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

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The First Rule of Policing – and the Harm it Does, Part I

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Malone-NessOfficer Malone: Are you going home now?.

Elliott Ness: I was about to.

Malone: Well, then, you just fulfilled the first rule of law enforcement. Make sure when your shift is over you go home alive. Here endeth the lesson.

The Untouchables (Paramount Pictures 1987).

Officer safety is an important issue to police officers, and it should be.  When I was first hired, almost all officers were issued Smith & Wesson revolvers, usually in .38 Special.  If you wanted to carry something else, it depended on the policies of the local department.  My first PD allowed you to carry your own revolver, so long as it was either a Smith or a Colt, and had a 4 to 6 inch barrel in at least .38 or larger.  Many officers would carry .357 magnums, .45 Long Colts, and .44s instead of the issue gun because it made them feel safer.  We wore very heavy, inflexible vests, and pushed for safety equipment like cages for the vehicles, semi-autos, etc., all in the name of officer safety.

Just a few years before, an author named Charles Remsberg and photographer/producer Dennis Anderson, published a book called Street Survival: Tactics for Armed Encounters.  This book and the two that followed† produced a series of seminars teaching officer safety to police across the nation.  One of the things to remember about Remsberg is that he founded Calibre Press, which published his books on street tactics.  A second thing to remember is that Remsberg was not a cop.‡  He was a journalist, with both a bachelor’s and a master’s degree from Northwestern.  Almost every officer has read or been trained based on the trilogy.  I own all three and believed every word of the books for years.

The attitude was that so long as the officers went home OK, it didn’t matter that civilians were hurt or killed.  A typical response to criticism on this point was that “The most important thing, Calibre’s founders argued, wasn’t that 28 suspects who’d displayed life-threatening behavior had been shot, but that none of the officers had lost their lives.”  Scott Baltic, Be Careful Out There, Chicago Reader (Nov. 21, 1991).

Unfortunately, that attitude is now commonplace among police.

†Ronald J. Adams, Thomas M. McTernan, & Charles Remsberg,  Street Survival: Tactics for Armed Encounters (1980); Charles Remsberg, The Tactical Edge: Surviving High-Risk Patrol (1986); and Charles Remsberg, Tactics for Criminal Patrol (1995).

‡While Remsberg was not an officer, Adams was a California police officer and McTernan was a New York police officer.

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.

 

Officer Fernandez Doesn’t Know Texas Law, Buda, Texas

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And here we go again.  A stop for openly carrying a long arm in Buda, Texas, and Officer Fernandez tells the individual that he is being detained based on a number of calls, and that the individual has to identify himself or he will be arrested for Failure to Identify.

The thing is, the citizen knows the law better than the officer.

Then some fat, plainclothes deputy constable shows up and tells him that if an officer asks for identification, the citizen has to produce identification.  Of course, this is not correct in Texas.  If detained, you do not have to produce identification, you just can’t lie about your name, date of birth, or address.  Tex. Pen. Code Ann. § 38.02.

After getting out of the car, Officer Fernandez is no longer talking about arresting the citizen for failure to ID, but starts saying that if they keep getting calls, it is alarming the public and disorderly conduct.  Again, as we have noted before, it is not.  You have to have more than just phone calls, it has to be carried in a manner calculated to alarm.

Although the State maintains the fact that someone called the police is sufficient to show the gun was displayed in a way calculated to cause alarm, we cannot agree. The mere fact that the police were called is not evidence of the way in which the gun was displayed. Nor is the mere fact that a person saw a gun “displayed” on a balcony evidence that the balcony was in a public place. Without some evidence describing the balcony or the manner in which the gun was displayed, we cannot conclude there were any facts or circumstances showing the gun was displayed in a public place in a manner calculated to alarm.

Grieve v. State, No. 05-07-00156-CR, No. 05-07-00157-CR, 2008 Tex. App. LEXIS 3756, at *9 (Tex. App.–Dallas 2008, no pet.) (not designated for publication).  The above link has the other cases on this issue.

The Buda PD phone number is 512-312-1001, the Chief of Police is Bo Kidd.

 

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.

 

Does the DC Police Chief Understand what Civil Disobedience Really Means?

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Adam Kokesh has called for an open carry march on Washington, D.C. as an act of civil disobedience.  Basically what he wants to do is to push back against the government and stand up for Second Amendment rights.  The local authorities are obviously not supportive, as this video shows.

At 0:26 in the video, Cathy Lanier, the Chief of Police for Washington, D.C., describes civil disobedience.  She is under the impression that civil disobedience is mere protesting, but that violating the law is not included in civil disobedience.  Obviously she doesn’t know what she is talking about.

Civil disobedience became known first by the actions of Henry David Thoreau who was willing to go to jail in protest of governmental actions that he did not approve. Henry David Thoreau, Resistance to Civil Government (1849).  Indeed, the definition of civil disobedience is defined as “a refusal to obey laws, pay taxes, etc: a nonviolent means of protesting or of attempting to achieve political goals”,  Collins English Dictionary – Complete & Unabridged 10th Edition (2009), “the refusal of citizens to obey certain laws or pay taxes as a peaceful way to express disapproval of those laws or taxes”, Cambridge Academic Content Dictionary online (2013), “a form of political protest in which large numbers of people refuse to obey a law”, McMillan Dictionary (2013), and “refusal to obey governmental demands or commands especially as a nonviolent and usually collective means of forcing concessions from the government”, Merriam-Webster’s Collegiate Dictionary (2013).

Now, I know that Adam is aware of exactly what civil disobedience consists of, which is violating a law.  In this case, he has discussed it in detail, including the recognition that the marchers would likely be arrested.

On CBS News DC.

Now there are two possibilities for Lanier’s statements.  First, she’s an idiot who doesn’t know what civil disobedience actually means, or second, she knows exactly what it means and is lying to the public to control the spin.  Either is not becoming.

Police Myth: Cellphone Guns in the United States

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In a post at a great blog, Photography is Not a Crime (PINAC), there is a video of a San Diego, California police officer issuing a citation to for smoking on the boardwalk.  The officer tells the person, Adam Pringle, to put the cellphone up because it could be a weapon.

This is a long-time police myth, which unfortunately has some basis in fact.

In 2000 or 2001, police in Europe discovered a four-shot gun disguised as a cellphone.  Since then police officers in the United States have claimed on multiple occasions that civilians who were recording video with their cellphones had to put the phone down.  Why?  Because it could be a weapon.

Geez, guys, you’re killing us.  There have been no cellphone guns recovered in the United States, according to the Bureau of Alcohol, Tobacco, Firearms, and Explosives.  None.  Zero.  Nada. Zilch.

In addition, there are exactly zero court cases that discuss the issue.  As a matter of fact, there is nothing in the legal world that discuss the issue.  No law review articles, no trial or appellate briefs, nothing.

Other camouflaged weapons have been found.  See United States v. Beal, 810 F.2d 574 (4th Cir. 1987) (officers found two .22 cal. pen guns during search); State v. Slockbower, 368 A.2d 388 (N.J. Super. Ct. App. Div. 1976), rev’d on other grounds 397 A.2d 1050 (N.J. 1979) (officer found .22 cal. pen gun in glove compartment); People v. Varnell, 370 N.E.2d 145 (Ill. App. Ct. 1977) (cane gun used in aggravated battery); United States v. Winslow, 76 F.3d 390 (9th Cir. 1995) (wallet gun found during search incident to arrest).

How many times have the officers used force when a subject reached for his pen to sign a ticket, or produced his driver’s license, or used a cane?

This appears to be solely a case of not wanting to be filmed and using force to stop the filming.

 

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