I just found this, he explains it very well for a layman.
One issue, where he talks about video recording police and cites § 21.15, Tex. Pen. Code, that’s not really valid. That section deals with improper photography for sexual gratification, in other words for those pervs who plant cameras in restrooms, etc. Second, that section was struck down as unconstitutional, see Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014); but see Prosecution of the Offense of Invasive Visual Recording, 2015 Tex. Sess. Law Serv. Ch. 955 (S.B. 1317) (Vernon’s) (new version of the law, narrowed, but unlikely to survive strict scrutiny).
Instead, base your filming of the police on the First Amendment and general case law.
In any event, this is a good explanation of the Fail to ID law in Texas.
Aug 23, 2015 @ 17:02:29
Section 38.02(a) Texas Penal Code requires that a person who has been lawfully arrested provide name and residence address or date of birth to the peace officer upon request. There is no requirement to provide a physical identity document (e.g. Driver’s License). There is no requirement to ID under other circumstances despite many police officers who may believe otherwise. There was a bill in the Legislature this year which would have added the situations in subsection (b) to subsection (a). It was not reported out of committee. A bill to restrict photographing or video recording police died when even the police opposed it.
http://codes.lp.findlaw.com/txstatutes/PE/8/38/38.02
Aug 23, 2015 @ 23:39:21
Yup, been talking about 38.02 for several years, and we discussed Villalba’s bill too.
Aug 25, 2015 @ 15:33:47
Not that it’s relevant to this post. But what are your thoughts on all these videos where people go to a police department and record the exterior from a public sidewalk? Personally I find these sorts of videos valueless from the standpoint of 1st amendment right for information dissemination.
It also opens up the possibility that a cop can say, “I think you’re casing our police department to try to steal evidence.” This at the very minimum satisfies a rationalization for RAS at face level.
Also if police can rationalize their RAS then a demand to ID is obligatory in many states. People who go to a PD thinking they will refuse a demand to ID if police devise this type of strategy may be in for a rude awakening.
Aug 25, 2015 @ 19:55:22
The police need more than a mere hunch, which is all they have in your scenario. They have to have information that they can articulate that would make them believe that criminal activity may be afoot. Filming the exterior of a police station does not come close to meeting that standard.
That’s no different than confronting an open carry advocate, and saying, “I don’t know you, you may be a felon.” Both are mere supposition without more.
In most states, there is not a requirement to ID to police. There is never a requirement to ID, absent reasonable suspicion.
Aug 25, 2015 @ 22:28:55
But wasn’t Terry v. Ohio built on similar circumstances? The officer in that case saw people pacing around a certain business(casing) and followed them. Arresting them not for the pacing itself but for finding concealed guns on Terry.
So I put to you this. What prevents an officer for giving the RAS of casing(no matter how flimsy the argument may be) and demanding ID from a photographer? It seems to me not much, the only way the officer is going to face some sort of discipline is if he arrested the individual and the arrested brought a 1984 suit. Even then, would tortfeasor be at risk? A judge may well entertain such an RAS.
Aug 26, 2015 @ 15:50:44
No, in Terry, the officer had a lot more. Wearing coats in hot weather. Repeatedly walking to the store window and peeking into the store. They did this 24 times. Each time they would huddle up and talk about it, then one of them would walk over again, and peek into the jewelry store. There’s more, but even that amount is much more than an officer would have in a photography case.
Aug 27, 2015 @ 09:03:39
Just because you can articulate a suspicion does not make it reasonable. The cop could articulate that a suspect is an illegal immigrant from the crab nebula, but that isn’t enough to make an investigative stop.
Aug 26, 2015 @ 16:14:32
I do hope you’re right and that no judge ever entertains such a flimsy explanation as RAS from a cop. I’ve seen plenty of videos from cops trying to rationalize their detainment of people recording police departments this way though.
Aug 26, 2015 @ 21:32:15
It depends on the cops and on the judge.
Aug 27, 2015 @ 09:07:26
§ 21.15 may apply, depending on a reasonable expectation of privacy.
If — as many people mistaken about photography laws insist — there is a reasonable expectation of privacy when standing on a public sidewalk, or when a public official acts in his official capacity, then breaching that privacy could invoke any number of laws aimed at peeping toms.
You know and I know that unless a court gets things VERY badly wrong and establishes a new precedent, there is no such reasonable expectation, but some people truly don’t know.
Of course, if there is such a reasonable expectation, then simply looking at someone using your eyes would be enough for a peeping tom conviction. We’d all have to wear blindfolds everywhere we went to avoid becoming sex offenders.
Aug 27, 2015 @ 10:48:40
I’m not talking about expectation of privacy. What I’m talking about is Terry V. Ohio basically allows “hunch” detainment. I have yet to see a police officer fired, prosecuted or punished in any meaningful way for detaining someone even if their RAS was really flimsy.
Aug 28, 2015 @ 00:25:09
No, what you’re talking about is guessing. Terry is more about an officer drawing a reasonable conclusion from a number of factors.
Nothing you’ve said lists any sort of facts that would lead one to a reasonable conclusion. That isn’t to say a cop wouldn’t try it, but they would be wrong, and also an asshole.
Aug 28, 2015 @ 08:37:34
There are supposed to be checks and balances in play, but far too often judges regard police as officers of the court — allies — rather than the wholly separate (and suspect) individuals they truly are and are supposed to be.
Just because something isn’t prosecuted though, doesn’t make it legal under the law.