Open Carry in Clifton Heights, PA; Mark Florino

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A good example of how to handle an open carry stop in Pennsylvania.

Mark (who has had several contacts with police while open carrying) determined that he was not suspected of a crime, refused to ID, and terminated the contact.

 

1 “Resisting” Man + 4 Officers = Death: Hampton, VA

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Marlon Dixon, a 41-year-old black man, took medicine for a heart condition.  When police contacted him, they decided that he needed to be taken into “Emergency Custody” for a mental evaluation.

Marlon didn’t want to go, so four Hampton Police officers jumped on him and took him to the ground, and then handcuffed him.

At that point they noticed that he wasn’t breathing, even though witnesses said he was crying out that he couldn’t breathe.  Not that an officer putting all of his weight on your back would cause problems breathing.

But don’t worry – the police are investigating this themselves.

 

Another Example of Police in Texas not Knowing the Law – Corpus Christi

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Here we go again, with Texas cops not knowing the law.  This time it is out of Corpus Christi and not only one, but two lieutenants are involved.  Here are the four videos of the incident.

Here the user shows that he is videotaping from his own property and that he is openly carrying a holstered pistol.  Texas is not an open carry state, but the statute that covers this is Unlawfully Carrying a Weapon, Tex. Pen. Code Ann. § 46.02.  This law states that: “A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not on the person’s own premises or premises under the person’s control….”  Tex. Pen. Code Ann. § 46.02 (Vernon).  At about 5:00 in part 1, the two officers approach and the user (Gloc361) advises them not to enter his property.  The officers then try to tell him that he can’t openly carry a pistol (at 5:26).  This is flat out incorrect.  See Johnson v. State, 269 S.W.2d 406 (Tex. Crim. App. 1954) (“Appellant had the lawful right to carry a pistol on his own premises and this right extended to every part thereof.”); Mireles v. State, 192 S.W. 241, 243 (Tex. Crim. App. 1917) (“Clearly, under the law and evidence, he was not guilty of violating the law in carrying said [weapon] on either the forty acres of tillable land that he had rented from Mr. Roberts nor in Mr. Roberts’ pasture, where he kept his team, and had the right to go to get them as a part of his rented premises….”).  A person can openly carry a handgun on his own property.

It appears that at about 1:00-05 in the second video that the officer makes a comment about notifying Child Protective Services, although the audio is not clear enough for me to be absolutely positive on this.  If she did mention that, then it is wrong on so many levels.  First, the lawful presence of firearms does not pose a danger to the child.  Second, using CPS as a threat for compliance is just vile.  At about 1:45 a third officer tries to tell him that he can wear the gun inside his house, but not outside.  Case law clearly doesn’t support that.  Mireles, 192 S.W. at 243.  In addition, “premises” is not limited to inside of a building.  See Tex. Atty. Gen. Op. No. H-185 (1973) (“The term ‘premises’ has attached to it various meanings, owing to the connection in which it is used, but, generally speaking, the term includes not only buildings, but the lot or land upon which the same are situated.”, citing Merch. & Mfgs.’ Lloyds’ Ins. Exch. et al. v. S. Trading Co. of Texas, 205 S.W. 352 (Tex. Civ. App.–Fort Worth, 1918)).

This is only 15 seconds, and really doesn’t cover much.

Here he talks to two different lieutenants.  The individual asks the lieutenant if he is violating the law.  The first lieutenant to talk to him will flat out not answer his question, but repeats what the other officer stated, that he could not be outside with a sidearm.  When pressed, the lieutenant states that it just “looks odd.”  Last time I checked, “looking odd” was not a violation of the penal statutes of the State of Texas.

At 3:52, Lt. Tim Brown walks up and states that the individual is creating a breach of the peace, causing alarm.  See Tex. Pen. Code Ann. § 46.02  Again, this is not correct according to case law in Texas.  A recent case in Dallas addressed this very issue, stating:

Although the State maintains the fact that someone called the police is sufficient to show the gun was displayed in a way calculated to cause alarm, we cannot agree. The mere fact that the police were called is not evidence of the way in which the gun was displayed.

Grieve v. State, 05-07-00156-CR, 2008 WL 2152890 (Tex. App.—Dallas May 22, 2008, no pet.).  See also Bedford v. State, 69 S.W. 158 (Tex. Crim. App. 1902) (if pistol was displayed in a threatening manner, calculated to alarm, it is an offense);Jones v. State, 01-98-00645-CR, 1999 WL 517135 (Tex. App.—Houston [1st Dist.] July 22, 1999, no pet.) (when subject grabbed victim and held her for a time, told her she was his and that she belonged to him, then pulled a knife from his pocket and opened it, he displayed it in a manner calculated to alarm); Biggerstaff v. State, 2 S.W.2d 256 (Tex. Crim. App. 1927) (speaking of the exhibition of deadly weapons or the semblance thereof in an angry and threatening manner calculated to alarm).Lt. Brown, without some evidence of a threatening display of the pistol, you can not show the elements of Disorderly Conduct.  Lt. Brown then compounds the error by demanding identification, and stating that he has the right to know who he is talking to on a police contact.  In fact, he doesn’t.  We discussed this in more depth at this post and this post, but unless he is arrested, he is under absolutely no obligation to identify himself to police.

The District is commanded by Capt. David Blackmon (DavidBl@cctexas.com) and the Chief is Chief Floyd Simpson (FloydS@cctexas.com).  Note that Corpus Christi is one of the few police departments in Texas that have a union contract, and they also have a unique rank structure of Officer, Sr. Officer, Lieutenant, Captain, Commander, Asst. Chief, and Chief.  There are no Sergeants.

 

The First Amendment and Private Property

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Several posts at Photography Is Not A Crime have started interesting discussions over the conflicting desires of photographers and property owners.

In a post on a security guard trying to stop photography on what is purportedly privately owned mall property, some commentators make the argument that malls, shopping centers, and parking lots which are open to the public become a de facto public forum, subject to unlimited First Amendment Rights.  That is not correct.  In Lloyd Corp., Ltd. v. Tanner, the Supreme Court explained:

In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only. The Due Process Clauses of the Fifth and Fourteenth Amendments are also relevant to this case. They provide that ‘[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.’ There is the further proscription in the Fifth Amendment against the taking of ‘private property . . . for public use, without just compensation.’

Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 567 (1972)(emphasis added, edits in original).

This was not an isolated decision.  See also Hudgens v. N.L.R.B., 424 U.S. 507 (1976) (Picketing not allowed on private property under First Amendment.); Cent. Hardware Co. v. N.L.R.B., 407 U.S. 539 (1972) (The First and Fourteenth Amendments are limitations on state action, not on action by the owner of private property used only for private purposes. The fact that private parking lots are open to the public do not make them a public forum.); Wright v. Incline Village General Improvement Dist., 665 F.3d 1128 (9th Cir. 2011) (General public does not have a right to use private property for First Amendment expression, to do so can violate the First Amendment rights of the property owner.).  Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249 (10th Cir. 2005) (Property does not become a public forum simply because a private owner generally opens his property to the public.); Strahan v. Frazier, 62 Fed. Appx. 359 (1st Cir. 2003) (The First Amendment does not prevent a property owner from restricting the exercise of free speech on private property, including a private shopping mall).

There are some exceptions to the general rule, for example a state constitution or statute may grant individuals greater rights than is covered by the First Amendment.  See PruneYard Shopping Ctr. v. Robbins, 447 U.S. 47 (1980) (First Amendment does not authorize free speech rights on private property over the property owner’s objection, but does not prevent a state from granting greater rights, such as the right to circulate petitions on property that is open to the general public).

 

Kern County Videos Released from One Cellphone

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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?

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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.

 

 

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