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.