tvc184

It makes for quick criminal justice.

An easy one…. Lex specialis derogat legi generali Using that Latin phrase as a guideline for this discussion: Texas has 30+ codes. Probably the most well known for most people is the Penal Code. That is most crimes that we normally think of like murder, theft, assault, cruelty to animals, DWI, trespassing, etc. There are other fairly common criminal offenses that are not in the Penal Code. Most traffic laws are in the Transportation Code. Possession of drugs like cocaine or marijuana are in the Health and Safety Code. While juveniles can be charged with any of those crimes just like an adult, how to handle them is in the Family Code, etc. For the police and prosecutors, probably the most important code is the Code of Criminal Procedure(CCP). While those other codes define what is a crime, there is nothing in those codes that say a person can be arrested, charged in a crime, how or when arrests can be made (particularly without a warrant), how charges are brought to court against a person, how much force can be used, what is allowed as evidence, when and how are confessions made and so on. So while the Penal Code says that it is a crime to assault a person, okay, then what? For that we have the CCP. Back to Lex specialis…. In the CCP in Chapter 14 is where it gives the circumstances to make a lawful arrest without a warrant. Right at the beginning we have the first section (14.01) which says: CHAPTER 14. ARREST WITHOUT WARRANT Art. 14.01. OFFENSE WITHIN VIEW. (a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace. (b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. In (a) it says that “any” person may arrest for an offense (crime) within his presence or view if it is a felony. That is the citizen’s arrest law. If any person witnesses a felony, he can lawfully make an arrest just as if a police officer. Presence or view in this case means that you don’t have to see it. View means that you actually saw a crime happen. But what if you didn’t actually see it? You heard glass break at 2:00am and looked around the corner of a closed business and saw a man with a hammer in his hand and broken glass on a store and getting ready to step inside to commit a burglary. Was it in your view? No. Was it in your presence? Yes. So in that case an arrest would likely be lawful. There was probable cause to make a reasonable person believe that a burglary was in progress, which is a felony, and it was within your presence. You were close enough to know that a crime happened. Also note that under citizen’s arrest is it lawful to make an arrest for a misdemeanor within a person’s view or presence if it’s a breach of the peace. That kind of goes back to the discussion on Chaplinsky but several crimes such as DWI have been ruled by courts as a breach of the peace. I am not suggesting by any imagination that people should go out and start trying to arrest other people. There are certainly certain circumstances that make it lawful, however. If you see an assault in progress feel compelled to step in, a citizen arrest might be lawful. But that wasn’t the question or comment that I had in mind. In (b) you can see that police (peace) officers can arrest for ANY offense within presence or view. So if an officer sees you driving a motor vehicle at night on a public roadway and your license plate light is out, he can arrest you without warning and take you to the county jail. In Port Arthur there is a city ordinance that if you cross a street not at a crosswalk, it must be straight across the road (crossing the roadway at less than 90°). So if you walk like a 45° angle across the street, you can be arrested even though it’s not a state crime but only a city ordinance. That is clear enough. If a cop, witnesses a crime, even the most minor of crimes, he can make an arrest. Right?

This was exactly Chaplinsky. What you call correctly, something is going to happen…. SCOTUS and state laws call a breach of the peace. And yes, the police got tired of his nonsense but used a lawful city ordinance to end it. Probably thousands of times every day police officers in this country are called to situations such as this. The most common response from the officers is, leave or shut up. There is no required warning to enforce the law yet I see (and have done) on hundreds of occasions where officers are demanding or practically begging people to stop. Just leave or just be quiet. Sometimes they don’t heed the warning. The police in Chaplinsky didn’t run in with handcuffs. They simply said be quiet and move on. They already had a valid criminal charge on him but like 99.8% of the time, they tried to end it without action. Chaplinsky wasn’t about to get his rights be stopped!

Disorderly Conduct might definitely be an issue face to face. It is not on a social media rant.

I would not speak for other police officers but I would believe that some (Most? All?) tend to be humored when people are standing in the middle of the street shouting, cursing, etc. and when told to be quiet… follow up with, “It’s my right!!”. The SCOTUS disagrees……

The Chaplinsky decision gave us “fighting words” or words that would cause an immediate breach of the peace. That is why I said in another comment, words cannot be banned but situation may be. This is a quote from the several pages of the decision: …… "fighting" words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument." Then this quote: . . The English language has a number of words and expressions which, by general consent, are 'fighting words' when said without a disarming smile. . . . [S]uch words, as ordinary men know, are likely to cause a fight. And: The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker -- including 'classical fighting words,' words in current use less 'classical' but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats." It is not the words but the kind of in your face provocation that incites a breach of the peace or tends to start a fight. There is a line to be drawn on what is free speech and what may be a crime. So it is a protected right to get on a podium and say that Trump, Biden or any other public person is an idiot, should be jailed, is a low life piece of crap or whatever. While it will certainly make some people very angry, those are not funny words. It’s the same guy, giving a public speech, jumped off the podium and got in your face and started pointing his finger and saying, “YOU are a $&/£€ and your family is !-@%¥!!!!”…. those would likely be fighting words. Think of two guys on a corner in public chatting amongst themselves. They are using a racial slur towards each other in casual conversation. So they for example, calling each other Bob for the most offensive word you can think of for any particular group. It goes like…. “Hey Bob” “What’s up my Bob” Are they offended? Hardly or as we have heard, it’s a friendly word of endearment. But along comes a guy, typically from another culture, who points a finger and says… “Hey Bob! You are causing problems in our neighborhood” Would the same word(s) tend to be seen as harmless in one situation and fighting words in the other? Or a person gets on a loud speaker at 2:00am and starts yelling Vote Democrat! The whole neighborhood is now awake. Would that seem to cause an immediate breach of the peace? In that case it is not profanity, not slurs, not directed at anyone in particular and a purely protected political opinion. Breach of the peace? In my example in the first comment I made was about Chaplinsky preaching and giving an opinion publicly. It was not at 2:00am and probably on a busy street. People could simply ignore him and go about their business or engage him likewise . He is absolutely has that right. It goes south however when he starts shouting at people and starts calling them an offensive names such as damned fascists. Especially think of the time frame and the political atmosphere (I think 1940) with WWII having begun with the nazis and fascists trying to take over the world. All rights have limitations. The Supreme Court has unanimously decided that fighting words cross that line.

No permit is required to be assemble for a protest. That would be a violation of the First Amendment in my opinion. Cities can require a permit for things like a parade if a march would block the road. This particular case is Chaplinsky v. New Hampshire. The US Supreme Court decisión was unanimous. The criminal charges were upheld and he was not protected by the First Amendment. [Hidden Content]

It is somewhat correct (I am assuming from experience) that the police were tired of his nonsense. They used a criminal charge to end the disturbance. That is fairly common actually. Discretion is a major part of law enforcement and criminal justice which is okay as long as it is legal. This case of disturbing the peace (disorderly conduct) went all the way to the Supreme Court. Read on…

That is an interesting take on it. The question then becomes, does violence have to occur before any disturbing the peace or (as Rupert suggested), inciting a riot? Again, not saying that you are right or wrong but these types of questions come up in cases and in fact in front of the Supreme Court. If you ever listen to the arguments, sometimes you were hear a justice ask something like…. well if that is true does that mean blah blah?

What if he is not arrested for inciting a riot but for disturbing the peace for the words he used and location? The Supreme Court has stated that no words can be banned. Situations can be. Both state and federal courts have ruled that flipping the bird at the police for example, is free speech. In a recent case from 2021 the US Supreme Court ruled that a student going on an F bomb rant on social media had her rights violated when she was kicked off the cheerleading squad. She was on the JV squad but missed the varsity squad so she did her snapchat tirade saying to xxxx school, softball, cheerleading, etc. She was kicked off of the JV squad for violating school rules. SCOTUS in Mahanoy v. BL in an 8-1 decision said that her free speech was violated because although she said her comments about “school”, “softball”, etc., she never demeaned her school, teachers and so on . It was just a non-specific screw everybody rant. [Hidden Content] So under inciting, what if it was a pro Trump supporter who was simply standing there in public saying that Trump is great? A crowd gathers and starts throwing rocks. Does the Trump supporter go to jail for inciting? If so, any free speech can be negated simply by causing violence against the free speaker. So, I am not saying that you are wrong but wanted to make those legal positions known. Any reconsidering or anyone else want to comment?

A pastor decides to start preaching from a sidewalk in public. He is using his First Amendment rights of freedom of speech, freedom of religion and freedom of assembly. Some people don’t like what he is saying (remembering that the very intent of freedom of speech is to be able to offend people). They start yelling at him and he starts calling all organized religion a racket. People get angry and call the police. They hear the man say that they are a bunch of damned fascists. He accuses the people in the crowd as being damned racketeers. The police get tired of his nonsense and arrest him for disturbing the peace. Is it freedom of speech, assembly and religion therefore a violation of First Amendment rights or a lawful arrest?

If I haven’t told this one before…. Two guys are golfing and two women are in front of them playing slow. One guy says that he will run up there to see if they will let them play through. He runs about 100 yards toward the women but comes right back. He tells the other guy that he can’t go up there, one is his wife and one is his girlfriend. The second guy tepeats the same process. The first guy asked what happened. The second guy said… “Small world ain’t it”.

Professional courtesy. Not personally but seen it on YouTube. Most issues are between the police and firefighters. I was going to put an EMS driver in jail over time but I screwed up and called my sergeant to tell him my intentions because I was sure it would generate a complaint. EMS heading south on Memorial Blvd in PA blew the red light at Gulfway Dr. As you know, a 6 lane highway crossing a 4 lane highway…. and there was traffic. Like moderate and leaning toward heavy traffic about 8pm. He bottomed out hitting the hump on Gulfway Dr., probably 80-85 mph. The emergency call on Proctor St? A sprained ankle. I did not interfere with his call or the trip to the hospital. That is when I called my sergeant and let him know my intentions. Instead I his an arrest my sergeant wanted me to discuss it with him and he would call the EMS supervisor. I had a rather terse discussion with the driver about an arrest for Reckless Driving, carrying up to 30 days in the hoosegow. Speeding? I don’t care. If this guy had been two seconds earlier or later, he might have been going to prison for manslaughter.

Correct, a city can restrict the speed of EMS and blood banks. A city by ordinance cannot restrict the police or fire when responding to an emergency. They can restrict speed by policy though. The difference is that speeding can’t result in a citation by city ordinance. A person can be disciplined for violating policy… just can’t be given a ticket. A private EMS driver can be arrested for breaking a city ordinance speed limit.

Absolutely. In Texas under the Failure to Identify law, if only “detained” you don’t have to give any information. That is only required if under arrest. In some states if lawfully detained, a person is required to identify himself only with any other information protected under the Fifth Amendment. Meaning the Tenth Amendment looms large. Each state can enact its own laws as long as the law or right is not prohibited by the Constitution.

The right to remain silent in the Fifth Amendment doesn’t apply to your name, address or date of birth.

Here is the short version. 1. If not under arrest, you don’t have to give any information including a name. 2. If you do give a name, DOB or address while not under arrest, only if false is it a crime. 3. If under arrest and only if under arrest are you required to give those three pieces of information. If you want the long version of why……. If an officer in Texas requests your name while you are being detained and you refuse to give it, you cannot be arrested for refusal to give your name or even saying anything. A couple of points however. If it is a detention only (a seizure under the Fourth Amendment) based on reasonable suspicion and not probable cause, the a person is not required to speak including the giving of a name, address or date of birth/DOB. If the person is under arrest then it is required to give name, address and DOB. Refusing at that point is an additional but misdemeanor crime (fine only). There is no law in Texas under the Failure to Identify law that requires a person to produce a physical ID. It is only required that the person gives the information to the officer. I have mentioned this before in other comments but there is a big difference legally between reasonable suspicion and probable cause. RS is enough information that would lead a reasonable person to believe a crime “may have been “ committed and/or if the person detained “may have been” involved. PC is enough information that would lead a reasonable person to believe a crime “has been” or is about to be committed and the person “was involved”. They are very close but the amount of information known to the officer is important. In the alarm example I gave, an alarm goes off at closed business early in the morning and a person is seen walking out of the alley from behind the business. The question becomes, would a reasonable person believe the person coming out from behind the business may have been involved in a crime since a burglar alarm went off? I think the answer is yes, making a detention lawful…. if a judge agrees. At that point the officer doesn’t even know (1) if there has been a crime (could be a false alarm) and (2) even if there had been, was this person be involved. So the officer can likely lawfully detain the person to check out the situation. That person in such a situation is not required to say anything including a name. The person is required to stop but that is all. A couple of other officers checked by and found that the burglar alarm appeared to be false. At that point, person detained must be immediately released. The officer has negated the lawful reason for the detention. Another easy example would be if a crime has been committed (robbery for example) and a description was put out on the police radio of a suspect. An officer in the area spots a person that fits the description and detains him. That would likely be seen as lawful under reasonable suspicion in my opinion. Being in the vicinity of a crime and fitting a description of the suspect will generally be held as a lawful detention. A description alone is not enough evidence to believe that person was involved so the description alone is likely only RS. Under probable cause, there would be enough information to believe that there had been a crime and that the person detained had committed that crime. The easiest example is a vehicle being driven on the road and the driver turns while not giving a signal. A turn signal is required so the officer has witnessed a crime. Nothing more is required lawfully to immediately arrest the person under PC. Another more involved example would be an officer on patrol at 2:00am and hears glass break at a nearby business. The officer drives to the business and arrived within a few seconds. The officer sees a man standing there with a hammer in his hand and broken glass at his feet. Would a reasonable person believe that the man just broke the glass? I would say yes and that is probable cause to arrest, not merely reasonable suspicion. Why is any of that important while discussing Failure to ID? As I mentioned earlier, only if a person is under arrest, is he required to give his name. So a cop detains a guy as being reasonably suspicious. The guy refuses to give his name and even laughs at the officer telling him, “I know the law and I don’t have to tell you”. That would be correct. But……. what if when the officer stopped the guy, he was walking in the roadway and there was a sidewalk. That is a crime. So the officer says, “You’re right, you only have to give me your name if you were under arrest. So… you are now under arrest for walking in the roadway where there is a sidewalk. Now, what is your name?”. If the police have nothing on you but reasonable suspicion, you can keep your mouth shut and not cooperate at all. If the officer has probable cause though…… Also note, while a person doesn’t have to identify himself unless under arrest, lying about a name, address or date of birth is a more serious crime. Even if you have never committed a crime and the police ask you to identify yourself as the witness in a crime and you lie about your name or your address or your date of birth… it carries up to 6 months in jail. If you aren’t going to tell the truth, keep your mouth shut. Sec. 38.02. FAILURE TO IDENTIFY. (a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information. (b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has: (1) lawfully arrested the person; (2) lawfully detained the person; or (3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense. Notice that in (a) refusing to give the information it is only if under arrest. In (b) as a witness or lawfully detained or under arrest, it is a crime if you give a “fictitious” name, address or DOB.

You are lawfully stopped/detained by a police officer while walking (the main point is not driving). He asks you to identify yourself and you just look at him. You either say no or simply refuse to answer. He demands that you identify yourself but you continue to refuse. (without google ) Under the Texas law of Failure to Identify, if lawfully detained (example: in the alley behind a closed business at 2:00am where a burglar alarm just went off), when do you have to identify yourself? Or to make it easier, an officer lawfully stops you while you were walking down the sidewalk and demands your name but you refuse. What legal recourse does the officer have?

The police are not bound by speeding if on patrol, with patrol not being defined. Other emergency vehicles can be restricted in speed except the fire department en route to but not returning from an emergency. Sec. 545.365. SPEED LIMIT EXCEPTION FOR EMERGENCIES; MUNICIPAL REGULATION. (a) The regulation of the speed of a vehicle under this subchapter does not apply to: (1) an authorized emergency vehicle responding to a call; (2) a police patrol; or (3) a physician or ambulance responding to an emergency call. (b) A municipality by ordinance may regulate the speed of: (1) an ambulance; (2) an emergency medical services vehicle; or (3) an authorized vehicle operated by a blood or tissue bank. Notice also that a city by ordinance can regulate the speed of EMS/ambulance and blood and tissue (transplants) emergency vehicles but not fire going to an emergency or police while on patrol at any time. That doesn’t stop a police or fire department from having internal policy however and it doesn’t exempt the police from other more serious violations. For example if an officer is going over the speed limit while en route to a routine (not emergency) call for service, it is by law not “speeding”. If the officer recklessly runs a stop sign and kills someone, he can be charged.

In the same line of questions…. Fire Police EMS When not on any emergency calls (going back to the station, heading to eat lunch/donuts, etc ), do they have a speed limit?

That would be correct. It is officer discretion on how to respond to calls while considering the traffic conditions, the type of call like a break-in (burglary) and you want to be able to catch the suspect instead of warning him, etc. Other emergency vehicles such as fire department and EMS must comply with emergency equipment laws.

An officer is responding to an emergency call. The officer is speeding and then runs a stop sign but doesn’t use his emergency lights and/or siren. Is it lawful for a police officer to violate those traffic laws without using emergency equipment?

Thanks. I just came back from teaching at the citizen police academy.

Sometime citizens and even the police officers make mistakes about the law because they will look at a section and come to the conclusion that this law clearly says that a person is not guilty. True… But is there another law that applies? I was at an incident one time where a drunk had pulled into his or a relative’s yard. The guy then got ready to leave and drove on a circle driveway (it actually went around the house) and ran over a small child like 2-3 years old. I don’t remember if the child was critically injured or died. Since it was a major crime scene, I showed up as a sergeant/supervisor , along with my lieutenant/commander and a senior officer. They started talking about taking the guy into custody for a DWI and Intoxication Assault or potentially Intoxication Manslaughter if the child died. I shut that discussion down, saying that intoxicated driving laws don’t apply to a private yard. They went something like… Uh Oh, now what do we do, he didn’t violate the driving laws!! My answer was like, “Hey guys, forget the traffic laws”. Assault is intentionally, knowingly or recklessly causing injury. I would say that driving over a child because you were too intoxicated to notice would definitely be reckless. Aggravated Assault is to commit an assault but uses a deadly weapon (vehicle) or causes serious bodily injury. This guy in my opinion committed Agg Assault both ways. The point is that just because one law may not have been violated, another law may have been broken.

There is no law that specifically says that you can only drive in the left most lane to pass… except where there are signs on some highways that state that the left lane is for passing only such as some areas of IH10 between Beaumont and Houston and Beaumont the Orange. However… There are a couple of laws that “may” be violated by driving in the far left lane. Such as: (b) An operator of a vehicle on a roadway moving more slowly than the normal speed of other vehicles at the time and place under the existing conditions shall drive in the right-hand lane available for vehicles, or as close as practicable to the right-hand curb or edge of the roadway, unless the operator is: (1) passing another vehicle; or (2) preparing for a left turn at an intersection or into a private road or driveway. It doesn’t say that you can’t drive in the left lane. It basically says that you can’t obstruct traffic. Notice how it describes it. It doesn’t mention speed limits. I see a lot of people claim that if driving the speed limit, they can choose their lane. I think the law disagrees. For one thing, nowhere in Texas law does it give citizens the authority to enforce traffic laws. A person can’t obstruct traffic under his own assumed authority. Secondly, how does a person know that his speed is correct? Back to the wording of the law, notice that it says moving slower than the normal speed of other vehicles “at the time and place”. Obstructing traffic is what causes many accidents and probably road rage. Again, it doesn’t say anything about the speed limit. My explanation is, if people are passing you to the right, you are breaking the law and subject to arrest. Do officers use that option? Not very often as there are bigger fish to catch. So, if it is 2:00am and you are the only person driving in that area and driving in the left lane… there is no law against it (unless there is the aforementioned sign) since you aren’t driving slower than the traffic in that area… because there is none. If you were in the left lane, and they were people behind you, but you were steadily passing cars to the right, again there’s no law against that because you’re moving faster than the normal flow of traffic at that time in that location. I have never issued a citation for that but I have pulled people over for it. Hopefully, I scared them and cost them enough time that they will think before doing it again… But I doubt it. There is another law that says something about a highway with three or more lanes, you will not drive in the left lane. The traffic code is absolutely the hardest code to look up laws though and I don’t feel like digging that one out right now.