Texas Rep. Jason Villalba (Dist. 114-R) introduces the Kory Watkins Bill

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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?

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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.

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.

Round Rock Failure to ID – Follow Up

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Back in July, I posted on a photographer being harassed and unlawfully detained by the Round Rock police.  The photographer subsequently filed a complaint with the department (which I covered in the update).

About a month after the original complaint, the photographer contacted the department again and was told that the investigation had been completed.

The investigator addressed three areas:  A complaint of a First Amendment violation; a complaint of a Fourth Amendment violation, and a complaint of Excessive Force.  The investigator made findings of unfounded, sustained, and exonerated.  This makes sense from their point of view, but ignores several issues.

First, the officers did violate the photographer’s Fourth Amendment rights and the investigator properly sustained that complaint.  Sustained, in police lingo, means that it is a valid complaint and that the officer violated law or policy.  Here this is clear.  Officer Hernandez did not have reasonable suspicion of a crime or criminal activity, yet demanded identification and handcuffed the photographer.  The photographer was illegally seized by the officer.

Second, I disagree on the excessive force, but I understand how the investigator got to that conclusion.  The only way to change that position would be to sue the department, and you are looking at a lot of expense for limited returns given the de minimus nature of any injury.  Exonerated means that the officer did the actions complained of, but that they were within policy.  Here, the department likely believes that mere handcuffs are not a use of force and the matter is adequately covered by the Fourth Amendment violation.

Unfortunately, that is not, in my opinion, a correct view.  The use of handcuffs is a use of force and that is recognized by the courts.  See Nargi v. State, 895 S.W.2d 820, 822 (Tex. App.–Houston [14th Dist.] 1995), pet. dism’d, improvidently granted, 922 S.W.2d 180 (Tex. Crim. App. 1996).  However, the federal Fifth Circuit has held that “[H]andcuffing too tightly, without more, does not amount to excessive force. There is no allegation here that [the officer] acted with malice.”  Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001).  Of course in Glenn, the officer was justified in using handcuffs.  I would argue that the fact that there was no justification for applying the handcuffs and then stating that they would stay on until the photographer identified himself was the “more” required by the Fifth Circuit.  But as I said, that would take court action to fix, and it’s not going to happen in this case.

Finally, on the First Amendment issue.  Technically the officer did not impede the photographer’s right to film, thus the unfounded finding.  That explanation ignores the fact that had it not been for the photography, there would have been no police contact to begin with, and no other violations.  However, this likely served to educate most of the department, especially with the finding that was made.

Apparently the punishment or disciplinary action was apparently limited to a letter of reprimand.

Under the circumstances, I think that this was appropriate for Officer Hernandez.  I don’t see that Sergeant Osborn had any action taken against him, however, that may be due to the fact that there was no complaint made against him.

Finally, I see no indication that the department even acknowledged that refusing to identify oneself while not under arrest is not a crime in Texas.

Los Angeles Police Decide that Aerial Photos Violate Privacy…

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But only if it is their privacy, not yours.

Daniel Saulmon (Tom Zebra) was filming again, using his drone, at the LAPD Hollywood station.  The police didn’t like it.

What is hilarious is that the same expectation of privacy that they are claiming is the expectation that they state you, as a private citizen, do not have.

At 4:04 the first officer tried to tell Daniel that he could not fly his drone over police department property.  But these same officers want to be able to fly over other peoples’ property, observe what is below, and obtain search warrants based on those overflights.  That’s legal, according to the U.S. Supreme Court, see California v. Ciraolo, 476 U.S. 207 (1986) (mere fact that individual has taken measures to restrict some views of his activities does not preclude police officer’s observations from public vantage point where he has right to be and which renders activities clearly visible).

Later in the video, the sergeant tries to tell Daniel that he will be charged with trespass, even if he keeps the drone over the sidewalk.  Ludicrous.

In other words, what the police in LA want is to be able to look in your backyard, but where you can not look into theirs.

 

Round Rock Police Violate Photographer’s Civil Rights – UPDATED

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Again, we have a case of police in Texas not understanding Tex. Pen. Code § 38.02, or the idea of lawful detention.

In this video, the photographer is taking pictures of the Round Rock, Texas Police station when he is approached by Officer Paul Hernandez who advises him he is being detained until he produces identification.  First, under Texas law, a person is not required to identify themselves unless they are under arrest, see § 38.02(a).  Officers are not allowed to demand identification without reasonable suspicion that the subject is involved in criminal activity, Brown v. Texas, 443 U.S. 47, 51 (1979); Wade v. State, 442 S.W.3d 661, 670 (Tex. Crim. App. 2013).  Officer Hernandez stated (at 6:26, part I) that when asked to identify by an officer, refusal is a crime, which is not true.  A person being detained is under no obligation to identify themselves, see § 38.02(b).

“[W]hen they have no basis for reasonable suspicion, officers may ask questions . . . and request identification, ‘as long as the police do not convey a message that compliance with their requests is required.'”  St. George v. State, 197 S.W.3d 806, 819 (Tex. Crim. App. 2006).  Here they handcuffed and searched the photographer without any reasonable suspicion.

What is even worse is that after the supervisor gets there, the officers condition the photographer’s release on whether or not he’ll “cooperate” with the officers by providing identification (at 6:15, part II).  At 8:20 (part II), the photographer requests identifying information from the officers present and Sergeant Mike Osborn informs him that all he needs is the sergeant’s information.  That’s all well and good, but in all likelihood violates their own department policies.  The Round Rock PD is accredited by CALEA, and CALEA standard 22.2.7 requires that police employees identify themselves on request.  Additionally, the detention was unlawful, as was the demand for identification.

If you are concerned about this, you may contact the following:

  • Chief Allen Banks, abanks@roundrocktexas.gov, 512-218-5521.
  • Lieutenant Robert Rosenbusch, Internal Affairs, rrosenbusch@roundrocktexas.gov, 512-218-3262.
  • Lieutenant Larry Roberson, Accreditation Manager, lroberson@roundrocktexas.gov, 512-218-6614.
  • Sergeant Mike Osborn, Patrol, mosborn@roundrocktexas.gov, 512-671-2853.
  • Officer Paul Hernandez, Patrol, phernandez@roundrocktexas.gov.

If you are concerned about this from the accreditation standpoint, you may contact Stephen W. Mitchell, who is the Regional Program Manager for CALEA.  His number is 703-352-4225, ext. 29.

H/T: Carlos Miller & PINAC

UPDATE:

Picking up complaint form and filing complaint.

 

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