Author Archives: Michael Barajas

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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