Pampa, the Panhandle, and more Failure to ID Idiocy


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.


Open Carrying While Black, Washoe County, Nevada


Nevada is an open carry state, allowing the unconcealed carry of both handguns and longarms.

Unless, of course, one has a disqualifying factor, such as mental disease or defect, a felony conviction, etc.

Apparently, that also includes being black, at least in Washoe County.


Gabriel Nobles was carrying a rifle in Washoe County when he was confronted by the Sheriff’s Office, put on the ground at gun point, and held there.  His only offense was that he was a young black man carrying a rifle slung across his back.  We’ve seen plenty of videos of similar activity, but nothing like this.  I can see nothing in the video that justifies the deputies conduct.

Of course, at the end of the stop, Gabriel is given his rifle back and sent on his way.


Zach Horton, Part II

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Well, about a month ago, Zach did something that may hurt him in the long run.  He was running around south Texas, open carrying his AK, and apparently thought it was a good idea to have his picture taken with the rifle in front of local police stations.

This went well until he got to McAllen.  They didn’t like the idea, so they told him to leave (apparently giving him a trespass warning, it’s not clear), which he did.

Then he thought about it.  And went back.

But only after calling them and telling them he was coming back.

Yeah, that’s a good idea.  It’s legal, don’t get me wrong, but poking a sleeping mountain lion with a sharp stick has never struck me as being especially bright.  But, hey, if that’s your thing…

So of course the police are there and when he doesn’t comply with their commands, arrest him for having a firearm where prohibited, see Tex. Pen. Code Ann. § 46.03.  That’s a felony.

Now granted, from what I’ve seen, it’s a BS charge, because you have to actually go into the building to be charged with it, and the AK never left his car.  So Zach sees the inside of a jail cell, then a judge, who sets bond at $25K (meaning a bail bondsman will likely charge $2,500, and maybe twice that, since he’s not from the area).  You don’t get that money back, either.  Of course his rifle and cellphone are now evidence, and the last I saw, they had a hold placed on his truck.

Of course the DA should drop the charges, but this is Hidalgo County, where the niceties of the law haven’t always been observed, like the sheriff’s son (head of a local drug task force) who was indicted and pled guilty for stealing drug loads.  Or the eleven recruits in the academy fired by the sheriff last year for trying to cheat on tests.  Or the previous sheriff and county commissioners in the 1990s. Or – well, you get the picture.


Walker, LA Officer Arrested for Beating a Handcuffed Suspect


Officer James Dipuma overheard a call dispatched to the Livingstone Parish Sheriff’s Office about a child molestation with the suspect still at the location.  He got there first.  When deputies arrived, Dipuma already had Raymond Robison in handcuffs, but deputies noted that Robison was severely beaten.  When asked about it, Dipuma said that Robison resisted arrest.

Unfortunately for Dipuma, deputies were able to determine that Dipuma and one of the juvenile rape victim’s family members had beaten Robinson severely after Robison had already been handcuffed.

First, I’m not all that sympathetic to Robison – if he raped that young boy, he deserves whatever form of punishment that comes his way.  But it is not for the police to administer that type of justice, especially not on him while he is in handcuffs.

Second, I applaud the Livingstone Parrish Sheriff for pursuing this and putting a rogue officer behind bars.

Third, Dipuma should have never been a police officer at Walker.  Dipuma’s first police job was in East Baton Rouge Sheriff’s Office.  While there he was suspended without pay for 30 days for the way he handled a suspect at a call, which included kicking the suspect in the head.  In 2009, a suspect suffered a severe facial injury.  Dipuma resigned following a polygraph test that indicated he lied.  Three years later he applied at the Livingstone Parish SO, and after some hesitation, the sheriff gave him a second chance, but terminated him within about a year for conduct unbecoming an officer.

Robison is still in jail on charges of Molesting a Juvenile, Aggravated Rape, and Resisting an Officer.  Dipuma was charged with Malfeasance in Office and second degree Battery.  The family member was charged with Simple Battery.

I understand how this happened.  You have an officer that is enraged by what the suspect did to the boy, and lacks the self control necessary to allow the system to adjudicate the matter.  So he figures he’ll apply a little street justice.  The problem here is allowing him a chance to do it again.  He was given a second chance by Livingstone Parish, and then a third chance by Walker PD.  I understand the thought process of the sheriff – it had been three years and he wanted to believe that Dipuma had changed and deserved a second chance.  The problem is that Dipuma should have learned that lesson after getting a 30-day suspension, but didn’t.  You can’t afford to take a chance when someone has had two excessive force cases like that sustained.  And I don’t have a clue what the chief at Walker PD was thinking.


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


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.

Corpus Christi Officer Morton Norman

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Earlier this year, Corpus Christi Police Sr. Officer Morton Norman was found in violation of department policies and recommended for termination by Internal Affairs and his chain of command.  Police Chief Floyd Simpson did not agree and issued a two-week suspension, citing Norman’s record of service to the city.

Why don’t we look at the facts?

According to the video posted at Action 10 News, the victim, Roderick Hornsby was standing handcuffed, facing the wall as instructed when Norman took him down to the floor, placed his knees on Hornsby’s neck and back, and started to raise Hornsby’s arms up by the handcuffs.  This last move has no legitimate control use, but strictly inflicts pain.  In most officer self-defense tactics classes, instructors caution against this due to the potential for injury to the subject.  In any event, when Morton went before Internal Affairs on the issue, they believed that he lied about the incident and that he falsified the report that he filed on the incident.  The last matter is a felony in Texas.  Tex. Pen. Code Ann. § 37.10.  They recommended that he be terminated.

Chief Simpson decided not to do that based on Morton’s good record.  This good record includes a previous lawsuit for excessive forceSosa v. City of Corpus Christi, No. C-06-149, 2006 U.S. Dist. LEXIS 47318, 2006 WL 1967037 (S.D. Tex. 2006).  In that case, Sosa accused Norman and Officer Silva of beating him with batons inside his home.  While a portion of the case was dismissed because the statute of limitations had run, the § 1983 claims for excessive force against the officers remained.  The city settled the case in December 2006.

Just a year before that, he was sued for *gasp* excessive forceAvalos v. City of Corpus Christi, No. 2:05-cv-00159, 2006 U.S. Dist. LEXIS 14996, 2006 WL 696495 (S.D. Tex. 2006).  In that case, the officers repeatedly took the plaintiffs to the ground, causing serious injuries.  The officers won in a jury trial, but the point is that two lawsuits for excessive force, regardless of the outcome, should set off alarm bells.

The problem with Morton continuing on the police force is the allegation of lying.  From this point forward, he is basically useless as a prosecution witness, as the Nueces County District Attorney would have to notify the defense attorney of that fact.  Normally, a good prosecutor will not take a case involving that type of witness.  Most police chiefs won’t tolerate lying for that very reason.

Although Morton had appealed his suspension, he decided to retire.

It still doesn’t say anything about Chief Simpson’s judgment.

Putnam County, FL Sheriff’s Office Needs to HonorYourOath


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 ( 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.


Kern County Videos Released from One Cellphone


The Kern County Sheriff’s Office released the video from one of the cellphones.

Note at 5:43 of the second video, you can see video being recorded on the second cellphone.  You know, the one that the Sheriff questioned if it ever existed.


Did the Kern County Sheriff Illegally Seize Videos of Deputies Beating a Man to Death?


It is quite possible that under federal law, the Kern County Sheriff’s Office illegally seized two cellphone videos from citizens.

The Privacy Protection Act, 42 U.S.C. 2000aa(a) (hereafter PPA), states:

Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication….

This law provides that if a person takes a video of police action and intends to disseminate it to the public, the police can only obtain the video by subpoena, not by a search warrant.  In this case neither of the individuals who had their property seized were suspects in the crime being investigated, the death of David Silva at the hands of Kern County Sheriff’s deputies, nor were they being arrested.

The sheriff’s office was aware of the video because the individual that taped the beating called 911.

Further, that individual informed the 911 personnel that she intended to disseminate the video to the public (at 0:46 of the call), saying “I’m sending it to the news.”  At this point, the Sheriff’s office was on notice that this was “work product” protected by the Privacy Protection Act, and should have been obtained by subpoena, not by a search warrant.  Indeed, the law specifically provides that a warrant can only be used after a subpoena has failed to obtain the material.

This is clearly established law, first ruled on 20 years ago.  In 1993, the United States Secret Service raided a computer game company under a search warrant, and seized a large amount of files.  Included in these files was material that was to be published and disseminated to the public.  The company immediately notified the Secret Service of this, which promptly ignored the company and refused to return the material to it.  Note that the company was not a suspect in the criminal investigation.  The court held that the United States was liable to the company for damages for each and every day that they held the material after having been notified of its character under the PPA.  Steve Jackson Games v. United States Secret Serv., 816 F. Supp. 432 (W.D. Tex. 1994), aff’d 36 F.3d 457 (5th Cir. 1994).  Steve Jackson Games were awarded over $ 50,000 in damages, plus $ 195,000 in attorney fees at the trial court level.

This has continued to hold true in other cases.  See generally Morse v. Regents of the Univ. of Cal., 821 F. Supp. 2d 1112 (N.D. Cal. 2011) (holding that officers and chief of police were not entitled to immunity for PPA violation); Citicasters v. McCaskill, 89 F.3d 1350 (8th Cir. 1996) (PPA requires use of a subpoena unless a listed exception is met); Minneapolis Star & Tribune Co. v. United States, 713 F. Supp. 1308 (D. Minn. 1989) (comments in dicta, case is on attorney fees following summary judgment for violating PPA by police seizure).

Note that every day the video is held by the sheriff’s office without returning it to the owner increases the damages, as the video could easily be sold to any number of news providers.

I’m surprised that the attorneys representing the videographers have not mentioned this at all.



Purcell v. Hollenbeck


On Feb. 7, 2013, Braden Purcell used his iPhone to video record a Fort Smith, Arkansas SWAT raid.  During the course of his exercising his First Amendment rights, he was arrested by Deputy Sheriff Bryan Fuller.  Fuller seized, and allegedly later lost the cellphone and the video it contained.

After getting the run-around from the Sheriff’s Office, Purcell filed a lawsuit against both the Sheriff (Hollenbeck) and the deputy.

The case is styled Braden Michael Purcell v. Sebastian County Sheriff Bill Hollenbeck, et al., No. 2:13-CV-2099-PKH.  It was filed in the United States District Court for the Western District of Arkansas, and appears to have been assigned to the Chief Judge, Paul K. Holmes, III.

Here is the complaint. W.D.Ark._2-13-cv-02099_1

Normally, the defense will move for summary judgment.  I’m not sure that they will be able to get it in this case, but it depends on how well the county’s attorneys draft their motion.  I would actually not be surprised by a decent settlement offer.


take that, goliath.

just another day sitting next to the defendant

Hercules and the umpire.



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