Texas Failure to Identify Law, What it Says vs. What Police Think It Says

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ExCop-Lawyer:

I’m reposting this due to the recent incident in Austin where everyone is in an uproar over the arrest of a female jogger.

Unfortunately in this case, the arrest may be proper. If the officer was writing tickets for “jaywalking,” then she was legally “arrested” to be released on a citation (similar to an ROR). As she was technically under arrest, she would have to provide ID information, and if she refused could be charged with Failure to ID.

Originally posted on ExCop-Lawyer:

The Texas Failure to Identify law is fairly simple.  Why don’t police get it?  It states:

  • (a)  A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.
  • (b)  A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
    • (1)  lawfully arrested the person;
    • (2)  lawfully detained the person; or
    • (3)  requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
  • (c)  Except as provided by Subsections (d) and (e), an offense under this section is:
    • (1)  a Class C misdemeanor if the offense is committed under Subsection (a); or
    • (2)  a Class B misdemeanor if the offense is committed…

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The First Rule of Policing – and the Harm it Does, Part IV

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Part of a continuing series, see Part I, Part II, and Part III.

OK, so far we got that police officers are worried about their safety, that the War on Drugs have not worked, and that SWAT was designed for high risk operations.

The problem is that all of these things have come together and had an unintended consequence.  As the War on Drugs continued and some of the criminals began to use more violent methods, it was natural that police would begin to use SWAT on those raids.  In some cases, it was appropriate to do so.  Just as was the case during Prohibition, some criminals were violent and fought the police.  For example, in West Baton Rouge, Louisiana, SWAT raided a series of homes used by a criminal gang.  In addition to large amounts of drugs, a bullet-proof vest and 13 firearms were seized.  Or in Sonoma County, California, where SWAT raided the home of a known gang member, who was out on bail from a previous drug arrest.  SWAT seized drugs and guns, including an “assault weapon.”

The problem is mission creep.  Once the police got used to using SWAT, it became more common.  So now police departments regularly use SWAT for any search.  Examples abound of the misuse of SWAT:

  • Arlington, Texas SWAT raids an organic farm, holds residents for 10 hours.  The crime?  Code enforcement violations.  Oh yeah, these people are hippies, so there are probably drugs involved.
  • Saint Louis.  SWAT served an “administrative” felony warrant, because SWAT serves all felony warrants.  Really?  What happened to arranging for the perp to surrender?
  • Orange County, Florida police and a state regulatory agency perform a number of warrantless “inspections.”  In the raids, 37 people were arrested, the vast majority for misdemeanor “barbering without a license.”  See Barry v. Demming, No: 6:11-cv-1740-Orl-36KRS, 2013 WL 4500467 (M.D. Fla. Aug. 22, 2013) (summary judgment denied, there is a question of fact whether the search was reasonable and if excessive force was used).
  • New Haven, Conn. police used SWAT to check if bar patrons were of legally drinking age.  Really?  Yale students are going to attack the police?  Look, I’ve handled underage drinking.  These kids do not assault police for the most part.  They either run or try to use fake IDs.  Whoever thought that using SWAT was appropriate should have been demoted or fired.
  • Atlanta, Georgia.  SWAT is used to raid a recording studio for copyright violations.

And those are just some of the ones where no one was seriously injured.

When questioned, for the most part the police try and justify the use of the SWAT teams.  Remember, in the police mindset, the First Rule of Policing takes precedence—and they don’t think of the right of the citizen to go home safely.

Update – Springdale Police Officer Sentenced to Prision

Comments Off on Update – Springdale Police Officer Sentenced to Prision

Earlier I had written about Springdale police officer Mark Thom, his abuse of local citizens, and the city council that enabled him.

Last week Thom was sentenced to prison for a year and a day, and then to 3 years probation following release.  U.S. District Judge Mark Hornak told Thom that he would never serve as a police officer again.

The former police chief Joseph Naviglia said that Thom is “a habitual liar and a very conniving and manipulative person.”  Naviglia also said that the city council protected and covered up for Thom.  You’ll remember that I pointed this out in my past article.

Springdale has had to pay out $225,000 in the incident leading to the criminal charges, and $98,500 in a separate case.  But I guess Dave Finley doesn’t care about that either.

The First Rule of Policing – and the Harm it Does, Part III

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Part of a continuing series, see Part I and Part II.

Special Weapons and Tactics.  SWAT.  A valuable tool that has been overused and misused in the police field.

charles_whitman_ut_towerSWAT began for a good reason–it was needed.  On August 1, 1966, a former Marine with an undiscovered brain tumor, Charles Whitman, murdered his mother at her apartment and his wife at their home.  Whitman then went to the University of Texas tower with “six guns, a shotgun, ammunition, a foot locker, knives, food, and water.”  Loren Coleman, The Copycat Effect: How the Media and Popular Culture Trigger the Mayhem in Tomorrow’s Headlines 21 (2004).  He killed three more on his way to the observation deck and then opened fire.

Whitman killed ten more and wounded thirty-one more from the tower.  Austin police responded, but there was no planned response.  Ordinary Texans with deer rifles showed up and provided suppressive fire.  Officers made it into the tower and up to the observation deck, where they had to get past the barricaded door.  Two officers, Ray Martinez and Houston McCoy then shot Whitman to death.  Gary M. Lavergne, A Sniper in the Tower: The Charles Whitman Murders (1997); Ron Franscell, Delivered from Evil: True Stories of Ordinary People Who Faced Monstrous Mass Killers and Survived (2011).

SWAT was formed from this, and other events.  Depending on who you believe, either Los Angeles or Philadelphia were the first to form the teams.  The teams were initially used properly, for high risk incidents like bank robberies in progress, or other incidents involving heavily armed subjects.  They were, for the most part, successful, with operations such as the 1974 Symbionese Liberation Army shootout or the 1984 McDonald’s killings (ended by a SWAT sniper).  When you have a useful tool, you begin to look for other problems to use it on, and when that tool is a hammer, problems start to look like nails.

So SWAT began to be used for other tPolice from tactical team making entry to serve a high-risk drug related search warrant. Street Narcotics Unit.hings, like drug raids.  “In 1972, there were just a few hundred paramilitary drug raids per year in the United States.  By the early 1980s, there were three thousand . . . and by 2001 there were forty thousand.”  Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 74 (2010).  Some of these are warranted and there are plenty of examples of big drug dealers using weapons to protect their drugs.  SWAT is perfect for those.

But as many have begun to point out, with the increased use of SWAT, there have been increases in both idiocy and errors, some leading to unnecessary fatalities.  Radley Balko, Overkill: The Rise of Paramilitary Police Raids in America (2006); Radley Balko, Rise of the Warrior Cop: The Militarization of America’s Police Forces (2013).  Errors do not however, slow down the idiocy.  In 1994, a botched Boston PD SWAT raid at the wrong address caused the death of a respected cleric by heart attack.  The police commissioner personally apologized and vowed to insure that this would not happen again.  Boston Official Apologizes After Cleric Dies Following SWAT Raid At Wrong Address, 85 Jet 8-9 (Apr. 11, 1994).  In 2012, Boston Police have expanded the use of SWAT to include raids on prostitution parlors, in order to seize sex toys, condoms, pajamas, and cash.  While I’m sure that we wouldn’t expect a respected cleric to be at a house of ill-repute, I’m also sure that expanding the use of SWAT to raid whorehouses is idiotic.  It is the expansion of the mission that keeps SWAT in business.

In addition, SWAT types have a different mindset, a combat mindset.  We’ll cover that in more depth next.

The First Rule of Policing – and the Harm it Does, Part II

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Part of a continuing series, Part I is here.

While Remsberg and Calibre Press were conducting seminars on officer safety and survival, the sociological climate of police was changing.

In 1968, President Johnson created the Bureau of Narcotics and Dangerous Drugs to centralize the response to illicit drugs.  By 1971, President Nixon had declared a “War on Drugs” and by 1973 the Drug Enforcement Administration was formed.  Initially, this encompassed a treatment based approach, such as the methadone treatment centers established in Washington, D.C. by Robert L. DuPont.  A year after the centers had been established, serious crime rates dropped significantly.  Richard J. Bonnie, The Virtues of Pragmatism in Drug Policy, 13 J. Health Care L. & Pol’y 7, 14 (2010).  At the same time (in 1972 and 1973), the National Commission on Marijuana and Drug Abuse, recommended the decriminalization of marijuana.  Id., at 13.  Twelve states have followed that approach.  James Austin, Rethinking the Consequences of Decriminalizing Marijuana, NORML.org (Nov. 2. 2005).

Instead, the government moved towards a zero tolerance policy and strict criminal enforcement of drug laws.  The term “War on Drugs” was used over and over, with other militaristic terms also being added to police language.   We’ve done the same thing in the past, with the war on alcohol, commonly known as Prohibition.

The War on Drugs has paralleled the results of Prohibition.  See Norm Stamper, Prohibition: A parallel to modern war on drugs, Seattle Times, Sept. 30, 2011.  Chief Stamper (retired chief of police, Seattle) explains it more eloquently than I can, and more information is available at the Law Enforcement Against Prohibition website.  The problem is that the drugs are winning and the police are losing the war.  With millions of dollars at stake, drug gangs have increased the stakes and become more violent.

The police responded with SWAT teams.

 

 

The First Rule of Policing – and the Harm it Does, Part I

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Malone-NessOfficer Malone: Are you going home now?.

Elliott Ness: I was about to.

Malone: Well, then, you just fulfilled the first rule of law enforcement. Make sure when your shift is over you go home alive. Here endeth the lesson.

The Untouchables (Paramount Pictures 1987).

Officer safety is an important issue to police officers, and it should be.  When I was first hired, almost all officers were issued Smith & Wesson revolvers, usually in .38 Special.  If you wanted to carry something else, it depended on the policies of the local department.  My first PD allowed you to carry your own revolver, so long as it was either a Smith or a Colt, and had a 4 to 6 inch barrel in at least .38 or larger.  Many officers would carry .357 magnums, .45 Long Colts, and .44s instead of the issue gun because it made them feel safer.  We wore very heavy, inflexible vests, and pushed for safety equipment like cages for the vehicles, semi-autos, etc., all in the name of officer safety.

Just a few years before, an author named Charles Remsberg and photographer/producer Dennis Anderson, published a book called Street Survival: Tactics for Armed Encounters.  This book and the two that followed† produced a series of seminars teaching officer safety to police across the nation.  One of the things to remember about Remsberg is that he founded Calibre Press, which published his books on street tactics.  A second thing to remember is that Remsberg was not a cop.‡  He was a journalist, with both a bachelor’s and a master’s degree from Northwestern.  Almost every officer has read or been trained based on the trilogy.  I own all three and believed every word of the books for years.

The attitude was that so long as the officers went home OK, it didn’t matter that civilians were hurt or killed.  A typical response to criticism on this point was that “The most important thing, Calibre’s founders argued, wasn’t that 28 suspects who’d displayed life-threatening behavior had been shot, but that none of the officers had lost their lives.”  Scott Baltic, Be Careful Out There, Chicago Reader (Nov. 21, 1991).

Unfortunately, that attitude is now commonplace among police.

†Ronald J. Adams, Thomas M. McTernan, & Charles Remsberg,  Street Survival: Tactics for Armed Encounters (1980); Charles Remsberg, The Tactical Edge: Surviving High-Risk Patrol (1986); and Charles Remsberg, Tactics for Criminal Patrol (1995).

‡While Remsberg was not an officer, Adams was a California police officer and McTernan was a New York police officer.

Frisco, Texas Police fail Free Speech Test

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This is from Frisco, Texas, a suburb of Dallas.

In the news video, the reporter quotes the police report, where the officer states that Ron Martin was “interfering” with his speeding enforcement duties.  It is clear that the officer would have preferred to charge Martin with Interference with Public Duties, which read:

“(a) A person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with:  (1) a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law. . . .”  Tex. Pen. Code Ann. § 38.15 (Vernon).
The report language tracks the statute, which is how officers are taught to write the report.  It is also clear that the officer could not get past the free speech part of the statute.  It provides not just one, but two defenses.
“(c) It is a defense to prosecution under Subsection (a)(1) that the conduct engaged in by the defendant was intended to warn a person operating a motor vehicle of the presence of a peace officer who was enforcing Subtitle C, Title 7, Transportation Code.
(d) It is a defense to prosecution under this section that the interruption, disruption, impediment, or interference alleged consisted of speech only.”  Tex. Pen. Code Ann. § 38.15 (Vernon)
So since they couldn’t charge him with a Class B misdemeanor, they came up with another BS charge, violation of the city’s sign ordinance, Frisco, Tex. Sign Ordinance, 11-01-04 (Jan. 4, 2011), which is only a Class C misdemeanor, normally handled by a ticket and not an arrest.  This ordinance is fairly short, but creates a regulation which is over 50 pages long.  Originally the city argued that the person holding the sign had to be on private property.
This is clearly an attempt to regulate speech by content, based on the city’s reactions to other people carrying signs.  If it is a sign protesting Obama, no problem.  Note that this person was on public property also.

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