Monday, July 09, 2007

Prosecutors Justify Awful Unlawful "Lawful" Order

So if an officer arrests you for failing to obey a lawful order (refusing to exit your car at a traffic stop), and Texas has no such crime on the books, hasn't the officer then, by definition, given you an UN-lawful order?

That's the implication to me of this interesting string from the District and County Attorney Association discussion boards. In Cherokee County, though, a local prosecutor hopes to bail out an officer who arrested someone for this off the books offense. Rather than drop the charge, the prosecutor goes fishing for other offenses to pin on the driver.

At first he hopes to go for "resisting arrest or detention," but a colleague informs him that "Passive resistance could not justify a charge of resisting arrest/detention. There must be force directed against the officer for resisting arrest." (Sounds like Cherokee County prosecutors don't know the law much better than the cops!)

Another ADA informed him that "
You can't be arrested for refusing to step out of the vehicle," though there was disagreement on that point.

Even those who thought the driver could be charged (with "interference with public duties") said that the state must explain "
why did the officer want the driver out of the car in this case?" The Cherokee prosecutor did not supply that pivotal information, so there's no way to judge. But the discussion string supplies another example of prosecutors seeking after the fact to justify whatever bullying behavior an officer chooses to engage in on the ground.

When an officer arrests someone for a crime that doesn't exist, I'd expect a prosecutor interested in "seeking justice" to dismiss the charges, apologize to the driver, and insist on additional training before letting the cop in question go back onto the streets. What we see from this string at the prosecutors' association, though, is a much more typical response: Justify the officer's actions, right or wrong, by any possible means. Then we wonder why the prisons and jails are full.


Anonymous said...

My favorite part is where blowhard John Bradley explains in detail the definition of what is a lawful order when the crime of refusing a lawful order doesn't exist!

A legend in his own mind, that one.

Anonymous said...

John Bradley and the people that elected him are fools.

They think the legal system works for their convenience.

Unfortunately the Texas courts think the same way.

Someone tell them that the purpose of the courts is to protect the rights of the minority against the power of the majority.

That is the way we preserve our democracy. Texas Judges have forgotten that they're supposed to uphold the Constitution and Bill of Rights.

John Bradley should understand this but clearly he does not. He thinks his job is to protect the rich conservatives that vote for him.

Anonymous said...

Prosecutors in cases like this are ONLY doing what appeals courts do an a regular basis. In the civil area, a trial court judgment will be sustained if there is a preponderance of the evidence to sustain it on any legal theory, even if the trial court's judgment was based on some other reason or theory. In the criminal arena, convictions are sustained if there is evidence beyond a reasonable doubt to uphold the conviction on any ground, even though the conviction may have been based on some other theory. Prosecutors are, all to frequently, doing on the job training for becoming judges.

Anonymous said...

More training for the officers? Should there be more training for the people the cops want to arrest, instead of prosecution?

Cops have their own copy of the penal code. If they cannot obey the law they must be punished with imprisonment.

For taking the law into his own hands, that cop should be prosecuted for falsifying a police report, false arrest, kidnapping, and false imprisonment. Thirty to fifty years in prison should straighten him out. If not, back to prison with him.

Anonymous said...

I gotta disagree here. The Supreme Court has ruled that officers can order a driver or passenger out of the vehicle during traffic stops.

If you order someone out and they refuse, then the officer can arrest them for failure to obey a lawful order. I've done it before and the charges have always stuck.

Of course, it helps if you can articulate why it was necessary to order them out. For example, it's too dangerous to search a car with someone sitting in it. It's also impossible to frisk a person sitting in a car.

Gritsforbreakfast said...

Except that if you arrest them for "failure to obey a lawful order," that charge doesn't exist in Texas law. Therein lies the rub.

What would be the actual charge in the indictment, in your experience?

Anonymous said...

In my local jurisdiction, there is a city ordianace titled "Failure to Obey Lawful Order" that they are usually charged under.

If that law doesn't exist in other jursidictions, you could use Interferance with Public Servant IF you can articulate why it prevented you from doing your duty. However, you can't just order someone out of the car for the heck of it and expect it to stick.

Anonymous said...

Fail to Obey does exist in Austin BTW. Class C violation due to being a city ord.

Gritsforbreakfast said...

Wow, so it's literally jurisdiction by jurisdiction whether that charge exists or not, and where it does it's a Class C?

That makes a certain, weird amount of sense, I guess. The prosecutor's string said it was an offense in the military but not in Texas state law. Does anybody know what level of offense it is to disobey a lawful order from an MP?

Anonymous said...

(A) A person commits an offense if the person knowingly fails or refuses to comply with an order or direction of a peace officer that is given by a visible or audible signal.

(B) A person commits an offense if the person knowingly obstructs, prevents, or interferes with a peace officer engaged in the discharge of the officer's official duty.

(C) It is an affirmative defense to a prosecution for a violation of this section that the peace officer's order or direction, or duty being performed is unlawful.

Per Austin City Code

Anonymous said...

You say that 'failure to obey' doesn't exist in Texas law. You are wrong. Under the Texas Transportation Code, section 542.501:
"A person may not wilfully fail or refuse to comply with a lawful order or direction of a police officer"

Traffic stops are one of the most dangerous things an officer does, this is why we are allowed to instruct someone out of a vehicle. In fact, with so many instances of officers being struck by vehicles during traffic stops, it's good practice to have drivers exit their vehicles on every traffic stop.

In regards to jails being full, traffic arrests are released within hours. The real reason for the overcrowding is that the population is increasing exponentially and new jails are not being built anywhere near the same rate.