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.

Failure to ID after being Stopped for No Violation in Texas

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I saw this in November or December but did not have time to write on it at the time.  It appears to involve an individual named Collin Rector of Springtown, Texas.*  Springtown is on the border of Wise and Parker counties, just to the west and north of Fort Worth, on Texas 199 (the Jacksboro Highway of John Mayall & the Bluesbreakers fame).  Anyway, Collin and his two buddies got pulled over by an officer of the Weatherford Police Department for “driving slow” and the front seat passenger asks if that’s a violation.

The officer answers (at about 0:48) that it is not a violation, unless it is impeding traffic, which the officer then states that they were not doing.  Uh, officer, don’t you have to have reasonable suspicion to stop someone and detain them?†  So when the passenger starts to ask the question about this, the officer twists off and says that it is against the law to refuse to identify yourself to a police officer (at 0:58).  Uh, no, it’s not against the law if they are not under arrest.  Tex. Penal Code § 38.02.  At 2:01, the officer threatens to take the two to jail for Fail to ID, at which point the driver shows his driver’s license.  The passenger refuses to identify himself, as is his right, and the idiot officer pulls him out of the car.

Then a female officer gets Rector’s name, and runs him for warrants, and officer idiot searches and obtains the front passenger’s identification.  The passenger continues to quiz the officer for the grounds that he is required to identify, and the officer continues to basically say because the law says so.  Then the officer tells the lad to go back and study what the law says because the officer is sure that the kid is wrong and he is right.  Nice, except for the fact that is not what the law says, and the passenger was stating it correctly.

Of course, it doesn’t help that Rector and the driver pulled the three forms of ID bullshit.  That’s sovereign citizen BS, and is not correct.  Most departments do have a requirement that officers identify themselves, but that’s policy, not law.

Weatherford PD is not accredited by CALEA.  You can contact their Chief, Mike Manning, at police@weatherfordtx.gov or at 817-598-4310 or Captain David Smith, at dsmith@weatherfordtx.gov or 817-598-4322.

*That is based on the fact that the YouTube account belongs to Collin Rector and the fact that the back seat passenger identifies himself by that name.

†You should note that an officer does not have to articulate his reasonable suspicion to the people he stopped (although that is normally best), and that driving slow is often an indicator of driving while intoxicated.  Even so, that would not allow the officer to demand ID from the passengers.

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.

Judicial Application of the First Rule of Law Enforcement

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At 2:45, Malone explains the First Rule of Law Enforcement which has been used ever since to justify increasingly arbitrary and abusive actions, all in the name of officer safety.

Most recently, two blawgers whom I really admire discussed the issue in separate blawg posts.  (For the uninitiated, a blawg is a “slang term used to describe an online blog that is written by lawyers, or one that is focused on providing legal-oriented content.” Blawg, Webopedia, http://www.webopedia.com/TERM/B/blawg.html, (Vangie Beal, ed., last viewed Oct. 10, 2014)).  For now, I don’t consider this a blawg as I am not a lawyer, but both U.S. District Judge Richard Kopf and N.Y. criminal defense attorney Scott Greenfield write excellent blawgs, Judge Kopf at Hercules and the Umpire, and Mr. Greenfield at Simple Justice.

Mr. Greenfield has posted in the past about the First Rule, and he spoke about it again, at “Due Deference and the Vignette.”

Knowing that judges may have George Amos vignettes of their own, some police officers invoke his memory when there was no actual fear, to get away with conduct for improper purposes.  They play the judge. They lie. They justify it because they are the good guys, and the end justifies the means. They justify it because the mutt of a citizen deserves it anyway. They play the fear card because they can.

He has it exactly right, only it is not some officers, it is most officers.  For example, in the below video (at 2:10), the officer tells the person stopped that he needs to “put the phone down, it’s an officer safety issue.”

This is not an officer safety issue, it is a control issue with the officer.  She told the individual to stop doing something and he declined to do so.  She knows that it is not a weapon, she already identified it as a phone.  At 7:05, another officer arrives and makes it very clear that this is not an officer safety issue, it is a compliance and control issue, by informing the individual that when an officer tells you to do something and the individual doesn’t do it, it is obstruction.

In another example, from Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App. 2009), a deputy makes a stop of a person who he has reasonable suspicion may be committing or about to commit a burglary.  There is no doubt in my mind that from the facts the deputy does have reasonable suspicion, but Baldwin does not want to identify himself to the deputy.  So the deputy handcuffs Baldwin and searches him for his ID, claiming that he was in “fear of his life.”  Both the state district court and the court of appeals buy this story, and it is appealed to the Texas Court of Criminal Appeals.†

The State argues that Deputy Smith handcuffed appellant based on “officer safety.” “Officer safety” is a legitimate purpose. However, the need for handcuffing and the threat to officer safety must not be imagined or objectively unreasonable under the particular circumstances. Nor may it be done simply because a citizen declines an officer’s request to see his identification.
Baldwin, 278 S.W.3d at 374 (J. Cochran, concurring).

There is way too much deference given to the deputy in this case by the trial court judge and the intermediate appellate court judges.  All of them accepted the deputy’s bullshit until the Court of Criminal Appeals.

Judge Kopf wrote an excellent post on what happens to one’s perspective when an officer is killed.  I understand completely what that type of event does to one’s perspective.  At the first police department I worked at, in a one year period, seven officers lost their lives in the line of duty, five to gunfire and two who were killed pursuing a stolen vehicle.  It made me very conscious of officer safety and of what I needed to do to survive.  I believe in the First Rule of Law Enforcement, but I also believe that our citizens have that same right to go home at the end of their day.  I believe that an officer who uses “officer safety” as a way to skirt constitutional requirements as to arrest, search, and seizure has overstepped and needs to be held to account.

At the very least, we suppress the illegally seized evidence and if necessary, let the defendant walk.  We don’t give the officer the benefit of the doubt merely due to his badge.

†In Texas, the Court of Criminal Appeals is the highest appellate court for criminal cases, the state Supreme Court does not have criminal jurisdiction.

Abilene Police do not Understand Lawful Detention or Failure to Identify

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This is a contact between officers of the Abilene Police Department and an individual who identifies himself as Bobby Ivester (at about 0:25).  Ivester is openly carrying a rifle, allows the officers to inspect the weapon, but declines to produce identification when the officer requests it at about 1:30 in the video.  The second officer explains to Ivester that he is being detained.

The reason for the detention?  “Because we got a call on you” (at 2:40).  Unfortunately, both Ivester and the officers do not understand Texas law.

Ivester is arguing that he is not being lawfully detained.  I disagree.  I believe that he is being lawfully detained (initially, at least).  The 911 call about a man with a gun, combined with the officers finding Ivester with an openly carried rifle, provides a reasonable suspicion that Ivester may be committing the offense of disorderly conduct.  See Tex. Pen. Code § 42.01(a)(8), displays a firearm in a public place in a manner calculated to alarm.  Please note that I did not state that Ivester was committing that violation, clearly he was not, but that doesn’t negate the fact that the officers had reasonable suspicion to make the contact and detain Ivester.

Both Ivester and the officers are under the impression that if the police detain someone, that individual has to identify themselves to the officer.  That is simply incorrect.  Tex. Pen. Code § 38.02 is very clear, an offense is only committed if the detained person lies about who he is (or his date of birth or residence).  Refusing to provide identifying information is not an offense.

At about 5:20 in the video, the second officer grabs the camera and handcuffs Ivester.  At 6:55 in the video, an officer says that they don’t know what Ivester’s intent with the gun is.  That’s true.  It also doesn’t matter.  The officers are not allowed to presume that Ivester is a felon or otherwise unable to carry a rifle.  United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013) (Being a felon in possession of a firearm is not the default status).  The officers try this argument anyway, assuming that it is their “duty” to determine if Ivester has the right to carry the rifle.   Uh, guys–his right to carry is called the Second Amendment.

At this point, Ivester is being unlawfully detained.  The officers have already determined that Ivester was not committing the offense of disorderly conduct and are now just fishing for his identification to try and charge him with something else.  They have improperly extended the contact, see Kothe v. State, 152 S.W.3d 54, 64 (Tex. Crim. App. 2004) (“once the original purpose for the stop is exhausted, police may not unnecessarily detain [individuals] solely in hopes of finding evidence of some other crime”).

If you disagreed with what the officer’s did, you can contact them at:

  • Chief Stan Standridge, stan.standridge@abilenetx.com, 325-676-6600
  • Assistant Chief Mike Perry, mike.perry@abilenetx.com, 325-676-6600 (over Uniformed Services)
  • Officer George Spindler, apdpio@abilenetx.com, 325-437-4529 (Public Information Officer)
  • Facebook; webpage

Related posts:

H/T:  Jim Morriss

The Last of Three Abusive Bridgeport, CT Officers Indicted

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In 2011 following a chase, Bridgeport, Connecticut Police Officers tased and arrested Orlando Lopez-Soto.  The two officers initially involved, Elson Morales and Joseph Lawlor, repeatedly kicked Lopez after he was laying flat on the ground, compliant.  They pleaded guilty to federal charges of deprivation of rights under the color of law, a violation of 18 U.S.C. 242.  Each face up to a year in prison.

Clive Higgins did not take the deal and was indicted for the violation with bodily injury.  He faces up to ten years in prison and pleaded not guilty.  He has been placed on unpaid suspension by his department, which recently settled with Lopez for $198,000.  Lopez is currently in prison on a 5-year sentence on drug and gun charges.

What is interesting in this case is that Higgins is being represented by a federal public defender.  Why isn’t he being represented by a union attorney?  I can think of two likely reasons, first, that he was not a member, in which case he is an idiot.  Second, that the union cut him loose, not wanting to defend him, in which case they are spineless.  There are, of course, other possibilities, so there may be a good explanation, but that is just my read on the situation.

In any event, all three are pretty much toast, and rightfully so.  While I do not have a problem with force when it is justified, unjustified force must be identified and prosecuted.

Elizabeth Daly Settles Lawsuit against Virginia

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In 2013 a University of Virginia student, Elizabeth Daly, was arrested for fleeing police and assault on police.  She had just bought a LaCroix-12PK-PURE12-pack of LaCroix sparkling water and undercover agents of the Virginia Alcoholic Beverage Control attempted to contact her in the parking lot.

Of course, none had on anything that identified them as police and one of the morons drew his pistol while another of the morons tried to bust in the window.

Naturally Ms. Daly was terrified, believing that she was being attacked by criminals.  So she tried to flee in her SUV, was arrested, and jailed.  The charges were dropped by someone with more sense than the officers and Daly filed suit.

Now the State of Virginia has settled the suit for $212,500 while admitting no wrongdoing.  Yeah, right.

Virginia settled the suit because they had just lost a motion for dismissal based on qualified immunity and a motion to quash a subpoena for the internal investigation conducted over the incident.  First, the court found that the amount of force used exceeded that which would be appropriate for a Terry stop and that the agents would need to show probable cause, not mere reasonable suspicion.  Second, the internal report likely identified the two agents who violated policy and were disciplined by the agency.  Combined, the State could see the writing on the wall and decided to settle.

The agents that thought this was a good idea were Special Agents Lauren Banks, Armon Brown, John Cielakie, Andrew Covey, Jonathan Pine, and Kevin Weatherholtz.  The supervisor present was Special Agent in Charge John Taylor.

The state has since changed its policies and procedures for these type operations, and the entire ABC has been under review, including legislative proposals to strip the agency of its law enforcement function.

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.

 

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).

Pampa, the Panhandle, and more Failure to ID Idiocy

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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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