Appeals Court Says Filming The Police Is Protected By The First Amendment

from the another-circuit-added-to-the-list dept

In news that will surprise no one, police officers decided they must do something about someone filming the police department building from across the street. That's where this Fifth Circuit Court of Appeals decision begins: with a completely avoidable and completely unnecessary assertion of government power.

Phillip Turner was filming the police department. He was accosted by two officers (Grinalds and Dyess). Both demanded he provide them with identification. He refused to do so. The officers arrested him for "failure to identify," took his camera, and tossed him in the back of a squad car. Given the circumstances of the initial interaction, it's surprising the words "contempt of cop" weren't used on the official police report. From the opinion [PDF]:

Grinalds asked Turner, “How’s it going, man? Got your ID with you?” Turner continued videotaping, and Grinalds repeatedly asked Turner if he had any identification. Turner asked the officers whether he was being detained, and Grinalds responded that Turner was being detained for investigation and that the officers were concerned about who was walking around with a video camera. Turner asked for which crime he was being detained, and Grinalds replied, “I didn’t say you committed a crime.” Grinalds elaborated, “We have the right and authority to know who’s walking around our facilities.”

Grinalds again asked for Turner’s identification, and Turner asked Grinalds, “What happens if I don’t ID myself?” Grinalds replied, “We’ll cross that bridge when we come to it.” Grinalds continued to request Turner’s identification, which Turner refused to provide. Grinalds and Dyess then “suddenly and without warning” handcuffed Turner and took his video camera from him, and Grinalds said, “This is what happens when you don’t ID yourself.”

Turner asked to speak to their supervisor. Given that this happened right across the street from the department, Turner didn't have to wait very long. A supervisor arrived and came to at least one correct conclusion:

Lieutenant Driver identified himself as the commander. Driver asked Turner what he was doing, and Turner explained that he was taking pictures from the sidewalk across the street. Driver asked Turner for his ID, and Turner told the lieutenant that he did not have to identify himself because he had not been lawfully arrested and that he chose not to provide his identification. Driver responded, “You’re right.”

Texas police officers love to misread the state's "failure to identify" statute. It doesn't say what they think it does… or what they want to believe it does. A former cop-turned-law student has a full explanation here, but suffice to say, cops cannot arrest someone for refusing to ID themselves -- at least not in Texas. The charge can be added after an arrest (if the refusal continues), but it can't be the impetus for an arrest.

After some discussion between the officers, Turner was released and his camera was given back. Turner filed a civil rights lawsuit. The lower court granted immunity to the officers on all allegations. The Fifth Circuit, however, refuses to go as far. And in doing so, it actually takes it upon itself to address an issue it easily could have avoided: whether the First Amendment covers the filming of public servants, specifically law enforcement officers.

First, the court asks whether the right to film police was "clearly established" at the time the incident took place (September 2015). It can't find anything that says it is.

At the time in question, neither the Supreme Court nor this court had determined whether First Amendment protection extends to the recording or filming of police. Although Turner insists, as some district courts in this circuit have concluded, that First Amendment protection extends to the video recording of police activity in light of general First Amendment principles, the Supreme Court has “repeatedly” instructed courts “not to define clearly established law at a high level of generality”: “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Thus, Turner’s reliance on decisions that “clarified that [First Amendment] protections . . . extend[] to gathering information” does not demonstrate whether the specific act at issue here—video recording the police or a police station—was clearly established.

The court doesn't leave it there, although it could have. The court notes that there's a circuit split on the issue, but just because the issue's far from decided doesn't mean courts have not recognized the right exists. It points to conclusions reached by the First and Eleventh Circuit Appeals Courts as evidence the right to film police has been acknowledged. Even so, there's not enough clarity on the issue to remove the officers' immunity.

We cannot say, however, that “existing precedent . . . placed the . . .constitutional question beyond debate” when Turner recorded the police station. Neither does it seem that the law “so clearly and unambiguously prohibited [the officers’] conduct that ‘every reasonable official would understand that what he is doing violates [the law].’” In light of the absence of controlling authority and the dearth of even persuasive authority, there was no clearly established First Amendment right to record the police at the time of Turner’s activities.

This is where the opinion gets interesting. While many judges would leave a trickier, somewhat tangential issue open and unanswered, the Fifth Circuit Appeals Court decides it's time for it to set some precedent.

We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.

[...]

To be sure, “[s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy. Filming the police also frequently helps officers; for example, a citizen’s recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing.

In the Fifth Circuit -- joining the First and Eleventh Circuits -- the First Amendment right to film police has been asserted. Unfortunately, the issue still remains mostly unsettled, and there's currently nothing in front of the Supreme Court that would set national precedent. Unfortunately, the decision doesn't help Turner with his First Amendment claim, but it will help others going forward.

The court also reverses immunity on one of Turner's Fourth Amendment claims. While it finds the officers were justified in questioning him, they went too far when they arrested him. First, as pointed out above, the "failure to identify" law can't be used to predicate an arrest. And, after questioning him, the officers still had nothing approaching the probable cause they needed to make a warrantless arrest. Even though Turner was detained in the back of the squad car for only a short period of time, the fact that he was obviously not free to go makes it an arrest under the Fourth Amendment.

Strangely, the dissent, written by Judge Edith Brown, claims the Appeals Court has no business setting precedent. In her opinion, the nation's second-highest courts should stand idly by and wait for the Supreme Court to do the work.

The majority asserts, unconnected to the particular facts and unnecessary to the disposition of this case, that “a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.” The majority derives this general right to film the police from “First Amendment principles, controlling authority, and persuasive precedent.” But the Supreme Court has repeatedly reversed attempts to define “clearly established law” at such “a high level of generality.” White, 137 S. Ct. at 552.

The judge narrowly defines Turner's filming to ensure it would never fall under this supposedly "broad" definition of the right. She says the Appeals Court defines the protection as covering "filming police." But Turner wasn't doing that.

To the extent there is any consensus of persuasive authority, those cases focus only on the narrow issue of whether there is a First Amendment right to film the police “carrying out their duties in public.” E.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). Turner did not allege that he filmed police officers conducting their public duties, but rather that he filmed a police station.

Somehow, filming police officers as they enter and exit a public building is not "filming police carrying out their duties in public." Remarkably, Judge Brown says there may be "reasonable" security concerns that could Constitutionally prevent Turner's actions.

The majority does not determine that the officers here violated Turner’s First Amendment rights—perhaps because it would be reasonable for security reasons to restrict individuals from filming police officers entering and leaving a police station.

If police officers are entering and exiting a building from doors clearly viewable by the public from a public area, the officers obviously aren't that concerned about their "security." If so, they would use an entrance/exit members of the public can't see or don't have access to. If the Fourth Amendment doesn't protect the privacy of citizens in public areas, the same public areas can't be given a heightened privacy protection that only covers public servants.

Unsurprisingly, Judge Brown thinks Turner's involuntary stay in the back of a squad car could reasonably be viewed as Turner just hanging out there waiting to speak to a supervisor:

Because Turner himself requested a supervisor, a reasonable police officer in that situation could believe that waiting for the supervisor to arrive at the scene did not transform Turner’s detention into a de facto arrest. At the very least, Officers Grinalds and Dyess did not act objectively unreasonably in waiting for the requested supervisor—especially because Lieutenant Driver had to come from the Fort Worth Police Station across the street.

Except that most people "waiting for a supervisor" don't do so while:

a.) handcuffed

b.) sitting in the back of a locked squad car

The length of the detention doesn't matter. And it was ultimately the supervisor's arrival that sprung Turner. If not for the arrival of the supervisor -- who immediately recognized Turner couldn't be arrested for refusing to ID himself -- Turner would undoubtedly have spent an even longer period being detained, if not taken into the PD and processed.

The good news for Turner is that his sole remaining Fourth Amendment claims -- the wrongful arrest -- lives on. But the bigger win -- the First Amendment protections confirmation -- helps everyone else but him.


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  • identicon
    Anonymous Coward, 21 Feb 2017 @ 12:02pm

    Well...

    That was nice for a change!!!

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  • icon
    DannyB (profile), 21 Feb 2017 @ 12:45pm

    What is a crime

    1. Asking if you're being detained automatically makes you suspicious and thus can require you to identify yourself.

    2. You can be arrested for failure to identify in order to obtain your identification, because you aren't required to identify until you are arrested. Once arrested, the cop has your identity.

    3. Asking what you are being arrested for can constitute resisting arrest.

    I'm not sure which one is my favorite. I was leaning toward (3), but decided I liked (2) because it is so circular -- or as managers would say, it has no loose ends.

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    • identicon
      Anonymous Coward, 23 Feb 2017 @ 8:29am

      Re: What is a crime

      Are you literally retarded?

      reply to this | link to this | view in chronology ]

      • identicon
        Zee L Usay, 25 Feb 2017 @ 11:02am

        Re: Re: What is a crime

        I think(hope) he was pointing out the illogical notions of law used by the officers in this case. I get this from his saying:
        "I'm not sure which one is my favorite. I was leaning toward (3), but decided I liked (2) because it is so circular -- or as managers would say, it has no loose ends."

        But, if I'm wrong then your question becomes rhetorical as the answer is obviously affirmative.

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      • icon
        difdi (profile), 25 Feb 2017 @ 11:40pm

        Re: Re: What is a crime

        He's not literally retarded, but I suspect you might be. Or at least, your ability to recognize sarcasm and mockery seems to be defective. You may want to get that replaced.

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        • identicon
          William Smith, 6 Nov 2017 @ 7:57pm

          Re: Re: Re: What is a crime

          WHO ARE YOU???...HIS MOTHER???...OR HIS BUTT BANDIT AMIGO??? Ever hear the one about "opinions" and "assholes"? Everybody has one...in your case...TWO!...ALL THE MORE TO KEEP YOUR CLOSET HOMO PAL SATISFIED!
          Can't wait for the rebuttal girly-boy...smile...

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    • identicon
      vad, 24 Feb 2017 @ 9:14am

      Re: What is a crime

      4. Subsequent publishing the video or your arrest for the public, organizing fundraising campaign, and other means to make public appeal, serve as a proof of your plans to obstruct the work of government agency.

      reply to this | link to this | view in chronology ]

    • identicon
      William Smith, 6 Nov 2017 @ 7:49pm

      Re: What is a crime

      Where the hell did you get your law degree????
      First, asking if you are being detained does not put you in any situation where you are forced to give up your identity. What it does do is make the dumb ass cop who stopped you sit and think about how ****ing dumb he was for stopping you with ABSOLUTELY NO ARTICULABLE SUSPICION THAT WOULD RELATE TO A CRIME THAT HAS ALREADY BEEN COMMITTED, A CRIME THAT IS IN THE PROCESS OF BEING COMMITTED OR A CRIME THAT WILL SOON BE COMMITTED...BY YOU! NOW, if the cop has done his homework and knows that it is UNCONSTITUTIONAL to stop an individual with absolutely no reason to do so BREACHES THOSE CONSTITUTIONAL RIGHTS and puts the cops balls in a vice that is slowly closing.
      Without those ARTICULABLE (a word which I'm sure that your "cop" mind cannot perceive...) DETAILS that would support his SUSPICION that you are involved in some kind of crime...HE CANNOT DEMAND ANYTHING...with the exception of maybe a soon to be "job destroying" law suit that will be arriving at his door step some time soon...unless he has a functional brain, figures it out that he ****ed up big time and tells you to "have a nice day" and then beats a path back to the station to attempt forgetting about the MISTAKE he almost committed! "Suspicion" does not mean the same thing as REASONABLE ARTICULABLE SUSPICION...not the same animal my friend (and I use that term loosely in your case...). Unless this officer (which I'm sure you are projecting your own alter ego into said situation...) has these articulable FACTS...NOT SUSPICION!!!...he has no legal reason for stopping you let alone interrogate you without first telling you that he is DETAINING you for said reason and then be able to articulate those reasons so they will apply to you. "SUSPICION" WITHOUT FACTS is like wishing in one hand and shitting in the other and (in your case...) trying to figure out which one will fill more quickly (sound familiar???). You CANNOT detain an individual based upon some "SUSPICION" you have that he looks like a "SUSPICIOUS" person just because he's doing something that is legal...but something that you don't agree with...DOESN'T FIT THE NECESSARY FOUNDATION FOR A "DETENTION" LET ALONE AN ARREST! It doesn't matter how "SUSPICIOUS" you think his actions appear...it's none of your ****ing business!!!...unless he is breaking the law! You can stop him (if you are a peace officer) and ask him what he is doing, but if what he is doing does not break any written law, all you have the right to say is "have a nice day, sir"...then get out of his face and leave him alone!
      Unfortunately, by him simply asking if he is being detained is not meant to arouse your "SUSPICION", it is merely his attempt to understand why the hell you are getting in his face and will either set your mind at ease or, by asking this question will force you to either come up with a legitimate reason for stopping him or cause you to scurry on your way to find some real criminals to mess with. It is merely a way to find out how serious your intentions are and will force your hand on committing your way to an arrest. The bottom line is WHO GIVES A SHIT WHAT YOU THINK!! IF IT ISN'T ILLEGAL THEN IT MUST BE LEGAL...either way, you will have to commit or leave immediately! You CANNOT use this tactic to pry his identity from him...it doesn't matter how "SUSPICIOUS" you think he looks...and he won't be able to be forced to divulge his identity to you based on that "logic" (?).
      On to number two! You can ONLY be arrested for "failure to identify" if you have presented some "ARTICULABLE FACTS" that will support your "SUSPICION" and make a "LAWFUL DETENTION" possible. In that case the individual will have to give you his name and address ONLY! When he does that, his obligation to your thinking you can scare him into a confession will rapidly come to an end when he invokes his Fifth Amendment Right and have his attorney present for any further interrogation. Once he invokes his 5th Amendment Right NOT to answer any more of your questions without the presence of his attorney, your interrogation is at an end. As soon as you inform the individual that he is being LAWFULLY DETAINED, the stop watch starts counting the minutes. You see, you only have what time the Supreme Court has allotted for a "LAWFUL DETENTION". When that minute hand approaches the 20 minute mark you will have to either cut him loose or inform him of his "rights" (Mirandizing...) and inform him of the charges you are accusing him of. So, you see, you don't even have a "failure to identify" at hand any longer. You must make sure you have all those ""SPECIFIC AND ARTICULABLE FACTS" to prove "REASONABLE SUSPICION" in order to move to the next step, "PROBABLE CAUSE" and an arrest of the individual. Unfortunately, your deductive logic is rather skewed here also. You see, there is no LEGAL REASONING that supports your assumption that by simply "asking what one is being charged with" does not equal a confession nor "resisting arrest". Did your mother drop you on your head...multiple times...when you were a baby? I really hope that you are some dumb-ass attorney and not a "police officer" because from your demonstration of your idea of logic, you would not only be a danger to the citizens of whatever town or city that employs you as a "peace officer", you would also be a danger to yourself! I would REALLY like to see if you could make those "resisting arrest" charges stick! From the final part of your "contribution" to this forum, I'm now positive that you are some "finger on the trigger" "COWBOY" who really shouldn't be wearing a badge let along be trusted with a weapon!!! If this is how you get your erection (if you can still get it up that is...your wife has spilled the beans on this one...on another forum...). I am sorry to have to be the one who tells you, but you need help. I'm thinking maybe a leave from work so you can go back to school to graduate from 5th grade and get your "big boy pants"...FINALLY!! Who could ever take a trigger-happy "COWBOY" like yourself SERIOUSLY while wearing little boy pants to work each day. I'm positive that this has most likely caused you to become one of those "penis envy" kind of guys...maybe borderline "closet homosexual" but only because you like to suck on things so much. I wish you well on your way to...maybe...making it into the 6th grade and maybe then you will be able to grow a real penis that doesn't look like a very short mushroom. I hope this has helped you better understand HOW MUCH OF A ****UP EVERYBODY THINKS YOU ARE!!!!...and I also hope that you get permanent asylum in a good mental facility so you won't have to be so ashamed of drooling all over all those tickets you write every day...big boy! Hopefully they won't allow you anywhere near a metal fork or knife GOD FORBID!!!! IT'S COPS LIKE YOURSELF THAT MAKE IT SO HARD ON THOSE WHO ARE ACTUAL GOOD POLICE OFFICERS INSTEAD OF SOMEONE LIKE YOURSELF WHO ONLY ACTS UNDER COLOR OF LAW...NOW GO SUCK A DOOR KNOB SA!
      I just wish I could actually meet face to face one day, not because I would find any satisfaction of looking at your ugly mug, but because you need someone to actually teach you how to live in this world without going to work every day thinking how many "ASSHOLES" you can F**K over today! You sound like one of those REALLY F***ED UP FAKE WANNABE REAL "POLICE OFFICERS" who enjoys F***ING with people...just because you're the one with the badge and the gun! I would love to be the one who actually got to teach you the meaning of life! Maybe then you wouldn't think of yourself as such a HOT SHIT BAD ASS! You need someone who isn't afraid to slap the shit out of your face until it turns redder than your ass after a good spanking ASSHOLE!
      .

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  • icon
    Shane C (profile), 21 Feb 2017 @ 12:45pm

    Fort Worth

    The location in Texas was left out of the synopsis. In case you are wondering where this happened;

    Plaintiff-Appellant Phillip Turner was video recording a Fort Worth
    police station from a public sidewalk across the street when Defendants- Appellees Officers Grinalds and Dyess approached him and asked him for identification.

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    • identicon
      William Smith, 6 Nov 2017 @ 8:23pm

      Re: Fort Worth

      It's Harris County Texas and the dickhead wannabe real "police officer" is Deputy Rene Ybarras! This guy has been giving lip service (as in homosexual "lip service"...and I'm thinking that he likes to get bent over quite often by all those really bad ass black convicts with the 18" penises!) to his Chief (also a confirmed Butt Bandit!...) and the town mayor (not just your conventual homosexual, but one of those freaks who likes to get the shit kicked out of him after he gets his ass plowed by Deputy Rene Ybarras! Please be careful with what you say if you are ever stopped by Deputy Ybarras...he's in the advanced stage of Syphilis, his dick has rotted off and he's in a rapid mental decline approaching dementia! He also likes to shoot citizens while they're still strapped in by their seat belts and has planted many hand guns on those he has executed just to keep his sorry ass out of prison. If you do see him passing, just hang your arm outside the driver's window and flip him the bird with maybe a few colorful names shot his way...he loves the attention!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Feb 2017 @ 1:19pm

    Not uncommon in Texas

    I live in Texas and one of my hobbies is photographing transportation. Air, rail, sea, ground. And yes, I get questioned. A lot. Many times the LEO will demand I erase all photos "Because we live in a post 9/11 world". I don't make a fuss and simply delete the photos on the chip.

    Which isn't at all the same chip that was in the camera before they rolled up and got out of the car.

    I'm working on a way to use BlueTooth to copy the photos to a Raspberry Pi in my car, and from there, up to the Cloud via cell modem. A cloud OUTSIDE of the "five eyes" treaty.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Feb 2017 @ 4:25pm

      Re: Not uncommon in Texas

      My camera has a feature where it can write to two SD cards simultaneously. When pulling up photos for review, it only reads off the first card. So if someone asks me to erase my photos, I'll first show them the photos, then with them viewing, I'll select "format disk" -- at which point the camera shows "no pictures to display".

      Everyone seems happy with that song and dance.

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      • identicon
        William Smith, 6 Nov 2017 @ 8:30pm

        Re: Re: Not uncommon in Texas

        Have any of you abused Texans ever thought about just telling the FUCKING ASSHOLE to go FUCK HIMSELF??? I'm pretty sure he would short circuit on the spot because the LEO's in Texas aren't used to being told to GO FUCK YOURSELF ASSHOLE! Sooner or later all the ASSHOLES in law enforcement in Texas will finally figure out what is and what isn't legal and might just stop fucking with ya-ll...

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    • identicon
      hegemon13, 22 Feb 2017 @ 10:26am

      Re: Not uncommon in Texas

      Bluetooth would be tough because of the low bandwidth and close range. But WiFi would do nicely. Just get a wi-fi enabled SD card and set it to backup automatically to an access point in your vehicle. Or the hotspot on the phone in your pocket. And from your phone, uploading automatically to any number of cloud services is a piece of cake.

      reply to this | link to this | view in chronology ]

    • identicon
      John Boyd, 26 Oct 2017 @ 9:55am

      Re: Not uncommon in Texas

      Then you're a cuck. Have your wife call me. I will take care of her for you and you can watch.

      reply to this | link to this | view in chronology ]

      • identicon
        William Smith, 6 Nov 2017 @ 8:33pm

        Re: Re: Not uncommon in Texas

        Yeah, right! His wife would kick the shit out of you, you fucking pussy...whose dick are you going to take care of business with?...not yours I hope...what there is of it...

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  • icon
    That Anonymous Coward (profile), 21 Feb 2017 @ 1:26pm

    Judge Brown, keeping the anything you think is suspicious must be criminal, and even innocuous activity that upsets someone in authority might be a crime.

    One wonders if the Judge would feel it wasn't an arrest if she was handcuffed & detained in the back of a patrol car because she was looking at her phone & they thought she was filming.

    Allowing the officers to keep playing the well we THOUGHT the law said X only adds to the contempt they find themselves facing. If you are charged with upholding the law & you have to 'invent' an excuse to flex your muscle you shouldn't be an officer. At minimum it should be a painful lesson for the officer with a penalty the union contract can't undo.

    While these fine upstanding officers were illegally detaining a citizen & stomping on his rights, was there any real crime they should have been after?? Wasn't there a kids lemonade stand they could have trashed & seized the cookies from?

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    • identicon
      William Smith, 6 Nov 2017 @ 8:38pm

      Re:

      Who in his right mind would want to even look at that skank let alone handcuff it in his back seat??? What that old as dirt bitch needs is a good set of boots to the back of her head while her mouth is hung over the curb...not only will this cure her of FUCKING OVER SO MANY INNOCENT VICTIMS OF HER PERSONAL HENCHMEN EMPLOYED WITH HARRIS COUNTY TEXAS!...SHE'LL NEVER BE ABLE TO TALK RIGHT EVER AGAIN AND WITH A LITTLE TENDER LOVING CARE TO THE REST OF HER VERMIN HIDE SHE MIGHT JUST TAKE "EARLY RETIREMENT" AND DISAPPEAR INTO THE SUNSET...

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  • icon
    Norahc (profile), 21 Feb 2017 @ 2:21pm

    If police officers are entering and exiting a building from doors clearly viewable by the public from a public area, the officers obviously aren't that concerned about their "security." If so, they would use an entrance/exit members of the public can't see or don't have access to. If the Fourth Amendment doesn't protect the privacy of citizens in public areas, the same public areas can't be given a heightened privacy protection that only covers public servants.

    Sure it can...after all, the law doesn't apply to public servants and the Constitution is something to be worked around at every opprotunity.

    /sarcasm

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    • icon
      Bergman (profile), 25 Feb 2017 @ 11:47pm

      Re:

      Ironically, if there is no right to record people entering or exiting a public building, then there is certainly no right to record people entering or exiting a private one.

      Suddenly, police on stakeouts would need a warrant to video record the outside of a suspect's house and to record who comes and goes.

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  • icon
    Mononymous Tim (profile), 21 Feb 2017 @ 3:20pm

    The officers arrested him for "failure to identify," took his camera, and tossed him in the back of a squad car.

    To what, drive him aaalll the way across the street?

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    • identicon
      Anonymous Coward, 21 Feb 2017 @ 4:54pm

      Re:

      To what, drive him aaalll the way across the street?

      To keep someone else from photographing what was about to happen to him in the back of the squad car.

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  • identicon
    Anonymous Coward, 21 Feb 2017 @ 5:22pm

    Police. That one heck of a tech info here.

    reply to this | link to this | view in chronology ]

  • identicon
    dr evil, 21 Feb 2017 @ 8:59pm

    am i being detained?

    undoubtedly a better solution is to have a different line of q and a with officers that do not know the law..

    if you are asked to do A (present ID for instance) ask "am i obligated to do A?"
    if answer is "no" wait silently
    if "yes" the reply "please present the law or statute that supports this" and again wait silently
    since police in the USA do not have to be hired from the best qualified applicants (or the most intelligent.. google it) your torementor will likely not know what to do next.

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    • icon
      That One Guy (profile), 22 Feb 2017 @ 12:07am

      Re: am i being detained?

      your torementor will likely not know what to do next.

      If only.

      'When in doubt, contempt of cop' would likely be the default step at that point, because clearly only a criminal would even think of invoking their rights or talking back to a cop, and the mere act of doing so is suspicious and grounds for say, locking someone in the back of a cruiser.

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    • identicon
      Anonymous Coward, 22 Feb 2017 @ 7:02am

      Re: am i being detained?

      if "yes" the reply "please present the law or statute that supports this" and again wait silently

      As the cuffs go on and you head to jail. Yeah, real good plan you got there.

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  • identicon
    TXchick811, 22 Feb 2017 @ 10:42am

    Failure to Identify

    "Texas police officers love to misread the state's "failure to identify" statute. It doesn't say what they think it does… or what they want to believe it does. A former cop-turned-law student has a full explanation here, but suffice to say, cops cannot arrest someone for refusing to ID themselves -- at least not in Texas. The charge can be added after an arrest (if the refusal continues), but it can't be the impetus for an arrest."

    This is true with regard to REFUSING to identify; but it is important to note the rest of the statute which involves false or fictitious information. As a criminal defense attorney, I have seen both--used properly and improperly. The relevant statute is Tex. Penal Code §38.02, which reads:

    (a) a person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information;

    (b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
    (1) lawfully arrested the person;
    (2) lawfully detained the person; or
    (3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.

    Under §(a), the offense is a Class C misdemeanor and punishable by fine only. The offense is a Class B misdemeanor under §§(b) and punishable by up to 180 days in jail and/or a $2000.00 fine. However, the offense is a Class A misdemeanor under §§ (b), IF the person was, at the time of the false ID, a "fugitive from justice." This is punishable by up to 1 year in jail and/or a $4000.00 fine.

    So, in this case the police were unlawfully arresting under §(a), since no false name was given. Let's say he had given the name "John Smith"; well, under these same circumstances neither §§ (a) nor (b) could support an arrest, because he wasn't lawfully arrested, he wasn't lawfully detained (meaning that the police did not have reasonable suspicion or probable cause to believe a crime had been committed simply by his independent filming of activity at the police station); nor did the police have good cause to believe that he was a witness to a criminal offense.

    In Texas, you can be arrested for a Class C ticket-able offense except in two instances--speeding and open container. There is pending legislation this year that would limit arrests to offenses that are Class B and greater. (This is good legislation that should be supported.)

    One more tip--generally if you are arrested, you should invoke your rights. The SCOTUS says you must "affirmatively" do this. What that means is that you must actually say: "I am invoking my right to remain silent and I want my attorney." Then you should actually STAY silent. If you don't, you can be found to have waived your earlier invocation.

    Very good article, I have shared.

    reply to this | link to this | view in chronology ]

  • identicon
    Bigga Picked Ya, 23 Feb 2017 @ 4:15am

    When are they going to arrest Google Maps/Streetview?

    10^100 got pictures first.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 25 Feb 2017 @ 7:21pm

      Re: When are they going to arrest Google Maps/Streetview?

      Google has money and access to skilled lawyers, therefore Google can fight back, and bullies usually avoid targets that are able to stand up to them.

      reply to this | link to this | view in chronology ]


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