about 14:00 in the video, Deputy Bustos claims that the citizen doesn’t have any respect for the law, because he won’t answer the officers questions or comply with their unlawful demands. He really doesn’t understand that to detain citizens, he has to have reasonable suspicion of a real crime, not something that he made up. And at 18:45, Deputy Bustos suggests that the citizen take it up with his legislators, because they “wrote those laws.” Except that the citizen is correct and there is no such law in Texas. Finally, at the very end of the video, Deputy Bustos apologized for his mistake.

*Deputy Bustos appears to be from Precinct 2. Contact information is available at the link.

†The Pearland Police Department contact information is here.

Memorial Day, 2015

5 Comments

Failure to Identify Properly Applied, and Another Sovereign Argument Down the Tubes

11 Comments

A couple of weeks ago, Scott Richardson was stopped by the Addison Police Department for speeding. We pick up when the officer is asking Richardson for his driver’s license and proof of insurance. Richardson then makes a production of the stop.

Richardson apparently believes that the officer doesn’t have the right to stop him, and that speeding is not a crime in Texas. While it is true that you cannot be arrested for speeding unless you refuse to sign the citation, it is not correct that you do not have to identify yourself to the officer who has stopped you for speeding.

Then Richardson starts on the internet sovereign BS that he’s not “driving” because he is not out for a “commercial” purpose. Yeah, that didn’t work either.

So Richardson gets his window busted out and arrested for failure to display driver’s license.

That’s how it is supposed to work.

Texas Rep. Jason Villalba (Dist. 114-R) introduces the Kory Watkins Bill

8 Comments

OK, so it isn’t actually named after Kory, but it might as well be.  Second-term state representative Jason Villalba has introduced Texas House Bill 2918 to basically take away the public’s right to film the police.  The bill would criminalize filming within 25 feet of a police officer unless you were part of the “media,” and if armed, one could be no closer than 100 feet.

This is basically a reaction to the confrontational style of Kory, who has a tendency to get very close to the officers while being loud and armed with either a rifle or a black powder revolver.  So Villalba decided that a new law was needed, despite the fact that there is already a perfectly valid law on the book that deals with the issue.  When questioned on that, Villalba said that many times officers are too busy to tell those filming to step back or to put up yellow crime scene tape.

Uh, Jason?  If they are too busy to tell someone to move back, wouldn’t they be too busy to make an additional arrest?  Because the purpose of the law is to criminalize the gathering of information that can be used to exercise the right to free speech.  The fact that a law is on the books doesn’t magically make people move back, nor does it encourage the police to welcome citizen photographers.  On the contrary, it encourages police officers to suppress free speech.

Villalba practices high-dollar law for a big box law firm, Haynes and Boone, where he is a partner.  The base salary for first year associates is reported to be $160,000 per year, a partner will make much more than that, so it is fair to say that Villalba is not your average Texan.  He’s also arrogant, telling opponents of his censorship bill that he will “destroy” them on Facebook (since deleted) and to vote him “out of office” on Twiter (also since deleted).

This isn’t Villalba’s first incursion into the territory of the First Amendment.  In December, he called for a state constitutional amendment that would protect anti-homosexual bigots from government action.  Only after pretty much everyone objected to it, including most business leaders.

Like many of the efforts of wealthy legislators, this current bill is designed to protect the status quo, not to benefit the public.  Besides that, it is blatantly unconstitutional, creating a special class of citizens who have First Amendment rights while denying it to others.

Buehler v. City of Austin, Where’s the Uproar & Controversy?

9 Comments

Buehler v. City of Austin, A-13-CV-1100-ML, 2015 U.S. Dist. Lexis 20878 (W.D. Tex. Feb. 20, 2015), was recently decided, and subsequently reported by PhotographyIsNotACrime.com (PINAC).  The decision has some good stuff in it, and some that isn’t so good.  The PINAC article was written by Andrew Meyer, who has a J.D. degree from Florida International, although I don’t know if he’s been admitted to the bar yet.  In any event, I was very surprised to see the errors I was seeing in the article.

First, it was not heard in a state court, which the headline infers it was.  It was decided in federal court.  Second, the case is not heading to the U.S. Supreme Court, at least not yet.  It will go to the Fifth Circuit Court first, which will likely affirm the trial court’s decision.  Then, if the Fifth Circuit does affirm, Buehler will have to request that SCOTUS grant cert., or agree to hear the case.  That, even with the minor split, is a long shot.*

Second, nothing in the decision was legally controversial.  The Fifth Circuit has a different way of viewing probable cause and grand juries than the other circuits.  It’s not that controversial, it just indicates a circuit split.  It’s also not a “legal technicality.”

Third, and this is the one that is most surprising, is that the federal judge said in his order that filming the police was a clearly established right.  Id., at *21-22.  This had not (at least to my knowledge) been stated in the Fifth Circuit yet, although it was clearly established in most of the other circuits.  That issue wasn’t addressed at all in the article.

This article is pure activism, and nowhere close to neutral and unbiased journalism.  It’s one of the reasons that I left PINAC–I love Carlos Miller and what he has and for the most part, continues to do.  It’s needed and he has done an outstanding job, but he needs to exert some editorial control over his staff if he wants PINAC to be respected for its journalism.  If he wants to go the activist route, that’s fine too, but that needs to be out in the open, not hidden.

Finally, although I would like Buehler to succeed, I’m not real keen on his methods.  He’s too confrontational, and yelling at the officers while filming is asking for trouble.  Jeff Grey has as much success (or more) as Buehler and does not unnecessarily agitate the officers.

 

*SCOTUS receives about 10,000 requests for cert. a year and only grants about 75-80 (or 0.8%).  I’m sorry, but less than a one percent shot at SCOTUS does not meet my definition of “is likely headed to the U.S. Supreme Court” by any stretch of the imagination.

Yet Another Houston Officer (Badge 7428) who doesn’t Understand Failure to ID

71 Comments

And here we go again.

This starts off bad from the start.  The officer pulls over and tells our open carrying friend* that “you’re not under arrest, you’re not even being detained.”  OK, so far so good.  So the open carrying guy starts to walk away.  That parts real simple, if a person is not being detained, he doesn’t have to stand and talk to you.

The officer then pulls in front of our guy and comes out of the car with his patrol rifle.  That’s over the top.  Walking away from a consensual stop is now grounds to deploy your rifle?  Then, the officer tells him he can try “this constitutional crap” but that he’s f***ing up right now. (0:45).  Then he asks for ID and when the citizen says he doesn’t have it, the officer wants to know how he is supposed to know if the citizen is a felon or not.

Uh, officer?  Do you have reasonable suspicion that he is a felon?  And how did you get this reasonable suspicion?  Was the kilt some prison gang tartan?  He must be afraid of something, because at 1:15 he tells his back up to “step it up,” which is police slang for increase to lights and siren, get here quick, I need help.  Again, really?  What exactly has he done to make you fear him?

“All I’m asking for is some ID while you’re walking down my street with a gun strapped to your hip.”  Ah, officer?  It’s not your street.  It belongs to the public that you work for, not you.  Then the officer tells him to put the camera on the hood of the squad car, and the officer does good.  He tells him that he can point it in whichever direction he wants and can continue to record.

Of course, the black female corporal then immediately points the camera away from the citizen and the officers. (2:30).  I wonder if anyone has told her about the Dallas officers who were indicted for felony evidence tampering for doing the same thing with their dash cams?   Thankfully the first officer has enough sense to turn it back around as soon as he noticed, a few seconds later.

At 4:14, the officer screws up again though, telling the citizen that he is required to provide ID to the officer.  That’s just not correct, and hasn’t been correct since Brown v. Texas, 443 U.S. 47 (1979), and it is certainly not true under current Texas law, which has clearly established that a person does not commit an offense by refusing to identify himself while being detained.

At 10:52, the citizen asks why he is being detained, and the officer replies that he stopped him for walking down the street with a gun on his hip.  Again, this is not a violation.

Being a felon in possession of a firearm is not the default status.  More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.

United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013).

See also United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993).

At about 11:30, the officer calls the Harris County District Attorney’s Office† and this discussion gets real interesting.  First, the officer realizes that his reasonable suspicion to stop is thin to non-existent and says so.  Second, you can hear the female DA in the background, and she isn’t jumping up and down to throw this guy in jail, because she’s not hearing anything that remotely sounds close to being probable cause.  At one point, while the officer is on hold, he asks the citizen if he understands what the problem is–but the problem is the officer, not the citizen.  When the DA comes back on the line, she tells him that the officer does not have a charge, any charge, that the citizen can be arrested for.

What is amazing is that even after the DA said there is no Failure to ID charge, the officer is still telling the citizen that he has to have ID.  No, officer, he does not have to have ID.  That’s why you couldn’t get a control number, because the citizen did not have to have ID.

The officer’s badge number was 7428.

*OK, first, any guy who wears a kilt with a t-shirt and a straw hat while carrying an AR-15 in Texas is alright in my book, even if I remain skeptical of the wisdom of open-carry.

†To keep officers from making bad arrests, the Harris County DA requires that the officers get a control number before the arrest.  Without a control number, the jail will not accept a prisoner.

Follow-up to Purcell v. Hollenbeck lawsuit

8 Comments

In 2013, I commented on a lawsuit that arose when Sebastian County Sheriff’s Deputy Brian Fuller confronted Braden Purcell over Purcell’s filming a SWAT raid.  Fuller apparently did not like idea that the public had a right to film and confronted Purcell, demanding both identification and the iPhone used to film the raid.  Then, after the prosecutor dropped charges, Fuller “lost” the phone and the sheriff’s office refused to pay for it.*

The problems began to arise in the discovery phase of the case.  Fuller claimed that Purcell was aggressive, which Purcell denied.  Lavaca Police Officer Dale Teague said that Purcell “tripped” while Deputy Matthew Walter said that officers took Purcell to the ground.  Fuller also claimed that Purcell had been seen leaving the drug house earlier, a fact which Fuller did not put in his initial report, the arrest affidavit on Purcell, or mention to the Internal Affairs investigator.  Fuller also claimed that Purcell’s arrest had nothing to do with his filming, a fact which was contradicted by another deputy.  Deputy Michael Grosskreuz stated that Fuller told him that Purcell was arrested for filming the raid.

A week before it was to go to trial,† Fuller offered to settle if there were a confidentiality clause.  Purcell refused.  Fuller ended up settling for $40,000 in damages to Purcell, plus attorney’s fees and costs.‡

Now Sebastian County has a policy on photography and officers.  It prohibits what Fuller was attempting to do.  Imagine that…

*Until they were sued, at which point they were more than willing to pay, but it was too late.

†It was set for trial July 29, 2014.  The judgment was paid sometime prior to September 8, 2014.

‡Attorney fees added about $50,000, for $90,000 total.

Older Entries

Turtle Talk

Indigenous Law and Policy Center Blog Michigan State University College of Law

take that, goliath.

just another day sitting next to the defendant

Hercules and the umpire.

THE ROLE OF THE FEDERAL TRIAL JUDGE

Windypundit

Classical liberalism, criminal laws, the war on drugs, economics, free speech, and technology.

JONATHAN TURLEY

Res ipsa loquitur ("The thing itself speaks")

UNWASHED ADVOCATE

Dispatches from Bat Country, where proper medication is optional.

Chasing Truth. Catching Hell.

A Public Defender's Blog, @normdeguerreesq

The Legal Satyricon

Occasionally irreverent thoughts on law, liberty, tech, and politics

Legal Writing Prof Blog

General ramblings of a former police officer turned lawyer

LawProse Blog

General ramblings of a former police officer turned lawyer

How Appealing

General ramblings of a former police officer turned lawyer

General ramblings of a former police officer turned lawyer

SCOTUSblog

General ramblings of a former police officer turned lawyer

Real Lawyers Have Blogs

General ramblings of a former police officer turned lawyer

The Droid Lawyer™

Tips, Tricks, and Techniques for Lawyers using Android mobile devices

Say What?! Classic Courtroom Humor from Judge Jerry Buchmeyer

General ramblings of a former police officer turned lawyer

Judge Bonnie Sudderth

Law Blog on the Texas Rules of Evidence

New York Personal Injury Law Blog

General ramblings of a former police officer turned lawyer

Overlawyered

Chronicling the high cost of our legal system

The Federal Criminal Appeals Blog

General ramblings of a former police officer turned lawyer

Defending People.

General ramblings of a former police officer turned lawyer

Preaching to the choir

General ramblings of a former police officer turned lawyer

Crime and Consequences Blog

General ramblings of a former police officer turned lawyer

Simple Justice

General ramblings of a former police officer turned lawyer

Koehler Law » KOEHLER LAW BLOG

General ramblings of a former police officer turned lawyer

The BLT: The Blog of Legal Times

General ramblings of a former police officer turned lawyer

The Volokh Conspiracy

General ramblings of a former police officer turned lawyer

Trial Theory

A South Carolina Criminal Defense Blog

Appealingly Brief!

Ruminations (brief and to the point) on the law and lawyering, by Daniel Klau.

Popehat

A Group Complaint about Law, Liberty, and Leisure

ExCop-Lawyer

General ramblings of a former police officer turned lawyer

Follow

Get every new post delivered to your Inbox.

Join 115 other followers