Random Tuesday Morning Thoughts

The similarities between now and 2011 are pretty amazing. We had two snow/ice storms hit during that Super Bowl Week, and then it warmed up dramatically.  It's going to be 80 degrees today. 

  • Thirty-one new Texas counties have been added to the Federal Disaster Declaration. Jack County is still not included. (Someone told me that the County Judge for each county had to submit a "Property Damage Assessment" in order to get on the list. I haven't confirmed this and need to ask Wise County Judge J.D. Clark about it.)
  • CPAC, the annual gathering of ultra-conservatives, had to kick someone off the agenda yesterday. Their theme this year was on of anti-cancel culture. 

  • In case you were wondering, it was "Young Pharaoh" who got cancelled by CPAC. "He has pushed several conspiracy theories such as QAnon, Pizzagate and Frazzledrip. He has also has said that both the COVID-19 pandemic and the January 6 Capitol riots were staged events planned by left-wing politicians . . . ."  Uh, if that's what it takes to get you disqualified, they might want to check the background of the rest of the speakers. 
  • Our next Attorney General, Merrick Garland -- a man who got screwed out of a Supreme Court seat by Mitch McConnell -- proved yesterday that he will not be Bill Barr. Go get 'em.

  • I finally watched the video of the black kid in Plano arrested for walking in the street in the snow. I've got some hot legal opinions.

    • You want to know something shocking? The cops did nothing illegal. Why? We've allowed Fourth Amendment law to evolve to such an extent that cops have the authority to jack with people for basically any reason -- prosecutors can almost always justify it for them. Let me explain.   
    • Notice how the Plano police first try to get him to stop by stalking him and "kindly" asking him to talk to them? They were just trying to use the "consensual encounter" law which allows them to voluntarily talk to anyone at any time without probable cause or without reasonable suspicion. If the kid would have stopped and talked to the cops, there wouldn't be a "detention" at all. The law would just consider it to be a citizen voluntarily talking to a cop. But the kid completely ignored the cops -- something he was perfectly allowed to do when cops attempt this "consensual encounter." 
    • Other than the "consensual encounter", is there another way where cops can detain someone who is doing nothing wrong? Yep. There's the Community Caretaking Function - law which is completely made up by the courts  and which Plano police initially tried to use to justify the stop. (The cop said, "Dude, stop, we’re trying to help you!”) That legal doctrine shouldn't work in this case, but there's a lot of judges who would bite on theory. 
    • Ok, let's assume it's not a valid use of the Community Caretaking Function (it's not), didn't the kid break the law and justify the detention once he failed to identify himself as requested by the cop as he walked away? Nope. You only have to identify yourself when you are "legally detained." You don't have identify yourself during a "consensual encounter." 
    • But in this case it evolved into a legal detention when they stopped the kid against his will. How was it legal? Police just need a suspicion that is reasonable that the kid was violating any law in order to detain. In this case, they could use a "fine only" law like Texas Transportation Code § 552.006 which provides "A pedestrian may not walk along and on a roadway if an adjacent sidewalk is provided and is accessible to the pedestrian." Ticky-tacky? You bet. But they just need a law -- any law -- to justify the stop. 
    • Wait! You noticed in § 552.006 that the sidewalk has to be "accessible"? Check out the big brain on Brad! Can't it be said the kid's stop and detention was illegal because the sidewalk wasn't "accessible" because it was icy? That is, he didn't actually break the law?  Nope. Doesn't matter. Get this massive loophole: A person doesn't actually have to be violating a law in order to be detained. The cops just need to "suspect" you are violating law so long as that the suspicion is "reasonable." They can even ultimately be wrong so long as they had a "reasonable suspicion" at the time of the stop.
    • Corollary: What if the cops didn't even know about Texas Transportation Code § 552.006? That is, they stopped him because they got pissed off at him?  Would that make the stop illegal? Nope. Their subjective intent doesn't matter. So long as their is an objective basis based upon some law, the stop of the kid is legal. Shocking? Yep. 
    • But they arrested the kid on a fine-only offense. That has to be illegal right? Nope. In Texas, cops can arrest you for any Class C fine-only offense (except speeding, open container in a car, and texting on a cell phone in a car. See Texas Transportation Code § 543.004.) 
    • So why did Plano drop the § 552.006 Walking In A Street case? Because this whole thing looked bad. That's the sole reason. They got scared of a public backlash. 
    • But you know how this works in real life with a slightly different factual situation? The cops searched the kid after the arrest (also completely legal) and find a little bit of weed on him. His lawyer can't get the case thrown out because the detention, arrest, and search was legal. The kid gets placed on probation, but is so pissed off that he got screwed over by the cops he blows it off. His probation gets revoked and gets a month in jail. And then he is forever branded a criminal and has difficulty getting a job for the rest of his life because he's a black guy with a criminal record. That's the American criminal justice system in a nutshell. 
  • Something I'll never get the chance to do, but would love to: Go inside the Oval Office. I've seen it so many times on the news and re-created to perfection in TV and movies, I feel like I know the place. (It's got four doors. Two are built into the wall in the back and hardly noticeable, a formal one to the direct left leads to a study, and another ornate one to the direct right leads to the Rose Garden.) If I were President, I'd wander out in the Rose Garden a lot.  

  • I pointed out the Live Streams of Texas courts yesterday and then noticed they didn't go live until late in the morning yesterday. I'm not sure what happened. (And many were showing "live" this morning even before 8:00 a.m.  That ain't right.)
  • Speaking of those live feeds, I got pissed off while randomly watching a municipal judge out of West Texas. Some young girl with two kids was appearing by Zoom conference, and the cops had wrote her up for three traffic violations for one stop. She then missed a court date and got an additional three Failure to Appear citations. She ignorantly pled guilty and the judge found her guilty on all six cases and jacked her with around $2,000 in fines -- money she obviously didn't have (she asked for community service but was ignored.) 
    • The only people who are truly "punished" for Class C fine-only offenses are the poor. 
  • I was thinking about the documentary Outcry which featured the high schooler in Williamson County who was wrongfully prosecuted and imprisoned for sexual assault of a child. I knew that one of the assistant D.A.s on the case, Geoffrey Puryear, was shockingly appointed by Gov. Abbott to be a judge in Travis County, but I hadn't seen an update. Here it is:  Puryear got slaughtered in an election last fall and is now in private practice in Lubbock.