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.

 

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Another Example of Police in Texas not Knowing the Law – Corpus Christi

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Here we go again, with Texas cops not knowing the law.  This time it is out of Corpus Christi and not only one, but two lieutenants are involved.  Here are the four videos of the incident.

Here the user shows that he is videotaping from his own property and that he is openly carrying a holstered pistol.  Texas is not an open carry state, but the statute that covers this is Unlawfully Carrying a Weapon, Tex. Pen. Code Ann. § 46.02.  This law states that: “A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not on the person’s own premises or premises under the person’s control….”  Tex. Pen. Code Ann. § 46.02 (Vernon).  At about 5:00 in part 1, the two officers approach and the user (Gloc361) advises them not to enter his property.  The officers then try to tell him that he can’t openly carry a pistol (at 5:26).  This is flat out incorrect.  See Johnson v. State, 269 S.W.2d 406 (Tex. Crim. App. 1954) (“Appellant had the lawful right to carry a pistol on his own premises and this right extended to every part thereof.”); Mireles v. State, 192 S.W. 241, 243 (Tex. Crim. App. 1917) (“Clearly, under the law and evidence, he was not guilty of violating the law in carrying said [weapon] on either the forty acres of tillable land that he had rented from Mr. Roberts nor in Mr. Roberts’ pasture, where he kept his team, and had the right to go to get them as a part of his rented premises….”).  A person can openly carry a handgun on his own property.

It appears that at about 1:00-05 in the second video that the officer makes a comment about notifying Child Protective Services, although the audio is not clear enough for me to be absolutely positive on this.  If she did mention that, then it is wrong on so many levels.  First, the lawful presence of firearms does not pose a danger to the child.  Second, using CPS as a threat for compliance is just vile.  At about 1:45 a third officer tries to tell him that he can wear the gun inside his house, but not outside.  Case law clearly doesn’t support that.  Mireles, 192 S.W. at 243.  In addition, “premises” is not limited to inside of a building.  See Tex. Atty. Gen. Op. No. H-185 (1973) (“The term ‘premises’ has attached to it various meanings, owing to the connection in which it is used, but, generally speaking, the term includes not only buildings, but the lot or land upon which the same are situated.”, citing Merch. & Mfgs.’ Lloyds’ Ins. Exch. et al. v. S. Trading Co. of Texas, 205 S.W. 352 (Tex. Civ. App.–Fort Worth, 1918)).

This is only 15 seconds, and really doesn’t cover much.

Here he talks to two different lieutenants.  The individual asks the lieutenant if he is violating the law.  The first lieutenant to talk to him will flat out not answer his question, but repeats what the other officer stated, that he could not be outside with a sidearm.  When pressed, the lieutenant states that it just “looks odd.”  Last time I checked, “looking odd” was not a violation of the penal statutes of the State of Texas.

At 3:52, Lt. Tim Brown walks up and states that the individual is creating a breach of the peace, causing alarm.  See Tex. Pen. Code Ann. § 46.02  Again, this is not correct according to case law in Texas.  A recent case in Dallas addressed this very issue, stating:

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.

Grieve v. State, 05-07-00156-CR, 2008 WL 2152890 (Tex. App.—Dallas May 22, 2008, no pet.).  See also Bedford v. State, 69 S.W. 158 (Tex. Crim. App. 1902) (if pistol was displayed in a threatening manner, calculated to alarm, it is an offense);Jones v. State, 01-98-00645-CR, 1999 WL 517135 (Tex. App.—Houston [1st Dist.] July 22, 1999, no pet.) (when subject grabbed victim and held her for a time, told her she was his and that she belonged to him, then pulled a knife from his pocket and opened it, he displayed it in a manner calculated to alarm); Biggerstaff v. State, 2 S.W.2d 256 (Tex. Crim. App. 1927) (speaking of the exhibition of deadly weapons or the semblance thereof in an angry and threatening manner calculated to alarm).Lt. Brown, without some evidence of a threatening display of the pistol, you can not show the elements of Disorderly Conduct.  Lt. Brown then compounds the error by demanding identification, and stating that he has the right to know who he is talking to on a police contact.  In fact, he doesn’t.  We discussed this in more depth at this post and this post, but unless he is arrested, he is under absolutely no obligation to identify himself to police.

The District is commanded by Capt. David Blackmon (DavidBl@cctexas.com) and the Chief is Chief Floyd Simpson (FloydS@cctexas.com).  Note that Corpus Christi is one of the few police departments in Texas that have a union contract, and they also have a unique rank structure of Officer, Sr. Officer, Lieutenant, Captain, Commander, Asst. Chief, and Chief.  There are no Sergeants.

 

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.

Are Police in Bell County, Texas Violating Citizen’s Rights?

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A while back I came across a disturbing video from Belton, Texas.  Then just a few days ago, a reader sent me a link about another disturbing video from Temple, Texas.  Both cities are in Bell County, Texas, and share a common border.  Let’s discuss the videos one by one.

Belton Police threaten citizen with illegal arrest.

Officer J. Thomas is talking to a concealed handgun license holder on February 5, 2013 at the Bell County Office of Emergency Management.  The building has a no concealed handgun sign at the door, but the sign does not comply with Texas law.  First, the sign does not properly state the notice as required by Tex. Pen. Code Ann. § 30.06.  Second, the statute prohibits a governmental body from prohibiting concealed carry in its buildings, Id. § 30.06(e), with limited exceptions such as jails, etc.

In any event, the citizen did not carry into the building, erring on the side of caution.  Towards the end of the discussion, Officer Thomas demands the citizen’s identification and when the citizen correctly points out that he does not have to provide identification (at 3:20 in the video).  The officer clearly does not understand the law for failure to identify, Tex. Pen. Code Ann. § 38.02.  The elements of the offense are simple:

  • A person who is arrested refuses to provide his name, address, and date of birth to a peace officer.
  • A person who is arrested provides a false or fictitious name, address, and date of birth to a peace officer.
  • A person who is lawfully detained provides a false or fictitious name, address, and date of birth to a peace officer.

It is not an offense to refuse to provide identification when lawfully detained.  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); see also Brown v. Texas, 443 U.S. 47 (1979) (police may not stop and demand identification without reasonable suspicion of a crime).  In addition, there is no criminal penalty for refusing to provide a concealed handgun license when not carrying.  There used to be, but the legislature removed the criminal penalty.

At 3:45, Officer Thomas stated that he was a Texas peace officer and requested identification, and that was all he needed to do in the State of Texas.  This is an incorrect statement, and could subject the officer to civil claims under 42 U.S.C § 1983 for violation of civil rights, as well as criminal charges of official oppression, Tex. Pen. Code Ann. § 39.03.

A complaint was filed on March 6, 2013, and the citizen received a letter on April 13, 2013 stating that the officer broke no law.  This is obviously incorrect.  The Chief of Police of the Belton Police Department is Gene Ellis (police@beltontexas.gov, 254-933-5840) and the City Manager is Sam Listi (slisti@beltontexas.gov, 254-933-5818).

Temple Police arrest decorated veteran for “rudely” carrying a rifle.

Army Master Sergeant C.J. Grisham was arrested for openly carrying a rifle while hiking down a country road with his 15-year old son.  Basically the video and the linked articles tell the story better than I could, so my comments will be brief.  At about 0:45 in the video, MSG Grisham tells the officer that he will do everything that the officer asks him to do, right after the officer has said that he needs to check and see if Grisham is entitled to carry the rifle.  This is another version of the “I don’t know you, you might be a felon” line that courts have already held is unlawful.  See United States v. Black, 707 F.3d 531 (4th Cir. 2013) (holding that where firearms carry is legal, an officer must have reasonable suspicion of a crime to detain an individual, and that assuming a person is a felon is not the default view).

The officer says that he can stop anyone for “rudely displaying” a gun.  Unfortunately, this is not correct.  In Texas, it is legal to carry a rifle or shotgun openly.  A person may not carry the firearm in a manner “calculated to alarm.”  Tex. Pen. Code Ann. § 42.01(a)(8). The fact that someone called the police is not sufficient to show that it was a manner calculated to alarm, Grieve v. State, Nos. 05–07–00156–CR, 05–07–00157–CR, 2008 Tex. App. LEXIS 3756, 2008 WL 2152890 (Tex. App.–Dallas 2008, no pet.) (not designated for publication).

One of the key statements comes at 3:25, when the police sergeant states that “they don’t care what the law is.”  At another point, the sergeant says that police are exempt from the law.

Even more egregious is the fact that the police would not let the 15-year old son out of the police car until he answered all of their questions, after Grisham told his son not to talk to the officers.

The Chief of Police is Gary Smith (police@ci.temple.tx.us, 254-298-5500) and the City Manager is David Blackburn (dblackburn@ci.temple.tx.us, 254-298-5600).

In addition, other locals officials are:

  • County Attorney: James E. Nichols, county.attorney@co.bell.tx.us, 254-933-5135.
  • Chamber of Commerce President:  Stephanie O’Banion, stephanie@beltonchamber.com, 254-939-3551.

According to KCEN-TV, the Temple Police are no longer commenting on the matter.

HT:  andrew

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