Disorderly Conduct Charges for Wearing Motorcycle Club Patches?

Dear San Antonio Law Enforcement:

Please Seek Training on the First Amendment

from Someone Other Than Your Chief.





Disorderly Photo.jpg


My clients’ Disorderly Conduct cases were set for trial today in San Antonio Municipal court. They were charged with Disorderly Conduct for wearing motorcycle club patches showing they were in a motorcycle club. The cases were dismissed this morning. I was disappointed. Someone needed to explain the First Amendment to the officer that issued the citation. I had hoped I would get to during cross-examination. For some reason, the licensed attorney that is running the City Attorney’s Office refuses to properly explain the law to LE in SA.

The complaint against my clients stated that they committed a crime by wearing their motorcycle club patches as follows: “defendant…intentionally or knowingly made an offensive display by wearing of gang colors or paraphernalia, in a public place and the said display tended to incite an immediate breach of the peace.”


There is a lot wrong with this charge, but here are just a few of the issues:



1.     The Right to Associate & Symbolically Express Association Via Clothing


Americans enjoy a freedom to associate, even with groups law enforcement may dislike. United States v. Robel, 389 U.S. 258, 269 (1967). The government may not sanction us based solely on our membership with an unpopular group. Id.;and Scales v. United States, 367 U.S. 203 (1961). The Supreme Court has long ruled against government action that imposes criminal sanction or denies rights “solely because of a citizen’s association with an unpopular organization.” Healy v. James, 408 U.S. 169, 185-86 (1972). This is true even if some members of the organization do engage in criminal activity. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 920 (1982).

  Wearing motorcycle club garb is protected by the First Amendment. Sammartano v. First Judicial District Court, 303 F.3d 959 (9th Cir. 2002); Piscottano v. Murphy, 511 F.3d 247, 274 (2nd Cir. 2007).


2.    The Fifth Amendment Protects Our Liberty Interest to Dress as We Please

The Fifth Amendment protects various liberty interests, including that of dress and appearance: “Regarding the existence of a liberty interest in dress and appearance….  a substantial majority of the courts considering the issue had held that such a liberty interest does exist.” Hodge v. Lynd, 88 F. Supp. 2d 1234, 1246 (D.N.M. 2000). Moreover, “[o]rdinances attempting to regulate what the general public wears, on public streets and in other public areas, have not fared well.” Hodge v. Lynd, 88 F. Supp. 2d 1234, 1243 (D.N.M. 2000) (citing DeWeese, 812 F.2d at 1369–70; see also City of Harvard v. Gaut.


3.    The First Amendment Protects Our Speech, Except for “Fighting Words”

         Now, I’m going to discuss the First Amendment protection for profane language directed at officers. My clients did not cuss out the cop. The reason I address cussing at cops is because even if my clients were wearing clothes that said “ACAB,” or the classic “Fuck the Police,” or any other insulting language, they still could not have been constitutionally prosecuted for it.

         The rights to associate and express association are sufficient by themselves to say that this charge was unconstitutional. BUT – even if we assume that the right to associate and symbolically express association didn’t cover my clients, the officer still should not have charged them with Disorderly Conduct for mere words.

         Courts across this country have correctly applied First Amendment principles to prevent the police from criminalizing those who direct language at them, no matter how hostile and abusive the language used. In the Matter of the Welfare of SLJ, 263 N.W.2d 412 (Minn. 1978) (reversing conviction for disorderly conduct for “fuck you, pigs” to police officers); Diehl v. State, 451 A.2d 115 (Md. 1982) (conviction reversed for disorderly conduct for saying “fuck you, Gavin” to a police officer); City of Bismarck v. Schoppert, 469 N.W.2d 808 (N.D. 1991) (reversing disorderly conduct conviction for saying “fucking bitching cop,” “fuck you” three times, “fuck my ass,” and “you don’t know who you’re fucking with” to the police); LAT v. State, 650 So.2d 214 (Fla. 1995) (reversing conviction for “you fucking cops, what the fuck do you think you’re doing? You are full of bullshit. This is bullshit. This is abuse,” and more directed at police); Swann v. City of Huntsville, 455 So.2d 944, 950 (Ala. Crim. App. 1984) (“this is some shit… damn you”); Ware v. City & County of Denver, 182 Colo. 177, 511 P.2d 475 (1973) (“fuck you”); People v. Justus, 57 Ill.App.3d 164, 372 N.E.2d 1115 (1978) (hysterical yelling and screaming over parking ticket); People v. Gentry, 48 Ill. App.3d 900, 363 N.E.2d 146 (1977) (stating the defendant’s presence in a neighborhood was “none of [the officer’s] fucking business”); Cavazos v. State, 455 N.E.2d 618 (Ind. App. 1983) (“asshole”); State v. John W., 418 A.2d 1097 (ME 1980) (“hey, you fucking pig, you fuckin’ kangaroo”); and my favorite State v. Hampton, 66 Ohio App.3d 30, 583 N.E.2d 400 (1990) (“just because you’ve got a fucking badge you think you can fuck with poor people…fuck you and your gun”); and more.

         I’m going to summarize the law on this, and you can read the more elaborate version below, if you like.* Simply: The police can’t arrest people for words alone. The words must be so extreme that they would cause an average person on the receiving end of words to want to physically fight and hurt the speaker. If the words are directed at a police officer, we expect police to control themselves. Words that would make a civilian want to fight the speaker cannot be criminalized if they’re directed at a cop because we hold the police to a higher standard.

More simply:


Restated again, for the cheap seats in the back, these clients could not be constitutionally criminalized for merely wearing motorcycle club patches, no matter what law enforcement thinks of them. They have a constitutionally protected right to associate and express their association. And, law enforcement can’t constitutionally criminalize mere words that aren’t “fighting words.”


Curious about why the police in San Antonio think they can get away with stuff like this? Watch this press conference by the San Antonio PD Chief of Police and the City Attorney (who should know better):


When was the First Amendment repealed in San Antonio? And, who told them they had the power to do that?


The conviction they discuss in the press conference involved a man that represented himself (and he wasn’t qualified to do so) in a bench trial (no jury of his peers), and he (unfortunately) raised no constitutional arguments during his trial. The police and prosecutor crowing about this conviction are like a pro football player bragging about how he beat up a petite woman while the rest of the team kept her from leaving the room. That’s not what you call a fair fight.


The chief claims you cannot insult a police officer in an “aggressive” way. I beg to differ. Now, if a person cussing out an officer interferes with the officer, that could be a charge (TPC §38.15), but words directed at officers are themselves protected by the First Amendment.


For an officer to legitimately claim that words directed at him were “fighting words,” he would have to state under oath that he, the cop, was about to physically fight and hurt the speaker. An officer moved to violence based on speech alone SHOULD NOT BE AN OFFICER. But, I digress.


I’m glad my clients weren’t dragged through a jury trial, but I regret that the officer wasn’t.



* Words directed at a police officer, or read by him, cannot satisfy the “fighting words” requirement to provide probable cause to arrest or cite someone for disorderly conduct. Brooks v. City of W. Point, 639 F. App’x 986, 999 (5th Cir. Feb. 11, 2016) (citing Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2008)).

The United States Supreme Court has clearly mandated that statutes that outlaw “fighting words” must be narrowly limited to punish only that which “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” Gooding v. Wilson, 405 U.S. 518, 524 (1972). The Supreme Court has referred to this protection as one that implicates one of our “fundamental societal values.” Cohen v. California, 403 U.S. 15, 24-25 (1971). Because the protection is so fundamental, the legal interpretation of fighting words statutes must be narrow and must not be used to punish protected speech so as to ensure that the freedom of expression is not harmed. Gooding, 405 U.S. at 522.

Utterances that are abusive, vulgar, offensive, harsh, disgraceful, or insulting are not qualified as fighting words merely because they are abusive, vulgar, offensive, harsh, disgraceful, or insulting, as a matter of constitutional law. The key element is that there must be an objective likelihood that the person to whom the comments are addressed would be moved to an immediate violent reaction in retaliation. Id. at 528.

Physical proximity and immediacy are important in the fighting words analysis to determine whether words were used as a non-verbal tool to provoke violence. Id at 523; and see Coggin v. State, 123 S.W.3d 82, 91-92 (Tex. App.—Austin 2003). In this way, states are permitted to criminalize fighting words, not as words, but because they carry that key non-speech element of provoking violence. R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992). Proximity and immediacy, however, do not end the inquiry because the official status of the addressee is also key.

Most Jurisdictions Expect Police to Control Themselves (Except San Antonio):

When words are uttered at police officers, the fighting words doctrine requires an even narrower interpretation. City of Houston v. Hill, 482 U.S. 451, 462 (1987); Spiller v. City of Texas City, Police Dep’t, 130 F.3d 162, 165 (5th Cir. 1997). We as a society expect police officers to be able to exercise a greater degree of restraint than the average person because the First Amendment “protects a significant amount of verbal criticism and challenge directed at police officers.” Hill, 482 U.S. at 461. Our jurisprudence narrows the inquiry with words directed at the police because of “the constitutional shield [that protects] criticism of official conduct.” New York Time Co. v. Sullivan, 376 U.S. 254, 273 (1964).

Allowing a police officer, who is the recipient of words, to then arrest and/or charge the person for those words constitutes content-based discrimination, or viewpoint discrimination, which is presumptively unconstitutional. R.A.V., 505 U.S. at 382. Courts must carefully guard against the danger that an officer may arrest someone because he felt personally insulted. Hill, 482 U.S. at 465-67 (“[…] we have repeatedly invalidated laws that provide the police with unfettered discretion to arrest individuals for words or conduct that annoy or offend them.”).

Free speech is at its most protected, “with respect to criminal prosecution for speech directed at public officials.” U.S. v. Poocha, 259 F.3d 1077, 1081-82 (9th Cir. 2001) (overturning disorderly conduct conviction for yelling “fuck you” to a police officer).


We Need a Mental Health Diversion Center in Austin

No matter what color the jail walls are painted, jail is jail, not a therapeutic setting.

Our community members with mental health problems that need treatment are currently tossed into the Travis County Jail when their mental health problems lead to contact with law enforcement for low-level non-violent offenses.

Doing the same thing over and over again, expecting a different result, is the definition of insanity. Why do we keep building jails to solve social problems that are never solved?*


Houston Should Never Be More Progressive Than Austin, But:


Since September 1, 2018, Harris County has used a mental health diversion system in Houston. You can read about it here: https://www.theharriscenter.org/Services/Our-Services/Harris-County-Mental-Health-Jail-Diversion-Program Approximately 1100 Harris county folks who would have normally been arrested for low level, non-violent, experiencing a mental health problem, have been diverted to mental health services rather than being booked into jail and charged with a crime. Harris County’s system is working.


Meanwhile, in Austin, Travis County, the community has begged the City of Austin to stop arresting those experiencing homelessness, who frequently have a mental health component, for camping and violating the no-sit-no-lie ordinance. http://grassrootsleadership.org/reports/homes-not-handcuffs-how-austin-criminalizes-homelessness


Travis county commissioners plan to spend $97 million on a new jail facility, knowing that many of those that would be populating those jail cells would be women with mental health issues. https://www.austinchronicle.com/news/2018-09-07/a-new-jail-for-travis-county/


Let’s divert some of those millions of dollars to do right by people who need help not handcuffs. (I’m stealing this phrase from Grassroots Leadership, who have championed Homes, Not Handcuffs.)


Judges Needles & Herman Are Trying to Affect Positive Change:


Travis County Probate Judge Guy Herman and District Court Judge Tamara Needles are on it. Last year, these two judges visited the Harris County facility and were inspired. Now, they are trying to figure out the details to create this type of mental health diversion facility in Travis County.

Judge Needles immediately became the chair of the Behavioral Health Advisory Committee (“BHAC”) when she took the bench in the 427th Judicial District Court. http://www.needlesforjudge.com/ When she was in private practice, Judge Needles helped some clients with mental health issues. She is now spear-heading the effort to divert people with a mental health component away from the criminal justice system and into services.


This BHAC committee is tasked with addressing the interception between mental health needs and county programs. https://www.integralcare.org/wp-content/uploads/2017/10/2015-Updated-SIM-Report-Final.pdf


BHAC has run the numbers, concluding that the Harris County mental health diversion program would be a good fit for Austin, Travis County.


Monday, June 3, 2019, stakeholders met at a BHAC meeting to discuss this possibility. The stakeholders include Integral Care, Central Health, Austin Police Department, Travis County Sheriff’s Department, Travis County Attorney, Travis County District Attorney, Seton Hospital, and, of course, Travis County itself – including County Judge Eckhardt.


During the June 3rd meeting, a Harris County prosecutor Denise Onken, and the gentleman that runs the mental health diversion program Tom Mitchell, explained to the Travis County stakeholders how the Harris County program works and why it works.


In Harris County, there is an average police officer drop off time of 11 minutes. This means that starting with the officer’s contact with the person with a mental health issue and ending at the time the officer drops off the person at the mental health diversion center, the officer spends 11 minutes. That officer is then freed to answer other emergency calls instead of stuck at the jail filling out paperwork.


This is significantly less time than it would take an officer to book a person into jail.


The average stay for a person that was diverted to the mental health diversion center in Harris County is 14 days, though some have stayed up to 28 days. While they are there, they are connected to social workers, programs, and medical treatment (setting broken limbs, is but one example). They typically have between 28/35 beds occupied at the Harris County facility. It would likely be less, given Austin/Travis’s relative size, should the program be implemented here in Austin.


You Don’t Even Have to Build It – Health South Rehabilitation Hospital Is Vacant:


There is actually a perfect building available in downtown Austin for just such a facility – the old Health South Rehabilitation Hospital. It is currently vacant. It is huge. And, it would be great for both a mental health diversion center and to help alleviate some of Austin’s bed-shortage for those experiencing homelessness (separately from the mental health diversion center). It just so happens to be across the street from the new Sobering Center, which diverts public intoxication arrestees from jail to someplace they can sober-up and avoid a criminal charge and being booked into jail. You can read about the Sobering Center here: https://soberingcenter.org/ 


Jail Doesn’t Solve Problems – Let’s Use Our Brains & Try Diversion Programs:

This is the era of diversion in our part of Texas. We are diverting people away from the county courts for offenses like driving while license invalid. https://www.austinchronicle.com/news/2018-09-21/how-to-jail-the-poor/


We are diverting people away from jail with cite-and-release programs for offenses like possession of misdemeanor amounts of marijuana. https://www.austinchronicle.com/daily/news/2009-02-24/746307/


Existing Policies & Programs Need to Be Beefed Up:

There are existing programs in place that defer clients to mental health support in lieu of jail. There is a Gevene Jail Diversion program with a mental health facility for clients in need of shorter-term stabilization. Officers in Austin can take clients to the Guy Herman Center after they are placed on a psychiatric hold. These existing programs have limited beds. The need is greater than the current capacity.


Travis County also has an Expanded Mobile Crisis Outreach (EMCOT) team that responds to mental health crises alongside first responders. This is dispatched at the police officer’s discretion. The purpose is to provide an appropriate response and follow up after an acute mental health crisis. The use of that program is limited by the police officers’ choice to use it. The City of Austin is unfortunately quite behind on its approach to mental health crisis response. In a September 2018 Office of the City Auditor, City of Austin, Audit Report, the City identified that Austin Police Officers are not following the best practices in dealing with mental health crises and APD is failing to measure its own successes/failures in dealing with mental health emergencies. The best approach to mental health crises is called the “Memphis Model,” but the Austin Police Department is not fully following the model. People experiencing a mental health crisis are more likely to have a negative encounter with police as a result. You can read the Auditor’s report here:  http://www.austintexas.gov/sites/default/files/files/Auditor/Audit_Reports/APD_Response_to_Mental_Health_Related_Incidents__September_2018.pdf


Show Travis County Your Support for a Mental Health Diversion Center:

Travis County’s claim to progressive politics is perhaps finally catching up to its public policy. After decades of attempting to criminalize-away social problems, perhaps we are all finally realizing that jail does not solve our problems. Prohibition did not solve alcoholism. The War on Drugs did not solve drug addiction. It is time for new approaches: A Sobering Center to divert the inebriated away from a criminal record, and a Mental Health Diversion Center to divert those who need our help not handcuffs.


In Houston, people experiencing a mental health issue get diverted away from jail and charges to connect them with services, while in Austin, they get booked into jail. Shame on us. Let’s do better.


Share this blog if you believe we CAN do better.


*They’re talking about building a new $97 million women’s jail facility. Why men and women have different “jail needs,” I’m not exactly sure. Any argument that they do may rise to the level of an Equal Protection violation. Jail does not, and cannot, satisfy any needs for either gender. You can read more about the fancy new place to lock women away from society here: https://www.austinchronicle.com/news/2018-01-26/travis-county-plans-new-womens-jail/




Vote for Person, Not Party, for Travis JP3. Vote Sylvia Holmes.

Between Sylvia Holmes & Martin Harry – Vote for Holmes for Travis Justice of the Peace, Precinct 3


Sylvia Holmes defeated incumbent JP3 Judge Steeg earlier this year, and for good reason.  Holmes has a more progressive view of being a judge than Judge Steeg, who developed robe-itis.  You can read about the Austin Chronicle’s endorsement of Holmes here: https://www.austinchronicle.com/news/2018-02-16/jp-pct-3-a-generational-challenge/


Martin Harry is running for JP3 as a Republican.  I heard a radio advertisement for him this last week.  He is claiming to be the only ethical candidate for that race, stating that because Holmes has taken attorney contributions for her campaign, she is unethical.


This is pretty funny.  Every lawyer in Texas contributes to judges’ campaigns. 


It is also funny because Martin Harry was disbarred from taking cases in front of the Social Security Administration for refusing to return money after he was overpaid.   


Harry represented social security claimants for more than 17 years.  The Social Security Administration noticed that Harry had been overpaid as their lawyer.  The Social Security Administration requested that Harry return the over-payment. 


Harry had been overpaid for years.  He refused to return the money that should have been going to social security beneficiaries.  The Social Security Administration gave Harry four options: 1) repay the money he did not have a right to keep, 2) provide evidence that he had already repaid it, 3) prove that the Administration was wrong about the over-payment, or 4) be sanctioned with disqualification from representing social security beneficiaries.


Harry failed to do the first three, and he was sanctioned with disqualification from representing people in front of the Social Security Administration.  Martin Harry attempted to fight the disqualification, claiming that it prevented him from making a living.  The Fifth Circuit held that Harry had a sufficient chance to contest the disqualification and upheld the disqualification ---- right before Harry decided to run for JP3.


You can read the Fifth Circuit’s decision here: https://cases.justia.com/federal/appellate-courts/ca5/15-50567/15-50567-2016-03-10.pdf?ts=1457656237


Sylvia Holmes has significant experience with small claims and misdemeanors (as an attorney), and has been giving UT students legal advice as the Associate Director of Legal Services for Students at the University of Texas.  She will make a fantastic Justice of the Peace.


Why Party Doesn’t Matter in Judge Races:

If you’re inclined to vote straight-ticket Republican, hear me out.  Party identification has no real correlation to a judge’s behavior while on the bench. 


It was a Republican JP in McLennan County that set identical $1 million bonds for 177 motorcyclists arrested in 2015 to “send a message” when bond is constitutionally required to simply ensure the accused’s appearance in court, not to be used as an instrument of oppression


The fairest district court judge in the Williamson, Travis, Hays County area is a Republican in Hays County (J. Henry), not a Democrat in Travis. 


And, there are many Republican judges on Travis County benches, only they ran as Democrats because they couldn’t get elected as Republicans.


Vote for the right person, not the party.  And, for Travis JP3, that’s Sylvia Holmes.  http://www.sylviaforjp3.com/about-sylvia-holmes.html

Opening Our Second Office: Hays County / Dripping Springs

The Law Office of Millie L. Thompson is officially expanding into Hays County, Texas.

I have worked in Hays County for years now, but my principle office has always been in downtown Austin. This month, we have added an office location in booming Dripping Springs.

If you live in Hays, Blanco, or Burnet County or in southwest Austin, set an appointment to speak with me in Dripping Springs and avoid the Austin traffic!

Keep the Courthouse Doors Open to Poor People, Please, Texas Supreme Court.

The Texas Supreme Court heard oral argument on an important case affecting access to the courts for people without money, Campbell, et al. v. Thomas Wilder, Tarrant County District Clerk, at 9:00 a.m. this morning.  The crux of the case is this: Whether the Tarrant County District Clerk can assess costs of court against people who filed affidavits of indigency with the clerk.  The Justices had some interesting questions for the attorneys.  I summarize the issues in the case below, the significant public policy interests at stake, and give you my opinion.


Court clerks maintain court records, and they make sure that people pay for utilizing the courts.  Court clerks oversee case files.  And, court clerks send out notices to people involved in lawsuits about their court dates and whether they owe money to court. 

Procedurally, if you (a pro se litigant who does not have an attorney) want to sue someone because they owe you money or to stop them from doing something, you go to the clerk of the court with your lawsuit papers, and you hand them those papers to file along with a check for the filing fees.  In Travis County, for example, it costs about $300 to file a lawsuit in district court, and you can view the various fees here

Divorce is a type of lawsuit.  Divorce is the number one type of lawsuit that people file without hiring a lawyer.  The Supreme Court of Texas has put out some standard forms for pro se (or, people without attorneys) litigants looking to get a divorce, keeping in mind the reality that many people cannot afford to hire an attorney to end a marriage.  You can find those forms here.

Married couples that want a divorce do not have to stay married if they are broke.  Even though the clerk of the court has a fee list, and is supposed to charge $X to file for divorce, if the married couple is indigent, the clerk is supposed to waive those fees.  Texas Rule of Civil Procedure 145 provides a way for people without money to access the courts.  A person that cannot afford to pay court costs fills out a form outlining their bills, debts, and income.  If that form demonstrates that the person is indigent, then the person can still file a lawsuit, but without having to pay the clerk any money.  Indigent just means that the law recognizes you cannot afford to pay for the lawsuit.  Here is an example.

In the Campbell v. Wilder case, Tarrant County accepted indigent affidavits from people who filed for divorce.  The fact that the people were indigent was not contested.  The people then got divorced.  In the final judgment, the standard form paperwork would include a statement that the parties would pay their own costs.  


Based on that “husband will pay his costs, and wife will pay her costs” language, the Tarrant County District Clerk – Thomas Wilder – started sending out debt collection letters to divorcees that had filed affidavits of indigency.  Meaning – Husband filed for divorce and swore to the clerk that he had no money (or that his income did not match his expenditures such that he could not pay for the costs).  Clerk accepted that affidavit and allowed Husband to file for divorce without paying the costs.  Husband and wife divorced and stopped being husband and wife.  Then – because of the boilerplate language on the judgment that they would be responsible for their costs, the Clerk sent out “Clerk’s Certification of Payment Default” letters to former husband and wife.


In the “Clerk’s Certification of Payment Default” letters (and one was used as an exhibit for oral argument this morning that you can view here), the divorcees were told that their property would be seized by the sheriff if they didn’t pay for their court costs – court costs that the State of Texas says they don’t have to pay because they were indigent when they filed for divorce. 

Some of the people who received these debt collection letters thought they were going to be jailed if they didn’t pay.  These letters went out months after the divorces, and in some cases were sent years after the people got their divorces.  You can read about them here in the Plaintiff’s brief.

The Tarrant County District Clerk, Thomas Wilder, argued that these notices were perfectly appropriate because it is the clerk’s job to give effect to a judge’s order.  And, the orders in these cases said that the parties would be responsible for their costs.  In none of the cases, however, had the parties been found to be able to afford any costs – the affidavits of indigency had not been contested.  The language in the judgments was just standard form language – without a specific finding that the parties could afford the costs.

MANY letters were sent to indigent divorcees by the Tarrant County District Clerk, Thomas Wilder.  And those divorcees sued to enjoin Mr. Wilder from collecting this debt because it is a debt that does not exist.  The indigent litigants also sought mandamus and declaratory relief.  Basically, they asked the courts to tell Mr. Wilder to stop shaking down poor people for costs that Texas law says they don’t owe.

The Clerk argued successfully in the court of appeals that injunctive relief was inappropriate because the indigent litigants did not file in the right court.  They were supposed to challenge the costs in the trial court that entered the judgment.  Because, argued the Clerk, they filed their suit in a different court, they could not get injunctive relief.  The Clerk's attorney admitted, however, that mandamus and/or declaratory relief was available regardless of which court the suit was filed in.  The problem with mandamus and declaratory relief is that the Clerk wouldn't be prohibited from continuing to send out the debt collection letters.  Injunctive relief, on the other hand, would prevent Mr. Wilder from sending any more of these letters to people that had a valid affidavit of indigency on file.

Lee DiFilippo originally filed the lawsuit, and was responsible for building the record.  Lee has nurtured this case like it is her flesh-and-blood baby.  She is completely committed to access to justice for people who lack money (and that is what a poor person is – just a human being without cash).  Lee’s own practice involves providing limited scope legal services for people who need some guidance from a lawyer, but can’t afford a full retainer.  Former Chief Justice Wallace B. Jefferson handled oral argument in favor of the indigent litigants in front of the Supreme Court this morning. 

Justice Guzman asked many interesting questions, pointing out to the Clerk’s lawyer that she herself had once been a family court judge.  Justice Guzman made the point that if one is indigent, even if the divorce decree says that the parties pay their own costs, nothing would be owed – because of Rule 145.  If there is an uncontested affidavit of indigency on file, no costs are owed. 

The Texas Supreme Court can hold that injunctive relief is appropriate in this case, the trial court had subject matter jurisdiction, and remand the case for a full trial on the issue of whether the Tarrant County District Clerk should be stopped from hustling money out of poor people.  The Court of Appeals ruled against the indigent litigants on this point, with a conscientious dissenting justice that explained that what the Tarrant County District Clerk is doing “locks the courthouse door for thousands of indigent parties in Texas who need it the most.” Wilder v. Campbell, 430 S.W.3d 474, 485 (Tex. App.--Fort Worth 2014, pet. obviously granted), which you can read here.

At one point, a justice inquired whether other clerks were doing this in other counties.  Former Chief Justice Jefferson stated that he did not know.  You can find the Texas Tribune's account here.  

I think if Tarrant County is doing this, there has got to be other Texas clerks out there who see budget shortfalls and try to shake money out of indigent litigants.  There is no way Tarrant County is the only one, out of 254 counties.  Rule 145 is incredibly important.  Imagine a world where you are only allowed to file for divorce if you have money.  Imagine the number of people who would separate and never be able to get married again because they’re still married to the asshole they left 25 years ago!

There is already a significant justice gap in Texas, meaning that there is a large number of people who work, are not considered to be in poverty, but cannot afford to pay for an attorney.  I would include myself in that category – there is no way I could scrounge $7,500-$10,00 for an attorney right now, given my student loans and fluctuating income.  I’m not indigent.  But I would have to handle any sort of litigation pro se.  Lucky for me I have legal training.  Most do not.

Given the already large number of people who cannot afford an attorney, closing the courthouse doors to poor people entirely is absolutely unconscionable.  After all, poor people are just people without cash.  Forcing them to stay married, even to abusive spouses (yes, there were people who divorced abusive spouses who received Wilder’s debt collection letters), is ridiculous.  I trust that the Texas Supreme Court will do the right thing in this case to keep those courthouse doors open, and send a message to Wilder and any other clerk who has the same bright idea.

Finally, for those of you who vote: Please pay attention to local elections.  The clerks in your county have a hell of a lot more power than you think, and they have more of a real day-to-day impact on your community than does the President.  Most people don't even know the local judges' names, let alone the clerks.  Those local elections - in many ways - are more important than national elections.  See for example - everyone's favorite clerk in Kentucky.  

Letter to Representative Eric Johnson on the Unconstitutionality of House Bill 1035.

Representative Villalba's Bill that would criminalize people who filmed police within 25 feet was quickly quashed by a massive outpouring of constitutionally generated condemnation.  Representative Johnson's Bill on filming the police seemed a little more reasonable.  What's wrong with a police officer telling someone to change his location?  Antonio Buehler and I testified in the public comments hearing against House Bill 1035, that would require filmers to obey police officers before they could avail themselves of their First Amendment right to film the police.  Below, I have cut-and-pasted my letter to Representative Johnson.  I did not fix the 6 typos I saw after I sent the letter - I'm keeping it 100...




401 Congress Ave., Ste. 1540

Austin, Texas 78701


Facsimile (512) 682-8721

Email: millieaustinlaw@gmail.com


April 27, 2015


HB 1035: Concerns Regarding its Constitutionality



Texas State Representative Eric Johnson

District 100

1409 S. Lamar Street, Ste. 9

Dallas, Texas 75215

(214) 565-5663

By Email to: eric.johnson@house.state.tx.us

CC: hannah.alexander@house.state.tx.us

CC: ana.rodriguez@house.state.tx.us

CC: allen.fletcher@house.state.tx.us

CC: dawnna.dukes@house.state.tx.us

CC: linda.koop@house.state.tx.us

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Dear Mr. Johnson,


Pursuant to discussions with your Policy Analyst, Ms. Hannah Alexander, I put together my concerns about House Bill 1035.  You will find an outline of the Constitutional problem with conditioning a First Amendment right on obedience to a police officer.   You will also find a discussion on how our Fourth Amendment right to be free from unreasonable seizures is implicated.  Given your stated goal of educating the public and police about the right to film, I offer some alternative proposed language for Texas Penal Code Section 38.15.  Thank you for being open to our input.


Briefly, about me: I am a criminal defense lawyer, whose practice spans most of the state of Texas.  Specifically relevant to HB 1035, I represent activist clients charged with interfering with a police officer under Texas Penal Code 38.15, who were filming the police, with cases pending in both Houston and Fort Worth.  I represent Antonio Buehler, who has been targeted by the Austin Police Department for filming them.  I have tried cases to juries where my clients were charged with disobeying a police officer under municipal codes in both Austin and Houston.



A summary of the problems with the proposed amendment to Texas Transportation Code 542.501:


The original proposed amendment to Texas Transportation Code, Section 542.501 provides:

(b) Subsection (a)(1) does not apply to an order or direction to cease filming, recording, photographing, documenting, or observing a peace officer while the officer is engaged in the performance of official duties. An officer may give an order or direction to change a person’s proximity or position.

The words "reasonable and lawful" were inserted into a new draft.  Despite the changes, this Bill is not a valid time, place, or manner restriction on our First Amendment rights.  Because it authorizes police officers to arbitrarily order people to move in a public forum – where we have a First Amendment right to be, it gives officers too much discretion.  The proposed change to 542.501 is (a) unconstitutionally void for vagueness, (b) gives police unbridled discretion to violate First Amendment rights, and (c) it allows for suspicion-less seizures contrary to established Fourth Amendment jurisprudence.

The amendment to Texas Penal Code, Section 38.15(c) provides that it is a defense to prosecution for interfering that “the conduct engaged in by the defendant […] consisted only of filming, recording, photographing, documenting, or observing a peace officer and if lawful orders by a peace officer to change proximity or position were obeyed.”

Texas Penal Code, Section 38.15(d), however, already provides a defense to prosecution that the interference was “speech alone.”

Because HB 1035 distinguishes between the co-equal First Amendment rights to speak in 38.15(d) and gather information in 38.15(c), it must “be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.”[1]

During public comment on HB 1035, it was stated that this Bill does not create new law, but instead is intended to inform the public and police about the right to film.  No substantial state interests were uttered that would justify treating speech and filming differently.  No substantial state interests were uttered that would justify authorizing police to arbitrarily decide who gets to stand where in a public forum.

Below, I go through the law.  Second, I give some experientially based scenarios regarding how police view these situations on the ground.

First Amendment Law: Filming is Speech.

Filming is speech.  The First Amendment equally protects A) our right to assemble in a public forum, B) speak on a matter of public concern, and C) receive and gather information.[2]  Filming falls under the ‘receive and gather information’ right.[3]  Without the right to appear in a public forum and gather information, the right to speak would be meaningless – we would have nothing interesting to say. 

Police conduct is almost per se a matter of public concern. [4]

A public sidewalk is a traditional public forum.[5]  The government’s ability to restrict speech in traditional public fora is strictly limited.[6]  The government may, however, impose reasonable time, place, or manner restrictions if and only if 1) the restrictions are justified without reference to the content of the regulated speech, 2) the restrictions are narrowly tailored to serve a compelling governmental interest, and 3) they leave open ample alternative channels for the exercise of First Amendment rights.[7]

Here, HB 1035 is not content neutral – by definition, a person observing and filming the police is in a public forum in order to film the police.  Police conduct is the content.  The Bill begins with “relating to criminal offenses involving the filming, recording, photographing, documenting, or observing of a police officer.”  Clearly, the Bill is targeted at the First Amendment right to gather information on the police.  HB 1035, therefore, is not content neutral.

A law is void for vagueness when it gives law enforcement unbridled discretion.

As a matter of Constitutional law, legislation cannot be amorphous,[8] but instead must be calculated to inform ordinary people how to conform their conduct to the law.[9]  Clearly defined traffic laws, allowing the police to regulate traffic flow, do provide the requisite level of notice to the public.[10]  When, however, a legislature fails to set reasonably clear guidelines for law enforcement officials and triers of fact to prevent “arbitrary and discriminatory enforcement” of the law, the statute is unconstitutionally void for vagueness.[11]  When a law permits “selective law enforcement, there is a denial of due process.” Id.

The proposed change to 542.501 gives police unbridled discretion to order people to move in a public forum, unrelated to traffic control.  The statute gives no guidance to law enforcement on how to conduct themselves, nor does it give the public notice of what is and is not a crime.  Instead, it is left to individual police officers in the field to create law in the moment by giving orders to change position or proximity.  Courts have roundly rejected police officers’ attempts to criminalize protected speech by using discretionary charges.[12]

Please take particular note of City of Houston v. Hill, 482 U.S. 451 (1987).  The Supreme Court rejected a municipal ordinance because it “effectively grant[ed] police the discretion to make arrests selectively on the basis of the content of the speech,” which the Court found “particularly repugnant.”  The Court explained that our freedom to “verbally oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Hill, 482 U.S. at 462-63; see also Mesa v. Prejean, 543 F.3d 264 (5th Cir. 2008). 


Fourth Amendment jurisprudence requires a police officer to reasonably believe a person has, is, or will commit a crime before seizing him.

A person is seized “when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement.”[13]  An officer can even unintentionally seize someone for Fourth Amendment purposes: “an unintended person … [may be] the object of the detention, so long as the detention is willful and not merely the consequence of an unknowing act.”[14]  To determine whether law enforcement has seized someone, we ask whether “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Id. (citation omitted).  When an officer exercises such control over the situation that a reasonable person would not feel free to refuse, then a seizure has occurred. See Id

Police cannot seize people without reasonable suspicion to believe that they are committing a crime, with some notable exceptions.[15]  “Absent reasonable suspicion, officers may conduct only consensual” encounters with civilians.[16]  A police officer has reasonable suspicion to believe a person has, is, or will commit a crime if and only if the officer can “point to specific and articulable facts which, taken together with rational inferences from those facts,” lead the officer to reasonably think the person has, is, or will commit a crime.[17]  Reasonableness is evaluated objectively, not subjectively.  The officer’s subjective belief is irrelevant. Id.

The proposed change to 542.501 ostensibly gives law enforcement the right to order people around absent reasonable suspicion to believe they are committing a crime.  Such orders are seizures – reasonable people would not believe they could defy the police officer with impunity.  While the police have an established ability to direct traffic for the clearly compelling governmental interest in public safety on our roadways, there is no constitutionally permissible authority to regulate our position on an otherwise available public sidewalk.[18]

Making the right to film conditional upon obedience to police ghettoizes the right to film.

Further, the fact that the Bill makes a First Amendment defense of filming conditional upon submission to police authority, demonstrates an intention to restrict activists who film the police.  There is already an established defense to prosecution in 38.15(d) that says that it is a defense to prosecution that the alleged interference constituted speech alone. 

Filming is speech.  Separating out the act of filming from the established First Amendment defense in the statute, ghettoizes filming.  Because filming is a co-equal to the First Amendment right to speak, the proposed amendment “diminish[es] the credibility of the government’s rationale for restricting [filming] in the first place.”[19]  “Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.”[20]  

Why is it an unconditional defense to prosecution that the interference constituted speech alone, but the proposed filming defense is conditional upon obedience to police authority?  Notably, there were repeated references to “frivolous lawsuits” during opening of public comments on HB 1035.  It strains credulity that this Bill isn’t directed at activists who film the police.

HB 1035 is not content-neutral.

“When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.”[21]  Further, “[s]elective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.”[22]

Here, the Bill authorizes police officers to tell filmers to move, and conditions a First Amendment right on obedience to that police officer.  First, a filmer who films police wants to gather information about police.  The police officer, who is ostensibly given unbridled discretion to order the filmer to move, is himself the content.  There is a clear conflict of interest in giving an officer discretion to tell someone to change positions in a public place when that officer is himself the subject of the filmer’s First Amendment protected interest.  There is a grave conflict of interest in giving a police officer the ability to destroy a First Amendment defense to prosecution by merely giving the filmer an order.

Second, 38.15(d) provides a defense to the charge of interference that the alleged interference is speech alone.  That defense is not conditioned upon any obedience to a police officer.  HB 1035 separates filming from speaking in a way that is not supported by any First Amendment jurisprudence.  There is no stated reason why the right to film is conditional, but the right to speak is not. 

No police officer thinks he’s unreasonable.  HB 1035 does not define a “lawful order” consistent with Fourth Amendment jurisprudence.

I see the words “reasonable” and “lawful” included in the proposed changes to 38.15(c) and 542.501.  The practical problem with these words is this: Police officers all think they’re reasonable people!  They wouldn’t dream of giving unreasonable orders. 

Likewise, police see the word ‘lawful’ and believe it means that their order is good so long as it does not require the subject to commit a crime.  In fact, I have had lawyers approach me and ask what a “lawful order” is (since the Antonio Buehler trial).  They assumed it merely meant that the officer didn’t order the person to commit a crime.  I then had to explain that a lawful order also complies with the Constitution.  Most lawyers, judges, and police officers do not automatically consider the Fourth Amendment implications of orders unless there is some evidence to be suppressed. 

As explained above, once a person feels that they have to comply with an order, they’ve been seized.  If there’s no reasonable suspicion for that seizure, it is an illegal order.  Police officers don’t make these connections.  Because they don’t automatically connect their Fourth Amendment training to the orders they give in the field, police officers cannot be expected to exercise restraint when they see the amended language in 542.501.  Law enforcement will interpret that language to mean that they can order anyone to move, and so long as they don’t order the person to commit a crime, the order is sanctioned under Texas law.  As such, the amendment will in fail in the stated goal of educating law enforcement on the public’s rights.  Law enforcement will be better off with additional training in the Fourth Amendment.  Further, civilians would have no idea what the law is until they are ordered to comply with an officer’s discretionary view of where it is appropriate for the person to stand.  The proposed amendment is therefore void for vagueness.

Austin Police Department created a game-of-gotchya that HB 1035 would codify.

Antonio Buehler was illegally arrested for photographing and verbally expressing disapproval of APD officers’ treatment of a defenseless woman.  He found himself facing serious felony charges for allegedly spitting on the officer he verbally challenged.  A passerby’s i-phone video of the events and a 7-11 surveillance camera provided sufficient evidence to ensure that Mr. Buehler was not indicted by the grand jury on the spit-related felony charge.  And, the video evidence was key in proving to a jury that Mr. Buehler did not disobey a lawful order to put his hands behind his back, since the officer didn’t have reasonable suspicion to believe Mr. Buehler had committed a crime.


In response to the charges, Mr. Buehler – a Westpoint graduate, Veteran (tours in Kosovo and Iraq), MBA from Stanford, and MA from Harvard – formed a grassroots activist organization called Peaceful Streets Project (“PSP”).  PSP encourages citizens to film the police in order to discourage police misconduct and provide exculpatory evidence for people wrongfully charged with crimes, like Mr. Buehler.  Mr. Buehler and other PSP members began going on ‘cop-watches’ to film the police in public, in 2012. 


In response to this activism, APD formulated a policy that played out as follows:


1)   Officers were told they could not tell people not to film, but

2)   They could tell people to move their location based on geographical markers, and

3)   After the officers had twice requested that the person move to a different geographical location, the officers could then arrest the person for interfering under Texas Penal Code 38.15.


APD officers would engage in a game-of-gotchya with Mr. Buehler wherein the officers would give Mr. Buehler arbitrary orders to move his location, and then arrest him when he either challenged their authority to tell him to move, or if he didn’t move fast enough to suit them.


Before his arrest on September 21, 2012, Mr. Buehler sought to film a DWI stop.  He stood on a public sidewalk.  The police officer handling the DWI investigation told Mr. Buehler to “move back.”  Mr. Buehler asked “how far?”  The officer responded, “until I tell you to stop.”  Another APD officer arrived at the scene, and ordered Mr. Buehler to move forward – toward the DWI investigation.  When Mr. Buehler told the officer that he was leaving, the officer arrested him.  Mr. Buehler was charged under Austin Municipal Code Section 9-4-51 – for failing to obey an order of a peace officer.  This absurd exchange was captured on video.  The case was dismissed.  He beat the rap, but not the ride.


Police officers who do not want to be filmed will use HB 1035 to justify ordering filmers to move to places where they cannot capture video.  And, if the filmer has a healthy sense of his own constitutional rights, officers will not hesitate to arrest filmers that refuse arbitrary orders to move.  There is no significant governmental interest in codifying a game-of-gotchya when it was clearly stated that this Bill does not create new law, but is instead intended to educate the public and law enforcement. 


Police officers are trained on constitutional principals and swear to uphold the constitution.  Most people who film the police have a healthy sense of their own constitutional rights.  Given the reality of police training in constitutional rights, and the public’s increasing desire to film the police, there is no compelling reason to make HB 1035 law.


That said, however, the following proposed language for 38.15(d) would send a clear message that we have the right to film police in a public place:


It is a defense to prosecution under this section that the interruption, disruption, impediment, or interference alleged consisted solely of exercising First Amendment rights, including but not limited to speech or filming in a public place.



Thank you again for being open to comments and suggestions.  Please contact me if you have any questions.





                                                      Millie L. Thompson



[1] Carey v. Brown, 447 U.S. 455, 461-62 (1980). 

[2] de la O v. Hous. Auth. Of El Paso, 417 F.3d 495, 503 (5th Cir. 2005)(citing Perry Ed. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 45 (1983)).

[3] Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).

[4] See Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001).

[5] Frisby v. Schultz, 487 U.S. 474, 480 (1988).

[6] McCullen v. Coakley, 134 S.Ct. 2518, 2529 (2014).

[7] McCullen, 134 S.Ct. at 2529.

[8] Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

[9] Kolender v. Lawson, 461 U.S. 352, 357 (1983).

[10] See Frye v. Kansas City Mo. Police Dep’t, 375 F.3d 785, 791 (8th Cir. 2004).

[11] See Smith v. Goguen, 415 U.S. 566, 573-576 (1974)(“the most meaningful aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine – the requirement that a legislature establish minimal guidelines to govern law enforcement”).

[12] See, e.g., Norwell v. City of Cincinnati, 414 U.S. 14, 16 (1973) (per curiam) (reversing disorderly conduct conviction because “one is not to be punished for nonprovocatively voicing his objection to what he obviously felt was a highly questionable detention by a police officer”); Swartz v. Insogna, 704 F.3d 105, 110–11 (2d Cir. 2013) (finding no probable cause for disorderly conduct arrest because statements and gestures critical of police were protected speech); Wilson v. Kittoe, 337 F.3d 392, 401 (4th Cir. 2003) (finding no probable cause to arrest for obstruction when plaintiff spoke to officer and observed arrest of another from his own driveway because “inconvenience cannot, taken alone, justify an arrest under the Obstruction statute”); Payne v. Pauley, 337 F.3d 767, 777 (7th Cir. 2003) (finding that arguing with a police officer, even if done loudly using profane or offensive language, will not alone constitute disorderly conduct); Johnson v. Campbell, 332 F.3d 199, 213 (3d Cir. 2003) (finding no probable cause to arrest when words to officer were protected by First Amendment, even if unpleasant and insulting); Enlow v. Tishomingo County, 962 F.2d 501 (5th Cir. 1992) (finding no probable cause to arrest for interference with raid when plaintiff asked officer two questions and took a photograph of the raid in progress); Gainor v. Rogers, 973 F.2d 1379, 1387–88 (8th Cir. 1992) (finding arrest not supported by probable cause when plaintiff, “merely exercising his First Amendment rights,” expressed a religious message and challenged police officers’ actions).

[13] Brendlin v. California, 127 S.Ct. 2400, 2405 (2007) (citations and quotation marks omitted).

[14] Id. (citations and quotation marks omitted).

[15] See Brendlin, supra

[16] St. George v. State, 237 S.W.3d 720, 726 (Tex. Crim. App. 2007).

[17] Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997).

[18] Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).

[19] Johnson v. Minneapolis Park and Recreation Board, 729 F.3d 1094, 110 (8th Cir. 2013) (citation omitted).

[20] Brown v. Entm’t Merch. Ass’n, __U.S.__, 131 S.Ct. 2729, 2740 (2011).

[21] Carey v. Brown, 447 U.S. 455, 461 (1980).

[22] Id. at 463 (citation omitted).

Austin Police Department's Civil Rights Violation Costs $1 Million

By: Jermaine Hopkins & Millie Thompson


Carlos Chacon sued the City of Austin and Austin Police Department Officers Eric Copeland and Russell Rose for their use of excessive force against him.  His attorney, Broadus Spivey, filed the case in Federal Court, pursuant to 42 U.S. Code § 1983 - Civil action for deprivation of rights.  On Thursday evening, March 5, 2015, a jury of 12 decided the case in Chacon’s favor.  Chacon was awarded $1,000,000.00 in damages.  We discuss the case, the legal process, important details of the trial, and how APD's brass inconsistently treats dishonesty by police officers.


Facts of the Case:

Chacon sued based on damages sustained at the hands of APD Officers Rose and Copeland.  Chacon called 9-1-1 as a victim of a crime, informing the 9-1-1 operator that he paid for a massage but the woman offered sex, and when Chacon went to leave, a man began kicking the motel room door, yelling at him.  After he made the first 9-1-1 call, the same man threatened to kill him and reached into his shorts as if grabbing a gun.  Chacon entered his silver BMW, began driving around, and again called 9-1-1 to report the threat. 


En route to the motel, the 9-1-1 dispatcher twice explained to the responding APD officers that the suspect was a ‘black male’ in a white shirt, black hat and black shorts, with a gun, and that the complainant (victim) – Chacon – was driving his silver BMW.  There was no record of any other 9-1-1 calls being placed regarding this incident, other than Chacon’s two.


When the officers arrived at the motel, Officer Rose inexplicably asked an African American male matching the description of the suspect if he had called about a gun.  The male immediately replied in the negative, but instead said that there was a drunk guy driving around in a silver BMW.  The African American male claimed that he himself had called 9-1-1, about the drunk guy. 


Chacon approached, driving his vehicle, and Officer Rose immediately drew his gun and pointed it at Chacon – the victim who had called 9-1-1.  Rose didn’t identify himself as a police officer.  Rose ordered Chacon to show his hands, and Chacon responded: “I don’t have a gun, he’s the one.”  Officer Copeland joined Rose and then drew his gun, pointing it at Chacon.  When the officers yanked Chacon from the vehicle, Chacon tried to again calmly explain that he was not the one with the gun.  Rose and Copeland wrestled Chacon to the ground, giving conflicting commands, and Copeland punched him in the face twice, causing a cut above Chacon’s eye.  Then, Officer Rose tased Chacon.  Chacon was arrested for resisting arrest.  That resisting arrest case was dismissed.

You can find the dash-cam video/audio here.



Procedural History of the Federal Civil Rights Case:

Officers Rose and Copeland tried to have the case tossed on qualified immunity grounds, arguing that they were immune from suit because they were acting properly in their official capacity as police officers.  On May 21, 2013, Federal District Judge Sparks issued a ruling denying the City of Austin’s Motion for Summary Judgment in Chacon’s lawsuit.  In his ruling, Judge Sparks pointed out Rose’s “obvious post-hoc explanation for his behavior, and is completely discredited by his actions as captured by his own dashboard camera…  The Court therefore disregards Officer Rose's explanation, and instead defers to the video evidence, which clearly contradicts his affidavit's claim.”  Rose, a white officer, to-date has not been terminated or disciplined for dishonesty.


On March 2 and 3, 2015, Chief Acevedo was provided with information regarding the dishonest and rehearsed testimony given under oath by Rose, Copeland, and Smith.  To date, Chief Acevedo has not responded to that information.


Both the district court and Fifth Circuit Court of Appeals refused to dismiss Chacon’s case against the two officers.  In the officers’ interlocutory appeal (meaning that they didn’t have to wait for a jury to hear the case before they could appeal on the issue of immunity from suit), the Fifth Circuit had to decide whether there was a factual dispute regarding whether the police violated an actual constitutional right, considering 1) the severity of the crime at issue, 2) whether Chacon posed an immediate threat to the safety of the officers or others, and 3) whether Chacon actively resisted arrested or attempted to flee. 


The Fifth Circuit reasoned that the video of the assault did not entirely confirm the officers’ version of events, nor did it entirely refute Chacon’s version.  Notably, Chacon was given contradictory commands during the assault, including to “not move,” but “get on the ground,” but “stop moving,” but “turn over.” 


The Fifth Circuit concluded that there was a fact issue that a jury must decide: “Even if some action by Chacon demonstrated resistance, the fact question found by the district court remains: whether, even considering his possible resistance, shoving Chacon to the ground while he attempted to explain himself, punching him in the head while he was on the ground, or shooting him with a Taser, constituted excessive force.   Police are entitled only to measured and ascending responses to the actions of a suspect, calibrated to physical and verbal resistance shown by that suspect.” 


And, so, the case against Officers Rose and Copeland proceeded to the jury.


The Trial – The Jury Had to Decide Who Was Credible:

The dash-cam video was played numerous times and dissected in the courtroom.  Despite the efforts of the Assistant City Attorney to discredit him, Carlos Chacon came across as a very credible witness as he described the events taking place on that traumatic night and how those experiences have adversely impacted his life.  He informed the jury that he reached out to Chief Acevedo, who did not respond to his letter.  He also denied consuming any alcoholic beverages that painful evening.


Rose testified that he did not hear the information provided by the dispatcher, while the dash-cam audio clearly captured the dispatcher twice describing the suspect and victim. 


Copeland testified that he detected the strong odor of an alcoholic beverage emitting from Chacon, but Chacon was never charged with Public Intoxication or Driving While Intoxicated.  Additionally, Chacon’s hospital records failed to confirm Copeland’s alcohol allegation, which was also refuted by Rose’s prior testimony.  Nevertheless, according to his police report, Rose claimed to suspect that Chacon was under the influence of alcohol/drugs. 


Rose and Copeland’s supervisor, Sgt. Robert Smith, also testified that he detected a strong odor of an alcoholic beverage emitting from Chacon, but he was never as close to Chacon as Rose, nor was he able to explain why the medical personnel at the emergency room did not report any signs of intoxication in Chacon’s medical records.  However, Smith stated that it did not mean anything to him.  Chacon’s attorney Broadus Spivey asked Smith about why Chacon was not charged with Driving While Intoxicated or Public Intoxication; Smith responded, “I think we don’t just arbitrarily stack charges on someone.”  But, when later asked why he recommended that Rose or Copeland conduct sobriety tests on Chacon, who was already under arrest for the alleged Resisting Search offense, Smith replied “to see if there were any other charges we could put on him.” (Authors’ Note: Rest assured, despite what the officers claimed, APD never lets a DWI go!)


Leading up to trial, Judge Sparks questioned Sgt. Smith about why the Austin Police Department failed to investigate the circumstances that prompted Mr. Chacon to call the police.  However, contrary to his self-described job duties, Smith could only say “I don’t know.”  As Copeland and Rose’s supervisor, it was his job to know.


Chacon’s legal team called expert witness Dr. George Kirkham, a criminologist out of Florida.  Despite Dr. Kirkham’s extensive experience that far exceeded that of Rose and Copeland’s expert witness, William Terryl, the Assistant City Attorney objected to Dr. Kirkham being allowed to testify.  Judge Sparks quickly overruled the objection and decisively affirmed “he’s an expert.” 


Dr. Kirkham testified, based upon his expert opinion, that the actions of Rose and Copeland were contrary to standard police practices and procedures, and that their force used was objectively unreasonable.


Had the jury believed the officers’ version of events, they would have held in the officers’ favor and Chacon would have lost the lawsuit.  Instead, they found one million reasons to hold in favor of Carlos Chacon.


The jury found Russell Rose liable for $1,000,000.00, not Eric Copeland.  Rose was the officer who immediately pulled his gun on Chacon, and tased him.  Copeland punched Chacon in the face twice.  Copeland made the news one year after the Chacon assault when he shot and killed a man.  


Chief Art Acevedo’s Inconsistent Handling of Dishonesty Among his “Troops:”

On October 28, 2013, Officer Blayne Williams, an African American APD officer who had in the past filed a charge of discrimination against Chief Acevedo, was terminated based solely upon Chief Acevedo’s subjective opinion that Williams was dishonest.  Chief Acevedo failed to indicate in Williams’ disciplinary memo exactly how Williams was dishonest.  Even an Internal Affairs investigator testified at Williams’s arbitration that he did not know what specific statements Chief Acevedo believed were dishonest.   Officer Blayne Williams fought against his termination, and an arbitrator determined that Williams was not dishonest and that he should not have been terminated. 


One particular APD Officer Gallenkamp has developed a reputation for dishonesty amongst the Travis County Criminal Defense Bar.  Ask your friendly criminal defense attorney about the reasons.  Nevertheless, Copeland and Rose are still in uniform, having never been disciplined.


Media Presence Lacking at Chacon’s Trial:

The press did not cover Carlos Chacon’s trial, and brief news reports about the trial were only released after the jury awarded $1,000,00.00 in damages.  Typically, when a case involves a matter of public concern, especially on a hot-button issue like police abuse, the press shows up during the trial testimony.  Often, one will see photographers outside the courthouse, waiting to click shots of the parties.  Not so in Carlos Chacon’s trial. 


Austin Police Department’s Police Chief Art Acevedo is well known in Austin for his mastery of the media.  In 2010, he made it clear that he wanted to stay in Austin in order to finish projects he started and “he want[ed] to finish working with the media.” 

Philip Perea posted this on his Facebook, and for that, Acevedo had him fired.

Philip Perea posted this on his Facebook, and for that, Acevedo had him fired.

Acevedo has developed such a rapport with the media that news stations would rather fire their own than to upset him.  Reporter Philip Perea committed suicide in January of this year after he was fired for posting an unflattering picture of Art Acevedo on facebook.  Acevedo had responded to the assault of a jogging jaywalker by saying that “In other cities there’s cops who are actually committing sexual assaults on duty, so I thank God that this is what passes for controversy in Austin, Texas.”  The picture Perea posted on facebook made Acevedo look like a buffoon.  When Acevedo took issue, Perea was fired.  Acevedo's quote turned into a meme with the phrase "at least we didn't rape you."


APD lost more credibility when two of Acevedo’s officers joked about rape, captured by their dash-cam equipment: “Go ahead. Call the cops. They can’t unrape you.’ 


Acevedo lost still more credibility when he suggested that young women should not defend themselves with firearms, but should go ahead, be raped, get counseling, and get over it.


Acevedo does more than exercise some control over how the media reports on him, he has outright banned people from his twitter and facebook.  These social media accounts are considered public fora, and yet, Acevedo handles them as if they were his private accounts.  We’ll report more about Acevedo’s handling of social media in a subsequent blog.


Congratulations to Chacon:

In the meantime, hats-off to Carlos Chacon for being fearless and going after APD.  It is frightening taking on an entity with that much power and weaponry.  Hats-off to Chacon’s legal team including Broadus Spivey for fighting the good fight and winning.


City of Austin Mayor Steve Adler, are you paying attention to how much APD is costing Austin?  Austin City Counsel, are you?  While this assault may not have happened on y’all’s watch, you’re on-watch now.  Will you protect your citizens? 


Jermaine Hopkins is an Iraqi War veteran, and 14-year police officer, whose own tribulations with APD are detailed here.

Millie Thompson is a criminal defense attorney, whose office is located in Austin, Texas.


Antonio Buehler - Trying a Capital Class C Misdemeanor

Yesterday evening, I was privileged to speak about our October 23, 2014 municipal court trial at a Calvert Inns of Court meeting.  If you are curious about Antonio's first Class C trial, or the facts that led to my client being indicted by a grand jury for a Class C misdemeanor, you should visit peacefulstreets.com.  

It seems striking that an attorney would be asked to speak to other lawyers about a Class C misdemeanor.  What struck me more, however, was how positive those lawyers were.  One in particular wondered why prosecutors are not charging police officers with perjury when those officers verifiably lie.  

We are gearing up to try more of Antonio's misdemeanor cases.  When lawyers put this much effort into a misdemeanor, we jokingly call it a 'Capital Misdemeanor,' meaning that its been exaggerated to the level of a Capital Murder.  

Wish us luck.