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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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

Kennedale Texas Police and Fail to ID; Ignorance Still Abounds

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It would be nice if I could post a story about how a police officer in Texas really understood the state’s Failure to Identify statute, Tex. Penal Code Ann. § 38.02 (West).

Unfortunately, this ain’t one of those.  A female Kennedale, Texas police officer responded to a call about several males open carrying rifles.  This isn’t a real good idea, but that’s a different issue.

(edited to restore video, thanks to Lewis Garza)

The first thing I get a kick out of is when the female officer ask the men if the rifles are loaded.  Duh.  Dumb question.  Would she trust them if they said the rifles were unloaded?  And then she acts surprised when she is informed that they are loaded.  Then she asks the men not to record her (“could you put that down, away from me?”) as if that was going to happen.

At about 0:25 she requests ID and the men immediately refuse.  The man’s spokesperson correctly informs her that the only time that he is required to ID is if he is being arrested for committing a crime.  That is exactly what the law requires, as we have discussed here and here.  And she immediately asserts that she has a right to know who they are.

She seems to believe that if she makes contact, she has the right to demand ID, and she offers “officer safety” as a reason.  It seems logical, but unfortunately she does not have that right.  See St. George v. State, 197 S.W.3d 806 (Tex. App.—Fort Worth 2006), aff’d, 237 S.W.3d 720 (Tex. Crim. App. 2007).

The officer is probably Ofc. Tara Culpepper.  Kennedale has a chief, a captain, four sergeants, two detectives, and thirteen officers.  All are obviously male except Culpepper and a recruit officer.  Well, I suppose Jamie and Chris ‘might’ be females, but I doubt it.

In any event, she needs some in-service training on the matter, not that she’ll get it.

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.

 

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

5 Comments

Leonard Embody is a registered nurse, a licensed federal firearms dealer, and a gun rights activist.  He also, in my opinion, is somewhat of a whackjob.

In 2009, Embody carried an AK-47 pistol into a state park.  For some reason he painted the tip of the pistol orange.  He also dressed up in camouflage gear before doing so, becoming known as the Radnor Park Rambo.  He sued over being detained in the incident and lost on summary judgment, the court holding that the detention and temporary seizure of the gun was reasonable.  Embody v. Ward, No. 3:10cv-00126, 2011 U.S. Dist. LEXIS 79153, 2011 WL 2971055 (M.D. Tenn. July 20, 2011).  He then appealed and lost that appeal when the Sixth Circuit affirmed.  Embody v. Ward, 695 F.3d 577 (6th Cir. 2012), cert. denied, 133 S. Ct. 770, 184 L. Ed. 499.  This was also covered by “The Volokh Conspiracy“, with Embody participating in the comment section (which has over 600 comments).  As Volokh noted, it is rare when the Brady anti-gun people and the Second Amendment Foundation are on the same side, and that was against Embody.

Embody has carried a loaded black-powder pistol in his hand (i.e., not in a holster) while in Belle Meade, TN in  2010.  Tennessee law preempts local regulation of guns, but grandfathers in existing local gun laws.  In Belle Meade, there was a provision of the law that stated “except the army or navy pistol which shall be carried openly in the hand.”  Belle Meade Mun. Code § 11-602 (1987), repealed Ord. #2010-7, Sept. 2010.  Obviously the city did not like the idea of individuals carrying revolvers around in their hands.  This also caused the Belle Meade police to request that the state revoke Embody’s concealed carry permit, alleging that he was a danger to the public.  The State Police did revoke his permit and his administrative appeal failed, launching a new lawsuit, this one challenging the constitutionality of the Tennessee firearm statutes.    The trial court granted the state a summary judgment, and the appellate court affirmedEmbody v. Cooper, No. M2012-01830-COA-R3-CV, 2013 Tenn. App. LEXIS 343, 2013 WL 2295671 (Tenn. Ct. App. May 22, 2013).

Now the whackjob has gotten arrestedar15caseHe was walking around downtown Nashville handing out flyers while wearing body armor.  Slung on his back, he had a rifle that was in a kydex case, which means that it was form fitted to the rifle and that it was obvious that it could contain a rifle.  And Tennessee does not allow a person to openly carry a loaded rifle.  So when police officers were called, saw the case, they immediately had reasonable suspicion to check if he was in fact carrying a rifle.  So when they opened the case, they found that it had a silencer on the end, which is a felony in Tennessee.  There is a defense, but since Embody was not talking to the officers, he couldn’t prove that he had a National Firearms Act license for the silencer.  It also was hilarious that Embody was screaming that they needed probable cause to detain and search him, which was not correct.  The arrest affidavit is here.

 

 

Sterling Heights Open Carry Confrontation

15 Comments

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.

 

Royal Oaks Police Harass Open Carrier

44 Comments

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.

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