Wednesday, February 18, 2009

Why might police need misconduct insurance?

Austin attorney Kiele Linroth Pace has a couple of thematically linked posts on the blog Austin Justice: The first one pointed to a Statesman story about Austin police officers buying misconduct insurance for $17 per month that pays their wages if they're suspended for cause (the police union is looking for a group rate). Another post gave an excellent example of why officers might need such insurance, describing an Austin-based example of apparent testilying by a police officer on a minor offense. Pace was:
taken aback by the blatant lying that I encountered last week.

The case involved a rarely used arm of the criminal trespass statute that I was familiar with only because of the time that I spent as a prosecutor in the piney woods of East Texas. Lumber companies typically use purple paint markings on trees in a way that's described by that statute to mark their territory and let other players in the lumber industry know that a piece of land (and especially the valuable stand of pines on it) is off limits. But such markings have no real relevance in an urban area.

Nonetheless, the probable cause affidavit that Officer Gerardo Cantu, APD#6111, swore to and filed in this case indicated that he arrested my client for trespassing on a "heavily forested" property at 8212 Sam Rayburn Drive, which contained trees "painted with a purple band" as well as posted "No Trespassing" signs that were "in plain view" on all sides of the property.

As you can see from the street view provided by Google Maps, this is not a heavily forested property. When I drove out there last week, I discovered that it is, in fact, a multi-unit property in a densely populated urban slum. There's a single tree with no purple paint in sight. The only signs posted anywhere on the property do not say "No Trespassing." Rather, they prohibit drinking and loud music in public areas, roaming around, soliciting, loitering, and so forth.

In fact, no element of Officer Cantu's criminal trespass allegation against my client turned out to be true. He just made the whole thing up. The really surprising thing is that he's willing to commit aggravated perjury when it's so easy to prove.

As for the case against my client, I printed out the whole stack of photos that I took at the scene, which included a shot with the address shown on the side of the building, and showed them to the prosecutor at our scheduled pretrial conference last week. She decided that it was in the "interest of justice" to dismiss. Imagine that.

I wonder if Officer Cantu has signed up for misconduct insurance yet?

The most frustrating part: Because Texas gutted our open records act on closed criminal cases that don't result in successful prosecution, records where police misconduct is outed by a diligent defense attorney and the case is dismissed become closed, at the department's discretion.

This example may also help explain why prosecutors in some counties don't want defense attorneys to make copies of police offense reports.

26 comments:

Anonymous said...

Good for the police who sometimes are falsely accused.

Now maybe the next thing we can get changed is protection for county government employees who are dismissed or demoted on day one of the arrival of the newly elected county official.

The downside of at will employment and politcal appointees in Texas.

Anonymous said...

It's cases like the criminal trespass one you described that make me not want to share the exculpatory evidence with the state and wait until the lying cop is on the stand to show what a liar he is. You did the right thing by getting your client's case dismissed early. In cases like those is it better to try to get the case dismissed early and then be shielded from public scrutiny or is it better to wait until trial to expose the injustice and have it open to the public? As a lawyer it is in my client's interest to get his case dismissed as soon as possible but that often does not serve to further protect the public from rogue cops. I would like to hear other opinions on the issue.

Anonymous said...

District Attorney reviews cases filed by 6 Dallas officers named in lawsuit

07:39 AM CST on Tuesday, February 17, 2009
By TANYA EISERER / The Dallas Morning News
teiserer@dallasnews.com

The Dallas County district attorney's office is reviewing dozens of cases filed by six Dallas police officers after the officers assisted in an arrest that put a man behind bars for 10 months on what prosecutors say were false charges.

http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/021709dnmetdpd.4035ff0.html

Buster said...

To Grits and Anonymous 10:38:00 AM:

Please take another look at Ms. Pace's story. That first document she posted isn't a police report and you don't need an Open Records request to get it. That document is whats known as a "Probable Cause Affidavit" and its a public document filed over at the County Clerk's office. It is sworn statment under oath and before a magistrate judge. The Travis County District Attorney could, and probably should, go after Officer Cantu for aggrevated perjury.

Anonymous said...

Re: 10:55 a. m.
Travis DA "could and probably should go after Officer Cantu for aggravated perjury."

But probably won't.
I hope I'm proved wrong.

Charles Kiker

Anonymous said...

Maybe, Bexar County CSCD Chief Bill "ELMER" Fitzgerald can buy some. In fact he may need MULTIPLE policies since he can't conduct himself in a PROPER and ORDERLY manner, ever!
Whoever is selling this insurance should scoot on down to San Antone and become wealthy by selling the BC CSCD administration "BOATLOADS" of this insurance!

Anonymous said...

Spare me. If they want to spend their money for insurance let them. How does it hurt you? Split second decisions happen and officers get disciplined. Heck, just by reading all the posts, it would make a reasonable officer want the insurance.

This story posted about trespassing is a joke as well. How many attorneys go out and remove signs to take photos? How many tell the truth or lie?

Gritsforbreakfast said...

"How does it hurt you?"

By making them more immune to efforts by their employers to hold them accountable for misconduct.

Labis said...

To Anonymous 12:25 PM:

Removing signs is one thing, but if you bothered to click on the link to Google Maps you can also see there is only 1 tree on the "heavily forested" lot and it has no purple paint. Or do you suppose the attorney also cut down all the trees? Get a grip!

There is no question but that officer Cantu is a liar who perjured himself when he filed this with the court.

Anonymous said...

First off... good job at blacking out wour criminal clients information. You might want to try and fix that. Does he know that you are posting this about him, and did he give you his permission?

Second, you have to prove intent to decieve, not just a rookie making a mistake on an affidavit. I don't think its likely anything will come of it because its just that, a mistake on an affidavit, not some grand scheem to trump up a CLASS B Misdemeanor.

Third, why don't you post a copy of the police report? I'm assuming you have at least a handwritten copy of it.

Anonymous said...

Or maybe the PC affidavit is a pre-filled affidavit where the officer adds essential information and redacts information that is not applicable. Looks like the officer just forgot to take part of the info out regarding the heavily forested area and markings. I think Occam's razor applies here, or, the simplest answer is usually the correct one.

Labis said...

Hey genius Mr. Anonymous at 1:23 PM which do you think proves perjury: 1) a police report or 2) a sworn statement filed before a magistrate judge explaining justification for a warrantless arrest?

If you even bothered to read the PC Affidavit before posting your comment you would have seen that the officer did not use the standard language from the penal code. Instead officer Cantu chose special language for forested regions without fences. There is no way this was on some kind of “fill in the blank” affidavit because it is totally inappropriate in a big city like Austin.

Looking at all the evidence, including the Google maps, the simplest explanation is that the officer didn’t expect this poor slob to fight the charges and he didn’t expect the attorney to actually visit the scene. Let’s hope officer Cantu doesn’t get away with it.

Anonymous said...

"I wonder if Officer Cantu has signed up for misconduct insurance yet?"

The exclusions in the insurance policy would not cover the alleged act, or at least that's how interpreted the policy.

JTP said...

The insurance industry loves this stuff. Most folks with professional licenses, from counselors, to cops to lawyers and doctors, must abide by State level licensing and oversight agencies. These agencies can censure a licensee, in addittion to any employer administrative disciplinary actions and any civil liabilites the employee may face, "if" he or she is proven guilty. Insurance premiums are part of the "operating expenses" that most professionals who "practice", like lawyers, counselors, physicians, etc. pay, weather they are self employed or work for a company/agency. Cops are also licensed to "practice" law enforcement. Unfortunately, until recently, Law Enforcement Officers, who work in a high risk industry, found it difficult to find insurance companies that offered the same type of customized policies that other professions have. Also, since most cops don't make a hell of a lot of money and high premiums are usually not covered by the employer, cops usually opted out. Further, since most municipal, county, and State agencies are indemnified for wrongful acts by law enforcement up to a point, cops have always believed they had their backs covered. Unless of course you are talking about "gross negligence". Then they are usually on their own. Today, the general public is more aware, through personal experiences and the media, that cops are sometimes flat crooked and stupid. Thankfully, that is a very small minority of people in the profession. Nonetheless, s#@%@ happens as Forest Gump might say. The public has a right to use the legal system to protect themselves from the occassional fool with a badge. Their attorneys will and should prevail. The upshot will not only be a line of "malpractice" insurance offerings to cops, (good for the economy), but also presure for improved behavior by the profession in general. In Texas cops have to maintain training standards set by TCLEOSE as well as their individual agency. Supervisors should ask questions, not to micro-manage, but to be sure that overzealousness for an arrest, is tempered by good police practices. We are all citizens. A badge doesn't protect a good cop, from a bad cop, so we all are at risk from those with the "Tulia" mentality. Insurance is nice, personal integrity is a hell of a lot better. Who trains on that topic?

Anonymous said...

Labis, You obviously have no clue about how police officer prepare PC affidavits in a big city, or any city for that matter. Heck, in some big cities, police officers don't prepare PC affidavits. They are done by (assistant) County and District Attorneys. I do have first hand knowledge about how PC affidavits are prepared by police officers. There are pre-formatted PC affidavits where all the officer has to do is add relavent information regarding the case and removing information that is not applicable. No if you don't think that's how it should be done, well I guess that's your right.

I did read the PC affidavit. The point regarding the police report was about providing additional information that might be available that could show maybe this was just a bad PC affidavit and not some "Criminal" action on his part. This is a non-issue, the judge dismissed the case as they should have. I think the chances are slim that there will be anything more to come of this. To have a successful prosecution or even indictment, you would have to establish mens rea. Therefore, if it was just a mistake, and not his intent, then there is no crime.

But to expect fair treatment of police officers in Austin and from liberals is as likely as the sun rising on the western horizon... Not gonna happen!

The reek of prejudice in this blog permeates throughout it...

Has any one here ever rode out with an officer?

JTP said...

8:27 said.....

"maybe this was just a bad PC affidavit and not some "Criminal" action on his part. This is a non-issue, the judge dismissed the case as they should have"

Aren't you kind of minimizing the issue? "Just" a bad PC affidavit can put someone in jail. It's called false imprisonment. You still go through the trauma, you still have to make bail, you still have to explain to co-workers, friends, relatives about why you were arrested, etc. You get the idea. Just because the judge dismissed the case does not mean that the cop's actions should not be scrutinized for possible misconduct. The issue seems to be that a blind man wrote an Affidavit which tried to describe a colored picture (purple and trees). That was a "gross" error with harmful consequences. The idea that proving intent is difficult isn't the issue. It's holding people to account for very questionable actions that result in loss of liberty, even if you can't prove intent. Maybe that's not a big deal to the conservatives of Austin or the world.....until it's their ass in jail!! And yes, I have rode the ride...probably a lot more than you have, and in the front seat of the car!

Baker said...

Mr 8:27 PM just you look at the page that was sworn under oath its not signed by some prosecutor attorney it has the cop's signature and badge number.

Your little theory of "pre-formatted" boilerplate affidavits would make sense if the document included the sections of the 30.05 Criminal Trespass statute that are actually normal and appropriate for an urban police department in a big city like Austin rather than portions that are nonsensical in Austin and are instead designed for the timberlands of East Texas.

For example if the affidavit said something like the suspect received a prior "criminal trespass warning" or that he received "oral or written communication by the owner or someone with apparent authority to act for the owner" or even that the property was surrounded by "fencing or other enclosure obviously designed to exclude intruders."

IF that affidavit had said those or something like those then your boilerplate theory is plausible. However it clearly does not so the only rational conclusion is Officer Cantu has committed felony perjury and not just gross negligence.

Robert said...

What OTHER cases has Officer Cantu lied about? Anyone naive enough to think this is the first?

Anonymous said...

You know how if somebody kills a cop it is a more serious crime than just killing an average person... the same thing should be true in reverse for cops who commit perjury.

Anonymous said...

Baker, That might be the only other rational conclusion if you already have your mind made up that it was his intent to lie. There are other rational and logical conclusion that could be reached with an open mind. However I don't think its rational on my part to expect that here. This is Austin, throw the cops under the bus because they are the representatives of the repressive establishment man!

JTP... I'm not minimizing the issue. Just because it was potentially a bad PC affidavit, does not mean the officer didn't have probable cause to make a lawful arrest. If I write a bad PC affidavit and the judge throws it out, a new PC affidavit can be drawn up and submitted. I don't know if this case would be different since it was originally accepted by a judge.

False imprisonment? False imprisonment is generally regarded to those that have no legal authority to seize or detain someone. I think you mean false arrest. However, for this case to be a false arrest, the officer had to not have ANY PC to arrest the person. Now I know you are going to argue that he didn't have PC because the affidavit was bad, but just because the affidavit was thrown out, doesn't mean he didn't have the PC. He just articulated his PC poorly.

For example, I stop a car weaving down the road, bouncing of curbs. I talk to the driver and they reek of beer, they slur their words and their head is swaying even while seated. Talk to them more, find out there is no medical reason for their behavior, nothing unusual going on other then the beer. I get them out to do the sobriety tests and they do horribly are falling down everywhere and are 3 sheets to the wind. So I arrest them. Now when I write the PC affidavit, I forget to write the specific public place they were driving, or I forget to write what type of vehicle they were operating, the PC affidavit has a good chance of getting tossed.

Now does that mean I didn't have the PC to make the arrest in the first place? No, it doesn't.

I am very familiar with the property in question. No, its not heavily forested. However, there are clearly marked signs stating no trespassing. Well, at least there use to be. They might be gone.


Go ahead , scrutinize his actions for possible misconduct. That at least gives him a chance. Most everyone here is ready to hang they guy.

Oh yeah, I'm sure you have been on a few ride outs. What sectors? Did anything major happen or was it just a 10 hour tour? I have been in the back of a patrol car. If there are more than two people going somewhere in a patrol car, someone's gotta ride in back.

Baker said...

Since this case was dismissed in the interest of justice we can be reasonably certain there wasn't any valid alternate Probable Cause.

If you were a prosecutor would you agree to dismiss unless that "stack of photos" contained at least one close-up of the sign? I sure wouldn't. Just the fact that they used those words "in the interest of justice" to me says the case was dismissed because it was UNJUST so maybe the Assistant County Attorney also believed the case was based on a lie. Did you notice they first chose "insufficient evidence" and then scratched it out and put "in the interest of justice."

Anonymous said...

False imprisonment happens all the time in Bexar County. The Chief probation officer refuses to listen to his officers about the faulty urinalysis tests done by Treatment Associates that cost many their freedom. Why doesn't the DA in Bexar County jail him?? The Judges don't care either!

Anonymous said...

Officer Cantu needs to be proseuted for aggravated perjury. It obviously was not a mistake, it was a decision he made to file charges against someone under false pretenses.

The legislature should pass a law requiring mandatory jail terms for cops who commit perjury and aggravated perjury. Then we might actually start seeing less of it.

Anonymous said...

I think the comments on this blog, as well as their number, point to a disturbing phenomenon on the world wide web.

Large number of cops, often organized, posting comments, often bullying, defending their right to hurt the public through misconduct. These people can't be called professionals since being a professional implies a devotion to ideals that create a way of life more ethical, moral, and set apart (think of a doctor vowing to do no harm). These people are thugs acting like organized crime trying to intimidate those who question them.

JTP said...

9:03 I'm sure it may sometimes appear that way on the blogs. I think that many folks in law enforcement do attempt to be fair and decent when dealing with the public and their rights. Those folks seldom make the news. It is true, there is a "cross this line, and your ass is mine" credo, but that has to be the case. The question is where should that line be fairly established. Most folks that come into contact with law enforcement don't even approach that line. For those that approach it and cross it, that cop better be ready to do what it takes (legally), to put the offender back in control. That can be verbal confrontation, physical confrontation, arrest, etc. Are there people with a badge who abuse it. Certainly. Are there priests who abuse the priesthood? Certainly. Are there politicians, sports stars, media people, judges, who abuse their positions? Certainly. As long as you have large numbers of people in highly visible and influential positions, there will be some idiots who surface. Let's keep the presure on for professionalism by insisting on transparency. Let's also start making good cop behavior just as newsworthy as bad cop behavior. We need to have hope restored in the institutions we look up to. More now than ever! The best insurance might just be higher public expectations expressed through developing stronger internal affairs or inspector general divisions combined with the investigative reporters' continued requests for open records, when abuse is suspected. Besides, insurance, generally speaking, is just legalized gambling, unless you've been to law school and can understand what the policy really covers!

Anonymous said...

I think the comments on this blog, as well as their number, point to a disturbing phenomenon on the world wide web.

Yes, that there are too many loud mouths on the internet who are still fuming over some moving violation they received 10-15 years go and have been on a vendetta ever since. Get over it!