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

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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?

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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

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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

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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.

Pasco Police Officer Ryan Flanagan Has a History of Excessive Force Against Hispanics

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In 2009, a 30-year old Hispanic woman, Maria Davila-Marquez was driving her vehicle in Pasco, Washington.  Police officers in the area were looking for a teenaged Hispanic girl who was creating a disturbance.  Officer Ryan Flanagan and officer Zachary Fairley saw Davila and stopped her, even though she was about twice the age of the teenager they were really looking for.  Davila couldn’t speak English very well and neither officer could speak Spanish.  So the officers handcuffed her, slammed her against the car hood, and held her there until she received second-degree burns from the engine heat, and searched her even though department policy required them to call a female officer to do that.

Although Davila had requested an interpreter, the officers refused to call one.  Then the complainant showed up and said that Davila was not the teenager (duh), so the officers charged her with interfering with public duties.  So Davila sued the officers, the chief, and the city.  She wasn’t able to show a pattern or policy of misconduct, so the court dismissed with prejudice the case against the chief and the city, see Davila-Marquez v. City of Pasco, No. CV-12-5059-LRS, 2103 WL 1136658 (E.D. Wash. Mar. 18, 2013).  The case against the officers remained, however and rather than go to trial, the city settled for $100,000.

In an article at the time, Pasco City Manager Gary Crutchfield said that although Davila did not meet the description of a teenager, the officers erred on the side of inclusion when they arrested her.  Crutchfield is lucky that Pasco had already settled.  In the United States, we don’t err on the side of inclusion when arresting someone.  We either have probable cause, or we don’t.

AS TO THE CURRENT INVESTIGATION:

This may also get more interesting.  Coroner Dan Blasdel is considering calling an inquest to make the determination on the shooting.  This isn’t used often, but the evidence would be put in front of a six-member jury, who would decide the issue.  Note that in Washington, the inquest does not determine culpability for the death.

“He (didn’t) comply with their commands” so we killed him, said Police Captain Ken Roske UPDATE 3

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A yet unidentified man who had been throwing rocks at cars was shot and killed by Pasco, Washington police on Tuesday, Feb. 9, 2015.

The man can be seen throwing a rock at officers at approximately 0:05 of the video, and then turning to run.  At least one officer shoots at him at that time, and the first gunshots appear to be justified.  A thrown rock can be deadly force,* and the brain can transmitted the order to shoot before it realizes that the threat is turning and fleeing.  The man runs across the street with his hands up, turns down a sidewalk, and then turns as if to surrender with his hands still up, in front of him, empty, and in plain view.

Pasco Police Captain Ken Roske says the officers fired after the man refused to listen to their commands.  This is the fourth fatal shooting by police in the last six months.  So far, all officers have been cleared, and based on the comments by Roske, these three officers will also be cleared.  Non-police witnesses said that the man was merely trying to get away.

I don’t see how this shooting is justifiable, although it is clear, in my opinion, that Roske believes that if police give commands to someone and they don’t obey, then it is perfectly fine for the police officers to then shoot that person.  That also seems to be the way that patrons of PoliceOne are looking at the matter.

This appears, to me, to be a straight up execution.  For not obeying police commands.

*Ask Goliath or any of the multitude of people stoned to death in the modern day Middle East.

UPDATE:

1.  Capt. Roske, in addition to being the police manager over Public Information and Administration, is also the local FOP President and has been for over 10 years.  This is only relevant because, although it is not clear in this case, Police Administration is normally where the Internal Affairs function is located.  I would hope that it is not the case here, since having the police supervisor over IA also be the local union president would sure appear to be a conflict of interest.

2.  Involved officers are Ryan Flanagan, Adam Wright, and Adrian Alaniz.  The victim is Antonio Zambrano-Montes.  Chief Bob Metzger did not take any questions at the under four minute press briefing.  He reiterated the statement that Zambrano did not follow commands, and that officers were forced to kill him because of the “threats” to the public.  In other words, move on, nothing to see here.

3.  Well, the smear the dead guy campaign has begun.  Apparently Zambrano fought with police over a year ago.  Of course that is relevant to the shooting, because at that time he tried to throw a “rocking chair” at one officer, and did in fact throw a “male box” [sic]† at the officers.  Since all police officers instantly know of prior bad behavior, the officers who shoot Zambrano must have known this.  Perhaps they were afraid that he would find a female box to throw next.

†Presumably a mail box.

Failure to ID after being Stopped for No Violation in Texas

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I saw this in November or December but did not have time to write on it at the time.  It appears to involve an individual named Collin Rector of Springtown, Texas.*  Springtown is on the border of Wise and Parker counties, just to the west and north of Fort Worth, on Texas 199 (the Jacksboro Highway of John Mayall & the Bluesbreakers fame).  Anyway, Collin and his two buddies got pulled over by an officer of the Weatherford Police Department for “driving slow” and the front seat passenger asks if that’s a violation.

The officer answers (at about 0:48) that it is not a violation, unless it is impeding traffic, which the officer then states that they were not doing.  Uh, officer, don’t you have to have reasonable suspicion to stop someone and detain them?†  So when the passenger starts to ask the question about this, the officer twists off and says that it is against the law to refuse to identify yourself to a police officer (at 0:58).  Uh, no, it’s not against the law if they are not under arrest.  Tex. Penal Code § 38.02.  At 2:01, the officer threatens to take the two to jail for Fail to ID, at which point the driver shows his driver’s license.  The passenger refuses to identify himself, as is his right, and the idiot officer pulls him out of the car.

Then a female officer gets Rector’s name, and runs him for warrants, and officer idiot searches and obtains the front passenger’s identification.  The passenger continues to quiz the officer for the grounds that he is required to identify, and the officer continues to basically say because the law says so.  Then the officer tells the lad to go back and study what the law says because the officer is sure that the kid is wrong and he is right.  Nice, except for the fact that is not what the law says, and the passenger was stating it correctly.

Of course, it doesn’t help that Rector and the driver pulled the three forms of ID bullshit.  That’s sovereign citizen BS, and is not correct.  Most departments do have a requirement that officers identify themselves, but that’s policy, not law.

Weatherford PD is not accredited by CALEA.  You can contact their Chief, Mike Manning, at police@weatherfordtx.gov or at 817-598-4310 or Captain David Smith, at dsmith@weatherfordtx.gov or 817-598-4322.

*That is based on the fact that the YouTube account belongs to Collin Rector and the fact that the back seat passenger identifies himself by that name.

†You should note that an officer does not have to articulate his reasonable suspicion to the people he stopped (although that is normally best), and that driving slow is often an indicator of driving while intoxicated.  Even so, that would not allow the officer to demand ID from the passengers.

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