Author Archives: Michael Barajas

Man Mistaken for Burglar, Shot by Police then Shackled to Hospital Bed and Barred from Seeing Family

Lyndo Jones in the hospital. Jones was handcuffed to a hospital bed for nearly a week and barred from seeing his family after police shot and charged him with evading arrest.  Attorney Justin Moore

After mistaking him for a burglar and shooting him twice, police charged Lyndo Jones with evading arrest, shackled him to his Dallas hospital bed and blocked family members from visiting him for six days.

At first, Mesquite police erroneously called Jones, 31, a “burglary suspect” because of a 911 caller who’d spotted him in a parking lot on November 8 while he was struggling to turn off the alarm in his truck. Police say officer Derick Wiley arrived around 7 p.m. to investigate the possible burglary and shot Jones in a “confrontation” that ensued. A press release the Mesquite Police Department issued afterward offered no details on the confrontation but seemed to endow Jones with almost superhuman strength — claiming it took three officers to subdue the unarmed, 130-pound man with two fresh gunshot wounds. After police learned the vehicle indeed belonged to Jones, they still called him a suspect and charged him with evading arrest.

Authorities barred Jones’ family from visiting him at Baylor University Medical Center in Dallas, where doctors treated him this month, because of his misdemeanor charge. At one point, deputies escorted Jones’ attorney, Justin Moore, out of the hospital after he tried to stop Mesquite police investigators from questioning Jones alone. According to Moore, Jones’ family didn’t even get to see him until six days after the shooting, when police dropped the misdemeanor charge against Jones just as he was being discharged from the hospital.

Jones’ family contacted an attorney after they said they were threatened with arrest for trying to visit Jones in the hospital.  Attorney Justin Moore

“They shot this guy because of a mistake and then chained him to a hospital bed away from people who care about him, people who are wondering whether he’s going to survive,” Moore told the Observer. “Victims of police brutality and their families should not be treated this way.”

Mesquite police won’t say much about the “confrontation” that led to Jones’ shooting, but in a press conference with reporters last week, Lieutenant Brian Parrish blamed Jones for not giving the officer who shot him “ample opportunity to start an investigation.”

Moore, however, says that in Jones’ version of events, Officer Wiley approached him with his gun drawn, ordered him out of his truck and then fired when he got out of the vehicle. Moore says Jones blacked out from the pain sometime after that and doesn’t even remember the second gunshot, let alone any subsequent struggle with other officers. Moore told the Observer that police were wearing body cameras, and that Jones and his attorneys were scheduled this week to review footage from the shooting, which hasn’t been publicly released. The Observer requested the video under open record laws.

Mesquite police say that two days after the shooting they transferred Jones into the custody of the Dallas County Sheriff’s Department, which guards the county’s hospitalized inmates. Moore says he was eventually contacted by members of Jones’ family, who claimed they’d been threatened with arrest for trying to visit him in the hospital. Melinda Urbina, a sheriff’s department spokesperson, told the Observer that it’s “protocol” to deny family visits for hospitalized inmates in county custody.

Moore says he visited Jones in the hospital for the first time the night of November 11, three days after the shooting, but couldn’t exactly speak with him because “he was heavily sedated at that time, with tubes going out of his nose.” Moore says he visited Jones again a couple days later, just as doctors were starting to reintroduce solid food, but that he wasn’t yet well enough to discuss the shooting.

Lyndo Jones recovers in the hospital after being shot twice by police. His attorneys, Lee Merritt (left) and Justin Moore.  Attorney Justin Moore

Moore says that on a conference call the morning of November 14 with Mesquite police and Dallas County District Attorney’s Office representatives, all parties agreed that investigators wouldn’t question Jones at the hospital without an attorney present. But when he arrived at the hospital a few hours later, Moore says two Mesquite detectives were questioning Jones in his room. Moore says he started shouting when it became clear deputies guarding the room weren’t going to allow him to stop the interview.

“I guess you could say I caused a scene,” Moore told the Observer. “I started yelling, ‘You’re violating his constitutional rights,’ just anything that he (Jones) might be able to hear and encourage him to try and stop that interrogation.” The deputies threatened to arrest him if he returned, he says. Urbina with the sheriff’s department says that deputies escorted Moore outside the hospital “as a result of his behavior.”

Jones was treated at Baylor University Medical Center in Dallas. His family didn’t get to see him until six days after the shooting.  Attorney Justin Moore

Later that day, the Mesquite Police Department changed course and announced it would drop the charge against Jones just in time for his release from the hospital. Sgt. Joseph Thompson told the Observer in a statement this week that the department would now rather “prioritize” the investigation into the officer who shot Jones over the misdemeanor evading arrest charge.

“It is more important to us to investigate and determine whether a more serious crime was committed,” Thompson said in an emailed statement. “If after the investigation is complete and the officer’s actions were found to be justified, then filing the evading charge will be reevaluated at a later time.”

Moore says subpoenas have already gone out for a grand jury investigation into the shooting. A spokesperson for the Dallas County District Attorney’s Office said she wouldn’t comment on any pending investigation and wouldn’t answer our questions about the case. If the investigation leads to any charge against the officer, the case would be the third police shooting captured on body camera this year that Dallas County prosecutors shepherded to criminal indictment.

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The Faith-Tinged Fatalism of Greg Abbott’s Response to Texas’ Deadliest Mass Shooting

Texas Governor Greg Abbott attends a candlelight vigil held for the victims of a fatal shooting at the First Baptist Church of Sutherland Springs, Sunday, Nov. 5, 2017.  (AP Photo/Laura Skelding

By the time Governor Greg Abbott appeared in front of TV cameras Monday morning, a sharper image of the country’s latest mass shooting was taking shape. Officials had already confirmed that 26-year-old Devin Patrick Kelley had a history of domestic violence, like many other mass killers. That should have prevented him from purchasing the Ruger assault-style rifle he used to slaughter at least 26 people at the First Baptist Church in Sutherland Springs. Instead, Texas’ worst mass shooting in modern history represents yet another breathtaking failure by the federal background check system.

Abbott told news anchors on Monday that Texas had denied Kelley’s application for a state handgun license. But Texas, unlike some other states, doesn’t require a permit to purchase a rifle or handgun, making the feds the only real check on gun buyers in the state. When CNN’s Chris Cuomo pressed Abbott, the Texas governor invoked the spiritual realm, saying a prayer vigil with mourners in Sutherland Springs the night before had taught him “the best way to confront this evil is by using the forces of God to confront and overcome this evil.” When CBS’ Gayle King asked Abbott how he’d ensure those “evil” people don’t have access to firearms, he urged the country to return to “the fundamentals of our faith-based nation.” King cut him off mid-sentence, trying to bring the interview back to guns, but Abbott wasn’t swayed.

“The important thing is that if you go back to early times of this world, to the times of yesterday and last week, evil exists in this world,” Abbott said. In a later interview with Fox News, he raised Hitler, Mussolini, the Dark Ages and even “post-New Testament” periods of violence as signs that “evil is something that has permeated this world.”

Ken Paxton image cropped for hero purposes
Ken Paxton  patrick michels

Abbott wasn’t the only Texas politician to give the typical thoughts-and-prayers response to mass shootings a fatalistic, faith-tinged spin this week. Texas Attorney General Ken Paxton abandoned his usual law-and-order bromides, instead questioning gun-control laws if criminals will just break them. Meanwhile, in a press conference Monday afternoon, Senator Ted Cruz labeled the massacre in Sutherland Springs a story of “inspiration and hope” before scolding the media for even asking about guns. “Evil is evil is evil,” Cruz insisted, “and will use the weaponry that is available.”

Bad people taking advantage of readily available weapons to carry out heinous crimes is actually the reason that calls for gun control follow each tragedy like Sutherland Springs, the country’s 307th mass shooting so far this year. Gun deaths in the United States eclipse those in other Western industrial nations, which researchers continue to connect to the widespread availability of firearms here. As Harvard’s Injury Control Research Center puts it, “more guns = more homicide.” Congressman Lloyd Doggett of Austin was among the chorus of liberal and progressive politicians blaming Republicans for their inaction on the issue in light of the shooting. As he wrote in a Sunday afternoon Facebook post, “Once again violence destroys lives, while this Congress, owned lock, stock and barrel by the NRA refuses to act.”

Kelley appears to have been able to buy the weapon he needed to gun down an entire church service because of a notoriously buggy background check system for gun purchasers, the National Instant Criminal Background Check System, or NICS. On Monday afternoon, the Air Force admitted it hadn’t properly entered Kelley’s 2012 court martial for domestic violence into the federal database. That means the Academy store in San Antonio that reportedly sold Kelley his guns never learned that he was convicted of beating his wife and step-child. In addition to kicking and choking his wife, Kelley “assaulted his stepson severely enough that he fractured his skull,” Don Christensen, a retired colonel and former chief prosecutor for the Air Force, told The New York Times on Monday. “He pled to intentionally doing it.” The shooting may even hint at a larger flaw. The U.S. military appears to have sent almost no records of domestic abusers to the federal database, according to The Trace, a gun-focused news outlet.

What’s come out already about the bloodshed in Sutherland Springs raises questions for state officials like Abbott. The military news website Task & Purpose questions why, if Texas’ gun-licensing system flagged Kelley and denied him a permit to carry a gun, that information never made it to the feds, who could have actually stopped him from owning one. (When asked, Texas Department of Public Safety didn’t immediately say when the agency denied Kelley a gun permit.)

By the time Abbott went on air with conservative talk radio host Mark Levin on Monday evening, his message had already started to shift from the Biblical version of “shit happens.” He was ready to talk gun control once the day’s news had proved to him that the country doesn’t need more firearms restrictions. Instead, he told Levin, our violence-plagued nation needs better enforcement of existing laws.

Abbott wasn’t even sure that would do much to end the killing. As he told Levin, “if someone is willing to break the law to kill someone, then that person is likely willing to break the law to get a gun illegally.”

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Meet Nueces County’s New DA, a Self-Professed ‘Mexican Biker Lawyer Covered in Tattoos’

Mark Gonzalez at the Nueces County District Attorney’s Office.  Courtney Sacco

Early this year, border agents ran a name-check and wound up briefly detaining Mark Gonzalez as he traveled home to Corpus Christi after a vacation in Mexico. That’s why Gonzalez says he gave the Texas cop that stopped him a couple of weeks later this disclaimer: “When you run my name, I’m probably going to be listed as a gang member. I’m also the DA of Nueces County. Do whatever you want with that information.”

When Gonzalez ran for DA last year, he personified the label “nontraditional candidate” — a defense lawyer with the words “not guilty” tattooed across his chest, someone whose connection to the Calaveras Motorcycle Club even landed him in a police database of known gang members. He vowed to become a lawyer at 19, after he pleaded guilty to drunk driving. The guy next to him in court, who could afford a private lawyer, got the same charge dismissed.

Gonzalez’s office no longer takes misdemeanor marijuana cases (a $250 fine and a drug class gets charges dismissed) and even worked with a local women’s shelter on a pretrial diversion program for people accused of domestic violence for the first time. He spoke with the Observer about his new approach to criminal justice in Corpus Christi.

Q: During your campaign, you talked about needing to restore trust and fairness in law enforcement. What did you mean?

It’s why one of our main objectives now is transparency. We don’t want anybody to say that prosecutors were hiding the ball or didn’t disclose something. We’re open with defense attorneys about what we find, whether it’s good, bad or ugly for us. That’s also how we try to deal with media. As much as we can be, we’re open about what evidence we have, and we only go forward on a case if we can prove it. If there’s a case there, we’ll build it. But we’re not hunting for convictions. It’s about securing justice.

You’ve only been on the other side of law enforcement as a defense attorney. Any trouble getting police to trust and work with you?

As far as the higher-ups, I haven’t had any struggle with them. But I can tell you that the patrolmen, they’re the ones that may have the strongest criticisms of me and the hardest feelings against me just because I’m this defense attorney and a biker.

For the most part, our work here at the DA’s office speaks for itself. And some of those who didn’t trust me at the beginning, I think they’re starting to come around. I get approached all the time by patrolmen telling me, “We were wrong about you.” We’re gaining their trust and confidence, and eventually the work will speak for itself. That’s all that I ask.

What does a reform-minded criminal justice system look like?

I think that every DA has their own ideals and values and idea of what that looks like. For us, it’s about fairness and transparency. But I think in a lot of other ways, these reforms are just about being smart and having common sense. People who have proven they’re dangerous need to stay in jail. But low-level misdemeanors? They don’t need to be there. We need to find another way to deal with those people and that behavior. On one hand, we need to look at the jail’s repeat visitors and see if there’s anything we can do to stop that cycle. But we also need to focus our resources on people who are actually out there criminalizing people over and over again and put them away.

You have a criminal record. You’re the first from your family to go to college. What’s the impact of having someone from your background in power in the criminal justice system?

I hope it brings some humanity back to the office. Realize, we’re not here to destroy people’s lives. We’re here for justice, and sometimes that’s not always going to require a conviction. Just because we can give somebody a conviction doesn’t mean we always should and need to. That’s why we need people who can take a step back and consider their own life experiences and other perspectives. That defendant standing there was me once. So when I look at a case, I’m also thinking, is there a way we can make this person better, some chance we can give them? Don’t get me wrong, some people are going to get an opportunity and mess it up and eventually run out of chances. But we can’t lose sight that there are people and situations where we can help.

What role do prosecutors play in either fixing or exacerbating the system of mass incarceration?

The DA is probably the most important position in every county courthouse across the state. If you have a good prosecutor or a smart prosecutor with common sense, they can influence more widespread change than a judge or anyone else. We decide what cases to take and how to prosecute them. It starts and ends here.

If you have a prosecutor who’s fair and honest and open to diversion, your race, gender and economic circumstances should not play a role in the outcome of your case. Period. It’s the prosecutor who gets to decide whether to treat those cases the same. It shouldn’t matter if you have a high-powered lawyer who’s friends with someone at the DA’s office versus the new guy who just got out of law school who might not have those same relationships at the courthouse. As a prosecutor, you must treat them the same.

You’ve taken pretrial intervention programs beyond just drug cases. Why try it with domestic violence?

For the longest time, there’s been a domestic violence problem in our community. The shelter’s been open for 34 years, and I don’t see them ever closing. Something obviously isn’t working.

Someone would have a misdemeanor case, and then it would happen again and again. There was no intervention after that first incident, just punishment. Now, working with the shelter, we’re making contact with people in these abusive partnerships after that first time to give them the education they need. If defendants sign a confession and attend a six-month family violence class, that charge can be dismissed. And this isn’t something I take credit for — it was the women’s shelter counselors who helped us with this. The goal is to make sure the abuse stops, but also so that it doesn’t escalate into a felony.

What’s your stance on the death penalty?

I am not anti-death penalty, but I wouldn’t call myself an advocate for it. My two first assistant DAs, one is very anti-death penalty and thinks the government should never play a role in ending someone’s life. I have another assistant who thinks an eye for an eye is the way to go. And I guess I’m in the middle. Now I want to see what our community decides. I’m about to present a death penalty case very soon. When the jury makes their decision, it will help us figure out how we handle those cases in the future.

What role do reform-minded DAs play now that federal justice policy has made a 180-degree shift on things like drug charges, mandatory minimums and pot?

Much of what they’ve done hasn’t had an effect on us yet and probably won’t. Nobody governs us and nobody really tells us what to do. We have discretion in how we run this office. But you can already see we’re taking very different approaches that could become a problem in the future.

When it comes to things like mandatory minimums and how you prosecute drug crimes and what to do with marijuana, I think common sense is honestly going to win out on that in the long run. On marijuana, I think legalization is where we’re headed, because honestly it’s the smartest thing to do. We still live in Texas, so it may be hard to overcome some of that old thinking when it comes to drugs. But I think the economic gains and economic efficiency will eventually win people over if the other arguments don’t.

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Abbott Supports Removing Inaccurate Capitol Displays. Do Slavery-Denying Plaques Count?

Representative Eric Johnson left Friday’s sit-down with Governor Greg Abbott confident that they agreed on two things. First: markers and monuments at the Texas Capitol should be historically accurate. Second: a plaque inside the Capitol that claims the Civil War “was not a rebellion, nor was its underlying cause to sustain slavery” does not pass that test.

Almost immediately after the meeting, Abbott’s office half-denied, half-downplayed Johnson’s public statements that the governor was “supportive of the plaque coming down.” Abbott’s spokespeople insisted he simply asked the State Preservation Board to “look into the issue.” Johnson pushed back and, by Monday, Abbott’s office acknowledged that the governor thinks “substantially inaccurate” markers at the Capitol should come down.

What Abbott won’t publicly say is whether he thinks it’s “substantially inaccurate” to deny that the Civil War was fought over slavery. (We asked his office for comment and received no response.)

That’s not entirely surprising, considering that defending Confederate monuments has morphed into a sort of cause célèbre in some pockets of the conservative movement. After the white supremacist violence in Charlottesville this summer, Abbott resisted renewed calls to remove Confederate monuments and markers around the Capitol, cautioning that “tearing down monuments won’t erase our nation’s past.” Only 9 percent of Republicans who responded to the latest UT/Texas Tribune poll support relocating or removing the state’s many Confederate markers. White House chief of staff John Kelly even pushed the slavery-denying Lost Cause narrative this week, telling a Fox News host that “the lack of an ability to compromise led to the Civil War.”

State Rep. Eric Johnson
State Rep. Eric Johnson (D-Dallas) on the House floor.  Courtesy state Rep. Eric Johnson

Johnson, who says he’s “seriously considering” a run for speaker of the House next term, wants to see every Confederate monument on the Capitol grounds fall, but his focus in recent months has been on the so-called Children of Confederacy Creed. Last week, Johnson filed his official request with the State Preservation Board to remove the plaque, which was mounted just steps from the Capitol rotunda during the civil rights era. The marker denies slavery’s role in the Civil War, despite the state’s declaration of secession, filed nearly a century earlier, that claimed the country was “established exclusively for the white race” and declared that black people were “rightfully held and regarded as an inferior and dependent race.” The Texas Ordinance of Secession also states that “the servitude of the African race … is mutually beneficial to both bond and free, and is abundantly authorized and justified by the experience of mankind, and the revealed will of the Almighty Creator.”

“We have a legal document that is housed in our state archives that tells the world why Texas seceded from the union,” Johnson, a Dallas Democrat, told the Observer. “We have this document that says the Civil War, at least for Texans, is about slavery. Then you have a plaque up outside my office that says the Civil War’s not about slavery? It’s just patently false. That’s why the plaque needs to come down.”

Children of the Confederacy
A plaque in the hall that rings the Capitol’s main rotunda. It declares the Civil War was not fought over slavery. Representative Eric Johnson has called for its removal.  Kelsey Jukam

Johnson claims that Abbott agreed the plaque was historically inaccurate. He says the governor then brought up an instance two years ago when he threw out a mock nativity scene that a church-state separation group had set up in the Capitol basement. It’s unclear if Abbott was joking, or whether he really thinks a cardboard cutout “winter solstice” display featuring the Founding Fathers, the Statue of Liberty and the Bill of Rights is comparable to a plaque that’s for decades told Capitol visitors that slavery had nothing to do with the Civil War.

 

 

Johnson hopes an analysis of the plaque’s history, which Abbott has publicly acknowledged asking the State Preservation Board to do, opens the floodgates on the larger discussion about the more than 170 Confederate markers in Texas. “This conversation has to start somewhere in Texas,” Johnson told the Observer. “This plaque makes it clear what was going on in the late ’50s when some of these monuments went up. It clearly shows the propaganda campaign, the attempt to rewrite the history of the Civil War.”

When it comes to the plaque at hand, Johnson says Abbott’s hairsplitting doesn’t really matter so long as the preservation board does its job. “If the whole thing swings on historical inaccuracy, then that plaque’s doomed.”

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Texas Cities Embrace a Softer Approach to Pot Possession as State Reforms Stall

State Rep. David Simpson speaks to the Texas House.  Patrick Michels

Remember David Simpson? He was a peculiar kind of conservative lawmaker, about as fundamentalist Christian as they come, while also passionately articulating the Christian case for legal weed at the Texas Legislature.

“The Bible warns about excessive drinking, eating and sleeping,” Simpson wrote, “but it doesn’t ban the activities or the substances or conditions associated with them — alcohol, food and fatigue. Elsewhere, feasting and wine are recognized as blessings from God.”

Simpson’s House Bill 2165, which would have purged any mention of marijuana from state law and left the plant totally unregulated, actually helped make 2015 a banner year for pot reform in Texas. While HB 2165 didn’t pass, Simpson’s bill was one of two measures decriminalizing cannabis that session that got enough votes to make it out of a legislative committee — the first time pot bills had ever cleared a major hurdle in the state lawmaking process. The most significant victory that session came when Governor Greg Abbott signed Texas’ first, extremely limited medical marijuana law. Reformers figured they’d build on those successes in the 2017 legislative session.

Instead, as Heather Fazio with the Texas Marijuana Policy Project put it, “2017 turned out to be a circus.” With the Texas Legislature fixated on “sanctuary cities” and “bathroom bills,” the clock simply ran out on marijuana reform, despite what Fazio called unprecedented support from conservative lawmakers.

At a state legislative committee this past session, families hold up photos of their kids who suffer from debilitating ailments, who they say could be helped by legalizing medical marijuana.  Sophie Novack

But amid state inaction, and with much less notice, reform has finally started to take root at the local level. Over the past year, officials in Texas’ biggest counties and cities have embraced policies that blunt the impact of strict marijuana laws that Texas politicians won’t change. Prosecutors in Dallas, Houston, San Antonio and elsewhere are increasingly refusing to charge or jail people caught with small amounts of pot.

“How harshly you’re treated for possessing cannabis in Texas now varies city by city, county by county,” Fazio said.

Even though criminal penalties for marijuana possession in Texas remain some of the most draconian and nonsensical in the country, lawmakers actually gave local law enforcement agencies the option to change how they handle small-time pot possession a decade ago. In 2007, the Legislature passed a bill allowing police to give people charged with certain misdemeanor crimes, such as marijuana possession, a court summons instead of taking them to jail. Austin adopted this policy early on, but years after it went into effect the city’s cops were still arresting and jailing three out of four people caught with marijuana.

The so-called cite-and-release law gave police departments the discretion of whether to arrest people for marijuana, but it didn’t erase the possible six-month jail sentence for low-level pot possession in Texas. Over time, however, that kind of punishment has become much less likely in Texas’ largest counties, where prosecutors now generally offer to drop or reduce your charge if you comply with community service, attend a substance abuse class or pay a fine. After mulling it over for years, Bexar County District Attorney Nico Lahood last month announced that the county — home to San Antonio — would couple pre-trial diversion with a cite-and-release policy that keeps low-level marijuana offenders out of jail. Dallas County commissioners voted to adopt the same policy earlier this week.

Harris County District Attorney Kim Ogg in her office in Houston.  Michael Stravato

In Harris County, the state’s largest jurisdiction, marijuana has been a kind of gateway reform. After making it central to her campaign for office, Harris County DA Kim Ogg announced soon after her swearing-in this year that her prosecutors won’t charge people with misdemeanor pot possession if they take a class and pay a $150 fine. Local officials cheered the county for moving “away from wasteful and inefficient policies of mass incarceration.” Ogg followed up with even more sweeping reforms last month, saying her office would now stop prosecuting so-called “trace cases” involving miniscule amounts of any illegal drug. This week, she outlined even more plans to keep people out of lockup and find them help if necessary. As the Houston Press reports, Ogg called it “more diversion, less jail.”

Fazio sees Harris County as evidence that at least some officials in Texas are starting to see marijuana as the low-hanging fruit of criminal justice reform, something local cops and prosecutors don’t even want to waste their time on anymore. But the result of state inaction, Fazio says, is now an uneven and unfair patchwork of policies across Texas, where the consequences for possessing small amounts of a plant — one that more than half of states have legalized in some form — largely depend on where you live. She says her group will keep pushing for cities and counties to do damage control.

That is, until enough lawmakers in Texas agree with the words of their former colleague David Simpson: “I don’t believe that when God made marijuana he made a mistake government needs to fix.”

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It’s Time to End Austin’s Failed Experiment in Police Oversight, Activists Say

Richard Munroe  Legacy.com

Richard Munroe just wanted to talk to someone when he called 911 at 3:48 a.m. on July 5, 2015. Sobbing and drunk, the 25-year-old Austin man unloaded on the dispatcher. He hadn’t talked to his mother in months, he’d recently quit his job and had spent time in a mental hospital. He asked if police could track his address from the call, saying more than once he didn’t want the cops to come; the dispatcher assured him they couldn’t track him. “What you’re doing is what we teach people to do from the time they’re little,” the dispatcher told Munroe. “When you have an issue, if you need something, you call 911.”

Munroe realized police were outside his door when, 20 minutes into the call, his dogs started barking. He grew more upset when officers started shouting at him. Among the dispatcher’s last words to Munroe: “Let me tell them they need to slow it down.” Instead, one officer rushed Munroe with a Taser when he came out of the house wielding what turned out to be a BB gun. The officers claim they fired 23 bullets toward the house, six of which struck and killed Munroe, because they heard a popping sound and saw him raise what looked like a real gun. Just minutes earlier, Munroe and the dispatcher had talked about Fourth of July fireworks that were exploding across the city that morning.

The BB gun Richard Munroe was carrying when shot by Austin Police in 2015.  Courtesy/Texas Criminal Justice Coalition

A Travis County grand jury cleared all three officers who shot Munroe. The Austin Police Department’s internal affairs investigation concluded that they didn’t violate any department policies, and none were disciplined. The city’s investigation into Munroe’s death would have ended there if not for the Citizen Review Panel that Austin had created years earlier for an independent look at such incidents. The panel is supposed to identify problems and make recommendations the department can implement to prevent future tragedies.

The Citizen Review Panel’s analysis called Munroe’s case “an example of what not to do” during a mental health call. That’s in part because the three officers who shot Munroe only had a combined 26 months on the job. Police summoned a helicopter to fly around Munroe’s neighborhood but never called for a crisis response team or mental health officer trained to deal with people in emotional distress. Cops fired nearly two dozen rounds toward Munroe’s house without even knowing whether anyone else was inside.

In all, the city-sanctioned panel of police watchdogs submitted eight recommendations to former APD Chief Art Acevedo aimed at preventing future needless police killings. If nothing else, wrote review board chair Dominic Gonzales, Munroe’s death should be a teaching moment for the department.

Austin’s Citizen Review Panel made at least 18 different recommendations to reform policies, procedures and training at APD in letters sent to the chief throughout 2016. According to the Texas Criminal Justice Coalition, which obtained those letters and shared them with the Observer this week, none of those reforms have yet been incorporated. Some of them, such as revamping department policies in order to emphasize de-escalation in mental health calls, are recommendations that the board has made time and time again.

APD hasn’t responded to the Observer’s questions about the letters.

 

 

Gonzales says he’s frustrated that cases like Munroe’s continue to happen, despite the panel’s recommendations. “Actually, frustrating doesn’t go far enough to describe how it feels when you continue to see this pattern, particularly with people who are mentally ill.”

To Kathy Mitchell, a policy advocate with the Texas Criminal Justice Coalition, APD’s refusal to act on the recommendations suggest that Austin’s 16-year experiment in police oversight has failed. In 2001, the city created the Citizen Review Panel, along with Austin’s Office of the Police Monitor, as part of the city’s contract negotiations with the local police union. The bargain was supposed to create independent police oversight in exchange for a 22 percent pay increase for officers, according to the Austin American-Statesman. In a recent statement, Austin Police Association President Ken Casaday said the agreement created “the most transparent police department in the state, hands down.”

Mitchell and others say that transparency has not led to accountability. Watchdogs insist that police oversight in Austin isn’t working, not because review board members aren’t doing their jobs but because APD higher-ups aren’t listening. “What good is citizen oversight if police won’t listen to it?” Mitchell told the Observer.

Members of the Black Student Alliance demonstrate against police brutality at the University of Texas at Austin.  BSA-Texas/Twitter

Citizen oversight boards exist in some form in most large police departments across the state, often as the result of contract negotiations between cities and their police unions. In addition to Austin, citizens sit on panels in Dallas, San Antonio and Houston that review police shootings and allegations of police misconduct but only make nonbinding recommendations that police officials are free to ignore. Activists say Austin’s track record demonstrates the limitations of that system.

For example, Austin review board members recommended that police interview all witnesses to a police shooting, not just other cops. (In several letters, the board questioned why police didn’t take statements from civilian witnesses at the scene of a shooting.) Mitchell says none of the recommendations have made it into APD’s policy manual for officers. Some suggested changes can likely only be addressed by changing the city’s police union contract, which currently includes a rule barring officer suspensions for misconduct after 180 days have passed.

That’s in part why Austin Justice Coalition founder Chas Moore and others are urging Austin officials to make radical reforms to that contract this year, such as ending a policy that effectively sweeps some officer misconduct under the rug after enough time has passed. City officials and police union reps are in a final round of negotiations for the contract this month. Otherwise, Moore and others want city leaders to blow up the contract.

That would end the Citizen Review Panel, which Moore says isn’t working anyway. “These people get to see their internal investigation after a person is killed,” he said. “If their urgent recommendations are simply ignored, then we need a completely new approach.”

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The Case to End Assembly Line Justice for Poor People in Harris County

Harris County hearing officer Jill Wallace (left) and Andrew Goodson  Screenshot/YouTube

On October 1, 2016, police arrested Andrew Goodson for carrying a knife just short of 6 inches long, a Class A misdemeanor in Texas. The next day, guards brought him and dozens of other inmates into a large room at the Harris County Jail, the nation’s third largest county lockup. One by one they walked to a red square tile situated below a screen that linked them, via video conference, to a prosecutor and a hearing officer who sets bail for the county’s misdemeanor courts.

According to court records, Goodson, 46, was living out of his car at the time and had only $29 to his name. He simply couldn’t afford the $250 bail bond payment that would buy his freedom.

In a video recording of the hearing, Goodson asked hearing officer Jill Wallace for a personal recognizance bond — an option for defendants too poor to make bail — but Wallace shut him down before he could even finish the sentence, citing a quarter-century-old arrest record out of Florida. (Court documents indicate he’s never been convicted of a felony, nor had he ever before been arrested in Harris County.) Wallace grew agitated when the defendant again tried to talk, telling him, “I’m not letting you talk because I’m going by what I feel is best for the community.” When he asked again if he could speak, Wallace yelled “No!” Wallace’s demeanor shifted once Goodson was out of sight. She laughed with the prosecutor after quipping that sending him back to jail “makes me feel better.”

Until recently, the bail process for low-level arrestees in Harris County functioned with the efficiency of an assembly line, sending poor defendants back to jail, sometimes for days or weeks, until they could resolve their cases. Last year, civil rights groups sued the county on behalf of those arrestees. In April, Lee Rosenthal, the chief federal judge for the Southern District of Texas, declared the county’s practice of using cash bail as de facto detention orders, regardless of someone’s ability to pay, an unconstitutional violation of poor people’s right to due process and equal protection.

Citing hearings like Goodson’s, Rosenthal found that Harris County’s attempts to reform the system haven’t gone far enough and this summer ordered that the jail release almost all misdemeanor arrestees on personal bonds after 24 hours if they can’t make bail. On Tuesday, lawyers for the county went to the U.S. Fifth Circuit Court of Appeals in New Orleans to argue there’s no constitutional right to “affordable bail” and that Rosenthal’s ruling risks throwing pretrial systems across the country into disarray. The case could change the landscape of American bail practices in ways that reverberate throughout the criminal justice system. Some even say Rosenthal’s ruling could be the beginning of the end of cash bail in America as we know it.

“Wealth-based pretrial detention is a key driver of mass incarceration,” said Elizabeth Rossi, an attorney for Civil Rights Corps, one of the groups that filed the lawsuit. “Ending the practice of keeping people in jail due to their poverty would make it more difficult for prosecutors to coerce guilty pleas and would help ensure that, whether rich or poor, arrestees can exercise their right to a fair trial and the presumption of innocence.”

In her exhaustive 193-page opinion, Rosenthal found that Harris County jailed hundreds of legally innocent people because they were too poor to pay a bondsman. Rosenthal concluded that the practice “exacerbates the racial disparities” that already exist in the criminal justice system. She cited research showing that defendants who fight their cases from behind bars are much more likely to plead guilty, be sentenced to jail and face longer jail sentences than people who can afford to pay for their pretrial release. Rosenthal labeled it “sentence first, conviction after.”

 

 

In Harris County, there’s ample evidence of those perverse incentives. For instance, starting in 2013, local prosecutors began notifying hundreds of defendants who took plea deals on drug possession charges that lab tests conducted months and even years after their convictions proved negative for drugs. In her ruling, Rosenthal found that Harris County prosecutors even sometimes threatened to seek harsher sentences if defendants wouldn’t take a guilty plea.

It’s obvious why someone would want to get out of jail as fast as possible, even if that means eating a criminal conviction that could cost them their job, public housing or scholarships. Consider the case of Patrick Joseph Brown, the 46-year-old man beaten to death in the Harris County Jail two days after he was booked for allegedly stealing a guitar. As the Houston Press reported, Brown got stuck in jail because he couldn’t pay the $300 premium on his $3,000 bond and, like 90 percent of the county’s misdemeanor defendants, wasn’t given a personal bond.

Against this backdrop, Harris County has made reforms in recent years that Rosenthal called laudable, such as giving bail hearing officers a more objective risk-assessment tool and providing public defenders at bail hearings. However, Rosenthal also called those reforms insufficient. It’s ultimately still up to individual hearing officers to decide whether poor people get personal bonds. Hearing officers and county judges regularly give people charged with crimes that indicate poverty — begging, trespassing or sleeping under a bridge — bond amounts that are clearly beyond their reach. Rosenthal said courts had an “unwritten custom” to deny all homeless people personal bonds, even for the pettiest of charges.

Even some local judges are fed up. Judge Darrell Jordan of Harris County Criminal Court 16 says that too many courts automatically equate poverty with risk and set unattainable bonds that keep poor people in jail. Jordan, who was elected to his seat last year after the bail lawsuit was already filed, testified on behalf of the plaintiffs that the county cannot fix the problem on its own. Since taking the bench in November, Jordan says he’s granted personal bonds to almost every defendant who appeared before him and couldn’t afford bail.

“Other judges are basically saying that a person is potentially violent or unsafe to the community if they’re unable to come up with that $500 to pay on a $5,000 bond,” Jordan told the Observer. “Somehow, that’s what all of a sudden makes them too unsafe to release. So I guess around income tax time, when everybody has a little bit of extra money, everyone becomes safe then, huh?”

https://www.flickr.com/photos/dopey/

At the Fifth Circuit appeals court Tuesday, lawyers for Harris County argued that Rosenthal’s order went too far. Charles Cooper, the county’s appellate attorney, spent much of his time telling the judges that misdemeanor defendants can still contest their bail-setting through the proper legal channels.

Judge Catharina Haynes, one of three Fifth Circuit judges who heard the case, seemed to dismiss that argument, saying the lengthy process to contest bail would last longer than most jail sentences for misdemeanor convictions. “How can that really be a remedy?” she asked.

On the other hand, Haynes said she was “shocked” by Rosenthal’s order to release people on personal bond after 24 hours, calling it “chaotic.”

The Fifth Circuit could affirm Rosenthal’s decision, overturn it or send it back to her court for further evidentiary hearings on the impact of her ruling on the county’s ongoing reforms. Trisha Trigilio, a senior staff attorney with the ACLU of Texas, told the Observer that Rosenthal’s ruling, if it stands, should lead to fundamental changes beyond Houston. “The legal issues that are raised in the Harris County bail case are the same constitutional issues that we run into in jurisdictions across the state,” she said.

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Body Cam Policies in Texas Exacerbate a System Designed to Protect Police, Critics Say

A police officer wearing a body camera.  Flickr/PennStateLive

The senator who drafted the sweeping-but-little-noticed body camera law that the Texas Legislature passed in 2015 called his bill a blueprint for other states wanting to establish baseline standards and help fund police departments that hadn’t yet adopted the technology. But one vaguely worded line in the law also gave Texas’ body cam-wearing cops this assurance: if they ever shoot someone, they get to review their own footage before answering any questions about the incident.

At least that’s how two of the largest Texas police departments, San Antonio and Houston, interpret it. Thanks to the law’s vague wording, Dallas police take the policy even further, letting cops who shoot people review footage taken from every officer on scene before they give a statement. 

The discrepancy highlights an unexpected downside for police reformers championing body cams, which, depending on how departments use them, could actually help cops avoid accountability. Civil rights groups like the ACLU argue that letting officers review any body cam footage before investigators even ask them what happened amounts to “poor investigative practice” that departments would never use on other suspects. Some fear the policy lets cops get their story straight about a police shooting before putting anything on record.

 

 

On September 8, Dallas County District Attorney Faith Johnson, whose office is currently prosecuting two cops for on-duty killings captured by body cam this year, sent a letter to Attorney General Ken Paxton asking how far the law really goes.

In her letter, Johnson says she agrees with the policy most of her local police departments have adopted, which lets officers who shoot a person review their own body cam footage before giving a statement to criminal or internal affairs investigators. Unlike the ACLU, she calls that “a legitimate and fair memory enhancement tool.” Still, Johnson says other departments allow the officer who pulled the trigger, as well as “any other officer(s) present at some point” during an incident, to review everyone else’s footage before any of them give statements. Basically, everyone gets to see everything before any of them are asked to say anything.

Johnson’s letter to Paxton says this creates a clear “dilemma” for, say, prosecutors investigating police shootings. Cops who pull the trigger may see footage of things they didn’t witness firsthand before figuring out what to tell officials. Other officers get to see what everyone else saw before they go on record. Johnson said that “can result in, or at least the claim of, embellishment of individual statements based” on events an officer saw but didn’t personally experience. “Our concern is that this practice, if mandated, may actually detract from the officer’s credibility when testifying,” she writes.

While Johnson’s letter doesn’t name the department at the root of her inquiry, her first assistant DA, Mike Snipes, told the Observer that the Dallas Police Department raised the issue with their office. “Their policy is that officers get to look at everybody’s cameras,” he said. Snipes, who has called body cameras a “game changer” for investigating police shootings, insisted the request for an AG opinion isn’t specifically connected to either police shooting case his office is currently prosecuting, one of which involved a DPD officer. According to a Texas Tribune database, DPD officers fired their guns at people more than 100 times from 2010 to 2015.

DPD hasn’t responded to the Observer’s questions about its body cam policy.

State Senator Royce West, D-Dallas  Sam DeGrave

Senator Royce West, a Dallas Democrat, authored and championed the body cam bill, known as Senate Bill 158, at the Texas Legislature, where it faced little opposition, though critics would later chastise the measure for effectively blocking the release of pretty much most important body cam footage. Kelvin Bass, West’s legislative aide who worked on the measure, said the office leaned heavily on a 2014 report on body cameras by the Police Executive Research Forum, an influential law enforcement think tank, and the U.S. Department of Justice when drafting the law. “For body cams, that was kind of the bible at the time, one of the most comprehensive things we could find on the topic,” Bass told the Observer.

Even that report, which recommended letting officers review their body cam video before making a statement, conceded that “there is some question” among police departments about whether that’s the right choice. As the ACLU points out, cities like Oakland prohibit officers from reviewing video before giving statements in serious use of force investigations, including shootings. During the 2015 legislative session, the Leadership Conference on Civil and Human Rights urged departments to prohibit officers from reviewing body cam footage before filing their initial reports.

“What the law allows is already problematic,” argues Daryl Washington, a civil rights attorney representing the family of Genevive Dawes, who in January was shot and killed by a body cam-wearing DPD officer who prosecutors have since charged with aggravated assault. “It gives an officer and his attorney the ability to review the evidence before they put anything on the record. They get to start tailoring their responses in line with the video evidence right off the bat.”

The AG’s office hasn’t yet issued an opinion on whether the 2015 law can be interpreted to allow Texas cops to review body camera footage from every officer on scene before making a report; per the agency’s website, that usually takes about 180 days. West’s office says the senator agrees with the Dallas County DA’s position that police should only be able to review their own footage prior to giving a statement. What Paxton decides will likely determine how departments across the state interpret the law.  

Washington, the attorney, said he wasn’t aware Dallas police under investigation have access to other officers’ footage before answering basic questions about a shooting. If the AG sides with DPD’s reading of the law, Washington says, “That’s just one more thing in the system designed to protect the police as opposed to finding the truth.”

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Trump Nominates Lawyers from Anti-LGBT ‘Religious Freedom’ Group to be Texas Federal Judges

Texas Attorney General Ken Paxton announced the appointment of Jeff Mateer, former general counsel for an anti-LGBT equality "religious freedom" group, to his office on Wednesday.
Texas Attorney General Ken Paxton appointed Jeff Mateer, former general counsel for an anti-LGBT “religious freedom” group, as his first assistant in 2016.  JP2LifeCenter/YouTube

Jeff Mateer and Matthew Kacsmaryk have worked to erode the firewall between church and state as lawyers for the First Liberty Institute, a Christian legal advocacy group that protects pastors who mobilize their flock to overturn local non-discrimination ordinances, county clerks who refuse to issue same-sex marriage licenses and anti-abortion centers that trick women into thinking they’re walking into actual medical clinics.

Trump’s nomination of the two religious-right legal activists to vacant federal judge seats in Texas has rattled LGBT rights groups, who call the appointments a gift to anti-LGBT activists.

“First Liberty Institute has used anti-LGBTQ policies to blatantly vilify our families and neighbors for two decades,” Equality Texas said in a Friday statement. “By nominating associates of this hate group, the president is using his office in an attempt to ensure policies will be created and spearheaded to advance anti-LGBTQ discrimination in employment, housing and places of business all under the guise of protecting religious liberties.”

Kathy Miller of Texas Freedom Network, which advocates for church-state separation, called the nominations “a clear signal that President Trump intends to make our federal courts the place where civil rights go to die.” Their nominations must still be confirmed by the U.S. Senate.

Mateer and Kacsmaryk aren’t typical judicial nominees. In his eight years as president, Barack Obama appointed 12 lawyers to vacant federal benches in Texas, eight of whom had served as judges. The other four Obama appointees had lengthy careers as government lawyers in the federal courts, either as law clerks for federal appellate court judges or long stints with the U.S. Department of Justice. One served as White House legal counsel to Bill Clinton.

By contrast, Mateer, who Trump nominated to fill a vacant seat in the Eastern District of Texas, has no judicial experience and most of his work has been in private practice. Mateer made headlines last year when Texas Attorney General Ken Paxton made him the state’s first assistant attorney general. Critics such as Miller bristled that Mateer had publicly eschewed the notion of church-state separation. As he told students during a conference at the University of St. Thomas in 2013:

“I’ll hold up my hundred-dollar bill and say, ‘for the first student who can cite me the provision in the Constitution that guarantees the separation of church and state verbatim, I’ll give this hundred dollar bill. … It’s not there. … The protections of the First Amendment protect us from government, not to cause government to persecute us because of our religious beliefs.”

Before joining Paxton’s office, Mateer was First Liberty’s general counsel and executive vice president, representing people like Tom Brown, an El Paso bishop and founder of what the Southern Poverty Law Center has labeled an anti-gay hate group. A month after Paxton hired Mateer, the AG’s office filed a court brief supporting Brown in a lawsuit stemming from his attempts to overturn the city’s non-discrimination ordinance and recall local politicians who pushed for it.

In a statement Thursday, Paxton praised Mateer’s nomination, calling him a “principled leader” and “a man of character.”

Kacsmaryk, one of five lawyers Trump nominated to vacant federal benches in Texas this week, is currently deputy general counsel for First Liberty, according to the group’s website, and oversees its “policy advisory team.” Trump wants to appoint him to the Northern District of Texas,where, prior to joining First Liberty in 2013, he served as an assistant U.S. attorney mostly handling criminal appeals for five years.

First Liberty, formerly known as the Liberty Institute, is the Plano-based brainchild of Kelly Shackelford, who helped push for a statewide gay marriage ban in 2005 that was ultimately voided by the Supreme Court’s landmark marriage equality ruling a decade later.

After that high court ruling, as the Observer previously reported, Shackelford urged anti-gay Christians to shift their focus toward fighting for the “religious freedom” to, say, refuse to serve same-sex couples. “We’re going to shove that down their throat over and over again in all these cases,” Shackelford said.

If the Senate confirms Trump’s nominees, there’d be two Texas courts receptive to all that shoving.

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In San Antonio, Cops Punch Down

Screenshot from a grainy cellphone video shows the altercation between officer Tuli and the 14-year-old girl.  YouTube/sanantohomie

The San Antonio Police Department’s use-of-force manual encourages officers to “attempt to de-escalate tense situations.” De-escalation apparently didn’t work for officer Gary Tuli, who in late May was caught on a bystander’s video punching an unarmed 14-year-old girl in the face at a quinceañera.

Not that Tuli did anything wrong, according to his department supervisors. In a use-of-force report first obtained by the San Antonio Express-News this week, two of his superiors signed a form saying Tuli’s actions were justified that night, that he violated no department policy and needs no further training. Tuli claims the girl hit him first, and the report says he suffered scratches or bruising to his face. The girl’s attorney adamantly denies that she swung at a cop (she doesn’t appear to on video), but she says the case would still be troubling even if she did.

That’s because SAPD policy also says that if cops must use force, it should be “proportional with the circumstances of the situation.” Artessia House, an attorney representing the girl’s family, questions why the officer didn’t just restrain the girl if he thought she threw a punch. House told the Observer Monday that justifying Tuli’s actions “sends the message that San Antonio police can punch young black girls in the face, on camera, and completely get away with it.”

SAPD wouldn’t comment on the case or the use-of-force report when asked on Monday. The Observer isn’t naming the girl because she’s a minor.

In a shaky video posted on YouTube after the encounter, the girl is standing near her mother, April Johnson, who can be heard yelling, “don’t talk to her like that,” before Tuli swings. The girl’s head immediately jerks backward, and officers then drag the mother out of view as she screams “let her go!” Tuli arrested the girl for assault on a police officer, a third-degree felony, and police took her to the local county juvenile lockup, where she stayed for the next day and a half. Prosecutors have yet to formally file charges against the girl, an honor-roll student who’s never before been in trouble with the police.

In its use-of-force report, SAPD claims that the teenager didn’t suffer any injuries. House says that’s not true, claiming the girl asked for medical attention in lockup but didn’t get it. Earlier this year, her mother told me that a doctor who examined the girl the day after her release diagnosed her with mild traumatic brain injury and trauma to her face and neck.

House argues that the case fits into a pattern of excessive force at the department — from the cops who beat someone they mistook to be a fleeing suspect so badly he needed back surgery to the officer who shot and killed a man last year after mistaking his cell phone for a gun.

“We are asking this police force to render reasonable decisions on these matters, even though they have shown time and time again they’re incapable of doing so.”

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Deputies Go Unpunished for Invasive Cavity Search on Houston Roadside

Harris County Sheriff’s Office dashcam footage of the June 2015 stop and search.  Sam Cammack/courtesy

The courts have long ruled that warrantless body cavity searches are, in most circumstances, unconstitutional. Impromptu roadside anal and vaginal probes are prohibited by both state law and policies adopted by many of the state’s largest law enforcement agencies, including the Texas Department of Public Safety and the Harris County Sheriff’s Office.

But that doesn’t necessarily mean cops who engage in warrantless roadside cavity searches will always face consequences. This month, Harris County prosecutors dropped criminal charges against two Harris County sheriff’s deputies accused of helping vaginally probe Charnesia Corley after they smelled weed during a June 2015 traffic stop in north Houston. The sheriff’s office has already cleared both deputies of any wrongdoing, and both are expected to stay with the department. One of them could even soon return to patrol duty.

That’s what prompted the attorney handling Corley’s federal lawsuit against the county to release dash-cam footage on Monday that he says proves she was subjected to an illegal search. The video, first published by the Houston Chronicle, appears to show the deputies forcing Corley face-first on the pavement near her car before spreading her legs and shining a flashlight around her genitals.

Corley’s attorney, Sam Cammack, also called for officials to appoint a special prosecutor to pursue charges against the deputies. In a phone call with the Observer this past weekend, ahead of the video’s release, Cammack called the footage “undeniable proof this woman was violated.”

The deputies’ attorneys have claimed they “never penetrated” Corley during the stop, something that the dash-cam footage released Monday doesn’t seem to prove or disprove. In a response filed in the federal lawsuit, Harris County attorneys deny the deputies ever conducted a body cavity search, but rather forced Corley to the ground during a “visual strip search.” Natasha Sinclair, chief of the DA’s civil rights division, which investigates allegations against police officers, told the Observer that while grand jurors didn’t think the deputies committed any crime, “We don’t condone this type of search at all. This is by no means us saying this is an appropriate way to conduct a search.”

The courts have long ruled that the kind of warrantless search Corley says she endured is only justified when police can show that waiting for a judge’s approval would have resulted in “imminent loss or destruction of evidence,” which the county hasn’t even argued in Corley’s case.

Harris County Sheriff’s Office dashcam footage of the June 2015 stop and search.  Sam Cammack/courtesy

However, roadside probes like Corley’s have surfaced in state and federal courts across Texas in recent years. In 2014, a North Texas state trooper pleaded guilty to two counts of official oppression after sticking her hand inside the pants of two women on the side of the George Bush Turnpike while searching for drugs. Even after DPS updated its policy to ban warrantless roadside cavity searches, drivers still complained of deputies probing them during traffic stops. In 2015, state lawmakers passed a new law requiring cops to obtain search warrants before conducting roadside body cavity searches.

That law, which went into effect three months after deputies strip-searched Corley in a Texaco parking lot, carries no criminal penalties for law enforcement officers who violate it.

Citing the secrecy of grand jury proceedings, Sinclair wouldn’t explain why her office dropped charges against the deputies in Corley’s case earlier this month, other than to say her office had discovered new evidence they presented to another grand jury, which on August 4 cleared the deputies of any wrongdoing. “I’m prohibited from commenting on exactly what that content was,” she told the Observer.

Cammack meanwhile bristles that the deputies, who were both cleared of wrongdoing by an internal sheriff’s office investigation, will likely remain with the department. In a statement published by the Chronicle on Monday, Harris County Sheriff Ed Gonzalez said, “I understand and respect the community’s concerns” regarding Corley’s treatment. Gonzalez said both deputies are expected to remain with the department. One of them, he said, “will be allowed to return to patrol duties.”

Cammack says that’s an unacceptable outcome. “This woman was half-naked, handcuffed and face-down on the ground when they penetrated her,” he said. “That deserves some kind of accountability.”

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Meet the Expert Who Helps Texas Cops Justify Extreme Behavior

Cellphone video footage moments before the shooting  U.S. District Court filing/screenshot

Gilbert Flores was already taunting the cops when his mother called 911 the morning of August 28, 2015.

My son, he’s gone crazy, I think he’s on drugs, I’m not sure but he’s crazy,” she told the dispatcher. She’d heard a woman screaming inside the house that morning, ran to Flores’ room and saw he’d bloodied his wife’s face in a rage. After he began cursing God and ripping up a Bible, she told her son the devil was living inside him. According to court records, the dispatcher could hear Flores shouting over his mother: “I’m going to suicide by cop, so bring a SWAT team, or whoever is going to be ready to pull the trigger because I’m going to die today.” Then he grabbed a knife.

Following a chaotic 12-minute struggle, two Bexar County sheriff’s deputies granted his wish. In sworn statements to investigators after the shooting, they said Flores “started advancing” toward them when they shot. Neither of their statements mentioned that Flores had his hands above his head. Bystander video that aired on local TV later that night, which showed his hands raised in apparent surrender, quickly went viral.

Flores’ surviving family filed a federal civil rights lawsuit against the county and deputies two weeks after his death. In their defense, the deputies are now arguing that they were justified in shooting Flores because he was still an imminent threat. To make the case, they’re relying on Albert Rodriguez, the former director of the Texas Department of Public Safety (DPS) training academy, who this summer penned a report explaining why cops can rightfully shoot and kill someone, even if their hands are clearly raised.

In his report, Rodriguez writes that it’s “extremely naïve” to think Flores, even with his hands raised and standing at least 20 feet away, wasn’t an imminent threat at the moment officers shot and killed him.

Rodriguez is a familiar figure in police shooting cases. By his own estimate, he trained tens of thousands of the state’s licensed peace officers during his 16-year stint as DPS training academy director. According to the Texas Alcoholic Beverage Commission, where he’s worked since retiring from DPS in 2009, he’s “investigated and/or served as an expert in over 250 police officer involved shootings.”

As I’ve written before, police frequently turn to Rodriguez to justify extreme police behavior.

For example, he was involved in defending two Harris County sheriff’s deputies who, in 2002, chased down a man videotaping a raid in his apartment complex, busted down his door, and roughed up and arrested some people inside before deleting the video. Rodriguez insisted the officers’ actions were justified because they thought the men would somehow “retaliate” against them with the footage.

The Houston federal judge on the case, Kenneth Hoyt, delivered a stinging rebuke of Rodriguez’s work, saying his notion of what constitutes justifiable police behavior “contravenes well-settled legal theories” and promotes “lawlessness.” He also excoriated Rodriguez after concluding that he’d coached the deputies to make sure their under-oath testimony would support his expert opinions in the case.

Albert Rodriguez  LinkedIn

Here’s how Hoyt judged Rodriguez’s trustworthiness in that case: “It is like the cuttlefish squirting out ink in an effort to escape. Rodriguez’s testimony is just another stream of endless, irrepressible repetition of half-truths.”

Still, Rodriguez continues to testify in cases where people have accused officers of excessive force, such as Bellaire police sergeant Jeffrey Cotton, who on New Year’s Eve 2008 shot Robbie Tolan, an unarmed black man, in his parents’ front yard.

Cotton claimed he fired three bullets because Tolan rose to his feet, reached for his waistband and started to charge the officer. Tolan says he simply lifted his torso off the ground to shout “Get your fucking hands off my mother” when he saw Cotton shoving his mom. Experts hired by Tolan’s family said the downward trajectory of the bullet through his body shows Tolan was still on the ground when Cotton shot him. But Rodriguez would later write that his body position didn’t matter. Lifting up from the ground and yelling at a cop was, in the heat of the moment, indistinguishable from someone jumping to their feet and charging at an officer with a hand at their waistband. Or, as Rodriguez put it, “it equates to the same.”

Months later, a suburban Houston cop gunned down an unarmed teenager named Aaron Hobart inside his home, in front of parents who’d only called the police for help transporting their agitated, mentally ill son to the hospital. When the family sued, the police department summoned Rodriguez to explain why the officer’s actions were “consistent with established law-enforcement training.” He did the same for the off-duty Conroe officer who in July 2013 chased an unarmed teenager into the woods and put a bullet in the back of his head. The teenager’s crime: stealing $50 worth of iPad cases from a nearby Walmart.

In depositions recently filed in court, the Bexar County deputies who shot Gilbert Flores two summers ago said they were following supervisors’ orders to “by all means stop him.” During the intense, 12-minute struggle that preceded the shooting, Flores tried to stab one deputy, who blocked the attack with a riot shield, according to court records. Deputies had already tried to use a Taser on Flores, but he’d blocked the prongs with a metal chair he wielded as a shield. At one point, one of the deputies actually shot at Flores to keep him from re-entering the house but missed.

In depositions filed in court, both deputies testified they’d talked moments before shooting Flores and agreed on “ending this.” Video appears to show one deputy turning to face the other before they fire, almost simultaneously. That’s why lawyers for the Flores family argue that the officers’ own statements reveal there wasn’t an immediate threat when they shot. While the deputies guessed they were 6 to 8 feet away from Flores, court records show at least 20 feet separated the men.

At the moment deadly force was used, there was no imminent threat to justify it,” the plaintiffs wrote in a court filing last month.

But Rodriguez says that you have to think like a cop to understand why, even with his hands up and far away, the deputies were justified in shooting Flores. In his report, he makes much of the fact that Flores “transferr[ed] the knife from his right hand to his left” in those final moments before he raised his hands above his head. He calls it a clear “pre-attack indicator” and gives a long treatise explaining why “Experienced law enforcement officers are experts at reading ‘Body Language,’ but not necessarily experts at articulating what they see and/or what they see means to them.”

In the end, he compares the deputies to bullfighters and Flores to a bull that was dangerous, even if it wasn’t charging. Ultimately, like so many things in policing, it boils down to a matter of perception. As Rodriguez writes: “[A] spectator may have that perception, however, there is no question that the bullfighter perceives the bull differently than the spectator.”

A White House spokesman has characterized the story as “fake news” and stated that President Trump believes it is nothing more than a “witch hunt”.

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Trans Texans, Advocates Swarm Texas Capitol to Oppose ‘Bathroom Bills’ (Again)

Protesters gathering at the Capitol’s southern entrance.  Ignacio Martinez

Hundreds of people formed a line that snaked through the Texas Capitol’s basement early Friday, waiting to testify as lawmakers continue to push a so-called bathroom bill targeting transgender Texans.

LGBT activists and allies swarmed the Senate State Affairs Committee hearing over Senate Bill 3 and SB 91, near-identical proposals authored by Brenham Republican Senator Lois Kolkhorst that would not only bar local governments and school districts from adopting bathroom policies that accommodate transgender people, but could also block trans students from playing school sports.

Senator Lois Kolkhorst hearing public testimony regarding Senate Bills 3 and 91.  Ignacio Martinez

Kolkhorst, who championed similar measures that failed during the regular session, acknowledged that GOP lawmakers have already slogged through several grueling, hours-long hearings in their so-far unsuccessful attempts to strip local governments and school districts of nondiscrimination policies meant to shield transgender Texans.

On Friday, more than 250 people signed up to testify, and the overwhelming majority spoke in opposition. They carried signs reading “Classrooms not bathrooms” and “Don’t discriminate in the Lone Star State.” Supporters brought signs reading “It’s common sense; men shouldn’t be in showers with little girls.”

Patty Woodruff and her 16-year-old daughter, Izzy, drove four hours from Rusk to testify. Patty said Izzy, who is trans, has attempted suicide five times — an alarmingly common phenomenon that Patty said the “bathroom bill” would worsen.

“Dan Patrick should spend one day with a trans child and see if he still supports this bill,” Patty said.

Kolkhorst and supporters of the “bathroom bill” insist they’re safeguarding “dignity, privacy and safety,” despite no evidence of conservatives’ longstanding claim that nondiscrimination protections have been used as cover for sexual predators to assault women and children in public restrooms. Yet on Friday, Kolkhorst also seemed to acknowledge the debate’s culture-war overtones.

“This issue is about much more than bathrooms,” Kolkhorst told the committee. “This is about finding the balance between the right to declare your gender and the right of a parent to protect their child.”

Both bills — Kolkhorst said she filed two as a “precautionary measure” in the fast-moving 30-day special session — would mandate that restrooms, showers and changing rooms in schools or government buildings be “designated for and only used by persons of the same sex as stated on a person’s birth certificate.” That means someone like Ashley Smith, a transgender woman from San Antonio, would be required by law to use the men’s restroom.

“You know that transgender women encounter violence at a much higher level than the general public,” Smith told lawmakers. “I am scared to think about what some people will do to us if this bill becomes law.”

Rene Slataper, a transgender man from Austin, said such restrictions would “make it nearly impossible for me to do my job,” which sometimes requires work on school campuses.

“These bills would send me to the women’s restroom and locker room,” he said. “If the purpose of this is to keep men out of women’s bathrooms, with all due respect, you’re doing it wrong.”

This week’s hearing comes amid intense, multifaceted opposition, including from public officials, who say the “bathroom bills” strip communities of local control; the business community, which warns of damage to the state’s economy; and schools, which want to respectfully accommodate trans students and their families.

CEOs and top executives from more than a dozen Texas-based corporations, including American Airlines and AT&T, wrote state leaders earlier this week warning the legislation would “seriously hurt the state’s ability to attract new businesses, investments and jobs.” More than a dozen top IBM executives traveled to the Capitol to lobby hard against any “bathroom bills,” and 15 San Antonio-area school districts recently signed a letter urging lawmakers to back off.

Meanwhile, some conservative supporters have shifted their focus back to transgender kids. Before lawmakers even gaveled in the special session, Representative Scott Sanford, a McKinney Republican, said in a recent TV forum that letting trans children explore their gender identities is equivalent to “child abuse.” Some supporters who testified worried that without the new measure, schools would “encourage gender confusion.”

Ultimately, Kolkhorst’s bill passing out of committee is a foregone conclusion, as only two of the committee’s nine members are Democrats — and just one of them, Laredo Senator Judith Zaffirini, even opposes the bill. Zaffirini questioned Kolkhorst about whether forcing trans Texans into bathrooms that don’t match their appearance puts them in danger: “How can we ensure their safety?” Kolkhorst’s response: “I think that’s what we’re debating today.”

Brad O’Furey, government relations manager with Equality Texas, said Kolkhorst’s bill will almost certainly sail through the full Senate. The real question at this point is what version of the bathroom bill lawmakers think they can push through the House. O’Furey has his eye on House Bill 50, which largely mimics a “compromise” bill lawmakers considered in the regular session. HB 50 would target trans-inclusive policies only at the school district level.

While narrower, that proposal is still plenty dangerous, O’Furey said. “We’re talking about 9-, 10-, 11-year-old kids who get bladder infections because they have to hold it throughout the day, or who get singled out and ridiculed because of who they are,” he said.

Staff writer Gus Bova contributed to this report. See video coverage from the Observer’s Facebook below.

Faith Leaders Oppose “Bathroom Bill”

Faith leaders opposed to the “bathroom bill” performed a prayer at the Texas Capitol Friday afternoon, as a Senate committee listened to hours of testimony. READ MORE: https://www.texasobserver.org/round-2-hundreds-oppose-special-session-anti-transgender-anti-abortion-bills/

Posted by The Texas Observer on Friday, July 21, 2017

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