Tuesday, December 06, 2016

Burton files bill to end Class C arrests like Sandra Bland's

Texas State Sen. Konni Burton today filed SB 271, which would eliminate most arrests for Class C misdemeanors like the one that triggered Sandra Bland's arrest, incarceration, and ultimate demise. As Grits emphasized over the weekend speaking to members of the group Faith in Texas, if the trooper in Bland's case had not had authority to arrest her for failing to signal a lane change, she'd still be alive today teaching at Prairie View and we'd never have heard her name. This change in the law, had it been in place at the time, would have stopped that chain of events in its tracks.

This really good, important bill comes to us as a slightly stronger version of legislation which passed in 2001 right after the original, bad Supreme Court ruling, only to face a veto by then-rookie Gov. Rick Perry. Back then, we called this idea the "soccer mom" bill after Gail Atwater, who was arrested in Lago Vista with her child in the car for a seat belt violation and appealed her case all the way to the US Supreme Court. At the time, because Atwater was white, well-to-do, and personally came to the capitol to front the cause, there weren't the same racial connotations framing the issue in the public sphere the way there are now. But, at root, Atwater and Bland faced similar overreach by police officers at their respective traffic stops. The main difference: Atwater had resources to get out of jail more quickly, while Bland was required to wait just a little longer than she could bear.

Good luck to Sen. Burton: I'm excited about the bill's prospects and the proposal should draw strong bipartisan support. Indeed, that part should be fun: This is one of those issues which separates wheat from chaff in both parties: It divides Republicans who really want less government from those who just talk a good game. And it flushes out all the Dems whose fealty to "civil rights" ends at voting rights but somehow never extends to the 4th, 5th, and 6th Amendments if the police unions complain.

Time will tell, but IMO the bill's got a decent shot.

MORE: From Restore Justice.

23 comments:

Gadfly said...

Damn, Burton doing the right thing? What up with that?

Shante Needham said...

Thank you Senator Burton from the family of Sandra Bland. I really hope this bill passes. Have a blessed day and even better holiday!

Anonymous said...

There's a racial connotation to Class C misdemeanors?

Michael Lowe said...

A potential downside is that Class C's are usually easy to expunge if there's an arrest and deferred. But 55.01 ONLY applies to arrests. The case law includes any "submission to authority." But I know Dallas County has been getting much more difficult to get expunction son class C cases. 55.01 may need to be updated as well or this could be a one step forward and 10 steps back amendment.

David White (aka Caged Monkey #12) said...

This is hopefully a good thing, however would we see more "contempt of cop" charges like "resisting", "disorderly conduct" etc?

Anonymous said...

This legislation would be laughable if it weren't in response to the death of a young woman. The naivety of Burton, and indeed many of you commenting here, is nothing short of astounding. Do any of you honestly believe that Bland wouldn't have been arrested if this bill had been in effect before her arrest?

First of all, and most importantly, the pretext of the traffic stop was to harass Bland and create cause for an arrest. Likely done because she was black, but may have just been that Trooper Encinia was in a pissy mood and wanted a confrontation in order to flex his power and authority. It happens more than you think..

Secondly, unless Bland had kowtowed to this trooper she was going to jail. Anyone seen the video? Encinia hadn't even made up his mind yet what the charge was going to be and Bland was handcuffed and sitting in his cruiser.

This pathetic attempt at making law will actually make things worse. If the cops can no longer arrest someone on a Class C, then they will simply increase the level of the offense to B, or file the ever popular Resisting Arrest charge, for which there are probably more people falsely accused of than any other bogus charge. One thing I learned from my 60+ ride-a-longs is that when a cop wants to arrest someone, they will do it come hell or high water.

Gritsforbreakfast said...

No, 5:21, there are racial connotations to the Sandra Bland story, but not to Atwater nor to the issue overall, was the point. Pay attention.

Interesting point about expunction, Michael.

@David, I think this would prevent contempt of cop arrests. What the arrests are for is the underlying Class C. That's the arrest they're "resisting" and if the arrest is disallowed, there's no need to resist it.

Gritsforbreakfast said...

Actually, yes, 8:01, I do believe that. The officer was exercising his authority because the law allowed it and he was trained to do so. Change the law and training and it changes the context of his decision.

You seem confused about how this works. Take Bland's case. If he couldn't arrest her for a Class C, then there would be NO ARREST for her to resist! He HAD made up his mind what to arrest her for when she was in the cruiser - the arrest was for the Class C. His confusion was what ELSE he could charge her with. But he just couldn't increase the charge for failure to signal a lane change of his own volition. He'd have had to make something up, and at that point he's committing perjury. So this would make a difference. Your emotions are masking reason here.

Lindsey Linder said...

"I'm excited about the bill's prospects...This is one of those issues which separates wheat from chaff in both parties: It divides Republicans who really want less government from those who just talk a good game. And it flushes out all the Dems whose fealty to "civil rights" ends at voting rights but somehow never extends to the 4th, 5th, and 6th Amendments if the police unions complain."

Same, Grits. Same.

Anonymous said...

Mike Lowe, @7:12, in addition to the case law requiring submission to authority, 55.01 has already been amended to apply to "noncustodial arrests," to deal with this sort of problem. A person who gets a citation for a class c misdemeanor would be no less eligible for deferred & expunction under 45.051 than a person who is taken to jail. So how would this change affect expunctions at all?

Anonymous said...

"He'd have had to make something up, and at that point he's committing perjury."

...............................

The irony of your rebuttal is that a minute later you posted a link to the article in the Houston Press which proved my point exactly, which is once a cop has decided to make an arrest it's a done deal. Perjury be damned, as everyone knows that cops are NEVER prosecuted for lying.

I guess you and a few others here want to praise the senator for trying to enact a law that could save lives, I get that, but I think your naivety is masking reality. Sorry, I don't mean to come here to your blog and burst bubbles, but facts are facts.

BTW, as far as the Houston Press article, when was the last time you know of when a jury in Harris county sided with a plaintiff in a civil suit in federal court against a policing agency? No, it doesn't happen. The attorney who took his case, Jerry Friedman, is a baby lawyer just starting out and full of piss and vinegar. But he'll calm down a bit once he gets a taste of the jurors in Harris county.

Michael Lowe said...

You are incorrect. 45.051 doesn't supersede 55.01, which is the primary expunction law in Texas; it defines how which class C cases can be expunged. If you just read 55.01, you'll see that it requires an arrest. There are a few cases which interpret that phrase to mean a submission to authority. The case law defines a submission to authority as making an appearance in a court in front of a judge. If the law on class C arrests is changed in a way where most folks are not arrested and just mailing in for their deferred adjudication, those folks will be disqualified from getting their cases expunged. It may not matter for most people. But it can be a big deal for people licensed by state agencies. I think leaving the law alone is the best thing.

Michael Lowe said...

"(e) Records relating to a complaint dismissed as provided by this article may be expunged under Article 55.01."

Anonymous said...

Michael Lowe, I respectfully disagree. The leading case to interpret "arrest" as submission to authority was decided in 2001 and concluded that appearing in court in response to a citation was sufficient to constitute an arrest. At the time, 55.01 only applied to people who had "been arrested for commission of either a felony or misdemeanor." But then the legislature amended 55.01 in 2003 to apply to people who had "been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor." The only thing that "noncustodial arrest" can mean is a citation. That means 55.01 is applicable to arrests and citations, so long as all other conditions are met. There is no authority for saying that a person who completes 45.051 deferred for a citation is not eligible for an expunction. I was not aware any DA's offices (including Dallas) took such a position. If you are aware of jurisdictions that currently oppose expunction of citations on this basis, please let us all know.

Gritsforbreakfast said...

@11:48: I believe many cops right now would arrest a mouthy motorist just because the law says they can. If the law said they can't, a subset will still be willing to perjure themselves, etc.. But most cops are not lawless rogues. One can indulge outsized cynicism, I suppose, if you have a lot of spare time and don't mind being more angry than right. But I'm not sure I see the point of smearing all cops with the actions of the worst ones.

Anonymous said...

Grits - I believe most cops nowadays would not make a custody arrest of a mouthy motorist, specifically because of the Bland interaction if the only reasons for the traffic stop/interaction is traffic related. It was a learning point for many, including LE. Mind you a mouthy motorist might talk himself/herself from a written warning to a citation or multiple citations.

Gritsforbreakfast said...

I didn't say "most," 7:40, I said "many." That's undeniable; it still happens. For cops who stopped after the Bland episode, they shouldn't mind if the law is changed. For those still doing it, we need the law.

Anonymous said...

Amnesty program for driver surcharges as promised by DPS last session? They told the ledge they'd do it and then pushed it way back until this month before the session begins. I am dumbfounded at how many people are sitting in these county jails for DWLI charges resulting from these BS surcharges that should have been addressed the last session. I forgot the representative's name that authored the bill which prohibited the state from suspending a persons license for being unable to pay these unconstitutional surcharges - the bill that passed both chambers yet died in Calendars Committee behind some BS campus carry. All they'd have to do is dust off last sessions bill and resubmit it. But what about this amnesty period during the interim? Do you have any updates on the issue? Tired of letting workers go when they get caught in this mess and spending the money I do to advertise, hire and train their replacements only to see them get caught up in this nonsense. It's a never ending cycle. When you find time, please light that fire. From a business owners standpoint, I will be more vocal than I've ever been. It'd almost be worth starting a campaign to identify the incumbents in the next election and vote for the other guy. These people are just stuck in their ways. And while we're at it, lets toss the speaker. Thank you.

Gritsforbreakfast said...

Are they doing another Amnesty 10:20? I thought they'd backed off of that. You may have more updates than me.

Anonymous said...

I had the experience of being sent to jail over a Class C. The cop was not thrilled when I told him our entire interaction was being filmed (he was aggressive and belligerent) after I asked if his body cam was filming and he told me it was not. He told me to step out of the car, and I said 'For a class C?' and he said 'Yep.'

He asked for my phone when we got out of the car in the Sally port. I told him he might have issues, since there's is a lot of confidential attorney-client emails on there. He told me he's not going to read anything between me and my attorney. That's when I said 'No, I send e-mails to my clients from my phone sometimes.'

I was fortunate the judge cut me loose in under 30 minutes, but it gave me a real chill to think of those who would be less fortunate than myself. Normally you have to wait until 11 p.m. and/or 11 a.m. to see a judge at the jail. Had I not had the ability to call him to come release me, I would have been there until that night at the earliest. For someone who might have kids at school, an hourly job, etc. a simple 'trip on a Class C' could be a huge issue.

Gritsforbreakfast said...

@ 6:21, shoot me an email privately at gritsforbreakfast@gmail.com. I'd love to get you to tell that story to decision makers.

DocMerlin said...

Happened to a friend of mine, she spent the weekend in jail for expired license and failure to update her place of residence.

Anonymous said...

Gritsforbreakfast - I read about the amnesty period being pushed back to December (this month) from your blog. I've been following the DRP issue for the last six years and get my skinny on the latest from your blog post. Check your archives. DPS promised the ledge they would roll out an amnesty period during the interim. Then they hog washed and pushed it back until December just before the ledge was to convene in January to meet that promise. They were complaining about some tech issues I believe. I know I didn't just dream this up because I religiously watch what you write on this topic. Am I crazy? Did something change that I'm not aware of? Could be but I hope not. We need to get that fire burning early and really get aggressive with our reps if we have any chance of reversing this unconstitutional nightmare. I'm in Sen. Bob Hall's ear at least once a month on this issue and he's on board. It won't be enough to simply change the law because just doing that will only benefit those moving forward after the change. There are millions out there that need the ledge to cover them as well. It is costing business owners a lot of money when our employees get caught up in this mess (advertising, training, and so on). I've had to let many good men go because they can't deliver our products and this really hurts both financially and spiritually because those were damn good employees and friends. Thank you.