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.

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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.

Finally, Officer Safety is Put in its Proper Place in a Police Magazine

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In the January 2015 edition of Law and Order, a police management magazine, there is an article that not only the management should read, but that should be passed on to every officer.

The article, No “Officer Safety” Exception to the Constitution, Charles Huth, Jack Colwell, and Randy Means, Law and Order, Jan. 2015, is very clear that officer safety has gone too far.  They state:

“A number of law enforcement agencies are currently under fire for their patterns and practices of “stop and frisk.” This is only the present manifestation of what has been for decades a national epidemic of illegal police practices rationalized by the mantra “officer safety.” Frisks are not supposed to be the rule in Terry-type stops; the rule would be no frisk. The same is true for handcuffing subjects and placing them in the back of police cars.” Id.

Guys, this isn’t just me, an old, worn out street cop saying this by myself, these are well-respected leaders in the profession.  Huth is the past President of the National Law Enforcement Training Center* and a Captain with the Kansas City, Missouri Police Department.  After the Eric Garner death, Huth was on CBS News showing the difference between an arm-bar chokehold and the much safer lateral vascular neck restraint (LVNR).  Colwell retired from the KCMOPD after 29 years and is the co-author of Unleashing the Power of Unconditional Respect with Huth, a program for increasing officer connection with the community and decreasing confrontations.  Finally, Means is a partner at The Thomas & Means Law Firm, and has a long history as a police legal advisor, and risk management at the IACP.

The article is outstanding, pointing out that there is no officer safety exception in the U.S. Constitution.

“So, where does one find the officer safety exception to the Constitution? Generally speaking, it doesn’t exist. Generally, the rights of the people trump the rights of an officer to be guaranteed a safe outcome in dangerous situations.” Id. (emphasis added).

I don’t know how much clearer this can be said.  I can tell you that this is not the way that officers are being trained.  I can tell you that this is not the way that most officers on the street view it.  But these guys get it, and not only that, they train the people that train officers.  I’ll leave you with their words:

“If the choice is between feeling safer by violating someone’s Constitutional rights or taking calculated risks while honoring our oath, the pledge we made when our badges found their home on our chests  is supposed to win every time.”  Id.

 

*Originally founded by Jim Lindell, who developed the LVNR, weapon retention training, and is a pioneer in officer safety.

Los Angeles Police Decide that Aerial Photos Violate Privacy…

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But only if it is their privacy, not yours.

Daniel Saulmon (Tom Zebra) was filming again, using his drone, at the LAPD Hollywood station.  The police didn’t like it.

What is hilarious is that the same expectation of privacy that they are claiming is the expectation that they state you, as a private citizen, do not have.

At 4:04 the first officer tried to tell Daniel that he could not fly his drone over police department property.  But these same officers want to be able to fly over other peoples’ property, observe what is below, and obtain search warrants based on those overflights.  That’s legal, according to the U.S. Supreme Court, see California v. Ciraolo, 476 U.S. 207 (1986) (mere fact that individual has taken measures to restrict some views of his activities does not preclude police officer’s observations from public vantage point where he has right to be and which renders activities clearly visible).

Later in the video, the sergeant tries to tell Daniel that he will be charged with trespass, even if he keeps the drone over the sidewalk.  Ludicrous.

In other words, what the police in LA want is to be able to look in your backyard, but where you can not look into theirs.

 

The Broken Windows at the Precinct House

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Mark Draughn over at the Windy Pundit blog just pointed out something that was remarkably insightful.

If the “Broken Windows” concept works on society to reduce a culture of lawlessness, then why don’t the police use it in their disciplinary process?  Why do we tolerate petty misconduct from police, where it inures our senses to gross misconduct?

This is not a revolutionary concept.  The late Jack Maples, part of NY Police Commissioner Bill Bratton’s staff during his first tour had the right ideas about this issue.  Maples wrote that:

The [police] leader must back the cops when they’re right, train them when they make mistakes despite good intentions, and hang them when they betray the public’s trust.

Jack Maples & Chris Mitchell, The Crime Fighter: How You Can Make Your Community Crime Free 244 (2000).

Maples was a firm believer that you had to take corrective action against the police, as well as criminals if you wanted to make an impact.  He also understood that while officer safety was important, it was not the most important part of police work. He said:

At the end of the day, the public’s safety is paramount.  Strike that.  At any time of the day, the public’s safety is paramount.

Id., at 239.

Mark, at the end of his self-named rant (I would disagree that it is a rant), says:

If “broken windows” works, they should try it on cops. Maybe if they prosecuted the crap out of these cops and hit them with truly pants-shitting prison sentences, it would discourage the NYPD’s culture of lawlessness.

This post was picked up by Scott Greenfield (Simple Justice), who expanded on the theme.  Scott correctly notes that it is Bratton’s job to make sure that the police treat the public with respect, not to lecture the public on what they need to do in order to make things better for the police.  Scott points out that if Bratton really believes in the Broken Windows theory, then he should apply it first to his own department, not to the public.

Scott is completely right on this, but I sincerely doubt that Bratton will see it this way.  He’ll look at it just like the San Antonio Police Chief, William McManus, looks at it.  It’s OK to beat an innocent man because he fell on his hands.  He’s firmly bought into the first rule of policing and has completely disregarded that the safety of the public should come first.

I suppose I’m lucky that I wasn’t the one taking pictures, as I probably would have been killed in the encounter.  Let me explain.  A plainclothes officer comes charging at me with an angry look on his face and something in his hand?  I’m drawing my Kimber.  It’s what I’ve been conditioned to do after twenty years as a police officer, and what many others are likely to do in the same situation.  The two SWAT officers show up shortly behind the plainclothes officer, and I would probably be shot.  But for the sake of argument, lets say that did not happen, but that I shot the first officer and surrendered to the uniformed officers.

Would McManus have the same viewpoint, that he did not see anything wrong here?  It’s still a case of mistaken identity, it is just that his officer suffered the brunt of the encounter.

Fortunately, McManus is leaving the job, to take a retirement security director gig and to take care of his new kittens.

The problem is that police administrators do not see the disconnect, can not see it.  It takes an innovator, someone like Jack Maples, someone who is willing to shake up the system, to address this issue.  It means teaching new officers that yes, it is vitally important for them to go home at the end of the shift, but it is even more important to protect the public, to make sure that that they go home safely.

 

 

SCOTUS Requires a Warrant to Search a Cellphone

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The Supreme Court, in an opinion by Chief Justice Roberts, stated that the Fourth Amendment requires a search warrant to look at the digital contents of a cell phone that the police have seized incident to arrest.  The opinion is Riley v. California, No. 13-132, 573 U.S. ___, ___ S. Ct. ___, 2013 WL 2864483 (June 25, 2014).

The decision was unanimous, with a concurrence by Justice Alito.

Basically, the Court took two cases, Riley and United States v. Wurie, No. 13-212, that had reached opposite conclusions and consolidated them.  In Riley, a driver was stopped for expired registration and having a suspended driver’s license.  His car was impounded and inventoried, and two handguns were found.  A search of his cell phone incident to arrest and other factors led police to believe that Riley was a member of the Bloods street gang.  Following a warrantless search of the phone, photographs were located tying Riley to a gang shooting and he was charged with attempted murder and several others crimes.  The trial court denied a motion to suppress the evidence and the Ninth Circuit affirmed.

In Wurie, police were conducting routine surveillance and saw Wurie make a drug transaction.  Wurie was arrested and his cell phone seized.  They searched the phone (an older flip phone) and eventually obtained a search warrant for Wurie’s house based on the warrantless search of the phone.  Police seized 215 grams of cocaine, a firearm and other drugs, and cash.  Wurie’s motion to suppress was denied, but the First Circuit reversed and vacated the conviction.

Roberts held that the search incident to arrest exception (from Chimel v. United States, 395 U.S. 752 (1969)) did not include the digital contents of a cell phone.  Police may examine the phone to make sure that it is not a weapon, but may not search the contents.  The claim that the search is necessary to prevent the destruction of evidence is also not valid.  Police may place the phone in a Faraday bag to prevent outside signals from reaching it, may turn off the phone, or may remove the battery.

Roberts cited Judge Learned Hand who said in 1926 that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” Riley, slip op. at 20 (internal citation omitted).  Searching a cell phone is ransacking the house.

The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.Id., slip op. at 28 (emphasis added).

When Cop-Blockers Don’t Understand the Law

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Two Cop-Blockers in Odessa, Texas were detained recently and did not like it.  Some of what they don’t like is correct, but much of it is mistaken.  I’ll address their comments, which are in italics.  Here is their video:

We were walking around Odessa Police Department around 7PM, both for exercise, and to get some shots of the building, and parking lot, all of which was captured while standing on a public sidewalk. As the video starts out, you can see use walking around the building complex, joking around and talking, and then we are illegally detained for over 40 minutes by quite a lot of officers. My biggest issue, is that they know very well who we are, and their excuses of us being “suspicious” were completely unfounded and outright lies. Anyway, here are several points we’d like to make about this detainment…

1: Filming from a public, or publicly accessible area is legal, including anything that can be seen in plain view from such locations unless it is sexual in nature, such as filming someone undressing in front of a window, or trying to take a picture down a woman’s shirt. OPD claimed that their facility was exempt from this legal activity. (It’s not)

This was a correct statement.  You can generally film anything you can see in public, with some narrowly limited exceptions (including the ones noted).

2: They changed their story several times as to why we were being detained. First it was suspicious behavior, then it was for filming their “vehicles”, then it was “possible intent to commit burglary”. One officer even went so far as to mention the naval base shooting, as if that was some other reason to think we might be up to no good.

They really didn’t change their stories.  At 3:15, when they first get stopped and are told they are being detained, the officer states that the detention is to make sure that they “are not breaking into people’s vehicles.”  That is a reasonably articulable suspicion of criminal activity based on the actions of the individuals, and it is consistent with the later comments on burglary since breaking into vehicles is Burglary of Vehicles, Tex. Pen. Code Ann. § 30.04 (Vernon).  The officer further explained that it was nighttime, the individuals were walking through a parking lot, taking photographs of vehicles, etc.  Guys, that is reasonable articulable suspicion.

3: The supervisor on scene outright lied and said it is illegal to not carry ID on you at all times. This is a complete lie. You are not required to carry ID on you unless you are engaged in an activity that requires such identification, such as driving. You’re not even required by Texas law to provide your name and birthdate unless you are under arrest or legally detained.

The supervisor is ignorant.  There is no requirement under Texas law to carry ID.  I would suggest that the sergeant get hold of a copy of the Texas Penal Code and read it in order to find out what the law allows.  And WTF does Texas Open Records law have to do with photography?  She is really, really ignorant of the law and has no business supervising police officers when she doesn’t understand the law.

4: Upon hearing that the first amendment right of freedom of press was the “legality” I had for filming their facility, she insisted that the Texas state penal code protected police vehicles from being filmed or photographed. (It doesn’t)

More BS by the officers.

5: We were held for longer than 20 minutes, violating the Terry Stop law, from Terry vs Ohio.

This is incorrect info – there is not a “20 minute” time limit on a stop.

6: One officer refused to give us his name and badge number. After we were released I asked the remaining officers for his information and they refused to give it to me as well.

No state law requires that, but most PDs have a policy on identifying themselves.

7: We were apparently SO suspicious that between 15 – 20 cops were on the scene, and yet not once did they feel the need to pat us down to make sure we weren’t armed. They didn’t even ask for a regular search, or even to see the footage we had acquired. This was the biggest indicator that the entire detention was purely for harassment and intimidation.

Actually, that is not correct.  If they did not have reasonable suspicion that you were armed, a pat down for weapons would be unreasonable.  The officers did OK on that part.

8: Officer Aguilar did not let me read over the information he wrote down about me before demanding that I fingerprint myself.

There is no requirement for him to do so.

9: All except one officer on scene acted in an overly aggressive manner, trying their best to intimidate us. (Which didn’t work)

That’s a subjective view, but I can understand both sides here.

10: They claimed they had us on camera entering their parking lot, which we NEVER did. Another lie.

OK, so?

11: All in all, we could have remained silent, refused identification (since they had no reasonable articulable suspicion and therefore no legal right to detain us), gotten arrested on a bogus charge, and later fought it in court, but I was more concerned with getting us home that night. There will always be another time.

They actually had grounds to detain, or at least stated valid grounds, but you are correct, you did not have to ID, but not for the reasons you stated.  The Texas statute does not require a detained subject to ID themselves.  Check my earlier posts on this.

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