Follow-up to Purcell v. Hollenbeck lawsuit

8 Comments

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.

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

31 Comments

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

9 Comments

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

20 Comments

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

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).

 

Testify Truthfully, Get Fired: The Ben Kruidbos Story

16 Comments

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

5 Comments

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.

 

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.

 

 

Smith v. Baltimore City Police Dept., No. 1:13-CV-1352

Comments Off on Smith v. Baltimore City Police Dept., No. 1:13-CV-1352

D.Md._1-13-cv-01352_1

This is the original complaint in Smith v. BCPD.  Smith is alleging that the officers prevented her from filming an arrest by destroying her cellphone, beating her, and filing false charges against her.

For more info, see the PINAC post.

Newark California Police Must Also Believe in the Tooth Fairy

8 Comments

Here we go again.

Another California police officer has to inspect a cellphone to make sure that it’s not a gun.  Haven’t we gone over this before, both here and at PINAC?

In this case, a female officer, Detective Shannon Todd, of the Newark Police gang unit first tells the photographer to put the phone in his pocket, and then when he informs her that he doesn’t need to do that, she says she needs to hold the phone.  When the photographer refuses, she asks to inspect it to make sure that it’s not a firearm.  When he shows her that it is recording, she is still not satisfied and tells him to put his hands behind his back, and the first video ends.  During this time, her partner, Detective Tony Heckman, is dealing with the others that were there.

Next, after she has apparently inspected the phone, part 2 of the video comes up and the individual asks for her badge number.  She gives it to him, then immediately asks for his ID.  He refuses, stating he hasn’t done anything wrong, and she tells him to sit down or leave.  The individual, who has a YouTube channel (Newark ENT) then asks why he has to leave a public park.  At this point a third officer, apparently in patrol, tells him he was given a “lawful” order and he has to leave.

He asks the officer on what grounds, and the patrol officer tells him he’s “interfering” with their investigation.  The individual then asks what they were doing wrong and the officer tells him that he doesn’t get to ask the officers questions.  The rest of the video is fairly uneventful, along with part 3.

Both of the gang unit officers are in blue jeans with a police shirt, which has never made much sense.  If the officers were plainclothes, jeans are fine, but they are not good for police work.  One of the other things I noticed was that Heckman is wearing a thigh holster, a practice that was picked up from the military and is pretty much useless for police work.

An officer can not execute a fast draw from a thigh holster near as effectively as from a good belt mounted holster, and it is much more difficult to retain the weapon if you are fighting someone for it.  There are good reasons for some in the military to carry it in that manner (dealing more with flak jackets, equipment vests, etc.), but not for police use.  Of course young officers want it because it looks cool and shows their military macho.

Finally, there have still been absolutely zero cellphone guns found, used, or recovered in the United States.

Older Entries

take that, goliath.

just another day sitting next to the defendant

Hercules and the umpire.

THE ROLE OF THE FEDERAL TRIAL JUDGE. PLEASE NOTE THAT THIS BLOG ENDED FOREVER ON JULY 9, 2015

Windypundit

Classical liberalism, criminal laws, the war on drugs, economics, free speech, technology, photography, sex work, cats, and whatever else comes to mind.

JONATHAN TURLEY

Res ipsa loquitur - The thing itself speaks

Chasing Truth. Catching Hell.

A Public Defender's Blog, @normdeguerreesq

The Legal Satyricon

Occasionally irreverent thoughts on law, liberty, tech, and politics.

Legal Writing Prof Blog

General ramblings of a former police officer turned lawyer

LawProse

General ramblings of a former police officer turned lawyer

How Appealing

General ramblings of a former police officer turned lawyer

General ramblings of a former police officer turned lawyer

SCOTUSblog

General ramblings of a former police officer turned lawyer

Real Lawyers

General ramblings of a former police officer turned lawyer

Say What?! Classic Courtroom Humor from Judge Jerry Buchmeyer

General ramblings of a former police officer turned lawyer

Judge Bonnie Sudderth

Law Blog on the Texas Rules of Evidence

Overlawyered

Chronicling the high cost of our legal system

Defending People

General ramblings of a former police officer turned lawyer

Preaching to the choir

General ramblings of a former police officer turned lawyer

Crime and Consequences Blog

General ramblings of a former police officer turned lawyer

Koehler Law

Criminal and DUI Defense in Washington, D.C.

The BLT: The Blog of Legal Times

General ramblings of a former police officer turned lawyer

The Volokh Conspiracy

General ramblings of a former police officer turned lawyer

Popehat

A Group Complaint about Law, Liberty, and Leisure

ExCop-Lawyer

General ramblings of a former police officer turned lawyer