The woman jogger who was roughed up by the cops in Austin: An example of how NOT to interact with the police

[Grathic]

Well if she has a drivers license then Texas Transportation Code 521.025 a 2 says it is a misdemeanor criminal offence max fine $200 if you fail to:

display the license on the demand of a magistrate, court officer, or peace officer.

Atwater v. Lago Vista the SCOTUS said you can be arrested for a violation that does not carry jail time as a maximum penalty.

It is thin, but they do have a leg to stand on.

[Unique_Carpenter]

Originally Posted by Grathic

Well if she has a drivers license then Texas Transportation Code 521.025 a 2 says it is a misdemeanor criminal offence max fine $200 if you fail to: display the license on the demand of a magistrate, court officer, or peace officer. Atwater v. Lago Vista the SCOTUS said you can be arrested for a violation that does not carry jail time as a maximum penalty. It is thin, but they do have a leg to stand on.

Your reference does not apply to pedestrians, or children, etc. as that's written as a requirement for the privilege to operate a vehicle. In this gal’s case, as a pedestrian, it appears that all she had to do was verbally provide the information, which, when she was quoted as saying “write me the ticket” I think took care of that. The Atwater case allows that folks can be arrested and booked for minor misdemeanors. So yes, the jogger could be arrested for jaywalking. I'm interested in what's listed on the booking report. Jon presents the reference to the identify law above. Interesting that the appeals court in Austin has already dealt with a case with somewhat different, and somewhat similar, facts but the cops lost (reference above).

[LNK]

Originally Posted by Grathic

Well if she has a drivers license then Texas Transportation Code 521.025 a 2 says it is a misdemeanor criminal offence max fine $200 if you fail to:

display the license on the demand of a magistrate, court officer, or peace officer.

Atwater v. Lago Vista the SCOTUS said you can be arrested for a violation that does not carry jail time as a maximum penalty.

It is thin, but they do have a leg to stand on.

Nor, I believe, is there any requirement to carry said license if you're not driving.

Bit difficult to produce it if it's not with you.

Austin PD is going to have a spot of bother with this one.

[latinbreeze]

There is a new case - Pulliam v. Allen. I believe it says that an arrest under this situation is a civil rights violation. I haven't read it completely but it should be checked for application. It appears to restrict Atwater v. Lago Vista.

[ShysterJon]

Originally Posted by latinbreeze

There is a new case ... I believe it says that an arrest under this situation is a civil rights violation.

Hey, guys, NO case in the history of our legal system states that ANY particular set of facts is a per se civil rights violation. The legal system just doesn't work that way, my friend. Lawyers call what you're talking about a "bright line rule." In this case, a bright line rule would be, "If a person who's not driving is arrested for failure to provide ID, it's a civil rights violation." But our court system doesn't like bright line rules. For example, there's an entire body of law about a law officer's good faith, but incorrect, understanding of the law giving the officer qualified immunity from a civil rights suit.

As I've written here many times before, it's a dangerous proposition for a non-lawyer to read a law or an appellate opinion and draw inferences. Laws and cases often use words in special ways. That's what law students learn. Also, there are basic legal principles expressed in laws and cases that aren't widely known to non-lawyers.

My first year of law school, a girl asked our criminal law professor, "Why would the judge examine the gun in camera? The police had the actual gun. Why would he want to look at pictures?" ('In camera' means 'in the judge's chambers.') THAT'S what non-lawyers are like when they read cases and laws. You wouldn't read 'Gray's Anatomy' and perform an appendectomy on yourself, would you? Well, why would you read a case and draw conclusions about what the law is? (He says, thinking of frontman667.)

Appellate opinions may serve as precedents to guide judges, lawyers, and citizens regarding the application of laws to particular sets of facts to enhance predictability and consistency (lawyers call this 'stare decisis' -- Latin for 'a thing decided'.) However, you can hardly ever predict a legal outcome with 100% accuracy. If a lawyer says differently, he's a liar, a fool, or both.

Originally Posted by Unique_Carpenter

Just wondering if
Brown v. Texas, 443 U.S. 47 (1979)
or
Dutton v. Hayes-Pupko, No. 03-06-00438-CV, 2008 Tex. App (in Austin)
are somewhat similar.

Brown v. Texas, 443 U.S. 47 (1979) involved two cops detaining and questioning a man in a high-crime area. Eventually, he was arrested for failing to identify himself. The U.S. Supreme Court reversed the conviction, holding that "[T]he application of the Texas statute to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct." (Syllabus.) Does this case apply to the Austin jogger case? No. The cop who arrested the jogger said he witnessed her jaywalking -- thus, the cop had adequate reasonable suspicion to detain her.

Dutton v. Hayes-Pupko, No. 03-06-438-CV (Tex. App.--Austin, Aug. 7, 2008, no pet. hist.) (mem. op.) is more like the Austin jogger case. In Dutton, the court held that a cop wasn't entitled to qualified immunity from an arrestee's civil rights suit because the arrested person had produced evidence that the officer (1) violated the victim's clearly established rights and (2) acted unreasonably or in bad faith in doing so. However, Dutton does NOT create a bright-line rule that when a cop arrests a person for failure to ID that's a per se civil rights violation.

Originally Posted by latinbreeze

There is a new case - Pulliam v. Allen. I believe it says that an arrest under this situation is a civil rights violation. I haven't read it completely but it should be checked for application. It appears to restrict Atwater v. Lago Vista.

Well, first, Pulliam v. Allen, 466 U.S. 522 (1984) is a U.S. Supreme Court case from 1984 -- 30 years ago, so it's hardly "new." It also predates Atwater v. Lago Vista, 532 U.S. 318 (2001). Nevertheless, it's well-established now that the police have the discretion to arrest a suspect for any offense, including petty offenses.

[Unique_Carpenter]

Originally Posted by ShysterJon

Nevertheless, it's well-established now that the police have the discretion to arrest a suspect for any offense, including petty offenses.

Jon: Thank you for this excellent summary and the contrast between various cases. And, for again reminding us that once a badge goes into arrest mode, there’s no stopping it. Quite enjoy your various presentations related to the intersection of street world and legal world.

[34E Whitney Weston]

Americans are more afraid of police than criminals.

http://www.conspiracy-watch.org/amer...han-criminals/

[latinbreeze]

Thanks for the analysis Shysterjon.

Had to go back and chat with my lawyer friend after reading the Pulliam case. My friend was talking about Pulliam as a way to stop the abuse of police arresting for Class C - fine only cases. Although the Texas court said that the police can arrest for any offense in Atwater v. Lago Vista - (except speeding I believe), the issue of a due process violation was not argued.

Pulliam is a Virginia case that went all the way up to the Supreme Court. In Pulliam, two defendants sued the magistrate for forcing them to post bond or sit in jail for "nonincarcerable offenses." The Virginia State District Court found that the Magistrate had violated the defendants' due process and equal protection rights for ordering them to post bond or stay in jail pending trial. Further, an injunction was issued to the magistrate to stop this practice and attorney fees were ordered against the magistrate. The magistrate appealed the attorney fee award all the way to the U.S. Supreme Court citing judicial imunity. The Supreme Court affirmed the award of attorney fees. And, after a discussion of the injunction against the lower court judge, they did not disturb the rest of the decision.

So, the attorney friend says this would be a way to stop police from arresting people for bull shit reasons. If magistrates get sued for requiring bonds in non-incarcerable misdemeanor offenses, police will feel pressure to stop arresting people for these "fine only" offenses. I know several attorneys are planning to use this tactic where they can apply it to their cases.

[ShysterJon]

Originally Posted by latinbreeze

So, the attorney friend says this would be a way to stop police from arresting people for bull shit reasons. If magistrates get sued for requiring bonds in non-incarcerable misdemeanor offenses, police will feel pressure to stop arresting people for these "fine only" offenses. I know several attorneys are planning to use this tactic where they can apply it to their cases.

I disagree. Bear in mind that people are seldom arrested for Class C misdemeanors in Texas, although for at least 30 years everybody knows a cop can arrest anyone for any offense. It's not like Billy Bob Benson, the JP in Buttfuck County, reads the Supreme Court Reporter. He's probably not even a lawyer.

[SpiceItUp]

Thanks SJ for the reminder that watching Law&Order does not a lawyer make

Also, everyone has a lawyer friend. It's important to remember that 5/10 doctors, lawyers, CPAs, etc graduated in the bottom half of their classes.

[Stud Daddy]

Jon haven't given you a pat on the back in a while so this one is long overdue.
I wrote about this on a couple of other sites, though not with your degree of detail as it wasn't really needed there. Good advice as always. Folks the Cops can always arrest you and lie about the circumstances later, esp. if there are no real witnesses around, ready, willing and able to stand up for you.

Methinks that a lot of people across the nation are just plain fed up with the many abusive Cops, tactics and practices because they are being reported more and more. Most Police officers are good decent folks just doing their jobs. Remember, they are seeing you/me/us at our worst in most cases and that always tends to color their thoughts, words and deeds as they too wish to go home unscathed at the end of their shift to their families.

Do they Over-react? You bet your life they do. Are there Bully-Boy Types within the various Police Forces? Yes again. Will they Illegally arrest you and disrupt your life? Most certainly some will and you'll have to incur the expenses of a Lawyer and a lot of other aggravation, including possible loss of your job, Martial/Relationship problems and a host of other things before you are likely told that you really don't have a case against the Cop or force that a lawyer wants to pursue since the likelihood of making enough money to justify the whole thing just isn't there. Now you've got a pile of legal bills too. Simply put, Try to follow Jon's advice. It is sound and will likely minimize your time and aggravation when confronted by LE and hopefully save you a few 100 or 1000 dollars in the process.

[woodyboyd]

Originally Posted by ShysterJon

Hey, guys, NO case in the history of our legal system states that ANY particular set of facts is a per se civil rights violation. The legal system just doesn't work that way, my friend. Lawyers call what you're talking about a "bright line rule." In this case, a bright line rule would be, "If a person who's not driving is arrested for failure to provide ID, it's a civil rights violation." But our court system doesn't like bright line rules. For example, there's an entire body of law about a law officer's good faith, but incorrect, understanding of the law giving the officer qualified immunity from a civil rights suit.

As I've written here many times before, it's a dangerous proposition for a non-lawyer to read a law or an appellate opinion and draw inferences. Laws and cases often use words in special ways. That's what law students learn. Also, there are basic legal principles expressed in laws and cases that aren't widely known to non-lawyers.

You wouldn't read 'Gray's Anatomy' and perform an appendectomy on yourself, would you? Well, why would you read a case and draw conclusions about what the law is? (He says, thinking of frontman667.)

Appellate opinions may serve as precedents to guide judges, lawyers, and citizens regarding the application of laws to particular sets of facts to enhance predictability and consistency (lawyers call this 'stare decisis' -- Latin for 'a thing decided'.) However, you can hardly ever predict a legal outcome with 100% accuracy. If a lawyer says differently, he's a liar, a fool, or both.

SJ is dead on right, and he is being helpful, but this whole notion makes me sick.

We have been told "ignorance of the law" is no excuse, but the truth is that the law is really made by DAs, AGs, and law enforcement, and not Congress or elected reprsentatives. Most lawsuits are settled; most crimes are plea baragained away. And you know why? Because we have allowed it.

Truth is that it is easy to blame lawyers for our current legal mess, but we need to look in the mirror a lot more. If you didn't do something wrong or it can't be proved you did something wrong, fight. Take your case to the people.

I know a town where the police are handing out tickets like crazy. They had court once a month, a trial once a month, and police were giving out 300 tickets a month. They weren't enforcing the law; the police were legal muggers with badges. If everybody fought said tickets, that town would have had to have 300 months or 25 years worth of trials to settle one month of tickets. If people just spent the time to fight, this shit would have disappeared or people in that town would have had to spend their whole lives in court.

On top of that, the cops may be more afraid of you than you are of them. One of them told me that a complaint, even if proven to be bogus, stays on his permanent record. So if a cop is rude or overly aggressive with you, file a complaint. You may not think it does much, but it does. The cops are there to protect and serve. Even if you did something wrong, that doesn't give the cop a right to be an asshole. Shut your mouth except when giving the most basic of information and smile a lot. Cops hate people who smile because it makes them look like assholes if they are overly agressive. Wait until your matter with the police is settled and then file a written complaint if the cops are doing anything other than protecting and serving. Truth is the good cops don't like the bad cops bullshit anymore than you do.

Do you know what probably pisses me off more that I have learned lately than anything else? The government isn't taking our civil rights away; we the people are giving them away. If you get a subpoena served to you, not a warrant by a judge, from some three letter government agency for information, tell those jack booted thugs to go to federal court and have the subpoena enforced by a judge.

How bad is it? The DEA is looking at your prescription records with adminstrative subpoenas because it feels like it has the right to do so. It has been doing this for years. So if you get stopped for driving under the influence of prescription medications, that stop may not be random at all. The DEA may have tipped off the local cops to your prescription drug use and the police used that information to bust you.

But some folks in the state of Oregon fought back against this outrageous, unconstitutional behavior and a judge ruled in their favor:

"The judge was careful to note numerous similar (but not identical) cases and their rulings to inform his decision, including Katz v. United States, wherein the Supreme Court ruled that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se [implicitly] unreasonable under the Fourth Amendment.” He also cited United States v. Ziegler, where the Supreme Court ruled that the Fourth Amendment “guards against searches and seizures of items or places in which a person has a reasonable expectation of privacy.” The DEA countered with a “third party” argument, asserting that once an individual consents to give information to a third party, he gives up his Fourth Amendment rights to the security and privacy of that information. The judge tossed that argument:
Then the judge did something extraordinary. In defending the Fourth Amendment, Judge Haggerty invoked the Founders, including both the signers of the Declaration of Independence and the delegates to the Constitutional Convention, noting that many of them were physicians trained at the University of Edinburgh, “which required its graduates to sign an oath swearing to preserve patient confidentiality.” If they meant it then, they certainly mean it now.

Got that? The DEA doesn't think medical prescriptions and records are items deserving of privacy even though our founding fathers explicity said that they were. And even after the Oregon decision, the DEA is still doing these illegal searches.

And don't think this is limited to just the DEA. Whenver a government agency wants to look at your medical records or other personal information, it can just issue a subpoena and threaten the holder of said record with a charge of obstruction of justice or gag order, and take whatever it wants. It is not just that the government is taking away fourth amendment rights; it is also the holders of the records being pussies when the government threatens them.

So sure, a police officer can take you to jail pretty much whenever he wants to for whatever bogus subjective charge he wants... but you can make his life hell if he does it for stupid reasons. Unlike with the presidential elections, you have a lot of influence when it comes to picking your local police chief, judges and DAs. Get involved and make sure that these public servants are actually working for you instead of against you.