Author Archives: Michael Barajas

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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