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

8 Comments

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.

Buehler v. City of Austin, Where’s the Uproar & Controversy?

9 Comments

Buehler v. City of Austin, A-13-CV-1100-ML, 2015 U.S. Dist. Lexis 20878 (W.D. Tex. Feb. 20, 2015), was recently decided, and subsequently reported by PhotographyIsNotACrime.com (PINAC).  The decision has some good stuff in it, and some that isn’t so good.  The PINAC article was written by Andrew Meyer, who has a J.D. degree from Florida International, although I don’t know if he’s been admitted to the bar yet.  In any event, I was very surprised to see the errors I was seeing in the article.

First, it was not heard in a state court, which the headline infers it was.  It was decided in federal court.  Second, the case is not heading to the U.S. Supreme Court, at least not yet.  It will go to the Fifth Circuit Court first, which will likely affirm the trial court’s decision.  Then, if the Fifth Circuit does affirm, Buehler will have to request that SCOTUS grant cert., or agree to hear the case.  That, even with the minor split, is a long shot.*

Second, nothing in the decision was legally controversial.  The Fifth Circuit has a different way of viewing probable cause and grand juries than the other circuits.  It’s not that controversial, it just indicates a circuit split.  It’s also not a “legal technicality.”

Third, and this is the one that is most surprising, is that the federal judge said in his order that filming the police was a clearly established right.  Id., at *21-22.  This had not (at least to my knowledge) been stated in the Fifth Circuit yet, although it was clearly established in most of the other circuits.  That issue wasn’t addressed at all in the article.

This article is pure activism, and nowhere close to neutral and unbiased journalism.  It’s one of the reasons that I left PINAC–I love Carlos Miller and what he has and for the most part, continues to do.  It’s needed and he has done an outstanding job, but he needs to exert some editorial control over his staff if he wants PINAC to be respected for its journalism.  If he wants to go the activist route, that’s fine too, but that needs to be out in the open, not hidden.

Finally, although I would like Buehler to succeed, I’m not real keen on his methods.  He’s too confrontational, and yelling at the officers while filming is asking for trouble.  Jeff Grey has as much success (or more) as Buehler and does not unnecessarily agitate the officers.

 

*SCOTUS receives about 10,000 requests for cert. a year and only grants about 75-80 (or 0.8%).  I’m sorry, but less than a one percent shot at SCOTUS does not meet my definition of “is likely headed to the U.S. Supreme Court” by any stretch of the imagination.

Pampa, the Panhandle, and more Failure to ID Idiocy

7 Comments

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.

 

Putnam County, FL Sheriff’s Office Needs to HonorYourOath

16 Comments

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.

 

Carson City & Lyon County Sheriffs, Unlawfully Detain Photographer

8 Comments

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.

 

Nebraska Officer Twists Off on Citizen Videographer

22 Comments

 

Apparently the fat bald officer (Officer Tobler) with the Sidney, Nebraska PD hasn’t gotten the memo.  First he threatens the citizen, Steven Bell, with arrest, then he throws Bell’s license and registration at him, and then he really flips out.   He cursed Bell and looked like he was going to get physical.  A second officer immediately grabbed him (the officer) and moved him over to the side, and then took Bell’s complaint to forward to the Interim Chief.  The local paper said as of June 25th, the Chief would only say that the matter was under investigation.  It has also made PoliceOne.  Some of the posters there are advocating retaliating against the citizen.

The Chief can be reached at this website or at (308) 254-5515.

 

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

6 Comments

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.

Older Entries

Turtle Talk

Indigenous Law and Policy Center Blog Michigan State University College of Law

take that, goliath.

just another day sitting next to the defendant

Hercules and the umpire.

THE ROLE OF THE FEDERAL TRIAL JUDGE. PLEASE NOTE THAT THIS BLOG ENDED FOREVER ON JULY 9, 2015

Windypundit

Classical liberalism, criminal laws, the war on drugs, economics, free speech, technology, photography, and whatever else comes to mind.

JONATHAN TURLEY

Res ipsa loquitur ("The thing itself speaks")

UNWASHED ADVOCATE

Dispatches from Bat Country, where proper medication is optional.

Chasing Truth. Catching Hell.

A Public Defender's Blog, @normdeguerreesq

The Legal Satyricon

Occasionally irreverent thoughts on law, liberty, tech, and politics.

Legal Writing Prof Blog

General ramblings of a former police officer turned lawyer

Blog – LawProse

General ramblings of a former police officer turned lawyer

How Appealing

General ramblings of a former police officer turned lawyer

General ramblings of a former police officer turned lawyer

SCOTUSblog

General ramblings of a former police officer turned lawyer

Real Lawyers Have Blogs

General ramblings of a former police officer turned lawyer

The Droid Lawyer™

Tips, Tricks, and Techniques for Lawyers using Android mobile devices

Say What?! Classic Courtroom Humor from Judge Jerry Buchmeyer

General ramblings of a former police officer turned lawyer

Judge Bonnie Sudderth

Law Blog on the Texas Rules of Evidence

New York Personal Injury Law Blog

An attorney's blog on New York personal injury law, medical malpractice, the civil justice system and cases of interest.

Overlawyered

Chronicling the high cost of our legal system

The Federal Criminal Appeals Blog

Just another WordPress.com site

Defending People

General ramblings of a former police officer turned lawyer

Preaching to the choir

General ramblings of a former police officer turned lawyer

Crime and Consequences Blog

General ramblings of a former police officer turned lawyer

Koehler Law

Criminal and DUI Defense in Washington, D.C.

The BLT: The Blog of Legal Times

General ramblings of a former police officer turned lawyer

The Volokh Conspiracy

General ramblings of a former police officer turned lawyer

Trial Theory

A South Carolina Criminal Defense Blog

Appealingly Brief!

Ruminations (brief and to the point) on the law and lawyering, by Daniel Klau.

Popehat

A Group Complaint about Law, Liberty, and Leisure

ExCop-Lawyer

General ramblings of a former police officer turned lawyer