Pampa, the Panhandle, and more Failure to ID Idiocy

7 Comments

Here we go again.  Another Texas peace officer with no clue about what Failure to Identify, Tex. Pen. Code Ann. § 38.02, actually says.

Andrew was taking photographs of the county courthouse and sees five police and sheriff squad cars on a stop, so he starts to film the scene from across the intersection.  At about 0:55, a Pampa Police Department officer Herrera walks across the street and contacts Andrew.  Their conversation goes well, clearly a consensual stop, and Andrew provides his name and date of birth on Officer Herrera’s request.

At 3:00 into the video, the traffic stop has concluded and Andrew starts to walk away, when he is confronted by Deputy Stokes of the Gray County Sheriff’s Office.  Stokes, who has since become employed by the Pampa Police Department, immediately attempted to seize the photography equipment as evidence.  Stokes refuses to get a supervisor on request, tells Andrew to stop talking, and threatens to arrest Andrew when Andrew points out that he has a First Amendment right to speak.  When that happened, Stokes said that “I think I’ll make up stuff” and attempted to grab the camera from Andrew (at 3:50).

At about 4:20, the demand for ID begins by Stokes and he really shows his ignorance.  First, as has been noted numerous times before, in Texas, under the Failure to Identify statute, one has to be under arrest to be obligated to provide their name, residence address, and date of birth to an officer.  Otherwise, the statute merely makes it an offense to provide fictitious information.

At about 4:40, Stokes tells Andrew that he is not allowed to record peace officers in the public arena while they are conducting a traffic stop.  Stokes is clearly out of his league here.  It is well-established that the public have the right to videotape public officers in a public place.  See Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995); and Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).

This did not start to calm down until Andrew asked the Pampa officers if he could press charges on Stokes for assault.  At that point (7:50), the deputy was told to walk away by Officer Reynolds, who then talked to Andrew.  Stokes comes back over and starts to question Andrew again, and this time tells Andrew that he has to answer Stokes’ questions (at about 10:10).  This is obviously not true, and Andrew calls him on it.  At this point, Andrew is allowed to walk away.

 

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When Cop-Blockers Don’t Understand the Law

21 Comments

Two Cop-Blockers in Odessa, Texas were detained recently and did not like it.  Some of what they don’t like is correct, but much of it is mistaken.  I’ll address their comments, which are in italics.  Here is their video:

We were walking around Odessa Police Department around 7PM, both for exercise, and to get some shots of the building, and parking lot, all of which was captured while standing on a public sidewalk. As the video starts out, you can see use walking around the building complex, joking around and talking, and then we are illegally detained for over 40 minutes by quite a lot of officers. My biggest issue, is that they know very well who we are, and their excuses of us being “suspicious” were completely unfounded and outright lies. Anyway, here are several points we’d like to make about this detainment…

1: Filming from a public, or publicly accessible area is legal, including anything that can be seen in plain view from such locations unless it is sexual in nature, such as filming someone undressing in front of a window, or trying to take a picture down a woman’s shirt. OPD claimed that their facility was exempt from this legal activity. (It’s not)

This was a correct statement.  You can generally film anything you can see in public, with some narrowly limited exceptions (including the ones noted).

2: They changed their story several times as to why we were being detained. First it was suspicious behavior, then it was for filming their “vehicles”, then it was “possible intent to commit burglary”. One officer even went so far as to mention the naval base shooting, as if that was some other reason to think we might be up to no good.

They really didn’t change their stories.  At 3:15, when they first get stopped and are told they are being detained, the officer states that the detention is to make sure that they “are not breaking into people’s vehicles.”  That is a reasonably articulable suspicion of criminal activity based on the actions of the individuals, and it is consistent with the later comments on burglary since breaking into vehicles is Burglary of Vehicles, Tex. Pen. Code Ann. § 30.04 (Vernon).  The officer further explained that it was nighttime, the individuals were walking through a parking lot, taking photographs of vehicles, etc.  Guys, that is reasonable articulable suspicion.

3: The supervisor on scene outright lied and said it is illegal to not carry ID on you at all times. This is a complete lie. You are not required to carry ID on you unless you are engaged in an activity that requires such identification, such as driving. You’re not even required by Texas law to provide your name and birthdate unless you are under arrest or legally detained.

The supervisor is ignorant.  There is no requirement under Texas law to carry ID.  I would suggest that the sergeant get hold of a copy of the Texas Penal Code and read it in order to find out what the law allows.  And WTF does Texas Open Records law have to do with photography?  She is really, really ignorant of the law and has no business supervising police officers when she doesn’t understand the law.

4: Upon hearing that the first amendment right of freedom of press was the “legality” I had for filming their facility, she insisted that the Texas state penal code protected police vehicles from being filmed or photographed. (It doesn’t)

More BS by the officers.

5: We were held for longer than 20 minutes, violating the Terry Stop law, from Terry vs Ohio.

This is incorrect info – there is not a “20 minute” time limit on a stop.

6: One officer refused to give us his name and badge number. After we were released I asked the remaining officers for his information and they refused to give it to me as well.

No state law requires that, but most PDs have a policy on identifying themselves.

7: We were apparently SO suspicious that between 15 – 20 cops were on the scene, and yet not once did they feel the need to pat us down to make sure we weren’t armed. They didn’t even ask for a regular search, or even to see the footage we had acquired. This was the biggest indicator that the entire detention was purely for harassment and intimidation.

Actually, that is not correct.  If they did not have reasonable suspicion that you were armed, a pat down for weapons would be unreasonable.  The officers did OK on that part.

8: Officer Aguilar did not let me read over the information he wrote down about me before demanding that I fingerprint myself.

There is no requirement for him to do so.

9: All except one officer on scene acted in an overly aggressive manner, trying their best to intimidate us. (Which didn’t work)

That’s a subjective view, but I can understand both sides here.

10: They claimed they had us on camera entering their parking lot, which we NEVER did. Another lie.

OK, so?

11: All in all, we could have remained silent, refused identification (since they had no reasonable articulable suspicion and therefore no legal right to detain us), gotten arrested on a bogus charge, and later fought it in court, but I was more concerned with getting us home that night. There will always be another time.

They actually had grounds to detain, or at least stated valid grounds, but you are correct, you did not have to ID, but not for the reasons you stated.  The Texas statute does not require a detained subject to ID themselves.  Check my earlier posts on this.

Police Do a Good Job on Stop – And Then They Seize the Cellphone

2 Comments

Geez guys, you were doing a great job.  It’s still not bad, but it could have been much better.

A guy on a crouch rocket is stopped for speeding, somewhere in Oklahoma.  The officer issues citations for speeding, no insurance, and expired license plates.  So far so good, everyone is calm, no real problems.

Then they advise the violator that they are impounding the bike since the tags are expired over ninety days.  The guy obviously doesn’t want his bike impounded, but initially doesn’t understand that he can’t take care of it at the scene.  Then he starts telling the officers that they are not going to take his bike, and if they do it’s theft of his property.  He also starts spouting some sovereign / voluntaryist BS about the State charging him money for his own property (i.e., he doesn’t want to pay taxes), but that has no real bearing on the issue at hand.

The officers suggest that he go inside, that he back off, and he refuses.  Then the officers inform him that if he interferes with the impound, he’ll be arrested for obstruction, which in this case would be appropriate.  Any the violator gets more vocal about the “theft” by the police, etc.

At which point the officer seizes the cellphone as evidence.

Legally, the officers are justified in every action that they took, including the seizure of the phone.  On the seizure, technically a citation is an arrest in Oklahoma, so 43 U.S.C. 2000aa (Privacy Protection Act) would not apply.  There were also exigent circumstances, since the violator was making accusations of criminal conduct on the part of the police and there was a danger that the evidence could be destroyed or altered.  All of that is legal.  The officers should be able to show that they were not committing theft or bullying the violator, and the video would prove that.

But if like most police departments, if the squad car is equipped with video, that should be sufficient.  It’s not illegal, it is not wrong, there were just better ways to handle the cellphone video if there is squad car video.

It doesn’t appear that there was any problem with the individual filming the encounter – not one word was mentioned on that.  The officers also stayed calm throughout, with no threats (despite the claim of the violator, the comments on obstruction were not threats, but were to advise the violator about the consequences of interfering).

 

Putnam County, FL Sheriff’s Office Needs to HonorYourOath

16 Comments

Or at least learn the laws that you are enforcing.

Jeff Gray, more popular as HonorYourOath on YouTube and PINAC, was fishing in Putnam County, Florida.  While fishing, he was openly carrying a pistol in a shoulder holster.  First, Florida law states that the prohibition on open carry of firearms do not apply to “A person engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition”.  Fla. Stat. Ann. § 790.25(3)(h) (West); Levin v. State, 449 So. 2d 288 (Fla. Dist. Ct. App. 1983) (no reasonable grounds for stop when subject was carrying fishing pole towards a public body of water).

Of course the Putnam County Sheriff’s deputy (Griffin) did not see it that way, immediately stopping Gray to determine if he were a “felon.”  Guys, this has been covered over and over again.  See generally United States v. Black, 707 F.3d 531 (4th Cir. 2013) (being a felon in possession of a firearm is not the default status); United States v. King, 990 F.2d 1552 (10th Cir. 1993) (where state law allows the carry of firearms, that alone does not create reasonable suspicion); United States v. Uribes, 224 F.3d 213 (3d Cir. 2000) (that a subject may possess a firearm, where legal, does not justify detention).

Here, both factors were in play.  Gray was clearly within the law allowing the possession of a firearm while fishing, and Griffin had no reasonable suspicion that Gray was a felon.

Second, Griffin stating he was arresting Gray for violation of the Florida wiretapping statute, even though Griffin was a public officer in public view, with no reasonable expectation of privacy.  Gray has a First Amendment right to film a police officer in public.  Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000);  Abella v. Simon, 13-10255, 2013 U.S. App. LEXIS 13638, 2013 WL 3368872 (11th Cir. July 5, 2013).

Obviously Griffin needs more training, as it violated Gray’s Fourth Amendment rights to be handcuffed and held for 45 minutes while the deputy figured all of this out.

Sheriff Jeff Hardy should hear about this (jhardy@putnamsheriff.org) as he has signed a pledge to support Second Amendment rights.  Of course, he may have other things on his mind, like deputies pulling guns while drinking at a bar or having sex in the bar’s restroom.

 

Carson City & Lyon County Sheriffs, Unlawfully Detain Photographer

8 Comments

In these two videos, you see Aaron Friesen being contacted twice by a deputy from the Carson City Sheriff’s office and by a deputy (Dep. Willy) from the Lyon County Sheriff’s office.  In the first contact, Friesen is contacted and asked why he is recording deputies coming in and out of the gate by Willy.  Friesen asks if he is free to go and Willy says yes, so Friesen walks down the street.

A few minutes later (2d video), the deputies recontact him.  This time the deputy tells him he’s being detained and to put his iPad down.  The deputy then tells Friesen that he cannot record law enforcement officers and the license plate numbers of their vehicles, that it is a violation of law.  Friesen immediately asks where in the Nevada Revised Statutes (N.R.S.) that it is a violation and the deputy asks if he wants him to call the sheriff over to explain it to him.  Friesen replies that he does want it explained to him.  The deputy then says that they can make this real easy or that they can make it real hard – which doesn’t cause Friesen to back down at all.  The deputies do conduct a Terry frisk, a pat-down of the outer garments for weapons.  See Terry v. Ohio, 392 U.S. 1 (1967).  The deputy justifies the pat-down by saying that he doesn’t know him and he’s filming deputies.  Once a supervisor shows up, he basically says that there is nothing the officers can do about Friesen’s filming.

Let’s review what happened and why it happened.

  • The deputies did not like being filmed, especially when the video was capturing their personal vehicles license plate numbers.  There is a valid concern here for officers, they do not want to bring any consequences of the job home to their families.  This is a reason that officer’s addresses are not normally subject to public information requests, etc.  When Friesen was first contacted, the deputies felt that he would be intimidated enough to leave.
  • Once he didn’t completely leave, they became irritated (how dare he not respect our authority) so they contacted him again.  Look at the initial response on the second contact, how the officer is acting.
  • The officer did not know the law.  He felt that filming police was wrong, so it must be against the law.  This is not uncommon among officers–look at the reaction when the supervisor indicated you can’t really do anything about it.  The one deputy asks, almost incredulously, if the supervisor was “OK” with Friesen filming.
  • The “I don’t know you” mantra has taken hold in the police world, and officers do not realize that this is not a valid reason for a pat-down search.  Examples of this abound.  The law student in Portland, Maine example.  Whitehall, Pennsylvania.  Several courts have ruled on this issue also, see United States v. Black, 707 F.3d 531 (4th Cir. 2013) (Being a felon in possession of a firearm is not the default status).
  • Officer safety.  Officers believe that they can justify almost anything under officer safety, which is understandable, that is what police academies and defensive tactics instructors teach them.  They don’t realize that officer safety measures must be related to the detention in the first place, see United States v. King, 990 F.2d 1552 (10th Cir. 1993) (Officer’s conduct was not “reasonably related in scope to the circumstances which justified the interference in the first place,” and went far beyond what was necessary to protect her safety).
  • Finally, officers are taught to believe that they know more about criminal law than anyone else.  For example, in one training session I went through, the instructor flatly stated that police officers received more classroom instruction in criminal law than lawyers did, basing it on the fact that most law students take a class in Criminal Law and maybe a class in Criminal Procedure.  Since I’m now in law school, I realize how idiotic this view is since lawyers don’t learn the law in the same way that police officers do.  Officers learn what the exact statutes are, lawyers learn the principles behind it, how to research it, case or common law, procedures, etc.  The problem is that an officer will read the text and decide on his own what it means, while a lawyer will double-check case law to make sure.  This means the officer will often try to stretch things to cover acts that are not criminal, or seek to apply a law that has be ruled unconstitutional (because it is still on the books, it must be OK).

This isn’t the only example of this in Carson City.

 

Nebraska Officer Twists Off on Citizen Videographer

22 Comments

 

Apparently the fat bald officer (Officer Tobler) with the Sidney, Nebraska PD hasn’t gotten the memo.  First he threatens the citizen, Steven Bell, with arrest, then he throws Bell’s license and registration at him, and then he really flips out.   He cursed Bell and looked like he was going to get physical.  A second officer immediately grabbed him (the officer) and moved him over to the side, and then took Bell’s complaint to forward to the Interim Chief.  The local paper said as of June 25th, the Chief would only say that the matter was under investigation.  It has also made PoliceOne.  Some of the posters there are advocating retaliating against the citizen.

The Chief can be reached at this website or at (308) 254-5515.

 

Did the Kern County Sheriff Illegally Seize Videos of Deputies Beating a Man to Death?

10 Comments

It is quite possible that under federal law, the Kern County Sheriff’s Office illegally seized two cellphone videos from citizens.

The Privacy Protection Act, 42 U.S.C. 2000aa(a) (hereafter PPA), states:

Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication….

This law provides that if a person takes a video of police action and intends to disseminate it to the public, the police can only obtain the video by subpoena, not by a search warrant.  In this case neither of the individuals who had their property seized were suspects in the crime being investigated, the death of David Silva at the hands of Kern County Sheriff’s deputies, nor were they being arrested.

The sheriff’s office was aware of the video because the individual that taped the beating called 911.

Further, that individual informed the 911 personnel that she intended to disseminate the video to the public (at 0:46 of the call), saying “I’m sending it to the news.”  At this point, the Sheriff’s office was on notice that this was “work product” protected by the Privacy Protection Act, and should have been obtained by subpoena, not by a search warrant.  Indeed, the law specifically provides that a warrant can only be used after a subpoena has failed to obtain the material.

This is clearly established law, first ruled on 20 years ago.  In 1993, the United States Secret Service raided a computer game company under a search warrant, and seized a large amount of files.  Included in these files was material that was to be published and disseminated to the public.  The company immediately notified the Secret Service of this, which promptly ignored the company and refused to return the material to it.  Note that the company was not a suspect in the criminal investigation.  The court held that the United States was liable to the company for damages for each and every day that they held the material after having been notified of its character under the PPA.  Steve Jackson Games v. United States Secret Serv., 816 F. Supp. 432 (W.D. Tex. 1994), aff’d 36 F.3d 457 (5th Cir. 1994).  Steve Jackson Games were awarded over $ 50,000 in damages, plus $ 195,000 in attorney fees at the trial court level.

This has continued to hold true in other cases.  See generally Morse v. Regents of the Univ. of Cal., 821 F. Supp. 2d 1112 (N.D. Cal. 2011) (holding that officers and chief of police were not entitled to immunity for PPA violation); Citicasters v. McCaskill, 89 F.3d 1350 (8th Cir. 1996) (PPA requires use of a subpoena unless a listed exception is met); Minneapolis Star & Tribune Co. v. United States, 713 F. Supp. 1308 (D. Minn. 1989) (comments in dicta, case is on attorney fees following summary judgment for violating PPA by police seizure).

Note that every day the video is held by the sheriff’s office without returning it to the owner increases the damages, as the video could easily be sold to any number of news providers.

I’m surprised that the attorneys representing the videographers have not mentioned this at all.

 

 

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