Austin’s ban on driving while texting went into effect on New Year’s Day. I’m eagerly awaiting the ban on daydreaming while driving, looking at a pretty sunset through the window, and clapping along when “My Best Friend’s Girl” comes on the radio, to ensure that this quest to keep the city streets safe continues along this logical path.

Okay, yeah – it’s a stupid law. For multiple reasons. We can pick and choose among them, if we like (I’ll see your “lots of things are distracting for drivers” and raise you a “reckless driving is already illegal”), but the thing that sticks in my mind is how unenforceable it is. And when I say “unenforceable”, I don’t mean “unlikely to be enforced” – at $500 a pop, I’m pretty sure that motorists are going to find themselves on the receiving end of APD enforcement efforts. I mean that the actual law, as it’s written, is impossible to enforce without ticketing people for things that are completely legal.

Here’s the basic rundown of the law: Using a phone – the devices that are restricted have to be attached to a commercial mobile service – to do anything other than make a call, unless the car is stopped at a red light, is banned. That means that changing the artist who’s playing on your iPhone is illegal. You know what’s not illegal? Changing the artist who’s playing on your iPod Touch, which is a virtually identical piece of hardware that doesn’t connect to a commercial mobile service. One behavior is so dangerous that it needed to be outlawed, while the other is a-okay, and there is literally no difference between them, other than whether the device is connected to AT&T’s network. I’m not totally clear on how the law affects a phone that’s set to “airplane” mode, but I knocked on David’s door to get his take on all of this.

“The key word here is ‘overbroad’,” he said. “This is basically a license to pull over anyone for any reason. A police officer could say, ‘Oh, I thought he was texting. I was wrong, but I searched the car and found drugs.’” He explained to me – a non-lawyer who knows not the technical terms – that statutes are found to be unconstitutional for two reasons, most of the time. Either they’re void for vagueness, or they’re overbroad. The initial draft of the bill had problems with vagueness – it made it illegal to look at a text message, but not illegal to look at your phone to check an email (it also accidentally made it illegal to answer a phone call, but not to make one). The revision that went into effect on January 1st added the language “or engage other application software”, which eliminated some of the vagueness (though we’re still unclear on what the exact definition of “dialing” is – I use an iPhone, and I have to open my “phone” app, and then cycle either to “keypad” or “contacts” before I can make a call)… But it’s hard to argue that it’s not overbroad.

David asks, when investigating overbroadness: “Can every single police officer enforce the law in the same way?” I think it’s pretty difficult to insist that they can, when it involves a device that fits in the palm of the user’s hand, in many cases looks identical to a device that’s not outlawed by the ordinance, and features certain applications that are legal, and that appear indistinguishable from other, illegal applications.

Austin City Councilman Chris Riley, meanwhile, insists that the new language, “is broader but it really is about safety.” I know Chris Riley a little bit – we did an interview when he was a candidate in early 2009 for another outlet to which I contribute – and I don’t doubt that he believes what he says. It’s hard to argue it, even, and the notion that we’re made safer when socially undesirable acts like texting while driving are outlawed, as opposed to merely frowned upon, carries some water. So here’s a solution, courtesy of the techies over at Unicom – it can still be illegal to text while driving, but, they say, limit to to what’s called a secondary offense.

This means that peace officers wouldn't be pulling people over for using cell phones. Instead, they'd pull somebody over for swerving or running a stop sign or not watching the road, and then cite them under subsection (B) if they were found to be using a cell phone dangerously. This is consistent with the way the Austin Police Department says they plan to enforce the texting ordinance.

That sure seems like the best of both worlds to me. It still puts an increased social pressure on people to put the &$%#ing phone down while driving, which is something we would like to see happen, without giving APD carte blanche to pull over anyone on suspicion of having texted.

David, meanwhile, wanted me to mention that, while we’ve agreed as a New Year’s resolution not to take on any more pro bono cases, if you do find yourself cited under the texting ban, depending on your circumstances (hint: not texting while driving while drunk behind the wheel of a stolen F-150), you should give us a call and we’ll see about fighting this together at what would probably be a really affordable rate.

Labels: APD, driving while texting, over-criminalization

posted by Dan   permalink   0 Comments

Local defense attorney Kiele Linroth Pace has started a courageous project on her blog, the Austin Police Notebook. In it, she identifies APD officers accused of misconduct and explains the details, sourced by outside reports, and explaining the disciplinary action taken. An example:

Police Notebook: Roger Boudreau (APD)

Officer: Roger Boudreau
Agency: APD
Alleged Misconduct: Lied about his actions in a 2007 shootout, causing a man he shot to be charged with aggravated assault with a deadly weapon and spend 13 months in jail before being released on personal bond. The man also lost a leg as a result of the shooting. The charges were ultimately dismissed in 2008 after the state’s own experts examined an audio tape recording of the confrontation and agreed with the defendant’s version of events rather than the officer’s.
Disciplinary Action: None known. Boudreau actually received APD’s Medal of Valor (the department’s highest honor) for displaying exceptional bravery in the incident.
Source: This Statesman article.

It’s definitely bold, and it’s got a lot of potential to be a pretty great resource. I know a lot of people who tend to refuse to believe stories about police misconduct when it’s presented in vague, non-specific terms. Names, sources, and the full details go a long way toward making them a whole lot more convincing.

Labels: APD, police misconduct

posted by Dan   permalink   0 Comments

That subject line comes from the email that Internal Affairs detective Chris Dunn, who was investigating the shooting of Nathaniel Sanders, sent when he figured out that he could use Sanders’ prior criminal history to justify the fact that APD shot the 18 year old young man while every officer on the scene had apparently forgotten to turn on their dashboard camera.

Which, as Chief Acevedo said, raises a few red flags, as IA’s job isn’t to be scary-smart about “making a causation” that excuses a shooting, it’s to investigate the truth of what happened. If Internal Affairs is on the record as trying to provide justifications when the police, um, shoot young black teenagers with no evidence of wrongdoing, then it surely does a bit of damage to their credibility as an institution.

Luckily, Acevedo agrees, and the detective was fired yesterday. But isn’t it kind of disturbing that we have to consider the facts that A) the memo leaked and B) Acevedo responded correctly to be luck?

Labels: APD, art acevedo, nathaniel sanders II, police violence

posted by Dan   permalink   0 Comments

We wrote a couple months ago about the APD bait car fiasco. A couple – who had previously called the police about a suspicious vehicle parked in front of their house with the keys in the ignition – had been told that they shouldn’t worry about it. They decided after a few weeks to break in to make sure that there wasn’t a “body in the trunk”, because there were some pretty strange elements there, like a woman’s bikini top, men’s work boots, a length of rope, and broken glass. They investigated – remember, after the police told them that it was no big deal – and were arrested shortly thereafter. Surprise! That was a bait car! They were just trying to see who’d break the law if a car with the keys in the ignition and a heap of suspicious attributes was sitting parked in front of their house for a couple weeks!

Anyway, yesterday, all charges were dismissed in the case. The couple in question can go about their lives more-or-less the same as they did before this nonsense occurred – and it is nonsense. The “more or less” comes into play because, despite the dismissal, they do still have to pay attorney’s fees, both for defending the charge and for the expunctions that they’re now seeking in the case. And it’ll be awhile before those charges are actually expunged, so here’s hoping that neither of them need to find a new job or a place to live in the meantime. But at least we know that, if we leave our cars parked with the keys in the ignition in front of a strange house for weeks with broken glass and various items that sure make it look like maybe somebody was killed and their car was dumped, the police will – well, not actually investigate, but they’ll be happy to arrest anyone who enters the vehicle in an attempt to make sure that everything’s okay. What’s inconveniencing a couple of people to the tune of a few thousand dollars in the face of security like that?

Labels: APD, bait cars, expunctions

posted by Dan   permalink   0 Comments

The Dallas Morning News has Governor Perry’s response to Texas’ execution of an innocent man in Cameron Todd Willingham. It involves the use of the phrase “so-called” and air-quotes to deride the fact that the state executed a man based on evidence and testimony that’s provably false.

Y’all might have had your hearts warmed by the story of the Grapevine, TX high school football coach who asked half of his team’s fans and cheerleaders to support the Gainesville State School team, consisting of kids in corrections. ESPN covered it. So did This American Life, national news throughout the country, and there’s apparently a movie underway about the coach. Grits for Breakfast has the two TYC teams’ schedule online now, including a Thursday night game in Austin on October 15. If you were moved by the story – and what are you, made of stone, if you’re not – it might be worth showing up to let them know that being supported isn’t just a one-time thing.

Also on the subject of high school football, an Ohio judge sentenced a teenaged boy who pled to an assault charge to five years of probation and barred him from playing team sports for that period. The story comes from Popehat.com, who rightfully point out that the other terms of his probation – finding full-time work in a state with over 10% unemployment or enrolling as a full-time student – may be difficult without the ability to engage his natural talents. Before the conviction, the boy was being scouted by a number of universities.

Slashdot.com, the somewhat over-reactive online community, is in a tizzy about APD. And, specifically, about Chief Acevedo’s talk about “taking on” people who criticize the department online. The summary of the story from the Statesman that got all the comments on Slashdot is pretty off, though – it misrepresents Acevedo’s position so that it looks like he’s saying, “we’re going to arrest people if they call us jerks”, when he’s really saying “pretending to be an APD official when you’re not and making statements that are untrue is a criminal act”, which is true. Grits for Breakfast pops up again to wonder if this means that, like, all other crime in Austin has been completely eradicated so this is a really good use of police time.

Ever get arrested in a casino? Apparently rather than just break people’s legs for cheating these days, the house will now hold them in custody and offer them the opportunity, sanctioned by a district court judge, to sign a confession, pay $500, and not be prosecuted. Which is a little bit creepy, since if you’re being detained against your will and accused of a crime by people with vast resources, you’re not really in a great position to make a great decision, hence the fact that the practice is now under investigation. Insert your own “whatever happens in Vegas” or “the house always wins” pun here – this practice is apparently good for almost $750,000 a year.

Also on Popehat, there’s a downright terrifying piece about an undercover investigative report from a Florida television station in which they went to various police stations asking for the form to file a complaint. A (very mild) sample:

tester: Do you have a complaint form that I can, like, fill out or something like that?
officer: Might not be a legitimate complaint.
tester: Who decides that?
officer: I’m trying to help you.
tester: Like, if there’s a form, why can’t I just take it and leave, right?
officer: No, you don’t leave with forms. You tell me what happened, and then I help you from there. Do you have I-D on?
tester: Why?
officer: You know what? You need to leave.

(It gets worse from there.)

But in more fun news, Austin solo practice attorney George Lobb crashed the groundbreaking ceremony for the new federal courthouse  in Austin. He brought his own shovel and hardhat, and a real big smile. Click the photo to enlarge. it’s a pretty great picture. he looks very happy to be there.

We’ve also got a bigger piece on this coming up, but in case you missed it last week, Charles Hood, a death row inmate here in Texas, had his motion for a new trial denied by the Texas Court of Criminal Appeals even though his prosecutor and the judge were having an affair at the time of his trial and conviction. The argument, as best as I can understand it – and bear in mind that I’m not a lawyer, went something like this:

Appellate Attorney: My client needs a stay of execution, because the judge was sleeping with the prosecutor.

Court: Prove it!

Appellette Attorney proves it by deposing the participants, who admit the affair under oath.

Appellate Attorney: There, proof, now can my client be treated fairly?

Court: Oh, not at this point. You should have done this earlier.

(Cue the wah-wah-WAH sound.)

Labels: abuse of power, APD, art acevedo, football, governor perry, grits for breakfast, in the news, linkdump, money

posted by Dan   permalink   0 Comments

It’s a busy week over here, so blogging has been light. Here are some things we’d probably have written about if we’d had more time:

Lester Johnson, the private investigator whose work helped clear David Lozano of attempted capitol murder charges after a shootout with APD, was honored at the Texas Association of Licensed Investigators convention this week. Interestingly, in the Statesman article’s comments section, Johnson continues to call out APD and the officer who filed an – ahem – unreliable report.

If you’re not totally clear on the backstory on Sharon Keller and her trial, there’s a good primer on it at the StandDown Texas Project. The veeeeery brief version is that Keller, the chief justice of Texas’ highest criminal court, is on trial for judicial misconduct after responding to an attorney whose computer problems were causing him to run a few minutes late while filing an appeal to stay an execution with the words, “We close at five.” He arrived at 5:20, the court refused to accept is filing, and his mentally-handicapped client was executed at 8:23 that evening.

Grits For Breakfast has another good post up – it’s like this is a trend or something – this time on the subject of DWI prevention via public transit and zoning for neighborhood bars. Expect some expanded commentary on this topic in this space coming soon.

The Statesman has an article about thousands of parolees who’ve been classified as sex offenders despite having never been convicted of a sex crime.

Gamso: For The Defense, which is quickly becoming one of my favorite legal blogs, has a smart primer on exactly what different types of pleas mean. It’s a really useful post for non-attorneys like myself, especially, who couldn’t understand that someone who pleads “not guilty” even though they know they did it wasn’t lying.

Houston defense attorney Paul Kennedy has better news for people who were outraged reading about Sharon Keller (which maybe should be everybody) – the Fifth Circuit Court of Appeals decided to allow an appeal that was filed a day late. The attorney in question blamed the problem on the county’s broken fax machine. Curiously, it appears their fax machine is usually broken when this court-appointed attorney – who takes on 355 felony appointments a year – tries to file appeals, and it usually fixes itself the next day.

Labels: abuse of power, APD, crime prevention, dwi, grits for breakfast, pleas, sex offender registration

posted by Dan   permalink   0 Comments

Every few days I make it a point to compile the news and commentary surrounding criminal defense issues, especially as they relate to Austin, and send it along to all of the attorneys in the firm as potential blog topics. Starting today, those links and discussions are also going to be posted here, as well.

Kristi Couvillon wrote recently on APD’s dash cam policy, which got me thinking about this story: Florida cops stop a young woman for DUI, and then proceed to rear-end her car. After she's arrested, with the dash cam still recording, they cook up a story that they all agree to in which they decide that it's her fault, and then charge her with DUI/property damage. "I don't make things up or lie ever, because it's wrong," says the cop on the tape, "but if I have to bend it a little to protect a cop, I'm gonna."

Austin defense attorney Jamie Spencer has a couple good posts up right now. On the APD prostitution stings, he asks how much money was spent dressing a whole bunch of female police officers like prostitutes and running a sting that netted 23 arrests. And he gets to one of the hearts of the taser issue (which I’ve written about briefly here) when he asks how potentially unconstitutional acts can be declared acceptable just by claiming that they’re not outside of department policy.

In case you haven’t heard yet about The Superglue Incident:  Four women superglued a guy's penis to his stomach after tricking him into a bondage scenario because he was screwing (and scamming) all of them. If only we were still running the “We Could Defend That” campaign. 

US Attorney General Eric Holder gave a speech at the ABA convention where he says most of the same things that regarding reform and non-violent drug offenders, etc, that I’ve been learning since I started working with this firm.

In Kaufman County, the chief public defender/founder of the public defender's office is planning to run for DA. The link from Robert Guest, a Dallas-area defense attorney, talks about the difference between the roles, and what good can come from a PD becoming a prosecutor.

We have a bunch of old ads in a binder that equate DWI arrests with prohibition. I never really got those, but this bit from Politico, where MADD criticizes Obama for having Gates and Crowley over to the White House for beer, rather than milk and cookies, helps me understand it a little.

Also, California dropped charges against a guy who'd been arrested for DUI while riding a horse.

Finally, not to be all ACLU here, but this is video of a cop assaulting a woman from behind at a convenience store in Philadelphia because, half an hour earlier, his son had rear-ended her car.

Labels: abuse of power, APD, cameras, dwi, in the news, linkdump

posted by Dan   permalink   0 Comments

We may have more on this subject coming up here later this week, but I read the article in the Statesman over the weekend on the “bait car” that snagged an Austin couple for Burglary of a Vehicle. This article stuck out to me personally for two reasons:

1. It happened a block away from the house I moved out of last week. The green house in the photo? My dog’s peed in that yard three hundred times.

2. Some &$% broke into my car on Saturday and stole my stereo.

Even recognizing firsthand that breaking into cars is a very bad thing that has a frustrating impact on normal, hardworking people who just want to be able to listen to Prince as they drive to work, and being fully aware of the dynamics of the neighborhood in which the bait car was placed, I’m against the practice.

It reminds me a little bit of the NYC subway sting operation from a year or so back, “Operation Lucky Bag”, where the police were leaving briefcases and shopping bags and wallets on the ground, waiting for someone to pick them up, and then arresting them. The problem is that doing these things doesn’t necessarily get you wallet thieves (or car burglars) – at worst, it gets you people whose decision-making skills are weak when faced with an uncommon temptation (like a wallet with a bunch of cash and no ID or a car with the keys sitting in the ignition) and, as in the case of the couple from my neighborhood and several people in New York, it often snags people who were trying to do the right thing.

But even leaving those people out – maybe they’re just outliers and most of the people who pick up the wallet or check out the car are really doing so with bad intentions – it still doesn't seem like a good way to go about things. Because the person who broke into my car was a pro - he left the house that evening with a toolkit that would enable him to get into my locked car, pop open the dashboard, cut the cables, and yank out my stereo. And that's the sort of person I'd like to see the police focus on. It makes me question their motives, if they need to manufacture a set of circumstances that make committing a crime unusually convenient - are they really interested in reducing theft or in generating arrests? It seems like a bait car that just had a decent system in it would be more inclined catch the sort of people who go out of their way to commit crimes, as opposed to catching people who might, for a variety of motives - some of which are non-malicious - end up breaking the law when confronted with a strange set of circumstances. In that scenario, the car might be parked for weeks (or, in the case of my stereo and the house I just moved into, two days) before anyone is actually busted in the sting, which would probably make it hard to justify the expense of parking a car full of monitoring equipment and tracking what happens to it.

And if no one was breaking into cars that didn't have the keys in the ignition, maybe I'd see the point. But as it is, I'd feel safer knowing that, say, the police were driving around the poorly-lit streets of my neighborhood a few extra times a night than knowing that some people who seem to put everyone at zero risk were getting arrested for checking out a car abandoned under extremely unusual circumstances. I'm not all concerned with catching people who break into cars that are parked in front of their houses for weeks on end with the windows down and the keys in the ignition. Call me "soft on crime".

Labels: APD, bait cars, burglary, car theft, crime prevention

posted by Dan   permalink   0 Comments

Just as I had predicted, the public intoxication charges against Mindy Montford were dismissed this week.

"It started last June when police pulled over her friend for allegedly driving drunk and the exchange was caught on an officer's dash cam.“My friend is an attorney," the driver said. Then the officer says "Ma'am, ma'am, ma'am -- I’m advising you to go back to the car.”

After seeing this type of abuse of power on many occasions, it is not surprising to see an officer make a wrongful arrest simply because his authority is being questioned, or because someone flunks the "attitude test". However, as I previously mentioned, what makes Mindy's arrest especially offensive and egregious to me is that it was done in retaliation after she was asked by her friend to provide legal advice.

I don't mean to over-dramatize this unfortunate incident, but as I watched the video of the officer trying to silence Mindy, I couldn't help but think of the universal struggle between rule of law and a police state. The hallmark of totalitarian regimes is absolute control and an immediate silencing of anyone who dares to question authority. Criminal defense lawyers, who act as one of the only checks on police power, are society's best defense against a police state. As Justice Stevens once eloquently stated "the function of the independent lawyer . . . is a guardian of our freedom."

But this is not the end of the story for Mindy Montford. She’s filing a complaint with the city's Office of Police Monitor. Montford says it’s her duty to make sure no citizen goes through what she calls a “wrongful arrest”.

Good, I'm glad that Mindy has the courage to take this one step further and pursue what is clearly an abuse of power. Because just like any other public servant, police officers must be held accountable. Plus, if someone like Mindy doesn't do this then who will? We all know that this kind of thing happens routinely to the powerless who never will make it on the news and who never will complain.

As criminal defense lawyers, we all have a duty to stand up for people and call out abuses of power when we see them.

Labels: abuse of power, APD, mindy montford, the role of defense attorneys

posted by Kristin Etter   permalink   0 Comments

I read last week in the Statesman that APD officials are reviewing their patrol car camera policies in regards to when officers must turn on their devices. The paper claimed that the new policies will likely require officers to film any incident in which they detain or try to stop a suspect, and will also likely require backup officers to also record incidents.

Police officials are also reviewing whether an officer's failure to follow the policy should fall under disciplinary guidelines. (As an aside, I have never handled a DWI case on either side of the bench where an officer forgot to turn on his or her camera to record a person walking the imaginary line.)

This policy review comes after the fatal shooting of Nathaniel Sanders II by Senior Police Officer Leonardo Quintana, whose camera was not recording when he fired at Sanders. If I were an officer who found myself in a deadly situation and believed my actions were justified, I would definitely want that recorded as the video would serve to protect and exonerate me. And, if the shooting was not justified, Mr. Sanders' family and the rest of our community deserves to be told the truth.

I commend the APD top brass for reviewing these policies and hope that they do implement policy that requires all potential stops and detentions to be recorded.

Even better, I would like to see the cameras automatically activated as soon as their overhead lights or sirens are turned on or as soon as they respond to a dispatch. Or a type of rotating digital loop like security cameras use in which the camera is constantly recording. Surely we're technologically capable of that.

Labels: abuse of power, APD, cameras, leonardo quintana, nathaniel sanders II, police violence, policy, recording

posted by Kristi Couvillon   permalink   0 Comments

I was at a cookout this weekend, and got dragged into a conversation about Kathryn Winkfein, the 72-year old woman who was tasered twice by Travis County sheriff’s deputy Chris Bieze during a traffic stop. The story’s pretty controversial for a couple reasons: One, it, um, involves a 72 year old woman being shocked by the police. Two, the woman was literally asking for it. You can hear on the video that the words out of her mouth that immediately preceded the tasering were, “go ahead, I dare you.”

So, she didn’t get a lot of sympathy from the cookout crowd. A lot of talk ensued from the gathered 20- and 30-somethings about old people who think that the rules don’t apply to them, and what else was the officer to do, and she shouldn’t have gotten so belligerent. (The video also features a shot of her telling him “Give me the f**king thing and I’ll sign it already”, in reference to the speeding ticket that started the confrontation.)

Thing is, none of that is relevant here. What’s relevant is that this isn’t what tasers are for. The police don’t have tasers to teach lessons to people who think that they’re above the law. They don’t have tasers because police officers, when they’re not sure how to handle a situation, need to be able to shock a suspect. They don’t have them to punish people for being belligerent, or even to give people who ask for it what they deserve.

The APD, when introducing tasers a few years ago, hired medical experts Edward Racht and Pat Crocker to assure citizens of the weapons’ safety. They drew their research from two reports, including one by a British doctor named Anthony Bleetman, who was at the time the only independent doctor who had done a peer-reviewed study on the subject. The APD has since widely ignored the key item outlined in the report:

“Police officers are legally and morally required to use the lowest level of force necessary to control a situation and to de-escalate at the earliest opportunity. Use of force options start with good communication skills, then escalate from unarmed physical skills (holds, restraints, strikes), deployment of incapacitant sprays, up to the use of batons. At present, when facing levels of threat that exceed the capacity of an officer deploying a baton, there remains only the use of a firearm. Police agencies have searched for "less lethal" weapons to fill the operational gap between the baton and the gun."

Or, as it’s put more succinctly at the conclusion:

“The Advanced TASER is to be used only as an alternative to firearms and any outcome measures should be considered in this context.”

The medical reports that were used to determine the taser’s safety explicitly state (and are consistent with Amnesty International policy on torture) that the weapons are only to be used when the officer’s only other choice is to shoot the suspect.

We can pretty safely assume that Bieze wouldn’t have shot Winkfein if he hadn’t had a taser. So all the rest – whether she was acting like she didn’t have to follow the rules, whether she deserved it, whether she’s responsible for escalating the situation (she is) – all of that is irrelevant. What’s relevant is that the taser was a disproportionate response, and that it was misused.

And that’s true in many taser situations, not just this one. It’s true of the don’t tase me, bro kid. The taser wasn’t sold to the public as a cool new way for police to zap suspects. It was sold as a way for them to stop people who would have otherwise been shot.

EDIT: Furthermore, APD policy specifically outlaws the use of tasers on a suspect like Ms. Winkfein. From the Austin Police Department Policy On Taser Use document:

The TASER will not (emphasis theirs) be utilized under the following circumstances:
a. Against any subject already handcuffed.
b. The suspect is fleeing from officers for a misdemeanor or non-violent offense (emphasis mine), unless the suspect is armed and poses an immediate threat to the officer or another person.
c. Against persons displaying passive resistence (passive resistance means a subject offers no physical resistance to arrest, simply goes limp, or makes no overt act of aggressive behavior)
d. When flammable liquids or gases are pregnant.
e. Against a woman who is obviously pregnant, a child, which by physical stature and size appears to be under the age of 14, a disabled individual, or an elderly individual (emphasis mine), as defined by section 22.04 of the excessive use of force involving the device.

Now, the Travis County Sheriff’s Department is a different entity than APD, and I’m not sure that this document applies to them (I’m the non-lawyer in the office – any of the lawyers want to chime in?), but regardless – if APD finds it important to enumerate restrictions against the use of tasers on people involved in misdemeanor offenses and the elderly, then there’s really no reason to believe that it’s totally safe and warranted to taser a 72-year old when the Sheriff’s Department does it.

(graffiti image via Lola May’s Flickr stream)

Labels: APD, police violence, tasers, Travis County Sheriff's Department

posted by Dan   permalink   0 Comments

By Kristin Etter
To say I was shocked when I saw the headline that local attorney Mindy Montford was arrested for public intoxication last Saturday is an understatement. Mindy is highly respected and admired in our community and I consider her to be of impeccable character -- she is held in the highest regard by all who know her. I became only more shocked and outraged as I read the story:

Attorney Pat McNelis, who is law partners with Montford, ... and is representing her, said Montford had been with friends from high school to hear a band at a downtown club. As they were leaving, McNelis said, the driver of a car
in which Montford was a passenger struck a pipe in an alley and was pulled over
moments later.

McNelis said Montford got out of the car at that time to “advise her friend of his rights.” He said an officer ordered Montford back into the car, where she sat for about 20 minutes. He said the officer then came back to the car and arrested her, as well as another passenger, on public intoxication charges. He said no further investigation was done before the arrests.

“Mindy complied with the officers when they instructed her back to the car,” McNelis said. He said his client “absolutely denies” the charge. McNelis said the driver of the car also was arrested on a drunken driving charge, but that a judge refused to sign a warrant arresting him because of lack of probable cause.

Clearly, this seems to be a retaliatory action by the officer in the worst sense. All too often, we see officers making arrests for public intoxication because the person flunked the "attitude test." Mindy's case seems even more egregious because it appears she was arrested only after advising her friend of his rights. To arrest someone for public intoxication, the officer has to have probable cause that the person was intoxicated in a public place to the degree that the person may endanger herself or another.

I have no doubt that as the case progresses, we will see that not only was Mindy not publicly intoxicated (she was sitting in the back of the car!!!), but that this was done to punish her for doing something the officer did not like -- advising someone of their rights. The outrageous treatment of Mindy only epitomizes how law enforcement reacts when people choose to exercise their Constitutional rights. Unfortunately, this is not an isolated incident. As we have seen all too often, innocent people are arrested for invoking their rights or simply flunking the "attitude test" (thankfully, the criminal justice system usually works as it is supposed to and we are ultimately able to get these kinds of cases dismissed in most instances). This incident only underscores how important it is for us all to know what are rights are in a situation before something like this occurs. If it can happen to Mindy Montford, it can happen to any of us.

Labels: abuse of power, APD, dwi, public intoxication, rights

posted by Kristin Etter   permalink   0 Comments