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

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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.

“He (didn’t) comply with their commands” so we killed him, said Police Captain Ken Roske UPDATE 3

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A yet unidentified man who had been throwing rocks at cars was shot and killed by Pasco, Washington police on Tuesday, Feb. 9, 2015.

The man can be seen throwing a rock at officers at approximately 0:05 of the video, and then turning to run.  At least one officer shoots at him at that time, and the first gunshots appear to be justified.  A thrown rock can be deadly force,* and the brain can transmitted the order to shoot before it realizes that the threat is turning and fleeing.  The man runs across the street with his hands up, turns down a sidewalk, and then turns as if to surrender with his hands still up, in front of him, empty, and in plain view.

Pasco Police Captain Ken Roske says the officers fired after the man refused to listen to their commands.  This is the fourth fatal shooting by police in the last six months.  So far, all officers have been cleared, and based on the comments by Roske, these three officers will also be cleared.  Non-police witnesses said that the man was merely trying to get away.

I don’t see how this shooting is justifiable, although it is clear, in my opinion, that Roske believes that if police give commands to someone and they don’t obey, then it is perfectly fine for the police officers to then shoot that person.  That also seems to be the way that patrons of PoliceOne are looking at the matter.

This appears, to me, to be a straight up execution.  For not obeying police commands.

*Ask Goliath or any of the multitude of people stoned to death in the modern day Middle East.

UPDATE:

1.  Capt. Roske, in addition to being the police manager over Public Information and Administration, is also the local FOP President and has been for over 10 years.  This is only relevant because, although it is not clear in this case, Police Administration is normally where the Internal Affairs function is located.  I would hope that it is not the case here, since having the police supervisor over IA also be the local union president would sure appear to be a conflict of interest.

2.  Involved officers are Ryan Flanagan, Adam Wright, and Adrian Alaniz.  The victim is Antonio Zambrano-Montes.  Chief Bob Metzger did not take any questions at the under four minute press briefing.  He reiterated the statement that Zambrano did not follow commands, and that officers were forced to kill him because of the “threats” to the public.  In other words, move on, nothing to see here.

3.  Well, the smear the dead guy campaign has begun.  Apparently Zambrano fought with police over a year ago.  Of course that is relevant to the shooting, because at that time he tried to throw a “rocking chair” at one officer, and did in fact throw a “male box” [sic]† at the officers.  Since all police officers instantly know of prior bad behavior, the officers who shoot Zambrano must have known this.  Perhaps they were afraid that he would find a female box to throw next.

†Presumably a mail box.

Is Failure to ID Really that Difficult to Understand? Corpus Christi, Round 2 – UPDATED

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This was first posted at PINAC, and in the past I would have commented on it there, but I’m no longer interacting there, so I am posting it here.

In the video, a police officer with an unknown police department† claims that Lanessa Espinosa is a “jailhouse lawyer” because she actually knows what the law says.  She pointed out that she did not have to identify herself unless she was “being charged.”  At that point Corpus Christi Senior Officer‡ J.E. Lockhart comes up and demands ID and tells her that he will arrest her if she doesn’t provide ID.

The problem is that § 38.02, Texas Penal Code, does not authorize an arrest for failure to ID on a mere detention unless the person provides a fictitious name.  We’ve covered that several times, here, here, here, here (also in Corpus), here, here, here, and here.

There are several things wrong with the video.  First, the officer from the unknown department is choking Espinosa with an arm-bar choke hold.  If you look at the video at 1:12, you’ll see the officer’s forearm cutting directly over Espinosa’s adam’s apple in the same manner that killed Eric Garner in New York.  The arm-bar choke hold is almost universally viewed as deadly force, and completely inappropriate here when the crime is at best, a misdemeanor under the officer’s mistaken idea of the law.

Second, it is a false arrest.  Even more so, it is an arrest because she is exercising her right not to provide identification when he knows (or should have known) that the arrest is unlawful, and that he intentionally denied her of her freedom when he knew (or should have known) that his conduct was unlawful.  Folks, that the definition of Official Oppression, § 39.03, Texas Penal Code, and is a Class A misdemeanor.††

I can almost guarantee that Chief Floyd Simpson will not follow up on this.  Recently he kept an officer on the department after the officer assaulted a handcuffed prisoner in the jail.  That officer got a two-week suspension and was allowed to retire.

Anyway, if you want to waste your time, you can contact the department:

  • Chief Floyd Simpson (FloydS@cctexas.com), 361-886-2600.
  • Internal Affairs, 361-886-2627.

†We know it is not a sheriff’s office because the patch says “Police” just above the state seal.  I believe that it is probably going to be some type of park ranger or park police for several reasons.  One, the uniform, except for the patch, is much the same as the TPWD park ranger uniform.  Second, the badge appears to be round, which is the normal shape for a state agency, although some county agencies also use a round badge.

‡In Corpus, for some reason, the sergeants are called “senior officer” although they wear sergeant stripes on their collar.

††Punishable by up to a $4,000 fine and/or up to 1 year in the county jail.

UPDATE:

OK, the first officer in the khaki shirt is an investigator from the Nueces County DA’s Office.  Second, they detained Espinosa for Interference with Public Duties, § 38.15, Texas Penal Code.  She was not arrested, but was released at the scene.  A very quick check of the annotations leaves it unclear if this would be a valid charge or not, but I don’t have the time to research it thoroughly.  My initial impression is that this is BS, but without a case directly on point, they can probably skate on Official Oppression.

Next, the NCDA (Mark Skurka) is investigating the use of the chokehold by the officer.  You’ll probably never hear what the result is, and there will likely be no disciplinary action taken.  You can contact the DA’s Office at 361-888-0410 or at nueces.districtattorney@nuecesco.com. BTW, this was an off-duty job for the officer, DA investigators are normally in plain clothes.

Corpus Christi issued a press release absolving their officer of all responsibility and stating how they were committed to transparency and allow people to videotape or film.  All of that is nice, but it misses the point.  There were no grounds to require identification, as state law did not require it.  Espinosa took no actions other than to verbally assert her rights, in other words, speech only.  Finally, the press release noted how CCPD officers were trained to “be respectful” and to use “de-escalation techniques.”  Really?  That’s what they call respect and de-escalation?  I would hate to see what is disrespectful and escalating.

Round Rock Failure to ID – Follow Up

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Back in July, I posted on a photographer being harassed and unlawfully detained by the Round Rock police.  The photographer subsequently filed a complaint with the department (which I covered in the update).

About a month after the original complaint, the photographer contacted the department again and was told that the investigation had been completed.

The investigator addressed three areas:  A complaint of a First Amendment violation; a complaint of a Fourth Amendment violation, and a complaint of Excessive Force.  The investigator made findings of unfounded, sustained, and exonerated.  This makes sense from their point of view, but ignores several issues.

First, the officers did violate the photographer’s Fourth Amendment rights and the investigator properly sustained that complaint.  Sustained, in police lingo, means that it is a valid complaint and that the officer violated law or policy.  Here this is clear.  Officer Hernandez did not have reasonable suspicion of a crime or criminal activity, yet demanded identification and handcuffed the photographer.  The photographer was illegally seized by the officer.

Second, I disagree on the excessive force, but I understand how the investigator got to that conclusion.  The only way to change that position would be to sue the department, and you are looking at a lot of expense for limited returns given the de minimus nature of any injury.  Exonerated means that the officer did the actions complained of, but that they were within policy.  Here, the department likely believes that mere handcuffs are not a use of force and the matter is adequately covered by the Fourth Amendment violation.

Unfortunately, that is not, in my opinion, a correct view.  The use of handcuffs is a use of force and that is recognized by the courts.  See Nargi v. State, 895 S.W.2d 820, 822 (Tex. App.–Houston [14th Dist.] 1995), pet. dism’d, improvidently granted, 922 S.W.2d 180 (Tex. Crim. App. 1996).  However, the federal Fifth Circuit has held that “[H]andcuffing too tightly, without more, does not amount to excessive force. There is no allegation here that [the officer] acted with malice.”  Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001).  Of course in Glenn, the officer was justified in using handcuffs.  I would argue that the fact that there was no justification for applying the handcuffs and then stating that they would stay on until the photographer identified himself was the “more” required by the Fifth Circuit.  But as I said, that would take court action to fix, and it’s not going to happen in this case.

Finally, on the First Amendment issue.  Technically the officer did not impede the photographer’s right to film, thus the unfounded finding.  That explanation ignores the fact that had it not been for the photography, there would have been no police contact to begin with, and no other violations.  However, this likely served to educate most of the department, especially with the finding that was made.

Apparently the punishment or disciplinary action was apparently limited to a letter of reprimand.

Under the circumstances, I think that this was appropriate for Officer Hernandez.  I don’t see that Sergeant Osborn had any action taken against him, however, that may be due to the fact that there was no complaint made against him.

Finally, I see no indication that the department even acknowledged that refusing to identify oneself while not under arrest is not a crime in Texas.

The Last of Three Abusive Bridgeport, CT Officers Indicted

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In 2011 following a chase, Bridgeport, Connecticut Police Officers tased and arrested Orlando Lopez-Soto.  The two officers initially involved, Elson Morales and Joseph Lawlor, repeatedly kicked Lopez after he was laying flat on the ground, compliant.  They pleaded guilty to federal charges of deprivation of rights under the color of law, a violation of 18 U.S.C. 242.  Each face up to a year in prison.

Clive Higgins did not take the deal and was indicted for the violation with bodily injury.  He faces up to ten years in prison and pleaded not guilty.  He has been placed on unpaid suspension by his department, which recently settled with Lopez for $198,000.  Lopez is currently in prison on a 5-year sentence on drug and gun charges.

What is interesting in this case is that Higgins is being represented by a federal public defender.  Why isn’t he being represented by a union attorney?  I can think of two likely reasons, first, that he was not a member, in which case he is an idiot.  Second, that the union cut him loose, not wanting to defend him, in which case they are spineless.  There are, of course, other possibilities, so there may be a good explanation, but that is just my read on the situation.

In any event, all three are pretty much toast, and rightfully so.  While I do not have a problem with force when it is justified, unjustified force must be identified and prosecuted.

Elizabeth Daly Settles Lawsuit against Virginia

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In 2013 a University of Virginia student, Elizabeth Daly, was arrested for fleeing police and assault on police.  She had just bought a LaCroix-12PK-PURE12-pack of LaCroix sparkling water and undercover agents of the Virginia Alcoholic Beverage Control attempted to contact her in the parking lot.

Of course, none had on anything that identified them as police and one of the morons drew his pistol while another of the morons tried to bust in the window.

Naturally Ms. Daly was terrified, believing that she was being attacked by criminals.  So she tried to flee in her SUV, was arrested, and jailed.  The charges were dropped by someone with more sense than the officers and Daly filed suit.

Now the State of Virginia has settled the suit for $212,500 while admitting no wrongdoing.  Yeah, right.

Virginia settled the suit because they had just lost a motion for dismissal based on qualified immunity and a motion to quash a subpoena for the internal investigation conducted over the incident.  First, the court found that the amount of force used exceeded that which would be appropriate for a Terry stop and that the agents would need to show probable cause, not mere reasonable suspicion.  Second, the internal report likely identified the two agents who violated policy and were disciplined by the agency.  Combined, the State could see the writing on the wall and decided to settle.

The agents that thought this was a good idea were Special Agents Lauren Banks, Armon Brown, John Cielakie, Andrew Covey, Jonathan Pine, and Kevin Weatherholtz.  The supervisor present was Special Agent in Charge John Taylor.

The state has since changed its policies and procedures for these type operations, and the entire ABC has been under review, including legislative proposals to strip the agency of its law enforcement function.

Round Rock Police Violate Photographer’s Civil Rights – UPDATED

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Again, we have a case of police in Texas not understanding Tex. Pen. Code § 38.02, or the idea of lawful detention.

In this video, the photographer is taking pictures of the Round Rock, Texas Police station when he is approached by Officer Paul Hernandez who advises him he is being detained until he produces identification.  First, under Texas law, a person is not required to identify themselves unless they are under arrest, see § 38.02(a).  Officers are not allowed to demand identification without reasonable suspicion that the subject is involved in criminal activity, Brown v. Texas, 443 U.S. 47, 51 (1979); Wade v. State, 442 S.W.3d 661, 670 (Tex. Crim. App. 2013).  Officer Hernandez stated (at 6:26, part I) that when asked to identify by an officer, refusal is a crime, which is not true.  A person being detained is under no obligation to identify themselves, see § 38.02(b).

“[W]hen they have no basis for reasonable suspicion, officers may ask questions . . . and request identification, ‘as long as the police do not convey a message that compliance with their requests is required.'”  St. George v. State, 197 S.W.3d 806, 819 (Tex. Crim. App. 2006).  Here they handcuffed and searched the photographer without any reasonable suspicion.

What is even worse is that after the supervisor gets there, the officers condition the photographer’s release on whether or not he’ll “cooperate” with the officers by providing identification (at 6:15, part II).  At 8:20 (part II), the photographer requests identifying information from the officers present and Sergeant Mike Osborn informs him that all he needs is the sergeant’s information.  That’s all well and good, but in all likelihood violates their own department policies.  The Round Rock PD is accredited by CALEA, and CALEA standard 22.2.7 requires that police employees identify themselves on request.  Additionally, the detention was unlawful, as was the demand for identification.

If you are concerned about this, you may contact the following:

  • Chief Allen Banks, abanks@roundrocktexas.gov, 512-218-5521.
  • Lieutenant Robert Rosenbusch, Internal Affairs, rrosenbusch@roundrocktexas.gov, 512-218-3262.
  • Lieutenant Larry Roberson, Accreditation Manager, lroberson@roundrocktexas.gov, 512-218-6614.
  • Sergeant Mike Osborn, Patrol, mosborn@roundrocktexas.gov, 512-671-2853.
  • Officer Paul Hernandez, Patrol, phernandez@roundrocktexas.gov.

If you are concerned about this from the accreditation standpoint, you may contact Stephen W. Mitchell, who is the Regional Program Manager for CALEA.  His number is 703-352-4225, ext. 29.

H/T: Carlos Miller & PINAC

UPDATE:

Picking up complaint form and filing complaint.

 

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