Oh, Addison, You had Done so Well, and Now This Shows that You Still have Work to do


“I don’t know that you are doing something to plot something against the police department…” Officer Bagley, #179.

That pretty much says it all. The officer does not know if the photographer is doing something. Uh, officer? That means you do not have reasonable suspicion, much less probable cause.*

Then the officer demands identification and Brett Sanders refuses, fully aware that § 38.02 of the Penal Code only requires that he identify himself if he is under arrest. There is not an offense if he is merely detained. And then the officer takes Sanders to the ground. Without more info, I’m hesitant to say more, but it would appear that the officer was completely out of line. I do know that the officer safety comments about the cell phone are bull.

As a side note, it has been my experience in over 20 years of law enforcement that officers who shave their heads tend to be overly aggressive prima donnas. While I could be wrong, take a look at the video. Just saying.

*However, Sanders is wearing a perfectly legal cap and ball revolver which is a replica of a pre-1899 weapon. The problem is that this can give the officer reasonable suspicion that Sanders is committing the offense of Unlawfully Carrying a Weapon. Sanders is not, but until the officer can verify that the revolver is a pre-1899 replica, it could have very well been a cartridge revolver which would be a crime. The issue is that gives the officer an out, even if he did not articulate it at the time. The law will bend over backwards for idiots, so long as they’re police officers, and will give him credit for actual reasonable suspicion even if the idiot officer didn’t know it at the time.

However, this does not allow the officer to identify Sanders, and does not allow him to search Sanders for identification.

For more information, see the PINAC article.

Catching up with the Battousai


The Battousai does a very good job in filming police. First, he does not talk too much, and second, he knows the law.

Here are some of his latest clips.

In Cedar Park, a young officer apparently did not like being filmed. Based on his actions, he was about to issue a parking citation, but the lieutenant put an end to it.

In Grand Prairie, one officer contacts him and handles it properly, but talks to him and tries to convince him to identify himself. There is nothing wrong with that, especially since the officer specifically states that he does not have to identify himself.

Round Rock, the first place we saw the Battousai, handles it properly this time.

However, in Dallas, police officers tell him he cannot be on the public right of way adjacent to a dedicated city street. Threatening him with trespass? Really?

And then you have Austin PD. Although they did not “arrest” him, it is fairly clear that they violated his rights and that they did not understand the limitations on identification under 38.02, Tex. Penal Code.

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


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


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


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


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?


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.

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