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.

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.

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.

Failure to ID after being Stopped for No Violation in Texas

50 Comments

I saw this in November or December but did not have time to write on it at the time.  It appears to involve an individual named Collin Rector of Springtown, Texas.*  Springtown is on the border of Wise and Parker counties, just to the west and north of Fort Worth, on Texas 199 (the Jacksboro Highway of John Mayall & the Bluesbreakers fame).  Anyway, Collin and his two buddies got pulled over by an officer of the Weatherford Police Department for “driving slow” and the front seat passenger asks if that’s a violation.

The officer answers (at about 0:48) that it is not a violation, unless it is impeding traffic, which the officer then states that they were not doing.  Uh, officer, don’t you have to have reasonable suspicion to stop someone and detain them?†  So when the passenger starts to ask the question about this, the officer twists off and says that it is against the law to refuse to identify yourself to a police officer (at 0:58).  Uh, no, it’s not against the law if they are not under arrest.  Tex. Penal Code § 38.02.  At 2:01, the officer threatens to take the two to jail for Fail to ID, at which point the driver shows his driver’s license.  The passenger refuses to identify himself, as is his right, and the idiot officer pulls him out of the car.

Then a female officer gets Rector’s name, and runs him for warrants, and officer idiot searches and obtains the front passenger’s identification.  The passenger continues to quiz the officer for the grounds that he is required to identify, and the officer continues to basically say because the law says so.  Then the officer tells the lad to go back and study what the law says because the officer is sure that the kid is wrong and he is right.  Nice, except for the fact that is not what the law says, and the passenger was stating it correctly.

Of course, it doesn’t help that Rector and the driver pulled the three forms of ID bullshit.  That’s sovereign citizen BS, and is not correct.  Most departments do have a requirement that officers identify themselves, but that’s policy, not law.

Weatherford PD is not accredited by CALEA.  You can contact their Chief, Mike Manning, at police@weatherfordtx.gov or at 817-598-4310 or Captain David Smith, at dsmith@weatherfordtx.gov or 817-598-4322.

*That is based on the fact that the YouTube account belongs to Collin Rector and the fact that the back seat passenger identifies himself by that name.

†You should note that an officer does not have to articulate his reasonable suspicion to the people he stopped (although that is normally best), and that driving slow is often an indicator of driving while intoxicated.  Even so, that would not allow the officer to demand ID from the passengers.

Failure to Identify while being Detained in Texas (from comments conversation)

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This was generated due to the conversation in the comments on the previous post.

OK, first let’s address Terry v. Ohio, 392 U.S. 1 (1968). That decision focuses on the authority of an officer to detain someone who the officer has a reasonable, articulable suspicion may be involved in criminal activity. It is silent as to the authority to identify who the person is. It certainly does not state that an officer is justified in “requiring a suspect to disclose his or her name” as Sam asserts.

Here, there is no question that the officers had grounds to detain Espinosa. The standard of proof required is reasonable suspicion, and they met that standard. That standard remains below the standard of probable cause, which is required for an arrest.

Next, Sam is correct on the basic issue of Hiibel v. Sixth Judicial Dist. Ct. of Nevada, 542 U.S. 177 (2004). Sam said that Hiibel “held that statutes requiring suspects to disclose their names during police investigations did not violate the Fourth Amendment if the statute first required reasonable and articulable suspicion of criminal involvement.” (emphasis added). That’s correct, but Sam is missing one key factor. Hiibel requires that the state have a statute authorizing the officer to require identification. Nevada has such a statute, Texas does not.

These statutes are called “Stop and Identify” statutes. In Nevada, the law states that “Any person so detained shall identify himself or herself. . . .” Nev. Rev. Stat. Ann. § 171.123. Texas has no such law, and contrary to Sam’s assertions, the case law in Texas is not “all over the map,” but are remarkably consistent, and uniformly against his position.

“When section 38.02 was enacted with the recodification of the Penal Code in 1973, it originally criminalized providing a false identity and failing to identify oneself to a police officer when the person had been ‘lawfully stopped.’ The legislature narrowed the statute in 1987 to apply only in situations when the person had been ‘lawfully arrested.’ In 1991 the legislature struck a middle ground—it criminalized failing to identify oneself when lawfully arrested but also criminalized giving a false name when lawfully detained or lawfully arrested. The statute was amended in 1993 and 2003, but the legislature did not alter the basic framework—it kept the distinction between “lawfully arrested” and ‘lawfully detained.’” Overshown v. State, 329 S.W.3d 201, 208 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (internal citations and footnotes omitted).

The law was changed based on a number of factors. First, in Brown v. Texas, 443 U.S. 47 (1979), the Supreme Court held that Texas could not just stop someone and require that they produce identification. This was followed by a ruling that “Individuals stopped by the police merely on the basis of suspicion, have a right not to be arrested, a right to remain silent, and, as a corollary, a right not to be arrested if they choose to remain silent.” Spring v. Caldwell, 516 F. Supp. 1223, 1230 (S.D. Tex. 1981), rev’d on other grounds, 692 F.2d 994 (5th Cir. 1982).

So far the State of Texas has declined to expand the authority of police to arrest someone who choses to remain silent when asked for identification while detained.

Another case also spells it out clearly. “When appellant refused to give [the officer] his name, he was not under arrest. Therefore, subsection (a) does not apply . . . Under these facts, appellant did not commit the offense of failing to identify himself. Further, the officers provided no evidence at the suppression hearing to justify a warrantless arrest, such as a showing that appellant was about to escape. Thus, the trial court properly determined that appellant was illegally arrested.” Crutsinger v. State, 206 S.W.3d 607, 610 (Tex. Crim. App. 2006). Note that in this case, Crutsinger was suspected of capital murder, so Sam’s argument about the severity of the offense just flew out the window.

Sam then claims that “obstructing is called interfering with the duties of a public servant.” It’s a novel approach and creative, but in accurate. Thus far there has not been a single appellate case where this has been brought up, probably because § 38.15, Interference with Public Duties, Tex. Pen. Code Ann. provides that speech only is not an offense and this would prohibit a successful prosecution. See Freeman v. Gore, 483 F.3d 404 (5th Cir. 2007); Carney v. State, 31 S.W.3d 392 (Tex. App.—Austin 2000, no pet.).

He may also want to look at Adams v. Praytor, No. Civ.A. 303CV0002N, 2004 U.S. Dist. LEXIS 12383, 2004 WL 1490021 (N.D. Tex. July 1, 2004). In that case, one of the officers demanded identification of Adams, who refused to provide it since he was not under arrest. The officers then, according to Adams and several witnesses, threw Adams to the ground, breaking his nose and causing other injuries. The officers attempted to charge Adams with Failure to Identify, but were told by their lieutenant that the facts did not meet the elements of the offense, that Adams did not have to identify himself unless he was under arrest. They then tried charging Adams with Interference with Public Duties, for which he was found not guilty. Opps. In the subsequent lawsuit, the officers were denied qualified immunity by the court, stating:

“Defendants correctly concede that no probable cause existed to place Adams under arrest for Failure to Identify. The Texas Penal Code requires only a person who has been lawfully arrested to provide his name, address, or date of birth to a police officer who requests identification. Indeed, at the time of Adams’s arrest, the Supreme Court had held the application of Penal Code § 38.02 unconstitutional in the absence of reasonable suspicion to believe that the defendant was engaged in or had engaged in criminal conduct. Officers Wright confirms that he initially advised Adams that he was not under arrest, and conditioned the subsequent arrest on Adams’s refusal to produce identification. Accordingly, Defendants had no probable cause to arrest Adams for Failure to Identify.” Adams v. Praytor, 2004 U.S. Dist. LEXIS 12383, 16-17, 2004 WL 1490021 (N.D. Tex. July 1, 2004) (internal citations omitted).

This is clear, black letter law. It doesn’t matter what gyrations are thrown in, it doesn’t change the facts, nor will it change the outcome. Both the city and the county, if they’re smart, will settle with Ms. Espinosa. It’ll be cheaper than a trial. Especially when her attorney points out that by forcing her to destroy a portion of the video, there was arguably grounds to charge the officers with Tampering with or Fabricating Physical Evidence, § 37.09, Tex. Pen. Code Ann., a third degree felony. I would almost bet that Shurka thought of this, although I doubt that Simpson did (but I could be wrong). I don’t remember if Simpson was still a Deputy Chief in Dallas when their officers pointed a dash cam away so it would not film the officers beating an evading suspect.

 

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

4 Comments

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.

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