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

Semi-Open Carry Arrest in Tennessee: What Happens When You Don’t Know the Law, Part II

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Well, Leonard Embody has given me further information for my blog.

His preliminary hearing was held recently.  A preliminary hearing is solely for a judge to make a determination if there was probable cause for the arrest.  That’s it.  A couple of other matters can be addressed, like a motion to suppress evidence or a motion to dismiss, but those are based on factors surrounding the stop and the arrest, not general law.

So Embody shows up, pro se and is representing himself, and makes a motion to suppress.  Of course, he has no clue about what he is doing, so when he is arguing his motion, he starts to offer testimony and the prosecutor objects.  Eventually the judge decides to hear the testimony of the officer, who states that as soon as he saw Embody, that he could see an AR-15 slung across his back.  As he got closer, he could tell that there was what appeared to be a silencer attached to the rifle, and the officer did not yet realize that the rifle was in a form-fitted kydex case.  At that point he had reasonable suspicion to stop based on Tennessee law, since the possession of a silencer is a felony.

That would pretty much do it for the motion to suppress and motion to dismiss.

Of course, Embody brings up all sorts of irrelevant issues during his cross of the officer, the prosecution objects, and the judge sustains the objections.  Embody then tries to introduce the ATF documents which would show that the silencer was legal, but has no idea how to lay the foundation nor how to authenticate the documents so he could get them admitted.  I was actually very impressed with the patience that the judge had with Embody.

So now the prosecution has a finding that there was probable cause for the arrest and it will go to a grand jury for indictment.  And if Embody does not get much better at the legal issues, he’s going to be convicted.  He really needs to hire an attorney.

And the best line from the video is from the judge, near the very end.  “I don’t think Mr. Embody is crazy, I think he’s stupid.”  I will defer to the judge’s wisdom and leave that determination to my readers.

Apparently Embody has a copy of the recording of the hearing and put it up on YouTube.  I’ve linked to it below.

 

Open Carrying While Black, Washoe County, Nevada

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Nevada is an open carry state, allowing the unconcealed carry of both handguns and longarms.

Unless, of course, one has a disqualifying factor, such as mental disease or defect, a felony conviction, etc.

Apparently, that also includes being black, at least in Washoe County.

 

Gabriel Nobles was carrying a rifle in Washoe County when he was confronted by the Sheriff’s Office, put on the ground at gun point, and held there.  His only offense was that he was a young black man carrying a rifle slung across his back.  We’ve seen plenty of videos of similar activity, but nothing like this.  I can see nothing in the video that justifies the deputies conduct.

Of course, at the end of the stop, Gabriel is given his rifle back and sent on his way.

 

Zach Horton, Part II

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Well, about a month ago, Zach did something that may hurt him in the long run.  He was running around south Texas, open carrying his AK, and apparently thought it was a good idea to have his picture taken with the rifle in front of local police stations.

This went well until he got to McAllen.  They didn’t like the idea, so they told him to leave (apparently giving him a trespass warning, it’s not clear), which he did.

Then he thought about it.  And went back.

But only after calling them and telling them he was coming back.

Yeah, that’s a good idea.  It’s legal, don’t get me wrong, but poking a sleeping mountain lion with a sharp stick has never struck me as being especially bright.  But, hey, if that’s your thing…

So of course the police are there and when he doesn’t comply with their commands, arrest him for having a firearm where prohibited, see Tex. Pen. Code Ann. § 46.03.  That’s a felony.

Now granted, from what I’ve seen, it’s a BS charge, because you have to actually go into the building to be charged with it, and the AK never left his car.  So Zach sees the inside of a jail cell, then a judge, who sets bond at $25K (meaning a bail bondsman will likely charge $2,500, and maybe twice that, since he’s not from the area).  You don’t get that money back, either.  Of course his rifle and cellphone are now evidence, and the last I saw, they had a hold placed on his truck.

Of course the DA should drop the charges, but this is Hidalgo County, where the niceties of the law haven’t always been observed, like the sheriff’s son (head of a local drug task force) who was indicted and pled guilty for stealing drug loads.  Or the eleven recruits in the academy fired by the sheriff last year for trying to cheat on tests.  Or the previous sheriff and county commissioners in the 1990s. Or – well, you get the picture.

 

Little Elm Police, Zach Horton, and Misstating the Law (REDACTED / UPDATED from earlier posts)

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Original post, July 3, 2013.

Sergeant John Samples of the Little Elm Police Department was informed that Zach Horton was planning to do an open carry walk with a long arm in his neighborhood and decided to stop by and talk to him about it.

Unfortunately for Sgt. Samples, he doesn’t know the requirements of the law.  Under Texas law, open carry of a handgun is a criminal offense, but open carry of a rifle or shotgun is not, unless it is carried in a manner “calculated to alarm.”  To Sgt. Samples, this means if the police receive one single call, it has alarmed someone, and the individual has committed an offense.

This is not the case.

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).

As noted above, there has to be more than just a mere call for service to meet the elements of the offense.  It has to be shown that it was display in a manner calculated to alarm.  It takes some form of threatening action, not merely the possession of the long arm in plain view.

This is not new, but has been the law in Texas for over 100 years.  See King v. Brown, 94 S.W. 328, 330 (Tex. 1906) (“The wanton discharge of firearms in a public road was calculated to alarm the people in nearby residences.”); Jones v. State, 130 S.W. 1001 (Tex. Crim. App. 1910) (“displayed a pistol in a manner well calculated to disturb the peace of those to whom it was exhibited in a threatening manner”); Sparkman v. Peoples Nat’l Bank, 501 S.W.2d 739, 743 (Tex. Civ. App.–Tyler 1973, writ ref’d n.r.e.) (manner of carrying a shotgun was designed to alarm or frighten people present at a foreclosure sale Sparkman wanted to stop).

Sgt. Samples explained that Little Elm was a safe city, and that this was due to the fact that people do not walk around openly carrying guns.  This is understandable from his perspective.  Officers today are basically taught that everyone (other than police) are a potential danger, and if they have weapons it is even worse.  On top of that, it is not “normal” for people to want to do this, so Sgt. Samples is likely to view Horton as a troublemaker on top of being a potential danger.  Note the position of the second officer, how he is standing back – he is in an overwatch position, which is indicative of the fact that they consider Horton dangerous.  Also note that the squad cars are not parked in front of the residence, another sign that they consider this to be a dangerous call.

There is also a little bit of possible racism in the discussion.  Sgt. Samples uses two examples in the conversation: 1) that just because the First Amendment allows you to use the “N-word” it is not a good idea to do so, and 2) he could understand wanting to carry the long arm if Norton were in the Oak Cliff area of Dallas.  The Oak Cliff area is a predominantly minority area of Dallas, which is subtly saying that is more dangerous, presumably due to the minority population.

You’ll also notice that Sgt. Samples is “troubled” that Horton doesn’t just roll over and accept what he is being told by a police officer.  Again, this is due to a police mindset – I just told you what to do, I’m a police officer, you have to do what I tell you, even if I’m wrong.

Horton is prominent on the website “Don’t Comply” also known as “Come and Take It America“.  This is sort of a whackjob site, with articles on the “Voluntaryist” philosophy, which is just another term for the sovereign citizen-type idiocy that seems to be growing.

On July 3, 2013 I posted on the statements of the Little Elm sergeant who misstated the law on open carry and disorderly conduct.

I identified the citizen as Zach Horton based on several issues.  First, the sergeant addresses him as “Mr. Horton.”  Second, although the video was posted by Murdoch Pizgatti, a comment from Zach Horton’s sister-in-law states that her brother-in-law uses the name Murdoch.  Third, the video appears to be the same house listed in public records at the Denton County Appraisal District as the one owned by Zach Horton’s wife.  Fourth, the wife of the subject filming the video bears a strong resemblance to Zach Horton’s wife.  Fifth, another Horton identified the subject filming the video as his brother, Murdoch Pizgatti.  Sixth, another source stated that Zach Horton ran the Don’t Comply website.

Zach Horton very likely uses a nom de plume of Murdoch Pizgatti.  We know that the video was passed off as being between the sergeant and Pizgatti, here, here, and here.

The previous posts have been pulled, but are saved as private drafts if needed due to allegations of defamation.  Those claims have no merit, but I can’t afford to delete the posts in the event a case were to be filed.  Unfortunately, I don’t have any way to move the pertinent comments from the previous posts to this one.

Normally I could care less what name is used and don’t particularly care to publicize one’s identity.  When someone threatens to sue, uses vulgar language, etc., my concern for their privacy drops dramatically.

If Zach or “Murdoch” want to clear this up, they are free to contact me and let me know the actual facts.

Related articles

 

Sterling Heights Open Carry Confrontation

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On July 18, 2013, James Baker and a friend were openly carrying in Sterling Heights, Michigan.

The officers contacted the open carriers with drawn weapons, immediately disarming and handcuffing the two.  According to the radio calls at the start of the video, there was no reasonable suspicion of criminal activity, just that two individuals were carrying rifles.  One officer then searches Baker, removing his wallet and ID from the wallet.

This is problematic in a couple of ways.  First, as was noted in an earlier post, open carry in Michigan is legal and is not reasonable suspicion for a stop. Second, even if we assume for the sake of argument that the officers had reasonable suspicion, Michigan law is clear that this does not provide an officer the authority to search for and seize an individuals wallet, then enter the wallet seeking an identification card or drivers license.  People v. Williams, 234 N.W.2d 531 (Mich. Ct. App. 1975) (“Assuming the officer’s initial stop and questioning was proper in the present case,it is clear that the seizure of the defendant’s wallet cannot be justified as a protective pre-arrest search since the purpose of the search was not to seize a weapon.”).

Further, the officer knew that he wasn’t arresting  Baker, as he told Baker just a few second later that he didn’t have a right to an attorney or to remain silent because he wasn’t under arrest (at 3:40).  Additionally, the officer states later, on the radio that this is an “open carry issue” (at 4:30).

Later, when it is back to video, a sergeant is trying to sell the story that it is a “public safety” issue–but the police don’t have the authority to detain someone unless they have reasonable suspicion of a crime.  The officers clearly have no grounds to detain the individuals for open carry where open carry is legal.  The intent seems to be to chill the individuals from exercising their rights, which is a violation of 42 U.S.C. § 1983.  See generally Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807 (6th Cir. 2007).

In the second video, the officer clearly doesn’t understand the law, asking if the individual has a permit for the firearms, apparently not knowing that no permit is required in Michigan to open carry.

The Chief of Police is Michael Reese, e-mail mreese@sterling-heights.net, phone 586-446-2810.

 

Putnam County, FL Sheriff’s Office Needs to HonorYourOath

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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.

 

Royal Oaks Police Harass Open Carrier

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In Michigan, open carry is legal without a permit or a license.  Here, a young officer stops a citizen who is openly carrying.  The citizen immediately asks if he is being detained and the officer tells him he is not being detained, whereupon the citizen turns to walk away.  The officer clearly wasn’t expecting that and orders him to stop, telling him that he is being detained.  Thus far there has been nothing to indicate that the officer has any sort of reasonable suspicion of a crime to justify the stop.  See Terry v. Ohio, 392 U.S. 1, 22 (1968); People v. Jenkins, 691 N.W.2d 759, 764 (Mich. 2005); People v. Custer, 630 N.W.2d 870, 876 (Mich. 2001).

Note that in Michigan, the Michigan State Police have issued a legal update that clearly states that the open carry of a firearm is not a crime.  Michigan also does not have a stop and ID law, meaning that the officer cannot stop someone and demand identification without reasonable suspicion for a crime.

The officer asks for ID, stating that the citizen may have a “mental injunctive order” or something.  The citizen refuses to provide ID, as is his right.  See People v. Williams, 234 N.W.2d 541, 545 (Mich. 1975); People v. Rivers, 202 N.W.2d 498, 501 (Mich. 1972).  Further, if the officer does not have a reasonable suspicion that the citizen has a “mental injunctive order”, or something, that is not the default position, that the possession of the weapon is illegal.  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. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.”).

The officer is obviously irritated by the refusal to provide ID, and wants to know what the citizen’s problem is, that he needs to see the citizen’s ID.  He then tries to get the citizen to turn off his own video, and the citizen wisely refuses, citing the First Amendment.  At that time (about 2:15 in the video), a second, more experienced officer shows up and tells the citizen that if he doesn’t want to give ID it is OK, he is free to go.

The younger officer looks like he got kicked in the teeth at that point.  He does, however, follow the citizen for the next 15 minutes.

From my perspective this is fairly clear cut.  The young officer was not prepared nor trained to handle this.  He had no idea what he could or could not legally do, and the fact that the citizen stood up for his rights surprised him.  He hesitated due to his confusion, which was actually a good thing.  Some officers are much more assertive in what they believe their authority is, and would have stepped off into a minefield by making an arrest or taking other illegal actions.

Officers are not used to be confronted in a calm and reasonable way where their authority is being questioned.  They don’t like it when it happens.  The young officer was also lucky that the more experienced officer showed up, because you could see that the younger one was losing his patience.

That is also the reason that the officer followed him for the next 15 minutes or so (the videos are available at the citizen’s Youtube channel).  Had the citizen jaywalked or spit on the sidewalk, the officer would have made contact under the guise of the minor violation.

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.

 

Open Carry in Clifton Heights, PA; Mark Florino

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A good example of how to handle an open carry stop in Pennsylvania.

Mark (who has had several contacts with police while open carrying) determined that he was not suspected of a crime, refused to ID, and terminated the contact.

 

take that, goliath.

just another day sitting next to the defendant

Hercules and the umpire.

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