constable legislative update 85th legislative session

10/5/2017

1

Constable Legislative Update85th Legislative Session

Presented by JPCA

and

The Texas Justice

Court Training CenterTCOLE Course #3185

1

Texas Legislature Online: www.capitol.state.tx.us

• Look up Bills and Bill Analysis

• Track Bills

• Search by Subject

• Search by Author

• Search Texas Statutes & Constitution

2

Legislative Research

3

10/5/2017

2

Bills filed comparison

4

Bill Effective Dates

All bills, unless otherwise noted, take effect on September 1, 2017.

5

Law Enforcement Bills

6

10/5/2017

3

HB2908 Hate Crimes against LE

•Adds peace officers and Judges to the Texas hate crime statute, which makes certain crimes committed because of bias or prejudice against someone's status as a peace officer or Judge qualify for enhanced penalties.

•Applies to crimes of arson, criminal mischief, graffiti and the offenses against people listed in Penal Code Title 5.

•Also raises penalties for four individual crimes when the crimes are committed against peace officers and judges.

*Article 42.014(a), Code of Criminal Procedure, Section 20.02(c) & 22.07, Penal Code

7

HB3042 Fallen LE Day

•Designates July 7 as Fallen Law Enforcement Officer Day, to be regularly observed by appropriate ceremonies. (July 7 commemorates the day in 2016 when five law enforcement officers were killed in Dallas.)

•Effective Immediately

*Subchapter C, Chapter 662, Government Code

8

HB297 L.E. Appreciation Day

•Was inspired by the tragic events of July 7, 2016, that took place in downtown Dallas.

•Texas will join the growing list of entities who observe the national event by designating January 9 as Law Enforcement Appreciation Day in Texas.

*Amends Subchapter C, Chapter 662, Government Code

9

10/5/2017

4

HB1983 PTSD

•Allows first responders to receive workers' compensation for post-traumatic stress disorder (PTSD), provided that they are diagnosed with PTSD caused by an event occurring in the course and scope of the first responder's employment, and that the preponderance of evidence indicated that the event was a substantial contributing factor of the disorder.

*Amends Subchapter B, Chapter 504, Labor Code

10

HB2619 Mental Health Grant

•Requires the Governor's Criminal Justice Division to create a “peace officers mental health” grant program, as well as a “critical incident stress debriefing” grant program.

•Many recognize that law enforcement officers experience trauma in the course of fulfilling their duties and could benefit from programs, practices, and services to help address health issues associated with the trauma as well as exposure to critical incidents.

*Subchapter A, Chapter 772, Government Code

11

HB1545 Peace Officer License

•Requires TCOLE to establish a procedure under which credit hours earned for the successful completion of certain high school courses can be counted toward the hours of training required of an applicant for a peace officer license.

• Intended to assist and to encourage high school students seeking a career in law enforcement.

*Subchapter D, Chapter 1701, Occupations Code

12

10/5/2017

5

SB1253 Electronic Recordings

•Creates statewide procedures for the recording of custodial interrogations performed by Texas law enforcement agencies.

•Requires law enforcement to record custodial interrogations of all serious and violent felony offenses, unless good cause existed that made electronic recording infeasible.

*Amends Chapter 2, Code of Criminal Procedure

13

HB245 Death by Peace Officer

•Amends current law relating to officer-involved shooting reporting requirements and provides a civil penalty.

•For failure to report officer involved shootings, there is a $1000 civil penalty for each day after the 7th day past the deadline for agencies that do not report.

•Also creates a criminal justice web portal and changes certain deadlines, in an effort to streamline the processes for certain reports to the attorney general.

*Amends Articles 2.139(c) and (e), Articles 2.1395(b) and (c), Code of Criminal Procedure14

SB1138 Blue Alert System

•DPS, with cooperation from TxDOT, is required to develop and implement a statewide "blue alert" system to help apprehend individuals suspected of killing or causing serious bodily injury to a law enforcement officer (similar to the amber and silver alert systems).

*Chapter 411, Government Code

15

10/5/2017

6

SB12 Bulletproof Vests

•Creates a grant program for bulletproof vests and body armor through the Governor’s Office.

•The Governor’s Office may use any revenue available for this grant.

•An LE agency can apply for the grant only if they adopted a policy addressing the deployment and allocation of vests or plates to its officers and the use of the equipment by its officers.

*Chapter 772, Government Code Slide 1 of 2

16

SB12 Bulletproof Vests

•After receiving a grant, an agency would have to provide the criminal justice division with a proof of purchase, including the price and quantity of each type of item purchased.

•Vest or plates must comply with National Institute of Justice standards for rifle protection.


17

HB2009 Hunter Education

•Amends the Parks and Wildlife Code to broaden the exemption from the requirement to complete a hunter education course to include peace officers and other service members.


*Section 62.014, Parks and Wildlife Code

18

10/5/2017

7

HB683 Insignia and Badges

•Eliminates the private use of law enforcement insignia and badges.

•Amends current law relating to the prosecution of the offense of possession or use of law enforcement identification, insignia, or vehicles in a municipality and the clarification of the offenses of false identification as a peace officer and misrepresentation of property.

*Amends Section 341.904, Local Government Code

19

HB3223 Sale of LE Vehicles

•Prohibits a person or political subdivision from selling or transferring a marked patrol car or other law enforcement motor vehicle without first removing any equipment or insignia that could mislead a reasonable person to believe that the vehicle is a law enforcement vehicle.

•Violators will be liable not only for damages resulting from the criminal misuse of the vehicle, but also to the state for a civil penalty of $1,000.00.

*Section 272.006, Local Government Code, Subchapter C, Ch. 728, Transportation Code

20

HB1249 Non-Licensed Vehicles

•Prevents any confusion that may arise from the operation of non-licensed EMS vehicles and requires the removal of certain identifying features before such a vehicle can be driven in public.

•Amends current law relating to a prohibition of certain motor vehicles resembling emergency medical services vehicles and creates a criminal offense.

*Amends Subchapter A, Chapter 773, Health and Safety Code

21

10/5/2017

8

SB4 Sanctuary Cities

• Relating to the enforcement by certain governmental entities of state and federal laws governing immigration and to the duties of law enforcement agencies concerning certain arrested persons.

• Provides that: a local entity shall not adopt, enforce, or endorse a policy that prohibits or discourages the enforcement of immigration laws

•A local entity may not by demonstrable pattern or practice prohibit the enforcement of immigration laws


22


•Definitions:

• Lawful detention: excludes victim of or witness to a criminal offense or

• Is reporting a criminal offense

• Local entity: municipality, county, special district; officer or employee of above

• Including sheriff, police department, city attorney, district attorney

Slide 2 of 13

23


Definitions:• Local entity excludes hospitals, hospital police,

school district police, public health departments, community centers, local mental health authority

Slide 3 of 13

24

10/5/2017

9


•A local entity shall not prohibit or materially limit a peace officer from doing any of the following:

oinquiring into the immigration status of a lawfully detained or arrested person; owith respect to information relating to the immigration

status, lawful or unlawful, of any person under a lawful detention or under arrest: osending the information to or requesting or receiving the

information from Citizenship and Immigration Services or ICE, including information regarding a person's place of birth;

Slide 4 of 13

25


omaintaining the information; or oexchanging the information with another local

entity or a federal or state governmental entity

•Assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance; or

• Permitting a federal immigration officer to enter and conduct enforcement activities at a municipal or county jail to enforce federal immigration laws.

Slide 5 of 13

26


• Sec. 752.053 (c) Notwithstanding subsection (b)(3), a local entity or campus police department may prohibit persons who are employed by or otherwise under the direction or control of the entity or department from assisting or cooperating with federal immigration officer if the assistance or cooperation occurs at a place of worship.

Slide 6 of 13

27

10/5/2017

10


• Sec. 752.054 Discrimination is prohibited• Sec. 752.055 Complaint; equitable relief•AG to enforce complaint by filing petition for a

Writ of Mandamus with the District Court in Travis County or county where the entity is located.• Sec.752.056 Civil Penalty• $1,000 minimum 1,500 maximum 1st violation• $25,000 for each subsequent violation

Slide 7 of 13

28


• Sec. 752.0565 Removal from office•A person holding an elective or appointive office

of a political subdivision who violates section 752.053 causes an act that causes the forfeiture of the person’s office•AG will file petition under section 66.002 CPRC• If person is found guilty the court shall enter

judgment removing the person from office.

Slide 8 of 13

29


•Article 5. Prohibited Conduct by Sherriff or Constable Section 87.031, Local Govt Code• (c) “a misdemeanor involving official misconduct”

includes a misdemeanor under Section 39.07, Penal Code.• Sec. 5.02 Chapter 39, Penal Code is amended by

adding Section 39.07

Slide 9 of 13

30

10/5/2017

11


• Section 39.07, Failure to Comply with Immigration Detainer Request. • Sheriff, Constable, chief of police or person who

otherwise has primary authority for administering a jail commits an offense if:•Has custody of a person subject to immigration

detainer request and knowingly fails to comply•Offense is a Class A misdemeanor

Slide 10 of 13

31


• It is an exception if the person detained proves that he is a citizen of the United States or has lawful immigration status in the US

Slide 11 of 13

32


•Article 6. Inquiry by Peace Officer regarding Immigration or Nationality of Crime Victim or Witness• Section 6.01. Article 2.13, Code of Criminal

Procedure (d)•During an investigation an officer MAY inquire as

to the nationality or immigration status of a victim of or witness to the offense only if the officer determines that the inquiry is necessary to:

Slide 12 of 13

33

10/5/2017

12


• Investigate the offense or• Provide the victim or witness with information about

federal visas designed to protect individuals providing assistance to law enforcement

• Subsection (d) does not prevent a peace officer from:oConducting a separate investigation of any other offense

oInquiring status if the officer has probable cause to believe that the victim or witness has engaged in specific conduct constituting a separate criminal offense.

Slide 13 of 13

34

SB1849 Sandra Bland

• Relating to interactions between law enforcement and individuals detained or arrested on suspicion of the commission of criminal offenses and the confinement or release of those individuals prior to prosecution.

• Changes “mental retardation” to “Intellectual disability”

*Makes various changes to the Occupations Code,1701.253,352,402 and Art. 16.22 Code of Criminal Procedures and 539.002 Government Code

Slide 1 of 6

35

SB1849 Sandra Bland

• Makes changes to laws on the identification and screening of an arrestee who might be a person with a mental illness or an intellectual disability and on diversion to treatment by law enforcement agencies of a person suffering a mental health crisis or suffering from the effects of substance abuse.

• Must be reasonable; offense is a misdemeanor not involving violence; that the mental health or substance abuse is suspected to be the reason for the offense

Slide 2 of 6

36

10/5/2017

13

SB1849 Sandra Bland

• Revises laws to community collaborative grants to include local law enforcement.

•Grants available to deal with issues of homelessness, substance abuse and mental illness

• Consideration is made for Collaboration of 2or more counties each with a population of less than 100,000

Slide 3 of 6

37

SB1849 Sandra Bland

• Requires the Commission on Jail Standards to adopt rules and procedures addressing jail safety, establish requirements for reporting serious incidents in jails (8 listed).

• Provide access to health/mental health services , to include telehealth

• Cameras or sensors to ensure in-person checks of at-risk-individuals

• and revise training requirements for certain law enforcement authorities.

Slide 4 of 6

38

SB1849 Sandra Bland

• Revise training requirements for certain law enforcement authorities

•Occupations Code 1701.253; 1701.352; 1701.402 are revised to include de-escalation with the public and techniques for limiting use of force that would cause bodily injury

• Sec. 5.01, Art. 2.132 and 2.133 CCP

Slide 5 of 6

39

10/5/2017

14

SB1849 Sandra Bland

• Expands reporting of certain types of information about law enforcement activities with regard to racial profiling.

• To include public education on compliments and complaints

•Use of physical force

• Location and reason for stop

• Review of information body worn cameras, number of searches and stops

Slide 6 of 6

40

How to oppose a Bill

HB 2412 by Rep. Schofield, Service by Private Process Servers (18 and breathing)

41

SB42 Court Security

• Creates the position of Director of Security and Emergency Preparedness at OCA to provide guidance & technical advice.

• Establishes local court security committees to develop policies & procedures for their jurisdictions. Only recommends use of resources & fund expenditures.

• Prohibits a person from serving as court security officer unless training and TCOLE certification of court security officers.

*Makes various changes to Code of Criminal Procedure, Government Code, Election Code, Local Government Code, Occupations Code, Property Code, Tax Code and Transportation Code

Slide 1 of 3

42

10/5/2017

15

SB42 Court Security

• Requires sheriffs, constables and LE agencies to verify their staff are TCOLE certified with court security training.

• Authorizes & clarifies that any commissioned officer, and DPS, can provide personal security, at any location in Texas, regardless of officer’s employing department.

• Clarifies all court security incident reports are to be completed by the LE agency to OCA.

*Makes various changes to Code of Criminal Procedure, Government Code, Election Code, Local Government Code, Occupations Code, Property Code, Tax Code and Transportation Code

Slide 2 of 3

43

SB42 Court Security• Redaction of former or current state judges‘, federal judges (and family members)

personal information and address information from public documents such as: financial disclosure statements, voter registration, property deeds, local property appraisal records, DL records. (DL address will reflect courthouse address)

▪ Adds a $5 filing fee in civil cases to pay for court security training.

• Requires Court of Appeals to grant legal funds to statewide associations to provide court security training.

* Makes various changes to Code of Criminal Procedure, Government Code, Election Code, Local Government Code, Occupations Code, Property Code, Tax Code and Transportation Code

Slide 3 of 3

44

HB2552 Prostitution/Trafficking

• Changes to laws related to prostitution, human trafficking, and the operation of certain massage services.

• Improved data collection by requiring Bureau of Identification and Records to track and analyze prostitution arrests, segregated by buyer and seller, and promotion of prostitution arrests statewide

•Holding business out as being a massage establishment while failing to be licensed is made a deceptive business practice

*Section 17.46(b), Business & Commerce Code, Section 125 Civil Practice and Remedies Code Slide 1 of 4

45

10/5/2017

16


•Adds operating a computer network in connection with human trafficking to the list of public nuisances

• Lowers the burden of proof with respect to nuisance and abatement actions brought against unlicensed massage establishments and those where prostitution arrests have occurred on premises

• Requires signs containing information on reporting human trafficking in hospital emergency rooms if the hospital is an abortion facility

• Ch. 241 Health & Safety Code, Ch. 1602 Occupations Code

Slide 2 of 4

46


•Requires information on human trafficking identification and reporting to be included in continuing education programs for cosmetology license holders and signage with reporting information to be displayed on premises at licensed cosmetology facilities (hair, nails, skin beautification)

•Makes trafficking a first degree felony if it results in the death of the unborn child of a trafficking victim

1602.354 Occupations Code, Sec. 20A.02 (b) Penal code Slide 3 of 4

47

HB2552 Prostitution/Trafficking• Makes it an assaultive offense and a Class A

misdemeanor to force someone to have an abortion

• Creates the crime of "sexual coercion" which is threatening to commit any one of a range of assaultive/sexually abusive offenses in order to compel the victim to provide intimate visual materials containing images of himself/herself

• Creates an eviction process for property owners/landlords who lease commercial property and who reasonably suspect human trafficking or prostitution is occurring on the leased premises.

Sec. 21.18 Penal Code, 93.013 Property Code Slide 4 of 4

48

10/5/2017

17

Family

49

SB257 Family Violence

• Strengthen victims' rights while closing a loophole that has been abused within the justice system.

• Under previous law, perpetrators of certain acts of serious or repeated violence that resulted in the issuance of a protective order for the victim of such acts were able to file multiple motions to challenge the continuing need for that protective order.

*Section 85.025, Family Code Slide 1 of 2

50

SB257 Family Violence

•This bill provides increased protection for the victims by limiting the number of such motions to one and by prohibiting any such motion relating to a protective order issued for a victim of sexual assault or abuse, stalking, or trafficking.

Slide 2 of 2

51

10/5/2017

18

Civil

52

SB920 Property Retrieval

•Allows the court to issue a temporary ex parte writ authorizing entry and property retrieval to a residence if the current occupant poses a clear and present danger of family violence, as defined under Section 71.004, Family Code, to an applicant or to an applicant's dependent. •A person granted this writ may only enter their

residence if accompanied by peace officer, and may only retrieve the items specifically authorized to be retrieved.

*Chapter 24A, Property Code Slide 1 of 3

53

SB920 Property Retrieval

•Also adds "copies of electronic records containing legal or financial documents" to the list of personal property that may be retrieved under a writ authorizing entry and property retrieval and defines what is considered an electronic record.

Slide 2 of 3

54

10/5/2017

19

HB1128 Dates Sale of Property

• If the first Tuesday of the month falls on January 1 or July 4, then the first Wednesday, between 10am and 4pm, of the month should be used for sale of real property.

*Section 34.041, Civil Practice and Remedies Code, Sections 51.002, Property Code, Section 34.01, Tax Code

55

Guns

56

HB1819 Firearm Silencer

•Allows firearm silencers to be possessed, manufactured, transported, repaired, or sold if they are done so in compliance with federal law (or classified as a curio or relic by the U.S. Department of Justice.)

*Amends Sections 46.05(a) and (e), Penal Code

57

10/5/2017

20

HB435 Handgun Law

•Allows volunteer emergency services personnel to carry their licensed handguns while engaged in providing emergency services.

•Also adds United States attorneys and assistant US attorneys to the list of individuals to whom a license to carry must be issued, if certain requirements are met, and a fee waiver

*Amends Title 5, Civil Practice and Remedies Code, Amends Section 411, Government Code, Amends Subchapter A, Chapter 552, Health and Safety Code, and Sections 30 and 46 of Penal Code

58

HB435 Handgun Law

•Prohibits carrying a handgun I and requires signage at State Hospitals listed: •Austin State Hospital• Big Spring State Hospital• El Paso Psychiatric Center• Kerrville State Hospital• Rio Grande State Center• Rush State Hospital• San Antonio State Hospital• Terrell State Hospital•Waco Center for Youth

59

Taxes

60

10/5/2017

21

HB457 Taxes

•Amends current law relating to the confidentiality of certain home address information in ad valorem tax appraisal records.

•Makes home address information confidential for current or former peace officers (as defined by Art. 2.12 CCP), spouses or surviving spouses of peace officers, and adult children of peace officers


*Section 25.025 Tax Code

61

Traffic

62

SB1187 Operating Vehicle without Insurance

•Requires that a citation issued for operating a motor vehicle without financial responsibility have an affirmative indication that the peace officer was unable to verify financial responsibility through the State’s Financial Responsibility Verification Program. In order to issue a citation for no insurance, an officer must attempt to verify through the verification program whether financial responsibility had been established.

*Sections 601 and 708 Transportation Code

Effective immediately

63

10/5/2017

22

HB62 Texting While Driving

•Makes it a misdemeanor offense for a driver to use a portable wireless communication device to read, write, or send an electronic message while operating a motor vehicle unless the vehicle was stopped. To be prosecuted, the behavior must be committed in the presence of or within the view of a peace officers or established by other evidence.

•Does not apply to law enforcement vehicles acting in an official capacity.

*Amends Transportation Code: Sections 521.161(b) and (c), 543.004(a), 545.424, 545.425, Subchapter I, Chapter 545, and 708.052

64

HB590 Roadside Assistance

•A first responder who provides roadside assistance is not civilly liable for damage to the vehicle related to the assistance, unless damage occurred due to an act of gross negligence, recklessness, or intentional misconduct.

*Amends Title 4, Civil Practice and Remedies Code, by adding Chapter 78A

Slide 1 of 2

65

HB590 Roadside Assistance

•A first responder includes a peace officer, fire fighter, or emergency services personnel.

• Liability protections extend to assistance provided to the driver or passenger of a vehicle and related to its operation, such as jump-starting a car, replacing the battery, lockout assistance, replacing a flat tire, and breakdown assistance.

Slide 2 of 2

66

10/5/2017

23

HB1790 Disabled Placards

•Streamlines the process to keep it at the county level when a disabled parking placard gets revoked

•Deletes existing text requiring the Texas Department of Motor Vehicles: “on request of the person from whom a placard was seized, to conduct a hearing and determine whether the revocation should continue or the placard should be returned to the person and the revocation rescinded.”

*Amends Section 681.012(b), Transportation Code

67

General

68

SB47 Fine Only Offenses

•Office of Court Administration study on convictions and deferred dispositions for certain fine only offenses and submit a report of these findings to the legislature.

*An Act to study Class C Misdemeanors

69

10/5/2017

24

SB79 Public Information

•Streamlines access to public information by allowing state agencies to respond to information requests with an Internet address where requested information may already exist.

*Sections 552.221(b-1) and (b-2), Government Code

70

SB344 Mental Health

•Gives EMS personnel the authority, under certain conditions, to transport persons in mental crisis to emergency detention after being taken into custody without a warrant by a peace officer.

•This will better serve public health by providing a more appropriate means of transport.

*Chapter 573, Health and Safety Code Slide 1 of 2

71

SB344 Mental Health

• Requires a memorandum of understanding between various parties.

• The existing notification of detention that officers file with a facility upon transport would still be completed by the officer, but would be filed at the facility by the emergency medical services provider who has accepted transfer.

• Effective Immediately

Slide 2 of 2

72

10/5/2017

25

SB500 Public Officials

• Elected officials who commit certain felonies arising from the official duties of office while in office should not receive payments from the public retirement systems and should also vacate such office on final conviction of any felony

• Seeks to make certain public officials ineligible for service retirement annuities under the applicable public retirement system and to provide for such vacation of office.

*Chapter 810, Government Code

73

HB1503 Child Abductions

•Amends the Code of Criminal Procedure to change the deadline by which a local law enforcement agency is required, on receiving a report of an attempted child abduction, to provide any relevant information to the missing children and missing persons information clearinghouse.

*Article 63.0041, Code of Criminal Procedure Slide 1 of 2

74

HB1503 Child Abductions

•Directs local law enforcement agencies to input the information as soon as practicable, but no later than eight hours after receiving the report.

•Directs that information not immediately available be entered into the clearinghouse as a supplement to the original entry as soon as possible.

Slide 2 of 2

75

10/5/2017

26

HB1619 Outdoor Burning

• Lessens the offense of outdoor burning for first time offenders to a class C enabling law enforcement to write a ticket instead of arresting.

•However, for 2nd offense, is a Class A misd.

•2nd or subsequent offenses and is burning certain dangerous material, is still a class A offense.

*Section 382.018, Health and Safety Code, Section 7.187(b), Water Code

76

Federal Case Law

77

United States v. Phillips11TH Circuit Court of Appeals

•August 23, 2016 11st Circuit Court of Appeals decided the United States v. Phillips in which they examined whether a search incident to arrest based upon an arrest for Writ of Bodily Attachment was reasonable under the fourth amendment.

78

10/5/2017

27

US v. Phillips

•In early 2014, Phillips was wanted in questioning about a recent shooting and failing to pay child support.

•A Florida Court issued a writ of bodily attachment for unpaid child support.

79

US v. Phillips

•The Attachment ordered the police to take into custody…and confine him in the county jail.

•Allowed to purge this contempt by paying $300.00

80

US v. Phillips

•2 days after the contempt order was issued, Miami-Dade police issued a “Wanted for Questioning” flyer with his name and picture and mentioned the recent shooting and the Writ of Attachment”.

• Instructed police to detain Phillips on sight.

81

10/5/2017

28

US v. Phillips

•On March 1, officer Nelson Rodriguez spotted Phillips on same street corner where shooting occurred. Rodriguez knew of flyer and Attachment

•As Rodriguez approached to arrest, Phillips reached down toward his waistband.

82

US v. Phillips

•Rodriguez grabbed Phillips right hand and felt a metal bulge in his waistband.

•Rodriguez removed the bulge, a loaded .380 caliber firearm.

83

US v. Phillips

•Phillips, a convicted drug dealer was not allowed to have a firearm. Was indicted by a federal grand jury on one count of being a felon in possession of a firearm and an armed career criminal

84

10/5/2017

29

US v. Phillips

•Phillips filed a motion to suppress the firearm and the district court denied the motion.

•Phillips filed an appeal with the Eleventh Circuit Court of Appeals

•Phillips argued that an officer is not permitted to conduct a search incident to arrest, when a person is taken into custody on a civil writ of bodily attachment.

85

US v. Phillips

•The issue on appeal was whether a civil writ of bodily attachment based on unpaid child support is a “warrant” within the meaning of the Fourth Amendment such that a search incident to arrest is permitted.

86

US v. Phillips

•The Court examined the Fourth Amendment and noted that:

•For a warrant to be valid, it had to be sworn and supported by probably cause and also determined that:

•A court will issue a writ of bodily attachment for unpaid child support if it determines, by the preponderance of the evidence, that a person is liable for civil contempt of court”

87

10/5/2017

30

US v. Phillips

•The Fourth Amendment does not require warrants to be based on probable cause of a crime, as opposed to a civil offense.

•Noting in the original public meaning of “probable cause” or “Warrants” excludes civil offenses.

88

US v. Phillips

•At the founding, “probable cause” meant “made under circumstances which warrant suspicion.”

•Writs of bodily assistance for unpaid child support satisfy these definitions.

89

US v. PhillipsCourt also found:

•Courts issue the writ only after they find a person liable for civil contempt by a preponderance of the evidence-a standard of proof that is higher than probable cause (US v. Sokolow, 490 US 1,7 (1989).

90

10/5/2017

31


• And a writ of bodily attachment is a “warrant”, originally defined: it orders the contemnor’s arrest and directs the he “be brought before the court”.

• That a writ of bodily attachment is based on civil contempt, as opposed to a crime, makes no difference.

• Civil attachments were common at the Founding and up through the ratification of the Fourteenth Amendment.

• Civil arrest warrants were(and still are) subject to the same standards as criminal arrest warrants (see West v. Cabell, 153 US 78, 85-86 (1894).

91


• Having determined that Civil arrest warrants are subject to the same Fourth Amendment standards as criminal warrants also compared civil contempt warrants to bench warrants.

• 11th, 2nd and 7th court circuits have held that Bench warrants satisfy the Fourth Amendment…even when the bench warrant is based on civil contempt.

92

The Eleventh Circuit held

• We conclude that a writ of bodily attachment for unpaid child support is a warrant for purposes of the Fourth Amendment.

• An arrest based on a valid warrant is per se reasonable.

• Accordingly, Officer Rodriguez could arrest Phillips based solely on the civil writ of bodily attachment for unpaid child support. And because Officer Rodriguez legally arrested Phillips, he could recover the firearm from Phillip’s waistband as part of a search incident to arrest (Birchard v. North Dakota, 136 S. Ct. 2160, 2174-76 (2016).

93

10/5/2017

32

US v. Phillips

•Thus, the court affirmed the denial of the motion to suppress.

94

Sixth Circuit Court of AppealsGetz v. Swoap,et al

•On 8/6/16 the Sixth Circuit Court of Appeals decided Getz v. Swoap, et. Al, in which they examined whether an officer’s use of handcuffs on an arrestee constituted a Fourth Amendment violation.

95

Sixth Circuit Court of AppealsGetz v. Swoap,et al

•This Fourth Amendment excessive force claim, through 42 U.S.C. 1983, arises from the familiar setting of an interaction between an officer and an angry, uncooperative citizen.

96

10/5/2017

33

Getz v. Swoap, et al.

• Getz sued Deputy Swoap for false arrest and excessive force and sued the Sheriff for failure to train and supervise.

• Swoap and the Sheriff Wood filed for summary judgment and the district court granted in favor of Swoap and Wood.

• Getz appealed, but only raised the issue of whether the initial handcuffing and alleged failure to adjust the handcuffs after Getz complained violated the Fourth Amendment.

97


• The Court discussed the law relevant to use of force under the Fourth Amendment and stated:

• We apply the Fourth Amendment’s unreasonable seizure jurisprudence when analyzing such claims. Morrison, 583 F.3d at 400. Whether an officer has exerted excessive force during the course of a seizure is determined under an “objective reasonableness” standard. Id at 401 (citing graham v. Connor 490 U.S. 386, 396-97 (1989)

98


• In assessing objective reasonableness, “courts must balance the consequences to the individual against the government’s interest in effecting the seizure” Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. 2002) (citing Graham, 490 U.S. at 396)

99

10/5/2017

34


• While the analysis is fact specific, three factors are of particular relevance:

• “The severity of the crime at issue

• Whether the suspect poses an immediate threat to the safety of the officers or others,

• And whether he is actively resisting arrest or attempting to evade arrest by flight.” Darrah v. City of Oak Park, 255 F.3d 301, 307 (6th Cir. 2001) citing Graham, 490 U.S. at 396)

100


• We judge the lawfulness of the conduct from the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Morrision, 583 F3d at 401 (quoting Graham, 490 U.S. at 396)

101


• The Court then set out to examine whether the initial handcuffing was excessive force in violation of the Fourth Amendment. The first factor was from Graham v. Connor, the severity of the crime at issue.

102

10/5/2017

35


• The initial crime committed by Getz was a defective headlight which is a minor crime.

• While this would weight in Getz’s favor, the court observed that Getz escalated the situation by his attempt to flee and his resistance; the court said that this diluted the benefit he might obtain from the initial minor nature of his offense.

103


• The Court then examined the second factor from Graham, whether Getz was a threat to the officer or others.

• The Court reasoned that Getz’s attempt to escape by driving around Swoap’s car, and stopping only after Swoap drew his firearm posed both a threat to Swoapand to the public, if a car chase would have become necessary.

104


• The Court also examined the third actor from Graham, whether Getz was actively resisting arrest or attempting to flee. The Court noted that Getz did both.

• First he attempted to flee in his car by trying to drive around Swoap. He also repeatedly told Swoap that he intended to flee.

105

10/5/2017

36


• Second, Getz resisted handcuffing by walking away, and then grabbing the hood of the police car to prevent Swoap from applying the handcuffs.

• After Getz was handcuffed, he still acted belligerently, yelled profanity at Swoap, and locked his legs to resist being placed in a police car.

106


• The Court then discussed the fact that Swoap did not double lock the handcuffs or check them for tightness, as is normally required when handcuffing an arrestee.

• The Court discussed the law related to this and stated the following:

107


• Swoap admits that he did not double lock or check the handcuffs for tightness. But even assuming the handcuffs were tight enough to cause abrasions, or tightened at some point because of the failure to double lock, a failure to take such additional cautions, in the context of a struggling arrestee now only subdued and partially mollified, is understandable and not all conduct that causes an arrestee discomfort or pain violates the Fourth Amendment. See Graham, 490 U.S. at 396 (“Not every push or shove, even if it may later seem unnecessary… violates the Fourth Amendment.”)

108

10/5/2017

37


• This is especially true where the subject resists arrest and the use of force is necessary to establish control and restrain the individual. See Burchett, 310 F.3d at 944.

• Further we have never held that an officer’s failure to check for tightness or double lock handcuffs at the moment of arrest is, per se, excessive force.

• The analysis is, as always, fact specific and based on the totality of the circumstances. Kostrezewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001).

109


• The Court then held that due to Getz’s noncompliance and resistance, Swoap did not violate the Fourth Amendment when he handcuffed Getz and did not immediately check the fit and double lock the handcuffs.

110


• The second issue before the court was whether Swoapviolated the Fourth Amendment by failing to inspect and adjust the handcuffs after Getz allegedly complained that handcuffs were too tight.

• Regarding, this type of claim, the court stated:

111

10/5/2017

38


• In order for a handcuffing claim to survive summary judgment, a plaintiff must offer sufficient evidence to identify a genuine issue of material fact that

• (1) he complained the handcuffs were too tight;

• (2) the officer ignored those complaints; and

• (3) the plaintiff experienced “some physical injury” resulting from the handcuffing.

112


• The Court examined precedent applicable to the facts of Getz’s case and noted three applicable principles which were as follows:

113


• (First Principle):

• Excessive force handcuffing cases almost exclusively involve plaintiffs who were compliant and gave officers no reason to delay responding to their complaints, and we have always noted such compliance. See, e.g. Baynes v. Cleland, 799 F. 3d 600, 604 (6th Cir. 2015)

114

10/5/2017

39


• (Second principle)

• Even case in which a noncompliant arrestee resists or flees fail to provide much guidance to officers in defining the contours of the right to be free from excessively tight handcuffing.

• In many of those cases we found no violation either because officers immediately responded when the arrestee complained, see. e.g. Burchett, 310 F 3d at 945, or because the arrestee failed to complain at all, see e.g., Lyons v. City of Xenia, 417 F3d 565, 576 (6th Cir. 2005)

115


• (Third principle)

• To the extend we have addressed cases in which an arrestee disobeys an officer, we have noted that in excessive force cases the fact of noncompliance amounts to a “critical difference” and accordingly condoned greater use of force than we would have had the arrestee been compliant. See Marvin v. City of Taylor, 509 F.3d 234, 248 (6th Cir. 2007).

116


• (Third principle cont’d.)

• “We find that the Defendants did not violate (Plaintiff’s) Fourth Amendment rights … because the Defendants acted in an objectively reasonable manner in light of (Plaintiff’s) heavily intoxicates state, abusive language, and his resistance to arrest.”

117

10/5/2017

40


• The Court, based on testimonial evidence and evidence from radio and CAD reports was able to determine that Getz was in handcuffs for a very short period of time until they were removed to allow him to use an inhaler.

• Based on this, the court stated:

118


• The district court was correct in stating that “the relatively short time frame in which Mr. Getz was in handcuffs, coupled with the officer’s prompt action in removing them upon a subsequent request after he had subdued Mr. Getz, at worst, falls into a category ‘in which qualified immunity operates to shield officers from discretionary, on the spot judgments.’” Getz, 2015 WL 1530643, at *12 (quoting Fettes, 375 F. App’ x at 534)

119


• Getz was in handcuffs for about four and a half minutes before Spees arrived.

• Trisha and Mrs. Getz, plaintiff’s primary witnesses, both agree that the handcuffs were removed very shortly after Spees’ arrival.

• It is undisputed that Getz attempted to flee and resisted arrest.

• He continued to resist and use abusive language towards Swoap for at least some period of time after he was placed in handcuffs.

120

10/5/2017

41


• As such, the court held that a “reasonable competent officer could conclude that Swoap’s actions were lawful.” As such, he did not violate the Fourth Amendment.

• Therefore, the court of appeals upheld the decision of the district court in favor of Deputy Swoap.

121

Six Circuit Court of AppealsGetz v. Swoap et. al

• At the outset of the opinion, District Judge Cleland made a statement that rings particularly true in today’s politically charged atmosphere that surrounds opposition to law enforcement.

• Judge Cleland began the opinion by stating:

122

Six Circuit Court of AppealsGetz v. Swoap et. al

• This Fourth Amendment excessive force claim, through 42 U.S.C. 1983, arises from the familiar setting of an interaction between an officer and an angry, uncooperative citizen. The facts illustrate yet again why it is a bad idea to question and argue, and to physically resist an investigating officer’s reasonable commands and directions.

123

10/5/2017

42

HB 3051: Change in Race and Ethnicity Categories

• The categories used to record the race or ethnicity of persons stopped for or convicted of traffic violations:

• Removal of “Middle Eastern”• “Caucasian” changed to “White”• “African” changed to “Black”• “Asian” expanded to “Asian or Pacific Islander”• “Hispanic” expanded to “Hispanic or Latino” •“Native American” changed and expanded to “Alaska

Native or American Indian”

HB 1935: Big Knives/Blades in Public

• “Illegal knife” becomes "Location-restricted knife“ with blade over 5.5 inches”

• Removal of all the sub-classifications (i.e., dagger, hand instrument, bowie, sword spear)

• NEW CLASS C OFFENSE: PC 46.02 a-4: intentionally, knowingly or recklessly carry, under 18 and not on own premises, not in or en route to own motor vehicle or watercraft, or not under direct supervision of parent or legal guardian

• NEW CLASS C OFFENSE: PC 46.02 a-1 (plus g-1): Carrying is a Third Degree Felony if at one of the listed 46.02 (a-1) places: 51% alcohol. ld, UIL, correctional, hospital, mental health hospital, amusement park, place of worship,

HB 1424: Drones (Unmanned Aircraft)

• Adds “correctional facility” and “detention facility” to list of prohibited fly-overs (formerly, just “critical infrastructure facility”). Add to the exception list FAA-authorized commercial activity.

•

• Adds “sports venue”: seating of 30,000 or more for professional/amateur sports. Exceptions for approvals by government, LE and the venue.

• First Offense: Class B, then Class A for subsequent offenses (Government Code Sections 423.0045 & 423.0046)

10/5/2017

43

SB 179: Anti-(Cyber) Bullying: David’s Law

• PC 42.07(c): Class A Misdemeanor if committed against child under 18 with intent that the child commit suicide or engage in conduct causing serious bodily injury

• Change Education Code definition of “bullying” to include “a single significant act or a pattern of acts by one or more students directed at another student that exploits an imbalance of power….”

• "Cyberbullying“: bullying done thru any electronic communication or application.

• Location of Offense: school, and other places if interferes or disrupts educational opportunities/operations

• Schools to create a mechanism to report by third day of the incident

• Anonymity, Immunity for reports

• Reporting by school to ISD Police, PD or Sheriff

• TRO and injunctions available to cease

HB 357: Responder Families get free Pre-K [Effective Immediately]

•A child is eligible for enrollment in a prekindergarten class if the child is at least three years of age and is the child of a person eligible for the Star of Texas Award as:

•Peace officer (Gov’t Code 3106.002)•Firefighter (Gov’t Code 316.003) or •EMS responder (Gov’t Code 316.004)

SB 16: License to Carry is more affordable

• Judicial Officers: $25 application fee [411.201(d)]

• Indigency (determined by Department): $ 5 renewal, and ½ on other fees

•60+: $ 5 renewal, and 1/2 on other fees

•Waiver of all fees for 411.1991(c) = Peace Officers

•$40 for renewal for everyone else

10/5/2017

44

HB 64: School Suspension/Positive Behavior [Effective Immediately]

Education Code 37.005(c): Below third grade can’t be placed in out-of-school suspension unless while on school property or while attending a school-sponsored or school-related activity on or off of school property, the student engages in:

Conduct that contains the elements of an offense related to weapons; conduct that contains the elements of a violent offense; or selling, giving, or delivering to another person or possessing, using, or being under the influence of any amount of marijuana, controlled substance, dangerous drug, or alcoholic beverage.

SB 128: CDL & Human Trafficking awareness

•CDL education to include education and training in recognition and prevention of human trafficking

•December 1, 2017 is deadline for Coordinating Board to come up with curriculum

Get to know your Legislator

• Do you know your state Representative and Senator?

• Can they describe what a constable does?

• The state representative who knows and respects you is much less likely to file legislation against you.

132

10/5/2017

45

Are you receiving

JPCA Legislative Updates?

If not, please give us your email.

133

2016-2017 JPCA Constable 85th Legislative Session Team

Constable Carlos Lopez – Chair, Travis

Chief Deputy Bobby Gutierrez – Vice, Travis

Constable Dale Clark, Tarrant

Constable Chad Jordan, Hood

Constable Larry Gallardo, Hidalgo

Constable Mike Truitt, Denton

Constable Roy Williams, Dallas

Constable Doc Pierce, Hunt

Jama Pantel, Travis

134

constable legislative update 85th legislative session

Documents