Prosecutor to Judge: Hold my Beer

In the middle of West Texas is Midland County. It’s due south of Amarillo and due east of El Paso. Just to the west of it is Odessa. This is the heart of both West Texas and the “good ol’ boy” country. It is also where a prosecutor worked as a law clerk for a state district judge at the same time that he was actually prosecuting the same case. The state obtained a conviction against Clinton Lee Young for the murders of two men, Doyle Douglas, 41 and Samuel Petrey, 52, and in 2003, District Judge John G. Hyde sentence Young to die by lethal injection. During that time, Weldon “Ralph” Petty, Jr. was both working on the prosecution team that was trying the case and as a legal clerk for Judge Hyde, evaluating and researching the pleadings in the case.

Young, for his part, asserts that he didn’t shoot anyone, and that one of his co-defendants did it. Thus far, that position has been rejected by the courts, and the co-defendants were sentenced to 30-years and 15-years for kidnapping. None of the appeals addressed the conflict of interest in a prosecutor helping a judge on a death-penalty case. So recently, as the defense team was filing a last minute appeal based on possibly false testimony, the prosecutor assigned to defend the conviction called Young’s lawyers.

The ADA in the case, Eric Kalenak, told Young’s counsel that Petty had worked as a law clerk for the judge in the case. The Midland County DA also recused themselves from the case. County records supported this notice, but we’ll get into that a little later. This is just flat out prosecutorial misconduct on a number of different levels. First, one cannot work for both the executive branch (DA’s Office) and the judicial branch (law clerk) at the same time.

Next, it compromises the position of the Court, and is evidence of bias towards the prosecution. Think about this for a second. Once Young was convicted, and his attorneys were filing for post-conviction relief, Petty was preparing and submitting briefs on the State’s response and then put on his judicial branch hat and recommended to the judge how the court should rule. I did the same thing when I clerked for a criminal district judge, and normally the clerk’s recommendations are accepted, with minor polishing by the judge, as the position of the court. The difference is that I wasn’t also one of the parties in front of the court.

Third, it consists of ex parte communication with the court. That’s forbidden except under very limited circumstances. It is the reason that most communications with the court go through a court coordinator or administrator, and why the lawyer sending the message normally copies the opposing party.

This is a big deal, big enough for Petty to potentially be disbarred, and had Judge Hyde not passed away in 2012, for him to be removed and also disbarred. It is clearly enough to require a new trial for Young.

Now comes the really, really fun part. The Midland County Treasurer records indicate that this wasn’t a one-off episode. Petty reportedly performed both jobs for at least 17 years. It is not known how many defendants that this could effect, but Young is likely the very tip of the iceberg. We don’t have a clue though, because the Midland County DA isn’t saying, and the court has thus far refused to allow the defense team to depose Perry or to conduct any discovery.

Is Young guilty? Based on what was presented, probably. Can we know for sure when the court and the prosecution was working together? No, absolutely not.

Update on Kenosha

Ed. Note: This article was originally posted at Simple Justice, the award winning legal blog run by my old mean-ass editor at Mimesis Law Fault Lines, Scott Greenfield.

There is further information relevant to the situation in Kenosha on more than one front. This deals with both the situation with Jacob Blake and the situation with Kyle Rittenhouse. I imagine that both sides are not going to like what I have to say, not that this will stop me from saying it.

Jacob Blake

During the police response to the scene, officers were informed that Blake was at the scene and was “not supposed to be there.” At the time he had active arrest warrants, and police were reportedly informed of this. The warrants were for third degree sexual assault, criminal trespass, and disorderly conduct.[1] So the police knew that he was wanted for a violent felony, and when they arrived, they attempted to arrest him.

Blake resisted and was tased, without apparent effect. After he was tased, he got up and you can hear police yelling for him to drop the knife. And a screenshot from the original video shows Blake holding what appears to be a Karambit or Hawkbill bladed knife.

So now you have an armed subject who is resisting and not following commands, entering a vehicle which has three children in it. And that doesn’t even begin to address the other issue. At least one site evaluating the shooting states that Blake told the officers that he had a gun in the vehicle, although isn’t yet confirmed. In any event, these factors change how we look at this individual shooting, at least by a lawyer with a police background.[2]

Under the guidelines in Tennessee v. Garner,[3] an officer may use deadly force if:

…it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Now you have police officers who are attempting to arrest a felony fugitive of a violent crime, who is armed, attempting to enter a vehicle with three children, and attempting to either flee or obtain another weapon. You’ve arguably got all of those factors now. That would make the shooting justifiable.

That’s not, of course, going to change the perception of the rioters/protesters.

Kyle Rittenhouse

In the other developments, more has come out about the 17-year-old who killed two and wounded a third on Tuesday. First, I would like to clear up some confusion about Rittenhouse. Wisconsin is like Texas in one critical regard as to trying Rittenhouse. In both states, every 17-year-old is tried as an adult. They are arrested as an adult, held in an adult jail, and tried in an adult court. For the purposes of state criminal law, they are an adult. So Rittenhouse is not going to be handled as a juvenile, nor should he be in this case.

Second, although Rittenhouse will be tried as an adult, he’s not old enough to legally carry a firearm, being under 18 years old. He also won’t face the death penalty, although not because of his age.[4] Wisconsin has not allowed the death penalty since 1853, and only had one execution after becoming a state in 1848.[5]

Rittenhouse apparently only killed two white people, Anthony Huber (on the left) and Joseph Rosenbaum (on the right). He was able to walk out of the area, past law enforcement, despite the fact that witnesses and bystanders were shouting to the police that Rittenhouse had just shot people.

Then Rittenhouse went home to Illinois, where he was subsequently arrested on murder warrants from Wisconsin. He is currently being held in juvenile facilities in Illinois, pending extradition.

And the actual narrative is even more interesting. The New York Times pointed out that there were two bursts of shooting, with video and photos. Rittenhouse was being chased and someone fired a handgun.

Someone, presumably Rittenhouse, returned fire, about 4 rounds. Rittenhouse tried to flee, but then he trips and falls to the ground. Then he is kicked in the head by the guy rolling on the right (after the kick), and he is hit in the head by Huber’s skateboard. Rittenhouse then shot Huber in the chest and the guy with the handgun.

That’s pretty clearly self-defense. And that pretty much trumps everything else. Can they charge him with a misdemeanor for carrying the gun underage? Sure, and I wouldn’t have a problem with that. Can they make a murder charge stick? I doubt it.

Although Rittenhouse carries some blame, so do others. If he was there as part of a group, why did they let him wander off and get separated? Hell, why was he allowed to be there in the first place?

The only thing that is clear is that nothing is ever the way it seems.

[1] In Wisconsin, third degree sexual assault is sexual intercourse without consent, punishable by up to 10 years in prison. The other two are misdemeanors.

[2] And there will be plenty of others that disagree with me, I’m sure.

[3] 471 U.S. 1 (1985).

[4] See Roper v. Simmons, 543 U.S. 551 (2005), which prohibited the execution of those under the age of 18.

[5] The one execution, of a John McCaffary, for the murder of his wife, was in 1850, in Kenosha, and was attended by about 3,000. It did not go well.

The Response of the Oppressed

Ed. Note: This article was originally posted at Simple Justice, the award winning legal blog run by my old mean-ass editor at Mimesis Law Fault Lines, Scott Greenfield.

In 1862, in Minnesota on the Lower Sioux Indian Reservation, the Santee Dakota Indians were starving to death. They had agreed to cede land to the United States and move onto the reservation, and the government agreed to provide for their needs, including food.[1]

In 2020, blacks had suffered for years with young blacks being killed by police officers, culminating in the death of George Floyd in Minneapolis, without officers being held accountable for misconduct.[2] In both cases, the affected population did what people do when they have taken all that they can take and have no other readily available options—they reacted with violence.[3]

In Minnesota, 158 years ago, the Santee forced the Indian Agent to issue them partial rations, and then broke out of the reservation, waging war against the whites. And the government reacted as one would expect, sending the Army against the tribe.[4] In Minnesota, riots broke out, as they also did in Kenosha, Wisconsin, following the shooting of Jacob Blake Jr. by a police officer at a domestic violence call.

In this latest officer-involved shooting, about which Scott Greenfield wrote and posted cellphone video, Blake is shown being shot seven times in the back at point blank range. Blake was unarmed, and from what I can tell, not a threat to anyone. I simply cannot see how the shooting can be justified, but we don’t have all of the information yet, so we should withhold judgment.

Even with the additional cellphone video, there is no indication of danger that I could see. But, as Scott noted, Kenosha is burning, just like Minneapolis burned, and Ferguson, Missouri burned before that. And just like towns will burn in the future, if we don’t get a handle on things.

But the dominant community is reacting in the same manner today as they reacted in 1862. The problem is obvious, that those who were starving to death were at fault and shouldn’t have rebelled. The military commission had sentenced 303 to be hanged, but they had to get President Lincoln to sign off on it. He originally said that only those who raped white women would be executed, but found only two Santee met that criteria.

In the meantime, the voting public of Minnesota was calling for the entire tribe to be put to death.[5] So on December 27, 1862, in the largest mass execution ever conducted in the United States, 38 Indians were hung from one large gallows in Mantako, Minnesota, in front of 4,000 spectators and 1,500 soldiers.

In the current day, we’re not hanging them, but we are doing next to the same thing. President Trump has declared that the Black Lives Matter movement is a “Marxist” group who want to kill police officers.[6] PragerU[7] released a video, “Black Lives Matter is a Marxist Movement,” that has garnered over a million hits. At RallyPoint, conservative military service members and veterans site, the same is occurring, primarily focusing on Seattle and Portland, all with comments about how BLM wants to destroy the American way of life, meaning the white American way of life.

OK, for the sake of argument, let’s say that BLM is a Marxist organization. What other options do blacks have at this point? Blacks are dying at the hands of police but no one is interested in stopping it. And because of that, conservative whites are attacking the character of the movement.

So let’s look at who’s actually doing something, versus who is just criticizing and who’s actually in the arena. If you don’t want oppressed people to flock to “Marxist” organizations, you have to give them a viable option.

The Santee didn’t have an option in 1862. They could stay on the reservation and starve, or they could break out and try to survive. Today, blacks have the same option. They can either do nothing and continue to die at the hands of the police, or they can join a group that will actually do something.

Think about that—and what would you do in their position?

[1] Gregory J. Prickett, Here Were Hanged 38: Using the Image of Law to Terrorize and Subjugate American Indians 7 (July 26, 2014) (unpublished J.D. rigorous writing assignment, Texas A&M Univ.).

[2] Gregory J. Prickett, Prickett: Taking a Knee, Simple Justice (May 31, 2020).

[3] As I’ve stated before, numerous times, I’m opposed to rioting and the destruction of property or the injuring of people. Those who riot should be identified and prosecuted.

[4] Here Were Hanged 38, at 7. The Army also illegally tried the Santee and sentenced 303 to death by hanging.

[5] Here Were Hanged 38, at 8.

[6] Some of the leaders of BLM have stated that they are Marxist, like Patrisse Cullors.

[7] PragerU is funded by two Christian Nationalist brothers, the Wilks, who want to install Biblical law in the United States.

Open Letter to Grant Scheiner, President of the TCDLA

Ed. Note: This article was originally posted at Simple Justice, the award winning legal blog run by my old mean-ass editor at Mimesis Law Fault Lines, Scott Greenfield.

Dear Mr. Scheiner:

On July 27, 2020, you forwarded to all members of the TCDLA that the Executive Committee had decided to participate in the public lynching of the State Bar of Texas President, Larry McDougal.

First, I’m going to point out some things that should have been considered before you took action on behalf of the entire TCDLA, especially without consulting the membership.

• Larry made comments in response to a question on electioneering. These remarks were off the cuff and were not researched. And they appear to be wrong. He stated that he made the comments in his personal capacity, not his capacity as the SBOT President.
• He has apologized for any offense that this may have caused and laid out what he intends to do to moving forward.
• He has followed through on this by having meetings with concerned groups of the SBOT. Some of the groups don’t like his apology or his statements and are pressing their own agenda.
• People who have known Larry for years, and in some cases, decades, have repeatedly said that he’s not a racist.

Now I’m going to point out some other issues that as a lawyer you should have taken into consideration, and that I would hope you would take into consideration for any of your clients.

• Larry was a police officer and a deputy sheriff for about 15 years before he became a lawyer. Being a cop is not just another job, it changes a person no matter who they were before. Gallows humor and inappropriate comments about street justice are not uncommon.
• Someone had to be very interested in doing harm to Larry to search through his social media posts, especially going back five and eight years. What was their motivation? Are they some type of social justice warrior?
• Larry has been recognized on multiple occasions as a top criminal defense attorney in his part of Texas, and that doesn’t happen if one is a racist. That happens when the attorney in question works hard and diligently in his client’s best interests.

I’m sure that some people will want to jump on me and my past posts because of my support for Larry. That’s fine, you can start at the stories I did about the shooting of Tamir Rice, or Alton Sterling, or any number of other incidents involving the police and black people. You can look to where I wrote about police driving toward the sound of gunfire, and what they do to protect society. That should give you plenty of ammunition to come after me.

And it won’t matter that I’ve called for reforming how we handle police shootings and use of force before that, because once the lynch mob is formed, it has one goal, and it doesn’t matter what justice requires.

But I’m not the only one that supports Larry, nor am I the only one who has objected to the TCDLA letter on Larry to the SBOT. There were a number of comments on the TCDLA listserv, none of which condemned Larry, and one noted that his “offense” was in not being respectful enough of Black Lives Matter “and failed to hate on the police enough.” Another noted that he wasn’t consulted, disagreed with the letter, and was leaving the TCDLA over this issue.

Less than half of the people commenting at a SBOT special meeting called to lynch discuss Larry wanted him to resign. Some pointed out, like I have, that he’s not a racist. Some defended him on free speech grounds.

On the back of my business card is a quotation from Clarence Darrow, one of the best criminal defense attorneys in our nation’s history. It says “You can only protect your liberties in this world by protecting the other man’s freedom. You can only be free if I am free.” That quotation comes from Darrow’s defense of twenty alleged members of the Communist Labor Party against criminal charges leveled against them not for the actions they took, but for what they thought and said. They were being tried for what they believed, for thought crimes.[i]

But the lynch mob still gathered. It wants to take Larry out and hang him. As criminal defense lawyers, we’re supposed to defend people, one person at a time. That’s not what you and the TCDLA are doing. No, you are in the street, screaming “git a rope!”

Which side would you rather be on? Protecting another man’s freedom? Defending people even when they screwed up? Standing between that person and the lynch mob?

Or carrying a torch and a rope?

I’m sorry, I can’t do that, either as a criminal defense lawyer or a former cop. I’ll stand between Larry and the mob. And the TCDLA should be standing there with me, not with those who want to lynch Larry.

[i] As a side note, all twenty were convicted and sentenced to between one and two years in prison, affirmed by People v. Lloyd, 136 N.E. 505 (Ill. 1922).

Honest, He Tripped and Fell, All by Himself

UPDATED

It appears that the tide is turning on police misconduct and public leaders just blindly accepting the police narrative. This Saturday, the Erie County District Attorney John Flynn charged Robert McCabe and Aaron Torgalski with Assault in the Second Degree.^[1]This is just days after the assault, and after both officers had been suspended without pay.

Of course, McCabe and Torgalski have co-workers that apparently think that they did nothing wrong, as they resigned from the riot unit, but not the police force, in protest of the suspension of the two. UPDATE: It’s come out that the 57 members didn’t resign from the riot squad in support of McCabe and Torgalski, but because the union president sent an email that the union would no longer provide legal representation for incidents that occur due to an officer’s actions in the riot squad or the SWAT team. DA Flynn had a message for them, too, and it wasn’t conciliatory. Flynn told the other officers “to think about the oath they took when they were sworn in as police officers.” 

The Buffalo Police Benevolent Association came out in support of the two officers as well, but this didn’t seem to affect the politicians. New York Governor Andrew Cuomo stated that officers who crossed the line would be held accountable. The Mayor, Bryon Brown said that “This union has been on the wrong side of history for a very long period of time and they have been a real barrier to reform of policing in the city of Buffalo. . . .”

The Police Department initially said that Martin Gugino “tripped and fell” which is quite simply a lie. But everyone has a video camera in their phone nowadays, and the video came out rapidly. The incident happened on Thursday, the officers were suspended on Friday, and they were criminally charged on Saturday. That’s what needs to happen. What needs to happen next is to find out who reported that Gugino “tripped”, and an administrative investigation (at a minimum) needs to look at that. We cannot allow officers to lie on reports, especially about the use of force.

And then there’s the guys at PoliceOne.com, who think that the sky is falling. Comments are all over the place, like:

What bull shit. Hope these two sue and get paid.

Ol Martin was intentionally trying to impede the officers and got what he deserved.

Each one of those officers should take their riot control gear and hand it to their local politician starting with the prosecutor.  When they do explain to that politician they are now responsible for controlling the crowds and walk away.

They don’t get it, they are used to being able to do what they want, but politicians are starting to look at what the people expect of them, as far as controlling the police. The public wants effective law enforcement, but they don’t want abuse.

Gugino, 75, was hospitalized, and remains in the hospital in serious condition. 

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^[1]See NY Penal Code, §120.05(12), “With intent to cause physical injury to a person who is sixty-five years of age or older, he or she causes such injury to such person, and the actor is more than ten years younger than such person. . . .” It’s a Class D felony, punishable by 2-7 years in prison.

We Issue Body Cams for a Reason, Chief

Ed. Note: This article was originally posted at Simple Justice, the award winning legal blog run by my old mean-ass editor at Mimesis Law Fault Lines, Scott Greenfield.

On Monday, June 1, 2020, Louisville Metro Police Chief Steve Conrad was fired by the mayor, Greg Fischer. While this sort of thing happens all the time, since most chiefs serve at the will of the mayor or the city manager, depending on the structure of city government, this was an unusual case. 

First, the chief was fired because the last two officer-involved shootings, both of which resulted in the death of honest, hard-working, black citizens who were not violating the law, were not caught on body cam video.^[1] Second, and no less important, was that Conrad was set to retire at the end of the month.

On Friday, March 13, 2020, at about 1:00 a.m., Louisville Metro Police (LMPD) executed a no-knock search warrant at the apartment of Breonna Taylor. The warrant was looking for someone who did not live at the apartment and who had no connection with either, Taylor or her boyfriend, Kenneth Walker. Witnesses state that the police did not knock or otherwise announce themselves. Walker, who thought that his home was being broken into, fired at the people entering and struck LMPD Sergeant John Mattingly in the leg. Police responded by firing 22 times, hitting Taylor at least 8 times and killing her.

Walker, after being jailed for two weeks, was released, which of course outraged both Chief Conrad and the local police union president. At the same time, it turns out that the individual that police were looking for was already in police custody. And in all of this, there was no body cam video, because members of the “Criminal Interdiction Division” are not issued the cameras. Taylor’s family has filed a federal lawsuit. The Federal Bureau of Investigation is investigating the matter for civil rights violations.

After protests started in Louisville following the death of George Floyd in Minnesota, police and National Guard were going to clear an intersection of people. A shot rang out, and people started firing. David McAtee, a barbecue store owner at the intersection, was dead. At least two LMPD officers^[2] fired their weapons. And although these officers were equipped with body cams, not a single one was turned on. The FBI is looking into this case also.

Two officer involved shootings and no video? Governor Andy Beshear said flat out that this was unacceptable. Mayor Fischer apparently thought so too, firing Chief Conrad shortly after the lack of video became known. Fischer also noted that LMPD policy required that the cameras be turned on in those type of incidents, and said that disciplinary action was possible. 

I’ll point out that the denizens over at PoliceOne are in shock, they can’t believe that the chief got fired, and arbitrarily decided that if police get shot at, the rules go out the window. None of them seem to understand what is happening right now. LMPD first obtained about 1,000 body cams in 2015.^[3] Yet they don’t issue the cameras to officers who are going to use a ram to bust down a door, and the officers that do have them don’t seem concerned about turning the cameras on.

And now something I predicted is happening. The elected officials are holding police administrators responsible for not supervising their officers. The elected officials are to the point that they are not going to blindly back the police, and the police really, really, really don’t like it. The policy for no-knock warrants at LMPD now requires the chief of police to approve it before it goes to a judge. I’ll lay odds that cameras will be on more often. And I imagine that police oversight will change as a result of the deaths of Floyd and the others.

And that’s a good thing, for both the public and the police.

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^[1]While not trained on body cameras, I attended the Law Enforcement Mobile Video Institute (LEMVI) and was certified on mobile video cameras as an instructor. LEMVI was run by Jim Kuboviak, a former police officer who went to law school and who was the Brazos County Attorney for a long time.

^[2]Identified as Officers Kate Crews and Allen Austin.

^[3]See https://www.policeone.com/police-products/body-cameras/press-releases/louisville-metro-police-to-deploy-988-axon-body-worn-cameras-on-evidencecom-and-mediasolv-solution-OTLeauTnm4hHKPsA/

Church Services, COVID-19, and the Constitution

Most people are under the impression that the Government can’t tell them that they can or cannot go to church services during a pandemic, and that the Government can’t regulate their religion at all. That’s not a correct statement of the law. The First Amendment has always be subject to time, manner, and place restrictions, and churches are always subject to neutral laws of general applicability.

So some of the religious people are going to be very upset over this, because they aren’t being treated special. Well, too bad.

This has a very simple procedural background. California Governor Gavin Newsom, in starting to reopen California society during the COVID-19 pandemic response, issued an order that allowed churches to open, but only at 25% of capacity, or no more than 100 people, whichever was lower. The churches complaint was that they couldn’t worship the way that they wanted to worship, and their rights were being abused, so they filed in the Southern District of California for a temporary injunction. The trial court, following a telephonic hearing, denied the request for an injunction, and the church appealed to the Ninth Circuit Court.

That court also denied a request for a temporary injunction pending appeal, noting that:

Where state action does not “infringe upon or restrict practices because of their religious motivation” and does not “in a selective manner imposeburdens only on conduct motivated by religious belief,” it does not violate the First Amendment. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 543 (1993).

South Bay United Pentecostal Church v. Newsom, No. 20-55533, slip op. at 3 (9th Cir., May 22, 2020)

and that when a

[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact. Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).

Id.

Well, of course the church didn’t like that result, so they decided to take it to the U.S. Supreme Court, where they didn’t fair any better. In a 5-4 decision, with Chief Justice John Roberts joining with Justices Ginsburg, Breyer, Sotomayor, and Kagan, SCOTUS declined to issue an injunction. C.J. Roberts noted that those:

[R]estrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. 

South Bay United Pentecostal Church v. Newsom, No. 19A1044, 590 U.S. ____, slip op. at 2 (May 29, 2020)

This is a very simple legal concept going back to the original Founding Fathers. Churches cannot do what the general public is forbidden to do. For example, in the 1870’s, the Mormon church championed the practice of polygyny, even though federal law prohibited bigamy. In an 1878 case, the Court pointed out that “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” Reynolds v. United States, 98 U.S. 145, 166 (1878). And more recently, in Employment Division v. Smith, the Court held that even if one’s religion belief required it, the state could prohibit actions so long as the law was neutral and of general applicability. Justice Antonin Scalia noted:

We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.

Employment Division v. Smith, 494 U.S. 872, 493 (1990)

Here, it’s quite simple. The church has to follow the same restrictions that other venues have to follow. That isn’t persecution, it isn’t discrimination, it is what is required of all citizens.

Fort Worth Police Sergeant Fired

One of the issues that I have talked about from time to time is the Texas law on when a person must identify themselves to the police. In the Texas Penal Code, it is covered under Failure to Identify,† a criminal offense. Police invariably believe that this means that they have the right to identify anyone that they want, and to arrest when the person refuses to identify themselves. In August, Fort Worth Police Sergeant Kenneth Pierce ordered an officer to taze Dorshay Morris, who had called police about a domestic disturbance. On Monday, December 18, 2017, Pierce was fired. The video from the incident is telling.

First, the officers respond to the apartment and arrest the male half of the domestic disturbance.‡ Then a female officer, M. Bayona, demands to see the child in the apartment, and Morris complies. When Bayona demands to see the woman’s ID is really where the problem starts. Morris is hesitant, so the sergeant jumps in, and when Pierce asks for her ID (at 7:09), Morris correctly states that she doesn’t have to give the officers anything.

And then Pierce tells her to either hand the female officer the ID or she’s going to jail. For what? Not providing her ID? She doesn’t have to, because the law is very clear on the issue. She only has to provide ID if she has been lawfully arrested, and she wasn’t lawfully arrested at that point. Then, as the officers are struggling with Morris, Pierce tells the female officer to taze Morris, at which point she is subdued and arrested.

Another point of concern that I have is what the female officer tells the cousin of Morris, that the woman started “getting aggressive” (at 12:08)—huh? Morris in no ways was aggressive, she merely didn’t comply with an order that she did not have to comply with. That’s no where close to “getting aggressive.”

In any event, Pierce was fired by Chief Joel Fitzgerald because Pierce, according to the Internal Affairs investigation, had “no basis for the initial arrest; therefore, any force used to apply handcuffs was unreasonable.” Chief Fitzgerald said that Pierce “initiated an unnecessary physical confrontation” and that he was terminating him for neglect of duty, failure to supervise and violating the department’s use-of-force policy.

The Fort Worth Police Officer’s Association♠ disagrees, and their attorney, Terry Daffron, said that Pierce would be appealing the decision. That’s what they are supposed to do, and I’m sure they will do a good job, but in this case, Chief Fitzgerald is right. According to the Star-Telegram, the police reports do not match what is seen in the video.

Morris was charged with Aggravated Assault and Resisting Arrest, both charges were later dropped.

Bayona remains under investigation.

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†§38.02, Texas Penal Code.

‡One interesting point I noted is that the female officer put on latex gloves well before they even got to the apartment. To me, that indicates an intention to go “hands on” with a subject, otherwise, why the gloves?

♠The FWPOA is a member of CLEAT, the largest police officer union/association in Texas. As disclosure, while I was an officer, I was a CLEAT member.

Daniel Shaver Body-Cam Video and the Acquittal

Some of my old Fault Lines co-workers, including the Mean-a$$ editor, have been talking about the former Mesa, Arizona police officer who was acquitted of murder and manslaughter in the officer-involved shooting of Daniel Shaver. I wrote about it on Fault Lines when if first occurred. Chris Seaton recently posted on it with a good timeline of events.

I normally agree with all of my colleagues from Fault Lines, but occasionally they make incorrect evaluations of a situation. Sometimes they are just flat-out wrong, like when Scott Greenfield discusses barbecue.∗ Here, Scott tweet a link to a Red State Patterico article that describes the “Law Enforcement Perspective,” as if there were only one possible LE view on the matter. I actually agree with most of his points, which were:

1) I believe this was an avoidable tragedy.
2) The police officer’s instructions were absurd and contradictory.
3) The video is infuriating because much of the time it’s impossible to guess what the cop actually wanted Shaver to do.
4) Shaver’s reaching for his waist was a fatal mistake.
5) The cop who shot Shaver was probably really scared.
6) Whether this shooting was criminal or justified is a decision for a jury that has all the evidence. You can’t make up your mind based on this single video. You need more facts.

Patterico’s not wrong, but Scott is wrong about one key issue. Scott keeps saying that Arizona is an open-carry state and that therefore the officers did not have reasonable suspicion to contact Shaver. That’s just incorrect.

To legitimately contact Shaver and detain him, all the officers had to have is “unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous…”† Here you have a call that someone is pointing a rifle out of a fifth story window. Any police officer would recognize this as reasonable suspicion that someone may be committing a crime. He could be a sniper, after all. And the Supreme Court has repeatedly held that reasonable suspicion “need not rule out the possibility of innocent conduct.”‡

The officers had plenty of reasonable suspicion, even in an open carry state.

But the best breakdown I’ve seen, is from a former South Carolina cop who goes by the YouTube handle of Donut Operator.

Cody does a brilliant job of breaking it down, and points out, like Patterico, the commands are contradictory and confusing. He also points out that having Shaver walk backwards towards the officers would have been better, you know, like a felony traffic stop.

Cody points out that the crawling was crap. I’ve never heard of any training where you have a suspect crawl towards you. You either walk them to you backwards, or you prone them out facing away from you and you go to them. That’s it. Those are the two options that I’m familiar with, and crawling isn’t one of them.

Another reason I like Cody is that his reaction to Brailsford’s dust-cover on his carbine.♠ His pro-tip was that if you want to put that crap on your weapon, you probably should not be going into law enforcement.

I am disappointed that there was not a conviction here, but I understand it. Brailsford is not the only one who screwed up, but the department won’t admit that, not as long as the lawsuit by Shaver’s widow is pending.

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∗It’s found in Iowa? Really? And it’s pork?

†Terry v. State of Ohio, 392 U.S. 1, 30 (1968).

‡Navarette v. California, 134 S. Ct. 1683, 1691 (2014).

♠Which read “You’re F**ked” when open.

The Difference between ‘It’s a Tragedy’ and ‘Stuff Happens’

There is a reason that I look at YouTube videos of police interactions. Every once in a while, you’ll find a bit of sheer genius amid all of the idiocy. This is one of those cases.

Here, a black man is pushing a motorcycle down the street when he is stopped by the police, to investigate whether the motorcycle is stolen or not.* The officers run the license plate of the motorcycle, then they run the VIN number, just to be sure. Both come back clear, they both match, and so on. The black man isn’t real happy about being stopped, and at 0:22 one of the officers explains that the man has a “completely disturbed attitude.” It’s not really the officer’s place to decide that, but the interaction gets better.

At about 4:44 in the video, the suspect asks the second officer what he thinks about all of these shootings, referring to the earlier comment he made about black men, especially unarmed black men, being killed by police officers without the officer ever being convicted. The officer responded:

It happens.

And then the suspect, in a moment of genius, asked the officer about the five Dallas officers who were killed by ambush. The officer’s response was very different:

That’s tragic.

Our suspect immediately pointed out the disparity in the attitude of the officer, that “s**t happens” if it is a civilian who is being killed by the police, but “it’s a tragedy” when any officer is killed. The officer won’t address that, but points out that the individual was violating a traffic law.†

The sad part is the officer never understands what the man is saying. The officer just doesn’t get the difference between an attitude that says “s**t happens” and “it’s a tragedy.” To spell it out, that attitude is one that says that a police officer’s life is more important than a non-officers life. Our suspect then makes it crystal clear (at 8:10):

The next that somebody kills a s**tload of officers, say that to yourself, well, s**t happens.

That is absolutely brilliant.

There is a distinct problem when police officers believe that their lives are more important than the lives of the citizenry that they are sworn to protect. This video points out that attitude in a way that is hard to dismiss.

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*That’s arguably reasonable suspicion, although it is also arguably racial profiling. For the purposes of this article, we’re going to assume that it is reasonable suspicion.

†Although I believe this to have happened in Texas, I’m not sure. I’m also not sure that there is a traffic violation involved, but even giving the officers the benefit of the doubt, that still doesn’t address the man’s concerns.