Ed. Note: Greg Prickett is former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.
I was initially going to wait and write a more in-depth post on the going-ons at Leon Valley, Texas,[1] but circumstances compel me to write now. The problem in Leon Valley is a heavy-handed police chief who views any dissent as something to be stopped, without regard to the niceties of complying with state or federal law.
Earlier this year, a so-called First Amendment auditor started wandering through the Leon Valley police station, video-recording what he could see. At some point, he ended up in a restricted area of the department, was confronted by the chief, Joseph P. Salvaggio,[2] and asked to leave. Instead of leaving, the auditor, Jesus Padilla, went off on the chief and ended up being arrested. I don’t see a problem with the arrest in itself,[3] but the auditor community did.
So the auditor community showed up to protest at City Hall, in which the Police Department is located, and several other issues came up. Another auditor, Jack Miller, noted that the building had signs up prohibiting both the open and concealed carry of handguns.[4] So Miller showed up, allegedly wearing a non-functional replica rubber gun openly. Instead of arresting Miller on the spot for the offense, they waited, obtained a search warrant, and sent the SWAT team to his house at midnight. This is something that appears to be completely retaliatory, but it’s within the law.
This prompted more auditors to protest. Phillip Turner, the plaintiff in Turner v. Driver on photography rights, showed up and was advised that the municipal judge had issued an order prohibiting photography in the court building. At that point I became interested, and filed an open records request for documents that I thought would be revealing.
And then the big issues arose. The protest group showed up again to register their displeasure, which included stepping on a thin-blue-line flag and generally being obnoxious, all of which is protected First Amendment rights. The police then swooped in on the protesters, arresting them for a number of charges, the most significant of which was Obstructing Highway or Other Passageway. I was not at all surprised when the arraigning magistrate dropped most of the charges as the protesters did not violate that law.
You see, to charge someone with obstructing, you have to be given an order or request to disperse, or you have to actually block the entrance. Neither of those elements were present, and without that, you don’t have a crime. So the call went out for another protest on Saturday, June 23d.
While at the protest, it was announced that Chief Salvaggio was going to have a press conference, and everyone gathered around. At this point, most of those present were arrested, cuffed, and taken into the station. The charge? Obstruction or Retaliation, a third degree felony punishable by 2 to 10 years in the penitentiary. Texas law prohibits publishing the home address or phone number of a peace officer on a website.
What happened was that a person on the chat screen for the YouTube live-stream put up Salvaggio’s home address. It’s not as if it is hard to find; it took me all of 10 minutes to find it, to determine it had a swimming pool in the back yard, that Google had blurred out the house, and to locate both potential family members and telephone numbers. It is in no way appropriate to post any of that information online, ever, especially because you don’t like what they’ve done. And this was after Salvaggio scrubbed what he could off of the internet.
The problem is that those arrested did not publish the address. Someone else did. Salvaggio stated that the individuals arrested were responsible for it, but that starts a very slippery slope. First, the individuals arrested are not the publisher of the webpage—YouTube is. Second, even if they are the publisher, they didn’t put the address out there, and the statute provides that to show intent, the publisher would have to leave it up for over 48-hours or to repost it to another website. Here, the police acted almost immediately, without even giving notice to the individuals.
In addition to the individuals arrested, a number of other people were detained in handcuffs for several hours. And, as in the prior instances, this included several with press credentials, whose cameras, cellphones, and recording devices were seized as evidence. This is a problem, because those who were collecting information for dissemination to the public are protected under federal law.[5] The police can subpoena the evidence, but they can’t seize it, at least not legally. This brings up another issue, that in Texas, unlike every other state in the union and the federal system, there is a statutory exclusionary rule for any evidence that has been seized by any person in violation of the law. In most states, it’s only the police who are covered.
If the cameras were seized in violation of federal law, they are inadmissible as evidence. If, as the activists are alleging, the police intentionally made bad arrests in retaliation or to curtail the activists’ civil rights, then the police have committed crimes. This is not good for Leon Valley, and I would imagine at some point a lawyer is going to tell the mayor what this is likely to cost the city.
[1] Leon Valley is a town of about 10,000 surrounded by the city of San Antonio. It has a police force of about 30 officers.
[2] Chief Salvaggio was retired as a captain from the San Antonio police. While a lieutenant, he was fired for cheating on the captain’s promotional test, and spent four years fighting to get his job back. After arbitration under the uniot contract, he was reinstated and promoted.
[3] The charge is still pending, and there is some question as to whether a police employee told Padilla that the area was open to the public, but upon being told to leave, he refused to do so.
[4] State laws bars cities from prohibiting the carry of weapons in city buildings, with very limited exceptions.
[5] 42 U.S.C. 2000aa, et seq.
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