Texas Rep. Jason Villalba (Dist. 114-R) introduces the Kory Watkins Bill

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OK, so it isn’t actually named after Kory, but it might as well be.  Second-term state representative Jason Villalba has introduced Texas House Bill 2918 to basically take away the public’s right to film the police.  The bill would criminalize filming within 25 feet of a police officer unless you were part of the “media,” and if armed, one could be no closer than 100 feet.

This is basically a reaction to the confrontational style of Kory, who has a tendency to get very close to the officers while being loud and armed with either a rifle or a black powder revolver.  So Villalba decided that a new law was needed, despite the fact that there is already a perfectly valid law on the book that deals with the issue.  When questioned on that, Villalba said that many times officers are too busy to tell those filming to step back or to put up yellow crime scene tape.

Uh, Jason?  If they are too busy to tell someone to move back, wouldn’t they be too busy to make an additional arrest?  Because the purpose of the law is to criminalize the gathering of information that can be used to exercise the right to free speech.  The fact that a law is on the books doesn’t magically make people move back, nor does it encourage the police to welcome citizen photographers.  On the contrary, it encourages police officers to suppress free speech.

Villalba practices high-dollar law for a big box law firm, Haynes and Boone, where he is a partner.  The base salary for first year associates is reported to be $160,000 per year, a partner will make much more than that, so it is fair to say that Villalba is not your average Texan.  He’s also arrogant, telling opponents of his censorship bill that he will “destroy” them on Facebook (since deleted) and to vote him “out of office” on Twiter (also since deleted).

This isn’t Villalba’s first incursion into the territory of the First Amendment.  In December, he called for a state constitutional amendment that would protect anti-homosexual bigots from government action.  Only after pretty much everyone objected to it, including most business leaders.

Like many of the efforts of wealthy legislators, this current bill is designed to protect the status quo, not to benefit the public.  Besides that, it is blatantly unconstitutional, creating a special class of citizens who have First Amendment rights while denying it to others.

Follow-up to Purcell v. Hollenbeck lawsuit

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In 2013, I commented on a lawsuit that arose when Sebastian County Sheriff’s Deputy Brian Fuller confronted Braden Purcell over Purcell’s filming a SWAT raid.  Fuller apparently did not like idea that the public had a right to film and confronted Purcell, demanding both identification and the iPhone used to film the raid.  Then, after the prosecutor dropped charges, Fuller “lost” the phone and the sheriff’s office refused to pay for it.*

The problems began to arise in the discovery phase of the case.  Fuller claimed that Purcell was aggressive, which Purcell denied.  Lavaca Police Officer Dale Teague said that Purcell “tripped” while Deputy Matthew Walter said that officers took Purcell to the ground.  Fuller also claimed that Purcell had been seen leaving the drug house earlier, a fact which Fuller did not put in his initial report, the arrest affidavit on Purcell, or mention to the Internal Affairs investigator.  Fuller also claimed that Purcell’s arrest had nothing to do with his filming, a fact which was contradicted by another deputy.  Deputy Michael Grosskreuz stated that Fuller told him that Purcell was arrested for filming the raid.

A week before it was to go to trial,† Fuller offered to settle if there were a confidentiality clause.  Purcell refused.  Fuller ended up settling for $40,000 in damages to Purcell, plus attorney’s fees and costs.‡

Now Sebastian County has a policy on photography and officers.  It prohibits what Fuller was attempting to do.  Imagine that…

*Until they were sued, at which point they were more than willing to pay, but it was too late.

†It was set for trial July 29, 2014.  The judgment was paid sometime prior to September 8, 2014.

‡Attorney fees added about $50,000, for $90,000 total.

Pampa, the Panhandle, and more Failure to ID Idiocy

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Here we go again.  Another Texas peace officer with no clue about what Failure to Identify, Tex. Pen. Code Ann. § 38.02, actually says.

Andrew was taking photographs of the county courthouse and sees five police and sheriff squad cars on a stop, so he starts to film the scene from across the intersection.  At about 0:55, a Pampa Police Department officer Herrera walks across the street and contacts Andrew.  Their conversation goes well, clearly a consensual stop, and Andrew provides his name and date of birth on Officer Herrera’s request.

At 3:00 into the video, the traffic stop has concluded and Andrew starts to walk away, when he is confronted by Deputy Stokes of the Gray County Sheriff’s Office.  Stokes, who has since become employed by the Pampa Police Department, immediately attempted to seize the photography equipment as evidence.  Stokes refuses to get a supervisor on request, tells Andrew to stop talking, and threatens to arrest Andrew when Andrew points out that he has a First Amendment right to speak.  When that happened, Stokes said that “I think I’ll make up stuff” and attempted to grab the camera from Andrew (at 3:50).

At about 4:20, the demand for ID begins by Stokes and he really shows his ignorance.  First, as has been noted numerous times before, in Texas, under the Failure to Identify statute, one has to be under arrest to be obligated to provide their name, residence address, and date of birth to an officer.  Otherwise, the statute merely makes it an offense to provide fictitious information.

At about 4:40, Stokes tells Andrew that he is not allowed to record peace officers in the public arena while they are conducting a traffic stop.  Stokes is clearly out of his league here.  It is well-established that the public have the right to videotape public officers in a public place.  See Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995); and Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).

This did not start to calm down until Andrew asked the Pampa officers if he could press charges on Stokes for assault.  At that point (7:50), the deputy was told to walk away by Officer Reynolds, who then talked to Andrew.  Stokes comes back over and starts to question Andrew again, and this time tells Andrew that he has to answer Stokes’ questions (at about 10:10).  This is obviously not true, and Andrew calls him on it.  At this point, Andrew is allowed to walk away.

 

Fairly Good Job by Travis County, Texas Sheriff’s Deputies

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Although the poster, Christian Perez, believes that he was harassed, the deputies in this case did a fairly good job in this case, at least from what was recorded on the video.

The Travis County Sheriff’s Office is out on an intoxicated female, along with paramedics (Austin/Travis County EMS) and firemen (Manchaca Fire/Rescue) when Christian begins to videotape the event.  One deputy attempts to tell Christian that his filming is a HIPPA violation (it’s not), but Christian tells him it is not and continues to film.  The deputy does not push the issue, and none of the EMTs say anything.

Later in the video (at 2:35), a deputy takes a couple of pictures of the videographer but doesn’t try to interfere or stop him from filming.  Another deputy then asks for Christian’s identification, but does not press the issue when Christian refuses to provide it.  The deputy also talks about needing the information for a subpoena to obtain a copy of the video as evidence.  Christian does a good job of refusing, and tells the deputy that unless he is suspected of a crime, he doesn’t have to even talk to the deputy.  The deputy then moves away, ending the encounter.

One of the paramedics then comes over (about 7:30) and asks how Christian would feel if that was his sister or girlfriend being filmed.  Christian tells him that she is in a public place and the paramedic moves away.  The paramedic did make sure and tell Christian that he wasn’t telling him that Christian could not film, he was just making an appeal for him not to do so.

As far as the suspect, the deputy gives her two options:  she can either take a ride home with another individual, or she can go to jail for public intoxication (PI).  The deputy also gives her an option to go to the hospital.  Unfortunately, like many drunks, she thinks that she can create a fourth option.  When she tried to push that, she was arrested for PI.

Although Christian feels that he was harassed, he was allowed to film the entire encounter without being told to move or being ordered to stop.  Several times attempts were made to dissuade him from filming, but none of the deputies infringed on his right to film.  None of the deputies were overbearing, and none pushed the issue when Christian stood up for his rights.

Officers may ask someone to stop filming, to provide identification, or to engage in a consensual conversation.  Without something more than what they had here, they cannot order someone to stop filming, to provide ID, or to talk to them.  The officers stayed within the legal limits.

Police Do a Good Job on Stop – And Then They Seize the Cellphone

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Geez guys, you were doing a great job.  It’s still not bad, but it could have been much better.

A guy on a crouch rocket is stopped for speeding, somewhere in Oklahoma.  The officer issues citations for speeding, no insurance, and expired license plates.  So far so good, everyone is calm, no real problems.

Then they advise the violator that they are impounding the bike since the tags are expired over ninety days.  The guy obviously doesn’t want his bike impounded, but initially doesn’t understand that he can’t take care of it at the scene.  Then he starts telling the officers that they are not going to take his bike, and if they do it’s theft of his property.  He also starts spouting some sovereign / voluntaryist BS about the State charging him money for his own property (i.e., he doesn’t want to pay taxes), but that has no real bearing on the issue at hand.

The officers suggest that he go inside, that he back off, and he refuses.  Then the officers inform him that if he interferes with the impound, he’ll be arrested for obstruction, which in this case would be appropriate.  Any the violator gets more vocal about the “theft” by the police, etc.

At which point the officer seizes the cellphone as evidence.

Legally, the officers are justified in every action that they took, including the seizure of the phone.  On the seizure, technically a citation is an arrest in Oklahoma, so 43 U.S.C. 2000aa (Privacy Protection Act) would not apply.  There were also exigent circumstances, since the violator was making accusations of criminal conduct on the part of the police and there was a danger that the evidence could be destroyed or altered.  All of that is legal.  The officers should be able to show that they were not committing theft or bullying the violator, and the video would prove that.

But if like most police departments, if the squad car is equipped with video, that should be sufficient.  It’s not illegal, it is not wrong, there were just better ways to handle the cellphone video if there is squad car video.

It doesn’t appear that there was any problem with the individual filming the encounter – not one word was mentioned on that.  The officers also stayed calm throughout, with no threats (despite the claim of the violator, the comments on obstruction were not threats, but were to advise the violator about the consequences of interfering).

 

Carson City & Lyon County Sheriffs, Unlawfully Detain Photographer

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In these two videos, you see Aaron Friesen being contacted twice by a deputy from the Carson City Sheriff’s office and by a deputy (Dep. Willy) from the Lyon County Sheriff’s office.  In the first contact, Friesen is contacted and asked why he is recording deputies coming in and out of the gate by Willy.  Friesen asks if he is free to go and Willy says yes, so Friesen walks down the street.

A few minutes later (2d video), the deputies recontact him.  This time the deputy tells him he’s being detained and to put his iPad down.  The deputy then tells Friesen that he cannot record law enforcement officers and the license plate numbers of their vehicles, that it is a violation of law.  Friesen immediately asks where in the Nevada Revised Statutes (N.R.S.) that it is a violation and the deputy asks if he wants him to call the sheriff over to explain it to him.  Friesen replies that he does want it explained to him.  The deputy then says that they can make this real easy or that they can make it real hard – which doesn’t cause Friesen to back down at all.  The deputies do conduct a Terry frisk, a pat-down of the outer garments for weapons.  See Terry v. Ohio, 392 U.S. 1 (1967).  The deputy justifies the pat-down by saying that he doesn’t know him and he’s filming deputies.  Once a supervisor shows up, he basically says that there is nothing the officers can do about Friesen’s filming.

Let’s review what happened and why it happened.

  • The deputies did not like being filmed, especially when the video was capturing their personal vehicles license plate numbers.  There is a valid concern here for officers, they do not want to bring any consequences of the job home to their families.  This is a reason that officer’s addresses are not normally subject to public information requests, etc.  When Friesen was first contacted, the deputies felt that he would be intimidated enough to leave.
  • Once he didn’t completely leave, they became irritated (how dare he not respect our authority) so they contacted him again.  Look at the initial response on the second contact, how the officer is acting.
  • The officer did not know the law.  He felt that filming police was wrong, so it must be against the law.  This is not uncommon among officers–look at the reaction when the supervisor indicated you can’t really do anything about it.  The one deputy asks, almost incredulously, if the supervisor was “OK” with Friesen filming.
  • The “I don’t know you” mantra has taken hold in the police world, and officers do not realize that this is not a valid reason for a pat-down search.  Examples of this abound.  The law student in Portland, Maine example.  Whitehall, Pennsylvania.  Several courts have ruled on this issue also, see United States v. Black, 707 F.3d 531 (4th Cir. 2013) (Being a felon in possession of a firearm is not the default status).
  • Officer safety.  Officers believe that they can justify almost anything under officer safety, which is understandable, that is what police academies and defensive tactics instructors teach them.  They don’t realize that officer safety measures must be related to the detention in the first place, see United States v. King, 990 F.2d 1552 (10th Cir. 1993) (Officer’s conduct was not “reasonably related in scope to the circumstances which justified the interference in the first place,” and went far beyond what was necessary to protect her safety).
  • Finally, officers are taught to believe that they know more about criminal law than anyone else.  For example, in one training session I went through, the instructor flatly stated that police officers received more classroom instruction in criminal law than lawyers did, basing it on the fact that most law students take a class in Criminal Law and maybe a class in Criminal Procedure.  Since I’m now in law school, I realize how idiotic this view is since lawyers don’t learn the law in the same way that police officers do.  Officers learn what the exact statutes are, lawyers learn the principles behind it, how to research it, case or common law, procedures, etc.  The problem is that an officer will read the text and decide on his own what it means, while a lawyer will double-check case law to make sure.  This means the officer will often try to stretch things to cover acts that are not criminal, or seek to apply a law that has be ruled unconstitutional (because it is still on the books, it must be OK).

This isn’t the only example of this in Carson City.

 

What an Out-of-Control Police Dept. Looks Like: Middletown, CT

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Middletown, CT is a typical New England town of about 47,000, located about halfway between New Haven and Hartford on the Connecticut River.  It is also the headquarters for the Connecticut State Police, although I’m not sure that this is a good thing, based on what we’ll discuss here today.

My attention was drawn to Middletown by Carlos Miller of Photography Is Not A Crime.

In 2010, Efrain Carrion died while in police custody, after his family had called 911 to get him help.  Carrion was arrested and handcuffed with his hands behind his back.  He then “assaulted” the officers to the point that they felt it was necessary to tase him 34 times.  While handcuffed.  This is before Carrion “fell” down the stairs.  While handcuffed.  The State Police spokesman talked on the news about how violent Carrion was and the danger he posed to officers, that he was choking the police dog.  While handcuffed. Cause of death was “excited delirium” which is normally associated with drug use.  Carrion died at the scene and the family has sued.

That incident of course has made the police re-evaluate their use of tasers.  Or not, considering they recently tased a seventh graderReally?  Even after police had been removed from the schools for their use of tasers against a 17-year-old in 2010?  Really?  The community and school is upset you tase a 17-year-old, so you come back and tase 12- or 13-year-old?  But that’s OK, because the student was “combative” according to a police spokesman.  A 12-year-old.  Really?

Last year the Acting Police Chief, Patrick McMahon, was demoted by the mayor, who said in regards to an incident the chief was involved it, “that while his description of the particular incident may have been technically accurate, there were a lot of other facts that should have been related to me and were not.”  McMahon was subsequently fired for drinking alcohol in uniform on at least five occasions, according to news reports.  You know, an out-of-control chief creates an out-of-control department.

The police department also does not like cameras.  Several years ago, they seized a cellphone camera because it may have “evidence” on it to support a loitering ticket.  This was covered on PINAC.  The cited individual was found not guilty in January 2013.  It’s actually kind of funny–the officer involved, Sebastian Bartolotta, had himself taped recorded an altercation with the Middleton Police in 2007 to protect himself from unfounded allegations by his superiors.  I guess he didn’t want it to be done to him.  Oops.

And they don’t like you filming their station, either, also on PINAC.  This is the one where the officer claims that “suspicion” is a crime.

The city has plenty of notice of the problem.

  • A lawsuit by Carrion’s estate.
  • A lawsuit by an individual for injuries suffered in jail, when they sent a K-9 into his cell.
  • A lawsuit by an individual shot in the arm in 2011.
  • A lawsuit by the mother of the 17-year old that was tasered in 2010.
  • The city settled a case from 2010.
  • A lawsuit from 2010 where the officers performed a body cavity search on the side of the road.
  • A lawsuit from 2008 alleging false arrest and search, dismissed on a technicality in 2009 (involving Bartolotta & Richard Siena).
  • A lawsuit from 2008 alleging illegal search and excessive force.
  • A complaint that a sergeant was viewing pornography on duty, Siena initially lied, then admitted it.  Three months later he was promoted to lieutenant.
  • A lawsuit from 2005 alleging excessive force where the suspect was beaten without warning.
  • A lawsuit from 2003 alleging assault and battery by officers.
  • A police officer and a lieutenant fighting in the police station (no charges were filed) in 2002.
  • A lawsuit from 2002, where officers threw a flash-bang grenade on top of two non-suspects while executing a warrant.

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