Cop Tip: Why Open Carrying While Cop-Watching Is Not Very Bright
May 25, 2016 (Mimesis Law) — For the last few years, the number of people who are videotaping the police have substantially increased. These guys go out, stalk the police, and film them. Most police don’t like it, but, depending on where you live, it may or may not be protected under the First Amendment.
So in Brenham, Texas, this one guy was cop-watching. Brenham is a small town in central Texas, best known for being the home of Blue Bell Ice Cream and Blinn College. The cop-watcher shot the below video, which we’re going to analyze.
The cop-watcher carried a police scanner in his car, and heard a call that the police were looking for two burglary suspects who had fled on foot from the police. He’s interested, so he heads that way and, in the process, pulls behind a building. He’s observed by a police officer, who then stops him.
So far, so good. This is a reasonable suspicion stop. As the officer later tells the guy in the video, it is common for burglary suspects to call their friend to pick them up behind a building if they have run from the police.
Next, listen to the officer as he initially approaches the vehicle. At 0:20 you can hear the officer loudly demanding to see the driver’s hands, and the cop-watcher complies. This tells any officer watching the video that it is not a normal traffic stop; and the officer is concerned that the person may be armed. It is a clear sign of a high-risk stop, and the signs continue as the officer comes up to the window.
The officer begins to talk to the cop-watcher, until he sees the holstered pistol on the guy at about 0:35. The officer then immediately controls the cop-watcher’s hands and handcuffs him. He then removes him from the vehicle, still wearing his seat belt, and pats him down for weapons.
At about 1:30, the officer starts asking about the camera and the scanner, wanting to know why the guy has all of it going. He’s asking for a reason. Burglars will often use scanners to let them know what the police are doing, so that they can avoid being arrested. There’s nothing illegal about it, but that just pinged the cop’s threat meter a bit more.
So he asks the cop-watcher who he is, and the guy replies, “Andy.” Andy then asks what he did wrong. The officer then explains it to him, about the two people committing a burglary, the driver carrying a pistol, and that he pulled back behind a building. The officer clearly articulated reasonable suspicion, which is all he needs to conduct an investigative stop under Terry v. Ohio. Andy doesn’t get it. He believes that the officer must have seen Andy commit a criminal violation to be stopped, and he believes that he doesn’t have to identify himself unless he has committed a crime.
Andy is partially correct. Texas is not a “stop and ID” state, like Nevada and some other states (see Hiibel v. Sixth Judicial District Court of Nevada). In a stop and ID state, police may arrest you if they have reasonable suspicion, have stopped you, and have asked you for your ID. Texas is not one of those states. Under Texas law, you do not have to identify yourself if you are merely detained, only if you are lawfully arrested.
That doesn’t prevent the officer from making another, valid arrest, at which point he would have to identify himself. The officer could arrest the individual for “Failure to Display a Driver’s License” because he has legally stopped the vehicle. He could also arrest Andy for “Unlawful Carrying a Weapon” since he did not display his License to Carry to the officer.
Most police officers know that there is more than one way to skin a cat. So many won’t have a lot of patience, and will just arrest that guy.
That’s not what the officer does here. The officer even tells Andy that if he’s one of “those guys” who run around filming stuff, that is okay, but that he needs to know what’s going on. After the officer IDs Andy, he cuts him loose.
The good thing is that Andy knows that the officer did not violate his rights. He noted in the comments that the officer could have pulled his own gun on Andy or pulled him out the window. He has said that he will not file a complaint or a lawsuit.
That’s wise, because the city and the officer would win.
The issue here is whether it is wise to openly carry a pistol while cop-watching. Look at the video again. Start to think about all the places that this could have gone bad. If you are going to cop-watch and carry, it is probably wiser to carry concealed.
It’s safer for the cop-watcher anyway.