And here we go again. A stop for openly carrying a long arm in Buda, Texas, and Officer Fernandez tells the individual that he is being detained based on a number of calls, and that the individual has to identify himself or he will be arrested for Failure to Identify.
The thing is, the citizen knows the law better than the officer.
Then some fat, plainclothes deputy constable shows up and tells him that if an officer asks for identification, the citizen has to produce identification. Of course, this is not correct in Texas. If detained, you do not have to produce identification, you just can’t lie about your name, date of birth, or address. Tex. Pen. Code Ann. § 38.02.
After getting out of the car, Officer Fernandez is no longer talking about arresting the citizen for failure to ID, but starts saying that if they keep getting calls, it is alarming the public and disorderly conduct. Again, as we have noted before, it is not. You have to have more than just phone calls, it has to be carried in a manner calculated to alarm.
Although the State maintains the fact that someone called the police is sufficient to show the gun was displayed in a way calculated to cause alarm, we cannot agree. The mere fact that the police were called is not evidence of the way in which the gun was displayed. Nor is the mere fact that a person saw a gun “displayed” on a balcony evidence that the balcony was in a public place. Without some evidence describing the balcony or the manner in which the gun was displayed, we cannot conclude there were any facts or circumstances showing the gun was displayed in a public place in a manner calculated to alarm.
Grieve v. State, No. 05-07-00156-CR, No. 05-07-00157-CR, 2008 Tex. App. LEXIS 3756, at *9 (Tex. App.–Dallas 2008, no pet.) (not designated for publication). The above link has the other cases on this issue.
The Buda PD phone number is 512-312-1001, the Chief of Police is Bo Kidd.
Jul 16, 2013 @ 01:07:40
If it is the position of the department that no law can grant a citizen authorization to open carry, the police themselves would be in trouble. =P
Jul 16, 2013 @ 12:27:04
4:04 Fatman says :When you sign that “waiver” (getting your driver’s license) you have to show the cops your Drivers License upon request, any time, any where.
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Wow, so the DL really HAS become a domestic passport. Run for the hills!
Jul 16, 2013 @ 14:20:42
Buda certainly doesn’t have money to pay out over a rights violation.
A few times I have heard of cops demanding ID from all occupants in a vehicle, not just the driver. Clearly not a lawful demand in this example either. Cops always say, “I can arrest you for failure to ID”. I would like to watch a video clip of a lawyer in an actual stop in Texas that fails to ID. Rather than the bantering drivel back and forth, tell the cop what is at stake for him legally if he initiates a false arrest.
Jul 16, 2013 @ 15:04:23
Unfortunately, in Texas the city is required to indemnify the officer, so the officer wouldn’t be on the hook for a judgment.
Jul 16, 2013 @ 16:34:07
Even if it’s willful? I think these cops know the law, but it’s fun to see if they can scare you into providing ID, and it goes too far. Now you say it won’t matter even if they know it is an unlawful arrest?
Jul 16, 2013 @ 16:39:35
Pretty much. But that is the case in most jurisdictions.
Jul 16, 2013 @ 19:43:00
Being stupid is not a violation of the law. However, the problem is with majority citizens that allow such gross miscarriage of the law by the agents, that they allow via their elected representatives, to a enforce laws. This is the Major Problem today the majority of people that are too busy to really care about what is occurring in their name in their neighborhood.
The only way that I can see to remedy the situation is to make us all hurt in the wallet caused by those that sue and win the suits against the government for denying them of their civil rights. Only after there is a major transfer of money from the offender, the government, to the individuals whose civil rights have been violated will there be any caring by the vast majority of citizens. Because once the government starts paying for their errors in administrating justice, the need for more revenue will become very apparent. The normal way to cover this short fall in revenue is to raise the taxes of citizens.
No citizen wishes to have pay more in taxes, unless you happen to live in California. Once the taxes go up, the rightfully outraged citizens will ask their elected representatives as to why the need for more of their money? When they find out that the reason increase in taxes for civil rights violations, the days of the Badged Uniformed Fascist Thugs will be numbered.
Unfortunately, it appears in this day and age that all the matters is the money. Accordingly, they only way, illogical as it may be, is for everyone to hurt themselves in the wallet so that we all can truly enjoy our guaranteed freedom.
Talk about being stupid,
Jul 16, 2013 @ 19:52:10
Very few police officers are on the left side of the political spectrum, therefore “fascist” is not an appropriate descriptor.
Remember, Mussolini was a socialist, a labor leader, and a journalist before he was Il Duce and the head fascist.
Jul 16, 2013 @ 19:36:11
There seems to be no end of the duplicity and stupidity of police. If they aren’t outright lying, they are spectacularly ignorant of the law. Don’t any of them ever read anything having to do with their own profession? Or do they prefer glorying in their own ignorance?
Jul 16, 2013 @ 19:48:52
It is not really the officer’s fault. Management and the public do not want to fund the training necessary to bring the officers up to an acceptable standard. Officers get a limited amount of criminal law training in the academy, and extremely limited in-service training.
The same on training supervisors. Some states, like Texas require some training for new supervisors, but it is nowhere near adequate.
Jul 16, 2013 @ 20:53:29
First thing is check out what a Fascist really is. The true Fascist were the NAZIS and we all know how far to the right there were! They make Tea Partyers seem like a Sunday School teacher for the younger kids.
It seems that we agree what the cause of the problem is: Money. You state that you are an ex LEO and now a law student, why? You were probably a good LEO. But you got sick and tried of the BS, the lack of money, the hours and just generaly knew that you could do better as an individual. So you left, because you knew in your heart that you could do better. But your heart is still in the what I believe to be the right place. Like me, you care too.
However, I have great deal of contempt for them and the government in general. Wheile, you have some passion and understanding. My reasons go back to my childhold and military experiences. Your reasons are yours.
Most cops start out well, however because of all the reasons that I named above, they slowly turn into the Badged Uniformed Fascist Thug, that I continuously call them, that wish to curry favor from those in power and they forget why the became LEO’s to begin with. Most have regular intelligence, a couple more and regrettably some with a whole lot less. They get into a power trip with the badge and the gun with the fear that most people have for those signs of power. They do not take the time to learn, they just go to a academy, get the basics and the learning stops there.
You are right, it is the system and the system is a direct result of the citizens that allow this demise of Law Enforcement to occur. The citizens of this country are the culprits because they have allow this to happen.
Jul 17, 2013 @ 08:36:09
Actually, the Nazis were a socialist party that had income redistribution as one of their goals. Again, a leftist position.
”We are socialists, we are enemies of today’s capitalistic economic system for the exploitation of the economically weak, with its unfair salaries, with its unseemly evaluation of a human being according to wealth and property instead of responsibility and performance, and we are determined to destroy this system under all conditions.”
Adolf Hitler, Speech, May 1, 1927. See John Toland, Adolf Hitler 224-25 (1992).
The Tea Baggers and the Nazis are on opposite ends of the political spectrum, the Tea Baggers on the far right and extremely capitalist, and the Nazis on the far left and socialist. The bogus right wing claim comes from the nationalistic aspect of their party, but their politics were all left wing. The state was responsible for creating jobs. They wanted to increase old age pensions. They wanted the state to take over industry. To seize all non-labor income, such as dividends and investment income. They used Keynesian economic theories. All of these are socialist, leftest positions.
I didn’t get tired of the job, I did a full 20 years. Most officers want to do a good job. It is the responsibility of management to train them to do that job. The militarization of the police and the increased use of SWAT has also created problems. All of this can be fixed.
Jul 17, 2013 @ 10:48:13
It is the officer’s fault as much as management. I don’t have any training in the law, yet I’m able to determine what my rights are as a citizen. If I were a cop, I’d make it my business to understand the laws of my state. They are supposed professionals, yet ordinary citizens embarrass them daily because they know the law better than those who administer it. No, cops don’t get a pass. They can lie and arrest anyone for anything they want, legal or not, and they are rarely, if ever, held responsible. Meanwhile, the illegally arrested citizen has to deal with the embarrassment of arrest, the possibility of getting his ass kicked in custody, either by cops or other prisoners, bail, court, fines, sentencing, etc… all because some cop got his nose out of joint and wants to stick it to someone. And he can. It’s sickening. And as long as qualified immunity exists, it won’t stop. There’s no downside for the cop.
Jul 17, 2013 @ 08:38:27
I think it’s harder for leos to figure out what a well-founded RAS is than trying to figure out probable cause. In order to lawfully detain someone, he needs the well-founded RAS. What’s that? Well, first there is the suspicion. Like these leos did, they are always good at that part. “you are acting suspiciously”. Now, articulate it. Why was he acting suspiciously. Because he was carrying a rifle on his shoulder, walking down the street in broad daylight, was this “investigation” reasonable, maybe, but now for the well-founded. Is your articulated suspicion based on a statute, county or municipal ordinance. Well, the reason I arrested him was because he didn’t give me ID. Yes, I understand that but in order for that statute to kick in, you first have to have a well-founded RAS about something else.
So, is your articulated suspicion based on the fact that the detained person is or could be violating a state statute and what is the state, county or municipal law? Don’t know, then you don’t have a well-founded RAS. .
Jul 17, 2013 @ 08:59:33
Well stated.
Jul 17, 2013 @ 09:55:47
Pardon me for being a layperson. I teach high school physics and I am an engineer by training; hence I am not an attorney. What is a RAS? Is it shorthand for “reasonable articulated suspicion?”
Jul 17, 2013 @ 10:06:52
Yes, actually “reasonable articulable suspicion”, but the same thing as what you are thinking of.