Yet Another Houston Officer (Badge 7428) who doesn’t Understand Failure to ID

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And here we go again.

This starts off bad from the start.  The officer pulls over and tells our open carrying friend* that “you’re not under arrest, you’re not even being detained.”  OK, so far so good.  So the open carrying guy starts to walk away.  That parts real simple, if a person is not being detained, he doesn’t have to stand and talk to you.

The officer then pulls in front of our guy and comes out of the car with his patrol rifle.  That’s over the top.  Walking away from a consensual stop is now grounds to deploy your rifle?  Then, the officer tells him he can try “this constitutional crap” but that he’s f***ing up right now. (0:45).  Then he asks for ID and when the citizen says he doesn’t have it, the officer wants to know how he is supposed to know if the citizen is a felon or not.

Uh, officer?  Do you have reasonable suspicion that he is a felon?  And how did you get this reasonable suspicion?  Was the kilt some prison gang tartan?  He must be afraid of something, because at 1:15 he tells his back up to “step it up,” which is police slang for increase to lights and siren, get here quick, I need help.  Again, really?  What exactly has he done to make you fear him?

“All I’m asking for is some ID while you’re walking down my street with a gun strapped to your hip.”  Ah, officer?  It’s not your street.  It belongs to the public that you work for, not you.  Then the officer tells him to put the camera on the hood of the squad car, and the officer does good.  He tells him that he can point it in whichever direction he wants and can continue to record.

Of course, the black female corporal then immediately points the camera away from the citizen and the officers. (2:30).  I wonder if anyone has told her about the Dallas officers who were indicted for felony evidence tampering for doing the same thing with their dash cams?   Thankfully the first officer has enough sense to turn it back around as soon as he noticed, a few seconds later.

At 4:14, the officer screws up again though, telling the citizen that he is required to provide ID to the officer.  That’s just not correct, and hasn’t been correct since Brown v. Texas, 443 U.S. 47 (1979), and it is certainly not true under current Texas law, which has clearly established that a person does not commit an offense by refusing to identify himself while being detained.

At 10:52, the citizen asks why he is being detained, and the officer replies that he stopped him for walking down the street with a gun on his hip.  Again, this is not a violation.

Being a felon in possession of a firearm is not the default status.  More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.

United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013).

See also United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993).

At about 11:30, the officer calls the Harris County District Attorney’s Office† and this discussion gets real interesting.  First, the officer realizes that his reasonable suspicion to stop is thin to non-existent and says so.  Second, you can hear the female DA in the background, and she isn’t jumping up and down to throw this guy in jail, because she’s not hearing anything that remotely sounds close to being probable cause.  At one point, while the officer is on hold, he asks the citizen if he understands what the problem is–but the problem is the officer, not the citizen.  When the DA comes back on the line, she tells him that the officer does not have a charge, any charge, that the citizen can be arrested for.

What is amazing is that even after the DA said there is no Failure to ID charge, the officer is still telling the citizen that he has to have ID.  No, officer, he does not have to have ID.  That’s why you couldn’t get a control number, because the citizen did not have to have ID.

The officer’s badge number was 7428.

*OK, first, any guy who wears a kilt with a t-shirt and a straw hat while carrying an AR-15 in Texas is alright in my book, even if I remain skeptical of the wisdom of open-carry.

†To keep officers from making bad arrests, the Harris County DA requires that the officers get a control number before the arrest.  Without a control number, the jail will not accept a prisoner.

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Pasco Police Officer Ryan Flanagan Has a History of Excessive Force Against Hispanics

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In 2009, a 30-year old Hispanic woman, Maria Davila-Marquez was driving her vehicle in Pasco, Washington.  Police officers in the area were looking for a teenaged Hispanic girl who was creating a disturbance.  Officer Ryan Flanagan and officer Zachary Fairley saw Davila and stopped her, even though she was about twice the age of the teenager they were really looking for.  Davila couldn’t speak English very well and neither officer could speak Spanish.  So the officers handcuffed her, slammed her against the car hood, and held her there until she received second-degree burns from the engine heat, and searched her even though department policy required them to call a female officer to do that.

Although Davila had requested an interpreter, the officers refused to call one.  Then the complainant showed up and said that Davila was not the teenager (duh), so the officers charged her with interfering with public duties.  So Davila sued the officers, the chief, and the city.  She wasn’t able to show a pattern or policy of misconduct, so the court dismissed with prejudice the case against the chief and the city, see Davila-Marquez v. City of Pasco, No. CV-12-5059-LRS, 2103 WL 1136658 (E.D. Wash. Mar. 18, 2013).  The case against the officers remained, however and rather than go to trial, the city settled for $100,000.

In an article at the time, Pasco City Manager Gary Crutchfield said that although Davila did not meet the description of a teenager, the officers erred on the side of inclusion when they arrested her.  Crutchfield is lucky that Pasco had already settled.  In the United States, we don’t err on the side of inclusion when arresting someone.  We either have probable cause, or we don’t.

AS TO THE CURRENT INVESTIGATION:

This may also get more interesting.  Coroner Dan Blasdel is considering calling an inquest to make the determination on the shooting.  This isn’t used often, but the evidence would be put in front of a six-member jury, who would decide the issue.  Note that in Washington, the inquest does not determine culpability for the death.

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.

Finally, Officer Safety is Put in its Proper Place in a Police Magazine

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In the January 2015 edition of Law and Order, a police management magazine, there is an article that not only the management should read, but that should be passed on to every officer.

The article, No “Officer Safety” Exception to the Constitution, Charles Huth, Jack Colwell, and Randy Means, Law and Order, Jan. 2015, is very clear that officer safety has gone too far.  They state:

“A number of law enforcement agencies are currently under fire for their patterns and practices of “stop and frisk.” This is only the present manifestation of what has been for decades a national epidemic of illegal police practices rationalized by the mantra “officer safety.” Frisks are not supposed to be the rule in Terry-type stops; the rule would be no frisk. The same is true for handcuffing subjects and placing them in the back of police cars.” Id.

Guys, this isn’t just me, an old, worn out street cop saying this by myself, these are well-respected leaders in the profession.  Huth is the past President of the National Law Enforcement Training Center* and a Captain with the Kansas City, Missouri Police Department.  After the Eric Garner death, Huth was on CBS News showing the difference between an arm-bar chokehold and the much safer lateral vascular neck restraint (LVNR).  Colwell retired from the KCMOPD after 29 years and is the co-author of Unleashing the Power of Unconditional Respect with Huth, a program for increasing officer connection with the community and decreasing confrontations.  Finally, Means is a partner at The Thomas & Means Law Firm, and has a long history as a police legal advisor, and risk management at the IACP.

The article is outstanding, pointing out that there is no officer safety exception in the U.S. Constitution.

“So, where does one find the officer safety exception to the Constitution? Generally speaking, it doesn’t exist. Generally, the rights of the people trump the rights of an officer to be guaranteed a safe outcome in dangerous situations.” Id. (emphasis added).

I don’t know how much clearer this can be said.  I can tell you that this is not the way that officers are being trained.  I can tell you that this is not the way that most officers on the street view it.  But these guys get it, and not only that, they train the people that train officers.  I’ll leave you with their words:

“If the choice is between feeling safer by violating someone’s Constitutional rights or taking calculated risks while honoring our oath, the pledge we made when our badges found their home on our chests  is supposed to win every time.”  Id.

 

*Originally founded by Jim Lindell, who developed the LVNR, weapon retention training, and is a pioneer in officer safety.

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.

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.

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