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.

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Is Failure to ID Really that Difficult to Understand? Corpus Christi, Round 2 – UPDATED

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This was first posted at PINAC, and in the past I would have commented on it there, but I’m no longer interacting there, so I am posting it here.

In the video, a police officer with an unknown police department† claims that Lanessa Espinosa is a “jailhouse lawyer” because she actually knows what the law says.  She pointed out that she did not have to identify herself unless she was “being charged.”  At that point Corpus Christi Senior Officer‡ J.E. Lockhart comes up and demands ID and tells her that he will arrest her if she doesn’t provide ID.

The problem is that § 38.02, Texas Penal Code, does not authorize an arrest for failure to ID on a mere detention unless the person provides a fictitious name.  We’ve covered that several times, here, here, here, here (also in Corpus), here, here, here, and here.

There are several things wrong with the video.  First, the officer from the unknown department is choking Espinosa with an arm-bar choke hold.  If you look at the video at 1:12, you’ll see the officer’s forearm cutting directly over Espinosa’s adam’s apple in the same manner that killed Eric Garner in New York.  The arm-bar choke hold is almost universally viewed as deadly force, and completely inappropriate here when the crime is at best, a misdemeanor under the officer’s mistaken idea of the law.

Second, it is a false arrest.  Even more so, it is an arrest because she is exercising her right not to provide identification when he knows (or should have known) that the arrest is unlawful, and that he intentionally denied her of her freedom when he knew (or should have known) that his conduct was unlawful.  Folks, that the definition of Official Oppression, § 39.03, Texas Penal Code, and is a Class A misdemeanor.††

I can almost guarantee that Chief Floyd Simpson will not follow up on this.  Recently he kept an officer on the department after the officer assaulted a handcuffed prisoner in the jail.  That officer got a two-week suspension and was allowed to retire.

Anyway, if you want to waste your time, you can contact the department:

  • Chief Floyd Simpson (FloydS@cctexas.com), 361-886-2600.
  • Internal Affairs, 361-886-2627.

†We know it is not a sheriff’s office because the patch says “Police” just above the state seal.  I believe that it is probably going to be some type of park ranger or park police for several reasons.  One, the uniform, except for the patch, is much the same as the TPWD park ranger uniform.  Second, the badge appears to be round, which is the normal shape for a state agency, although some county agencies also use a round badge.

‡In Corpus, for some reason, the sergeants are called “senior officer” although they wear sergeant stripes on their collar.

††Punishable by up to a $4,000 fine and/or up to 1 year in the county jail.

UPDATE:

OK, the first officer in the khaki shirt is an investigator from the Nueces County DA’s Office.  Second, they detained Espinosa for Interference with Public Duties, § 38.15, Texas Penal Code.  She was not arrested, but was released at the scene.  A very quick check of the annotations leaves it unclear if this would be a valid charge or not, but I don’t have the time to research it thoroughly.  My initial impression is that this is BS, but without a case directly on point, they can probably skate on Official Oppression.

Next, the NCDA (Mark Skurka) is investigating the use of the chokehold by the officer.  You’ll probably never hear what the result is, and there will likely be no disciplinary action taken.  You can contact the DA’s Office at 361-888-0410 or at nueces.districtattorney@nuecesco.com. BTW, this was an off-duty job for the officer, DA investigators are normally in plain clothes.

Corpus Christi issued a press release absolving their officer of all responsibility and stating how they were committed to transparency and allow people to videotape or film.  All of that is nice, but it misses the point.  There were no grounds to require identification, as state law did not require it.  Espinosa took no actions other than to verbally assert her rights, in other words, speech only.  Finally, the press release noted how CCPD officers were trained to “be respectful” and to use “de-escalation techniques.”  Really?  That’s what they call respect and de-escalation?  I would hate to see what is disrespectful and escalating.

SCOTUS Requires a Warrant to Search a Cellphone

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The Supreme Court, in an opinion by Chief Justice Roberts, stated that the Fourth Amendment requires a search warrant to look at the digital contents of a cell phone that the police have seized incident to arrest.  The opinion is Riley v. California, No. 13-132, 573 U.S. ___, ___ S. Ct. ___, 2013 WL 2864483 (June 25, 2014).

The decision was unanimous, with a concurrence by Justice Alito.

Basically, the Court took two cases, Riley and United States v. Wurie, No. 13-212, that had reached opposite conclusions and consolidated them.  In Riley, a driver was stopped for expired registration and having a suspended driver’s license.  His car was impounded and inventoried, and two handguns were found.  A search of his cell phone incident to arrest and other factors led police to believe that Riley was a member of the Bloods street gang.  Following a warrantless search of the phone, photographs were located tying Riley to a gang shooting and he was charged with attempted murder and several others crimes.  The trial court denied a motion to suppress the evidence and the Ninth Circuit affirmed.

In Wurie, police were conducting routine surveillance and saw Wurie make a drug transaction.  Wurie was arrested and his cell phone seized.  They searched the phone (an older flip phone) and eventually obtained a search warrant for Wurie’s house based on the warrantless search of the phone.  Police seized 215 grams of cocaine, a firearm and other drugs, and cash.  Wurie’s motion to suppress was denied, but the First Circuit reversed and vacated the conviction.

Roberts held that the search incident to arrest exception (from Chimel v. United States, 395 U.S. 752 (1969)) did not include the digital contents of a cell phone.  Police may examine the phone to make sure that it is not a weapon, but may not search the contents.  The claim that the search is necessary to prevent the destruction of evidence is also not valid.  Police may place the phone in a Faraday bag to prevent outside signals from reaching it, may turn off the phone, or may remove the battery.

Roberts cited Judge Learned Hand who said in 1926 that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” Riley, slip op. at 20 (internal citation omitted).  Searching a cell phone is ransacking the house.

The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.Id., slip op. at 28 (emphasis added).

Fairly Good Job by Travis County, Texas Sheriff’s Deputies

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Although the poster, Christian Perez, believes that he was harassed, the deputies in this case did a fairly good job in this case, at least from what was recorded on the video.

The Travis County Sheriff’s Office is out on an intoxicated female, along with paramedics (Austin/Travis County EMS) and firemen (Manchaca Fire/Rescue) when Christian begins to videotape the event.  One deputy attempts to tell Christian that his filming is a HIPPA violation (it’s not), but Christian tells him it is not and continues to film.  The deputy does not push the issue, and none of the EMTs say anything.

Later in the video (at 2:35), a deputy takes a couple of pictures of the videographer but doesn’t try to interfere or stop him from filming.  Another deputy then asks for Christian’s identification, but does not press the issue when Christian refuses to provide it.  The deputy also talks about needing the information for a subpoena to obtain a copy of the video as evidence.  Christian does a good job of refusing, and tells the deputy that unless he is suspected of a crime, he doesn’t have to even talk to the deputy.  The deputy then moves away, ending the encounter.

One of the paramedics then comes over (about 7:30) and asks how Christian would feel if that was his sister or girlfriend being filmed.  Christian tells him that she is in a public place and the paramedic moves away.  The paramedic did make sure and tell Christian that he wasn’t telling him that Christian could not film, he was just making an appeal for him not to do so.

As far as the suspect, the deputy gives her two options:  she can either take a ride home with another individual, or she can go to jail for public intoxication (PI).  The deputy also gives her an option to go to the hospital.  Unfortunately, like many drunks, she thinks that she can create a fourth option.  When she tried to push that, she was arrested for PI.

Although Christian feels that he was harassed, he was allowed to film the entire encounter without being told to move or being ordered to stop.  Several times attempts were made to dissuade him from filming, but none of the deputies infringed on his right to film.  None of the deputies were overbearing, and none pushed the issue when Christian stood up for his rights.

Officers may ask someone to stop filming, to provide identification, or to engage in a consensual conversation.  Without something more than what they had here, they cannot order someone to stop filming, to provide ID, or to talk to them.  The officers stayed within the legal limits.

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

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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).

 

Testify Truthfully, Get Fired: The Ben Kruidbos Story

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Angela Corey

Angela Corey (Photo credit: Wikipedia)

 

Well, Florida’s State Attorney for the 4th Judicial District has just shown where she falls on the idea of seeking justice instead of winning at all costs, and it is not on the side of justice.

 

Her office just fired Ben Kruidbos, their IT director, for testifying in the George Zimmerman case.  It seems that a check of Trayvon Martin’s cell phone had potentially exculpatory evidence that is required to be turned over to defense counsel.  “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”  Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963); see also Johnson v. State, 921 So. 2d 490, 507 (Fla. 2005).

 

Well, it seems that Angela Corey‘s office did not turn over all of this potentially exculpatory evidence to Zimmerman’s attorneys.  A hearing was held on the matter, seeking sanctions against the prosecution for the Brady violation.  Had Kruidbos not come forward, no one would have known that the prosecutor had withheld potentially exculpatory from the defense.  The video is below.

 

 

The idea of prosecutorial misconduct in this case is not limited to the defense attorneys and conservatives, but includes noted academics and liberals, among others.

 

  • Jonathan Turley, “Corey’s decision to terminate the man who disclosed the withholding of evidence before a ruling on the alleged violences is highly questionable and speaks more to the anger of being called to account for sitting on such evidence.”
  • Alan Dershowitz, “That a prosecutor would hide behind the claim that she did not have an obligation to tell the whole truth until after the judge ruled on probable cause displays a kind of gamesmanship in which prosecutors should not engage.”  Note that Corey was enraged by Dershowitz’s criticism and called the Harvard Law School, threatening to sue Harvard and have Dershowitz disbarred.
  • Ken White (Popehat), “[Corey’s] letter betrays anger management issues, entitlement problems, a weak grasp of pertinent First Amendment law governing statements of opinion, and a rather frightening attitude from a government official with such power.”
  • Sandy D’Alemberte, “I cannot imagine a worse choice for a prosecutor to serve in the Sanford case.  There is nothing in Angela Corey’s background that suits her for this task, and she cannot command the respect of people who care about justice.”

 

 

Las Vegas Police Shoot at Man Wielding a Cellphone Gun – or at least it could be a gun

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Earlier this week, Las Vegas Metro Police were called out on a suicidal man.  After throwing rocks at the officers, he pulls out his cellphone, and since we know that cellphones are merely guns in disguise, the officers shot at him.  I say at, because they apparently weren’t (thankfully) competent enough to hit him.

The news report from the local Fox station indicated the suicidal subject could be facing charges that include assault with a deadly weapon.  Really?  From a cellphone?  By the way Metro–the ATF is still saying that there has never been a cellphone gun recovered in the United States.  Cane and pen guns have, so you may have to watch grandpa.

Of course, the department doesn’t see a problem.

 

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