Mimesis Law
1 May 2017

Earl David Worden: Another Case of Videographers vs. the Police

February 21, 2017 (Fault Lines) – We’ve run a number of stories on people filming police buildings and the reaction of police to those individuals. I think that it is basically baiting the police, but to be fair, the police do not have to take the bait. The most recent incident occurred in Missouri City, Texas, which is located just southwest of Houston in Fort Bend County. Earl David Worden[1] was filming outside of the police department and both an officer and his sergeant attempted to identify Worden. It’s very clear in the video what happened, and it’s very clear that the officers took the bait.

The problem is that Sergeant Phillip Englishbee wants to know who Worden is, because Worden is filming the police station. I can understand that. I would be curious too. The problem is that Worden is engaged in constitutionally protected activity, as he is well aware. You see, Worden runs with Phillip Turner, the guy that was falsely arrested in Galveston when Sergeant Archie Chapman saw Turner filming. Worden was the guy who filmed Chapman breaking into Turner’s car and searching it without a warrant or probable cause. So Worden knows what he’s doing, and he’s aware of what the law is.

He’s especially aware that Turner just won a case at the Fifth Circuit Court of Appeals, too. In that decision,[2] the Court held that filming the public activities of the police was protected by the First Amendment, stating:

We agree with every circuit that has ruled on this question: Each has concluded that the First Amendment protects the right to record the police.[3]

The parallels between the two cases continued. As in Turner’s case, Englishbee insisted that Worden identify himself, and Worden refused. Englishbee said that Worden was a suspicious person, and Worden wanted to know if that was a misdemeanor or a felony. Just like in the previous article, Englishbee did not have reasonable articulable suspicion that Worden was involved in criminal activity, but he continued to insist that he be presented with either identification or a name and date of birth. Worden, knowing that he did not have to identify unless he was under arrest, refused. At that point Worden was handcuffed and taken against his will into the police station.

This is where it got really interesting. Worden told Englishbee that he did not have to identify himself under the statute, and Englishbee went to the back, got a copy of the Penal Code, came back, and read the statute to Worden, reciting:

(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:

(1) lawfully arrested the person;

(2) lawfully detained the person…[4]

I’m watching this and just groaned—Englishbee just confirmed what Worden had said, that he did not have to identify himself unless he was lawfully arrested, yet Englishbee did not understand what he had read. So long as Worden did not give a false or fictitious name while detained, he committed no offense. But all is well, an Assistant Chief of Police came out and ordered Worden released.

Or is everything okay? This is where the Turner case kicks back in. You see, Turner was handcuffed and moved across the street to a squad car, and was put in the back seat. It wasn’t until the lieutenant came out and checked into the matter that Turner was released. The city said everything was fine, that there was no liability, that it was a mere investigative detention.

The Fifth Circuit said not so fast. The Court said that the initial stop was fine, that Turner could have been casing the police station for an attack or other criminal activity. It then added that:

Grinalds’s and Dyess’s actions—handcuffing Turner and placing him in the patrol car—were disproportionate to any potential threat that Turner posed or to the investigative needs of the officers.[5]

Wait—isn’t that about the same thing that Englishbee did to Worden? Back in Turner, the Court made it crystal clear:

The officers’ handcuffing Turner and placing him in the patrol car, as alleged in the amended complaint, were not reasonable under the circumstances.[6]

I made numerous calls to the Missouri City Police Department, left phone messages, and sent detailed emails to both Chief Michael Berezin and Sergeant Englishbee. Neither responded to my calls, nor did the Public Information Officer (PIO) for the department. It wasn’t until I contacted the city’s PIO that I was able to get any information. She directed me to a statement made by the police department on their Facebook page, and answered several questions.

The statement was good, stating that the matter was under investigation. What impressed me though is that the PIO did not attempt to whitewash this, but immediately stated that it appeared that the officers did not follow “protocol” in dealing with Worden, and that it may be a training issue. Compared to the typical response of cities and their police department, this is an improvement—the typical response is to deny that there was a problem at all.

I’m pleasantly surprised by this, and it bodes well for how Missouri City will handle the investigation. Englishbee does not need to be hung out to dry on this, but the behavior does need to be corrected. It appears that it will be.

[1] Worden has made this into an art. He is very knowledgeable on the law, but he is also somewhat disingenuous, calling himself a “good citizen” and making a big deal that he is not “armed.” Worden cannot legally be armed; he is a convicted felon and a registered sex offender. While that doesn’t affect his right to film, when officers know who he is and his background, it explains some of their disdain for him.

[2] Turner v. Driver, et al., No. 16-10312, ____ F.3d ____ (5th Cir., Feb. 16, 2017).

[3] Id., slip op. at 12 (internal citations omitted). The Court did note that at the time of Turner’s arrest, the law was not clearly defined, and upheld qualified immunity for the officers on Turner’s First Amendment claim on that basis.

[4] Tex. Pen. Code, § 38.02.

[5] Turner, at 18.

[6] Id., at 19.

25 Comments on this post.

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  • Rusty Rebar
    21 February 2017 at 1:20 pm - Reply

    “The statement was good, stating that the matter was under investigation. What impressed me though is that the PIO did not attempt to whitewash this, but immediately stated that it appeared that the officers did not follow “protocol” in dealing with Worden, and that it may be a training issue.”

    Problem is.. as you surely saw in the video, the officer admitted to being training on just this situation recently. So either the officer is too mentally challenged to understand what his training consisted of (which seems likely, as he could not understand the words he was reading when he recited the statute) or he just did not care what was in the training. In either case, he should not be a police officer if he cannot understand basic rights.

  • David W.
    21 February 2017 at 5:37 pm - Reply

    Not a bad article. However,I will point out that there is a reason I announce to Police that I am not armed-in Texas many people do go armed and the Police do not know me from them. I seek always to deescalate things-this is an attempt at that. As for any criminal history-it’s just that-history. I am a law abiding,productive member of society (despite what Criminal Cops would have you think) and any debt to society has long ago (30+ years) been paid.
    Missouri City dropped the ball on the initial press release on this-when I saw it,I contacted them and assisted them in correcting it.
    I ve since been in to make a complaint (video on my channel) and found they had already initiated and completed an internal review and took corective action. I was very impressed with how it was handled-after the fact.
    I have also thusfar been impressed with the PDs openness about the incident. I went there because of complaints from residents-it was not a random stop. I spoke with the Chief about those issues while there to make the complaint.
    Something that seldom gets mention in these type of articles is the fact I work with many PDs to address training issues and have done Siminars with PDs as training. Remember=Photography Is Not A Crime.
    And I urge everyone to always video your interactions with Police. As the above incident shows-Englishbee said they were recording-in fact neither had a bodycam so my footage is all there is..having video prevents “he said she said” type situations and video does not lie.

  • Empty0Set
    21 February 2017 at 7:52 pm - Reply

    “but he is also somewhat disingenuous, calling himself a “good citizen””

    Maybe he really does thing he is a ‘good citizen’, that he has repaid his debt to society and has stayed out of trouble since then? It isn’t being ‘disingenuous’ if you think it is true.

    “and making a big deal that he is not “armed.” Worden cannot legally be armed”

    So you mean he really isn’t armed? He is making a ‘big deal’ out of being armed because it is true, and because he is dealing with police officers already demonstrating willingness to break the law.

    “he is a convicted felon and a registered sex offender.”

    Why didn’t you investigate Englishbee’s past, and tell us about any previous reprimands and suspensions, and then use that to speculate on why he did what he did? And it isn’t just because Englishbee is the only person here who actually acted unlawfully, it is that Englishbee acted unlawfully in our name and with our material support.

    “While that doesn’t affect his right to film”

    The only relevant part in this footnote.

    “when officers know who he is and his background, it explains some of their disdain for him.”

    I have to ask, do you have a linear perception of time? In every video, officers who do act with disdain towards Worden act that way BEFORE they learn who he is, hence BEFORE they even get the chance to learn he is a registered sex offender. And in every video, once they manage to ID him, the cops invariably act all conciliatory and immediately end the detention or arrest. THEY DON’T CARE AT ALL about his status…so why should we?

    And that point is salient. Let’s not play dumb. Police want to check Worden’s name to see if he has a warrant or history of attacking police officers. When they see that he does not, they don’t care. Registered sex offender? “Meh, he’s not going to do anything to me,” is what every one of those cops thinks.

    • Greg Prickett
      22 February 2017 at 6:12 pm - Reply

      I don’t have access to Englishbee’s work record, and can’t post on it if I don’t have it. I have, when I’ve had access, I have commented on the officer’s disciplinary record, if any.

  • Rob Allen
    22 February 2017 at 1:06 pm - Reply

    I’d like to add to the above comment that in the not to distant past having 5 “joints” in a plastic bag while standing on any street corner near any housing project (a known drug area) could get you a felony distribution charge.
    There are a lot of people running around this country with felony records whose crimes don’t even come close to the standards used today but are saddled with that label.
    If any citizen had done what these two officers had done to David that citizen would be charged with assault, kidnapping, you know a felony!!!! They were clearly operating outside of the law, why are they not changed with those crimes!!!!

    • Greg Prickett
      22 February 2017 at 6:24 pm - Reply

      There’s a difference between officers taking action that is not allowed, but is done in good faith, and criminal assault or kidnapping. Also, in Texas, it wouldn’t be kidnapping if a civilian had done it.

  • David W.
    22 February 2017 at 2:45 pm - Reply

    I am curious as to why you deleted my comment. I addressed all the issues you raised as “questionable” and gave your readers some insight only the person involved can provide.
    Seems you only want to provide a small part of the total situation for public consumption. That’s unfortunate. As many in Reddit and here have pointed out-the criminal history remarks were not needed. Seems your real intent here is to discredit my work..and/or myself.

    • shg
      22 February 2017 at 5:58 pm - Reply

      Are you Earl David Worden? Is there some magical way we know that when you don’t give a full name, your email doesn’t reflect that, and on the internet, nobody knows you’re a dog? No need to be paranoid.

      On the other hand, your other comment suggests you lack a basic sense of boundaries. This isn’t your soapbox. You don’t have to approve of the post. You don’t get to give a lecture. And we neither have to post your comment nor explain why we don’t. Don’t be a dick.

  • David W.
    22 February 2017 at 7:39 pm - Reply

    I would think the email address would give me away. 😎 Yes,I am the above written about Videographer. I was not a dick to anyone. Nor did I try to use this as my “soapbox”-I sought only to clarify things. Obviously,you wish only to present your onesided version of the issue rather than have input from a source that was DIRECTLY INVOLVED the mentioned incident. Sad and unfortunate because you were on a good path with the article-sans a few points.
    Be safe and always video the Police.

  • Rob Allen
    22 February 2017 at 8:08 pm - Reply

    As per the statute, Tex. Penal Code § 20.04, a person commits kidnapping in first degree if s/he intentionally or knowingly abducts another person with intend to:

    hold him for ransom or reward; or
    use him as a shield or hostage; or
    facilitate the commission of a felony or the flight after the attempt or commission of a felony; or
    inflict bodily injury on the person abducted or abuse him sexually; or
    terrorize him or a third person

    I can’t speak for anyone else but having not broken any laws, doing something that everyone has done (public photography) at one time or another, Constructionally Protected but still find my self accosted, cuffed and drug into station would be terrifying!!!

    What was really terrifying is realizing that a training officer and a sergeant has a lower reading comprehension than a 5th grader and is interacting with the public while ARMED. He read the penal code out loud on camera and still missed the fact that he was COMPLETELY WRONG!!!!!

    • Greg Prickett
      22 February 2017 at 8:24 pm - Reply

      First, the reply button is there for a reason – please use it.

      Next, yeah, I can understand that it would be upsetting. Worden handled it very well. It still doesn’t turn it into kidnapping. I don’t think you would be able to make a case for official oppression either.

      Finally, officers are not perfect. Wanting to hang the sergeant out to dry is not reasonable. This ended fairly well, the PD immediately took action on it. That’s not typical and is to be commended.

  • Jason Peterson
    23 February 2017 at 12:30 am - Reply

    “…he is also somewhat disingenuous, calling himself a “good citizen” and making a big deal that he is not “armed.” Worden cannot legally be armed; he is a convicted felon and a registered sex offender.”

    Very subtle.
    And I totally believed that this was not in any way an attempt to make people disregard crimes committed by cops, by vilifying their victim.

    • Greg Prickett
      23 February 2017 at 12:39 am - Reply

      Exactly what crime was committed by an officer? There were certainly tortious conduct, but those are not necessarily crimes.

      • Jason Peterson
        26 February 2017 at 7:36 pm - Reply

        Very subtle.
        And I totally believed that this was not in any way an attempt to make people disregard “tortious conduct” committed by cops, by vilifying their victim.

        • Greg Prickett
          26 February 2017 at 7:39 pm - Reply

          Again, exactly what crime are you alleging that the officers committed?

  • Rob Allen
    23 February 2017 at 2:24 am - Reply

    Might want to look up recent case Phillip Turner Vs Lt Driver. 😂😂
    Officer’s lost their qualified immunity for this very thing.

    • Greg Prickett
      23 February 2017 at 2:29 am - Reply

      You may want to read the article. It cites Turner several times.

  • Rob Allen
    23 February 2017 at 4:56 am - Reply

    I did several times 😏 just that officers did loose qualified immunity on part of the case, I could be wrong but thought it was the cuffing and stuffing part of the case that bit them in the end.

    • Greg Prickett
      23 February 2017 at 7:41 am - Reply

      First, use the reply button so that the entire conversation stays in one place, in one thread.

      Second, if you look at the last block quote, it spells out that the handcuffing, movement of Turner, and placing him in the squad car was not reasonable. In other words, no qualified immunity.

  • Ernie Menard
    25 February 2017 at 1:48 pm - Reply

    This bothers me:

    “The Fifth Circuit said not so fast. The Court said that the initial stop was fine, that Turner could have been casing the police station for an attack or other criminal activity. It then added that:”

    Turner could have been casing the police station for an attack or other criminal activity? The court is saying that the act of videoing a building gives rise to reasonable suspicion.

    • Greg Prickett
      26 February 2017 at 12:56 am - Reply

      Reasonable suspicion has always been an extremely low standard.

      • Ernie Menard
        26 February 2017 at 9:27 am - Reply

        Good morning. Thank you for the opportunity to become more educated.

        I didn’t realize the standard was that low. In Terry the facts were the officer suspected the men of casing the jewelry store because they walked up and down that street and one of them peered through the window multiple times. There was a third guy, I don’t know what he did.

        In Turner the only articuable fact that gave rise to the suspicion was that Turner was videoing the police station. There are other facts, i.e., he’s black, it was broad daylight, he was standing on a publicly accessible area, and so forth.

        Does his right to video a government building become clearly established only after SCOTUS says so?

        Furthermore, now that the 5th Cir. has determined that videoing the police or the station is a right protected by the 1st amendment would Turner’s activity in the same place, at the same time, in the same manner give rise to reasonable suspicion?

        My final question realtes to the law here in Louisiana. Louisiana is a stop and identify state when the LEO has reasonable suspicion. Would Turner have to identify himself in Louisiana?

        • Greg Prickett
          26 February 2017 at 1:10 pm - Reply

          I’m not a Louisiana attorney, but my understanding is that Louisiana does require that a person identify themselves if they have been detained under reasonable suspicion. You would really need to talk to a lawyer in that jurisdiction for the best information on the subject.

          SCOTUS has not ruled on filming government buildings or personnel. It is, however, a clearly established right in a number of the circuits, including (now) the Fifth Circuit.

  • Jason Peterson
    26 February 2017 at 8:22 pm - Reply

    First Question:
    (In above comments it’s been stated that the crimes committed by these officers aren’t actually crimes, because they committed these crimes “in good faith”.)

    Could one of you lawyers/cops provide us with the legal definition of “good faith”?
    Because I don’t get it.
    To me it seems like “good faith” means “laws don’t apply to cops”.

    I mean, these cops just received special training on this very issue. One cop read the law right from the book and was either ballsy enough to keep trying to say he’s right even though he’s clearly wrong (which, granted, cops are known to do), or he actually is that stupid.

    Second Question:
    Does this mean that I can commit crimes and one of you guys can get me off, do too mi pore raeding compreyensiotn?

    • Greg Prickett
      26 February 2017 at 9:06 pm - Reply

      Jason, you have been asked two times what crimes you believe the officers should have been charged with. You have thus far refused to answer, and have attempted to redirect the question.

      We’re willing to have a discussion, but if you believe that we will allow you to throw out comments that we were going to disregard “crimes committed by cops,” when you refuse to address our question about what crimes you believe were committed, you are mistaken.

      While I have no control over the approval or deletion of comments, I can bring my concerns to the management on this type of issue, and they will usually support me. They don’t want their site hijacked by people promoting an agenda any more than I do.

      You need to answer the question. What crimes do you believe that the officers committed?

      You’re not going to get an answer until you answer that question.