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.

Ka-Ching: New Jersey Settles with Attorney Arrested for Remaining Silent

Back in 2015, Rebecca Musarra was stopped for speeding in Warren County, New Jersey. Musarra refused to talk to the state trooper, although she complied with his requests to produce her license and registration. The trooper, a young idiot named Stazzone, didn’t like that, so he told her she had to answer his questions or she would be arrested for obstruction.

As I pointed out in my Fault Lines article, that’s BS and Musarra, an attorney, knew that. So she refused to answer and the idiot arrested her, and when arresting her, read her a Miranda warning.

You know, the warning that starts out:

You have the right to remain silent.

Yeah, that one.

I pointed out the irony, but Musarra still sued, even after the supervisor released her without charge, waived the impound fees, and apologized.

Even the guys at PoliceOne.com knew this was going to be a loser for the state.

The State of New Jersey apparently agreed, settling the federal lawsuit for $30,000, but admitting no wrong-doing. Even after the State admitted that the troopers were given additional training following the Internal Affairs complaint. Yeah, we know what that means. It means that the troopers messed up and it was just a question of how much the state was going to pay.

About $30,000.

When the Media Makes People Dumber: Akins v. Knight, Eighth Circuit – UPDATED

My former mean-ass editor at Fault Lines, Scott Greenfield, used to tell all of us that we had a duty not to make people dumber when we wrote articles as part of the media. So when I saw the first comments on Akins v. Knight, et al.,* on the various media sites claiming that the Eighth Circuit ruled that there was no First Amendment right to film police officers in public, I was concerned. Then I read the opinion, and the order of the District Court. Imagine my surprise when I found that neither document said anything of the sort.

As far as I can tell, the story first hit the news at KRCG in Columbia, Missouri, and then spread like wildfire through the internet. The headline was “Eighth Circuit: Citizens do not have a right to film public officials in public.” That would, in fact, be news if that’s what the opinion and order said, but its not. Instead, it appears as if the reporter took the story directly from the plaintiff’s attorney and ran with it. The story says that Akins was arrested numerous times for “his actions,” leaving an impression that the arrests were for filming the police.

Only that’s not the case. Akins was arrested for marijuana, for carrying a concealed handgun, for carrying a butterfly (switchblade) knife, for driving with a revoked license, and for outstanding warrants. He was never arrested for filming the police, and the District Court order notes that the Chief of Police advised his officers that Akins had the right to film them in public. Every arrest was for a criminal offense unrelated to filming police and was supported by probable cause.

The District Court order also discusses an invitation-only media training event that Akin tried to RSVP for even though he was not invited. The Court noted, correctly, that the public and the media do not get special access to events, nor do they have the right to insist on filming or recording any event that they want to record. This deals with access, that Akin, a member of the nontraditional media, wanting access to an event for the traditional media, and that was limited to 30 invitees due to space concerns. Akins simply does not have a constitutional right to invite himself to a meeting merely because he wants to film the meeting. The District Court noted:

Akins was not a member of the traditional media, nor does the record show he was an active nontraditional media member at the time. Space was limited. These were content-neutral reasons not to create an exception for Akins to attend the invitation-only event. The media does not enjoy a right of equal access or special First Amendment rights.†

The Eighth Circuit opinion didn’t address any of that. In a per curiam opinion, the appellate opinion focused on the motion for the judge to recuse herself, and affirmed the denial of that motion. The entire comment on the arrests and filming in the opinion was short and sweet:

 

Akins also argues that the district court erred by granting the motions to dismiss and for summary judgment filed by the defendants and by denying his own motion for partial summary judgment. After careful de novo review, we conclude that the district court did not err in its thorough and well reasoned opinions. Accordingly, we affirm.‡

Nowhere did the Eighth Circuit say anything about filming police officers in a public place. But that’s what the headline was, in a story where Akins’s attorney was telling the reporter that he was asking for a rehearing and was considering asking the U.S. Supreme Court to look at the case. It would be much easier to get the Supreme Court to grant certiorari if there was a circuit split—except there’s not one.

Now that it was published by KRCG, every blog in creation has picked up the story and is now screaming that the sky is falling.

It’s not.

You want to know what I find especially gratifying? Over at PoliceOne, some idiot staff member ran with the same story. The cop members overwhelmingly called BS, having taken the time to actually read the opinion. One of them summed it up nicely:

The 8th Cir. NEVER says there is no right to record LEO’s in public. We need to be very careful on this: EVERY federal appeals court in the country to have squarely addressed THAT issue, i.e., filming the police in public, has recognized that right.

You know, if poor dumb cops can read the opinion and get it right, is it too much to ask that a major media outlet do the same? Or at least run it past a lawyer (other than involved counsel)?

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UPDATE

I emailed the KRCG News Director, Matt Johnson and asked him for a comment on this article, noting that PoliceOne had issued a correction on their article. He responded:

For your blog we have no comment. I will tell you that after a thorough review by our legal counsel we stand by the facts of the story.

The court opinions stand on their own.

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*Akins v. Knight, et al., No. 16-3555 (8th Cir., July 25, 2017) (slip op.); and No. 2:15-CV-04096-NKL (W.D. Mo., Aug. 2, 2016).

†District Court order, at 35.

‡Akins, slip op. at 6 (internal citations omitted).

Grapevine Police Officer Brian Hintz and Video Activists

Today I watched a minor drama unfold in Grapevine, Texas, at the US Post Office. A young activist in Dallas has been filming various facilities and calling it a “First Amendment Audit” like those done by other activist around the country. I like this guy, he’s non-confrontational for the most part and he also has a good grasp on what the law is in regards to photography in public. One of the articles dealt with an encounter in Westworth Village and how the activists handled themselves compared to how the police handled themselves.  The officer came off poorly there and the activist did well, as was the case in Grapevine, for the most part.

Going through this video, it’s fairly simple to see that the activist knows what he is doing. At about 1:30 in the video, he is approached by a postal employee and questioned. He answers and the employee says “alright” and walks back to the building. Fairly good, so far. Then, at 4:20, the postmaster comes out and tells the activist that he wants the activist to stop taking video because it is making his employees uncomfortable, and the puts the activist “on notice.” That’s laughable, because at this point, the activist has done nothing that is illegal, immoral, or unethical.

So, as is inevitable in this type of encounter, the police are called and Officer Brian Hintz shows up. Like the officer in Westworth Village, Hintz seems to have a chip on his should and he doesn’t know the law. Hintz (at 6:05) makes contact and asks for ID, just like almost every police officer in the United States would do.* But Hintz says that if he requests ID, a person is required to show it to him, which is absolutely incorrect. We’ve covered this before, at Fault Lines, so I won’t go over the law again, other than to note that the activist did not have to identify himself.

Then Hintz tells the activist that he may ask him to leave, and the activist states correctly that he has a right to be there. Hintz doesn’t like that, and makes a veiled threat to arrest the activist for Failure to Identify—so the activist quotes the law to Hintz.

All is going well for the activist—and then he makes a statement that is just flat wrong.† The activist asks if the officer is TCOLE-certified, which all police officers in Texas have to be, and if he took the mandatory training on public photography.

The problem is that there is no state-mandated training on public photography for peace officers. Peace officers do have mandated training for each two-year training cycle, but it doesn’t include anything on public photography. The mandated training for the current cycle (2015-2017) includes the following:

• Course 3184 – State and Federal Law Update Course
• If officer holds Basic Certificate:
  • Course 3939 – Cultural Diversity
  • Course 3232 – Special Investigative Topics
  • Course 3841 – Crisis Intervention Training
• If the officer holds an Intermediate Certificate or higher, no other mandated courses
• Other courses to total 40 hours

None of the courses listed have any component that deals with public photography. An individual department could mandate that its officers receive training on the issue, but it is not required by the State of Texas.

So Hintz had no clue what the activist was talking about, because the activist was misinformed. Could Hintz do with some training? Sure, he needs to be updated on what §38.02 says, but that’s a problem that’s common to almost every police officer in the state. Hintz didn’t press the issue on arrest or leaving, and most importantly, he did nothing that violated the rights of the photographer.

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*To be very clear, there is nothing inherently wrong a police officer asking for ID in a consensual encounter.

†The same comment is often made by David Worden (News Now Houston), along with several other misstatements of the law dealing with photography. I may do a post on that issue at some point.

The War on Communities of Color

The following was written by Lynne Rambo* and published on her Facebook page on August 2, 2017, and is reprinted here in its entirety by permission.

It has been a full-blown War on Decency from the start. From “Trump the Bitch” to “grabbing pussy” to mocking disability to ridiculing a dead veteran’s parents to tweeting the dismissal of patriots from the military to criticizing the mayor of London after a terrorist attack to branding Muslims.

Now we have the War on Communities of Color.

The new DOJ, so inaptly named in this moment, has withdrawn from seeking consent decrees in cities whose police departments have employed excessive force, especially against black citizens. The President has “jokingly” suggested that the police should be rougher on those they arrest. This as we have watched numerous police officers inexplicably shooting black men. This as the President himself has been sued for inciting a riot against two black protestors at a Kentucky rally.

The Attorney General with the checkered past on race has decided that drugs, including marijuana, are our biggest problem. He has adopted this approach even as multiple states have legalized marijuana and everyone acknowledges that racial minorities have suffered tremendous discrimination in the prosecution and sentencing of drug crimes.

And today the Department announces that it will investigate our universities’ efforts to ensure that our classrooms reflect society. The Attorney General will use our resources this way despite the Supreme Court’s decision upholding the extremely limited use of race in Fisher v. University of Texas, and the existence of statutes in many states forbidding any consideration of race.

The anger, and the apparent sense of threat, from these people that have had such advantage, opportunity and power is nothing short of obscene. As compared to blacks and Latinos, every single economic, educational, and political measure in this country favors whites, most often dramatically. (Percentage employed, percentages with a high school or college degree, household income, amount inherited, property holding, test scores, political representation, and so on and so on and so on.) Every single one.

Indeed, the very starkness of the differential leaves one of two choices. Either you believe that our communities of color are inherently deficient, just intrinsically incapable of catching up, or you believe that we have never exorcised the racism that has plagued us from our start, and so we experience daily its consequences. If you are of the former view, at least have the courage to stand up and say so as you conduct this War. If you are of the latter, have the courage to question people who support the Department of “Justice.” Ask them why it is that the country is going after its least privileged people.

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*Lynne Rambo is a full Professor of Law at Texas A&M University School of Law in Fort Worth, where she teaches Constitutional Law, Evidence, First Amendment Law, and a Supreme Court Seminar. She earned her undergraduate degree from Columbia, magna cum laude, and her law degree from the University of Georgia, also magna cum laude. She was editor-in-chief of the Georgia Law Review and she clerked for Judge Thomas A. Clark, United States Court of Appeals for the Eleventh Circuit. Her comments here are her personal views, and should not be taken to represent in any way TAMU Law.