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.

Finally, Officer Safety is Put in its Proper Place in a Police Magazine

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In the January 2015 edition of Law and Order, a police management magazine, there is an article that not only the management should read, but that should be passed on to every officer.

The article, No “Officer Safety” Exception to the Constitution, Charles Huth, Jack Colwell, and Randy Means, Law and Order, Jan. 2015, is very clear that officer safety has gone too far.  They state:

“A number of law enforcement agencies are currently under fire for their patterns and practices of “stop and frisk.” This is only the present manifestation of what has been for decades a national epidemic of illegal police practices rationalized by the mantra “officer safety.” Frisks are not supposed to be the rule in Terry-type stops; the rule would be no frisk. The same is true for handcuffing subjects and placing them in the back of police cars.” Id.

Guys, this isn’t just me, an old, worn out street cop saying this by myself, these are well-respected leaders in the profession.  Huth is the past President of the National Law Enforcement Training Center* and a Captain with the Kansas City, Missouri Police Department.  After the Eric Garner death, Huth was on CBS News showing the difference between an arm-bar chokehold and the much safer lateral vascular neck restraint (LVNR).  Colwell retired from the KCMOPD after 29 years and is the co-author of Unleashing the Power of Unconditional Respect with Huth, a program for increasing officer connection with the community and decreasing confrontations.  Finally, Means is a partner at The Thomas & Means Law Firm, and has a long history as a police legal advisor, and risk management at the IACP.

The article is outstanding, pointing out that there is no officer safety exception in the U.S. Constitution.

“So, where does one find the officer safety exception to the Constitution? Generally speaking, it doesn’t exist. Generally, the rights of the people trump the rights of an officer to be guaranteed a safe outcome in dangerous situations.” Id. (emphasis added).

I don’t know how much clearer this can be said.  I can tell you that this is not the way that officers are being trained.  I can tell you that this is not the way that most officers on the street view it.  But these guys get it, and not only that, they train the people that train officers.  I’ll leave you with their words:

“If the choice is between feeling safer by violating someone’s Constitutional rights or taking calculated risks while honoring our oath, the pledge we made when our badges found their home on our chests  is supposed to win every time.”  Id.

 

*Originally founded by Jim Lindell, who developed the LVNR, weapon retention training, and is a pioneer in officer safety.

Dear Jim Glennon, Please Don’t Presume that You Speak for All Former Cops

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Jim Glennon recently decided to take a shot, so to speak, at Radley Balko, who is pressing for the demilitarization of police forces throughout the nation.  First, a little history about Jim.  Jim worked for 29 years for the Lombard, Illinois, police department, retiring as a lieutenant.  He’s a third generation police officer.  He apparently was good at his job, commanding both the patrol and investigations at different times, and being selected in 1998 as the first commander of the Du Page County Major Crimes Task Force.  That doesn’t mean that everything was wine and roses.

I hesitated before I decided to address the following issues, because it was long ago, but it did shape the man that Mr. Glennon is now.  First, on August 15, 1980, police officers were watching Steven Hamrick and thought that he was selling illegal pills, so after discussing it among themselves for over two-hours, they forcibly entered his home without announcing themselves or with a warrant.  Hamrick was “accidentally” shot in the back of the head by a Sergeant Lewis of Villa Park PD as he was trying to flush the pills down the toilet.   Hamrick v. Lewis (Hamrick I), 515 F. Supp. 983 (N.D. Ill. 1981); Hamrick v. Lewis (Hamrick II), 539 F. Supp. 1166 (N.D. Ill. 1982); Jerry Crimmins, Cops had no warrant in suburb killing, CHI. TRIB., Aug. 19, 1980, at 4.  A witness, James Pedtke, saw a police officer kick the door of the bathroom open, step back, and then fire.  Joseph Sjostorm, Suburban killing by cop is probed, CHI. TRIB., Aug. 18, 1980, at 12.  Glennon was not inside the house and was subsequently dropped from the lawsuit, but he was present for the event, including the illegal entry of the home.  Hamrick II.

Second, years later, now Sergeant Glennon, was involved in another lawsuit, by a fired female officer who claimed that she was sexually harassed and then retaliated for reporting it.  In 1994, Officer Megan Murray complained about her treatment at the police department.  Some of the harassment was allegedly from Glennon, and Murray claimed that it included showing adult movies at the police station, sending her on more calls than others, and providing insufficient back up which caused her to be seriously injured.  Murray v. Lichter (Murray I), No. 95 C 1921, 1995 WL 631794 (N.D. Ill. Oct. 24, 1995); Murray v. Kutzke (Murray II), 967 F. Supp. 337 (N.D. Ill. 1997); Female officer charges harassment, CHI. TRIB., July 23, 1994.  An internal investigation by the Lombard Village Attorney found no wrong-doing, G.J. Zemaitis, Probe clears cops of sex harassment, CHI. TRIB., Sept. 29, 1994, and Murray was fired three months later, Laura Gatland, Lombard police brass exonerated in lawsuit: Fired officer claims sex discrimination, CHI. TRIB., Dec. 12, 1997 (Gatland, Exonerated).  During the course of the lawsuit, Glennon admitted that he said he hated Murray’s guts, that he had been previously disciplined for making sexually suggestive comments over the public address system, and stated that Murray had problems just writing police reports.  Laura Gatland, Ex-supervisor testifies in cop harassment trial, CHI. TRIB., Nov. 21, 1997.  Glennon and the village won the lawsuit, but the jury read a statement that: “”Although we found the defendants not guilty, we do feel the behavior and conduct of the Lombard Police Department was insensitive and failed to meet the needs of all officers. . .” Gatland, Exonerated.  The next year, now a lieutenant, Glennon was put in charge of a brand new DuPage County Major Crimes Task Force.  Art Barnum, Top cops teaming up to tackle big crimes, CHI. TRIB., Dec. 31, 1998.

Glennon left the department later and today is the owner of the Calibre Press Street Survival Seminar.  This is a good training program and has done great things in keeping officers alive.  These seminars come from a trio of books written by Charles Remsberg and which I wrote about here.  Well now Glennon has to make his living out of training cops how to survive and you have to sell the training to your audience.  Glennon’s been there, having been involved in an officer-involved shooting and he’s also learned what is necessary to survive in court.  So he can sell to the individual officers who are typically the ones that attend these seminars (the departments are too cheap).

Anyway, back to the subject of the post–Glennon is basically telling Balko to STFU, that only cops, only those who have been there, should comment on the danger of being an officer.

OK.  Let’s go there.

Glennon rants that Balko is claiming “only” 118 officers died in 2014.  Well, I don’t have data for 2014, but I do have data for 2004-2013.  In 2013, 103* officers lost their lives while on duty, and that is 103 more than is acceptable to me.  I don’t want to see a single one die.  But when you start looking at the break-down, it changes again.  Of the 103, only 43 were from criminal assault or from chasing a criminal.  Of the other 60, it involved stuff as mundane as falling off of a ladder in the property room, to a heart attack during training.  Glennon complains that Balko’s complaints are not reality based.

Really?

What possible justification is there to send a SWAT team to check for underage drinking, Mr. Glennon?  That’s happened.  Or to raid a penny-ante poker game at a Dallas VFW hall?  That’s happened too.  Or to send a population 3,000-town’s new MRAP armored vehicle with 24 officers to collect a civil judgment from a 75-year old man?  Ditto.  Are you really trying to defend that?

Are you aware that during the same period, there were 461 citizens justifiably killed by law enforcement? Justifiable Homicide: Expanded Homicide Data Table 14, FBI (last visited Jan. 9, 2015) (.xls).  That doesn’t cover those who were questionable, but ‘no billed’ like the Eric Garner case.  Another database that is only 51% complete for 2013 shows 551 citizens were shot by police, many are listed as unarmed.  See We’re compiling every police-involved shooting in America, Deadspin.com (Aug. 20, 2014).  Did you know that from 1974 to 2014, not one single Dallas, Texas Police officer was indicted for shooting a citizen, and that in April 2014 not one, but TWO Dallas officers were indicted for two separate shooting incidents?  See Tristan Hallman, Grand jury votes to indict former Dallas officer in shooting of Rylie man, Dallasnews.com (Apr. 29, 2014).  Were you aware that the only reason that the innocent citizens were cleared and the officers indicted was due to video of the events?  That police had filed charges on the people that they had shot with no justification?  Would it surprise you that both were black?

Mr. Glennon, you can whine and throw your little temper tantrum all you want, but instead of bashing those who are calling for a solution, you should join in and help.  You need to teach officers that while the officers have a right to go home alive, so do citizens.  You should be encouraging the training of SWAT teams to the national standards put out by the National Tactical Officers Association, because you should know, as I do, that most small agencies do not train enough to have a SWAT team.

Look this isn’t difficult, and people with no police experience can see it as well as we can.  It’s time that you remember that police are under civilian control, and that if we don’t police ourselves, reining in the excesses, at some point the people will.  Make sure that you are on the right side.

 

*I’m not counting the federal officer who was killed by a bomb in Afghanistan or the K9 who was killed in a fall.  See Officer Down Memorial Page, ODMP.org (last visited Jan. 9, 2015).

**H/T: Simple Justice

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